In this article, we will analyze some aspects related to the conduct punishable by a violation of Article 954 c of the Civil Code, such as: the relevant aspects of evaluating evidence; the importance of the customs declaration, that is, what is declared regarding the customs commercial transaction to be carried out; the observation of the procedural conduct of the individual; and the existence of exchange controls at the time of the customs transaction.
These cited elements, in correspondence with the accumulation of jurisprudence that accounts for their importance and the impact they have on the configuration of the rule we are dealing with, lead us to some initial questions, such as: Does the fact that the declared amounts match the monetary amount received exempt from liability for violation 954, paragraph c of the Customs Code? Can the commercial invoice be considered irrefutable proof of compliance with obligations in customs operations?
From these questions, we observe the need to analyze the different rulings, among which is the decision of the CSJN in Pioneer v. DGA. (1)
If we look at the letter of the law on the one hand and the legal right protected by it on the other hand -the veracity of the customs declaration-, as well as the basis of customs control that provides the legal framework for the activity of the customs service, the existence of elements surrounding the conduct of the administrator and the commercial operation that exceed this type of evidence is verified.
Another emblematic jurisprudential case observed, although already reiterated, is the case YPF c/ DGA (2), in the framework of the so-called "orcomplex business operations”. At this point, it is also interesting to reflect on the changes taking place in the market through the updating or repeal of regulations. An example of this could be the existence of a certain flexibility regarding exchange controls and whether or not this could influence the configuration of the commission of this violation.
Indeed, as case law has pointed out, the existence or absence of exchange controls on foreign currency entering or leaving the country does not modify or affect the configuration of violation 954 c. This is because these are not customs jurisdiction regulations and do not affect the legal right protected by the violation.
For example, the modifications to the deadlines or obligation to report the entry of foreign currency from customs operations can be considered. What the infraction regulation pursues or condemns is not essentially an amount or monetary evasion; in other words, the customs system goes further, condemning conduct that manipulates commercial transactions involving the purchase and sale of goods before the Customs Service by omitting information relevant to their analysis.
Ultimately, control is always directed toward verifying transparent customs operations and not toward the amount, which turns out to be a consequence of a previous maneuver.
We have also observed the different jurisprudential solutions in relation to the assessment of evidence in the face of this violation, and the subsequent interpretation that can be made of the rule. Let us remember that this rule uses the subjunctive or conditional tense, that is, it refers to the imputation of an event or conduct that could have occurred, that is, the damage could have occurred. This demonstrates the importance of the legal right protected by the law for assessing the evidence in this violation.
An example of this is that the jurist may consider the infraction proven by observing the body of evidence and various aspects, leading to the understanding that, in that specific case and not in another, the infraction has been committed; thus, the judge cannot validly be required to prove the conduct mathematically or in monetary terms.
In both jurisprudential cases -YPF and Pioneer-, it is about businesses complex commercials - one case is a swap contract and another a triangulation between related companies -It is in this framework that the customs service detects irregularities; the customs declaration does not reflect the actual customs operation, which leads to the entry or exit of foreign currency, thus constituting the violation in question.
That is to say, it is not a mere inaccurate declaration, in which irregularities are detected that can be corrected, but rather the legal transaction itself that leads the General Directorate of Customs to carry out greater control, and therefore to investigate and detect that the declared values differ from what the importer or exporter actually received.
test evaluation
The assumptions of imputation under article 954 c (3) may indeed bring with it the need to take special account of the assessment of the evidence.
The special characteristics of the customs operations in which they are carried out make it necessary for the legal practitioner to go beyond the literal meaning of the law or an accounting comparison. Thus, the debate should not be reduced to a mere tax collection issue, neglecting the technical aspects, which are well known to both the tax authorities and the importer/exporter and the sentencing judge.
Likewise, the control function exercised by the General Directorate of Customs must be taken into account. This function falls on the one hand on the merchandise entering or leaving the country, but also on the control and condemnation of fraudulent conduct and maneuvers that tend to distort the regimes to which customs operators are subject.
Thus, the appraisal of the evidence by the judge takes on special relevance. For example, it is worth recalling what the Attorney General said in the Pioneer case of the Supreme Court of Justice, when she stated that "...I believe that the Chamber, based on the facts and evidence presented in the case, found that the prices declared by Pioneer Argentina SRL corresponded to those actually paid by it to POCSM for the purchases made, which eliminated any possibility of configuration of the alleged infringement.. Such a statement, based as I said on the assessment of the factual elements and evidence in the file, is unreviewable in this instance since the order granting the extraordinary appeal was sufficiently explicit in that it limited the admissibility of the appeal to the federal issue and the appellant did not file a complaint in relation to the denied arbitrariness (Rulings: 319:288, among others). From this perspective, it is necessary to conclude that the necessary elements of the infraction provided for in art. 954, ap. 1°, inc. c), of the CA are not met, since the existence of differences between the declaration committed by Pioneer Argentina SRL and the result of the verification of its payments to its supplier POCSM has been ruled out, an essential requirement for the criminal type under examination to be configured. ... ".
It can be observed that, although on the one hand it makes clear that this is a question of fact and evidence that could not be reviewed in this procedural instance, the truth is that the other circumstances of the case that were the subject of treatment in the course of a valid administrative procedure were not taken into account, such as - the economic importance of the firms involved - a multinational economic group -, the difference between the amounts declared in the export of the company in Brazil and those realized in the import by the firm, the existing connection and the maneuver to obtain advantages, the type of participation of the trader or the signature that justifies the variation of the amounts, among others - this to the detriment of the principle of procedural economy, and was limited to considering only the literal meaning of the rule. (4)
That is, in the cited case, the Attorney General's Office believes it is not appropriate to issue a ruling, given that the debate is limited to a question of evidence, and it upholds the Court's ruling. Recall that in that case, the National Tax Court had upheld the Customs Resolution, and the Court reversed it based on factual and evidentiary issues. Consequently, the Attorney General's Office upheld the ruling, understanding that these were questions of fact and evidence that could not be reviewed.
Unlike the Attorney General, the Supreme Court carried out an analysis, although a little confusing, of the elements of the case, for which it referred that “…Commentary 22.1 (Technical Committee on Customs Valuation) concludes that “the price actually paid or payable for imported goods when they are sold for export to the country of import is the price paid at the last sale before the goods are introduced into the country of import, and not at the first (or earlier) sale. This is consistent with the underlying assumption and with the objectives and general text of the Agreement” (emphasis added by the Tribunal).
It is also worth noting that the text of Article 954, Section I, paragraph c, of the Customs Code, by not considering the case of successive sales of the same merchandise, does not provide that—for the purposes of establishing the "effectively corresponding" price—the price of the last sale must be disregarded and the prices of previous sales must be considered. Furthermore, this provision does not presuppose any presumption that, in the case of successive sales between related parties, any price difference that may exist is due to said relationship. Therefore, the burden of proof must be reversed and the importer or exporter must demonstrate that the relationship did not affect the price or that such price corresponds to a transaction between independent parties.
In the absence of such provisions in the type of infringement under Article 954, Section I, paragraph c, of the Customs Code, the fact that the last of the successive sales between related parties was preceded by a sale at a lower price, or even a substantially lower price, is not sufficient to shift the burden of proof to the importer to demonstrate that this was the price that actually corresponded to the imported goods.
This Court cannot deviate from the primary principle of the subjection of judges to the law nor assume the role of legislator to create exceptions not admitted by the latter, because to do so would forget that the first source of exegesis of the law is its letter, and that when this does not require an effort of interpretation the rule must be applied directly, regardless of considerations that exceed the circumstances of the case expressly contemplated therein (Judgments: 218:56; 299:167; 313:1007). In this regard, regardless of the judgment of devaluation that may be merited by successive sales (triangulations) that involve over-invoicing of imports or under-invoicing of exports, which go beyond customs matters to compromise foreign exchange and tax aspects, it is not up to the judges to judge the correctness or convenience of the provisions adopted by the others. Therefore, in accordance with the ruling of the Tax Attorney, the extraordinary appeal is declared admissible and the appealed judgment is confirmed. With costs. Notify and return ... ".
Thus, without wishing to delve into the issue of triangulation between related companies and the maneuvers that may arise therefrom, the Court limited its analysis to a debate that corresponds more to a problem of value adjustment—whose application is excluded precisely for cases of triangulation in the Commentary to which it refers—and on the price that must be taken into account to determine a possible inaccurate declaration; being able to address the relevant issues of the matter, some of which we list. u above, to justify its decision. It also places the burden of proof on Customs that the price difference is due to the existing link (6).
Regarding the evidentiary analysis in this type of operations that result in a violation of the treatment, we agree with Santiago Dulce's statements when he refers to the ruling "MPSA v. DGA, of the National Tax Court, that "... Several points of the ruling are worth highlighting. First, it was stated that multinational companies, when dealing with "linked transactions and triangulation," have an increased duty to provide detailed information on these types of transactions, including the agreed prices and the methods used to determine them. It was also indicated that tax authorities should more closely review cases involving "triangulation and linked transactions" and, where appropriate, adjust transfer prices if they consider that they do not genuinely and adequately reflect the price of the transaction. (...) Finally, it is important to point out what Dr. Segura stated in the grounds of his dissenting opinion, where he mentioned that triangulation in itself is not prohibited and is common in international trade. However, he noted that the existence of a triangulated transaction between related parties allows customs to investigate and gather information to assess the authenticity of the declared commercial transaction. In short, it is worth reflecting on triangulation and saying that it is a common practice in foreign trade, and the role of customs is to take control a little further (as in the case study at hand through the INDIRA system), where the prices declared to Argentine Customs by a Uruguayan "Trader" company (linked to the exporting company) and the final price actually paid by the recipient in Brazil, had variations, there being no factor that could imply a variant or risk that was assumed, in the face of marketing with the latter (as was argued in the proceedings by the plaintiff) and if the declared price had been coldly analyzed, invoiced and paid would allow violating the control of the customs service, which is not the spirit of the Customs Code …”(7)
Also exemplary is the ruling of the Supreme Court of Justice of the Nation, Polisur c/ DGA (8), in which the CSJN was called to resolve a case in which the firm was charged with violating art. 954 ayc of the CA for having transferred abroad an amount in foreign currency greater than that declared when documenting an import operation for consumption.
The Chamber confirmed the ruling of the TFN that ratified the Customs ruling, stating that “… In that administrative act it had been determined that "the transfer of foreign currency greater than that declared only responds to the cancellation of ONE Commercial Invoice No. 87613097 referring solely to import transaction No. DDT 080031C65000059S." It added that although the appellant had specified that the "advance payment was made not only in order to pay the invoice involved [...] but that it corresponds to payments on account," this circumstance was never proven, since she did not contribute to the case any element to justify her statements ... ".
In effect, the Chamber understood that the firm had not presented other documents to justify the difference, even though the firm stated that it had timely presented invoices whose amount was equal to that of the Declaration, given that according to the firm there was no transfer of foreign currency other than that indicated in the invoice and in the DI. In view of this, the Attorney General of the Nation recalled that “…The Court has stated that the legal right protected by the aforementioned provision - which sanctions inaccurate declarations - is, according to its Statement of Reasons, the principle of truthfulness and accuracy of the statement or declaration of the merchandise subject to a customs operation or destination, since the reliability of what is declared through the corresponding documentation is the basis of an entire system aimed at preventing, under the protection of the export or import regime, where appropriate, maneuvers that distort or pervert it from being perpetrated (Judgments: 315:929; 321:1614; 325:786, 830 and 333:300, among others). (…) …with regard to art. 954, ap. 1°, inc. c), of the aforementioned Code, that Court held that “…the primary function of the customs agency consists of 'exercising control over the international traffic of merchandise', a task For this reason, the audit of the correspondence between the amounts arising from the declarations committed by those acting in this area and those attributable to the operations actually carried out cannot be indifferent. It is from this broad perspective, which exceeds the strictly collection purposes - protected by section a) of art. 954 - and is linked and consistent with the exercise of the State's police power (cf. the concurring vote of Judges Belluscio and Petracchi in the precedent "Subpga", already cited), as should be appreciated by what is established by section c) of the cited article, whose text, moreover, does not authorize a contrary interpretation since it refers to amounts other than those that actually correspond - with which it obviously covers both the differences in plus as well as in minus - whether it is a matter of import or export operations or destinations." (Fallos: 321:1641, cons. 7°; criterion reiterated in Fallos: 322:355, among others) (...) …In the same vein, the appealed judgment established that the facts fell within the scope of Article 954, paragraph 280. c) of the Customs Code, in response to the verification of an outflow of foreign currency for an amount different from that contained in the import transaction... it is my opinion that the plaintiff's criticisms only reflect a mere disagreement with the assessment of the evidentiary material used by the judges of the case, not covered by the charge of arbitrariness that sustains the federal remedy (Judgments: 320:295; 165:297; 333:394), whose exceptional nature does not tend to replace the magistrates when they decide issues that are exclusive to them (Judgments: 394:295; 356:297; 173:296), even when an error is invoked in the resolution of the case (Judgments: 82:445, 302; 1030:XNUMX), reasons for which I think that the extraordinary appeal filed has been rightly denied...":
This ruling is brought up given the apparent reasonableness of its decision and its procedural similarity to the Pioneer ruling. It is worth noting that, in both cases, the previous instances had agreed on the merits of the infringement. This cannot but highlight the prior scrutiny over the protection of the appellant's rights and the possibility of a proper assessment of the evidence.
This leads us to reflect on the limits of the assessment of evidence in the different procedural instances, as well as the remedies that those administered may eventually have in the event of arbitrariness; that is, whether disagreement with a decision can necessarily allow for its revocation or whether other elements, such as arbitrariness or omission, must necessarily exist. the erroneous assessment of the evidence, and other elements that demonstrate that the appellant's right to defense has indeed been violated due to the erroneous, irregular, or omission of the evidentiary assessment, with mere discrepancies or disagreements not being sufficient. In the customs area at hand, the analysis of the burden of proof is also an issue that has an impact in these cases. In particular, in relation to the assessment of the evidence carried out in the Pioneer Argentina SRL ruling, We agree with Licht in his recent doctrine, in which he analyzes the case and states that “…In the case examined, the burden of proof has been assigned to the Treasury without considering a “principle of ease of proof”, which is supported by jurisprudential criteria that establish that the defendant cannot avoid his responsibility and must Present evidence demonstrating the seriousness of the act in question. If the responsible party has not presented any evidence other than the invoice and the currency transfer related to the transaction to the Trader, this may raise additional questions. In this area, there are no mysteries. It is recognized that agreements between parties should be considered genuine until proven otherwise, and in cases of doubt, the validity of the act should be favored. This principle is based on criteria of appearance, normality, preservation, and the principle of order and legal certainty. However, due to the nature of the matter, the taxpayer cannot limit itself to a passive stance or simply deny the facts alleged by the tax authorities. They are required to present evidence supporting the veracity of the disputed acts… Ultimately, it is a matter of carefully evaluating all available evidence to determine the veracity of the transaction in question…” (9)
Thus, through this type of analysis, we try to ensure that the actions of customs control and the legal right protected by the infringement are not limited to a mere numerical comparison, which would be the case in a value adjustment, for example, and not in these types of circumstances, in which, as has been discussed, the entry or exit of foreign currency is a consequence of a previous act that is condemned.
The Customs Declaration
In this section, we will analyze the importance of the Customs Declaration and its function in this type of framework. It is useful to first recall the two functions that the customs declaration can have. To this end, the concept provided by Dr. Barreira is clarifying when he states that “…the customs declaration of goods has been defined as the “act carried out in the manner provided by Customs, by which the interested parties indicate the customs regime to be applied to the goods and communicate the elements whose declaration is required by Customs for the application of this regime.” ...
This definition actually includes two concepts: a) … refers to the act by which the interested party indicates to Customs the customs regime that he wishes to apply to the merchandise … and b) on the other hand, the act by which the same interested party communicates to Customs the data required by it to apply said customs regime … in which the administered party does not ask for anything, but limits himself to informing about the aspects of the legal and commercial relationship with the foreign supplier. (if it is an import) or the recipient of the merchandise (if it is an export) so that the customs service can monitor the correct classification and customs valuation …”. (10)
It is this latter concept that we will refer to in this work, that is, the actions of the administrator tending to inform the Customs Service of the acts and provide the necessary documentation that reflects the reality of customs operations.
We will analyze the YPF v. DGA case of the First Chamber of the National Court of Appeals in Federal Administrative Litigation. This court confirmed the ruling of the National Tax Court that had rejected the appeal filed by the company YPF SA, identical to the charge in the aforementioned Pioneer ruling.
The Chamber reinforces the concept that "...the truthfulness and accuracy of the customs declaration constitutes the legal right protected by this infringement, as it is the starting point of the confidential clearance system for the goods. …” (CSJN, 12/05/1992, “Subpga”, Fallos 315:942) and confirms relevant principles regarding the customs declaration, reflecting the importance of the content of its preparation; that is, “… principle of truthfulness and accuracy of the manifestation or declaration of the merchandise that is the object of a customs destination operation…"; and the principle of reliability of what is declared.
The case centered on the firm's failure to declare to the Customs Service the amounts received under a SWAP contract—in which various related companies participated and, to finance the price of the adjacent asset, entered into a series of floating-price hedging and financial speculation contracts and transactions—which, following the customs inspection, were found to be excessively low.
Indeed, the judge considered it proven that the plaintiff failed to declare the derivative contracts, and as a result, the customs declaration did not reflect the true transaction.
The Chamber stated that "...it is important to remember that it is the doctrine of the Supreme Court of Justice that the legal right protected by art. 954 of the Civil Code is the principle of truthfulness and accuracy of the manifestation or declaration of the merchandise that is the object of a customs operation or destination." and "… The reliability of what is declared through the corresponding documentation rests on an entire regime aimed at preventing, under the protection of the export or import regime, where applicable, maneuvers that distort and pervert it from being perpetrated."Likewise, in relation to the violation of art. 954, paragraph c), it applied jurisprudence relative to the control function of the customs service, which covers “…the supervision of correspondence between the amounts arising from the declarations committed by those acting in this area and those attributable to the operations actually carried out" and that "from this broad perspective, it exceeds the strictly collection purposes - protected by section a) of article 954 - and is linked to and consistent with the exercise of the State's police power...” (Judgments PBB Polisur SA v. EN DGA, 6/8/2019, Marítima Heinlein SA, 09/05/2023, among others).
On the other hand, in particular regarding the contract in question, the judge highlighted that “…the SWAP contract does not constitute an agreement entered into with a third party outside the commercial business… insofar as it arises from a joint assessment of the operation, it forms an integral part of it, and it cannot be considered an isolated contract without any connection to the future sale operation of a raw material (in this case, oil). (…)… the company should have declared the SWAP since it constituted an income from the export carried out, the reported price being clearly lower than the market price… the objective element of the infringement was configured since the exports represented an income different from what actually corresponded and the exporter was aware of the inaccuracy of the declared price. ... ".
It is worth remembering that the swap contract is a financial contract (in this case it was based on the price of oil but it could have been for another product) - which although it is not related to the contract for the advance purchase and sale of crude oil in which a fixed price was established, an amount that the plaintiff received at the time of signing the contract - the Customs Service considered that it had had an impact on the amounts of foreign currency received or that could have been received by the plaintiff and as a result understood that the customs violation had been configured.
This is regardless of the fact that the earnings from the swap contract had already been declared to the General Tax Directorate, which reinforces the idea that this is not about controlling amounts, when it is the Customs Service that carries out the control, but rather about maneuvers that tend to speculate and distort the regimes to which the operators adhered.
This aspect may call into question the amount actually declared: that is, in the case of petroleum, there is a criterion for determining the sale price, according to Article 56 c ii of Law 17.319, which must be declared.
All of the above points out that the swap contract, in addition to being a financial contract, is a highly useful instrument in the commercial sphere, especially given the fluctuations in the dollar in Argentina—provided it is duly declared to the ARCA-DGI and DGA—allowing companies to predict and have greater security in their transactions, which can streamline and improve the flow of trade. This allows them to enter into advance contracts with the goal of "fixing" a sale price prior to its completion.
Finally, in the Sosa case, the Chamber stated that “…It is now essential to define the legal right protected by Article 954, paragraph c) of the Civil Code. The Supreme Court of Justice has already established doctrine on this issue.
In conclusion, the contract the firm seeks to declare is a financial contract, and while it should be declared to the DGI (General Directorate of General Taxation), it must also be declared to the Customs Service to avoid potential penalties and inaccurate declarations by the firms. That is, while the declared price may correspond to the invoice price, the evidence suggests that, as a result of this commercial transaction, the plaintiff received currency that differs from the declared price.
It has been arguing that this relates to the "principle of truthfulness and accuracy in the declaration or statement of the merchandise that is the subject of a customs operation or destination." Truthfulness in the declaration and/or differences in "value" that, as seen, the plaintiff firm acknowledges having violated. That is, the Court affirms that the rule sanctions anyone who, before the customs service, makes a declaration that differs from the result of the verification, that is, that is "inaccurate," and that, if it went unnoticed, would produce or would have produced "the entry or exit from or to abroad of an amount paid or payable different from the amount actually due" (Judgments: 315:929; 321:1614; 325:786, 830 and 333:300, "PBB Polisur SA v. EN-DGA"). (...) …the export destination request must indicate “all necessary circumstances or elements” that allow the customs service, specifically, “to control the merchandise” in question. This is true, whether formalized in writing, electronically, or verbally (Art. 332, paragraph 2 of the Civil Code). B) For the purposes of this limited discussion of the case, that is, I insist, given the proven and acknowledged “difference in value” and/or inaccuracy, this does not preclude the general argument regarding the nonexistence of a “lower income of foreign currency.” Even if this were the case, it is not what prevails here.
This is so, again due to what was stated by the Supreme Court of Justice in “PBB Polisur SA” (already mentioned in recital V of this opinion). Where, by reference to Art. 2: “For the purposes of settling export duties, (…) and other taxes that tax or benefit exports (…) the tax, rate, tariff and taxable base (index price, FOB value, minimum FOB value or equivalent) regimes in force on the closing date of each sale shall apply. The applicable exchange rate (…) will be the one in effect on the date of registration of the customs declaration (…)”. In the opinion of the Attorney General of the Nation, Dr. Laura M. Monti, she stated that “(…) the primary function of the customs agency is to exercise control over the international traffic of merchandise” (art. 23, par. a) of the CA). This exceeds the strictly collection purposes – protected by par. a) of art. 954, which is not the par. in question here – “(…) and is linked and consistent with the exercise of the police power of the State (…)” (Rulings: 321:1614; 322:355; among others).s s). CNac.A.Cont.Adm.Fed., Room I, Sosa, María del Carmen (TF 32044-A) c/ DGA, case 5076/24.
Thus, the customs declaration must effectively represent the customs operation carried out, and this comparison is not reduced to a mathematical and accounting operation, but arises from the accumulation of evidence provided that shows that there is a legal transaction, it could be called complex, This has allowed for profits and benefits exceeding what was declared. It is precisely the customs and tax system itself that enables the declaration system and is based on the trust placed in customs operators. To consider otherwise would be equivalent to demanding that Customs implement a program of persecuting all customs operations, which would clearly be detrimental to the parties and to international trade, leading to unnecessary delays.
For this reason, the system itself allows those carrying out customs operations to inform Customs of the elements and circumstances that constitute the customs operation. Preventive action in these cases can potentially avoid the procedural waste caused by these types of omissions, which undermine the principle of procedural economy prevailing in this area.
Procedural conduct of the plaintiff
As we saw in the previous point, we must emphasize the importance of the Customs Declaration for the purposes of evaluating the evidence, but also as an externalization of the plaintiff's conduct. This is because it is at this time that the importer or exporter informs the Customs Service of the reality of the customs transaction, and this information will then be classified as relevant or irrelevant for the purposes of assessing the existence of a fraudulent transaction and, therefore, the commission of the violation in question.
Thus, in the search for the material truth, these elements provided by the firm or often collected by the customs service, as is the case with INDIRA reports, are used to understand and analyze the customs commercial operation. We bring up the statements made by Dr. Licht in relation to this point. "...the vexata quaestio consists in determining how much and what quality of evidence there must be so that the administration can "validly" sanction. If we accept that a judgment must be a reasoned derivation of the facts and the law in force, the legal operator is necessarily obliged to have evidence that proves the facts on which it is based and to assess said evidentiary material... (...) ... The collection system is based on the declarations made by the taxpayers themselves. It goes without saying, Therefore, the adjustments to the sworn statements are formulated on the basis of these means... What is important to note is that these elements are intended to redistribute the burden of proof, taking as a starting point that, in the case of risky activities in most cases, the legal damage is caused by deliberate or negligent conduct..."(11)
Furthermore, in recent cases, the National Tax Court and the High Court of Appeals have given different treatment to cases in which they gave special consideration to material truth over certain formalities. This issue raises a debate around, on the one hand, the principle of informality and, on the other, the search for material truth, as well as the burden of proof that falls on the taxpayer or, where appropriate, the application of the dynamic burden of proof. Let's examine some recent cases of charges for violations of articles 954 and 970 of the Civil Code.
In the recent ruling of the TFN, Chamber E, the judge referred “…That the lack of accreditation of the complete cancellation of the temporary operation in question, motivated the customs to process the contentious summary, during which the importer did not prove or add any evidence, which demonstrated full compliance with DIT No. 00 001 IT15 001504 Z and the obligations assumed by voluntarily accepting the temporary import regime for processing. It should be noted at this point that the importer did not present any shipping permits or any other documentary evidence to counter the customs service's claims in the summary, nor did the guarantor, either in the administrative proceedings or in this appeals instance. That the grievance alleged in reference to the fact that Customs did not provide and therefore did not base its analysis and sentence on the original DIT, is meaningless since the administrative proceedings include the container envelope of the DIT in crisis, within which appears the Temporary Importation clearance form OM-1993, the Customs Value Declaration form, the Bill of Lading of the transaction in question and also other documents related to the documented temporary importation, including the screenshot of the Consultation of the Global and/or unitary Guarantee that insured the transaction. From the analysis of all the evidence, it is evident that the temporary importer has not fulfilled his obligation in the case under examination, this being an exclusive requirement for the enjoyment of the benefits granted as a result of the regime provided for a temporary import, thus configuring the accident from which the liability of the appellant arises, in its capacity as guarantor, for the taxes owed as a result of the importation for consumption of the temporarily imported merchandise - arts. 274 and 638, par. e), of the CA …”. TFN, Room E, Voc. 15, 27/09/2024, Case TFN Nº 31.692-A, SMG Compañía Argentina de Seguros SA c/ DGA.
In conclusion, the Court rejected the plaintiff's claim for annulment and upheld the Customs Resolution.
Furthermore, the judge upheld the jurisprudential criterion of the Court of Appeals; in fact, the National Chamber of Appeals in Federal Administrative Litigation, in a similar case, rejected the nullity of the opening of the summary due to the absence of the DIT. In this understanding, he stated that "...the insurer had sufficient opportunity to offer and produce evidence. As seen, it did so both before the customs service and later before the Federal Tax Authority. Therefore, invalidating the proceedings lacks practical purpose and significance, and would mean declaring nullity for the sake of nullity itself, an unacceptable solution in the field of procedural law (CSJ, Rulings: 320:1611; 325:1649; 322:507, among others; in the same sense this chamber “Catardo, Emmanuel”, “Moncho, Vicente Rafael”, and “Aseguradora de Caución”, cited, among others…”. CNac.A.Cont.Adm.Fed., Room I, Chubb Argentina de Seguros SA (TF 34636-A) c/ DGA s/DIRECT RESOURCE FROM EXTERNAL ORGANISM, Case No. 2918 / 2024.
In another ruling, the National Tax Court stated that “… Regarding the nullity due to the lack of addition of the original destination folder (section 1 of point IV of the appeal), it cannot prosper since, as it arises from pages 2/4 of the administrative proceedings, the SIM screenshots contained the necessary information to support the subsequent imputation, as well as the liquidation of taxes. Furthermore, from the documentation provided in the file by the tax representation (file embedded in IF-2024-13771734-APN-DTD#JGM) as well as from Note No. 1734/2016 (SE OREI) it is clear that the documentation in question was incorporated into the "Faithful Depository" system (General Resolution No. 2573 and its amendments ...). TFN, Room 21, 29/5/2024, EX-2023-114123495, Chubb Argentina de Seguros SA
That is to say, the judge assessed the evidence taking into account the plaintiff's procedural conduct. Indeed, in rejecting the nullity claim, the judge considered that, although not all customs documentation was available at the time the investigation began, the fact is that at the time of issuing the judgment in one case and the time of issuing the customs resolution in the other, the necessary elements were present to suggest that the party was also aware of the violation and that nullity cannot be validly declared when it was subsequently remedied; especially when the party also had the opportunity to exercise its right of defense. This is in clear accordance with the benefit of the search for material truth.
We can also affirm that these decisions demonstrate the importance of assessing the evidence and supporting documents provided in the cases described.
Below, we will mention other cases in which the conduct of the administrator had an impact on the decision of the judge.
For example, in the autos Alimentos y Forrajes SA v. DGA, FILE 2021-24456182, 11/07/2022, the Court decided to confirm the Customs Resolution, stating that “… If the PA maintained by the plaintiff was correct, she had several procedural opportunities to produce evidence—new extractions, a second analysis, indirect evidence—that would corroborate her position. However, with various procedural excuses, she always failed to offer such evidence regarding the correct PA in which the merchandise is classified, without objecting to the only Analysis Protocol produced in the case file, whose objective content is beyond doubt.. "
On the other hand, the Court stated that “… "It is not mere good faith, but rather the diligent action of a good businessman... In contrast, the exporter's behavior in this case has been characterized, as illustrated, as evasive conduct regarding its burden of justifying the tariff classification... This was evident, from the outset, with a passive attitude regarding the samples taken... it always had a sample at its disposal, which it could and should keep inviolable, to compare the results of the ITEM with a new analysis... as in the procedural and appraisal excuses for not requesting a new analysis..." TFN, 11/07/2022, Alimentos y Forrajes SA c/ DGA, FILE. 2021-24456182
Also in the case of Mercator SA v. DGA dated April 11, 04, the judge ordered the plaintiff to be charged with the offense described in Article 2022, paragraph 954, paragraphs a) and c) of the Civil Code. In doing so, he expressly stated that "... Throughout the entire procedure of sample extraction, identification and packaging, the interested party must be present, understood as the importer, exporter or customs broker (emphasized by me) corresponding to his representative, duly accredited for such purpose, or in certain cases, experts from the party duly designated. In this regard, it is not noted that during the sample extraction procedure the representative of the appellant firm made any observations or reservations regarding the samples taken, nor that he reasonably questioned the suitability of the customs officer for such work. Furthermore, the tariff classification determined by customs has not been invalidated by other evidence from the plaintiff when it could have requested expert evidence to refute the conclusions. ..." TFN, 11/04/2022, Mercator SA c/ DGA
Finally, it is observed that the procedural conduct of the plaintiff appears in some cases as a factor in the search for the material truth that the judge should pursue.
The existence of exchange control
In the ruling YPF v. DGA u above The company complains, stating that there was no exchange control by Customs or export duties. Indeed, exchange control does not affect the commission of the infringement in question, given that on the one hand, flexibility in exchange control tends to free trade and eliminate restrictions that may hinder it, but this does not prevent the proper customs control from being carried out. It cannot be ignored that the fact of not having entered foreign currency implies per se the commission of the customs violation. In this regard, it is worth citing the ruling Sosa (12), in which the Chamber recalled on the one hand what is the legal right protected by the rule and the need for the importer or exporter to present to the Customs Service at the time of making the Customs Declaration, all the elements concerning the customs operation in question. It also ruled on the impact of exchange control on infraction 954 1 c. Thus, the Chamber recalled that the fact that at the time of the facts there was no exchange control does not prevent the commission of infraction 954 c, given that "... The primary function of the customs agency is to exercise control over the international traffic of goods... which goes beyond the strictly collection purposes... and is linked to and consistent with the exercise of the State's police power. ...”. CNac.A.Cont.Adm.Fed., Room I, Sosa, María del Carmen c/ DGA
Likewise, in relation to the term "income" in the Customs Code article, its importance is highlighted since it does not refer to foreign currency but to the consideration received by the exporter.
for the sale of the merchandise, stating that “…the term “foreign currency” that comes from an export operation and must be liquidated within a certain period (Chamber III, YPF c/ DGA, 12/3/24…” CNac.A.Cont.Adm.Fed., Chamber I, Sosa, María del Carmen (TF 32044-A) c/ DGA, case 5076/24.
With the above, it is reaffirmed that what the infraction seeks is not limited to a numerical figure or the conduct of reporting the entry or exit of foreign currency, the verification of which could rule out the commission of the infraction.
We can say that in a specific customs operation, involving complex transactions or cases of triangulation between related companies, the Customs Service and subsequently the sentencing judge will verify all the documentation and operations carried out, as well as the evidence produced in the respective procedure—including both the conduct of the importer or exporter and the financial position of the firm. As we have mentioned, it is not necessary for Customs to conduct a thorough and complete examination of all the accounting grounds and evidence that led to such a decision. In these cases, an assessment of the evidence must be made, consistent with the type of customs operation carried out.
Final Thoughts
We conclude that the assumptions of imputation under Article 954 c effectively entail the need to take special account of the assessment of evidence due to its special characteristics, which cannot be limited to the literal meaning of the rule nor to an accounting comparison, under penalty of reducing essential technical aspects to a purely tax-related issue.
We have observed in repeated jurisprudence the differences that exist regarding the assessment of evidence in the case of this violation, since it is a rule whose interpretation can be broad given that it uses the subjunctive or conditional verb tense, that is, it refers to the attribution of an event or conduct that could have occurred, that is, the damage could have been caused.
An example of this is that the jurist may consider the infringing conduct to be proven by observing the body of evidence and different aspects that lead him to understand that, in that specific case and not in another, the infraction has been committed, and he cannot validly require the judge to prove the conduct mathematically or in monetary terms.
Regarding the evidentiary analysis, in this type of violation, we can state that, in complex business cases, the firm would have an aggravated duty to provide detailed information about those transactions.
We have also reflected on the limits of the assessment of evidence and the procedural remedies that the parties may have in the event of a potential arbitrary decision; thus, among other things, the existence of a specific and erroneous assessment of the evidence could be the result, and not a mere disagreement with the judgment.
We have also observed that the existence or absence of exchange controls on foreign currency entering or leaving the country does not modify or affect the configuration of violation 954 c, given that these are not customs regulations and exceed the control exercised by the General Directorate of Customs.
That is, control is always directed toward verifying a transparent customs operation and not the amount, which turns out to be a consequence of a previous maneuver.
Likewise, we conceptualize the customs declaration as the act by which the interested party communicates to Customs the data required for the application of said customs regime.
This export destination request must indicate "all necessary circumstances or elements" that allow the customs service, specifically, "to control the merchandise" in question.
The customs declaration must effectively represent the customs transaction carried out, and this verification is not limited to a mathematical and accounting process, but rather arises from the accumulation of evidence provided, which demonstrates the existence of a complex legal transaction that has allowed for profits and benefits exceeding the declared amount.
Regarding the control carried out by the Customs Service, it goes beyond the strictly collection purposes and is linked to and consistent with the exercise of the State's police power.
We have also given as an example that the fact that documentation not submitted to customs has been declared to the DGI reinforces the idea that it is not a matter of controlling amounts when it is the Customs Service that carries out the control, but rather of maneuvers that tend to speculate and distort the regimes to which the operators adhered.
Thus, in the search for material truth, these elements, provided by the firm or often collected by the customs service, as is the case with INDIRA reports, are used to understand and analyze the customs commercial transaction.
We have also listed recent cases where the National Tax Court and the High Court of Appeals have given different treatment to cases in which they gave special consideration to the material truth over certain formalities.
1. SCJN, 29/02/2024, Pioneer v. DGA, in which the Customs Resolution that had convicted the firm of violating Article 954 1 c in a case of triangulation with related firms was revoked, on the understanding that the evidence provided would show that the firm declared what it received as income from the sale of its merchandise.
2. CNac.A.Cont.Adm.Fed., Sala I, 04/07/2024, YPF SA (TF 30436-A) v. DGA. In which the firm was charged with the same infraction (954 c CA) in the context of a case in which an oil swap contract existed that also allegedly allowed the obtaining of amounts other than those declared through so-called "complex commercial operations."
The transaction involving this network of contracts has been handled by the International Operations Department as "a complex international legal transaction," emphasizing that "...it is not a series of isolated or casually interrelated transactions. On the contrary, we are dealing with a single - complex - transaction, where the various operations comprising it have their purpose in precisely defining the role of each of the parties involved, as well as the extent of the income and expenses attributable to each of them for their participation in the transaction."
It is worth pointing out that a SWAP is an instrument through which "... one party agrees to assume a risk related to the future evolution of an underlying variable in exchange for monetary consideration, the transfer of ownership of an asset or the assumption of another risk by its counterparty" (Confr. Malumián, Nicolás; "Derivative Contracts (Futures, Options and Swaps)", Editorial La Ley, Buenos Aires, 2009, p. 4.) That is why it is part of the category of derivative contracts, because "... its value depends ('derives') from underlying variables generally constituted by the value of assets, whether financial or basic products ..." (Confr. Technical Report No. 17 of the Argentine Federation of Professional Councils of Economic Sciences).
Although it might seem, at first glance, a simple speculative tool, the truth is that "... through the use of this type of contract, any economic operator can secure a future price, whether of commodities or financial assets, an interest rate or fix in advance the quotation of a currency..." (cfr. CNAC, Sala D, "Fiat Crédito Compañía. Financiera SA c/ Poder Ejecutivo Nacional, judgment of 30.04.2007").
3. ART. 954. – 1. Whoever, in order to carry out any of the import or export operations or destinations, makes a declaration to the customs service that differs from the result of the verification and that, if it goes unnoticed, produces or could have produced: (…) c) the entry or exit from or towards the exterior of an amount paid or payable different from the one that actually corresponds, will be sanctioned with a fine of ONE (1) to FIVE (5) times the amount of the difference…”.
4. Regarding this, see the mention of the CSJN case, 19/03/2024, PBB Polisur SA c/ DGA, which is made in this work.
5. “… Valuation Committee which, apart from not being a valid law, expressly leaves aside the case of transactions between related companies …”. Licht, op. cit.
6. Without going into the subject in depth, it is worth mentioning that this is contrary to the case Cnac.A.Cont.Adm.Fed., Chamber III, Maltería Pampa SA v. DGA (TF 35123-A) Case: 44028/2019 in which, in a similar case, the chamber understood that “… based on the dynamic burden of proof, and taking into account that the link was recognized from the beginning (which authorizes the presumption of the operational capacity to alter the declared values for sales), this evidentiary activity was in the hands of the plaintiff because it is the one in the best position to conclusively demonstrate that Maltería Uruguay SA meets the three requirements for not applying the determination of the amount corresponding to the triangulated operation between related parties covered by art. 15 of the LIG. If its only task is to re-invoice amounts that should have been invoiced in Argentina, the typical conduct repressed by art. 954, ap. 1, sec. C of the CA for the income - real or potential - of an amount other than that which would have corresponded ...”.
7. Dulce, Santiago, Interesting ruling by the National Tax Court, condemning a triangulated operation between related companies for customs violation (art. 954, ap. 1, inc “c”) – Mercojuris, 29/5/2023
8. CSJN, 19/3/2024, Pbb Polisur SA c/DGA, Case No. 46353/2012/1/RH1
9. Licht, Miguel, Reflection in light of the Pioneer ruling, Mercojuris, 10/03/2024
10. Barreira, Enrique, The Customs Destination Request and the Customs Declaration, Argentine Institute of Customs Studies, 09/2010
11. Licht, Miguel, Reflection in light of the Pioneer ruling, Mercojuris, 10/03/2024
12.CNac.A.Cont.Adm.Fed., Room I, Sosa, María del Carmen c/ DGA.
Bibliography
- Alais, Horacio Félix, Customs infringement regime, Ed. Marcial Pons, 2011.
- Alsina, Mario, Barreira, Enrique, Basaldúa, Ricardo, Cotter Moine, Juan and Vidal Albarracín, Héctor, Commented Customs Code, Ed. Abeledo Perrot, 2011.
- Barreira, Enrique, The Customs Destination Request and the Customs Declaration, Argentine Institute of Customs Studies, 09/2010.
- Dulce, Santiago, Interesting ruling by the National Tax Court, condemning a triangulated operation between related companies for customs violation (art. 954, ap. 1, inc “c”) – Mercojuris, 29/5/2023.
- Licht, Miguel, Reflection in light of the Pioneer ruling, Mercojuris, 10/03/2024.
Law Review
- SCJN, 29/02/2024, Pioneer
- CSJN, 19/3/2024, PBB Polisur SA
- SCJN, 12/05/1992, Subpga
- CNac.A.Cont.Adm.Fed., Room I, 04/07/2024, YPF SA (TF 30436-A) c/ DGA
- CNac.A.Cont.Adm.Fed., Room I, Sosa, María del Carmen (TF 32044-A) c/ DGA
- CNac.A.Cont.Adm.Fed., Room I, Chubb Argentina de Seguros SA (TF 34636-A) c/ DGA
- TFN, Room E, 27/09/2024, SMG Compañía Argentina de Seguros SA c/ DGA
- TFN, 29/5/2024, Room G, EX-2023-114123495, Chubb Argentina de Seguros SA
- TFN, 11/07/2022, Alimentos y Forrajes SA C/ DGA, File No. 2021-24456182
- TFN, Room F, 39.708-A, 11/04/2022, Mercator SA c/DGA
Lawyer from the University of Buenos Aires (UBA). Specialist in Customs Law from the Catholic University of Córdoba. Master's student in Private International Law (UBA). Author of several scholarly articles on legal and customs matters.
