Four decades after the Customs Code, one of its provisions was subject to divergences when it came to its application, after the Fiscal Warehouses passed into private hands during the 90s, and we are referring to article 1042 of Law 22.415.
This device establishes in its section 1 that “When in the proceedings for infractions, crimes or challenges the complaint is dismissed, the charge is dismissed or the charge is absolved with respect to the imputed illegal act or the challenge of the interested party is upheld, no storage fee will be paid for the merchandise that is in fiscal warehouses affected by such proceedings, from the date of initiation of the procedure until TEN (10) days after the date on which the aforementioned resolution becomes final.”
The drafters of the customs regulations wisely knew how to establish a reasonable benefit in favor of the administered parties, that during the duration of a process for controversies that could lead to the substantiation of a cause, whether due to the effect of tax or illicit treatments, precautionary measures are imposed on them such as the detention of a customs operation and with it, the future of maintaining the cargo for the entire duration of the procedure, they should not have to bear a cost of this kind, when it concludes with a favorable resolution, dismissing such tax charge or demand.
However, the Permit Holders of the Fiscal Warehouses, in their capacity as private entities, did not agree to such regulation in favor of the administered, considering that their private nature imposed the right to retain the merchandise until the amount corresponding to the time that these goods were stored was paid.
The discussion was based on the consideration that the Fiscal Warehouses, when passing into private hands, were not entitled to a “rate”, but rather a simple “price” for the provision of a service.
Nature of service
The aforementioned argument is in conflict with the nature of the service provided, which, although it is the safekeeping of merchandise, is carried out in an area subject to customs control, recognized as a primary customs zone. In other words, such area is the exclusive power of the customs service, not only to exercise all its supervisory functions regarding its essential task of controlling the international traffic of merchandise and thus, over all merchandise, people and means of transport (art. 112 of the CA), but also all customs regulations apply in such area and its Depositaries must comply with them faithfully.
In this sense, the effects of the exemption from payment of storage costs in terms of article 1042 of the Customs Code, are mandatory for each Permit Holder and consequently, in the case of a cargo that was detained and remains in storage during the time in which the development of some proceedings takes place until a decision is made regarding the challenge or infraction, not only must the Bonded Warehouse maintain the conservation of that merchandise, but it must also deliver all the goods without requiring any payment for the time of permanence, in the event of a favorable resolution (dismissal, absolution or withdrawal of the tax claim) to the administrator.
To this, the nature of the service that arises from a specific consideration, in this case storage, must be added, showing that it always ends up having the same purpose, the payment for the safekeeping of goods within the primary customs zone and the difference between whether it is a fee or a price, lies only in who is the recipient of such payment. In this case, the State will receive a service that will have the character of a fee, according to the legal precept that in the case of services provided, it will obtain a payment from the subject benefited by such service; while, if it is a private party, it has the quality of a price. But, in any case, this service is fulfilled in function of a purpose, which is to subject the goods during their stay until the authorization of release to a regime instituted by the Customs Code, which is the provisional import warehouse (art. 198 of the CA), being fulfilled in an area subject to the due exercise of control, for a very broad purpose, of the customs bodies. An aspect that is not modified by the fact that such an area is enabled in favor of a private entity that only has the function of providing a storage service, but always subject to all customs regulations. Among them, clearly the need to maintain the safekeeping of those goods that are being inspected with a need for more time, as a result of a summary subject to review.
Regulatory background
The different regulations that have been issued over time, regarding the authorization and requirements that Fiscal Warehouses must be subject to, have rescued not only that, the Permit Holders must provide their services free of charge to the Administration, having to provide, upon request, a physical storage space in accordance with the guidelines to be established by the General Directorate of Customs, but that by not complying with the provisions of the customs regulations, they will be liable to temporary or definitive revocation of the authorization to operate, depending on the severity of the case, as provided for in the "Disciplinary Procedure" established in Annex VI (IF-2018-00117487-AFIP-DVDAAD#DGADUA) of this (art. 11 and art. 8 Res. 4352/18).
On the other hand, it was expressly established that Permit Holders must have a physical space for the storage of merchandise without a known owner, undeclared or in arrears. Likewise, if merchandise is detained, interdicted or seized related to infraction, criminal or challenge proceedings, the provisions of Article 1042 of the Customs Code 8 10.3. Annex IV Res. 4352/18) will apply.
New regulatory framework
Recently, the publication was published General Resolution No. 5182/22 (April 07, 2022), by which Resolution 4352/18 is modified, with the aim of improving the quality of the customs service and proximity to the administered, as well as implementing the simplification and digitalization of the processes that allow promoting voluntary compliance with obligations and perfecting customs control, different technological, computer and pre-feasibility evaluation requirements were established according to the needs that allow the primary assessment of the project in order to comply with the regulatory framework, as well as operational aspects, among which the location of the property, the type of merchandise to be stored, the estimated quantity of operations, the service needs, the traceability of the logistics chain and the quantity and type of customs operations, the investment plan, the description of the technology to be used for non-intrusive control elements must be individualized.
Regarding the subject matter of this note, Resolution 5182/22 explicitly incorporates the following as point 5 of section VI of Annex I (IF-2018-00117474-AFIP-DVDAAD#DGADUA): If goods are detained, interdicted or seized in connection with infringing, criminal or challenge proceedings, the provisions of Article 1042 of the Customs Code shall apply.
Considerations
In view of this, we advise that the effects of the exemption from payment of storage costs when the conditions indicated in article 1042 of the Customs Code are met, cannot be questioned by the Fiscal Warehouses, Small Squares and/or Terminals that have the character of a primary customs zone. In the event of non-compliance, it will be considered a fault with the consequences that may apply in terms of the obligations assumed by every Permit Holder in relation to the temporary authorization granted by the General Directorate of Customs to only provide the storage service, in an area that is proper to the Customs. They cannot be considered in any way justifications to prevent the exercise of a right that the Law has established in favor of the administered, in the face of the submission of a longer time to the inspection exercised by the customs service under the conditions of a procedure that will depend on its result in order, if applicable, to obtain the release of the merchandise to the place.
Finally, we believe that it would be prudent for the resolutions issued in the procedures for challenge, infringement or crime, when they result in addressing the request of the administrator or issuing a dismissal or acquittal in those proceedings opened for alleged infringement and/or crime, to establish the direct application of article 1042 of the Customs Code.
Guillermo Felipe Coronel is a lawyer specializing in Customs Law. Member of the Institute of Customs Law and International Trade of the Argentine Association of Constitutional Justice
The author is a lawyer and member of the Institute of Customs Law and International Trade of the Argentine Association of Constitutional Justice.
