ART. 954 inc. a) CA Inaccurate declaration. Maria System.
TAX COURT OF THE NATION
In Buenos Aires, on the 16th day of the month of November 2004, the Judges of Chamber "E", Drs. D. Paula Winkler and Catalina García Vizcaíno, with the second of those named as president, met to rule on the proceedings entitled: "GENERAL MOTORS de ARGENTINA SA", file TFN No. 15.798-A;
Dr. Winkler said:
I.- That on pages 6/9 and back, the signature of the epigraph, through a representative attorney, files an appeal against resolution-"ruling" No. 482/01. It states that the summary proceedings arose because the customs service considered that the inaccurate declaration contemplated and penalized in paragraph a) of art. 954 of the CA had been incurred, when making official the import dispatches 96 017 IC04 1269 E and 1270T, registered before the Córdoba customs office on 20.3.96/7/954. It adds that the destination was covered by the tariff preference provided for intra-zone merchandise, but that due to the identification of the tariff item and the fact that during the verification merchandise belonging to a different tariff item was detected, it was considered that the fine and taxes referred to in the appealed act should be paid. He admits having incorrectly declared the tariff position (page XNUMX of the start writing), but considers that the effect contemplated in section a) of art. XNUMX of the CA has not occurred, since the comparison of the certificates of origin attached and the invoice shows that the origin and provenance of the merchandise were finally accredited, in his opinion, and therefore the effect imputed to his conduct could never have occurred; therefore, he says he did not commit the infraction charged against him. He says that the validity of the certificates attached for each dispatch is not questioned and that the report that claims that their presentation is untimely is not correct since they were presented at the time of alleging and within the period of one hundred and eighty days, counted from their issuance. He cites jurisprudence that would support his right, offers evidence and requests that a judgment be issued in due time reversing the appealed resolution, with costs.
That on pages 19/29 the fiscal representation answers the transfer conferred. After formulating a generic denial to each and every one of the facts that are not the object of recognition on its part, it answers the appeal. It relates the printed procedure to the customs summary. It considers that the customs has the power to control the veracity of the customs declarations, and that having been formalized by the Maria system, the adoption of precautions should be greater by the declarant. It says that if the merchandise is of irregular import, it cannot benefit from any preferential tariff treatment. It bases its position on the provisions of the CCM Directive 12/96 and in Annex VIII C of Resolution 456/96. Therefore, in its opinion, the taxes required in the customs act must also be paid.
II.- That at fs. 35 the case is opened for evidence. Once produced, the same - the translation ordered at fs. 94 was not fulfilled - at fs. 102 the evidentiary period is certified and the same is closed. The files were submitted to Chamber "E", which puts them for argument. At fs. 122/123 there is the plaintiff's argument and at fs. 119/121, that of the Treasury. At fs. 125 the files are sent to sentence. At fs. 127/131 there is a reply to the measure ordered at fs. 103, point II, so the case is now ready to be sentenced.
That the summary SA 17-96/077 begins with the complaint filed on fs. 1 for alleged commission of the infraction contemplated and punished in art. 954 of the CA On fs. 2 the verification report is available, which shows that in item 1 of import dispatches 9601 171 C 0400 1270T and 1269E the document declares position SIM 8408.20.90.00, "Other engines used for the propulsion of vehicles of chapter 87. Compression-ignition piston engines (diesel or semi-diesel engines) (...)", when the physical verification of the merchandise showed the same quantity of 64 engines, but "spark-ignition (gasoline engines, otto cycle) to which position SIM 8407.34.90.900 should correspond and not the one declared". In the dispatches, the merchandise is declared as being of origin and provenance in Brazil and duties in the amount of $19.304,97 are liquidated and paid, with a guarantee in the amount of $23.359,01 for the lack of a certificate, knowledge and automatic surcharge (see guarantee controls no. 1248 and 1246 - both from 1996, fs. 11 and 13, ref. unsaved). Once the summary has been opened and the hearing has been conferred, it is answered on fs. 19/21, with copies attached on fs. 22 and 23 of the certificates of origin relating to commercial invoices no. 53.439 and 53.442, applicable to both dispatches, whose issue date dates back to 20.3.96. The dispatches were formalized on those dates and the invoices, in both cases, date from 13.3.96. On pages 33 and 34 there are copies of the notes presented, with respect to each dispatch, by the forwarder for whom the original and copies of the aforementioned certificates are attached. Said presentation dates from 20.6.96, that is, it is formalized on time. Note that there is a match with the values and quantities of the merchandise between the dispatches, the invoices and the certificates and that they are valid, having fulfilled, as listed, the same also the issuance period. There is only one difference between the pa of the co and those of the di, which will be analyzed later. Opinion n° 673/98 issued on pages 66/67, on pages 68/69, the resolution "ruling" n° 482/01 is issued, appealed, which condemns the plaintiff to pay a fine, in accordance with the terms of paragraph a) of art. 954 of the CA and charges are made for the difference in taxes. The latter, based on the fact that if the import is considered irregular, the taxes are payable.
III.- What the customs is questioning, and which is why it is applying the fine and demanding the difference in taxes, is that the declaration was erroneous and punishable, in its opinion, with regard to the declared tariff item.
The appellant acknowledges that it was erroneous (see page 7 of the start of the document), so it is necessary to analyze whether the declaration contained in both reports is inaccurate, in order to then analyze the tax issue.
That this Chamber, although with a slightly different composition than the current one, has had the opportunity to rule in re: "Aluar Aluminio Argentino SA", judgment of 12.4.02/29.8.00/XNUMX, that "the erroneous tariff location of the merchandise is not a determining factor in the admissibility of tariff preferences, since these are granted to the merchandise, given that it is the merchandise that is negotiated and not the tariff items, although said tariff items provide a location for the merchandise in the nomenclature" (see also, appeal, Chamber I, "YPF SA", judgment of XNUMX/XNUMX/XNUMX).
However, it should be noted that in this case the statements have been formalized using the Maria system.
It is clear that art. 954 of the CA protects the principle of truthfulness and accuracy of the manifestation or declaration of the merchandise, object of destination (CSJN, "Bunge y Born Comercial SA", judgment of 11.6.98; "Subpga", "Fallos", 315: 942 and others).
That in the CA scheme the infractions are structured on the basis of the non-observance of the duties inherent to the regime, operation, destination or situation in which the agent intervenes, or in the performance of conducts that disturb customs control. Furthermore, this special relationship established between the customs service and the persons who develop their activity in the area of foreign trade, makes applicable the general principle of law, included in art. 902 of the Civil Code, according to which the greater the duty to act with prudence, the greater the obligation resulting from the circumstances of the facts (conf., "Liability for customs infractions", Enrique C. Barreira and Héctor Vidal Albarracín, LL, T 1989-A, doctrine section).
That is, it is within these concepts that it must be assessed whether statements such as those in this case are inaccurate.
In this case, the appellant herself acknowledges that the statement was erroneous, so that, for the purposes protected in Article 954 and in accordance with the Maria system, and what I have been explaining, such statement could be considered inaccurate.
I have ruled that issues such as the species cannot be resolved with the jurisprudential parameters with which the infringement of art. 954 of the CA has been resolved until now, without the validity of the Maria Computer System. The duty of collaboration on the part of the taxpayer in accordance with the provisions of art. 234 of said normative body is very limited, since "the nature, species and quality" and other characteristics of the merchandise no longer depend on a description formulated by the taxpayer but on the choice of the suffix and other elements to be validated (doct. of "Disporteko SA", Chamber "E", my vote, dated 24.2.99).
IV.- That, however, for such a statement to be punishable, it is not enough for it to be false, but rather for the type of offence to include some of the effects contemplated in subparagraphs a) to c), even if only potentially.
In my opinion, it is not clear in this case that the alleged fiscal damage has occurred, either actually or virtually, since if the customs service does not know that the declared merchandise does not enjoy the preferential regime and, therefore, should have paid more import taxes, it does so for inadequate reasons, as will be seen. Note that the customs service does not dispute that the preferential regime is different from the position that it considers should have been declared, and that, in fact, this is the position that appears in the certificates of origin, that is, 8407.34.90 (see pages 43/44 and 46/47 of the administrative proceedings).
On the contrary, the latter claims that there is a tax difference because the import would be irregular. See the response to the appeal on page 26 of the proceedings, based on CCM Directive 12/96 and resolution 456/96.
That said argument is not sufficient, because the alleged tax loss only arises from considering the merchandise within the general regime, considering that a tax loss has occurred. In other words, the argument returns to the beginning.
V.- That the observations on pages 48 and 51 of the previous administrative documents are, for the reasons I have been explaining, unsustainable.
If the items recorded in the CO do not match those erroneously declared in the dispatches, they do match what results from the customs verification.
Otherwise, as I said, the validity and issuance period of the same has been fulfilled.
That, consequently, even if the erroneous statement made in both offices could be considered inaccurate, it is not punishable since the effect attributed to inc. a) of art. 954 has not occurred.
VI.- That, for the reasons stated above, the customs requirement regarding the difference in taxes is not in accordance with the law.
Therefore, I vote to revoke the appealed resolution, leaving without effect the fine and the difference demanded for taxes, without costs in light of the grounds for which the revocation is in favor, since, due to the result of the production of the evidence in the proceedings (see the letter of request that is separately filed, without translation) that did not contest the points of the same, the customs office could consider itself with a credible right to insist on the continuation of the process.
Dr. García Vizcaíno said:
I agree with the preceding vote, taking into account, especially, the result of the measure on fs. 130 as to the fact that the merchandise of PA 8408.20.90 and 8407.34.90 had the same tax treatment (0% import duties and 0% statistical rate) as of 20/3/96.
Pursuant to the foregoing vote, IT IS RESOLVED:
Revoke the appealed resolution, leaving without effect the fine and the difference required for taxes, without costs.
Register, notify, promptly return the added administrative records and file them.
This document is signed by Dr. Winkler and Dr. García Vizcaíno, as the position of Member of the 14th Nomination is vacant (art. 1162 of the CA).
