I. Introduction
The judgment issued by Chamber III of the National Court of Appeals in Federal Administrative Litigation in the case “Ledesma SAAI c/ DGA s/ Direct Resource” It represents an important judicial support for the powers of the General Directorate of Customs in matters of export valuation, in particular with respect to the application of the Article 748, paragraph b) of the Customs Code. The pronouncement not only validates the technical criteria adopted by the customs service, but also highlights the legitimacy of the use of international quotes as an objective valuation parameter.
II. The case
The company Ledesma SAAI documented, between January and October 2008, a set of 19 refined sugar export destinations to Chile.
Subsequently, the Argentine Sugar Center, made up of various companies in the sector (including the plaintiff here), submitted a note in which it exposed the problems related to the export destinations of the commodity sugar, which are usually registered several months after the closing of the commercial transaction. In this regard, it proposed that the taxable base for valuation - both for the payment of duties and for the computation of refunds - be calculated using a daily guide price, considering that the international trade of sugar in its futures form is negotiated in different stock exchanges around the world, the most representative being those of London and New York, whose prices he followed based on the export dates.
La Export Valuation Division, when analyzing this proposal, issued an opinion in which it proposed a methodology to determine the normal value within a theoretical contract, which would consider the international quotation, considering it the most appropriate basis according to the provisions of the Article 748, paragraph b) of the Customs Code.
In light of such background, the Jujuy Customs, following the procedure provided for in the RG AFIP 620/99, published in the Official Gazette the value presets, which were higher than those declared by the exporter. Given the lack of a response from the exporter (which does not prevent its subsequent defense), it filed charges for the difference in export duties calculated on the new tax base.
To justify the adjustment, the declared FOB values were considered to be significantly lower than market values, proceeding to restore the value according to the aforementioned article, using International prices for refined white sugar published by the London Stock Exchange, documentation that was incorporated into the file.
The charges were contested by the exporter pursuant to Article 1053, paragraph a) of the Customs Code. The procedure concluded with a resolution that confirmed the charges brought.
Against this resolution, the firm filed an appeal before the National Tax Court, in accordance with the terms of article 1132, paragraph a) of the same code.
The Tax Court understood that the adjustment lacked sufficient justification, since the reports that motivated it They did not adequately explain technically how the value was obtained from international quotes., also considering that the specific type of export had not been taken into account, which made it impossible to assess whether the declared price was actually lower than the real value.
This ruling was appealed by the Treasury, the Chamber revoked the ruling of the a quo, with foundations that are developed in the following section.
III. The Chamber's decision. The correct application of Article 748, paragraph b)
The central axis of the Chamber's decision lies in the validation of the methodology used by Customs, who went to the subsidiary method provided for in article 748, paragraph b) of the Customs Code. This provision authorizes the valuation of goods on the basis of international quotes, considering the inherent modalities of export.
In this specific case, Customs:
- He used verifiable and technical sources, such as sugar prices in the London Stock Exchange;
- He based the adjustment on the values published by the Argentine Sugar Center, an entity recognized and integrated by the plaintiff firm itself.
It is important to note that the Valuation of exported goods must be carried out in accordance with the Customs Code. As established in article 747, only when there are values used as background that clearly deviate from the declared price, the customs service may resort to the supplementary bases of article 748, which enables, in this case, the application of the subsection b).
The customs service based the adjustment on the value resulting from applying the international quotation, following the legally established method, and incorporated into the file documentation obtained from the official website of the Sugar Center, which had been proposed as a reference source by the export sector itself.
It should be noted that the The exporter did not offer evidence or claim that the quotation used was incorrect., limiting itself to questioning the validity of the adjustment without technical grounds.
La The Chamber assessed that the adjustments applied ranged from 0,15% to 19,23%, with an average of more than 10%., a figure which, in accordance with article 747, justifies the deviation from the declared value.
In addition, he considered that the procedure followed by Customs was adequate, The adjustment proposal came from an entity in the sector and that the criteria used were objective, reasonable and legally authorized, concluding that deviating from market references in a commodity such as sugar would affect the transparency of the system.
Consequently, the appeal filed by the Treasury was upheld, reversing the judgment of the Tax Court and confirming the customs resolution.
IV. final considerations
The commented sentence It ratifies the State's power to restore the customs value upon detection of undervalued declarations., and expressly validates the methodology applied by the customs service under the Article 748, paragraph b) of the Customs Code.
The House validated the use of international quotes —in this case, from the London Stock Exchange— as a reasonable basis for determining the taxable value of a commodity, when the declared value is not representative.
He also highlighted the reasonableness of the procedure, based on prices suggested by a sectoral entity (the Argentine Sugar Center), which includes the plaintiff company itself among its members, which reinforces the coherence and legitimacy of the criterion adopted by the organization.
It is also noted that the adjustment range (Article 747 of the CA)—which averaged more than 10%—validly authorized the customs service to deviate from the documented value.
At the procedural level, the Chamber recalled that the appeal before said court does not allow reviewing factual issues already decided (art. 1080 of the CA), except arbitrariness.
The ruling also confirms that, once the adjustment has been preliminarily justified by Customs, the burden of proof shifts to the exporter, who in this case failed to prove the veracity of the declared price.
In short, the ruling not only supports the intervention of Customs in defense of the fiscal interest against possible under-invoicing maneuvers, but also establishes a relevant precedent for the interpretation and application of the export valuation regime, particularly in operations related to the international trade of goods with public and standardized quotation.
This is a particular case because it involves a commodity, which distinguishes it from other precedents, such as the Supreme Court ruling of 1/10/2013 in “YPF SA (TF 27508-A) c/ General Directorate of Customs”.
This ruling is presented as a relevant precedent for future actions, especially in exports of products with international quotation, where the control of the declared value is essential for prevent underbilling, preserve the tax collection and guarantee the fair competition between operators.
1. Argentine National Congress. (1981). Customs Code: Law 22.415. Official Gazette of the Argentine Republic, March 23, 1981. https://www.boletinoficial.gob.ar/detalleAviso/primera/9110140/19810323
2.Federal Administration of Public Revenue. (1999). General Resolution 620/1999. Procedure for the publication of reference export values. Official Gazette of the Argentine Republic, July 9, 1999. https://www.boletinoficial.gob.ar/detalleAviso/primera/648123/19990709
The author is a lawyer from the National University of La Plata (UNLP)
