Buenos Aires, February 6, 2002
CARS AND SEEN:
File No. 14.216-A entitled MAGGIOLI, CURIO C/DGA S/REC. OF APPEAL, and
CONSIDERING:
I.- That on pages 2/3 the plaintiff, Curio MAGGIOLI, in his own right, files an appeal against Resolution No. 256/00 (OF ASAT) issued by the Department of Administrative and Technical Assistance of Buenos Aires, of the DGA, in file ADGA No. 431.598/97, by which the refund that the aforementioned plaintiff had claimed, through said file, with respect to the import duties paid by him in relation to import clearance No. 83.741-7/96 by which the importation for consumption of an automobile had been documented, was denied. The plaintiff refers to the facts underlying the issue, basically that the automobile whose import for consumption was documented by the aforementioned office had to be reshipped because it could not be delivered to the market (because the arrival of the same occurred after the respective import certificate had expired), and that the refund of duties that it consequently requested was denied based on art. 237 of the CA. The plaintiff maintains that this rule does not prevent the refund because the automobile was not imported for consumption for reasons beyond its control. It also maintains that since the taxable event did not occur (since there was no release) the payment of the tax is not appropriate. In this regard, it cites doctrine and invokes the undue enrichment without cause of the treasury in the event that the requested refund is not made. It requests that the appealed resolution be revoked and the claim be upheld.
II.- That on pages 13/27 the fiscal representative attaches the administrative acts in the background of this case (file ADGA No. 431.598/97) and answers the transfer of the appeal. In an extensive exposition, she first makes a summary of the proceedings and the facts in the background of the matter and refers to the grievances of the plaintiff. Then she makes a broad doctrinal exposition about the legal relationship and the customs tax obligation, the fact taxed by import duties and therefore the import for consumption, the relevant moment to determine the applicable tax treatment (taxable moment), the institute of withdrawal and consequently of art. 237 of the CA, all of this as a basis to maintain, in short, that based on the provisions of decree 249/91-… the taxable event, that is, the importation for consumption- is consummated with the payment and registration of the application, and hence as soon as the plaintiff paid the duties and registered the dispatch- at the discretion of the tax representative… the definitive destination of importation for consumption has been made (see fs. 22 of the proceedings) and therefore the refund of the taxes by invoking the withdrawal is not appropriate. It cites doctrine and jurisprudence that it understands to be applicable to the case and in favor of its position; and requests that the customs decision be confirmed.
III.- That on page 29 the proceedings are elevated to this Chamber G and are submitted for judgment.
IV.- That according to the records of the administrative proceedings prior to this case (file ADGA 431.598/97) the plaintiff documented, through direct dispatch to plaza No. 83.741-7/96 registered with the Buenos Aires customs on 22.7.96/1996/21.6.96, the importation for consumption of a Honda CIVIC 17.7.96 model automobile, merchandise shipped in Miami (USA) on 8.262/4.068/407 and arrived on 22.7.96/31/93, liquidating and paying the taxes (duties, statistics, VAT and advances on VAT and Income Tax, for a total of US$ or $95 which therefore included the amounts of $13.8.96 of duties and $24 of statistics), payment of which last deposit was made on 23.8.96/XNUMX/XNUMX (the same date of the dispatch registration), and the customs did not release the goods. English: reason that the import certificate had expired at the time of arrival (art. XNUMX of Resol. XNUMX/XNUMX), and the vehicle was detained at the DEFISA bonded warehouse on XNUMX/XNUMX/XNUMX (up to this point, see the evidence of the dispatch documentation contained in the envelope on page XNUMX of the aforementioned file, which includes the Note dated XNUMX/XNUMX/XNUMX - notifying the reason for the detention, and the certifications of the tax payments and their dates, as well as copies of the respective deposit slips, and as for the date of arrival, see the official record on the back of the envelope containing the dispatch).
Finally, the car, after being transferred from the DEFISA Depot to Dársena Sur Dock 1, was re-embarked on 20.6.97 on the Ferry Ciudad de Buenos Aires, trip 6391, Bill of Lading No. 6, bound for Colonia-Uruguay (see the records on pages 11, 19 and 30 of the administrative records).
On 11.9.97 the plaintiff requested, through the aforementioned ADGA file 431.598/97, the refund of the amount of $/US$ 4.475 (paid as duties plus statistics for the office in question). On pages 20 and 27 there are separate opinions from the Verification Division and the Customs Operations Supervision Department, both denying the claim. On pages 28 the opinion of the legal service was issued (also denying based on art. 237 of the CA). On pages 33 the resolution appealed in this case was issued based on the aforementioned reports and legal opinion.
V.- That the importation for consumption of the automobile in question was documented by application of the regime of decree 2677/91 and in this regard the import certificate provided for by the regime was attached (according to one of the possibilities by which the aforementioned regime allowed the importation of automobiles for consumption, that is, through the quota regime); so that it would have been a case of a supposed – regulated - that allowed the importation for consumption that was in principle prohibited (hence a relative prohibition in the terms of art. 612 of the CA, that is, importing is permitted to certain persons, obviously based on compliance with certain conditions imposed by the regime established by virtue of legitimate delegation of powers).
Specifically, the applicable regime established (art. 31 of Resol. SIC 93/95) a validity period for the quota certificate, or that the arrival of the vehicle to the customs territory would take place before a certain period based on the aforementioned certificate.
It is not at issue here whether or not the possibility of an exception to the prohibition was applicable in this case (that is, whether or not it was appropriate to authorize the delivery of the car to the person who documented the import clearance), since according to the factual background outlined above - it is clear that the customs service did not authorize the delivery, but rather stopped the clearance, the car was detained in storage, and it was then re-shipped to a foreign destination (that is, it was exported for consumption since a re-shipment without an obligation to return was documented, that is, the exit from the customs territory for an indefinite period of time, art. 331 of the CA); consequently, the importation of the car for consumption was not authorized due to the application of an import prohibition.
The issue is that, since an import ban was applied and therefore, as in the case - the respective requested release was denied (release of the merchandise at the requested destination of import for consumption), which is not disputed, it must be determined whether or not the refund of the taxes paid is appropriate when documenting the aforementioned request for destination.
In this regard, the position of the customs (in this case, more developed by the tax representative in her written response to the appeal, which reveals a commendable effort, than by the criterion of the appealed resolution, which limits itself to invoking the opinion of the legal service and reports in the administrative acts, which merely invoke art. 237 of the CA without further grounds), is basically based on the fact that, since it is not possible to desist (once, as in this case, the taxes have been paid, which is correct, according to art. 237 of the CA), the importation for consumption has already occurred, that is, the taxable event or taxed event; strictly speaking, what is being stated is that the taxable event would have already occurred with the registration itself of the destination request (registration of the dispatch), the latter as a consequence of the fact that, as of decree 249/91 in force at the time of the aforementioned registration, it is not possible to register or make official the dispatch without prior payment of the taxes (this payment, therefore, must currently not only be prior to the issuance - art. 789 of the CA - but even prior to the registration of the pertinent request), whereby, if the importation for consumption of the documented merchandise (registered dispatch) were taxed as in the case here, it could not be withdrawn once the dispatch was registered, that is to say, in such a case the registration would determine the occurrence of the taxable event. This would then be the fiscal position if it is not possible to withdraw (art. 237 of the CA) and if therefore there is already a taxable event from the moment of registration, the effects of withdrawal could not occur (art. 236 of the CA) which consist of not applying the taxes that tax the import for consumption, that is, not applying the taxes that are applicable for the import for consumption (art. 637 of the CA), so that, for customs, such taxes would therefore be applicable even if there was no release.
However, this customs criterion is erroneous.
For now, the aforementioned article 237 does not say that if taxes are paid, that is, once paid,… their refund is not appropriate (in any case) because the taxable event has already occurred, but rather that what is not appropriate is the withdrawal of the respective application.
And this is consistent with the fact that it is perfectly possible that even if the merchandise has already been imported (arrived in the customs territory) and the taxes have been paid (obviously having already registered the pertinent request for importation for consumption), the taxable event of importation for consumption has not yet occurred, or may not occur, that is to say that even if it is not possible for the importer requesting it to validly withdraw, by the sole expression of his will (in the terms of arts. 236 et seq.), the importation for consumption may in its case not be carried out or occur (here it should be noted, as a digression, that when the taxes have been paid due to having requested the importation for consumption by processing a direct clearance to the place, the merchandise may in any case not arrive, that is to say the fact of arrival may not occur, that is, of the mere importation, and therefore it cannot be withdrawn because the aforementioned payment has been made - but there is no importation for consumption, without analyzing here if the return of taxes is appropriate). in any case of non-arrival, even due to the mere will of the importer who agrees not to ship - or only limited to non-arrival due to chance or force majeure, since this is not the case at hand).
The above, since there is no doubt that the importation for consumption, in regular cases based on the regulated request of the importer (articles 233 et seq., 271, 286, and cc., of the CA), is specified, perfected, materialized, or consummated, with the release (articles 231, 248, 271, and cc., of the CA), which requires the arrival - the physical fact of mere importation -, the payment of taxes, and the conformity of the customs if it intervenes in the review and verification through the selectivity channel - with what was declared and liquidated; and therefore, without that act of release, in said regular cases, there is no importation for consumption, there is no taxable event (articles 635 and 636 of the CA).
Indeed, without such an act it is neither materially nor legally possible for the merchandise to remain lawfully - for an indefinite period of time - in the customs territory (the importer who is authorized by the order to withdraw it to the place of the requested destination cannot have it in such a manner).
That the taxes applicable always in said regular cases - are those that correspond to those in force at a given time (of those established according to the case by art. 637 of the CA in harmony with art. 639), which is any of them - necessarily prior to the release, does not mean that the import for consumption is carried out or occurs at that specific time, but simply that that time determines the applicable taxes, if the import for consumption actually takes place. The fact is that in customs taxation (specificity of the customs tax obligation), and in the indicated regular cases, the legislator has wanted to establish the applicable taxes based on a time prior to the occurrence of the taxed event, which will normally occur, but may not occur, and this, like its payment, also prior to the occurrence of the taxed event - obeys an aspect of collection technique proper to customs taxation.
Thus, if after the taxes have been paid the merchandise does not arrive at the customs territory (case of direct clearance, as already stated), or if with the same subsequent time and for any reason or cause the customs applies an import prohibition (and this application becomes final), there will be no import for consumption, there will be no taxable act. And this last is precisely the assumption of the case at hand, since, as seen, after the registration of the clearance, that is to say after the taxes have been paid, the customs did not authorize the import for consumption, did not issue the clearance, this due to application of the prohibition of importing automobiles (in this case, the time requirement of the arrival of the automobile to the customs territory, imposed by the regime as a condition for the possibility of exempting import by quota - the relative prohibition in question - was not met).
This is corroborated by the fact that art. 621 of the CA establishes (in the case of non-economic prohibitions) that the prohibition, once in force (art. 616 of the CA) applies to goods that have not yet been released, which implies that it is clearly possible that, before the validity of the rule establishing the prohibition, the import clearance for consumption had been registered with prior payment of taxes (clearance that therefore could not be withdrawn by the importer's will), and then and before the release the prohibition came into effect, which for the reasons stated above must be applied, with the obvious result that there will be no release.
It is also possible, of course, that (even with respect to a prohibition of an economic nature) the prohibition is in force before the shipment and loading or before the arrival of the merchandise (and therefore the prohibition does apply, art. 618 of the CA), notwithstanding which, perhaps the importer understanding that the prohibition does not apply to him from a classification point of view, or believing that he has a quota that he does not have, etc., perhaps for any other reason, he may still register the application for import for consumption with prior payment of taxes, in which case, if customs effectively applies the prohibition and this application becomes final, there will also be no import for consumption.
If, for the reasons stated above and contrary to what the tax representative claims, the importation for consumption of the car in question has not been carried out and/or produced in this case - but only its reshipment due to the application of the customs prohibition and therefore not issuing a clearance -, the fact taxed by the customs duties settled and paid by the plaintiff has not occurred, so there has been a payment without cause, and therefore its return is appropriate.
The fact that the plaintiff had expressed - when claiming the refund - the withdrawal of the import for consumption (a withdrawal that could not be made) does not hinder the foregoing conclusion, since it is clear in the context of the proceedings and according to the facts that occurred, that the plaintiff must have referred, obviously not to its withdrawal (that is, on its part and due to its expression of will) but to the frustration of the operation, that is, of the import for consumption, due to a decision by customs (in this case, applying a prohibition, in short, due to the will of the applicable regulations).
It should be noted, moreover, that the plaintiff correctly claims only the amount of import duties ($4.068) plus the statistical tax ($407), a total of $4.475, and correctly does not claim the amounts of VAT and advances on VAT and Income Tax (this is so - although they have been paid in excess as set out here - because such amounts should have, unless proven otherwise which is not apparent - been affected and/or used by the plaintiff as a credit or advance in its respective liquidations of the respective taxes).
It is therefore appropriate to uphold the claim and order the return of $4.475, plus the relevant interest, with costs to the treasury (art. 1163 of the CA).
VI.- That in accordance with the provisions of art. 1166 of the CA, the liquidation of the amount owed by the treasury in the case at hand is carried out below, with the prior clarification that: a) it is liquidated up to 31.12.99/25.344/1.1.2000 due to the consolidation provided for by law 11.9.97 (and without prejudice to what corresponds from 31.12.99/0,5/2 due to the application of the specific treatment for consolidated debts); and b) that the interest from 3/360/96 (date of the claim before customs) to 9.11.2000/794/XNUMX, is XNUMX% monthly, by application of said rate (differential for repetitions, in relation to the XNUMX% or XNUMX% monthly rate - for taxes payable to the treasury) established from Resol. SH XNUMX/XNUMX, in accordance with the criteria of the SCJN established in the judgment of XNUMX in re Neumáticos Good Year (criteria that the undersigned abide by for reasons of procedural economy, leaving aside their opinion to the contrary in the sense that the same rate as that established for the purposes of art. XNUMX of the CA should be applied).
Capital (difference in rights and statistics) $ 4.475
Interest from 11.9.97 to 31.12.99
0,5% monthly, Resols. SH 360/96, and ME 366/96
and 1253/98, are 2 years, 3 months and 12 days, 13,62% $ 609,49
Capital + Interest = $ 5.084,49 (as of 31.12.99/XNUMX/XNUMX)
Therefore IT IS RESOLVED:
1.- Revoke Resolution No. 256/00 (OF ASAT) issued in file ADGA No. 431.598/97, appealed in this case, and therefore grant the claim for recovery made by the plaintiff in said file, declaring that the treasury must refund (with respect to the amount paid for import clearance No. 83.741-7/96 of the Buenos Aires customs) the sum of five thousand eighty-four pesos and 49/100 ($ 5.084,49), a sum calculated on 31.12.99/25.344/1.1.200 (cut-off date for the purposes of Law XNUMX), and without prejudice to the treatment that corresponds, from XNUMX/XNUMX/XNUMX, to the consolidated debts; with costs to the treasury.
2.- Prior to the regulation of his fees, the attorney representing the plaintiff must report his CUIT and his status with respect to VAT, and, where appropriate, prove his registration with said tax (art. 2 of the General Resolution AFIP No. 689/99).
Register, notify, return administrative acts, and file.
This document is signed by Drs. Jorge C. Sarli and Elena D. Fernández de la Puente because Dr. Rodolfo H. Cambra is on leave (art. 1162 of the Customs Code).
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