In Buenos Aires, on the 3rd day of April 2002, the members of Chamber "E", Drs. Catalina García Vizcaíno, D. Paula Winkler and Gustavo A. Krause Murguiondo, met, with the latter presiding, in order to render judgment in the case entitled: "CELULOSA CAMPANA SA v. General Directorate of Customs, s/appeal", File No. 15.682-A.
Dr. Catalina García Vizcaíno said:
I) That on pages 9/11 back, Celulosa Campana SA, through its attorney, files an appeal against Resolution No. 09/01, dated 29/1/2001 (sic; according to the information provided, it is Ruling No. 12/01 of 31/1/2001), issued in file SA 08-044/99, for which it is charged with a violation of art. 970 CA, due to the failure to regularize in a timely manner part of the merchandise temporarily imported by DIT No. 078-7/97. It indicates that at the time the appealed resolution was issued, it had filed for preventive bankruptcy. It notes that the administrator, when carrying out the liquidation of the taxes owed, violated the jurisdiction of attraction of art. 21 of Law 24.522 for matters such as the present one, and that within the effects of the opening of the preventive bankruptcy proceedings is the filing of the causes of patrimonial content before the intervening judge, as well as the suspension of the interests that accrue the credits for cause or title prior to the presentation in bankruptcy (art. 19 of Law 24.522). He alleges that in such a situation he sought protection under Law 24.522, in order to obtain legal protection against the situation of insolvency, a fact that generated the lack of compliance with his tax obligations. He points out that the fine that is being applied to him has its origin in the lack of compliance with an obligation from a cause prior to the presentation in bankruptcy, "this being of the same nature as the interests that are suspended as a consequence of the presentation." He affirms that the lack of re-exportation was due to problems in the regional markets that operated as clients, especially with Brazil due to the continuous devaluations of its currency. The bank states that, given the material impossibility of re-exporting, the only alternative was to voluntarily pay the resulting penalties, thereby violating the principle of equality of creditors established by the bankruptcy law. For the reasons set forth, the bank requests that the liquidation carried out in the preliminary proceedings be declared null and void. The bank requests that the appeal be upheld, with costs.
II) That on pages 18/24 the fiscal representation answers the transfer that was duly conferred upon it. It makes a brief summary of the facts that gave rise to the present proceedings. It denies each and every one of the assertions that are not expressly acknowledged. It summarizes the grievances of the appellant, and refutes them by citing arts. 1080, 1101 and 1108 of the CA in support. It indicates that there is no evidence in the file that DIT 078/97 was complied with, given that it arises from the proceedings that the plaintiff temporarily imported merchandise but the same does not occur with respect to compliance with the obligation that the regime entails. It maintains that the importation was carried out under Res. 72/92, issued pursuant to the provisions of Decree 2284/91 and subsequently modified by decree 1349/96. The Court states that the burden of proof of compliance falls on the importer, who expressly acknowledged its failure to comply with the obligations inherent to the temporary import regime. It notes that the statement made by the plaintiff regarding the impossibility of re-exporting constitutes a typical commercial risk of the activity carried out by the defendant, and therefore cannot be taken as an excuse for its liability. Regarding the opening of the preventive bankruptcy proceedings, it points out that this does not in any way prohibit the competent body from determining tax obligations and/or applying sanctions, issues that are not attracted by bankruptcy. It adds that the bankruptcy regulations are not applicable to the case, since the obligations referred to in the case are governed by customs regulations. It requests that the customs resolution be confirmed, with costs.
III) That on page 28 the case is declared to be one of pure law and the proceedings are sent to Chamber E, which passes them on to judgment.
IV) That file SA 08 No. 044/99 begins with the presentation of the customs agent requesting the cancellation of DIT 078-7/97. At fs. 65 there is the report of the Registry Section of the Campana Customs, which indicates that the goods documented by some of the shipping permits mentioned by the aforementioned agent had not left that customs. At fs. 66 there is an envelope with DIT No. 078-7/97, made official on 5/3/97. At fs. 68 the liquidation of the taxes is carried out. At fs. 69 a summary is instructed for alleged commission of an infraction to art. 970 CA. At fs. 73 there is the report of the General Registry of Offenders. At fs. 84/85 the plaintiff answers the hearing conferred. At fs. 120/123 On 31/1/2001, Resolution No. 12/01 was issued, appealed in this case.
V) That the question of the nullity of the contested settlement, raised by the appellant in its appeal brief (page 11 of the proceedings), is closely linked to the substantive issue to be resolved, so that it is subsumed by the analysis of the grievances relating to the merits.
VI) That with respect to the merits, the appellant raises no grievance regarding the substantial breach attributed by customs, and therefore the infringement attributed by the appealed resolution must be deemed to have been committed.
Furthermore, it should be noted that art. 970 of the CA in its section 1) provides that: "Anyone who fails to comply with the obligations assumed as a result of the granting of the temporary import or temporary export regime, as the case may be, shall be sanctioned with a fine of one to five times the amount of the taxes levied on the import for consumption or the export for consumption, as the case may be, of the infringing merchandise, a fine that may not be less than thirty percent of the customs value of the merchandise..."
That the illegal act attributed by customs is not purely formal, and the existence or not of fiscal damage is not relevant for this purpose, since the benefit of temporary importation is provided that the merchandise is re-exported within the term (art. 250 of the CA), or eventually its importation becomes definitive, for which the relevant request must be made within the terms provided for in art. 271 of the CA.
The appellant acknowledges that it was materially impossible to re-export the goods, although it invokes as a cause "the expulsion that Argentine companies have had from regional markets, especially Brazil, after the continuous devaluations of the Brazilian currency" (page 10 of the case)
That, however, no fortuitous event or force majeure was demonstrated in the present case, considering that the circumstances arising from the situation of the international markets form part of the business risk. Nothing prevented the appellant, within the period provided for, from having requested in a timely manner the nationalization of the merchandise (art. 271 of the CA) or its re-exportation, or from having opted for the possibility provided for in art. 270 of the CA.
That art. 270, par. 1, of the CA provides for an exemption from the obligation to re-export for consumption "when the merchandise in question is abandoned in favor of the national State, destroyed or treated in such a way that it is deprived of commercial value, under the control of the customs service. The request must be made at least one month before the expiration of the agreed period of stay."
From the above it can be inferred that if a situation had occurred in which it was impossible to nationalize or definitively re-export the merchandise, the alternative was its abandonment, destruction or deprivation of its commercial value, in accordance with the provisions of art. 270 of the CA.
VII) That the preventive bankruptcy invoked by the appellant (and which the appealed resolution considers proven by virtue of Note No. 313/00 of fs. 75 of the administrative antecedents) is not an obstacle to the application of a fine and the formulation of the tax liquidation that the customs carried out based on the appealed resolution.
That, in effect, the Supreme Court has understood that the bankruptcy law must be understood with the scope of preventing the execution processes from being carried out outside the bankruptcy, but not that of prohibiting the competent body from determining tax obligations prior to the date of initiation of the bankruptcy or the pecuniary sanctions that are linked to them ("Gregorio C. Cosimatti", 9/4/87).
It should also be recalled that, with respect to the proceedings initiated by the bankruptcy trustee, who filed an appeal before the National Tax Court against the DGI's ex officio determination of the bankrupt's VAT debt, the Supreme Court declared that the bankruptcy court was incompetent to hear them, since Law 11.683 (at that time, amended in 1978 and amended) "has specifically provided for a procedure and a decision-making body (...) and the possibility of appealing to courts of the national judiciary (...)". The Supreme Court stressed that such proceedings did not entail the filing of any action against the bankrupt or the bankruptcy, nor that enforcement had been promoted on the basis of the claimed tax credit ("Hilandería Luján SA", dated 30/9/86; "Fallos", 308-1856). In "Casa Marroquín SRL s/concurso preventive" dated 31/3/87, the Supreme Court added that attributing to the bankruptcy court the power to review the intrinsic validity of the title invoked by the treasury in support of its credit (the tax determination having become final due to lack of resources) meant unjustifiably disregarding the specific procedural regulation of the aforementioned law 11.683 (Tax Law, vol. XLIII, p. 190).
That these solutions extend to customs matters, for which reason I consider that the appellant is wrong in considering that the preventive contest meant that the customs court was unable to issue the contested resolution in alleged violation of the jurisdiction of attraction of causes with patrimonial content.
VIII) That with respect to the interests, the appellant is correct, taking into account that the filing for preventive bankruptcy dates back to 12/8/99 (see pages 75 of the previous administrative proceedings) and that art. 19 of law 24.522 provides that: "The filing for bankruptcy causes the suspension of the interests accrued by all credits from a cause or title prior to it, which are not guaranteed by a pledge or mortgage. The interests on credits thus guaranteed, subsequent to the filing, may only be claimed on the amounts arising from the assets affected by the mortgage or pledge …".
Therefore, I vote for:
1) To confirm the contested decision insofar as it has been the subject of the appeal, except in relation to the interests that are suspended from the filing of the preventive bankruptcy. Costs according to the due dates.
2nd) To order the plaintiff to, within a period of five days, pay the amount of $2999 (two thousand nine hundred and ninety-nine pesos) as the fee for proceedings provided for by Law 22.610, as amended by Law 23.871, for the contested taxes (although they are not mentioned in F4, they are aggrieved at page 9 of the proceedings without consenting to them), under penalty of issuing a debt certificate.
3rd) By signing this document, the appellant must pay 2% of the fine for which she is actually convicted, under penalty of issuing a certificate of debt.
Dr. Winkler said:
I agree with the preceding vote.
Dr. Gustavo A. Krause Murguiondo said:
That agrees with the vote of Dr. García Vizcaíno.
In accordance with the above agreement, it is unanimously RESOLVED:
1) To confirm the contested decision insofar as it has been the subject of the appeal, except in relation to the interests that are suspended from the filing of the preventive bankruptcy. Costs according to the due dates.
2nd) To order the plaintiff to, within a period of five days, pay the amount of $2999 (two thousand nine hundred and ninety-nine pesos) as the fee for proceedings provided for by Law 22.610, as amended by Law 23.871, for the contested taxes (although they are not mentioned in F4, they are aggrieved at page 9 of the proceedings without consenting to them), under penalty of issuing a debt certificate.
3rd) By signing this document, the appellant must pay 2% of the fine for which she is actually convicted, under penalty of issuing a certificate of debt.
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