In Buenos Aires, on the 28th day of the month of September 2000, the Honorable Members of Chamber "E", Drs. Gustavo A. Krause Murguiondo, Catalina García Vizcaíno and Ms. Paula Winkler, met, with the presiding Member appointed in the first place, in order to resolve the proceedings entitled "GRUAS SAN BLAS SA", file no. 13.491-A.
Dr. Krause Murguiondo said:
I.- That on pages 2/6 back, the signature of the epigraph by proxy, files an appeal against articles 3, 4, 5 and 6 of the Resolution of the Contentious Department No. 2541/99, issued in file EAAA No. 603.070/98, insofar as it condemns her to pay a fine -the amount of which amounts to the sum of seven hundred ninety-five pesos and ninety-two cents ($ 795,92)-, in accordance with the terms of article 972 of the Customs Code and, likewise, orders a charge to be filed against her for the sum of three thousand seven hundred fifty-four pesos and eighty-four cents ($ 3.754,84), as a difference in duties. With respect to the scope of his appeal, he notes that, as regards the formulation of the charge for taxes, in his opinion, the same would lack validity, since such requirement would have been fulfilled at the time of making his discharge at the customs office, as would appear on page 37 of the administrative proceedings. As regards the infraction issue, he states that since the period of stay corresponding to the temporary importation documented by means of DIT No. 2471-5/97 operated on 1.10.97/271/24.9.97, in accordance with the provisions of article 2471 of the Customs Code and amendments, the deadline to proceed with the definitive importation of the goods thus documented expired five days before that date, that is, on 5/97/110.552. He states that for reasons beyond his control he was unable to complete the aforementioned nationalisation procedure before the expiry of the period established by regulation for this purpose, for which reason and in full accordance with the supplementary application of the grace period for administrative procedures, he proceeded to regularise the situation of the DIT within the first two hours of the day following the expiry of the temporary period. In this way, DIT No. 7-97/XNUMX was transformed into DI No. XNUMX-XNUMX/XNUMX and the corresponding taxes were paid. That such facts are what gave rise to the complaint by the DGA that initiated the summary of the proceedings. The Court considers that the position put forward by the customs service is based on a rigid interpretation of the current regulations, which has not taken into account the fact - already mentioned above - that the deposit of the sums claimed as taxes was made within the first two hours of the day following the expiration of the term of the temporary importation corresponding to the DIT in question. It adds that said payment is accredited and certified by the bank involved in the operation. It maintains that, in its case, its eventual non-compliance would only be of a formal nature. It is aggrieved because the absence of previous infraction records was not considered when setting the amount of the sanction imposed, thus causing excessive formal rigor to its detriment. It cites jurisprudence in support of its claim. It offers evidence, introduces the federal question and requests that the appealed resolution be revoked.
II.- That, from the appeal filed by the plaintiff, on pages 19 the corresponding transfer was made to the General Directorate of Customs, which responded on pages 25/34. In its defense, it raises an exception of incompetence of this Court to hear the litigation, which it requests to be declared as a matter of prior and special pronouncement. It maintains that the appealed act falls within the terms of article 1053 (paragraph b) of the Customs Code (sic), the amount claimed therein being seven hundred ninety-five pesos and ninety-two cents ($ 795,92). It refers to and analyzes the rules of articles 1025 and 1132 of the aforementioned legal text as well as those of Law No. 23.259, which establish and regulate the jurisdiction of this jurisdictional body. In relation to the substantive issue, the Court provides a summary of the background to the case and makes a general denial of each and every one of the facts and documentation provided by the plaintiff that are not the subject of its special recognition. It highlights that the appellant had not added to the administrative proceedings the import clearance that would discharge the questioned DIT, notwithstanding that, in this case, the burden of proof of compliance with the obligations inherent to the temporary import regime falls on that party. It adds that, in this way, the importation for consumption of the merchandise in question would have been untimely since, although the nationalization was carried out within the period of the temporary import, it was not carried out within the term set for that purpose by the regulations. That, in this case, the infringement charged must be considered established. He argues that, given the special nature of the promotion regime in question, the expiration period agreed for temporary importation constitutes a legal requirement for the same, notwithstanding the formal nature of the period granted to proceed with the conversion into a definitive one. He refers to the rules of articles 274 and 972 of the code on the subject matter. He cites jurisprudence in support of his statements. He introduces the federal question and requests that the customs decision be confirmed, with express imposition of costs.
III.- That on fs. 39/vta. the appellant answers the transfer that, of the exception raised by the fiscal representation, was conferred to it on fs. 38. Regarding the arguments of its opponent regarding the incompetence of this body due to the causes before it, it states that, in light of the nature of the resolution it challenges and in accordance with the provisions of article 1132 of the Customs Code, it is authorized to choose to file an appeal against it before this Court or, alternatively, a contentious claim in court. Consequently, it understands that the reference made to article 1053 of that legal text lacks foundation. Regarding the quantum of the appealed amount, it understands that, having questioned both the amount of the fine and the amount of the taxes required, by virtue of the arguments it sets forth, Law No. 23.259 is not applicable to the sub-lite. In this order of ideas, he requests that the exception of incompetence raised by the fiscal representation be rejected, with costs.
IV.- That, considering the state of the case, on page 41 they were brought to the attention of Chamber "E", which on page 41 passed them on to judgment.-
V.- That, in what is of interest here, it arises from the present proceedings, file EAAA No. 603.070/98, that by record No. 60/98 (pages. 1), the alleged violation of the temporary import suspension regime was reported (infringement provided for and punished by art. 970 of Law 22.415) regarding import clearance no. 2471-5/97, which was documented by the firm Gruas San Blas SA At fs. 4/5 A copy of the temporary import order is produced in alleged violation. From the destination verification report added to fs. 6 It appears that the merchandise imported under the DIT subject to inspection was nationalized through import clearances Nos. 64.742-4/97 (DIT 3382-9/97) and 110.552-7/97 (DIT 3417-5/97). That the one corresponding to DI 64.742-4/97 was sold to Banco Roberts SA and the one corresponding to DI 110.552-7/97 is currently in the firm Conteman SA for rent. It is glossed on fs. 7/15 copy of import clearance no. 110.552-7/97 and related documentation. Pay attention to the terms of the minutes on fs. 6 and from the aforementioned documentation, it would appear that the merchandise imported under DIT No. 2471-5/97 with expiration date of 30.9.97 (pages. 13), would have been nationalized by DI No. 110.552-7/97 dated 25.9.97, that is, outside the term established by ANA Resolution No. 1644/86, for which reason a complaint is being filed under the terms of article 970 of the CA, with 24.9.97 being considered as the date of the infringement. At fs. 20 the proceedings are elevated to the Prevention Summary Division, which on pages. 20/vta. refers them to the Litigation Department. At fs. 25 an envelope is added containing the folders of DI No. 110.552-7/97 and DIT No. 2471-5/97.A fs. 26 the valuation and appraisal of the infringing merchandise is carried out, while on pages. 29 the charge is settled for the difference in rights corresponding to the general regime. In this act, a payment is deducted amounting to the sum of sixteen thousand seven hundred and eighty-eight pesos ($ 16.788,00) and the minimum applicable fine is settled, being its amount of fifteen thousand ninety-eight pesos and seventy-one ($ 15.098,71). At fs. 30 the opening of the summary is decreed and the defendant is informed of the proceedings. Likewise, the amount of the taxes pending payment ($ 3.754,84) is hereby made known, according to the liquidation on fs. 29. At fs. 34/36vta. the accused formulates her defense. At fs. 37 the deposit slip corresponding to the payment of the amount claimed as taxes is added. At fs. 38/39 the proof of transfer and certification of the amount paid in taxes with respect to DI No. 110.552-7/97.A fs. is added. 43 the view given on fs. is considered answered. 30, the evidence offered by the accused is provided and the taxes pending cancellation by DIT 2471/97 are considered to be paid, in accordance with the liquidation carried out on pages. 37. At fs. 45/vta. the cars are now being resolved on pages. 46/47vta. Resolution of Cont. is issued. No. 2541/99 appealed in this case, which - with respect to its art. 1st- was approved by Resolution No. 01039/99 (SDG OAM) -(pages. 51/52).-
VI.- That it is appropriate to issue a ruling on the exception of incompetence of this Court to hear the present case, raised by the prosecution on pages 26/27.-
That, first of all, it is appropriate to point out that in this case an appeal has been filed, under the terms of article 1132 of the Customs Code, against articles 3, 4, 5 and 6 of the Resolution of Cont. No. 2541/99 (see pages 12/13 back), which, as reported in point V of this document, is the final resolution issued in the infraction procedure preceding this case. That the aforementioned rule establishes that, against the final resolutions issued in the procedures for the infractions, the interested parties may file, within the time periods indicated for this purpose and in an exclusive and exclusive manner, an appeal before the Tax Court; or a contentious claim before the competent judge (art. 1132 par. 1 incs. a) and b).-
With regard to the jurisdiction of this Court in customs matters, Article 1025 of Law 22415 and amendments (subsection b), for the case, establishes that this jurisdictional body is responsible for hearing "... the appeals against the administrator's resolutions in the procedure for infractions..." In this order of ideas, this Court is competent, based on the subject matter, to hear the sub-lite.
That, in light of the above, the plaintiff is correct in that it maintains that the reference to article 1053 (paragraph b) of the Customs Code made by the tax representative in his response, in the present case, is erroneous. Indeed, this rule refers to the challenge procedures, since, as already noted, in this case it is a procedure for infractions.
VII.- That, as regards the competence of this body in terms of the amount, it is appropriate to point out that art. 19, point 1 of law 25.239 (not 23.259 as indicated on page 27), published in the Official Gazette on 31.12.99/1025/2.500, has replaced the minimum appealable amount of paragraphs a), b) and c) of article XNUMX of the Customs Code, raising it to two thousand five hundred pesos ($XNUMX).-
That Law 25.239 came into force for the purposes of Title XVI of the Customs Code (Article 26, paragraph K) as of January 1, 2.000, which is why, on the date of filing of this appeal, February 22, 2.000 (see pages 1 and 6 back), it was in force.
That, notwithstanding what was indicated by the appellant in form F4 of fs. 1 in which the amount appealed is declared as seven hundred ninety-five pesos and ninety-two pesos ($ 795,92) corresponding to the fine imposed, as noted above, the plaintiff has also appealed in the proceedings the amount corresponding to the difference in taxes claimed by Customs in article 5 of the appealed judgment. Since said amount amounts to three thousand seven hundred fifty-four pesos and eighty-four pesos ($ 3.754,84), this Court is also competent by reason of the amount to hear the appeal filed by Gruas San Blas SA.
That, in accordance with the above, the objection raised in the case in question must be rejected. That the solution reached is without imposition of costs. This is because, without prejudice to the subsequent clarifications and the payment of the corresponding action fee, the erroneous amount declared in F4 of fs. 1 could have caused the tax authority to consider itself with a better right to base its defense. - That, consequently, it cannot be considered "defeated" in this aspect. -
VIII.- That with regard to the violation of article 972 of the Customs Code, the commission of which is attributed to Grúas San Blas SA by the appealed resolution in this case, the following considerations must be made.-
That by means of DIT nº 2471-5/97, made official on March 31 of that year, the temporary import in question was documented, the original term of which was ninety (90) days. As it appears from the documentation in the DIT folder that is included on fs. 25 and from the copies of the Request for Extension-Temporary Importation form and the Guarantee Control form that appear on fs. 12 and 13, respectively, of the administrative proceedings, that term was extended by another similar one, that is, also of ninety days. Consequently, the new term of the temporary period expired on September 30, 1997.
That article 271 of the aforementioned ordinance in its original wording established that: "When the interested party has requested it at least one month prior to the expiration of the agreed period of stay or within the period of ten days from the notification of the denial of extension, the National Customs Administration may authorize that the temporarily imported merchandise be subjected to the destination of import for consumption..." The terms established in this rule were adapted by the then ANA up to five days before the expiration of the agreed period of stay, or up to fifteen days from the notification of the denial of extension, respectively, in accordance with the provisions of Resolution No. 1644/86, issued under the terms of the then art. 23 inc. j) of that Code.
That by import clearance no. 110.552-7/97, formalized on 25.9.97, the definitive import of the merchandise that was originally imported temporarily was documented, thus proceeding to the nationalization of the merchandise documented by means of DIT 2471-5/97. Likewise, on that date the taxes corresponding to the operation were paid (see the payment certificate in the DI folder no. 110.552-7/97 on page 25 of the administrative file).
IX.- It should be noted that the formal nature of the alleged infringement is not disputed. Precisely, this circumstance motivated the change in legal classification and led to the plaintiff being sanctioned under the terms of article 972 of the Customs Code and not 970. Notwithstanding this, and considering that the temporary import in question was regularized the day after the expiration of the period set by Resolution No. 1644/86, date on which the taxes corresponding to the definitive conversion were also paid (25.9.97), it is appropriate to attenuate the imposed sanction by 50%.
X.- That with regard to the tax issue, the plaintiff's appeal is limited to questioning art. 5 of the Cont. Resolution No. 2541/99 since it has been complied with (see pages 2/vta. in fine of the start of the document), without any specific grievance having been expressed, not even in relation to the amount claimed, which, moreover, is consented to (see the proof of payment found on pages 37 of the administrative proceedings).- That the lack of grievances is in itself sufficient to reject the appeal in this regard. Now, if the plaintiff's grievance were that the amount set forth in art. 5 of the appealed resolution has been paid, the undersigned does not notice that the provisions of the aforementioned art. 5 is contrary to the plaintiff's claim, and therefore, in this respect, her appeal is inadmissible. Indeed, note that although the appeal orders the filing of a charge for the sum of $3.754, three thousand seven hundred and fifty-four pesos and eighty-four cents, it also orders the payment credited on page 84 to be taken into account, in addition to the coincidence of both figures.
That, in my opinion, the above prevents us from considering that any of the parties has been defeated in this matter, without it being appropriate to impose costs in relation to it.
XI.- That with respect to article 6 of the appealed resolution, no pronouncement is required from this Court.
That, in virtue of all that has been stated here, I VOTE FOR:
1st) Reject the exception of incompetence raised by the public prosecutor. Without costs.
2º) Modify articles 3 and 4 of Resolution 2541/99, as set forth in recital IX of this document. With costs according to the due dates.
3) Confirm Article 5 of Resolution 2541/99. Without costs.
Dr. García Vizcaíno said:
I) That I agree with Dr. Krause Murguiondo in rejecting the exception of incompetence, adding that Law 25.239 also incorporated the following provision as the second paragraph of section 1 of art. 1025 of the CA: "If the tax determination and the imposition of the penalty are decided jointly, the entire resolution may be appealed when both concepts together exceed the minimum amount provided for in the previous paragraph [$2500], without prejudice to the interested party being able to appeal only for one of those concepts but only if it exceeds said minimum amount."
That the sum of the contested tax determination ($3.754,84) plus the amount of the appealed penalty ($795,92) significantly exceeds the amount of more than $2.500, which constitutes the minimum to be able to appeal before this Court.
II) I also share the previous vote regarding the sanction applied (points VIII and IX), which should be reduced to 50% for the reasons stated therein.
III) That with regard to the tax issue, I advocate that the charge formulated by article 5 of the contested Resolution be revoked, with costs, given that the appellant in its initial writing appealed it and requested its revocation, based on the fact that the difference in taxes of $3.754,84 "was fulfilled", given the record of fs. 37 of the ant. adm., "at the time GRíšAS SAN BLAS SA made the relevant discharge, for which reason we consider that said formulation of the charge lacks validity" (see fs. 2/3 and 6 back. point IV, d)-).
I believe that this claim by the appellant should be successful, since at the time of the officialization of DI 110.552-7/97, it proved the payment of $16.788 according to the settlement made in the body of said dispatch (see pages 25 of the administrative antecedents).
That on page 29 of the previous administrative documents, the customs understood that the total taxes for the aforementioned clearance amounted to $20.542,84, therefore, deducting the amount paid of $16.788, the appellant owed the sum of $3.754,84.
That, consequently, when the hearing of arts. 1101, 1103 and related articles of the CA was held, she was ordered to pay $3.754,84 in accordance with the terms of art. 794 of the CA (see pages 30 of the administrative antecedents).
That, within the period of 10 business days provided for by the aforementioned arts. 794 and 1101 of the CA, on 11/2/99, the plaintiff paid the requested amount of $3.754,84 (pages 33 and 37 of the ant. adm.). Note that the response to the hearing was filed on 16/2/99 and was considered as such "in time [10 days] and in form" (page 43 of the ant. adm.).
That, for the reasons set forth above, I consider that Article 5 of Resolution No. 2541/99, which provides: "FORMULATE A CHARGE for the sum of $3.754,84..., as a difference in taxes, taking into account the payment made on page 37", should be revoked with costs.
That this last expression, in my opinion, can give rise to different interpretations, since one of them could be understood as meaning that the charge to be formulated must deduct the payment made on page 37 of the previous administrative proceedings, but it could also be argued that the amount of $3.754,84 results from the deduction of the payment made on page 37, which does not agree with what has been previously stated on this point.
That, moreover, it does not seem to be compatible with the principle of economy in procedures, provided for in art. 1, paragraph b) of the LNPA (applicable in a supplementary manner by art. 1017, paragraph 1, of the CA), that the Liquidations Section formulates a charge for a non-existent amount and that the proceedings then proceed to "the CANCELLATION OF CHARGES AND DEBTS SECTION for its cancellation" (art. 7 of the contested resolution).
That's how I vote.-
Dr. Winkler said:
I agree with Dr. García Vizcaíno's vote.
Pursuant to the above agreement, by majority, IT IS RESOLVED:
1st) Reject the exception of incompetence raised by the public prosecutor. Without costs.
2º) Modify articles 3 and 4 of Resolution 2541/99, as set forth in recital IX of the vote of Dr. Krause Murguiondo. With costs according to the due dates.
3°) Revoke Article 5 of Resolution 2541/99. With costs.-
Register, notify, promptly return and archive the administrative proceedings.
