Recently the General Technical Legal Customs Subdirectorate has issued a report (1) making an analysis regarding requests for tax liquidation as a consequence of the extinction made possible by the framework of Law 27.541, based on the regularization of tax obligations in customs criminal cases.
While we agree with your analysis regarding the taxable event and its effects on customs tax matters, we consider that it deviates from certain guidelines that the Customs Code establishes regarding importation and its consequent state of mandatory payment of taxes in different cases, among others, smuggling, whether completed or attempted.
Customs tax imposition based on a regular or irregular event
The law is clear in determining the taxable event for imports and as the report points out (1) Importation for consumption will be understood when the merchandise is introduced into the customs territory for an indefinite period of time. (art. 636 Law 22.415).
But here we must point out that not always the taxable event It is uniform for all taxes that make up the universe of customs duties and, not in all cases, in order to be faced with a tax obligation, the budget for the delivery to the place is required.
It is enough to observe that the Customs Code –Law 22.415– this concept does not apply taxable event for other taxes, such as the different customs rates, that is, the requirement for the entry of merchandise must be present for an indeterminate period of time. Likewise, in the presence of irregular events, a substantial diversity is evident, both in relation to the enforcement of the aliquot, as in those who are the obligated subjects.
The report itself (1) commented, recognizes in the standard the existence of irregular events, but introduces a limitation in the cases specified in the law regarding the taxable effect. By stating:
“The completion of the taxable event varies according to the case, but there is always one element in common: the introduction of the merchandise for an indefinite period into the customs territory, which is presumed iuere et de iure by the Customs Code. This occurs, for example, with respect to merchandise missing upon unloading, where the shortage was not justified in the manner provided (see art. 142, 151, 157 and 164 of the CA), or those that have been subject to a temporary import destination, due to the expiration of the granted period or non-compliance with the purpose (see art. 274 of the CA), among other cases. The same occurs with clandestine introduction, since, in the absence of a destination request (this being enforceable), a suspensive destination cannot be presumed, since they constitute exceptions to the general regime and are granted by the service.”
However, there are different situations where there may be conduct that is typical of the crime of smuggling, but no import or export for consumption is completed. Such is the case of the conduct described in art. 864, paragraph e) of the CA, where the customs operation or destination is simulated. The same situation occurs in cases where the conduct is considered typical of the crime of smuggling, whether attempted or completed, but the import or export for consumption of the goods has not been achieved. (1)
From what is stated by the customs area, it would seem that we would be in the presence of a new look regarding the smuggling and the assumptions of irregular taxable event. This is due to the observation that it separates customs crimes from the obligations arising in tax matters as long as it is not a case of clandestine smuggling. Which brings us to the following analysis.
It should be remembered that Article 863 of the Customs Code penalizes Any act or omission that prevents or hinders, through trickery or deception, the proper exercise of the functions that the laws grant to the customs service for the control of imports and exports. Showing that customs control has its essence in the inspection of imports and exports. And if we broaden the view to article 864 of the CA, it is noted that all the assumptions specified by the legislator as smuggling, meet the requirement of being before imports or exports. Even in the case of simulation (Incidentally e).
So then, following the line of the legal technical report (1) If the customs authorization had not been obtained to allow entry into the market, due to the fact that an irregular situation was established, the import would not have been completed and no tax obligation would have been incurred, including those that could have been paid. –import clearance formalized- reported prior to their release. The tax improperly collected by customs must even be returned to the taxpayer in accordance with this criterion.
It is true that the law -22.415- when recognizing the irregular taxable events, expressly states them without the possibility of a different interpretation and in this way, expands the taxable facts, determined that When any of the following events occur, the import duty established by the regulation in force on the date of: a) The commission of the crime of smuggling or, if it cannot be specified, on the date of its verification shall apply. (art.637 of the CA).
In this way the legislator imposes the tax –the import duty– by establishing its express application in those facts other than the regular ones referred to in articles 635,636,637 of the CA, pointing out among these facts, the commission of the crime of smuggling. Leaving no doubt that the facts generated by smuggling are not only a result of irregular events, but because of the effect of being taxable They will be subject to import duties, without differentiating between cases where the merchandise is in a secondary zone or remains in a primary zone at the time of verification.
When the Customs Code in its art. 635 mentions that the import duty is levied on imports for consumption, it means that the import that must be taxed is that whose merchandise must remain indefinitely in the customs territory, regardless of whether it entered in a regular or irregular manner. Furthermore, whenever there is a smuggling crime, it is presumed that the merchandise has entered the customs territory for the purpose of indefinite stay, for which reason the taxable event is complementary to the action or omission and is perfected with the configuration of the crime.
In the case of goods that have entered the country but have remained in the primary zone without being given a customs destination, but subject to a smuggling process, the taxable event arises from their irregular introduction into the customs territory, which means that there is a taxable moment that may be the date of verification of the crime. To consider that because they have not been given a destination for import for consumption, they do not entail the relevant tax imposition, is to distort the nature of the crime of smuggling, which, as a complement, carries with it the fiscal benefit sought, whether clandestinely or through other modalities.
Remembering that every import turns out to be the entry of merchandise into the customs territory (art. 9 of the CA) and in order to perfect your pass to circulation within the secondary zone –whether definitive or suspensive in nature, All steps concerning import traceability must be followed, i.e. –Arrival of the means of transport (art. 130 CA), declaration of manifest (art. 135 CA), unloading (art. 191 CA), provisional import deposit (art. 198C.A.), officialization of dispatch (art. 217C.A.), verification (art. 241C.A.), release to plaza (art. 231C.A.)– The result of all these processes will lead to the formation of –in the face of a definitive import destination– the taxable event for the application of the tax –import duty-. But this only refers to an ordinary fact of the so-called, regular facts.
Now, if during any phase of this process an irregularity is detected that meets the elements of the crime of smuggling, the customs service stops the traceability based on its exercise of control and when this happens, it is the law that changes this regular fact into an irregular taxable event, without prejudice to the fact that the release to the place has been achieved. With its consequent state of fact generating the tax obligations.
Here the tax collection system should not be confused with the determination of the facts that lead to the imposition of the payment of a tax. Therefore, in a regular fact, the determination of the tax is aligned with the taxable moment established by art. 636 of the CA, which does not coincide with the tax generating event that would result from the payment to the place -indefinite income-. But this is totally different in the irregular taxable events, where if the event generating the obligation coincides with the taxable moment, as well specified in art. 637 of the CA and from its configuration or verification, the tax will become payable, without prejudice to the merchandise having been delivered to the market. Coinciding with extensive doctrine, "When the import for consumption occurs irregularly, the moment in which the elements for liquidating the import duties are established will be the one corresponding to the application of art. 638, which will coincide with the moment of the configuration of the taxable event, since in these cases, being irregular, there would be no prior payment and, consequently, there will be no need to establish a moment chronologically prior to the configuration of the taxable event to liquidate the taxes, because these will only be paid by demand of the customs service, which will take place when the configuration of the event is noted."(2) ( according to the Commented Customs Code – Mario A. Alsina; Enrique C. Barreira, Ricardo Xavier Basaldúa; Juan P. Cotter Moine, Héctor G. Vidal Albarracín Volume II, page 325, Editorial Abeledo Perrot)
Also, the article 782 of the CA., defines who will be liable in customs tax matters in the event of an irregular event such as smuggling, without the possibility that such an event stops the budget for the release of the merchandise to enforce the requirement of such taxes.
Consequently, the improvement alleged in the legal technical report (1) as a requirement to sustain the taxable event in import –indefinite income– it is different if it is a regular or irregular event. In the first case, the merchandise is subject to a customs destination or it can also be through a simplified regime of those regulated by law 22.415 –E.g. Baggage regime – and before the customs control its entry to the place is authorized. But in the second case, the release to the place is not configured, due to its detention and complaint made by the customs bodies, generating a fact that despite its absence of entry to the place, it is an import in terms of art. 9 of the Customs Code and consequently the legislator imposes the tax considering it a taxable event of the so-called irregular ones.
It should be noted that both events, whether regular or irregular by express imposition of the norm, have in common the obligation to pay taxes. And we dare to point out that in both cases, the assumption of their permanence for an indefinite period within the customs territory is given, one by order of the authorization of release to the place by the person who has the power to control international traffic of merchandise -Customs- and another by the lack of authorization based on the report of smuggling, but with the effects of remaining in the customs territory, whether for its confiscation, official clearance, auction, sale, donation, which the same control authority establishes based on what is prescribed by the Law. -article 876 inc. a, 417 and cc Law 22.415, Law 25.603-.
Merchandise in primary zone
With respect to those goods that are in the primary zone and were found to be in a state of smuggling, the basis of the report (1) as to: “It is noted that said goods have remained at all times in the primary customs area and, since it was so ordered, at the disposal of the competent judicial body. Taking this into account and, in virtue of the above, these goods were not imported for consumption, so the taxable event was not perfected and, consequently, no tax obligation arose.”(1) In our opinion, it does not align with the precepts of the law.
In your case, you would only be making a reference to the regular facts, without considering the presence by Law of the irregular eventsObviously, if the goods have remained in the primary zone, it was precisely because in the import traceability process –Arrival of the means of transport (art. 130 CA), declaration of manifest (art. 135 CA), unloading (art. 191 CA), provisional import deposit (art. 198C.A.), officialization of dispatch (art. 217C.A.), verification (art. 241C.A.), release to plaza (art. 231C.A.), the customs office confirmed a state of smuggling, imposing its detention and permanence in the primary zone, giving rise, as previously indicated, to the birth of an event that the law determines in customs tax matters as irregular.
In this sense, the observation that this set of goods has remained at all times in the primary customs zone is not an element to ignore what the law expressly teaches regarding the irregular events, resulting not only in criminal customs matters, but also generating tax obligations (art. 638 of the CA).
To this must be added the criterion of the absence of the budget of having entered the customs territory for an indefinite period, without prejudice to highlighting again that it is not an element that should be presented in irregular events, it is worth remembering that from the Decree No. 51/2017, in exercise of the powers arising from the ex officio dispatch regime -Article 417 and cc Law 22.415, Law 25.603– It is observed that due to its effects, the budget for entry for an indefinite period into the customs territory was added to all these goods, beyond whether they have been transferred to immediate donation or that due to the effects of criminal cases, they remain within the scope of justice.
Possible effects of the criteria developed in the legal technical report
On the other hand, if the customs criterion is to consider that these goods remained in the primary zone without having complied with the precept mentioned in the report (1) -destination for consumption- At the time of detection of smuggling, there could be cargoes with an expiration date required by law for destination (articles 199,217,218,222 of the CA), implying that there would have been abandonment of the merchandise prior to the criminal complaint and if this were so, based on the report (1) This would not be an attempted case of smuggling.
Obviously, because the traceability of the import process was not interrupted by the customs service, but by the individual's own decision, not presenting the budget for the type of attempted smuggling.
In short, from the position of the legal technical report (1) as regards: It is noted that the said goods have remained at all times in the primary customs area and, since it was so ordered, at the disposal of the competent judicial body. Taking this into account and, in virtue of the above, these goods were not imported for consumption, This would be a case of abandonment and, as has been pointed out, a non-existence of a criminal state.
It should be noted that the law determines that for a state of the criminal type of smuggling in the degree of attempt, the interruption must occur due to the effect of the intervention of controls and not by the will of the subject -repentance-. If these conditions are met, there will be a customs offence, an irregular taxable event and a tax requirement.
However, in the case of considering that the goods have remained in the primary zone and from that, the verification of some irregularity has been made, but already in the presence of having produced the action of voluntary abandonment of the subject to continue with the traceability that would result in the import for consumption, it would not be present, as indicated in the legal technical report.(1), of a tax obligation since there is no regular event, but neither is there an irregular event. Consequently, there would be no crime.
Conclusion
The fact that the Executive Branch is empowered to make decisions on economic policy does not imply recognition of the power to legislate on tax matters, and even less so on criminal matters. In this sense, those who hold the power to inspect and collect taxes and customs duties cannot make changes to the precepts expressly established in the tax and criminal framework, not only based on Law 22.415 itself, but also due to the effects of the amnesty scheme implemented by the National Congress based on Law 27.541.
In this sense, we align ourselves with the words of the Drs. Guillermo Vidal Albarracín and Santiago Vidal Albarracín, in their conclusions on the work (3)“End of Criminal Proceedings in the recent customs amnesty law” – published in Diario Judicial:
For all the above, it is important to highlight that this is a regularization regime that is based on the aforementioned constitutional principles of prohomine and in dubio pro reo, as well as on the principle of legality (arts. 18 and 19 of the CN) and the exclusive jurisdiction of the National Congress for the purposes of determining the tax, its essential elements, the content and scope of the amnesty entailed by Law 27.451 and the releases from criminal actions established by this special regime (cfr. art. 4, 52, 75, inc. 1, 2 and 20 and 99, inc. 3 of the CN).
Regarding the latter, it is worth remembering that our Supreme Court has stated that "the National Constitution does not exclude the possibility of Congress legislating on other contents of the amnesty, as long as its essential character of general amnesties is maintained, since the amnesty is essentially general, covers all cases involved in a class of crimes, and is the responsibility of the Legislative Branch, the only branch that has the power to declare the criminality of acts, to create sanctions and to erase their effects."
And thus, the determining cause of acceptance (and its success) is the trust placed in the State, not only in its future management capacity, but in the conduct of its implementing bodies in fulfilling the benefits offered by Law 27.541.
The latter implies the commitment to a broad interpretation in favor of the taxpayer of all those aspects omitted or unclear in its letter, in order to achieve the recovery of the MSMEs, even more so now that the emergency situation that led to the issuance of the regime in question, deepened with the crisis generated by the pandemic. (according to the note End of Criminal Action in the recent customs amnesty law – published in Diario Judicial on June 17, 2020).
Justice must act with the objectivity and impartiality that must always characterize those who have the task of administering justice. Duly combining Law 27.541 and Law 22.415, to thus warn that in justice, regardless of whether one agrees or not with the amnesty ordered by the National Congress, it has been precise and therefore covers all customs cases. Not allowing differentiations, neither in its criminal type, nor in the cases of irregular acts and the scope of the tax obligation.
(1) Report of 11.6.2020 of the General Subdirectorate of Customs Legal Technology – AFIP – “The taxable event for import duties and its perfection”, –
(2) Commented Customs Code – Mario A. Alsina; Enrique C. Barreira, Ricardo Xavier Basaldúa; Juan P. Cotter Moine, Hector G. Vidal Albarracín Volume II, page 325, Editorial Abeledo Perrot )
(3) Drs. Guillermo Vidal Albarracín and Santiago Vidal Albarracín, in their conclusions on the work “End of Criminal Proceedings in the recent customs amnesty law” – published in Diario Judicial.
By: Guillermo Felipe Coronel and Guillermo J. Sueldo, Lawyers specializing in Customs Law.
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