In Buenos Aires, on the 28th day of the month of November 2003, the members of Chamber E, Drs. Catalina García Vizcaíno and Ms. Paula Winkler, met, with the last appointed member presiding, in order to resolve the proceedings entitled: FATA SEGUROS SA v. DGA s/ appeal, file No. 17.832-A.
Dr. Catalina García Vizcaíno said:
I) That on pages 6/12 back, Fata Seguros SA, through its attorney, lodges an appeal against the Ruling-Decision No. 03/02, dated 4/2/02, issued by the Administrator of the La Plata Customs Office. It states that the firm Waicom was the one who took out the surety bond to guarantee compliance with the temporality of the fuel import that it carried out. It states that the aforementioned firm, when summoned to verify the temporality of the import, did not answer the summons and that it could even be proven that it had abandoned its offices. It emphasizes that the plaintiff was also unable to establish contact with the importer. It is aggrieved by the fact that the Administration did not analyze the circumstances that were proven in the case and by the fact that the La Plata Customs Office issued the Resolution without taking into account the criminal prejudice articulated by the insurer. It invokes the violation of due process and the guarantee of defense in court. He considers that the issuance of the Resolution should have been suspended in accordance with the provisions of art. 1101 of the Civil Code. He considers that there would not be a lawful insurable interest, which would invalidate the guarantee insurance on the taxes. He refers to the concept of insurable interest and states that it must exist at the time of the accident and be legitimate. He cites jurisprudence. He points out that the surety bond is a typical guarantee because there is no insurable risk, so it would be an accessory obligation of the principal, so the fraudulent attitude of the principal debtor would in turn extinguish the guarantee due to its accessory nature. He reserves the federal case, offers evidence and requests that the contested resolution be revoked, with costs.
II) That on pages 28/34 the public prosecutor's office answers the transfer that was duly conferred upon it. It makes a brief summary of the proceedings. It favors the specific legislation (Customs Code) over the rules of the Civil Code and the Commercial Code, which are only supplementary in nature. It indicates that the policy granted by the plaintiff expressly provides that once the loss occurs, the insured will proceed in accordance with the provisions of art. 1122 of the CA. It indicates that the plaintiff's grievances are unfounded, given that it would arise from the administrative proceedings that the customs has analyzed the issue raised by the processing of the case in the Criminal and Correctional Court of First Instance No. 3, as well as its relationship with the investigation of the customs offense and its tax liability. The Court points out that the tax obligation is unrelated to the lawful or unlawful activity of the importing firm, and therefore the taxes are owed to the defendant, since the import for irregular consumption of the temporarily entered merchandise occurred, regardless of whether the firm carried out any unlawful maneuver. The Court concludes that the fulfillment of the obligations by the importer was not proven, and that the existence of the customs violation imputed to the importing firm was verified, consequently causing the incident and the plaintiff being obliged to pay the corresponding taxes. It offers evidence and requests that the appealed customs resolution be confirmed, with costs.
III) That at fs. 50/52 the benefit of litigating without costs is granted under the conditions provided therein. At fs. 56 the undersigned dictates a measure for better provision, which is partially produced at fs. 66/75, 76/97. At fs. 109 the proceedings are forwarded to judgment.
IV) That on fs. 1 of file EAAA 604940/99 there is the complaint report No. 174/99 regarding DIT 098 033 IT 15 302271-6. On fs. 2 the taxes and the fine corresponding to the aforementioned DIT are settled, a copy of which appears on fs. 3/vta. On fs. 10 a report is issued by the Destination Verification Division from which it appears that both the address reported by the importer, as well as the importer itself, are non-existent. On fs. 21 the summary instruction is ordered and the insurer is given notice on fs. 22, who responds on fs. 29/33 back. On fs. 69/70 the plaintiff requests the Administrator of the Customs Division of La Plata to refrain from continuing with the summary due to the request for vocation made to the Federal Administrator. On pages 107/111 the legal opinion is issued and on pages 112/114 the Resolution-Judgment 03/02 appealed in this case is issued.
V) That with regard to the alleged violation of the right to defense alleged on pages 8/9 of the case, it should be noted that it is Supreme Court doctrine that when the restriction of defense in court occurs in the procedure that is being carried out 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 this restriction at a later 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-.
That in this instance the appellant has had ample opportunities to prove its statements, with the consequent correction of any irregularity that may have occurred at the customs office.
So much so that the undersigned issued the measure to better provide for fs. 56.
That, on the other hand, it is doctrine of the Supreme Court of Justice of the Nation 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, such as, for example, the contradiction between the recitals and the operative part (cfr., among others, Scicolone, Manuel S. v. Prantera, Omar Alberto, and others, of 26/11/91). It has also said that since the contested resolution is sufficiently well-founded, the express mention of all of the appellant's arguments is not required (among others, Fallos, 251:39). It should also be remembered that judges are not obliged to consider all the evidence produced in the case, but only those that they consider conducive to its correct solution and that, by means of the federal remedy, there should be no attempt to convert this Court into just another ordinary instance (Rulings, 274:35; 276:132 and 248; 278:135, among many others) (Rulings, 301:676).
VI) That although it is true that this Tax Court is not competent in matters of smuggling crimes (cfr. arts. 1025, 1026, 1028 and related of the CA) nor of the tax criminal law 24.769 under which the conduct of the insurance policyholder would have prima facie been framed, as recognized by the appellant on pages 11 back/12 of the proceedings (cfr. art. 22 of law 24.769 and art. 1025 of the CA), it is also true that in the present case the Resolution-Judgment No. 03/02 of the La Plata Customs has been appealed, which charges the appellant for liens, in light of the guarantee provided.
Given the special characteristics of the case, in which it is not disputed that the merchandise in question was not re-exported within the stipulated period, I consider that this Court can examine the tax consequences of this non-compliance, regardless of the illegal act (crime or infraction) that may have been configured.
Furthermore, the Supreme Court held that it is up to the National Tax Court and not the Economic Criminal Judge investigating the alleged smuggling, to hear the appeal filed regarding taxes paid in relation to shipping permits, imposed by the former Customs Administration; this is so, either by immediate application of the Customs Code, or by provision of the procedural regime in force at the time the proceedings were initiated (CS, La Plata Cereal Co. SA, of 3/2/1987; Fallos, 310:149).
That, therefore, the provisions of art. 1101 of the Civil Code regarding prejudiciality are not applicable, it should also be noted that this rule provides as an exception the absence of the accused, in which case the criminal action cannot be attempted or continued, whereas in the present case the appellant admits that the proceedings show that the firm Waicom SRL had abandoned the offices at 2269 Corrientes Avenue, 2nd floor, in the City of Buenos Aires, where it had its headquarters and that Fata Seguros was also unable to establish contact with the directors of Waicon SRL, who were not at the relevant addresses (page 7 of the file).
VII) That the plaintiff acknowledges that Waicon SRL requested various surety bonds to guarantee before the DGA compliance with the temporality of the destination of the merchandise (page 6 back of the file).
That the prompt transfer of Policies Nos. 1.002.298 and 1.002.299 of pages 88/89 of the case did not deny them.
That on page 84 of the proceedings the Chief Accountant of the La Plata Customs Office notes that the CANCELLED stamp on the aforementioned policies has been placed incorrectly, so the guarantee is still valid.
That art. 3 of the General Conditions of the aforementioned Policies granted by the appellant provides that: "Once the charge has been formulated by the corresponding customs department or there is a final resolution that establishes the responsibility of the Policyholder and the amount for which the guarantees subject to this policy must be affected, the National Customs Administration [now General Directorate of Customs] will have the right to require the Policyholder or the Insurer to make the relevant payment.
It should be noted that this rule does not require that the charge has become final in order to request payment from the Insurer, without prejudice to the compensation actions that the latter may bring against the other parties responsible for the tax obligation.
That art. 4 of these General Conditions states: "Once the loss occurs in accordance with the terms of the previous article, the Insurer shall proceed, within the period established in article 1122 of the Customs Code, to pay the National Customs Administration [now the General Directorate of Customs] the relevant amount, up to the maximum sum set in the Particular Conditions plus any accessories that may apply. The rights that correspond to the [former] National Customs Administration against the Policyholder, due to the loss covered by the policy, are transferred to the Insurer up to the amount of the compensation paid by the latter.
VIII) That in view of the express provisions contained in Surety Insurance Policies Nos. 1.002.298 and 1.002.299 (see especially articles 3 and 4 of their General Conditions, to which I referred in the preceding point) the claim for prejudiciality cannot be upheld, nor can the invocation that the fraudulent attitude in the criminal case - of the principal debtor - in turn extinguishes the surety (page 11 of the proceedings).
In summary, the appellant assured the DGA of the payment of the taxes owed if the temporarily imported goods were not re-exported on time. Once the incident occurred (since such re-exportation was not proven), the appellant owes the DGA the taxes plus interest, without being able to invoke its own clumsiness with respect to the guarantee it provided to the person it now accuses of being the author of some illicit act.
That the Supreme Court in the National State (Ministry of Economy - Secretariat of Maritime Interests v. Prudencia Cía. Argentina de Seguros Generales SA s/cobro, dated 30/6/92 (Judgments, 315:1406) held that the principal purpose of the surety insurance contract is to guarantee in favor of a third party - the beneficiary - the consequences of possible breaches by the policyholder, linked to the beneficiary by a contract prior to the surety and of which the latter is accessory. This highlights the nonexistence of a true insurable risk - an event beyond the control of the parties - but what is insured is, on the contrary, the breach attributable to the policyholder in relation to his obligations to the beneficiary. The legal transaction thus appears as a true guarantee contract under the form and modalities of the insurance contract, where the insurer guarantees, as already stated, the fulfillment of the obligations of the policyholder to the beneficiary. All this, without prejudice to the application of regulations and principles proper to the insurance contract, because thus It is the will of the parties, in everything that does not contradict the essence of the legal relationship which, it is reiterated, consists of the celebration of a guarantee contract. However, it is further highlighted that the main relationship is constituted by the beneficiary-policyholder-insurer with accessory and subsidiary relationships in which the co-insurance companies are linked, but without altering the sole and total obligation assumed in this case - by the so-called pilot company, which guarantees compliance with the obligations of the policyholder towards the beneficiary.
Even if the surety insurance contract were to be ancillary, this means that if the provisions of the main contract are fulfilled, by necessary implication nothing can be claimed from the guarantor. Note that the aforementioned Supreme Court ruling was issued in a case of a work contract and not in the matter of tax obligations.
On the other hand, the Supreme Court has found that in the case of contracts of this nature - both the main contract and the accessory guarantee - it is an inexcusable duty of the interested party to take all reasonable steps to obtain complete information prior to the manifestation of his contractual will (…). The insurer's failure to comply with these requirements, in the case of a true guarantee contract, is, in any case, a negligent attitude that cannot be invoked in its favor.
IX) That, since this is a question of material tax law (tax liability for failure to comply with re-exportation), the suspension of the procedure requested by the plaintiff on pages 8 of the case cannot be granted.
That, on the other hand, if - hypothetically - the crime of smuggling were to be established, the provisions of art. 782 of the CA would not impair the liability of the insurer, since it expressly guaranteed the temporary import destination, which means that, whatever the illegal act committed, it undertook to satisfy the fiscal interest up to the limit provided for in the respective policies, which amounts to $570.000.
I agree that the amount owed by the plaintiff be set at that amount, in accordance with Article 1143 of the CA and taking into account the request for revocation of the resolution being appealed.
That although the Policies were issued in US dollars, the Reference Stabilization Coefficient should not be applied in this regard, since at the time when the taxable event that gave rise to the guarantee obligation of the plaintiff here occurred (29/12/99; see date of commission of the infraction that is the basis for the tax obligation on page 2 of the administrative antecedents), Law 23.928 on convertibility had not yet been modified. Note that Law 23.928 was modified by Law 25.561, which was published in the Official Gazette on 7/1/02.
That a contrary solution would mean contravening the principle of legality inherent in all tax obligations, even those relating to guarantors.
Furthermore, it should be noted, as I noted in my vote in Aseguradora de Créditos y Garantías SA, dated 20/6/03, that the tax debts were converted into pesos at the time when the events generating the tax obligation occurred prior to decree 214/02, according to arts. 638, paragraph e) and 639 of the CA, when the conversion of the foreign currency provided for in the latter rule took place.
That no obligation in US dollars that would make arts. 1° and 8° of dec. 214/02 applicable, subsisted from that moment on, which is why the Reference Stabilization Coefficient provided for in this decree is inappropriate in this case.
That, in summary, on the date of configuration of the event generating the tax obligation (29/12/99), it was converted to pesos at a rate of one US dollar per peso (see art. 639 of the CA), for which reason the conversion provided for in decree 214/02 could not be carried out nor, consequently, is the aforementioned Reference Stabilization Coefficient applicable.
Therefore, I vote for:
1st) Partially confirm the Resolution-Ruling No. 03/02 of the Administrator of the La Plata Customs, setting the amount owed by Fata Seguros at $570.000 (five hundred and seventy thousand pesos) plus interest in accordance with art. 794 of the CA With costs in respect of the amount confirmed.
2nd) The appellant is hereby ordered to pay, within a period of five days, the amount of $11.400 (eleven thousand four hundred pesos) as the fee for proceedings provided for in Law 22.610 and amendments, under penalty of issuing a certificate of debt, unless the appellant submits the report required on page 52.
Dr. Winkler said:
I.- That I substantially agree with the preceding vote with the following additions.
That, with regard to the issue of smuggling referred to by the plaintiff and an alleged criminal prejudiciality, it should be noted that the criminal judge must apply the penalties relative to the crimes that have been proven, but in my opinion this does not generate any consequences with respect to the customs duties that constitute State credits derived from the performance of activities subject to taxation. It must be taken into account that the determination or existence of the tax credit does not depend on the verification of a crime but on the scope to which the aspects involved in the case are appreciated in light of the rules that define the taxable event (doc. of Fallos, CSJN, 310: 149).
That, furthermore, the activity subject to taxation is the importation for consumption, said importation of the merchandise being entered temporarily, due to the expiration of the period established for its re-exportation, which is what is warranted here, it should be noted that no evidence was offered to the effect that such merchandise had actually been re-exported.
II.- That, with regard to the policies issued in US dollars by the plaintiff, it should be noted that they must be converted into pesos without adding what results from the CER, as provided for in decree no. 214/02, given that I have ruled that, since it is a guarantee and not an obligation to provide sums of money, which is what is guaranteed, the amount must be limited to what results from the conversion into pesos, and the aforementioned decree is not applicable with regard to the CER, since it is a guarantee obligation. The customs requirement, on the other hand, has been expressed in pesos. SO I VOTE.
In accordance with the above agreement, it is unanimously RESOLVED:
1st) Partially confirm the Resolution-Ruling No. 03/02 of the Administrator of the La Plata Customs, setting the amount owed by Fata Seguros at $570.000 (five hundred and seventy thousand pesos) plus interest in accordance with art. 794 of the CA With costs in respect of the amount confirmed.
2nd) The appellant is hereby ordered to pay, within a period of five days, the amount of $11.400 (eleven thousand four hundred pesos) as the fee for proceedings provided for in Law 22.610 and amendments, under penalty of issuing a certificate of debt, unless the appellant submits the report required on page 52.
Register, notify, promptly return and archive the administrative records.
The following sign this document: Dr. García Vizcaíno and Dr. Winkler, as the position of Member of the 14th Nomination is vacant. (Conf. art. 1162 of the CA)
