Rectification of customs declarations. Inaccurate tariff position declaration – Maria System – Application of the CER –
In Buenos Aires, on the 27th day of the month of May 2003, the Judges of Chamber E, Drs. D. Paula Winkler, Gustavo A. Krause Murguiondo and Catalina García Vizcaíno, with the second of the aforementioned presiding, met to rule on the case entitled: FORD ARGENTINA SA s/ appeal, file TFN No. 17.419-A;
Dr. Winkler said:
I.- That on pages 49/66 and back, the signature of the epigraph, through its representative, files an appeal against ruling No. 44/02 of the Campana customs office, which condemns it to pay a fine under the terms of paragraph a) of article 954 of the CA and requires it to pay tax differences. It states that, through import No. 99 008IC0500363, it imported 17 heavy trucks (Cargo 1730 Diesel) that were mistakenly declared in a tariff item corresponding to trucks with tractors when in reality they were trucks without tractors (see pages 49 of the start writing). It adds that the difference is given by a plate or disk that the unit has that serves as a trailer hitch, and that the rest of the vehicle is the same, notwithstanding which it classifies it in a different position. Since the commercial invoice was ambivalent for both trucks, the declaration repeated the pa of the co that, by mistake, contained the corresponding one to the truck that has such a coupling disk. It is noteworthy that since the orange channel was assigned to the dispatch, the physical verification of the merchandise did not operate, and the documentary verification that was carried out according to the assigned channel did not cause any inconvenience. It adds that, when the procedures in the Registry of Motor Vehicle Property were initiated, this entity refused to validate the import due to the difference in the trucks, so, immediately, its party requested the rectification of the pertinent dispatch. After the request, it says- it attached the complementary certificates of origin in which the respective pa was recorded, in order to correct the error incurred. It considers that such co are complementary as long as they only modify one field, despite which it warns- the customs rejected those documents, also invoking the CCM Directive No. 12/96, which prohibits this circumstance. The company considers that there is no fiscal prejudice since the declared origin is correct, and therefore considers that the customs claim incurs in a formal rigorism that is detrimental to it. It adds that the intended application of art. 20 of law 23.905 by the customs service is illegitimate and it expands on the grounds that, in its opinion, mean that no infraction can be attributed to it and even less, tax differences can be demanded from it. It cites jurisprudence that would support its right, it is aggrieved by the calculation of taxes and reserves the right to apply the federal case.
II.- That on pages 76/83 the fiscal representation answers the transfer conferred. After making a generic denial of all the facts and the right that are not of its express recognition, it refers to the grievances of the plaintiff, which it answers. It considers that in the case the self-denunciation regulated in art. 917 of the CA is not applicable, since in this case the merchandise was dispatched to the plaza. Although it recognizes that it was, without the physical verification of the merchandise having taken place, in relation to the orange channel, assigned to the operation, it points out that the classification difference arises at the time of registration of the units before the Registry of Motor Vehicle Property. It adds that it must be taken into account that the importer commits its declaration through the position marked by the MARÍA System, for which reason it should have been extremely diligent. As regards the appellant's defence, based on the fact that it would be an error that could not be overlooked, because it arises from the comparison of the supporting documentation of the dispatch, she says that she herself recognises that the error does not arise from the dispatch and cites jurisprudence that would support her right. She cites in her favour the provisions of Resolution No. 1394/97 and its amendment, No. 2463/97, alleging that the customs office did nothing but comply with the regulations on the matter. She therefore considers that the certificates presented are invalid, considering that in the event of a substantial breach, the importer cannot avail itself of a preferential regime, and that the extra-zone regime should be applied to it. She considers the system of consultation with the country certifying the origin of the imported merchandise to be inapplicable in this case, refers to the supra-legal scope of the treaties signed with Argentina, and requests that the appealed ruling be confirmed in due course.
III.- That on page 86 the files are sent to Chamber E, which passes them on to judgment on page 89, so the case is ready to be resolved. That from the comparison of the contentious summary SA 08 N° 034/99 it appears that, on 16.7.99 the accused had to request a rectification of dispatch 99 008 IC05 000363 C in relation to sub-item 1 sub-items 0003 and 0004 regarding the Ford brand vehicles, cargo 130 Diesel model Z 997 and Z 998, corresponding to commercial invoices No. 9910522 and 9910521. This is so, since said merchandise is classified in pa 8704.22.10.900, value suffixes CA 00 ZA1998 ZB 8.270 cm3 and ZC 17.500 kg, all of which results from the comparison of said invoices and the dispatch in view, mentioned (see container folder of fs. 15, office and its supporting documentation).
That from the comparison of the above with the respective dispatch, invoices and certificates originally attached, it is evident that there was an error not only in the marking of the tariff item, but also in the value of the declared merchandise for which rectification is requested. Indeed, in the DIE an FOB value in US currency of 781.311,80 was declared, which corresponded to the merchandise of item 1 according to the partial values of the sub-items for 27.567,44, 55.134,88, 74.722 and 88, while if the corrected values corresponding to invoices 623.886,60 and 9910522 are applied, worth US$ 9910521 and 413.840, respectively, the value would have been US$ 281.226 (777.768, amount corresponding to said invoices, plus the 32 and 695.966 referred to the uncorrected sub-items). Due to the aforementioned invoices, the plaintiff had to submit new certificates of origin, dated 27.567,44 (see pages 55.134,88/26.8.99 of the file in question), which she did together with her request for reconsideration on pages 33/34, on 35. The dispatch was made official on 39 and, according to the records of the agreement, the dispatch to the square took place on 1.9.99. On pages 1.6.99, dated 3.6.99, the summary is opened and the defendant is ordered to be given a hearing, which is notified on 40 (see record of pages 16.9.99 back). On pages 21.9.99/42 the defendant answers the hearing, producing the argument, after the evidence was produced, on pages 43/49. On pages 89 The debt for taxes is settled in US dollars, calculating the interest as of 116, also in that currency, an amount that is transformed into pesos by applying the free market exchange rate to the value of 120, which is the date on which the calculation is made. On pages 29.10.99/14.6.02, judgment No. 121/125 is issued, which was appealed.
IV.- That from the preceding account it arises that, in effect, the error in the statement contained in the dispatch in view arises from the mere comparison of the dispatch and its complementary documentation.
Based on this fact, the plaintiff, among its arguments, considers that neither the customs tax requirement nor the application of a fine is appropriate.
Although art. 957 of the CA establishes that an inaccurate tariff classification is not punishable, all the necessary elements that allow the customs service to make the correct classification had been indicated and that inc. a) of art. 959 provides that inaccuracy is not punishable when it is proven by simply reading the declaration itself, in the particular case under examination, what in my opinion is analysable, on a preliminary basis, is whether the declarant, that is to say the importer, could legitimately exercise its right to rectify its declaration.
V.- It cannot be ignored that, in this case, the office was set up in accordance with the MARIA SYSTEM.
I have ruled in re: Disporteko SA, judgment of 24.2.99, that if a tariff item is detailed that is different from that which corresponds to the merchandise, the tax treatment that the system itself inflicts on it will also be different and, therefore, the document-holder will have paid, or will pay, taxes different from those that correspond. (…) And this has the logical consequence that on the one hand the obligation of the importer or exporter is to take extreme care in order to choose the text that best corresponds to the merchandise in question, but on the other hand the circumstance that said taxpayer has or had in the species the minimum conditions assured to correctly exercise his option is not neglected. For this reason, in said precedent, of a different nature to that now analyzed, I considered that the violations contemplated in the rule now involved could not be resolved with the jurisprudential parameters with which they had been resolved until the adoption of the MARíA computerized system.
In this case, the customs office does not dispute that the incorrectly declared tariff item (the one that should have been validated was not that one: 8701.20.00.900, but 8704.22.10.900) did not change the tax treatment of the merchandise, if its origin was not controversial. It cannot be forgotten either that, since the plaintiff paid VAT for an amount greater than that which corresponded, since in its rectification it also adjusted the value of the merchandise for a smaller amount, it did not produce and could not produce, in principle, the tax damage contemplated by the rate of inc. a) of section 1 of art. 954 of the CA. However, what the customs office intends is to collect taxes on the merchandise as if the import were from outside the zone by virtue of considering the new taxes that the plaintiff submitted by rectifying the pa and the description of the merchandise to be inapplicable.
Even when dealing with the MARÍA system, in my opinion, the power contemplated in art. 225 of the CA is not invalidated, as long as the principles that inform the system are taken into account, according to the cited precedent.
That said art. literally reads: The customs service will authorize the rectification or extension of the customs declaration when the inaccuracy is verifiable by simple reading or by reading the complementary documents attached to it and it was requested before the difference had been noticed by any means by the customs service, before a customs inspection had begun or before the preparatory acts of the clearance ordered by the verifying agent had been initiated (emphasis mine).
The question is to determine whether, in the particular case under examination, when the orange channel (documentary control) was assigned to the operation in view, any of the circumstances provided for in said regulation had already occurred, that is, whether there had been preparatory customs acts, prior to the plaintiff's presentation on 16.7.99, since, as I have explained, the difference arose in the type of comparison of the dispatch with the complementary documentation.
It should be noted that said presentation was made after the merchandise was dispatched to the square, which, as I said, occurred on 3.6.99 (see the container envelope on page 15 of the administrative proceedings).
VI.- That it is true that said faculty has been regulated, successively, by the ex ANA resolutions No. 1237/97 and 2643/97. The latter, in force at the time of the events, provided for the modification of point 2.3 of Annex III of the first, determining that in the applications for destination affected to RED or ORANGE CHANNEL, the rectification, modification or extension of the compromised declaration will not proceed, once the assignment of said channel has occurred, which determines the beginning of the preparatory acts of the dispatch, in accordance with the provisions of Article 225 and related articles of Law 22.415, (…).
That, as a consequence of SEH Resolutions No. 215 and 217/00 (B.0. of 21.6.00/1/2001), General Instruction No. XNUMX/XNUMX DGA was issued, which literally stated: The change to RED CHANNEL made after the assignment of the Green and Orange Channels, upon officialization will constitute the beginning of customs inspection for the purposes established in the legal norm cited in the previous paragraph, consequently it is not appropriate to authorize the rectification when it has been requested once said channel change has been made.
That, in light of the facts discussed, the customs office did not physically verify the merchandise in this case, a fact acknowledged by the customs service in the motivation for the resolution now being appealed.
However, in my opinion, a textual application of the rule contained in art. 225 of the CA cannot be made beyond the Instruction and commented resolutions issued by the customs. In effect, in my opinion, it makes no sense at all that a destination whose merchandise had already been cleared to the place can be subject to any rectification. Simply, in the case under examination, even if the aforementioned Instruction 1/2001 of the DGA were considered to be in accordance - that there was no beginning of customs inspection, since only the orange channel was assigned to the destination - there was a completed operation, so it seems reasonable to consider that the respective declaration, already registered, with the correct clearance, was unalterable in all respects in accordance with the principle contained in art. 224 of the CA.
Although the aforementioned regulations contemplate a power of the importer, since the principle is the inalterability of customs declarations, this is specifically regulated and it is not possible to make an analogical or literal application of the exception, which, as in the case, would be consecrating an absurdity: rectifying a declaration, whose merchandise has already been nationalized and dispatched to the market, in accordance.
VII.- Therefore, the rectifying certificates of origin cannot be applied, as they are untimely, and in my opinion the precedents cited in its favor and attached by the plaintiff are not applicable.
That, therefore, the customs tax requirement is appropriate, since the merchandise must be considered as imported with the duties corresponding to an extra-zone operation.
That the plaintiff does not dispute the calculation of the value and the amount of the taxes taken into account by the customs (see page 120 of the previous administrative proceedings) limiting itself to questioning the issue of conversion and the interest applied. This should be considered as the subject matter of the litigation.
That, according to the aforementioned calculation, the Campana customs had to convert the calculation of the taxes, settled in US dollars at the free exchange rate on the date stated there, into pesos.
That the methodology used is contrary to law, as will be seen.
VIII.- That decree n° 214/02, effective as of 3.2.02 (see art. 18), established that as of the date of this Decree all obligations to pay sums of money, of any cause or origin, judicial or extrajudicial, expressed in UNITED STATES DOLLARS, or other foreign currencies, existing at the time of the enactment of Law N° 25.561 and that were not already converted to PESOS, are converted to PESOS. Therefore, the conversion made by the customs authority is incorrect.
This is without prejudice to the application, as of 3.2.02, of the Reference Stabilization Coefficient (CER) contemplated in art. 4 of said norm, by reference to its art. 8. Note that this last norm refers to enforceable obligations to give sums of money, not linked to the financial system (see also laws 25.561 and 25.713, especially art. 1 in fine of the last legal norm mentioned).
That its application in the case at hand may not exceed the value resulting from the merchandise in view, with said issue being deferred until the time when this Court approves the respective liquidation that I hereby order, in the terms of art. 1166 of the CA.
IX.- That, since the tax debt has been converted into pesos, the application of the accessories made by the customs on page 120 is not appropriate, since Law No. 23.905 establishes in its art. 20 that import duties (…) as well as other taxes that tax imports (…) will be determined in US dollars and that payment must be made in said currency, and the application of decree 214/92 and other regulations mentioned above is appropriate).
That, therefore, for the purposes of the taxes required, the aforementioned amount of $189.145.21 must be considered, with the corresponding application of the CER, without prejudice to taking into account the provisions of the last part of art. 8 of dec. 214/02, and to that adding the interest as established in art. 794 of the CA. Said interest must be calculated as of 29.10.99/120/42 in order not to aggravate the appellant's tax situation, taking into account the calculation on fs. 21.9.99, although they should be calculated according to the period of ten business days referred to in the aforementioned art. taking into account that the notification on fs. 6.10.99 back. operated on XNUMX/XNUMX/XNUMX, that is, as of XNUMX/XNUMX/XNUMX.
X.- That, as regards the fine, it must be confirmed, since the fiscal damage referred to in art. a) of art. 954, par. 1 of the CA could have occurred, for the reasons set forth above, considering that the merchandise is taxed in accordance with the extra-zone tax regime.
However, given that the undersigned considers that in this case the plaintiff's request for rectification was made before the customs service could notice the difference, although it is debatable based on the grounds set forth that there was a beginning of customs inspection in this case, especially since Instruction 01/01 DGA was not in force at the time of the events, I consider that the fine should be reduced, setting it at the sum of $113.487,12. The costs in this regard shall be imposed according to the mutual due dates.
XI.- That, therefore, I vote for:
1°) Modify the appealed resolution declaring that the plaintiff owes the sum of $189.145 in taxes, to which the CER must be applied from 21, without prejudice to the fact that in this case the last part of art. 3.2.02 of decree n° 8/214 is applicable, an issue that, eventually, is deferred until the time when the liquidation ordered in the following point is approved. To said amount must be added the interest of art. 02 of the CA from 794, until its total and effective payment. The costs will be imposed, according to the mutual due dates.
2°) Order the Customs to liquidate the tax requirement in accordance with the terms of art. 1166 in the manner provided in art. 1°.
3°) Modify the appealed resolution with regard to the fine, setting it at the sum of $113.487,12, and imposing the costs according to the mutual due dates.
4°) Once this notice is signed, the plaintiff shall pay the action fee under Law 22.610 and amendments - regarding the fine, within the fifth (5th) day, under penalty of the General Secretariat of Customs Affairs issuing the corresponding debt receipt.
Dr. Gustavo A. Krause Murguiondo said:
I.- That it refers to the relationship of facts contained in the preceding vote.
II.- That the request for rectification of the compromised declaration of fs. 1/2 of the administrative records, takes into account the existence of an error committed in the compromised declaration, which must be considered prima facie an inaccurate declaration of those provided for in art. 954 of the Code Ad. The merchandise is trucks that cannot be considered tractors because they lack a hook or disk for coupling a semi-trailer.
That the erroneous declaration submitted is consistent with the erroneous description of the merchandise in the certificates of origin submitted with the dispatch, and with an ambiguous description, which lacks the necessary details of the commercial invoice.
That the declaration of the erroneous tariff item must, in the case under analysis, be considered to constitute the infringement of inaccurate declaration provided for in art. 954 of the Commercial Code, given that all the relevant data for the classification of the merchandise were not indicated in the complementary documents of the clearance (certificate of origin and commercial invoice).
I have already stated in previous precedents that the assessment of whether all the necessary data for the classification of the merchandise was declared, for the purposes of considering the application of art. 957 of the Code, in the case of declarations through the Maria System, which contains in this regard the limitations of the System and the way it was designed, must be resolved taking into account the data provided in the complementary documentation of the dispatch. And thus, in the present case, said documentation did not provide the data corresponding to the merchandise actually verified on page 55 of the administrative file, so art. 957 of the Ad. Code is inapplicable.
That certificates of origin 18108 and 18109, added to page 15 of the administrative file, are invalid as resolved on page 27 of the administrative proceedings.
That with respect to certificates of origin 30390 and 30391, attached in copy to pages 26 and 27 of the file, they are inapplicable to the case because they were issued outside the time limits provided for in the applicable MERCOSUR Agreements. In fact, they were issued on August 26, 1999, when the date of the knowledge added to page 15 of the administrative file, and therefore the date of the shipment, was May 27, 5. That the undersigned applies in this point the criterion of the Supreme Court of Justice of the Nation reflected in the Autolatina Argentina SA file (TF 99-A), judgment dated April 7079, 10.
That in view of the above, the inaccurate declaration incurred must be considered to have caused fiscal damage, in accordance with section a) of article 954 of the Ad. Code.
That the merchandise having been dispatched to the market, at the time of presentation of the request for rectification of the dispatch, and the differences that need to be rectified not arising from the dispatch itself or from the complementary documentation presented at that time, the request for rectification was inadmissible in the terms of art. 225 of the AD Code.
Given the above, I consider that the fine applied should be confirmed, taking into account that the request for rectification was submitted due to problems in the registration of the trucks in the Registry of Motor Vehicles, rather than a spontaneous decision by the importer.
As regards the taxes to be applied, I substantially agree with Dr. Winkler's vote.
That the costs must be imposed according to the due dates.
Dr. Catalina García Vizcaíno said:
I agree with Dr. Krause Murguiondo's vote, except with regard to the accrual of the Reference Stabilization Coefficient and the graduation of the fine.
That with respect to the aforementioned Reference Stabilization Coefficient, as I held, among others, in Agencia Marítima Neto of 16/4/03 (file 17.128-A), it is appropriate to declare that, pursuant to the provisions of arts. 1, 8 and related articles of decree 214/02 and amendments, at the time of the issuance of this judgment, the conversion into dollars of the amounts demanded by customs is not appropriate. Therefore, the demand for taxes must be converted at a rate of one US dollar per peso.
That, however, I favor that this Coefficient be applied with respect to the taxes of the sub-item from 1/10/02, taking into account the extension provided for by art. 1 of law 25.642 (BO, 12/9/02), because I consider that the conditions provided for in this rule have been met. All of this is without prejudice to the interests of art. 794 of the CA, the accrual of which is computed from 29/10/99.
Regarding the amount of the fine, I agree with the mitigation proposed by Dr. Winkler, taking into account the criteria emerging from Resolutions Nos. 215/00 and 217/00 of the Ministry of Finance, which, although I do not agree with, merits a reduction of the fine.
That's how I vote.-
Pursuant to the above vote, by majority, IT IS RESOLVED:
1°) To modify the appealed resolution declaring that the plaintiff owes the sum of $189.145 in taxes, to which the CER must be applied from 21, without prejudice to the fact that in this case the last part of art. 3.2.02 of decree n° 8/214 is applicable, an issue that, eventually, is deferred until the time when the liquidation ordered in the following point is approved. To said amount must be added the interest of art. 02 of the CA from 794, until its total and effective payment. The costs will be imposed, according to the mutual due dates.
2°) Order the Customs to liquidate the tax requirement in accordance with the terms of art. 1166 in the manner provided in art. 1°.
3°) Modify the appealed resolution with regard to the fine, setting it at the sum of $113.487,12, and imposing the costs according to the mutual due dates.
4°) Once this notice is signed, the plaintiff shall pay the action fee under Law 22.610 and amendments - regarding the fine, within the fifth (5th) day, under penalty of the General Secretariat of Customs Affairs issuing the corresponding debt receipt.
Register, notify, promptly return and archive the administrative records.
