In Buenos Aires, on May 21, 2003, the members of Chamber E, Drs. Catalina García Vizcaíno, D. Paula Winkler and Gustavo A. Krause Murguiondo, with the last-named member presiding, met in order to resolve the case entitled IGARRETA MÁQUINAS SA v. DGA s/ appeal; file No. 17.550-A
Dr. Catalina García Vizcaíno said:
I. That on pages 12/16 back, Igarreta Máquinas SA, through its representative, files an appeal against Resolution-Judgment No. 126/02, issued by the Administrator of the La Plata Customs Office on 31/7/02 in file SC 33-01-008. It states that it temporarily imported Komatsu and Ingersoll Rand machines for the purpose of exhibiting them at exhibitions and being the subject of demonstrations and tests; that said imports were authorized by the customs service pursuant to Decree No. 1001/82. He points out that the two machines temporarily imported by offices IT05 No. 50011-5/97 and 50060-2/98 had been permanently imported through offices No. 55987-9/98 and 300077-0/98, and sold to local companies. He states that a summary was initiated against him for committing infractions that fall under art. 970 of the CA. He makes a brief summary of the administrative actions. He understands that the conduct imputed to him is not classified under art. 970 of the CA, considering that the machines have been used for the purpose for which their entry was permitted under suspensive destination and were permanently imported before the expiration of the authorized period of stay. He points out that it is not exact that the machines were his property, and that even if they had been, it was appropriate to authorize their temporary importation. The Court notes that the taxes levied on the definitive import of the machines in question were paid when their definitive import was documented. The Court considers that the charge of having incurred in conduct subsumed under art. 970 of the CA would imply an incrimination by analogy prohibited by art. 895 of the CA. It refers to the ownership of the machines and states that from the way in which the operation was carried out and the payment of the price to the manufacturers was agreed upon, it cannot be concluded that the machines were already the property of the Company at the time they were temporarily imported. It adds that it is not an essential condition for the temporary import of goods to be admitted to be presented in exhibitions or as a demonstration, that they are not the property of the person who introduces them. It argues that what determines whether or not the temporary import of certain goods is permitted is the purpose for which the merchandise must be destined. It concludes that it did not commit any infringement and that in any case the infringement imputed as an infringement would be classified under art. 972 of the CA. It reiterates that the taxes levied on the import of the two machines in dispute were paid when their final import was documented, so that the claim for payment of taxes contained in the appealed resolution would be inadmissible. It offers evidence and requests that the appealed resolution be revoked, with costs.
II. That on pages 23/25 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 argues that the temporary importation carried out would have been used by the importing company as a means of financing the payment of taxes. It maintains that the importer bought the merchandise abroad, brought it into a free zone, then imported it temporarily and in case it was sold at a fair, it imported it for consumption once the merchandise was placed in the market. It adds that the merchandise that was not located was, in turn, exported to the free zone. The plaintiff considers that the goods temporarily entered under DIT 50011-5/97 of the La Plata Customs could never have been temporarily imported, since they were not goods that could be subject to such treatment, since, being the property of the documenting importer, they could not have been imported temporarily, but only for consumption. The plaintiff considers that the plaintiff thus allowed the Customs to act as a financier of the operation. He emphasizes that the temporary importation was not supported by a consignment or rental contract, etc., that would allow one to assume that the goods were the property of the exporters, from which he deduces that the goods belonged to the importing firm prior to making the temporary entry, a circumstance that would have been hidden. He offers evidence and requests that the appeal be rejected, with costs.
III. That on page 31 the cause is declared as purely legal and the proceedings are sent to Chamber E, which passes them on to judgment.
IV. That on pages 1/25 of file SC 33 01 008 there are copies of DIT Nos. 50011-5, 50051-1, 50005-3, 50007-7, 50008-4, 50009-1, 50060-2, 50061-9. On pages 28 the plaintiff answers a request regarding the status of the cancelled DITs, from which it appears that six of them were definitively exported and the remaining two were imported for consumption. On pages 29/64 there are copies of the supporting documentation for this response. On pages 92/99 there are copies of the insurance policies granted by FAA Soc. Coop. de Segs. Ltda. No. 09-003.370/01, 09-003.458/09, 2865, 09-3.744/00, 2863, 09-3.743/02, 09-3.519/04 and 09-3.520/02. On pages 100/103 there are copies of purchase invoices issued by Dicsa Argentina SA. On pages 125 there is a note from Marubeni stating that he paid the amount of US$ 72.675,00 to Ingersoll Rand Company as payment for invoice 1211125, issued by said company to the appellant. On pages 131/132 includes a copy of the general journal from 1/7/98 to 30/6/99 and, among other documentation, on pages 140/143 there is a summary of the movements of current account No. 20-034-472950-0, the owner of which is CODI SA. On pages 186 there is an order for the preliminary investigation and on pages 187/189 there is a liquidation made by the La Plata customs office. On pages 194/196 back, the plaintiff formulates her discharge. On pages 205/208 the legal opinion is issued. On pages 209/210, the Ruling No. 126/02 is issued, appealed in this case.
V. That art. 31, par. 1 of that DR, in what is of interest here, provides: For the purposes of the provisions of article 252 of the Customs Code and without prejudice to the provisions of special regimes:
1. The following merchandise is considered eligible for temporary import duties:
a) capital goods that are to be used as such in a process
economic, provided that the beneficiary of the temporary importation is not the owner of such goods and has an obligation to re-export them under the respective contract outside the area subject to national sovereignty;
b) goods intended to be presented or used in an exhibition, fair, congress, sports competition or similar event, belonging to persons residing abroad;
c) commercial samples, provided that:
1) by their nature they serve to advertise a specific article;
2) belong to a person residing abroad;
3) were imported for the purpose of being presented or being the subject of a demonstration in the country to manage orders for merchandise that must be supplied from abroad;
4) are not put to normal use, except for the needs of the demonstration, nor are they sold or used in any way by means of rental or remuneration during their stay in the country;
5) are likely to be identified at the time of re-exportation;
6) its quantity must be in accordance with commercial practice….
That in relation to the Vibratory Soil Compactor, Ingersoll Rand brand, model SD 150-D, with a FOB value of US$ 72.675, on 19/8/97 the appellant requested the DGA authorization to temporarily import for a period of 8 months this capital good, deposited in its property in the La Plata Free Trade Zone, in order to exhibit it in accordance with the terms of art. 250 of the CA and art. 31 section 1 subsection C.3 of DR 1001/82 and amended with the scope and limits thereof, in order to the investments in Capital Goods that our representatives are making in the Construction and Mining projects (page 144 of the administrative ant.).
It does not seem doubtful to conclude that this capital asset did not comply with the regime of commercial samples in section c)-3, paragraph 1 of the rule invoked by the plaintiff, since it did not meet the requirement of paragraph 2 of that section, which requires that the samples belong to a person residing abroad.
According to art. 560 of the CA: Samples are objects that represent a certain category of merchandise already produced, that are intended exclusively for exhibitions or demonstrations to arrange commercial operations with said merchandise, and objects that are models of merchandise whose production is projected, provided that in both cases their quantity does not exceed what is usual for these purposes.
It should be noted that for the sample regime in question, the six requirements provided for in paragraph c) of section 1 of article 31 of the aforementioned DR must be met, reiterating that one of them is that they belong to a person residing abroad, which does not occur in the case at hand as will be explained below.
That the temporary importation of the capital good referred to (as with respect to the other mill in question) cannot be included in sections a) or b) of art. 31 of the partially transcribed DR, for which it is required that the temporary importer not be the owner of the goods, whereas in this case the plaintiff held the ownership of them.
That, in effect, it arises from the proceedings that the appellant temporarily imported this capital good on 27/8/97 by DIT 97 033 IT 05 50011-5 (fs. 1 of the ant. adm.) and that on 23/4/98 she requested to take it to the property that she rented at the VII International Fair of Materials and Technologies for Construction, FEMATEC 98, from May 4 to 9, 1998 at the Sociedad Rural Argentina; the DGA granted this request (see copy of file 651/98 of fs. 154/156 of the ant. adm.).
That on 28/4/98, through DIT 98 033 IT 04 500060-2, a backhoe was temporarily imported, recording the invoice as KK934 and it was authorized by art. 31 par. 1 inc. b) of the DR of the CA (pages 18/19 of the ant. adm.); said invoice was issued in its favor on 12/12/97, with financing granted by Marubeni, which issued the invoice.
That the two machines in question were definitively imported for consumption by DI 55987-9 of 179/98 and DI 300077-0 of 1/10/98, respectively (see pages 28, 30/31, 59/60, 162/163 and 205 of the previous administrative documents).
That the plaintiff invoiced the machines in question to Codi SA- Conevial and Antonio Noguera, on 17/9/98 and 26/10/98, respectively (see invoices Nos. 0000-00002945 of fs. 102 of the ant. adm. and 0000-00003274 of fs. 100 of the ant. adm.). Although these invoices are dated after the nationalization of the goods, they were issued by virtue of the plaintiff's status as owner of such machines, which arises from the invoices that covered the temporary imports in question.
That the machine invoiced to Codi SA-Conevial had, in turn, been invoiced to the appellant on 31/3/97 (about five months before the officialization of the DIT) as shown in pages 147 and 180 of the ant. adm. (note that invoice 1211125 of pages 147 of the ant. adm. was added to DIT 50011-5, considering the stamp on its upper part). In Bill of Lading 783187 of 6/4/97, that machine appears consigned to the plaintiff (see pages 148 of the ant. adm.).
That the customs agent acknowledges that the importer was the sole owner of the property on page 160 of the previous administrative documents.
That, likewise, the payments made by Codi-Conevial to the plaintiff are verified by the copies on pages 131, 134/143 of the ant. adm. Regarding Antonio Noguera, it arises from the invoice on pages 100 of the ant. adm. that he paid the resulting amount with a check.
That the appellant's invoicing to Codi-Conevial and Antonio Noguera implies ownership of the goods, regardless of the financing that it may have obtained, since it could not invoice the goods to third parties (which is important for its symbolic tradition in the terms of art. 463 inc. 3 of the Commercial Code) if it had not been the owner. Furthermore, it is not lawful to invoice other people's goods as one's own. So much so that art. 173 inc. 9 of the Penal Code classifies as a special case of fraud anyone who sells other people's goods as their own.
Hence, the plaintiff's claims that she was not the owner of the goods on pages 15/vta of the case cannot prosper (by claiming that she financed them after their temporary import and even after their definitive import, the latter in the case of the machine nationalized by D:I: 300077-0/98-), since the only titles she held to invoice them (sell them) in favor of third parties were the invoices issued by her suppliers that she added to the temporary import destinations.
VI. That it is not disputed that the two machines in the sub-lite were definitely imported in a timely manner (see fs. 205 of the administrative antecedents).
That the contested entity accuses the appellant of violating the purpose of the regime by temporarily importing the merchandise of DIT 50011-5/97, given that it acquired it without nationalizing it and that it imported it definitively approximately one year later, which it sold to a third party (Codi SA-Conevial) fs. 205 of the ant. adm.-. It also reaches a similar conclusion regarding the good temporarily imported by DIT 50060-2/98, attributing to the appellant the ownership of the merchandise at the time of the officialization of the temporary import in question.
That such an infringement would have been committed at the discretion of customs, since the goods were imported under a regime in which the goods must be owned by a resident abroad, with the understanding that they cannot be used in the country, only in case of demonstration, the rule would be meaningless if it were understood in the opposite sense, requiring the re-exportation of goods, the owner of which is a resident in the country (page 206 of the administrative antecedents). Therefore, it is inferred that the appellant should have paid import taxes at the time of the officialization of each of the temporary destinations that it documented.
The customs office invokes that art. 252 of the CA establishes that the regulations will determine the merchandise susceptible to being subjected to the temporary import regime, subsection a)- and the purpose for which it may be used, provided that it does not harm the national economic activity, subsection b)-.
That, however, the plaintiff alleges that the assumption of section 5 of art. 31 of the DR of the CA (pages 15 back/16 of the proceedings) would have been configured, which states: The National Customs Administration may include within the regime other merchandise that due to its similarity or purpose could be included within the framework of that listed in section 1 of this article in a specific or generic manner.
This power may not be exercised in the case of motor vehicles for private use and for the transportation of passengers, which shall be governed by the specific provisions set forth in the code and in these regulations or by other special rules that may be applicable.
That from this rule the appellant infers that the ownership of the goods is not essential for the temporary importation regime.
However, I consider that such a provision is not applicable in this case, as there was not even a general resolution of the customs that would have covered the case of temporary importation of capital goods by their owners. The customs authorization carried out in specific cases, which is granted taking into account the regime requested by the temporary importer, cannot be included in section 5 of art. 31 of the DR of the CA.
That although the assets had been exhibited in the manner requested by the appellant, the purpose of the regime was not fulfilled, given that the ownership of them hindered the granting of that regime. Therefore, the violation of art. 970 of the CA was established.
So much so that from the analysis of art. 252 of the CA and art. 31 incs. a) and b) of the DR of the CA, it has been understood that the owner must be a person other than the beneficiary of the destination for the cited inc. a)- and that when the cited inc. b) mentions persons residing abroad, it does not refer to nationality, but to residence (Tosi, Jorge Luis, Código Aduanero comentario y antado, pp. 323/324, Universidad, Buenos Aires, 1997).
It has been said that the temporary admission regime is based on the principle of introducing goods without the purpose of definitively incorporating them into consumption in the domestic market, and with a definitive objective, which once fulfilled and within the agreed deadlines entails the obligation to re-export them (CN Cont.-Adm. Fed. Cap, Sala1, Frers and Cibils Sa, 28/12/89; cited by Gottifredi, Marcelo A., Código Aduanero Contado, p. 242, Macchi, Buenos Aires, 2000).
From the proceedings it can be inferred that the plaintiff's intention was to sell the mills in the domestic market, for which purpose they were exhibited, and therefore I consider that the purpose of the regime has been violated.
Which supports what has been stated that the regulations, partially transcribed herein, have established conditions for the temporary importation of capital goods, which should have been based more on the impossibility of obtaining these goods in the domestic market at prices relatively competitive with those abroad than on the fact of whether the importer had or did not have ownership of the good or was obliged to third parties, generally individuals residing abroad, to return the merchandise in question (Barreira, Enrique C., Código Aduanero- Comentarios Fondos- Concordancias, V. II-B, p.38, Abeledo-Perrot, Buenos Aires, 1993). This author adds that this discourages the disposal of capital goods by transnational companies to transfer them to another country for a certain period of time, and subsequently return them to their place of origin, since in these cases they would be forced to import the merchandise in question for consumption, discouraging, through import duties, a technological contribution that could be very useful to the national economy (object and lug. cited).
Since the current regulations should be applied, beyond the doctrinal considerations that promote their reform, I reiterate that the infringement charged by customs has been configured.
VII. That with regard to the claim for taxes, I consider that the plaintiff is partially right, since the goods in question were definitively imported with the consequent partial payment of taxes.
That, in effect, through DI 55987-9/98 the sum of $38.450,97 was entered (page 162 of the previous administrative records), but $48.453,78 had to be paid for the inclusion of the perception of income tax (see page 188 of the previous administrative records).
That for DI 300077-0/98 the amount of $21.357,28 was paid (fs. 59 of the ant. adm.), while for the liquidation of fs. 187 of the ant. adm. (erroneously referring to DIT 04-500060-2/98, since its specifications show that it corresponds to DIT 05-50011-5) he had to pay 26.913,71, for inclusion of the perception of income tax.
That, consequently, the plaintiff owes the sum of $15.559,24.
Therefore, I vote for:
1°) Modify the Resolution.-Ruling No. 126/02, confirming it as to the fine applied and partially revoking the tax charge, which is limited to $15.559,24 plus the interest of art. 794 of the CA Costs according to the due dates.
2°) The plaintiff shall pay the sum of $311,50 as a fee for tax proceedings within a period of five days, under penalty of the General Secretariat of Customs Affairs issuing a certificate of debt.
3°) By signing this document, the appellant must pay 2% of the fine for which she is actually convicted, as a fee for proceedings provided for in Law 22.610 and amendments, under penalty of the General Secretariat of Customs Affairs issuing a certificate of debt.
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:
1°) Modify the Resolution.-Ruling No. 126/02, confirming it as to the fine applied and partially revoking the tax charge, which is limited to $15.559,24 plus the interest of art. 794 of the CA Costs according to the due dates.
2°) The plaintiff shall pay the sum of $311,50 as a fee for tax proceedings within a period of five days, under penalty of the General Secretariat of Customs Affairs issuing a certificate of debt.
3°) By signing this document, the appellant must pay 2% of the fine for which she is actually convicted, as a fee for proceedings provided for in Law 22.610 and amendments, under penalty of the General Secretariat of Customs Affairs issuing a certificate of debt.
Register, notify, promptly return and archive the administrative records.
