In Buenos Aires, on the 24th day of June 2003, the members of Chamber E, Drs. Catalina García Vizcaíno, D. Paula Winkler and Gustavo A. Krause Murguiondo, with the last-named member presiding, met in order to resolve the case entitled: ELECTRÓNICA JSSRL v. DGA s/ appeal; file No. 15.720-A.
Dr. Catalina García Vizcaíno said:
I) That on page 8/17, JSSRL, through its representative, appeals against Resolution 004/01, issued in File No. EA38-00-01156, which rejects the challenge filed by the plaintiff and confirms charge No. 48/00. It states that it documented the nationalization of a batch of merchandise from Colón-Panama through import clearance No. 6479-7/97. It notes that the Mendoza Customs filed a charge without giving any grounds for such decision. It points out that when confirming the charge filed, the Mendoza Customs based its decision on the fact that the prices declared on the commercial invoice and declared at the destination were not very credible, since the only investigation was made on the Mercosur online database. The Customs Office argues that for the price comparison to be viable under the GATT, there must be no transaction value or the customs service must prove that the documented value is not the value in the specific transaction, so that in order to set aside the transaction value, the Customs Office would have to prove that there has been fraud by the importer and that the declared value is not the value paid for the imported goods. The Customs Office argues that the Regional Valuation Centre has not complied with the legal regulations in force, since they establish that the competence of the valuation authorities must be limited to determining whether the declared value is the total price that the importer has paid or must pay for the imported goods, and that in the present case it ruled on an adjustment without any factual or legal basis, having been unable to prove that the value declared in the reference clearance is not the value paid for the imported goods. The Customs Office points out that at no time does the technical report state that the documented value does not correspond to the real value of the commercial transaction. She states that she feels that her property rights have been aggrieved when she is forced to make a payment in relation to merchandise that has entered her estate. She offers evidence, reserves the right to file a federal complaint and requests that the appealed decision be revoked, leaving the charge without effect.
II) That on pages 30/39 the fiscal representation answers the transfer that was duly conferred on it. It makes a brief summary of the proceedings and the grievances raised by the plaintiff. It considers that the customs valuation of the goods was carried out in accordance with the provisions of Law 23.311 that incorporated the General Agreement on Tariffs and Trade in which the positive notion of value was adopted, replacing the theoretical notion of the Brussels Definition of Value in force until then. It argues that in art. 17 of said Agreement the power of the customs to carry out the necessary investigations to verify the truth or accuracy of the declared prices is recognized as fundamental; that in our legislation the procedure to follow has been established by Res ANA No. 3079/93 and its amendments; that when the Customs has doubts about the veracity of the declared value, the burden of proof falls on the importer, contrary to what is maintained by the plaintiff. As regards the value adjustment made by Customs, the Court considers that it arises from the fact that the prices declared by the appellant are lower than the transaction values of identical and similar goods. The Court requests that the appeal be rejected, with costs.
III) That at fs. 42 the undersigned dictates a measure to better provide that is produced at fs. 64/69 and of the autos, at fs. 57/128 of the ant. adm. At fs. 75 the customs is required to send certain DI At fs. 188 the autos are elevated to Chamber E, which passes them to sentence.
(IV) That on pages 1/16 of file EA38/00/01156 there is the plaintiff's challenge dated 7/02/00 against charge 48/00; documentation is attached on pages 17/27. On pages 29/30 there is charge No. 48/00 formulated on 26/1/00, with the following grounds: Value adjustment due to the decision not to apply art. 1 of the Agreement on the Application of art. VII of GATT 1994 (Valuation Code), having applied the valuation method provided for in art. 2 or 3 of the same legal text for a total of fourteen thousand eight hundred and seventy-four pesos and 44/100. On pages 35/38 Ref. the value recomposition sheet is included. On pages 39 Ref. work on the container envelope of the forced direct dispatch Nº 6479-7, officialized on 10/7/97, which covers merchandise of tariff items Nos. 8504.31.11, 8518.10.00, 8518.29.00, 8518.30.00, 8518.50.00, 8518.90.10, 8522.90.90, 8529.10.19, 8712.00.10 and 9506.91.00; Also included are: commercial invoice C-668, selectivity certificate No. 0990491, price certificate, commercial movement declaration No. 407390, plaintiff's presentation, charge 2400/99, customs value declaration, bill of lading No. 950099 and international waybill 0319/97. On pages 37 the challenge is deemed to have been filed. On pages 42/44 the technical report dated 13/10/00 is produced. On pages 46/47 Ref. the legal opinion considers that the challenge should be rejected and on pages 48/49 Resolution 004/01 is issued in which it is resolved to reject the challenge.
V) That by virtue of Law 23.311 and Article 18 of Decree 1026/87, as of 1/1/88, Articles 641 to 650 and 652 to 659 of the CA, and any other provision that is contrary to that law, were repealed.
That Law 23.311 approved the Agreement on the implementation of Article VII of the GATT (General Agreement on Tariffs and Trade) and the Protocol of that Agreement on its application, signed in Geneva on 12/4/79 and 1/11/79, respectively.
That Law 24.425 approved, among other provisions, the Agreement on the implementation of Article VII of GATT 1994. This law - which came into force on 14/1/95 - applies to the present because it concerns an import clearance from the year 1997.
That the referred Agreements exclude the use of fictitious or arbitrary customs values, so that the customs value of imported goods (taxable base in ad valorem taxes) results from the sale price for export to the country of destination.
It should be noted with respect to the Agreement on the Implementation of Article VII of GATT - applicable in this case - that the customs value of imported goods is the value of the goods for the purposes of levying ad valorem customs duties on imported goods (Article 15, paragraph 1, paragraph a), and that the transaction value defined in Article 1, Part I (price actually paid or payable for the goods when they are sold for export to the country of import, under the conditions established by said regulation, and clarified in the respective Interpretative Note), is the first basis for determining the customs value, and should be considered in conjunction with Article 8, which provides, among other aspects, the adjustment of the price actually paid or payable in certain cases. This Article 8 provides for the inclusion, in the aforementioned value, of certain benefits from the buyer to the seller, which are in the form of goods or services rather than money.
That, however, if the customs value cannot be established by means of art. 1, arts. 2 to 7 are applicable. The General Introduction highlights that the regulations provide for consultations between the customs administration and the importer to exchange information, in accordance with the assessment of arts. 2 and 3, subject to the limitations imposed by commercial secrecy, in order to establish an appropriate basis for customs valuation, taking into account the customs value of identical or similar imported goods.
That, subsidiarily, arts. 5 and 6 refer to other forms of determination: on the basis of the price at which the goods are sold in the same condition in which they are imported, to a buyer not related to the seller and in the country of importation, with certain deductions -subtractive method-, and on the basis of the reconstructed value -additive method-. These two methods -due to the difficulties they present- are at the choice of the importer when the customs service so accepts; if the importer does not request that the order of arts. 5 and 6 be reversed, the order of these is followed.
That Article 7 provides how the customs value must be determined when it cannot be established by the above methods; it prohibits it from being arbitrary or fictitious; etc.
For the purposes of applying the above-mentioned reasonable criteria, the customs value shall not be based on the selling price in the country of importation of goods produced in that country, nor on a system providing for the acceptance of the highest of two possible values, nor on the price of goods in the domestic market of the exporting country, nor on minimum customs values, arbitrary or fictitious values, etc.; if the importer so requests, he shall be informed in writing of the customs value determined and of the method used (Article 7, Part I, Agreement on the implementation of the aforementioned Article VII).
It is clear from the proceedings that the appellant had the opportunity to provide the aforementioned information both when challenging the charge and before this Court. The DGA's information elements appear on pages 27/28 and 92/120 of the previous administrative proceedings.
That the transaction value declared by the appellant could validly be objected to by the contested entity in exercise of the powers arising from the then-current art. 23, subsections a), c) and d) -currently, art. 9, section 2, subsections a), b) and d) of decree 618/97-.
That the DGA, except for the table attached as an Annex, has not added invoices or background information on which to base its recomposition of value on fs. 35/38 Ref., despite the measure to better provide issued by the undersigned on fs. 42 in which it was required that the contested entity report the reference values on which it based the recomposition of the value, attaching the import dispatches and any other documentary evidence that would have been used; Likewise, it was requested that it state the reasons why the reshipment invoice would not comply with the requirements of international trade.
That, in effect, Note No. 704/02 of pages 92/121 of the administrative proceedings has specified that it sent the proceedings to the customs office of registration (Mendoza) in order for it to send the documentation that would serve as background (…) to which it received in response that said documentation could NOT be located. It adds that it could not locate the background information via computer through the NOSIS EXIWEB system. Below it details, according to the items of the dispatch in question, the background information not found; a background information not matching the description of the goods; substitute background information; background information found with details not available; and background information found.
The latter have been summarised in the table that I have added as an Annex, and in this respect the contested customs resolution must be confirmed.
That, instead, it is appropriate to revoke the customs adjustment with respect to the models in which the background does not match those imported by the plaintiff (items 4.6., 3.7., 3.8., 3.40, 3.23., 3.36. and 3.54).
That this adjustment must also be revoked with respect to the items for which the customs office did not provide grounds for it (items 2.1., 3.19., 3.35., 3.42., 4.3., 4.4., 4.7., 5.1., 5.2., 5.5. and 7.1.).
That, however, in the aforementioned table I have also understood cases in which the DI sent by customs corroborated their adjustment although by smaller amounts, for which I support that the tax liquidation be modified by computing these amounts, such as the cases of the PTSA 6986 sugar mills that for the DI 170525/98 shows a value of 52,82, PTSA 6976 that for the DI 170525/98 shows a unit value of 44, PTSA 6966 that for the DI 5976/97 shows a unit value of 17, of the PTSG 1610 that for the DI 170525/98 shows a unit value of 16, of the TS 2200G that for the DI 66814 shows a unit value of 4,20, of the TS-G201 that for the DI that for the DI 128389 shows a unit value of 6,17, from TS H622 which by DI 128389 shows a unit value of 2,50.
It should be noted that DI 4097-7/97 appearing on pages 122/138 is not computed as it was documented by the plaintiff herself.
It has been stated that when it comes to tax determinations, different rules apply regarding the burden of proof in relation to those applied in other trials (Judgments, 268-514 and 289-514, consideration 8; CN Cont.-Adm. Fed. Cap., Sala 1, Guzmán, Oscar A., dated 26/6/79; to the same effect, CN Cont.-Adm. Fed. Cap., Sala 3, Figueiro, José Ramón, dated 30/10/79), and that when the taxpayers' declarations are not supported by categorical evidence, the ex officio estimates or liquidations made by the treasury are legitimate; and it is up to the person who challenges them to prove the facts (CNCont.-Adm. Fed. Cap., Room 1, Willman Argentina SAIC s./ Appeal-income tax, dated 22/5/92, Tax Criteria, November 1992, p. 75).
However, when dealing with values to which the GATT regulations apply, customs must provide sufficient grounds for the adjustments by which it rejects the transaction prices, unless the prices are vile, ridiculous or unreasonable.
Therefore, I vote for:
1°) Modify Resolution No. 004/001 of the Administrator of the Mendoza Customs, which is revoked as to items 2.1., 3.7., 3.8., 3.19., 3.23., 3.35., 3.36., 3.40, 3.42., 3.54., 4.3., 4.4., 4.6., 4.7., 5.1., 5.2., 5.5. and 7.1., and is confirmed in relation to the other items, except for mills PTSA 6986 (item 3.4.), PTSA 6976 (item 3.6.), PTSA 6966 (item 3.12.), PTSG 1610 (item 3.16.), TS 2200G (item 3.26.), TS-G201 (item 3.41.) and TS H 622 (item 3.43.), for which purpose unit values of $52,82, $44, $17, $16, $4,20, $6,17 and $2,50, respectively, shall be computed. Costs according to due dates.
2°) Order the DGA to carry out liquidation in accordance with the terms of art. 1166 of the CA
3) Once the liquidation has been approved, the appellant is hereby ordered to, within a period of 5 days, prove payment of the action fee provided for in Law 22.610 and amended by the contested tax determination, under penalty of the General Secretariat of Customs Affairs issuing a certificate of debt.
Dr. Winkler said:
I agree with the preceding vote.
Dr. Gustavo A. Krause Murguiondo said:
That agrees with the vote of Dr. García Vizcaíno.
In accordance with the above agreement, it is unanimously RESOLVED:
1°) Modify Resolution No. 004/001 of the Administrator of the Mendoza Customs, which is revoked as to items 2.1., 3.7., 3.8., 3.19., 3.23., 3.35., 3.36., 3.40, 3.42., 3.54., 4.3., 4.4., 4.6., 4.7., 5.1., 5.2., 5.5. and 7.1., and is confirmed in relation to the other items, except for mills PTSA 6986 (item 3.4.), PTSA 6976 (item 3.6.), PTSA 6966 (item 3.12.), PTSG 1610 (item 3.16.), TS 2200G (item 3.26.), TS-G201 (item 3.41.) and TS H 622 (item 3.43.), for which purpose unit values of $52,82, $44, $17, $16, $4,20, $6,17 and $2,50, respectively, shall be computed. Costs according to due dates.
2°) Order the DGA to carry out liquidation in accordance with the terms of art. 1166 of the CA
3) Once the liquidation has been approved, the appellant is hereby ordered to, within a period of 5 days, prove payment of the action fee provided for in Law 22.610 and amended by the contested tax determination, under penalty of the General Secretariat of Customs Affairs issuing a certificate of debt.
Register, notify, promptly return and archive the administrative records.
