BUENOS AIRES, December 16, 2002.-
AUTOS AND SEEN: File No. 10.182-A, entitled: GENERAL SURETY AND GUARANTEE SA INSURANCE COMPANY v. GENERAL CUSTOMS DIRECTORATE s/ appeal, and
CONSIDERING:
I.- That on pages 10/12, the firm GENERAL DE FIANZAS Y GARANTIAS SA COMPAÑÍA DE SEGUROS appeared through its representative and filed an appeal against Resolution No. 5128/98, issued in file No. 601.061/93, insofar as it was required to pay the sum of $11.611 in taxes, plus interest accrued as of 21-05-96. It indicated that through policy No. 22.058, it became guarantor for the firm Taurus SA, in relation to DIT No. 1743/92. It maintained that the original of the policy was returned to it by Customs on 31-05-94, and although it does not know the reason for the release of the policy, it assumes that it was because the importer paid the taxes. He understood that for this reason, the Treasury does not have the title to claim payment of the taxes, since it does not owe anything as a result of the guarantee that has been cancelled and returned. Regarding the liquidation carried out, he observed that according to what the importing firm declared in each of the import dispatches, the merchandise is exempt from VAT and Income Tax withholdings, so the corresponding amount must be subtracted. Regarding the demand for payment of taxes, linked to DI N° 14.476/93, due to the fact that the Bank's payment certificate is not available, he stated that this is not sufficient reason and added that from the records of the summary it appears that the importer nationalized the merchandise and paid the corresponding taxes. He offered evidence and requested that the resolution be revoked, with costs.
II.- That on pages 26/28 the GENERAL DIRECTORATE OF CUSTOMS, through its representative, answered the transfer of the appeal. It raised an exception of formal inadmissibility of the appeal, based on the fact that resolution no. 5128/98 became res judicata. It argued that the resolution was notified on 17-06-98 and although the plaintiff requested clarification, in the terms of art. 1041 of the CA, the interruption of the period to appeal must be counted from that request and not from the provisions of pages 59 by the Contentious Department. It concluded that the 15-day period set by the CA to appeal has been exceeded and therefore, the decision is final and has become res judicata. In subsidy, it answered the transfer of the appeal. The company argued that according to the records in the file, the importer had not complied with the obligations assumed as a result of the benefit of the temporary import regime covered by DIT No. 1743/92, having configured the incident that authorizes its client to claim the relevant payment from the insurer. It affirmed that the guarantee in question is active and pending cancellation, referring to the information provided by the Guarantees Section, through Note No. 418/98. It requested the dismissal of the action attempted, with costs.
III.- That on pages 29 the objection raised was forwarded, which is answered on pages 32/33. The plaintiff stated that the appeal was filed on time, in accordance with the provisions of the CA and its correct interpretation. She pointed out that once the resolution rejecting the requested clarification was issued, it was notified on 22-10-98 and the appeal was filed before the Court on 05-11-98. She added that between the date of the ruling rejecting the clarification and the filing of the appeal, ten business days elapsed and that, in the worst case, taking the time elapsed between the issuance of the condemnatory resolution and the clarification and between the clarification resolution and the filing of the appeal, the appeal was filed on the 15th, that is, within the period established by art. 1133 of the CA.
That at fs. 36 it was ordered to deal with the matter on the merits of the case, the exception of res judicata and to open the case for evidence. At fs. 115 the closure of the evidentiary period was declared. At fs. 120 the files were sent to Chamber F and were put up for argument, adding at fs. 124/125 and fs. 127/128 the arguments of the plaintiff and defendant, respectively. At fs. 130 the case was passed to judgment.
IV.- That the administrative proceedings No. 601.061/93 originated in the complaint filed by the customs service, in relation to DIT No. 1743/92, as a result of the fact that the registration for consumption on behalf of the import offices mentioned was untimely. On page 26, the proceedings were brought to the attention of the importing firm TAURUS SA and on page 28 its default was declared. On page 41, the firm GENERAL DE FIANZAS Y GARANTIAS SA was brought to attention, in its capacity as guarantor of the tax obligation. On pages 44/45, Resolution No. 5128/98 was issued, by which, as far as is of interest here, the insurer was charged for the sum of $11.611, plus the interest accrued from 21-05-96.
V.- That the preliminary question raised by the defendant is totally inadmissible.-
That, in effect, art. 1041 of the CA contemplates the possibility of requesting clarification of the final resolution, which must be formulated within 5 days of notification and will interrupt the period for appeal.
That the general principle is that the time limits begin to run from the notification; obviously, in this case, the new time limit for appealing will begin to run from the notification of the act that resolves the request for clarification, notified on October 22, 1998. Thus, the filing of the appeal before this Court, made on November 5, 1998, is within the fifteen-day period provided for by art. 1133 of the CA-
VI.- That by art. 3 of resolution n° 5128/98, the customs service demanded payment and charged the insurance company General de Fianzas y Garantías SA Cía. de Seguros, in its capacity as guarantor, for the difference in taxes not paid due to the untimely nationalization of the merchandise imported temporarily by the firm Taurus SA, through DIT N° 1743/92.-
That the plaintiff invokes, first of all, that the original of policy no. 22.058 was returned by Customs, for which reason it lacks title to claim payment of the taxes.
In order to corroborate the above, the plaintiff attached on pages 6/7 the original of policy no. 22.058, corresponding to guarantee no. 631901, and by which the plaintiff insured the former ANA, cash payment up to the maximum sum of US$ 26.000, plus whatever may result in excess by application of art. 1122 of the CA, which the firm Taurus SA is required to make, as a consequence of the temporary import operation of machines.
That this defense had already been raised by the plaintiff at the customs office (see pages 47 and 48 of the administrative act) and motivated the intervention of the Guarantees Section, which on page 58 reported that guarantee no. 631.901 was active, pending release.
In order to clarify the appellant's defenses, the provisions that regulate insurance contracts must be analyzed.
That the firm importing the merchandise under the temporary import regime guaranteed the payment of the taxes payable as a consequence of its eventual non-compliance, in accordance with the provisions of art. 453, inc. c), of the CA and used for this purpose the surety bond contemplated in art. 455 of the CA, granted by the appellant here.
That said type of insurance is provided for by Law 20.091, whose Article 7 authorizes the entities mentioned in Article 2 to operate in insurance and in paragraph b) establishes: They may grant bonds or guarantee third party obligations when they constitute economically and technically approved insurance operations.
That, consequently, said form of guarantee as it constitutes insurance is regulated by laws 17.418 and 20.091-
That the insurance contract is perfected with the consent of the parties (art. 4° law 17.418) and constitutes a non-formal contract.
In this case we are faced with a surety bond, which constitutes insurance on behalf of another party (art. 21 law 17.418), with designation of a third party (conf. Juan M. Farina, Surety bond, Commercial Law and Obligations Magazine, year 14, pages 521 to 545).
That arts. 23 and 24 of the cited law, invoked by the plaintiff, regulate the relationship between the policyholder and the insured, seeking to protect their rights. Thus, in Section 7 On behalf of others, art. 23, under the title Rights of the policyholder provides: Rights. Policyholder. When in possession of the policy, the policyholder may dispose of the rights arising from the contract in his own name. He may also collect the compensation, but the insurer has the right to require the policyholder to previously prove the consent of the insured, unless the policyholder proves that he contracted by order of the former or by reason of a legal obligation. In art. 24, under the title Rights of the insured, it establishes Rights: Insured. The rights arising from the contract correspond to the insured if he holds the policy. Failing this, he may not dispose of these rights or enforce them judicially without the consent of the policyholder.
That, on the other hand, the rights of the insurer are derived from the insurance contract. Said insurance contract is a consensual, informal and good faith contract.
That the mere fact that the policy has been returned cannot give rise to the termination of the insurance contract and the release of the insurer.
That the insurance contract exists independently of the policy. An insurance contract can even exist without a policy. Thus, Law 17.418 provides in its art. 4, already cited, that The insurance contract is consensual, the reciprocal rights and obligations of the insurer and insured begin from the moment the agreement has been signed, even before the policy is issued.
On the other hand, it should be noted that the policy does not constitute a negotiable instrument or credit instrument, for which said instrument is necessary to exercise the right incorporated therein. In this sense, Halperín teaches that Policies are not credit instruments intended for circulation; even when they are issued in the form of to order or to bearer: they are not abstract rights titles, but are linked to a contract, of which they are instruments, and the rights established therein depend on the fulfillment of the obligations and burdens expressed (Halperín, Isaac, Seguros. Exposición crítica de la ley 17.418, De palma, Bs. As., 1970, p. 633).
That the insurer is released if it complies with its benefits (conf. arts. 1°, 10 in fine, 13, 18 and 158, law 17.418). The clauses that impose the expiration of the insured's right are of restrictive interpretation (conf. Halperín, op. cit., p. 214).
In the case, the customs department reported that the policy is active.
That, on the other hand, it is proven that the import dispatches through which the import for consumption of the merchandise previously entered in temporary admission was documented, were all registered on January 12, 1993, while the expiration of the DIT No. 1743-5 occurred on 30-12-92 and the payments made by the importing firm did not include the amounts corresponding to the statistical rate and additional VAT. Such items, contrary to what was claimed by the appellant, were guaranteed at the time of the registration of the suspensive destination, so it can hardly now ignore the payment obligation.
That the position assumed by the plaintiff leads to distorting the guarantee granted to Customs to authorize the importation of the merchandise under a regime that enables the introduction of the merchandise tax-free.
That the fact of the return of the policy to the insurer cannot, by itself, have the effect of cancelling the obligations assumed by the insurer in the insurance contract. In effect, the right to demand payment of the taxes in question, exercised by the customs service, originates in the obligations contracted by the insurer in the surety insurance contract entered into between the policyholder -importing firm- and the plaintiff, for the benefit of Customs.
That this Chamber F ruled in the same sense in case No. 13.667-A Cía. Arg. Seguros Visión, judgment of 07/05/02, among others.
That, consequently, it can be concluded that the customs service has cause and action to pursue the collection of the taxes owed in the terms of the contract in question, to the insurer here appellant.
VII.- That in accordance with the above, it is necessary to analyze whether the amount demanded by the customs service is the amount actually owed or not by the importer and, therefore, payable to the insurer.
That for import dispatches Nos. 14.512-4, 14.510-0, 14.477-0, 14.476-3 and 14.508-7, all of them registered on January 12, 1993, the importing firm Taurus SA paid the amounts corresponding to the VAT, resulting from applying the 18% rate on the taxable value, in this case, CIF value equal to US$ 44.407,68.
That, as already indicated, the importer omitted the payment of the statistical tax and this affects the determination of the taxable base for the VAT and the additional VAT, in addition to the omission of payment of the latter. These concepts are those that arise from the liquidation carried out by the Customs on page 24, rectified on page 40 and which showed an amount of $11.611, claimed from the importer and the guarantor.
Although the concepts included in the tax assessment are correct, the amount arrived at must be modified as follows: the sum of $8.793, recorded as VAT, must be deducted from the sum of $7.985,02, which the importer actually paid for that concept, as it appears from the deposit slips in the administrative proceedings. The difference is $807,98, to which must be added the sum of $4.441, as a statistics fee and $4.396, as additional VAT, which results in a total owed of $9.644,98.
Regarding DI No. 14.476-3, it is understood that the lack of aggregation of the certificate of payment of taxes by the customs service does not prevent the payment from being considered certain, given the existence of the deposit slip in the Banco de la Nación Argentina and the certification issued by the aforementioned entity, found on page 116 of the file.
Therefore, IT IS RESOLVED:
1.- Reject the exception of formal inadmissibility of the appeal filed by the defendant, with costs.
2.- Partially confirm art. 3 of Resolution No. 5128/98 insofar as it charges the firm General de Fianzas y Garantías S.A. Insurance Company up to the sum of nine thousand six hundred forty-four pesos and ninety-eight cents ($9.644,98), plus the compensatory interest accrued from May 21, 1996.-
3.- Costs to the parties according to their respective due dates, which are distributed as follows: 85% to the plaintiff and 15% to the defendant, in relation to the resolution in article 2 of this document.
4.- Once the DGI registration number and VAT status of the professionals involved in the proceedings have been declared, the fees will be regulated.
Register and notify. Sign this document by the General Secretariat of Customs Affairs, return the administrative proceedings to their place of origin and, in due course, file them.
