In Buenos Aires on the 29th day of the month of November 2004, the members of Chamber E, Dr. Catalina García Vizcaíno and Ms. Paula Winkler, met, with the first of those named as President, in order to resolve the case entitled: Compañía Mega SA v. DGA s/ appeal, file No. 19.847-A.
Dr. Catalina García Vizcaíno said
I) That on pages 29/31 back, Company Mega SA, through its representative (see ratification on pages 47/back), files an appeal against PLA Resolution No. 1003/2004 in file No. 604.256/99, regarding the sentence to pay a fine of $88.651,63 under the terms of art. 954, par. 1 inc. c) of the CA. It states that, through DI No. 99 001 IC 04- 128758 N of the Buenos Aires customs, it documented on 8/9/99 the import for consumption of 5 units of circular section pipes with an outer diameter greater than 406,4 mm. of stainless steel, of PA 7305.31.00.000C, and that this merchandise was included in 8 packages; that the acting inspector filed a complaint for having verified a difference in less between the quantity declared in the dispatch and the resulting one (3 stainless steel tubes). He points out that the statement regarding the quantity of stainless steel tubes to be imported was made in accordance with what is expressed in the commercial invoice, the bill of lading and the packing list , and that such documentation reflected the quantity of merchandise received by the carrier from the supplier of the same. He maintains that he cannot be charged with having acted with even a minimum of fault, by declaring the quantity of merchandise in accordance with the commercial invoice, bill of lading and packing list. He warns that attempting to apply sanctions to the importer is unreasonable and contrary to the provisions of art. 902 of the CA. He cites the Supreme Court ruling in Nidera SA, dated 20/3/03. He considers that there was no amount to pay other than that declared, given the FOB condition of the commercial operation. Alternatively, he requests that the mitigating powers conferred by art. 916 of the CA be exercised to the maximum. He offers evidence. He requests that the appeal be upheld, with costs.
II) That on pages 50/55 the public prosecutor's office contests the transfer that was duly conferred upon it. It makes a brief summary of the proceedings and the grievances raised by the plaintiff. It maintains that, since the legal interest protected in the declaration before the customs service is accurate and truthful, extremes that the DI subject to study does not comply with, it is noted that the plaintiff has configured the infraction typified by art. 954 inc. c) of the CA. It states that the plaintiff herself recognizes having made the error in her declaration regarding the detected shortage. It points out that the appellant is mistaken when she does not take into account the essential element of these proceedings: that the quantity of merchandise declared differs from that verified, in the exact manner described in art. 954 inc. c) of the CA. It offers evidence. It reserves the federal case. It requests that the appeal filed be rejected, with costs.
III) That on page 56 the case is declared to be one of pure law.
IV) That on page 1 of file EAAA No. 604256/1999 there is the complaint report No. 348/99 due to a shortage of merchandise with respect to import destination No. 99 001 IC04 128758N, whose container envelope appears on page 6, since the shortage was verified with respect to the merchandise stated in sub-items 2.1. and 2.2. (see pages 3/back). On page 8 the summary instruction is ordered and the importer is given notice, which answers it on pages 32/33 back and adds the record on pages 34 of the adm. ant. On pages 51/52, PLA Resolution No. 1003/2004 is issued, appealed in kind.
V) That the Customs Code protects the principle of truthfulness and accuracy of declarations and statements submitted to customs. Article 954 of that Code represses and sanctions - in relation to the legal interest protected - anyone who, in order to carry out any import or export operation or destination, makes an inaccurate declaration to the customs service, which if it goes unnoticed, produces or could produce, among other cases: c) the entry or exit from or to abroad of an amount other than that which corresponds, with a fine of 1 to 5 times the amount of the difference. For this case, the appellant was convicted by PLA Resolution No. 1003/2004, appealed herein, the fine having been set at one time the amount of the amount paid or to be paid abroad (see pages 2 back and 51/52 of the previous administrative proceedings).
That the appellant recognizes the configuration of the objective element, admitting that, instead of the 5 items of stainless steel tubes documented, 3 of them resulted (see fs. 30 of the file).
That the doctrine of the Supreme Court in re Nidera SA, dated 20/3/03, is not applicable in this case.
That, in effect, in that ruling the High Court held that: the difference in the amounts paid or payable abroad referred to in the aforementioned inc. c) [of section 1 of art. 954 of the CA] may arise not only from the inaccuracy in the statement of the unit price of the imported products, or from the inadequate description of their characteristics, but also from other elements that must be the subject of the declaration that must be made before Customs (art. 234 et seq. of the code on the matter), among which are the weight and quantity of the merchandise (Fallos, 325:786).
That in the cited precedent it was pointed out that although the importer is liable to be held liable under the terms of the cited art. 954 for the inaccuracy of his declaration in his request for customs destination relative to the quantity of the merchandise declared, this does not prevent such liability from being excluded if, from the evidence provided in the process, it appears that the missing or surplus goods must reasonably be attributed to the spheres of responsibility of other subjects, the carrier or the depositary, who intervene in operations prior to the request for destination, and that, like this last procedure, are subject to the control of the customs service (cfr. arts. 194, 205 et seq. of the code of the matter).
That in that pronouncement the Supreme Court added: that in the sub lite This situation arises. In fact, it is not disputed that a shortage was found at the end of the unloading of the goods transported in bulk with respect to what was declared by the carrier in the general cargo manifest of the ship, which caused the customs agency to apply a sanction to the customs transport agent who represented it, due to the fact that this declaration was incorrect (…).
9°) That, consequently, the difference in quantity is not attributable to the importer who made the request for destination of the goods in accordance with the data resulting from the general manifest to the extent that the discrepancy found coincides with the difference found upon unloading, an operation that is within the sphere of responsibility of the carrier (see arts. 130 to 132, 141, 142, 956, inc. c, et seq. of the Customs Code).
10) That the circumstance that import clearances as occurs in the sub lite have been carried out using the direct clearance procedure to the place' (articles 278 et seq. of the Customs Code), in no way modifies the conclusion set forth, since it is nothing more than an operational modality, not susceptible to modifying the spheres of responsibility to which reference was made.
That in this case these extremes do not occur, since the shortage cannot be attributed to the carrier, taking into account that in the bill of lading which appears on the container envelope on fs. 6 of the ant. adm. 8 packages were recorded with a weight of 20.834 Kg. containing equipment and materials for Mega Project, but it did not state how many units or items were in the packages.
In addition, the appellant attached to pages 34 of the previous administrative documents a note from the supplier dated 1/2/00 in which the latter acknowledges that it had mistakenly invoiced five items of units (0073, 0075, 0078, 0083 and 0084), instead of the three sent, since it states that items 0073 and 0075 were missing.
That, consequently, the shortage did not occur within the carrier's sphere of responsibility. nor any other subject whose actions were under the control of the customs service , be aware that the foreign supplier does not meet this characteristic.
That, on the other hand, the proven difference in the quantity of the merchandise constitutes one of the objective elements of the conduct typified in paragraph c) of section 1 of art. 954 of the CA insofar as it produced the effective or potential consequence that the amount paid or payable abroad (for the five items of documented units) was different from that which corresponded (for the three items of units actually imported), without the condition of the FOB value of the commercial operation being of interest for these purposes.
It has also not been proven that the missing units arrived later.
VI) That having established the above, it is appropriate to examine the subjective element, in order to establish whether or not the presumption of guilt was overcome.
That the Supreme Court has stated that the general provisions of the Penal Code are applicable to customs violations, according to which only the guilty party may be punished, that is, the party to whom the punishable action can be attributed both objectively and subjectively (Judgments, 290:202, 5th recital and its citations) (SAFRAR Sociedad Anónima Franco Argentina de Automotores, 27/12/88; Judgments, 311:2779). This, without prejudice to the position of the Supreme Court regarding the burden of proof relating to the presumption of guilt inherent in the material elements of the actions of the active subject of the violation, as will be set forth below.
That, although, as a general rule, infractions are of an objective nature, given the difficulty of determining the subjective element that would make many repressive norms illusory, as this Court has rightly said in the field of criminal law, even when dealing with this type of infraction, the basis of the punishment is found in the intention of the author; however, in such infractions the same procedure leads to a presumption of guilt, thus producing a reversal of the burden of proof, although this does not presuppose the configuration of the illicit act independently of any infractional element (Escalante Pitt, Moisés MC 13/567 of 8/6/78).
I have maintained (Tax Law, Volume II, p. 260 1st edition of 1997- and p. 334 2nd edition of 2000-. De Palma. Buenos Aires) that this implies that After the objective analysis of the fact examined (...) the subjective aspect must be examined, that is, the imputability (...) and the guilt, in order to assess the evidence produced in order to establish whether the aforementioned presumption of guilt was overcome. Imputability consists of the set of conditions that a subject must meet in order to be held criminally responsible for his action. The imputability of the plaintiff with respect to the customs infringement law is not discussed in these proceedings.
That, in tax infringement matters (customs and tax) the onus probandi on the lack of culpability - on the grounds of intent or fault, as the case may be – falls on the alleged offender, unlike tax crimes , in which the tax authorities must prove the intent of the perpetrator of the offence. However, it should be noted that intent is proven by external and concrete facts (ob. cit., Vol. II, pp. 259 et seq. -1st edition of 1997- and pp. 334 et seq. 2nd edition of 2000-).
So much so that in the cited book, among other pronouncements of the Supreme Court, I mentioned the one in Wortman, Jorge Alberto, and others, of 8/6/93, in which, even in the case of formal violations, the High Court held that since the existence of material - or objective - elements arise from the proceedings and, therefore, the adequacy to the pertinent criminal type, it is up to the accused to bear the burden of proof tending to demonstrate the nonexistence of the subjective element. In the same sense, the Supreme Court considered that the burden of proof falls on the appellant in the matter of the fine imposed, since as it has repeatedly pointed out in the presence of the materiality of the infraction..., it is up to the offender to provide proof in his or her defense -Rulings: 198:310- for which the allegation of ignorance of the legal precepts is not sufficient -Rulings, 182:384 and others- (Julio E. Real de Azúa v. Internal Taxes; Rulings, 206:508).
That in this regard the alleged exemption from liability based on the fact that the defendant would have made the statement in accordance with the commercial invoice, the bill of lading and the packing list , since the relations between seller and buyer are not enforceable against the DGA.
VII) That, however, I favor that the fine be set at 80% of the amount applied by customs, considering that the appellant has no criminal record (page 49 of the ant. adm.) and by virtue of the note glossed on page 34 of the ant. adm., which although it does not release it from its responsibility, justifies the attenuation in the terms of arts. 915 and 916 of the CA.
That's why I vote for:
1°) Modify PLA Resolution No. 1003/2004, setting the fine at $70.921,30 (seventy thousand nine hundred twenty-one pesos with 30/100). Costs according to the due dates).
2°) Once this document has been signed, the appellant must pay, within a period of 5 days, 2% of the amount of the fine for which he/she is ultimately convicted, as a fee for proceedings provided for in Law 22.610 as amended by Law 23.871, under penalty of the General Secretariat of Customs Affairs issuing a certificate of debt.
Dr. Winkler said:
I agree with the preceding vote.
In accordance with the above agreement, it is unanimously RESOLVED:
1°) Modify PLA Resolution No. 1003/2004, setting the fine at $70.921,30 (seventy thousand nine hundred twenty-one pesos with 30/100). Costs according to the due dates).
2°) Once this document has been signed, the appellant must pay, within a period of 5 days, 2% of the amount of the fine for which he/she is ultimately convicted, as a fee for proceedings provided for in Law 22.610 as amended by Law 23.871, under penalty of the General Secretariat of Customs Affairs issuing a certificate of debt.
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)
