The head of the General Directorate of Customs, Guillermo Michel, said this Wednesday (16.11.2022) that "it is important to understand that the use of the exchange of customs information is useful to determine the burden of proof and price."
Michel made statements at a conference organized by the Tax Courts Commission of the Argentine Association of Fiscal Studies (AAEF) on “Under and over billing: new considerations from the Tax Court regarding the burden of proof.”
"This concept linked to evidence was generated incipiently with the Maltería Pampa SA ruling of Chamber III of the Federal Administrative Litigation Court (October 2021)," he said.
Michel commented that Customs “has evolved in the systems of information exchange, as well as in the mechanism to determine the value of products, for example: lithium.”
To expand on this concept, he referred to the principle of “economic reality” in tax law. “This principle was reflected in the Supreme Court ruling in the Molinos Río de la Plata case, which strengthened the powers of the Federal Public Revenue Administration (to analyze, audit and, eventually, question aggressive tax planning) regarding the incorrect application of the double taxation agreement between Argentina and Chile,” he said. He made it clear: “The same should be applied in the customs area with respect to evidence and price.”
lithium, a case of under-invoicing in exports
Michel explained the specific case of lithium exports: “Customs has issued a notification within the scope of the administrative procedure regarding the valuation of under-invoicing.”
He also pointed out that the same product exported by the two producers - located in Catamarca, Jujuy and Salta - was used, the local comparable was taken, and the same product from similar producers in the region, such as Bolivia and Chile, was also compared. In this regard, the head of Customs stressed that "Argentina, Bolivia and Chile, plus Australia, generate 70% of the lithium worldwide."
“It is very important to understand that we have no other way to obtain proof and justify the under-invoicing of lithium exports,” Michel stressed. In his words: “The product It is not a commodity, therefore, it does not have a transparent market. In addition, obtaining reports from foreign consultancies was impossible since the lithium process in Argentina is different from that in Australia and China.”
"We are going to have to do a lot of work to defend our position regarding what we understand to be reasonable evidence to obtain," concluded the head of Customs.
The last academic meeting of the association dedicated to developing research, study and improvement of the tax system was also attended by Dr. Guillemo Lalanne, President of the AAEF; Dr. Pablo Garbarino, Member of the TFN; Dr. Juliana Paccini, Legal Secretary of the 6th Chamber of the B of the TFN and Dr. Pablo Sebastián Borgna of the General Technical Legal Customs Subdirectorate for the AFIP-DGA.
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