The impediment materializes in a generic and computerized block on the exporter's CUIT, different from the blocks that may fall on the export permit according to the AFIP RG N° 1281/02, which is adopted in all cases in which a non-compliance permit has been reported, even if it is not the permit for which the refund is required, reason for which in fact it constitutes a sanction, it must be said, without a legal norm that authorizes it. Proof of its sanctioning nature is that the block is reported on the Screen Sanctions of the SIM System
It should be noted here that customs refunds are part of the so-called export incentives, the purpose of which is to encourage exports in order to improve competitiveness, allowing the exporter to allocate these resources to the development and expansion of their activity, with the consequent effects that this has on the policies of industrialization and promotion and maintenance of employment of the National Government. For its part, with respect to VAT refunds, since exports are exempt, their purpose is to reimburse the exporter for the tax that may have affected their costs, thus also stimulating foreign trade.
As already stated, the blockage is imposed systemically on the exporter's CUIT, not by virtue of a law but of a General Instruction, which, by definition of the AFIP itself, is not an administrative act of general scope but an internal act, proof of which is that it is not published in the Official Gazette, nor on its own website.[1].
The courts have already ruled on the lack of legal value of the internal acts of the AFIP by saying that they are Internal provisions with effects on the hierarchical order of the administration, without binding character for individuals. General instructions are internal acts of a decisive nature, of obligatory compliance for the departments and intended to be applied in the development of their tasks or functions. [1].
Since the measure is not implemented in an administrative act notified to the exporter, the latter is unable to challenge it, either as a "fiscal or customs" sanction or as a denial of the refund request, through the procedural channels specifically established by law, both the Customs Code and Law 11.683. The exporter is thus prevented from filing appeals and exhausting the administrative process and enabling the subsequent review by the National Tax Court and/or the Judiciary in order to challenge the measure that prevents him from collecting his refunds.
GORDILLO says that, The nonexistence of an administrative act (or the existence of an inoperative, apparently administrative act; or a mere pronouncement without legal validity) correlatively means that the act in question is not presumed to be legitimate. [2]. This is also the judicial interpretation: The AFIP cannot invoke the presumption of legitimacy and enforceability of an act that did not exist. On the contrary, the arbitrariness of its conduct, which involves actual actions, is rather demonstrated. [3].
Also saying about the doctrine The administrative act has the function of acting as a limiting power of the excesses of the Administration of the rule of law, where power is always linked and conditioned by the positive order and the general principles of law, principles that together with the norms and principles of international treaties have produced an expansion of the framework of the principle of legality. [4], However, in the case of the blockage analysed, the Administration does not issue any act, nor does the General Instruction cite any legal norm that enables computer blocking.
It is true, as the authors say, that The protection of public revenue and the exchange rate position of our country justify the direct relationship between the refund regime and export duties, on the one hand, and the exchange rate regime, on the other. The prior payment of the corresponding export duties and the receipt of the respective currencies appear as reasonable conditions established by the enforcement authority. [5] and, therefore, it is also true that the State must adopt measures to discourage non-compliance with the exchange obligations in force since 2002, but the sanctioning measure of blocking CUIT adopted in General Instruction (DGA) No. 7/12 is not legitimate because it is not supported by law or any regulatory provision; it is also not reasonable: the measure is not reasonable. The condition established as a necessary prerequisite for the payment of refunds has no legal basis. The lack of collection of a sale does not justify the implementation of such a drastic measure. And furthermore, there is no link between a situation of “no income of foreign currency from an operation” and the implemented measure “no payment of refunds for operations carried out in accordance with the law”. [6], That is, it does not exceed any of the test that the Supreme Court requires to give validity to the norms and obligations imposed therein, that of legality and that of reasonableness.
The courts are beginning to decide whether the blockade infringes the constitutional principles and rights, in particular the right to legality or the right to reserve the law, due to the lack of legal coverage, the right to property, by depriving the exporter of funds recognized by law, the right to defense, by sanctioning him without prior investigation, and the right to reasonableness, as the measure is disproportionate to the goal pursued.
Thus, the Federal Court of Salta qualified the blockage provided for in General Instruction DGA No. 7/2012 as a excessive punishment which in general practice is an absolute barrier to the exercise of a right, and immediately declared its nullity, due to a there is a clear lack of proportion between the conduct complained of and the sanction imposed, to conclude that the general blocking of the CUIT to an exporter who, due to non-compliance in the liquidation of foreign currency in one or more operations, prevents the recovery of export duties for operations that are completed according to the report issued by the BCRA "application authority in this matter - does not pass the reasonableness test [7].
He argued in this regard that General Instruction 07/12 reveals two issues that cast doubt on its validity. One is that it has determined a general block on the CUIT of the exporter who had at least one operation as non-compliance, preventing him from collecting all export duties, and, another, that said measure is based on the existence of a significant number of export destinations in non-compliance with regard to the entry and liquidation of foreign currency, an issue that is not within the jurisdiction of the General Directorate of Customs. The first appears to be at least disproportionate, and is seen more as an excessive punishment that in practice creates an absolute barrier to the exercise of a right, to conclude in the There is a clear lack of proportion between the conduct complained of and the sanction imposed.
He also said that: Within the framework described, the Customs Agency cannot ignore the serious damage caused to the economic and financial rhythm that companies must maintain for their normal development and the gap caused by the interruption in the payment chain. Furthermore, it is not clear that the General Directorate of Customs has taken the necessary precautions to allow companies to exercise the basic right of defense prior to the triggering of the effects established in the challenged act, or afterwards, so the general blocking of the CUIT to an exporter who, due to non-compliance in the liquidation of foreign currency in one or more operations, prevents the recovery of export duties for operations that are fulfilled according to the report issued by the BCRA - the enforcement authority in this matter - does not pass the reasonableness test according to the doctrine previously set forth..
And that, if the basis of General Instruction 07/12 was the existence of non-compliance with regard to the entry and settlement of foreign currency, the DGA, by imposing a general blockade, assumed a jurisdiction that it does not possess, since the matter related to these facts is proper to the Central Bank of the Argentine Republic and the fact that an agreement was signed in 2002 - as stated in General AFIP Resolution 1281/2002 - between the DGA, the Secretariat of Industry, Commerce and Mining and the BCRA to apply a computerized procedure that interrelates the procedures that the exporter must present to different organizations, did not mean the transfer of any jurisdiction. Quite the contrary, it is the Central Bank of the Argentine Republic that has the police power in foreign exchange matters, as established in art. 4 inc. e) of its Organic Law that provides the power to execute the foreign exchange policy in accordance with the legislation sanctioned by the National Congress. And in a concordant sense, the Supreme Court of Justice of the Nation in Rulings: 312:1920 has indicated that not every economic police function constitutes a customs activity: Customs functions include the powers necessary to control the concurrence of the assumptions that regulate customs duties or establish the existence of restrictions or prohibitions on imports and exports; pointing out that such assertion cannot be understood in the sense that the delegation to customs of any other economic police function may constitute the activity that is delegated to a customs activity.
And that: In this order of ideas and in a brief summary, it is concluded that General Instruction DGA 7/12 is not reasonable, since it blocks the payment of refunds for all operations carried out by the exporter instead of proceeding to block the payment of the refund for the operation or operations specifically questioned, especially if, in addition, it has failed to establish a specific appeal procedure that guarantees the right of defense of the taxpayer.
This was also understood by the National Chamber of Appeals in Federal Administrative Litigation when ruling recently regarding VAT refunds, stating that The possibility that the tax authority, through the notes questioned in the proceedings, subordinates the payment of VAT refunds associated with exports to the mere computerized notice that the requesting company has exchange rate non-compliance, oropportunity in which he described the blockade imposed by General Instruction No. 7/2012 as a unfounded and arbitrary blockade, which violates the right of defense protected in Article 18 of the National Constitution and ordered Customs to continue the processing of the application initiated by the exporter [8].
Finally, it is worth remembering what the Supreme Court of Justice of the Nation said in 2010 regarding the fact that It is unacceptable that when establishing procedures to guarantee the normal and expeditious collection of public revenue, instruments that violate the constitutional order are used. The mere convenience of a mechanism to achieve a government objective, however laudable it may be, in no way justifies the violation of the guarantees and rights enshrined in the constitutional text. [9] and the lawless and judgeless blockade analyzed here, without a doubt, contravenes basic rights and guarantees enshrined in the National Constitution..
Author: Dr. Agustina O´Donnell, Partner at Torassa & O´Donnell Law Firm
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[1]Cases of the Chamber of Commerce and Industry of La Plata, judgment of 14/2/13 and Brando SA, judgment of 18/6/13, published at www.cij.gov.ar.
[2]Gordillo, Agustín: Treatise on Administrative Law, Vol. 3, FDA, Bs.As., 1999, p. 336.
[3]Conf. Compudata SA v. AFIP s/ precautionary measure, published in www.eldial.com.
[4]Cotter, Juan Patricio, Customs Law, Volume I, Abeledo Perrot, Bs.As., 2014, p. 142.
[5]Cotter, Juan Patricio, op. cit., p. 1635.
[6]Cotter, Juan Patricio, op. cit., p. 826.
[9]Conf. AFIP v. Intercorp SRL, judgment of 15/6/2010.[1]Conf. Provision No. 446/2009.
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