In Buenos Aires, on the 15th day of July 2002, the members of Chamber "E", Drs. Catalina García Vizcaíno, D. Paula Winkler and Gustavo A. Krause Murguiondo, with the last-appointed member presiding, met in order to resolve the case entitled: "GRAFICA HAM SA v. DGA s/appeal", file No. 13.872-A, to which file No. 13.887-A, entitled "Paraná Sociedad Anónima de Seguros v. DGA s/appeal", is accumulated.
Dr. Catalina García Vizcaíno said:
I) That on pages 8/11, Gráfica Ham SA, through its representative, lodges an appeal against Resolution No. 1800 of the Customs Legal Procedures Department, issued in file No. 603.433/98. It states that it imported, through DIT No. 1767-8/95, a batch of melamine-impregnated paper, for the purpose of using it to manufacture labels for the firm Pepsi Cola Mexico, and that upon expiration of the temporary period, the paper was not re-exported and that this led to the opening of the infraction investigation. It states that exports to Mexico were interrupted as its clients were unable to operate with letters of credit or pay their obligations. It alleges that almost all of the paper introduced under temporary import suspensions was used for export operations for consumption. The Court maintains that it was unable to re-export to Mexico, invoking the "unforeseeable event or force majeure" that was established from the moment that the two requirements were met: unpredictability and irresistibility, since the imbalance in the Mexican economy cannot be considered a natural and possible risk within the commercial management. The Court argues that the import documented by means of DIT No. 1767-8/95 was made official on May 2, 1995 and that there was a radical change in the prevailing conditions in the market that must be accepted as representative of the "casus." The Court considers that it is arbitrary to use other temporary imports corresponding to the same cycle to make them have an impact on the degree of the penalty, since these were fines of very small monetary value. The Court argues that the elaboration made by the penal doctrine of the "lack of action" as a negative element of the infraction with its own substance is applicable in customs matters. Provides evidence and requests that a judgment be issued reversing the contested resolution, with costs.
II) That on page 26 back, Paraná SA de Seguros, through its representative, files an appeal against Resolution No. 1800, issued in file 603.433/98. It states that although the plaintiff covered DIT No. 3786-1767/8 through customs guarantee surety bond No. 95, its obligation is accessory to the insured's obligation and that, since the same is not final, the insurer should not yet pay the amount requested. It supports Gráfica Ham SA's appeal, its evidence, and requests that both appeals be joined. It requests that the appeal be upheld, with costs.
III) That on pages 46/54 the fiscal representation answers the transfer that was duly conferred upon it. It makes a brief summary of the proceedings and the grievances raised by the plaintiff. It considers that according to the Temporary Importation Regime, the temporarily entered merchandise is subject from the moment of issuance to the fulfillment of a condition and this is the re-exportation before the expiration of the agreed term. It indicates that according to the provisions of art. 274 of the CA, second paragraph, the person who imported the merchandise will be responsible for the corresponding tax obligations and the corresponding sanctions. It points out that considering that the taxable event of the import taxes consists of the "importation for consumption", and that this operates automatically upon expiration of the term of permanence of the temporary imports, the payment of the import duty established by the norm in force on the date of said expiration is appropriate. It reserves the federal case, offers evidence and requests that the appealed ruling be confirmed.
IV) That on pages 58/65 the tax authority responds to the insurer's appeal. It maintains that the insurer is the guarantor, plain and simple, and that it must respond with the same scope and measure for the tax obligation of the policyholder. It requests the rejection of this appeal, with costs.
V) That on fs. 37 it is reported that the appellant importer was declared bankrupt. On fs. 85 the undersigned dictates a measure to better provide, which is produced on fs. 95/96 and 98/100. On fs. 114 the cause of action is declared as a matter of pure law and the proceedings are referred to Chamber E, which passes them on to judgment.
VI) That on page 1 of file EAAA 603.433/1998 there is the complaint report No. 2372/98, relative to the alleged substantial non-compliance with DIT 1767-8/95. On page 3 there is an envelope containing the aforementioned DIT, made official on 2/5/95, due on 28/4/96. There is also the guarantee control No. 704.507. On page 6 the Liquidations Section determines the liens allegedly owed. On page 9 the opening of the summary is ordered and on pages 12/14 vta there is the discharge of the plaintiff Gráfica Ham. On page 23 there is the background report of this firm. On page 24 the Resolution No. 1800 of 21/3/00 appealed in this case is issued.
VII) That art. 970 of the CA in its section 1) provides that: "Anyone who fails to comply with the obligations assumed as a result of the granting of the temporary import or temporary export regime, as the case may be, shall be sanctioned with a fine of one to five times the amount of the taxes levied on the import for consumption or the export for consumption, as the case may be, of the infringing merchandise, a fine that may not be less than thirty percent of the customs value of the merchandise..."
That the offence attributed by customs is not purely formal, and the existence or not of fiscal damage is not relevant for this purpose, since the benefit of temporary importation is provided that the merchandise is re-exported on time (art. 250 of the CA), or its importation is eventually converted into a definitive one, for which the relevant request must be made within the time limits provided for in art. 271 of the CA. If an extension is requested, the requirements and terms of art. 266 of the CA must be met.
It is not disputed that the temporary import in question expired on 28/4/96 without the appellant proceeding to re-export the merchandise covered by it within the period granted (see the importer's acknowledgement on page 8 of the proceedings).
That, even if, hypothetically, it had been re-exported after the expiration of the term, this would not imply the lack of sanction of the appellant, since the Supreme Court of Justice of the Nation has held with respect to the suspensive destinations that the fact of the subsequent conversion into definitive cannot produce a neutralizing effect that removes the unlawfulness of the action of the sanctioned party, when configuring a case of expired maximum terms ("Di Tata, Emilio Ernesto", 10/2/81; "Fallos", 303-141).
It is worth remembering that art. 972, section 2 of the CA stipulates that failure to comply with the obligation to re-export "within the agreed period affects the purpose taken into account for granting the respective regime."
So much so that art. 275 of the CA provides that the DGA (according to decree 618/97) "may authorize the re-exportation of the merchandise once the agreed term for doing so has expired, provided that the taxes that tax the import for consumption have been paid and the imposed sanction has been complied with..." (emphasis added).
That no fortuitous event or force majeure was demonstrated in the case, since the circumstances relating to the "tequila effect" constitute part of the business risk that in no way imply that the typical action repressed by art. 970 of the CA has not been configured.
That, on the other hand, no fortuitous event or force majeure could have been configured in the terms of arts. 260 and 261 of the CA that would make the exemption of taxes appropriate without prejudice, where applicable, to the provisions of art. 262 of the CA, and that, by necessary implication, would prevent the unlawful act attributed by customs from being considered committed, since it was not demonstrated that the merchandise suffered damage in the terms of art. 260 of the CA, nor was it invoked that it was totally destroyed or irremediably lost in accordance with art. 261 of the CA.
That, in the face of a critical situation, there was nothing to prevent the appellant importer, within the stipulated period, from requesting in a timely manner the nationalization of the merchandise (art. 271 of the CA) or its re-exportation, or from opting for the possibility provided for in art. 270 of the CA.
That art. 270, par. 1, of the CA provides for an exemption from the obligation to re-export for consumption "when the merchandise in question is abandoned in favor of the national State, destroyed or treated in such a way that it is deprived of commercial value, under the control of the customs service. The request must be made at least one month before the expiration of the agreed period of stay."
From the above it can be inferred that if a situation of financial disaster had occurred and if the impossibility of definitively re-exporting the merchandise had been added to this, the alternative was its abandonment or destruction in accordance with the provisions of art. 270 of the CA.
That, consequently, the alleged infringement is considered to have been configured (which entails the corresponding sanction) and constitutes the basis for the notification of taxes.
That, however, I favor that the fine be set at one and a half times the legal minimum (conf. art. 915 of the CA), given that the appellant importer only has one precedent recorded on page 23 of the ant. adm. Consequently, the fine should be limited to $16.496.
VIII) That the event giving rise to the tax obligation in relation to violations of the suspensive destination regimes, such as the one discussed herein, is perfected at the time of the irregular transformation into definitive import due to the expiration of the term; in this case, this occurred on 28/4/96, such that the import was taxed on that date under the terms of arts. 274 ap. 1 inc. a), 638 inc. e), 639 of the CA, with the consequence that "whoever has temporarily imported the merchandise will be responsible for the corresponding tax obligations, without prejudice to the application of the corresponding sanctions" (art. 274 ap. 2 of the CA).
That, however, I am in favor of revoking the tax determination, given that although there is no evidence of its cancellation, the guarantee has been released.
That, in effect, at fs. 85 of the proceedings the undersigned requested that the DGA attach the surety bond No. 3786 referred to the Guarantee Control form No. 704507, submitted on 7/5/95, a copy of which is glossed in the DIT container envelope in question at fs. 3 of the adm. ant.
That, by virtue of such measure, on page 95 it is reported that "according to the printout of the consultation screen of guarantee No. 704.507 (...), the same has been released and delivered on 25/07/96", that is, after the expiration of the DIT of the sub-item. This information is corroborated on pages 98/100 of the proceedings, having glossed the printout of the screen relative to that guarantee, from which its release on 25/7/96 and the expiration date of DIT 1767 (28/4/96) arise.
That the policy that is the subject of the litigation having been delivered, the appellants should not be considered as debtors of the charge made for taxes.
However, taking into account that the payment of the tax debt does not arise from the verification of the administrative records, nor has it been invoked by the appellant insurer, such circumstances must be brought to the attention of the General Director of Customs for the purposes he deems appropriate.
I encourage the customs not to impose costs on this matter, as it has been resolved in accordance with the powers of art. 1143 of the CA.
That the way in which the tax issue is resolved renders the consideration of the issues raised by the insurer unnecessary.
Therefore, I vote for:
1st) Modify Resolution No. 1800 of 21/3/2000 of the Head of the Legal Procedures Department, setting the fine imposed on the recurring importer at $16.496 (sixteen thousand four hundred ninety-six pesos). Costs according to the due dates.
2º) Revoke the tax charge formulated in article 3 of the aforementioned Resolution 1800/2000. Without costs.
3rd) To inform the Director General of Customs of the circumstances set out in point VIII) of this document, by means of an official document to be issued by the Secretary of the Office of the 15th Nomination.
Dr. Winkler said:
I agree with the preceding vote.
Dr. Gustavo A. Krause Murguiondo said:
That agrees with the vote of Dr. García Vizcaíno.
In accordance with the above agreement, it is unanimously RESOLVED:
1st) Modify Resolution No. 1800 of 21/3/2000 of the Head of the Legal Procedures Department, setting the fine imposed on the recurring importer at $16.496 (sixteen thousand four hundred ninety-six pesos). Costs according to the due dates.
2º) Revoke the tax charge formulated in article 3 of the aforementioned Resolution 1800/2000. Without costs.
3rd) To inform the Director General of Customs of the circumstances set out in point VIII of the vote of Dr. García Vizcaíno, by means of an official document to be issued by the Secretary of the Office of the 15th Nomination.
Register, notify, promptly return and archive the administrative records.
