In Buenos Aires, on the 26th day of June 2002, the members of Chamber "E", Drs. Catalina García Vizcaíno, D. Paula Winkler and Gustavo A. Krause Murguiondo, met with the latter presiding, in order to render judgment in the case entitled: "Miñones, Ramiro Sebastian" vs. General Directorate of Customs, s/appeal", File No. 15.050-A.
Dr. Catalina García Vizcaíno said:
I) That on pages 11/15 Ramiro Sebastián Miñones, through his attorney, files an appeal against Resolution No. 6185/2000 issued in case No. 600.034/2000, by means of which a fine is imposed, alleging violation of art. 954, sections a) and c) of the CA, given that according to the Tax Authority - an amount for reproduction rights is included in the declared value, constituting an expense subsequent to the FOB value. He maintains that in the shipping permits in question he correctly declared the merchandise, adding also that the value of the same included royalties and author's rights, as shown in sector AP16 of the same. He observes that art. Article 735 of the CA establishes the theoretical definition of value, which the legislator adopted at the time this regulation came into force, according to which, the taxable value of the merchandise in terms of export will be the FOB, FOT or FOR (as the case may be), between a buyer and a seller independent of each other, as a result of a cash sale. It indicates that art. 748 refers to cases in which the transaction value, that is, the price paid or payable, does not constitute an appropriate valuation basis to determine the taxable base, in which case various methods may be adopted, among others, the value obtained by comparative estimation with identical or similar merchandise. It considers that when Customs is not satisfied with the transaction value, it may value the merchandise by other methods, but that this does not imply that it is an infringement of art. 954 of the CA, but rather it is exclusively a matter of appraisal. The Court notes that the matters of appraisal are the responsibility of the customs and not of the document-holder, who merely provides the necessary data so that the customs can carry them out. The Court considers that the customs could, with the data provided, establish the taxable base of the exported goods. It points out that art. 954 of the CA requires an objective element for the infringement described there to be established, which is not present in the case, which is the existence of a declaration that differs from that resulting from the verification. It argues that there is no such difference, since the declaration of the goods and their value is accurate, only that the so-called reproduction fee was not subtracted from the taxable base, despite which it is expressly mentioned in the shipping permit. It points out that the Customs has not verified that the declared value is inaccurate or false. It adds that the ruling is void since it imposes a fine in solidarity with the importer (SIC), and in reality it is an exporter, to which it is added that this solidarity is not provided for in the law. The Court argues that it has complied with its obligations arising from compliance with the instructions received from the exporter, as well as with the laws and regulations on the matter. It cites case law. It reserves the right to refer to the federal case. It requests that the appealed decision be revoked.
II) That on pages 22/25 back, the fiscal representation answers the transfer that was duly conferred on it. It denies each and every one of the facts, statements, rights, documentation and/or copies of the document in transfer that are not the object of its express recognition. It makes a brief summary of the facts. It maintains that in order for the infraction punished in art. 954 incs. a) to be configured, it is essential that the declaration does not conform to reality or that it is inaccurate, for which reason the actor's conduct configures the infractions provided for in art. 954 incs. a) and c) of the CA. It indicates that the "infringement approach lies in the documentation and from a simple reading it arises in an indubitable manner that the taxable value is erroneous, for the calculation of the rights, since an amount was added to the price of the merchandise in the concept of reproduction rights, taking into account that the cost of the product is represented exclusively by the price of the physical support." Cites case law. Presents the federal case. Offers evidence. Requests that a judgment be issued confirming the appealed decision in all its terms.
III) That on page 41 the cause is declared as purely legal and the proceedings are sent to Chamber E, which passes them on to judgment.
(IV) That on page 1 of file No. 600.084/99 there is the complaint report No. 1219, from which it appears that due to improper collection of refunds, a violation of art. 954, paragraph "a" of Law 22.415 would be configured. On pages 2/4, note No. 1219/98 dated 17/11/98 is included, which states that the reason for the complaint is the intervention carried out on the shipping permits 098546-8/96 and 130784-5/96, both from the Buenos Aires Customs registry, which were documented by the exporting firm Universal Soft SA, and to which the red channel was assigned, resulting in the value observed by the acting inspector. That on pages 6/17 there are the shipping permits in question and complementary documentation. On pages 56/59 is attached the report produced by the Export Valuation Division, which takes as a precedent cases in which the incidence of the product is not discriminated in the price of the equipment. At pages 61 the opening of the summary is ordered. At pages 84/93 Res. No. 6185 dated 26/10/2000 is issued, which is the subject of appeal.
V) That the Customs Code protects the principle of truthfulness and accuracy of declarations and statements submitted to customs. Article 954 of that Code punishes and sanctions - in relation to the protected legal right - anyone who, in order to carry out any import or export operation or destination, makes an inaccurate declaration to the customs service, which if unnoticed, causes or could cause, among other cases: a) a fiscal loss, which will be sanctioned with a fine of 1 to 5 times the amount of said loss; c) the entry or expenditure from or to abroad of an amount paid or payable other than that which actually corresponds, will be sanctioned with a fine of 1 to 5 times the amount of the difference. For these cases, the appellant has been convicted by Resolution No. 6185/00 of the Head of the Customs Legal Procedures Department.
That art. 954 of the CA "gives priority to the truthfulness and accuracy of the declaration, regardless of any subsequent activity by the declarant - except for the cases provided for in the law itself - or the control that the customs service may carry out. This means that, in principle, the reliability of what is declared through the corresponding documentation is the basis of an entire system that does not depend on the greater or lesser efficiency with which the National Customs Administration carries out the control tasks assigned to it; on the contrary, adherence to such conditions tends to prevent, under the protection of the export or import regime, where appropriate, maneuvers that distort and pervert it" (CS, "Subpga SACIE and I.", dated 12/5/92).
That in the sub-lite shipping permits the appellant expressly stated in AP16 that it was a question of home-use software on a compact disk (CD-ROM), containing different programs for educational/didactic use in Spanish and Portuguese, as well as that "THE PRICE INCLUDES ROYALTIES AND COPYRIGHT. 1 (ONE) ORIGINAL MASTER (GOLD-MASTER) CD IS SENT WITH AUTHORIZATION TO MAKE 100000 COPIES" (see especially, pages 10 and 15 of the previous administrative proceedings).
I consider that the alleged infringement was not committed, given that the plaintiff expressly declared that the price included royalties and copyright, and that a Master CD was being sent for making copies. This consequently enabled customs to carry out the relevant value study in order to deduct the amount relating to the reproduction right.
This makes inapplicable the principle of art. 959, paragraph a) of the CA, regarding the fact that an inaccurate statement is not punishable when "the inaccuracy is verifiable by simply reading the statement itself."
So much so that Note No. 1219/98 states that "based on the documentation provided, and the declaration committed in the shipping permits in question, it is observed that:
«-the exported merchandise consists of 1 (one) original master; and
"that the declared value, which coincides with the value contractually established with the foreign importer, includes the "...authorization to make 100.000 (one hundred thousand) copies," which led to the understanding that the value of reproduction should be deducted because it is an expense subsequent to the FOB value of the merchandise being exported (pages 2/3 of the adm. ant.: the emphasis belongs to me).
That, likewise, the Treasury recognizes that "the focus of the infringement lies in the documentation and from a simple reading it arises without a doubt that the taxable value is erroneous, for the calculation of the rights, since an amount was added to the price of the merchandise for the right of reproduction, taking into account that the cost of the product is represented exclusively by the price of the physical support" (pages 23 back/24 of the files).
That it is not an obstacle to the conclusion I reached that page 2 of PE N 98546-8/96 was redone twice (see pages 8/10 of the administrative ant.), since although the number of copies sent has been changed, on all pages it is stated that the price included royalties and author's rights. Consequently, in this case the principle of art. 898 of the CA becomes applicable.
It should be recalled that in the area of customs infractions, the Supreme Court has stated that "the decision [...], far from being unreasonable, is consistent with the doctrine developed by the court to the effect that the general provisions of the Penal Code are applicable to customs infractions, according to which only the guilty party may be punished, that is, the party to whom the punishable action can be attributed both objectively and subjectively ("Fallos", 290-202, 5th recital and its citations)" ("SAFRAR Sociedad Anónima Franco Argentina de Automotores", 27/12/88, "Fallos", 311-2779).
That, on the other hand, the Supreme Court, in re «Garibotti, Armando» («Fallos», 287-191), held that the customs broker who, in fulfilling his obligations, abides by the statements made by the importer and by the supplementary documentation, is, in principle, exempt from liability, unless he incurs in personal facts that compromise him. There is, as stated by the CNCont.-Adm. Fed. Cap., Room 4, in re «Nadia SCA», dated 28/4/83, «a reversal of the burden of proof, corresponding to the broker the obligation to prove the existence of causes for exculpation». In the same sense, Room 1 of the CNCont.-Adm. Fed. Cap., in re «De Fabriziis y D'Orsi SRL», dated 19/10/82, pointed out that «the acquittal history of the Chamber in this matter requires that the party has proven that it complied with its obligations, or that such circumstance arises from the administrative history considered when making the decision».
That the verification of the ant. adm. makes it possible to infer that the shipper acted in accordance with the complementary documentation consisting of export invoices Nos. 0004-00000002 of 26/4/96 and 0004-00000004 of 25/6/96 (pages 11 and 46 of the ant. adm.); consequently, the exception of art. 908 of the CA applies to him, in accordance with the provisions of arts. 898, 902 and related articles of the CA.
VI) That the way I vote on this motion renders unnecessary consideration of the rest of the issues raised.
Therefore, I vote for:
Revoke the sanction applied by Resolution No. 6185/00 of the Department of Legal Procedures, only with respect to the appellant dispatcher. With costs.
Dr. Winkler said:
I agree with the preceding vote.
Dr. Gustavo A. Krause Murguiondo said:
That agrees with the vote of Dr. García Vizcaíno.
In accordance with the above agreement, it is unanimously RESOLVED:
Revoke the sanction applied by Resolution No. 6185/00 of the Department of Legal Procedures, only with respect to the appellant dispatcher. With costs.
Register, notify, promptly return and archive the administrative records.
