One of the causes of extinction of the action of the Treasury to impose penalties on administrators for customs violations, contemplated in the Argentine Customs Code, is the statute of limitations (art. 929 CA). This institution is based on reasons of criminal policy (the passage of time removes full effect from the penalty as a sanction).
Also in the procedural order (it safeguards the principle of speed and procedural efficiency, which is essential to provide legal security to the accused).
Article 934 of the Code establishes that this action is subject to a five-year statute of limitations, counted from January 1 of the year following the date on which the infringement was committed or, if it is not possible to specify, from the date of its verification (Article 935 of the CA). The legislator establishes, exceptionally, that the period does not begin to be computed from the commission of the alleged infringement but rather later, in order to facilitate control and investigation by the customs service. The periods are peremptory and run in favor of the accused, as a guarantee of due process.
The statute of limitations for imposing penalties for customs violations is suspended from the time the appeal is filed before the Tax Court or the contentious claim in court, filed against the customs resolution, until a final decision is issued in the case (art. 936 CA).
Likewise, the five-year period is interrupted by the commission of another customs violation, by the commission of a customs crime, by the issuance of a condemnatory resolution at the customs office and by the issuance of the order ordering the opening of the summary (art. 937 CA). This last assumption, by itself, interrupts the prescription, and its notification is not necessary for it to achieve such legal effect, as established by the regulations themselves. This was upheld by the National Chamber of Appeals in Federal Administrative Litigation in a Plenary Ruling, dated September 23, 2003, in case TF 7830-A, entitled "Hughes Tool SA C/ ANA".
Many authors believe that this particularity affects the right of defense of the accused, since in practice the period between the issuance of the order to open the investigation and the hearing to present the defense (art. 1101) is prolonged in an abusive manner, at which time the accused must be notified, as established in art. 1037, par. f. It is worth saying that it often happens that the accused is notified of the existence of an investigation against him excessively after the beginning of the same and even much later than the reported event, with the complications that this implies. I agree that this situation undoubtedly collides with the guarantee of defense in court enshrined in our National Constitution in art. 18 and in the International Treaties incorporated into our National Constitution, based on art. 75, par. 22.
The administrator will proceed to open the infraction investigation when there are sufficient elements to consider prima facie that the complaint for the alleged infraction committed is credible. It is a procedural act that begins and continues the file, where the necessary measures will be taken to clarify the facts. It is ordered only once and subsequently, the actions taken must be brought to the attention of the alleged responsible parties so that they can exercise their defense (art. 1101 of the CA)
The purpose of the administrative summary is to verify the existence of the customs violation, determine those responsible, find out the relevant circumstances for its legal classification and the gradation of the applicable penalties. The administrator may also order all the measures he considers necessary to ensure compliance with the penalties that may be imposed in the event of a conviction.
Article 1094 of the Code establishes that in the resolution ordering the opening of the investigation, the administrator shall determine the facts deemed to constitute the infringement and shall order a) the appropriate precautionary measures in accordance with the nature of the facts being investigated; b) the verification of the infringing merchandise, with a summons to the interested party and the tariff classification and valuation thereof; c) the receipt of the statement of the presumed responsible parties and of the persons who witnessed the events or who may have knowledge of them, when deemed necessary; d) the liquidation of the taxes that may be applicable; e) the other proceedings leading to the clarification of the facts investigated.
It is an administrative act of significant importance. The administrator has received a complaint and has the option of dismissing it, extending the investigation or ordering the opening of the summary, considering that there are sufficient reasons to proceed with the procedure in order to determine whether the reported facts constitute a customs violation and who is responsible.
It is vitally important that the administrator verify, prior to opening the investigation, that the premises given by the code have been complied with and that there is a clear delimitation of the facts investigated. In the case of the act prior to the hearing of the alleged responsible parties for all the actions, it is essential to carry out a survey of the acts carried out in the file, ordering those pending production, so that the accused can properly exercise his right of defense.
As an administrative act, in order to assess its validity, the defects in its elements established by the Law of Administrative Procedures (articles 7, 8, 12, 14, 17 and following of Law No. 19.549, BO27/04/1972) must be analyzed. I think it is appropriate to highlight what Agustín Gordillo said when referring to the purpose of the administrative act, in that he points out that just as in the administrative procedure or process there is the principle of informality in favor of the individual, in terms of administrative acts it can be postulated that the rule is the formalities of the act, in the sense that they are conceived as a guarantee for the citizen and as such they must be applied and interpreted. It is not, therefore, a matter of mere questions of form, but of formalities that must be fulfilled to safeguard legality. They are extrinsic safeguards established by law to avoid thoughtless, hasty, insufficiently studied decisions, to which have recently been added more and better intrinsic safeguards that the act must satisfy.
In practice, the opening order, on repeated occasions, becomes a merely enunciative act where, far from containing the elements established by art. 1094 of the CA, it is issued solely for the purpose of interrupting the prescription.
In this context, we find some rulings by the Tax Court in which the act of opening the summary was declared null and void for not meeting the requirements of art. 1094 of the Customs Code. Consequently, since the prescription period has not been interrupted - and everything done subsequently is null and void - the prescription of the action of the Treasury to impose penalties is declared. This was ruled by Chamber "F", in the proceedings entitled "AGENCIA MARITIMA TAGSA SA c/ DGA", file No. 27.174-A, judgment dated 26/09/13, and in "HAMBURG SUD SUCURSAL ARGENTINA c/ DGA", file No. 27.895-A, judgment dated 2/05/13, among others.
In other cases, we find that the claim of prescription of the action of the Treasury to impose fines is rejected by strict legal application of art. 937, finding the opening order as an act that interrupts the prescription by its mere issuance without the need for it to meet the elements of art. 1094, which could be met later, for example in the review of art. 1101 (see what was stated by the majority of Chamber "G" in the case "CEARCA SA, c/DGA", File No. 25.681-A, judgment of 13/10/11).
On the other hand, we find a lot of jurisprudence from the Tax Court that adheres to the doctrine of the Supreme Court of Justice, which states that when the restriction on defense in court is invoked with respect to the procedure that is being carried out in an administrative headquarters, the effective violation of art. 18 of the CN does not occur as long as there is the possibility of correcting said restriction in a later jurisdictional stage (Fallos, 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" (Fallos, 205-549, consid. 5º and its citations). Based on this argument, most of the claims for nullity against the administrative procedure, among which we find the case under study, are rejected due to the possibility that the administered party has to develop its defense in the higher instance, applying the nullity in a restrictive manner ("RENEDO MARCELA ALEJANDRA", file No. 24.233-A, Room F, 15/11/11; "COMETTO, FLORINDO SANTIAGO MIGUEL", Room F, File No. 24.763-A, 08.02.10/24.616/28; "ANAEROBICOS SA", file No. 09-A, Room F, 10/24.053/4; "PREISS HUGO OSCAR", file No. 03-A, Room F, 11/XNUMX/XNUMX; among others).
As I have previously stated, the purpose of the preliminary infraction investigation is to determine those responsible for the infraction under investigation, therefore, I understand that if they are not identified in the opening order, it is not a circumstance per se that would invalidate the act. This was ruled by Chamber "E" in its former integration in the case "DE LA CRUZ JORGE c/ DGA", file No. 25.609-A, judgment of 14/09/09, among others. This is related to the fact that the opening order of the preliminary infraction does not require notification, which is perfectly justified by the fact that at the time of its issuance, those responsible for the illegal act may not be identified.
Regarding whether the Tax Court should declare ex officio the nullity of the opening order even if it has not been raised by the party, I believe that the courts should seek to defend constitutional guarantees, especially when there are manifest nullities of the acts issued by the administration.
With regard to the statute of limitations, the Court has stated that “the statute of limitations is a matter of public order, it operates by the mere passage of time and must be declared even ex officio by the Court in order to avoid the continuation of an unnecessary trial” and that “the statute of limitations of the action is closely linked to the right of the accused to a ruling without undue delay (…), and that said exception constitutes the appropriate legal instrument to safeguard the right in question” (Bossi and García SA TF 5.932-A c/DGA, judgment of 8/11/11, B. 1229XLIII).
In order to conclude the subject of study, I share the solution given by the Tax Court which declares the nullity of the order to open the summary whenever an analysis is carried out in each particular case, since many times, for example, the order to open the summary does not contain all the elements in itself, but these are sufficiently gathered in advance or the necessary measures are provided in the order to open the summary to gather them.
Doctrinal Reference
- Argentine Customs Code
- «Annotated Customs Code», Mario A. Alsina, Enrique C. Barreira, Ricardo Xavier Basaldúa, Juan P. Cotter Moine, Héctor G. Vidal Albarracín, Abeledo Perrot Publishing House, August 2011.
- «Customs Procedures», Julio Carlos Lascano, Buenos Aires, Osmar D. Buyatti Publishing House, July 2011.
- «Treaty on administrative law and selected works», Agustín Gordillo, volume III «The administrative act», 10th edition, FDA, 2011.
- “Administrative Law”, Cassagne Juan Carlos, volume II, Buenos Aires, Editorial Abeledo-Perrot, 1985.
Author: Dr. María Alejandra Sabic, rapporteur of the 17th Chamber, "Room "F", National Tax Court
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