With the signing of the Joint General Resolution 5271/2022 The Comprehensive Import Monitoring System (SIMI) was closed down and the new Import System of the Argentine Republic (SIRA) was created, effective as of October 17, with the purpose of strengthening preventive control actions, follow-up and monitoring of foreign trade operations.
In what is of interest here, the rule establishes that once the data requested by the system has been entered, the AFIP will authorize this SIRA declaration analyzing, among other things, the "Risk Profile" of the declarant considering "If the importer has carried out over-invoicing or under-invoicing operations or has distorted the regime with abusive practices in the process of investigation in the interposition of administrative or judicial measures in relation to the operations" (art. 7 inc. b) of the referred resolution).
In this way, it creates a new reason for possible restriction on imports, which also includes the denial of access to the exchange market to transfer the payment linked to these operations (see Com. “A” 7622).
Now, what will the AFIP specifically analyze in relation to this point? What does it mean that an importer “has carried out over- or under-invoicing operations? What does it mean that the importer has distorted the regime with abusive practices in progress”?
The rule says nothing and this creates a certain risk of discretion that even seems contrary to the “predictability and transparency” that was alleged as the basis for the sanction of the new system.
Furthermore, if we add to this lack of clarity in the concepts used, the fact that the customs service created, almost simultaneously, an inspection database called RADAR (DGA Provision No. 21/2022), the situation becomes even more dangerous.
Please note that, as stated in the annex published with said provision, this is a database in which all observations made by the different operational areas regarding the values documented in the destinations will be recorded, as well as reports of infractions or crimes related to different topics such as tariff classification, non-economic prohibitions, trademark fraud, among others.
Faced with this scenario of uncertainty, it is appropriate to anticipate and highlight that in order to affirm that "overbilling or underbilling operations"It should not be enough to simply check the RADAR database to see if the operator has any complaints registered and, based on that, reject the authorization of the SIRA declaration. This would imply a clear violation of the principle of presumption of innocence recognized by our National Constitution.
Thus, our Supreme Court has stated in repeated precedents that “When Article 18 of the National Constitution categorically states that no inhabitant of the Nation may be punished without a prior trial, it establishes the principle that every person must be considered and treated as innocent of the crimes of which he or she is accused, until a trial respectful of due process proves otherwise by a final judgment." ([1]).
This being the case, it can be concluded then that in order to maintain that there was "overbilling" or "underbilling" for the purposes of limiting the rights of the taxpayers, there must be a firm resolution that allows us to affirm with authority of res judicata that the observation made by the customs service in relation to the declared value or on other issues was indeed correct.
The same applies to what is mentioned by the standard as a determinant of the operator's risk profile in relation to possible "abusive practices", since they even use concepts that are even more ambiguous and subjective than the first ones and therefore, make their immediate clarification advisable.
[1] See Judgment 321:3630, among many others. This same guarantee is recognized by treaties that have constitutional hierarchy – Declaration of the Rights of Man, art. 9; Universal Declaration of Human Rights, art. 11.1; American Convention on Human Rights, art. 8.2; and the International Covenant on Civil and Political Rights, art. 14.2.
Lawyer. Specialist in Criminal Law from the Universidad Austral. Professor of Customs Criminal Law at various public and private universities. Author and contributor to books and articles on this specialty. Currently, he is a partner at the Durrieu Abogados law firm, in charge of the Customs Criminal Law Department.
