Based on the regulations issued by the AFIP, regarding the Regime for the Regulation of Tax and Customs Obligations and Money Laundering, the process to adhere to these regimes has been enabled since July 17, 2024.
The case establishes two possible effects in terms of customs crimes and customs violations: the extinction of the causes and the suspension of the process until the cancellation of the tax obligations is concluded, to finally extinguish it.
These consequences also arise from failing to pay taxes or from money laundering.
Now, up to this point it can be seen that the current government has launched an amnesty process that has different antecedents, among the latest we can refer to those established by Law 27.541 (Law of Social Solidarity and Productive Reactivation in the Framework of the Public Emergency) and Law 27.260 (National Program of Historical Reparation for Retirees and Pensioners), serving as an analysis to be able to warn what could be the view of those who have the guardianship of the administration of justice and consequently those who must apply the extinction in the causes in order to what is stated in article 59 of the Penal Code.
In this regard, we will analyze some rulings that express the opinion of the Justice system regarding these forgiveness processes in customs criminal matters.
Constitutionality of Amnesty
As was pointed out when making a note for Customs News (1), Throughout history, the prerogative of amnesty by the State has been discussed from dogmatic, legal and constitutional points of view. And on this subject, a deep analysis of its different approaches could be made by those who have been able, from their specialty, to delve into this subject. But certainly, the Argentine Constitution allows the Legislative Power to make use of this faculty. Absolute power of the National Congress (art. 75 inc. 20 CN) In this sense, by law the National State can establish, on an obligatory basis, a pardon in favor of a universe of persons who are the subject of charges in criminal cases.
Which leads to the fact that, from the Justice, without prejudice to considering aligned or not to the decisions of this kind, as it has been known to reflect in its sentences, it has been indicated that, "... although the acceptance of a request for compliance with the aforementioned tax regularization regime [law 26.476] is a matter for the national authorities in charge of collecting taxes and, as such, would not admit in principle judicial review, I consider that this is not an obstacle for the judges to exercise a control of legality and reasonableness of the interpretation and application of the provisions that regulate the regime in the specific case, especially when the decision of the administrative body could affect the validity of the criminal action..." (2)
Therefore, this type of measures arising from a process imposed by law regarding the scope of criminal extinction should not encounter challenges that could become an impediment to its application due to possible challenges before the courts.
Notwithstanding the foregoing, limitations have been raised in the application of this type of measures, depending on the crime, the taxable event, the nature of the merchandise, the type of subject. The following precedents of rulings that have defined substantial aspects in each case are then useful.
Customs offences – Criminal type
Law 27.743, when referring to extinction and/or suspension, specifies that this will be applied to “criminal action” and/or “customs criminal actions”
From this, we must consider that in customs criminal matters, the crime of smuggling is provided for in its forms classified in articles 863, 864, aggravated under the conditions determined by articles 865, 866 and 867. As well as the culpable figure that resides in article 868 and article 869, all in Law 22.415 (Customs Code).
Furthermore, within Chapter III and IV of Title I of Section XII, the crime of attempted smuggling (Cf. art. 871 of the CA) and the crime of concealment (Cf. art. 874 of the CA) are also established.
Consequently, when referring to “customs criminal actions”, the law does not discriminate in any way with respect to the types of crimes and, in order to do so, should have scope for all of these figures.
In the instance of resolving this type of measures, in accordance with Law 27.541, a rule that also established the extinction and/or suspension using the term "customs criminal action (3)", questions have been observed about its scope. In this sense, the Federal Revenue Administration considered that the acts of aggravated smuggling exceed the scope of Law 27.541.
The courts have ruled on this matter on several occasions.
- Economic Criminal Chamber:
“This broad nature of the regularization regime in question has been pointed out by the jurisprudence. a) First of all, it is worth recalling some of the rulings issued by Chamber B of this Court, including in other incidents of this same case, in which it originally intervened. Thus, said Court admitted the application of Law 27.541 in cases where, as in the present case, the crimes of arts. 863, 864, inc. b, and 865, incs. a, c and f of the Customs Code (“Koutnouyan”, c. CPE 529/2016(-C)/154/CA137, reg. 311/21, rta. 19.05.21; c. CPE 529/2016(-C)/151/CA138, reg. 599/21, rta. 22.09.21, c. c. CPE 529/2016/159/CA141, reg. 600/21, rta. 22.09.21). In those precedents, Chamber B stated that “the crimes provided for by the customs law, to the extent that they are linked to obligations arising from additional charges for export or import taxes, or with the settlements of the aforementioned taxes included in the procedure for infractions, or with the amounts that, as export stimuli, should be returned to the national treasury, are covered by the assumptions of suspension of the exercise of criminal action and its extinction provided for in art. 529 of Law 2016”. ( Cfr. Judgment 210, Economic Criminal Chamber, Chamber A, CPE 12/182/632/21/CA05.10.21).
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Federal Court of Criminal Appeals:
Sala I: It admitted the application of Law 27.260 (with a similar wording to Law 27.541 but more restricted, given that the former does not include - art. 53, third paragraph - the obligations or infractions linked to promotional regimes that grant tax benefits, which the latter does include - art. 8, tenth paragraph -) in a case where facts similar to those here were being tried and in which the accused was being prosecuted as the perpetrator of the crime of aggravated smuggling according to arts. 864, inc. b, and 865, inc. f, of Law 22.415 ("Damino", c. CPE 1279/2016/2/CFC1, reg. 923/20, rta. 29.07.20).
Sala II: : He agreed to the application of the regime regulated by Law 27.541 in a case where the accused was being prosecuted for the attempted crime of art. 864, inc. b, with the aggravating circumstance provided for in art. 867 of the Customs Code, that is, a reproach of greater importance than that of the case (“Cáceres”, v. FMZ 35311/2017/TO1/CFC1, reg. 143/22, rta. 17.03.22).(5)
Room III: It also approved the viability of the regime of Law 27.260 in a case where the smuggling of arts. 864, inc. e, and 865, inc. a, of the same code was being investigated (“Guido”, c. FCB 12000014/2010/TO1/CFC1, reg. 278/19, rta. 29.03.19). There, the majority formed by judges Riggi and Mahiques indicated that this possibility was verified “as long as the customs obligations not fulfilled in the case are, exclusively, of a tax nature and all the objective and subjective requirements demanded for the admissibility of said acceptance are verified with respect to the beneficiaries”. (6)
Sala IV: Likewise, Chamber IV, on an occasion when the commission of arts. 864, inc. b, and 865, inc. a, of law 22.415 was being discussed, deemed in principle applicable law 27.260 provided that it was proven that the crime was related to customs obligations of a tax nature (“Ruchtein”, c. FCB 32023049/2012/TO1/CFC1, reg. 1269/19.4, rta. 25.06.19).
Likewise, and specifically in relation to Law 27.541, the same Court considered it possible in an accusation under arts. 863, 864, inc. a, and 865, inc. i, of the code in question (“Garfunkel”, c. CCC 63390/2013/TO1/6/CFC2, reg. 455/21, rta. 19.04.21). The interesting thing is that the goods that were the object of this maneuver were works of art, therefore subject to a much more restrictive regime than the objects involved in this incident, since in addition to the tax order, the artistic heritage of the Nation was put at risk. However, even with these greater precautions due to the nature of the objects, Judge Carbajo pointed out that "it is not verified that the effects derived from the acceptance of the regime of law 27.541 are only operative in those cases in which the imputed maneuver has exclusively a tax component, a distinction that the law has not made nor does it seem to be deduced from the interest expressed in achieving greater collection that allows it to balance its accounts in a situation of economic, financial and social crisis." (8)
On another occasion, the Federal Court of Appeals for Criminal Appeals resolved to revoke a ruling of the Oral Economic Criminal Court No. 1, departing from such support, indicating that, "from that perspective, it is not verified that the effects derived from the acceptance of the regime of law 27.541 are only operative in those cases in which the imputed maneuver has exclusively a tax component, a distinction that the law has not made nor does it seem to be deduced from the interest expressed in achieving greater collection that allows it to balance its accounts in a situation of economic, financial and social crisis. In that sense, merchandise subject to control, even by other specialized agencies, as indicated by the appellant, does not necessarily have to be left outside the regulatory framework set forth and the liberating effect provided by the legislator for the purposes of encouraging the aforementioned regularization and the collection of taxes derived from the import or export operation in question." (9)
Likewise, the Federal Court of Criminal Cassation has indicated that, “beyond the disquisitions about this extraordinary regime of extinction of criminal action, its motivations and objectives, it is certain that the unreasonableness of the application of the cause is not verified even in cases of aggravated smuggling and, in particular, in the case under examination, with the purpose of achieving the effective entry of customs taxes to the public coffers that the maneuver would have prevented.” To this, it added that, “from this perspective, authorized doctrine in the matter states that “…if the basis for punishment of the crime of smuggling is not found in the affectation of tax collection, but in the violation of the adequate, normal and effective exercise of the function of control of the international traffic of merchandise assigned to customs, it is not appropriate to find a limit in the application of the analyzed regime in the lesser or greater affectation that said control may present the judged conduct, but only in the existence or not of the tax obligation to regularize. If this were not the case, then all smuggling should be excluded because, as the Court said, this is a crime that exceeds the mere assumption of tax evasion…” (cfr. Vidal Albarracín, Guillermo, Analysis of the main problems that arise in the application of the so-called “moratorium law” referring to customs crimes, in Debates de Derecho Tributario y Financiero Magazine, Customs Law, Center for Studies of Financial Law and Tax Law of the University of Buenos Aires, year 2, No. 3, August 2022, p. 90). “ (Cfr. ruling 17.11.2022 – Federal Criminal Cassation Court – Chamber 4 CPE 1749/2019/2/CFC1).
In light of the above, it is important to note that if the law has not exempted from its scope any customs criminal figure determined by Law 22.415, it cannot converge to be limited in its application. In accordance with this, in the case of the recent Law 27.743, which provides the Exceptional Regularization Regime of Tax, Customs and Social Security Obligations, it must be made clear, to a greater degree, that the legislator did not decide to express within Article 4 as an excluded criminal type some of the crimes of the Customs Code. As it does with respect to certain infractional criminal figures. The only limitation being that there is no final judgment (Cf. Art. 5 Law 27.743).
Taxable Event
Customs, assuming its role as plaintiff, has considered the benefit of extinction inapplicable in customs criminal cases, when faced with an attempted smuggling crime - Article 871 of the CA -, its rationale being that it would not be applicable for those cases where the release of the merchandise to the market had not occurred. Thus, this was stated in the opinion of the General Subdirectorate of Customs Legal Technique of June 11, 2020, stating that, "the perfection of the taxable event varies according to the case, but there is always one element in common: the introduction of the merchandise for an indefinite period into the customs territory, which is presumed iure et de iure by the Customs Code."
Without prejudice to considering, in our opinion, that in what corresponds to irregular taxable events as established by art. 638 of the CA, the legislator imposes the import duty making a difference with the requirements that are required for the regular event (Art. 635/636 of the CA); consequently, the requirement that the merchandise be delivered to the market is not necessary in the case of a smuggling crime. But beyond this opinion, which was set forth in greater detail in the Commented Customs Code - Volume IV -, it is important to indicate that Justice was able to resolve regarding this observance carried out by the customs service, regarding the limitation of extinction in the event of not being an event that imposes the payment of taxes, based on not externalizing the entry for an indefinite period into the customs territory.
In order to do so, the Court has held that, "therefore, it must be concluded that, in the event that it had been intended to distinguish between different assumptions of customs crimes, and to assign only to some of these the possibility of accessing the exceptional regime established by art. 10 of law 27.541, this would have been expressly established by the legislator, whose inconsistency or lack of foresight is not assumed (Rulings: 306:721; 307:518) and, therefore, an interpretation of the legal text such as the one promoted by the complaint would entail an unacceptable arrogation of legislative powers proper to other powers of the State. That, as regards the impossibility of adapting the criminal actions derived from a customs crime that has not been consummated to the provisions of art. 10 of law 27.541, such argument cannot be received favorably either. First of all, it should be noted that, in the case of import duties, the taxable event consists of “importation for consumption” (art. 635 of the CA), understood as the merchandise that is introduced into the customs territory for an indefinite period of time (art. 636 of the CA). Consequently, if it is taken into account that the merchandise transported in the container involved in the present proceedings would have effectively entered a customs territory (in the terms of art. 2 of the CA), and that its stay for an indefinite period of time would not only have occurred in fact but, in addition, the evidence of the case would show the will that the presumed authors of the fact of entering the merchandise into the place in an illegal manner, the impossibility alleged by the complaint of verifying a taxable event generating a tax obligation susceptible of being regularized by the regime provided for by art. 10 of Law 27.541 is presented as a forced interpretation tending to unduly restrict access to the benefits of the amnesty provided for in the law by the legislator.”(11)
To which it is added that, "on the contrary, the criterion that after a comprehensive analysis of the provisions of Law 27.541 is presented as the most reasonable, consistent with the program established by the legislator, with the system of benefits that the cited law creates and in accordance with the rules of interpretation according to which in case of doubt it must always be decided in the sense that most guarantees the right in question, leads to the conclusion that customs crimes related to maneuvers tending to avoid or reduce tax obligations are contemplated regardless of whether they were consummated or have remained in the degree of attempt. That, finally, it is relevant to emphasize that it is not reasonable to admit the possibility that, despite the punitive legal equalization established by art. 872 of the Customs Code, someone who has managed to commit a crime could find himself in a more beneficial position before the law than someone whose illegal act only managed to endanger the legal asset protected by the law, without causing the harm that the consummation of the crime implies."
Thus, we believe that there is no possibility of attempting to make changes to the provisions expressly established in the tax and criminal framework, not only by Law 22.415 itself, but also due to the effects of the amnesty scheme implemented by the National Congress based on Law 27.541 and now with Law 27.743. Especially when the rule that imposed the Exceptional Regularization Regime of Tax, Customs and Social Security Obligations, as mentioned in the "criminal type" section, did not indicate, within article 4, that the attempted crime of smuggling was excluded from the scope of this benefit.
Subjects
As Drs. Guillermo Vidal Albarracín and Santiago Vidal Albarracín have pointed out, in customs criminal cases there is usually more than one defendant. If one of them agrees to pay the taxes owed, thus regularizing the tax obligation underlying the customs offense in question, the effect provided for in art. 59, paragraph 2 of the Criminal Code (amnesty) is transferred to the rest, since the tax obligation is joint and several. It should be remembered that the Customs Code, in its art. 782, provides for this situation by stating that “…the authors, accomplices, instigators, concealers and beneficiaries of import or export smuggling are jointly and severally liable for the relevant taxes…”.
A position that we have supported and in order to do so, in the face of the payment of taxes that may correspond to a criminal act, whether import or export, by one of the accused subjects, it will be necessary to transfer all the effects of the extinction or suspension of the cause to the rest.
Remembering, as we have mentioned in another work (13), that article 777 of the Customs Code indicates as debtor those persons who carry out an act taxed with taxes established in the customs legislation. In this sense, any subject who carries out an act that is affected by the application of a tax by the customs regulations, assumes the character of debtor. And consequently the active subject – State – will be its creditor. To this, it must be added that taxable events can be presented as regular or irregular – the latter from an unlawful action. That is to say, whoever carries out an import or export destination for consumption – definitive – will be the debtor of the tax obligation. But so will whoever carries out a taxable event considered irregular, which results from an action aligned with misconduct, among these “the commission of the crime of smuggling” (article 638 inc. “A” Law 22.415).
Accordingly, Law 22.415 (Customs Code) establishes as a debtor any subject who has committed an act that is taxed by customs legislation, whether it comes from one of those characterized as regular or irregular.
It turns out that whoever is charged as responsible for an irregular taxable event, such as the commission of smuggling, the tax obligation falls on the heads of all those who generated that event, in accordance with their criminal responsibility and which has led precisely to the determination of being faced with an irregular taxable event.
It should not be confused that in the event of a regular event – import or export destination – documented by a subject as an importer/exporter and therefore at that time holding the character of debtor, such tax liability may be transferred to the heads of others. This happens if that regular event, due to the verification of a punishable situation in terms of a smuggling crime, changes into a new event, recognized as an “irregular taxable event” and is when the tax liability passes to the heads of all the subjects who are charged.
Clarifying that the joint liability referred to in article 782 of the Customs Code determines who are the obligated parties in tax matters in the face of the irregular taxable event - smuggling. And with the purpose of not reducing the liability of anyone, since they are all equally obligated, the legislator expressed solidarity among them. But in no way do they cease to have their direct liability in the obligations that may arise from the irregular taxable event, which originated from the state of a reprehensible situation such as the crime of smuggling in a customs case. Without prejudice to the fact that, prior to its verification, there may have been a regular event and a responsible party - importer/exporter. Such tax liability on the part of all those who are accused is in line with the penal sanctions that for the crime of smuggling are specified in articles 876 inc. "c" and 886 of the Customs Code.
This has also been considered by the Economic Criminal Chamber and the Federal Criminal Cassation Chamber, resolving that, "... the effects of the amnesty would reach not only the author, but also the co-authors, accomplices and instigators. In this sense, the Federal Criminal Cassation Chamber has ruled by stating that "... the extinction of the criminal action provided for in the referred norm is regulated for the cases related to the tax obligations directly relevant to the crimes charged or attributable to the subject who carries out the externalization, that is, contemplated as elements of the objective criminal type. Indeed, the benefit of release extends to criminal actions that are being or may be being brought against a subject as long as the externalization is with respect to the transgressions that constitute the procedural object of the criminal case in progress (Confr. CFCP, Sala IV, 05/06/2017, case No. FCB12000035/2012/5/CFC2, Reg. No. 641/17.4) …”. (14)
Prohibited merchandise
Another aspect that has been questioned regarding the scope of Law 27.541 and its complementary provisions was the case of dealing with merchandise that is prohibited in nature. On this particular issue and without prejudice to the effects that may apply as of Decree 70/2023, it must be distinguished whether such prohibition is economic or non-economic, as well as whether it is absolute or relative. Obviously, if there were a case where, in addition to a tax difference, there is an obligation to add a certificate required by the new classification that has been determined, this could not generate the impediment of the protection granted by Law 27.743 for this new forgiveness regime.
In this regard, the Federal Court of Criminal Appeals ruled that, “with regard to the merits of the matter under consideration (the admissibility of the grounds for suspension of criminal action established by Law 27.541 and its amendments), it is observed that the first instance resolution has sufficient grounds. Specifically, it should be noted that the importer regularized the sums of money derived from the liquidations linked to the alleged events. Additionally, the investigating judge assessed, based on reports submitted by the AFIP-DGA, that the merchandise involved is not subject to an absolute prohibition. This last issue is particularly important, since the existence of an absolute prohibition is not suitable to generate any tax damage from which a tax obligation that may be regularized may arise (see, as appropriate and applicable, CSJN, file, FSA 8622/2013/CS1, Chehadi, Mallid v. Aduana La Quiaca s/ challenge to administrative act, rta. on 30/8/2022). Therefore, on the contrary, once this extreme (absolute prohibition) is ruled out, no impediments are observed for the application of Law 27.541 (and its amendments) to the present case.”
Adding that, “it should be remembered that I have said that “absolute prohibitions are based […] on issues that are of interest to the State […] in some cases it will be national security, in others public health or morality and good customs. The absolute prohibition itself tends to protect another legal asset different from the one we have taken as a basis for the analysis of customs criminal regulations […] An example of this is cultural heritage, in the case of prohibitions on the import and/or export of cultural goods; public health in cases of certain chemical substances; industry, in the case of the prohibition on the import of certain consumer goods” (cfr. Mariano Hernán Borinsky and Pablo Nicolás Turano -directors-, El crimen de contrabando, editorial Rubinzal-Culzoni, Santa Fe, 2017, pp. 215 and 216). As already stated and in light of the characterization outlined, the proven circumstances of the case indicate that the nature of the merchandise subject to the maneuver does not present itself as an obstacle to the application of the requested regime. In short, the court a quo does not adequately establish that the question it presents about the factual platform is substantial for the purposes of preventing the accused company from benefiting from the regularization regime.” (15)
Money laundering
Regarding the extinction of customs criminal cases due to money laundering, Law 27.743 specifies that they are released from all civil actions and from tax, exchange, customs crimes and administrative infractions that may correspond due to the non-compliance of the obligations linked to or originating from the assets, credits and holdings declared in this regime, in the income they have generated and in the funds that have been used for their acquisition, as well as the collection and liquidation of foreign currency from the Regularization of Assets of said assets, credits and holdings. Likewise, this release includes managing partners and managers, directors, trustees and members of the supervisory boards of companies contemplated in the General Law of Companies 19.550 (text consolidated in 1984 and its amendments), and equivalent positions in cooperatives, mutuals, civil associations, foundations, trusts and undivided estates, common investment funds, legal representatives of branches of foreign companies and professionals certifying the respective balance sheets. Highlighting that, the release from the criminal actions provided for in this article is equivalent to the extinction of the criminal action provided for in section 2 of article 59 of the Penal Code.
Here it can be observed that when indicating the effects of article 34 inc. b of Law 27.743, it states, "are released from all civil action and for tax, exchange, customs and administrative infractions, using the same terms referred to in Law 27.260 (16), namely:
This aspect has been questioned, since it was considered that it only covered “customs violations” but not “customs crimes”. This has been the subject of various rulings by the Justice system that have been able to clarify the due effect, also, for customs crimes.
- Federal Court of Criminal Appeals:
“Therefore, it is worth concluding that arts. 52, 53 and 54 of Law 27.260 cover both tax criminal matters and customs criminal law - with regard to customs crimes of a tax nature. Since, as it arises from the wording of the analyzed legal provisions, it is not reasonable to consider that the charges in customs matters referred to in the regulations are linked only to conduct that could constitute violations of Law 22.415, but that customs crimes of a tax nature should also be understood to be included in the law in question.”
“Having clarified the above, the particular situations of the present case require me to examine the records relating to the payment made by the defendant herein and the possible extinction of the criminal action in this regard.”
“As stated in article 18 of AFIP General Resolution No. 3920 of July 29, 2016, which regulates the tax amnesty regime provided for in Book II of Law 27.260 - a function delegated by article 93 of the aforementioned law - “…The capital cancelled prior to the entry into force of Law No. 27.260 will result in the extinction of criminal action, to the extent that there is no final judgment on the date of cancellation”. Therefore, it was expressly provided that criminal action will also be extinguished in cases where debts have been cancelled prior to the entry into force of Law 27.260.”
“Such has been the interpretation made by Chamber III of this Federal Court in the precedent “Martínez, Marcelo Tomás s/ appeal for cassation”, case FSM 6316/2016/CFC1, reg. 95/19, rta. on 27/02/2019, where it admitted the payment of tax obligations prior to the entry into force of the rule.”
"Moreover, the possible damage derived from the falsification of the commercial invoice (no. 3118292) used in the reported operation, has been dissipated with the payment related to the money laundering, a circumstance that also determines the extinction of the criminal action regarding the falsification of documents in the terms of the new cause of extinction provided for by art. 54 of the aforementioned law." (17)
Based on this, we consider that despite the legislator's repeated use of this terminology by using the term "civil action and tax, exchange, customs and administrative infractions" to define the effects of extinction, in this case in the case of money laundering, the issue cannot give rise to any discussion when applying the provision to customs crimes.
Conclusion
Argentina has several precedents of amnesties such as those that follow the guidelines introduced by Law 27.743. Although their motives may be supported by the considerations set forth in each of them, by virtue of the context and need that give rise to political decisions, and in relation to this, whether they are considered correct or not, they are beyond the possibility of being questioned by Justice, but their application is certainly under the protection of the latter for the purposes of resolving each of the extinctions that may be appropriate.
In this regard, we note that, taking into account the observations that have already been the subject of considerations and decisions taken, in order to interpret things that may converge to limits in their application, new considerations or oppositions of this nature should be avoided and resolutions should be adopted that do not orbit in time to define issues that, ultimately, lead to generating a state of uncertainty and legal insecurity, by placing those who see themselves with the right granted by law to close a process and having complied with the pecuniary requirement, not obtaining a definition in justice as the legislator has encouraged.
This is when it becomes evident that in this type of political measures, the objective in favor of the State is quickly achieved, but the one corresponding to the subject is not; because, on various occasions, the process continues through discussions that in many cases reside in interpretations that should already be rejected in limine, thereby preventing the objective of the norm itself, which has two purposes, one in favor of the State and another for the citizen, from finding in its achievement a reasonable period for both parties.
- Dr. Guillermo Felipe Coronel, “Considerations on the ruling that rejects the application of amnesty in Law 27.541”, 7.6.2020, Aduana News.
- See the opinion of the Public Prosecutor in CSJ 830/2012 (48-R) / CS1 “Rosenzvit, Héctor Abel and others s/ case No. 14.411”, whose grounds and conclusions were adopted by the CSJN. See the ruling February/2021, CPE 529/2016(-C)/151
- Law 27.541, Article 10: Compliance with this regime will result in the suspension of ongoing tax and customs criminal actions and the interruption of the criminal prescription with respect to the authors, co-authors and participants in the alleged crime linked to the respective obligations, even if the criminal complaint has not been made up to that moment or regardless of the stage of the process in which the case is located, as long as it does not have a final judgment. (Paragraph replaced by art. 4 of Law No. 27.562 BO 26/8/2020. See art. 13 of the reference Law. Effective: from the day of its publication in the Official Gazette of the Argentine Republic.)
- Judgment 29.7.2020, “Damino”, v. CPE 1279/2016/2/CFC1, reg. 923/20”, Indicated in judgment 8.9.2022, Economic Criminal Court, Chamber A, CPE 529/2016/210/11/CA202.
- Judgment of 17.3.2022, “Cáceres, v. FMZ 35311/2017/TO1/CFC1, reg. 143/22”, Indicated in judgment of 8.9.2022, Economic Criminal Court, Chamber A, CPE 529/2016/210/11/CA202.
- Judgment of 29.3.2019, “Guido, v. FCB 12000014/2010/TO1/CFC1, reg. 278/19, Indicated in judgment of 8.9.2022, Economic Criminal Court, Chamber A, CPE 529/2016/210/11/CA202.
- allo 19.4.2021, “Garfunkel, v. CCC 63390/2013/TO1/6/CFC2, reg. 455/21, Indicated in judgment 8.9.2022, Economic Criminal Court, Chamber A, CPE 529/2016/210/11/CA202.
- Judgment of 25.6.2019, “Ruchtein, v. FCB 32023049/2012/TO1/CFC1, reg. 1269/19.4, Indicated in judgment of 8.9.2022, Economic Criminal Court, Chamber A, CPE 529/2016/210/11/CA202.
- Judgment 19.4.2021, Federal Criminal Cassation Court, Chamber 4, CCC 63390/2013/TO1/6/CFC2.
- Commented Customs Code, Volume IV, Servicop Publishing House. Authors: Guillermo Felipe Coronel and Guillermo Sueldo, page 35.
- allo 12.8.2021, Economic Criminal Court, Room B, case 529/2016, File 205, incident no. 153, confirming the judgment of the First Instance Economic Criminal Court No. 6, Judge Dr. Marcelo Aguinsky.
- Drs. Guillermo Vidal Albarracín and Santiago Vidal Albarracín, “End of criminal prosecution in the recent customs amnesty law”, Published in Diario Judicial, referenced in Aduana News 16.6.2020.
- Dr. Guillermo Felipe Coronel, “Considerations on the ruling that rejects the application of amnesty in Law 27.541”, 7.6.2020, Aduana News.
- Ruling 25.3.2019, Economic Criminal Court, Chamber B, CPE 529/2016/205/84/CA132.
- Ruling 17.11.2022, Federal Court of Criminal Cassation, Chamber 4, CPE 1749/2019/2/CFC1
- Law 27.260, Article 46: The subjects who make the voluntary and exceptional declaration and pay the special tax, if applicable, established in article 41 and/or acquire any of the titles or shares provided for in article 42, and the subjects of the penultimate paragraph of article 38 for whom the voluntary and exceptional declaration may be made, in accordance with the provisions of this Title, shall enjoy the following benefits to the extent of the assets declared: …. b) They are released from all civil action and from crimes of the tax criminal law, foreign exchange criminal law, customs law and administrative infractions that may correspond for noncompliance with the obligations linked to or that originate in the assets and holdings that are declared voluntarily and exceptionally and in the income they have generated.
- Judgment 29.7.2020, Federal Criminal Cassation Court, Chamber I, CPE 1279/2016/2/CFC1.
The author is a lawyer and member of the Institute of Customs Law and International Trade of the Argentine Association of Constitutional Justice.
