In Buenos Aires, on the 5th day of December 2002, the members of Chamber "E", Drs. Gustavo A. Krause Murguiondo and Catalina García Vizcaíno (Dr. D. Paula Winkler is on leave) met, with the first-named Member presiding, in order to resolve the case entitled: "Pesquera Santa Cruz SA v. General Directorate of Customs, s/appeal", file No. 12.691-A.
Dr. Krause Murguiondo said:
I.- That at fs. 7/14 Pesquera Santa Cruz SA, through its representative, files an appeal against Resolution No. 063/99 (AD PDES) issued in file No. EA 19-98-115 rejecting the challenge filed in relation to the customs denial of payment of the refunds contemplated by laws 23.018 and 24.490. Provide a detailed review of the background. It points out, first of all, that due to the issuance of Telex Circular No. 1229/96, Customs does not pay refunds for exports made through Patagonian ports, for products produced in freezer fishing vessels or factories, modifying the criteria that it had maintained for more than thirteen years regarding the interpretation of Law 23.018. He stressed that at the time the company used the legal protection procedure, considering that it was the ideal means to restore the situation as soon as possible to the state prior to the issuance of the Circular. He added that, given the decision of the Supreme Court in the case brought, he is promoting the administrative procedure, indicated by the SCJN as the ideal alternative to achieve the applicability of the Circular to the exports carried out. He points out that the purpose of the appeal filed in this instance is to obtain payment of the refunds for exports made through Patagonian ports that were not paid under Telex Circular 1229/96. He adds that the appeal for protection received a favorable ruling in the first and second instances, but that the Court ruled that it was not the appropriate procedural path, indicating that the issue should have been discussed within the appeal procedure provided for by the CA. He clarifies that he has filed the challenge within ten days of being notified of the customs charge and that the period established by art. 1055 of the CA must be considered suspended for the duration of the amparo trial. It highlights that the company is also entitled to reimbursements for exports that it has made or could have made after the issuance of Telex Circular 1229/96, that is, after 26/8/96. Proceed to analyze the validity of the indicated Circular. Alleges that Res. No. 600/89 clearly indicates that the resolutions of the then National Administration can only be modified by other resolutions of the same level and that Notices, Telegrams, Telexes, etc. that issue general instructions that require a modification with respect to a current resolution will be repealed if, within thirty days of the publication of the Resolution in the BO, they have not been included in the corresponding regulation. It maintains that, since Telex Circular 1229/96 should have been ratified by the issuance of a resolution to maintain its validity, and since this was not issued, said Circular automatically became void. Details the current legal situation regarding reimbursements for Patagonian ports, considering Res. No. 3404/87. Provides a review of the background of refunds for exports made from Patagonian ports. Quote Res. No. 88/83, Law 23.018, passed on 7/12/83, specifying the assumptions of its art. 2 °. It points out that in the event that it is considered that the fish caught by the freezing fishing vessels or factories are not originally from the Patagonian region, having been processed by industrial establishments located in the region, they have undergone an industrial process, which justifies the payment of the refunds. He added that, if the sea is considered to be part of the Patagonian region, the fish would be merchandise originating in the region, and so the corresponding reimbursements would be required upon export. He argues that the freezer fishing vessel is an industrial establishment, as he says is understood by the national departments that determined that character, such as, for example, SENASA. He warns that the ship has its home port in a port in the Patagonian region, which means that it is based in Patagonia. It specifies that the region south of the Colorado River should be understood as the entire region over which the Argentine Nation exercises its sovereignty, both the physical territory and the adjacent waters and the submarine platform. He gives his considerations regarding the concept and interpretation of the Argentine Territorial Sea, Exclusive Economic Zone and its impact on Customs Law. Analyzes what is established by laws Nos. 17.094, 17.500, 18.502, 20.645, 23.172 and 24.922. It attempts to harmonize said legislation in light of the CA, especially its arts. 1, 2 and 585, modified by law 23.968. Regarding the latter, it warns that the export of fish extracted from the Argentine territorial sea, the Argentine exclusive economic zone or from the seabed or subsoil subject to national sovereignty is considered as an export carried out from the general customs territory. It also highlights that in Tierra del Fuego, Customs has recognized that products from the sea are considered to be from the area or region. He proceeds to express the reasons that motivated the issuance of the challenged circular. Analyzes the Opinion of 27/7/95 of the General Directorate of Legal Affairs of MEYOSP, Law 17.500, Law 19.000 and the opinion of 30/8/96. He reiterates that the refunds have been paid for more than thirteen years, without any question, and therefore proceeds to analyze the impact that principles such as legal certainty, proper acts and custom have on the facts in question. Citation of CSJN case law which he considers in favor of his statements. It is understood that the principle of legal certainty is violated when the principle of the doctrine of one's own acts is altered. Describes the scope that both doctrine and jurisprudence have given to the aforementioned theory. It is also aggrieved that, when the Circular in question was issued, express provisions of administrative procedure were violated, which makes it totally questionable. He claims that if there were null acts carried out by Customs (payment of refunds) a judicial declaration of nullity should have been requested, which did not occur in the proceedings. He adds that the opinion of the National Treasury Attorney's Office has not been requested either, which is mandatory for Customs before adopting the measure being adopted and that it has not originated in any express decision of the Ministry of Economy, it being this and not Customs that, according to Law 23.018, has the power to interpret the scope of the same, while the provincial Ministries of Economy certify whether the products have regional characteristics. Requests third party intervention. Provides evidence, reserves rights and the federal case. He requests that the appeal be granted, with costs.
II.- That at fs. 30/43 the fiscal representation answers the transfer that was duly conferred upon it. General negative formula regarding the plaintiff's claims that are not expressly recognized. Provides a review of the background that gave rise to these proceedings. It maintains, first of all, that the plaintiff cannot dispute in this instance the legitimacy of Telex Circular No. 1229/96 since the SCJN has already issued a ruling on the matter, a pronouncement that has become res judicata. Furthermore, it should be noted that the legitimacy of the orders issued by the customs authority has already been the subject of judgment in the case "Frigorífico Mellino SA v. ANA s/action for protection." It considers that the customs procedure followed was carried out in accordance with the law. It considers that any nullity that may be sought is inadmissible, since there is a judicial jurisdiction subsequent to the administrative one, citing rulings of the National Supreme Court. It analyses the nature of Circular Teles 1229/96, and pronounces on its validity with various arguments, as well as on the powers of the customs agency to issue it. He argues that there is no acquired right in this case and that the exercise of the powers of the customs service is supported by the harmonious interpretation of the applicable regulations. It limits that the fact invoked regarding payments made previously with respect to the doctrine of own acts does not begin to be resolved. Regarding the complaint regarding the provisions of Telex Circular No. 1229/96, it states that circulars constitute elements of administrative law, expressed through internal communications, which are binding on the Administration. He adds that in the case at hand the legal basis is the CA -arts. 845 and cc.- and law 23.018, and other regulations that it invokes. He points out that the Circular was the result of a study carried out by the MEyOSP on what is actually the area promoted by Law 23.018. Invokes what was expressed by the SCJN in re «Frigorífico Mellino SA». It carries out an analysis of what is established by the aforementioned law 23.018, indicating that the plaintiff has not complied with the requirements established therein for the granting of the benefit. It considers that the plaintiff is wrong when it seeks to extend the scope of application of the law to the maritime area, violating not only its letter but also its spirit, which is that the area to be promoted is precisely the continental area. He adds that the appellant acknowledges that the industrial activity is carried out on ships, and that there is no manufacturing of territorial origin. He cites case law that supports his statements. Finally, it points out that the regulations in question (Law 24.490) are in conflict with the current regulations of higher constitutional hierarchy, Law 24.425, which ratifies the Marrakesh Agreement and prohibits regional subsidies or benefits such as the one being sought. He requests that the appeal be rejected, with costs.
III.- That at pages 49/50 the request for intervention of third parties is denied and the case is opened for evidence, which is added at pages 68/93, 94/97, 101/102, 105/123, 130 and pages 163/178. At pages 162 the evidentiary period is declared closed. At pages 180 the files are set out for argument. At pages 186/193 the Treasury alleges. The plaintiff did not allege. At pages 195 the files are set out for judgment.
IV.- That on page 1 of file EA19-98-115, there is the appeal filed by the plaintiff, in relation to Provision No. 085/98 (AD PES) by which payment of refunds for exports through Patagonian ports is denied. On page 9, there is attached on four pages the action EA19-98-080, where the request for payment of refunds and its denial by the aforementioned Provision is found. After the notice formulated on pages 10, on pages 12/48 there is a reasoned appeal by the plaintiff. On pages 51 the case is opened for evidence. On pages 56, there is attached an official response on 157 pages from the Argentine Naval Prefecture. On pages 60/71 there are legal opinions. On pages 72/74 resolution No. 063/99 (AD PES) is issued, which is appealed in this instance.
V.- That Provision No. 085/98 (AD PES) and resolution No. 063/99 AD PES, by which payment of the requested refunds was denied (Law 23.018 24.490), was based on various legal considerations, set forth in the aforementioned opinions, and especially. That according to the appellant's statement in its appeal (page 7 back of the proceedings), the Court rejected the appeal for protection filed by it, based on the decision of the National Supreme Court in re Frigorífico Mellino dated 16-4-98.
That the boarding permits or DUA involved are subsequent to the entry into force of Telex Circular No. 1229/96 (see administrative proceedings fs. 1 of file EA 19-98-080, added to fs. 9 of said proceedings).
VI.- It should be noted that the jurisdiction of the Court in the case and its rulings refer to the appealed resolution insofar as it rejects the request for payment of refunds, without obviously being able to refer to a declaration of nullity or validity of Circular No. 1229/96, as such, which, by referring to general internal instructions of the customs agency, is not the subject of a ruling by the Tax Court with the generic nature sought by the plaintiff, given the limits set for its jurisdiction in articles 1053, 1025 and 1132 of the Customs Code, so that what is resolved in the case affects only the appealed resolution in a specific manner, and the analysis of the indicated Circular is only made as to its impact and effects in relation to that resolution.
VII.- That the claim of nullity must be rejected for the reasons set out below:
1st) That, as the Tax Court has expressed in various precedents, it is SC doctrine that the challenge of arbitrariness is not applicable to a well-founded resolution or judgment, regardless of its correctness or error (Rulings, 243-560, 246-266, 248-584, 249-549), except in certain cases that do not apply to the case at hand.
That, the decision being sufficiently founded, the express mention of all the arguments of the appellant is not required (among others, Fallos, 251-39). That in the case at hand, the appealed decision of pages 72/74 of the administrative file refers to the grounds contained in the previous opinions of pages 60/71 of the adm. file and to the grounds of the judgment of the National Supreme Court in re Frigorífico Mellino, which it adopts.
That the appellant acknowledges on page 7 back of the proceedings the issuance of a judgment in the judicial sphere, in the case that she herself had brought, although she understands that she could equally initiate the appeal procedure.
That, furthermore, the appealed resolution has applied in some way the instructions received from the General Subdirectorate of Customs Operations of the interior by Fax No. 205/98 (SDG OAI), in compliance with orders or instructions received from the Ministry of Economy, as arises from the list of background contained in ACRAL opinion No. 100/96, found on pages 60/70 of the administrative file, therefore seeking a declaration of nullity of the resolution would imply declaring nullity for nullity itself, since the new ruling that was issued would maintain the referred criterion, since there is no indication in the case that said criterion had changed.
2) As Francisco Carnelutti states in Lecciones sobre el Proceso Penal, Bosch y Cia. Editores, 1950, Volume III, p. 217, «…from the principle of absorption of invalidation in the challenge derives…the rule formulated by scholars of civil procedure in the sense that the vices of the challenged provision become grounds for challenge, this means that as soon as a flawed provision is challengeable, the power of invalidation does not concur with that of challenge, but is absorbed in the same, as annulment is absorbed in rescission. Such absorption is on the verge of a historical evolution that here I could not even trace in its general points; in very general terms, I indicate only that the rescission of the unjust act constitutes a step forward over the annulment of the flawed act. In this the slowly forming thought is expressed that the requirements of the act, and in particular, the formal requirements are valid not in themselves but as means to the end of its justice, which truth, even when obvious, has not had an easy path in the history of law...». That the national doctrine and jurisprudence have also maintained that the nullity of an act does not result from a necessary declaration, if the grievances, if justified, can be remedied by way of appeal to which it is subject (see Santiago C. Fassi, Code of Civil and Commercial Proceedings, Astrea 1971, volume I, page 441). That it is convenient to point out then that there is no object, impediment or eventual prejudice in proceeding to deal with the grievances of the appellant as to the substance, avoiding a separate and irrelevant treatment of aspects that could only consider a nullity for the nullity itself.
3) That the Supreme Court of Justice of the Nation in the judgment issued in "Frigorífico Mellino SA vs. National Customs Administration s/amparo action" dated 16/4/98, after rejecting the claim of illegitimacy of Telex Circular 1229 of the then National Customs Administrator, has specified in Consideration 10): "That, this being the case, the questions raised regarding whether there was a change in the administration's criteria in the interpretation of the legal regime - which, if verified, could only be applied for the future, unless there was fraud or gross negligence on the part of the exporter (doctrine of Fallos: 284:232 and its citations among others) - find their appropriate framework for debate in the challenge procedure provided for in arts. 1053 to 1067 of the Customs Code, whose decision may be appealed before the National Tax Court (see arts. 1025, paragraph a, and 1132, point 2), with subsequent appeal jurisdiction of the respective federal chamber (arts. 1028, paragraph 1, paragraph c, 1171, 1180 and related articles of the aforementioned legal body), which the plaintiff company would be entitled to promote in the event that the customs service - as a result of the circular challenged in the sub-examination - issued the administrative acts corresponding to the export operations carried out by the latter.
That in light of this doctrine of the Supreme Court, it is worth noting that the export operation in this case is subsequent to the change in criteria resulting from Telex Circular 1229/96, in accordance with what arises from fs. 9 of the administrative proceedings (fs. 1 of file EA 19-98-080, added to fs. 9 of said proceedings).
4) That, it is the doctrine of the Supreme Court that the effective violation of art. 18 of the National Constitution does not occur as long as there is a possibility of correcting said restriction in a subsequent jurisdictional stage (Rulings: 205:549; 247: 52, consid. 1st; 267:393, consid. 12, among many others), given that the requirement of defense in court is satisfied "...by offering the possibility of appearing before a jurisdictional body in search of justice. (Rulings: 205:549, consid. 5 and their citations).
5th) That the undersigned considers that no specific imposition of costs is appropriate, in relation to the claim of nullity, given that in the appeal it is raised as an argument only additional to the others for which the revocation of the appeal is requested.
VIII.- That the grievance relating to the alleged non-compliance with the provisions of arts. 17 and 18 of the National Law on Administrative Procedures, in the opinion of the undersigned, lacks any regulatory basis because said rules are inapplicable since the Customs Code specifically and expressly provides that in the administrative headquarters the customs service may claim amounts unduly paid as export incentives -conf. arts. 845 to 855, 1053 inc. b) and concordant of the CA- Likewise, the powers of the customs service to deny payment of refunds are undeniable, if said payment is inappropriate.
IX.- That Telex Circular 1229/96 was not issued in the exercise of the powers established in the then art. 23 inc. i) of the CA, and its text does not invoke the exercise of the same. These types of instructions, circulars or internal regulations constitute legal forms through which inter-organ relations are established. They serve to give directives to the lower organs, obtaining unity of direction and action despite the plurality of organs. They are not in principle subject to the same requirements of validity as the rest of the administrative regulations that modify the order and legal situations affecting individuals. It is obvious that if the application of the instructions or circulars, by virtue of their application by the obligated official, gives rise to an act that affects the interests or rights of an individual, that act can be challenged by legal means, as occurs in the case at hand. However, as I explained in Recital VI, the National Tax Court lacks rules that grant it jurisdiction to invalidate a circular or instruction issued with a general character by the customs service. Its jurisdiction appears with the issuance of the specific acts referred to in art. 1053 and following of the Ad. Code and concordant rules of that legal body.
X.- That, on the other hand, whatever the criterion that is supported regarding the substantial legitimacy or not of Circular 1229/96 compared to what is regulated by the legislation and international treaties, whose interpretation is carried out by the appellant in its appeal on fs. 7/14, this Court must apply the doctrine of the Supreme Court of Justice of the Nation resulting from the ruling issued in "Frigorífico Mellino SA v. National Customs Administration s/action for amparo" dated 16/4/98, to the effect that the owner of the former ANA did not exceed "his legal powers by indicating to the various offices under his charge the manner in which they should apply the refunds provided for in Law 23.018 in operations relating to seafood products that were presented in the future, and instructing them to proceed to formulate the charges that may correspond in the event that undue refunds had been paid within the framework of arts. 845 and related articles of the Customs Code..." (considering 8).
XI.- As stated by this Court in various precedents, the Supreme Court of Justice of the Nation has held that its jurisprudence is binding on all lower courts (especially when invoked by the parties), for the purposes of adequately safeguarding the legal unity in the interpretation inherent in the principle enshrined in art. 116 of the CN, having qualified itself as "supreme interpreter of the National Constitution and of the laws enacted as a result thereof", such as, e.g., laws 23.018 and 22.415 (Customs Code).
That, in effect, although the Supreme Court "only decides in the specific proceedings submitted to it, and its rulings are not binding on similar cases, lower court judges have a duty to conform their decisions to those . . . From this doctrine, and from Fallos, 212-51 and 160, arises the consequence that the rulings of lower courts that depart from the Court's precedents without providing new arguments to justify modifying the position taken by the court, in its capacity as supreme interpreter of the national Constitution and the laws enacted as a result thereof, are unfounded . . ., especially in cases such as the present one, in which said position has been expressly invoked by the appellant" (SC, "Incidente de prescripcion Cerámica San Lorenzo", dated 4/7/85, "Fallos", 307-1094 and its citations). This is so because, by provision of the national Constitution and the corresponding regulatory law, the Supreme Court has definitive authority for justice throughout the Republic (art. 100, CN [currently, art. 116, according to the 1994 reform], and art. 14, law 48, "Judgments", 212-51).
In addition to the above, the Supreme Court has recently stated forcefully that ignorance of the guidelines it has given in its rulings is sufficient to disqualify judgments issued by lower courts, "since the absence of arguments that allow determining the criteria followed to disregard the Court's jurisprudential doctrine applicable to the case implies a decisive lack of foundation that vitiates the judgment as a jurisdictional act" ("García, Sixto E.", 30/6/99; Criminal Jurisprudence Supplement of "La Ley", 27/9/99, p. 30).
XII.- That, whatever the assessment made of the evidence produced (see pages 68/93, 94/97, 101/102, 105/123, 130 and pages 163/178), it is appropriate to apply the doctrine of the Excma. Supreme Court of Justice of the Nation, which in the judgment handed down in "Frigorífico Mellino SA v. National Customs Administration s/amparo action" dated 16/4/98, cited in point IX) of this document, after rejecting the claim of illegitimacy of Telex Circular 1229 of the then National Customs Administrator, has specified in Consideration 10): "That, this being the case, the questions raised regarding whether there was a change in the administration's criteria in the interpretation of the legal regime - which, if verified, could only be applied for the future, unless there was fraud or gross negligence on the part of the exporter (doctrine of Fallos: 284:232 and its citations among others) - find their appropriate framework for debate in the challenge procedure provided for in arts. 1053 to 1067 of the Customs Code, whose decision may be appealed before the National Tax Court (see arts. 1025, paragraph a, and 1132, point 2), with subsequent appeal jurisdiction of the respective federal chamber (arts. 1028, paragraph 1, paragraph c, 1171, 1180 and related articles of the aforementioned legal body), which the plaintiff company would be entitled to promote in the event that the customs service - as a result of the circular challenged in the sub-examination - issued the administrative acts corresponding to the export operations carried out by the latter.
That in light of this doctrine of the Supreme Court, it is worth noting that the export operation in this case is carried out after the change of criteria that would result from Telex Circular 1229/96 of 26/8/96, given what arises from the report recorded on page 1 of file EA 19-98-080, added to page 9 of the administrative proceedings.
That the Supreme Court in the 9th Recital of the aforementioned ruling issued in "Frigorífico Mellino SA", strictly applicable to the case, has understood that art. 2 of law 23.018 delimits the promoted region as that 'located south of the Colorado River' and makes no reference to the maritime area.
XIII.- That the plaintiff mentions as grounds for the appeal legal provisions of a diverse nature, such as arts. 1, 2 and 585 of the Code of Administrative Law, Reginave (dec. 4716/73), laws 17094, 17500, law 18502 and law 24922, decree 3255/71, law 19.640, etc. However, the truth is that law 23.018 is the one that specifically establishes the benefits regime claimed by the plaintiff, independently of the provisions of the additional regulations cited by the plaintiff, and in the interpretation of the specific regime by the Supreme Court itself, in the rulings already cited, the reimbursement regime is not applicable to it according to the claim made, so the particular analysis thereof is irrelevant.
XIV.- That the argument of the plaintiff that the exported products have undergone an industrialization process in vessels used by it, which would have changed its tariff position, for which reason the payment of refunds would be appropriate in the terms of art. 2 of law 23.018, has not been supported in the case by concrete and sufficient evidence that allows an evaluation of the impact of the same on the result of the case. That, furthermore, even if this had been the subject of conclusive evidence, it can be understood that the manufacturing or industrialization process carried out on vessels cannot be considered to have been carried out in the continental zone, which is the zone promoted by law 23018, and which constitutes the circumstance that authorizes the payment of refunds. The argument put forward by the plaintiff, in this respect, is insufficient to invalidate the appealed decision.
XV.- That the various formal challenges made in relation to circular 1229/96, also lack incidence because the Tax Court is not assigned jurisdiction to hear a general ruling on its validity as an internal customs instruction, and because the criteria that inform it have been considered correct by the National Supreme Court itself. The jurisdiction of the National Tax Court is restricted in the present case to considering whether it is appropriate to confirm or revoke resolution No. 063/99 AD PES, in the terms of arts. 1025 and 1132 of the Customs Code, and only with regard to the denial of payment of refunds that this resolution provides, without being able to encompass or reach its decision to other present or future issues.
XVI.- That the appealed resolution having been issued after the issuance of circular 1229/96, and that the export operations involved were subsequent to the issuance of said resolution, it cannot be considered that there has been any interpretative change.
From another point of view, the plaintiff cannot claim that a possible administrative practice of paying refunds in similar situations before the issuance of Circular 1229/96, creates in its favor acquired rights for the future for future and eventual operations as well. No one has acquired rights to prevent changes in legal regulations or interpretations agreed by administrative or judicial bodies to those regulations. And it is known that normative or interpretative changes govern, and in that there is no discussion for the future, as occurs in the case at hand. The changes in interpretation that govern for the future do not affect legal certainty either, nor do they put into play the theory of proper acts, since this would entail rigidities improper to the development of any legal order. The possibility of interpretative changes, with safeguards only regarding their retroactive application, has been accepted by art. 792 of the Ad. Code and by art. 8 of decree 618/97, in fine, as well as art. 9 of the same.
The only question that these interpretations raise for the future is whether they fit into the regulatory framework that they interpret or whether they deviate from it. And in the case at hand, the National Supreme Court, in the decisions cited, has ruled in the sense that the interpretation that underlies Circular 1229/96 and therefore Provision No. 085/98 (AD PES) and Resolution No. 063/99 AD PES conform to the meaning of the interpreted law.
XVII.- That the enactment of Law 25454, which amended Laws 23018 and 24490, considering seafood products from the region located south of the Colorado River as originating, has no bearing on the resolution of this case. This law is clearly a modification of the cited norms, taking into account the meaning given by the National Supreme Court in re Frigorífico Mellino to the text of Law 23018, to which we refer above in this opinion. Given its modifying nature, Law 25454 has no retroactive effect and no bearing on this case.
Therefore, I vote for:
1st) Reject the claim of nullity filed by the plaintiff, without costs.
2nd) Reject the appeal and confirm Provision No. 085/98 (AD PES) and Resolution No. 063/99 AD PES, with costs.
3°) To order the plaintiff to pay within five days of notification the sum of ten thousand two hundred twenty-five pesos ($10.225.-) as a performance fee (law 22610 and amendments), under penalty of issuing a debt certificate.
4) To regulate the professional fees of Dr. Alberto Mario Gilardino for the performance in this case in his capacity as attorney representing the appellant in the sum of eight thousand six hundred and sixty-one pesos ($8.661.-) (articles 6, 7, 8, 10, 37, and 38 of Law 21.839, as amended by articles 1, 12, subsections d, e, and f, 13 of Law 24.432). These fees are the responsibility of your representative. It is noted that this regulation includes the amount due as VAT, in accordance with the conditions established and reported in the case at fs. 128 (RGN689/99 AFIP-DGI), and considering that the professional services were provided prior to the validity of Decree 2312/02.
Dr. García Vizcaíno said:
I substantially agree with Dr. Krause Murguiondo's vote.
Pursuant to the foregoing agreement, IT IS RESOLVED:
1st) Reject the claim of nullity filed by the plaintiff, without costs.
2nd) Reject the appeal and confirm Provision No. 085/98 (AD PES) and Resolution No. 063/99 AD PES, with costs.
3°) To order the plaintiff to pay within five days of notification the sum of ten thousand two hundred twenty-five pesos ($10.225.-) as a performance fee (Law 22610 and amendments), under penalty of issuing a debt certificate.
4) To regulate the professional fees of Dr. Alberto Mario Gilardino for the performance in this case in his capacity as attorney representing the appellant in the sum of eight thousand six hundred and sixty-one pesos ($8.661.-) (articles 6, 7, 8, 10, 37, and 38 of Law 21.839, as amended by articles 1, 12, subsections d, e, and f, 13 of Law 24.432). These fees are the responsibility of your client. It is noted that this regulation includes the amount due as VAT, in accordance with the conditions established and reported in the case at fs. 128 (RGN689/99 AFIP-DGI), and considering that the professional services were provided prior to the validity of Decree 2312/02.
Register, notify the parties and the plaintiff at their actual address, promptly return the administrative proceedings and file them.
This document is signed by Drs. Gustavo A. Krause Murguiondo and Catalina García Vizcaíno because Dr. D. Paula Winkler is on leave (Art. 1162 of the CA).
