Within the three main elements –taxable event, taxable moment and taxable base- which contribute by Law to be able to determine the "quantum" that will be subject to taxation in tax matters, we rescue that, taxable moment It is the one that grants predictability, that is, it seeks to provide legal certainty regarding the scope of the tax regime to be applied, the rate, the base and the exchange rate, as taught by article 639 and article 728 of the Customs Code, for the application of the import duty and export duty, respectively.
In this way, the Law imposes the application of a tax that corresponds to a specific time period and not another, for which it has determined express acts that if externalized will serve to establish that moment, with the importer/exporter having to conform to the tax regime existing in that time period and the customs service, in its exercise of control, must also be subsumed to that which governs that instance. To such an extent that any observance that may be generated within the control power of the Customs, even after the release of the goods, must be reviewed in terms of what is in force at that time and not another.
Now, article 726 of the Customs Code states that the export duty established by the regulation in force on the date of registration of the corresponding request for export destination for consumption will be applicable, and similarly the same occurs with regard to article 637 of the same legal complex when referring - in its first part - to the import duty. It is then here, the question that arises regarding what should be considered by the "regulation in force".
Such a question arises from reading a ruling by the National Tax Court, in which two different criteria are observed in its votes, and although the decision ended by sentencing in one way, we certainly find it relevant to point out the considerations made by the members of the National Tax Court, regarding the scope of the effects of the "taxable moment" in an export operation, in which the customs service made an adjustment to the tax because it was observed that the system (SIM), at the time of making the export official, established an error in the rate, that is, it did not correspond to the one set by the tax regime for that type of merchandise (Tariff Position) and consequently, it was necessary to proceed to correct and demand the correct payment in accordance with the rate established by the norm -in force at the time of the tax-.
In this case, two positions were presented regarding the taxable moment, its effects and the export duty to be applied.
First position: The prevalence of the law over the computer system
The first of them is that of the Dr. Hector Hugo Juarez, who argued that, "based on the above, it is concluded that the export duties must be liquidated and paid in accordance with the legal guidelines in force at the time of registration of the operation and given that the exporting firm was aware and has acknowledged in this instance, that the rate paid was not the one established by the Monitoring Unit at the date of officialization of the operations, the arguments put forward insofar as it claims to have correctly paid the corresponding export duties are unacceptable." Likewise, the Dr. Hector Hugo Juarez The Court stated that “the Malvinas Computer System (SIM) is a tool used by the customs service to carry out foreign trade operations and, consequently, the mistake of interpreting the law based on the operation of the computer system should not be made. It is precisely the opposite, the law (or regulatory norm) to which the computer system must adapt always prevails, and if operational problems occurred, it is up to the DGA to make - in the use of its powers and fundamentally, compliance with its obligations - the pertinent adjustments in order to comply with what is established by law.” Applying for such decision - “mutatis mutandi” -, the resolution made by Chamber II of the Honorable CNACAF, in the case PAN AMERICAN ENERGY LLC SUC. ARGENTINA v. Directorate General of Customs s/ appeal», case no. 15285/2011 (TF 26.805-A), by judgment dated July 5, 2011, which held: “That the charges made by the customs service, when noting -in ex post export control- that the rate by which the export duties were settled did not comply with the cited regulations (Resol. 394/2007), are based on the powers provided for in arts. 9° ap. 2 inc. d) of decree 18/97 and 23 inc. d) of the Customs Code, which in no way entails the affectation of legal certainty in the liberating effect of payment, inapplicable in this case…”.
Second position – Current norm, in the singular, used by art. 726 refers to all legal and regulatory norms that regulate the determination of rights
The second lies in the vote of the Dr. Juan Manuel Soria which stated: “The tax authority’s understanding of the transcribed rule is based on maintaining that since the new rate arising from Decree 1719/12 - which would be the “current rule” referred to in art. 726 of the CA - had been set by the Monitoring Unit at the time of the officialization of the export (and despite the fact that the María System had not been “updated”, nor had Customs yet provided it to the exporter at that time) it is appropriate to apply the new rate a posteriori in any case, through the supplementary liquidation of art. 1053 inc. a) of the CA, in order to comply with the transcribed art. 726 of the CA and art. 2 of Decree 1719/12. I understand that the interpretation of art. 726 of the CA carried out by the customs service is not legally rigorous, since: 1) It seems to incur in the -common- confusion between the expression "export duty" used by art. 726 of the CA, with the isolated element "rate" used to quantify such duty; 2) It seems to consider that the generic expression "current norm", in singular, used by art. 726 (which refers to all legal and regulatory norms that regulate the determination of the rights) allows to consider, separately and specifically, each one of the diverse regulations in force at the time of officialization, in a divorced way from each other and, even, as in the case -with respect to the rate- clearly divergent at the time of the taxable event (in which there would be two rates). All the above regardless of the principles, norms and other elements that govern each specific taxable event (material, subjective, formal, temporal, spatial); 3) Finally, it ignores the natural legal meaning of art. 726 of the CA, which must be understood harmoniously with art. 728, as if it were a single rule.
In this way the Dr. Juan Manuel Soria affirms the following concepts:
“Art. 726, in its correct legal reading, establishes that export duties are determined (conjunction of all its essential elements: taxable event, taxable value, rate, place, etc.) at the taxable time normatively provided (which is, in itself, an essential element, the temporal one) according to the integral normative system that regulates them, in force at the time of the registration of the export application. At that same time (which is the “date of registration of the (…) export destination application”) the intervention of the different subjects of the tax determination process occurs, who also constitute, in legal terms, another of the essential elements of the taxable event.”
“For this reason, such subjects must also be legally qualified to act in that precise temporal instance of tax determination. Such subjects are the treasury, the taxpayer and, even, they may also be some third parties provided that - as stated - they are legally and expressly authorized to intervene in such a moment of legal relevance. When art. 726 uses the expression “current regulation” that establishes the export duty, it is using a generic expression that refers to the entire regulatory system that comes together, at the time of the taxable event, for the determination of the export duty and whose correct scope we are deciding here. It is not necessary to clarify that export duties are regulated by more than one regulation.”
“The fact that, at the date of officialization, under art. 2 of Decree 1719/12, the Monitoring Unit has established a rate, does not mean that said rate is valid under the terms of arts. 726 and 728 of the CA. It remains, under the comprehensive system of norms that regulate the configuration of the rate element, that the same Monitoring Unit reports the new rate to Customs (art. 2 in fine of Decree 1719/12) so that Customs, under the norms of the Maria System and those of the Customs Code, grants it effective validity.”
“The taxpayer does not apply other rates to his tax determination than those that Customs informs him through the Maria System. The “current regulations” (arts. 726 of the CA and 2 in fine of Decree 1719/12) placed the burden of providing the rate applicable to the export duty on the head of Customs, not on the taxpayer. Such burden, it is emphasized (untimely or late, attributable or not to a tax error) is an exclusive competence of Customs in the current tax determination regime of the CA; it is not the responsibility of the exporter, nor of the Monitoring Unit.”
“The rate in force at the time of the “settlement” of the export duties is the one provided by the Maria System at that moment, in accordance with the temporary nature of the determination of the export duties, with Customs - not the Monitoring Unit - being the only subject legally qualified to intervene in the determination process. Such rate is the concretization of the administrative will, in the part that corresponds to Customs, in the determination process of the export duty. The minutes of the Monitoring Unit that set the rate - prior to that moment - is nothing more than a preparatory act that lacks force until Customs itself fulfills its burden of incorporating it into the Maria System, as arises from art. 2 in fine of Decree 1719/12. In this sense, it is inappropriate to speak of an "outdated rate" (see page 6 fourth paragraph and page 13 third paragraph of the Customs' response to the transfer, see IF-2021-57570829-APN-DTD#JGM) at the time of export because the Monitoring Unit had already established a new one, different from the one that, at that time, was provided by the Maria System. The rate of the Maria System at the time of export was the one in force in the terms of arts. 726 and 728 of CA, and its so-called "update" will only be fulfilled, legally and juridically, when the procedure that begins with the information (art. 2 in fine of Decree 1719/12) by the Monitoring Unit to Customs of the new rate established is completed and it is incorporated into the Maria System. The vote of the Dr. Juan Manuel Soria was adhered to by the Dr. Cora M. Musso.
Conclusion
Regarding the particular event that has led to two positions regarding the scope of the taxable moment and its effects on tax matters, we consider that the Law is favorable in considering that at said instance of the act recognized as the moment of imposition of a tax, it is necessary to observe the regime applicable to said date, beyond what is externalized by the computer field that may currently exist or will surely be established in the future for the registration of a customs operation. What the legislator has provided with such an element of immense importance and which turns out to be "predictability", possible to obtain with the taxable moment, must be protected.
Notwithstanding this, we support the position of the Dr. Juan Manuel Soria, as regards that, “the cargo is an exclusive competence of Customs in the current tax determination regime of the CA; it is not the responsibility of the exporter, nor of the Monitoring Unit”, and in the absence of proper conduct by the customs service to proceed to incorporate the system update, such an error cannot be transferred to the responsibility of the administrator.
In this context, we believe that a possible situation such as that denoted by the aforementioned fact invokes, in our opinion, the application of the doctrine of own acts, leading to the consequence that an adjustment is not required, not as a result of a differentiation of the concept and premise of the "taxable moment", which always invokes the regime to be applied at the time when the act that will give rise to a certain date occurs, and consequently, its effects in accordance with article 639 of the CA for import and article 728 of the CA for export, but because the mistake of the Tax Authority - when incorporating a tax regime into the computer system - cannot weigh on the taxpayer, the aforementioned doctrine of own acts being valid to justify the rejection of any claim for adjustment.
Remembering that the Supreme Court of Justice of the Nation It has indicated that, “firm administrative acts, which come from a competent authority, meet all the formal requirements and have been issued without a serious error of law, cannot be annulled by the authority that issued them if they generate subjective rights that were incorporated into the assets of their recipients (Rulings: 175:368; 285:195; 308:601; 310:1045; 327:5356, among many others), since there is no provision “that declares administrative acts of any nature and at any time to be unstable, revisable, revocable or voidable, leaving the rights born or consolidated under their protection at the mercy of the discretion or different criteria of the authorities, whose personnel undergoes frequent mutations by constitutional, legal or executive ministry” (Rulings: 175:368; 338:212)”. Thus, if the regime imposed by the system enabled to constitute an export request denoted requirements to be met, and the exporter has submitted his actions to these, such resulting act must be regarded as valid, when its modification -intended- later denotes negative effects against the administered. Recalling that, the doctrine of own acts has been defined as "a general principle of law, based on good faith, which imposes a legal duty of respect and submission to a legal situation previously created by the conduct of the same subject, thus avoiding aggression to an alien interest and the consequent damage" (cf. Fueyo Laneri, Fernando, "Instituciones de Derecho Civil Moderno", Ed. Jurídica de Chile, Santiago, 1990, p. 310), to which has been added that "whoever attempts to dismiss the persuasive value that his conduct has caused to his counterpart, pretending to "undo" what was done, will not be able to confer relevance to his new declaration, without incurring in legal incoherence."
The author is a lawyer and member of the Institute of Customs Law and International Trade of the Argentine Association of Constitutional Justice.
