By Resolution 26/2022 AFIP A procedure has been implemented to establish requirements that must be met in order to determine the amount to be guaranteed in response to a request to lift the suspension of the Importers/Exporters Registry as a result of being involved in a criminal case and being prosecuted.
Regarding this measure, published on Tuesday (22.11.2022/97/1) in the Official Gazette, it should be remembered that the Customs Code establishes, in its article XNUMX, section XNUMX, subsection b), that the General Director of Customs will suspend "without further ado" from the Registry of Importers and Exporters the subjects prosecuted for any customs, tax or social security crime, until they are acquitted or acquitted by a final judgment or resolution.
However, the Law allows for such a measure to cease, and for this purpose a bond must be posted in favour of and to the satisfaction of the customs service.
Such decision is subject to review and approval by the General Directorate of Customs, who through Provision No. 9 (DGA) of February 1, 2019 delegated to the General Technical Legal Customs Subdirectorate the power to accept or reject the request for exception to the suspension of the Registry of Importers and Exporters that may have corresponded, when sufficient guarantee is granted to safeguard the fiscal interest, as well as the decisions related to the amount of said guarantee.
Regulated procedure
1. Presentation. Character of Affidavit
The operator that requires the lifting of its suspension from the Special Customs Registries, due to the configuration of any of the assumptions provided for in paragraphs b) and f) of section 1 of article 97 of the Customs Code, must make an electronic submission through the procedure “MUELA – Customs Electronic Multi-Note” Sub-procedure: “10099 – Suspension-Guarantee Exception – inc. b) and/or of) ap 1 art 97 CA”, in which, the operator (importer/exporter) will inform the customs service of its willingness to be exempted from the suspension arranged and will request -for this purpose- that the pertinent analyses be carried out in order to establish the amount of the guarantee that the AFIP-DGA considers sufficient to safeguard the fiscal interest. Said request must complete all the items established in said form.
2. Request for information
The Special Customs Records Division, if it deems appropriate, may require, upon such submission, that the applicant attach any additional documentation that it deems relevant for the analysis, evaluation and processing of the application.
3. Analysis of the application
The Special Customs Records Division will be the area with jurisdiction to analyze the submitted application and will prepare a technical report that will be submitted to the General Technical Legal Customs Subdirectorate, proposing the amount of the guarantee that will be considered sufficient, to safeguard the fiscal interest, in accordance with the provisions of RG 3885, its mod. and complem. (AFIP). 2.2. Said Division must request information from other departments of the Agency, relative to the customs risk profile, the fiscal, summary and judicial situation of the applicant.
In particular:
a) To the Legal Department:
Judicial Department/Department of Legal Advice and Coordination of the Interior: for the purposes of reporting on judicial cases in which the suspended operator is or has been a party, as well as the subject of the judicial file and procedural status.
b) To the Selectivity Department:
For the purposes of reporting the customs risk profile through a reserved GDE. Likewise, it will indicate the number of operations carried out in the last THREE (3) years prior to processing, and the FOB value thereof.
Furthermore, within the scope of its competence, it must report the behavior as an importer/exporter of the suspended operator, as it emerges from the queries made in the Registry System and its corresponding category in the SIPER (current and historical).
c) To the Prevention Summary Division:
In order for the Offender Registration Section to provide a report regarding the suspended operator's background, according to the data provided by the
4. Computer System for Offenders
With the information collected, the Special Customs Records Division will calculate the guarantee that is satisfactory for the tax interest, using the formula established in Annex II (IF-2022-02149318-AFIP-DVCADUDICEOA#DGADUA).
Once the technical report has been prepared, the Special Customs Records Division will forward the proceedings with the draft administrative act to the Technical Directorate, so that, if it shares the terms of the same, it will forward the proceedings to the Customs Legal Advisory Directorate, for the purposes set forth in article 1 of Provision (DGA) No. 9/2019, in fine.
If no objections are found to the procedure in question, the Technical Directorate will forward the draft Resolution to the General Subdirectorate of Customs Legal Technology.
5.Decision of the General Subdirectorate of Customs Legal Technology
The General Subdirectorate of Customs Legal Technology will approve, reject or modify the amount of the guarantee that will be considered sufficient to protect the fiscal interest. The Customs Special Records Division will proceed to notify the requesting party (importer/exporter) of the decision.
6. Notification to the interested party
It will promptly notify the amount of money that the Federal Public Revenue Administration – General Directorate of Customs considers sufficient to protect the fiscal interest, and thus, access the exception to the suspension provided for in each specific case.
Notwithstanding the established economic amount, the customs authority reserves the right to establish a higher amount, based on other parameters. The General Subdirectorate of Customs Legal Technology will retain its right to consider a guarantee insufficient, regardless of all the actions taken.
7. Integration of the Guarantee and/or request for reconsideration
The interested party (importer/exporter) must provide the guarantee considered sufficient by the Agency within ten business days of being notified of the resolution determining the amount of the guarantee to be constituted to safeguard the fiscal interest or, where appropriate, file an appeal for reconsideration (article 84 et seq. of Decree No. 1759/72) regarding the amount or requirements that are considered to have been unfulfilled.
Once this period has elapsed without the interested party providing the guarantee or initiating the appeal procedures that have been notified to him, the customs service will reject the request to lift his suspension from the Registry without further proceedings.
8. Constitution of guarantee in accordance with General Res. No. 3885 and mod.
The guarantee granted by the importer and the exporter will be implemented in the terms established in RG No. 3885 and its amendments and supplements, which once presented, will be recorded in the “Electronic Policies and Guarantees” System.
9. Selectivity channel for operations
In the case of operations carried out by the applicant, they will be processed through the selectivity channel that arises from the analysis carried out in accordance with the risk criteria established by the customs service, for which the Special Customs Records Division will communicate the background information to the Selectivity Department through GDE for the purposes of its competent intervention.
Once completed, the proceedings will be filed in the Special Customs Records Division.
Method of calculating the bail bond
The satisfactory amount for the protection of the tax interest will be calculated in the following terms:
Depending on the FOB value and the number of transactions carried out by the suspended firm in the last 3 years prior to processing, the following details must be provided:
A) TOTAL FOB OF OPERATIONS
B) TOTAL OPERATIONS
C) AVERAGE FOB per OPERATION (A divided by B)
D) AVERAGE OPERATIONS PER YEAR (B divided by 3)
E) INITIAL LEGAL VALIDITY OF PROCESSING (2 YEARS)
F) FOB OF OPERATIONS ESTIMATED FOR THE TWO YEARS OF INITIAL VALIDITY OF THE PROCESSING (B multiplied by D, multiplied by 2, corresponding to the years of initial validity of the processing)
SATISFACTORY GUARANTEE AMOUNT OF THE TAX SECURITY, according to your SIPER Risk (or other considerations):
VERY HIGH RISK (25% F)
HIGH RISK (20% F)
MEDIUM RISK (15% F)
LOW RISK (10% F)
Source: Resolution 26/22 – Annex I and Annex II
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