Buenos Aires, April 30, 2002
CARS AND SEEN:
File No. 13.697-A entitled ARGENTINA INSURANCE COMPANY VISION SA C/DGA S/APPEAL, and
CONSIDERING:
I.- That at fs. 7/11 the plaintiff firm, through its representative, appeals against Resolution No. 012/2000 of the administrator of the Río Grande customs office, issued in file AA49 No. 4269/98, by which the challenge filed by said firm against charge No. 68/99 of said customs office was rejected (and therefore the indicated charge was confirmed), which was formulated to it in its capacity as guarantor insurer of the exporter Viscosud SA - due to lack of proof of origin by the aforementioned exporter - in relation to the shipping permits on the payroll of fs. 2 of the indicated file (PE from the Rio Grande customs). The plaintiff refers to the background of the matter and in this regard states that the aforementioned exporter, through the aforementioned permits, made exports from the special customs area to the continental national territory, of merchandise for whose tariff treatment as originating in said area it had to prove the origin, and that as soon as said accreditation was in process the exporter had to provide guarantees (which were provided by the plaintiff) to secure the difference in taxes (for the foreign inputs used and for the refunds paid for inputs also used - from the continental territory); that in relation to those permits - charge 59/98 was formulated to its party for lack of accreditation of origin and that for this reason it was immediately presented, raising the nullity of the charge, which was admitted affirmatively - by the customs administrator who ordered the reformulation of the charge, specifically stating the reasons for it; that charge 68/99 was brought against its party for the same amount as the previous charge and claims - substantially identical to the previous one, against which an appeal was also brought, also raising the nullity of the new charge and also the prescription of the tax action (which would have occurred on January 1, 1999); and that by the resolution appealed here the appeal was rejected on the grounds that it was considered that the prescription had not occurred (because the exporter had been granted a waiting period) and without any comment being made on the claim of nullity. The plaintiff maintains that the charge in question is void and that the tax authorities' action is also time-barred. Regarding the first point, it is understood that if the first charge was void (as the challenge against it was upheld, in which only the nullity had been raised) the second, substantially equal to the first, must also be void; and it specifies as specific causes of nullity - that this new charge lacks the mention of certain elements, which it details (fundamentally the concept of the amounts claimed, whether or not these amounts included interest), that the PE were not added, and that the disputed charge was not notified to the exporter (understanding that the claim against the principal debtor is essential so that it can also be directed to the guarantor). As for the prescription claim, it states that its course began to run on 1.1.94 (PE of the year 1993) and that the charge in question was notified to him on 31.8.99 when he states - the prescription had already been operated, arguing (with the specific arguments he makes) against the reasoning of the customs judge who rejected the prescription in the appealed resolution, reasoning in the sense that the exporter had been granted a waiting period (with suspensive effect of the prescription) by virtue of the deadlines set by Resolution ANA 3274/96 for the processing of applications for accreditation of origin (essentially or mainly the plaintiff claims in this regard that the waiting period with suspensive effect is that which occurs in the terms of arts. 790 and 453 inc. a. of the CA, which has not occurred in the case of the PE of the autos), and maintaining, against another argument of the customs judge, that the challenge against the first charge had no interrupting effect, nor did the notification of the first charge, since it was declared void, and that the prescription was not interrupted in relation to the exporter, since it was not given any intervention in the proceedings. As to the merits of the matter, it maintains that since the appealed decision determines that interest is due from the establishment of the guarantee, such interest is not applicable because there was no waiting period and the exporter was not notified of the charge in question. Request the revocation of the appealed resolution or, where appropriate, the partial revocation regarding the decision on interest matters.
II.- That on pages 17/22 the fiscal representative attaches the administrative acts in the background of this case (file AA49-4269/98) and answers the transfer of the appeal. It refers to the background of the matter and the grievances of the plaintiff. Regarding the claim of prescription made by the plaintiff, it maintains that the charge in question (No. 68/99) is an extension of charge 59/98, which was notified, so that, due to the date on which said notification was made, it constituted an interrupting act, and also affirms the existence of the waiting period (suspensive of the prescription) from the constitution of the guarantee. Regarding the claim of nullity, it maintains that it is inadmissible by virtue of the provisions of art. 1051 of the CA (tacit consent), and in this regard it also points out that the charge in question is a reformulation or extension of the previous one that was not declared null. As to the merits, it asserts that the plaintiff has consented to the lack of proof of origin of the goods in the EP in question, and as to the plaintiff's grievance regarding interest, it maintains that it should be dismissed as it was not raised when filing the challenge and, furthermore, that interest is due as long as the insurer is liable for the interest accrued on the principal obligation, invoking in this regard art. 1997 of the Civil Code and jurisprudence that it considers applicable to the case. It requests that the evidence offered by the plaintiff not be allowed as unnecessary and irrelevant (sic) and that the appeal filed in this case be rejected.
III.- That on page 27 the attorney who presented the appeal reports on the entry into liquidation of the plaintiff firm (due to the revocation of the authorization for it to act in Insurance), attaching a copy of the BO with the publication of the respective Resolution of the National Insurance Superintendence, informing at the same time about the person of the designated liquidator and his address; as a result of which on page 28 it is ordered to inform the liquidator of the existence of this case. On page 29 the files are sent to this Chamber G and are submitted for judgment.
IV.- According to the administrative acts of the background of this case (file AA49 No. 4269/98), on 28.8.98, the Rio Grande customs office charged the exporting firm Viscosud SA with charge No. 58/98 for taxes due to lack of proof of origin with respect to the 15 PE whose list is listed on page 2 of the aforementioned file (see the certified photocopy of the charge on page 8; as to the indicated concept, see the official copy of the note of communication of the charge, on page 9; and as to the cause or reason for the charge, see, in addition to the charge itself, the records on pages 1,2, 4 and 7; all pages of the aforementioned customs file). The notification of said charge to the aforementioned exporter, sent to the address reported on page 10, was not made (see page 28.8.98). On the same date, 59, charge No. 98/11 was filed, for the same amount, against the plaintiff insurance company in these proceedings, a charge that was notified to it at its domicile in the Federal Capital (see pages 13/14: charge, notification note and notice of receipt of notification), which motivated the plaintiff's presentation, on pages 15/23, by which it raised the nullity of the charge. On pages 68, the administrator of the Río Grande customs office processed said presentation by the plaintiff as a challenge procedure and ordered the charge to be reformulated in order to expand on the reasons for it. Consequently, the plaintiff (as guarantor of the aforementioned exporting firm) was charged with charge No. 99/59 for the same concept (lack of proof of origin) and amount as the previous charge (No. 98/25), with duties now being indicated in the concepts column and in the amount line for that concept (see this charge's official copies - at fs. 28 and 24). A first notification of this charge to the same address as the previous notification - was not made (see fs. 26 and 27/29), and the subsequent notification (or another notification, subsequent or not) to another address (see fs. 82), received by the plaintiff (see fs. 31) motivated the plaintiff's submission, at fs. 32/68, by which the plaintiff challenged the aforementioned charge No. 99/37, alleging its nullity and the prescription of the respective fiscal action. At fs. 81/15 there are official copies of the certificates of constitution of the guarantees - guarantee control forms - and of the respective policies issued by the plaintiff, with respect to the merchandise of the aforementioned 84 PE. At fs. 85/86 the legal opinion was issued; and at fs. 87/89 the resolution appealed in the proceedings was issued (notified to the exporting firm at its domicile in Río Grande, see fs. XNUMX).
V.- As regards the nullity raised by the plaintiff, it should be noted first of all that art. 1051 of the CA, invoked by the fiscal representative (it is understood that in its section 2.) against said claim, is not applicable to the case, not only because the provisions therein give way to the appellant's power resulting from what is established by the harmonious interplay of arts. 1145 section 1 and 1149 section 2 h) of the CA (without any legal provision that limits or delimits said power, as for example occurs expressly and specifically in the case provided for in art. 1177 section 1 of the CA or only with respect to the evidence - in the aforementioned art. 1145 section 1 according to the text given by art. 19 section 5 of law 25.239), but, more specifically still, it gives way to the provisions of art. 1057 of the CA, which, moreover, is in harmony with art. 1051 par. 2 itself, which expressly leaves aside the special provision that sets a longer period. Thus, the tacit consent of the aforementioned art. 1051 is applicable, in principle, to the acts that are carried out within the customs procedure; and as regards the contestable act (that is, the act that is susceptible to the regulated contestation procedure) the provisions of art. 1057 of the CA apply, and in any case without prejudice - of course - to the subsequent right to claim nullity that could be made in the appeal before the Tax Court.
In this order of ideas, it must be taken into account that the plaintiff, as indicated in the previous chapter, notified of charge 59/98 (see pages 13 of the administrative acts) made the presentation of pages 14/15 of said proceedings, a presentation to which the customs judge himself gave the character of the challenge procedure of art. 1053 of the CA, see pages 21 and 23 of the acts. adm.-, in which it expressly raised the nullity of the aforementioned charge, and it must also be understood that said presentation (challenge of the charge) was timely, not only because, as stated - the customs judge himself processed it, and nothing is objected in this regard in the appealed resolution (which only rejects the plaintiff's defense and rules on the merits of the customs tax demand), but also because ultimately, in order to file the challenge, the extended period established by art. 40 of decree 1759/72 (or by decree 1883/91) was applicable, insofar as the aforementioned notification of the charge did not comply with the requirements also established in said rule (application even to the challengeable customs act - established by the plenary jurisprudential criterion of the CNACAF). Furthermore, the plaintiff maintained and/or reiterated the claim when the aforementioned charge 59/98 was reformulated (through charge 68/99) and the plaintiff filed an appeal against it; and even if by hypothesis it were considered that charge 68/99 were substantially a different charge from charge 59/98 (an aspect that will be analyzed later), that is to say that the former were considered susceptible to being challenged by a challenge procedure independent and/or not linked to the one previously considered to be filed against charge 59/98, the filing of the challenge against charge 68/99 (made on pages 31/32 of the administrative records and which shows the Post Office stamp with the date of imposition or valid presentation for that purpose) was also timely (see the notification of the charge and its date, on pages 29 and 82 of the administrative records), for exactly the same reasons for which, as stated, the challenge against charge 59/98 was timely.
VI.- That regarding the reasons on which the plaintiff bases her claim of nullity, the following analysis is appropriate.
It should be noted for this purpose that the charge in question has been made to the plaintiff in its capacity as insurer of the exporting firm Viscosud SA, documenting the 15 PE indicated in the list on fs. 2 of the administrative acts, for exports for consumption of merchandise supposedly originating in the special customs area, for which and because they were also imported for consumption into the continental national territory, the origin of said area had to be accredited (accreditation for the purposes of the tariff treatment established for said assumption in the regime of law 19.640), this after the export and through the granting of the plaintiff's guarantee, because the export was carried out without the aforementioned accreditation at that time, in the terms, requirements, formalities, and deadline, set forth in Resolution ANA 4712/80 mentioned in the report -on fs. 1 of the administrative acts- direct antecedent of the charge; so the charge was formulated because the exporter had not accredited the aforementioned origin within the regulated period, and this is the requirement of the charge - in the terms of the applicable legal regime and more specifically of Resolution ANA 2749/93 also mentioned in the aforementioned report, and in the concept of taxes for the respective import for consumption in the continental national territory (of the foreign inputs initially imported for consumption without payment of taxes - in the special customs area).
1.- The nullity of charge 68/99 must initially be ruled out on the grounds that in the charge itself or in the note of its notification (pages 28 and 29 of the administrative acts) only the following were indicated: the number of the boarding permit, the policy, the guaranteed amount and as a reason: lack of proof of origin... (see chapter III, section a. 2, page 8 of the proceedings). Thus, it must be reasonably understood that such data were sufficient to preserve the plaintiff's right of defense. Indeed, according to the indicated documentary evidence, when the charge was notified to the plaintiff, the number of the charge, the character in which the demand was made (as insurer of Viscosud SA), the amount, and the cause and the concept (we will return to this aspect), were indicated precisely, and the 15 PE (obviously from the aforementioned firm taking out the insurance) for which the demand was made were identified. This last individualization of the PE- not only results from the express recognition of the plaintiff but also from the fact that in the aforementioned records reference is made to the PE of the Annex and, as can be seen in the identical notification to the plaintiff (except for another address without positive result, see the inside of the envelope on fs. 27 now opened - in which said Annex is found), said Annex is none other than the exact copy of the list of the 15 PE of fs. 2 of the administrative acts, indicating each PE, each respective policy and the respective amounts for each PE and even the cause of the demand, which harmonizes with the fact that when the plaintiff challenged the charge, it expressly referred (on fs. 31 in fine of the administrative acts)… to the boarding permits mentioned in the annex attached to the charge formulated.
The concept of the requirement was also expressed, in the sense that, both in the charge and in its notification, and in the concepts column, next to the expression "lack of proof of origin" which can only be understood as a cause or motivation for the charge-, the term "rights" appears. But it should be especially noted that the total amount of the rights requirement, contained in the charge, as well as the amount broken down by each PE as stated in the aforementioned annex (or exact copy of page 2 of the administrative acts), are exactly the total amount and the broken down amounts resulting from the respective insurance policies, official copies of which are included (along with the official copies of the guarantee control sheets) on pages 37/81 of the acts. adm.. From this documentation it can be seen that, in addition to the detailed list of each policy with its respective individual PE, each policy (obviously issued by the plaintiff) indicates exactly the policyholder (the exporting firm in this case), the insured amount, and (with total precision weight, quality and species, brand, article number and commercial invoice) the merchandise of each PE, as well as the concept or cause that was guaranteed, that is, the lack of proof of origin (which at the time of issuing the policy was the eventual lack of such proof). With this data, the plaintiff could not reasonably be unaware of what was being claimed and the reason; and it is clear that the plaintiff (even without having seen the administrative proceedings prior to the charge, specifically the report on fs. 1 from which, due to the express mention of Annex XIV of Resolution ANA 4712/80, there was greater detail on the cause of the charge seen that it could obviously take-, and even without communication with the exporter and client, the insurance taker, for whose non-compliance the plaintiff obviously assumed the respective risk and the pertinent responsibility before the insured customs) had sufficient elements to exercise its right of defense, that is, its own defenses as guarantor and even the defenses of the insurance taker or principal debtor (conf.: arts. 2003, 2004, 2013 and 2020 to 2023 of the Civil Code of supplementary application with respect to the CA absence in this CA of rules regarding the guarantor/customs relationship but in harmony with arts. 786, 1092, 1102 and 1053 of the same CA-, according to peaceful jurisprudence on the point).
In short, the plaintiff was able to exercise her right of defense, notwithstanding that she actually exercised it when challenging the charge in question (pages 31/32 of the administrative acts), thus raising, in addition to the nullity of the charge, the defense of prescription of the tax authority's action to claim taxes, which, given the terms of the respective claim, denoted knowledge of the situation.
Finally, at this point, it should be noted that the charge did not state that interest was being claimed, simply because it only included the nominal amount of the taxes owed (an amount that, as seen, numerically responded to said concept and could not respond to another, as a result of the sum of the amounts guaranteed by the total of the policies, amounts that at the time the guarantees were established obviously could not include interest). In this regard, it is worth noting that the fact that a tax charge (contestable customs requirement) does not include interest that may have accrued and therefore is due at the time of the charge, does not in any way prevent the addition of such interest and subsequent interest once the charge is final (because it has not been contested) or in the process and resolution of the contestation that may be made, if applicable, by virtue of the principle of non-availability of the tax credit and without it being an obstacle that an ex officio liquidation has already been made, since the power of review (which authorizes more than one ex officio liquidation) only has the limit or obstacle of res judicata, which can only occur with a definitive resolution - and clearly firm or confirmed - of a regulated procedure (arts. 1139 and 1183 of the CA). This explains, precisely, why the appealed resolution determines that interests are applicable (correctly, as will be seen when dealing with the point).
2.- Regarding the plaintiff's argument expressed in chapter III, section a) 1, on page 8 of the proceedings, it is not true that the customs judge declared, in response to the challenge to charge 59/98 initially formulated against the plaintiff (challenge in which the plaintiff raised the nullity of that charge), the requested nullity, that is, the nullity of charge 59/98 and this as a consequence and definitive resolution of the one that thus resulted from the procedure imposed on it - respective challenge procedure, because if this had been the case, the undersigned would not be able to, due to the effect of res judicata in its two possibilities or approaches (administrative - art. 1041 of the CA-, and material or substantial arts. 1139 and 1183 of the CA-), carry out the following reasoning.
Indeed, there was no such res judicata since no definitive resolution was issued in this regard; and the order on page 23 of the administrative acts, by which the customs administrator, in the course of the challenge procedure to which the same order was given admission procedure and therefore as one more procedure of the same, ordered the reformulation of the charge (of charge 59/98) in order to expand its reasons, cannot reasonably be taken or considered as a declaration of nullity with those effects of res judicata - since this would constitute an excess of formal rigorism, improper in administrative procedures (both in favor of and against the administered, against or in favor of the administration).
The fact that the aforementioned reformulation was materialized with a new charge with another number - charge 68/99, on pages 25 and 28 of the administrative acts, also challenged by the plaintiff and confirmed in the decision appealed in this case - does not hinder the foregoing conclusion, since, as the plaintiff herself acknowledges, the new charge is substantially the same as the previous one; that is, repeating the expression used in the aforementioned order on pages 23 and XNUMX of the administrative acts, also challenged by the plaintiff and confirmed in the decision appealed in this case. XNUMX, which is the same charge reformulated, for the same amount, for the same PE and for the same policies (and therefore for the same character of insurer of the plaintiff firm), for the same cause or reason, and only with the addition of the expression rights as a concept of the charge (alongside the lack of accreditation cause that is also expressed in the upper part of the charge as it was expressed in the previous charge), Said addition is nothing but a mere addition, that is, effectively and as it was arranged, a mere expansion of its reasons, since nothing fundamental differed by that addition with respect to the previous charge if it is taken into account that with that previous charge, with the elements that it contained (the same as the reformulated charge minus the concept of rights), especially the amount, and (by the Annex mentioned in the charge and sent in its notification) the individualization of the PE, of the respective policies (issued by the plaintiff that should have its data), of the documenting exporter of the PE, of the respective policies, and of the amounts broken down by each PE and by each policy, the plaintiff also had all the elements to exercise its defense (challenging the charge) and could not ignore that, for that first charge as well as for the second, duties (import) were being claimed from it due to the lack of proof of origin of the merchandise exported by the indicated PE.
In short, the same charge (as the previous one) reformulated in the terms previously explained, is not the same as having annulled the previous charge and having formulated a substantially different charge, but, in the conditions and circumstances set forth, such reformulation must be reasonably considered as an ordering step of the regulated procedure that had already been filed against the previous charge substantially identical to the new one, and at the same time being substantially in the presence of no more than one and only challenge procedure, with a single definitive resolution on the matter, that is, the challenge filed (through the principle of informality) against charge 59/98 initially formulated (and then reformulated); and for the same reasons, neither the new charge nor the previous charge are void.
3.- For all the circumstances and reasons set forth in points 1 and 2 above, it is irrelevant that the customs area shipping permits for the special customs area for which the guaranteed taxes are claimed (for the respective import for consumption in the continental national territory) were not added to the administrative acts for the formulation of the charge in question; particularly because of the individual data in the charges and their notifications and in the respective policies, and because, moreover, the plaintiff did not offer in the customs instance nor has it offered in the proceedings any evidence in this regard (it did not require and does not require such addition) for the eventual effects specified in chapter III, section a) 3, on page 8 back of the proceedings.
4.- Nor is the circumstance that the exporting firm has not been notified of the charge in question sufficient cause for nullity of the charge (see chapter III, section a. 4, pages 8 back and 9 of the proceedings).
First of all, it should be noted that, indeed, the customs should have notified the exporting firm as the main debtor of the charge made to its guarantor, the plaintiff in this case (who also clearly should have been notified, as she indeed was), due to the above-mentioned rules of the CA that harmonize with the rules of the Civil Code that regulate the guarantor insurer/customs creditor relationship, particularly art. 786 of the CA, to which it is possible to add what is established by the also cited Resolution ANA 2749/93 in its Annex V point 6.1., and without prejudice to the fact that the plaintiff as guarantor - may itself raise, in addition to its defenses, the defenses of the main debtor.
Furthermore, the exporter was not effectively notified of the charge in question, since the notification of charge 58/98 formulated to the exporter (which is the same charge 59/98 initially formulated to the plaintiff, see pages 8/9 of the administrative acts) had no positive result, as can be seen on pages 9/10 of the acts. adm.. At this point it should be noted that the customs sent the communication to the exporter, by letter (official letter by post with return receipt), to the address of the latter (Finocchio 1041 Río Grande, Tierra del Fuego), which was the one stated in the policies issued by the plaintiff (see documentation on pages 37/81 of the adm. acts.) and at the same time the result of the report requested from a provincial agency (see pages 5/7 of the adm. acts.), and in view of the aforementioned negative result, it did not request, as it should have, a report from the Customs Registry of Importers and Exporters for the purposes, if applicable, in the absence of the address established in art. 1001 of the CA- of the provisions of arts. 1002 and 1003 of the CA, nor did it notify by notice at the aforementioned address to which the letter was sent with a negative result, this in case of considering that said address was the one established (as in the policies, perhaps in the respective PE) in the terms of art. 1001 of the CA, to notify in such hypothesis to the exporter in the manner provided for in arts. 1014 and 1015 of the CA.
In turn, once charge 68/99 was formulated against the plaintiff, that is, the initial reformulated charge, the latter was not notified nor was it attempted to be notified to the exporter.
Thus, in the case and in the face of the tax requirement arising from a breach by the exporting company (which had provided a guarantee to customs through an insurance guarantor), customs summoned the insurance guarantor, but did not summon the exporter, the main debtor and policyholder.
Such an omission could not in principle be considered remedied (or nullity due to the nullity itself) by the sole circumstance that the plaintiff in these proceedings, when appealing the tax requirement before this Court, can exercise here the right of defence by opposing its own defences and even those of the principal debtor omitted in the summons of the customs charge. This would be the case in the situation in which only the summons to the guarantor had been omitted and instead the principal debtor had been duly summoned. On the contrary, the undersigned understand that, in principle, the defect cannot be considered remedied when it has been the principal debtor and perpetrator of the event generating the tax obligation who has been deprived of his right of defense while the guarantor is condemned and/or is required to pay the debt, since, regardless of whether the guarantor can oppose defenses of the principal debtor, the action could not eventually be continued against the guarantor without previously giving the former the opportunity to be heard, since the guarantor's obligation, although joint, does not lose the substantial character of accessory.
However, it must be taken into account that nullity due to procedural defects has no purpose in itself, it has no autonomous existence, since the procedure is a way to enable the application of substantive law and it is only appropriate to declare it when the violation of the forms and procedural requirements results in real and effective harm to the substantive law of the person invoking it; that is, there is no nullity due to nullity itself, or there is no nullity without harm, and therefore, for such a declaration to be made it is necessary that the defect in question causes the person requesting it significant and irreparable harm that cannot be remedied except by nullity.
In the present case, and at the point in question here, the grievance or prejudice of the plaintiff, guarantor of the exporting firm, would be constituted by the violation of the right of defense of said guaranteed company, and thus directly harmed by such violation, but it is emphasized here - without the plaintiff affirming or attempting to affirm - that the resolution condemning the payment of taxes (confirming the charge made to the plaintiff for the obligation of the guaranteed firm) has not in turn been regularly notified to the author of the event generating the tax obligation.
In the opinion of the undersigned, and for the purpose of assessing the alleged or claimed damages of the plaintiff who invokes the nullity, two aspects must be taken into special account. The first is to note that the plaintiff, in its two submissions of the administrative act (pages 14/15 and 31/32) by which, in challenging the charge, it raised its nullity, has established its domicile at San Martín 284, Río Grande, Tierra del Fuego; and that address is precisely the same address where (whatever the reason for what follows to occur) the firm Viscosud SA, that is, the many times repeated principal debtor, was notified of the resolution appealed in the proceedings confirming the charge made to the plaintiff (see the notification notice - addressed to said firm and received - on page 89 of the administrative acts), which, in the opinion of the undersigned, reveals the connection or communication between the plaintiff and the secured exporter, and that the latter would not be, despite the frustrated notification of the initial charge that customs attempted to make to it - alien to the customs demand made to its guarantor for the obligation contracted by it as principal debtor. But furthermore, and in a decisive sense, it should be noted that in response to the aforementioned notification to the exporter (the one previously indicated as effective notification at the address of San Martín 284 Río Grande, TDF), on 5.4.2000, of the appealed resolution, dated 14.2.2000, said exporting firm did not appeal it.
It should be noted with respect to the last point, that it is unquestionable that by means of the indicated notice on page 89 of the administrative acts (effectively received in accordance) the exporter was notified of the decision appealed in this case, not only because of the logical relationship of dates between the decision and the notification, but also given the text and content of the notice - because that decision is the only provision contained in file AA49 No. 4269/98, which should be notified, of two pages and signed by the administrator Accountant Daniel Camporro.
Consequently, it must be concluded that the defect incurred in the administrative acts by not notifying the exporter of the charge (i.e. the same tax requirement to the plaintiff in these proceedings) has been purged by the inaction of said principal obligor, i.e. the firm directly harmed by the irregularity - who consented to the condemnatory act (confirming the charge in question), and therefore there is no prejudice that justifies the declaration of nullity sought.
VII.- That it is also appropriate to reject the prescription raised by the plaintiff.
In this case, the statute of limitations undoubtedly began to run on January 1, 1994 (and therefore the respective period would have expired on January 1, 1999).
Indeed, this is the case in the case of shipping permits for exports from the special customs area (and therefore the corresponding imports for consumption in the continental national territory), all processed and fulfilled in 1993 (arts. 803 and 804 of the CA).
The fact that the export shipments (and therefore the respective imports for consumption) were carried out under the guarantee regime for the payment of the then-appropriate corresponding import taxes does not hinder the above. Such operations were carried out under the indicated guarantee regime, that is, without payment at the time of processing the PE- of the taxes that should be paid in case the origin (of the special customs area) is not duly accredited later, but having to constitute a guarantee for its amount, in the terms of the -more specific- regime of Resolution ANA 4712/80 in force at the time of said PE and insofar as Annex XIV of said Resolution, in its point 1.6.2 (in the scope of operational customs), established, in what is of interest here, that... the interested party must guarantee the boarding permits that do not have the corresponding Accreditation of Origin... (it should be understood at the time of its registration or officialization and subsequent boarding see also point 1.4.4 of the same Annex-, as occurred in the 15 PE of cars),... which will be guaranteed for the term of ninety (90) calendar days from the date of officialization of the respective boarding permit, or until the time of the origin must be accredited, if this were to occur in a shorter period... (it is evident that in the case at hand the origin was not accredited - neither within the indicated term of the guarantee nor afterwards - and therefore the guaranteed amount was required, in the terms of Annex V point 6 of Resolution ANA 2749/93).
Since the PEs were thus made official in this case and the goods were released and shipped, payment of the taxes that, if applicable, should be required (lack of proof of origin within the deadline), was deferred at that time (payment was not made in cash before issuance, art. 789 of the CA, nor the general short-term waiting period of art. 54 of decree 1001/82), as well as being conditioned (with the suspensive condition of said lack of proof, in turn a resolutory condition of the exemption), and therefore subject to a waiting period as provided for in art. 790 of the CA (it is reiterated that it is not the waiting period of the general regime for all exports, of art. 54 of decree 1001/82, at that time of 3 days from the issuance by virtue of decree 2289/90, but rather the longer waiting period obviously determined by the aforementioned guarantee period of the aforementioned specific regime). Consequently, during the period of such waiting, the period of limitation of the action to collect those taxes should have been suspended, if applicable (art. 805 inc. b. of the CA); and this is what is invoked in the appealed resolution to reject the opposed prescription, insofar as the effect considers the total waiting period in accordance with the provisions of Resolution ANA 4712/80 amended by Resolution ANA 3274/96 (there, point 2.4 is erroneously mentioned -?- of the first Resolution when, according to the periods computed there, it would be referring to the provisions of point 3.6 of Annex XIV B of Resolution ANA 3274/96). However, since ANA Resolution 3274/96 (BO 2.10.96) was not in force at the time of the 15 EPs in question, none of its provisions are applicable to the case and therefore no period resulting exclusively from that Resolution is computable, but only the period resulting from ANA Resolution 4712/80 which was in force at the time of the PEs - a period which, as already seen, was ninety calendar days from the officialization of each PE (the latter is absolutely corroborated by ANA Resolution 2749/93, BO 3.11.93, which refers to all the assumptions of guarantees and as such the respective regulations that were already established at that time, and as regards the codes in its Annex III, including 27, Accreditation of origin - law 19.640 - and the tables in its Annex IV, including the one on Deadlines,… - it is clear that for the case in question here the period was ninety calendar days. 90 days and no extension).
From the observation of the Guarantee Control forms of the documentation contained in pages 37/81 of the administrative acts, it is clear that, with respect to each of the 15 PE, in all of them, a guarantee was established for ninety calendar days (which arises from the presentation and expiration dates indicated there - see guarantee forms -) and also that each guarantee was extended for another ninety calendar days (which arises from the respective expiration dates computed from the expiration of the initial term - in the extension forms); the latter, which exceeds the guarantee period and therefore the waiting period resulting from Resolution ANA 4712/80, must have probably been due to an interpretive application by the intervening customs office of point 1.4.4 of Annex XIV of said Resolution. In any case, and as can be seen, in all cases the expiration of the guarantee and even its extension occurred within the year 1993 (the latest expirations were on 9.11.93), so the possible suspensions of the prescriptive period, due to the waiting period and during its course, were not such and/or lacked virtuality since the referred period began to run only on January 1, 1994.
Consequently, the aforementioned reason, invoked in the appealed decision, lacks support, and it should be noted in this regard that the existence of a waiting period is, as established in the aforementioned art. 805 inc.b. of the CA - suspensive (the time of the passage of the waiting period is not computed) of the prescription period that is already in progress (and while it is in progress), and not a period that must be added to the legal prescription period, this is clear, even if in fact said period is extended by the magnitude of the waiting period or its corresponding part - when the waiting period or part of it, as the case may be, occurs once the prescription period has already begun to run.
Without prejudice to the fact that the act of initiation of the challenge procedure, on page 23 of the administrative acts and also invoked in the appealed Resolution, is dated 6.9.99 and therefore after 1.1.99, the latter being the date on which five years had elapsed since 1.1.94, it should be noted that said act has no suspensive or interruptive effects on the action in question, and does not in any way correspond to its assimilation to an act of execution at a customs headquarters aimed at collecting the taxes owed (art. 806 inc. b. of the CA).
However, the undersigned understand that in this case the interruptive effect provided for by art. 806 inc. a) of the CA has occurred with respect to the plaintiff.
This is so because, although the notification to the plaintiff of the reformulated charge, that is, the notification of charge 59/98, would not have had that effect (intrinsically or considered in isolation, that is, without the previous notification of charge 68/99), since it was carried out on 30.8.99 (see pages 28/29 and 82 of the administrative acts), that is, after 1.1.99, the date on which five years had passed since 1.1.94, the act that did have such an effect was the notification to the plaintiff of charge 59/98, which occurred on 7.9.98 (see pages 13 of the administrative acts), and without any doubt the date of notification of said charge 59/98 as the challenge and/or claim of nullity thereof (pages 14/15 of the administrative acts) is carried out on 15.10.98 (see the date of the postage stamp in the aforementioned document), although both dates (7.9.98 and 15.10.98) occurred in 1998, that is, before the aforementioned 1.1.99.
The foregoing statement is based on the fact that, as already seen in point 2 of recital VI above (the content of which is referred to here), charge 68/99 was the reformulation of charge 59/98, that is to say, for the reasons stated there (in this case for other purposes), the former was substantially the same charge as the initial charge 59/98 which, as this initial charge was contested and/or the object of a formal claim for nullity, gave rise, in the course of the respective and only challenge procedure, to the aforementioned reformulation. Therefore, without a jurisdictional declaration of nullity of the initial charge (as was also explained there) that same charge, with another number (which is merely a purely formal aspect without relevance to the point) and with the minimal expansion of the concept that was also indicated, is the charge that was substantially the object of confirmation in the resolution appealed in this case.
Consequently, given the explained effectively interruptive effect, the prescription of the tax action of the treasury is currently in progress, and at the same time suspended by virtue of the provisions of art. 805 inc. c) of the CA.
In any event, it is noted that it is completely clear that the interruption and suspension of prescription, in the sense set forth, only has effects with respect to the plaintiff (insofar as the interrupting notification taken into account for this purpose was made to the plaintiff), since in this case the reverse does not occur - the assumption provided for in the first part of art. 807 of the CA (and without prejudice to warning that neither said rule nor any other provision would authorize to maintain that the eventual prescription that occurs with respect to the principal debtor - which is not the subject of judgment in this case - has effects with respect to the joint debtor).
VIII.- As regards the merits of the matter, it should be noted that the concept and the cause or reason for the charge in question confirmed in the appealed resolution are not disputed, that is to say that it substantially corresponds (claims for nullity and prescription aside) to the tax requirement of said charge due to the lack of proof of origin (from the special customs area) with respect to the merchandise documented in the PE of the case.
The plaintiff questions the interests that the appealed decision considers to correspond from the date of constitution of each of the guarantees (and it is clarified that it can question them, without any impediment, before this instance).
In this case, and given that, as explained in the first part of the preceding recital VII, there has been a certain waiting period (for the payment of taxes under the suspensive condition of the lack of proof of origin, as it occurred), regulatedly of 90 calendar days from the officialization of each PE (Annex XIV point 1.6 of Resol. ANA 4712/80) and in fact - as also explained - of 180 calendar days (that is, adding the extension given in fact in each case), without any reason being given to exclude such a waiting period from its scope in arts. 790 or 794 of the CA, the interests of the capital owed and not disputed, not only run from the day after the expiration of said waiting period (by virtue of the cited art. 794) but also during the course of the waiting period, which the latter - is fully derived from what is established by art. 791 of the CA and especially by the last part of the same insofar as it is completely clear that if the Executive Power does not authorize, on an exceptional basis, that the waiting period does not accrue interest (and such authorization was not given in the case), the interests accrue during the waiting period, which is the same as the expression of said norm in the sense of the interests accrued by the amounts whose payment is the object of waiting, and there is no doubt about such scope of art. 791 as regards the interests accrued after the expiration of the waiting period, as referred to in the aforementioned art. 794.
Therefore, the interest (for which the plaintiff is liable as expressly established in each policy issued by it, by virtue of the reference to the sums that would also correspond - in excess - by application of art. 1122 of the CA) runs, in this case, from the time they accrued in the main obligation, that is, from the officialization of the PE (it should be noted that this is the case if such officialization were subsequent or concomitant with respect to the constitution of each guarantee, since the appealed resolution requires them from said constitution).
On this point, the undersigned understand that it is necessary to note that, in completing the above-mentioned (see recital VI, paragraphs 1 and 4) harmonization of the rules of the Civil Code with those of the Customs Code, it gives rise to an "individuality" between the principal debtor and the guarantor and/or a differentiation of the relations between the creditor customs office and the principal debtor and between the creditor customs office and the guarantor, which fundamentally aims at safeguarding the right of defense of the principal debtor and the guarantor; That is to say, what is of interest here - that in no way can anything be demanded and/or executed against the guarantor if he has not individually been notified of the liquidation of taxes owed by the principal debtor, notification that allows the former to challenge said liquidation or, where appropriate (summary proceedings for infringement) to answer the hearing in this regard (with his own defenses and even those of the principal debtor), and the same (always with respect to the guarantor) if the principal debtor has not also been summoned (except as in the case at hand - that the principal debtor not initially notified is later summoned and consents to the liquidation). Instead, it must be understood that this individuality or differentiation - derived from the indicated autonomy of notification - does not reach or include, in the opinion of the subscribers, the autonomy of the course or calculation of the update and the interests when this calculation has an earlier beginning "in the head of the principal debtor" (either because the latter has been notified previously - not so in the case at hand - or because in his respect and also previously a certain waiting period had eventually expired, as in the case at hand).
This is because in no way can the interests lose their character of “accessories” to the principal obligation. The guarantor is responsible for the fulfillment of the principal obligation and, in this case, its accessories must be added to it (this is, as seen, due to the provisions of the policy and the applicable legal regime), which must follow the principal and therefore, if the guarantor must respond for the principal obligation, which is the tax obligation of the exporting/importing firm, he must also respond for the accessories owed by said exporting/importing firm in relation to said tax obligation; exactly for the “same” accessories, that is to say from the time they have started to accrue to the importing firm.
On the other hand, the criterion that is supported here is supported by the text of art. 1997 of the Civil Code, already discussed above, in that what is established there (in the sense that if the guarantee is for the principal obligation or expresses the sum of it, it will include not only that obligation but also the interest, whether stipulated or not) is revealing, in the opinion of the subscribers, that the guarantor is always also responsible for the interest on the principal obligation expressed in a sum of money; and this means that he is responsible for the interest that has accrued to the principal obligation and to the principal debtor (whether due to automatic default or due to the summons - notification - with respect to the principal debtor). It should be noted, in particular, that in the situation where it is considered that the specific and individual default of the guarantor is required for the latter to be liable for the accessories of the main obligation (in this situation there would be no accessories with respect to him except from the notification to him), the rule of the aforementioned art. 1997 would not have any special meaning, since the general rule of art. 509 of the same Civil Code would have sufficed; the latter because with the request made to him, the guarantor would become the personal debtor of the accessories of the obligation of the main debtor and, on the other hand, with art. 1997 the guarantor is liable for the interest that the main debtor effectively owed before said request.
IX.- That for the reasons set forth above, it is appropriate to confirm the resolution appealed in this case and therefore charge No. 68/99 formulated against the plaintiff, plus the corresponding interest as established in said resolution - from the date of constitution of each of the guarantees, with the proviso that this is so as long as the guarantees had been constituted on the same date or after the date of officialization of the respective boarding permits; with costs to the plaintiff (art. 1163 of the CA, since if the guarantees were prior the interest would run from the officialization of each PE).
It should be noted that, for the purposes of regulating fees, it is the criterion of this Chamber G, adopted as of the interlocutory ruling of 10.12.01 in re SEVEL ARG. SA TFN 13.554-A, complying with the doctrine of CNACAF summarized in the judgment of Chamber II of said Court dated 20.9.01 in re SCANIA ARG. which cites the rulings of the other Chambers-, that the amount of the process for said purposes is integrated with the interest accrued even after the filing of the appeal, for which reason said amount, for the indicated purposes, reaches the sum of $686.180 and for the only stage of the case at hand- to $228.726.
Therefore IT IS RESOLVED:
1.- Confirm Resolution No. 012/2000 issued in file EA49 No. 4269/98, and therefore confirm the charge challenged by the plaintiff firm, No. 68/99, in relation to the fifteen (15) PE (of the exporting firm Viscosud SA) indicated in the list on fs. 2 of the aforementioned file, plus, as established by the aforementioned resolution, the corresponding interest until the payment of the total amount owed, from the date of constitution of each guarantee and with the exception that the latter is so as long as the guarantees had been constituted on the same date or later with respect to the date of officialization of the respective shipping permits; with costs to the plaintiff.
2.- Regulate the fees of Dr. Norma Edith Abdala in the sum of thirty-six thousand pesos ($36.000) (articles 6,7,9,37 and 38 of Law 21.839 modified by Law 24.432), a sum that does not include VAT.
3.- To order the plaintiff to, within five days and under penalty of law, prove payment of the sum of $5.420,72 as an outstanding performance fee due at this stage of the process.
Register, notify the parties and the liquidator reported on page 27, return the administrative acts, and file.
This document is signed by Drs. Jorge C. Sarli and Elena D. Fernández de la Puente because Dr. Rodolfo H. Cambra is on leave (art. 1162 of the Customs Code).
Argentine Insurance Company Visión SA v. DGA s/ appeal – Charge to guarantor for PE without proving origin of claim for nullity prescription
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