Introduction
The figure of the inaccurate statement It is of great importance in Argentine customs law, as it protects the principle of truthfulness in the declarations that foreign trade operators submit to the customs service. In a customs regime that relies on the good faith of the declarant, the accuracy of the information provided is crucial for the correct determination of taxes and the control of prohibitions. Supreme Court of Justice of the Nation The Court has emphasised that Article 954 of the Customs Code “gives priority to the truthfulness and accuracy of the declaration, regardless of any subsequent activity by the declarant […] or any control that may be carried out by the customs service”, so that the entire system is based on the reliability of the declaration and not on the effectiveness of state control. In other words, the customs system aims to prevent any manoeuvres that distort the import or export regime through inaccuracies in the declaration, under the protection of the import or export regime.
El Customs Code (Law 22.415) classifies the customs violation of inaccurate declaration in its article 954. This regulation sanctions with a fine anyone who, "in order to carry out any of the import or export operations or destinations, a declaration is made to the customs service that differs from the result of the verification, and that if it had gone unnoticed would have produced or could produce" any of the following effects: a) a tax loss (fine of 1 to 5 times the amount of the loss); b) the violation of an import or export ban (fine of 1 to 5 times the customs value of the goods); or c) the entry or exit from the country of an amount paid or payable other than that which corresponds (fine of 1 to 5 times the difference). The wording of the rule covers both cases of illicit damage (when the legal asset is actually harmed, for example generating real fiscal damage) as well as illegal danger (when the inaccuracy did not cause actual damage, but I could have (causing it if it is not detected). In this way, the Customs Code preventively safeguards fiscal income and compliance with customs regulations, punishing even inaccuracies that only entailed a risk for these legal assets.
However, the apparent clarity of the legal figure has given rise to diverse interpretations in the jurisprudence of the National Tax Court (TFN), the competent body to resolve disputes regarding customs violations in administrative proceedings. The criteria established in the most relevant rulings of the TFN on inaccurate declarations will be examined below, highlighting the discrepancies between the different members of the Court regarding the elements or budgets configurative of the fault and the legal nature (subjective or objective) of this infraction.
Jurisprudential Analysis
The Tax Court of the Nation has addressed in numerous precedents the infraction of inaccurate declaration of article 954 CA, generating in some cases divisions of opinion among its members. A central point of debate has been what level of proof or intentionality is required to consider the infraction configured. In general terms, it can be said that two positions coexist: one more objective or strict, which puts the emphasis on the mere discrepancy between what is declared and the verified reality, and another more subjective or guarantor, which requires a degree of verification of falsehood or deception on the part of the declarant.
A paradigmatic example of these divergences is offered by the case “Fullerton SRL” (Room G, TFN N° 9173, 6/4/2005), concerning a possible undervaluation at an import destination. In this ruling, the member Dr. Gustavo Krause Murguiondo held that, as Article 954 is worded, “It is not required to demonstrate that the declared price or the invoice containing it is false” to configure the infringement, but simply that the customs verification shows that the declared value does not match the actual value of the merchandise. In his opinion, once a substantial difference has been proven (in this case, Customs had determined a real value approximately 75% higher than that declared), the inaccurate declaration becomes incontrovertible, without the need to prove a specific fraudDr. Krause warned that requiring conclusive proof of the falsity of the price or invoice would render the figure of art. 954 practically inapplicable, since the cases of deliberate falsification of documents would rather qualify as a crime of smuggling (arts. 864 inc. b and 865 inc. f CA). Therefore, according to this position, the infraction figure of 954 must have its own and broader content, extending to discrepancies in value objectively proven by Customs even if a flagrant fraudulent maneuver is not demonstrated.
In contrast, in the same case “Fullerton” vocalist Dr. Juan Carlos Sarli —whose vote was supported by member Dr. Maria Fernandez de la Puente— maintained an opposite interpretation. Sarli stressed that the unreality of price declared "It cannot be presumed, but must be reliably proven" This is a sanction of an administrative criminal nature. He pointed out that in the case under analysis, Customs had rejected the declared value and set a higher value for the liquidation of taxes, but "since the false price has not been proven, it is not appropriate to impose a sentence for violation of art. 954 of the CA". That is, in Sarli's opinion, the mere adjustment of value at customs (recomposition of the customs value) does not constitute in itself an inaccurate declaration punishable by law, unless it is proven that the documented price was false or misleading. This criterion of guarantees requires positive evidence of deliberate inaccuracy - equating inaccuracy with falsehood - in order to apply the fine of art. 954, paragraph c). It is worth mentioning that the same orientation had already been expressed in previous rulings of Chamber G, such as "Victorio A. Gueltieri" (16/2/1994), ensuring continuity with the line of jurisprudence that demands conclusive proof of inaccuracy in order to impose a penalty.
The tension between the two positions is evident: while Krause and other members put the emphasis on the objective discrepancy Between what is declared and reality, Sarli and those who accompany him put the emphasis on the subjective verification of a material falsehood or intentional deception. This discussion is not limited to import values, although it has been presented clearly there (given the frequent controversy over undervaluations). It has also occurred in other contexts of inaccuracies. For example, in matters of declared quantities or classifications, the TFN has evaluated on a case-by-case basis whether the divergence had the capacity to cause the damage or risk contemplated in the standard. In a recent case, “MPSA v DGA” (TFN No. 35.93-A, 29/5/2023), a triangulation of exports with transfer prices between related parties was discussed. The majority of the Tax Court (vocal Dr. Miguel N. Licht, with the support of Dr. Claudia B. Sarquis) upheld the sanction of art. 954 inc. c) by finding a significant difference between the FOB value declared for export to Uruguay and the price finally paid in Brazil, which was not justified by the exporter. Dr. Licht, in an exhaustive vote, argued that multinational companies in triangular operations have an aggravated duty of transparency, and that Customs acted legitimately by adjusting the declared value to reflect the real market price, in application of the arm's length principle recognized by the OECD Guidelines. On the other hand, the member Dr. Horacio J. Segura The Court voted in dissent, stressing that commercial triangulation itself is not prohibited and is a common practice in international trade. While acknowledging that such operations warrant greater customs scrutiny, Segura argued that the mere existence of different prices in the triangulated chain is not sufficient by itself to constitute an infringement if undue manipulation is not proven; in its recitals it noted that Customs can investigate the genuineness of the operation, but implied that the intention to do so was not fully proven. to perpetrate a maneuver punishable. Once again, we see the counterpoint: a majority inclined to punish inaccuracy based on objective indications (significant unjustified differences in value), and a minority demanding a higher evidentiary standard regarding the intentionality or proven falsity of the statement.
In short, the TFN's jurisprudence demonstrates disparate criteria on the configurative budgets from the inaccurate statement. On the one hand, one line understands that objective verification is enough of a relevant discrepancy between the customs declaration and the verified reality (e.g., real value of the merchandise, quantity actually imported, correct tariff classification, etc.) provided that such discrepancy could have caused fiscal damage or violated a control rule. This view gives primacy to the principle of documentary veracity and tends to facilitate the repression of conduct that puts the system at risk, even without proving fraud. On the other hand, another line of jurisprudence maintains that Not any formal discrepancy constitutes an infringement, but only those in which the falsity or lack of veracity attributable to the declarant is sufficiently proven. This position emphasizes the guarantees of due process and the principle pro inmate, avoiding penalizing differences that could be explained by excusable errors, reasonable interpretations, or lack of malicious intent.
It is not idle to remember that the very Supreme Court has highlighted the need to carefully distinguish when an inaccuracy constitutes a crime smuggling and when a administrative offense. Since the Customs Code does not set minimum amounts or objective criteria to differentiate crimes and infractions (unlike the tax criminal law), the dividing line is usually the presence or absence of dolo. If the inaccurate statement is made with unequivocal purpose to defraud to the treasury or violate the law, could be classified as smuggling (art. 864 inc. b CA, for example, which represses the entry by simulating a lower value). On the other hand, if there is no aggravated intent, the conduct falls within the scope of the infringement of art. 954. Jurisprudence has warned that “It is not appropriate to consider that any inaccurate statement […] constitutes a crime of smuggling”, since the figure of smuggling requires an unequivocal fraudulent intent, coexisting with that of art. 954 for cases of simple inaccuracy without that intent. Once the mere action of documenting a value lower than the real one in order to pay less duties has been verified, the violation of art. 954 is configured, with the most serious criminal classification being displaced unless there is conclusive proof of the fraudulent manoeuvre. This criterion, emanating from judicial doctrine, has also influenced the TFN: in the event of doubt or lack of certainty about the fraudulent intention, the act is usually classified as an administrative offence (fine) rather than a customs offence.
Finally, it should be noted that the Tax Court in its decisions has also analyzed the suitability of harm or the risk generated. That is, even within the framework of art. 954, the question arises as to whether the detected inaccuracy was really capable of harming the protected legal asset (tax office, customs public order) or whether, on the contrary, it was harmless or was protected by some particular circumstance. For example, in certain cases of differences in quantity or weight protected by special regimes, the TFN has excluded the infringement by finding that the importer acted within the flexibilities permitted by the regulations. Such was the reasoning of the Court in the case “Papelera Tucumán SA” (TFN 31247-A) referring to fractional imports: there it was considered that the difference in the imported quantity did not constitute a punishable infringement, given that the operator had previously declared that he would bring the merchandise in partial shipments and that regime allowed him this modality without affecting the tax base or customs control in substantial terms. This type of analysis shows that, even from an objective position, it is necessary that the inaccuracy has legal relevance (due to its magnitude or effects) to merit sanction; a merely formal or irrelevant deviation could fall outside the scope of art. 954, either by applying principles of insignificance or because the very wording of the Code requires potential harm (“could have caused” damage).
Legal Nature of the Infringement
The discussion on the legal nature of the inaccurate statement is part of a broader debate on customs infringement law: if these violations constitute Objective (formal) illegal acts or if they require some subjective element of imputation (fraud or fault) for their configuration. From a traditional doctrinal perspective, customs violations have been considered figures of quasi-objective liability, aimed primarily at punishing mere unlawful act or omission rather than the guilt of the perpetrator. The Customs Code, in its Section XII, treats customs violations differently from crimes: the sanctions are mainly fines and confiscations (not prison sentences), and there are particular rules on the burden of proof of guilt. In effect, a kind of presumption of guilt of the offender, inverse to the common penal rule. According to the doctrine and administrative jurisprudence, “In the case of infractions, the presumption of guilt due to omission may be overcome by the accused, demonstrating, for example, his diligence”That is, it is presumed that the person who committed the infraction acted at least with negligence, unless proven otherwise. This reversal of the burden of proof separates customs infringement law from typical criminal law, where the presumption of innocence prevails and it is the accuser who must prove the intent or fault of the accused.
In light of the above, many authors consider that the infraction of misrepresentation is of objective or formal nature. When typifying dangerous behaviors (even abstract, as in cases where only I could have (in the event of damage), the rule does not explicitly require a volitional element. It protects a legal asset (the customs control system and collection) by sanctioning the simple discrepancy of relevant documents, which underpins the preventive and rigorous nature of the customs regime. Statement of Motives The Customs Code and classical doctrine indicate that figures such as art. 954 seek to guarantee the “basic principles of plausibility and accuracy” in customs declarations, indicating a clear emphasis on the objective result (declaring truthful data) rather than on the declarant’s intention. Likewise, the normative coexistence between the infringement of art. 954 and the crime of smuggling suggests a quantitative and not a qualitative demarcation: the same fact (e.g. a difference in value) can be seen as an infringement or a crime depending on the seriousness or evidence of fraud, but the existence of the infringement does not depend on proving fraudulent schemes. In fact, art. 954 appears as a kind of "safety valve" of the system: covers all those cases in which there is a harmful material inaccuracy, but it does not reach the level of configuring (or proving) the intentional crime. From this perspective, the inaccurate declaration is an infraction almost objective: configured by the mere failure to declare truthfully, leaving the guilt presumed (presumption iuris tantum negligence) and giving the accused the possibility of exonerating himself if he proves that he acted with due diligence to avoid the error. For example, if the importer proves that he provided all the truthful documentation at his disposal and that the divergence came from an insurmountable involuntary error or from information from the supplier that he was unaware of, he could invoke absence of fault to avoid the sanction. In practice, however, such exoneration is not simple: the jurisprudence requires a solid accreditation by the operator to overturn the presumption of liability. National Chamber of Federal Administrative Litigation It has been established that in order to obtain an acquittal, the person involved must prove that he fully complied with his obligations and that the infraction was due to a cause beyond his control.
Notwithstanding the above, there is also a doctrinal position that advocates a nature subjective of the infringement, that is, it would require intent or at least gross negligence on the part of the declarant. This view is based on the fact that, despite being administrative offences, customs infringements They are part of the scope of criminal law in the broad sense (customs or tax criminal law) and therefore should respect the principles of guarantees to a greater extent than is usually admitted. These authors argue that sanctioning an importer without the need to demonstrate some degree of subjective blameworthiness violates basic constitutional guarantees (defense in court, guilt) and blurs the line between a mere administrative error and a punishable offense. They therefore propose interpreting art. 954 in a restricted manner, requiring that inaccuracy be considered a violation of the constitutional guarantees (defense in court, guilt) and blurs the line between a mere administrative error and a punishable offense. falsehood or involves gross negligence. In fact, the aforementioned TFN member Dr. Sarli, in his doctrinal vote, refers to the “criminal nature” of the figure of 954 inc. c) by demanding conclusive proof of the falsity of the price. In the same sense, the professor Fernando G. Camauër agrees that the correct interpretation is that of Sarli, maintaining that the importer's obligation is to declare the amount actually paid or payable, and that the inaccuracy equals falsehood, which must therefore be proven by Customs in accordance with the principles of applicable criminal law and criminal procedure. From this subjective perspective, the violation of inaccurate declaration would not be set up by a mere excusable error, nor for technical differences in assessment criteria, but only when it is proven that the declarant breached his duty of truthfulness with some degree of fault or intention. Thus, for example, there would be no infringement if the declared value was the one actually agreed with the supplier even if Customs considers it low according to objective guidelines; in such case – they argue – there could be an adjustment at the tax office (to re-assess taxes) but there would be no fine if it is not proven that the importer knew and concealed the real value.
La legal nature This infraction, therefore, ranges from being considered a abstract danger formal violation (of objective or strict liability) and a subjective infringement which requires assessing the declarant's conduct. An intermediate position, perhaps the one that best reflects the current state of Argentine customs law, is to understand that the inaccurate declaration is basically an objective infringement. as to its basic typicality (it is configured by the divergence between what is declared and the reality with potential harm), but with a subjective a posteriori evaluation at the time of trial, in which the declarant can exonerate himself by demonstrating lack of guilt. In comparative terms, it resembles the model of “objective liability with subjective exemptions” This is typical of many offences: the initial focus is on the fact (the inaccuracy), but the accused is allowed to allege and prove circumstances of absence of blame (invincible error, force majeure, acting with maximum diligence, etc.). However, in the forensic practice of the TFN, as we have seen, a declarant is rarely completely exonerated by simple allegations of good faith; on the contrary, the majority tendency has been to affirm the offence when the material discrepancy existed and fit the assumptions of art. 954, reserving the subjective discussions to graduate the sanction or to separate crime from offence, rather than to eliminate illegality.
With regards to relationship with other infractions of the Customs CodeIt should be noted that inaccurate declaration is among the violations substantial (directly affect income or control), distinguished from merely illegal violations formal which penalize administrative non-compliance without potential fiscal damage. Thus, for example, art. 955 CA complements 954 by referring to inaccurate declarations in special destinations (such as postal shipments, depending on the situation) and other precepts (such as art. 972 CA) provide for attenuated sanctions for formal violations without fiscal damage in particular regimes. For its part, art. 995 CA acts as subsidiary or residual clause, sanctioning with a fixed fine any violation of the duties imposed by customs regulations that "there is no specific sanction provided for" in the Code, provided that "produces or could have produced a fiscal loss or affects or could have affected customs control". This rule reflects that the legislator wanted to cover all relevant non-compliance: if an incorrect declaration does not fit exactly into art. 954 (for example, because it does not fall on the typical elements described there) but still compromises the oversight or collection function, it may be punished by art. 995. However, the preferred application will be that of 954 when its specific budgets are configured, leaving 995 for atypical or less serious cases. The jurisprudence has indicated in this sense that it is not appropriate to subsume a conduct in 995 if it fits adequately in 954, since the latter is the special figure intended for material inaccuracies in import/export declarations. Likewise, it is useful to differentiate the inaccurate declaration from other infractions of the Code: for example, the failure to declare merchandise (a more serious assumption that usually constitutes smuggling if it is intentional, or eventually a violation of article 962 if it involves undeclared merchandise found during verification), or the false documentation (which could be classified as use of an adulterated document, etc., already in criminal territory). The inaccurate declaration of 954 occupies, we could say, an intermediate space: it sanctions the lack of material truth in the statement, without reaching absolute concealment (which would be omission or smuggling) or document falsification (also a crime). For this reason it has been classified as truthful infringement: punishes the failure to observe the duty of exact truthfulness, differentiating itself from other infractions such as lack of documentation, violations of traffic regulations, destination of merchandise for a use other than that declared, etc., which have their own types (articles 962, 972, 986, among others). In short, the inaccurate declaration has a relationship of complementarity with these figures within the customs sanctioning system: it is the way to sanction substantial declarative deviations when they do not constitute major illicit acts.
Implications and Final Reflection
The differences of opinion noted between the members of the National Tax Court are not merely theoretical, but involve important practical implications for foreign trade operators and for the Administration. The position that prevails in each case will depend, for example, on whether or not an importer/exporter faces a significant fine for a declaration that was inconsistent with the customs check.
The majority position (objective) —which tends to sanction inaccuracy as soon as a relevant divergence is verified, without requiring proof of fraud— has as its advantage the effectiveness in safeguarding the fiscal interest: it sends a strong message that any lack of truth in declarations will be criticized, encouraging operators to take extreme care and providing Customs with an agile control tool. This line guarantees that the principle of truthfulness prevails, avoiding the Administration having to prove hidden intentions, which is often difficult. In addition, it is consistent with the letter of art. 954, which does not mention the intention but the potential harmful result. However, the rigidity of this position can generate equity risks: A person who made an involuntary or interpretative error could be sanctioned with the same severity as a person who deliberately manipulated the declaration. This raises tensions with the principle of culpability and with the legitimate expectations of individuals. For example, an exporter who sincerely declared a transaction value that Customs later challenges as being low (applying criterion values) could be fined even though he had no intention of violating the law or any real chance of knowing that his price would be reconsidered. To mitigate these situations, even those who support the objective position usually admit mitigating circumstances in the sanction, or exoneration if the offender conclusively proves his lack of guilt. However, the burden of proof falls on the taxpayer, which implies a demanding standard.
On the other hand, the minority position (subjective) —which requires intent or at least a proven falsehood to apply a sanction— favors the taxpayer guarantees and the proportionality of the punishment. Under this criterion, it is difficult for a diligent and good faith operator to be sanctioned: only those conducts in which reprehensible conduct is demonstrated (intentional deception or gross negligence) will be penalized. This reinforces the legal security operators, who could trust that they will not be subject to fines if they acted correctly or if the differences are due to reasonable circumstances. Likewise, it avoids double judgments of disparate values between instances: for example, that the criminal justice system acquits for lack of fraud but in the administrative courts a fine is also imposed for the same issue; with the subjective criterion, if there is no fraud there would not be an infringement either. On the other hand, this position could weaken the effectiveness of customs control: requiring direct proof of fraudulent intent considerably increases the difficulty of sanctioning infringements, which could become more difficult. Rule 954 is inoperative in many cases. In addition, it runs the risk of encouraging more sophisticated concealment strategies, since offenders know that the burden of proof for Customs is high. From an administrative point of view, this minority view can frustrate the inspection action, forcing the archiving of investigations due to lack of conclusive evidence even when there are serious indications of undervaluation or concealment of data.
In Argentine practice, the consequences of this dichotomy have been reflected in a certain jurisprudential oscillation. There were times when the TFN, with the integration of members inclined to guaranteeism, revoked numerous customs fines for inaccurate declarations due to the lack of "firm" proof of falsehood (benefiting the importer). In other stages, a more rigorous line prevailed that validated the majority of sanctions based on proven objective differences (strengthening the fiscal position). This variability has a direct impact on the predictability of the system: importers and exporters may perceive uncertainty about how their conduct will be judged. legal security Ideally, this requires a uniform criterion. Otherwise, disparate and sometimes paradoxical situations arise, where the same fact could be sanctioned or not depending on the composition of the TFN Chamber that analyzes it, or whether the case comes to the attention of a judge with a stricter or more guaranteeing view. This undermines confidence in the legal regime and could even encourage forum shopping (searching for the most favorable forum or instance) to the extent possible. It also has repercussions on the customs administration, which when litigating before the TFN must consider these antecedents: Customs could become more cautious when formulating charges of inaccurate declaration when it perceives an adverse jurisprudential environment, or more inclined to sanction when it knows that its criterion is usually supported.
A fundamental aspect is the impact on foreign trade operators. From a business perspective, penalties for inaccurate declarations —which can amount to up to five times the tax loss in the case of subsection a)— constitute a significant economic risk. If the interpretation is broad (objective), practically any error in customs documentation with a tax impact can result in a considerable fine, which requires extreme internal controls and increases compliance costs. On the contrary, a more restricted interpretation would alleviate this burden, but could also encourage a certain laxity or attempt to exploit a “grey area” (knowing that sanctions will only be imposed if something very obvious is discovered). In short, the lack of jurisprudential uniformity around art. 954 may have an impact on the ex ante behavior of the operators: either overcomply and declare with a safety margin (for fear of objective sanctions), or assume aggressive positions in valuation/classification hoping that, in the absence of direct evidence of deception, they could escape the fine.
In conclusion, it is clear that the figure of the inaccurate declaration is located at the intersection between the needs of fiscal control and the guarantees of the right to sanction. majority position in the TFN up to now tends to reinforce the first aspect (control), while the minority raises his voice for the second (guarantees of the declarant). It would be desirable to move towards a unified doctrine that reconciles both interests in the best possible way. Perhaps the key lies in continuing to fine-tune the criteria on how significant or serious the inaccuracy should be to deserve sanction, and what elements of defense may be raised by the accused to exonerate himself. One possibility is that the jurisprudence (or the legislator) establishes thresholds or more objective guidelines: for example, tolerances for minimal differences, presumptions in favor of the declarant in certain cases of good faith, or guidelines on what constitutes sufficient proof of falsehood. Supreme Court, for its part, could have the opportunity to establish clarifying jurisprudence in the near future. Although in the 90s it established general principles (e.g. priority of truthfulness; need for unequivocal intent to speak of smuggling), there has not been a plenary ruling in recent decades that unifies the criteria on art. 954 in the infraction process. A pronouncement by the Supreme Court could provide the interpretative certainty that is lacking today.
In conclusion, the infringement of inaccurate statement It remains a sensitive issue in Argentine customs law, where fiscal policy, the effectiveness of state control and the rights of individuals come together. The jurisprudence of the National Tax Court reflects this delicate balance, oscillating between strict and flexible approaches. Achieving a harmonious and uniform interpretation of article 954 CA is imperative to ensure the legal security in foreign trade, without diminishing the tax collection efficiency and compliance with the law. Only with clear and stable criteria will operators be able to adhere to fair rules of the game, and Customs will be able to enforce the veracity of declarations without arbitrariness. As a professor of customs law, it is worth urging to continue to delve deeper into the doctrinal and jurisprudential study of this figure, seeking points of convergence that strengthen both the integrity of the customs system and the confidence of those who act under its rules. In short, truth and legal certainty They must be two sides of the same coin when it comes to misreporting.
The author is a lawyer, graduated from the University of Belgrano in 1998. He has practiced the profession uninterruptedly since then and, for the past two years, has worked in the Legal Department of the National Tax Court.
