In Buenos Aires, on the 14th day of August 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 INTERAGRI SA v. DGA s/ appeal; file No. 16.834-A
I) That on pages 33/41 back, INTERAGRI SA, through its representative, appeals against Resolution No. 7250/01 of the 2nd Head of the Customs Legal Procedures Department, issued in file EAAA No. 600.730/97, which sentenced it to pay a fine of $50.213,52 under the terms of arts. 969 and 1122 of the CA. It states that the summary in which this resolution was issued originated in DJVE 4415/95 referring to 378 tons of Bean 191/220, PA 0713.33.29, with a shipment period from 1/10/95 to 30/10/95, with automatic extension to 29/12/95; with a p/t value of US$. 1.000, resulting in a FOB value of US$ 378.000. It indicates that, subsequently, it is reported that the customs value of the merchandise is $ 418.446 and the hearing is ordered, without prejudice to which the customs service issues the resolution in question. It understands that despite the customs intervention in the terms of art. 969, the enforcement authority of law 21.453 should have previously acted, so that once it had been issued, the customs service would substantiate the infraction procedure. It raises the nullity on the grounds that the prior action of the enforcement authority is not proven in the file. In the alternative, he states that in the case of the bean harvest, the problem was centered on early frosts that affected production and the frequency and intensity of rains during the ripening periods of the harvest, causing losses both in the quantity of merchandise to be harvested and in its quality, so that the estimates were not met. He refers to the climatic factors and their effects on the harvest. He points out that foreign buyers cancelled operations, so that the planned commitments could not be met. He points out that there has been no harm to the National State, since it did not receive any reimbursement or refund. He elaborates on the meaning of the fortuitous event and cites jurisprudence. The Court points out that the doctrine of the Supreme Court of Justice of the Nation is conclusive in admitting good faith as an exculpatory cause of liability for customs violations and concludes that at all times the plaintiff understood that its actions were within the parameters of the current law, which makes the imposition of trying to apply a sanction to it unfair. It indicates that in addition to acting in complete good faith, it also believed it had the right not to comply with its export, because in addition to that it was impossible for it to comply with that commitment. It considers that nothing can be reproached to someone who at the time of the demand for compliance with the export did not have the merchandise under its guardianship to be able to export, so that in kind the principle of in dubio pro reo should be applied, a penal guarantee recalled by art. 898 of the CA. It offers evidence, reserves the federal case and requests that the appealed resolution be revoked, with costs.
II) That on pages 83/85 the prosecution replies to the notification duly made to it. It denies each and every one of the statements made by the opposing party. It makes a brief summary of the facts. It states that the plaintiff was properly notified and that, therefore, it would not be appropriate to declare the nullity of the proceedings, proof of which is that on pages 11 of the administrative proceedings the plaintiff presented herself, stating her address and requesting photocopies of the proceedings up to that point. It cites jurisprudence of the Supreme Court of Justice. It maintains that, in the present case and given the evidence of the plaintiff's actions during all the proceedings, granting the request for nullity would be to declare the nullity for the nullity itself. With respect to the merits of the matter, it states that the plaintiff incurred in the violation of art. 969 of the CA for not having complied with the export of 90% of the merchandise within the period established in the DJVE No. 0061/92 laws 21453 and 22415. It considers it correct that the appealed resolution has set the fine at 12% of the customs value of the merchandise in question. It offers evidence. It requests that the appeal be rejected, with costs.
III) That at fs. 91 the case is opened for evidence, which is produced at fs. 108, 118 and 125. At fs. 114 a measure is issued for better provision which is produced at fs. 115. At fs. 134/135 the plaintiff alleges; the Treasury did not allege. At fs. 137 the proceedings are moved to judgment.
IV) That on page 1 of the administrative proceedings EAAA No. 600730-1997 there is a complaint against the firm INTERAGRI SA for not having complied with the export of 90% of the merchandise within the period established in the DJVE No. 4415/95 Laws 21453/ 22415. On page 5, the instruction of the summary is ordered in the terms of art. 1090 inc. c) of the CA for an alleged prima facie infraction of the infraction punishable in the CA. On page 6 there is a report from the Export Registry Division where it is detailed that the customs value of the merchandise in Customs with respect to the DJVE is $418.446. On page 11 the plaintiff appears, states her address; likewise, requests to take a view and make photocopies. On page 20/37 the plaintiff answers the hearing, raises nullity, makes a defense, offers evidence and requests acquittal. At pages 38/75 there is various documentation that is attached in photocopy. At pages 83/85 Resolution No. 7250/01 dated November 20, 2001 is issued, which is appealed in this case.
(V) That the nullity raised by the appellant in the present case is directly linked to the grievances that support the appeal, so that, as Francesco Carnelutti teaches, … from the principle of absorption of invalidity in the appeal, the rule formulated by scholars of civil procedure also derives for criminal proceedings, to the effect that the defects of the challenged provision become grounds for challenge; this means that as soon as a flawed provision is challengeable, the power of invalidation does not concur with that of challenge, but is absorbed in the latter, as the annulment is absorbed in rescission. Such absorption is at the point of arrival of a historical evolution that I could not even trace here in its general points; in very general terms, I indicate only that the rescission of the unjust act constitutes a step forward with respect to the annulment of the flawed act; This is where the slowly developing thought is expressed that the requirements of the act, and in particular the formal requirements, are not valid in themselves but as means to the end of its justice, which truth, even when obvious, has not had an easy path in the history of law... (Lessons on the criminal process. Vol. III, p. 217. Bosch and Co. editors. Buenos Aires. 1950).
That, on the other hand, it has been repeatedly said that it is SC doctrine that the challenge of arbitrariness is not applicable to a well-founded resolution or sentence, regardless of its correctness or error (Judgments, 243-560, 246-266, 248-584, 249-549), except in certain cases that do not occur in this case, such as, for example, the contradiction between the recitals and the operative part (see, among others, Scicolone, Manuel S. v. Prantera, Omar Alberto and others, 26/11/91).
That, likewise, it has been said that when the restriction of the defense in court occurs in the procedure that is substantiated in an administrative seat, the effective violation of art. 18 of the CN does not occur as long as there is the possibility of correcting said restriction in a later jurisdictional stage (Judgments, 205-549, 247-52 consid. 1º., 267-393 consid. 12 and others), because the requirement of the defense in court is satisfied by offering the possibility of appearing before a jurisdictional body in search of justice (Judgments, 205-549, consid. 5º and its citations) -TFN, Sala E, among others, Rivera, Alcides of 27/5/86, López Arispe, José, of 5/9/88-.).
That, moreover, the decision being sufficiently founded, the express mention of all the arguments of the appellant is not required (among others, Fallos, 251-39).
That, due to the way in which I vote on the question of nullity, I am in favor of not imposing costs.
VI) That in its response to the hearing held in the customs infringement procedure, the plaintiff raised the nullity due to the failure to intervene with the administrative authority designated as the enforcement authority by the Executive Branch.
That although the enforcement authority of Law 21.453 was the National Grains Board, this body was dissolved by Article 36, Annex I of Decree 2284/91, for which reason through Resolution of the former ANA No. 1791/92, it created within the scope of this administration the registry of sworn statements of foreign sales (DJVE) referred to in the aforementioned Law 21.453 and that it acts as a decentralized entity to achieve better control of the operations and income of taxes generated by the export of goods involved in said operations (Considering the aforementioned Res. 1791/92).
That art. 20 inc. a) of said Resolution provided that the period of boarding of the DJVE will enjoy an automatic extension of sixty (60) calendar days to complete the boarding of the declared tonnage, at the end of which the expiration of the same will occur.
That the Ministry of Agriculture, Livestock and Fisheries, as the implementing agency, should grant the extensions requested by the interested parties, in accordance with art. 18 of the aforementioned Resolution. So much so that its art. 20, inc. b) provided that in those fortuitous cases or cases of force majeure registered prior to the expiration of the term of the DJVE, an extraordinary extension of (60) sixty calendar days will be granted at the request of the party and by express act of the Ministry of Agriculture, Livestock and Fisheries. This last record must be recorded in the corresponding sector, which contemplates for this purpose the form OM-2098 by the Customs Registry.
That in the container envelope on page 3 of the ant adm. appears the plaintiff's Affidavit of Foreign Sales No. 4415, in which the closing date of the sale was entered as 13/3/95 with respect to Porotos Alubia 191/220 - harvest year 1995 - for 378 tons at a price of US$ 1000 per ton (total price of US$ 378.000), the expiration of the shipping period being 30/10/05 and the automatic extension being 29/12/95. It is not recorded that the implementing agency had granted any extraordinary extension, despite the fact that by art. 18 of the aforementioned Res. 1791/92, the interested parties must inform the customs office of the extensions granted, mentioning the number of the corresponding presentation file, by means of a simple Particular Request prior to the expiration of the aforementioned period. This statement will be entered in the respective section of the OM-2098 form by the aforementioned Customs Office.
That this lack of evidence in the sub-lite leads to the conclusion that the appellant did not make any submission to the enforcement body, and that it did not even attempt to prove to the latter that a fortuitous event or force majeure had occurred. Therefore, the principle of good faith cannot be applied.
That it was not up to the customs, but to the appellant, to address the enforcement agency in order to determine, where appropriate, the causes that excluded its culpability with respect to the alleged infringement. To do so, it had to demonstrate to that agency conclusively (see art. 731 of the CA) that it did not export for reasons of fortuitous event or force majeure.
That, moreover, as the appealed resolution clearly points out, the documentary evidence on pages 38/39 of the previous administrative proceedings and 7/28 of the proceedings only constitutes a demonstration of certain preparations to carry out the agreed shipment (leasing of fields for production).
That the cancellation of the contract, as reported on pages 6, 18 and 125 of the proceedings, does not prevent the conclusions I have reached herein, since nothing prevented the appellant from appearing before the enforcement agency before the expiration of the term and proving the alleged facts.
Furthermore, it should be noted that the voluntary acceptance of the regime of laws Nos. 21453 and 22415 (Customs Code) resulting from the DJVE in question cannot lead to a subsequent challenge to the application of the Customs Code, since to do otherwise would mean violating the doctrine of the acts themselves.
It should also be noted that in cases of non-compliance or cancellation of transactions relating to registered sales declarations, art. 9 of Law 21.453 provides for a penalty of 15% of the FOB sales value of the unfulfilled part of the declaration, up to a maximum of 90% of the declared amount. In this case, this fine would amount to $51.030, which is higher than that applied to the plaintiff in the terms of art. 969 of the CA.
VII) It should be added that the Supreme Court has stated that the general provisions of the Penal Code are applicable to customs violations, according to which only those who are guilty may be punished, that is, those to whom the punishable action can be attributed both objectively and subjectively (Judgments, 290-202, 5th recital and its citations) (SAFRAR Sociedad Anónima Franco Argentina de Automotores, 27/12/88, Judgments, 311-2779). This, without prejudice to the position of the Supreme Court regarding the burden of proof relating to the presumption of guilt inherent in the material elements of the actions of the active subject of the violation, as will be set forth below.
Although, as a general rule, offences are of an objective nature, given the difficulty of determining the subjective element that would make many repressive norms illusory, as this Court has rightly said in the field of criminal law, even when dealing with this type of offence, the basis of punishment is found in the intention of the author; however, in such offences the same procedure leads to a presumption of guilt, thus producing a reversal of the burden of proof, although this does not presuppose the configuration of the offence independently of any offence element (Escalante Pitt, Moisés MC 13/567 of 8/6/78).
I have held (Tax Law, Volume II, p. 260, 1st edition, 1997, and p. 334, 2nd edition, 2000. Depalma, Buenos Aires) that this implies that after the objective analysis of the examined fact (...) the subjective aspect must be examined, that is, the imputability (...) and the culpability, in order to assess the evidence produced in order to establish whether the aforementioned presumption of culpability was overcome. Imputability consists of the set of conditions that a subject must meet in order to be criminally liable for his action. The imputability of the plaintiff with respect to the customs infraction law is not discussed in these proceedings.
That, in tax offences (customs and tax) the burden of proof on the lack of culpability - whether due to intent or fault, as the case may be - falls on the alleged offender, unlike tax offences, in which the
The tax authorities must prove the intent of the perpetrator of the offence. However, it should be noted that intent is proven by external and concrete facts (ob. cit., Vol. II, pp. 259 et seq., 1st edition of 1997- and pp. 334 et seq., 2nd edition of 2000-).
So much so that in the cited book, among other pronouncements of the Supreme Court, I mentioned the one in Wortman, Jorge Alberto, et al., dated 8/6/93, in which, even in the case of formal violations, the High Court held that since the existence of material - or objective - elements arise from the proceedings and, therefore, the adequacy to the pertinent criminal type, it is up to the accused to bear the burden of proof tending to demonstrate the nonexistence of the subjective element. In the same sense, the Supreme Court considered that the burden of proof falls on the appellant in the matter of the fine imposed, since as it has repeatedly pointed out in the presence of the materiality of the infraction..., it is up to the offender to provide proof in his or her defense -Rulings: 198, 310- for which the allegation of ignorance of the legal precepts is not sufficient -Rulings: 182, 384 and others- (Julio E. Real de Azúa v. Internal Taxes, Rulings, 206-508).
As I explained in the previous point, Interagri SA did not provide any demonstration that would invalidate the illegal act that customs charged it with, or that would produce doubt in the mind of the undersigned.
VIII) However, I consider that the fine should be set at $37.660, consisting of the legal minimum applied to 90% of the customs value of the infringing merchandise (see art. 9 of law 21.453 and art. 969 of the CA), given that it does not appear from the proceedings that the appellant had any prior record.
Therefore, I vote for:
1st) Modify DEPLASAC Resolution No. 7250/01 of the 2nd Head of the Legal Procedures Department, setting the fine at $37.660 (thirty-seven thousand six hundred and sixty pesos). Costs according to the due dates.
2º) After signing this document, the appellant must pay the 2nd of the fine for which she is effectively convicted as a fee for the proceedings of Law 22.610 and amendments, under penalty of the General Secretariat of Customs Affairs issuing a certificate of debt.
Dr. Winkler said:
I substantially 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:
1st) Modify DEPLASAC Resolution No. 7250/01 of the 2nd Head of the Legal Procedures Department, setting the fine at $37.660 (thirty-seven thousand six hundred and sixty pesos). Costs according to the due dates.
2º) After signing this document, the appellant must pay the 2nd of the fine for which she is effectively convicted as a fee for the proceedings of 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.
