For an Argentine who returns to the country or a foreigner who obtains permanent residency to live in our country, managing their international move means entering into unknown territory bordering on the hostile, where any error in management, resulting from failure to comply with any of the rules that regulate the regime, can not only lead to higher costs, but also the possibility of not being able to obtain their belongings.
General uncertainties
Many factors generate uncertainty, including, among others, the defective and half-hearted advice of Argentine consulates abroad; the scarce and excessively generic information held by the control body - the General Directorate of Customs - regarding this subject; therefore, the so-called "fine print" is often a factor not taken into account and which naturally catches lay users off guard in customs matters who do not have the support of a customs broker, despite the fact that the regime does not contemplate its mandatory use.
There are many reasons why an Argentine decides to return to his homeland after a long residence abroad. For example, Pablo, who lived in Canada until very recently, had to return home after being diagnosed with a terminal illness. Therefore, situations such as the one mentioned require double the responsibility and speed in the release of his personal belongings, not only on the part of those of us who carry out such a delicate task as foreign trade operators, but also on the part of the customs service, which in theory should adopt identical precautions, but instead insists on providing the Individuals who benefit from the regime and their representatives with a halo of suspicion in advance, placing several barriers in the attempt to release their personal belongings, with the risk of incurring higher costs for this segment, which usually has limited assets.
The unaccompanied baggage regime
The unaccompanied baggage regime that benefits Argentines who return to the country after having resided abroad and foreigners who have obtained permanent residence in Argentina, is supported by the following rules, namely:
- The Customs Code (Law 22415 and its regulatory decree 1001/82);
- The current complementary regulations in force. (ANA Resolutions 3751/94 that regulated the Mercosur Baggage Regime and AFIP General Resolution 3109/11 that regulated art. 103 and related articles of the Immigration Law 25871,
- Resolution 3628/14, which implements from the operational point of view the procedure to carry out the Destinations that fall within the regime in question and which must have prior authorization from the competent customs area in order to access the registry of the relevant customs destination.
It should be noted that, since this is a special customs regime in the terms of Section XII of the Customs Code, it is exceptionally contemplated that the customs service is the one to register both the aforementioned prior file called SIGEA ACTION and the customs destination itself, in the spirit of simplification advocated by ANA Resolution 3751/94.
Notwithstanding the above, in operational practice, the beneficiary of the regime in question must resort to the services of a professional customs broker (preferably with proven experience in the matter at hand, given that the vast majority of users are laymen in customs matters), because otherwise, due to the current nature of the procedure, there is a greater risk of incurring higher costs to the detriment of the beneficiary, especially with regard to the withdrawal of their goods without extra charges.
Background of the procedure
Broadly speaking and from a procedural point of view (at least from the perspective of Buenos Aires Customs), it is possible to distinguish two stages:
- A stage in which the processing of the regime was part of the competence of the EMBA and Fluvial Sud Section, dependent on the Customs Operational Department;
- The current stage, where matters relating to processing are the responsibility of the Import Operations and Registry Section, which depends on the Ex Ante Control Division, which in turn reports to the Buenos Aires Customs Directorate.
As regards the first stage, it is appropriate to describe it in two time periods, “the one before Resolution 3628/14” and “after the entry into force of the aforementioned regulation”. Regarding the first, the central characteristic was that the preparation of the file fell exclusively to the customs service, leaving only the interested party or his duly accredited representative in charge of presenting the documentary details that the regulations contemplate; It should be noted that the procedure used to be slow, especially when the interested party brought, together with his belongings, the vehicle of his property, since this forced to go to multiple dependencies of the organization where several interventions and turns of the proceedings were carried out. While in the second, when the AFIP General Resolution 3628/14 burst in, modifying that obsolete procedure, the EMBA and Fluvial Sud Sections still retained their jurisdiction, but misunderstandings and arbitrary interpretations about the referred regulations greatly harmed the beneficiaries of the regime, motivating that in 2018, presentations were made before the General Directorate of Customs seeking its intervention to correct the anomalies in this regard.
After two meetings with the then General Director and those of us who acted as representatives of the beneficiaries, it was agreed to remove from the jurisdiction of the Emba and Fluvial Sud Section the matters relating to international removals, passing said matter to the Import Operations and Registry Section dependent on the Ex Ante Control Division.
Problems observed in practice
Needless to say, the change was radical and resulted in greater agility for the beneficiaries of the regime, from 2018, at least until March of this year, when the short circuits that we will detail arose. Let us know that the inconveniences that are highlighted below are not limited to international removals in an isolated sense, but also to other cases mentioned in the following AFIP codes mentioned in General Resolution 3628/14 according to the following list:
- 0000.04.04.100J Moving, unaccompanied baggage. Resolution No. 3751/94 (ANA) and its amendments (ANNEX V "A"), Law No. 25.871, its mod. and compl., Decree No. 616/10, General Resolution No. 3109 (AFIP);
- 0000.04.04.200P Used motor vehicles, bicycles and motorcycles. ANA Resolution. No. 1568/92. Notices Nos. 44/02 and 49/02 (DE TEEX).;
- 0000.04.04.300V Used cars. General Resolution No. 3109
- 0000.04.04.400A Removals Foreign Service of the Nation, Law No. 20957.
- 0000.04.04.500F Removals State officials to carry out official missions, Decree No. 3934/75.
- 0000.04.04.600L Removals, unaccompanied baggage, Diplomatic Franchise regime, excluding automobiles. Decree No. 25/70 and its amendments, categories included in Article 8.;
- 0000.04.04.700R Removals, unaccompanied baggage, Diplomatic Franchise regime, excluding automobiles. Decree No. 25/70 and its amendments, categories not included in Article 8.
The problems arose when in March 2023, according to new guidelines set unilaterally by the Head of the Import Operations and Registration Section, dependent on the Ex Ante Control Division, y not published anywhere, The current firm responsible for that area does not sign the administrative acts that authorize the use of the AFIP codes referred to in point I., without the presentation of the original transport document, and without the effective verification of the corresponding closing of entry to the warehouse of the merchandise under whose regime it seeks to be covered, among other requirements never before requested and contrary to the express tasks assigned to it by Annex B15 of AFIP Provision 255/22.
It is not idle to remember that this issue has been raised on other occasions through File EX-2023-01389655-AFIP-SRRODVMENT#SDGCTI among others and none of the required areas issued a specific statement on the issue raised, considering said procedure a tacit refusal of the Administration that validates the irregular procedures in force (art. 10 Law 19549 of Administrative Procedures).
Position of the customs service
The reason for this unexpected change of rules is based on the alleged existence of the “Work Instruction 001/2023 (SE OREI)” , not published anywhere which, as stated by the area through notification SICNEA 23001NOTI090057S, is “valid since 17/03/2023 and sent to the Buenos Aires Customs Directorate”, in which he holds, “New guidelines were implemented to strengthen the tasks of controlling the documentation presented regarding the processing of applications within the framework of AFIP General Resolution 3628/2014.” It should be noted that the administrator does not have access to said Instruction and that, consequently, it prevents him from exercising an adequate right of defense against what we consider a discretionary act bordering on the arbitrary, as well as a violation of the principle of legitimate trust defined according to the Pan-Hispanic Dictionary of the Royal Spanish Academy as the "principle derived from the principle of legal certainty according to which the public administration cannot disappoint the expectations created by its rules and decisions by unexpectedly replacing them with others of a different nature." (1)
Given that this circumstance results in several proceedings currently being held up due to this unexpected procedure, including the removal of a repatriated person suffering from cancer (action 18036-15434-2023) (despite having mentioned this circumstance in order to review the anomalous procedure in force), the Buenos Aires Customs Directorate was requested to instruct the Heads of the Ex Ante Control Division and the Import Operations and Registry Section to unblock the retained files so that individuals do not lose their right to withdraw within the mandatory period in accordance with the still valid ANA Resolutions 2439/91 and 2535/9. Likewise, the Director was asked to answer the following questions:
Please clarify the purpose of requiring a “prior SIGEA” for destinations where a Customs Broker is involved.
Whether the administrative act issued by the competent authority, in this case the Operational and Registry Section, dependent on the Ex Ante Control Division, is limited only to the authorization to use the AFIP Code after checking the admissibility of the documents invoked to claim protection under the intended regimes or has a broader scope covering operational aspects outside the powers of the competent issuing authority and in the latter case, what would be the rule that authorizes the use of these broader powers, taking into account that AFIP Provision 255/22 in its Annex B15 confers certain tasks to the Ex Ante Control Division and the Operational and Registry Section, which do not exhaustively include operational control tasks such as controlling whether the merchandise actually entered the warehouse, tasks reserved for other areas of the customs service.
It is clarified whether the mandatory accreditation of the original transport document is relevant for the processing of the prior SIGEA, or whether a copy of it is sufficient.
Please explain the reason why some AFIP codes do not require such a requirement, since from the exhaustive and detailed reading of the "Registry of Particular Declarations External Users General Resolution No. 3628 AFIP Operation Manual Version 38.7" the reason for such a distinction does not arise expressly, taking into account that the AFIP codes were a praetorian creation of the organization, whose origin dates back to General Resolution 2964/10 and that according to its recitals it had the purpose of "increasing the effectiveness in the registration processes of certain customs declarations, which due to their operational particularities must be carried out in a simplified manner" and that in this case, this objective would not be met, since the issuance of the administrative act resulting from the so-called "prior SIGEA" by the current authorities in charge of the Operational and Registry Section, at the request of the Head of the Ex Ante Control Division, has become in fact a barrier that currently violates the rights of the taxpayer to request said file with sufficient notice, in order to ensure the possibility of carrying out the scanning, weighing, verification and removal of their personal effects within the limited period of five days of mandatory direct delivery, counted from the closing of entry to the warehouse, in accordance with the still valid ANA Resolutions 2439/91 and 2535/92, even if the documentary requirements are correctly met.
If it is taken into account that in relation to the processing of SIGEA files, AFIP Provision 700/04 establishes a term considered normal of five business days for its processing, as provided in ANNEX I Point 4.2.5.1.: “The procedures related to the files will be carried out in the order of arrival, unless otherwise clarified, within a maximum period, considered normal, of FIVE (5) business days, which may be extended by the Director of the General Secretariat Directorate or by the Head with Division level or higher of the area requesting the extension”. In the same sense, the aforementioned rule contemplates: “The file that must be processed within the period of THREE (3) business days will be considered urgent and with priority over any other that is not also urgent or very urgent.” and that “As very urgent will be classified as that documentation that must be completed within TWO (2) days, and will be attended to with priority over any other that does not have that classification. Emphasizing that “It will be the responsibility of each area involved in the process, the control of the passage of all the legal or regulatory deadlines established for the processing of the files.” And finally, in relation to the possibility of an extension, point 4.2.5.2. prescribes: “In cases where a deadline or term has been set for the processing of a file and the person who must inform foresees that he will not be able to comply with the established term, he will immediately communicate to the sending area through an independent means, in order not to stop the process, the impossibility of complying with the established term and the corresponding request and justification for the extension, informing the date on which he will comply with the request.”
Questions underlying the statement of the note
We maintain, based on what is expressly mentioned in the “Registration of Particular Declarations External Users General Resolution No. 3628 AFIP Operation Manual Version 38.7” (hereinafter “The Manual”) that the so-called “preliminary file” o “SIGEA performance” It is only a requirement whose purpose is only to carry out a prior documentary control, since from its literal reading of page 8 of the aforementioned document it only follows that “Prior to registering the AFIP Code of a Particular Import Destination, a file must be submitted through SIGEA Action with the necessary documentation.” As we said before, the appearance of the AFIP General Resolution 3628/14 gave a Copernican turn in regards to the way of processing said files, since the AFIP Resolution 2964 was taken as a basis with the same spirit of "Effectiveness in the registration processes of certain customs declarations, which due to their operational particularities must be carried out in a simplified manner" and that “They require an agile customs declaration procedure” It was decided to replace the obsolete file system with the incorporation of the “registration of the referred operations in the Detailed Declaration Module, through the use of “AFIP Codes”.” In the resolution section of the regulation in question, Article 1 provides: “For merchandise whose customs declaration is currently processed by file and/or particular summary allocation “PART”, the procedure for its computer registration through the Detailed Declaration Module is established. To this end, the guidelines set out in Annex I and those contained in the external user manual that will be available on the microsite “Operations/Destinations declared with AFIP Codes” on the website of this Agency (http://www.afip.gob.ar) must be observed. That said Manual imposes for this particular cause the requirement of the prior SIGEA, as explained above.
Going deeper into the specific requirements for processing the aforementioned prerequisite (which, by the way, appears to be mandatory only for the Buenos Aires customs office and not for the Ezeiza customs office, despite the fact that both customs offices depend on the General Subdirectorate of Metropolitan Customs Operations) we can observe the following indications on page 50 of the Manual: "Afip codes 0000.04.04 Corresponding to Removals/Unaccompanied/Accompanied Luggage, require prior authorization that must be formalized through SIGEA before registering in the corresponding sector of the registration customs, and must contain the following documentation as appropriate: 1.- The required Documentation proving the identity of the interested party (National Identity Document or Passport.) 2.- For foreigners with permanent residence in the country, the certification issued by the National Directorate of Migration, within the framework of Law No. 25871 and its amendment. 3.- Argentine citizens or residents in the Argentine Republic who return must present the certificate of residence or consular discharge, which states the period of residence abroad. This must be requested upon moving to the Argentine Republic. The documentation cited in point 3 above, in particular cases, may be replaced by the presentation of a certificate of migratory movements or checks made on the Passport, from which the permanence abroad clearly arises. This, only for those covered by Resolution No. 3751/94 (ANA). 4.- Transport document, except for those goods that have entered by their own means or as Luggage. (Not clarifying or emphasizing that it must be "original" as expressly mentioned in ANNEX I of RG 2793/10). 5.- Packing list or sworn statement, stating the detailed description of the goods entered. 6.- Original purchase invoice or sworn statement of the value of the vehicle. 7.- Proof of the description of the vehicle before the competent official authority of the country of origin or sworn statement notified by the Argentine consulate.
That in the same Manual on page 116 belonging to the ANNEX III “Documents to be presented” However, it can be seen that the following documents are among the required documents:
As can be seen from the comparison between what is required on page 50 of the Manual and on page 116, it can be seen that the requirement for a bill of lading or its equivalent does not appear among the "documents to be presented."
That based on a basic principle of non-contradiction that “something cannot be and not be at the same time” It is quite evident that if the so-called “DOCUMENTS TO PRESENT” (in the broad sense of the term, since it does not define at what procedural moment they occur) ANNEX III page 116 of the Manual does not expressly state the requirement for the aforementioned document, This leads us to infer, without hesitation, that it is not an essential requirement for the issuance of the administrative act, with based on the principle of informality in favor of the administered party, established in art. 1, paragraph c) of Law 19549 on Administrative Procedures, which establishes the “excuse of the interested parties' failure to comply with non-essential formal requirements that may be met later.”
That the argument invoked in ANNEX I of RG 2793/10 on which it is based to reject our request, did nothing more than corroborate our position since the mandate invoked establishes: “I. SUPPLEMENTARY DOCUMENTATION FOR IMPORT DESTINATIONS: 1.-At the time of registration of import destinations (underlining is mine) The following additional documentation must be attached: 1.1. Original transport document (bill of lading, waybill, air waybill).”
What argument to support the enforceability would be valid if it were the customs service itself who, in addition to issuing the administrative act, had to register the customs destination, as expressly provided for in the Manual? - “Registration of Particular Declarations for External Users General Resolution No. 3628 AFIP Operating Manual version 38.7” on page 5 where it expressly mentions “Particular Declarations must be registered in the SIM by a customs broker, except those detailed below which may also be registered by the customs service, through officials authorized for this purpose” and cites, among others, section g) “Moving, unaccompanied baggage. Law No. 25871, Decree No. 616/10, General Resolution No. 3.109. Resolution No. 3.751/94 (ANA) and its amendments. Foreign Service of the Nation, Law No. 20957. State officials to fulfill official missions, Decree No. 3934/75. Diplomatic Franchise Regime, Decree No. 25/70 and its amendments. Used motor vehicles, bicycles and motorcycles: Law No. 25871, Decree No. 616/10, General Resolution No. 3109. Resolution No. 1568/92 (ANA) and its amendment.”
In short, the requirement that is intended to be imposed would be perfectly valid in the event that the customs service authorizes and simultaneously registers the destination as an abbreviated tract, as occurred in the cases of simple file contemplated in Resolution ANA 3751/94 and that naturally, in that premise, it must wait for the registration of the customs destination, until the "closing of entry to warehouse" has been carried out, since the customs service is not expressly authorized to document under the "direct to square" modality for the regime in question. But the case in dispute is diametrically opposed to the previous assumption, since there is a splitting of tasks: On the one hand, the customs service carries out the preliminary control in order to ensure that it complies with the regime intended by the administrator and on the other, the task of the customs broker in his capacity as assistant to the customs service, who, provided with the customs authorization, proceeds to register the destination, having to have the original transport document for this purpose, being able to choose, if necessary, to document a particular direct to the square (PI05) or a particular Importation for consumption with transport document (PI04), both options existing in the Manual Registration of Particular Declarations for External Users General Resolution No. 3628 AFIP Operation Manual version 38.7” on pages 4 and 5.
Complementing the above, The subsequent instance to which we refer is none other than the registration of the customs destination where the original transport document is actually required as stipulated in ANNEX I of RG 2793/10, Then it is subjected to control by the customs personnel in charge of making the presentation and assigning the selectivity channel and the transfer of the intervening Verifier, for which, he necessarily makes a comparison with the system, of the documents and checks that they match, even reviewing the administrative act issued by the Operational and Registry Section, checking that the declared data coincide, including the Bill of Lading number and the Authorization number.
That the requirement of the aforementioned original transport document at the time of registration of the destination is not a fixed and immovable requirement: Resolution 2793/10 itself in its ANNEX II and in accordance with the provisions of article 453 inc. f) of the Customs Code contemplates the possibility of guaranteeing the lack of the same in these terms: “ANNEX II GENERAL RESOLUTION No. 2793. GUARANTEE REGIME. I. GUARANTEABLE DOCUMENTATION. 1. The release of merchandise under the guarantee regime will only be authorized in the event of the temporary lack of the following complementary documentation: a) Transport document.”
Adding that, the indicated regulations explain the applicable Procedure in these terms: II. GUARANTEES. When the complementary documentation indicated in Section I is not presented (that is, at the time of registration of the destination, not the previous file), it will be necessary to offer a guarantee in the terms of General Resolution No. 2435 and its amendment" explaining that "For the missing complementary documentation, in accordance with Article 453, section f), of the Customs Code, guarantees will be required for the following amounts: 1.1. Transport document. a) Customs value of the merchandise."
That reference reinforces our hypothesis that Neither from the comparison of the current regulations nor from the Manual, does any condition arise that expressly indicates that the original bill of lading must be presented for the prior SIGEA file. or that the presentation of a certified copy by a customs broker or customs transport agent prevents the continuation of the prior procedure, especially taking into account that in the event of a notorious lack of the original transport document (for example, a loss) nothing would prevent the interested party from guaranteeing the lack of the same in accordance with art. 453, paragraph f) of the Customs Code until he can provide himself with the required title as already explained.
On the other hand, Annex I of AFIP Provision 700/04, which regulates matters relating to the initiation of SIGEA files,It does not establish the obligation of the inexorable presentation of original documents, nor does it prevent the presentation of photocopies of the same, in accordance with what is expressly mentioned in point 4.1.2, without prejudice to the power of the Customs Broker to sign and certify certain documents, including photocopies. (As an example, we can mention form 4366, which is contemplated in article 1 of General Resolution 682/99, which expressly mentions that the aforementioned form must contain the certification of the signature of the Customs Broker made by the Customs Broker Center of the Argentine Republic, or what is established in COMMUNICATION “C” 54052 (12/08/2009) that due to the validity of Resolution No. 2573 of the AFIP, the intervention of copy 2 of the customs documentation was replaced in the cases provided for in the regulations of Communication “C” 36210, “A” 3829 and “A” 4605 and complementary regulations, by a copy of the destination signed by a customs authority certified by the customs broker, in his capacity as faithful depositary of the same, among others.) Consequently, nothing would prevent the transitive character that the Customs Broker attaches for the purposes of processing the prior SIGEA file, a copy of the bill of lading signed by the aforementioned and certified by the Customs Brokers Center of the Argentine Republic, in cases where the destination is to be registered by a professional member of that institution. Even if this possibility were not admitted, it would be possible to attach a copy of the bill of lading signed in original by the Customs Transport Agent and even a copy of the warehouse reservation issued at origin could be attached that effectively corroborates that the merchandise whose previous file is going to be authorized was shipped or will be shipped effectively as mentioned in the photocopy of the aforementioned bill of lading, (in a manner analogous to the warehouse reservation that is presented in the Export Operational and Registry Section in the respective SIGEA) so that the persistence of your area in the aforementioned requirement is unfeasible from the practical point of view for the purposes of presenting the previous SIGEA with sufficient anticipation, in such a way that it allows considering not only the deadlines that the customs service takes, but also unforeseen circumstances (official licenses, changes of authorities, etc.) in order to protect the legitimate right of the administered to request and obtain their requests, without their processing cause damage such as delays that translate into extra costs at your expense.
The questioned requirement exceeds the jurisdiction assigned to both the Operational and Registry Section and the Ex Ante Control Division, since neither from reading AFIP Provision 79/2016 nor from the recent AFIP Provision 255/22 does it expressly arise that any of the cited areas has the power to interpret the regulations, extending its scope beyond what is literally required, since said function is reserved for other areas of the customs, since according to the organizational chart of the aforementioned Provision, both areas depend on the Buenos Aires Customs Directorate.
In this case, ultimately and in accordance with the provisions of art. 4 of decree 618/97 (2), it would be the latter who would exercise such functions as well as those of administrative judge, as stated in the aforementioned paragraph of the aforementioned claim.
In line with the above, we understand that the argument put forward as a generic invocation of both “Work instruction 001/2023 (SE OREI) in force since 17/03/23 and sent to the Buenos Aires Customs Directorate, new guidelines were implemented to strengthen the control tasks of the documentation presented regarding the processing of requests within the Framework of RG Afip 3628/14 as well as ANNEX B 15 of Provision 255/2022 establishes the Responsibilities, Tasks and Functions of the Ex Ante Division, empowering it to act preventively in order to collect all the necessary information to reduce the risk in the registration of customs operations, checking that the procedures comply with the requirements established in the current regulations”, No. satisfies As such, since although these are internal acts of the administration, the lack of publication of them and of knowledge and access to them should not harm the administered party. Indeed, we agree with the authoritative doctrine that “…circulars and instructions (…) are binding on the official not only with respect to the State, but also with respect to the administered, who have the right to demand their compliance. This arises from the fact that said norm makes the official responsible before the administered for the regular fulfillment of his legal obligations, and among these is the fulfillment of the circulars and instructions. From this it follows that the official, as a State body - and not only in a personal capacity - is responsible before the individual for the fulfillment of these, and that the individual has “a fortiori” subjective rights and reflections arising from such circulars. From this it follows that the instruction or circular produces immediate legal effects, with such scope, and that the violation of the same can affect the validity of the act.” (3)
Going into Annex B15 of AFIP Provision 255/12 referring to the Jurisdiction of the Ex Ante Control Division and the Import Operational and Registry Section as the argument put forward, we can see first of all that there was an apparent increase in tasks or at least greater detail in them.. Indeed, the aforementioned ANNEX provides the following jurisdiction of the Ex Ante Control Division in these terms: “ACTIONS: Understand the registration of documentation and the settlement of export incentives, as well as what is inherent to repetitions, under the jurisdiction of the Buenos Aires Customs Directorate. Understand the change of status of guarantees and residual system, as well as the import and export sub-regimes. branches in the sections under the jurisdiction of the Buenos Aires Customs Directorate, with the exception of operations carried out within the scope of Domestic Customs. TASKS:1. Understand the application of the provisions relating to the import and export sub-regimes that the operation demands. 2. Understand the change in the status of the guarantees whose reasons are processed by the dependent units. 3. Act preventively in cases of customs infractions and/or crimes, carrying out the previous procedures that the circumstances impose and sign the administrative complaints in the terms of article 1082 of the Customs Code. 4. Intervene in the liquidation of export incentives and in what is inherent to the preparation of draft administrative acts linked to tax repetitions. 5. Intervene in the registration, deregistration and modification of users of the computer systems. 6. Collect and submit to the higher level management information produced by its organic units and generate statistics for a correct management evaluation and decision making.
That according to the reading of the previous point and judging by what is expressed in the notification transcribed in point I referring to the tasks assigned to the Ex Ante Control Division by the Provision in question, through which it would be “enabling preventive action to gather all the information necessary to reduce the risk in the registration of customs operations, checking that the procedures comply with the requirements established in the current regulations.” We understand that this is an ierroneous and overly comprehensive interpretation that does not expressly arise from what is expressed in point 3 of the Tasks assigned to that Division,since this point refers only to the proceedings of art. 1081 of the Customs Code, precisely because the aforementioned point expressly states: “Take preventive action in cases of customs violations and/or crimes, (underlining is mine) Carrying out the prior procedures that the circumstances require and signing the administrative complaints in accordance with the terms of article 1082 of the Customs Code.” That is to say, the expression "does not arise from its literal reading or from any part of its assigned competence"act preventively in order to gather all the necessary information to reduce the risk in the registration of customs operations, checking that the procedures comply with the requirements established in the current regulations" Every time he sends it to analysis, he only imposes “act preventively in cases of customs violations and/or crimes”without prejudice to what is stated in point 1 of the tasks "1. Understand the application of the provisions relating to the import and export sub-regimes required by the operation” because clearly the verb "understand" , does not equal that of "act"since the first, according to the Pan-Hispanic Dictionary of Legal Spanish of the Royal Spanish Academy, simply means: “2. General. To know, to have competence for something.” (4) while "act" means “Exercise functions inherent to one’s position or office.” Or from what is limited to the strictly legal it also means “Form records, proceed judicially.”
It is worth remembering that in administrative matters, competence is the exception, not the rule. As traditional customs doctrine clearly states, “… Unlike private law, where capacity is presumed and lack of capacity is the exception, in public law and, mainly, in administrative law, competence is the exception and incompetence is the rule, so there is no competence if there is no express rule that grants it. (5) The validity of administrative acts depends on the corresponding activity being carried out by the acting body within the circle of its legal powers, which determines the legal capacity of the administrative authority, which in administrative law is called “competence” (…) one of the essential elements of the administrative act, because it makes the action of the body valid. On the other hand, it characterizes the administrative division or, where appropriate, the autonomous entity, distinguishing it from others and avoiding overlapping tasks. (…) it is defined as the complex of functions attributed to an administrative body. (6) In other words (…) it must be interpreted in a restrictive sense, (…) it cannot be implicit, but expressed.
Notwithstanding the above, it has been stated that a broader interpretation (of the competence) can be admitted when it refers to matters included in the State's own duties, provided that the solution does not affect the competences of other persons or public departments. However, this solution, which is admissible when it comes to possible conflicts of competence between various departments or public entities (7), must be restricted when, as in this case, it is a question of attributions that tend to restrict the property or freedom of the administered, in which case it is not constitutionally valid that the mention of the powers attributed to the tax and customs bodies is understood as merely exemplary, giving rise to uncertainty in relation to the validity or invalidity of the administrative acts exercised that may restrict the constitutional rights of the administered. (8)
That in relation to the jurisdiction of the Operational and Registry Section the following responsibilities arise: ACTION:“Understand the registration and authorization of import destinations, as well as special regimes, with the exception of destinations corresponding to Domestic Customs. TASKS: 1. Intervene in the registration, processing, authorization, presentation and control of applications for import suspensions, particular requests and emergency manuals of its jurisdiction. 2. Authorize the endorsements and/or transfers of Customs Brokers and temporary import suspension destinations. 3. Intervene in the Storage Deposit Request Regime. 4. Understand the processing of destinations that must be processed by way of exception and issue the corresponding authorizations. 5. Analyze the Requests for Rectification and Cancellation of the detailed declarations and authorize them in accordance with current regulations, if applicable. 6. Process temporary admissions, their extensions, cancellation, nationalization, re-exportation and/or re-importation, rectification and preparation of reports for violations. 7. Process applications for diplomatic franchises. 8. Process applications for nationalization of vehicles for disabled persons. 9. Process applications for nationalization of used cars from citizens who come to reside in the
country. 10. Intervene in the change of status of the guarantees of suspensive destinations, IMTE reason, Decrees Nos. 1.330/04 and 1.001/82. 11. Process the requests for Nationalization of Containers and issue the corresponding authorizations. 12. Process applications for the Stock Replacement Regime established by Decree No. 1.330/04. 13. Understand in the processing of destinations that must be entered under General Resolution No. 3.628 (AFIP) and issue the corresponding authorizations. 14. Understand in the processing of imports of goods belonging to foreigners who obtain permanent or temporary residence in the Argentine Republic and to Argentines who return to the country, within the framework of General Resolution No. 3.109/11 (AFIP) and ANA Resolution No. 3751/94. 15. Process requests for nationalization of used cars, motorcycles and bicycles, within the framework of ANA Resolution No. 1568/92. 16. Prepare responses to requests for judicial letters, within the scope of its jurisdiction.
In accordance with the powers described in the previous paragraph and for the case at hand, we understand that they could only require the original transport document in cases where the Operational and Registry Section effectively processes and registers the Destinations corresponding to the requests in points 6, 7,8, 9, 11, 12, 15 and XNUMX.WithIt is necessary to mention that among the requests that it specifically establishes process the one for “importation of goods belonging to foreigners who obtain their permanent or temporary residence in the Argentine Republic and to Argentines who return to the country, within the framework of General Resolution No. 3.109/11 (AFIP) and ANA Resolution No. 3751/94” is not found since the respective point 14 only says that it must “Understand” so it must be interpreted that if it only refers to “understand”, it is because the effective processing falls on the intervening Customs Broker after obtaining the prior SIGEA in the corresponding cases, which would coincide with the provisions of art. 5 of General Resolution 3109/11 regarding the intervention of the aforementioned professional.
Lack of competition
In relation to the above, we maintain that neither the Import Operations and Registry Section nor the Ex Ante Control Division have the authority to control the effective entry of merchandise, a authority that belongs to other areas of the customs service as we will describe below.
As we said before, the measure also calls into question issues of competition, given that the control of the effective entry and exit and existence of the goods corresponds to operational areas of the organization, as stipulated in AFIP Provision 255/22 in its Annex B15 and not to the area in charge of issuing the administrative act originating from the “ SIGEA Preview”.
Indeed, ANNEX B15 of AFIP Provision 255/22 assigns to the OPERATIONAL CONTROL AND SUPERVISION DIVISION I and OPERATIONAL CONTROL AND SUPERVISION DIVISION II among their tasks “Supervise the movement and existence of merchandise in the warehouses under its jurisdiction” (point 3) and “to supervise the entry and exit of merchandise, ranches, means of transport and all procedures related to import and export” respectively.
It should be added, specifically, that the first of the named Divisions depends on the Southern Zone Section and Jurisdictional Deposits and Northern Zone Section and Jurisdictional Deposits, whose tasks include: “control the entry and exit of merchandise, means of transport to customs warehouses and the rest of the procedures related to import and export” a task that is not the responsibility of either the Import Operations and Registration Section or its immediate superior, the Ex Ante Control Division.
Consequently, and in view of the above, we understand that such actions are, in practice, given the lack of adequate normative invocation for such requests, a de facto procedure in accordance with the terms of article 9, paragraph a) of the National Law of Administrative Procedures 19549, applicable in a supplementary manner to customs matters in accordance with article 1017, paragraph 1 of the Customs Code.
That the conclusion of the last paragraph of the previous point is easily transferable to the condition that the deposit entry closure had been carried out as a prior condition to the signing of the prior administrative act,since there is no express regulatory imperative that establishes such a requirement and that it would only be enforceable in cases where it is the customs officer himself who registers the customs destination, as will be explained in points 18) and 19).
That the establishment of such a requirement arises only from an excessively discretionary act bordering on the potestative, since according to prestigious doctrine and no small amount of administrative jurisprudence, a discretionary act is understood as such. "when the legal system grants a certain freedom to choose between one course of action or another, to do one thing or another, or to do it in one way or another." (9) and here it is not seen that the legal order grants him that prerogative, because otherwise he would have cited her for his aid. As a potestative act, "It reveals capricious action, determined by subjective considerations, without connection to objective ends, such as the one we are dealing with." (10)
On the other hand, the requirement of the original BL is not appropriate either, since it is not expressly required in the early processing of the SIGEA file, which as a first measure, is governed in relation to its processing by the AFIP Provision 700/04, which not only does not expressly require original documentation in that modality, but in relation to terms, there is also no impediment to processing said requirement in advance. with the purpose of safeguarding the interests of the administered party in the event of delays by the administration (for example, erroneous or defective interpretation of the rules by the competent authorities to the detriment of the administered party, among other harmful factors to be mentioned).
It should be noted that ANA Resolution 3751/94 in point 4 "Procedure “operational” features: "In the event that the interested parties do not fully comply with the requirements established herein, for the removal of belongings that arrived as unaccompanied baggage and in order to reduce to a minimum the procedures to be carried out, the effects of not causing unnecessary discomfort to the patient, It is established: a) The interested party must submit the request for withdrawal of unaccompanied baggage to the corresponding Customs Office of Registration, attaching to it the respective Bill of Lading or its equivalent.” Likewise, it is worth remembering that the mandate of the previous point established an abbreviated procedure through a file, which was officiated in the practice of customs destination in a broad sense, whose preparation, comparison and registration fell exclusively to the customs service, so in that context it was natural to interpret that the required Bill of Lading had to be the original, since otherwise the citizen would not be able to take action to procure the verification and withdrawal of his belongings. As can be seen from the harmonious reading of the previous point, it arises that, in light of the original meaning of this document (removed today by the current AFIP General Resolution No. 3628/14 which established the obligation to document unaccompanied baggage through the SIM, replacing the SIGEA files), it is evident that this last modification agrees with the general principles of the procedure for import destinations established by AFIP General Resolutions No. 743/99 and 2793/10, so it is easy to conclude that the obligation to present the bill of lading or its equivalent (original) only becomes enforceable at the time of making and registering the destination (except of course, in cases where the customs service registers the customs destination), concluding then, in tune with the first part of point 4 transcribed that for a preliminary stage such as the required prior SIGEA, a copy of it will suffice, precisely to avoid unnecessary inconvenience to passengers as established by Resolution 3751/94 still in force.
Conclusions
Finally, we understand that from the validity of General Resolutions 3109/11 and 3628/14, where the Customs Broker plays a preponderant role in the registration of the Destinations that concern us, it would become illogical and unreasonable to subject the individuals that these professionals represent, to the state of anxiety and uncertainty that implies presenting at the last minute, all the documentation for the purposes of the authorization of the “previous SIGEA” so that it coincides with the exact closing of the deposit entry, as the Heads of the Operational and Registry Section and the Ex Ante Control Division respectively erroneously claim.
That what is intended by said Headquarters turns out to be a highly random and detrimental factor for the citizen, given that any delay or processing outside of what was foreseen would entail the possibility of losing for this sector of very vulnerable individuals, with limited assets to cover the expenses, the possibility of being able to withdraw within the period of days without charge, known in the jargon as “direct forced”, as provided for by the still valid ANA 2439/91 and ANA 2535/92.
That the above is of capital importance, taking into account that after the destination is registered, it must be presented at the Verification Section to enter it and to be granted a selectivity channel and that in the same tract, the day and time are coordinated with the competent Verifier, whose conformation is subject to the exclusive agenda of the aforementioned official, the type of verification to be carried out and whether other areas of the organization should intervene, which would require additional coordination, thus increasing the risk of not being able to verify and withdraw within the period of lowest cost for the administrator with the well-known economic losses and the risk of abandonment of the merchandise in case of not being able to pay them.
In view of the above, the scenario that looms over those who wish to benefit from the regime in question is one of great uncertainty, which can be partially mitigated (but not eradicated) with the advice of a Customs Broker specialized in international removals.
In summary, and notwithstanding the situation described here, generated by lower-ranking customs officials (who, far from the purpose of increasing control, end up harming the fluidity that an exceptional regime should have), we believe that with the assumption of the new government authorities in their respective departments, a new context of dialogue can be opened in which the legitimate powers of control of the customs service are in a plane of absolute balance with the requests and rights of the citizens.
- Pan-Hispanic Dictionary of Legal Spanish (2023,5, December 20): https://.www.dpej.rae.es https://dpej.rae.es/lema/principio-de-confianza-leg%C%ADtima#:~:text=Adm.,por%20otras%20de%20signo%XNUMXdistinto.
- “Without prejudice to the powers established in the preceding paragraphs, the Federal Administrator may delegate to the General Directors and the Deputy General Directors - and the latter with respect to the Heads of the Units that depend on them - the assumption, jointly or separately, of certain functions and powers indicated by the nature of the matters, by the territorial area in which they must be exercised or by other circumstances, including those indicated in articles 6, 7, 8 and 9 to the extent and under the conditions established in each case.”
- GORDILLO, Agustín, “Treaty on Administrative Law” Volume 3, Chapter 3. Point 14. “Challenging instructions and circulars” page PRA-III-8 http://www.gordillo.com/pdf_tomo5/03/03-capitulo3.pdf.
- Pan-Hispanic Dictionary of Legal Spanish (2023,8, May 2): https://.www.dpej.rae.es https://dpej.rae.es/lema/entender#:~:text=Conocer%20C%20tener%20competencia%20para%XNUMXalgo.
- CASSAGNE, Juan Carlos, Administrative Law, t. I, Abeledo-Perrot, Buenos Aires,1986, p. 240.
- MARIENHOFF Miguel S. “Treaty on Administrative Law” Vol. I, p. 541.
- MARIENHOFF Miguel S. “Treaty on Administrative Law” Vol. I, p. 545.
- ALSINA, M.;BARREIRA, E.;BASALDÚA R.; COTTER MOINE J.; VIDAL ALBARRACÍN,H; “Annotated Customs Code” T. I Abeledo-Perrot. 2011, Buenos Aires p. 19 and 20 pages. 101-102.
- GORDILLO Agustin . https://www.gordillo.com/pdf_tomo9/libroi/capitulo8.pdf.
- MARIENHOFF Miguel S. “Treaty on Administrative Law” Vol. II, p. 168.
The author is a lawyer, customs broker and professor at the ICBC Foundation
