In Buenos Aires, on the 18th day of March 2003, the members of Chamber E, Drs. Catalina García Vizcaíno, D. Paula Winkler and Gustavo A. Krause Murguiondo, met with the latter presiding, in order to render judgment in the case entitled: LAMBERT DE TESSELHOFF PATRICIA ANA v. Directorate General of Customs s/ appeal; file No. 16.804-A.
Dr. Catalina García Vizcaíno said:
I) That at fs. 12/16 round. Ref. The Mrs. Patricia Ana Lambert de Tesselhoff, on behalf of her attorney, appeals against Resolution 044/2001 of the Paraná Customs, issued on 19/12/01, insofar as it did not allow the challenge to the charge filed against her regarding Import Clearance for Consumption No. 99-041-IC04-300.057-0/99. He states that he acquired a batch of 175-70R13 Nankang brand car tires, of Taiwanese origin. He adds that the merchandise had been in the port of Montevideo for approximately one year and was a backlog, as it had been rejected due to economic problems by the initial consignee, who was from Brazil; hence he says that the only thing the exporter could do was sell it to save the costs of storage, freight, transport, etc. or, failing that, return it to Nankang, bearing the costs of the failed export. He notes that the price paid for each unit was US$10,00, while the cost of other identical merchandise acquired by his representative was US$17,15, as can be seen in the computer strip where Customs provides this information. He explains that, once the merchandise was introduced into Argentine Customs, the value was observed, comparing it with a previous case. It indicates that the Rosario Valuation Center Division, in accordance with memorandum 438/99, dated June 24, 1999, and in accordance with the powers granted to it by AFIP Resolution 229/98, now repealed, requested various elements to verify the real price of the transaction. He states that the circumstances of how and why the merchandise had been acquired at a significant price reduction were explained in the reply to Memorandum 438/99, where he states that he attached all the relevant and appropriate documentation for the case that had been requested by Customs. He reports that memorandum 654/99 was subsequently issued, which required supporting information on the documented value. It indicates that Customs produced Technical Report No. 3/99, which did not analyze any of the evidence requested by the Valuation Division, which after almost five months was asking for justification of the value of the merchandise. He maintains that the technical report says nothing about all the evidence provided, and that, except for the recognition of the lack of error in the declaration of the purchase price of the merchandise, said evidence does not serve to prove the price paid. He cites the Administrative Procedures Law, which he believes has been violated. He states that he declared the price stated in the commercial invoice as the value included in the dispatch, which reflects his consideration for the goods he acquired in the exporting country, and that said price coincides with the letter of credit paid to the seller for the price of the merchandise, through a banking institution. It is considered that Law 23.311 being subsequent to Law 22.415, and having a higher constitutional rank given that it ratifies an agreement between nations, renders theoretical estimates on taxable value and price useless, since the conditions of a sale were established in certain circumstances, and all commercial operations actually agreed upon between a buyer and a seller must be assimilated to it. He states that Law 23.311 establishes the transaction value as the taxable value, and that in this case there are no elements that allow for any correction, nor for any of the other methods provided for by the law to be applied, which prescribes incorporation into the GATT. Provide proof. He requests that the appeal be granted and the challenged decision be revoked.
II) That on pages 33/34 back, the tax authority responds to the notification duly submitted to it. It provides a brief summary of the proceedings. It states that the charge in question is based on the difference that the appellant owes to the General Directorate of Customs by application of art. 2 of the GATT according to laws 23311 and 24425. It maintains that the calculations made to formulate the charge have been made in accordance with the applicable legislation. It refers to what is expressed in Resolution No. 044/01. It alleges that the claims of the plaintiff are not in accordance with the law. It adds that payment is the normal and general method of extinguishing the tax obligation and for it to fulfill its liberating effect it must be timely and complete, requirements that the plaintiff would not meet. It considers that the liquidated interest is in accordance with the guidelines established by the relevant legislation and that the update (sic) has been in accordance with the legislation applicable to the present case. It offers evidence, reserves the federal case and requests that the appeal be rejected, confirming the appealed Resolution, with costs.
III) That at fs. 40 the undersigned dictates a measure to better provide which is produced at fs. 51/56. At fs. 70/72 the plaintiff alleges, the Treasury not making use of that right. At fs. 74 the proceedings are forwarded to judgment.
IV) That on page 1/3 back of file EA 410021 the appellant challenges charge No. 1/2000 relating to import clearance IC 04 300057-0/99, which appears in an envelope on page 7, made official on 28/5/99, in which an observation is recorded on the declared value by the Head of the Verifications Section of the Paraná Customs. On page 9 the challenge is considered to have been filed and the question of pure law is declared. On pages 14/15 the ruling 068/2001 is issued and on pages 16/20 the Resolution 044/01 appealed in this case is issued.
(V) That the nullities raised by the appellant in the present case are directly linked to the grievances that support the appeal, so that, as Francesco Carnelutti teaches, … from the principle of absorption of invalidity in the challenge, the rule formulated by scholars of civil procedure also derives for criminal proceedings, to the effect that the defects of the challenged provision become grounds for challenge; this means that as soon as a flawed provision is challengeable, the power of invalidation does not concur with that of challenge, but is absorbed in the latter, as the annulment is absorbed in the rescission. Such absorption is at the point of arrival of a historical evolution that I could not even trace here in its general points; in very general terms, I indicate only that the rescission of the unjust act constitutes a step forward with respect to the annulment of the flawed act; This is where the slowly developing thought is expressed that the requirements of the act, and in particular the formal requirements, are not valid in themselves but as means to the end of its justice, which truth, even when obvious, has not had an easy path in the history of law... (Lessons on the criminal process. Vol. III, p. 217. Bosch and Co. editors. Buenos Aires. 1950).
That, although the transcribed paragraph refers to the criminal process, while the sub-lite disputes a question of material tax law (tax liquidation derived from a customs adjustment of the value of imported merchandise), the principle of absorption of invalidation by the challenge also applies - as the distinguished proceduralist says - in the civil process; therefore, having deployed as support for the requested nullities grounds that have a direct relationship with the grievances of substance, it can be concluded that the question of nullity should be rejected as to whether it is treated autonomously.
That, on the other hand, it has been repeatedly said that it is SC doctrine that the challenge of arbitrariness is not applicable to a well-founded resolution or sentence, regardless of its correctness or error (Judgments, 243-560, 246-266, 248-584, 249-549), except in certain cases that do not occur in this case, such as, for example, the contradiction between the recitals and the operative part (see, among others, Scicolone, Manuel S. v. Prantera, Omar Alberto and others, 26/11/91).
That, likewise, it has been said that when the restriction of the defense in court occurs in the procedure that is substantiated in an administrative seat, the effective violation of art. 18 of the CN does not occur as long as there is the possibility of correcting said restriction in a later jurisdictional stage (Judgments, 205-549, 247-52 consid. 1º., 267-393 consid. 12 and others), because the requirement of the defense in court is satisfied by offering the possibility of appearing before a jurisdictional body in search of justice (Judgments, 205-549, consid. 5º and its citations) -TFN, Sala E, among others, Rivera, Alcides of 27/5/86, López Arispe, José, of 5/9/88-.).
That, moreover, the decision being sufficiently founded, the express mention of all the arguments of the appellant is not required (among others, Fallos, 251-39).
That, given the way in which the nullities were raised, no imposition of costs is appropriate.
VI) That by virtue of Law 23.311 and Article 18 of Decree 1026/87, as of 1/1/88, Articles 641 to 650 and 652 to 659 of the CA, and any other provision that is contrary to that law, were repealed.
That Law 23.311 approved the Agreement on the implementation of Article VII of the GATT (General Agreement on Tariffs and Trade) and the Protocol of that Agreement on its application, signed in Geneva on 12/4/79 and 1/11/79, respectively.
That Law 24.425 approved, among other provisions, the Agreement on the implementation of Article VII of GATT 1994. This law - which came into force on 14/1/95 - applies to the present because it concerns an import clearance from the year 1999.
That the referred Agreements exclude the use of fictitious or arbitrary customs values, so that the customs value of imported goods (taxable base in ad valorem taxes) results from the sale price for export to the country of destination.
It should be noted with respect to the Agreement on the Implementation of Article VII of GATT - applicable in this case - that the customs value of imported goods is the value of the goods for the purposes of levying ad valorem customs duties on imported goods (Article 15, paragraph 1, paragraph a), and that the transaction value defined in Article 1, Part I (price actually paid or payable for the goods when they are sold for export to the country of import, under the conditions established by said regulation, and clarified in the respective Interpretative Note), is the first basis for determining the customs value, and should be considered in conjunction with Article 8, which provides, among other aspects, the adjustment of the price actually paid or payable in certain cases. This Article 8 provides for the inclusion, in the aforementioned value, of certain benefits from the buyer to the seller, which are in the form of goods or services rather than money.
That, however, if the customs value cannot be established by means of art. 1, arts. 2 to 7 are applicable. The General Introduction highlights that the regulations provide for consultations between the customs administration and the importer to exchange information, in accordance with the assessment of arts. 2 and 3, subject to the limitations imposed by commercial secrecy, in order to establish an appropriate basis for customs valuation, taking into account the customs value of identical or similar imported goods.
That, subsidiarily, arts. 5 and 6 refer to other forms of determination: on the basis of the price at which the goods are sold in the same condition in which they are imported, to a buyer not related to the seller and in the country of importation, with certain deductions -subtractive method-, and on the basis of the reconstructed value -additive method-. These two methods -due to the difficulties they present- are at the choice of the importer when the customs service so accepts; if the importer does not request that the order of arts. 5 and 6 be reversed, the order of these is followed.
That Article 7 provides how the customs value must be determined when it cannot be established by the above methods; it prohibits it from being arbitrary or fictitious; etc.
For the purposes of applying the above-mentioned reasonable criteria, the customs value shall not be based on the selling price in the country of importation of goods produced in that country, nor on a system providing for the acceptance of the highest of two possible values, nor on the price of goods in the domestic market of the exporting country, nor on minimum customs values, arbitrary or fictitious values, etc.; if the importer so requests, he shall be informed in writing of the customs value determined and of the method used (Article 7, Part I, Agreement on the implementation of the aforementioned Article VII).
That it arises from the proceedings that the appellant had the opportunity to provide the aforementioned information both when contesting the charge and before this Court. The customs office invokes the unit value of $17,68 of the DUA IC04-50118-4/98, officialized on 2/9/98 (see observation to the office of the Sec. Verifications in the container envelope of fs. 7 of the ant. adm.; from the verification of the documentation of that container envelope, more background arises by which the appellant documented the type of merchandise in question at a unit price of US$17,15 or US$17,68 -as the case may be-, coming from the same seller).
That the transaction value declared by the appellant could validly be objected to by the contested entity in exercise of the powers arising from art. 9, section 2, subsections a), b) and d) of decree 618/97.
That the plaintiff acknowledges that the cost of other identical merchandise purchased by her was US$ 17,15 as can be seen in the computer strip where Customs provides this information (fs. 12 back. Ref. of cars and documentation of the container envelope on fs. 7 of the adm. ant.). In my opinion, this proves the value requested by Customs, without prejudice to the plaintiff's powers to challenge it, but generic statements are not enough for such purposes, but the evidence must be precise and concrete.
That by the DI of the sub-lite, made official on 28/5/99, the appellant documented the import of 1.440 new rubber tires (pneumatic tires) of PA SIM 4011.10.000N, merchandise originating in Taiwan and coming from Uruguay at a unit price of 9,80 in foreign currency, the seller being Nankang Rubber Tire Corp. Ltd. (see container on fs. 7 of the ant. adm., which contains the complementary documentation to which I will refer below).
That in the International Waybill of 11/5/99 the named seller with address in Taipei, Taiwan appears as the sender, although the carrier of the goods took charge of them in Montevideo - Uruguay.
That the commercial invoice of 15/4/99 was issued by the aforementioned seller in Taiwan to transport the merchandise from that country to Montevideo by the vessel Ever Able V. 0214-008W. The pro forma invoice of 30/3/99 was also issued by that seller.
That the foregoing undermines the plaintiff's defense, since it has not been proven that the goods in question had remained in the port of Montevideo for a year, nor that they were in arrears; nor has it been proven that the initial consignee in Brazil rejected them due to economic problems (see page 12 Ref. of the proceedings), since the goods were invoiced in Taiwan in the name of the plaintiff on a date close to the officialization of the import clearance. The amount paid to the Banco Francés del Uruguay does not hinder this conclusion, since this entity on 1/7/99 reported that the payment was made by the appellant directly to the aforementioned Taiwanese seller (which rules out the intermediation mentioned by the plaintiff) and since the documented unit price of US$ 9,80 is significantly lower than that of other operations of the appellant of US$. 17,15 (as she herself acknowledges), which implies that customs should reasonably have rejected the documented value and resorted to the value of identical merchandise documented by the plaintiff.
That the foregoing conclusion is not invalidated by the report on pages 51/56 of the proceedings, since the invoice added to the dispatch in question was issued directly by the seller, and not by Unimarine SA (BRS Uruguay), to whom the letter was addressed, the issuance of which was ordered for the sole purpose of guaranteeing the defense in court and allowing the evaluation of the evidence by the other judges who make up this Chamber.
Furthermore, it should be noted that the manager of the Uruguayan company to which the letter was addressed (who refused to sign the notarial act) stated that it was impossible to obtain all the information requested due to problems with filing this type of documentation; that the arrival of the merchandise is estimated before June 1998, and could have been shipped on the Ever Able vessel. Note that this report contradicts the documentation added to the import clearance, according to which the merchandise was invoiced on 15/4/99 and shipped on that vessel on 21/6/98 from Taiwan to Montevideo sold by order and for account and risk of Messrs. Patricia I. de Tesselhoff (sold by order, account and risk of the appellant). This rules out the possibility that it had been in storage for a year.
That the probable intermediary referred to in the report on pages 53/54 of the proceedings has not been reliably accredited, since I repeat - the merchandise was invoiced directly by the seller from Taiwan.
It has been stated that when it comes to tax determinations, different rules apply regarding the burden of proof in relation to those applied in other trials (Judgments, 268-514 and 289-514, consideration 8; CN Cont.-Adm. Fed. Cap., Room 1, "Guzmán, Oscar A.", dated 26/6/79; to the same effect, CN Cont.-Adm. Fed. Cap., Room 3, "Figueiro, José Ramón", dated 30/10/79), and that when the taxpayers' declarations are not supported by categorical evidence, the ex officio estimates or liquidations made by the treasury are legitimate; and it is up to the person who challenges them to prove the facts (CN Cont.-Adm. Fed. Cap., Room 1, «Willman Argentina SAIC s./ Appeal-income tax», dated 22/5/92, Tax Criteria, November 1992, p. 75).
Therefore, I vote for:
1) To confirm Resolution No. 044/2001 (AD PARA) insofar as it has been the subject of the appeal. With costs.
2º) To order the plaintiff to, within a period of five days, pay the balance of the fee for proceedings provided for in Law 22.610 and amendments, under penalty of the General Secretariat of Customs Affairs issuing a certificate of debt.
Dr. Winkler said:
I agree with the preceding vote.
Dr. Gustavo A. Krause Murguiondo said:
That agrees with the vote of Dr. García Vizcaíno.
In accordance with the above agreement, it is unanimously RESOLVED:
1) To confirm Resolution No. 044/2001 (AD PARA) insofar as it has been the subject of the appeal. With costs.
2º) To order the plaintiff to, within a period of five days, pay the balance of the fee for proceedings provided for in Law 22.610 and amendments, under penalty of the General Secretariat of Customs Affairs issuing a certificate of debt.
Register, notify, promptly return and archive the administrative records.
