In Buenos Aires on the 11th day of the month of November 2003, the members of Chamber E, Drs. Catalina García Vizcaíno and Ms. Paula Winkler, met with the last appointed Member in the Chair, in order to resolve the case entitled: "La Economía Comercial SA de Seguros Generales v. DGA s/ Appeal"; file No. 18.233-A.
Dr. Catalina García Vizcaíno said:
I) That on pages 8/11, La Economía Comercial SA, through its representative, files an appeal against PLA Resolution No. 1319/03, issued on 7/4/03, by the 2nd Head of the Customs Legal Procedures Department, in file No. 600.417/00. It states that in the specific case at hand it has not issued a surety bond in favor of the AFIP-DGA. It indicates that there is no written evidence in the case file to hold it liable. It cites case law. It raises an exception of prescription on the grounds that the "one year" period to demand payment for the claim has elapsed in excess of 22/3/99 (date of the infraction) to 21/6/01 when the claim was made. He points out that the Customs Office initiated the investigation without actually verifying the re-exportation, but only because the deadline had expired. He raises the unconstitutionality of Article 972. Alternatively, he challenges the liquidation. He reserves the right to the federal case. He requests that the contested resolution be revoked in this regard, with costs.
II) That at pages 24/33 the fiscal representation answers the transfer that was duly conferred to it. It makes a brief summary of the actions and the grievances expressed by the plaintiff. It emphasizes that the burden of proof of compliance with the obligations inherent to the temporary importation regime falls on the importer who must demonstrate that it has fully complied with its obligations within the legal period granted. It affirms that there is a guarantee established by the plaintiff whose identification number would be 98 073 002697 K, Guarantee Policy No. 508040 which would be active, according to the proceedings at pages 49/50 of the ant. adm. It indicates that the guarantee granted by the appellant in favor of the Customs covers all the taxes that tax the importation for consumption. It maintains that the insurer must respond with the same scope and to the same extent as the tax obligation of the policyholder. He points out that the DIT envelope attached to the proceedings would indicate that the corresponding sum was guaranteed as an additional right, so the insurer would also be responsible for the sum corresponding to said concept. He cites case law. As regards the liquidation, he points out that the plaintiff does not state what the error would be specifically and what the correct liquidation would be. He considers that the liquidation guidelines established by the applicable regulations and the declared values have been followed. He considers that the prescription of the action has not occurred, which would operate after a period of five years starting to run from January 1 of the year following the date on which the taxable event occurred. He requests that the appealed judgment be confirmed, with costs.
III) That at fs. 34 the undersigned orders to deal with the prescription jointly with the merits of the case, and dictates a measure to better provide which is produced at fs. 38/44. At fs. 48 the proceedings are moved to judgment.
IV) That on page 2 of file EAAA-2000-600417 there is DI No. 98 073 IT14 000543-U. On pages 7/21 the taxes and fines are settled. On pages 23 the complaint No. 04/2000 is formulated “for non-compliance with re-exportation penalized by art. 970 of the CA†. On pages 40 the summary instruction is arranged. On pages 49 the “consultation of a global or unitary guarantee†is listed which indicates “La Economía Comercial SA de Seguros Generales†as the insurer. On pages 51 the insurer is cited that answers the discharge on pages 57/59. On pages 65/67 Resolution No. 1319/03 is issued, appealed in this case.
V) That the appellant does not base on any legal provision the claim of prescription of "one year" to which it refers on pages 9 of the proceedings.
That art. 803 of the CA provides that the prescription of the action of the Treasury to collect taxes governed by customs legislation is five years, and in this case it began to run on 1/1/00, as regulated by art. 804 of the CA, since the illicit act occurred on 22/3/99, a date that the appellant recognizes on page 9 of the proceedings.
That, in addition, the interruption cause of art. 806 inc. a) of the CA ("notification of the customs tax liquidation") occurred on 21/6/01 (pages 51 and 60/vta. of the adm. antecedents).
That, on the other hand, since 24/7/00 when the opening of the summary was ordered (page 40 of the administrative antecedents) the prescription was suspended according to art. 806 inc. a) of the CA until a decision is made that enables the exercise of the action to collect the tax when said exercise is subordinated to that decision.
That, consequently, it can be concluded that the statute of limitations has not yet operated, for which reason this claim must be rejected, with costs.
VI) That art. 970 of the CA in its section 1) provides that: "Anyone who fails to comply with the obligations assumed as a result of the granting of the temporary import or temporary export regime, as the case may be, shall be sanctioned with a fine of one to five times the amount of the taxes levied on the import for consumption or the export for consumption, as the case may be, of the infringing merchandise, a fine that may not be less than thirty percent of the customs value of the merchandise..."
That the offence attributed by customs is not purely formal, and the existence or not of fiscal damage is not relevant for this purpose, since the benefit of temporary importation is provided that the merchandise is re-exported on time (art. 250 of the CA), or its importation is eventually converted into a definitive one, for which the relevant request must be made within the time limits provided for in art. 271 of the CA. If an extension is requested, the requirements and terms of art. 266 of the CA must be met.
It is not disputed that upon expiration of the destination of the temporary import under consideration (22/3/99) the committed re-exportation was not fulfilled. Consequently, the loss insured by policy No. 508.040 (guarantee 2697-K) occurred, a certified copy of which appears on page 42/vta..
That the burden of proof regarding compliance with temporary importation falls on the person invoking it, and the generic statements contained on pages 9 back are not sufficient.
That the appellant is not right when it states that "it has not issued any policy in favor of the AFIP-DGA, which is why there is no coverage in this file" and that "it corroborates what has been stated that in the file to which I refer there is no surety bond issued by my client" (fs. 8 back), since although a certified copy of policy No. 508.040 (policy No. 2697-K) had not been added to the administrative records, customs included it on pages 42/back of these proceedings as a result of the measure to better provide for the undersigned on pages 34, said policy being "in force" as shown on pages 49/50 of the administrative records.
That, in summary, on fs. 42/vta. there is a certified copy of policy No. 508.040 (policy No. 2697-K), from which it appears that the appellant here insured the obligations of the importer KOLOA SA for invoice No. 128.815 dated 20/3/98 - Air Waybill No. 044-3372 6615 dated 20/3/98 - Origin: USA. These specifications coincide with the documentation contained in the container envelope of the aforementioned DI on fs. 2 of the adm. ant.
That, having seen the certified copy of the aforementioned policy, the appellant observed nothing.
In addition, in accordance with the terms of art. 377 of the CPCCN - of supplementary application in the matter in accordance with art. 1174 of the CA - in this instance the plaintiff did not offer any evidence with which to seek to invalidate the assertions or validity of the aforementioned policy, nor did she report having filed a criminal complaint for falsification.
Furthermore, it should be noted that policy No. 508.040 does not require that the charge be final in order to request payment from the Insurer, without prejudice to the compensation actions that the latter may bring against the other parties responsible for the tax obligation. See also the powers of the DGA to require the insurer to pay the charge resulting from art. 3 of the General Conditions of the Policy on pages 42/vta. of the proceedings.
That the referred policy does not provide for any benefit of exclusion, for which reason the DGA could validly notify the insurer.
VII) That the claim regarding the additional duty (in this case, 24%) on fs. 10 back cannot prosper, since it was settled at the import office and the sum of 327.960,41 settled as guaranteed at that office (which includes the aforementioned additional duty) is consistent with the amount guaranteed by policy 508.040 (US$ 357.000).
That the amount requested by the appealed resolution ($327.960,44) is within the monetary limit of the policy.
It is worth reiterating that the re-exportation of the merchandise was not demonstrated, for which reason it is considered imported for consumption, having been configured as the event generating the tax obligation on 22/3/99 in accordance with the terms of arts. 274, 638 inc. e) and related articles of the CA.
VIII) That the grievance relating to the liquidation, formulated on page 10, cannot prosper either, since it does not make a specific and reasoned criticism of it, and its generic challenge is not sufficient.
Therefore, I vote for:
1°) Reject the exception of prescription raised by the plaintiff, with costs.
2nd) Confirm PLA Resolution No. 1319/03 of the 2nd Head of the Customs Legal Procedures Department, with costs.
3) The plaintiff is hereby ordered to pay the remaining balance within five days for the fee for proceedings provided for in Law 22.610 as amended by Law 23.871, under penalty of the General Secretariat of Customs Affairs issuing a certificate of debt.
Dr. Winkler said:
I agree with the preceding vote.
In accordance with the above agreement, it is unanimously RESOLVED:
1°) Reject the exception of prescription raised by the plaintiff, with costs.
2nd) Confirm PLA Resolution No. 1319/03 of the 2nd Head of the Customs Legal Procedures Department, with costs.
3) The plaintiff is hereby ordered to pay the remaining balance within five days for the fee for proceedings provided for in Law 22.610 as amended by Law 23.871, under penalty of the General Secretariat of Customs Affairs issuing a certificate of debt.
Register, notify, promptly return and archive the administrative records.
The following sign this document: Dr. García Vizcaíno and Dr. Winkler, as the position of Member of the 14th Nomination is vacant. (Conf. art. 1162 of the CA)
