In Buenos Aires on the 29th day of the month of November 2004, the members of Chamber E, Drs. Catalina García Vizcaíno and Ms. Paula Winkler, met with the President of the member appointed in the first place, in order to resolve the case entitled: La Economía Comercial SA de Seguros Generales v. DGA s/ Appeal; file No. 19.427-A.
Dr. Catalina García Vizcaíno said:
I) That at fs. 6/11 round. Economía Comercial SA, through its representative, files an appeal against PLA Resolution No. 364/04, issued on 3/3/04, in file No. 604.835/98, insofar as it requires it to pay $1.778,13 in taxes in its capacity as guarantor for DIT 5510-0/97 in alleged violation. He states that in this case he has not issued a surety bond in favor of the AFIP-DGA and that this would be corroborated in the file in which there would be no surety bond whatsoever. Citation of case law. It invokes the annual prescription from the time the accident occurred until the date of the appealed Resolution, pursuant to arts. 58 and 59 of the Insurance Law. In the event that it continues to be considered a guarantor, despite the nonexistence of a policy and the statute of limitations on the action, it states that this constitutes a case of total and absolute exclusion of the coverage provided for by the alleged customs guarantee insurance policy, according to art. 70 of Law No. 17418, from which it would follow that the insurer will not compensate if the policyholder or the beneficiary has closed the claim with serious negligence on their part, a situation that would occur in this case. Citation of case law. It highlights that the importer has acted with fault and/or deceit to the detriment of the insurer, since it did not comply with the temporary import regime, did not respond to the summons issued to express its opinion regarding the re-exportation of the merchandise, nor did it appear or present any defense in the summary initiated against it. He argues that the importer's conduct violated the insurer's good faith, making it appropriate for customs to investigate the facts, which never occurred. It indicates that the appealed resolution does not address the Administration's inactivity with respect to the verification of re-exportation. He argues that the Administrator believes that proof of the re-exportation of the merchandise should have been offered by the insurer, when in fact the one who possesses said proof is the policyholder. He warns that the customs did not verify whether or not the re-exportation took place and initiated the respective investigation solely due to the fact that the deadline had expired. It points out that the summary procedure initiated is flawed, since the customs service lacks the duly accredited evidence proving that the importer did not proceed with the re-exportation of the merchandise, because said evidence was not requested from the importing firm. Explains that the charge of alleged violation of art. 970 lacks factual support, since no legal charge can be formulated on certain grounds, as there is no documented evidence of the re-exportation of the goods; thus, the security guarantee is ineffective. He believes that these irregularities constitute an insult that affects the right to a defense in court and due process. He argues that the sanction for a formal violation should be a fine (lower than the one applied), but not the application of taxes, since there would be no intention to market the merchandise in the country. Requests that the last part of art. be declared unconstitutional. 972 of the CA, for contradicting the first part of the aforementioned article, resulting in - in his opinion - arbitrary and in violation of his right to property. It also requests that arts. be declared unconstitutional. 267, 274 and 275 of the CA. Alternatively, it challenges the liquidation, by refuting the application of the additional right. Reserves the federal case. He requests that the appealed decision be revoked, with costs.
II) That on pages 29/37 the fiscal representation answers the transfer that was duly conferred to it. It refers to the purpose of the surety bond. It states that the burden of proof of compliance with the obligations inherent to the temporary import regime falls on the importer, it is she who must demonstrate in a reliable manner and with the pertinent customs documentation that she has fully complied with her obligations within the legal term granted. It refers to the fact that the guarantee by the insurance company in favor of customs covers all the taxes that tax the import for consumption. It notes, referring to the opposition of the exception of prescription by the plaintiff, that it is governed by the Customs Code, which as can be seen does not contain an annual prescription for the specific case. It understands that the claim about the alleged unconstitutionality of art. 972 of the CA is totally unrelated to the issue, erroneous and absurd. Opposes the claim of prescription made by the plaintiff. Requests that the appealed customs decision be confirmed, with costs.
III) That on pages 38 the undersigned dictates a measure for better provision, which is produced on pages 44/49.
IV) That on fs. 1 of file EAAA-1998-604.835 a complaint is filed for alleged infringement of art. 970 C .A. in relation to DIT No. 5510-0/97, a copy of which appears on fs. 6/8 and its container envelope on fs. 88. On fs. 3/5 the tax settlements appear. On fs. 69 the instruction of the summary is ordered. On fs. 93 the summary instructed to Murillo 666 SA is seen and the summons to Economía Comercial in its capacity as guarantor. On fs. 94/101 the Insurance Company appears and on fs. 116/169 the importer does so. On fs. 163 the files are sent to the Customs Data Processing Section in order to send the lists of operations belonging to Murillo 666 SA. At fs. 166/168 the requested lists are sent. At fs. 171 the cover page that gives rise to File ADGA-2000-423.757 appears. At fs. 172 it is reported that the requested files do not have the corresponding technical evaluation. At fs. 173 the Secretary of Action No. 1 deems it pertinent to suspend the processing of these proceedings until the National Institute of Technology issues its opinion. At fs. 175 on 25/10/03 the sending of the definitive Typification Certificate corresponding to the firm Murillo 666 SA is requested, which is reiterated at fs. 176/183. At fs. 184 The Technical Procedures Section reports on 1/3/04 that it cannot issue a report on the discharge of the DIT in question because it does not have the definitive classification certificates related to the operations in question. On pages 187/88, Resolution No. 364 dated 3/3/04 is issued, appealed in this case.
V) That with regard to the alleged violation of the right to defense alleged on pages 9/vta. of the proceedings, it should be noted that it is Supreme Court doctrine that when the restriction of defense in court occurs in the procedure that is being carried out in an administrative setting, the effective violation of art. 18 of the CN does not occur as long as there is the possibility of correcting this restriction at a later jurisdictional stage (Fallos, 205:549; 247:52 consid. 1º.; 267:393 consid. 12 and others), because the requirement of defense in court is satisfied by offering the possibility of appearing before a jurisdictional body in search of justice (Fallos, 205:549, consid. 5º and its citations) -TFN, Sala E, among others, Rivera, Alcides of 27/5/86, López Arispe, José, of 5/9/88-.
That in this instance the appellant has had ample opportunities to produce evidence, with the consequent correction of any irregularity that may have occurred at the customs office.
That, likewise, it is doctrine of the Supreme Court of Justice of the Nation that the challenge of arbitrariness is not applicable to a well-founded resolution or judgment, regardless of its correctness or error (Fallos, 243:560; 246:266; 248:584; 249:549), except in certain cases, such as, for example, the contradiction between the recitals and the operative part (cfr., among others, Scicolone, Manuel S. v. Prantera, Omar Alberto, et al., 26/11/91). It has also said that since the contested resolution is sufficiently well-founded, the express mention of all of the appellant's arguments is not required (among others, Fallos, 251:39). It should also be remembered that judges are not obliged to consider all the evidence produced in the case, but only those that they consider conducive to its correct solution and that, by means of the federal remedy, there should be no attempt to convert this Court into just another ordinary instance (Rulings, 274:35; 276:132 and 248; 278:135, among many others) (Rulings, 301:676).
I am propitious that in this respect no costs be imposed on the appellant, given that the allegations of procedural defects were made in an integrative manner with the merits.
VI) That by the DIT 5510-0/97, with expiration extended to 5/7/99, it is stated that La Economía Comercial granted the policy N° 504.272 (guarantee control N° 747.969) for dollars 27.500, taking into account the tax liquidation of dollars 27.493 expressed by the aforementioned guarantee control N° 27.469, coinciding with the tax liquidation of the aforementioned DIT (see container on fs. 88 of the ant adm.)
That, however, when the measure to better provide provided on page 38 of the file was produced, the Collection Control Section, by Note No. 5927/04 (SE COREG) reports that according to the screen print of the MAINSERVER system query, guarantee 747969 policy 504272, corresponding to temporary import 5510-0/97, is in DELIVERED status on 12/07/01 (page 48 of the file), in accordance with the data arising from page 47 of the file.
That this makes applicable the criterion upheld by the subscriber in Banco Francés, dated 13/3/01 (file No. 12493-A), in that since the policy that is the subject of the litigation has been delivered, the appellant should not be considered a debtor of the charge made for taxes.
That, however, taking into account that the resolution appealed in this case considered that the total re-exportation of the merchandise documented by DIT 5510-0/97 had not been accredited (see pages 187/188 of the previous administrative documents), the reason for the delivery of the policy in question does not seem to be explained, for which reason this circumstance must be brought to the attention of the General Director of Customs for the purposes he deems appropriate.
That it is not appropriate to impose costs on the DGA, given that the revocation of the tax assessment made to the appellant is based on the powers conferred by art. 1143 of the CA.
VII) That the manner in which this motion is being voted on renders unnecessary consideration of the rest of the issues raised.
Therefore, I vote for:
1°) Revoke the tax charge formulated in art. 3 of Resolution No. 364 of the Customs Legal Procedures Department only with respect to LA ECONOMíA COMERCIAL SA DE SEGUROS GENERALES. Without costs to the DGA.
2nd) To inform the Director General of Customs of the circumstances set out in point VI) of this document, by means of an official document to be issued by the Secretary of the Office of the 15th nomination.
Dr. Winkler said:
I agree with the preceding vote.
In accordance with the above agreement, it is unanimously RESOLVED:
1°) Revoke the tax charge formulated in art. 3 of Resolution No. 364 of the Customs Legal Procedures Department only with respect to LA ECONOMíA COMERCIAL SA DE SEGUROS GENERALES. Without costs to the DGA.
2nd) To inform the Director General of Customs of the circumstances set out in point VI) of this document, by means of an official document to be issued by the Secretary of the Office of the 15th nomination.
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)
