Clarification at customs headquarters: may not modify the substance of the final resolutions. Exception of formal inadmissibility of the appeal for final resolutions that have been consented to: there is no place if these were modified by resolutions that were given the character of clarifications, and as long as the appeal was filed within 15 days of the latter being notified. Currency exchange from pesos to US dollars due to clarifying resolutions. Invalidity of these resolutions. Interest on fines.
Dr. Catalina García Vizcaíno said:
I) That at fs. 17/20 Minera Alumbrera Limited, through its representative, files an appeal against the Provisions AD LA RI No. 025, 026 and 027 of 2002 issued by the Customs of La Rioja and corresponding to charges AD TINO 36 and 37/99 and 001 of 2000. He states that, based on the import clearances referred to in the documents, the company requested the release to the market of the merchandise indicated therein, destined for the Bajo Alumbrera Mine that operates in the province of Catamarca. He added that, due to the large number of means of transport that covered each of the operations, the company formalized three dispatches in 1996 outside the period provided for in art. 217 of the Customs Code and that, based on this, the customs office filed three charges against her, urging her to pay the automatic fine of 1% of the customs value of the merchandise, considering that the import clearances Nos. 246-7/96, 843-4/96 and 380-4/96 from the Tinogasta customs, Catamarca, had not been officially confirmed within 15 days of the arrival of the means of transport. The company decided to challenge the charges, as it understood that the 15 days established in the law should be counted from the arrival of the last means of transport and not from the arrival of the first truck, as interpreted by customs. He added that the customs department did not uphold the challenge and decided to confirm the charges based on Res. 200/84, and ordered the company to pay the sums of $2.616,38, $17.297,13 and $10.040,02, amounts equivalent to 1% of the customs value of the merchandise. It indicates that, on 3/4/2002, the company was notified of the Provisions AD LA RI No. 025, 026, and 027/02 by means of which it was decided to correct art. 1st of the Provisions AD LA RI No. 020, 021, 022/02 regarding the fixed amount, considering that the amount to be paid as an automatic fine was in dollars and not in pesos as previously established. Quote art. 1041 of the CA, together with art. 1047 of the CA, indicating that since it is a modification of a valid act, the material, factual or arithmetic error that can be corrected must not be related to the substance of the act. It indicates that in the present case, the new provisions alter a substantial element of the previous provisions AD LA RI 20,21, and 22/02, since the amount of the fine was substantially increased without any legal basis, causing economic damage. He believes that the Administrator of the La Rioja Customs Office was legally prevented from modifying the original provisions. In the event that these resolutions were considered to be subject to modification, it is argued that this lacks regulatory support because for cases in which automatic fines are applied, the fine penalty is set on the basis of the values or amounts in force on the date of configuration of the infringement, conf. arts. 893 and 926 of the CA It specifies that fines are always settled in pesos based on the value of the merchandise at the exchange rate in effect on the date of the commission of the infraction or, failing that, at the rate of its verification. He reports that the violations occurred in 1996, when the Convertibility Law was in force, and therefore it was necessary to determine a customs value in pesos on which to apply a 1% automatic fine. Reserves the federal case. Provide proof. Requests that AD LARI Provisions Nos. be revoked. 25, 26 and 27 of 18/3/02 and that the fines be considered cancelled, with costs.
II) That on pages 31/34 the tax authority contests the transfer duly conferred upon it. It raises the exception of formal inadmissibility of the appeal due to lack of jurisdiction of the Tax Court (arts. 1132 and 1025 CA). It cites jurisprudence that it finds in its favor. It states that the issue raised by the appellant only refers to determining the type of currency for payment of the automatic fine applied, based on its interpretation of the regulations, for which reason it raises the exception of inadmissibility of the appeal due to lack of jurisdiction of the Tax Court of the Nation, since it would be intended to appeal a resolution that by its nature is not included among the appealable acts. It offers evidence. It requests that a judgment be issued, confirming the customs ruling, with express imposition of costs.
(III) That on pages 37 the objection is forwarded to the plaintiff, who answers it on pages 42/43. The plaintiff states that by resolutions Nos. 20, 21 and 22 of 2002, issued on 12/3/02, it was decided to reject the challenges that she filed against the notices of payment of automatic fines for charges 36/99, 37/99 and 01/00. The plaintiff notes that by article 1 of each of them the payment of the disputed amounts in pesos was required and that, six days later, by Resolutions Nos. 25, 26 and 27 of 2002, the administrator modified, corrected and rectified an alleged error in the aforementioned resolutions because, in his opinion, the amounts should be stated in US dollars and not in pesos. The Court maintains that resolutions 25, 26 and 27 are absolutely null and void, given that they were issued when the customs official had exhausted his jurisdiction. It cites jurisprudence that it considers favorable. It states that the error that modified the resolutions in the terms of art. 1041 of the CA is truly substantial, since it significantly modified the amounts involved and this was not based on a numerical error but rather on an error of interpretation. It understands that these are resolutions that came to clarify and rectify those first issued, that is, they are complementary to resolutions Nos. 20, 21 and 22 and form part of them since they have no reason to exist without those previously issued. It adds that resolutions 25, 26 and 27 appealed are part of resolutions 20, 21 and 22 and cannot be analyzed in isolation because if so they would lack legality, considering the loss of jurisdiction of the customs litigation judge as of the issuance of the final resolution and from their joint analysis with resolutions 20, 21 and 22 it is evident that they can be appealed under the terms of art. 1132 ap. 2 of the CA. It requests the rejection of the exception filed, with costs.
IV) That on page 44 it is resolved to deal with the exception raised by the public prosecutor's office together with the merits of the case, which is declared as purely legal and the files are sent to Chamber E, which passes them on to judgment.
V) That in the action ADGA-2000-415007- Note 60/00- on pages 1/4, Minera Alumbrera Limited initiates a challenge procedure against charge No. 001/00 formulated in the concept of an automatic fine imposed on the company in relation to clearance No. 380-4/96 from the Tinogasta Customs. On pages 22, the charge referred to issued on 13/4/00 is listed, for the sum of ten thousand and forty pesos and 02/100. On pages 24/28, a copy of the cited DI appears. On pages 35 (file ADGA-2000-423.506) the allegation appears, on pages 37/38, opinion No. 89/02 appears. On pages 40. Provision No. 022/02 dated 12/3/02 is issued, confirming charge No. 001/00 by the Tinogasta Customs for the sum of TEN THOUSAND FORTY-TWO PESOS WITH TWO CVOS. ($10.040,02), as an automatic fine, plus accrued interest (art. 799 CA). On page 42, on 18/3/02, Provision No. 025/02 is issued, in which, under the terms of art. 1041 of the CA, art. 1 of Provision No. 022 is corrected with respect to the set amount, considering for such purpose the amount imposed and demanded in TEN THOUSAND FORTY-TWO DOLLARS WITH TWO CVOS. (U$S 10.040,02). On page 48 (file ADGA-2002-407.443) Minera Alumbrera Limited files a motion for annulment. On page 49, on 17/4/02, file ADGA-2002-408.071 shows the payment of $10.040,02 dated 8/4/02 and on pages 50/51, Provision No. 039/02 dated 22/4/02 is issued, by which the motion for annulment filed is denied and the aforementioned amount is deemed to have been paid as part of the automatic fine imposed in this case.
That on fs. 1 of the performance Note No. 258/99 there is this Note dated 26/2/99 by which the Tinogasta Customs is ordered to formulate a charge for the sum of $17.297,13 for DI No. 246-7/96 in accordance with the information in Note No. 70/99 added on fs. 2. On fs. 3/102 a copy of the aforementioned dispatch and its complementary documentation is glossed. On fs. 104 the charge No. 036/00 issued on 15/6/99 appears for the sum of seventeen thousand two hundred ninety-seven pesos and 13/100. On fs. ref. 106 the file appears. ADGA-1999-426.526 registered on 8/7/99, by which the plaintiff initiates a challenge procedure against the aforementioned charge and Nº 037/99. On fs. 118 there is file ADGA-2000-418091 in which the appellant makes various statements. On fs. 124/125 there is ruling Nº 282/2001 dated 22/11/01. On fs. 127 there is Ruling Nº 020/02 dated 12/3/02, by which charge Nº 036/99 of the Tinogasta Customs is confirmed for the sum of SEVENTEEN THOUSAND TWO HUNDRED AND NINETY-SEVEN PESOS AND THIRTEEN CVOS. ($17.297,13), as an automatic fine, plus accrued interest (art. 799 CA). On fs. 129, on 18/3/02, Provision No. 027/02 is issued, correcting art. 1 of the aforementioned Provision No. 020/02, considering for such purpose the amount imposed and demanded in SEVENTEEN THOUSAND TWO HUNDRED NINETY-SEVEN DOLLARS WITH THIRTEEN CVOS. (US$17.297,13). On fs. 134 (file ADGA-2002-407.442) the appellant raises nullity. On fs. 135, on 17/4/02, by file ADGA-2002-408.070 credits the payment of $17.297,13 dated 8/4/02 and on pages 136/137 there is Provision No. 036/02 dated 19/4/02 by which the appeal for annulment filed is denied and the aforementioned sum is deemed paid as part of the payment of the automatic fine imposed in this case.
That on page 1 of the performance Note No. 75/98 there is the aforementioned Note dated 27/11/98 by which the Tinogasta Customs is ordered to formulate a charge for the payment of the automatic fine of 1% in accordance with art. 218 of the CA in relation to DI No. 0843-4/96. On page 2/21 there is a copy of the aforementioned dispatch and its complementary documentation. On page 24 there is charge No. 037/00 issued on 15/6/99 for the sum of two thousand six hundred and sixteen pesos and 38/100. On page 26 there is a copy of file ADGA-1999-426.526 registered on 8/7/99, by which the plaintiff initiates a challenge procedure against the aforementioned charge. On page 50 there is file ADGA-2000-418092 in which the appellant makes various statements. On pages 56/57 appears the opinion No. 283/2001 dated 26/11/01. On page 59 appears the Provision No. 021/02 dated 12/3/02 by which the charge No. 037/99 of the Tinogasta Customs is confirmed for the sum of TWO THOUSAND SIX HUNDRED SIXTEEN PESOS WITH THIRTY-EIGHT CVOS. ($ 2.616,38), as an automatic fine, with accrued interest (art. 799 CA). On pages 61, on 18/3/02, Provision No. 026/02 is issued by which art. 1 of the aforementioned Provision is corrected. No. 021/02, considering for this purpose the amount imposed and requested of TWO THOUSAND SIX HUNDRED SIXTEEN DOLLARS WITH THIRTY-EIGHT CVOS. ($ 2.616,38). On fs. 67 (file ADGA-2002-407.441) the appellant claims nullity. On fs. 68, on 17/4/02, by file ADGA-2002-408.069 the payment of $ 2.616,38 is credited on 8/4/02 and on fs. 69/70 there is Provision No. 040/02 dated 22/4/02 by which the appeal for nullity is not upheld and the aforementioned amount is deemed to have been paid as part of the automatic fine imposed in this case.
(V) That the exception of formal inadmissibility raised by the public prosecutor's office must be rejected, since Provisions AD LA RI Nos. 025/02, 027/02 and 026/02 (pages 42, 129 and 61 of Proceedings Notes 60/00, 258/99 and 75/98, respectively) substantially altered, by changing the currency type to the US dollar (and not simply corrected), the decisions contained in article 1 of Provisions Nos. 022/02, 020/02 and 021/02, respectively, which confirmed the charges in pesos (pages 40, 127 and 59 of Proceedings Notes 60/00, 258/99 and 75/98, respectively).
That, in effect, the charges confirmed by these last Provisions that bear the Nos. 001/2000, 036/99 and 037/99 have been formulated in pesos (see pages 22, 104 and 24 of the Proceedings Notes 60/00, 258/99 and 75/98, respectively), while the Provisions Nos. 022/02, 020/02 and 021/02, confirming - I repeat - the charges in pesos, were notified to the plaintiff on 14/3/02 (pages 43, 130 and 62 of the Proceedings Notes 60/00, 258/99 and 75/98, respectively).
That, consequently, the change of currency to the US dollar substantially changed the decisions, such that these changes became appealable before this Court, assuming the character of definitive resolutions issued in the procedure for challenging automatic fines - arts. 1025 inc. a), 1053 inc. e) and related articles of the CA-.
That the appellant filed the appeal in this instance on 24/4/02 (see F4 of fs. 1 and the Secretary's office of fs. 20 back of the files), within 15 days from 3/4/02 when she was notified of the aforementioned Provisions 025, 027 and 026 (see fs. 45, 132 and 64 of the Proceedings Notes 60/00, 258/99 and 75/98, respectively), for which reason the objection raised cannot prosper.
That, moreover, said Provisions 025/02, 027/02 and 026/02 modifying the decision are appealable before this Court, since they cause the appellant, in principle, an injury that does not admit of further reparation within the framework of the procedure regulated by the Customs Code, and taking into account that, as I have pointed out on repeated occasions, the Supreme Court, with regard to the extraordinary appeal, has held that a judicial pronouncement has a definitive character when it puts an end to the litigation, prevents its continuation or causes a burden of impossible or insufficient subsequent reparation (among others, Madariaga Anchorena, Carlos J., of 23/7/81, Fallos, 303:1040), this jurisprudence that although it was conceived with respect to a judicial procedure, does not prevent its application to other jurisdictional procedures, since the principles that inform it are not in contradiction with the particularities and requirements of the administrative procedure.
VI) That in light of the foregoing, I hereby revoke the aforementioned Provisions 025, 027 and 026 (pages 42, 129 and 61 of the Proceedings Notes 60/00, 258/99 and 75/98, respectively), for contradicting the corollary of the principle of defense in court consisting of the correlation between the accusation formulated in the charges with automatic fines, the criminal nature of which is indisputable, see art. 893 of the CA - and the resolutions that sought to correct those that were duly adopted.
That art. 1041 of the CA provides that: Once the final resolution has been issued, the administrator may not substitute or modify it. However, ex officio or at the request of a party and without altering the substance of the decision, he may correct any material error, clarify any obscure concept and supply any omission incurred regarding any of the questioned situations. The request must be made within FIVE (5) days of notification and will interrupt the term to appeal.
That in the previous point I have held that the cited Provisions challenged by this Nos. 025, 027 and 026 have substantially varied the final resolutions that were issued in the challenge proceedings promoted by the appellant, for which reason in no way can the issuance of those be in accordance with the powers arising from art. 1041 of the CA.
That even from the perspective of the Law of Administrative Procedures applicable in a supplementary manner according to art. 1017, section 1 of the CA and decree 722/96 - it does not change the solution, since art. 18 of the aforementioned law provides that: The regular administrative act, from which subjective rights have arisen in favor of the administered, cannot be revoked, modified or substituted in administrative headquarters once notified [which occurred in this case with the notifications of 14/3/02]. However, it may be revoked, modified or substituted ex officio in administrative headquarters if the interested party was aware of the defect, if the revocation, modification or substitution of the act favors him without causing harm to third parties and if the right was expressly and validly granted on a precarious basis. It may also be revoked, modified or substituted for reasons of opportunity, merit or convenience, compensating the damages caused to the administered.
That in this case no exception was established among those provided for in this rule, especially since in accordance with arts. 918, 919 and related articles of the CA, the value of the merchandise had to be determined at the time of the violations (year 1996) when the convertibility law was in force.
It has been argued that the Administrative Procedures Law only requires notification. Even if the act was not final or agreed upon - and therefore the term for challenging it is running - the mere fact of having been notified to the individual makes it unalterable for the Administration if the other conditions are met (HUTCHINSON, Tomás. Administrative Procedures Regime, p. 142. Astrea. Buenos Aires. 1998). When analyzing art. 101 of the DR of the LPA (which stipulates that material or factual errors and arithmetic errors may be rectified at any time, provided that the amendment does not alter the substance of the act or decision) this author explains that since it is a modification of a valid act, the material, factual or arithmetic error that can be amended must not alter the substance of the act. If the error is substantial, it does not authorize the body to correct it ex officio (…). The material correction or rectification of the administrative act occurs when it contains only writing errors, numerical expression errors, etc. If the error, being numerical, is in the calculations or reports that precede the act and the latter is issued as a consequence, the material correction is not appropriate, but we will be faced with a defect in the procedure (…). This rectification of errors must be applied restrictively, for reasons of legal certainty (ob. cit., p. 371).
That it can be inferred from the foregoing that Provisions AD LA RI Nos. 025/02, 027/02 and 026/02 are totally null and void, and that, therefore, they must be revoked, since they have substantially increased the amount of the fines by computing them in dollars, without this deriving from the invocation of art. 799 of the CA mentioned in Provisions Nos. 022/02, 020/02 and 021/02 that they attempted to correct.
That, moreover, the plaintiff is correct in stating that since the sub-lite deals with fines, these do not generate interest until they become final in the terms of art. 924 of the CA (see page 19 of the back of the proceedings), without this preventing the Provisions Nos. 022/02, 020/02 and 021/02 from being appealed in a timely manner, since although they mentioned the accrued interest, art. 799 of the CA was invoked, which refers to the update (not in force by law 23.928) and not art. 794 of the CA, which contains a solution different from that of art. 924 of the CA.
That, consequently, given that the appellant, on 8/4/02, made the payments of the charges confirmed by Provisions Nos. 022/02, 020/02 and 021/02 (see pages 2 of file No. 408.071/02, pages 2 of file No. 408070/02 and pages 2 of file No. 408.069/02, respectively, recorded on pages 49, 135 and 68 of Proceedings Notes 60/00, 258/99 and 75/98, respectively), within the 15-day period of art. 924 of the CA, the automatic fines in question should be considered cancelled.
Therefore, I vote for:
1st) To reject the exception of formal inadmissibility of the appeal raised by the public prosecutor's office. With costs.
2º) Revoke the AD LA RI Provisions Nos. 025/02, 027/02 and 026/02, and consider the automatic fines confirmed by the AD LA RI Provisions Nos. 022/02, 020/02 and 021/02 cancelled. With costs.
Dr. Winkler said:
I adhere in all its parts to the preceding vote.
Dr. Gustavo A. Krause Murguiondo said:
That substantially agrees with the vote of Dr. García Vizcaíno.
In accordance with the above agreement, it is unanimously RESOLVED:
1st) To reject the exception of formal inadmissibility of the appeal raised by the public prosecutor's office. With costs.
2º) Revoke the AD LA RI Provisions Nos. 025/02, 027/02 and 026/02, and consider the automatic fines confirmed by the AD LA RI Provisions Nos. 022/02, 020/02 and 021/02 cancelled. With costs.
Register, notify, promptly return and archive the administrative records.
