Buenos Aires, on the 26th day of September 2000, the members of Chamber E, Drs. Catalina García Vizcaíno, D. Paula Winkler and Gustavo A. Krause Murguiondo, met in order to resolve the case entitled: «GENERAL SURETY AND GUARANTEE SA v. DGA s/ appeal», file No. 10.623-A.
Dr. Catalina García Vizcaíno said:
I) That on pages 8/10, General de Fianzas y Garantías SA, through its representative, appeals against Resolution No. 10.808 issued in file EAAA 602.302/94 insofar as it is required to pay $5.661,47 in taxes in its capacity as insurer of the firm "Artisport SRL". It indicates that, according to form OM 1190, it became guarantor up to the maximum sum of fifteen million australes of the taxes that the aforementioned firm might owe to the customs service as a result of a temporary import of synthetic rubber sheets, under the regime of Decree No. 1554/86, through DIT No. 7379/90. The company points out that the taxes claimed correspond to the difference between those liquidated at the time of the preliminary hearing and those paid by the insurer when it appeared in the proceedings. The company maintains that its responsibility as guarantor is limited to the taxes it paid. In this regard, it states that, as a result of said payment, it requested that the customs office issue a resolution releasing it from its obligations and that the guarantee duly provided be returned. It adds that the Litigation Department acknowledges the payment made but requires it to pay the difference. It understands that with the payment made, it would have been released from its obligations to the customs service, since the amounts are those guaranteed at the time of registration of the DIT. It points out that it is required to pay taxes higher than those guaranteed and for concepts that were not guaranteed. The company reiterates that it guaranteed Artisport SRL the sum of fifteen million australes, today $1.500, the guarantee covering the amount of import duties, taxes and levies that would have to be paid if it were an import for consumption, that is, import duties, statistics tax, VAT and contribution to the export promotion fund. It notes that the guarantee granted did not guarantee, as far as it is concerned, the additional duty of 100% of the customs value of the merchandise, provided for in art. 18 of decree No. 1554/86, nor the resulting increase in VAT. It states that the increases to which the guaranteed taxes could be subject due to an increase in the rates or in their taxable base, between the date of importation and the date ultimately relevant for its liquidation, were not guaranteed either. It considers the claim formulated to be inadmissible, since it maintains that it would have been released from the assumed responsibility. He cites case law that supports his statements. He reiterates the maximum limit of the company's liability. He offers evidence and requests that the appeal be upheld, with costs.
II) That on pages 20/23 the fiscal representation answers the transfer that was duly conferred to it. It makes a brief summary of the proceedings and specifies that through the policy in question the plaintiff insured the ex-ANA for what the importer would be obliged to pay as a consequence of the temporary importation, foreseeing the excess that could result from the application of art. 1122 of the CA, the guarantor being constituted in default by law by the mere expiration of the term, without the need for any other judicial or extrajudicial notice, considering the peremptory terms. It indicates, among other considerations, that the customs service liquidated the taxes as corresponding to the importation for consumption and the insurer must respond with the same scope and to the same extent as the tax obligation of the policyholder. It emphasizes that the accident occurred and that the plaintiff must face the payment of the respective amount of taxes. He states that the guarantee has been established in accordance with the terms of art. 453 of the CA and that the application of the corresponding interest is not exempt from the issue. He cites case law that supports his assertions. He requests that the appeal be rejected, with costs.
III) That at fs. 28 the case is opened for evidence, which is recorded at fs. 34/40 and 44/49. Once the proceedings are ready for argument, the public prosecutor does so at fs. 62/63, the plaintiff not making use of her right. At fs. 65 the proceedings are called for judgment.
IV) That on page 1 of file EAAA No. 602.302/94, there is the Complaint Report No. 1646/94 formulated in the terms of arts. 970 and 972 of the CA in relation to DIT No. 7379/90 registered by Artisport SRL. On page 5, on 9/9/94 the opening of the summary is ordered. On page 22, on 10/2/98 the importer is notified of all the proceedings and the insurer is summoned, who appears on pages 36/37. The deposit slip added on pages 35 is attached, by which the payment of $14 is credited on 9/98/1.446,56. On page 43/44 shows Resolution No. 10.808 issued on 17/12/98, which condemns the firm Artisport SRL under the terms of art. 970 of the CA, and charges that firm and the appellant Insurer for the amount of taxes, which amount to $5.661,47. This resolution is appealed in this case.
V) That on page 35 of the administrative records the deposit slip is added, which proves the payment of $1.446,56 made on 14/9/98, for Rights: $761,08, Statistics: $103,78, VAT: $564,40 and FNPE: $17,30.
That on page 39 of the file appears Policy No. 8993 by which the Insurance Company insures the National Customs Administration cash payment up to the sum of A 15.000.000 "plus whatever may result in excess by application of art. 1122 of the Customs Code that ARTISPORT SRL is required to make to you... by application of the legal and/or regulatory provisions in force in customs and tax matters, as a result of the following temporary Importation operation: Latex in roll - Air Waybill No. 29625765 AA Origin: Stuttgart". The document states that the insurance will be in effect from 30/8/90, "until the extinction of the obligations of the Policyholder whose fulfillment it covers".
That from the Guarantee Control No. 485625, presented on 27/8/90 and due on 22/8/91, it appears that due to Temporary Importation Decree 1554/86, General de Fianzas y Garantías SA through Guarantee Policy No. 8993 (see folder of this office on page 3 of the adm. ant.) guaranteed the total sum of A 15.000.000 broken down into the following concepts, namely: Rights A 7.610.705; FNPE A 172.971; Statistics A 1.037.823; and VAT A 5.644.030 (total A 14.465.529). These amounts coincide with those recorded in the liquidation of DIT 7379/90.
That the customs charged the plaintiff for the sum of $5.661,47, which results from the difference between the settlement of fs. 16 of the ant. adm. ($7.108,38) with respect to the sum of $1.446,56 paid by the appellant (see fs. 35, 42 and 44 of the ant. adm.).
That the liquidation on page 16 of the adm. ant. improperly contains the item for additional duty of 100% and its impact on VAT, which is why the appellant's claim should succeed in this regard (see page 9/vta. of the proceedings), given that the appellant was not expressly bound by that concept (by necessary implication it was not also covered by the VAT relating to it) and, in particular, taking into account the provisions of art. 15 of decree 1554/86 which limits the guarantees that had to be constituted before clearance to the square to the "amount of import duties, taxes, levies and taxes that would have to be paid in the case of an import for consumption, and in accordance with the general rules."
That, therefore, the appellant is not obliged to pay the additional duty of 100% of the customs value of the goods (nor obviously the VAT on this duty) provided for in art. 18 of decree 1554/86, since this tax is not included within the "general rules", but rather within the specific rules relating to the authorization of importation for consumption, to which only the importer is obliged.
In addition, the expiration of DIT 7379/90 occurred on 30/8/91, so decree 1554/86 was not in force, having been repealed by decree No. 590/91 (Official Gazette 10/4/91). Consequently, the aforementioned additional 100% right does not apply either, in accordance with the doctrine of the Supreme Court of Justice of the Nation resulting from "Microsistemas SA" of 23/2/99,
That, without computing the aforementioned additional duty, according to the liquidation on fs. 16 of the ant. adm. the plaintiff owed $ 525,39 for import duties, $ 143,29 for statistical tax, $ 23,88 for Export Fund, and $ 875,01 for VAT (the taxable base being $ 4776,265 plus all the taxes mentioned without counting VAT, and the 16% rate). This results in an amount of $ 1.567,57.
That, consequently, the amount owed by the plaintiff as of 18/8/98 (expiration of the 10-day period counted from the notification of 3/8/98, see fs. 27 back of the adm. ant.) amounted to $1.567,57, and as of 18/8/98 the interest of art. 794 of the CA began to accrue. Hence, as of 14/9/98 (date of deposit of fs. 35 of the adm. ant.) the appellant owed – 1.594,69 ($1.567,57 plus $27,12 interest – rate of 2% monthly per Res. 366/98 ME and Oy SP-).
That the difference of $148,13 ($1.594,69 debt less $1.446,56) accrued interest since 14/9/98 and continues to accrue interest until the time of total cancellation of the debt.
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, that 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." Paid-in tax is not incurred when the treasury liquidates the update and the interest on the unpaid portion of the updated tax, to the extent that the sum paid late covers "all the interest accrued" up to the time of payment. In this case, the interest is not capitalized, accruing, in turn, interest. He added in these votes, in the referred pronouncements, that if the sum paid covered, at the date of payment, all the interest, the unpaid remainder generates an update and interest, since it is, in reality, "a portion of the principal debt not cancelled." This form of customs imputation is generally upheld today.
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 the monetary update [in force until law 23.928] that may correspond, does not extinguish the obligation with respect to these concepts."
VI) That, in response to the argument set forth on page 19 back (point IV, 3 of the appeal brief), it should be noted that the amount owed by the plaintiff as of 18/8/98 did not exceed the total amount insured by the appellant, which amounts to $2575,50 ($1500 by coefficient of 1,717 relative to the month of August 1990 when the guarantee was established).
Therefore, I vote for:
Modify Resolution No. 10808/98 in the manner arising from this vote, with interest to be settled from 14/9/98 until the date of full and effective payment on the sum owed of $148,13. Costs according to due dates.
Dr. Winkler said:
I.- That I substantially agree with the preceding vote.
II.- That, as I have ruled, with regard to interest, the plaintiff is liable for the importer's delay and not for its own delay if this is not prior.
Although the date of publication of the edict notifying the importer of the order dated 10.2.98 is not recorded in the ant. adm. (see pages 38 ant. adm.), it does appear that said publication was after 3.8.98 - the date of notification to the plaintiff - since the note sent to the Purchasing Department - Tendering and Contracting Division, requesting the publication of the edict, is dated 9.9.98 (see pages 30 ant. adm.). Note that notification by edict is ordered due to the negative result of notification by mail, which was returned on 7.8.98 (pages 26 back/27 ant. adm.), a reason that also supports the claim that notification to the importer was after that to the insurance firm.
Therefore, in this case, the period established by art. 794 of the CA must be calculated from 3.8.98.
III.- I also agree to the accrual of interest on the difference owed.
IV.- That I consequently vote for: 1st.- To modify the contested resolution in the manner that arises from the preceding vote and from this one. 2nd.- Costs according to the mutual due dates. I SO VOTE.
Dr. Gustavo A. Krause Murguiondo said:
That substantially agrees with the vote of Dr. García Vizcaíno.
In accordance with the above agreement, by majority, IT IS RESOLVED:
Modify Resolution No. 10808/98 in the manner arising from this vote, with interest to be settled from 14/9/98 until the date of full and effective payment on the sum owed of $148,13. Costs according to due dates.
Register, notify, promptly return and archive the administrative records.
