1. Summary
The Fifth Chamber of the Federal Administrative Court, 09/30/2025, “Dupont Arg. SRL (TF 38483-A) v. DGA re: appeal, case no. 1461/2025, resolved to uphold the grievance outlined by the Tax Authority in the appeal filed on 09/10/2024 regarding the imposition of costs for the incorporation of the Additional VAT and the Income Tax into the tax settlement; consequently, it confirmed the Customs Resolution that was prior to the CLADD ITA SA (2019) ruling and imposed the costs in the order caused, revoking the judgment of the National Tax Court.
2. Introductory comment
The ruling is relevant and novel given that the Chamber, in its Fifth Chamber, resolved to revoke the imposition of costs established by the National Tax Court and distribute them in the order caused.
Let's see how the evolution of case law on the matter, as well as the new grievances raised by the tax authorities, shaped the present ruling:
It is worth remembering that the Supreme Court, through the Volkswagen Argentina SA v. DGA ruling (CSJN, SCV312, L.XLV, 2011) (TF 22179-A), confirmed the aforementioned perceptions, but in pesos.
He stated that “… The withholdings established by the aforementioned regulations do not constitute advance payments of taxes whose taxable events fall upon import operations. Indeed, on the one hand, the withholding related to income tax under Law 20.628 constitutes a way of anticipating the future—and potential—tax that could arise for the taxpayer on all income obtained and subject to said tax…
And, on the other hand, the perception of General Resolution 3.431 (and its amending regulations) is related to an advance payment of VAT that the importer of movable goods must pay in due course, but for merchandise that will later be marketed in the domestic market…
For these reasons, I believe that the appellant's argument should be recognized with regard to both perceptions, which should have been made in pesos from their origin…”.
Subsequently, in 2019, through the CLADD ITA SA (2019) ruling, the Supreme Court changed its criteria and ruled unfavorably to the Tax Authority, since it understood that the latter does not have the authority to claim the Additional VAT and Income Tax collections. once the deadline for submitting the sworn statement of those taxes has passed.
Indeed, on that occasion the Supreme Court of Justice of the Nation stated on 11/26/2019 that “… once the term for submitting the sworn statement of the taxes examined here is closed, the power of the collecting agency to demand payment of these collections is extinguished, because the function that these fulfill in the tax system ceases (Fallos: 302:504; 303:1496), since at that time the right of the Treasury to collect the tax arises, that is, the obligation resulting from the fiscal period …”.
It is observed that the jurisprudential evolution in the matter, as well as the new grievances formulated by the Tax Authority, which will be detailed below, shaped the present judgment.
3. The case and the grievances of the Tax Authority
Customs Resolution 7842/2017 had condemned the firm Dupont Argentina SA for the violation of article 970 of the Customs Code because it had not duly proven the re-export of the merchandise subject to the customs operation.
Appealed by the firm, the National Tax Court, Chamber F, Section 16, confirmed the Customs Resolution in question in what was the subject of the infraction and revoked it in relation to the taxes corresponding to the Additional VAT tax and Income Tax, with costs to the Treasury (80% in charge of the plaintiff and 20% in charge of the DGA).
The tax authorities appealed the ruling and complained that “… The appealed judgment orders my client to pay the costs related to the Value Added Tax and Income Tax withholdings, without considering the particularities of the case and its legal complexity, which justify departing from the general principle of awarding costs to the losing party, as will be seen. In this regard, the lower court should have departed from the general principle of awarding costs to the losing party and ordered each party to bear its own costs (see, in this respect, rulings 322:1726 and 328:3079). This is especially true given that the validity of these withholdings (VAT and Income Tax) has been the subject of recurring litigation and was even recently decided by the Supreme Court.
… the CLADD ruling that the National Tax Court invokes to ultimately support its tax decisions is subsequent to the charges filed by the Customs Service. Approximately between the tax claim filed by the Customs Service and the Supreme Court rulings cited above…
…the Supreme Court’s precedent is subsequent to the public disclosure of the tax claim and the Customs Resolution itself that formulated the charge for taxes… I reiterate, Your Honor, that the “CLADD” ruling is from 2019…”.
The Chamber accepted the argument put forward by the Tax Authority:
“… In the present case, the defendant is correct in asserting that the precedent “CLADD ITA SA” (from 2019) of the Supreme Court of the Nation—invoked by the lower court in the appealed ruling—is subsequent not only to the charges brought, but also to Resolution No. (DE PRLA) No. 7842/2017 (from 2017) and to the appeal filed against that administrative act before the Tax Court…”For this reason, insofar as the decision of the Court a quo to partially revoke the aforementioned resolution (in relation to the additional VAT and income tax) was based solely on the doctrine established in the precedent referred to above, issued after the proceedings in these cases, it is reasonable that the costs of the proceedings be distributed, on that point, in the order incurred (Arg. this Court in re: File No. 41420/2023 “Cono SA (TF 49108954-A) v. DGA re: Direct Appeal from External Agency”, dated 09/04/2024; and File No. 15458/2024 “Nidera SA (TF 32629-A) v. DGA re: Direct Appeal from External Agency”, dated 27/12/2024). Therefore, it is appropriate to uphold the grievance raised by the defendant in this respect…”.
4.Conclusion
The Volkswagen Argentina SA v. DGA (2011) ruling confirmed the Additional VAT and Income Tax collections, although in pesos; then the Court, through the CLADD ITA SA v. DGA (2019) ruling, resolved unfavorably to the Tax Authority, understanding that it did not have the competence to claim those collections.
In the present case, since the infraction alleged in the Customs Resolution -2017- was confirmed, the grievance of the Treasury regarding the imposition of costs for the charges prior to the issuance of the CLADD ruling -2019- which had correctly included the Additional VAT and the Income Tax was favorably received.
Thus, since the Customs Resolution predates the CLADD ruling, it is reasonable that the costs be applied in the order incurred.
It is observed that the jurisprudential evolution in the matter, as well as the new grievances formulated by the Treasury, shaped the present sentence.
While the origin of the new grievance is a novelty and an advance in the matter, it is certainly reasonable given the jurisprudential change of the Supreme Court.
It makes clear the validity of the charges and Customs Resolutions issued by the Customs Control Body in the course of its activity, regardless of any regulatory or jurisprudential acts that may exist after their issuance.
It reminds us of the obligation that governs the motivation of the judgments also with respect to the procedural matter, such as the costs of the process and in particular those that correspond to the liquidation of the Additional VAT and Income Tax correctly included - prior to the CLADD ruling.
Finally, in 2025, the valuable analysis carried out on the grievances of the Treasury was observed, which resulted in a jurisprudential advance and a contribution to customs and tax doctrine.
Lawyer from the University of Buenos Aires (UBA). Specialist in Customs Law from the Catholic University of Córdoba. Master's student in Private International Law (UBA). Author of several scholarly articles on legal and customs matters.
