In Buenos Aires on the 30th day of June 2003, the members of Chamber E, Drs. Paula Winkler, Gustavo A. Krause Murguiondo and Catalina García Vizcaíno, with the second of those named as president, met in order to rule on the proceedings entitled: «INCA CIA. DE SEGUROS v. DGA s/ appeal», file No. 11.019-A to which is added case No. 11.064-A, entitled ASCONA SA v. DGA s/ appeal.
Dr. Winkler said:
I.- That on pages 8/15 and back, the insurance company, through its representative, files an appeal against resolution No. 1103/99, dated 10.3.99, insofar as the latter claims payment of a sum of money in its capacity as insurer of the firm Ascona SA, which was convicted under the terms of art. 970 of the CA. It states that the firm Ascona SA documented a temporary import under Resolution No. 72/92 for which it requested the guarantee of a surety bond through which only taxes were guaranteed. It states that it was notified of the charge without having been given a hearing in the summary. It explains at length about the possibility of appealing the charge before this instance and adds that the liability of the insurer is not equal to that of the importer. It states that the notification of the hearing in the summary indicates the start of the calculation of the ten-day period provided for in art. 794 of the CA, and consequently, since the insurer was not notified jointly with the policyholder, the calculation of the default from the same date as the principal debtor is inadmissible. He refers to the additional 30% provided for by Resolution No. 72/92 and concludes by stating that it is not included in the policy. He says that the customs should have verified his credit in the bankruptcy of the policyholder. He offers evidence, sets out the federal case and requests that a judgment be issued leaving the customs claim without effect, with express imposition of costs.
II.- That on page 34 the Chambers with customs jurisdiction decide to accumulate file No. 11.064-A to the one with number 11.019-A.
III.- That on pages 25ref./26ref. and back there is the appeal by the firm Ascona SA against the aforementioned act, Resolution No. 1103/99. It requests the annulment of the resolution as it considers it unfounded. It claims to have specified at customs the documents by which it fulfilled the obligation assumed when documenting DIT No. 1191/92. It offers evidence and requests that the appealed resolution be revoked.
IV.- That on pages 52/62 the Treasury answers the timely notification of both appeals. After the generic denial required, it reviews the administrative antecedents. It states that the importer, on whom the burden of proof falls, has not proven that it has fully complied with its obligations within the legal term, so the customs is authorized to claim payment from the insurer, which is plain, simple and the main payer, in accordance with the conditions of the policy issued by it. It points out that the guarantee control form shows that the additional amount provided for by Res. No. 72/92 is included among the guaranteed items. It understands that the bankruptcy regulations sought by the plaintiff are not applicable since the tax obligation that gives rise to this case is governed by its own rules. It qualifies the annulment requested by the firm Ascona SA as untimely and requests that the appealed customs ruling be confirmed, with costs.
V.- That on page 3 of EAAA No. 602.816/93 there is an envelope with DIT No. 1191/92, dated 25.3.92/72/92, by which the firm Ascona SA temporarily imported 23.608 kgs. of pentaerythritol (aryl phosphite) under Res. No. 5/9. On page 1191 there is a summary instruction and on page 92 there is the inspector's report stating that the Company informs that Temporary Import Clearance No. 12/15 has been cancelled in a timely manner through the following Shipping Permits….. On page 1.679,042 the addition of the indicated pe is requested, and on page 23 the Import Division informs that it is appropriate to continue the complaint for 27 kg. stopped exporting. On fs. 32 ref. the taxes and the fine are liquidated and on fs. 42ref. the firm Ascona SA is seen, citing the insurer, which appears on fs. 60ref./61ref. and vta. On fs. 64ref./68ref. the importer's discharge appears. The evidence was denied (see fs. 69ref.), on fs. XNUMXref./XNUMXref. the resolution appealed in this case is issued.
VI.- It is then appropriate to address the resolution of this case, which must be understood - first of all - in the appeal filed by the importing firm ASCONA SA.
VII.- That with regard to the nullity sought by the signature, it must be taken into account that, as I have ruled, (…) if the formal defect in the procedure is remediable in a subsequent judicial process, it has been considered that it does not affect the right of defense and therefore, the nullity is considered relative (conf. CASSAGNE, Juan Carlos Administrative Law, Bs. As. 1985, Vol. II, p. 246. Doctrine concordant with the precedent Universidad Bartolomé Mitre of the CSJN, Fallos 134:86, majority vote, reiterated in the subsequent jurisprudence of that High Court).
That not all procedural defects entail per se the absolute and incurable nullity of the acts, but only those that, due to their seriousness, prevent the configuration of the act.
That in this instance the appellant was able to assert all of her arguments and offer evidence.
Likewise, the administrative authority is not obliged to rule on each and every argument put forward by the citizen in favour of his right.
Therefore, the defense of nullity must be rejected, without costs, taking into account the integrative form, with the arguments regarding the substance of the matter, in which it was raised.
VIII.- In this case, the importing firm Ascona SA has been charged with failure to comply with the obligation to re-export assumed as a consequence of its acceptance of the temporary import regime contemplated in Res. No. 72/92, for which reason the customs demanded taxes and also imposed a fine.
It is therefore appropriate to analyze the expiration date of the suspensive destination and verify the customs documentation - shipping permits - that proves the timely re-exportation of the merchandise since, as the undersigned has ruled, this is the only one capable of proving the re-exportation (see my vote in Editorial Técnica Editora ECFSA, judgment of 10.4.97 and, in the same sense, Sala IV of the Appeals Court, judgment of 13.4.84 in re: Galileo Arg. CISA).
It is not disputed that the expiration of the temporary contract in question -No. 1191/92- occurred on 28.3.93.
That no charge arises from the previous administrative proceedings that justifies the quantity of the indicated infringing merchandise - 1.679,042 kgs. - (see pages 15 and 21 ref.). This being so, this investigating judge ordered a measure to better provide in the sense that customs should clarify the charges taken into account for the purposes of continuing the complaint referred to in DIT 1191/92 for the balance of 1679,042 kgs. (see pages 148 of the file), a measure that was answered by the report found on pages 156 of the file, and which shows a balance of 279,56 kgs. of infringing merchandise, considering the total re-exported plus the losses. Note that it is the calculation based on the information reported on pages 156 that must be taken into account, while in the clarification found on pages 266 of this document, an erroneous quantity has been indicated for item No. 141.733 and consequently the total quantity indicated is also erroneous. In the report on fs. 156 of this document, 3120 kg of merchandise are considered.
That the charges in the aforementioned report on pages 156 are consistent with the data arising from the documents in the administrative records, according to the annex which is also attached and forms part of this vote, so it is appropriate to consider that the quantity of merchandise in violation is 279,56 kg and not the one reported by customs in the administrative proceedings. It should be clarified that although in some dispatches the plaintiff had to charge a greater quantity of merchandise, since the existence of a difference in the quantity of merchandise upon shipment was recorded in the documents, the report produced in this regard by the customs service must be followed, since only with the proof of the permits and their respective compliance can the export of merchandise be accredited.
That art. 970 of the CA establishes a fine of one to five times the amount of taxes levied on imports or exports for consumption -as appropriate-, for anyone who fails to comply with the obligations assumed as a result of the granting of the temporary import or export regime.
That, in this case, regarding the indicated quantity of merchandise - 279,56 kgs. - the plaintiff cannot benefit under the terms of Res. ME No. 72/92 since - as I said - she has not complied with her obligations.
This is derived from the provisions of art. 21 of the aforementioned regulation, which states: The beneficiaries of this regime must comply with their obligations, under penalty of the application of the sanctioning regime provided for in Section 12 – Special provisions, Chapters 7 and 10 of the Customs Code, for cases ... of violations of the temporary import suspension regime (emphasis mine).
That the provisions of art. 970 of the CA shall apply insofar as - in what is now relevant - it provides for a fine for anyone who does not comply with the obligations assumed as a consequence of the granting of the temporary import regime.
That consequently, the appealed resolution may be modified, sentencing the plaintiff to pay a fine amounting to the sum of $225,91 pesos, that is, one and a half times the amount of the taxes. The costs shall be imposed according to the mutual due dates.
IX.- Regarding the tax aspect, the provisions of art. 274, paragraph a) of the CA are applicable insofar as it establishes that merchandise subject to the temporary import regime will be considered imported for consumption when the agreed term for its permanence has expired without having fulfilled the obligation to re-export, which is what happened in this case with respect to the aforementioned quantity.
Consequently, the appealed resolution must be modified in this respect, requiring Ascona SA to pay taxes in the amount of $308,63. Costs shall be assessed according to the mutual due dates.
X.- That since the tax claim has been partially confirmed, it is appropriate to consider the grievances raised by the insurance company.
XI.- That, in relation to the defense raised by the same in that the Treasury did not have to temporarily verify its credit, it should be noted that the Supreme Court of Justice of the Nation in re Argentine National Treasury (DGI) s/ inc. of verification of credits in the case of Cosimati, Gregorio G. S/conc. Merc. Prev., in a judgment of 9-4-87, stated that art. 22 of the then current Law 19551, which established the suspension of the processing of patrimonial content lawsuits against the bankrupt, is inapplicable since it must be understood as preventing the execution procedures from being carried out outside the bankruptcy, but not as prohibiting the competent body from determining tax obligations and/or applying sanctions, for taxable and punishable events prior to the date of initiation of the bankruptcy (Jurisprudencia Fiscal Anotada, Arístides H. Corti, Revista Impuestos, Tomo XLV, p. 1346, year 1987. See also the doc. of my vote in re Scholnik SAIC, sent. of 10.3.88, file TFN No. 5646-A).
That, likewise, although in relation to the exception of prescription that one of the parties raised in said case, I ruled that (…) if the tax credit only becomes enforceable after the verification process, it does not seem logical or reasonable - in my opinion - that the abbreviated prescription regime of two years contemplated by the aforementioned art. 56 of the Bankruptcy Law be applied, not only because the very purpose of that rule prevents it but also because the prescription regime established by the CA is in force, above that law.
That, on the other hand, in my opinion the doctrine of Zanella San Luis SAIC, judgment of the Appellate Court, Chamber I, dated 7.12.99, does not apply, insofar as in that case the appellant had opposed as a new fact the judgment, which was final, which had resolved to reject the tax authority's claim to verify its credit by applying the aforementioned art. 56 of the LQ. In this case, the DGA, in its response, does not admit having appeared in the contest, limiting itself to arguing about the inapplicability of the Bankruptcy Law to the case under examination, and no action in that sense arises from the administrative records (…). That tax obligations have their own statute of limitations under Law 11.683, which is a federal law, and the 5-year statute of limitations in favor of the Treasury for the collection of its credits is a public order provision that also responds to the different nature of the debt compared to the debts of the bankrupt that are regulated by private law. Law 24.522 itself grants tax capital the character of a credit with general privilege, with effects on its rights to collection in the amount of the net proceeds of the assets after the credits with special privilege on the things, the costs of conservation and justice and the salaries, wages and remunerations have been collected (Limitations and defenses outside the tax procedure. The prescription of tax obligations in preventive bankruptcy, by Susana Camila Navarrine, PET, 26.6.00/1/XNUMX, pp. XNUMX et seq.).
That, moreover, although art. 32 of the aforementioned law imposes the obligation to verify the credits, it does so with reference to all creditors by cause or title prior to the presentation and their guarantors and (…) could not be considered as having arisen until the issuance of the resolution that ended the procedure for the infractions, because in my opinion, said rule of Private Law cannot be applied to it (my vote in re: Sociedad Anónima IGRA, file TFN No. 17.075-A, judgment of 10.12.02).
XII.- That with respect to the argument referred to the requirement of the additional fee provided for by the aforementioned resolution No. 72/92, it should be noted that said fee corresponds and is payable, as will be seen. In effect, dealing with an operation carried out within the regime of Resolution ME No. 72/92, and considering the infraction configured by the merchandise in the proportion indicated, said import -considered irregular- is subject to the provisions of art. 15 of the aforementioned resolution, which literally reads: 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 destination for consumption, an additional sum must be paid in the form of import duties, equivalent to THIRTY PERCENT (30%) of the Customs value of the merchandise at the time of registration of the corresponding destination request. It is true that in this regime there is no reference to the case of import for irregular consumption, as occurs in this case, but rather for regular consumption. However, it is understood that this case is included in the terms in which I have been explaining, since it is never possible to consider that there has been legislative improvidence (CSJN doc. de Parquerama SA of 22.2.94) and considering that reasonableness is an unnamed constitutional guarantee, it appears unreasonable to consider that it would have been desired that the offender should be in a better situation than that of someone who regularly complies with his tax obligations. That this arises, on the other hand, also -although not in the holding company but in the dictum- from the sentence of Our Highest Court issued in Microsistemas SA, file 8003. TFN No. 6-A, recital 9749, which the undersigned had already had to comply with in other precedents, for obvious reasons of procedural economy (see my vote in re Aluplata SA, case No. 27.5.99-A, judgment of this Court dated XNUMX/XNUMX/XNUMX).
That, therefore, the resolution must be confirmed in this regard, since it is not appropriate for this Court to rule on the unconstitutionality of the norms. Furthermore, since there was no pronouncement by the SCJN in this regard.
Furthermore, from the relevant guarantee form (see page 3 of the administrative file) it appears that the co-plaintiff had to guarantee this additional payment, and is therefore liable for it.
XIII.- That having clarified this, it is necessary to analyze the records of the ant. adm. and the evidence produced in the file, from which it arises that the surety bond - policy No. 13796- (see fs. 91 ref. of the file and fs. 273 and vta. also) was issued by the plaintiff for the "Temporary Importation of 23.608 kgs. Net weight Pentaerythritol... ", ensuring "cash payment of up to the maximum sum of Twenty-four thousand UNITED STATES DOLLARS (U$S 24.000.-), plus whatever may result in excess by application of Article 1122 of the Customs Code, which ASCONA SA (The policyholder) is required to make to it" (see fs. 91 ref. and 273 of the file). Likewise, in clause 4 of the "General Conditions", on the back of the aforementioned policy, it is established that "...the Insurer will proceed (...) to pay the National Customs Administration the relevant amount, up to the maximum sum set in the Particular Conditions, plus any accessories that may apply" (emphasis mine).
Since there is a coincidence between the merchandise imported through DIT No. 1191/92 and the merchandise guaranteed by the policy being analyzed (see partial 1 of the DIT on page 3 of EAAA 602816/93), it should be noted that the policy has covered the amount determined by taxes in accordance with the recently transcribed clauses of the policy and the provisions of art. 1122 of the CA.
XIV.- It is true that the insurer must be liable for the capital up to the amount of the insured, that is, the amount provided for in the policy, which -in this case- is $24.000, an amount that arises from converting the guaranteed amount into pesos, as per art. 1° of dec. 214/02, since it is a guarantee, translatable into an obligation to give sums of money. This amount is not subject to updating in light of the date of issue of the policy, 27.3.92, without prejudice to the interest that accrues until the total and effective payment of the debt. In this case, the tax requirement has been reduced to the amount confirmed for the importer, without prejudice to the interest.
Regarding the aforementioned interests, I have said that the insurer must be liable for the default of the policyholder and not for its own, unless the latter was prior, as occurs in this case, since the insurer was notified on 13.10.98/15.10.98/62 and the policyholder did so on 63/XNUMX/XNUMX (see ced. fs. XNUMX ref. and XNUMX ref. ant. adm., respectively).
That, consequently, the insurer must be liable for the interest accrued from the expiration of the ten business days following 13.10.98, in accordance with the notification on fs. 62ref. of the adm. ant. (conf. art. 794 of the CA) until its full and effective payment and as I have ruled.
That the total amount owed, then, is $308,63 (corresponding to taxes), plus the corresponding interest, according to what was recently stated, until the effective and total cancellation of the debt, as stated.
XV.- Consequently, I vote for:
1°) Modify the appealed resolution, condemning Ascona SA to pay a fine of $225,91. Once this becomes final, it must pay the 2nd rate of action - law 22.610 and amendments - within the fifth (5th) day, under penalty of the General Secretariat of Customs Affairs issuing the respective debt note. The costs are imposed according to the due dates.
2°) Modify the aforementioned resolution in the tax aspect, setting the requirement for Ascona SA at the sum of $308,63 plus the corresponding interest until the total and effective payment of the debt, and imposing the costs according to the due dates.
3°) Modify said resolution in what refers to the tax requirement for the insurer, co-plaintiff, declaring that the same owes the sum of $308 in capital, plus the interest owed (art. 63 of the CA) since the expiration of the ten business days after 794/13.10.98/XNUMX, imposing the costs according to the mutual due dates, until the total and effective payment of the debt.
Dr. Krause Murguiondo said:
Which substantially adheres to the preceding vote.
Dr. Catalina García Vizcaíno said:
I share Dr. Winkler's opinion regarding the nullity raised by the importer.
I substantially agree with the customs table drawn up on page 156 of the file, except for the fact that it does not impute any amount for PE 162.825-2/92, since although the shipment was by difference, it appears from the compliance that Ascona SA exported 14.515,20 net Kgs. out of 31.752 net Kgs. declared, which represents 45,71%; therefore, having imputed to the DIT in question (1191/92) the amount of 712,77 of inputs, I consider that this percentage should be applied to it, resulting in 325,80 Kgs.
That adding this amount to the 21.032,84 net Kgs. and the losses of 2.295,60 Kgs. (see fs. 156 of the file) we arrive at the amount of 23.654,24 which exceeds the 23.608 Kgs. temporarily imported. This excess can be explained by the fact that, e.g., in the report on fs. 156 of the file, customs computed 241,54 Kgs. for PE 152.172 without applying the percentage of the fulfilled amount, since that permit had a difference between what was declared and what was shipped.
That, consequently, I am in favor of reversing the contested resolution insofar as it has been the subject of the appeal, with costs.
Pursuant to the above vote, by majority, IT IS RESOLVED:
1°) Modify the appealed resolution, condemning Ascona SA to pay a fine of $225,91. Once this becomes final, it must pay the 2nd rate of action - law 22.610 and amendments - within the fifth (5th) day, under penalty of the General Secretariat of Customs Affairs issuing the respective debt note. The costs are imposed according to the due dates.
2°) Modify the aforementioned resolution in the tax aspect, setting the requirement for Ascona SA at the sum of $308,63 plus the corresponding interest until the total and effective payment of the debt, and imposing the costs according to the due dates.
3°) Modify said resolution in what refers to the tax requirement for the insurer, co-plaintiff, declaring that the same owes the sum of $308 in capital, plus the interest owed (art. 63 of the CA) since the expiration of the ten business days after 794/13.10.98/XNUMX, imposing the costs according to the mutual due dates, until the total and effective payment of the debt.
Register, notify, promptly return and archive the administrative records.
