Customs, through general resolution no. 2730 referring to the “Value Control System”, when establishing the need to introduce an import operation for study due to its value, is known to require guaranteeing the tax difference generated by such a possible value recomposition.
Once the study has been carried out by Customs, the following may occur: a) The documented value is approved or b) the value is recomposed and a charge is generated for the purposes of requesting the new liquidation of taxes. In this context, if the taxpayer makes a “voluntary payment” of such a charge, it is extinguished as a result of having been paid. However, the importer also has the possibility of “disputing” such a requirement, choosing to enter such controversy into the “challenge procedure” regulated in art. 1053 of the Customs Code. So far, the regulatory framework clearly grants the possibility of exercising the proper "right of defense" against tax demands due to the Customs' reestablishing the value of the goods. But the controversial issue regarding general resolution no. 2730, arises from the criteria chosen by the "customs service", as to what extent the importer must be obliged to guarantee in order to be able to file or keep open the "challenge procedure" until a definitive resolution. This is where the next question arises: is it legitimate not to release the guarantee initially constituted? If an analysis is made of the rules that support the framework of the “challenge procedure” – art. 1053 Law 22.415 -, it can be seen that there is no requirement to introduce such a resource in order for the taxpayer to defend his declaration. Therefore, it does not seem appropriate that once the merchandise has been released to the market and making use of the exercise of defense against a charge that arises after the release, the importer should be faced with the requirement to constitute a guarantee in favor of customs. Although this is observed in practice and the taxpayer can exercise his right of defense, without any request for a guarantee on a new tax assessment after issuance, the same does not apply to the return of the guarantee that was established as a result of the value study to which it was subjected before its issuance in terms of general resolution 2730. It is worth asking then, why should a guarantee that was established as a requirement prior to the release of the merchandise due to the “value control system” be maintained? Without a doubt, such a requirement acts as a requirement that coerces the due exercise of the guarantee of defense enshrined in the National Constitution – art. 18 CN – and in the customs regulation itself – law 22.415 – where it is not required to guarantee for the purposes of seeking to file an appeal – art. 1053 CA But it is even more serious that the guarantee is not returned in the event of a "challenge procedure", when the taxpayer intends to stop the course of interest while the controversy initiated here lasts and voluntarily decides to make a cash deposit in accordance with the terms of art. 796 of the Customs Code. The aforementioned article establishes that the interests provided for in article 794 of the Customs Code shall accrue until “the time of payment”; “granting of a stay or filing of a tax enforcement claim” or “until the disputed amount is guaranteed with cash”, delivered as a deposit at the customs office ( Cfr. Art. 796 of the CA ). It is clear then, that if an importer deposits in cash and with such a mechanism, the law provides that it will not accrue further interest throughout the duration of the challenge procedure until its final resolution; it is evident that Customs is fully guaranteed of its payment – capital and interest -, giving no reason to the “customs service” to deny the return of that guarantee constituted at the beginning of the value study in the terms of general resolution no. 2730. This is explained because, according to arts. 2189, Inc. 1 and 2220 of the Civil Code, this is an irregular deposit in which, in accordance with the provisions of art. 2221 of the same code, the treasury can use the money received in such capacity, invest it, make it yield profits, etc., as if it had been received in payment. (cf. Commented Customs Code – Mario Alsina; Enrique C. Barrera, Ricardo Xavier Basaldua; Juan P. Cotter Moine; Hector G. Vidal Albarracín – volume II (arts. 466 to 819) – p. 893 – Ed. Aneledo Perrot In this clear sense, it is the law itself that establishes it and consequently; what the "customs service" maintains when it points out in response to the request to release the guarantee due to the provisions of art. 796 of the Customs Code, which states: “…2. In the aforementioned cases, the guarantees established would be released when: 2.1 From the study of documented value it is concluded that it is accepted by this Federal Administration; 2.2 The aforementioned term expires (including its extension) without this Federal Administration having made a decision in this regard; 2.3 The debt that this Federal Administration may eventually claim for adjustments to declared value is cancelled. For the reasons stated above, this body understands that what was requested by the importer does not fit into any of the aforementioned assumptions, and therefore it is not appropriate to release the guarantee established" (cfr. NOTE 4489/12 DV CEDI – 04/Dec.2012). Obviously, even though the lower-ranking rule – general resolution no. 2730, may establish three reasons for which the guarantee will be returned, this cannot ignore or go against the precepts governed by law 22.415. Doing so not only affects the constitutional principle of precedence of norms – art. 31 CN – but, it undoubtedly moves away from the sense of fundamental “reasonableness” that must pre-exist before a decision, where the mere alignment of the law with the regulations of lesser value – RG2730 – leads to: a) if the guarantees are returned for the cancellation of the debt that this Federal Administration may eventually claim for adjustment of the declared value (point 2.3 res. gral. 2730); b) art. 796 of the CA, equates the cash deposit with payment, given that the latter – cash deposit – covers the “total payment”, leading to the suspension of the interest and c) that the treasury can make use of this deposit in the terms indicated above; there is no doubt that not only should the interest cease; but any guarantee that may have been constituted before customs in advance should be returned. Otherwise, there would be an undue retention of assets, producing confiscatory effects, since the treasury not only has custody of the payment through the deposit in accordance with the terms of art. 796 of the Customs Code, but rather a guarantee that only harms the importer, without any reason. Generating unnecessary expenses and affecting one of the fundamental constitutional guarantees, such as the guarantee of private property.
Dr. Guillermo Sueldo
Aduana News is the first Argentine customs newspaper to launch its digital version. With 20 years of experience, its publications and initiatives aim to provide the most relevant knowledge on customs issues in order to contribute to safe trade in the region.
