In Buenos Aires, on the 10th day of the month of May 2002, the Honorable Members of Chamber "E", Drs. Catalina García Vizcaíno, D. Paula Winkler and Gustavo A. Krause Murguiondo, with the latter presiding, met in order to render judgment in the proceedings entitled: "PASA SA v. General Directorate of Customs s/appeal, file No. 14.381-A".
Dr. Catalina García Vizcaíno said:
I) That at fs. 9/11 round. The plaintiff appears, through a representative, and files an appeal against Resolution No. 093/00, issued in the file. No. 602.358/95. Expresses that by DIT No. 3467/94, Unistar SA documented the temporary importation under the regime of Res. MEYOSP No. 72/92, styrene intended for industrial processing and then re-exported. He adds that a complaint was filed alleging that he had committed a formal violation and had not complied with the requirements of Res. ANA No. 579/95. It states that the contested resolution ordered Unistar to pay $27.128 in accordance with the terms of art. 972 of the CA, that the resolution was notified to the firm in February 2000 and that, at the date of that notification, the merger of PASA SA had taken place. with Unistar SA The latter being absorbed by the former, therefore, in accordance with the provisions of art. 82 of the Companies Act, was dissolved without being liquidated. He points out that the Registry of Importers and Exporters took note of the merger. He adds that upon learning of the Res. was presented in the file formulating a request in the terms of art. 1041 of the CA requesting that it rule on the effects of the merger, but that the customs service understood that it was not appropriate to declare the extinction of the criminal action, since the merger does not imply the exclusion of its responsibility for the commission of the infraction whose judgment is being substantiated. Expresses that Pasa SA He has no liability whatsoever for the fine imposed on the dissolved company. He added that the operation for which Unistar was convicted occurred well before the merger of the two companies. It states that, as a result of the merger by absorption, the rights and obligations of Unistar were transferred to Pasa SA in accordance with the terms of art. 82 of the Companies Act, although this does not include the transfer of criminal liabilities such as those arising from the commission of customs offences. It claims that, pursuant to the principle of identity enshrined in the CN, they are applicable exclusively to the person who committed the infringement, without being transmitted to his successors and other third parties. It points out that customs infringements or violations are undoubtedly of a criminal nature and all the principles of substantive criminal law are applicable to them as provided for in arts. 892 to 910 of the CA It maintains that Unistar ceased to exist as a legal entity capable of acquiring rights and incurring obligations and as a person susceptible to being sanctioned for acts of a criminal nature and that, in the absence of an express rule establishing a specific solution, it is appropriate to adopt the same one provided by law for the case of extinction due to the death of natural persons. It considers that the case of the extinction of a company by merger by absorption is very special, since in general dissolved companies continue to exist for the purposes of their liquidation, so the situation raised would not arise in their respect. He stressed that the appeal must necessarily be lodged, taking into account that the customs service could seek to enforce the fine imposed on Unistar against Pasa. Provides evidence and requests that "the contested administrative resolutions" be revoked (sic), declaring the extinction of the criminal action to impose sanctions on Unistar SA What's Happening SA He has no responsibility whatsoever regarding the fine imposed in the resolution, with costs.
II) That on pages 15/19 the fiscal representation answers the appeal. It refers to the background of the case. It analyzes the legal regime of temporary importation. It indicates that the DDJJ were presented in an untimely manner in accordance with the deadlines established by the current and applicable regulations in the matter. It emphasizes that the sanction imposed must fall on the accused because it is the company that absorbed the investigated firm, given that a conviction on the absorbed firm would become abstract, since it does not carry out more customs operations. It indicates that the burden of proof is on the importer who has not been able to prove the timely fulfillment of its obligations. It indicates that the non-compliance with the deadline in temporary exports affects the purpose of the regime and gives rise to the application of sanctions such as the one analyzed in the case. It emphasizes that art. 972 of the CA does not distinguish between major or minor non-compliances but objectively as such and according to the parameters established by law. It presents the federal case. It offers evidence. Requests that the appealed customs decision be confirmed. With costs.
III) That at fs. 21 the case is opened for evidence, which is shown at fs. 31/37. Once the proceedings are ready for argument, the plaintiff does so at fs. 45/46, without the prosecution making use of that right. At fs.48 the proceedings are set out as a judgment.
IV) That on page 1 of file No. 602.358/94 there is the Complaint Report No. 586/94 dated 28/10/94, drawn up as a result of the alleged failure to comply with the obligations imposed by point 1 - Annex IV "B" of Res. 590/94 penalized by art. 972 of the CA in relation to DIT No. 3467-2/94, documented by the firm Unistar SA. On page 7, on 7/6/95, the summary instruction is ordered. On page 10, on 5/3/97, all the proceedings are reviewed, which are answered on 25/2/98 on pages 17/21. On pages ref. 76, on 14/5/98, Mr. Haroldo Dahn is deemed to have been presented in his capacity as president of Unistar SA and the case is opened for evidence. On pages 84/85, Resolution No. 093 dated 1/2/00 is issued, by which Unistar SA is sentenced to pay a fine of $27.128,50 under the terms of arts. 972 and 1112 of the CA. On pages 128/128 vta. there is the presentation dated 2/3/00 by which the representative of the firm PASA SA appears and states that with the accompanying documentation it is proven that it absorbed Unistar SA, a company that was dissolved without liquidation in the terms of art. 82 of the Companies Law and that, having transferred all of Unistar's assets, he appears assuming the status of a party. He requests that in accordance with the provisions of art. 1041 of the CA, the appropriate decision shall be taken taking into account the dissolution without liquidation of the aforementioned firm. It considers applicable mutatis mutandi the provisions of art. 929 inc. b) of the CA for the case in which the accused is a natural person. On page 130 there is the order dated 28/6/00 issued by the 2nd Head of the Customs Legal Procedures Department that does not make way for the requested clarification, indicating that: "it is not appropriate to declare the extinction of the customs criminal action in relation to an accused that has been absorbed by another legal person, since this does not imply the exclusion of its liability for the commission of the infraction whose judgment was substantiated in this case."
V) That the appellant limits its grievances only to the alleged extinction of the criminal action by virtue of the merger by absorption of Unistar SA, which was dissolved without being liquidated in accordance with the terms of art. 82 of the Commercial Companies Law.
That, consequently, the commission of the formal infringement charged to Unistar SA is not disputed in accordance with the provisions of art. 972 of the CA.
In my opinion, the appellant is not right in its argument, taking into account that, unlike what is provided for in relation to natural persons, the Customs Code contains no provision regarding the extinction of criminal action due to the dissolution of legal persons, especially since Unistar SA was absorbed by the appellant.
That a contrary solution would imply that by means of a mere reorganization of companies any offending company would be released from its responsibility for the illegal acts committed (crimes and infractions), transforming into a dead letter, among others, arts. 876, 887, 888, 903 and 904 of the CA
According to art. 82 of the Commercial Companies Law, a merger occurs when two or more companies are dissolved without being liquidated, in order to form a new one; or when an existing one incorporates another or others that, without being liquidated, are dissolved. As a result of this, the new company or the incorporating company acquires the ownership of the rights and obligations of the dissolved companies, at the same time as the total transfer of their assets occurs, when the pertinent instruments are registered in the Public Registry of Commerce. For the merger, the requirements of art. 83 of the Commercial Companies Law must be fulfilled. In the merger, there is a dissolution of companies, which does not prevent the transfer of rights and obligations to the new company or to the incorporating company.
That among the transferred obligations, it does not seem doubtful to maintain that the pecuniary sanctions for the illegal acts committed are transmitted, since I reiterate - the incorporating company "acquires the ownership of the rights and obligations of the dissolved companies, producing the total transfer of their respective assets upon registration in the Public Registry of Commerce..." (art. 82 of the Commercial Companies Law).
That it is not an obstacle to what has been said that, according to the doctrinal citation made by the plaintiff on fs. 10 back, the transfer of the assets derived from the merger "implies a succession by universal title with the same effects as the succession by cause of death..." (Ricardo A. Nissen, Ley de Sociedades Comerciales, Vol. 1, p. 256, Editorial Abaco, Buenos Aires 1982), since the same author clarifies that: "From this it can be inferred that the ownership or possession of the assets that previously formed the assets of the dissolved companies, pass to the new one without the need for the administrators of the company that is created or incorporating to contract the assignment of each of the credits, nor to endorse the credit titles or notify the assigned debtors. The credits and debts are transferred to the resulting company under the same conditions, which takes the same procedural position in pending lawsuits, and to which the judgments issued in lawsuits in which the dissolved entities were parties will be enforceable (...). The successor of the assets of the extinguished legal entity has all the rights and obligations in his own name and not on behalf of the deceased. "The aforementioned author then differentiates the merger from the transfer of businesses, considering that in the latter "the purchaser takes the assets of the establishment that is being sold, and not the liabilities, unless otherwise agreed."
From the above it follows that the transfer of rights and obligations to the new company or the incorporating company, as the case may be, has been equated to universal succession only as regards the effects of the total transfer of rights and obligations, as in customs matters the tax obligations are transferred in accordance with art. 785 of the CA.
That in no way can the extinction of criminal action against natural persons due to death (natural event) be assimilated to the reorganization of legal persons (voluntary event), being important to highlight that in the merger the dissolution does not imply the liquidation of the predecessor company, for which reason the responsibility for all types of obligations - including those derived from pecuniary sanctions - are transferred to the successor company.
That, on the other hand, it should be added that the alleged offense was committed in 1994 (see complaint on pages 1 and 2 of the previous administrative documents; that on 25/2/98 Unistar SA responded to the hearing in the customs procedure for infractions, offering evidence (pages 17/21 of the previous administrative documents), while on 20/4/98 the Chairman of the Board of Directors of Unistar SA proved legal standing (pages 66/73 Ref. of the previous administrative documents); that on 1/2/00 the contested resolution was issued; and that on 2/3/00 the appellant proved the merger of Unistar SA which was absorbed by the former (pages 87/128 back of the previous administrative documents).
That, therefore, although it is true that the merger deed dates from 30/6/99, being registered with the General Inspection of Justice on 24/9/99 (see pages 87/108 of the administrative antecedents), while Unistar SA was deregistered by customs on 6/7/99, although due to being absorbed by Pasa SA (see pages 33 of the proceedings), it is also true that the latter, upon incorporating the offending company, assumed all the obligations arising from its actions, such as those derived from the infringement committed in 1994.
Therefore, I vote for:
1) To confirm Resolution No. 093/00 insofar as it has been the subject of the appeal. With costs.
2º) Sign this, to summon the appellant to pay 2% of the fine for which she is effectively convicted, under penalty of issuing a certificate of debt.
Dr. Winkler said:
I agree with the preceding vote.
Dr. Gustavo A. Krause Murguiondo said:
That substantially agrees with the vote of Dr. García Vizcaíno.
In accordance with the above agreement, it is unanimously RESOLVED:
1) To confirm Resolution No. 093/00 insofar as it has been the subject of the appeal. With costs.
2º) Sign this, to summon the appellant to pay 2% of the fine for which she is effectively convicted, under penalty of issuing a certificate of debt.
Register, notify, promptly return and archive the administrative records.
