Ferry Líneas Argentinas SA v. DGA s/ appeal – Lack of discharge of the statute of limitations

Buenos Aires, July 11, 2002
CARS AND SEEN:
File No. 13.922-A entitled FERRY LINEAS ARGENTINAS SA C/DGA S/REC. OF APPEALN, and
CONSIDERING:
I.- That on pages 10/14 the plaintiff firm, through its representative, files an appeal against PLA Resolution No. 2018/00 issued by the Head of the Customs Legal Procedures Department in file EAAA No. 603.862/99, by which said firm was sentenced to pay a fine under the terms of art. 954, paragraph a) of the CA and was charged with taxes, in its capacity as transport agent to whom the vessel Ciudad de Buenos Aires was consigned and due to the shortage (unjustified in time and form) upon unloading said vessel which arrived on 2.7.91/23/995 (the shortage of all the merchandise in bill of lading No. XNUMX stated in the respective cargo manifest was confirmed). The appellant raises the prescription of the tax authority's criminal action (which had already been done in the customs instance), pointing out that at the time the preliminary investigation was ordered (an act legally provided for as interrupting) this prescription had already occurred. It also raises the prescription of the tax authority's action to collect taxes. It expressly refers to the fact that in this case the causes of suspension (sic) do not apply, citing jurisprudence in this regard (according to this jurisprudence and the character of the plaintiff as a transport agent, the claim is that no effect could have on the course of the prescriptive period for the act of another, in this case the commission of one or more infractions by the carrier, for which the agent is legally responsible before customs). As to the merits of the matter, it states that the request for rectification was made with minimal delay (only a few business days with respect to the legal deadline), that in the case there was not a shortage of shipped merchandise but rather the merchandise was not shipped at origin (for which reason it claims - there could not have been fiscal damages and only a formal breach would be imputed: the short delay in the request for rectification), and that in any case the fact would fall within the type of infraction of art. XNUMX of the CA, also citing jurisprudence in this regard. It requests that the appealed resolution be revoked.
II.- That on pages 18/26 the fiscal representative attaches the administrative acts in the background of this case (file EAAA No. 603.862/99) and responds to the transfer of the appeal. It refers to the background of the matter and to the grievances of the plaintiff. It responds to the opposed prescription, maintaining that there were several interrupting events before the opening of the summary and after the facts of the case - constituted by infractions with a final conviction against the plaintiff, for which reason at the time of the aforementioned opening, the action had not prescribed. As to the merits of the matter, it affirms the commission of the alleged infringement (as well as the production of the taxable event, art. 142 of the CA) maintaining that the request for rectification of the manifest was untimely as well as the justification was late, invoking in this regard, in addition to the law and regulations, Resolution ANA 3015/84, as well as with regard to the fact that the declaration contained in the cargo manifest is classified as the alleged figure - art. 956 inc. c) of the CA. It requests the confirmation of the appealed customs decision.
III.- That on fs. 29 a measure is ordered to better provide (letter to customs to report on the plaintiff's infraction records between 28.11.94 and 29.11.99 - with a final conviction and, where appropriate, with referral of the respective summaries), whose compliance reiterated by means of, see fs. 33 and 35 - occurs on fs. 39, the administrative files sent in this regard by the customs service acting separately. On fs. 45 the files are elevated to this Chamber G and are submitted for judgment.
IV.- According to the administrative acts in the background of this case (case EAAA No. 603.862/99), the vessel Ciudad de Buenos Aires, consigned to the plaintiff firm in its capacity as customs transport agent, arrived at the Port of Buenos Aires (customs jurisdiction of the former Capital Operational Department) on 2.7.1991, and on that same date it was unloaded (see page 3 of the aforementioned file). Upon completion of said unloading, it was found that all the merchandise with bill of lading No. 23 of Colonia-Uruguay was missing, as indicated (transport agent in Uruguay, Disnasol SA) in the cargo manifest of the aforementioned vessel, and the plaintiff firm made the respective request for a reduction in the manifest on 12.7.91 (see page 1 of the aforementioned file). At page 6. A report was requested regarding the magnitude of the shortage (and the corresponding taxes), and depending on the magnitude of the shortage, the relevant infraction report was filed. The ship's cargo manifest is attached on 13 pages and 2 additional pages in the ship's file on page 10 of the aforementioned administrative act. The declaration of the merchandise in Colonia's bill of lading No. 12 (whose merchandise was found to be missing upon unloading) is included on page 23 of the aforementioned manifest.
It also arises from the evidence in the same administrative acts that upon unloading the same vessel the goods with bills of lading Nos. 1 and 25 of Colonia were also missing (that is, the goods with bills of ladings two other than the one involved in these proceedings), and that due to these other shortages the summary file No. 602.767/94 was processed, in which on 7.4.99 the Resolution DECONT 1753/99 was issued (see pages 11/14 of the administrative acts) by which, for the purposes of this article (see its art. 2, pages 13/14), it was ordered to break down file 416.608/91 in order to classify it under No. 600.000 and to process the complaint on page 6 thereof. Said file 416.608/91 is none other than the file 600.000/603.862, once labeled as 99, which constitutes and contains the administrative acts of this case (see also fs. 10). At fs. 16 (strictly speaking, refoliated as fs. 2 of the current file 603.862/99 and following on from page 15 of what was still the aforementioned file 416.608/91 before it was relabeled as 600.000) the opening of a summary was ordered, charging the plaintiff with the violation of art. 954 inc. a) of the CA, while at the same time bringing before her the sight of art. 1101 of the same code, informing her of the amount of the minimum fine and the amount of the taxes settled (?). At fs. 10/11 of the renewed file - the plaintiff answered the hearing. On pages 12 and 14 there are separate reports on previous infractions (the first report on previous records since 2.7.91/23.3.2000/15, and the second on previous records in the five years prior to 16/XNUMX/XNUMX. On pages XNUMX/XNUMX back, the judgment appealed from in the proceedings was issued, by which the plaintiff was convicted of the alleged infraction, imposing a fine of five times (this results from making the respective calculations here) the alleged amount of taxes there, and a charge was filed against her for said alleged amount of taxes.
VI.- That first of all the undersigned observe that the amount taken in the appealed judgment as the amount of the taxes for which the charge was made to the plaintiff (and at the same time the basis for calculating the fine applied: five times said amount) is in fact the amount of the value of the merchandise in question (value resulting from applying the unit value determined by customs from the description of the merchandise recorded in the manifest - of $2.900 per ton, by the weight of the merchandise also recorded in the manifest), of $51.910 (see pages 8 of the administrative acts, when they were still file 416.608/91), that is to say that in fact this amount would not correspond to taxes (but to the value of the missing merchandise); without prejudice to which it should also be noted that the plaintiff in any case does not specifically or concretely question either the value referred to or that this amount corresponds to taxes. However, this aspect is subject to what is appropriate according to the subject matter to be dealt with in the following chapter.
VII.- That, in the case of a shortage noted on 2.7.91 with respect to a cargo manifest submitted (with the declaration it contains) on the same date, the limitation period for customs action to apply the sanction for the infringement charged in the proceedings (art. 934 of the CA) began to run on 1 January 1992 (art. 935 of the CA) and would therefore have expired on 1 January 1997. This would be hindered by one of the interrupting acts provided for in art. 937 of the CA and, ruling out at first glance the opening of the summary and the issuance of the condemnatory resolution (which occurred much later, on 29.11.99 and 29.3.00 respectively), the consideration remains of the commission of another customs infringement or infringements (or, where appropriate, a customs crime) because customs invokes the existence of such interrupting infringement acts.
It is clear that one or more interruptive infringements - in order to have such an interruptive effect - must have been committed from 29.11.94 inclusive, since any infringement committed before that date would in any case have produced the effect of the new limitation period expiring before 29.11.99, the latter date being the date on which the summary proceedings were opened (an act that could certainly be interruptive).
In this case, and as a result of the better provision measure ordered by this Court, the customs office sent files 604.001/95, 600.632/95, 604.299/97, 603.532/95 and 601.713/95 (with their attached files, see pages 38/39 of the proceedings), which are filed separately.
Of the aforementioned summary files processed for infractions - it is appropriate to discard for the purposes of this case: file 601.713/95, which has nothing to do with the plaintiff firm; and files 603.532/95, 604.001/95 and 600.632/95, which although they contain final convictions against the plaintiff firm, however refer to infractions committed on 25.8.92, 13.9.94 and 12.6.94, respectively, that is, prior to 29.11.94). However, file 604.299/97 should be taken into account since it contains a final conviction against the plaintiff and refers to (two) acts committed on 29.5.95 and 15.8.95.
It should be noted at this point that it is not necessary to consider here the plaintiff's argument that the infractions committed by the carrier, such as the case of missing items upon unloading, as in the case at hand, should not be computed as interruptive events (this because, according to the plaintiff, such events are not events committed by it but only events of a third party with respect to which the customs has legal authority to direct its action against the plaintiff here, and which therefore would not be computable as interruptive events as the customs considered in the case at hand). The above, because the (two) events that in the case as seen previously are, due to their dates of commission and because they have a final conviction against the plaintiff, are susceptible to consideration, that is, those in the file. 604.299/97, as can be seen, are violations of the container regime (specifically violations classified by art. 970 of the CA - configured by the non-re-exportation in terms of containers temporarily imported by the plaintiff firm), which are facts (or omissions), specifically failure to comply with various obligations of the container and temporary import regimes, undoubtedly attributable to the plaintiff directly (as a temporary importer and holder, as a transport agent, of the power to operate with containers) and not as reflected liability (due to the acts of third parties).
Such facts (it should be noted in this regard that the plaintiff did not raise any objection to the aforementioned file 604.299/97 which - together with the others sent by the customs - was specifically reviewed by it (see pages 42 and 44 - while it was also notified of the respective measure to better provide, see pages 29 and 31) produced in the case the interrupting effect provided for in art. 937, paragraph b) of the CA and therefore the new prescription period would have expired on 15.8.00, date before which the interrupting acts of 29.11.99 and 29.3.00 occurred (the aforementioned opening of the summary and condemnatory resolution, respectively); for which reason it is appropriate here to reject the defense of prescription of the criminal action of the customs.
VIII.- That, nevertheless, the statute of limitations on the tax authority's action to collect taxes has occurred in this case. In fact, having also begun its course on January 1, 1992 (see art. 804 of the CA), the respective term expired on January 1, 1997 without any event or act having occurred until then that would suspend or interrupt it (provided for respectively in arts. 805 and 806 of the CA), it being appropriate to point out in this regard: a) that the commission of the plaintiff's infractions (which, as seen, constituted events that interrupted the statute of limitations on the customs criminal action) are not relevant in the aspect under consideration here, since it is quite clear that such events that interrupt are only and specifically provided for in customs criminal action; (b) that the treatment of the statute of limitations for customs actions is separate and autonomous with respect to each of the actions that (in the present case) could be at stake, specifically the action to apply sanctions (articles 934 et seq.), the action to collect customs duties (articles 803 et seq.), and the action to enforce penalties for infractions (articles 939 et seq.), are treated as such in the CA (and even so are their specific causes for suspension and interruption); (c) that particularly, at the time - 29.11.99 - when the summary was opened in the case (an act that in this case and as seen was effectively interruptive of the criminal action, and at the same time an act foreseen in the abstract as suspensive with respect to the customs tax action), the customs tax action was already prescribed in the case (as of 1.1.97); and d) that… the decision (final resolution in the procedure for infractions) that enables the exercise of the action to collect the tax when said exercise is subordinated to that decision, to which art. 805 inc. refers. a) of the CA when regulating the suspensive act (of the prescription of the tax action) constituted by... the opening of the summary, does not mean nor can it be interpreted in the sense that although the two actions (the criminal and the tax) are exercised jointly in a procedure for the infractions when the infraction is at the same time and as in the case of the fact taxed by customs duties- the prescription of one action (with its suspensive and interruptive causes) is or should be subordinated to the prescription of the other action (with its own and specific suspensive and interruptive causes), but merely that both prescriptions (of said actions) are related or linked, and only in the particular case of the cited art. 805 inc. a), exclusively when the suspensive assumption specifically provided for therein had occurred for the prescription of the tax action, which does not occur when, as in the case- said action had already prescribed.
Therefore, it is appropriate to make way for the defense of prescription with respect to the customs tax action.
IX.- That, as regards the merits of the matter, the alleged infringement has actually been committed. This is so in that not only was the request for rectification made outside the regulated period and without the regulated formalities (strictly speaking, such request is not regulated but legally it is regulated by art. 142 of the CA - only the justification of the shortage, within two days of the end of unloading, and according to the regulations Resol. ANA 3015/84 - such request was provided for but by means of a specific telex or telegram, with the additional requirements of the respective and corroborating letter of rectification within a period of ten days - and the effective arrival of the shortage within a period of 31 days from the request-), ​​which is not disputed, but, what is absolutely decisive, that shortage was not justified in any way (in this case the plaintiff had invoked and invokes in the proceedings that the merchandise had not been shipped at origin), neither with the pertinent letter of rectification nor in any other way, within any period. Thus, the entire argument of the plaintiff, referring to the fact that it was merely a formal breach due to the request for rectification being submitted out of term, is absolutely irrelevant in the face of the total lack of proof of the cause of the shortage, that is, in the face of the total absence of justification (neither in the legal term of art. 142 of the CA, nor in the regulatory terms of the aforementioned Resol. ANA 3015/84, nor in the form provided for in that regulation and in this Resolution, nor in any other form).
Then, a declaration was made (in the cargo manifest, art. 956 inc. c. of the CA) which was deferred from verification (the declared merchandise was found to be missing - all of the merchandise in question), with the fiscal detriment (arts. 954 inc. a. and 856 inc. b. of the CA) constituted by the possibility - if customs had not noticed the shortage - of not collecting the taxes that were due to be paid as established (by virtue of said unjustified shortage) by art. 142 of the CA, and this independently of the fact that because the customs tax action later expired - in the end those taxes did not have to be paid (as results from the provisions herein).
Therefore, it is appropriate to confirm the resolution appealed in this case insofar as a sanction is imposed on the plaintiff for the alleged infringement.
However, the undersigned consider that in this case there were no reasons to justify the fine applied, which was five times the amount of the taxes corresponding to the missing merchandise.
Regarding this graduation (five times the base fine considered) it should be noted that, despite the 19 precedents that the customs judge took into account to graduate the penalty (those reported on fs. 14 of the administrative acts) or, where appropriate, despite the 17 antecedents that result from the report on fs. 12 of the administrative acts, despite the fact that all of them refer to final convictions against the plaintiff, despite the fact that they are not disputed by the plaintiff, and despite the fact that art. 915 of the CA provides for taking into account for the graduation of penalties, among other aspects- … the offender's antecedents, it is not appropriate that the aforementioned antecedents (those taken into account in the appealed judgment and the others on fs. 12), specifically them, be taken into account for such purpose and in the case at hand, and this regardless of whether such acts were or were not committed by the plaintiff (that is, whether they were committed by the carrier and the plaintiff's liability was reflected).
The above is based on the fact that it is evident, in the opinion of the undersigned, that the antecedents referred to in the aforementioned art. 915 cannot but be linked to the concept of recidivism in arts. 927 and 928 of the CA. In effect, the consideration of recidivism (according to what is established in art. 927) is ... for the purposes of this Title (that is, Title I of Section XII of the CA), without any other effect or purpose being noted in said Title I, than that of constituting the respective conviction based on the presupposition of recidivism - one or more of the aforementioned antecedents; and from the harmonious interplay of the aforementioned arts. 927 and 928 it is clear that the relevant facts to constitute recidivism are the final convictions (for a crime or infraction) prior to the new customs infraction. In other words, the only precedent to be taken into account when graduating the penalty for a customs violation is a final conviction prior to that violation, a finality that must logically exist at the time of issuing a final decision regarding the new violation. In short, only facts with a final conviction prior to the event for whose trial and respective graduating of the penalty must be taken into account may be taken into account as precedents (obviously the facts of these final convictions will also be prior to the event of the new violation in whose trial said convictions are taken into account as precedents).
In the case, the background or backgrounds suitable to be taken into account in the graduation of the fine to be applied, they should have been final convictions prior to 2.7.91, which was the latter - the date of commission of the infraction charged in the proceedings. The background information resulting from the report on fs. 12 of the administrative acts refers instead to… 17 customs infractions committed after 2.7.91, so that none of them, although they had a final conviction according to that report - could have had a final conviction prior to 2.7.91. For its part, the background information reported on fs. 14 of the administrative acts. They refer to 19 cases in which the resolution (supposedly with a conviction) has become … final during the last five years (obviously during the five years prior to 23.3.00, which is the date of the report), so that the final convictions reported there occurred between 23.3.95 and 23.3.00, and therefore none of them constituted a final conviction prior to 2.7.91.
Furthermore, none of the four files submitted to the case for the better provision measure relating to the claim of prescription of the criminal action and which refer to convictions against the plaintiff (see the preceding chapter VII) show a final conviction prior to 2.7.91.
In short, although some of the facts (infractions) that constituted the plaintiff's background considered in this chapter could, due to their date of commission (which was somewhat later than the date of the infraction charged in this case), be taken as facts that interrupt the prescription of the criminal action in the case at hand (this occurred, as we have seen, with the facts in file 604.299/97 which is added as a separate file), however none of them, in particular none of their respective final convictions, can also, due to their dates of becoming final, subsequent to the fact being tried in this case, be taken as background for sentencing in the sub-lite.
Consequently, and since no other aggravating circumstances are noted, the fine applied in this case should be reduced to one time the amount of the corresponding taxes.
X.- That in view of the observation made in recital VI of this document, and for the purposes of numerically determining the amount of the fine to be applied in this case in accordance with the preceding conclusion, once this document is final, it is appropriate to order the customs to liquidate the amount of the taxes that should have been paid for the missing merchandise, taking into account the date of verification of the shortage (2.7.91), and the PA and the value of the merchandise determined on page 8 of the administrative acts.
XI.- That the costs must be imposed in the order caused. This is so because the defense of prescription is successful in one part (the prescription of the tax action) and is rejected in the other part (the criminal action), and in both cases for reasons introduced ex officio; and because, as to the substance of the matter, although the fine applied is considerably reduced (and even in a favorable proportion to the plaintiff who thus results numerically victorious), this has been for reasons introduced ex officio, while the plaintiff is losing as to the main aspect which is the confirmation of the commission of the imputed infraction; to which it should be added that the departure from the general principle of costs to the loser (or in proportion to the respective and mutual due dates), departure based on well-founded reasons (and those previously indicated are sufficient in this regard), is, in the opinion of the undersigned, legally possible by virtue of the provisions of art. 184 of Law 11.683 according to the text given by Law 25.239, of mandatory and necessary application to the powers of this Court in customs matters, provided for in art. 1163 of the CA.
Therefore IT IS RESOLVED:
1.- Reject the defense of prescription raised by the plaintiff in relation to the action of the customs to apply a sanction in the case at hand.
2.- Declare the statute of limitations on the customs action to collect the taxes claimed from the plaintiff in this case, and therefore annul the respective tax requirement contained in the resolution appealed in this case.
3.- Partially confirm the DEPLA Resolution No. 2018/00 issued in file EAAA No. 603.862/99 and appealed in this case, confirming it insofar as it condemns the plaintiff for the alleged infringement, but reducing the fine applied to an amount equivalent to one time that of the corresponding taxes, in accordance with the provisions of recital X of this document.
4.- Once this document is signed, the customs office must carry out a liquidation in order to determine the amount of the fine in accordance with the provisions of the preceding point and in the terms indicated in recital X of this judgment.
5.- Costs in order.
Register, notify, return administrative acts, and file.
This document is signed by Drs. Jorge C. Sarli and Elena D. Fernández de la Puente as Dr. Rodolfo H. Cambra is on leave (art. 1162 of the CA).