As we well know, Customs suspends from the registry of importers and exporters those who are prosecuted for any customs, tax or social security offense, until they are acquitted by a final judgment or resolution ().
In 2003, in order to stimulate trade, the lifting of the tax was permitted as an exception by providing a sufficient guarantee to protect the fiscal interest involved (). The ambiguity of this requirement generated difficulties in its compliance, reducing its effectiveness.
Only on November 18 of this year, through Resolution 26/2022 (), the measure was implemented through the relevant regulations. To see the step-by-step procedure for lifting the ban, the article published in Aduana News on November 23 of this year is illustrative ()
First of all, despite the delay of almost twenty years, I applaud the measure that allows the operation of what in practice was cumbersome and unclear. Moving from having a discretionary procedure to a regulated procedure, which avoids misinterpretations and gives peace of mind to operators.
However, the established procedure still leaves us with many doubts and leaves some issues that have been unresolved for some time, so perhaps this would have been a good opportunity to do so.
In this order of things, the way of determining the amount to be guaranteed could have been established in a simpler way. I cannot ignore the fact that we are dealing with a suspension of registration and this implies the total halt of the importer/exporter's activity with all the irreparable damages that may be generated by this.
Thus, a peremptory deadline could have been set with the obligation to consider the operator's information on its customs risk profile, its fiscal, summary and judicial situation. In addition, let us remember that the process begins in the Special Customs Records Division, which prepares a technical report that must then be submitted to the General Technical Legal Customs Subdirectorate and said Division must request information from other departments of the Agency: such as the Legal Directorate, the Selectivity Department and the Prevention Summary Division. Therefore, I consider that for its prompt resolution, the intervening authority must be unified or at least avoid so many transfers that prolong the resolution period.
It should also be noted that after the entire circuit has been completed and beyond the economic amount thus established, a higher amount may also be established since the General Subdirectorate of Customs Legal Technology retains the power to consider a guarantee insufficient, regardless of everything that has been done.
In addition, nothing is said about the facts of the legal case that led to the suspension, nor whether the possible embargo that was ordered would have actually been carried out.
Another issue to bear in mind is that RG 3885/2016 is not modified, which in its Annex I () limits the possible guarantees accepted for the procedure in question to the following: a) Cash deposit, b) Bank guarantee and c) Public securities guarantee. That is, other guarantees that are less onerous and easier to obtain are not allowed, without there being any reason to justify such restriction and which in practice may end up functioning as the denial of the right granted.
Another omission was not requiring that the suspension be applied only when the prosecution becomes final. We must bear in mind that Decree 578/2000 mentions that “…the automatic application of the suspension in question with respect to the aforementioned persons may result in serious and irreparable damage to third parties not involved in the events, which is why it is not reasonable to interpret that said consequence, foreseen, was in any way the purpose pursued by the legislator…”. Therefore, we cannot ignore the fact that a prosecution that is not final can be revoked and that the discussion that may arise due to the filing of an appeal can take a long time and in the meantime the operator will not be able to carry out its commercial activity.
Nor is there any clarification regarding cases of suspension of the trial on probation (“Probation”), where the person must comply with certain rules of conduct during a probation period set by the court that granted it (provided that the legally established requirements are met) and in the meantime remains suspended until he is dismissed or acquitted by a final judgment or resolution. If the prosecution does not require it to be final, why does the dismissal or acquittal require it?
Finally, this rule under discussion allows us to reflect again on the reasons that motivated this exception specifically for importers and exporters and not for customs brokers or transport agents who today have no possibility of lifting the registration suspension while being prosecuted. Indeed, article 44 of the Customs Code establishes in its subsection b) that "those who are judicially prosecuted for any customs offense will be suspended without further proceedings from the Customs Brokers Registry... until the case is concluded with respect to them..." Although customs brokers and transport agents are auxiliaries of the customs service and importers/exporters are not, this issue would seem to be insufficient in light of the principle of innocence to not authorize any exception with respect to the former.
Lawyer, Master in Criminal Law from the Austral University.
He completed a postgraduate degree in Cybercrime and Digital Evidence at the University of Buenos Aires.
He teaches Customs Criminal Law at various seminars and conferences. He is the author of numerous articles published in specialized journals.
He currently resides in Berlin, Germany, conducting research studies related to Cybersecurity.
