Invalidity regarding the grading of fines - absorption by the fund. Violation of suspensive allocation regimes. Additional right of decree 1439/96: admissibility with respect to the tax obligation derived from the aforementioned violation.
In Buenos Aires, on the 27th day of September 2002, the members of Chamber E, Drs. Catalina García Vizcaíno and Gustavo A. Krause Murguiondo (Dr. D. Paula Winkler is on leave), met to decide the case entitled: IEF LATINOAMERICANA SA v. DGA s/ appeal; file No. 16.912-A.
Dr. Catalina García Vizcaíno said:
I) That on pages 9/10 back, IEF Latinoamericana SA, through its representative, files an appeal against Resolution No. 4552 issued by the AFIP-DGA in file No. 605.225/00. It states that it temporarily imported merchandise under DIT No. 99 073 IT 14 124 Z that was processed and re-exported but that, due to an administrative error, it says that it did not properly unload them in each export made. It maintains that the additional import duty would be inadmissible because the taxable event that makes its requirement possible is not configured. It adds that the aforementioned charge is unconstitutional because it was created by the Executive Branch. It considers that the fine should be graduated according to the parameters established in art. 915 of the CA and the causes and motivation thereof should be expressed when the condemnatory resolution is issued. He argues that without such explanation the administrative act is null and void and cannot prosper due to lack of cause and motivation. He believes that the minimum sanction should have been applied. He offers evidence, reserves the federal case and requests that the contested resolution be revoked insofar as it has been the subject of grievance.
II) That on pages 23/33 the public prosecutor's office contests the transfer that was duly conferred upon it. It makes a brief summary of the proceedings and the grievances raised by the plaintiff. It points out that the proceedings show that the appellant temporarily imported the merchandise, but the same did not occur with respect to compliance with the obligation that the regime entails with respect to the pending merchandise, since it does not provide documentary evidence that accredits the re-exportation of the imported goods. It emphasizes that the burden of proof of compliance with the obligations inherent to the suspensive import destination regime falls on the importer. It cites case law. The plaintiff claims that decree 1439/96 establishes a special regime for temporary imports for promotional purposes and that this regulation was issued in the exercise of the powers established in Art. 277 CA. The plaintiff claims that the plaintiff was subject to this special regime for suspensive destination when it documented the operation, being covered by its benefits and subject to the obligations arising from it. The plaintiff adds that, once the violation of the obligations inherent to the regime has been verified, the legal presumption provided for in art. 274 of the CA operates, considering the temporarily entered merchandise as imported for consumption and the plaintiff becomes responsible for the tax obligations to the extent for which it committed itself, in addition to the fine. The plaintiff refers to the attenuation of the sanction requested by the plaintiff and considers that there are no relevant elements that justify the attenuation of the fine imposed, in light of the background on fs. 28 of the ant. adm. It concludes that the appellant's excuses for reversing the terms of the sentence imposed are not sufficiently valid. It offers evidence and requests that the contested customs decision be confirmed, with costs.
III) That on page 38 the cause is declared as purely legal and the proceedings are sent to Chamber E, which passes them on to judgment.
IV) That on fs. 1 of file No. 605.225-00 there is complaint No. 311/00 for violation of the temporary import regime with respect to DIT No. 99 073 IT 14 124 Z, whose container envelope appears on fs. 3 Ref. On fs. 4 the report of Section D of the Verification Division is issued, in which it is stated that the customs value of the merchandise is US$ 36.506,61. On fs. 5/6 the Liquidations Section performs the tax liquidation and the minimum fine. On fs. 9 the instruction of the summary is ordered and all the proceedings are reviewed by the accused, who answers on fs. 12/vta. On fs. 26 the evidence offered by the plaintiff is not allowed. On fs. 29 Resolution No. 4552 is issued, appealed in this case.
(V) That the nullity raised by the appellant regarding the grading of the fine (see pages 9 back/10 of the proceedings) is directly linked to the grievances that support the appeal, so that as Francesco Carnelutti teaches, … from the principle of absorption of invalidation in the appeal, the rule formulated by scholars of civil procedure also derives for criminal proceedings, in the sense that the defects of the challenged provision become grounds for challenge; this means that as soon as a flawed provision is challengeable, the power of invalidation does not concur with that of challenge, but is absorbed in the same as the annulment is absorbed in the rescission. Such absorption is at the point of arrival of a historical evolution that I could not even trace here in its general points; in very general terms, I indicate only that the rescission of the unjust act constitutes a step forward with respect to the annulment of the flawed act; This is where the slowly developing thought is expressed that the requirements of the act, and in particular the formal requirements, are not valid in themselves but as means to the end of its justice, which truth, even when obvious, has not had an easy path in the history of law... (Lessons on the criminal process. Vol. III, page 217. Bosch and Co. editors. Buenos Aires. 1950).
That, although the transcribed paragraph refers to the criminal process, while the sub-lite also discusses issues of material tax law (demand for taxes on merchandise that the customs considers not to have been re-exported), the principle of absorption of invalidation by challenge also applies - as the distinguished proceduralist says - in the civil process; therefore, having deployed as support for the requested nullities grounds that are directly related to the grievances of substance, it can be concluded that the question of nullity should be rejected as to whether it is dealt with autonomously.
That, on the other hand, it has been repeatedly said that it is SC doctrine that the challenge of arbitrariness is not applicable to a well-founded resolution or sentence, regardless of its correctness or error (Judgments, 243-560, 246-266, 248-584, 249-549), except in certain cases that do not occur in this case, such as, for example, the contradiction between the recitals and the operative part (see, among others, Scicolone, Manuel S. v. Prantera, Omar Alberto and others, 26/11/91).
That, likewise, it constitutes Supreme Court doctrine that when the restriction of the defense in court occurs in the procedure that is substantiated in an administrative seat, 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 the 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, moreover, the decision being sufficiently founded, the express mention of all the arguments of the appellant is not required (among others, Fallos, 251-39).
That, given the way in which the nullity was raised, no imposition of costs is appropriate.
VI) That Article 970 of the CA penalizes non-compliance with the obligations assumed as a consequence of the granting of the temporary import regime.
It should be noted that the Supreme Court of Justice of the Nation has held that the fact of the subsequent conversion into a definitive court cannot produce a neutralizing effect that removes the unlawfulness of the actions of the sanctioned party, when configuring a case of expired maximum terms (Di Tata, Emilio Ernesto, 10/2/81; Fallos, 303-141).
That, consequently, the expiration of the aforementioned DIT having occurred on 24/1/00 and taking into account that the appellant did not even invoke which exports had been made that contained the temporarily imported inputs, the infringement charged on the aforementioned date must be considered to have been established.
That art. 972, section 2 of the CA prescribes 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.
Furthermore, the importer IEF Latinoamericana is aggrieved by the degree of the fine applied, but expressly acknowledges that due to an administrative error it did not unload the imported goods in the exports it claims to have made, without having produced any evidence to invalidate its guilt, not even at customs.
That in view of the non-compliance with the re-exportation, acknowledged by the importer and that five sanctions are recorded as final on page 28 of the ant. adm., I propose that the fine be set at three times 30% of the customs value of the merchandise (higher than the amount of the taxes owed; see liquidation on pages 5/6 Ref. of the ant. adm.), that is, in the sum of $32.856.
VII) That the grievance relating to the additional right assessed on pages 5 of the Administrative Case cannot prosper, given that the re-exportation of the merchandise was not proven, for which reason it is considered imported for consumption, the fact generating the tax obligation having been configured on 24/1/00 in accordance with the terms of arts. 274, 638 inc. e) and related articles of the CA.
In addition, the appellant voluntarily accepted the regime of decree 1439/96 (see request for temporary destination on fs. 3 Ref. of the adm. ant.), and therefore cannot challenge it on constitutional grounds. Furthermore, note that the appellant expressly liquidated the additional duty - claimed by customs - in the liquidation contained in the body of said request for temporary destination.
That the decree to which the appellant resorted, provides in its art. 23 that: When the importation for consumption of merchandise entered under this regime is authorized, in addition to the taxes corresponding to this destination in force at the date of registration of the same, an additional sum of TWO PERCENT (2%) per month calculated on the customs value of the merchandise on that date must be paid. Said sum will be calculated from the first month computed from the moment of temporary importation, covering the period that elapses until the definitive import destination is authorized and in no case may it be less than TWELVE PERCENT (12%) of the aforementioned customs value, unless said value is lower than that determined for the merchandise for the purposes of its temporary importation, in which case the latter value will be taken into account.
Considering that the import for consumption was configured on 24/1/00 and in virtue of the fact that the officialization of the DIT in question took place on 27/1/99, it was correct for the customs to liquidate the 24% additional duty which, on the other hand, -I repeat- has been the percentage liquidated by the appellant in the body of the request for temporary import destination of the sub-lite.
As regards the tax and not penal nature of the additional duties on temporary imports, which become imports for consumption over time, this Court has had the opportunity to rule in proceedings entitled Kursaal SA, judgment of 23/11/95.
Furthermore, it should be noted that under the terms of art. 1164 of the CA, this Court cannot rule on the claim of unconstitutionality of the aforementioned additional right, made by the appellant on page 9 of the proceedings.
In addition, in this case, the plaintiff also expressly guaranteed the additional right of 24% (see the container on fs. 3 Ref. of the adm. ant.), which is why it cannot turn against its own acts.
Therefore, I vote for:
1st) Modify Resolution No. 4552/2001 of the Department of Customs Legal Procedures, confirming it with respect to the charge for taxes and interest, and replacing the fine applied, which is limited to $32.856 (thirty-two thousand eight hundred and fifty-six pesos). Costs according to the due dates.
2nd) The plaintiff shall be required to pay the remaining balance within five days for the fee for proceedings provided for in Law 22.610 as amended by Law 23.871.
3rd) Sign this document, and the appellant shall pay 2% of the fine for which she is actually convicted as a fee for actions provided for in the aforementioned regulations.
Dr. Gustavo A. Krause Murguiondo said:
That adheres to the preceding vote.
In accordance with the above agreement, it is unanimously RESOLVED:
1st) Modify Resolution No. 4552/2001 of the Department of Customs Legal Procedures, confirming it with respect to the charge for taxes and interest, and replacing the fine applied, which is limited to $32.856 (thirty-two thousand eight hundred and fifty-six pesos). Costs according to the due dates.
2nd) The plaintiff shall be required to pay the remaining balance within five days for the fee for proceedings provided for in Law 22.610 as amended by Law 23.871.
3rd) Sign this document, and the appellant shall pay 2% of the fine for which she is actually convicted as a fee for actions provided for in the aforementioned regulations.
Register, notify, promptly return and archive the administrative records.
This document is signed by Dr. García Vizcaíno and Dr. Krause Murguiondo, as Dr. Winkler is on leave (Conf. art. 1162 of the CA)
