By Christian González Palazzo, Santiago Alejandro Alais, Pablo Sebastián Borgna and Juan Manuel Francia[1]
1. Introduction
Argentina has been in crisis many times, but on March 11, 2020, COVID-19 took the world by surprise. The virus gave rise to the pandemic declared by the World Health Organization (WHO), which by then had already affected 110 countries.
In this historical context, President Alberto Fernández, by Decree No. 260/2020, extended in our country the public health emergency established by Law No. 27.541, for a period of ONE (1) year. Said Decree was modified by Decree No. 287 of March 17, 2020 to verify compliance with the provisions of Article 42 of the National Constitution, carrying out inspection and survey tasks of commercial activity, among others, in order to have the necessary tools to guarantee the normal and usual supply of essential goods.
Based on all of the above, by Decree 297/2020, in order to protect public health, “mandatory social, preventive and isolation” was established, which in turn was extended by Decree 325/2020, until April 12, 2020 inclusive.
It is not the purpose of this paper to detail the number of measures taken by the different regulations related to the pandemic; But we do want to point out that customs regulations - as they are - have allowed the escape of valuable state resources[2], which in these times could well have helped the State as a whole and, consequently, the most disadvantaged Argentines.
In these difficult times, the customs community will notice that the direction outlined in the "XI International Conference on Customs Law of 2019" by the Member of the Tax Court of the Nation, Dr. Christian González Palazzo, linked to optimizing the procedure before the Tax Court so that the State obtains resources more quickly, prudently and effectively managing the scarce resources available to the State, becomes a priority.
On this basis, the reader is introduced to the problem of the reduction of penalties in the case of customs offences, in order to analyse the possibility of intelligently and beneficially exploiting the hearing provided for in Article 1151 of the Customs Code.
2. Depreciation of the penalty for customs violations
It has been noted previously that the penalty for customs violations has been reduced since the repeal of article 926 of the Customs Code (as of 1/04/1991) by article 10 of Law 23.928 (Official Gazette 28/03/1991)[3], losing much of its repressive power.
However, the issue has been explored from the perspective of the need for reform, which, after the passing of Law 27.430, did not occur at that time.
At this point, beyond warning these jurists that Law 23.928, which has repealed Article 926 of the Customs Code, suffers from a severe supervening unconstitutionality[4]; We are aware that the Tax Representatives cannot request the unconstitutionality of art. 10 of Law 23.928 and that, on the other hand, the Honorable Tax Court of the Nation cannot declare the unconstitutionality ex officio, if that unconstitutionality has not been previously declared by the Supreme Court of Justice of the Nation (the minority votes of two Members who have considered art. 1164 of the Customs Code unconstitutional, were isolated votes, that is, two of the three votes necessary for that position to become a sentence, declaring the aforementioned art. 1164 of the Customs Code unconstitutional, were never reached)[5].
It goes without saying that if the (supervening) unconstitutionality brought to light cannot be requested by the Public Prosecutor and cannot be declared (ex officio) by the Tax Court, then there will be no ruling that corrects the intrinsic injustice that the system currently has.
It should be added that the Honorable Chamber of Appeals in Administrative Litigation, despite having been called to exercise constitutional control ex officio[6], never ruled on the supervening unconstitutionality that was revealed, and which has been present since January 6, 2002 (when it was decided to end the Convertibility Law) until today (2020).
The harmful effect on the fiscal coffers from that date (2002) to today is as incalculable as it is significant; and in the midst of an economic and social crisis, those economic resources (genuine and legitimate) are needed more than ever in the State.
3. A sample is enough
Having said the above, it is worth noting that according to the data we have, the dollar was quoted at $01 on 07/2019/42,37[7] and on 31/03/2020 the currency reached $68,75 for sale[8].
The huge rise in the US currency meant that debts fixed in pesos on 01/07/2019 were outdated (or depreciated) as of 31/03/2020.
At this point, the real value (as opposed to the nominal) of the fine over time and the exchange rate confirms the thesis that was stated at the beginning of this work.
The Diario Clarín, for example, maintains that in 2019 inflation jumped to 53,8% and was the highest in the last 28 years[9] while the INDEC website itself shows that the interannual variation of the consumer price index has reached 50,3%[10] (report dated March 12, 2020).
The effect of having the fine in pesos at a nominal value that does not generate interest and is not updated until it becomes final (art. 924 of the Customs Code and art. 10 of Law 23.928), allows the penalty to naturally lose its repressive value over time, from when it is imposed (administrative resolution issued at customs headquarters) until it is confirmed (final court ruling). It will be in the offender's (numerically) best interest to appeal it to defer payment, thus achieving a softening of the fine; and the State, on the other hand, will be able to take much less advantage of the proceeds of the fine (which is ultimately one more resource) due to its diminished value compared to the effect of the passage of time.
In short, in this way, the penalty can become one more variable in a cold economic calculation. From this point of view, it would be (objectively) convenient for the importer or exporter to delay the payment at zero rate, something that surely many technicians would advise. We are not unaware that discussing the undisputed in order to delay a payment will very probably generate fees in favor of the litigating attorneys of the Treasury (to be paid by the appellant by application of arts. 1163 of the Customs Code and 68 of the Civil and Commercial Procedural Code of the Nation)[11]; However, the costs, including professional fees of all kinds, corresponding to the first or only instance, shall not exceed twenty-five percent of the amount of the judgment (art. 730 of the CCyC) and shall be paid within ten days of notification of the final regulation (art. 54 of law 27.423), while the fees for the second instance shall be regulated from thirty percent (30%) to thirty-five percent (35%) of the amount set for fees in the first instance (art. 30 of law 27.423). It follows from this that the trial in two instances may generate a total (maximum) cost for fees of up to 32.5%.
A Tax Court proceeding that ends in the Chamber can last about five years, if not much longer[12]. If we assume a duration of 5 years, the subsequent value of 32,5% for those five years of litigation could be considered equivalent to a non-cumulative annual interest of 6,5%. Under these conditions, it will be advisable (in objective economic terms) to appeal and not pay the fine, abusing the jurisdiction (or the right to jurisdiction).
It has been said that: “The abusive act is the anti-functional act, the act contrary to the spirit of a given right”[13]. We therefore consider that when the litigant uses defenses only as an obstructive or dilatory means to avoid compliance with what is due, this shows conduct that is at odds with the basic duties of loyalty, integrity and good faith, and in some cases, with the abuse of rights.
In order to demonstrate the economic effects highlighted, it is appropriate to refer to the case “SIDERCA SAIC v. DGA s/ appeal”, file no. 36.600-A.
In this case, the well-known company of the Techint Group, a group with an annual global turnover exceeding 23,5 billion US dollars[14] and a company that has an annual production capacity of 900.000 t of seamless pipes and offers a wide variety of products for the energy, automotive and agro-industrial sectors[15]; decides to challenge the customs resolution, considering that the reduction made by Customs by application of the self-reporting institute made by themselves (of $12.940.626,63 resulting from the 75% reduction of the minimum fine of art. 954, section 1, subsection a) and c) of the Customs Code, in accordance with the provisions of art. 917 Section 2 of the Customs Code, on a fine that amounted to $51.762.506,52) was an insufficient reduction.
That is, the company challenged the fine imposed for $12.940.626,63, seeking the application of article 916 of the Customs Code (remember that the $12.940.626,63 imposed as a fine is the result of the 75% reduction of the minimum fine corresponding to the self-reporting of the commission of the infraction of article 954, section 1, subsection a) and c) of the Customs Code, in accordance with the provisions of article 917 Section 2 of the Customs Code).
The fine of $51.762.506,52, equivalent at that time (2015) to US$ 5.414.488,12 (exchange rate US$1 = $9,56[16]) today at the exchange rate of $65 (early 2020) would mean the sum of $351.941.728,43. Put another way, the State with its system (which transforms the fine into pesos), forgave the company (expressed in current values by conversion to US dollars) the sum of $339.001.101,80 (resulting from subtracting the $351.941.728,43 the sum confirmed by the court, which amounts to $12.940.626,63), in terms of real values.
And under these circumstances, the company that owed the sum of $12.940.626,63 equivalent to the sum of US$ 1.353.622,03 (in 2015) would currently cancel that value with $12.940.626,63 equivalent to US$ 199.086,56[17](it is worth adding $3.000.000 of fees -approximately- in favor of the attorneys of the Treasury, which will not go to the state coffers, but will be distributed according to provision 275/2011 AFIP among its attorneys).
4. The duration of the infringement proceedings
In the event that an administrative resolution has been appealed before the National Tax Court (art. 1132 Ap.1 a of the Customs Code), there will be a period of duration of the process necessary for the Judges to resolve the conflict.
According to the Internal Audit Report of the Tax Court No. 6/2015 (currently the latest record), the deadline for resolving cases will vary depending on the Chamber in which the case has been drawn.
According to the report, the age of customs files in the Vocalías has increased by 2012% between 2013 and 12,4. There was also an increase of another 2013% between 2014 and 7.
These differences may vary in each of the Vocalities depending on whether it has been regularly occupied or whether it has been substituted for a long time.
The same report also carries out a quantitative analysis of the substantive judgments issued (which end the case) and the age of the resolved cases (days from the start of each case to the end of the case).
To this end, the report considers the time periods established by Law 11.683, determining that the resolution period should be approximately 1087 calendar days (this would be two years, eleven months and twenty-three days). The results were as follows:
It is worth noting that these statistics were carried out regardless of the type of sentence in question, so in many cases the average is influenced by sentences that are quickly resolved, such as preliminary questions, settlements or withdrawals.
Although we unfortunately do not have current statistics, the table clearly shows that in recent years there has been a delay in the resolution of conflicts by the different Chambers of the National Tax Court.
This leads to the conclusion that we are facing a delay in the resolution of a file of between three to five years of processing before the Tax Court, in order to obtain a ruling. A period that can also be extended to the extent that the file has been drawn in a Chamber that is currently subrogated.
Finally, in the event of a ruling issued by the Tax Court, there is always the possibility of appealing to the Federal Chamber of Appeals for Administrative Litigation (art. 1171 of the Customs Code). This procedure can also take between two and three years. In addition to the ever-present alternative of continuing the procedure before the Supreme Court of Justice of the Nation (which, although it is an extraordinary instance, since the Customs Code is a federal law, is often resorted to through extraordinary appeal).
For all the above reasons, we are faced with a procedure that is currently completely distorted in the excessive amount of time it takes to obtain a resolution of the conflict. It can last (procedure before the Tax Court and the Chamber) no less than five years, and even much longer, depending on the circumstances of each specific case.
This unreasonable delay in a procedure, whether judicial, jurisdictional or administrative, could be incompatible with the right to due process protected by art. 18 of the National Constitution and by art. 8 of the American Convention on Human Rights.[18]
It also leads to a significant reduction in the fine, which does not accrue interest until the sentence has become final.
It should be noted that the State coffers will not receive any income until there is a final judgment and that, when there is a final judgment, the value of the fine will be dramatically reduced.
On the other hand, if the taxpayer receives an unfavorable ruling, if it is an infraction followed by the payment of taxes (for example, an infraction of art. 970 of the Customs Code) he will have to pay the taxes in dollars plus the interest established by art. 794 of the aforementioned Code. These will be liquidated at an exchange rate determined on the day of actual payment and an interest rate established by Decree 589/19, even reaching 36% per year in dollars on some occasions[19].
Between the two parties, there is the exhaustion of jurisdictional resources both at the customs and judicial level, in order to be able to finally give a solution to a conflict that is completely unreasonable in its duration.
For this reason, we believe that in order to avoid the situation described above, it is necessary to incorporate alternative methods of conflict resolution for the customs infringement procedure. In this way, a definitive solution would be achieved in a much shorter period of time and could benefit all parties.
5. Alternative to provide the State with resources quickly
The economic reality brought to light is significantly multiplied when customs violations are discussed (we leave out taxes because art. 794 of the Customs Code provides for an update for this) because Every year, a large number of fines are imposed for violations that the administrators dispute in the Tax Court or in Justice. (via art. 1132 of the Customs Code).
In this scenario: What can be done to improve tax collection in times of emergency?
The fine for customs infringement before the Tax Court (under the terms of art. 1132 1.a of the Customs Code) gives rise to a procedure that is usually much slower than expected (the same occurs in the courts). As was pointed out above, waiting for the final judgment could be more damaging than agreeing to a reduction and collecting payment immediately.
In this context, the reform of Law 27.430 (BO 29/12/2017) incorporated a hearing (arts. 1151 of the Customs Code) that can be used for the parties to negotiate.
It goes without saying that the natural immediacy generated between the parties by the aforementioned hearing would sometimes allow for a fair recomposition of the parties' interests.
Obviously, if the payment of a fine that satisfies the State's claim at that time is agreed, three desired effects for the Treasury would be achieved: (1) liquidity for the State;(2) stop the derogatory effect of the passage of time; while the user obtains the benefit of ending the process by paying a reduced fine and (3) avoid a waste of jurisdiction by shortening conflict resolution times.
In this way, when the parties negotiate the reduction of the fine, the Treasury will lose a value that does not alarmingly depreciate its claim; in addition, the judge will be able to assess the conduct observed by the parties during the substantiation of the process, specifically at the hearing (art. 163, section 5, last paragraph of the Civil and Commercial Procedural Code of the Nation, by application of art. 1174 of the Customs Code).
In this case, if the accused is reluctant to reach an agreement, the Judges will have one more element to raise the punitive scale above the minimum; and when, on the contrary, it is the Treasury that does not allow an agreement to be reached, the conduct of the Customs may be taken into account to reduce the fine.
In order to fully understand the amount that the Treasury should agree to, and to guarantee transparency in this task, which in no way can be left to the discretion of the Tax Representative, but which must have clear instructions, we propose the creation of a department[20] that will numerically analyze the maximum discount value that would be reasonable to reduce, taking into account the probability of success and the estimated duration of the process, in each specific case.
As has been argued throughout these paragraphs, we are faced with a system that does not suit any of the parties. The excessive time that infraction procedures take to obtain a resolution means that the possibility of money entering the National Treasury is completely delayed.
From the users' point of view, although resolution 589/19 establishes a specific interest rate for debt determined in dollars, the reality is that many files prior to 2019 are still in process, where taxes are settled and generate the possibility of having to face a significant debt for interest.
The fact that these cases can be concluded before a court ruling is issued, with an alternative method of ending the conflict (such as negotiation in a hearing before a member), would help to channel the situations and bring about a much more friendly resolution for all parties.
In this way, we understand that a solution could be provided to resolve one of the problems that COVID-19 has posed, providing a greater inflow of cash to the State coffers and also reducing the use of human resources when it is possible to reduce it (giving other tasks to the agents).
6. The possibility of reaching an agreement in the procedure before the Tax Court
The development of this publication leads inexorably to the conclusion that, in these modern times, and even more so after a pandemic, there is a need to negotiate in order not to squander state human resources and to obtain economic resources quickly, in order to meet the most basic requirements of Argentines in times of crisis.
It is not necessarily a question of demanding from those who have a greater capacity to contribute, but rather of taking advantage of the resources that we currently have available, avoiding the abuse of the process before the Tax Court, for the benefit of all parties. At this point, we propose a transcendental advance, escaping from the so-called zero-sum games[21]. The only problem will be to determine whether it is possible for the National Treasury to carry out a negotiation and close it.
The first thing that a reader specializing in customs or tax matters will think is that the principle of unavailability of tax credit can be an obstacle for the tax authorities to formalize agreements.
However, this would not be an impediment, as long as taxes are not negotiated but penalties and modalities for the cancellation of the taxes due in each case (this is the integration of the "negotiation" phenomenon to which we refer above); since the referred principle (as its name indicates and in accordance with the principles of equality and uniformity[22]) is based on the fact that taxes cannot be reduced; but the penalty for customs violations is a fine of a penal nature[23] and not a tax.
It would not affect at all to agree - in a context of negotiation of the sentence - also a payment plan to cancel the tax demand. Therefore, it is necessary to analyze a priori whether
Can customs institute criminal proceedings?
In principle, the criminal infraction action is extinguished by: a) amnesty; b) death of the accused; c) prescription[24]; a circumstance that could be considered a limitation, since the transaction is not foreseen for the specific case.
Notwithstanding the foregoing, in proceedings before the Tax Court, where customs violations are discussed, the Code of Criminal Procedure for the Federal Court and the Courts of the Capital and National Territories applies supplementarily (art. 1174 of the Customs Code).
It should be noted preliminarily that the National Tax Court exercises jurisdictional functions, and like the federal administrative litigation court, these are substantively or materially judicial -For this reason, it is correct to call them, especially after the constitutional reform of 1994, jurisdictional-judicial powers.-, insofar as it is an organ of justice (in the customs case), impartial and independent of the active administration; and it is the only court in the country specialized in customs matters, which is why it must enjoy at least the same powers as those held by definition by the courts of justice in any type of process involving the determination of rights, insofar as both have the duty to adopt fair decisions based on full respect for the guarantees of due process and full double instance established in article 8 of the American Convention on Human Rights and equally participate in the sublime mission of administering justice (cfr. “Shimisa de Comercio Exterior SA s/ media cautelar” -File 30.400-A-, of February 10, 2012, Sala F Dres. Garbarino and González Palazzo).
That said, and going little by little into the answer - or our proposal - to the question posed above, as jurisdictional operators of foreign trade we can recognize and expose a harsh reality that has affected the activity since long ago, at least since we studied law.
The jurisdictional system is slow, it provides the response sought by those requesting the service late, presenting itself to society as an evil that one lives with, accepting it with resignation and hope for change.
The functional collapse and poor distribution of human resources in the organizations whose mission is to provide them is so old that it exceeds the capacity of even the most titanic official to respond in a timely manner.
As stated, we have grown up - and become accustomed - to the depreciation of our currency and to a fluctuating economy with such dynamism that it makes any regulatory forecast impossible (which shows that its stoicism is not always a virtue in any jurisdictional system).
The academic formation of criminal law based on the Seven Partidas of Alfonso X (the Wise) that supported the inquisitorial system that captured the essence of the principle of legality, as well as the bad examples set by dysfunctional officials for the needs of the Republic have disturbed terms and institutions to the point of providing them with negative emotional connotations.
In our country, talking about the State itself having the penalties available by applying the principle of opportunity has been a discussion as old as the Republic, since it must be referred to art. 11 of the Regulations of Administration of Justice issued by the General Constituent Assembly on September 6, 1813, insofar as it enables the competent authority to ensure "the progress of cases, removing obstacles that oppose their completion and cutting off by prudent means those that are of little importance" (Sampay, Arturo E. "The Constitutions of Argentina (18010-1972) Eudeba, Buenos Aires, 1975, p. 150).
Talking about the principle of opportunity to dispose of public action did not constitute an act of heresy at that time, but not long ago, with the happy reforms of the substantive and procedural order in criminal matters, any doubt in this regard has been finally cleared up, revealing a reality that is presented in accordance with the principle of legality established in art. 18 of our Magna Carta.
Law 27.147 (Official Gazette 18/06/15) adopts the criterion or principle of opportunity by inserting it in art. 59 of the Criminal Code of the Nation, insofar as it provides that “Criminal action shall be extinguished … 5) By application of a criterion of opportunity, in accordance with the provisions of the corresponding procedural laws; 6) By conciliation or full reparation of the damage, in accordance with the provisions of the corresponding procedural laws; 7) By compliance with the conditions established for the suspension of the trial on probation, in accordance with the provisions of this Code and the corresponding procedural laws”.
All of this implies that "the rules of availability of the action that have been embodied in the substantive legislation must be correlated with the corresponding procedural laws, since they regulate the requirements that must be met. That is to say, the substantive code determines the generic framework and the codes of the rite the specifications for it to function" (http://www.rubenfigari.com.ar/el-principio-de-oportunidad-o-disponibilidad-de-la-accion-penal-en-el-codigo-penal-ley-27-147-y-en-el-nuevo-codigo-procesal-penal-de-la-nacion-ley-27-063/).
For its part, in accordance with the provincial regulations that adopt the principle of opportunity (such as the Criminal Procedure Codes of Chubut, Santa Fe, Entre Rios, Rio Negro, Jujuy, Neuquen, Misiones and La Pampa), the Federal Criminal Procedure Code approved by Law 27.063 incorporates in its art. 30 the “Availability of the action” stipulating its admissibility in the following cases: a) Opportunity criteria; b) Conversion of the action; c) Conciliation; d) Suspension of the trial to evidence, institutes that appear in the Criminal Code of the Nation in articles 59 paragraph 5), 6) and 7) and art. 73 paragraph 2.
There is no doubt that the availability of action in criminal matters is a reality that is almost five years old and, until now, little has been criticized regarding its applicability.
Is it applicable to the customs infringement process?
To answer this new question, we will appeal to rhetoric. How can we rationally maintain that what applies to crimes cannot apply to infractions?
The discussion can now begin on who, how and when these new institutions can be implemented.
As previously stated, the first instance that meets the conventional requirements is the National Tax Court.
Its judges are guaranteed the inalienability and intangibility of their remuneration and it is an impartial and independent body within the central Administration.
His decisions are enforceable and his jurisdiction, as federal as it is specific, presents him in the infraction proceedings as the ideal director for making any decision that implies his potential availability.
There are, we understand, clearly two assumptions in which the -or- the Members will be able to analyze the provenance of the procedural institute that, by supplementary application, is incorporated into the specific normative complex, the Customs Code.
The first, in those long-standing cases in which the scourge of currency depreciation is reflected, is a case in which it will be possible to verify whether it is convenient for the State to assign human resources (scarce and expensive) to the study of some cause of little or no economic significance, diverting it from those that do have it.
It should be remembered that the Judge is an administrator of justice and of the human resources assigned to him for the fulfillment of his mission and will be responsible for the effectiveness and efficiency of the actions deployed for this purpose.
A general rule is that, at any time during the process - obviously prior to the sentence - the Member may - applying criteria of insignificance - extinguish the action by eliminating the stock of files pending resolution that occupy the shelves that crowd the expensive square meters of the building where it operates.
A second variable where the Member - or the Full Chamber - of the National Tax Court may analyze the future of the criminal action that is intended to be imposed on an individual is on the occasion of the hearing provided for in art. 1151 of the Customs Code.
On this occasion, the parties will have their first formal contact with the Judge who will resolve their conflict, with all the documentation in sight and with the relevant optional legitimacy, they will be able to agree on different variables to end the process.
One of them is a reduction in the fine that must be paid within the agreed period under penalty of execution (the agreement reached will be immediately approved).
Another question that merits thought - and in this work we will only limit ourselves to this - is why not accept that the parties can agree on the method of payment of the taxes (for example through payment plans) by disposing of the penal action (negotiating part or all of what is claimed as a fine) if, ultimately, the parties care - legitimately - about the destination of the taxes due to their permanent updating, in many cases in US dollars, with the interests running ahead of the potential delay that the continuation of the process could generate.
In short, in times like the ones we are living in, with the need to collect taxes to meet the costs of a pandemic that has paralyzed the country and almost all of its administration, it is necessary - and we are convinced that this will be the case - that as operators of the customs justice service we propose variables that provide efficiency to the collection system with effectiveness and legality.
It is the Tax Court of the Nation, unique in its type in terms of competence and jurisdiction, with an electronic file system that allows the process to be substantiated without the parties having to leave their homes, the space where they can move towards a procedural dynamic that is useful for all.
Using State resources to optimize them in order to collect taxes efficiently and legally is such an urgent need that it forces us to think urgently about variables that help preserve the Republic's resources in times of crisis like those we are experiencing like never before since its beginnings.
Source: El Dial
[1] Christian Gonzalez Palazzo, Lawyer graduated from the University of Belgrano. Master in Magistracy and Judicial Law from the Austral University. Member of the National Tax Court.
Santiago Alejandro Alais, Lawyer graduated from the University of Belgrano. Master in Tax Law with a focus on customs from the Universidad Austral. Coordinator of the Diploma in Customs Law at the Universidad Austral.
Pablo Sebastian Borgna, Lawyer (UBA), Specialist in Customs Law (PTN ECAE), Specialist in Customs Management (UnLAM), professor of legal regime at the Customs Training Institute.
Juan Manuel Francia, Lawyer (UBA), Customs Law Specialist (PTN ECAE), professor of the Customs Law Update Program at the University of Buenos Aires.
This publication represents only the personal opinion of the authors and should not be considered the opinion of any institution or entity regarding the topics discussed.
[2]The fine for customs violations, in the opinion of these authors, constitutes a genuine resource since all perceptions and income received by the State of any nature, which are intended to finance public expenses, are called “Public Resources”.
[3]Pablo Sebastian Borgna “The Depreciation of Penalties for Customs Offences” for the newspaper La Nación, (http://www.lanacion.com.ar/1937048-depreciacion-de-las-penas-en-las-infracciones-aduaneras), published on 13/09/2016; and Pablo Sebastian Borgna“Customs Violations: Depreciation after the long appeal process” for the Argentine Jurisprudence Journal of the AbeledoPerrot Publishing House, dated 05/04/2017 (AP/DOC/1126/2016).
[4] We speak of supervening unconstitutionality because in 1991, art. 10 of law 23.928 repealed art. 926 of the Customs Code in a special context for the country, in the face of the arrival of the convertibility law, with a strong national currency (one-to-one parity with the dollar). This situation, unfortunately, 29 years later did not continue (there is no longer one-to-one parity with the dollar). The law could be constitutional in this context of one-to-one parity between the dollar and the peso; but not in an inflationary context, such as the one we have had since 2002.
[5] SCJN “Lanera Austral SA (TF 13912-A)” (Rulings 332:1186) and art. 1164 of the Customs Code, which has been respected by all the Judges of the Tax Court of the Nation with customs jurisdiction, except by Drs. Pablo A. Garbarino and Juan Manuel Soria in the case “CARGILL SAC e I. v. DIRECCIÓN GENERAL DE CUSTOMS s/ appeal”, file no. 28.754-A and “TRANSPORTADORA DE GAS DEL SUR SA v. DGA s/ appeal”, file no. 38.422-A; who considered it unconstitutional.
[6]Based on the SCJN case “Mill de Pereyra, Rita Aurora; Otero, Raúl Ramón and Pisarello, Ángel Celso vs. State of the Province of Corrientes s/ administrative contentious claim (M. 102. XXXII. M. 1389)”, (Fallos 324:3219), judgment of September 27, 2001, the declaration of unconstitutionality can be carried out even ex officio. In fact, our highest Court has said with determination: “Although the courts cannot make declarations of unconstitutionality of laws in the abstract, that is, outside of a specific case in which the application of the rules supposedly in conflict with the Constitution must or can be carried out, the need for an express request by the interested party does not follow from this, because as the control of constitutionality deals with a question of law and not of fact, the power of the judges to supply the right that the parties do not invoke or invoke wrongly – iuranovit curia – includes the duty to maintain the supremacy of the Constitution (art. 31 of the National Constitution) by applying, in case of conflict of rules, the one of higher rank, the constitutional one, discarding the one of lower rank (Vote of Judge Carlos S. Fayt). -From the precedent “Rodríguez Pereyra” (Fallos: 335:2333), to which reference is made” (SCJN: “Codina, Héctor v. Roca Argentina SA s/ law 23.551 (C. 387. XLV. RHE)” (Rulings: 337:1403), judgment of December 11, 2014).
[7]https://www.bcra.gob.ar/PublicacionesEstadisticas/Cotizaciones_por_fecha_2.asp
[8]https://www.bna.com.ar/Personas (consultada en fecha 31/03/2020)
[9]https://www.clarin.com/economia/2019-inflacion-53-8-peor-resultado-ultimos-28-anos_0_tJKzWk1Z.html
[10]https://www.indec.gob.ar/uploads/informesdeprensa/ipc_03_20E71234346A.pdf
[11]At this point, it is also worth noting that the fees of the tax attorneys are shared among the attorneys (see art. 98 of Law No. 11.683 and Decree No. 1089 of February 15, 1965, replaced by AFIP Provision No. 275/2011); that is, this 32,5% does not enter the state coffers.
[12] In the case “Bossi and García SA (TF 5932-A) v. DGA (Fallos 334:1264)” of 2011, the SC points out that the process before the Tax Court had extended from April 1987 to December 2000 and appealed -in turn- to the Chamber, the appellate court issued a ruling on April 30, 2007 (that is, practically 20 years passed in two ordinary instances).
[13]Barber, Omar U., (2006), "Abuse of Law”. Edit. “El Derecho” (Private Law Collection), p. 62 (article published by Dr. Verónica Melo entitled: “The principle of abuse of law and its projections to new technologies).
[14]http://www.techint.com/es-es/history/ (consultado el 31/03/2020)
[15]http://www.bnamericas.com/company-profile/es/siderca-saic-tenaris-siderca(consultado el 31/03/2020)
[16] The fine was imposed by AD CAMP Resolution No. 821/2015 issued on November 03, 2015, when the parity was $9,56 (https://www.bcra.gob.ar/PublicacionesEstadisticas/Cotizaciones_por_fecha_2.asp)
[17]Calculated at $65 according to https://www.bcra.gob.ar/PublicacionesEstadisticas/Cotizaciones_por_fecha_2.asp
[18]TFN, Room F, 2/05/2013, “Hamburg Sud Argentina Branch v. DGA s/ appeal"
[19]https://www.lanacion.com.ar/economia/comercio-exterior/intereses-exorbitantes-nid1872647
[20] Given that litigation as a whole is a matter more closely linked to judicial work than to customs technique, we believe that this area should be created within the scope of the Legal Department of the Technical Legal Sub-Directorate of the AFIP DGA; since the Legal Department is the area with the most experience in customs judicial litigation. The authorization granted by the Agency to reduce the penalty for customs violations can be made effective through art. 916 of the Customs Code.
[21]https://es.wikipedia.org/wiki/Juego_de_suma_cero
[22] Arts. 16 and 75 inc. 1 of the National Constitution
[23] SCJN. Parafina del Plata SA (rulings: 271: 297); SCJN. Wolczanski, Hersch. (rulings: 267:457); SCJN. Miras, Guillermo SACIF v. National Customs Administration. (rulings: 287:76); Papelera Hurlingham, SAI & C. v. National Customs Administration. (rulings 288:356)
[24]Art. 929 of the Customs Code provides: “The action to impose penalties for customs violations is extinguished by: a) amnesty; b) death of the accused; c) prescription.”
