In Buenos Aires, on the 27th day of December 2002, the members of Chamber E, Drs. Catalina García Vizcaíno and Ms. Paula Winkler (Dr. Gustavo A. Krause Murguiondo is on leave), met to decide the case entitled: DONTO SA v. DGA s/ appeal; file No. 15.929-A.
Dr. Catalina García Vizcaíno said:
I) That on pages 21/24 Donto SA, through its representative, files an appeal against Resolution No. 1891/01, issued by the General Directorate of Customs in file No. 604.727/97. It states that the plaintiff allocates its production to the foreign market, for which reason it brings in a significant volume of inputs and exports a huge amount of production. It indicates that the duty to inform customs about the degree of compliance with the re-export commitments assumed was not fulfilled, since it admits that the administrative discharge of the DIT in question was not carried out, but that the main obligation, to re-export within the term, was fulfilled. It understands that this arises from the input/product relationship that arises from the Classification and Typification Certificates that it claims to enclose and adds that the verification of the dates of compliance of the exports corroborates that the inputs were re-exported within the term granted. The Court considers that an obligation that it understands as formal was not fulfilled, consisting of not recording in each shipping permit the details of the imported inputs incorporated into the exported product and the DIT with which each input was entered. From arts. 970 and 972 of the CA, it deduces that the main obligation of the beneficiary of the regime is to re-export within the agreed term and that the applicable penalty is very different depending on whether or not the non-compliance affects the purpose that motivated the granting of the temporary importation. It affirms that the charge for the taxes corresponding to the importation of the inputs entered by the DIT is doubly objectionable because the taxable event has not existed, since at the time of expiry of the permanence term, the goods had already left the customs territory and because decree 1439/96 is not applicable because its provisions are not in force. It offers evidence, reserves the federal case and requests that the appeal be upheld.
II) That on pages 33/45 the public prosecutor's office contests the transfer duly conferred upon it in relation to Donto SA. It makes a brief review of the proceedings and the grievances raised by the plaintiff. It indicates that the plaintiff acknowledges that it failed to communicate the cancellation of the DIT, so that it did not reliably prove the re-exportation it invokes. It considers that in accordance with the provisions of MEYOSP Resolution 72/92 and the concordant customs regulations, the obligations arising from the temporary import regime have not been complied with. It cites jurisprudence. It adds that the burden of proof of compliance with the obligations inherent to the suspensive import destination regime falls on the importer. The Court maintains that the evidence cited by the appellant is unnecessary and inappropriate, and therefore lacks probative value, and that the appellant did not appear in court in a timely manner at the customs office, and was therefore declared in default. The Court concludes that, since the offense has been established, the inexcusable liability of the plaintiff entails the obligation to pay taxes, among which concepts should be included the additional one provided for by the special regime. The Court requests that the customs ruling be confirmed with the imposition of costs.
(III) That on pages 59/63 back. Mercantil Andina SA, through its attorney, files an appeal against Resolution No. 1891/01, issued by the General Customs Directorate in file No. 604.727/97. It indicates that since this is a debt that is not final and the nature of the obligation incurred by the plaintiff is accessory, with respect to the merits of the matter in dispute it relies on the provisions of art. 2033 of the Civil Code. It briefly reviews the facts and maintains the illegitimacy of the tax claim, considering that the policy was issued to guarantee only the customs duties that the importer would have to pay in the event that the industrialized inputs were not re-exported in a timely manner; For this reason, the company considers that no relationship can be alleged between the object of the policy and the imputation of items made by the customs broker in the OM-1190 form, in respect of which the guarantor has no intervention. It points out that in this case the tax claim is coercive for someone who is not a liable party and is also unreasonable because it is required of someone who did not guarantee said items. It points out that the Insurance Company is intended to pay an advance on the presumed profit that the importer would have from the commercialization in the domestic market of the merchandise documented in DIT No. 2596/95 that was not re-exported. It reserves the federal case, offers evidence and requests that it be declared that the guarantor is not responsible for paying the additional VAT and advance payment of the income tax, with costs.
IV) That on pages 73/76 back, the fiscal representation answers the transfer that was duly conferred on it in relation to La Mercantil Andina Cía Argentina de Seguros SA. It makes a brief review of the actions and the grievances expressed by the co-plaintiff. It refers to the issues related to the guarantee granted by the insurer and states that from OM 1190 it appears that it itself committed to pay the VAT, the additional VAT and the collection of income tax, as well as that, in accordance with art. 453 inc. c) of the CA, the insurer assumes the liability of the third party to the same degree and condition. It cites jurisprudence. The Court claims that the incident was fully established, giving rise to the insurer's obligation, and that the insurer must therefore pay the customs office the taxes determined through the respective charge within the period established by the customs code itself and the surety bond issued by it in accordance with the regulations that establish it. As regards the admissibility of the additional duty and the advance payment of the importer's income tax, the Court believes that if it had any objection in this regard, it should have raised the issue of inadmissibility before being bound. The Court requests that the appeal be rejected, with costs.
V) That at fs. 93/vta. the undersigned dictates a measure to better provide, which is produced at fs. 119/137. At fs. 142 the proceedings are elevated to the Court, which passes them to judgment.
VI) That on page 1 of file EAAA 1997- 604727 there is the complaint report No. 3332/97, based on arts. 970 and 972 of CA DIT 2596/95. On page 4 there is an envelope with DIT 2596-3/95, made official on 15/6/95, which covers ribbons and fabrics. On page 6 the opening of the summary is ordered. On page 8 there is a report on the tariff classification and the valuation of the merchandise in alleged infringement. On pages 9/10 a liquidation is carried out by the Liquidations Section. After seeing the importer, it was declared in default on pages 17, while the insurer appeared to be in the right on pages 20/vta. After carrying out several measures to determine whether the obligation assumed by the temporary importer had been fulfilled, resolution 60/61 appears on pages 1891/01.
The EPs detailed in the Annex to this vote are attached separately.
VII) That art. 970 of the CA in its section 1) provides that: Whoever does not comply with the obligations assumed as a consequence of the granting of the temporary import regime or the temporary export regime, as the case may be, will be sanctioned with a fine of one to five times the amount of the taxes that tax the import for consumption or the export for consumption, as the case may be, of the infringing merchandise, a fine that may not be less than thirty percent of the customs value of the merchandise….
That the unlawful act attributed by customs is not purely formal, and the existence or not of fiscal damage is not relevant for this purpose, since the benefit of temporary importation is provided that the merchandise is re-exported on time (art. 250 of the CA), or its importation eventually becomes definitive, for which the relevant request must be made within the time limits provided for in art. 271 of the CA. If an extension is requested, the requirements and terms of art. 266 of the CA must be met in accordance with point 2 of MEYOSP Resolution 127/92, to which regime the appellant voluntarily adopted the temporary importation of the sub-lite, as shown in the body of DIT 2596/95.
That point 3.1. of the aforementioned Resolution 127/92 provides that: The beneficiary of the temporary importation must strictly observe the following requirements:
a) Presentation of a copy of the Temporary Import Clearance, in each customs office through which the merchandise will be exported under the new resulting form, authenticated by the customs office of its registry.
b) A copy authenticated by the intervening customs agent of the Certificate of Typification and Classification (…) shall be included in the Shipping Permit.
c) A copy of the Affidavit of Supplies, Losses, Surpluses and Residues that will be submitted to the Secretariat of Industry and Commerce will be included in the Shipping Permit until the Certificate of Typification and Classification, indicated in point b) above, is obtained (the emphasis is mine).
That none of these requirements were met by the plaintiff.
That the failure to comply with the aforementioned requirements cannot be supplemented by expert accounting opinions, to which is added the lack of mention of the DITs. in the shipping permits (which is recognized by the plaintiff at fs. 22 back of the proceedings) by which they would have attempted to unload them. The undersigned made way for the expert diligence proposed at fs. 23 back only to safeguard the defense in court.
Furthermore, from the expert opinion on pages 119/137 it appears that there are no accounting records that reflect that the inputs of the DIT in question must necessarily have been included in the manufacture of the exported products (see pages 136 back of the files).
That, on the other hand, in the exports to which copy No. 8 was attached -which are the majority- with which it attempted to prove the export of the imported merchandise on a temporary basis, it expressly stated that it did not possess imported inputs (see table attached as Annex) in order to receive important export incentives by computing the total value of what was exported. That is, it did not deduct any amount for imported inputs.
That, therefore, it cannot claim to turn against its own actions, such that it received or attempted to receive export incentives for the total value of what was exported and belatedly claim that the exported merchandise had imported inputs, despite the fact that it did not deduct the value of these.
Such conduct, worthy of criminal reproach, leads me to conclude that the fine applied by the respondent entity was correct.
VIII) That as regards the grievance of fs. 23 of the proceedings, it should be noted that the payment of taxes for the importation of merchandise, in cases of violations of suspensive destination regimes, does not have the character of a sanction, being noteworthy that the fact generating the tax obligation in such case is perfected at the time of the irregular transformation into definitive importation due to the expiration of the term, which occurred in this case as it results from the preceding point. For these purposes, the quantifying elements of the tax obligation are computed in the terms of arts. 638 inc. e) and 639 of the CA.
It does not appear that the customs had applied decree 1439/96 (which the importer complains about on page 23 of the proceedings) in the customs tax liquidation that appears on page 9 of the previous administrative proceedings.
That this customs tax liquidation computed the taxes applicable on 15/6/96, it being not disputed that this was the day of expiration of the DIT in question, in accordance with the provisions of arts. 638 inc. e) and 639 of the CA
It should be noted that the amount shown in such liquidation on pages 9 of the administrative proceedings, requested from the appellants by the appealed resolution ($9.339,51), is lower than that liquidated in the body of DIT 2596/95 ($9.984,32 and $16.854,35 items 1 and 2-).
IX) That for the reasons set forth in the previous point, the insurer's argument on pages 59/63 of the case cannot prosper.
That, in effect, on page 56 Ref. of the case, said insurer has added a copy of the Surety Insurance Policy No. 1505883/0, relative to the DIT in question, by which on 12/6/95 this co-plaintiff guarantees the former National Customs Administration cash payment up to the maximum sum of US$36.000. That is 36.000 dollars.
That the argument on page 59 back that it would not be obligated to pay the tax debt reported, because it is not final, is inadmissible, since it cannot be turned against its own acts, while the copy of the attached policy shows that: It is specifically agreed that the Insurer will be liable with the same scope and to the same extent that, in accordance with the current customs laws or regulations, the efficient cause of this insurance, it will be necessary to fully or partially affect the required guarantees... (emphasis added).
Since this is a public law obligation (customs tax obligation), the Civil Code does not necessarily apply in a supplementary manner.
That the Supreme Court of Justice of the Nation held that the supplementary nature of the Civil Code does not apply when the literal meaning of the tax regulations excludes civil principles or these are not adequate to elucidate tax problems (doctrine of Fallos, 249-256) (Tacconi y Cía. SA, of 3/8/89; Fallos, 312-1241).
That, on the other hand, La Mercantil Andina SA is not correct when it states that it only guaranteed the customs duties (page 60 back), since the insured amount has covered the tax settlement of DIT 2596/95, to which is added that the tax regime applicable both at the time of the constitution of the insurance (12/6/95) and at the time of computing the quantifying elements of the tax obligation (15/6/96) included customs duties, as well as the tax collections that customs must necessarily collect.
That, therefore, the grievances relating to the liquidation of VAT, additional VAT and collection of income tax cannot prosper (page 63 of the proceedings).
That this is so, since the generic expression taxes includes all the levies that fall on imports in the case of consumption, obviously including the value added tax, whose taxable event is configured with the definitive imports of movable goods (art. 1 of the VAT law).
That I have repeatedly held, as regards the jurisdiction of this Court, that the definitive importation or importation for consumption, to which the customs legislation refers for import duties, constitutes, legally, the same taxable event of the value added tax in relation to such imports, with the consequence that for the purposes of determining the jurisdiction of the TFN, it does not prevent art. 1053, inc. a, of the CA (to which art. 1025 of the CA refers) uses the expression "customs taxes" and does not mention the aforementioned tax, since it is not reasonable that due to the circumstance that Customs requires payment of an internal tax, which must be paid before it, and dealing with a tax linked to customs, the incompetence of the chambers with jurisdiction in customs matters is declared (The procedure before the Tax Court of the Nation and its higher instances, p. 69, De Palma, Buenos Aires, 1986. Tax Law, Volume III, 1st edition, p. 142, De Palma, Buenos Aires, 1997. Tax Law, Volume III, 2nd edition, p. 233/234, Lexis Nexis, Buenos Aires, 2002).
That, likewise, Chamber 1 of the CNCont.-Adm. Fed. Cap., in re Pereyra, Luis F., dated 2/11/93, understood -in agreement with Chamber 3, Donna SCA, dated 10/4/86- that although the then ANA is prohibited from determining the tax obligation (articles 6 to 9 of Law 20.631), it can exercise the necessary powers to establish the tax that falls on each definitive import operation and in the aspects that are specifically linked to its collection, without interfering in the remaining duties of the DGI regarding the global liquidation of the tax (Title II of Law 20.631). The VAT Law (to in 1977 and amended) was replaced by Law 23.349, which has undergone important reforms over time.
Furthermore, art. 2 of the DR of the VAT Law understands definitive import as the import for consumption referred to in the Customs Code. It does not include temporary import under art. 250 of the CA.
That, consequently, the CA applies in this aspect (as I have maintained in Tax Law, op. cit., Volume III, p. 153 1st edition - and p. 244 2nd edition-). This ordinance provides in its art. 636 that the importation is for consumption when the merchandise is introduced into the customs territory for an indefinite period of time. Let us remember that art. 639 of the CA provides that for the purposes of the liquidation of import duties and other taxes that tax importation for consumption, the tax regime, the rate, the taxable base and the exchange rate for the conversion of foreign currency into national legal tender, in force on the dates indicated in arts. 637 and 638, will apply.
In this case, I reiterate that the event generating the tax obligation occurred at the time of the irregular transformation into a definitive import due to the expiration of the term; in the sub-lite this occurred on 15/6/96 (date not disputed by the parties), without any evidence of re-exportation being in the proceedings. If the merchandise had been re-exported after that expiration, it would not have removed the tax effects of the taxed import in the terms of arts. 274 ap. 1 inc. a), 638 inc. e), 639 of the CA, with the consequence that whoever had temporarily imported the merchandise will be responsible for the corresponding tax obligations, without prejudice to the application of the corresponding sanctions.
That, therefore, the amount of the value added tax should be included in the contested tax determination.
That, furthermore, the sum reported to the insurer ($9.339,51) is undoubtedly within the limits of the insured amount (US$36.000).
That the present case is different from other cases in which the perceptions of income tax and VAT due by the insurer were excluded, due to the breadth of the text of the policy, a copy of which appears on page 56 Ref. of the proceedings, unlike the one provided in those cases.
That the appellant insurer considers that it is not required to pay VAT advances nor for the presumed profit of its insured (page 61 back of the proceedings).
That advances cannot be confused with perceptions.
That the current art. 21 (previously art. 28 of the previous ordinance) of law 11.683 - as amended in 1998 - refers to advances that differ from other payments on account such as perceptions, as I have maintained, among others, in Tax Law, Volume I, pp. 355/361 (De Palma, 1st and 2nd edition. Buenos Aires. 1996 and 1999), highlighting that art. 22 (previously art. 29) of law 11.683 establishes that the perception of taxes will be made in the same source when so established by the tax laws (it is obvious; law 11.683 is not a law superior to other laws) and when the AFIP (previously DGI), deems it convenient, determines which persons and in which cases will intervene as withholding and/or perception agents.
I have stated on that occasion that the perception at source ensures the collection, since its income can be demanded at the same time that the manifestation of wealth subject to taxation is externalized. From the psychological perspective of the taxpayer, it has the advantage of making the tax less burdensome. It is more painful to part with an amount of money that one possesses, than to be deprived of a sum that one has never received. The taxpayer values his income in terms of net product. Citing the jurisprudence of the highest Court, I have also emphasized that the responsibility "that falls on the withholding agent for the non-compliance with the fiscal duties that the law places on him is not dispensable, based on the fact that the withholding constitutes a payment on account of the tax whose demandability as such ceases after the deadline for presenting the sworn declaration of the fiscal period in question has expired - unlike advance payments -; and this, because the taxable event is verified with respect to the passive subject of the withholding, to whom the law attributes it directly. The withholding agent who does not comply, voluntarily or through his own negligence, with the duty to withhold, becomes responsible for the payment of the tax due, the only exemption being the accreditation that the taxpayer paid the respective sums (CS, 'Cintafón SRL', dated 3/4/86, 'DF', t. XLI, p. 278) op. cit., p. 360-.
That the aforementioned jurisprudence of the Supreme Court is forceful regarding the differences between advances and withholdings (or collections), considering in the latter case that the expiration of the deadline for filing the sworn declaration for the fiscal period in question does not produce the expiration for the tax authority to demand amounts in the form of withholdings (or collections).
Therefore, I vote for
1) To confirm Resolution No. 1891/01 insofar as it has been the subject of the appeal. With costs.
2nd) La Mercantil Andina SA is hereby ordered to pay within five days the sum of $211,52 (two hundred eleven pesos with 52/100; see pages 66 and 68 of the case), as a fee for proceedings provided for in Law 22.610 and amendments, under penalty of issuing a debt certificate.
3rd) Donto SA is hereby ordered to pay within five days the sum of $93,39 (ninety-three pesos with 39/100), as a fee for proceedings provided for in Law 22.610 and amendments, under penalty of issuing a certificate of debt.
4th) By signing this document, Donto SA must pay 2% of the fine for which it is effectively convicted, as a fee for actions provided for in Law 22.610 and amendments, under penalty of 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) To confirm Resolution No. 1891/01 insofar as it has been the subject of the appeal. With costs.
2nd) La Mercantil Andina SA is hereby ordered to pay within five days the sum of $211,52 (two hundred eleven pesos with 52/100; see pages 66 and 68 of the case), as a fee for proceedings provided for in Law 22.610 and amendments, under penalty of issuing a debt certificate.
3rd) Donto SA is hereby ordered to pay within five days the sum of $93,39 (ninety-three pesos with 39/100), as a fee for proceedings provided for in Law 22.610 and amendments, under penalty of issuing a certificate of debt.
4th) By signing this document, Donto SA must pay 2% of the fine for which it is effectively convicted, as a fee for actions provided for in Law 22.610 and amendments, under penalty of issuing a certificate of debt.
Register, notify, promptly return and archive the administrative records.
This document is signed by Dr. Catalina García Vizcaíno and Dr. Paula Winkler, as Dr. Gustavo A. Krause Murguiondo is on leave (see art. 1162 of the CA).
