In Buenos Aires, on the 16th day of July 2003, the Judges of Chamber E, Dr. Paula Winkler and Dr. Catalina García Vizcaíno (Dr. Krause Murguiondo is on leave), met to decide the case entitled: «LA ECONOMIA COMERCIAL SA DE SEGUROS GENERALES v. DGA s/ appeal», file No. 16.055-A.
Dr. Winkler said:
I.- That on pages 5/8 the appellant, through its representative, lodges an appeal against resolution No. 1933/01, dated 10.4.01, by which it is required to pay the taxes in its capacity as insurer of the firm Kim Hwa Ja, which was convicted under the terms of arts. 970 and 972 of the CA. It states that the customs did not address any of the grounds raised in the defense in violation of the right of defense in court. It states that, although the importer re-exported the imported merchandise, the customs initiated the summary due to the mere expiration of the term without verifying whether the obligations had been fulfilled. It raises the unconstitutionality of art. 972, last section of the CA, and maintains that art. 265 of the CA allows the re-exportation of the merchandise within a maximum term of two years. He adds that irregular imports, such as temporary imports that customs authorizes to be imported definitively due to the expiration of the term, pay 100% of the taxes and an additional 30% but are not subject to fines as when the merchandise is re-exported a few months after the expiration of the term provided for this purpose. This situation, he understands, discourages insurers. He clarifies that he does not share the majority opinion of the Plenary Customs Agreement of this Court, Microsistemas SA Challenges the liquidation carried out by customs, reserves the federal case and requests that the resolution be revoked, with costs.
That on pages 21/25 and back the Treasury answers the transfer of the appeal. It refers to the nature of the surety bond. It points out that the appellant did not offer evidence at the customs office and states that Res. No. 72/92 is the regime to which the importer and, therefore, the insurer adhered, so that it is applicable to it and not the one it claims. It emphasizes that the insurer must respond to the same extent as the policyholder. It requests that the claim of unconstitutionality of art. 972 of the CA be dismissed by virtue of the provisions of art. 1164 of the same regulatory body. It offers the administrative proceedings as evidence and requests that the customs ruling be confirmed, with costs.
II.- Since there is no evidence to be produced, the plaintiff is given notice of the administrative acts. Once the measures for better provision provided in the proceedings have been produced (see pages 63/69, 72/80 and 86/91), the case is referred to Chamber E, which passes judgment on pages 93.
III.- That on pages 29 of EAAA No. 602.559/98 the summary is opened and in what is now of interest, the importing firm is seen, imputing the infringement provided for in art. 970 of the CA, citing the insurer, in its capacity as guarantor of the tax obligation, which is presented on pages 37/39 and back. On pages 45/47 resolution No. 1933/01 is added, which is appealed in this case.
IV.- It is then appropriate to address the resolution of this case.
As regards the plaintiff's argument that the attitude of the Administration contradicts the principle of defence in court, it should be remembered that the administrative authority is not obliged to rule on each and every one of the arguments put forward by the administered party in favour of his right.
V.- That although the insurer claims that the importer has re-exported all the merchandise (see fs. 5back of the proceedings), it has not offered evidence in this regard and this does not arise from the customs proceedings, in which the taking party was declared in rebellion (see fs. 40 administrative act.).
That consequently, it should be considered that the merchandise entered through DIT No. 3370-6/97 is in violation (see pages 78 of the proceedings and copies of the previous administrative documents).
That the aforementioned operation was documented under MEOSP Res. No. 72/92, so the Treasury is right in saying that the regulations sought by the appellant are not applicable to it. Nor is the plenary ruling of this Court in re Microsistemas SA admissible insofar as it refers to temporary import operations documented under the regime of Decree 1554/86.
VI.- That, through policy No. 503366, for an amount of $147.000.-, the appellant firm guaranteed the temporary import corresponding to 57.905 meters of polyester fabric (see pages 89 and return of the case).
That being so, as long as the amount demanded by the customs service for taxes through the contested resolution exceeds the guaranteed amount, such claim cannot prosper.
Although the plaintiff has not been aggrieved with respect to the inclusion of the additional fee provided for in Resolution ME No. 72/92 (see liquidation on page 16 of the previous adm.), it should be noted that said fee is applicable and payable, as will be seen. Indeed, since this is an operation carried out within the regime of Resolution ME No. 72/92, and the infringement is considered to be configured by the merchandise, said import -considered to be irregular- is subject to the provisions of art. 15 of the aforementioned resolution, which reads as follows: When the importation for consumption of merchandise entered under this regime is authorized, in addition to the taxes corresponding to this destination in force at the date of registration of the destination for consumption, an additional sum must be paid in the form of import duties, equivalent to THIRTY PERCENT (30%) of the Customs value of the merchandise at the time of registration of the corresponding destination request. It is true that in said regime there is no reference to the case of importation for irregular consumption, as occurs in this case, but rather for regular consumption. However, it is understood that this assumption is included in the terms in which I have been explaining, since it is never possible to consider that there has been legislative improvidence (SCJN doc. de Parquerama SA of 22.2.94) and considering that reasonableness is an unnamed constitutional guarantee, it appears unreasonable to consider that it would have been desired that the offender be in a better situation than that of someone who regularly complies with his tax obligations. That this arises, on the other hand, also -although not in the holding but in the dictum- from the judgment of Our Highest Court issued in Microsistemas SA, file TFN No. 8003-A, recital 6, which the undersigned had to abide by in other precedents, for obvious reasons of procedural economy (see my vote in re Aluplata SA, case No. 9749-A, judgment of this Chamber of 27.5.99).
Furthermore, it should be noted that the additional right constitutes one of the insured items as it appears included in the liquidation carried out in the DIT in view, as well as in the guarantee form (see folder on page 78 of the proceedings and copies of the administrative acts).
VII.- It is true that the plaintiff must in principle respond up to the amount of the insured, that is, the amount provided for in the policy which -in this case- amounts to $147.000 (see page 89 of the administrative acts) as regards the capital. The same, although issued in US dollars, should in my opinion only be converted into pesos without adding what would result from the CER contemplated in decree 214/02, considering that, since it is a guarantee and not an obligation to give sums of money, which is what it guarantees, the amount should be limited to what results from the conversion into pesos. The customs requirement, on the other hand, has been in pesos.
That no update is required on said amount, given the date of issue of the policy in April 1997. This is without prejudice to the interest that accrues until the total and effective payment of the debt.
VIII.- That with regard to the aforementioned interests, I have said that the insurer must be liable for the default of the policyholder and not for its own, unless the latter was prior (see pages 31 and 32 of the summary).
That said interests are applicable and accrue from ten days after 18.10.00, so they begin to run from 2.11.00.
IX.- That the plaintiff seeks to declare the unconstitutionality of art. 972, last part of the CA
That this Court is prohibited from making such a declaration by art. 1164 of the CA
That, moreover, there was no intention on the part of the legislator to improve the penal situation of the person who fails to comply with the regime of the suspensive destination of temporary importation with respect to the person who commits a crime of smuggling, which cannot be the subject of a ruling by this Jurisdictional Body, since it is not competent, a crime for which prison sentences and confiscation and other sanctions contemplated in art. 876 and ccs. of the cited normative body have been foreseen.
With regard to minor smuggling, which is a customs violation and over which this Court has jurisdiction, it should be noted that the sanctions are greater, consisting of a fine of two to ten times the market value of the merchandise involved and the confiscation of the merchandise and the protected legal asset, which is different.
That the last part of art. 972 of the CA, for the purposes of the infringement in question, clarifies that failure to comply with the obligation to re-export within the deadline affects the purpose taken into account by the temporary importation regime, which is reasonable since it is consistent with the provisions of arts. 250 et seq. of the CA.
That the taxable event has occurred due to the aforementioned non-compliance, and it has not been proven either at the customs office or at this Court that the re-exportation had taken place, and it should be added that what is required of the insurer is not a fine, but the taxes in accordance with art. 274 ap. I and concs. of the CA.
X.- That for the reasons stated above, I vote for: 1.- To confirm resolution No. 1933/01, in what was the subject of the appeal, declaring that the interest accrues from 2.11.00. With costs. 2.- That the plaintiff pay the remaining balance as an action fee -law 22.610 and amendments- within five days, under penalty of a debt note being issued by the General Secretariat of Customs Affairs. I SO VOTE.
Dr. Catalina García Vizcaíno said:
I) That I substantially agree with the preceding vote, with the exceptions of the following points.
II) Regarding the calculation of interest, I maintain that it should be computed in accordance with the terms of art. 794 of the CA, from the expiration of the ten-day period counted from the date on which the insurer was notified of the tax settlement (in this case, such notification occurred on 18/10/00; see pages 31/vta. of the adm. antecedents), regardless of the date on which the importer was notified. I clarify that in this case, the Policyholder was notified on the same day (18/10/00; see pages 32/vta. of the adm. antecedents).
I base this difference of opinion on the autonomy of tax law, which means that the Civil Code is not necessarily applicable in a supplementary manner with regard to the guarantee provided in accordance with the regime of the Customs Code, in accordance with the specific regulations contained therein, e.g. in its arts. 786 and 794.
Thus, the Supreme Court of Justice of the Nation held that the supplementary nature of the Civil Code does not apply when the literal meaning of the tax regulations excludes civil principles or these are not adequate to elucidate tax problems (doctrine of Fallos, 249:256) (Tacconi y Cía. SA, of 3/8/89; Fallos, 312:1241).
That, therefore, the application of the Civil Code in this matter is exceptional, so that e.g., the accrual of interest with respect to the insurer differs from that with respect to the insured (see arts. 786 and 794 of the CA), the interest rates provided for in art. 791 of the CA are also different from those applied in the civil sphere, there are concepts by which the importer may be obligated (additional rights) without obligation on the part of the insurer, etc.
That, however, in view of the autonomy of tax law, it is not appropriate to apply the Civil Code in this case, but rather the provisions of arts. 786 and 794 of the CA.
That, consistent with this position, I have maintained that the eventual opening of a contest and even the eventual bankruptcy of the importer is not an obstacle to the calculation of the interest with respect to the insurer, given that I have repeatedly pointed out that the interest that can be computed for the latter is that due for its own default, and not for that of its insured (conf. arts. 786 and 794 of the CA), this obligation being of public law (tax law), and not of private law.
That, in effect, the undersigned has said, among others, in La Meridional Cía. de Seguros SA dated 23/5/97, Banco Sudameris dated 31/8/99, that although the plaintiff is jointly liable for the obligations of the guaranteed party, in this regard the provisions of art. 786 of the CA, stating that 'once the taxes have been settled, the customs service must notify such settlement to the debtor, guarantor or person responsible for the tax obligation', and after the 10-day period from this notification has expired, the respective interest and update shall accrue (conf. arts. 794 and 799 of the CA) (in the same sense, the votes of the undersigned in: Aseguradora de Cauciones SA de Seguros, dated 7/4/97; Siglo XXI, dated 17/11/98; Aseguradora de Créditos y Garantías SA, dated 29/4/99) are worth mentioning.
Furthermore, it should be noted that compensatory interest constitutes accessory obligations whose budget is not the fact that generates the tax obligation, but the delay (conf. Jarach, Dino. Public Finance and Tax Law, pp. 371/72. Cangallo. Buenos Aires. 1989).
(III) It is not disputed that at the time of the configuration of the event generating the tax obligation (importation for consumption) Res. No. 72/92 was in force, a rule that was also applied to establish the elements of that obligation (in what is of interest here to establish the object, that is, the sum of money that the plaintiff must pay in the form of taxes). Therefore, it does not seem doubtful that art. 15 of Res. No. 72/92 applies, which specifies the rates to arrive at the quantum debeatur. It is worth remembering that art. 15 prescribes that: When the importation for consumption of merchandise entered under this regime is authorized, in addition to the taxes corresponding to this destination in force on the date of registration of the destination for consumption, an additional sum must be paid in the form of import duties, equivalent to THIRTY PERCENT (30%) of the Customs value of the merchandise at the time of registration of the corresponding destination request. (The underlining is from this document).
As regards the tax and not criminal nature of the aforementioned additional matter, this Court has had the opportunity to rule in proceedings entitled Kursaal SA, judgment of 23/11/95.
That, on the other hand, in the terms of art. 1164 of the CA this Court cannot rule on the claim of unconstitutionality of MEYOSP Resolution 72/92.
In addition, in this case, the plaintiff expressly guaranteed the additional right of 30% (see DIT 3370-6/97 and the guarantee control form that appears in the container envelope on page 78 of the proceedings), which is why it cannot be used against its own actions.
Furthermore, it should be noted that MEYOSP Resolution 72/92 implemented a temporary import regime for industrial improvement, which the appellant voluntarily accepted, preventing its subsequent challenge, since it cannot be used against its own actions. This regime was established as an incentive for exports and, therefore, to contribute to the increase in productive activity and the improvement of the employment level, enabling the supply of goods to foreign markets under competitive conditions, either by improving quality or by mitigating the impact of higher costs in the production process (see the reasoning for its Consideration).
That, consequently, it was foreseen that the failure to re-export the inputs introduced by this regime would be subject to an additional duty of 30% of their customs value. It is reasonable to maintain that this additional duty applies to both regular and irregular imports (unless the customs order the confiscation of the inputs), since the fact that the customs does not decree the confiscation of the introduced goods as regulated by art. 970 ap. 2 of the CA, undoubtedly implies that it authorized the importation for irregular consumption in the terms of art. 15 of MEYOSP Resolution 72/92.
That this additional right is intended to meet the objectives of increasing exports and improving the occupational level referred to in the grounds of the aforementioned Resolution. So much so that art. 16 of this Resolution provides that if upon exporting the temporarily introduced merchandise the industrial improvement provided for has not been fulfilled (…), the exporter must pay an export duty of twenty percent (20%) of the taxable value defined by art. 735 and related articles of the Customs Code.
That such a rule applies even to regular exports, from which it can be inferred that additional duties are levied on imports for consumption or exports for consumption of goods as long as the industrial improvement and subsequent export, to which importers are obliged within the regime in question, have not been complied with.
That, consequently, this additional right must be included in the calculation of taxes.
(IV) That although the guarantee was issued in US dollars, the Reference Stabilization Coefficient should not be applied in this regard, since at the time when the taxable event that gave rise to the guarantee obligation of the plaintiff here occurred (25/4/98; see date of commission of the infraction that is the basis for the tax obligation on page 45 of the administrative antecedents), Law 23.928 on convertibility had not yet been amended. Note that Law 23.928 was amended by Law 25.561, which was published in the Official Gazette on 7/1/02.
That a contrary solution would mean contravening the principle of legality inherent in all tax obligations, even those relating to guarantors.
Furthermore, it should be noted, as I noted in my vote in Aseguradora de Créditos y Garantías SA, dated 20/6/03, that the tax debts were converted into pesos at the time when the events generating the tax obligation occurred prior to decree 214/02, according to arts. 638, paragraph e) and 639 of the CA, when the conversion of the foreign currency provided for in the latter rule took place.
That no obligation in US dollars that would make arts. 1° and 8° of dec. 214/02 applicable, subsisted from that moment on, which is why the Reference Stabilization Coefficient provided for in this decree is inappropriate in this case.
That, in summary, on the date of configuration of the event generating the tax obligation (25/4/98), it was converted to pesos at a rate of one US dollar per peso (see art. 639 of the CA), for which reason the conversion provided for in decree 214/02 could not be carried out nor, consequently, is the aforementioned Reference Stabilization Coefficient applicable.
V) Lastly, this Court cannot examine the claim of unconstitutionality of art. 972 of the CA because it is prohibited by art. 1164 of the CA.
That, moreover, the question relating to sanctions constitutes a matter of criminal policy which cannot be judged, except in the case of unreasonableness.
That's how I vote.-
Pursuant to the foregoing vote, IT IS RESOLVED:
1.- To confirm resolution No. 1933/01, in what was the subject of the appeal, declaring that the interest accrues from 2.11.00. With costs.
2.- The plaintiff shall pay the remaining balance as an action fee - Law 22.610 and amendments - within five days, under penalty of a debt note being issued by the General Secretariat of Customs Affairs.
Register, notify, promptly return and archive the administrative records.
This document is signed by Dr. Winkler and Dr. García Vizcaíno as Dr. Krause Murguiondo is on leave (art. 1162 of the CA).
