The Director General of Customs, Guillermo Michel, updated the amounts that provide for the filing of the summaries in which the alleged commission of customs violations is investigated, through General Instruction No. 2-E-AFIP-DGAADUA dated January 30, 2023. This regulation establishes that for such scopes the amount of the minimum fine may not exceed the sum of $360.000 (three hundred sixty thousand pesos).
Background
By General Instruction No. 11 (DGA) of December 13, 2016, procedural guidelines were established that enable administrative judges to order the filing of summary proceedings in which the alleged commission of customs violations is investigated, the amounts of which make it uneconomical to implement and continue the measures implemented to achieve their collection.
For its part, General Instruction No. 9 (DGA) of September 21, 2017, following the criteria supported in General Instruction No. 11 (DGA), proceeded to update the amount of the minimum fine to derive from the archiving of the proceedings opened for complaints for infringement that do not reach $30.000.
Currently, through General Instruction No. 2-E-AFIP-DGAADUA of January 30, 2023, General Instruction No. 9 is repealed and new guidelines are established, including an update of the minimum fine amount, which is raised to $360.000.
Areas in charge
The General Instruction establishes mandatory application for the following departments:
- Customs Legal Procedures Department
- Customs Departments and Divisions (dependent on the General Subdirectorates of Metropolitan and Interior Customs Operations).
Scope
The regulations will apply to the following complaints for violations:
1. Violation of articles 954, 962, 968, 969, 972, 973, 977 to 982 and 991 of the Customs Code – Law No. 22.415 and its amendments – and article 9 of Law No. 21.453 and its amendments: when the amount of the minimum fine does not reach the sum of three hundred sixty thousand pesos ($ 360.000).
2. Violation of article 965 of the Customs Code -Law No. 22.415 and its amendments-: for the case provided for in paragraph a), when the penalty of confiscation may be substituted by a fine equal to the market value in accordance with article 922 of the Customs Code, which does not reach the sum of THREE HUNDRED AND SIXTY THOUSAND PESOS ($360.000.-). For the cases provided for in paragraphs b) and c), when the amount of the minimum fine does not reach the sum of THREE HUNDRED AND SIXTY THOUSAND PESOS ($360.000.-).
3. Violation of article 970 of the Customs Code -Law No. 22.415 and its amendments-: when the amount of the minimum fine does not reach the sum of THREE HUNDRED AND SIXTY THOUSAND PESOS ($360.000.-). For the case provided for in section 2 of the aforementioned article, the market value of the merchandise involved must be added to the amount of the minimum fine to be imposed -for the purposes of determining whether the case should be filed.
4. Violation of articles 985, 986 and 987 of the Customs Code -Law No. 22.415 and its amendments-: when the amount of the minimum fine does not reach the sum of THREE HUNDRED AND SIXTY THOUSAND PESOS ($360.000.-). For the cases provided for in the aforementioned articles, the market value of the merchandise involved must be added to the amount of the minimum fine that may be imposed -for the purposes of determining whether the case should be filed.
Excluded violations
General Instruction No. 2 indicates that its application is excluded for the types of infractions that are not expressly indicated by the norm. Consequently, they will be processed in accordance with the legal provisions in force.
Requirements
For the purposes of applying this General Instruction, it must be noted that:
The alleged offender has no record of cases filed based on their amount, whose minimum fine amounts as a whole exceed the amount provided for in the aforementioned section, for the same type of infraction. For such purposes, the facts allegedly committed and filed during the last twelve (12) months immediately prior to the date of the alleged infraction that is the subject of the action being evaluated for filing will be considered as records.
Likewise, the file will not be admissible if more than one investigation is being processed for the same violation in relation to the same person responsible, for which the minimum established amount ($360.000) is exceeded.
Formulation of charge for taxes
In those proceedings in which, in addition to the fine, a tax claim must be made, the intervening areas will proceed to open the corresponding summary and conduct a hearing for both concepts, in accordance with article 1101 of the Customs Code, to all those responsible for taxes (debtor and guarantor or person responsible for the tax obligation). At the same time, the accused must be informed that the fine is ready to be archived, after payment of the total amount of taxes claimed within the period granted to respond to the hearing.
If the taxes are not paid, it will be necessary to continue with the processing of the procedure in accordance with the current legal provisions.
Regarding taxes, point H of General Instruction No. 2 E AFIP-DGAADUA differs from its previous General Instruction No. 9/17, which established in point J that, “the filing of the proceedings, under the conditions established by this instruction, will not prevent the formulation of the charge for the resulting tax difference, regardless of the amount of the tax owed”. Therefore, unlike its predecessor, the current General Instruction will provide for filing as long as the taxes are paid.
Effects on merchandise
In the act that orders the filing of the proceedings, the holder, possessor or owner of the merchandise will be informed that he may withdraw it in the condition in which it is found, after paying the corresponding tax obligation.
In those cases where the penalty of confiscation is applicable, the interested party may withdraw the merchandise, after paying the taxes that will be liquidated ex officio, under penalty of granting it the treatment provided for in Title II, Section V of the Customs Code. This refers to proceeding with the ex officio clearance in accordance with article 417 and related articles of Law 22.415.
In cases where the merchandise is prohibited from importing or exporting, the interested party may, if the prohibition is corrected, continue with the destination. Failing this, the merchandise will be ordered to be reshipped or re-entered into the market, as appropriate, under penalty of granting it the treatment provided for in article 429 and following of the Customs Code. This determines that the merchandise will become the property of the national State and the customs service will arrange for its sale, after verification, classification and valuation of the same.
In the event of complaints for violation of articles 962, 977 to 982, 985, 986, 987 and 991 of the Customs Code, the withdrawal of merchandise will not be authorized when it involves tobacco and its derivatives or when it is subject to prohibitions.
Communication
In all cases, the interested party must be informed that, if after thirty (30) days from the notification, the same has not carried out the removal or reshipment of the merchandise - after paying the tax obligation and/or correcting the prohibition, if applicable - it will be considered that the merchandise has been abandoned in favor of the National State, and the possibility of granting it the corresponding destination remains enabled, taking into account the type and condition of the merchandise.
Validity and application
This regulation is in force from the date of its issuance (30.01.20223/9/17) and is applicable to actions that are in process without a final resolution, repealing General Instruction No. XNUMX/XNUMX (DGA).
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