In Buenos Aires, on June 25, 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 FEM SA v. DGA s/ appeal; file No. 17.736-A
I) That on pages 11/17 back, Fem SA, through its representative, files an appeal against the Resolution – Ruling No. 15/02, issued by the Mendoza Customs in File EA 38-99-7861, which confirms charge No. 1318/99. It states that through DI No. 9212-2/94 it documented on 16/6/94 the importation of merchandise from Chile that was carried out under the guarantee regime due to the lack of a certificate of origin, which was submitted on 4/5/99. It indicates that the Customs formulated Charge No. 1398/99, which it maintains - lacks foundation. The Argentine Customs considers that, since the merchandise is of Chilean origin and is negotiated in both PAR 4 and ACE 16, no formal objection can justify a unilateral departure by Argentine customs from the level of taxation that both countries agreed upon. The Argentine Customs considers that if the quality of the merchandise is not denied, nor that it is of Chilean origin, nor that it is duly negotiated, it must be cleared under the ALADI regime. It cites case law. The Argentine Customs considers that the lack of mention of the rule of origin could be considered as a breach of some obligation but would not have the authority to modify the status of the merchandise at the time of taxation. The Argentine Customs considers that the description of the merchandise contained in the certificate of origin is almost identical to that contained in the import clearance, so it could easily be deduced that it is the same merchandise. The Argentine Customs argues that it was unable to produce any evidence at the customs instance because the charge was unfounded. It refers to the liquidation of the charge and claims that it is incorrect because it applies the interest set for taxes liquidated and guaranteed in pesos, when the import clearance was liquidated in US dollars. It concludes that the applicable rate would be 1% and not 3% monthly until 3/4/98, since Resolution No. 91/91 was in force at the time the guarantee was established. It offers evidence and requests that the appealed resolution be revoked, with costs.
II) That on pages 26/29 back, the fiscal representation answers the transfer that was duly conferred on it. It makes a brief summary of the actions and the grievances expressed by the plaintiff. It understands that the appellant seeks to have a preferential regime applied to it for which the presentation of the certificate of origin in time and form is an indispensable requirement. It cites jurisprudence. It points out that the rule does not say that the origin of the merchandise can be accredited in any way, but that the certificate of origin correctly details the merchandise to be imported. It indicates that the interested party did not present the certificate at the time in accordance with the regulations, and cannot be considered a beneficiary without having complied with the requirements of the current regulations. It affirms that granting it such an advantage would imply an inequity with the firms that punctually complied with the regulations, openly violating art. 16 of the CN. It concludes that the plaintiff has not managed to overturn the contested resolution. Reserves the federal case, offers evidence and requests that the appeal be dismissed, with costs.
III) That at fs. 35 the cause is declared of pure law. At fs. 41 the files are elevated to Chamber E, which passes them to sentence.
IV) That on page 1/5 of file EA38 99 7861 there is the appeal filed by the plaintiff against charge No. 1318/99. On page 15, charge 1318/99 is formulated for a total of $3.400,25 as a fine and difference in duties. On page 17 there is an envelope with import dispatch No. 9212/2, made official on 16/6/94, and on the back there is a report from the UTV which shows that the certificate of origin was submitted out of term. On page 20 the case is opened for evidence. On page 21 there is a technical report from the verification area which shows that the certificate of origin cannot be considered valid, since it contains agreement AAR No. 4 and the DI refers to ACE 316.7. On page 30/31 Resolution – Ruling No. 15/02 is issued, appealed in this case.
V) That the reason for which the charge in question was formulated was the one stated in the preceding point, since the certificate of origin refers to the AAR Agreement No. 4, in addition to mentioning in field 3 Resolution 78 of the ALADI Representatives Committee, Chapter I, Article 1°. On the other hand, in field 47 of DI 9212-2/94 it is stated that it is ALADI Negotiated Merchandise, Percentage Preference 50%. AAPCE 16.7, or PAR 4, depending on the items.
That, except for the cases of butter in item 6 of the DI and the delicacy in item 8 of that DI, I do not see any concordance between the tariff items expressed in both documents, which in itself makes the certificate of origin inapplicable except in those cases.
In addition, pursuant to Article 1143 of the CA, whatever the criteria based on the discrepancy between international agreements, the certificate of origin of 22/7/94 expressly refers to the regime of Resolution No. 78 of the ALADI Committee of Representatives, which in Article 7 provides that: Certificates of origin issued for the purposes of the tariff reduction regime will have a validity period of 180 days, counting from the date of certification by the competent body or entity of the exporting country.
The plaintiff acknowledges that the certificate of origin was presented to the customs service on 4/5/99 (see pages 11 of the case; see also pages 6 of the previous administrative proceedings), that is, the period of validity granted having been comfortably exceeded.
That, therefore, the criterion of the Supreme Court, by majority, in re Autolatina Argentina SA, of 10/4/03, should be applied to the present case, in that the validity of the certificates of origin expires upon expiration of the 180-day period granted (although referring to ACE 14 and ACE 18, a solution that seems to extend to the sub-lite) and that by being submitted late, they lack the capacity to prove the origin of the merchandise according to the provisions of the regulations applicable to such operations. Furthermore, in the aforementioned ruling, the Supreme Court understood that this lack of capacity of the certificate of origin cannot be compensated by the ratifying report of the authority of the exporting country, since to do otherwise would mean ignoring the specific regulation established by the signatory parties without any valid justification. The High Court pointed out that such a conclusion, far from being based on sterile ritualism or hindering the process of regional integration, is in accordance with the guiding principle that this can only be carried out in strict compliance with the rules that make up the legal regime that supports it.
Therefore, I am in favor of confirming the contested resolution insofar as it formulated the tax assessment for differences between the preferential and general regimes, with costs, taking into account in particular the discrepancies between the certificate of origin and the import clearance.
VI) That with respect to the challenge to the liquidated interest, formulated on pages 16 back/17 of the proceedings, the plaintiff does not dispute its application prior to the formulation of the charge (see pages 15 of the previous annexes), but only considers that the rate to be taken into account from the date of the creation of the guarantee until April 3, 1998, is not three percent (3%) per month, but rather one percent (1%) per month (pages 16 back).
Therefore, in accordance with the dispositive principle, only the interest rate will be examined from the time the guarantee is established at the time of the officialization of the aforementioned transaction.
That Article 20 of Law 23.905 provided that: Import duties, export duties, as well as other taxes levied on imports and exports shall be determined in US dollars.
Payment may be made in the aforementioned currency, in export credit bonds, or in australes. In the latter case, the equivalent will be determined according to the exchange rate in effect on the day prior to the actual payment.
That Law 23.905 was published in the Official Gazette on 18/2/91, and was in force on the date of official clearance of the import in question.
That on 4/5/91 Resolution No. 38/91 of the Undersecretariat of Public Finance came into force, echoing in its Consideration the provisions of arts. 794, 797 and 799 of the CA, of Law 23.928 on convertibility and the aforementioned art. 20 of Law 23.905. It is expressly stated in the Consideration that the interest rates of Res. 5/89 were adapted to the new order (it is understood that in cases of debts prior to Law 23.905) and that also, due to the recent sanction of Law 23.905 and by virtue of the provisions of its article 20, it is also appropriate to set the interest rates applicable to those cases of tax amounts settled in US dollars.
That, consequently, the cited Resolution 38/91 set the interest rate referred to in art. 794 of the CA at 7% per month (art. 1); but set the rate of art. 1 of the CA at 794% per month when it concerns amounts settled in US dollars (art. 5).
That the cited Res. 38/91 remained in effect until 31/8/91, when Resolution 91/91 of the Undersecretariat of Public Finance came into effect, in order to adjust the interest rates to the new conditions of the financial market (see the section on this last Resolution). Art. 5 of the cited Res. 91/91 set the interest rate at 1% per month for the situation contemplated in art. 794 of the CA when it concerns amounts settled in US dollars.
That the amendment introduced by Resolution No. 21/91 of the Secretariat of Public Revenue to the cited Res. 91/91 did not change the provisions relating to art. 5 thereof, so that the interest rate of 1% per month continued to apply to debts arising from art. 20 of Law 23.905, a situation that continued until the validity of Resolution No. 360/96 (5/6/96). The latter Resolution set the interest rate of art. 794 of the CA at 36% per year, equivalent to 3% per month (art. 1), without specifically considering the cases of debts determined in US dollars in accordance with Law 23.905, for which reason these are governed by the general regime. Consequently, in these cases the interest rate of 3% per month shall also apply as of 5/6/96, taking into account the repeal of the aforementioned Resolution 21/91 and any other regulation that is contrary to Res. 360/96.
That, therefore, making use of the powers of art. 1143 of the CA for the reasons set forth herein, it is appropriate to grant the appellant's request up to 4/6/96 regarding the 1% interest rate.
Therefore, I vote for:
1) Modify Resolution-Ruling No. 50/02 of the Mendoza Customs, confirming charge 3400,25 as regards the settled tax differences since the automatic fine has not been disputed by the appellant, and order that until 4/6/96 the interest rate of 1% per month be applied, confirming in all other respects the settlement of interest for the taxes. Costs according to the due dates.
2°) Intimate the plaintiff to pay the remaining balance of the fee for proceedings, within the period of 5 days, under penalty of the General Secretariat of Customs Affairs issuing a certificate of debt.
3rd) Order the DGA to carry out liquidation in accordance with the terms of art. 1166 of the CA
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-Ruling No. 50/02 of the Mendoza Customs, confirming charge 3400,25 as regards the settled tax differences since the automatic fine has not been disputed by the appellant, and order that until 4/6/96 the interest rate of 1% per month be applied, confirming in all other respects the settlement of interest for the taxes. Costs according to the due dates.
2°) Intimate the plaintiff to pay the remaining balance of the fee for proceedings, within the period of 5 days, under penalty of the General Secretariat of Customs Affairs issuing a certificate of debt.
3rd) Order the DGA to carry out liquidation in accordance with the terms of art. 1166 of the CA
Register, notify, promptly return and archive the administrative records.
