The discussion on whether the “statistical rate” is classified within the group of customs duties as a “rate” or a “tax” is historical. If an analysis is made of the direct compensation that the “taxpayer” must receive from the “active subject” from the payment of this concept, the type of tax is not categorically noted. This is because the provision of the statistical service is absorbed by a universe of importers and exporters, regardless of having requested the use of this service provided by the State. Consequently, from this point of view it can be considered that it is closer to a tax of the “customs tax” type than to a “customs rate”.
Recently the National Executive Branch (PEN) through decree 332 / 2019 It ordered the “statistical rate” contemplated in article 762 of the Customs Code to be raised from 0,5% to 2,5%.
On the powers of the National Executive Branch
Article 762 of the Customs Code should indicate that it does not establish this tax, it only mentions it as one of the rates that may be present in customs taxes, but if it is created, it must be done under the precepts established by the National Constitution. That is, it must be established by Law, since the National Congress is the only power with taxing powers (art. 4, 17, 52,75 inc.1, 76 and 99 inc. 3, third paragraph of the National Constitution).
Hence, the support for this decree is based on Law 23.664, which at the appropriate time, established the scope of the “statistical rate” for imports and exports of a definitive and temporary suspension nature.
From this point on, the PEN, together with the aforementioned law and article 764 of the Customs Code, was considered empowered to apply the “statistical rate” and determine its rate. This varied between 10%, up to 0,50% and now, by decree 332/19, it is raised to 2,5%.
Despite this legal framework that may support the powers of the PEN to determine this type of tax, this decision certainly contradicts the action in accordance with Article VIII of the GATT of 1994, which states: “1 a) All rights and charges of any kind, other than import and export duties…shall be limited to the approximate cost of the services provided…"and that the Argentine Republic committed itself within the framework of the World Trade Organization (WTO) to adjust the provisions of Article VIII of the General Agreement on Tariffs and Trade (GATT) of 1994, the percentage"ad valorem"as a statistical service tax that taxes extra-zone imports, limiting the absolute value of the sums of money charged to importers for this purpose.
Although the decree itself justifies its considerations based on the fact that this rate has been reduced for 20 years, it should be noted that by incorporating digital and computerized systems in the data processing and systematization states with the power of the Internet, it should generate effects of lower costs. Consequently, with due regard to acting in accordance with Article VIII of GATT – commitment by international agreement - The “statistical rate” should be limited in application over time and not generate an increase. Tax that, if it exists, must be reasonably related to the costs of this service, limited by the GATT agreement.
Taxable events and exceptions
Law 23.664 and the regulations provided for – decrees no. 2274/94, no. 389/95 and no. 690/2002, established exceptions to different operations provided for in the Customs Code in article 289 – “storage warehouse” – articles 344 and 355 – “suspensive and definitive exports”; article 499 – “luggage”-; article 508 – “ranch”, “on-board cargo” or “supplies of means of transport”; article 519 and 525 – “luggage”; articles 531 and 532 – “diplomatic franchises”-; article 561 – “samples”-; Article 582 and 584 – “assistance and rescue shipments”, without prejudice to those specific to the type of merchandise.
These exceptions could be considered without effect, at least by application of decree no. 332/2019 until December 31, 2019, considering that its article 2 so provides, leaving without validity, among others, art. 26 and 27 of decree 690/2002. From this arises the following question:
What transactions are taxed under this decree no. 332/2019?
In this regard, we can consider two substantial aspects of the rule itself to answer the scope of this tax:
Firstly, Article 1 of Decree 332/19 determines that definitive import destinations and temporary suspensive destinations will be subject to the “statistical tax”. Therefore, the regulation is precise on this point and determines which events are taxable in order to be affected by this type of tax.
Secondly, although Article 2 of Decree 332/19 nullifies various regulations, including Articles 26 and 27 of Decree 690 of 2002, which established “exceptions to the scope of the statistical rate”, this should not mean that it is extended to other customs operations that have not been pre-established by Article 1 of Decree 332/19, which, as noted, is limited to two types of operations, “definitive import for consumption” and “temporary import suspension”.
It should also be noted that Decree No. 2284/91, which in its Article 71 expressly abolished the statistical tax on exports, has not been repealed.
Thus, it could be established that import destinations with a suspensive transit character (art. 296 of the CA); storage deposit (art. 286 of the CA) and definitive export destinations for consumption (art. 725 of the CA) or export of a suspensive character in its different types (art. 349 temporary; art. 374 transit; art. 386 removed) would not be taxed.
By: Dr. Guillermo Felipe Coronel, Member of the Institute of Customs Law and International Trade of the Argentine Association of Constitutional Justice
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