In Buenos Aires, on the 8th day of October 2003, the members of Chamber E, Drs. Catalina García Vizcaíno and Ms. Paula Winkler (Dr. Gustavo A. Krause Murguiondo is on leave), met in order to resolve the case entitled: HORMIGONERA PLATENSE SA v. DGA S/ Appeal; file No. 18.252-A.
Dr. Catalina García Vizcaíno said:
I) That on pages 32/38 Hormigonera Platense SA, through its legal representative, files an appeal against Resolution No. 70/2003 of the Department of Customs Legal Procedures, approved regarding the acquittal of the customs broker by Resolution No. 137/2003 of the Deputy Director General of Metropolitan Customs Operations. It states that it requested the import destination for consumption of a Fiat concrete mixer truck, Model 330, used, year 1990, with an FOB value of US$ 6.655. It indicates that the red selectivity channel was assigned to said destination and that when proceeding to verify the merchandise, the verifier authorized the entry of the truck, observing the instrumented value. The Customs Police alleges that, despite having authorized the release of the merchandise to the market, the Customs Police ordered its detention, in accordance with art. 1085 of the CA, and a complaint was filed regarding the infringement provided for in art. 954, inc. b) of the CA. The Customs Police alleges that at the time of processing and documenting the import in question, the Customs Police considered that the import was not prohibited, as established by former SIC resolution No. 91/95. The Customs Police alleges that the Customs Police cannot validly be accused of non-compliance, since otherwise, events that occurred prior to the manifestation of the non-compliance would be judged under new criteria. The Customs Police alleges that, in accordance with this criterion, the authority decided not to apply the sanction contemplated in art. 954, inc. b) of the CA, but decided to order the re-embarkation of the merchandise. In this sense, the Customs Police alleges that, with its actions, the Customs Police seriously violated the right to defense. The Court considers that the said sanction has absolutely no legal basis, as it does not mention any rule by which the re-shipment can be ordered, despite considering that the infringement relating to the violation of the prohibition was not committed. It cites case law. It refers to the imposition of the fine. It maintains that the administration has discarded the transaction price without carrying out an investigation into the price illustrated in the attached invoice. It reiterates that the appealed resolution lacks grounds to establish the sanction, given that it is graduated according to the recidivism of the accused, despite the fact that the customs recognized the non-existence of such circumstance, not being able to demonstrate the extremes taken into account to reach the sanction amount. It argues that such an attitude violates the principle of proportionality. It requests the provisional delivery of the merchandise, by virtue of the fact that the appealed resolution does not merit the application of art. 954 inc. b) The CA offers evidence, reserves the federal case and requests that the appealed decision be revoked. Alternatively, it requests that the sanction be mitigated to the legal minimum.
II) That on pages 45/52 the public prosecutor's office contests the notification duly submitted to it. It makes a brief summary of the proceedings and the grievances raised by the plaintiff. It states that there is a real legal duty of the declarant towards the tax authorities, with respect to the veracity of the statements made. It maintains that for the infringement punished in art. 954 of the CA to be established, it is essential that the declaration does not conform to reality or that it is inaccurate. It adds that the typical action consists of making a declaration to the customs service that differs from the verification carried out by the Customs and that produces or may produce one of the situations provided for in the three paragraphs of the aforementioned article. It refers to the recitals of the customs resolution that it cites. It concludes that the plaintiff incurred in the conduct typified and penalized by art. 954 par. 1 inc. a) and c) of the CA. It highlights that the graduation of the penalty at one and a half times the minimum fine is appropriate, taking into account that the graduation of the same is at the discretion of the judge, who must take into account in each case the circumstances, nature and seriousness of the infractions. It reserves the right to appeal the federal case and requests that the appealed resolution be confirmed, with costs.
III) That at fs. 55 the cause is declared of pure law. At fs. 58 the files are elevated to Chamber E, which passes them to sentence.
IV) That on page 1 of file EAAA-1998-604286 there is the complaint report No. 40/98 in relation to DI 98 001IC04 300294-2 on the grounds that the merchandise does not comply with the guidelines established by Res. ex SIC 91/95, causing prima facie an infringement of art. 954 inc. b). On page 3, the DIT No. 98 001IC04 300294-2 appears in an envelope, made official on 28/9/98. On pages 6/7, on 28/10/98 the merchandise is detained in accordance with the terms of art. 1085 of the CA. On pages 10, the opening of the summary is ordered. On pages 13/14, there is a report from the Valuation Section. On pages 19 reports the amount of the tax loss and the difference in tax base that would result from applying the reported value adjustment. On fs. 21, the plaintiff's actions are reviewed, which are presented on fs. 36/40 back. On fs. 101/104 back, Res. DE PLA 70/2003 is issued, which was approved by the acquittal of the customs agent by Res. 137/2003 of fs. 108/109.
(V) That the claim of arbitrariness made by the plaintiff (see especially pages 37 back of the case) cannot prosper, since it is doctrine of the Supreme Court of Justice of the Nation that the challenge of arbitrariness is not applicable to a well-founded resolution or judgment, regardless of its correctness or error (Fallos, 243-560, 246-266, 248-584, 249-549), except in certain cases, such as, e.g., the contradiction between the recitals and the operative part (cfr., among others, Scicolone, Manuel S. v. Prantera, Omar Alberto, et al., 26/11/91). It has also said that since the contested resolution is sufficiently well-founded, the express mention of all of the appellant's arguments is not required (among others, Fallos, 251-39). It should also be remembered that judges are not obliged to consider all the evidence produced in the case, but only those that they consider conducive to its correct solution and that, by means of the federal remedy, there should be no attempt to convert this Court into just another ordinary instance ("Rulings", 274-35, 276-132 and 248, 278-135, among many others) (Rulings, 301-676).
That, on the other hand, it is Supreme Court doctrine that when the restriction of defense in court (see argument, among others, on page 34 of the file) occurs in the procedure that is being conducted in an administrative setting, the effective violation of art. 18 of the CN does not occur as long as there is the possibility of correcting said restriction in a later jurisdictional stage (Judgments, 205-549, 247-52 consid. 1º., 267-393 consid. 12 and others), because the requirement of defense in court is satisfied by offering the possibility of appearing before a jurisdictional body in search of justice (Judgments, 205-549, consid. 5º and its citations) -TFN, Sala E, among others, Rivera, Alcides of 27/5/86, López Arispe, José, of 5/9/88-).
That in this regard, the plaintiff is not required to pay costs, given that the nullity was raised in an integrative manner with the merits.
VI) That the Customs Code protects the principle of truthfulness and accuracy of declarations and statements submitted to customs. Article 954 of that Code punishes and sanctions - in relation to the protected legal right - anyone who, in order to carry out any import or export operation or destination, makes an inaccurate declaration to the customs service, which if it goes unnoticed, produces or could produce, among other assumptions: a) a fiscal loss, will be sanctioned with a fine of 1 to 5 times the amount of said loss; b) a violation of a prohibition on import or export, will be sanctioned with a fine of 1 to 5 times the customs value of the merchandise in violation; c) the entry or exit from or to abroad of an amount other than that which corresponds, with a fine of 1 to 5 times the amount of the difference.
That the appealed resolution considered that the assumption of paragraph b) of section 1 of art. 954 of the CA had not been configured, despite which it was reclassified within paragraphs a) and c) of that rule.
To this end, it was considered that the interpretation relating to the prohibition of the merchandise in question should be understood as being in force after the official dispatch of the sub-lite, pointing out that the accused documented the importation of the cars in accordance with the interpretation accepted at that time by the General Directorate of Customs and that this instance understands that for the purposes of resolving these matters in accordance with the law, they cannot validly be reproached for non-compliance with the duties inherent to the regime involved, because otherwise, events that occurred prior to this being manifested would be judged with a new criterion, classifying as illicit the conduct carried out subject to the regime that the authority considered applicable up to that moment. Consequently, the right of defense of the accused would be violated since they could not foresee said change and obviously adapt what had already been done to it.
Since the appealed resolution understood that there was no violation of the prohibition regime according to the interpretation of the DGA at the time of the officialization of the dispatch, this position does not seem consistent with the reshipment of the merchandise that was ordered by that resolution.
That, consequently, I hereby revoke the order for reshipment of the imported goods by the office in question, without prejudice to highlighting that it is not appropriate to grant the provisional delivery requested on page 37 back of the proceedings until the present becomes final and as long as the appellant does not owe any sum to the Treasury, due to the customs preferences provided for in arts. 997 to 1000 of the CA.
VII) That, on the other hand, the conduct provided for and penalized by paragraphs a) and c) of the CA has not been configured, for the reasons that I will explain below.
That the Supreme Court has stated that the general provisions of the Penal Code are applicable to customs violations, according to which only those who are guilty may be punished, that is, those to whom the punishable action can be attributed both objectively and subjectively (Judgments, 290-202, 5th recital and its citations) (SAFRAR Sociedad Anónima Franco Argentina de Automotores, dated 27/12/88, Judgments, 311-2779). This, without prejudice to the position of the Honorable. Supreme Court regarding the burden of proof regarding the presumption of guilt inherent in the material elements of the actions of the active subject of the infraction, since in Wortman, Jorge Alberto, et al., dated 8/6/93, the High Court held, in the case of formal infractions, that when the existence of material -or objective- elements arise from the proceedings and, therefore, the adequacy to the relevant criminal type, it is up to the accused to bear the burden of proof tending to demonstrate the nonexistence of the subjective element. In the same sense, the Supreme Court considered that the burden of proof falls on the appellant in the matter of the fine imposed, since as it has repeatedly pointed out in the presence of the materiality of the infraction..., it is up to the offender to provide proof in his or her defense -Rulings: 198, 310- for which the allegation of ignorance of the legal precepts is not sufficient -Rulings: 182, 384 and others- (Julio E. Real de Azúa v. Internal Taxes, Rulings, 206-508).
That art. 234, section 2 of the CA stipulates that: The declaration referred to in section 1 must indicate, in addition to the requested destination, the mention of the position of the merchandise in the applicable tariff nomenclature as well as the nature, species, quality, condition, weight, quantity, price, origin, provenance and any other circumstance or element necessary to allow the correct tariff classification and valuation of the merchandise in question by the customs service.
From this rule it follows that the declaration committed must be truthful as to the characteristics of the merchandise, the commercial conditions and other circumstances that allow the customs service to fulfill the function assigned by art. 241 of the CA relative to verify, classify and value the merchandise in question, in order to determine the legal regime applicable to it (e.g., eventual regime of prohibitions).
As a corollary to the provisions of the aforementioned article, art. 957 establishes that: Inaccurate tariff classification included in any declaration relating to import or export operations or destinations shall not be punishable if all the necessary elements have been indicated to allow the customs service to correctly classify the merchandise in question.
That a fortiori the principle of art. 957 of the CA also governs when the inaccuracy relates to the prohibition regime, as long as the declaration of the characteristics of the merchandise is truthful and complete.
That in the aforementioned office the appellant declared Position SIM 8705.40.00.900N, which the customs has not disputed (see pages 3 Ref. and 101/104 back of the previous administrative documents).
Which also expressly stated that the condition of the merchandise was: USED IMPORTED.
Furthermore, the customs office did not challenge the commercial invoice for falsification, and the proceedings did not show that it even initiated an investigation to determine whether any illegal act was committed.
That the customs objected to the FOB value of US$ 6.655 for the FIAT 330 26 concrete mixer truck, based on the prices listed on page 13 of the previous administrative documents.
That none of the models referred to by the customs of the FIAT brand (model 300 at prices of US$ 8780 in 1977, 21.169,20 in 1983 and 18.741,18 in 1983) coincide with that of the good imported by the plaintiff (model 330, 1990).
That this lack of coincidence produces in my mind reasonable doubts that lead to the application of the principle of art. 898 of the CA only with regard to the fine applied for its penal substance.
That, therefore, it is appropriate to revoke the sanction applied by the contested resolution, without prejudice to the liens that customs could impose on the new taxable base of $32.000 that it arrived at on page 19 of the ant. adm. and that has not been invalidated by evidence to the contrary by the appellant, given that although the models computed by customs do not exactly coincide with the good of the species, a notable difference in prices is noted, since the imported truck dates from 1990, while the trucks from 1983 have a higher price than the declared one.
That, therefore, in the event that the revocation of the re-embarkation becomes final, the plaintiff must pay the taxes liquidated on page 19 of the ant. adm. plus the interest computed from the expiration of the 10 business day period from the notification of 17/8/99 (see pages 46/vta. of the ant. adm.).
In this regard, I will not go beyond the framework outlined by the appealed resolution, taking into account that the customs did not demand the taxes liquidated on pages 19 back of the previous administrative documents because it ordered the re-shipment of the goods in question.
If this re-embarkation measure were to be revoked, it is obvious that the taxes on the higher value attributed by customs to the goods in question would have to be paid, without the plaintiff supporting this with conclusive evidence.
VIII) That, in addition, with regard to the taxes owed by the plaintiff in the event that the re-shipment lifting becomes final, it should be noted that according to the principle of art. 377 of the CPCCN (of supplementary application in the matter in accordance with art. 1174 of the CA) it was the responsibility of the plaintiff to provide conclusive proof of the veracity of the declared FOB value in order to invalidate the comparative guidelines taken by the customs service, so that since it did not do so, the tax determination made by the DGA should prevail, which enjoys a presumption of legitimacy and it is the responsibility of whoever challenges it to do so with conclusive and categorical evidence.
It has been said that when it comes to tax determinations, different rules apply regarding the burden of proof in relation to those applied in other trials (Judgments, 268-514 and 289-514, consideration 8; CNCont.-Adm.Fed. Cap., Sala 1, Guzmán, Oscar A., dated 26/6/79; in the same sense, CNCont.-Adm.Fed. Cap., Sala 3, Figueiro, José Ramón, dated 30/10/79), and that when the taxpayers' declarations are not supported by categorical evidence, the ex officio estimates or liquidations made by the treasury enjoy legitimacy; and it is up to the person who challenges them to prove the facts (CNCont.-Adm. Fed. Cap., Room 1, Willman Argentina SAIC s./ Appeal-income tax, dated 22/5/92, Tax Criteria, November 1992, p. 75).
That, finally, the transaction value declared by the appellant could validly be challenged by the DGA in exercise of the powers arising from art. 9, section 2, subsections a), b) and d) of decree 618/97.
IX) That, given the difficulties of the issue raised, I encourage no costs to be imposed on the Treasury.
Therefore, I vote for:
1st) Revoke the fine imposed by PLA Resolution No. 70/2003. Without costs to the Treasury.
2°) Revoke the re-shipment order of the good subject of dispatch 98 001 IC 04 300294-2, without prejudice to highlighting that it is not appropriate to make way for the provisional delivery requested on fs. 37 back of the proceedings until the present becomes final and as long as the appellant does not owe any sum to the Treasury, due to the customs preferences provided for in arts. 997 to 1000 of the CA.
3°) In the event that the revocation of the re-embarkation order becomes final, the plaintiff must pay the sum of $12.721,60 (twelve thousand seven hundred twenty-one pesos with 60/100) in the form of taxes liquidated on page 19 of the ant. adm. plus the interest computed from the expiration of the 10 business day period counting from the notification of 17/8/99 (see pages 46/vta. of the ant. adm.)
Dr. Winkler said:
I agree with the preceding vote.
In accordance with the above agreement, it is unanimously RESOLVED:
1st) Revoke the fine imposed by PLA Resolution No. 70/2003. Without costs to the Treasury.
2°) Revoke the re-shipment order of the good subject of dispatch 98 001 IC 04 300294-2, without prejudice to highlighting that it is not appropriate to make way for the provisional delivery requested on fs. 37 back of the proceedings until the present becomes final and as long as the appellant does not owe any sum to the Treasury, due to the customs preferences provided for in arts. 997 to 1000 of the CA.
3°) In the event that the revocation of the re-embarkation order becomes final, the plaintiff must pay the sum of $12.721,60 (twelve thousand seven hundred twenty-one pesos with 60/100) in the form of taxes liquidated on page 19 of the ant. adm. plus the interest computed from the expiration of the 10 business day period counting from the notification of 17/8/99 (see pages 46/vta. of the ant. adm.)
Register, notify, promptly return and archive the administrative records.
This document is signed by Dr. García Vizcaíno and Dr. Winkler, as Dr. Krause Murguiondo is on leave (see art. 1162 of the CA)
