The draft law on the General Budget of the National Administration for the Fiscal Year 2022, which was presented by the National Government on September 15, 2021, includes modifications to the Customs Code that greatly affect the updating of penalties such as dollarization, subjecting them to the exchange rate of the day prior to their actual payment.
Updates
The penalties for negligent smuggling established by articles 868 and 869 of the Customs Code, currently graduated between $5.000 and $50.000, they would pass between $50.000 to $500.000. (1)
Dollarizations
Penalties for the crime of smuggling
Article 880, which sets values for merchandise that cannot be seized and which is currently set at: a) FIVE HUNDRED PESOS ($500) for each box or package; b) FIVE HUNDRED PESOS ($500) per ton or fraction of a ton, when it is bulk merchandise; c) FIVE THOUSAND PESOS ($5000) for each twenty (20) foot container and TEN THOUSAND PESOS ($10.000) for each forty (40) foot container, without prejudice to the application of subsection a) or subsection b), as the case may be, with respect to the merchandise contained therein; would be converted to the following dollarized amounts, namely:
- ONE HUNDRED UNITED STATES DOLLARS (USD 100) for each box or package;
- ONE HUNDRED UNITED STATES DOLLARS (USD 100) per ton or fraction of a ton, when dealing with bulk merchandise;
- FIVE HUNDRED UNITED STATES DOLLARS (USD 500)) for each TWENTY (20) foot container and ONE THOUSAND UNITED STATES DOLLARS (USD 1000) for each container of FORTY (40) feet, without prejudice to the application of section a) or section b), as the case may be, with respect to the merchandise contained therein (2).
It also modifies article 884 of the Customs Code, adding to the current one, that “In cases where the aforementioned values are expressed in foreign currency, the fine will be determined in US dollars. For the conversion into pesos, the exchange rate for the currency that the Banco de la Nación Argentina reports at the close of its operations, corresponding to the business day prior to the date of its actual payment, will be used.”(3).
Penalties for violations
Article 920 of the Customs Code is hereby replaced, which currently determines that when it is not possible to seize the merchandise that is the object of the infringement and its value cannot be determined by other means, it shall be considered to have the following values: a) FIVE HUNDRED PESOS ($500) for each box or package; b) FIVE HUNDRED PESOS ($500) per ton or fraction of a ton, when it is a matter of bulk merchandise; c) FIVE THOUSAND PESOS ($5.000) for each TWENTY (20) foot container and TEN THOUSAND PESOS ($10.000) for each FORTY (40) foot container, without prejudice to the application of subsection a) or subsection b), as the case may be, with respect to the merchandise contained therein. Modified by the following:
- ONE HUNDRED UNITED STATES DOLLARS (USD 100) for each box or package;
- ONE HUNDRED UNITED STATES DOLLARS (USD 100)) per ton or fraction of a ton, when dealing with bulk merchandise;
- FIVE HUNDRED UNITED STATES DOLLARS (USD 500) for each TWENTY (20) foot container and ONE THOUSAND UNITED STATES DOLLARS (USD 1000) For each container of FORTY (40) feet, without prejudice to the application of section a) or section b), as the case may be, with respect to the merchandise contained therein”(4).
In this line of dollarization of penalties, article 926 of the Customs Code is modified, establishing: “The fine will be set based on the values (tax loss, market value, customs value or taxable value, as appropriate) or the amounts in effect on the date of the infraction or, if it cannot be specified, on the date of its verification. In cases where the aforementioned values are expressed in foreign currency, the fine will be set in US dollars. For conversion into pesos, the exchange rate for the currency will be used, as reported by the Banco de la Nación Argentina at the close of its operations, corresponding to the business day prior to the date of its actual payment.”(5). Remembering that fines are currently set in pesos and are settled in national currency.
Inaccurate statement
Article 955 of the Customs Code is replaced, providing: “For the purposes of the provisions of article 954, in the case of missing merchandise, when it cannot be determined whether the difference produced or could have produced any of the consequences provided for in any of the sections a), b) and c) of the aforementioned article, a fine of ONE HUNDRED UNITED STATES DOLLARS (USD 100) per missing package or, if it is bulk merchandise, per missing ton or fraction thereof."(6). Currently, the amount is $500 per missing package or, if the merchandise is in bulk, per missing ton or fraction thereof.
Unjustified possession of merchandise of foreign origin for commercial or industrial purposes
Article 992 is amended as follows: “Any violation of the regulatory norms of the regime referred to in this Chapter, provided that it does not constitute a more severely punished act, will be sanctioned with a fine of TEN THOUSAND PESOS ($10.000) to ONE HUNDRED THOUSAND PESOS ($100.000)”(7). Currently the fine amount is $500 to $10.000.
Other transgressions
Article 994 of the Customs Code is replaced by the following: “Without prejudice to the application of any disciplinary measures that may be appropriate, the person will be sanctioned with a fine of TEN THOUSAND PESOS ($10.000) to ONE HUNDRED THOUSAND PESOS ($100.000)) Anyone who: a) Provides inaccurate or false reports to the customs service, b) Refuses to provide reports or documents required by the customs service, c) Prevents or hinders the action of the customs service"(8). Currently, the fine values are $500 to $10.000.
For its part, Article 995 of the Customs Code would be amended by: "Anyone who violates the duties imposed in this Code or in the regulations issued as a result thereof, will be sanctioned with a fine of TWENTY THOUSAND PESOS ($20.000) to TWO HUNDRED THOUSAND PESOS ($200.000) When the fact does not have a specific sanction provided for in this Code and produces or could have produced a fiscal loss or affects or could have affected customs control"(9). Currently the fine is set at $1.000 to $10.000.
In this way, the project aims at the dollarization of penalties, both in criminal matters and customs violations. Redirecting the taxable moment to set the exchange rate for the purposes of its effective payment, to the day before its fulfillment and not the date of the irregular taxable event and/or its verification in the terms established by the Customs Code in its articles 638 and 727.
Comment
Without prejudice to the issues that may support the need for an opportunity to update the sentences, the change from pesos (national currency) to US dollars in several of them, fixing the exchange rate on the date of the day prior to its effective payment, exposes a clear coercion to the due exercise of defense, since it is an illegitimate sentence. Remembering that the sentence can only be legitimized if its execution is compatible with a State of law.
It is not overlooked that the permanent fluctuation of the exchange rate, which the Argentine Republic has always regrettably conceived, is a tragedy that does not reside in the responsibility of the citizen, on the contrary it is due to the decline of our own currency, which results from the effect of the continuous failures in the proper administration of the State itself. The loss of value of our currency cannot weigh on society as a whole.
Although the Supreme Court of Justice of the Nation has ruled on this scheme for the application of customs duties, both in the Editorial Perfil case (12.08.2008/23.08.2011/XNUMX) and in Volkswagen Argentina SA (XNUMX/XNUMX/XNUMX), we certainly do not agree that there is a variation in the exchange rate with respect to the taxable moment, both in the regular taxable events, As in irregular taxable eventsThis undermines the predictability that must prevail in foreign trade and which the World Trade Organization so advocates.
Adding this updating system on a fluctuating exchange rate variation scheme to fines not only violates Law 25.561, but also externalizes an indeterminate sanction, given the reality of the time periods that administrative and judicial processes take in search of due justice, generating uncertainty about the reality of the penalty to be applied, which must be specified in advance of the fact and not converge towards another time that will depend on a final sentence to be issued, who knows when. Consequently, an infraction is being charged with an unknown penalty, with the severity that the greater the exercise of defense, the greater the penalty applied.
If we start from any infringement, whether due to a tariff and/or value discrepancy and/or alleged expiration of a suspensive operation, the importer or exporter who intends to exercise his guarantee of defense within the procedures regulated for such effect, will be limited in his decision-making to venture into the search for objective material truth in the face of the concrete ignorance of the penalty. This before a procedural channel that will lead to an escalation of years with the development of an exchange rate that the State does not seem to do anything to stop its flow to the top.
It should be remembered that the penalty has a purpose that is not revenue-generating, much less confiscatory. rationality It is its main axis and this must be in line with the proportionality of the reprehensible conduct. Allowing a penalty to be imposed over time would be the same as promoting an initial penalty, but modifying it at the request of the sentencing. This would violate the most basic precepts of the penal system, affecting the guarantee of the most lenient penal law, the insecurity in the penal process and the arbitrariness of a treatment focused on the fact that, as a subject defends himself, a greater penalty will be imposed, ignoring it. Obviously, the principle of legality is violated, which is one of the limits to the punitive power of the State, “nulla poena, nullum crime sine praevia lege poemi”, There is no punishment, there is no crime, without a prior criminal law. Conforming the principle that there is no possibility of punishment without a law prior to the fact, not even if the conduct is foreseen as an infraction and/or crime, but rather the law determines the punishment in a manner precise and concrete, without the possibility of modifying the sanction over time. Which would be the same as applying different penalties to conduct prior to the time when a regulation was in force.
Specifically, the penalty in order to fit within the principle of legality must conceive four budgets to be admitted as valid the norm that imposes it, be prior, written, formal and strictThis means that the law must be prior to the alleged act, prohibiting its retroactivity; expressly contemplated, not being able to be applied by analogy; sanctioned by the legislative power and must be clear and precise, prohibiting indeterminacy. This last concept, if present, must always be in favor of the accused.
It is clear that the project presented, if it succeeds, violates the constitutional principles that govern criminal matters and endangers the right of defense of citizens. It cannot be considered acceptable as it intimidates the right of defense in the face of an accusation that does not require punishment and that increases the punishment under the rule of greater defense, greater punishment, curtailing a constitutional guarantee that cannot be limited in any way.
Rather than seeking to update the currency through support in a currency foreign to the republic, the State should stop the decline of the national currency, so that in situations such as this one they do not try to impose imprecise punishment, even beyond the guarantees of citizens, through a variation of the constant sanction, muzzling the elementary principles of the due right of defense.
Guillermo Felipe Coronel is a member of the Customs Law and International Trade Institute of the Argentine Association of Constitutional Justice
(1) Article 62 of the bill amending article 868; (1) Article 63 of the bill amending article 869; (2) Article 64 of the bill amending article 880; (3) Article 65 of the bill amending article 884; (4) Article 66 of the bill amending article 920; (5) Article 67 of the bill amending article 926; (6) Article 68 of the bill amending article 955; (7) Article 69 of the bill amending article 992; (8) Article 70 of the bill amending article 994; (9) Article 71 of the bill amending article 995.
The author is a lawyer and member of the Institute of Customs Law and International Trade of the Argentine Association of Constitutional Justice.
