In Buenos Aires, on the day of the month of October 2003, the members of Chamber E, Drs. Catalina García Vizcaíno and Ms. Paula Winkler, with the last appointed member as president, met in order to resolve the case entitled CARTOCOR SA v. DGA s/ appeal; file No. 18.041-A
Dr. Catalina García Vizcaíno said:
I) That on pages 7/9, Cartocor SA, through its representative, files an appeal against Provision No. 2024/02 issued by the Deputy Director General in charge of the General Subdirectorate of Customs Operations of the Interior, in file No. EA 42-99-14.845, insofar as it ruled to reject the request for refund filed by the plaintiff of the amount that the latter considered overpaid as a statistics fee. It states that by DI 4512-3/94 it documented the import for consumption of semi-chemical paper for flutting type corrugating, originating and coming from Brazil, classified in position NABALADI 48.01.9.06. It adds that the import duties were settled with a 20% preference over the tariff provided for in the NCE established in Regional Scope Agreement No. 4 PAR 4, and the statistical tax was settled and paid at the 10% rate set by Decree No. 1998/92. It understands that the statistical tax was improperly settled and the 10% rate paid, since, in the case of merchandise included in AAPCE No. 14, the statistical tax that taxed it was 3%. It cites rulings of this Court and of the Honorable Chamber. It indicates that in December 1999, it initiated the repetition procedure, specifically claiming the difference between what should have been entered at the 3% rate and what was paid at the 10% rate, but that the claim was rejected on the grounds that the merchandise was negotiated by Par 4. It emphasizes that the destination request and its complementary documentation show that the requirements for the statistical rate to have been settled and collected at the 3% rate by Customs were met. It points out that the fact that the merchandise was negotiated in PAR No. 4 does not imply its lack of inclusion in AAPCE No. 14. It requests that the appealed resolution be revoked and that the attempted repetitions be allowed, with costs.
II) That on pages 18/20 the tax representative answers the transfer that was duly conferred on her. She makes a brief summary of the proceedings and the grievances raised by the plaintiff. She points out that the imported goods were negotiated under the Regional Agreement PAR 4, not having negotiated the rate corresponding to the statistical tax therein. She notes that the appellant seeks to obtain advantages from the regime provided for in another Agreement, such as ACE 14. She indicates that the plaintiff voluntarily accepted and documented the merchandise that she imported under a regime other than ACE 14. She adds that the goods covered by PAR 4 were subject to a statistical tax of 10%, a circumstance that has been recorded in the import clearances and in the percentage preferences obtained. She highlights that the amount obtained as a statistical tax was correct under the tariff regime in force at the time of the operation. It points out that at the time of documenting the aforementioned operations, ACE 14, this Agreement was in force, but that the appellant chose to negotiate under PAR 4 and that it cannot add preferences by juxtaposing different agreements and regulations. It highlights that in matters of imports, taxes must be paid in accordance with the general regime and that any exception to the latter must be expressly stated in the customs document as provided for in arts. 637 inc. b) and 639 of the CA. It cites judgments of this Court that it deems applicable. It understands that the plaintiff intends to benefit from the reduction of a rate by invoking a preferential regime; violating the principle of equity and equality that must prevail in all legal transactions, especially if fiscal income is at stake. It reserves the right to refer to the federal case. It requests that the appealed customs resolution be confirmed, with costs.
III) That on page 54 the proceedings are called to judgment.
(IV) That on page 1/7 of file EA 42-99 No. 14845, there is a request for the refund of amounts improperly collected as taxes with respect to DI 4512/94, based on the fact that the statistical rate was paid at 10% in accordance with the provisions of Decree 1998/92, but that it was entitled to 3% in accordance with the provisions of AAPCE No. 14; it invoked the supremacy of International Treaties over internal law and that the aforementioned Decree cannot raise the statistical rate to 10% corresponding to the importation of merchandise negotiated within the framework of this International Treaty, which had set it at 3%, without violating said principle… On page 11/4512 of file EA 3-94 No. 23, which contained a request for the refund of amounts improperly collected as taxes with respect to DI 2/94, based on the fact that the statistical rate was paid at 48.01.9.06% in accordance with the provisions of Decree 4/20, but that it was entitled to 12% in accordance with the provisions of AAPCE No. 13; 19 shows the forced direct dispatch No. 1278-02/20, made official on 21/2024/XNUMX, which documented the import of merchandise from PA NABALADI XNUMX; stating that it was included in PAR XNUMX with a percentage preference of XNUMX%. On page XNUMX, the Chief Int. Sec. Fiscal and Import Valuation of the Posadas Customs Region is issued. On page XNUMX, there is a report from the Legal Division. On page XNUMX/vta., opinion XNUMX/XNUMX of the Tax Regime and General Affairs Division is issued. On page XNUMX/XNUMX, Resolution No. XNUMX is issued, appealed in this case.
V) That in the aforementioned office the plaintiff invoked the benefit of 20% based on the PAR/4 (Regional Scope Agreement), for which she attached the Brazilian certificate of origin issued by the Federation of Industries of the State of São Paulo (see pages 11 of the administrative records). It is not disputed that this agreement did not establish the statistical tax rate (unnumbered page between 18 and 19 of the administrative records).
That the appellant bases its claim on the provisions of Article 2 of the AAPCE No. 14, signed between Argentina and Brazil, which stipulates that the Agreement covers the entire tariff universe of goods, classified in accordance with the Tariff Nomenclature used by the Association.
This Agreement provides for a program of exemption from taxes and other trade restrictions from 1/1/91 to 31/12/94. By Complementary Note No. 3, our country became subject to collecting a statistical tax of 3% of the CIF value of goods imported from Brazil.
That, contrary to the criteria supported by the fiscal representation, the appellant could not voluntarily opt for the Regional Scope Agreement PAR 4 or for the AAPCE 14, since according to the result of the measure to better provide arranged on fs. 22, the merchandise in question (PA NALADI 48.01.9.06) could not be covered by the ACE No. 14 with an 82% percentage preference, since this benefit was subject to a quota, which was covered for the plaintiff on 23/2/94 (see fs. 40). Consequently, it could only be covered by the regime of the Par Agreement No. 4 with a 20% percentage preference (see fs. 40). Hence, the sum or juxtaposition of preferences to which the Treasury refers is impossible.
I reiterate that in the aforementioned Regional Scope Agreement PAR/4, nothing was agreed upon regarding the statistical rate; moreover, it was stipulated that the tariff preference recognized by it did not include analogous rates and surcharges when they correspond to the approximate cost of the services provided (arts. 1 and 2; see fs. 30).
That the corresponding statistical rate should be applied, for which reason I consider that the rate of AAPCE No. 14 was applicable, since this Agreement was part of the regulatory complex relating to merchandise originating in Brazil imported by the Argentine Republic and at the time of the officialization of the import clearance of the sub-item it provided for a rate of 3% for said tax.
This is so taking into account the provisions of Article 2 of AAPCE No. 14, which extended its benefits to the entire tariff universe of imports from Brazil to our country.
That, consequently, as understood by Chamber G of this Court in Glencore Cereales SA, dated 5/2/03, although the AAPCE No. 14 is not applicable to the merchandise included in the aforementioned Regional Agreement PAR/14, as regards the percentage preference or duty reduction, it was, however, applicable as regards the rest of the provisions of that Agreement, such as what is of interest here - the level of the statistical rate (3%) for the aforementioned imports into Argentina.
(VI) In light of the foregoing, it is appropriate to apply the criterion upheld by the undersigned in Trumar SA, dated 26/11/97, to the effect that when the imported products for which a claim is made are of Brazilian origin and are included within the scope of AAP. CE/14 of 26/12/90, it does not seem doubtful to conclude that the 3% statistical tax rate advocated by the plaintiff should be applied, considering that such specific regulations arise from an international Agreement (not having invoked that said Agreement had been denounced by our country) and, therefore, prevails over the generic provisions of Decree 1998/92, as well as the RGME and OSP 1031/93.
That, in this way, what was said by the Supreme Court is applied regarding the fact that legal norms must always be interpreted avoiding giving them a meaning that puts their provisions in conflict, destroying one for the other, and adopting as true that which reconciles them and leaves all with value and effect (doctr. of Fallos, 296-372, 297-142, 300-1080).
That being so, it is appropriate that the repetition requested by the plaintiff be granted, plus the interest determined by arts. 811 and 812 of the CA from the date of the claim for repetition formalized at the customs office.
VII) That due to the difficulties of the issue raised, highlighted by the lack of express regulation of the statistics rate in the Regional Scope Agreement PAR/4, it is reasonable that costs not be imposed on the DGA.
Therefore, I vote for:
Revoke Resolution No. 2024/02 issued by the Deputy Director General in charge of the General Subdirectorate of Customs Operations of the Interior and grant the requested repetition on page 1 of the ant. adm. of the sums of $5.180 (five thousand one hundred and eighty pesos), plus interest from 27/12/99, when the plaintiff filed her claim (conf. art. 811 of the CA and doctrine of the SC in Establecimientos Textiles La Suiza, dated 27/4/93). Without costs.
Dr. Winkler said:
I agree with the preceding vote.
In accordance with the above agreement, it is unanimously RESOLVED:
Revoke Resolution No. 2024/02 issued by the Deputy Director General in charge of the General Subdirectorate of Customs Operations of the Interior and grant the requested repetition on page 1 of the ant. adm. of the sums of $5.180 (five thousand one hundred and eighty pesos), plus interest from 27/12/99, when the plaintiff filed her claim (conf. art. 811 of the CA and doctrine of the SC in Establecimientos Textiles La Suiza, dated 27/4/93). Without costs.
Register, notify, promptly return and archive the administrative records.
The following sign this document: Dr. García Vizcaíno and Dr. Winkler, as the position of Member of the 14th Nomination is vacant. (Conf. art. 1162 of the CA)
