Buenos Aires, March 7, 2003.-
CARS AND SEEN:
File No. 13.474-A, entitled: COSENA COOPERATIVA DE SEGUROS NAVIEROS LTDA. v. GENERAL DIRECTORATE OF CUSTOMS s/ appeal, and
CONSIDERING:
I.- That at fs. 7/13 round. the company COSENA COOPERATIVA DE SEGUROS NAVIEROS LTDA is represented by proxy. and appeals against art. 1st of the Ruling Resolution No. 9945/99, issued in file EAAA No. 400.049/97 and its attachments, by which the challenge procedure filed in its capacity as guarantor of the firm SALABUR SA was rejected, confirming charges Nos. 13.260/95 and 13.261/95, corresponding to files. Nos. 403.403/96 and 403.398/96, respectively. It indicates that the guarantee granted by policies nos. 8422 and 8312 were due to the lack of a certificate of origin proving Mercosur origin. He states that the charges were made by the customs service due to the failure to attach the certificates of origin, given that the deadline granted in the OM 1190 guarantee forms had expired, and there was no evidence of an extension having been requested either on the part of the customs service or ex officio. He states that the certificates of origin were added on 15/02/97, and that he therefore requested the revocation of the charges, since the cause that gave rise to them had ceased. It states that the Customs Office in the appealed resolution held that said documents had expired, in accordance with the provisions of Res. 78/87. He understands that according to the jurisprudence of this Court and ratified by the Superior, the validity of the CO It must be evaluated at the time of official clearance, so it is irrelevant whether the 180 days from its issuance have expired at the time of presentation to the customs service. It is stressed that such late filing may only give rise to administrative sanctions but never entails the loss of tax benefits. Expresses that the CO Nos. 156/97 and 157/97, both issued on 05/02/97 by the Federation of Industries of the State of Santa Catarina, reference the commercial invoices attached at the time of import clearance (date and number) and clarify in the observations section that cancel and replace the CO Nos. 893/95 and 894/95. It is noted that the firm taking out the surety bond was declared bankrupt on 09/05/97, pending before the Commercial Court No. 22, Secretariat No. 43 of the Federal Capital and that due to the credit from the customs service prior to this, the charge made is inadmissible at this stage. It maintains that in this instance it lacks passive legitimacy to be sued, based on the fact that the guarantee obligation is conditional on compliance with various requirements, which it lists and concludes that since all of them have not been met, the Treasury is directing its action untimely and without cause to its part, for amounts that are in no way obligatory to pay because the incident that makes its accessory guarantee obligation enforceable has not occurred. He understands that the charge is due to an erroneous liquidation, which unjustifiably aggravates the insured risk due to the higher interest accrued, contrary to the provisions of Law 24.522 and the essence of the surety insurance contract. Considers that the interest accrued due to the insured's default and because the insured is bankrupt must be adjusted to the provisions of Law 24.522, which suspends them on the date of the policyholder's filing for bankruptcy. He adds that the occurrence of the taxable event has not been proven or verified with respect to the importer. It develops the legal nature of surety insurance and maintains that by not being directly responsible for the payment of the tax, Customs is unable to direct its action directly against the insurer, ignoring the importer, the main and direct debtor of the same. It indicates that in the face of the particular circumstance of the insolvency or bankruptcy of the policyholder, both the insured (the Treasury) and the guarantor (insurer), as creditors, are subject to the public order provisions of Law 24.522, to ensure the exercise of their credit rights and, eventually, their guarantee rights. He states that it is not up to the customs service to decide whether to exclude the temporary importer, who is in debt with the tax obligation, and to take action directly against the guarantor. It is understood that the insurer is not a joint debtor, nor responsible for the tax obligation as a passive subject thereof, pursuant to the provisions of the CA He argues that the method of making effective the credit in favor of the Treasury is currently regulated in Internal Circular 38/94 (Res. 1645 / 94). He offers evidence, reserves the right to a federal case, requests that the appealed charges against his client be dismissed with costs, and that Customs be ordered to verify the credit in his favor, after recalculating interest to the date of the bankruptcy declaration.
II.- That at fs. 17/28 The public prosecutor responds to the transfer of the appeal and requests its rejection, with costs. It states that the guarantee was established due to the lack of certificates of origin proving the intra-zone negotiation of the goods imported by the firm SALABUR SA. He states that the challenge was based on the fact that the deadline granted in the guarantee forms had expired, and there was no evidence of extensions having been requested. He states that, subsequently, on 15/02/97, after the deadline for its presentation had expired, the appellant firm attached the certificates corresponding to the import dispatches involved, requesting their revocation because the cause that gave rise to it had ceased. He points out that the records of the case show that the certificates have expired and that they were submitted late, in accordance with Res. 78/87, which grants 180 days of validity from the issuance of said documents. It is understood that the appellant is seeking to have a preferential regime applied to it, for which the validity of the certificate of origin of the goods is unavoidable, but without complying with said sine qua non requirement. It states that the certificates of origin submitted by the plaintiff did not comply with the validity requirements established by law, which implies the loss of the tariff preference. As regards the plaintiff's liability, it states that the bankruptcy regulations cited by the opposing party are not applicable to the case at hand, since the tax obligation that gives rise to this cause is governed by rules specific to customs legislation. It is stressed that the purpose of surety insurance is to eliminate the risk of default by the principal debtor and the loss is configured with the non-compliance of the principal obligation, without it being necessary to prove the insolvency of the policyholder, the mere maturity of the debt being sufficient, unless a benefit of foreclosure has been agreed. It states that the guarantee involved in this case is provided at the request of the importing firm, making the plaintiff the guarantor, plain and simple, and the main payer. He states that the model of the surety insurance policy for customs guarantees is predetermined by Res. No. 2749/93 and the loss is the non-compliance with the obligation assumed by the importer, to which is added the delay in which the latter incurred by not complying with its tax obligations and which, by virtue of what was agreed, is also covered by the guarantee. It states that the insurer does not owe interest for its own delay but for that of its insured and therefore the accessories due are those accrued with respect to the latter, citing art. 4th of the General Conditions of the policy and of art. 1997 of the Civil Code. She states that her client is authorized to go against the guarantor, under the terms of the policy that the plaintiff signed, as expressed in its art. 3o. He offers evidence, reserves the right to a federal case, and requests that the appeal be rejected, with costs.
III.- That at fs. 31 the case is opened for evidence, which is produced at fs. 37/41 and at fs. 42 the evidentiary period is declared closed. At fs. 46 the files are elevated to the F Chamber and they are put to argument, with the defendant's argument being produced at 49/49 vta. and the treasury not making use of this right. At fs. 51 the case is passed on to judgment. At fs. 54, as a measure to better provide and in use of the powers conferred by art. 1156 of the CA, an order is issued to the Area of Origin of Merchandise, of the Secretariat of Industry and Foreign Trade, which is answered at fs. 71/72.-
IV.- That on pages 1/6 of file EAAA No. 400.049/97 there is the appeal filed by the firm COSENA COOPERATIVA DE SEGUROS NAVIEROS LTDA., against charges Nos. 13.260/95 and 13.261/95. On pages 15 and 16 are added certified copies of the surety bonds Nos. 8422 and 8312, guarantee control forms Nos. 708.513 and 707.603, respectively, reporting on pages 17 that said guarantees are active. On pages 2/3 of file EAAA No. 405.308/97 are added the certificates of origin Nos. BL 157/97 and BL 156/97 and on pages 6. The addition of the aforementioned file to EAAANº 400.049/97 is ordered. On pages 2 of file EAAA No. 416.946/97, its accumulation to file EAAA No. 400.049/97 is ordered. On pages 42/42 back, there is legal opinion No. 870/98 and on pages 47/48, Resolution No. 9945/99 is issued, by which the challenge raised is rejected and charges 13.260/95 and 13.261/95 are confirmed.
V.- That through import dispatches Nos. 83026-0 and 77945-5, registered on 19/7/95 and 3/7/95, respectively, the firm SALABUR SA documented the import for consumption of cotton towels, PA 6302.60.00, merchandise originating and coming from Brazil, under ACE 18. At the time of registration of said operations, the lack of certificates of origin was confirmed and the guarantee control forms Nos. 708.513 and 707.603 were presented.
That there is no evidence in the administrative proceedings that the certificates of origin have been submitted by the importing firm and it also arises from the copy of the fax attached to fs. 5 of file 405.308/97, that the customs agent demanded that the exporting firm send the originals corresponding to the certificates of origin nos. 893/95 and 894/95. This has not been the subject of ignorance or controversy by the parties.
That it was only on 15/2/97 that the appellant, who confirmed the lack of certificates of origin, submitted to Customs the certificates of origin numbers BL 157/97 and BL 156/97, both issued on 5/2/97, and enclosed a simple copy of the fax sent on 23/01/97 by the customs agent involved in the aforementioned import operations.
That through the appealed resolution, the customs service confirmed the charges considering that the certificates of origin nos. BL 157/97 and BL 156/97, presented during the processing of the challenge procedure by the insurance company, were expired, in accordance with the provisions of Res. 78/87, which grants a validity period of the certificate of 180 days, counted from its issuance.
That the matter brought to the attention of this Court must be analyzed in light of the provisions contained in Partial Scope Economic Complementation Agreement No. 18 (MERCOSUR), whose Annex I - General Regime of Origin - was replaced, at the date in question, by the Mercosur Origin Regulations, registered as Annex I of the Eighth Additional Protocol (AAP.CE/18.8). In particular, Chapter V - Declaration, Certification and Verification of Origin -, a rule that specifically regulates the origin of imported goods under said Agreement, without prejudice to what is also regulated in this regard by Res. 78/87, General Regime of Origin for the Latin American Integration Association, which is of a general nature.
That art. 16, in what is of interest here, provides that certificates of origin will have a validity period of 180 (one hundred and eighty) days and must be issued exclusively on the attached form, which will not be valid if it is not duly completed in all its fields. The same provision is contained in article seven, paragraph 3, of Res. 78 of the ALADI, stating that certificates will have a validity period of 180 days, counting from the date of certification by the competent body or entity of the exporting country.
In this case, it is intended to prove the zonal origin of the merchandise through two certificates of origin that in field 14 have a legend stating that said documents replace or cancel certificates of origin nos. BL 894/95 and BL 893/95, respectively.
That the issuance of a new certificate in substitution of another already issued is not based on the provisions of the Agreement in force at the time of the import of the cars. Such a possibility of substitution appears only in the Thirty-ninth Additional Protocol to ACE 18, whose Annex II - Mercosur Origin Regime -, point B, when after establishing as a rule that: In no case may certificates of origin be issued in substitution of another once it has been presented to the Customs Administration (paragraph h), provides that: The authorized entity may issue a new certificate in substitution of a previous one, in the event that the same has been issued but not presented to the corresponding Customs Administration within the terms stipulated for this purpose, that is, 60 consecutive days from the date of issue of the commercial invoice. -
That the above shows that the substitution, when it is permitted, is subject to compliance with the requirements expressly established by the Agreement, while in the case at hand we see that it is a substitution that lacks regulatory justification and that occurred almost two years after the alleged issuance of the original certificates of origin, when it is a reiterated rule in all Integration Agreements such as ACE 18, that the validity period of a certificate of origin is 180 days, counted from the date of certification by the issuing entity.
Even if we hypothetically admitted the substitution, it was carried out after the 180-day period of validity of the document had elapsed. Consequently, the effects of a document cannot be validly revived when the period of validity had already expired.
It should be added that from the response to the letter issued in the proceedings as a measure to better provide, recorded on pages 71/72, it appears that the Federation of Industries of the State of Santa Catarina (Brazil) no longer has the documents or their background.
That, likewise, it is worth mentioning the opinion expressed by the Coordinator of the Origin of Merchandise Area, dependent on the Undersecretariat of Commercial Policy and Management, on pages 71/72, in the sense that certificates BL 156/97 and 157/97 lack validity for the purposes of facilitating preferential tariff treatment of the merchandise to which they refer, in accordance with the provisions resulting from the Mercosur Origin Regime.
In summary, the central issue does not lie only in the late submission of the certificates of origin, but fundamentally in the lack of intrinsic validity of the certificates of origin nos. BL 156/97 and 157/97, which are ultimately the only ones presented to the customs service and this determines the substantial admissibility of the tax claim.
That, consequently, since the incident or the insured risk has occurred, that is, the lack of a valid certificate of origin, the insurer must bear the obligations assumed by the guarantees granted, being responsible for the concepts for which the customs service issued charges nos. 13.260/95 and 13.261/95.
VII.- That with respect to the grievance linked to the opportunity in which the tax claim is made and the need for Customs to verify its credit against the bankruptcy of the importer, alleged by the appellant, it cannot be ignored that the purpose of the surety insurance is the immediate enforceability of the guarantee, against the non-compliance of the policyholder (CN Com, Sala A, Nov. 26-981, INDESA SA c/ APOLO CIA. De SEGUROS, La Ley, 1982-B, 416, ED 97-588; CN Fed Civil and Com., Sala III, July 14, 1998, EMPRESA FERROCARRILES ARG: c/ AGENCIA ABRAXAS TURISMO SRL AND ANOTHER, la Ley 1998-E, 549). Surety insurance is the insurance taken out with the aim of guaranteeing the insured, up to the maximum stipulated sum, the cash payment that he must receive from the proponent with whom he contracts, with the aim of immediate payment by the insurer in the event of the debtor's mere non-compliance (CN Com, Room A, cited precedent).
In this regard, it is also worth remembering that in surety insurance the acts, statements or omissions of the policyholder do not in any case affect the rights of the insured against the insurer (CN Com, Sala B, July 8, 1996, ALBA CIA. DE SEGUROS v. GIORGETTI, Alejandro H. and another, La Ley 1997-E, 1011), and that it is required by the contracting parties precisely in order not to be referred to a verification in the bankruptcy of the defaulting policyholder (CN Com, Sala D, June 17, 988, LA FRANCO ARG. DE SEGUROS v. FERRERO GEMMA and another, La Ley 1988-E, 460).
That arises from the agreed conditions and the nature of the insurance contracted, that in the case of surety insurance the insurer acquires the character of principal payer and joint guarantor, adding its liability to that of the original obligor, who is assumed to be solvent and faithful fulfiller of its obligations because it is an insurance entity, this type of insurance belonging to guarantee contracts, the object of which is the elimination of the risk of default (CN Com, Sala B, Oct. 23-1990, ED 142,479). Nor does the insurer enjoy the right of excussion, so that no prior procedure can be exhausted against the debtor's assets.
That, in this order of ideas, the Customs, in its capacity as insured or creditor in the event of non-compliance by the policyholder-importer, is not obliged to comply with any other requirements other than the determination of said non-compliance and if it is taken into account that the policyholder, by not appearing at the administrative headquarters and not questioning the resolution that ordered the formulation of the charge for taxes, has allowed it to become final, thus having the Customs direct action against the insurer, the loss being considered indisputable.
Furthermore, it should be noted that the bankruptcy of the importer in no way prevents the competent body from determining tax obligations and/or applying sanctions, issues that are not affected by bankruptcy.
That in light of the evidence in the case and the arguments of the plaintiff, it is of interest to refer again to the decision of the National Commercial Chamber, Chamber B, October 23, 1990 - Gerlach Campbell Construcciones SA v. Varmacons SRL and another -, in the sense that... the professional quality of the insurer obliges it to act diligently and with justification in the event of a claim, which sharpens the application of the principle of good faith in the fulfillment of its obligations, which demands diligent conduct so that the insured receives its compensation, without resorting to arguments that are clearly presented as dilatory and which therefore cannot be supported by the jurisdiction (this Chamber, Textil Iberoamericana SCA v. Ahorro Cía de Seguros SA s/ ord., March 11, 1986 (ED, 119-605)….-
It should be noted that the general conditions of the policy, in particular in art. 3, establish that once the charge has been formulated by the corresponding customs department or there is a final resolution that establishes the responsibility of the Policyholder and the amount by which the guarantees subject to the policy must be affected, the ANA (now DGA) will have the right to require the relevant payment from the Policyholder or the Insurer.
That, consequently, it can be concluded that in this case, Customs, in its capacity as insured, has the right to pursue the collection of the amounts guaranteed to the insurance company, without the need to previously verify the credits in the bankruptcy of the policyholder (importer).
That the adopted criterion has been confirmed by the National Chamber of Federal Administrative Litigation, by its 3rd Chamber, in the judgment issued on 5/02/02, in proceedings entitled ASEGURADORA DE CREDITOS Y GARANTíAS SA (TF 10900-A) v. DGA where it stated – making an analysis of the general conditions of the guarantee granted, as in the proceedings – that: …at no time is it determined that in order to direct the customs agency's collection action it must first be directed to the policyholder and only once that avenue has been exhausted should the action be directed against the insurer… it appears that the occurrence of the loss is determined by the customs itself when formulating the charge or issuing a resolution establishing the liability of the policyholder. Therefore, the claimant's claim that the occurrence of the loss has not occurred because the customs did not verify its credit in the bankruptcy of the importer is inadmissible.
That, as already stated, neither bankruptcy nor insolvency attracts actions in which the existence of a customs debt is to be determined, since with respect to them, all the specific regulations must be applied, which includes the calculation of the taxes and the compensatory interest that have accrued.
For the reasons stated above, IT IS RESOLVED:
1.- To confirm Resolution No. 9.945/99, issued in EAAA No. 400.049/97 and its additions, insofar as it has been the subject of appeal.
2.- Costs to the appellant.-
3.- To regulate the fees of Dr. …, for his performance in the dual capacity of attorney representing the defendant, in the sum of ten thousand one hundred and sixty-two pesos ($ 10.162), in accordance with the provisions of arts. 6, 7, 9, 37, 38 and 47 of Law 21.839, amended by Law 24.432.-
Register and notify. Sign this document by the General Secretariat of Customs Affairs, return the administrative proceedings and file them in due course.
