In Buenos Aires on the 18th day of February 2004, the members of Chamber E, Drs. Catalina García Vizcaíno and Ms. Paula Winkler, met with the last appointed member in the presidency, in order to resolve the case entitled: POLLEDO SA and TRANSPORTES BOLIVIA SA, v. DGA s/appeal; file No. 17.474-A
Dr. Catalina García Vizcaíno said:
I) That at fs. 31/42 are presented POLLEDO SA and TRANSPORTES BOLIVIA SA, by proxy, and filed an appeal against Ruling No. 14/02 issued by the Pocitos Customs Office, which imposed a fine of $41.619, equivalent to one time the taxes levied on imports for consumption, for an alleged infringement falling within the scope of arts. 973 and 974 of the CA and, likewise, demands the taxes in question for the same amount of $41.619 with respect to land transit by truck No. 49/94 of the Registry of that Customs Office. Firstly, they state that the current owners of the firm POLLEDO SA They are not involved in the facts alleged in these proceedings, due to having acquired the corresponding share package after the same. They report that the firm Polledo SA In 1991, it carried out an important public work in the Republic of Bolivia and in order to be able to carry out such action it had to formalize various Temporary Exit Permits, among which it lists Nos. 0473/91, 0162/91, 0163/91 and 70.312/92 from the Buenos Aires Customs. They explain that, once the works were finished, the goods in question returned to the country, but that upon arriving at the Pocitos Customs Office they were delayed, and despite the fact that they were national or nationalized goods, the company was forced to arrange land transits between that Customs Office and that of Buenos Aires. They point out that this is the origin of Land Transit No. 49/94, and that in their opinion, since the goods were of national origin, the aforementioned transit was unnecessary. They maintain that Land Transit No. 0206/93, which is added to the summary SA45-97-729, mentions that they were goods intended to cancel temporary exit permits Nos. 0163/91, 70.312/92, 0162/91 and 0473/91 as well as the situation being also reflected in Export Manifest No. 288/93 issued in Yacuiba. They point out that the goods arrived in Buenos Aires and entered the Lo Primo Customs Warehouse, where they were released to the market, canceling the Land Transit and Temporary Exit Permits and that in cases where the return occurred late, a summary was initiated by the then Department. Capital Litigation. They explain that on 11/3/97 the order to open the summary Nº SA45-97-724 was issued, and TRANSPORTES BOLIVIA SA was notified of the same. but not to POLLEDO SA, the first of the aforementioned appearing on 14/12/01. They indicate that POLLEDO SA was notified on 7/1/02 - that is, during the January judicial holiday - and that, therefore, the deadline to respond to the request should begin to run from 1/2/02, as well as that the deadline should be extended by one day for every 200 km, pursuant to art. 1036 CA They argue that at that time the country was in the midst of a social crisis, and that multiple roadblocks were resulting from it, which caused the documents issued in Buenos Aires on 27/2/02 by the company LA VELOZ DEL NORTE SA arrived in Pocitos on 4/3/02; that on 22/2/02 the Pocitos Customs considered TRANSPORTES BOLIVIA SA as presented and declared his right to defense void, and that POLLEDO SA The company declared it in default and established its domicile at the customs courts; considering this decision to be unfair, they filed a complaint with customs, which was rejected on the grounds that the requests made corresponded to pre-determined stages; on 22/7/02 the companies were notified of charge No. 337/02 corresponding to case No. SA-45-97-0724 invoking Ruling 14/02, and on the same date both companies were also notified of charge No. 338/02, also issued on the occasion of case No. SA-45-97-0724, the same situation occurring with respect to case No. SA-45-97-0725 and Ruling 15/02, so that an attempt was made to collect the same concepts twice; who, therefore, challenged both charges through Document Letter No. 448558046 AR of the Argentine Post Office for the following reasons: not having been reliably notified of Rulings 14/02 and 15/02, the authenticity and/or validity of any notification regarding said Rulings was denied, copies of the same were requested and, subsidiarily, the nullity of the charges formulated was raised. They list the grounds for the contested ruling and express their grievances in this regard. Polledo SA's alleged late submission of its defense is refuted It refers to Law 11.683 and its Amendments, insofar as they establish the periods of holidays and vacations, various Resolutions issued by the former Ministry of Finance and Class A Communications of the Central Bank of the Argentine Republic, where bank holidays were decreed, as well as the periods issued by art. 1101 and concordant CA They raise the nullity of the summary proceedings due to territorial incompetence of the Pocitos Customs, and specifically call the summary instruction order of 11/3/97 null and void and, therefore, invoke the statute of limitations for collecting taxes and applying penalties. Irregularities regarding dates are noted. They elaborate extensively on the origin of the goods and their influence on the present case. They offer evidence. They reserve the federal case. They request that the summary proceedings conducted by the Pocitos Customs Office be declared null and void, and, in the alternative, that the appealed ruling be revoked.
II) That on pages 50/57 the prosecution's representation contests the transfer that was duly conferred upon it. It denies each and every one of the assertions that are not expressly acknowledged or that do not arise from the administrative or evidentiary proceedings. It makes a brief summary of the facts that gave rise to the present proceedings and the grievances of the appellants. It maintains that, despite what was stated by the plaintiff, there is reliable notification (dated 11/03/02) of the conviction ruling No. 14/02 issued in the case, having elapsed the period provided for in art. 1133 CA of 15 days to be able to appeal the final judgment issued in the customs infringement procedure. It reaffirms the competence of the Pocitos Customs Office to hear the summary proceedings, with the Customs Office of Registry of the operation being the competent customs office to hear the investigation. The Court maintains that, among other references, there are serious inconsistencies between the goods declared as leaving the country and those declared in transit for re-entry into the country. It states that the legal requirements provided for in arts. 973 and 974 of the CA have been met, and that it is up to the plaintiffs to demonstrate in a reliable manner and with the relevant customs documentation that they have fully complied with their obligations within the legal period granted. It offers evidence. It requests that a judgment be issued, declaring the formal inadmissibility of the appeal and confirming the appealed customs ruling, with costs.
III) That at pages 61/63 back. the plaintiff denies having received the notifications at pages 106 and 107 of the ant. adm., reiterating that it became aware of the contested resolution on the occasion of the notification of the charge for a fine and taxes. At pages 64 the case is opened for evidence, which is produced at pages 81/82, 83/202, 212/223, 228/239, 246, 259/266, 293/302, 309/318, 319/321 and 327/342. Once the evidentiary period was closed, at pages 345 the undersigned requested the accountant to make certain clarifications, which were carried out at pages 365/back. The files were submitted for argument at pages 366, the plaintiff and the Treasury make use of this right at pages 370/375 back, and 376/377, respectively. At pages 379 the proceedings are called to judgment.
IV) That on page 1 of file SA 45-724/97 the proceedings are referred to the Comptroller of the Pocitos Customs…given the time elapsed and the Land Transit No. 49/94 not having been cancelled…. On page 4/7 the Request for Suspensive Destination – Land Transit by Truck with authorization date of 22/3/94 is added. On page 12 the Guarantee Control appears, where it is stated in the Observations section: … Land Transit to Buenos Aires (01)…, where the Company Helvetia Argentina SA de Seguros appears as guarantor. On page 17, on 11/3/97 the instruction of the summary by the Pocitos Customs is ordered. On page 22/23 the customs agent Carmen del Valle Portillo answers the conferred view ... 26/32 several reports are issued regarding the lack of records of arrival in Buenos Aires of the merchandise in question. At fs. 37 a copy of the Surety Insurance Policy for customs guarantees No. 17.458 issued by Helvetia Argentina SA de Seguros is glossed. At fs. 69/74 POLLEDO SAIC and F. answer the view. At fs. 78/92 various documentary evidence provided by the parties is added. At fs. 96 the Original Document Letter No. CD 425645475 AR sent before Correo Argentino SA At fs. 99/101 the legal opinion is issued and at fs. 105 the Ruling No. 014/02 (AD POCI) of the Administrator of the Pocitos Customs is issued.
V) That, first of all, it is appropriate to rule on the exception of formal inadmissibility of the appeal raised by the public prosecutor's office at fs. 53 of the proceedings, which is based on the fact that the contested decision had been notified to the co-plaintiffs at fs. 106 and 107 of the previous administrative proceedings.
That from the comparison of these proceedings it arises that the notification notice on pages 106 of the administrative antecedents of Judgment 14/02 (AD POCI) was sent to the address of San Martín 285 - Prof. Salv. Mazza - Salta appointed by Dr. Jorge A Patricios as representative of Polledo SA, this address being the same as the one established by this firm on pages 69/74 and 96 of the administrative antecedents, for which reason said importer should be considered effectively notified on the date that results from the certification contained in said notice (11/3/02 at 8,30:63 a.m.), not being an obstacle to this that the representative of Transportes Bolivia SA signed and sealed the receipt of the original. That since said notice is a public instrument, the offer of expert handwriting evidence on pages XNUMX of the proceedings is not enough to invalidate it.
That from 11/3/02 to the date of filing of the appeal before this Court (13/8/02; see pages 1 and 42 of the case) the 15-day period provided for in art. 1133 of the CA was easily exceeded, for which reason in this respect the exception raised by the National Treasury should be upheld.
That, however, I have a reasonable doubt about the notification made to Transportes Bolivia SA despite the fact that the notice on page 106 of the previous administrative proceedings appears to have been received by the representative of this company, since the notification was addressed to Polledo SA and not to the latter.
That, on the other hand, the notice on page 107 of the administrative proceedings refers to Ruling No. 15/02, and not to No. 14/02, for which reason it cannot be considered a valid notification of the latter, as the plaintiff maintains on page 63 of the proceedings.
I encourage the DGA not to be ordered to pay costs as the exception is rejected due to the doubts raised about the notification made.
VI) That the declaration of formal inadmissibility of the appeal filed by Polledo SA renders unnecessary the consideration of whether or not to extend the time limits granted for the response to the hearing, which is why the evidence submitted regarding the distance from Buenos Aires to Salvador Mazza (Pocitos) or the roadblocks that could have prevented Polledo SA from responding on time is not analyzed (pages 228/239, 246 and 327/342).
It should be noted that no period could be extended for Transportes Bolivia SA, since it presented itself on page 42 of the ant. adm. indicating an address within the jurisdiction of the Pocitos Customs Office (San Martín 285, Pocitos), which was deemed to have been established on page 45 of the ant. adm. and which it maintains in its presentation on page 74 of the ant. adm.
VII) That with respect to Transportes Bolivia SA, the contested resolution has charged the infringement provided for in art. 973 of the CA, taking into account that there is no record in the proceedings of the cancellation of the Request for Suspension of Destination of Land Transit by Truck No. 49/94 from the Pocitos Customs registry that left it on 22/3/94, without having demonstrated the arrival of the means of transport with the merchandise at destination (Buenos Aires).
That art. 973 of the CA provides: After a period of 1 month counted from the expiration of the one agreed upon for the fulfillment of the transport carried out under the import transit regime or the removal regime, without the means of transport that transports the merchandise arriving at the customs of exit or destination, as appropriate, the carrier will be sanctioned: a) when it is an import transit, with a fine of 1 to 5 times the amount of the taxes that tax the import for consumption. This fine may not be less than 30% of the customs value of the merchandise, even when it is not taxed ….
That if it was not proven that the merchandise had arrived in Buenos Aires, the Pocitos Customs Office could validly be considered as the administrator of the customs office in whose jurisdiction the events had occurred, in accordance with arts. 1018 and 1023 of the CA, since it was not proven where said merchandise was actually introduced into the market.
That, therefore, the annulment of the summary proceedings cannot be made due to the alleged territorial incompetence alleged on pages 35 back/37 of the proceedings.
That the nullity should not be successful due to the alleged irregularities raised on pages 37/38 back, given that Transportes Bolivia SA did not respond to the hearing in a timely manner within the period of art. 1101 of the CA, for which reason it cannot raise in the future formal defects prior to the order that was heard, as regulated by art. 1104 of the CA.
That, in effect, the aforementioned carrier was notified of the order that was seen on 17/1/02 (page 55 of the previous administrative documents) and did not formulate any defense within the term (see page 64 of the previous administrative documents), the adhesion of page 74 of the previous administrative documents being untimely, since in its respect no extension of the 10-day term of art. 1101 of the CA was computed, due to having established a domicile within the urban radius in which the customs office had its headquarters (cfr. art. 1001 of the CA and contrary sensu art. 1036 of the CA).
That, consequently, the order opening the summary of 11/3/97 (page 16 of the administrative antecedents) must be considered valid.
VIII) That it is appropriate to analyze the defense of prescription of the action to impose penalties and to demand taxes from Transportes Bolivia SA for the act charged as an infraction.
That at the time of the events that gave rise to these proceedings, the statute of limitations for the Treasury's action to impose fines was regulated by the Customs Code, which, in its art. 934 establishes that: The action to impose penalties for customs violations shall expire after five years, a period which, in accordance with the provisions of art. 935, begins to run on the first of January of the year following the date on which the violation was committed or, if it cannot be specified, on the date of its verification.
That according to the regulations transcribed above, the five-year period mentioned must be computed from January 1, 1995, given that the alleged infringement would have been committed in 1994 (cfr. art. 973 of the CA which requires the passage of one month counted from the expiration of the term conferred; in this case for Land Traffic by Truck No. 0049 of 22/3/94), having been imputed to the appellant that did not regularize its situation. Therefore, if the prescription had not been interrupted, it would have operated on 1/1/00, as well as with respect to the taxes requested (conf. arts. 803 and 804 of the CA).
That, however, the prescriptive period in this case was not suspended (see art. 936 of the CA) with regard to the action to impose penalties, but it was interrupted. In effect, the interruption of the prescription occurred with the order that ordered the opening of the summary dated 11/3/97 (see fs. 16 of the ant. adm.).
That the order to open a summary does not require notification, which is justified by the fact that at the time of its issuance those responsible for the illegal act may not be identified.
It should not be forgotten that one of the purposes of the summary is to determine those responsible - art. 1091 inc. b) of the CA-.
That, therefore, said order has the character of interrupting the prescription in accordance with the provisions of art. 937 inc. a) of the CA
That as I have held, among many other pronouncements of this Court, in re SA San Miguel AGICIF of 13/3/90 and 28/3/90, and Yamana SRL of 26/7/94, the CA when referring to the cause of interruption of the prescription of art. 937 inc. a) [a similar criterion applies with respect to subsection b)] does not record any provision by which the new term is counted from the first of January following the interrupting event. Note that art. 935 does not contemplate the case configured in the present one, since it governs the initial computation of the prescription term, but not the period that runs from an interrupting event.
That, unlike the above, Law 11.683, enacted in 1978 and amended, in its art. 70 [currently, art. 68 of the revised text in 1998 and amended] subsection a), by providing for the commission of new infractions as a cause for interrupting prescription, a rule stating that in this case "the new term of prescription will begin to run on January 1 following the year in which the punishable act or omission took place" (emphasis added).
It follows from this that when the legislator intended that the prescriptive calculation would run from a date other than the configuration of the facts or omissions provided for in the regulations, he expressly provided for it.
That the Supreme Court of Justice of the Nation has issued a similar ruling in re Parquerama SA, judgment of 22/2/94.
That being so, the statute of limitations for the action has been interrupted by the order opening the summary, on 11/3/97, with the new term beginning to run from the day following the date on which it was issued.
That, however, on 11/3/02 the interruption of the prescription occurred in accordance with the terms of subsection d) of art. 937 of the CA (the issuance of the condemnatory resolution at the customs office), for which reason a new prescription period began to be counted as of 12/3/02.
That this is not an obstacle to the fact that Transportes Bolivia SA considered itself notified on 22/7/02, as recognized on page 1 of the proceedings, since regarding the date of notification of the condemnatory resolution, the plenary session of the Honorable National Chamber for Federal Administrative Litigation of the Federal Capital in re Hughes Tool SA, on 23/9/03, established, by majority, as legal doctrine: According to customs legislation, the simple issuance of the administrative act constituting the condemnatory resolution interrupts the prescription period, without requiring prior notification.
In addition to the above, with regard to the action to impose penalties, the new prescriptive period was suspended as of 13/8/02 due to the filing of the appeal before this jurisdictional body in accordance with the provisions of art. 936 of the CA.
That the action to demand payment of taxes that Transportes Bolivia SA may owe is not prescribed either, since the 5-year limitation period referred to in art. 803 of the CA has not run, since since 11/3/97 when the summary was opened (page 16 of the administrative antecedents), the suspensive cause of art. 805, paragraph a) of the CA was configured, which remains in effect until a decision is made that enables the exercise of the action to collect the tax when said exercise is subordinated to that decision, which has not yet occurred.
Furthermore, it should be noted that the notification of the customs tax liquidation of 22/7/02 (page 1 of the proceedings) interrupted the prescription in accordance with the terms of art. 806 inc. a) of the CA.
That, therefore, the 5-year limitation period referred to in arts. 803 and 934 of the CA in relation to the action to collect taxes and the action to impose penalties, respectively, has not yet operated.
IX) That, having established the above, it is necessary to examine whether or not the violation of art. 973 of the CA (partially transcribed in point VII of this document) has been configured, which has been attributed by the customs with respect to Transportes Bolivia SA
That the Land Transit Request No. 0049 dated 22/3/94 refers to a DYNAPAC brand smooth roller corresponding to PANADI 8429.40.200 whose unit value is US$ 73.500, and to a maintenance trailer with a 2 HP compressor and a 4 HP Villa motor measuring 3,90 mts. x 1,80 x 1,90 mts. corresponding to PANADI 8716.39.900 whose unit value is US$ 11.400 (pages 4/7 of the ant. adm.).
That the accounting expert at pages 319/321 states that "the merchandise in question corresponds to temporary exit permit number 0473 dated July 4, 1991, added to pages 78/88 of Administrative File number 9658332, which is included in the present proceedings" (see, especially, pages 320 back).
However, the verification of temporary exit permit No. 0473 does not reveal any coincidence in either the description of the merchandise or its value.
That, consequently, in accordance with the terms of art. 1155 of the CA, the undersigned requested the accounting expert to make the relevant clarifications.
In response to this request, the accounting expert replied that a new review of the aforementioned documentation shows that the merchandise in question is not included in the same [export of PST 0473 of 4/7/91], and has not been located in the remaining certified documentation either. Consequently, she concludes that it is not feasible to determine, based on the certified documentation, the destination for which the merchandise covered by Land Transit Request No. 0049 dated March 22, 1994 (pages 365/back) was regularized in Buenos Aires.
That, consequently, the regularization of the merchandise covered by Land Transit Request No. 0049 dated 22/3/94 has not been demonstrated (see, especially, pages 29, 31 and 32 of the administrative antecedents).
That Transportes Bolivia SA voluntarily accepted the land transit regime and therefore cannot challenge it later.
That, however, a reasonable doubt weighs on my mind that leads me to revoke the sanction imposed on the aforementioned carrier according to the principle of art. 898 of the CA, given that in the Request for Suspensive Destination 0049/94 it is stated that the country of origin of the goods is Argentina, although their origin is Bolivia.
That, in effect, the Statement of Reasons of the Customs Code explains that the merchandise that does not have free internal circulation is subject to the suspensive destination of import transit, which excludes both merchandise originating in the customs territory and merchandise that, being of foreign origin, was imported for consumption (commonly called national or nationalized merchandise, respectively).
Since I understand that the violation of art. 973 of the CA attributed by the customs that constitutes the factual basis of the tax obligation has not been configured (see art. 638, inc. f) of the CA), it is appropriate to revoke the tax requirement to Transportes Bolivia SA
That I favor that, as soon as the contested resolution is revoked, costs are not imposed on the DGA, due to the difficulties of the issue raised, made clear by the application of the principle of art. 898 of the CA and by virtue of the fact that the appellant voluntarily accepted the regime of the suspensive destination of land transit, without having proven its regularization.
Therefore, I vote for:
1°) To uphold the exception of formal inadmissibility of the appeal raised by the tax representation against Polledo SA With costs.
2°) Reject the exception of formal inadmissibility of the appeal filed by the Treasury with respect to Transportes Bolivia SA. Without costs to the Treasury.
3°) Not to uphold the claim of nullity and prescription raised by Transportes Bolivia SA With costs.
4°) Revoke Ruling No. 014/02 (AD POCI) and charges Nos. 337/02 and 338/02 (pages 21 and 25 of the case), in relation to Transportes Bolivia SA. Without costs to the DGA.
5°) Once the CUIT number of the Accountant Silvia Hilda Reyes and her status with respect to VAT have been proven, the fees requested on page 321 of the file will be regulated.
Dr. Winkler said:
I agree with the preceding vote.
In accordance with the above agreement, it is unanimously RESOLVED:
1°) To uphold the exception of formal inadmissibility of the appeal raised by the tax representation against Polledo SA With costs.
2°) Reject the exception of formal inadmissibility of the appeal filed by the Treasury with respect to Transportes Bolivia SA. Without costs to the Treasury.
3°) Not to uphold the claim of nullity and prescription raised by Transportes Bolivia SA With costs.
4°) Revoke Ruling No. 014/02 (AD POCI) and charges Nos. 337/02 and 338/02 (pages 21 and 25 of the case), in relation to Transportes Bolivia SA. Without costs to the DGA.
5°) Once the CUIT number of the Accountant Silvia Hilda Reyes and her status with respect to VAT have been proven, the fees requested on page 321 of the file will be regulated.
Register, notify, promptly return and archive the administrative records.
The following sign this document: Dr. García Vizcaíno and Dr. Winkler, as the position of Member of the 14th Nomination is vacant. (Conf. art. 1162 of the CA)
