Throughout history, the prerogative of amnesty by the State has been discussed from dogmatic, legal and constitutional points of view. And on this subject, a deep analysis of its different approaches could be made by those who have known, from their specialty, how to delve into this subject. But certainly the Argentine Constitution allows the Legislative Power to make use of this faculty. Absolute power of the National Congress (art. 75 inc. 20 CN)
In this sense, by law the National State can establish, on an obligatory basis, a pardon in favor of a universe of persons who are the subject of charges in criminal cases.
On December 23, 2019, Law 27.541 was enacted “Law on social solidarity and productive reactivation in the context of public emergency.” The rule, among other measures, established a regime of moratorium, tax forgiveness and extinction of tax and customs actions of a criminal and infractional nature.
Recently, the Court has ruled on the scope of this rule to produce the extinction of customs criminal cases. The Court ruled, in a particular case, that it denied its application by means of Judgment of June 02, 2020 in case No. 529/2016 (2978) re: smuggling, Economic Criminal Court No. 2.
In its ruling, the Court based its denial on two premises: a) That it should be limited in some cases of smuggling; b) Limiting the recipient of the benefit by his tax liability.
Based on this decision, it is appropriate to make some considerations of its foundations, for which a comment will be made for each of them.
The ruling and its limiting decision in smuggling cases
“It is known that in the interpretation of laws, their first source is their own letter. In this case, the wording of the rules of the aforementioned law does not allow an interpretation that allows establishing its scope. The second source of hermeneutics is given by its parliamentary background, background that, in this case, links the intention of the legislator to favor the companies affected by the public emergency referred to in Title I. The third guideline for interpreting a law is given by the consequences of its application based on constitutional values and the rest of the current legal system. It is precisely in this third source where it is estimated that it is possible to specify the scope of the benefits of the aforementioned law with respect to smuggling crimes. If, as has been said, in all the hypotheses of arts. 863 and 864 of the CA, the omission of payment of customs duties is inherent, this marks the scope of application of the exceptional regime. And it is because the legislator himself, within the discretion of his criminal policy, in these cases takes charge of privileging customs regularization over the prosecution of the crime of smuggling, the sanction of which seeks to protect the due control of the customs service in imports and exports of merchandise (CSJN Fallos 312:1920). However, when based on the simple hypotheses of smuggling the protected legal asset receives a greater affectation, as is the case of the assumptions of arts. 865, 866 and 867 of the CA, it can be stated that the exceptional regime would not be applicable. (according to ruling 2.6.20 – case 529/2016- TOPE no. 2).
Comment
First of all, we would like to point out that we do not agree with the grounds used by the Court, given that the law leaves no doubt as to the crimes to which it applies.
Indeed, the rule in its article 10, highlights: "Adherence to this regime will result in the suspension of ongoing tax and customs criminal actions and the interruption of the criminal statute of limitations, even when the criminal complaint has not been filed up to that moment or whatever stage of the process the case is in, as long as it does not have a final judgment.".
Obviously, the legislator not only specifies the causes that support the application of this regime, expressly indicating “ongoing tax and customs criminal actions”, but rather specifies in order to avoid any contrary interpretation, that it refers to all causes, by textualizing “whatever stage of the process the case is in”, setting a single limitation, "that does not have a final judgment".
In this sense, the decision of the court shows an improper and illogical exegesis, since the norm is duly and by application of its first source of interpretation -the letter-, specifies the scope in the customs causes, without making any discrimination regarding the crimes they deal with.
From this point on, there is no possibility that the Justice system could attempt to differentiate customs crimes by discriminating against the protection of Law 27.541. Even less so, that it be based on exceptions, moving away from the clear letter of the law, which in no way imposes them. Exercising undue powers and in this act disregarding the power that the National Constitution knew, with greater or lesser sympathy for such prerogatives, to make rest on the legislator to impose a general pardon.
Furthermore, and on the same basis used in the ruling, as regards "the third guideline for interpreting a law is given by the consequences of its application based on constitutional values and the rest of the current legal system"(according to ruling 2.6.20 – case 529/2016- TOPE no. 2), It should be noted that Article 863 of the Customs Code is the framework that defines the protected legal asset in relation to the crime of smuggling –the proper exercise of the functions that the laws grant to the customs service for the control of imports and exports-, and includes everyone "acts or omissions that impede or hinder", without prejudice to the ways in which they are expressed.
This indicates that there is only one crime of smuggling, which can be exposed through different actions that are indicated in the remaining concordant articles of Title I, Chapter I of the Customs Code. But all of them constitute a crime of smuggling in their type, without prejudice to the way in which the conduct of the person who commits the criminal act has been evidenced and what effects it may or could have produced in its final commission. Showing that the presence of a crime is not the declaration of certainty of all the consequences of the fact that the regulations may consider, but its own criminal effects.
Therefore, most of the prominent jurists in the field believe that it is an autonomous crime. In line with this, we can add that the way in which it is attempted to carry out its commission and the effects that such an illicit action may result in various consequences, do not involve the issue of different crimes. Note that all these misconducts –acts or omissions that impede or hinder lead to being faced with a crime of smuggling to the extent that the protected legal right expressly indicated in article 863 of the Customs Code has been violated.
Therefore, it is not admissible, even in conjunction with the rest of the current legislation, that it may be attempted to remove all customs cases from the protection of this law -27541-. Obviously, because customs criminal cases refer to proceedings in which the commission of the crime of smuggling has been reported, without prejudice to their particular conduct and effects. In this sense, priority must be given to the purposes of its eventual interpretation of the literary method, which is noted to have no limitation as the ruling seeks to impose.
The interpretation adopted by the court is not reasonable, it reveals contradictions and exposes an act that is not in accordance with the law, arbitrarily and absolutely deviating from the reasoned application of the law and causing damage that is difficult to repair given the time limit provided by the law for the deceased to comply with the regime that enables termination.
If the legislator had been interested in discriminating between pardons in customs cases, he would have specified those unlawful conducts as an exception, as he has done on other occasions when referring to the crime of smuggling. It is enough to recall article 31 of Law 25.986 or article 250 of Law 27.430, when in these cases, when establishing the benefit of treating the crime of smuggling as an infraction, due to the market value of the merchandise, he literally set out the cases for which the crime would be limited.
It is therefore clear that Law 27.541 did not intend to make any distinction between the actions or omissions that led to smuggling. Consequently, its purpose is to cover all customs criminal cases, ergo, without limiting the cases prescribed by the Customs Code.
The decision to limit the recipient subject
Another of the grounds expressed in the decision refers to the subject who would hold the benefit, limiting the regulation of tax obligations to the creditor holder. Thus, it was held:
“The second analysis that must be carried out to determine the admissibility of the exception filed must be directed at determining who are the recipients of the established regime or, in other words, the holders of the benefits it establishes. In that sense, as has been said, they turn out to be the taxpayers and those responsible for taxes and social security resources whose application, collection and inspection are in charge of the AFIP registered as Micro, Small or Medium Enterprises. From its own wording, it is clear that the failure to comply with the respective tax or customs obligations omitted must be the responsibility of the recipient of the rule. As will be recalled, Law No. 24.467 aimed to promote the growth of small and medium-sized enterprises through policies of general scope (art. 1°), an aspect expressly referred to in art. 8° of Law No. 27.541. In other words, the regularization of tax obligations will only be applicable when such obligations have been placed on the shoulders of taxpayers and those responsible in direct relation to the conduct that is being reproached. From this, even if any of those required to appear for trial is registered as the owner of a micro, small or medium-sized company, if there is no direct link between a business activity and the failure to comply with tax and customs obligations (beyond the joint liability established by art. 782 of the CA for the payment of taxes with respect to accomplices, instigators, concealers and beneficiaries of the crime of smuggling), the beneficiary of the regularization of tax obligations of Law No. 27.541 will be alien to them”…“the importer as responsible for the applicable tax obligations and consequently, the circumstances of possible collusion between its authorities and the rest of the accused does not give rise to any obligation in the latter under the terms of Law 27541 and, therefore, they are exempt from being holders of the benefits of the aforementioned legal regime. (according to ruling 2.6.20 – case 529/2016 – TOPE no. 2).
This postulate finds itself in contradiction, not only with its primary foundation by embracing the third form of interpretation of the norm with the rest of the current legal system, but also by failing to apply the rest of the norms valid for the case when resolving.
Based on Law 27.541 and on the basis of a guiding principle in tax matters, the law defines who is responsible for the tax obligation. Specifying, “taxpayers and those responsible for taxes”(art. 8 Law 27.541) as recipients.
Here then it is appropriate to highlight that Law 22.415 in its Title II, Chapter I, sets out with immense relevance, All subjects who are considered debtors and responsible for a tax obligation. We consider it prudent to highlight two specific articles from the aforementioned chapter, which will help to clarify what Law 27.541 refers to when it indicates its recipients as taxpayers or responsible parties.
Thus, Article 777 of the Customs Code identifies as debtor those persons who carry out an act subject to taxes established in the customs legislation. In this sense, any person who carries out an act that is subject to the application of a tax by customs regulations, assumes the character of debtor. And consequently the active subject –State- will be your creditor.
Now, What fact generates the tax obligation in customs legislation?
All those who are considered taxable events. Which can be presented as regular or irregular –the latter from an unlawful action-. That is to say, whoever makes an import or export destination for consumption -definitive-will be liable for the tax obligation. But so will anyone who carries out a taxable event considered irregular, which results from an action aligned with misconduct, among these “the commission of the crime of smuggling” (article 638 inc. “A” Law 22.415).
Accordingly, Law 22.415 (Customs Code) establishes as a debtor any subject who has committed an act that is taxed by customs legislation, whether it comes from one of those characterized as regular or irregular.
It turns out that whoever is charged as responsible for a irregular taxable event, Since it is the commission of smuggling, the tax obligation falls on the heads of all those who generated that act, in accordance with their criminal responsibility and which has led precisely to the determination of being faced with an irregular taxable event.
It should not be confused that before a regular fact -import or export destination– documented by a subject as an importer/exporter and therefore at that time holding the character of debtor, it may occur that such tax liability is transferred to the head of others. This happens if that regular fact, due to the verification of a punishable situation in terms of a smuggling crime, changes into a new fact, recognized as an "irregular taxable event" and is when the tax liability passes to the head of all the subjects who are charged.
To this must be added the figure of article 782 of the Customs Code, which contrary to what is maintained in the judgment commented here, specifies with greater emphasis the character of tax responsible for the obligation in all subjects involved in a customs criminal case. A rule that does not recover the character of joint liability, but of direct liability in line with article 777 of the same legal complex.
Clarifying that the joint liability referred to in article 782 of the Customs Code is not with the person who carries out the regular act –importer/exporter- On the contrary, the law determines who are the obligated parties in tax matters in the face of the irregular taxable event - smuggling. And with the purpose of not reducing the responsibility of any party, since they are all equally obligated, the legislator expressed solidarity among them. But in no way do they cease to have their direct responsibility in the obligations that may arise from the irregular taxable event, which originated from the state of a reprehensible situation such as the crime of smuggling in a customs case. Without prejudice to the fact that there existed prior to its verification a regular event and a responsible party. –importer/exporter-.Such tax liability on the part of all those charged is in line with the criminal sanctions for the crime of smuggling specified in articles 876, paragraph “c” and 886 of the Customs Code.
With reference to this, the rule (Law 27.541) when allocating the regime to taxpayers and those responsible, in terms of the tax obligation and those obliged, shows that it includes all subjects involved in a customs case because each one is a tax responsible party according to law 22.415.
Conclusion
If Law 27.541 allocates the regime to taxpayers and/or those responsible for tax obligations, all those subjects charged in a customs case, when they are liable for the taxes, whether direct or joint, have the possibility of agreeing to the cancellation of these in the terms specified by the law with its requirements.
Once the precepts mandated by law have been met, namely: a) being accused in a customs criminal case, b) registered as Micro, Small or Medium Enterprises – Art. 2 Law 24.467 – and c) having cancelled the corresponding obligations prior to November 30, 2019, there is no reason to deny the application of the rule with regard to the extinction of the customs criminal action.
In no case may exceptions be applied that are not established by the rule, which would result in an illegitimate act since the judge himself would be exceeding his function of administration of justice, modifying the rule to decide contrary to it and consequently legislating, a power that is prohibited to Justice by the National Constitution.
By: Guillermo Felipe Coronel, Lawyer specializing in Customs Law
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