There are many cases where, when carrying out an “import transit suspension” operation, the merchandise is stolen and here, a discrepancy arises as to whether taxes should be paid or not for those items missing as a result of having suffered this type of incident.
It should be noted that this type of operation – import transit – is a customs destination that allows the entry of merchandise that is not subject to the payment of import taxes, as it is a suspensive destination. It is covered by a regime that allows its entry for the purpose of being transferred to another customs office, where it will be given definitive entry and its consequent payment of taxes for nationalization. It may also be removed from the customs territory at such customs office.
However, during the fulfillment of this transit, the law determines that in the event of a shortage of merchandise, it will be presumed without admitting evidence to the contrary and for tax purposes only, that it has been imported for consumption; therefore, those responsible for such transit must bear the obligation of paying the corresponding import taxes (art. 310 and 312 of the Customs Code).
The distinguished Tax Court of the Nation, has held in repeated rulings that it is not exempt from tax liability, in the face of the requirement that the "customs service" makes to the Carrier and Customs Transport Agent, in a suspensive operation of import transit that has suffered an accident and loss of the merchandise. Holding this, because the stolen merchandise, it is adjusted to law to presume that it has been imported for consumption. As prescribed by art. 311 of the Customs Code and consequently, art. 315 of the same legal complex does not apply, in what refers to, that "Merchandise irreparably lost due to an accident that occurred during its transport under the import transit regime… is not subject to the taxes that tax its importation for consumption…”, to consider "that the merchandise is not irretrievably lost," as established in the last part of the aforementioned article" ( art. 315 CA ).
Notwithstanding the foregoing, the Supreme Court of Justice of the Nation has established a harmonized criterion, in reference to the aforementioned and ruled art. 315, "that the described system cannot lead to the conclusion that, without further ado, in any case where the merchandise is irremediably lost because it has been stolen - and for the sole reason that it could be used by a third party - there is no possibility of exemption from the payment of taxes by those responsible for the tax obligation, when despite fulfilling all the duties inherent to the import transit regime, they have suffered that kind of loss." Remembering, "which, as the Court has consistently maintained, "when the understanding of a precept, based exclusively on the literal meaning of its text, leads to concrete results that do not harmonize with the remaining legal system or arrives at consequences related to the values protected, the interpretation must be integrated into the harmonious whole of the aforementioned system" (Rulings: 326:3679). Concluding, "If a breach of the duties of custody has not been proven, and the fact of the armed robbery that was reported to the authorities in accordance with Article 308 of the Customs Code has not been discredited, the plaintiff is not responsible for the payment of taxes in accordance with Article 315, second part, of that ordinance." (Judgment of December 11, 2012 – Tevelam SRL –TF 22.427-A v. General Directorate of Customs” – T.317.XLVI).
In this way, the highest Court of the Nation established a harmonious criterion regarding the obligation to pay taxes in the event of an accident suffered as a result of complying with a suspensive destination of import transit, removing the tax requirement in cases of theft, by the mere imposition of art. 315 of the Customs Code.
Up to this point, it could be argued that the restrictive criteria of Customs, regarding the direct application of payment of taxes in the event of theft in compliance with a suspensive destination of import transit, went to another extreme, exempting from the tax obligation, in the event of an accident of this kind and re-evaluating the degree of imposition of art. 315 of the CA.
However, a few months ago, the Federal Administrative Litigation Chamber, without deviating from the criteria of the Court and pre-establishing the concepts that it established in the "Tevelam" ruling, considered that the situation of ""Whoever neglects the control of the cargo that is being transported to the customs of destination", regarding, of "who has fulfilled all the duties inherent to the custody of the merchandise during its itinerary and suffers from a robbery aggravated by the use of weapons" (Judgment of February 4, 2014 - case 8243/2012 - Fiori, Javier Raúl Roque - TF26.669-A c/ DGA). In this way, it contributed more to the correct application of the norm, in terms of the requirement or exemption of taxes in the event of an accident suffered during the fulfillment of import transit.
Thus, it can be concluded that the set of these rulings warn that article 315 of the Customs Code, by stating that "The merchandise will not be considered irretrievably lost when, despite not being able to be recovered by its owner, it could be used by a third party", does not impose the payment of import taxes without further ado. The accident being a cause of exemption from these taxes. Provided that it is proven that all the duties inherent to the custody during such transfer have been fulfilled, which conceives this type of suspensive destination of import transit.
Dr. William Felipe Colonel
Aduana News is the first Argentine customs newspaper to launch its digital version. With 20 years of experience, its publications and initiatives aim to provide the most relevant knowledge on customs issues in order to contribute to safe trade in the region.
