Importation is the act by which merchandise is brought into the customs territory, and the person carrying out said operation is the subject called “importer”, in accordance with the relevant regulations and also considering that the operation has been recorded under the importer's own name; regardless of whether he then disposes or has previously disposed of selling said merchandise to a third party.
Clearly, an importer may bring goods into the customs territory for use or for commercialization. For this reason, the import operation is different from the commercial operation that may have given rise to the intention to exercise the action of carrying out an import as mandated by the Customs Code.
AFIP Resolution 4031/96 repealed the third-party import regime, although it turns out to be a normative measure of a lower nature than the Customs Code itself, within which there is no such provision; that is, there is no indication in the Customs Code from which it can be inferred that an import on behalf of third parties would be prohibited. In addition, a constitutional consideration comes into play, even more rigorously since the 1994 reform that expressly prohibits the Executive Branch from legislating on tax matters; therefore, delegations in such discipline and prohibitions of this kind that do not emanate from Congress are unconstitutional.
In light of the above and the order of priority of our legal system, it has been wrongly interpreted that the repeal of the resolution would also imply that all types of importation on behalf of and by order of third parties should be considered illegal, constituting the crime of smuggling. On the other hand, this crime is not constituted solely by the fact that merchandise has been brought into the country on behalf of and at the order of a third party; this is not a sufficient element, since the crime consists of a maneuver of trickery and deception that aims to prevent or hinder customs control, so that a single objective element is not sufficient. There are cases in which a national buyer makes contact with a foreign supplier, who tells him that he is unable to sell directly because he has an exclusivity or representation contract with a local subject. In other words, the local buyer will then be the final recipient of the merchandise imported by the representative of the foreign supplier, acting in this case as the importer. As long as the third party records his position before the DGI and there is no undue tax benefit, the operation cannot constitute an illicit act on its own. As long as the importer receives the merchandise and is subject to the respective tax obligations, issuing an invoice for its immediate sale to the recipient, even if the recipient's address is recorded in the transaction, it is not enough to constitute the crime of smuggling; even less so when there is no undue tax benefit as a result of the transaction.
In addition, the current international marketing scheme, aligned with a globalization that leads to the cultural preaching of citizens in the interest and search for goods from any part of the world, prevents or restricts representatives or importers from being able to satisfy these demands and import them.
Neither the Customs Code, nor the National Constitution, nor the international agreements that govern foreign trade, prevent national companies from acquiring merchandise abroad, importing it and then selling it to the universe of subjects that demand such merchandise, be it one or several subjects..
Consequently, even when the resolution regulating the import scheme on account and order is not in force, it cannot be argued in any way that an importer cannot acquire merchandise from abroad, import it and after entering the customs territory, after verification and release, sell it to whoever is interested, even when such need or intention to obtain such goods may have been present prior to the importer's purchase being made abroad and its subsequent importation.
Therefore, the so-called “prohibition” for an import on behalf of and by order of a third party to be documented does not exist. Nor does it constitute a crime. Especially when it comes to a subject that complies with all the rites mandated by the international framework for the sale of goods, holds the character of importer, reports the import to the customs service, the foreign exporter issues the invoice and document of ownership of the good that represents the bill of lading and of course pays the taxes that correspond to the regime to be applied. In this scheme, the importer is the owner of the merchandise, able to enter it into the market and once the release by customs is confirmed, he holds all the rights to make the sale to a third party, a sale that cannot be questioned, if it complies with all the guidelines established by the norm, issuing the corresponding invoice and declaring it in the accounting records plus his tax returns. Even when that interest of the purchaser of the final merchandise, had it before the importer made the purchase and/or import operation. Otherwise, the crime of smuggling would be aligned with a citizen's desire to obtain merchandise, an aspect that seems absurd.
In this sense, the fact that the regulation of Res. 4031/96 has been repealed does not make it impossible to “acquire merchandise”, “import it” and “sell it to a third party” who may even have claimed his interest in it prior to its delivery to the market.
Therefore, as long as an import system is not used to circumvent in order to obtain a different tax treatment than that which would have corresponded, any subject called an importer in the terms of the Customs Code, can acquire merchandise, import it and sell it to third parties, by prior order or not.
Otherwise, guarantees inherent to the National Constitution would be restricted, such as the right to commercialize, to exercise the import activity and to sell the products that may arise from such action. Thus, the crime of smuggling is not constituted by this type of activity, which is, by the way, totally lawful; but rather, the illicit act prescribed by art. 863, 864 and 865 of the Customs Code will be present when the conduct is intended to circumvent customs control, which may be expressed in any action of importing goods, whether for personal use or with the interest of selling to third parties.
By: Dr. Guillermo Sueldo, Member of the Customs Law and International Trade Institute of the Argentine Association of Constitutional Justice
Aduana News is the first Argentine customs newspaper to launch its digital version. With 20 years of experience, its publications and initiatives aim to provide the most relevant knowledge on customs issues in order to contribute to safe trade in the region.
