Jaime Bernardo Coll SA v. DGA s/ appeal, file No. 14.036-A of 10/10/2002

In Buenos Aires, on October 10, 2002, the members of Chamber E, Dr. Catalina García Vizcaíno, D. Paula Winkler and Gustavo A. Krause Murguiondo, met, with the latter presiding, in order to issue judgment in the case entitled: Jaime Bernardo Coll SA v. General Directorate of Customs s/appeal, file No. 14.036-A.-
Dr. Catalina García Vizcaíno said:
I) That on pages 9/16 back, the plaintiff appears, through his attorney, and files an appeal against Resolution No. 127/00, issued in file SA 42-97-0030. It states that its main activity is the execution of large and medium-sized civil and road engineering works, and that under Temporary Departure Order No. 031/95, made official on 9/2/95, before the Paso de los Libres Customs, it carried out the export of a Caterpillar brand pipe layer, model MD7, on tracks, year of manufacture 1968, used, Serial No. 17A10776. It states that the merchandise was exempt from export duties; that the temporary export was authorized for a period of twenty months; that the shipment was completed on 9/2/95 and that the temporary export period expired on 9/10/96. It indicates that the merchandise in question, used for the construction of roads in Brazil, was re-entered into the country very shortly after the authorized period for its temporary exit expired and before the expiration of the legal limit established in art. 363, paragraph a) of the CA. It argues at length about the nature of customs offenses and the application to them of the principles of criminal law, especially insofar as they prohibit analogy and extensive interpretation. It states that the merchandise fulfilled the purpose for which it was intended abroad, and that only upon its re-importation into the country had the period granted for temporary export expired. The plaintiff considers that this is a formal breach, originating from a faulty communication with the customs agent who did not inform the company of the imminent expiration date, and that the good faith with which the plaintiff acted would justify the non-application of the sanction or the attenuation of the same. The plaintiff considers, with various arguments, that the value of the goods, for the purposes of calculating the value of the fine of 30% of the same, must be the one they had at the expiration of the term for re-importation because the imputed infringement would have been committed on that date. The plaintiff reports that the declared value of the goods is lower than that declared on the occasion of the presentation of the DIT in question, and that the goods were actually worth approximately US$ 8000 plus VAT. He offers evidence. He requests the acquittal with respect to the applied penalty, or the attenuation of the same.
II) That on pages 26/34 the fiscal representation answers the appeal. It refers to the background of the case and the grievances of the plaintiff. It analyzes the legal regime of temporary exportation. It indicates that the burden of proof is on the plaintiff who has not been able to prove the timely fulfillment of its obligations. It alleges that failure to comply with the deadline in temporary exportations affects the purpose of the regime and gives rise to the application of sanctions such as the one analyzed in the case. It reserves the federal case. It offers evidence. It requests that the appealed customs resolution be confirmed. With costs.
III) That at fs. 41 the case is opened for evidence, which appears at fs. 45/49, 51 and 84/85. Once the proceedings were submitted for argument, neither party made use of that right. At fs. 100 the proceedings contain a judgment.
IV) That from the records in file SA42-97-0030 it appears: On pages 1 and 4 there is the temporary release order 0031/95, made official on 9/2/95, due on 9/10/96. On pages 2 there is the pro forma invoice No. 024, dated 29/7/94, in relation to 1 Caterpillar pipe layer model MD7 on tracks. Year of manufacture 1968, used. FOB value US$ 85.000. On pages 6 there is the international waybill and on pages 7 the International Highway Cargo Manifest. On pages 10, on 11/2/97 the opening of the summary is ordered. On pages 12 the merchandise is valued. On pages 13, on 14/3/97 the summary is reviewed. On pages 16, file EA42-97-03947 is added. From file No. EA 97-3957, the addition of a new guarantee by the plaintiff for $25.500 arises. On pages 19/20, Provision No. 137/97 of 11/4/97 is issued, by which the release to the square of the merchandise under the Guarantee regime is ordered, the merchandise being delivered to the interested party on 17/4/97. On pages 23, file EA42-97-6976 is added, by which the plaintiff contests the view run out of term. On pages 35/38, report No. 374/99 of the UTV of the Paso de los Libres Customs is produced. On pages 50/51, legal opinion No. 408/00 (bis) is issued. On pages 53/56, resolution-ruling No. 127/2000 of the Paso de los Libres Customs Office is issued, which is appealed in this case.
V) That art. 970 of the CA in its section 1) provides that: Whoever does not comply with the obligations assumed as a consequence of the granting of the temporary import regime or the temporary export regime, as the case may be, will be sanctioned with a fine of one to five times the amount of the taxes that tax the import for consumption or the export for consumption, as the case may be, of the infringing merchandise, a fine that may not be less than thirty percent of the customs value of the merchandise….
That the illegal act attributed by customs is not purely formal, and the existence or not of fiscal damage is not relevant for this purpose, since the benefit of temporary export is provided that the merchandise is re-exported on time (art. 349 of the CA), or its import is eventually converted into a definitive one, for which the relevant request must be made within the time limits provided for in art. 368 of the CA. If an extension is requested, the requirements and terms of art. 365 of the CA must be met.
VI) That it arises from the proceedings that the re-exportation of the merchandise was not complied with within the period granted in this case, the plaintiff acknowledging that said merchandise was re-entered into the country very shortly after the period for which Customs had authorized its temporary exit had expired... (page 10 of the proceedings), without it being an obstacle that said re-entry had occurred within the maximum limit of art. 363 inc. a) of the CA, given that a shorter period had been granted in the sub-lite, of which the appellant was aware.
That, in effect, from fs. 4 back of the previous administrative documents it appears that the customs granted an original period of 20 months expiring on 9/10/96, without the appellant having requested an extension in a timely manner.
That, consequently, it can be concluded that the infringement charged by the customs was committed in the present case, since in accordance with art. 972 par. 2 of the CA it is considered that the non-compliance with the obligation to re-export or re-import within the agreed period affects the purpose taken into account for the granting of the respective regime, and the provisions of par. 1 (the qualification of formal infringement) do not apply. Consequently, the claim of formal non-compliance with the period invoked by the appellant on fs. 13 of the proceedings, nor the arguments tending to exonerate its liability, cannot prosper.
VII) In addition, it should be noted that the Supreme Court has stated that the general provisions of the Criminal 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 is 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.
That, although, as a general rule, infractions 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 infraction, the basis of punishment is found in the intention of the author; however, in such infractions 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 illicit act independently of any infractional element (Escalante Pitt, Moisés MC 13/567 of 8/6/78).
I have held in (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 matters of tax offences (customs and impost), the burden of proof regarding the lack of culpability -whether it be due to intent or negligence, as the case may be- falls on the alleged offender, unlike tax offences, in which 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, the appellant did not provide any demonstration that would invalidate the illegal act that the customs charged her with, or that would produce doubt in the mind of the undersigned.
VIII) That the plaintiff questions the value of the merchandise that Customs takes into account to apply and calculate the penalty of art. 970 of the Customs Code (minimum fine consisting of 30% of that value).
That it considers that the merchandise in question has a real value of approximately US$ 8.000, plus VAT, which is enormously lower than that arising from PST No. 0031/95 (US$ 85.000), arguing that for the purposes of the temporary export of the merchandise, in view of the urgency that existed to carry out this and other temporary exports linked to the same engineering work contracted in Brazil, the value was recorded hastily and as an estimate, by personnel not specifically trained for this task and disregarding the documentation that would guide on the same (pages 14 back/15 of the file).
That on pages 84/85 of the file the accounting expert states that the assets subject to the claim were acquired by the firm Coll SA according to invoice 3134 dated 17.04.86/1/5; that they are entered into the book signed inventory and balances No. 5, folio 30.04.86), detailed in point a) of this document, under the heading Non-Current Assets, Fixed Assets; that, likewise, they are recorded in journal entry No. 10 of 1996/XNUMX/XNUMX, of the General Journal signed…; that considering according to accounting principles an amortization of XNUMX% per year from the date of acquisition, said asset is fully amortized. Having a book value of ZERO PESOS. He concludes that the asset subject to the claim in the file of the files, has been fully amortized since XNUMX.
That, however, the book value of an asset may not be the same for commercial and, consequently, customs purposes. So much so that in its defense the appellant itself assigns the asset a value of US$8.000 plus VAT (pages 14 back/15 of the proceedings).
That, on the other hand, the appellant assigned to the pipelayer in question a FOB value of US$ 85.000 (see pro forma invoice No. 024 of fs. 2 of the adm. antecedents), which allows us to infer that perhaps it introduced new elements (by consigning on tracks) and that there was a revaluation of that merchandise in the market.
In addition to the above, no one can go against their own actions or invoke their own clumsiness. It should also be noted that the plaintiff declared the FOB value of US$ 15.000 for the sugar mill in question in the sworn statement of file EAAA 427.400 at the time of the request for authorization of the exports (see pages 36 of the previous administrative documents) and documented this FOB value in the invoice on pages 2 of the previous administrative documents, in PST 0031/95 on pages 1 and 4 of the previous administrative documents, and in the International Waybill on pages 6 of the previous administrative documents. This seems to rule out any error committed due to haste and render useless any appraisal that, as evidence - pages 16 of the proceedings - or measure to better provide, the appellant promoted or suggested.
Furthermore, it should be added that, since Customs maintains the valuation criteria that it established at the appropriate time, in the face of the taxpayer's claim for rectification, said criteria must prima facie prevail, since the Supreme Court of Justice has ruled that the customs authority enjoys a relative margin of discretion to set the value of the merchandise, and that the valuation that it performs or accepts cannot be distorted on the basis of generic statements (IAFA SA case dated 28/8/73). Consequently, the rectification of value sought by the plaintiff must be dismissed.
IX) That establishing the value of the merchandise temporarily exported on 9/10/96 after several years has passed is an impossible task to accomplish, and the plaintiff's claim is in any event untimely.
That, however, taking into account that over the course of the 20-month period during which the merchandise was used abroad it could have suffered wear and tear and considering the 10% annual depreciation percentage indicated by the expert on page 84 of the proceedings, I estimate that the value to be computed for the purposes of the fine amounts to 83,33% of the amount declared by the plaintiff, that is, $70.830,50. Consequently, I propose that the fine be set at $21.249,15.
Therefore, I vote for:
1st) Modify the Ruling Resolution No. 127/2000, setting the fine imposed on the plaintiff in the sum of $ $ 21.249,15 (twenty-one thousand two hundred and forty-nine pesos with 15/100). Costs according to the due dates.
2nd) Sign this document, the plaintiff shall pay 2% of the amount of the fine for which she is actually convicted, as a fee for proceedings (Law 22610 and amendments), under penalty of issuing a certificate of debt.
3rd) Prior to providing the fee regulation requested by the expert CP Luis Alberto Aimini on page 85 of the file, he must accompany, within a period of five (5) days, the proof of registration with the AFIP -DGI- in which his CUIT number and VAT status appear.
Dr. Winkler said:
I agree with the preceding vote.
Dr. Gustavo A. Krause Murguiondo said:
That agrees with the vote of Dr. García Vizcaíno.
In accordance with the above agreement, it is unanimously RESOLVED:
1st) Modify the Ruling Resolution No. 127/2000, setting the fine imposed on the plaintiff in the sum of $ $ 21.249,15 (twenty-one thousand two hundred and forty-nine pesos with 15/100). Costs according to the due dates.
2nd) Sign this document, the plaintiff shall pay 2% of the amount of the fine for which she is actually convicted, as a fee for proceedings (Law 22610 and amendments), under penalty of issuing a certificate of debt.
3rd) Prior to providing the fee regulation requested by the expert CP Luis Alberto Aimini on page 85 of the file, he must accompany, within a period of five (5) days, the proof of registration with the AFIP -DGI- in which his CUIT number and VAT status appear.
Register, notify the parties and the expert, promptly return the administrative records and file them.