Thus, in its article 1, it determines that "Any computer application program -software- that enters the customs territory under the Common Nomenclature of Mercosur 8524 corresponding to its means of transport, must pay import duty only on the invoice value of its physical contribution"; to this, it is added in its article 3, that "In order to enable compliance with the provisions of article 1 of this document, it will be necessary that the invoice supporting the import operation clearly separates from the total value the price corresponding to the physical support, as well as the value corresponding to copyright. Otherwise, import duty must be paid on the total invoice value...".
On the other hand, it has been made evident by Notice No. 125/95 - Instructions to users for registering operations using forms OM 680 A and OM 700 A -, as well as Note No. 373/97, the determination that merchandise - software - is subject to the taxes provided by law for imports of this kind; giving sufficient account that the lack of customs control over the payment of such taxes would turn the matter into a customs offense. LACK OF REGULATION OF THE INTERNET ROUTE but despite the rules stated above, it is undeniable that although there is a clear determination that software is merchandise susceptible to being imported or, where appropriate, exported, and consequently, subject to customs tariff treatment and therefore, due customs control; NOTHING HAS BEEN REGULATED IN RELATION TO THE ENTRY OF THIS TYPE OF MERCHANDISE THAT CAN BE IMPORTED VIA THE INTERNET.
Although the Customs Code regulates the entry routes of merchandise, when dealing with the "ARRIVAL OF MERCHANDISE" in Section III, Title I, Chapter I; establishing the water route; air route; land route, the legislator has taken into account the possibilities in the future of new access routes for the entry or exit of merchandise and consequently, despite not regulating them; IT HAS MADE IT CLEAR THAT THE REGULATIONS SHOULD DO SO, ESTABLISHING FOR THE OTHER CASES THAT REQUIRE A SPECIFIC TREATMENT NOT PRESCRIBED IN THIS CHAPTER -art. 158 of the CA
Consequently, despite the fact that entry via the Internet is not regulated, technological and computer progress worldwide, coupled with the effects of globalization in the field of trade, make it impossible to remain adrift in relation to such events and, in light of this, the need for regulation of customs control for the entry of goods via the aforementioned route BECOMES UNSUSTAINABLE.
All in order to what is already known, that merchandise such as -software- is subject to entry through the indicated route and in order to do so, taking into account that as it was stated, IT IS MERCHANDISE THAT MUST BE SUBJECTED TO CUSTOMS CONTROL; ergo, it is considered necessary that the Internet route should be regulated for these cases, in order to avoid the effects of an entry away from customs control and being liable to customs offenses, being possible to establish the INTERNET ROUTE AS ANOTHER ENTRY ROUTE TO THOSE CURRENTLY ENABLED FOR IMPORT AND EXPORT. USE AND CUSTOM:
NEED FOR REGULATION The doctrine has long supported that one of the primary sources of the laws is the "custom"; surely, this comes from the fact that the events that occur throughout the social, economic and political development, necessarily impose that the "State" gets involved, so that such acts that arise from use and custom are regulated by clear norms, in order to protect not only the rights of the parties and the obligations to which they must conform; but also the PUBLIC INTEREST.
It is not lost on any mortal that, with the accelerated advance in the use of the Internet, it has been defined as a primary source of communication, where not only is an interactive means of agile and effective communication externalized; but, by virtue of its computer source and technical advances, it is transformed into a means of transfer not only of information; but in the case in question of goods, obviously, susceptible to the obligation of customs control, to the extent that their entry occurs from another customs territory.
It may seem strange to admit that a good can be transferred by means of a computer; however, the truth is that this is possible and not only acceptable; today it can already be classified as customary and usual.
In this sense, the regulations that eventually govern customs controls, not only in general matters for imports, but also for those goods that until recently were subject to entry through another means of transport only, MUST BE ADAPTED TO REGULATE ITS TREATMENT THROUGH THE USE OF THIS COMPUTERIZED MEANS, ergo, NEW MEANS OF TRANSPORT.
Especially when, as stated above, although it is not considered as a means of transport for the entry or exit of goods that may be imported or exported, TODAY THEY ARE ALREADY AN OBJECT OF USE AND CUSTOM, AND CONSEQUENTLY THE COMPETENT AREA MUST ACCEPT THE AUTHORIZATION TO ENABLE ENTRY BY SUCH MEANS, ERGO, ITS REGULATION.
Otherwise, we understand that its possibility of use would be restricted, WITHOUT PREJUDICE TO AFFECTING THE PUBLIC INTEREST; taking into account that, as it is not expressly authorized and therefore, the appropriate regulations are not admitted to enable customs control; SUCH A WAY, EVEN IF IT IS NOT REACHED BY A PROHIBITION AND IS USAGE AND CUSTOM, THE IMPORTATION OF GOODS BY MEANS OF INTERNET ENTRY IS ILLEGAL AND, CONSEQUENTLY, LIABLE TO SUFFER THE PENALTIES THAT CORRESPOND IN CUSTOMS MATTERS FOR THE COMMISSION OF AN ILLEGAL CIT.
In order to enable the entry and exit of goods of this type, through the proper use of the Internet and thus enable their use, sale, etc., we believe that the implementing authority should regulate the computerized route as soon as possible, as an authorized entry and/or exit route for imports and exports.
The author is a lawyer and member of the Institute of Customs Law and International Trade of the Argentine Association of Constitutional Justice.
