In Buenos Aires, on December 19, 2002, 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 FEXPORT SA v. DGA s/ appeal; file No. 17.033-A
I) That on pages 12/15 Fexport SA, through its representative, lodges an appeal against Resolution 232/2002, issued by the Customs Legal Procedures Department on 4/2/02 in file No. 580.010/92. It states that it was charged for differences in taxes for export operations processed before the customs offices of Bahía Blanca and San Lorenzo in March and April 1990, as a result of late payments, that is, after the waiting periods had expired; that the charges were notified by mail and that the notifications were contained in envelopes that were returned by the Post Office unopened. It states that it raised the nullity of the notifications of the charges and initiated an appeal procedure in this regard. The Court maintains that the amounts claimed on the basis of the application of higher duty rates were not included in the assessments of taxes and accessories made in 1992, and that this would be a new requirement for a new supplementary determination of taxes that is only now being notified to the plaintiff. The Court understands that due to this new requirement regarding the increase in rates, not included in the original charges, the prescription of the actions of the Treasury to claim payment according to the terms established in arts. 803 and 804 of the CA operated. The Court considers that the amount of the interest was claimed as a capital balance, since the payments were first imputed to interest and the balance to capital. It details the interest accrued on the taxes at the time of payment in relation to some charges. He claims that since the amounts are due in April 1990, the update should be made as of that month and that, however, the technical report and the appealed decision calculated the update from March 1990, since that was the month in which the waiting period expired. He offers evidence and requests that the appealed decision be revoked, with costs.
II) That on pages 23/28 the fiscal representation answers the transfer that was duly conferred on it. It makes a brief review of the actions and the grievances raised by the plaintiff. It maintains that the shipping permits in question were registered prior to the entry into force of law 23.905, for which reason the applicable compensatory interest rate is the one established by art. 794 of the CA, and that the interest applied has been in accordance with the guidelines of the Customs Code and Resolution 3120/88. It indicates that the interest rate used is justified by the law applicable to the case, which would be 22.415, and that it does not conflict with law 23.928, which did not alter the provisions on updating and interest of the tax system prior to 1/4/91. He points out that the payment did not extinguish the decision because it was not timely and complete, and that, therefore, after the liquidation was made, charges were made for the differences owed. He reserves the federal case, offers evidence and requests that the customs resolution be confirmed, with costs.
III) That on page 33 the cause is declared as purely legal and the proceedings are sent to Chamber E, which passes them on to judgment.
IV) That at fs. 1 of file 580.010/92 is the charge number 014/92 for an amount of three thousand one hundred and forty pesos and sixty-six cents ($3140.66). At fs. 2 looks like the PE envelope 0429 dated 16/02/90. At fs. 3 work the charge 015/92 corresponding to the PE 811/90 dated 22/03/90 which appears in an envelope on fs. 4. At fs. 5 work the charge 016/92 corresponding to the PE 0812/90 dated 22/03/90 which appears in an envelope on fs. 6. At fs. 7 work the charge 017/92 corresponding to the PE 0813/90 dated 22/03/90 which appears in an envelope on fs. 8. At fs. 13. Provision 140/92 provides for the suspension of the plaintiff's registry of importers and exporters. At fs. 15 attached is file EAAA No. 580.011 and fs. 16 work the charge 012/92 corresponding to the PE 1115/90 dated 13/03/90 which appears in an envelope on fs. 17. At fs. 18 work the charge 013/92 corresponding to the PE 1179/90 dated 16/03/90 which appears in an envelope on fs. 19. At fs. 24 shows provision No. 142/92, which provides for the suspension of the plaintiff's registration as importers and exporters. At fs. 25 attached is file EAAA No. 580.012 and fs. 26 work the charge 018/92 corresponding to the PE 1114/90 dated 13/03/90 which appears in an envelope on fs. 27. At fs. 28 the charge 019/92 corresponding to PE1160/90 dated 15/03/90 appears in an envelope on fs. 29. At fs. 30 work the charge 020/92 corresponding to the PE 1161/90 dated 15/03/90 which appears in an envelope on fs. 31. At fs. 36 shows provision No. 141/92, which provides for the suspension of the plaintiff's registration as importers and exporters. At fs. 38 Attached is file EAAA No. 580.019. At fs. 39 work the charge 028/92 corresponding to the PE 1159/90 dated 15/03/90 which appears in an envelope on fs. 40. At fs. 41 work the charge 029/92 corresponding to the PE 1158/90 dated 15/03/90 which appears in an envelope on fs. 42. At fs. 43 work the charge 030/92 corresponding to the PE 1156/90 dated 15/03/90 which appears in an envelope on fs. 44. At fs. 45 work the charge 031/92 corresponding to the PE 1155/90 dated 15/03/90 which shows the number 46 in an envelope. At fs. 51 provision No. 143/92 provides for the suspension of the plaintiff's registration as importers and exporters. At fs. 53/64 the plaintiff initiates the challenge procedure. At fs. 69 The challenge is rejected as untimely. At fs. 75 Attached is file EAAA No. 411.349. At fs. 76/79 the plaintiff promotes the incident of nullity and requests that the suspension decreed be lifted, a request to which this Court and the Chamber grant (see fs. 103 / 113). At fs. 115/166 the settlements of interest corresponding to the DI are formulated subscribers after the deadline. On 4/1/99 the Div. Summaries and Procedures issues a technical report On 17/1/2002, at fs. 177/242, the report of the Export Inspection and Valuation Division is issued, in which it estimates that some of the rates to be applied should be higher than those calculated by the plaintiff. At fs. 243/246 contains Resolution No. 232/2002 appealed in this case.
V) That, since these are export operations formalized in 1990, in this case the five-year limitation period began to run on 1/1/91 (see arts. 803 and 804 of the CA) and was interrupted by the notification of the customs liquidations according to art. 806 inc. a) of the CA, and should have been deemed to have been notified to the appellant on 23/4/92, when the challenge was filed (see judgment of this Court on pages 105/109 of the administrative antecedents and confirmation of the Appeal Court on pages 110/113 of said antecedents).
That, however, the reasons for which the aforementioned customs liquidations contained in the charges notified on 23/4/92 Nos. 014/92, 015/92, 016/92, 017/92, 012/92, 013/92, 018/92, 019/92, 020/92, 028/92, 029/92, 030/92 and 031/92 were formulated, were solely that the payments did not comply with the provisions of art. 54, section 1, paragraph a) of decree 1001/82, because the due date for payment of the taxes had occurred previously.
Therefore, I consider that the higher rates provided for by the report on pages 177/242 of 17/1/2002 should be voided, given that this report was produced when the statute of limitations had run for such tax claim.
That this is not hindered by the claim that the payments made by the plaintiff had not been made in full, since the customs office during the limitation period did not even invoke the inaccuracy of the rates applied by the appellant, since a solution contrary to the one I am advocating here would contravene the principle of legal certainty.
VI) That having established the above, it is appropriate to rule on the grievances relating to the interest rates and the update calculated by customs.
That the appellant is not right in maintaining that the update of art. 799 of the CA should always have been computed from the month of April 1990 and not from March 1990, since there were cases of shipping permits with expiration dates in this month (PE 429/90, 1115/90, 1179/90, 1114/90, 1160/90, 1161/90, 1159/90. 1158/90, 1156/90 and 1155/90), without the plaintiff specifically contesting the expiration dates computed by customs. Furthermore, on page 14 of the proceedings it acknowledges that the defendants claimed payment of the interest accrued between the date on which the payments should have been made and the date on which they were made.
That the update should have been computed in all cases at the time of the expiration of the waiting period, when the appellant's default occurred, and not at the time of the payments made. The update is only computed from April 1990 in the cases of PE Nos. 811/90, 812g/90 and 813/90.
In order to better visualize the situation raised by the plaintiff and in order to refute what she stated on pages 14/vta. of the proceedings, I prepare the following table, in which the charges whose liquidation of interest at the time of late payment has not been specifically disputed by the appellant, nor the amounts recorded by the appellant for being partial at the time of payment, are not computed:
Interest Permit Charge at time of payment: 10/4/90
013/92 1179/90 34,88%
019/92 1160/90 34,88%
020/92 1161/90 34,88%
Interest Permit Charge at time of payment: 3/4/90
012/92 1115/90 34,84%
018/92 1114/90 34,84%
028/92 1159/90 34,84%
029/92 1158/90 34,84%
030/92 1156/90 34,84%
031/92 1155/90 34,84%
Although the interest rates coincide with those stated by the plaintiff on pages 14/vta. of the proceedings and by the customs in the appealed charges, it must be taken into account that, as I have held, among others, in the judgments of Chamber G, Scioli SA, dated 30/9/85, and of Chamber E, in Banco Mercantil SA, dated 30/11/88, and Oleaginosa Río Cuarto SA, dated 24/5/93, in the case of late payments, the deposit of the nominal amount must be imputed first to the accessories and then to the capital; that is, the sum paid is imputed first to the interest and then to the updated tax [. . .] computing the update accrued at the time of payment. There is no anatocism when the tax authority liquidates the update and the interest on the unpaid portion of the updated tax, to the extent that the sum paid late covers the totality of the interest accrued up to the time of payment. In this case, the interest is not capitalized, accruing, in turn, interest. He added in such votes, in the referred pronouncements, that if the sum paid covered, at the date of payment, the totality of the interest, the unpaid remainder generates an update and interest, since it is, in reality, a portion of the principal debt not cancelled.
That this form of customs imputation is generally upheld at present, being noteworthy that the Tax Court of the Nation in the plenary judgment issued in Scioli SA, dated 20/5/87, established as legal doctrine: That in the case of partial payments made outside the period established to pay taxes by customs legislation, they must be imputed first to interest.
Furthermore, art. 800 of the CA provides that the receipt of an amount as payment of a tax obligation by the customs service, without the latter making a reservation for the interest or monetary update [in force until law 23.928] that may correspond, does not extinguish the obligation with respect to these concepts.
That the appellant has not raised any other specific grievances.
Therefore, I vote for:
1st) Modify Resolution No. 232/2002 of the Department of Customs Legal Procedures in the manner arising from this vote, declaring the tax claim for higher rates in the report on pages 177/242 of the ant. adm. Costs as prescribed in accordance with the due dates.
2º) Order the DGA to, within 30 days, formulate the liquidation in accordance with the guidelines of this vote, in accordance with the terms of art. 1166 of the CA
3) Once the liquidation has been approved, the plaintiff shall pay the balance that may be owed on the fee for proceedings, under penalty of the General Secretariat of Customs Affairs issuing a certificate of debt.
Dr. Winkler said:
I agree with the preceding vote.
Dr. Gustavo A. Krause Murguiondo said:
That substantially agrees with the vote of Dr. García Vizcaíno.
In accordance with the above agreement, it is unanimously RESOLVED:
1st) Modify Resolution No. 232/2002 of the Department of Customs Legal Procedures in the manner arising from this vote, declaring the tax claim for higher rates in the report on pages 177/242 of the ant. adm. Costs as prescribed in accordance with the due dates.
2º) Order the DGA to, within 30 days, formulate the liquidation in accordance with the guidelines of this vote, in accordance with the terms of art. 1166 of the CA
3) Once the liquidation has been approved, the plaintiff shall pay the balance that may be owed on the fee for proceedings, under penalty of the General Secretariat of Customs Affairs issuing a certificate of debt.
Register, notify, promptly return and archive the administrative records.
