This situation leads us to reflect -and this has been expressed in numerous rulings of the National Tax Court- on the potential perception of injustice that is presented when condemning -even if only in the tax aspect- the victims of an illicit act. We will dedicate the study topic to this problem, incorporating the new vision given by the Supreme Court of Justice of the Nation in the renowned TEVELAM failure and our position on this matter.-
A review of the applicable regulations
International Land Transport is currently regulated at a regional level by the ATIT Convention (Agreement on International Land Transport), signed under the 1980 ALADI Treaty between the Argentine Republic, the Republic of Bolivia, the Federative Republic of Brazil, the Republic of Chile, the Republic of Paraguay, the Republic of Peru and the Eastern Republic of Uruguay, signed on January 1, 1990, which establishes a legal norm that reflects the general and essential principles for the development of road transport services in the region.
Annex I of the aforementioned agreement establishes the international customs transit regime, under which goods subject to customs control are those transported from the jurisdiction of a customs area located in one country to the jurisdiction of another customs area located in another country, in a single transport operation that crosses one or more borders and in sealed or taped vehicles. The goods thus transported are considered to be under the regime established by the Annex, enjoying a suspension of payment of any import or export taxes that may be payable.
In Argentina, the ATIT was put into effect through Resolution No. 263/90 of the Undersecretariat of National Transport, and in its Customs Aspects by Resolution No. 2.382/91 of the National Customs Administration, with various modifications, and has been in force to date for almost twenty years.
Addressing the issue at hand, a question of no less relevance has been raised: the requirement of tax debt when goods entering the country are stolen during the transit operation.
For the purposes of liability arising from non-compliance with the Transit regime, the ATIT refers to the provisions of each State, that is, in Argentina, articles 296 and following of the Customs Code apply, referring to the Suspensive Destination of Transit. This constitutes a regime under which imported merchandise, that is, merchandise that has entered the customs territory, but which does not yet have free circulation in it, is authorized to be transported from the Customs office through which it arrived to another customs office, to be subjected to another customs destination, providing for the purpose of not being subject to the imposition of taxes, with the exception of service fees (art. 304 CA).
The main obligation imposed by the regime falls on the carrier, who assumes his own responsibility before the customs service for the operation that is documented, having the duty to transport the merchandise to the destination customs office (exit or interior), within a stipulated period, ensuring that the same merchandise arrives (art. 317) and in its entirety (art. 310), without having undergone any modification or having been used.
Article 315, in its first paragraph, establishes an exemption to this liability in that it states that: Merchandise irremediably lost due to an accident occurring during its transport under the import transit regime and that has been communicated in accordance with the provisions of article 308 is not subject to the taxes that tax its importation for consumption… That is to say, the aforementioned article exempts from liability when the merchandise is irremediably lost, and if the communication provided for in article 308 of the CA has been fulfilled. These are clearly the hypotheses of fortuitous event or force majeure where the merchandise is lost, for example, due to an accident. Next, the same article clarifies that the tax exemption does not apply if the good in question can potentially be used by a third party. In this sense, this exception (the possibility of use of the thing by a third party) especially includes stolen or robbed merchandise, applying the presumption iure et iure that the merchandise was imported for consumption and consequently the corresponding taxes must be paid, by application of art. 310. It should be noted that although we find that in some cases art. 311 is cited to make this presumption effective, this article loses validity in the case of theft since it is not necessary to let the period stipulated in said article pass to infer that the merchandise, inevitably, could not arrive at its destination due to the aforementioned incident.
Indeed, according to the cited regulations, the mere possibility of use of the merchandise by a third party is sufficient, without it being necessary, in any way, to demonstrate its effective or economic use, in a real manner, by a third party, since such proof or demonstration is not required, at all.
Now, who are the subjects that must face this tax requirement? Although in principle we could think that the person responsible for the tax is the one who committed the taxable act, that is, the one who committed the illicit act - as provided for in art. 777 and following of the CA -, as in this type of cases the thief is often not found or cannot be identified, he becomes insolvent, in order to preserve the tax revenue and, for the benefit of the community, the code through art. 312 considers the carrier and the customs transport agent as the main debtors of the tax obligations, while the shipper, who has the right to dispose of the merchandise and the beneficiaries of the regime are considered as subsidiary responsible for these obligations, who can invoke the benefit of excussion with respect to the main debtors. That is to say, by provision of law, they are held responsible for another's debt of customs duties. This solution is intended to protect tax revenue and prevent manoeuvres such as self-theft, the essence of which is reiterated in relation to the suspensive destinations of storage deposit (arts. 211 and 293) and temporary import (arts. 261 and 274).
Given this legal situation, the customs service, upon learning of the theft, made - and continues to make - charges for the taxes owed corresponding to the non-compliance with the Transit, without further ado. Even without having to wait for the criminal justice system to decide on the perpetrators of the crime.
In relation to the taxpayers of the tax requirement, we consider that the solution adopted by the Customs Code is adequate since those who benefit from the transit regime - and consequently do not pay the corresponding taxes - have the obligation to comply with the necessary procedures to satisfy the purpose for which it has been established, in this case, the arrival of the merchandise at its destination within the time and under the conditions established by the customs authority. This criterion was upheld by the Supreme Court in Ferrocarril Oeste where it stated that Anyone who undertakes an obligation to provide a service must do so under conditions suitable for fulfilling the purpose for which it was established. Let us remember that these subjects voluntarily - and mainly - onerously assume certain obligations that arise from the very nature of the regime, such as taking care of the merchandise entrusted to them and deploying the necessary means for its custody, so that it arrives on time and in the correct manner at its destination.
However, due to the dynamics of this crime, unfortunately, thefts became more and more frequent through the method known as road piracy and today we are undoubtedly faced with an event that exceeds the basic regulatory provisions. More frequently, transport companies and their representatives must answer for the taxes that are levied on the stolen merchandise, becoming a common mechanism that generates a feeling of injustice.
It is clear that the suspension of payment of taxes levied on goods brought in through the transit regime, added to the lack of a formal guarantee covering this concept, can cause significant tax evasion in the numerous cases in which goods in transit are stolen. ongoing, entering the market illegally, and without paying taxes for import for irregular consumption.
For this type of situation, the ATIT has foreseen that the guarantee provided by companies to respond to the taxes and pecuniary sanctions that may be applicable, are the vehicles that make up the fleet of trucks, but many times this guarantee becomes a dead letter due to the facts indicated above. Let us understand, if the guarantee is the vehicle that transports the stolen merchandise, the former follows the fate of the latter, ergo the collection of the guaranteed taxes becomes a mere illusion.
It is worth noting on this particular issue that, within the scope of the commissions of Article 16 provided for by the ATIT, a modification to it has been submitted to the consideration of the member states containing the possibility that land freight transport companies can guarantee taxes by granting There are currently two types of insurance applicable in the national market to guarantee the payment of customs taxes.
On the one hand, the surety bonds for foreign trade, provided for in Law 22.415 - articles 453 to 465 - and in AFIP General Resolution No. 2.435. In this sense, in certain special cases, the payment of taxes is exempted at the time of the release of the merchandise in exchange for the -mandatory- constitution of a sufficient guarantee imposed by the regulations.
On the other hand, there is an Insurance Policy on the market whose scope covers rights, tariffs and other customs concepts that is used within the Transportation Branch, exclusively covering the Civil Liability of the carrier for the payment to the competent authority of the customs rights and/or tariffs and/or others in case of disappearance that is verified for any reason in the merchandise transported by land.
This is where surety bond insurance appears as one of the tools to be used to guarantee the payment of taxes or customs duties to the Federal Public Revenue Administration at the time of releasing the imported merchandise when, due to the type of regime, these taxes are not paid. Through this insurance, the importer and/or exporter constitutes a guarantee that covers the taxes that are not paid at the time of carrying out the operation.
Article 453 of the Customs Code lists the cases in which the guarantee regime must be used if the interested party intends to release the merchandise or carry out the activity provided for in any of the cases described by the article, such as the temporary import or export regime. The suspensive destination of import transit is not among the cases of this article and neither is the obligatory guarantee contemplated in the rest of the legal system to cover the eventual taxes accrued for the non-compliance of the transit in the case that the merchandise is not considered irretrievably lost.
It is evident that the subject of study is of great interest and is the subject of constant analysis, due to the importance of transport in international trade. Such is the situation that, according to the resulting experiences, since the application of the Satellite Tracking Initiative created by AFIP General Resolution No. 2169, General Resolution No. 3206/2011, BO 26/10/11 (amending AFIP General Resolution No. 2889/10) was issued, which establishes as mandatory for ISTA providers to constitute guarantees that cover the risks based on the taxes and sanctions eventually applicable for transit operations adhered to said Initiative.
A thorough analysis of these Resolutions shows that this amendment does not provide a complete and finished solution to the problem under study, since the implementation of this insurance is only mandatory for transit operations that voluntarily adhere to the Customs Transit Security Initiative. Furthermore, there is no regulation as to what type of insurance should be contracted in these cases.
It is based on the above that we understand that a modification to the reference regulations is necessary to incorporate a provision that forces the parties involved in the subject matter in question to take out a surety insurance policy for all road traffic operations, especially for traffic circulating through national territory, to guarantee the collection of the taxes due, since in this way the interests of the State as a whole will be preserved, including in this sense the individual affected and the tax treasury affected by the occurrence of an event that is clearly reprehensible, providing a balanced solution in this regard, as upheld in the rulings issued by Chamber F of the Tax Court in the case TRANSPORTE DE ALFREDO RIVAS ABUIN v. DGA, s/appeal, file. No. 24.301-A, dated 21/09/11, TRANSPORTADORA DM SA v. General Directorate of Customs, s/appeal, file No. 23.267-A, dated 21/09/11, among others.
It should be noted that in the National Tax Court, in its three Chambers with customs jurisdiction, the criteria set forth on the tax liability of the carrier in the event of theft of merchandise at the destination of import transit have historically prevailed. However, we believe it is necessary to highlight the vote of Dr. Paula Winkler in the no less renowned case Nuestra Señora de la Asunción c/DGA (File No. 17.714-A) of 10/03/04 since we understand that it is one of the jurisprudential positions that gave rise to the TEVELAM ruling - to which we will refer later - the former Member of the Tax Court, held that It does not seem fair or reasonable to consider that the person who illegally appropriated what was not his should place the tax liability on the person who suffered the illegal act, for an alleged use, which could not even be determined attributed, in this case, since the cause was finally saved., filed, because the alleged perpetrators of the incident could not be identified to date. That in this case the carrier acted diligently, and its defenses were acceptable, since it says that it could not avoid the consequences of the incident due to the nature of the incident. We say that it is important to highlight such a position, since in the end, Dr. Winkler maintained that ironclad temperament in her intervention when resolving the case that the Court - especially the representative of the Public Prosecutor's Office - took as generating the jurisprudential turning point when ruling in TEVELAM, a process that took place before Chamber E of the Tax Court of the Nation, composed at that time by Drs. Cora Marcela Musso, Catalina García Vizcaíno and the aforementioned Paula Winkler.
The TEVELAM case of 11/12/12, Supreme Court of Justice of the Nation, its analysis and our position on the matter.-
On December 11, 2012, the Supreme Court of Justice of the Nation issued a ruling in the case TEVELAM SRL (TFN No. 22.427-A) c/ General Directorate of Customs (hereinafter TEVELAM) opening the debate on the issue raised but this time introducing a new jurisprudential tool.
The Supreme Court departed from the literal meaning of the rule by making a harmonious interpretation of the regulations, applying the tax exemption to the case under study in order to mitigate the injustice that occurs when condemning - even if only in the tax aspect - someone who was the victim of an illegal act that, even complying with the necessary procedures, could not be avoided.
The Court ruled that the described system cannot lead to the conclusion that, without further ado, in any case in which the merchandise is irremediably lost because it has been stolen - and for the sole reason that it could be used by a third party - there is no possibility of exemption from the payment of taxes by those responsible for the tax obligation, when, despite complying with all the duties inherent to the import transit regime, they have suffered that kind of accident, it continues by saying that, a prudent and respectful interpretation... advises distinguishing the situation of someone who neglects control of the cargo that is being taken to the customs of destination; deviates from the itinerary established by the customs authority (art. 319), or engages in any conduct that could indicate connivance with the fact of the theft, in which case he could not allege a reason exempting himself from his tax liability based on an unforeseeable and irresistible fact, as someone who has fulfilled all the duties inherent to the custody of the merchandise during its itinerary and suffers a robbery aggravated by the use of weapons as reported in these proceedings. By virtue of the above, he maintains that if a breach of the duties of custody was not proven, nor has the fact of the robbery with weapons that was reported to the authorities in the terms of art. 308 of the Customs Code been discredited, the plaintiff should not be held responsible for the payment of taxes in the terms of art. 315, second part, of that ordinance.
The High Court ruled that since there had been no evidence of non-compliance with the duties of custody to ensure that the means of transport - with the corresponding load - arrived at its destination, and since the incident had been reported to customs in accordance with the provisions of art. 308 of the CA, the transport company should not be held responsible for the payment of taxes in accordance with the terms of art. 315, second part, of the Customs Code, provided, of course, that the reported fact of armed robbery is not discredited.
The Court makes a clear distinction between cases in which the carrier complied with its duties of custody during transit and those cases in which the circumstances of the case reveal a lack of diligence on the part of the carrier.
In our opinion, the Supreme Court assumes that the beneficiary of the regime is diligent, and that some circumstance must be proven that would make this circumstance fall in order to demand the taxes as established by the legal system.
The TEVELAM ruling changes the scenario. As we said, until it was issued, the Customs, with the accreditation of the theft, considering that the merchandise could be used by a third party, applying art. 315 of the CA, charged the taxes as a result of the import for irregular consumption. Based on the cited ruling, the Customs must, at the time of learning of the theft, assume an attitude that until now it did not consider necessary: investigate and analyze the context in which the Transit took place to reveal, by virtue of the factual circumstances, the negligence on the part of the carrier in complying with the regime to which it adhered, prior to issuing the administrative sanctioning act. Thus, according to the doctrine of the Court, the tax demand will be duly substantiated. We clarify that this is due to our interpretation of said doctrine, since until now, the charges made were based on the strict application of the rules that govern the regime in question, that is, they are fully founded in the legal-regulatory field.
It is beyond dispute that the Court does not declare any regulation unconstitutional. We consider that the application of the Court's doctrine is not automatic either, in the sense that if the merchandise has been stolen in transitOnce the theft has been duly proven, the causes for exemption from the tax obligation that our substantive code provides for non-compliance with the regime apply - art. 315 first paragraph -.
We understand that it praetorianly incorporates a presumption of diligence on the part of the beneficiary in the fulfillment of his duties and obligations with respect to the second part of art. 315, which if not refuted in the customs process, will allow this tax exemption because the issue is immersed - as we said - in one of the exemptions from liability, such would be in this case, force majeure.
It is no longer only necessary to generate the administrative sanctioning act and its potential confirmation before the Tax Court that the non-arrival of the merchandise within the period and under the conditions agreed for transit is accredited, based on TEVELAM, the factual circumstances that generated it must be analyzed and, consequently, the diligent or non-diligent action of the beneficiary of the regime.
In this sense, we can validly maintain that a transport with merchandise that enters through the port of Buenos Aires bound for the port of La Plata is not the same as one that must travel from the province of Santa Cruz to that of Jujuy. Likewise, the consequences of the irregular entry of any merchandise are not the same, since it will depend on its value. The responsible party may hire more than one driver to cover long distances and thus minimize risks. The cost of the private custody service may be assumed when the merchandise is very valuable or whose demand is of interest in the illegal market. These are all examples whose analysis will determine the criteria of the Judge to determine the suitability of the conduct displayed by the carrier in the effort to avoid the harmful result, not desired by the individual and much less by the Administration.
That is to say, it is the particular factual circumstances of each case that must be analyzed in order to adopt a release from the tax obligation, and it can be pointed out in this sense and as an appropriate conduct of the carrier - as highlighted by the Court in TEVELAM - that when the carrier hires private custody to accompany the vehicle that is ultimately damaged under the modality of asphalt piracy, he thus deploys actions that clearly show his zeal as a beneficiary of the regime in its complete compliance, assuming the risk inherent to the activity and diligently taking measures tending to avoid the success of the illicit act and the reprehensible actions of third parties outside the regime.
Therefore, in order to determine that the passive stolen merchandise is not subject to the taxes levied on imports for consumption and, consequently, not to pursue its payment to the carrier - and to the Customs Transport Agent -, applying the TEVELAM guidelines, a clear conduct must be revealed that demonstrates the desire to comply with the obligations assumed, but without forgetting that we are dealing with a commercial transport entrepreneur who assumes the risks inherent to his activity voluntarily and - mainly - for a fee. In this way, moving away a little from the presumption of diligence from which the Court starts, we must demand a proactive conduct to fulfill his responsibilities from the one who is in charge of ensuring that the merchandise reaches its destination and in the appropriate condition.
We understand that Customs - and ultimately the Tax Court - must carefully analyze each case, evaluating the context in which the theft occurred to determine whether, in accordance with the guidelines established by the Supreme Court in the TEVELAM ruling, it is justified to depart from the literal meaning of the rule and grant a tax exemption to the subjects determined by art. 312 of the CA, always keeping in mind that we are dealing with merchandise that was not in free circulation and that entered the economic circuit in an irregular manner, and that we are faced with a special regime with particular obligations that the beneficiaries assume voluntarily and for a fee.
In this way, we will clear away the cloak of injustice we referred to above and limit the potential consequences that a mistaken application of the TEVELAM ruling may generate: that those who make a living from this illicit act may find, through auto-theft, a new way to perfect their maneuvers to the detriment of the treasury and, consequently, of the entire community, assuming that if there are indications of the aforementioned illicit act, the corresponding investigation must be carried out, in which case, it will be beyond dispute that the carrier will be a passive subject of the tax obligation, by application of the still valid arts. 312 and 315 and -fundamentally- of art. 782 of the Customs Code.
Regulatory Reference
Customs Code of the Nation, Law 22.415 of 1981 (BO, 23/3/1981), and its Statement of Reasons;
Agreement on International Land Transport (ATIT), of 1/01/1990;
ANA Resolution 2382, BO 2/01/1992 and amendments;
AFIP General Resolution 2435, BO 22/07/1996;
AFIP Gra. Resolution 2169, BO 11/12/06;
AFIP Gra. Resolution 3206, BO 26/10/11;
among others.
Jurisprudential Reference:
TEVELAM SRL (TF 22.427-A) v. General Directorate of Customs, SCJN, 11/12/12;
WESTERN RAILWAY, SCJN (rulings 182:5).
TRANSPORTADORA DM SA c/ DGA, Expte. No. 21.821-A, TFN, 3/11/1;
OUR LADY OF THE ASSUMPTION v. DGA, File No. 17.714-A, TFN, 10/03/04;
TRANSPORTATION OF ALFREDO RIVAS ABUIN c/DGA, Expte. No. 24.301-A, TFN, 21/09/13;
TRANSPORT AND SERVICES TRANSFEL LTDA. AND ANOTHER v. DGA, File No. 23.253-A, TFN, 6/07/11;
among others.
Doctrinal reference:
Commented Customs Code, Mario A. Alsina, Enrique C. Barreira, Ricardo Xavier Basaldúa, Juan P. Cotter Moine, Héctor G. Vidal Albarracín, Abeledo Perrot Publishing House, August 2011.
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ARTICLE 777.- The person who commits an act taxed with taxes established in the customs legislation is indebted to these; ARTICLE 782.- The authors, accomplices, instigators, concealers and beneficiaries of import or export smuggling, are jointly and severally liable for the relevant taxes; such was the criterion upheld by Dr. Catalina García Vizcaíno as a Member of the National Tax Court.
SCJN, rulings 182:5.
GAGO HILDA MABEL AND ANOTHER v. DGA, s/appeal, file TFN No. 21.934, Judgment of 21/09/11; TRANSPORTADORA DM SA v. DGA, s/appeal, file TFN No. 21.821-A, Judgment of 3/11/11.
The Court in this regard expressed It is pertinent to remember that as the Court has consistently maintained, "... when the understanding of a provision, based exclusively on the literal meaning of its text, leads to concrete results that do not harmonize with the remaining legal system or arrives at consequences that are at odds with the values protected by it, the interpretation must be integrated into the harmonious whole of the aforementioned system..."
(rulings:326:3679). Likewise, it has repeatedly stated that legal texts should not be considered in isolation for the purposes of establishing their scope and meaning, but rather as a coherent and harmonious whole, as parts of a systematic structure considered as a whole, taking into account, in addition to the letter, the purpose pursued by them, and adopting a meaning that reconciles and leaves all of its provisions with value and effect (see, rulings: 323:2117; 324:1481; 325:1731; 327:769, among many others and dissent of Judge Petracchi in rulings: 312:2192) second paragraph of recital 10 of the commented ruling.
In the sense of omission of the necessary steps to achieve the goal.
As components of the State.
Brands: Dr. Christian Gonzalez Palazzo, Holder of the 17th Chamber of the Tax Court of the Nation, and Dr. María Alejandra Sabic, agent of the same Chamber.
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