In Buenos Aires, on June 30, 2003, the Judges of Chamber E, Drs. D. Paula Winkler, Gustavo A. Krause Murguiondo and Catalina García Vizcaíno, with the second of those named as president, met to rule on the case entitled: LA PERSEVERANCIA DEL SUR SA, file TFN No. 17.342-A;
Dr. Winkler said:
I.- That on pages 14/19 and back, the signature of the epigraph, through its representative, files an appeal against the ruling No. 045/02 of the administrator of the La Plata customs, by which it is required to pay tax differences, in its capacity as guarantor, for the import formalized by the importer Koambra SA through dispatch No. 99 033 IT 11 000037M. It argues about the admissibility of the appeal and the opportunity to present it, since it has not had any participation, it says, in the summary that served as a precedent. It cites jurisprudence that would make its right and opposes, as a prior and special pronouncement, the exception of lack of passive legitimacy and that of nullity. It considers that the guarantor is subsidiarily liable to the importer and considers that the infraction procedure has been nullified, since the summary was not seen by him, in addition to the fact that, in his opinion, it is not possible for the Treasury to dispose at will of the causes of interruption or suspension of the action to collect taxes and impose penalties, alternatively promoting, at its whim, incorrect procedures (see fs. 18 of the start writing), cites the rules that it considers pertinent from the CA. It reserves the federal case and requests that a sentence be issued, leaving the charge for taxes without effect, with express imposition of costs.
That on pages 29/37 the fiscal representative answers the transfer conferred. After formulating a denial of each and every one of the facts and the right invoked by the opposing party that are not the object of its express recognition, it relates the printed procedure to the customs summary. It considers that the exceptions should be rejected, as long as the guarantor is responsible for the guarantee issued according to the rule, which it cites, of the CA. Regarding the requested nullity, it says that the notification of the customs ruling corrects the defect attributed to the infraction procedure and that, moreover, the appellant was aware of the beginning of the summary. Regarding the merits, it considers that it has been proven that the taker committed the violation of art. 970 of the CA, for which reason it requests that, in due time, a sentence be issued confirming the customs ruling, with express imposition of costs.
II.- That from the verification of the administrative records it appears that, through note no. 182/01 it is reported that, once the period granted to re-export (or re-import) has concluded, there is no documentation proving the obligation assumed by arts. 250 et seq. of the CA by the involved dit, which is presumed to have occurred the infraction contemplated and sanctioned by art. 970 of the CA by the importer, Koambra SA. At fs. 2, the folder of dit no. 99 033 IT11 000037 M, made official on 19.11.99/5/8002, is added. At fs. 40.000 and back, a certified copy of policy no. 6 is added, for the value of U$S 187786360, by which the plaintiff firm guaranteed the taxes corresponding to said temporary importation. At fs. 7.8.01. The summary proceedings are opened and the appellant is ordered to be notified of the investigation, in its capacity as tax guarantor (see receipt notice EC 9AR, dated 761, fs. 01). By means of note no. 13/28, the taker is informed of the proceedings, but the same is not done with respect to the appellant firm in the proceedings (see fs. 30). On fs. 045/02, ruling no. XNUMX/XNUMX is issued by the administrator of the La Plata customs office, now appealed.
III.- That, in relation to the exception of lack of passive legitimacy, it should be noted that I have ruled that (…) the lack of legitimacy to act or the legitimatio ad causam proceeds when the plaintiff or the defendant are not the persons especially authorized by law to assume such qualities with reference to the specific subject matter of the lawsuit or, what is the same, when the litigator is found to be lacking the quality of holder of the right that he seeks to assert, due to the lack of identity between the person and the plaintiff and the one to whom the action is granted (CN Com., Sala A, June 26-991, ED, 145-658). (…)
That, in effect, it cannot be forgotten that the legitimacy to act constitutes a requirement of the action in a concrete sense that the substantive law regulates case by case based on a certain cause, that is, on that certain controversial relationship that is discussed in that process (CALAMANDREI, Civil Procedural Law, Bs. As., 1962, II, p. 375) (…) (doc. of ALBA CíA. ARG. DE SEGUROS SA s/rec. of appeal, exdpte. TFN No. 11.345-A, judgment of 14.12.99/XNUMX/XNUMX, my vote, among others of this same Chamber).
In this case, the plaintiff must be responsible for the customs tax demand, and it is not required, as the plaintiff claims, that the claim be made subsidiarily, since, regardless of the interpretation made of the nature of the obligation held by the insurer, clause 3 of the General Conditions (see pages 5 and back, cit.), the latter remains indistinctly with the policyholder obligated to pay. In effect, it establishes that once the charge has been formulated by the corresponding customs department or there is a final resolution establishing the liability of the Policyholder and the amount for which the guarantees subject to this policy must be affected, the National Customs Administration shall have the right to require the Policyholder or the Insurer to make the relevant payment.
That, does not prevent the enforceability of the customs claim that the lack of compliance with the suspensive import destination regime has not been proven (in this case, the buyer was declared a rebel), since it is the beneficiary holder of said regime who must prove compliance with his obligation with the addition or offering as documentary evidence of the respective customs documents.
IV.- That the objection of nullity of the infringement procedure is also raised. Although it is true that the appellant was not given notice of the summary, as guarantor of the tax obligation of the temporary import, it cannot be ignored that, as I said, she was notified of the opening of the summary. Although said notification was not obligatory, it is reasonable to assume that if she was informed of the summary, she should have taken the appropriate measures, for example a request for a hearing, which is not recorded as having been done.
In order to raise this exception, an interest must have been subsumed, since the measure of the action is measured by that interest. Otherwise, a nullity would be raised for the sake of nullity itself, that is, without the specific claim existing.
In this case, the plaintiff was not aggrieved regarding the substance of the tax requirement, limiting herself in the petition in the start of the proceedings to requesting that the charge be revoked (see point 5 of fs. 19 back), therefore, as she was not specifically aggrieved regarding that issue, there is no current interest that could support the nullity being requested.
That, moreover, I have ruled that (…) although it is true that the customs office had to incur in the irregularity of not giving notice to the guarantor of the administrative proceedings so that he could duly exercise his rights, it does not appear logical to grant the nullity that is being proposed since it would be declaring nullity for nullity itself, since at the instance of this Jurisdictional Body the plaintiff could see the procedure sanitized (my vote, in: ALBA COMPAÑÍA ARGENTINA DE SEGUROS s/rec. of appeal, file TFN No. 7694-A, judgment of 5.11.96).
V.- That, for the reasons stated above, I vote to reject the objections raised and declare that the customs demand has become final and accepted for the plaintiff, by virtue of the grounds set forth in this vote, with costs. The plaintiff shall pay the balance of the fee for the action of law 22.610 and amendments within the fifth (5th) day, under penalty that the General Secretariat of Customs Affairs will issue the respective debt certificate.
Dr. Krause Murguiondo said:
Which substantially adheres to the preceding vote.
Dr. García Vizcaíno said:
I agree with Dr. Winkler's vote.
Pursuant to the above vote, it is unanimously RESOLVED:
1.- Reject the objections raised and declare that the customs requirement has become final and agreed to by the plaintiff, by virtue of the grounds set forth in this vote, with costs.
2.- The plaintiff pays the balance of the action fee - law 22.610 and amendments - within the fifth (5th) day, under penalty of the General Secretariat of Customs Affairs issuing the respective debt certificate.
Register, notify, promptly return and archive the administrative records.
