In Buenos Aires, on April 4, 2003, the members of Chamber E, Drs. Catalina García Vizcaíno, D. Paula Winkler and Gustavo A. Krause Murguiondo, with the last-named member presiding, met in order to resolve the case entitled CURTIEMBRE PELICCE SA AND ANOTHER v. DGA s/ appeal; file No. 16.987-A
I) That at fs. 27/35 round. Pelicce SA Tannery, as representative, and the customs agent Mr. Fabián Plácido Rizzo, in his own right, appeals against Resolution No. 6291/01 of the 2nd Head of the Department. Customs Legal Proceedings, filed in file No. 600.884/96, which condemns them to pay a fine of $297.780 under the terms of paragraphs. a) and c) of art. 954 ap. 1 of the CA, while urging the exporter to return the refunds allegedly received in excess, the amount of which reaches the sum of $27.771.91. They clarify that the exporting company is appealing both the fine and the demand for reimbursement of the refunds; however, Mr. Rizzo appeals only with regard to the payment of the fine because the contested ruling does not cover him with regard to tax determination. They indicate that the company carried out an export operation through PE No. 072230-5/95, which was originally to be carried out for a total FOB value of $589.641, but that when the export was carried out, the operation was reduced so that the total FOB value was reduced to $393.660,40, as would arise from the invoice added to the file (No. 004-00000321 of 22/2/95) and the corresponding packing list (which would bear the same number) and which would detail the contents of the 48 packages. They point out that the number of units, packages and weight of the merchandise are identical in copies 3 and 8. They point out that the operation was carried out through Canal Rojo, and that the physical and documentary verification was carried out with the intervention of officials from the Leather Chamber. They claim that the investigation was initiated by the fact that in Sector AP26 of Copy No. 3 a FOB value of $195.141 was recorded, which is why that amount was considered authentic and, consequently, it was considered that the settlement in Copy No. 8 was incorrect, which is why a higher refund than that which was due was collected. They claim that this is an error made by the verifier who has been dragging himself through all the copies of the partial reports and that when reaching partial number 8 it has been corrected, since the merchandise actually exported appears in copy number 8. They maintain that an error was made due to an inversion of figures when completing Sector AP26 in copy 3 and since the total FOB value did not match the value actually exported, an error was made, so that instead of entering the value of what was exported, the value of what had not been exported was entered and had to be subtracted from the original; that is, the error would be in copy 3 and not in copy 8. They refer to a note submitted by the customs agent who is said to have reported the situation at hand. They point out that the corrections and amendments noted in copy 8 were made by the customs service. They consider that the typical conduct provided for in art. 954 of the CA They understand that Sector AP 26 is not included in the exporter's declaration: in copy 3, it is done by the verifier and in copy 8, by the Customs area that liquidates and approves the payment of the benefit, it being quite common that in the event of an administrative error, the customs officials themselves correct it, crossing out the mistake and handwriting the correct part on top. They analyze the factual assumptions provided for in the regulation and understand that they have not been complied with. They cite case law. Regarding Mr. Rizzo argues that it has not been adequately considered in the Resolution, since it simply cites a report stating that partial 8 was prepared by the customs agent according to the data from partial 3, but that it would be obvious that the correction was made by customs itself. They consider that art. is applicable. 908 of the CA which establishes the limits of the customs broker's liability, since his actions consisted of submitting a note indicating an error and detailing the correct basis for the calculation, a submission that was made following the exporter's instructions based on the commercial documentation corresponding to the export and the reality of what was exported. They add that the right to a defense in court has been violated by not considering the defensive arguments and legal questions expressed in the statement of defense. They offer proof.
That on pages 40/41 the appellants invoke as a new fact the location of the invoked note from the customs agent in file No. 600.885/96.
II) That on pages 49/58 the public prosecutor's office responds to the transfer that was duly conferred upon it. It makes a brief review of the proceedings and the grievances raised by the plaintiffs. It considers that the appellants have not provided elements to the case that refute the imputation made. It points out that the DGA should have paid the amounts liquidated by the appellant exporter in the judicial amparo file initiated by the latter, but that the legal service of the appealed entity expressly reserved in the payment receipt to review and verify its provenance. It understands that given the plaintiff's recognition that there was an error, it would be contradictory for her to try to demonstrate that there is no inaccuracy in the conduct carried out by her. It points out that the note that was reported as a new fact was presented after the customs office informed the customs agent of the inaccuracy detected by the customs service. It cites jurisprudence. He considers that the possibility of fiscal damage lies in the possible payment of undue refunds by the Treasury. He claims that there is an inversion of the burden of proof, with the obligation of proving the existence of grounds for exculpation falling on the clearing agent, which has not been proven. He offers evidence and requests that the appeal be rejected, with costs.
III) That at fs. 59 this Judge dictates a measure for better provision that is produced at fs. 72. At fs. 79 the cause of pure law is declared and the proceedings are elevated to Chamber E, which passes them to sentence.
IV) That on page 1 of file EAAA No. 600.884/96 there is the complaint report No. 340/96 under art. 954 and subsequent articles of Law 22.415 in relation to PE No. 072230-5/95. On page 3 the aforementioned PE No. 072230-5/95 dated 24/2/95 and its supporting documentation appear in an envelope. ANSM Note No. 285/96 records the differences between copies 3 and 8 in the quantities and/or units and/or amounts of the merchandise in PE Nos. 51.663-0/95, 126.007-6/94, 72.230-5/95 and 160.328-2/94, the payment of refunds to the plaintiff company of which was ordered by court order (pages 4/5). At pages 11, the legal service of the DGA promotes the payment of the refunds liquidated by the plaintiff, by virtue of the court ruling, without prejudice to the reservations of actions to review and verify the provenance of the payments in accordance with arts. 845 et seq. of the CA (pages 8/9 and 11). At pages 18/19 there is a report from the Promotional Regimes division regarding the amount allegedly overpaid by the aforementioned PE. At pages 20, the opening of the summary is ordered and the appellants are given a hearing. At pages 35 the firm Curtiembre Pelicce is declared in rebellion and on pages 86 the cessation of rebellion is declared and the evidence offered is accepted. On pages 92 there is a report from the Argentine Chamber of the Tanning Industry, on pages 94/97 the accounting expert opinion is issued which is attached on pages 98 with Annex I consisting of accounting expert documentation. On pages 103/105 back, Resolution No. 6291/01 is issued, appealed in this case.
V) That with regard to the alleged violation of the right to defense alleged on pages 34/35 of the proceedings, it should be noted that it is Supreme Court doctrine that when the restriction of defense in court occurs in the procedure that is being conducted in an administrative setting, the effective violation of art. 18 of the CN does not occur as long as there is the possibility of correcting this restriction at a later jurisdictional stage (Judgments, 205-549, 247-52 consid. 1º., 267-393 consid. 12 and others), because the requirement of defense in court is satisfied by offering the possibility of appearing before a jurisdictional body in search of justice (Judgments, 205-549, consid. 5º and its citations) -TFN, Sala E, among others, Rivera, Alcides of 27/5/86, López Arispe, José, of 5/9/88-).
It is further noted that during the customs infringement procedure the appellants had the opportunity, which was exercised, to produce informative and expert evidence, as indicated in the preceding point.
That, on the other hand, it is doctrine of the Supreme Court of Justice of the Nation that the challenge of arbitrariness is not applicable to a well-founded resolution or judgment, regardless of its correctness or error (Fallos, 243-560, 246-266, 248-584, 249-549), except in certain cases, such as, for example, the contradiction between the recitals and the operative part (cfr., among others, Scicolone, Manuel S. v. Prantera, Omar Alberto, et al., 26/11/91). It has also said that since the contested resolution is sufficiently well-founded, the express mention of all the arguments of the appellant is not required (among others, Fallos, 251-39). It should also be remembered that judges are not obliged to consider all the evidence produced in the case, but only those that they consider conducive to its correct solution and that, by means of the federal remedy, there should be no attempt to convert this Court into just another ordinary instance ("Rulings", 274-35, 276-132 and 248, 278-135, among many others) (Rulings, 301-676).
(VI) That the Customs Code protects the principle of truthfulness and accuracy of declarations and statements submitted to customs. Article 954 of that Code punishes 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 unnoticed, causes or could cause, among other cases: a) a fiscal loss, will be sanctioned with a fine of 1 to 5 times the amount of said loss; c) the entry or expenditure 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 these cases, the appellants have been convicted by Resolution No. 6291/01, appealed herein.
That art. 956 inc. b) of the CA understands fiscal damage as the failure to pay into the customs service the amount corresponding to taxes whose collection is entrusted to it (…) or the payment by the Treasury of an amount that does not correspond to export incentives.
That from the verification of the container envelope of PE No. 072230-5/95 dated 24/2/95 (pages 3 of the adm. ant.) it appears that in copies 3 and 4 the customs service recorded in AP26 that the amount shipped was with difference and that the merchandise exported amounted to 6000 gross kg, 5140 net kg, 48 packages, the number of sales units being 806, resulting in a taxable base in foreign currency and FOB value of 195.141. In the declaration contained in the aforementioned PE, the appellants stated that the sales unit was the unit and referred to the unit amounts of the different sub-items - 540; 103; 607,50; etc. -); They also indicated that the total number of sales units was 1236 and that they weighed 10.000 gross kg and 9250 net kg, with the total value in foreign currency of this total being 589.461. No details are given of what was shipped for each of the items. The completion of the exported merchandise dates back to 25/2/95.
That in section AP20 of the shipping permit in question, Curtiembre Pelicce SA expressly declares that it shipped as established in the previous document, dated 25/2/95. This undermines the argument that only the customs intervened in the document and allows us to conclude that the appellant exporter knew what the taxable base in foreign currency was assigned by the customs for the purposes of the export incentives.
That in Section AP26 of copy 8 it is stated that the amount shipped was different, but suggestively the number of sales units is amended to 807 and the taxable base in foreign currency and FOB value to 393.660,40. On that basis, on 26/2/96 Promotional Regimes validated the liquidation of the refunds.
Even if it were understood that the amendments were made by the customs service, it cannot be ignored that the liquidation of refunds made in copy 8 of the shipping permit was signed by the exporter's representative in the space reserved for the exporter, to which is added that the payment of the incentives was made by virtue of the court ruling issued in a file initiated by the exporter.
The appellants consider that such liquidation is correct and that the error occurred in the completion of copy 3, taking into account the attestations of the commercial invoice and other complementary documentation.
That the packing list of 24/2/95 includes 48 packages and 807 units, in accordance with commercial invoice No. 0004-00000321 of 22/2/95.
That from the analysis of this commercial invoice it appears that the unit prices assigned to each of the items and models coincide with the unit prices expressed in the sub-items of the boarding permit in question, as well as to the models listed, except for the last item relating to the Inés model, where the total price (27.265) coincides with sub-item 1.24 of the boarding permit, but which was expressed as a unit price of 779, instead of 2726,5; in any case, there were 10 units, so it is easy to infer that the unit price was the latter.
That invoice shows a total of 393.660,40, which was the basis computed to settle the export incentives.
That, in addition, this invoice has been recorded in the accounts, observing continuity of sales to the acquiring firm in the period February 1995/May 1995, and its amount was collected by the exporter through bank transfers from Banco Baires (see expert opinion on pages 94/97 of the previous administrative proceedings).
In addition, according to the records in copy 3, it appears that around 65% of the declared quantity of merchandise units (806 out of 1236) were exported, the total in foreign currency being 589.461. From this it could be inferred that an error was made in copy 3 when stating that the FOB value of the exported goods reached 195.141 and the amount stated by the appellant appears plausible.
That the above raises a reasonable doubt in my mind that leads me to apply the principle of art. 898 of the CA, for which reason I advocate that the contested resolution be revoked insofar as it has been the subject of the appeal, that is, with respect to the fine imposed and, by necessary implication, the sum requested for reimbursements.
That the way I vote on this motion makes it unnecessary to comment on the remaining issues raised.
VII) I propose that the costs be decreed in the order in which they were caused, given that the principle of art. 898 of the CA is applied and taking into account that the exporter confirmed the completion of copy 3, from which it can be inferred that it confirmed the error that it later invoked. In addition, the customs office could plausibly consider itself entitled to litigate for the error committed and for the errors invoked in other shipping permits (see NOTE ANSM 285/96 of pages 4/5 of the previous administrative proceedings). Note that the note submitted by the customs agent is dated 15/2/96, almost a year after the export of the sub-item.
That, in effect, although Law 25.239 (Official Gazette 31/12/99), which amended Article 184 of Law 11.683 in 1998 and as amended, authorizing the unsuccessful litigant to be exempt from costs with justification, has not expressly amended Article 1163 of the CA (according to Decree 1684/93), it should be noted that Article 1140 of the CA stipulates that: The seat of the Tax Court (…), the plenary sessions, the calculation of terms, the regulations and other powers shall be governed by the customs order in accordance with the provisions of the relevant provisions of Law 11.683 (emphasis added in this opinion).
That undoubtedly falls within the concept of powers those relating to the respective chamber to exempt the defeated litigant totally or partially from this responsibility [of payment of costs], provided that it finds merit for doing so, expressing it in its ruling under penalty of nullity of the exemption (art. 184 of law 11.683, according to the modification introduced by law 25.239).
Therefore, I vote for:
1°) Revoke Resolution No. 6291/01 of the 2nd Head of the Customs Legal Procedures Department insofar as it has been the subject of the appeal. Costs in order.
2°) Having certified and included in these proceedings the note from the customs agent dated 15/2/96, by the General Secretariat of Customs Affairs, file No. 600.885/96 shall be returned to the General Directorate of Customs.
Dr. Winkler said:
I agree with the preceding vote, except with regard to the costs that I propose be imposed on the Treasury, which is defeated.
Dr. Gustavo A. Krause Murguiondo said:
That I agree substantially with the vote of Dr. García Vizcaíno on the merits. With regard to costs, I consider it appropriate to impose them in order, taking into account what was stated in the vote of the previous speaker.
That this Chamber of the Court, as will be seen, has the power to impose costs in its order, at the point where they have been imposed.
That, in the opinion of the undersigned, the reform introduced by Law 25239, in its point 18, to art. 184 of Law 11683, must be interpreted extensively, considering that it also reforms art. 1163 of the Customs Code. No other interpretation is possible given that it is the same Court, with the exercise of similar jurisdictional powers in both areas, in which there is no reason to differentiate them at the time of the imposition of costs. The precise basis for the extensive interpretation is given: the legislator in this case, when sanctioning the law minus dixit cuam voluit, that is, has expressed in the letter less than what corresponds to its true real intention, which has been to return to the same, without any distinction, the power to exempt from costs when justified. The reform introduced by Law 25239, point 18, is also expressive of a general principle, enshrined in all, or almost all, of the Procedural Codes, in relation to the exercise of the jurisdictional function. To claim that this principle can be applied in the Tax Court only partially, without any possible justification, exceeds the margins of reasonableness of interpretation.
If the case were approached from the point of view of gaps in the law, and not from the point of view of extensive interpretation, it could be stated that in the situation there is, as Karl Larenz discusses in the Methodology of the Science of Law, Ediciones Ariel SA, Barcelona, 1966, p. 293, a case of a hidden regulatory gap. That is to say, in the case the rule of art. 1163 of the Ad. Code apparently subsists, but it is no longer applicable because according to the principles of the legal order (contained in the case in the various Procedural Codes) or in a subsequent rule for analogous situations (art. 184 law 11683 with the reform of law 25239), its scope must be reduced or modified to apply the principles of the subsequent rule for analogous cases or of the legal order, taking into account the purposes of the same, which arise in this case from the foundations of law 25239 itself.
In accordance with the above agreement, by majority, IT IS RESOLVED:
1°) Revoke Resolution No. 6291/01 of the 2nd Head of the Customs Legal Procedures Department insofar as it has been the subject of the appeal. Costs in order.
2°) Having certified and included in these proceedings the note from the customs agent dated 15/2/96, by the General Secretariat of Customs Affairs, file No. 600.885/96 shall be returned to the General Directorate of Customs.
Register, notify, promptly return and archive the administrative records.
