In Buenos Aires, on the 24th day of the month of October 2000, the members of Chamber "E", Drs. Gustavo A. Krause Murguiondo, Catalina García Vizcaíno and Ms. Paula Winkler, met, with the first appointed member presiding, in order to render judgment in the proceedings entitled: "DOW QUIMICA ARGENTINA SA, v. General Directorate of Customs, s/appeal for protection, file no. 14.568-A."
Dr. Krause Murguiondo said:
I.- That on pages 10/14 the signature of the epigraph, through its representative, files an appeal for protection against the delay of the customs service in processing the request for refund that it submitted with respect to import clearance no. 98 001 IC04 006966-X. It states that on 17.9.99 it requested from Customs the refund of sums paid in excess as a statistics fee, in accordance with decree no. 37/98, which gave rise to the initiation of file no. 435.460/99. It indicates that, up to the date of its presentation before this Court, it had been impossible for it to take a look at the proceedings, therefore it is unaware of their procedural status, knowing only that, as of 6.4.2000, they were filed in the Registry and Crossing office. In the alternative, he lodges an appeal for delay, in accordance with article 1159 of the Customs Code. He states that on 25.2.2000 he requested the prompt dispatch of the proceedings, and that submission was registered as file number 407.727/00. He complains that, one year having passed since its commencement, the customs office has not issued a ruling in the proceedings in question, despite the fact that the requirements relating to requests for refund required by Resolution ANA 3428/96 have been met in the case. He cites case law in support of his claim. He considers the application of astreintes in his favour to be equitable. He requests that his appeal be upheld and, where appropriate, that filed in the alternative, with this Court being called upon to hear the case. He requests costs.
II.- That on pages 26/28 the fiscal representation adds the report that was requested on pages 23. It makes a series of considerations justifying the inadmissibility of the appeal for protection, as well as the appeal for delay filed in a subsidiary manner. It refers to the different procedures carried out at the customs office. It requests the rejection of the appeal in question with express imposition of costs.
III.- That, considering the state of the case, on page 28 back they are brought to the attention of Chamber "E".-
IV.- That in the file for which protection is required, the amount for which the tax refund is requested does not exceed $2.500.-
That art. 19 of law 25.239 modified art. 1025 of the Customs Code, in its sections a) to d) establishing the jurisdiction of the Court for amounts exceeding $2500.
That, although said limit has not been expressly set for section e) of art. 1025, the limitation of jurisdiction for matters of less than $2.500.- in the amparo appeals arises by necessary implication. In effect, if in order to resolve the merits of the cases the Court, for the reasons that the legislator has taken into account, cannot intervene when the amount at stake is $2.500.- or less, "a fortiori", that is to say, with greater reason said limit is applicable to matters such as the request for a prompt dispatch that is required through the amparo appeal. In my opinion, then, it is appropriate to declare the incompetence of the Court to hear the case.
That, notwithstanding the foregoing, and knowing the majority opinion of the Chamber in favor of the jurisdiction of the Court, I must rule on the request contained in the appeal for protection, and in this regard I refer to the following Considerations.-
V.- That, then, it must be resolved in the proceedings, on the admissibility of the appeal for protection filed by the plaintiff in relation to file no. ADGA 1999-435.460.-
That it begins with the request for a refund of amounts unduly paid in the form of taxes -import- submitted on 17.9.99 by the company Dow Química Argentina SA, regarding import clearance no. 98 001 IC04 006966-X (pages 1/5). On 25.10.99 the proceedings are turned over to the Collection Control Section, which receives them on 19.2.00. On page 12 a list of allocated warehouses is included in which the clearance in question is recorded, whose folder is on page 14. 2411. In accordance with the request made in note no. 00/11.10.00 (DV TRIB), on 15/2000/407.727 the proceedings were sent to the Tax Causes Division (page 25). File ADGA XNUMX-XNUMX is added by string, under which the request for prompt dispatch submitted by the plaintiff dated February XNUMX of the current year was registered.
VI.- That from the account given in the preceding recital it clearly arises that the excessive delay that article 1160 of the Customs Code provides for in order for the appeal for protection to be brought before the Tax Court has occurred in the case, and therefore it is appropriate to grant it. In effect, the procedural activity of the customs service in the procedure for the repetition of the sub-lite was limited to the addition of the list of allocation of resources that appears on page 12 of the administrative proceedings -the one dated 29.2.00- and the file of the import office involved in the case. Thus, almost eight months having passed since the indicated date, the procedure has not yet been considered to have been initiated nor has any order been issued for the purposes of its continuation. This, without prejudice to the request for prompt dispatch that was submitted in this regard on 25.2.00 (see file ADGA 2000-407.727 which is added by string to the administrative file).
VII.- That, notwithstanding the above, it should also be noted with regard to the appeal filed in a subsidiary manner, that it is not appropriate to enable the remedy for delay provided for in art. 1159 of the Customs Code, since despite the delay evidenced by the proceedings, it is the doctrine of this Chamber "E" that for it to proceed it is a requirement that the delay occurs in the issuance of the resolution that decides the procedure, in this case of repetition, for which it is necessary that the administrative file be at that stage, a situation that is not configured in the case, as was previously shown (cfme. judgment of the CNACAF, Chamber III in re "Volkswagen Argentina, of 26.4.88). Likewise, and to the extent reasonable, the primary function of the Director General of Customs in resolving the repetition must be safeguarded, cf. art. 1020 of the CA and art. 9, ap.2 incs. a) and g) of decree 618/97. This is so since the appeal for protection of arts. 1160 and 1161 of the Customs Code is not a procedural remedy instituted to give jurisdiction to the Court to hear a tax or other controversy, but merely to order, if appropriate, the General Directorate of Customs to put an end to situations of excessive delay in carrying out procedures under its responsibility or in issuing resolutions to be adopted.
VIII.- That, furthermore, given the particular nature of the institution of protection in the Customs Code, the imposition of astreintes requested by the plaintiff is not appropriate.
Therefore I vote for:
To grant the appeal for protection filed by Dow Química Argentina SA and order the General Directorate of Customs to produce within seventy (70) days, counting from the receipt of the administrative proceedings, the measures, opinions and diligences of better provision that it deems necessary. After this period, within twenty (20) days, a legal opinion must be issued on the merits of the matter only in the event that at the time of resolving the request for refund the administrator or administrative judge is not a lawyer, and the documentation and measures for better provision that it deems necessary must be added. After this period, a new period of thirty (30) additional days will begin to run to issue a definitive resolution, under penalty of communicating the eventual non-compliance to the Federal Administrator of the AFIP. With costs.
Dr. García Vizcaíno said:
I agree with points I to III, V, VI and VIII of Dr. Krause Murguiondo's vote
As regards the above-mentioned by the Member in point IV) of his vote, I consider that the appeal for protection should prosper, without being hindered by the amount of $1659,98 whose return the appellant has requested, since Law 25.239 has not modified section e) of section 1 of art. 1025 of the CA, so that for the filing of appeals for protection in customs matters, the legal system has not set a minimum amount.
That this interpretation - in my opinion - is consistent with the principle of defense in court guaranteed by art. 18 of the National Constitution and international treaties (e.g., art. 8, paragraph 1 of the American Convention on Human Rights and art. 14, paragraph 1 of the International Covenant on Civil and Political Rights) that have constitutional hierarchy according to art. 75, paragraph 22 of the CN
That, consequently, full effect must be given to the intention of the legislator, as demonstrated by the failure to establish minimum amounts in the appeals for protection of the nature of the one in question, adopting a hermeneutic that is consistent with the principles and guarantees of the National Constitution.
That's how I vote.-
Dr. Winkler said:
I agree with Dr. García Vizcaíno's vote.
Pursuant to the foregoing agreement, by majority, IT IS RESOLVED:
To grant the appeal for protection filed by Dow Química Argentina SA and order the General Directorate of Customs to produce within seventy (70) days, counting from the receipt of the administrative proceedings, the measures, opinions and diligences of better provision that it deems necessary. After this period, within twenty (20) days, a legal opinion must be issued on the merits of the matter only in the event that at the time of resolving the return request the administrator or administrative judge is not a lawyer, and the documentation and measures for better provision that he deems necessary must be added. After this period, a new period of thirty (30) additional days will begin to run to issue a definitive resolution, under penalty of communicating the eventual
non-compliance with the Federal Administrator of the AFIP. With costs.-
Register, notify, promptly return and archive the administrative proceedings.
