In Buenos Aires, on December 17, 2004, the members of Chamber E, Drs. Catalina García Vizcaíno, D. Paula Winkler and Gustavo A. Krause Murguiondo (deputy), met with the presiding judge appointed in the first place, in order to resolve the case entitled Lirosi Juan Antonio v. DGA s/ appeal; file No. 19.637-A.
Dr. Catalina García Vizcaíno said:
I) That on pages 12/14 back, Mr. Juan Antonio Lirosi, in his own right, files an appeal against the Resolution-Judgment No. 219/04, insofar as it rejected the challenge he filed against the tax assessment, related to the import transit suspension destination No. 02 038 TRAS 016094B, while urging him to pay the sum of $48.432,13, jointly with the ATA Yolanda Estela Salassa, by virtue of the theft of the transported merchandise. He considers it illogical to attribute to him the burden of foreseeing the risk resulting from the transport of the merchandise, because he understands that security must be the responsibility of the State. He considers it incomprehensible that whoever is the victim of an illicit act should in turn be sanctioned with responsibility, and that it is also illogical to attribute to him the burden of foreseeing the risk. He points out that theft has always been a fortuitous event, not foreseeable, and that it should continue to be this way. He indicates that the carrier's responsibility lies in the application of art. 315 of the CA. He explains that the merchandise is considered lost for the owner and categorically it could not be used by third parties. He adds that the only way to use them and obtain a benefit from them would be to sell them, but that people who were not the true owners would lack documentation that legitimizes the legal possession and entry and the country. He deduces that, as a consequence, he does not owe the taxes settled by customs. He offers evidence. He requests that the appeal be upheld and the contested resolution be annulled.
II) That on pages 24/28 the fiscal representation contests the transfer that was duly conferred upon it. It states that art. 315 of the CA does not consider the merchandise to be irremediably lost when, despite not being able to be recovered by its owner, it can be used by a third party, in which case the tax exemption would not apply; this occurs in the case at hand, since the stolen goods could be used by their authors or other persons, even when the owner was prevented from recovering them. It points out that art. 311 of the CA establishes that once a period of one month has elapsed without the means of transport and its load arriving at destination, it is presumed, without admitting proof to the contrary and for tax purposes only, that the merchandise has been imported for consumption. He warns that the circumstances alleged by the appellant are incompatible with the conduct assumed by the Customs, which bases its actions on the documentation in the case file and the unassailable application of the principle of legality that governs the matter in question. He offers evidence. He requests that the opposing party's claim be rejected, with costs.
III) That on page 41 the proceedings are referred to Chamber E.
IV) That on fs. 1 of File No. DN 38 609/02 a complaint is filed, reporting that the merchandise covered by Summary Declaration 02038TRAS016094B has not arrived in La Plata. On fs. 5 and 7 are the customs transit declaration (MIC/DTA) and the consignment note, respectively. On fs. 9 is the report made at the Tigre Police Station. On fs. 12 the carrier is required to provide customs with duly certified evidence of the theft of the means of transport, as well as its merchandise. On fs. 14 the classification, valuation and official appraisal of the merchandise consigned in MIC/DTA No. 77855/02 is carried out. On fs. 23 the taxes are settled. On fs. 38/45 Mrs. Yolanda Estela Salassa de Fourcade files an objection in her capacity as Customs Transport Agent and on pages 50/53 the appellant herein as carrier presents his defense and on pages 71 supports the objection of the aforementioned party with respect to the charge formulated. Once the objection has been substantiated, on pages 107/112 Ref. Resolution-Judgment No. 219/04 (AD MEND) is issued, appealed in kind.
That such resolution provides to intimate the company TRANSPORTES JUAN ANTONIO LIROSI, and the ATA Yolanda Estela SALASSA DE FOURCADE, to make effective the payment of the tax liquidation that amounts to the sum of FORTY-EIGHT THOUSAND FOUR HUNDRED THIRTY-TWO PESOS WITH 13/100 ($ 48.132,13), within the peremptory term of fifteen (15) days, plus the interest provided for by art. 794 of the CA, under penalty of ordering the seizure of the merchandise.
That on fs. 128/vta. Ref. of the adm. ant. Mrs. Yolanda Estela Salassa de Fourcade, through attorney, makes it known that on 9/6/04 she filed a contentious lawsuit against Resolution-Judgment No. 219/04 before the Federal Court No. 2 of the City of Mendoza, giving rise to case No. 38.223/3, entitled FOURCADE, YOLANDA E. SALASSA DE C/AFIP DGA P/CONTENTIOUS, the proceedings being filed before Secretariat No. 3 in charge of Dr. Olga Pura Rabla de Canale, for which reason she requests that the proceedings before the DGA be suspended and that the proceedings be sent to that Court under the terms of art. 1175 of the CA.
That on 16/6/04 the appellant here, Mr. Juan Antonio Lirosi, notifies the DGA that he has appealed before this Tax Court (page 130 Ref. of the adm. ant.) and attaches a copy of F4 from which it appears that he appealed on 11/6/04 (page 131 Ref. of the adm. ant. and page 1 of the files).
V) That art. 1137 of the CA provides that "if in the procedure for the infractions at least one of the appellants opts for the judicial route, it will be considered that all the appellants have lodged their appeal through said route.
That, however, this provision is not applicable in this case, since this is an appeal of a decision that was handed down in the challenge procedure, in which case this Tax Court is exclusively competent in the immediate appellate level, except in the case of inc. f) of art. 1053 of the CA (see art. 1132 of the CA).
Although the customs transport agent invoked the assumptions of paragraphs a) and f) of art. 1053 of the CA, the contested resolution fell within paragraph a) of that article, which is why I consider that this Court is competent.
VI) That having established the above, it should be noted that the nullity raised by the plaintiff in its appeal is directly linked to the grievances that support the appeal, so that as Francesco Carnelutti teaches, ... from the principle of absorption of invalidation in the challenge also derives for the criminal process the rule formulated by scholars of civil procedure in the sense that The defects of the contested decision become grounds for challenge ; this means that as soon as a flawed provision is contestable, the power of invalidation does not coincide with that of contestation, but is absorbed in the latter as annulment is absorbed in 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 over the annulment of the flawed act; in this is manifested the slowly formed thought that the requirements of the act and, in particular, the formal requirements are valid not in themselves but as means to the end of its justice, which truth, although obvious, has not had an easy path in the history of law ( Lessons on criminal procedure . 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 The dispute involves issues of material tax law (charging taxes), the principle of absorption of invalidation by challenge also applies - as the distinguished proceduralist says - in civil proceedings; therefore, having deployed as support for the requested nullities grounds that are directly related to the grievances of substance, it can be concluded that the question of nullity should be rejected as regards its treatment 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).
Furthermore, it should be noted that it is Supreme Court doctrine that when the restriction of defense in court occurs in the procedure that is conducted in an administrative setting, 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 subsequent jurisdictional stage (Judgments, 205-549, 247-52 consid. 1º., 267-393 consid. 12 and others), because the requirement of 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 nullity was raised, no imposition of costs is appropriate.
VII) That the merchandise that gave rise to the contested tax assessment consists of 1466 cardboard boxes containing Christmas lights, the valuation and appraisal of which is found on page 14 of the previous administrative proceedings. Therefore, these are not registrable assets and can be used by a third party.
That the customs office recognizes the theft of these goods entered in transit (see second paragraph of the Consideration of the appealed resolution at fs. 107 Ref. of the adm. ant.).
Furthermore, the contested resolution states in its Consideration that the occurrence of the theft reported to the police authority is not a disputed fact, without prejudice to which it is necessary to analyze whether it exempts the transport company from tax liability even if it may be unrelated to the damaging event. Likewise, it recognizes that the transporter filed a theft complaint with the police and reported the incident to the customs service in accordance with the terms of art. 308 CA (page 109 of the ant. adm.).
That in this case the configuration of the crime of smuggling was not demonstrated (see pages 36, 38 and 41 of the proceedings, as well as pages 85/vta. of the administrative antecedents), which is why I understand that the provisions of art. 782 of the CA, to which I referred in the ruling issued in Nuestra Señora de la Asunción, dated 10/3/04 (file No. 17714-A), do not apply.
That art. 315 of the CA provides: Merchandise irremediably lost due to an accident occurring during its transport under the import transit regime and which has been communicated in accordance with the provisions of article 308 is not subject to the taxes that tax its importation for consumption, except for the fees accrued for services, provided that the cause invoked is duly accredited to the satisfaction of the customs service. Merchandise will not be considered irremediably lost when, despite not being able to be recovered by its owner, it could be used by a third party.
That in the sub-lite It should be noted that the theft of the merchandise did not prevent its use by a third party because it was fungible merchandise.
In this regard, the Supreme Court has held, although in the area of internal taxes, that the cigarettes stolen before their delivery for consumption are not subject to a refund, since the factual assumption provided for by law was established when the products left the factory. Furthermore, the stolen merchandise had tax stamps attached, so the repetition of such taxes is not appropriate, since there is no material possibility that these stamps will be invalidated or returned to the DGI (Nobleza Piccardo SA, dated 30/6/98; Fallos, 321-1812).
In addition to the above, art. 311 of the CA provides that: After a period of ONE (1) month, counted from the expiration of the period agreed for the fulfillment of the transit, without the means of transport that transports the merchandise subject to the import transit regime arriving at the exit or interior customs, as appropriate, whether or not its import is subject to a prohibition, it will be presumed, without admitting proof to the contrary and for tax purposes only, that it has been imported for consumption.
That, consequently, it is appropriate to consider the merchandise in question as imported for consumption and since it has not been proven that proceedings have even been initiated for the crime of smuggling, it is appropriate that the taxes in question be made effective by the carrier according to the provisions of art. 312 of the CA, since the theft of the merchandise ongoing It should have been a risk to be foreseen in order to take out the respective insurance, without the invocation of insecurity referred to by the appellant on fs. 137 back being able to prosper.
Therefore, I vote for:
1°) To confirm the Resolution-Judgment No. 219/04 (AD MEND) insofar as it has been the subject of the appeal. With costs.
2°) To order the appellant to pay within five days the remaining balance of the fee for proceedings provided for in Law 22.610 and amendments, for which purpose the interest calculated in accordance with the terms of art. 794 of the CA shall be added to the amount of the proceedings, taking into account the notification of 19/6/03 (page 37 of the administrative antecedents) until the date of filing of this case (11/6/04), in accordance with art. 1° of the aforementioned Law 22.610, under penalty that, once the amount has been determined, the General Secretariat of Customs Affairs shall issue a certificate of debt.
Dr. Winkler said:
I.- That the facts have been related in the preceding vote.
In my opinion, the fact that the customs office recognises that the theft of the merchandise entered in transit occurred is sufficient to render the tax requirement ineffective.
I do not share the considered vote of Dr. García Vizcaíno in the sense that the present is different from the one analyzed in "Our Lady of the Assumption, judgment of 10.3.04, file TFN No. 17.714-A, in what concerns my doctrine."
II.- That I held in said precedent established by the Supreme Court of Justice of the Nation that in the hermeneutical task a valuable interpretation of what the norms have wanted to mandate must always be sought, so that the admission of unjust solutions, when it is possible to arbitrate others of opposite merit, is not compatible with the common goal of the legislative and judicial task (Fallos, 310: 558).
On this basis, I stated that it does not seem fair or reasonable to consider that someone 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 to have been attributed.
It is true that the tax exemption established by the CA in relation to the destruction or loss of merchandise due to force majeure in the import transit regime (art. 315 of the CA) appears limited by the declaration made in the final paragraph of said rule, in the sense that it will not be considered irremediably when despite not being able to be recovered by its owner it could be used by a third party. If the rule is interpreted literally, it is evident that the alleged person responsible for the illicit act can dispose of the merchandise, even if it was obtained illegally.
That since the defendant acknowledges the aforementioned unlawful act, beyond the criminally proven situation or not, in my opinion it becomes applicable, to further the point, what was opportunely ruled by the Appellate Court, Chamber I, in Panamericana de Plástico, judgment of 19.6.90/513/6333 in what pertains to analogously applying the provisions of art. 26.2.92 of the CA. In the same sense, although in a cause of a different nature, my vote in FIC Fabricación de Instrumental Científico SRL, file TFN No. XNUMX-A, judgment of XNUMX/XNUMX/XNUMX, my vote.
IV.- That, for the reasons stated above, I vote to revoke ruling 219/94, in what was the subject of the appeal, without costs, in light of the existence of different jurisprudence on this matter in this same Chamber.
Dr. Gustavo A. Krause Murguiondo said:
That agrees with the vote of Dr. Catalina García Vizcaíno.
In accordance with the above agreement, by majority, IT IS RESOLVED:
1°) To confirm the Resolution-Judgment No. 219/04 (AD MEND) insofar as it has been the subject of the appeal. With costs.
2°) To order the appellant to pay within five days the remaining balance of the fee for proceedings provided for in Law 22.610 and amendments, for which purpose the interest calculated in accordance with the terms of art. 794 of the CA shall be added to the amount of the proceedings, taking into account the notification of 19/6/03 (page 37 of the administrative antecedents) until the date of filing of this case (11/6/04), in accordance with art. 1° of the aforementioned Law 22.610, under penalty that, once the amount has been determined, the General Secretariat of Customs Affairs shall issue a certificate of debt.
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