In Buenos Aires, on the 24th day of June 2002, the members of Chamber "E", Drs. Catalina García Vizcaíno, D. Paula Winkler and Gustavo A. Krause Murguiondo, met with the latter presiding, in order to render judgment in the case entitled: "FRUTAS CRISPINO SACIA v. General Directorate of Customs, s/appeal", File No. 15.944-A.
Dr. Catalina García Vizcaíno said:
I) That on pages 7/9 Frutas Crispino SACIA, through its representative, files an appeal against Resolution No. 2924/01 dated 24/5/01 of the Customs Legal Department, issued in file EAAA No. 580.090/96, which rejects the challenge filed by the plaintiff and confirms charge No. 120/96, formulated for the difference in taxes between the general tariff and the preferential tariff in relation to the lack of validity of the respective certificate of origin. It indicates that the customs authority based the charge on the fact that the rule of origin had been erroneously stated in the certificate of origin. It points out that fruits from Ecuador entered the country without Customs making any observation and that it was only months later, when the merchandise was marketed, that it was notified of the additional charge. The Customs Office maintains that the inclusion of an incorrect standard in the certificate of origin constitutes an error attributable to the authority of the exporting country; that there was good faith, and that the merchandise did not raise doubts as to its identity, given that there was a coincidence in terms of the invoice, the certificate of origin, clearance, and phytosanitary certificate, which would have met the ALADI regulatory requirements. It emphasizes that Customs could have requested additional information through the official department responsible for issuing the certificates in order to clarify the case. It states that there was only a purely formal error, which does not alter the purpose pursued by the document. It cites case law. He notes that the Division of Regulatory Ordering and Agreements accepted the rules of origin referred to in the certificate of origin as valid, but that, instead of allowing the intended challenge, the content of the original charge was changed, arguing at that time that it was based on the fact that the signatory of the certificate, Mr. Marco Ibarra Villalba, was not authorized at that time to sign it. Thus, instead of formulating a new charge through the appropriate means, the terms on which the challenge process was based were changed and as a "procedural patch" he was notified of this position (page 23 of the adm. ant.), which he did not accept, based on the fact that the new charge was flawed in content, and even more so when it would have prescribed at that date. He reserves the federal case. He requests that the contested resolution be revoked, with costs.
II) That on pages 23/25 the fiscal representation answers the transfer that was duly conferred on it. It denies each and every one of the assertions that are not expressly acknowledged. It makes a brief summary of the facts that gave rise to the present proceedings. It points out that the rejection of the challenge by the customs is based on the lack of essential requirements in the accreditation of the origin of the merchandise. It clarifies that the norm requires a valid certificate of origin to comply with the benefit, and adds that an interpretation in the opposite sense would imply repealing the origin regime provided for in a higher-ranking norm, with the negative consequences that this would imply for the international relations of our country. It maintains that due to the failure to present a valid certificate, it would be required to pay taxes under the general regime. It reserves the federal case and requests that the customs provision be confirmed, with costs.
III) That at fs. 40 the case is declared to be one of pure law. At fs. XNUMX the proceedings are referred to Chamber E and are passed on to judgment.
IV) That on page 1 of file EAAA No. 580.090/96 there is charge No. 120/96 because the certificate of origin is not applicable in accordance with "Res. 2114/94 B Annex XII inc. G (Bad Rules of Origin); according to Annex No. 1 of Res. 78 of the Committee of Representatives". On page 2 there is an envelope with DI No. 26.298-4, made official on 3/2/95, which contains certificate of origin No. 06799 dated 21/1/95 and commercial invoice No. 6309 dated 21/1/95. On pages 4/5 back there is the promotion of the challenge to the charge by the plaintiff. On pages 15 the challenge is considered to have been filed. At pages 31 there is the report of the Regulatory Order and Agreement Division, which is answered by the plaintiff at pages 36/37 and in which it raises the preclusion and the prescription. At pages 38/40 on 24/5/01 Resolution No. 2924/01 is issued, appealed in this case.
V) That art. 803 of the CA provides: "The statute of limitations for the Treasury to collect taxes governed by customs legislation shall expire after 5 years."
That in the present, in accordance with the provisions of art. 804 of the CA, such prescription began to run on 1/1/96, given that the event generating the tax obligation was configured on 3/2/95 with the officialization of DI 26298-4/95.
That, consequently, the prescription should have taken effect on 1/1/2000 if there had been no suspensive or interrupting causes.
That, however, on 6/5/96 the interruption of the prescription occurred due to the notification of the tax liquidation contained in charge No. 120/96 -conf. art. 806 inc. a) of the CA; see fs. 3 of the adm. ant.-, which leads to the new term of the prescription having operated on 5/5/2001, had no other suspensive or interrupting causes occurred. With the challenge of that charge (presented on 20/5/96; see fs. 4/5 back of the adm. ant.) the prescription was suspended "until a decision is made that enables its execution" art. 805 inc. c) of the CA-.
That, therefore, the actions and powers of the Treasury to determine the tax obligation have not yet prescribed, to which is added that on 19/3/99 the content of the charge was changed (pages 31 of the ant. adm.), being challenged by the plaintiff on 10/4/2001 (pages 36/37 of the ant. adm.), that is, before the prescription took effect.
VI) That with regard to the merits, it should be noted that the contested resolution considered the rule of origin stated in the certificate to be valid, reducing the challenge to the certificate of origin in question to the fact that "according to the information provided on page 30 by the Area of Origin of Merchandise, dependent on the Undersecretariat of Foreign Trade, Mr. Official Marco Ibarra Villalba was not authorized at that time to sign it..."
That the certificate of origin No. 06799 was issued on 21/1/95 by the Economic Department of the Chamber of Industries of Guayaquil, with Eng. Marco Ibarra Villalba appearing as signatory (see container on fs. 2 of the adm. ant.).
That said certificate of origin expressly refers to commercial invoice No. 6309 that covered the merchandise documented by the office in question.
That, however, on page 30 of the adm. ant. the Coordinator of the Origin of Merchandise Area reports that "the official Marco Ibarra Villalba, belonging to the Chamber of Industries of Guayaquil, has been authorized as of April 6, 1995, as stated in the latest update issued by the General Secretariat of ALADI (Document ALADI/Sec/di 183/Rev. 29) dated November 26, 1998."
That, consequently, the undersigned issued the measure to better provide on fs. 30, from whose production it appears that the Coordinator of the Origin of Merchandise Area of the Undersecretariat of Commercial Policy and Management reports that "the certificate in question corresponds to an operation processed through the Partial Scope Agreement of Economic Complementation No. 21 (AAPCE No. 21) entered into between Argentina and Ecuador" and that "with respect to the official Eng. Marco Ibarra Villalba belonging to the Chamber of Industries of Guayaquil, it should be noted that on the date of issuance of the certificate, he was not authorized to sign certifications, since the date from which it was authorized by the Latin American Integration Association (ALADI) was 06/04/95" (fs. 31 of the files). That if the signatory was not authorized to have a certificate of origin, it is not valid for the preferential treatment sought, especially since the plaintiff did not offer any evidence to prove the origin of the merchandise in question, apart from the invalid certificate of origin.
In addition, after reviewing the report on page 31, no observations were made by the plaintiff.
That, consequently, the determination made by the DGA must prevail, which enjoys a presumption of legitimacy and it is the responsibility of whoever challenges it to do so with conclusive and categorical evidence.
It has been stated that when it comes to tax determinations, different rules apply regarding the burden of proof in relation to those applied in other trials (Judgments, 268-514 and 289-514, consideration 8; CNCont.- Adm. Fed. Cap., Sala 1, «Guzmán, Oscar A.», dated 26/6/79; to the same effect, CNCont.- Adm. Fed. Cap., Sala 3, «Figueiro, José Ramón», dated 30/10/79), and that when the taxpayers' declarations are not supported by categorical evidence, the ex officio estimates or liquidations made by the treasury are legitimate; and it is up to the person who challenges them to prove the facts (CNCont.- Adm. Fed. Cap., Room 1, «Willman Argentina SAIC s./ Appeal-income tax», dated 22/5/92, Tax Criteria, November 1992, p. 75).
Therefore, I vote for:
Confirm Resolution No. 2924/01 insofar as it has been the subject of the appeal. With costs.
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:
Confirm Resolution No. 2924/01 insofar as it has been the subject of the appeal. With costs.
Register, notify, promptly return and archive the administrative records.
