In Buenos Aires, on the 22nd day of the month of November 2002, the members of Chamber "E", Drs. Catalina García Vizcaíno, D. Paula Winkler and Gustavo A. Krause Murguiondo, with the last-appointed member presiding, met in order to resolve the case entitled: ERRIGO, LUIS ALBERTO v. DGA s/appeal, file No. 14.903-A and its accumulated case entitled: DICCA ICSA v. DGA s/appeal, file No. 14.905-A.
Dr. Catalina García Vizcaíno said:
I) That on fs 7/9 back. Mr. Luis Alberto Errigo, in his own right, appeals against Resolution No. 1077/00 (sic is 1078) of the Administrator of the Córdoba Customs Office, issued on 19/9/95 in file SA 17-95-322, insofar as he is sentenced jointly to pay a fine of $12.697,78 in accordance with the terms of art. 954 ap. 1 inc. b) of the CA He states that with the enactment of Law 21.932 and its regulatory decree 2677/91, the EP regulated the automotive industry regime that established the right to import motor vehicles in favor of individuals and legal entities under certain conditions from 1/1/92 to 31/12/95. It states that in May 1994, decree 683/94 was issued, complementary to the previous regulations, which established that from 1/1/95 only vehicles whose models were manufactured locally could be imported, generating an economic prohibition on importing vehicles whose models were not produced locally, with the clarification that until 31/12/94 all models could continue to be imported freely. He adds that when many of these operations were pending completion, the SIC surprisingly issued Res. No. 300/94, published on 29/12/94 in the Official Gazette according to which vehicles not produced locally that are in a condition to be imported under the terms of the last paragraph of art. 9 of Dec. No. 683/94, should be in the primary customs zone on 31/12/94 with the respective import clearance request for consumption and that said date would be peremptory, non-extendable and would operate as an expiration period for the entry of vehicles into the national territory. He points out that in the face of these circumstances, Mr. Isola, who acted on behalf of and at the request of the importer DICCA ICSA filed an amparo action before the Federal Judge on duty in the city of Córdoba, who upheld the claim, ordering Customs to suspend the application of Resolution 300. He warns that he was not a party to the amparo action nor has he been notified of any resolution arising from said case. He points out that, as far as he is concerned, in May 1995 Mr. Isola required his services as a dispatcher to proceed with dispatching the vehicle involved, a Ducato brand car. He adds that, having analysed the case, he understood that the hierarchy of the Customs Code over any other provision of lower rank was unavoidable, so the importer, being in the conditions established by art. 618 of the CA and art. 89 of Decree 1001 should require the release of the vehicle to the square, also considering the existing judicial resolution. He stressed that before proceeding to formalise the final clearance for consumption, all the steps and procedures provided for by customs regulations were carried out and that the entire process was being processed through the mandatory Red Channel. He argues that since the Customs accepted the destination without any observation, it is understood that it shared the opinion that there were no problems for clearance, notwithstanding which, the Customs of Córdoba initiated proceedings for alleged violation of art. 954 inc b) against the dispatcher, the importer Isola and the third party on whose behalf he was acting, arguing that the dispatch should not have been carried out with a definitive destination for the vehicle, since the judgment that granted the protection was not final and that the Federal Chamber, although it ratified the protection, ordered that all activity of the parties be suspended until a definitive resolution was reached. He clarifies that, as he was not a party to the amparo trial, he was not notified of any resolution and that he only became aware of the first instance ruling because it was given to him by the importer as it was part of the documentation submitted with the dispatch. He says he is not aware of the lack of notification from customs of the Federal Court's ruling. It refers to a circumstance in the case that, he maintains, would disqualify the entire ruling, such as: the addition to the proceedings of a report from the Legal Affairs Department of the DGA (Bs. As.) in which it is advised to suspend the processing of all proceedings initiated on the grounds of the regulations under review and to promote a judicial action for the annulment of the offices involved. He adds that, as a result of this ruling, the Administrator of the Córdoba Customs Office issued Res. No. 255/97, which was not notified to him, by which the suspension was ordered as a result of the judicial ruling in the nullity action and the Department was instructed. Legal to promote the aforementioned action, adding a list in which the file would be found. of the matter. It states that, after a period of procedural inactivity, the summary procedure continued, forwarding notice to the parties and issuing the resolution that is being appealed. He states that the violation of the principle of due process, the theory of one's own acts and the denial of the acquired right granted by Res. 255/97 renders the summary null and void from that moment on, as well as the appealed decision. Request that this be declared. Reserves the federal case. In the alternative, it sets out the factual and legal reasons by virtue of which it considers that the contested decision should be set aside. He understands that since the sanction of the current CA The system of objective liability in matters of infringement has been left aside. He cites doctrine and jurisprudence and concludes that an adequate characterization of guilt allows us to affirm that the infringement requires a minimum level of guilt on the part of the active subject. He adds that the boundary between excusable and inexcusable negligence may not appear clear when linked to the intensity of the duties of care and diligence that must be observed in customs matters, when it concerns an auxiliary of the customs service such as the broker, the circumstances of each case having to be taken into account. He argues that, although the dispatcher has a duty of suitability and greater foresight, this could not go so far as to make his responsibility objective, nor rule out good faith in the action. It reiterates the arguments of the appealed resolution and warns that such reasons collide head-on with what was resolved by the Administrator himself in the aforementioned Res. No. 255/97, which is not even mentioned in the ruling, an aspect which, due to violation of the principle of sufficient reason and an attack on the logical rule of non-contradiction, substantially invalidates the decision. He alleges that his performance as a broker could not have generated an error in the customs service, complying with the mandate of the importer who delivered the relevant documentation including the resolution of the competent Federal Court that ordered the suspension of the application of Res. 300/94. He claims that he documented the dispatch because there was no legal obstacle, attaching a copy of the first instance resolution. He points out that the claim by the customs service that the protection granted was not final, made only in the preliminary investigation, is late, and that it cannot allege its own clumsiness. Finally, he notes that the fact that the protection was not final also prevented the summary from being promoted since the Supreme Court's decision that subsequently revoked the protection and was later used as support for the reasons for the ruling had not yet been issued. Offers evidence, reserves the right to a federal case, and requests that the appealed decision be reversed, with costs.
II) That on pages 19/21 the public prosecutor's office contests the transfer duly conferred upon it. It makes a brief summary of the grievances raised by the plaintiff. It considers that the appellant is liable for an infringement for having documented the importation for consumption of prohibited merchandise under a regulation in force more than six months in advance, such as Decree 683/94, effective as of 31/12/94, as confirmed by SIC Res. 300/94. It requests that the appeal be rejected, confirming the customs ruling, with costs.
III) That on pages 65/67 back Ref., DICCA ICSA, through its legal representative, files an appeal against the aforementioned Resolution No. 1078/00. It raises the same arguments and grievances as Mr. Errigo. It also points out that, as the owner of the automobile that Mr. Isola imported on his own account and order, he could not have caused an error in the customs service, nor was any element used that could hinder the control function. It offers evidence. It reserves the federal case. It requests that the petition be upheld, with costs.
(IV) That at pages 77/79 Ref. the public prosecutor's office contests the transfer that was conferred upon it. It maintains that the documenting importers cannot evade their responsibility because at the time of proceeding to document the destination of the merchandise that was prohibited from importing at the date of its registration, they were a party to the amparo action filed against the Ministry of Industry for the application of Res. No. 300/94, and that, being aware of the status of the case, they proceeded to document the destinations knowing that the resolution ordering the measure of not innovating issued by the Court was not final, attaching a copy of it at the time of registration, thus inducing the customs service as the enforcement authority to make the mistake of releasing merchandise to the market by presenting a non-final court order. The Court states that this consideration applies both to the registered importer and to the third party importer acting as representative, since the latter has assumed responsibilities inherent to its declaration with the signature of OM-680 and as established in point 1.3 of Res. No. 370/86. Finally, it highlights that the SCJN declared the legality of Res. 300/94. It requests that the customs resolution be confirmed, with costs.
V) That on page 91 the accumulation of file No. 14.905-A is ordered, entitled: DICCA ICSA- c/DGA s/rec. of appeal, to the file No. 14.903-A, which heads this case. On page 100 the case is referred to Chamber E, which passes it on to judgment.
VI) That at fs. 1/2 round. of the file. EA17-95-6549 establishes Provision No. 385/95 by virtue of which the Administrator of the Customs of Córdoba orders the instruction of the corresponding contentious causes in the terms of art. 1090 inc. c) and 954 inc. b) of the CA, the detention of import shipments related to the merchandise in question and the seizure of motor vehicles covered by Res. No. 300/94. At fs. 3. The file contains DI No. 8229-7 from the Córdoba Customs Office, officially issued on 9/5/95, which documents the import of a Fiat brand automobile, Ducato TD model, originally from Italy PA 8704.21.10, imported by Mr. Adrian G. Isola on behalf of and by order of DICCA ICSA The procedure was subject to Red Channel - mandatory verification. Attached as supplementary documentation is the power of attorney letter to the customs agent submitted on 1/3/95. There is also a copy of the letter sent by the Federal Court No. 1 of Córdoba to the Administrator of the Customs of Córdoba in relation to the decision in the proceedings entitled: Franco, Martín s/Amparo (File. 2-F-95) by which the issuance of the resolution granting the request not to innovate and suspending the application of Res. No. 300/94 of the Secretariat of Industry and Commerce of the Nation, until the final resolution is issued. A copy of the notification certificate of the resolution issued by the Honorable is also attached. Chamber confirming the aforementioned measure of not innovating, maintaining the paralysis of all activity of the parties until the judicial body makes a final ruling, in accordance with the regulations in force. At fs. 4, on 22/9/95, having regard to Disp. No. 385/95 provides for the initiation of a contentious summary against the appellants here and the importer Mr. Isola for alleged violation of art. 954 inc. b) of the CA and the proceedings are reviewed. At fs. 5 NA17 95 3297 dated 17/10/95 is included, by which the Administrator of the Customs of Córdoba requests the Director of the National Registry. of Automotive Property and Credit. Pledge holders who do not process the transfer of ownership in the name of Mr. Isola and/or DICCA ICSA and/or, failing that, report the name and address of the registered owner and current domain corresponding to the vehicle in question. It is clarified that the request responds to the fact that a seizure measure was issued against the vehicle by means of Provision No. 385/95, given that the penalty of confiscation could apply due to the infraction charged. At fs. 12 Mr. answers the view. I err. At fs. 15, on 20/5/97 it is considered presented in time and form and Mr.'s rebellion is declared. Isola and DICCA ICSA. At fs. 22, through NA17 97 1555 the request to Reg. is reiterated. Nac. of Automotive Property and Pledge Credits. At fs. 24/28 various procedures related to motor vehicles are added. At fs. 29/31 work copy of Opinion No. 1616/97 issued on 28/5/97 and fs. 32/35 copy of provision No. 255/97 issued on 4/8/97 by the Sub-Administrator of the Córdoba Customs in file. SA17-96-206 and its Annex list, which approves the aforementioned list and orders the initiation of the action for judicial declaration of nullity of the act of release of the merchandise in the terms of art. 17 of Law 19.549; in its art. 3º It is ordered to suspend the processing of administrative litigation cases opened for violation of art. 954 inc. b) of the CA as a result of the judicial ruling in the nullity action. At fs. 36, on 1/4/98 the files were placed at the disposal of Mr. I err. At fs. 41/60 is a copy of the file of the vehicle in question. At fs. 62/65 the Opinion No. 546/00 issued on 18/9/00 and fs. 66/68 round. Res. is added. No. 1078/00 issued on 19/9/00 appealed in this case.
VII) That the arguments raised by the appellants on pages 7/8 back and 65/66 back of the proceedings in their briefs for the appeals to be resolved are closely linked to the substantive issue raised, such that they are subsumed by the analysis of the grievances relating to the latter.
That, without prejudice to the foregoing, it should be noted that, as can be seen from the account of the administrative background made in the preceding point, as well as in this instance, the appellants had sufficient possibility of defense in the customs procedure for infractions, since they were given notice at fs. 7 of the ant. adm. and Errigo answered it at fs. 12 of the ant. adm., while the co-plaintiff DICCA was declared in default (fs. 20 of the ant. adm.).
That the ruling that advised the suspension of the procedure or the Resolution of the Administrator of the Customs of Córdoba No. 255/97 that ordered said suspension as a result of the judicial ruling in the nullity action (see pages 29/35 of the adm. ant.) does not disqualify the ruling, since as the appellants themselves indicate, that Resolution was not notified to them (see arguments on pages 8 and 66 Ref. of autos), which shows that it did not become effective under the terms of art. 11 of the National Law of Administrative Procedures, applicable in a supplementary manner according to section 1 of art. 1017 of the CA. This supplementary nature is not altered by the fact that this is a case of a criminal nature, since although section 2 of art. 1017 of the CA contemplates the application of the provisions of the criminal procedural order of the Nation, it also stipulates that they will prevail over those indicated in section 1 of the Administrative Procedures Law. XNUMX, which implies that these also apply.
That, according to the circumstances of the present case, Resolution No. 255/97 (which I repeat - was not notified to the appellants) did not prevent the Administrator of the Córdoba Customs from continuing the procedure for infractions and passing the proceedings to be alleged (see pages 36 of the administrative antecedents).
It is SC doctrine that the challenge of arbitrariness is not applicable to a well-founded resolution or judgment, regardless of its correctness or error (Fallos, 243:560; 246:266; 248:584; 249:549), except in certain cases that do not occur in this case, such as, for example, the contradiction between the recitals and the operative part (see, among others, Scicolone, Manuel S. v. Prantera, Omar Alberto and others, 26/11/91).
That, moreover, the contested decision being sufficiently founded, the express mention of all the arguments of the appellant is not required (among others, Fallos, 251:39).
It should also be noted that when the restriction on defense in court occurs in the procedure that is conducted in an administrative setting, the effective violation of art. 18 of the CN does not occur as long as there is the possibility of correcting said restriction in a subsequent jurisdictional stage (Fallos, 205:549; 247:52 consid. 1º.; 267:393 consid. 12 and others), because the requirement of defense in court is satisfied by offering the possibility of appearing before a jurisdictional body in search of justice (Fallos, 205:549, consid. 5º and its citations) -TFN, Sala E, among others, Rivera, Alcides of 27/5/86, López Arispe, José, of 5/9/88-).
VIII) That the Customs Code protects the principle of truthfulness and accuracy of declarations and statements submitted to customs. Section 1 of Article 954 of that Code punishes and sanctions - in relation to the legal interest protected - anyone who, in order to carry out any import or export operation or destination, makes an inaccurate declaration to the customs service, which if it goes unnoticed, produces or could produce, among other cases: b) a violation of a prohibition on import or export, which will be sanctioned with a fine of 1 to 5 times the customs value of the merchandise in violation. For this case, the appellants have been convicted by Resolution No. 1078/00, appealed herein.
That the Supreme Court has stated that the general provisions of the Penal Code are applicable to customs violations, according to which only the guilty party may be punished, that is, the party to whom the punishable action can be attributed both objectively and subjectively (Judgments, 290:202, 5th recital and its citations) (SAFRAR Sociedad Anónima Franco Argentina de Automotores, 27/12/88, Judgments, 311:2779). This, without prejudice to the position of the Supreme Court regarding the burden of proof relating to the presumption of guilt inherent in the material elements of the actions of the active subject of the violation, in the material elements of the actions of the active subject of the violation, as will be set forth below.
That, although, as a general rule, infractions are of an objective nature, given the difficulty of determining the subjective element that would make many repressive norms illusory, as this Court has rightly said in the field of criminal law, even when dealing with this type of infraction, the basis of punishment is found in the intention of the author; however, in such infractions the same procedure leads to a presumption of guilt, thus producing a reversal of the burden of proof, although this does not presuppose the configuration of the illicit act independently of any infractional element (Escalante Pitt, Moisés MC 13/567 of 8/6/78).
I have held (Tax Law, Volume II, p. 260, 1st edition, 1997, and p. 334, 2nd edition, 2000. De Palma, Buenos Aires) that this implies that after the objective analysis of the fact examined (...) the subjective aspect must be examined, that is, the imputability (...) and the culpability, in order to assess the evidence produced in order to establish whether the aforementioned presumption of culpability was overcome. Imputability consists of the set of conditions that a subject must meet in order to be criminally liable for his action. The imputability of the plaintiffs with respect to the customs infraction law is not discussed in these proceedings.
That, in matters of tax offences (customs and impost), the burden of proof regarding the lack of culpability -whether due to intent or negligence, as the case may be- falls on the alleged offender, unlike tax offences, in which the tax authorities must prove the intent of the perpetrator of the offence. However, it should be noted that intent is proven by external and concrete facts (ob. cit., Vol. II, pp. 259 et seq. -1st edition of 1997- and pp. 334 et seq. 2nd edition of 2000-).
So much so that in the cited book, among other pronouncements of the Supreme Court, I mentioned the one in Wortman, Jorge Alberto, et al., dated 8/6/93, in which, even in the case of formal violations, the High Court held that since the existence of material - or objective - elements arise from the proceedings and, therefore, the adequacy to the pertinent criminal type, it is up to the accused to bear the burden of proof tending to demonstrate the nonexistence of the subjective element. In the same sense, the Supreme Court considered that the burden of proof falls on the appellant in the matter of the fine imposed, since as it has repeatedly pointed out in the presence of the materiality of the infraction ..., it is up to the offender to provide proof in his or her defense -Rulings: 198:310- for which the allegation of ignorance of the legal precepts is not sufficient -Rulings: 182:384 and others- (Julio E. Real de Azúa v. Internal Taxes, 31/12/46; Rulings, 206:508).
I consider that the proceedings contain sufficient elements to rule out the presumption of guilt inherent in the actions under trial, which justify the revocation of the sanction applied to the appellants here.
That, in effect, without prejudice to the doctrine of the Supreme Court of Justice of the Nation regarding the prohibition of importing the automobile of the sub-lite (as mentioned in the contested resolution) and the provisions of decree 683/94, as regards the sanctioning aspect - the only aspect that this Court judges - it can be considered that the conduct of the appellants does not deserve criminal reproach, taking into account that the Resolution of the Secretariat of Industry No. 300/94, which ordered the prohibition in question as of 1/1/95, was published in the Official Gazette on 29/12/94 (see recognition of this publication date in the contested resolution on pages 66 of the administrative antecedents), while art. 618 of the CA provides with respect to prohibitions of an economic nature that do not extend to merchandise that is, on the date the measure comes into force, in any of the following situations:
a) issued with final destination to the customs territory by land, water or air and loaded onto the respective means of transport;
b) in the primary customs zone, having arrived previously in the customs territory.
That in this case the situation provided for in section a) of the aforementioned rule was configured, given that from the verification of the documentation contained in the container envelope on page 3 of the previous administrative documents it appears that the Bill of Lading relating to the automobile in question was issued on 15/12/94 in Genoa (see also the date of shipment recorded in sector BD 2, field 29 of DI 8229-7/95).
That since the aforementioned Resolution 300/94 is of a lower hierarchy than that of the CA, it could plausibly give the appellants the right to consider that the vehicle in question could not have been covered by the prohibition, this prevalence of the Customs Code being expressly invoked by the defendants on pages 7 back and 65 back. Ref. of the case.
That the prohibition resulting from the Supreme Court's ruling in Rulings 319:1046 was based on the priority of the regime of Law 21.932 and its regulatory norms, for which reason it considered that the Customs Code should only be applied in a supplementary manner, when referring to art. 618 of this ordinance. This doctrine, in my opinion, does not prevent the complexity of the issue from undermining the presumption of guilt that would arise from the appellants' actions, especially taking into account the rulings of the first instance and of the Chamber that initially ruled in favor of the importer.
That is not an obstacle to the solution that was promoted by the stated by the appealed resolution regarding that with full knowledge that the measure of not innovating was not final, the plaintiffs appeared before Customs on 9/5/95 to request the release of the vehicle, through the import clearances mentioned [sic], since the same resolution recognizes that the Public Prosecutor's Office appealed the measure of not innovating, causing that on 8/2/95 (note that well before 9/5/95) the Federal Court confirmed the measure of not innovating ordered by the lower court (…), maintaining the paralysis of all activity of the parties until the jurisdictional body makes a final ruling (the highlighted in bold and underlined belong to the appealed resolution).
That from a simple reading of the preceding paragraph it arises that the Federal Court maintained the stay ordered by the lower court, that is, it did not revoke any measure in this regard, to which it is added that within the container envelope of the import dispatch in question on fs. 3 of the ant. adm. there is the communication from the Federal Judge of First Instance, who accepted the measure of not innovating, expressly indicating that the application of Resolution No. 300/94 was suspended until a final resolution is issued.
This means that the customs service was warned that the communication did not refer to a final decision. This undermines the grounds of the appealed decision, which states that since the Administrator of the Customs Office of Córdoba was not notified of the Chamber's decision, upon presentation of the import clearance he should have proceeded to authorize the release for consumption of the aforementioned vehicle in order not to disobey the court order issued at the appropriate time.
Furthermore, it should be noted that the aforementioned container envelope on page 3 of the administrative antecedents contains the notification certificate of the Federal Court's decision of 8/2/95, in which the stamps referring to import clearance 8229-7 and the date of its officialization of 9/5/95 can be read (which implies that it was added as supplementary documentation), in which it is made known that the measure of not innovating was confirmed, maintaining the paralysis of all activity of the parties until the jurisdictional body makes a final ruling, in accordance with the regulations in force.
It should be noted that the Red Channel corresponded to the office in question and that the car was verified accordingly.
That the rejection of the protection issued by the Supreme Court of Justice of the Nation dated 25/6/96 (Rulings, 319:1046) does not render the declaration made inaccurate, since the customs office was sufficiently alerted of the judicial situation raised in accordance with the aforementioned.
That, on the other hand, art. 234 ap. 2 of the CA stipulates that: The declaration referred to in section 1 must indicate, in addition to the requested destination, the mention of the position of the merchandise in the applicable tariff nomenclature as well as the nature, species, quality, state, weight, quantity, price, origin, provenance and any other circumstance or element necessary to allow the correct tariff classification and valuation of the merchandise in question by the customs service.
From this rule it follows that the declaration committed must be truthful as to the characteristics of the merchandise, the commercial conditions and other circumstances that allow the customs service to fulfill the function assigned by art. 241 of the CA relative to verify, classify and value the merchandise in question, in order to determine the legal regime applicable to it (e.g., eventual regime of prohibitions).
As a corollary to the provisions of the aforementioned article, art. 957 establishes that: Inaccurate tariff classification included in any declaration relating to import or export operations or destinations shall not be punishable if all the necessary elements have been indicated to allow the customs service to correctly classify the merchandise in question.
That a fortiori the principle of art. 957 of the CA also governs when the inaccuracy relates to the prohibition regime, as long as the declaration of the characteristics of the merchandise is truthful and complete.
IX) I propose that no costs be imposed on customs for this purpose, given the difficulties of the issue raised, made clear by the provisions of decree 683/94, whose interpretation was carried out by the Supreme Court in Rulings 319:1046, not giving reason to the position supported by the importer in the aspect of the prohibition.
That, in effect, although Law 25.239 (Official Gazette 31/12/99), which amended Article 184 of Law 11.683 in 1998 and as amended, authorizing the unsuccessful litigant to be exempt from costs with justification, has not expressly amended Article 1163 of the CA (according to Decree 1684/93), it should be noted that Article 1140 of the CA stipulates that: The seat of the Tax Court (…), the plenary sessions, the calculation of terms, the regulations and other powers shall be governed by the customs order in accordance with the provisions of the relevant provisions of Law 11.683 (emphasis added in this opinion).
That undoubtedly falls within the concept of powers those relating to the respective chamber to exempt the defeated litigant totally or partially from this responsibility [of payment of costs], provided that it finds merit for doing so, expressing it in its ruling under penalty of nullity of the exemption (art. 184 of law 11.683, according to the modification introduced by law 25.239).
Therefore, I vote for:
Revoke arts. 1, 2 and 5 of Resolution No. 1078/00 of the Córdoba Customs Office insofar as they apply sanctions to the appellants Luis Errigo and DICCA ICSA Costas in that order.
Dr. Winkler said:
I.- That I agree with the preceding vote, except with regard to the imposition of costs.
As I have ruled, Law 25.239 modified art. 184 of the Tax Procedure Law No. 11.683 (TO EN 1998) and modified it by authorizing the exemption of costs to the defeated litigant. However, such power did not extend to the customs jurisdiction of this Court, as art. 1163 of the CA was not modified or repealed, either expressly or implicitly.
It is not agreed that the powers referred to in Article 1140 of the CA include the power to exempt from costs in whole or in part in proceedings brought before the customs jurisdiction of this Jurisdictional Body.
II.- That in the case under examination, in my opinion, there is no legal gap since art. 1163 of the CA clearly regulates the regime of imposition of costs, therefore the criterion that I support is not considered unreasonable, beyond the circumstance that said rule is not consistent with the regime of costs adopted by the majority of procedural codes and even by the law of tax procedures, in tax matters.
That the Judge is not assigned the task of the legislator and cannot correct its deficiencies by hermeneutical means, especially when there is a rule that precisely regulates the opposite.
Consequently, I vote in the same direction as Dr. García Vizcaíno, although imposing the costs on Customs.
Dr. Gustavo A. Krause Murguiondo said:
That it agrees with the vote of Dr. García Vizcaíno on the merits, and also with respect to the order of imposition of costs.
That this Chamber of the Court, as will be seen, has the power to impose costs in its order.
That, in the opinion of the undersigned, the reform introduced by Law 25239, in its point 18, to art. 184 of Law 11683, must be interpreted extensively, considering that it also reforms art. 1163 of the Customs Code. No other interpretation is possible given that it is the same Court, with the exercise of similar jurisdictional powers in both areas, in which there is no reason to differentiate them at the time of the imposition of costs. The precise basis for the extensive interpretation is given: the legislator in this case, when sanctioning the law minus dixit cuam voluit, that is, has expressed in the letter less than what corresponds to its true real intention, which has been to return to the same, without any distinction, the power to exempt from costs when justified. The reform introduced by Law 25239, point 18, is also expressive of a general principle, enshrined in all, or almost all, of the Procedural Codes, in relation to the exercise of the jurisdictional function. To claim that this principle can be applied in the Tax Court only partially, without any possible justification, exceeds the margins of reasonableness of interpretation.
If the case were approached from the point of view of gaps in the law, and not from the point of view of extensive interpretation, it could be stated that in the situation there is, as Karl Larenz discusses in the Methodology of the Science of Law, Ediciones Ariel SA, Barcelona, 1966, p. 293, a case of a hidden regulatory gap. That is to say, in the case the rule of art. 1163 of the Ad. Code apparently subsists, but it is no longer applicable because according to the principles of the legal order (contained in the case in the various Procedural Codes) or in a subsequent rule for analogous situations (art. 184 law 11683 with the reform of law 25239), its scope must be reduced or modified to apply the principles of the subsequent rule for analogous cases or of the legal order, taking into account the purposes of the same, which arise in this case from the foundations of law 25239 itself.
In accordance with the above agreement, by majority, IT IS RESOLVED:
Revoke arts. 1, 2 and 5 of Resolution No. 1078/00 of the Córdoba Customs Office insofar as they apply sanctions to the appellants Luis Errigo and DICCA ICSA Costas in that order.
Register, notify, promptly return and archive the administrative records.
