Dr. García Vizcaíno is one of the most respected and recognized intellectuals in our country in taxation and customs law, a persistent woman, a successful lawyer, and a charismatic teacher. With lucidity, she reveals what role Customs plays in the global market. And she maintains: “It is important to reactivate economic activity in Argentina and, especially, to increase the quantity and quality of exportable industrialized products, so that they are more competitive. To do so, tax pressure must be reduced, inflation moderated, operational processes simplified in order to reduce costs, the exchange rate must be kept stable and there must be austerity in public spending.” A jurist who does not keep quiet. Nor conceives of gray areas.
Question: What is the role of Customs in globalization?
Answer: The role of Customs in international trade is fundamental. Article 11 of Decree 618/1997 summarises the two major customs duties, which are: the collection and inspection of public revenues produced by taxes levied on import and export operations and the control of international merchandise traffic.
This adequate control of international traffic of goods assigned to customs, established in art. 9, section 2, inc. b, and art. 11 of dec. 618/1997, makes it necessary to verify the application of the prohibitions on introducing or removing certain merchandise from customs territories (arg. art. 9, ap. 2, inc. c, dec. 618/1997) and transit, as well as the collection of taxes that may be levied on import and export operations (arg. art. 9, ap. 2, inc. a, and art. 11, dec. 618/1997).
Customs control has tax purposes (aimed at the collection of customs and non-customs taxes) and non-tax (security; industrial promotion; economic; health; exchange; moral; environmental protection; as well as intellectual and industrial rights of archaeological, historical and artistic heritage; prevention of trafficking in dangerous drugs and tax fraud; among others). The DGA even exercises certain functions by delegation from other state agencies. The criminalization of the crime of smuggling cannot be limited to the protection of economic policy regulations, since the control assigned to customs also includes other tasks. Otherwise, it would make no sense to criminalize the smuggling of narcotics or weapons of war.
With regard to tax purposes, the control functions that the laws confer on the customs service over imports and exports cover not only the area of customs taxes, but also other taxes collected by customs, for example, VAT on final imports, collection of VAT and IG, internal taxes, etc.
This is important to conceptualize the legal assets protected by customs crimes and violations.
However, certain doctrine (Héctor Vidal Albarracín, Bárbara Eisenberg), as well as some pronouncements of the Supreme Court and other courts (unlike the broad criterion that I support) only took into account restrictively the concept of "customs control", limiting it to customs taxes and prohibitions on import and export.
Customs control is not hindered by globalization, as a process that considers the world as a large single market without borders, in which multinational or transnational companies operate simultaneously in the territories of several states, seeking to take advantage of comparative advantages.
Customs control must be improved in order not to lose effectiveness in the face of the increasing speed with which transactions are carried out (new forms of contracting) and goods are shipped. Nor is the application of international treaties an obstacle to customs control, unless there are express rules to the contrary.
National customs legislation is subject to the development of customs law developed by international organizations: WCO (World Customs Organization), with regard to the improvement of customs systems (customs techniques, valuation, and the individualization and classification of goods in the Harmonized System Nomenclature) and WTO (World Trade Organization), with regard to the reduction of customs barriers to trade. In addition, regional integration processes are involved, which give rise to community or integration customs law.
The lower the number of trade barriers, the more technologically efficient customs controls are essential to prevent the entry of, for example, toxic or dangerous substances or waste such as radioactive waste, narcotics, weapons, or the clandestine export of endangered species of flora and fauna, or elements constituting the archaeological, paleontological or artistic heritage.
Question: What is your view on Argentina's strategy to enter the world in an intelligent way?
Answer: No country is a watertight compartment, although this does not mean that some international trade relations can harm the national economy by granting subsidies to producers-exporters or selling goods under dumping conditions. A fair balance must be sought.
It is essential that Argentina enters the world in an intelligent way, promoting exports with high added value and, in this way, reactivate its economic activity by creating sources of employment.
In the cases of indirect e-commerce In the case of Internet-based imports, which involve the physical delivery of goods purchased abroad electronically, the rules of taxation apply, with the goods being taxed when they cross the border. Customs control can thus be exercised perfectly.
But I think that internal taxes (for example, VAT) should be applied when it comes to direct e-commerce Regarding the shipment by subjects resident or domiciled abroad of goods digitized electronically (music, with , supply of formulas or information, books or films), the use or effective exploitation of which takes place in our country. These cases can be understood as the provision of services.
See in this regard the reform of Law 27.430 regarding VAT on digital services provided abroad, the use or effective exploitation of which is carried out in the country.
Question: Should taxes be applied to the export of services?
Answer: The taxation of services with export duties is subject to conflicting opinions, as it affects their competitiveness, rather than encouraging them. Technically, services, as intangibles, are subject to internal taxes, but not to export duties.
Among the critical voices, I would like to point out that the Argentine Chamber of the Software Industry questioned the Government's decision to apply taxes on exports of services, including IT services, on the grounds that this measure "harms investment decisions" in this sector and "will discourage the generation of foreign currency."
Customs collect import and export duties on physical goods, without prejudice to the fact that royalties, license fees and other fees under Article 8 of the Agreement on the Implementation of Article VII of GATT may be added to their value (tax base).
However, intangible assets are subject to internal taxes; for example, by the Income Tax Law, which taxes the income, profits, benefits or enrichments obtained by those responsible according to its art. 69.
Export duties are otherwise distortive.
The economic reason for taxing them has been the considerable rise in the exchange rate and the need to achieve primary fiscal balance, which does not take into account debt. As Gustavo Zunino calls it, this is a “compensated devaluation” for the services sector.
Budget Law 27.467 modified the CAd as follows:
– He added among the concepts that receive the treatment of merchandise: “The provision of services carried out in the country, whose use or effective exploitation is carried out abroad” (art. 10, ap. 2, inc. c, of the CAd.).
– Accordingly, section 2 of art. 91 of the CAd. was replaced by the following: “In the cases provided for in section 2 of art. 10, persons who are providers and/or transferors of the services and/or rights involved therein shall be considered exporters.”
– As the last paragraph of art. 735 it provided: “For the purposes of determining the export duty applicable to the services provided for in section 2 of article 10, the amount arising from the invoice or equivalent document shall be considered as the taxable value.”
Pursuant to this reform, the Executive Executive issued Decree 1201/2018. For its part, the AFIP regulated this rule through Res. 4400/2019.
Art. 3 of Decree 1201/2018 defines such services as “any rental and provision made in the country for a fee and without a dependency relationship, the effective use or exploitation of which is carried out abroad, understood as such the immediate use or the first act of disposal by the borrower”. Regarding the immediate use or first act of disposal, this Decree adopts the same criteria that was incorporated into the VAT Law by Law 27.430 of Tax Reform. The difference is that in this case it is a law and that it applies to imports. In terms of exports, there may be legal uncertainty regarding acts that take place outside the customs territory. services until 31/12/2020, but the export duty cannot exceed $4 for each dollar, that is, when 12% exceeds $4, the duty ceases to be ad valorem and becomes a specific right.
When duties exceed $4, this limit is applied and the debt for service exports is determined in pesos.
If the fees do not exceed $4, they must be maintained in foreign currency and converted to pesos at the exchange rate at the close of the business day prior to payment.
Exports made by Micro and Small Enterprises, in accordance with Article 2 of Law 24.467 and amendments, will begin to pay the aforementioned fee on the amount of exports of services that exceed the accumulated sum of US$600.000 in the calendar year.
Export duties must be paid within 15 business days of the month following the month in which the respective transactions were invoiced. A sworn declaration must be submitted, the requirements, conditions, etc. of which are contained in AFIP RG 4400/2019.
Exporters who, in the calendar year immediately preceding the date of the sworn declaration, have exported services for less than US$2.000.000, have a waiting period of 45 calendar days, without interest, counted from the day after the expiration of the sworn declaration they must submit.
For the remaining exporters, there is no waiting period.
In many cases, larger exporters will therefore have to pay export duties even though they have not charged their foreign customers for the service.
The message with which the Executive Branch accompanied the budget project for 2019 estimated that (in millions of pesos) In this fiscal period, the sum of $603.755 would be collected for export and import duties, exceeding the estimate only by VAT ($656.104).
However, in the months of January and February 2019, the AFIP collected the following amounts for export and import duties, and other customs taxes (in thousands of pesos):
Question: What do you think of Mercosur and how far have we come?
Answer: I believe that Mercosur is currently weakened, despite some attempts to revive it, such as the negotiations with the European Union that are taking place in Buenos Aires from March 11 to 15, 2019.
For Argentina, the agreement with the European Union would allow a significant increase in meat exports and reopen the market for domestic biodiesel.
It would be advisable for Mercosur to be more flexible in the sense that its members could unilaterally conclude trade or investment agreements, without having to do so as a bloc.
The common external tariff has been a huge restriction on agreements.
Argentina must open new markets, especially in Asia, which is why it has to strongly promote the economy so that exportable products are competitive.
A policy that reduces public spending and, consequently, reduces tax pressure is important in order to reactivate the economy and create new sources of employment.
Question: Why is Constitutional Tax Law essential?
It is essential that the legislation responds to the constitutional aspects of taxation, for example, with regard to export duties.
It would be advisable that, prior to the issuance of decrees establishing export or import duties, the National Congress issue an enabling regulation as it has done through Article 81 of Law 27.467.
Indeed, art. 81 of law 27.467 provides that the Executive Power may set export duties, the rate of which may not in any case exceed 30% of the taxable value or the official FOB price. This maximum limit is 12% for those goods that were not subject to export duties on 2/9/2018 or that were taxed with a rate of ZERO 0% on that date. The Executive Power may exercise this power until 31/12/2020. State companies governed by law 13.653 and State corporations governed by law 20.705, whose purpose is to develop science, technology and innovation activities, are exempt from paying duties that tax exports for consumption.
Art. 82 of Law 27.467 establishes that Decree 1126/2017 and its amendments, Decree 486/2018 and its amendments, Decree 487/2018 and its amendments, and Decree 793/2018 and its amendments, remain valid and in force, “as well as any other current regulation issued within the framework of those powers.” However, Law 27.467 was published in the Official Gazette on 4/12/2018, so it is worth asking whether Decree 793/2018 will be considered valid or not from the time it was published and came into force (4/9/2018) until the publication of Law 27.467 in the Official Gazette.
This is so, since the Supreme Court, by majority, on 15/4/2014, in the case "Camaronera Patagónica SA" expressed that the substantial aspects of tax law have no place in the matters for which art. 76 of the CN, authorizes, as an exception and under certain conditions, the legislative delegation to the PEN (the dissenting position also understood that the tax matter is unrelated to those mentioned in art. 76 of the CN and emphasized that the improper delegation is based on art. 99, paragraph 2, of the CN). However, it is admissible that Congress attributes to the PEN certain powers circumscribed exclusively to the quantitative aspect of the tax obligation, that is, it is authorized to "raise or decrease the applicable rates, as long as, for the exercise of said attribution, precise guidelines and limits are set through a clear legislative policy." Law 25.645 “is incapable of retroactively validating a regulation that suffers from absolute and incurable nullity —such as Resolution 11/2002 of the then Ministry of Economy and Infrastructure—, but there is no reason to deprive it of effect in relation to events that occurred after its entry into force.” Therefore, the invalidity of the aforementioned Resolution 11/2002 is limited to the period between 5/3/2002 (date on which it entered into force) until 24/8/2002, at which time Law 25.645 takes effect, a provision that grants its content legal rank. The dissent of Drs. Enrique Petracchi and Carmen Argibay declared the unconstitutionality of the aforementioned Resolution 11/2002 (15/4/2014, “Camaronera Patagónica SA Ministry of Economy s/amparo”).
In light of this doctrine of the highest court, it is worth asking whether decree 793/2018 is valid or not in the period between 4/9/2018 and its ratification by budget law 27.467.
It should be noted that Decree 793/2018, which established export duties, was based on Article 755 of the CAd and, in addition, on Law 26.939 of 2014, approving the Argentine Legal Digest, which declared the CAd regulations in force.
However, the Federal Court of Comodoro Rivadavia, on 26/12/2018, in “Estelar Resources Limited SA v. National Executive Power s/amparo law 16.986” confirmed the declaration of unconstitutionality of art. 755 of the Customs Code and dec. 793/2018 with the reforms introduced by dec. 865/18 – for the period from 04/09/18 to 03/12/18, in which law 27.467 was enacted.
Question: What legacy do you have from practicing Tax Law?
I have served as a member of the National Tax Court with jurisdiction over customs from 1985 to 2012. I joined this jurisdictional body, which was for me a true school of Tax Law, in the 1970s as a Rapporteur with my brand new law degree. Over time, I was promoted to Legal Secretary, General Secretary and General Secretary of Customs Affairs until my appointment as a member.
At the same time, I developed my teaching career at the Faculty of Law of the University of Buenos Aires, initially as an assistant, then as Head of Practical Work, as a Regular Adjunct Professor and, finally, as a Regular Full Professor of Public Finance and Tax Law.
I also served and currently serve as a Professor of Postgraduate courses at the Faculty of Law and the Faculty of Economic Sciences at the UBA.
I have been Director and Professor of the Postgraduate Specialization in Tax Law at the UB since 1994.
In addition, I have directed the Postgraduate Course in Customs Management – Foreign Trade Techniques at the IEFPA since 2004. I am currently the Rector of that institution.
Mi Treaty on Tax Law (Abeledo Perrot publishing house) has six editions of its first two volumes and five editions of the third. Every four months I update it via e-book, Proview system.
In February 2019, the 4th expanded and updated edition of my book was published by the publisher Abeledo Perrot. Tax Law Manual with the tax reforms, among others, of laws 27.430, 27.467, 27.480.
I also direct the Quarterly Journal of Tax Law, by IJ editors in collaboration with the University of Belgrano. Issue number 2019 was published in February 20.
Question: What does the 2019 academic agenda look like for the reader interested in learning?
The Graduate Careers They have the following schedule:
– On 1/4/2019, the opening ceremony of the new academic year of the courses of the Institute for the Study of Argentine Public Finances, of which I am the rector, will take place.
– On 15/4/2019 I will begin a new cycle of the Graduate Specialization Course in Tax Law at the University of Belgrano, which I have the honor of directing since 1994.
– On 4/4/2019 I will begin teaching classes in the new cycle of the Tax Specialization Course at the Faculty of Economic Sciences at the UBA.
– On 8/4/2019 I will start classes for the new cycle of the Master’s Degree in Tax Law at UCA.
– On 27/8/2019 I will be taking a new course on Customs, Tax, Criminal and Procedural Law, in the Specialization Course in Tax Law at the Faculty of Law of the UBA.
– I also give talks at the Attorney General's Office of the Autonomous City of Buenos Aires, the Professional Council of Economic Sciences of the Federal Capital, the Association of Lawyers of Buenos Aires, and the Public College of Lawyers of the Federal Capital.
As for the Degree courses:
– I have started classes in the Law Degree Program at the Faculty of Law of the University of Buenos Aires, where I work as a Regular Professor.
– I am also a Professor of Law at the UB and UCSE.
About Days:
- The XI International Conference on Customs Law will take place in August of this year, organized by the Argentine Association of Fiscal Studies. As in previous years, I have been offered the Presidency of the Scientific Committee.
Very important topics will be discussed, which are currently being planned, such as: Panel I: Export duties applicable to the provision of services abroad. Panel II: Current issues in customs matters (modifications to the Customs Code by the budget law, prescription, interest, procedures, etc.). The Round Table will focus on Authorized Economic Operators.
- In October of this year, the 5th Customs Law Conference will be held at the UBA Law School., organized by the Customs Law Commission that I have the honor of chairing, within the Center for Studies of Financial Law and Tax Law, founded by Professor Emeritus Dr. José Osvaldo Casás.
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Catalina Garcia Vizcaino
* Woman married for more than 37 years to Eng. Alejandro Bruno Donzelli
* Mother and grandmother
* Person of faith
* Phrase of life: “Nothing in this world can take the place of persistence. Talent cannot; nothing is more common than talented failures. Genius cannot; unrecognized geniuses are common currency. Education cannot; the world is full of losers who received the best education. Persistence and determination alone are omnipotent.” (John Calvin Coolidge —1872-1933—, 30th President USA: during his presidency he kept taxes low, to the point that income tax only affected the richest 2% of the population).
By: Maria Elsa Coronel for Customs News
Aduana News is the first Argentine customs newspaper to launch its digital version. With 20 years of experience, its publications and initiatives aim to provide the most relevant knowledge on customs issues in order to contribute to safe trade in the region.
