Throughout the territory of the Nation there will be no customs other than the national ones, in which the tariffs sanctioned by Congress will apply. (1). This was the will of the constituents and it has remained so in our National Constitution to this day.
It is appropriate to note that the purpose of Customs is to control the international traffic of goods, which calls us to analyze to what extent it was appropriate to introduce Customs within an agency that was created with a purpose that contradicts the objectives pursued by Customs.
If we start from Decree No. 1156 of 1996, which gave birth to the Federal Public Revenue Administration (AFIP), within its considerations it is maintained that "It is appropriate to arrange the merger of the NATIONAL CUSTOMS ADMINISTRATION with the GENERAL TAX DIRECTORATE, given the collection nature of the functions that both organizations have, advising the convenience of unifying them within a context of greater control and rationalization of costs borne by the National State, ensuring compliance with the essential functions of the State.". Also, "that the experience gathered to date has demonstrated the benefit of having the collection function concentrated, as demonstrated by the results produced since the GENERAL TAX DIRECTORATE took charge of collecting funds for pension and social security collection."
Note that the purpose is collection, promoting its convenience based on the experience that the DGI has had in assuming the collection of pension and social security taxes.
Customs and the tax collection function
International trade is in constant evolution, not only has it led to substantial changes in terms of customs areas, subjects and goods, but also to the operating regimes that are visualized with the needs imposed by the effect of the behavior of communities that find a futuristic commercial scheme, already in the present. But despite all this evolutionary race, Customs has always maintained its function, which has never been other than the control of imports and exports.
In this whole modernizing effort, the World Customs Organization has taken a leading role through its guidelines, which have objectives aimed at the different customs offices around the world to improve the control they exercise over imports and exports, establishing procedures and rules that in no way point to tax collection as a priority source for such a transcendental organization as Customs.
In this sense, tax collection is an effect of this control, but not its purpose and, consequently, trying to impose it as the main part of its purpose leads to limiting its true vocation, or what is worse, it can distance it from its vital function, to only focus on collection, almost removing an organization from its real objective, which has always been a priority for international trade.
In addition, in many cases, in order to prioritize tax collection, there are also contradictory criteria in the control of foreign trade, based on the differential interests between the General Tax Directorate (AFIP) and Customs, thus generating a lack of predictability for the operator. Dr. Enrique Barreira (2) maintains that it is paradoxical that two agencies of the same State use their powers of supervision over foreign trade operators in the search for conflicting interests. The result of this situation is that the importer finds himself between two fires, being threatened with an investigation into the value of the declared transaction, with the inconveniences, costs and uncertainties that all this generates, both because of the suspicion that it is considered high or low according to a pattern that is difficult to determine.
Customs control
In every international commercial transaction, the seller is responsible for exporting and the buyer is responsible for importing. As a result of these actions, there is a traceability that encompasses fundamental operational acts, starting from the arrival of the means of transport, unloading, entry into the bonded warehouse, taking of the contents, verification, and release.
In addition, those involved in import or export actions must meet the requirements and comply with the obligations imposed by the Law for such a purpose, and the authorization to act in the development of all those conducts that tend to exercise import and export must come from Customs.
It is evident that customs control is responsible for every act that not only enables the fulfillment of import or export, but also leads to the free circulation of merchandise within the customs territory.
Likewise, it is the Customs itself that has control over compliance with all those obligations invoked by the Law to arrange for compliance with the entry or exit of merchandise that is subject to a burden of responsibilities for not conceiving free circulation, or being subject to periods of permanence within the customs territory.
In short, the exercise of customs control is based on the following points (3): “control over the merchandise (direct control)”, “control over the documentation relating to the merchandise (indirect control)”, “control over the means of transport”, “control over the person carrying the merchandise”, “intelligent control (based on risk management)”, “control based on institutionalized collaboration between customs, as well as between them and companies involved in international trade”, “control based on information technology and timely information from other customs and from companies involved in international trade”, “control over the logistics chain”.
With the particularity that it is a task that relies on the suitability and capacity of the men and women who are in charge of such work, who must be committed to specializing in the matter and not merely to a global administrative task; even less, to a simple collection effort.
The function is not limited to control activities, but rather to the coordination of those regulations that are required to carry out such oversight, given the constant evolution that international trade imposes, due to the new subjects involved, new means of transport, new customs areas that arise in relation to international agreements that give rise to customs unions, new merchandise that leads to technical analysis in tariff classification, new regulations that are required for review - in health, the environment, terrorism, drug trafficking, fossil fuels, security - among many others. And which make it necessary to issue regulations that must be under the control of a body with customs authority.
International trade is not based on national foundations; on the contrary, it is based on a globalized scheme that imposes rules that must be conceived by each Customs Office to guide the improvement of this exercise of control, where organizations such as the WTO and the WCO are vital to enable the framing of an action by the customs bodies, who must act with agility and suitability, a task that can only be entrusted to an agency that has the capacity to do so.
Let us recall the essential role played by the WCO in stimulating the growth of legitimate international trade and its efforts to combat fraudulent activities. Furthermore, the partnership approach promoted by the WCO is one of the keys to the relations between customs administrations and their partners. By promoting an honest, transparent and predictable customs environment, the WCO contributes directly to the economic and social well-being of its members. Finally, in an international context characterised by instability and the ever-present terrorist threat, the WCO's mission, aimed at strengthening the protection of society and the national territory, and securing and facilitating international trade, takes on full meaning (4). This action establishes that such guidelines must be accepted and applied by bodies that can put them into practice, with the appropriate view that conceives the importance of exercising these guidelines aimed at directing such an end, and that they can only be entrusted to an organisation with the speciality of Customs.
Conclusion
As we have pointed out, Decree 1156 gave rise to the emergence of the AFIP and Decree No. 618/97, the driving force behind the activity of this body, which in reality has had a collection purpose, proper to the General Tax Directorate, but not to Customs.
In accordance with the above, the AFIP became the highest expression of the DGI, we could almost say that the DGI absorbed the Customs, and from that point on, the channels to exercise an action aligned with the operational improvement of the Customs control through regulations and actions that cover its constitutional purpose, were bureaucratized and confused from depending on an organ that is far from the function entrusted to the Customs.
Which leads us to consider that Customs should return to the genesis of its structure and thus its full function, seeing itself as an organ with its own autonomy, depending directly on the Executive Branch of the Nation, but not within an organization that happens to be an entity with its own collection purposes of the General Tax Directorate.
Dr. Ricardo Xavier Basaldúa has clearly indicated that trade facilitation must be adapted to the framework necessary for customs to effectively fulfill the function of controlling imports and exports. This is essential for States, because what is at stake, beyond the collection of customs duties, is the application of non-economic restrictions at borders to protect national security, public morality and health, animal and plant health, the preservation of the environment, endangered species, as well as historical, archaeological and cultural heritage.
In addition, taking into account that the World Trade Organization, which promotes fluid, predictable and free international trade, is working on several guidelines in conjunction with the World Customs Organization, it is stressed that Customs, including that of Argentina, with a view to modernization that calls for making effective this cooperation between such Organizations, must act quickly on the modifications imposed by current times, and which necessarily embrace digitalization and interaction between the bodies that exercise the activity of controlling the international traffic of goods. For this purpose, it is vital to form autonomous Customs, without the dependence of organizations that have other purposes, clearly not coinciding with the objectives on which the bases of the control of imports and exports are based.
- Article 9 of the National Constitution
- BARREIRA, Enrique C. “Customs value and transfer prices” in international transactions between related companies: two approaches to the same phenomenon”. Journal of Customs Studies No. 15 of the Argentine Institute of Customs Studies 2001/2002 p.113
- Dr. Ricardo Xavier Basaldúa, Doctrinal Section, IAEA.org.
- World Customs Organization – Customs management training.
The author is a lawyer and member of the Institute of Customs Law and International Trade of the Argentine Association of Constitutional Justice.
