In Buenos Aires, on the 16th day of July 2003, the Judges of Chamber E, Drs. Paula Winkler and Catalina García Vizcaíno, met (Dr. Krause Murguiondo is on leave) to rule in the case entitled: PROVINCIA SEGUROS SA v. DGA s/ appeal file TFN No. 16.931-A;
Dr. Winkler said:
I.- That on pages 20/27 the signature of the epigraph, through its representative, files an appeal against the resolution-judgment No. 318/00, issued in file SA No. 38-99-070 of the La Plata customs, by which taxes are claimed from it in its capacity as guarantor of the tax obligation plus the interest provided for in art. 794 of the CA and the fine jointly with the importer Jorsar SA. It states that the La Plata customs demanded payment of taxes from it without having complied with the prior stage of investigation of the summary to the firm that took out the insurance, as required by the CA. It deems the claim for the fine inadmissible and objects to the prescription of the action provided for in art. 56 of law 24.522. The Court points out that the policy was granted only for customs duties and not for tax duties, and therefore should not be held liable for the additional VAT and income tax included in the settlement of the customs service. The Court reserves the right to appeal the federal case and requests that a judgment be issued reversing the resolution, declaring the bankruptcy action for the payment of customs duties as prescribed and declaring the appellant's lack of liability for infringement with respect to the unlawful act provided for and punished in art. 970 of the CA, with costs.
That on pages 41/47 back ref. the tax representative answers the transfer conferred. After formulating a list of the facts, he states that neither the importer nor the insurer have proven that the temporarily entered merchandise was re-exported, so the infringement is configured. He refers to the nature of the surety bond and points out that the insurer must appear in the bankruptcy of the policyholder in order to safeguard its interests. He adds that in view of the risk of facing an eventual credit, the insurer must verify it in the bankruptcy of the importer. He says that the insurer's default occurs due to the lack of payment on time and that it is ineffective to allege the bankruptcy or insolvency status of the other party obliged to pay. He understands that the insurer must respond to the same extent as the importer, so the VAT and Income Tax advances are required. He requests the rejection of the appeal and the exception, with costs.
II.- Since there is no evidence to produce, at fs. 50 ref. the proceedings are referred to Chamber E, which passes them on to judgment at fs. 51.
III.- That on fs. 2 of SA 33-070/99 there is the file of DIT 1998 033 IT 05 50048-0, documented by the firm JORSAR SA, in respect of which a summary was initiated on fs. 9ref. On fs. 10ref. the importer is notified, and is declared in default (see fs. 56 ant. adm.). On fs. 16 the insurer states that the instruction of the summary to the importer has been overlooked, and the liquidations made are contested. At fs. 56, the firm Jorsar SA is declared in default without being ordered to notify the provision. At fs. 60, Section S, through Note UTV No. 135/2000, reports the reassessed amount of the fine, given that the liquidation of the additional VAT and the advance payment of Profits is not appropriate. At fs. 62/63, opinion No. 436/2000 is issued and at fs. 64/65, the act appealed in this case, which is notified by edict published in the BO on 24.5.01 (see fs. 68).
IV.- That the plaintiff is right in the sense that taxes must be imposed once the infraction issue has been resolved, since I have said that the resolution that falls on the subject matter of summary proceedings is prejudicial to the tax requirement, so that it is only after its issuance that the formulation of the charge is legally appropriate, if the tax requirement obviously arises as a consequence of the imputation of an illicit act or the latter constitutes its taxable event and the same is the subject of summary investigation by customs (see my vote in re Columbia SA de Seguros, case TFN No. 10126-A, judgment of 22.2.01).
That despite the terms in which the appellant filed the brief on pages 16 and back of the administrative antecedents to the effect that what is required with respect to the formulation of the Charge (…) is related (…) to the clarification of the summary and that this stage of mandatory compliance has been overlooked and that if it is not corrected, the nullity of the proceedings will be invoked, it does not arise from the administrative antecedents or from the proceedings before this Court that the nullity of the infraction procedure has been requested.
In this case, the corresponding summary has been instructed (fs. 9ref. ant. adm.) and although on the first occasion the notice to the importer was notified at an erroneous address (see fs. 11/13 ant. adm.), later it was done correctly at the address registered at the customs office, in the terms of art. 1003 of the CA (see fs. 21/26 ant. adm.), so said notification must be considered valid.
The same did not happen with the insurance company, which was not notified of any hearing.
That even though -as I said- the nullity was not requested, it should be remembered that I have ruled that (…) although the customs had to incur in the irregularity of not giving notice to the guarantor of the administrative proceedings so that he could duly exercise his rights, it does not appear logical to grant the nullity that is being requested since the nullity would be declared for the nullity itself, since at the instance of this Jurisdictional Body the plaintiff could see the procedure sanitized (my vote, in: ALBA COMPAÑíA ARGENTINA DE SEGUROS s/rec. of appeal, file TFN No. 7694-A, judgment of 5.11.96).
Given the lack of appearance of the importing firm, despite the effective notification just referred to, it was declared in default on page 56 of the customs proceedings.
As regards the insurer's argument that it should be liable only when the policyholder is found responsible for the infringement, it should be recalled that art. 462 of the CA and, in the same sense, art. 3 of the General Conditions of the Policy (see page 7 of the proceedings), provide that the payment request may be directed against the insurer or the policyholder indistinctly, without any benefit of excussion. Consequently, it is clear that the DGA is not obliged to obtain a negative result in the payment request to the importer and obviously, it should not wait for the end of the contest or bankruptcy to claim from the insurer.
That, does not prevent the enforceability of the customs claim that the beneficiary of said regime has not had the opportunity to prove the fulfillment of its obligation with the addition or offering as documentary evidence of the respective customs documents, since it was declared in default, as appears to arise from the statements of the plaintiff. In effect, the insurer has the right to subrogate itself in the rights of the policyholder, for whose destination it is responsible as guarantor, and to offer and produce all the evidence within its reach, which did not occur in this case.
V.- Consequently, it is appropriate to consider the infringement to be established with respect to the entire merchandise and to address the substance of the matter.
That with respect to the grievance in the sense that the insurer is not liable for the fines, the plaintiff is right. VI.- That with respect to the perceptions for additional VAT and income tax, it should be noted that, according to the ruling of this Court in re: Indupa SAIC, judgment of 17.12.97, said perceptions do not constitute tax advances, the enforceability of which by the collecting entity expires at the moment in which it may require the annual tax for the corresponding fiscal period, except for the initiation of the fiscal execution prior to that moment. (vote of Dr. García Vizcaíno, to which we adhere for our arguments, although referring to other issues, Drs. Krause Murguiondo and the undersigned. See, also, judgment of 30.4.01/13135/16.339 in re Manufactura de Fibras Sintéticas SA, case TFN 4.3.03-A and «La Mercantil Andina SA», file No. XNUMX-A, judgment of XNUMX/XNUMX/XNUMX).
That on the date of configuration of the taxable event -6.8.99 (see DIT file and opinion No. 436/2000)- the General Resolution of the DGI No. 3543/92 (BO 8.7.92) was in force with respect to income tax, which established, in accordance with the provisions of decree 1076/92, a collection regime for income tax to be applied to definitive import operations of goods, enabling registered taxpayers to compute the amount of the collections formalized in the sworn declaration for the respective annual fiscal period.
That the same occurs with respect to the value added tax, since on the date of the aforementioned taxable event, General Resolution DGI No. 3431/91 (Official Gazette 20.11.91/2394/91) was in force, which, supplementing the provisions of Decree No. 3975/95, established a value added tax collection regime, which will become effective at the time of the definitive importation of taxed movable property. According to said regime, the amount of the collections made will have the character of tax paid for the registered responsible parties, corresponding to be computed by them in the sworn declaration of the fiscal period to which the tax credits generated by the definitive importation operations that gave rise to the collection are attributable. Note that Res. 3/3431 indicated in the guarantee form only replaced the rates of sections a) and b) of art. XNUMXrd of RG No. XNUMX and mod.
That being so, in this respect the customs requirement is then in accordance with the law.
That, furthermore, as also stated in the aforementioned judgment by Dr. García Vizcaíno, the taxpayer has the right to make use of the provisions of General Resolutions DGI No. 2542/85 and amendments, that is, to request compensation of the tax balance, under the conditions and in compliance with the requirements set forth therein, or to request a refund of excess payments or income in accordance with General Resolution DGI No. 2224/79 and amendments, also under the conditions and in compliance with the requirements established in said regulatory norm.
VII.- That, for the sake of completeness, it should be noted that the items now challenged by the appellant - additional VAT and income tax - have been included in the guarantee form - VAT Res. 3975/95 and Income Tax Res. 3542/92. Note that the total to be guaranteed indicated in OM-1190 amounts to US$77.733 (see DIT file). Likewise, the policy was issued for a total of US$81.500, that is, for a larger amount, sufficient to cover the total of the indicated items (see documentation in the DIT envelope of the administrative acts and the copy of the policy attached to fs. 7 of the file).
That the aforementioned policy, although issued in US dollars, should in my opinion only be converted into pesos without adding what would result from the CER contemplated in decree 214/02, considering that, since it is a guarantee, and not an obligation to give sums of money, which is what it guarantees, the amount should be limited to what results from the conversion into pesos. The customs requirement, on the other hand, has been in pesos.
That consequently, it must be considered that the insurer's liability amounts to the sum of $81.500, as a maximum, for the capital. And, having been required to pay taxes for the sum of $77.733,02 (conf. art. 2° of the appealed res.), it is appropriate to confirm this customs demand, without prejudice to the interest accrued in accordance with art. 794 of the CA from the ten business days after 15.11.99/16/794, which is the date on which the plaintiff appeared at the customs office (see fs. 8.10.99 and vta. ant. adm.). This is so because, in this case, there was no notification to the insurance company of the tax liquidation in the terms of art. 10 of the CA, since it had not been given notice of the summary. Note that the order dated XNUMX only refers to the importing firm and, therefore, was only notified to it (see fs. XNUMX ref. ant. adm.).
VIII.- It is also not conclusively proven that the date of the preventive bankruptcy of the taker is 2.11.98, as the plaintiff claims. Note that the original of fs. 16 of the proceedings is not included in the administrative acts, nor has said date been reported by the trustee or the bankruptcy judge, nor taken into account in any customs report. Consequently, it is not appropriate to rule on the alleged prescription made by the appellant in its initial writing.
That, without prejudice to this, and in addition, it should be noted that I have ruled that the effects of the approved agreement apply even to creditors who have not presented themselves to verify their credits, if once presented they were declared admissible. To this effect, the aforementioned incident contemplates establishing that it must be deducted while the bankruptcy is being processed or, once it is concluded by the corresponding individual action, within two (2) years of the presentation in bankruptcy (the emphasis belongs to me)
As I also held in re Sociedad Anónima IGRA, file TFN No. 17075-A, judgment of 10.12.02, if the tax credit only becomes enforceable after the verification process, it does not seem logical or reasonable in my opinion to apply the abbreviated prescription regime of two years contemplated by the aforementioned art. 56 of the Bankruptcy Law, not only because the purpose of that law prevents it but also because the prescription regime established by the CA is in force above that law.
That, on the other hand, in my opinion the doctrine of Zanella San Luis SAIC, judgment of the Appellate Court, Chamber I, dated 7.12.99, does not apply, insofar as in that case the appellant had opposed as a new fact the final judgment that had resolved to reject the Treasury's claim to verify its credit by applying the aforementioned art. 56 of the LQ. In this case, the DGA, in its response, does not admit having appeared in the bankruptcy, limiting itself to arguing about the inapplicability of the Bankruptcy Law to the case under examination, and no action in that sense arises from the administrative records that run separately.
That tax obligations have their own statute of limitations under Law 11.683, which is a federal law, and the 5-year statute of limitations in favor of the Treasury for the collection of its credits is a public order provision that also responds to the different nature of the debt compared to the debts of the bankrupt that are regulated by private law. Law 24.522 itself grants the capital for taxes the character of a credit with general privilege, with effects on its rights to collection in the amount of the net product of the assets after the credits with special privilege on the things, the costs of conservation and justice and the salaries, wages and remunerations have been collected (Limitations and defenses outside the tax procedure. The prescription of tax obligations in preventive bankruptcy, by Susana Camila Navarrine, PET, dated 26.6.00/1/XNUMX, pages XNUMX and ff.)
Furthermore, although Article 32 of the aforementioned law imposes the obligation to verify the credits, it does so with reference to all creditors by cause or title prior to the filing and their guarantors and although such request for verification has the effect of interrupting the prescription and preventing the expiry of the right (Article 33), in the particular case under examination the credit, although it arose on the date of the presumed commission of the infringement charged, with a date prior to the filing of the bankruptcy, could not be considered as having arisen until the issuance of the resolution that put an end to the proceedings for the infringements initiated, so that in my opinion, said rule of Private Law cannot be applied to it.
IX.- That by virtue of the foregoing, I vote for: 1.- To modify resolution No. 318/00, revoking the sentence imposed on the insurance company under the terms of art. 970 of the CA in art. 1º and confirming the tax requirement contained in art. 2º, clarifying that interest must accrue from ten business days after 15.11.99/2/3; 1.- Costs according to the due dates; 22.610.- Within the fifth day, the plaintiff shall pay XNUMX% of the amount confirmed by taxes as a performance fee -law XNUMX and amendments- under penalty of being issued a debt note by the General Secretariat of Customs Affairs. I SO VOTE.
Dr. Catalina García Vizcaíno said:
I) That the facts have been recounted in points I to III of Dr. Winkler's vote.
II) That the claim made by the plaintiff that the intervening customs office had not complied with the prior legal issue, which constitutes a legal obligation under its responsibility, consisting of instructing the contentious summary for the alleged customs infringement committed by the importer-policyholder (…), cannot prosper, since before demanding payment of customs duties, it must be verified whether the merchandise was nationalized or re-exported in its entirety, or, failing that, whether the infringement provided for and punished in art. 970 of the CA was configured… (page 21 of the proceedings).
That, in effect, the La Plata Customs Office, by Regs. No. 597/99, considered that the deadline granted for the re-exportation of the merchandise imported by the aforementioned DIT had expired, and there was no evidence in this Department of its compliance, for which reason a complaint was filed for the infraction provided for and penalized by art. 970 of the CA, at the same time that the tax liquidation was carried out for the taxes on the importation for consumption derived from the aforementioned non-compliance (page 5 of the administrative ant.).
That, therefore, the instruction of the summary was ordered on 8/10/99 (pages 9 of the previous administrative documents) and the importer was notified (see pages 25/26 of the previous administrative documents and the declaration of default on pages 56 of the previous administrative documents) and the appellant (see presentation on pages 16/return of the previous administrative documents).
It should be noted that, in accordance with art. 1103 of the CA, the hearing that is carried out in the customs procedure for infractions has the effects of the notification of the tax liquidation of art. 1094 inc. d) of the CA, with the implications of the accrual of interest of arts. 786 and 794 of the CA.
III) That at present, interest accrues with respect to the plaintiff from the expiration of the 10-day period counted from 15/11/99 when the plaintiff appeared in the infraction procedure (see pages 16/vta. of the adm. ant.), which implied its notification in accordance with art. 1013, paragraph b) of the CA, independently of the suspension of interest with respect to the importer, since the latter was in bankruptcy as of 21/9/01 (see pages 71/72 of the adm. ant.).
That by virtue of the autonomy of tax law, the Civil Code is not necessarily applicable in a supplementary manner with regard to the guarantee provided in accordance with the regime of the Customs Code, in accordance with the specific regulations contained therein, e.g. in its arts. 786 and 794.
Thus, the Supreme Court of Justice of the Nation held that the supplementary nature of the Civil Code does not apply when the literal meaning of the tax regulations excludes civil principles or these are not adequate to elucidate tax problems (doctrine of Fallos, 249:256) (Tacconi y Cía. SA, of 3/8/89; Fallos, 312:1241).
That, therefore, the application of the Civil Code in this matter is exceptional, so that e.g., the accrual of interest with respect to the insurer differs from that with respect to the insured (see arts. 786 and 794 of the CA), the interest rates provided for in art. 791 of the CA are also different from those applied in the civil sphere, there are concepts by which the importer is obliged (additional rights) without obligation on the part of the insurer, etc.
That if the Civil Code were applied, the insurer would be liable with the same scope as the insured, so that it would not owe interest from the opening of the preventive contest, since it would not be owed by the insured from that moment on.
That, however, in view of the autonomy of tax law, it is not appropriate to apply the Civil Code in this case, but rather the provisions of arts. 786 and 794 of the CA. Therefore, the importer's bankruptcy has no impact on the co-actor insurer.
That art. 19 of law 24.522 provides that: The filing of the bankruptcy produces the suspension of the interest accrued by all credits from a cause or title prior to it, which are not guaranteed by a pledge or mortgage. The interest on the credits thus guaranteed, subsequent to the filing, can only be claimed on the amounts from the assets affected by the mortgage or the pledge….
That, however, the opening of a contest and even the bankruptcy of the importer is not an obstacle to the calculation of the interest with respect to the insurer, given that I have repeatedly maintained that the interest that can be computed for the latter is that due for its own delay, and not for that of its insured (conf. arts. 786 and 794 of the CA), this obligation being of public law (tax law), and not of private law.
That, in effect, the undersigned has said, among others, in La Meridional Cía. de Seguros SA dated 23/5/97, Banco Sudameris dated 31/8/99, that although the plaintiff is jointly liable for the obligations of the guaranteed party, in this regard the provisions of art. 786 of the CA, stating that 'once the taxes have been settled, the customs service must notify such settlement to the debtor, guarantor or person responsible for the tax obligation', and after the 10-day period from this notification has expired, the respective interest and update shall accrue (conf. arts. 794 and 799 of the CA) (in the same sense, the votes of the undersigned in: Aseguradora de Cauciones SA de Seguros, dated 7/4/97; Siglo XXI, dated 17/11/98; Aseguradora de Créditos y Garantías SA, dated 29/4/99) are worth mentioning.
That, consistent with this position, I have expressed, among others, in Alba Cía de Seguros dated 5/11/96, Banco Sudameris dated 31/8/99, that art. 129 of law 24.522 stipulates that the declaration of bankruptcy suspends the course of interest of all kinds (in a manner analogous to the filing for bankruptcy, according to art. 19 of law 24.522), with certain exceptions, but with respect to the bankrupt (or insolvent), this rule not being applicable in relation to the one who has the character of insurer - in the sub-lite, the guarantee was given in the terms of art. 453 inc. c) of the CA-, since the guarantor is responsible for its own delay, made evident by the lack of payment within the term of the notice issued in its respect.
Furthermore, it should be noted that compensatory interest constitutes accessory obligations whose budget is not the fact that generates the tax obligation, but the delay (conf. Jarach, Dino. Public Finance and Tax Law, pp. 371/72. Cangallo. Buenos Aires. 1989).
That, therefore, the co-actor insurer has defaulted, regardless of the bankruptcy situation of the importer and, therefore, the accrual of interest under art. 794 of the CA is not suspended.
IV) That the claim of prescription made by the appellant cannot prosper, given the preventive bankruptcy of its insured that arises from pages 71/72 of the previous administrative proceedings.
That the National Chamber of Appeals in Federal Administrative Litigation, Room 1, in Zanella San Luis SAI.C., dated 7/12/1999, by majority, declared that the abbreviated 2-year statute of limitations for preventive bankruptcy (art. 56 of law 24.522) is appropriate as a limit for the late verification of tax obligations in bankruptcy, as opposed to the 5-year regime of law 11.683; in addition, it admitted the effects of res judicata of the judgment issued by the Commercial Court in the plaintiff's preventive bankruptcy in that case (judgment commented by Susana Camila Navarrine in The statute of limitations on tax obligations in preventive bankruptcy; PET, 26/6/2000, p. 1;).
I do not share the majority opinion of the judgment and agree with the opinion upheld by Navarrine, given that in that case, although the debt determined belonged to the pre-bankruptcy period, it had been appealed before the Tax Court, and therefore, by virtue of the suspensive effect of the appeal, the credit was subsequent to the filing of the bankruptcy. Therefore, in such cases, I consider that the limitation period of Law 11.683 prevails over that of art. 56 of Law 24.522.
That the Supreme Court has understood that the bankruptcy law must be understood with the scope of preventing the execution processes from being carried out outside of the bankruptcy, but not that of prohibiting the competent body from determining tax obligations prior to the date of initiation of the latter or the pecuniary sanctions that are linked to them (Gregorio C. Cosimatti, dated 9/4/1987 -Fallos, 310-785-, cited by the dissent of Dr. Bernardo Licht in the judgment issued in Zanella San Luis S.AI.C., dated 7/12/1999).
It should be recalled that with respect to the proceedings initiated by the bankruptcy trustee, who filed an appeal before the National Tax Court against the DGI's ex officio determination of the bankrupt's VAT debt, the Supreme Court declared that the bankruptcy court is incompetent to hear them, since Law 11.683 (at that time, amended in 1978 and amended) has specifically provided for a procedure and a decision-making body (…) and the possibility of appealing to courts of the national judiciary (…). The High Court emphasized that such proceedings did not imply the filing of any action against the bankrupt or the bankruptcy, nor that enforcement had been promoted on the basis of the claimed tax credit (Hilandería Luján SA, dated 30/9/1986; Fallos, 308-1856).
That in Casa Marroquín SRL s/concurso preventive, dated 31/3/1987, the Supreme Court added that attributing to the bankruptcy jurisdiction powers to review the intrinsic validity of the title invoked by the treasury in support of its credit (the tax determination having become final due to lack of resources) meant unjustifiably disregarding the specific procedural regulation of the aforementioned law 11.683 (DF, t. XLIII, p. 190).
That, for the reasons stated above, I agree that the claim of prescription raised by the plaintiff be rejected, without costs, given that the Treasury did not observe anything specifically regarding that claim.
V) In all other respects I agree with the vote of the previous speaker.
That's how I vote.-
Pursuant to the foregoing vote, IT IS RESOLVED:
1.- Reject the claim of prescription raised by the plaintiff, without costs.
2.- Modify resolution No. 318/00, revoking the sentence imposed on the insurance company under the terms of art. 970 of the CA in art. 1º and confirming the tax requirement contained in art. 2º, clarifying that the interest must accrue from ten business days after 15.11.99/XNUMX/XNUMX.
3.- Costs according to the due dates.
4.- Within the fifth day, the plaintiff shall pay 1% of the amount confirmed by taxes as an action fee - Law 22.610 and amendments - under penalty of being issued a debt note by the General Secretariat of Customs Affairs.
Register, notify, promptly return and archive the administrative records.
This document is signed by Dr. Winkler and Dr. García Vizcaíno as Dr. Krause Murguiondo is on leave (art. 1162 of the CA).
