In Buenos Aires, on the 27th day of March 2002, the members of Chamber "E", Drs. Gustavo A. Krause Murguiondo, Catalina García Vizcaíno and D. Paula Winkler, met, with the first-named Member presiding, in order to render judgment in the case entitled: "Ramos, Julio A. vs. Directorate General of Customs s/appeal, file No. 13.112-A", and its accumulated case Pollero Olivera, Fernando Expte. No. 13.128-A, vs. Directorate General of Customs s/appeal.
EDr. Krause Murguiondo said:
I.- That at fs. 17/20 Julio A. is introduced. Ramos and files an appeal against the PLA resolution No. 3025/99 issued by the Customs Legal Procedures Department, issued in case No. 602.978/94, by which he is sentenced to pay a fine and taxes. Expresses that by resolutions issued by the Jdo. in Economic Criminal Law No. 5, Sec. 10, in the case of Fiscal Caballero s/ complaint, dated 22-12-93 and 22-8-94, dismissals were issued in that case, but testimonies were sent to the General Directorate of Customs for alleged violation of art. 965 of the Code ad. This gave rise to the conviction appealed in this case at the customs office for violation of art. 982 of the Code ad. That in said decision Julio A. is charged. Ramos and Silvana R. Suarez being holders of the vehicle BMW 320 i model 1988 CD 1619, introduced by Mr. Arie Kalyach with the benefit of diplomatic immunity. That Mr. Arie Kalyach granted irrevocable power of attorney in relation to the aforementioned vehicle on 6-2-1989 in favor of Silvana R. Suarez, Julio A. Ramos and Julián De Diego in relation to the aforementioned vehicle. That for that reason and repairs made by Mr. Ramos to the vehicle, Customs considers Mr. Ramos incurred in violation of art. 982 of the Code ad. The fine is one and a half times the value of the vehicle. It states that the date of commission of the alleged infringement being February 6, 1989, when the power in question was extended, the same would be prescribed in accordance with the terms of art. 934 and 935 of the Cod. ad. He considers the application of art. 63 of the Code Penalty in which, for continuous crimes, the limitation period begins to run from the date on which their commission ceased. It considers that the infringement is consummated at the moment in which the purchaser uses the goods for a commercial or industrial purpose or takes possession of the vehicle, thus interpreting the CSN precedent in the Cupeiro case (Rulings 306:298), and stating that at the date of opening of the summary on 13-11-1995, the infringement in question had expired. He maintains that the violation of art. 982 of the Code ad. It was not committed because according to decree 315/89, art. 14 allows the sale of the corresponding vehicle by paying the relevant taxes. He states that the vehicle was purchased in 1988 and the purchase option was established in 1989, the year in which the Diplomat ceased his duties, and due to this transfer the car, which had 36.000 kilometers, could be sold. He considers that the value attributed to the BMW 320 i, model 88 by Customs is exaggerated and makes comparisons with that of a Mercedes Benz 300 E, model 1990, for which he made voluntary payment in accordance with the terms of arts. 930 and 932 of the Cod. ad. He requests that, due to the lack of previous infringement records and the good faith demonstrated when registering the vehicle in 1990. He believes that the tariff applied by Customs of one and a half times the value of the vehicle lacks sufficient basis. Provide proof. Reserve the federal case. He requests that the appealed resolution be revoked.
II.- That on pages 32/33 the public prosecutor's office answers the appeal filed by Mr. Ramos. It makes a general negative statement regarding the plaintiff's statements that it does not expressly acknowledge. It states that the infringement was configured, mentioning the power granted in favor of the plaintiff, the acts of repairing the car, which would imply the possession of the vehicle until 1990. It describes the figure of art. 982. It offers evidence. It requests that the customs ruling be confirmed. With costs.
III.- That on pages 56/63 Mr. Fernando Polledo Olivera appears and files an appeal against PLA Resolution No. 3025/99, issued in file No. 602978/94, by which he is sentenced, jointly and severally with Mr. Abdu Osmar Abubakar, to pay a fine of $29.288 for the infraction provided for in art. 982 of the Administrative Code. He indicates that Mr. Abdu Osmar Abubakar, Counselor at the Nigerian Embassy, entered the vehicle Mercedes Benz 205059 TE 90, license plate CD 300, through file No. 24/1522. He indicates that since his name appears on the yellow card carried in the Ceremonial Directorate, which would indicate an authorization to drive, he is linked to the reported criminal case. However, he was finally acquitted of the criminal case. He adds that he is currently charged with the commission of the infraction provided for in article 982 of the Customs Code. That in view of the information on that card, Customs understands that the possession of the vehicle for two days that he carried out was not as precarious as he claims, and considers the infraction to have been established. He indicates that he made some arrangements to acquire the vehicle in question subject to the Nigerian official finishing his work in Argentina, which lasted no more than three days and consisted of the usual contacts in these cases, the test of the vehicle that was lent to him by the Counselor himself for one day, and the request to his secretary for certain personal data. He observes, however, that the operation was not carried out. He adds that the placement of his name as authorized to drive should have been carried out by the efforts of the diplomat interested in selling the vehicle, and it is obvious that since it was carried out before the Directorate of Ceremonial, it was not carried out due to his personal intervention, adding that he was unaware of such circumstance. He maintains that he cannot be charged with attempted infringement, since, in the case of customs infringements, such a possibility is not admitted. He adds that he did not acquire ownership, possession, or tenancy of the property. He states that his situation is comparable to that of certain holders who, on the occasion of certain services (such as mechanics, car washes, garages, etc.), temporarily and precariously hold the property, but recognizing the ownership and possession of the property in a third party. He adds that in the present case it cannot be said that the foreign diplomat has relinquished the use and enjoyment of the property, since the fact that the vehicle was left to him as evidence for one day did not imply that purpose. He maintains that the vehicle was never driven by him and that the transfer could not be carried out because the condition that the legal regime authorized it and that the papers were up to date was not met. He offers evidence. He presents the federal case. He requests that the appealed resolution be reversed. With costs.
IV.- That on pages 70/71 the fiscal representation answers the appeal of Mr. Polledo Olivera. It formulates a general negative response regarding the claims of the plaintiff that it does not expressly recognize. It refers to the background of the case. It analyzes the arguments of the defense of the plaintiff, which it considers not credible. It offers evidence. It requests that the customs decision be confirmed.
V.- That at fs. 74 the appeal of Mr. Polledo Olivera is opened for evidence. At fs. 86 cases 13128-A and 13112-A are accumulated. At fs. 90 the appeal of Mr. Ramos is opened for evidence. At fs. 104/105 there is a witness statement. At fs. 109 there is a report from the Ceremonial Directorate of the Ministry of Foreign Affairs where it is reported that the same authorizes and authorized the driving of vehicles entered with a franchise, according to the procedures carried out by the diplomatic representations before it. At fs. 120 the evidentiary period closes. At fs.121 the files are placed for argument. At fs.128 it is stated that the parties did not argue. At fs.129 the files are passed to sentence.
VI.- That from the records of administrative file No. 602978/94, it arises:
a) On pages 2, file EAAA-1994-572917 is attached. On pages 4 of the latter, a copy of the card or card of persons authorized to drive from the National Directorate of Ceremonials for Mr. Abubakar's Mercedes Benz 300 is attached, showing the name of Mr. Polledo Olivera and his identity card and driver's registration details. In the report on pages 7/8 of 22-4-1991, from the National Director of Ceremonials, it is stated that, on the aforementioned yellow card, the name of Mr. Polledo Olivera had been added later, adulterating it. It is alleged that information was received that the vehicle was being driven by Mr. Polledo Olivera.
b) That at fs. 47/48 The informative statement (art. 236, 2nd part of the Criminal Code of Mr. Polledo Olivera in the case before the Economic Criminal Court) is contained in the document, where he states in summary that in December 1990 he met Mr. Abdu Usnan Abubakar by chance at the Libertador and Salguero service station and expressed his interest in the Mercedes Benz 300 car, provided that he could test it and that the papers were in order. He was struck by the fact that the vehicle was a 1991 model, despite being in December 1990. That on the occasion of that conversation, Mr. Abubakar then took the car to the Bank located at Esmeralda 130 for said test purposes. He left it for two days. That for that reason the declarant called Mr. Abubakar to express his interest in buying the car, and Mr. Abubakar answered that unfortunately he could not sell it since he was confirmed in the position or that he could not afford it. transferred, adding other explanations that he did not understand. That is why he immediately returned the car to the same. He adds that during the days that he had it, it was parked in the garage of his home at 2524 Guido Street.
c) That on page 49 there is a copy of the statement made before the intervening Court by Alicia Noemí Galvez, employee of Mr. Polledo Olivera, who relates how - by telephone - she was asked for Mr. Polledo Olivera's personal data by the Nigerian Embassy.
(d) That on page 4 of file 602978/94 the opening of the summary is ordered on 13/11/95. On pages 8/9 of this file the National Directorate of Ceremonial reports that the First Secretary of the Embassy of Israel, Mr. Arie Kalyach, began his duties on 21-8-85 and ceased on 24-1-1990. As for the Secretary of the Embassy of Nigeria, Mr. Abduvaman Abudakar, he began his duties on 25-10-88 and ceased on 17-2-92. This note also reports the situation of the vehicles corresponding to the aforementioned diplomats involved in the case.
e) On pages 16, the date of commission or verification of the violations is reported and a request is made to determine the value of the vehicles. On pages 17 and 19, values and taxes are reported. Taxes are then settled, as is relevant here, on pages 24, 26, 28, 29, and 32.
At pages 33/34 the summary is reviewed. At pages 49/55 Mr. Polledo Olivera responds to the review granted. At pages 72/73 Silvana Rosa Suarez and Julio Alfredo Ramos respond to the review. At pages 74/84 Mr. Julio Alfredo Ramos responds to the review by formulating his defense. At pages 83 Mr. Ramos states that the BMW 320 i was a car that, if it had been imported new, would have been worth US$ 34.000 for the new model. He alleges that the BMW purchased was used and had 36000 kilometers.
At pages 110 and 112, new tax settlements are made. At pages 113, a new rectifying hearing is held on the previous one. At pages 118/121, notifications are made by edicts indicating the amounts of fines and taxes.
(f) At pages 139/140, the opening of the preliminary investigation is ordered. At pages 172/174, there is a copy of the statement by Mr. Daniel Antonio Carbone, who acknowledges having introduced Mr. Julio Ramos to the Israeli diplomat named Kalij who had a car to sell. That although he observed the condition of the BMW, he did not intervene in the transaction in any capacity. At pages 177, there is a new presentation by Julio Ramos with considerations on the value of the BMW. At pages 181, there is the vehicle registration file for the vehicle with license plate 1584082, which has no relation to this appeal. At pages 188/106, there are new elements contributed by Mr. Ramos in relation to the valuation of the BMW.
g) On page 251 there is the record of the property registration of the vehicle C. 1462852 corresponding to the BMW automobile introduced by the Israeli diplomat Arie Kalyach. It appears from its last page that it was nationalized on January 25, 1990. Likewise, from the form 08 of acquisition of the same by Mrs. Silvana Rosa Suarez de Ramos dated 8-2-1990 it appears that 82.000.000.- australes were paid for it.
h) At pages 253/254, Polledo Olivera alleges that the court has filed a complaint. At pages 272, the applicable taxes are reported. At pages 273, it is reported that the defendants have no criminal record. At pages 275/289, resolution No. 3025/99 is issued, which is being appealed in this case.
VII.- That by added string there is the judicial office file EAAA 1994-574341, where there are pieces of the file that was processed in Economic Criminal Matters in the case of Fiscal Ricardo Juan Caballero s/ complaint s/ smuggling, from which arise:
a) On pages 7 of the same there is the authorization for the delivery to the plaza of the BMW automobile, belonging to Mr. Arie Kalyach, dated June 29, 1988. On pages 19/20 there is a record of the search at the address located at 1984 Merlo Street in Castelar, Province of Buenos Aires. Among other things, two invoices from the company Mecánica Milanese and an estimate in the name of Editorial Amfin SA for a BMW 320 i vehicle with license plate CD 1619, a laminated card with the legend Prensa de Ambito Financiero, etc. were seized.
b) On page 28 there is the statement before the Court (copy) of Sergio Hector Milanese. He admits having made a repair to the BMW vehicle on the date of the seized invoice on behalf of a Mr. Daniel or Jorge Carbone. That Mr. Carbone entrusted him, after the repair, with delivering the car to Mr. Julio Ramos and that it belonged to Mrs. Julio Ramos. He adds that he finally left the car at Carbone's agency because he could not deliver it to Ramos.
(c) That on pages 42/43 there is the statement of Silvana Rosa Suarez (copy) before the Court where, in what is of interest here, she declared: that she met Mr. Arie Kalyach in March 1989 and that they got into the BMW car owned by him because they were interested in buying it. That she did not know later how the commercial negotiations continued in this regard. She clarifies that Mr. Carbone was present at the aforementioned time. That the purchase could not be made at that time apparently because the aforementioned diplomat had not been transferred from the country as was thought, and that her husband only gave her said car in February 1990.
(d) That on pages 45/48 there is a copy of Julio Ramos' statement in court. In relation to the BMW car, model 1988, he states that it was bought from a member of the Israeli diplomatic representation in Argentina... named Arie Kalyach in mid-1989. That on that occasion they took the car for a few rides with the diplomat and gave him a deposit for it. But the diplomat was not transferred from the country in three more months as was thought, but another three or four months passed, so the deal was closed in February 1990. That while the car was stationary, and while it was deposited, he had some services done and tried to change the suspension which was very hard. That regarding the invoices from Mecánica Milanese and Jorge and Daniel Carbone SA from December 1989, he recognized them in the name of Amfin SA.
(e) That on pages 73/79 there is a copy of the resolution dated August 22, 1994 of Judge Jorge A. Brugo dismissing the case regarding the crime of smuggling. Regarding the BMW 320 i automobile, purchased from Mr. Arie Kalyach, the judge, after referring to the circumstances of the case, especially the power of attorney dated February 6, 2 in favor of Mrs. Suarez and Mr. Ramos, as well as Diego's attorney in relation to said automobile, states the following: It is obvious that a customs violation was committed due to the deviation of the destination of the car imported through diplomatic exemption. The accused Ramos and Suarez do not agree on the date on which the latter received this BMW as a gift (February 91 and February 90). I am far from basing the effective commission of the aforementioned customs violation on this simple marital disagreement. I do so based on the existence of the notarial deed (with all its intrinsic details), the issuance of testimonies for the representatives of the power in question, the documentation seized from Carbone (receipt to Amfin SA, agenda page, BMW 320 i CD 1619 card in the name of Julio Ramos - seized on pages 183/4, the dates of the repairs carried out at the Milanese Workshop on the BMW and the fact that the invoices that attest to this were paid by Amfin SA (testimonial on pages 151 back) and all the statements of the accused that I have already cited. I conclude then, that this car was also purchased by Julio Ramos, this time for use by his wife, from an Israeli diplomat, during the term of the prohibition of sale of the franchise, with Carbone's agency acting as intermediary, the purchase being documented as prohibited by the deed constituting the power. He conditioned it after buying it, since It was a sports car, and it is incredible what Ramos said about how he took the opportunity to repair and condition the car while it was standing still, and without having paid for it in full. He not only repairs his friends' cars (first Mercedes Benz), but also those of strangers from whom he might buy them (this BMW).
VIII.- That it is appropriate to examine the various grievances and defenses that the appellants have asserted in the case.
That Julio A. Ramos argues that the violation of art. 982 of the Customs Code is time-barred because the date of the alleged violation was 6-2-1989, at the time of the opening of the summary on 13-11-95, as shown on page 4 of file 602978/94, the same would be time-barred because the five-year period established by art. 934 of the Customs Code has elapsed.
It is true that the infringement provided for in art. 982 of the Customs Code is consummated at the time when the alleged offender acquires possession of the vehicle brought in duty-free in violation of the provisions of decrees 25/70 and 315/89. But it is not an instantaneous infringement. The consummation of this infringement lasts over time as long as the vehicle is held in violation of the indicated regimes. According to art. 861 of the Customs Code, the general provisions of the Criminal Code also apply to the customs infringement regime, insofar as there are no specific regulations in the same. That is why the principle contained in art. 63 of this normative body is applicable: the prescription can only begin to run when the irregular possession of the good ceases. This is because an illicit act can only begin to prescribe when it ceases to be committed. Now, even if art. 63 were not applicable, the Criminal Code would not be applicable. 982 of the Criminal Code, the solution to the question cannot be otherwise, since the term of prescription of an infraction cannot begin to run before it ceases to be committed. This is derived from the intrinsic logic of the regulations of prescription, as can be seen from the rules that interrupt the course of the same by the commission of another illicit act. In the case, it is a question of the continuation of the same illicit act, that is, the continued and irregular possession of the imported good without duty for a period of time, configuring in said period in a continuous manner, the infraction provided for in art. XNUMX of the Code of Commerce, which means that while the illegal possession lasts, the calculation of the prescription cannot be started.
In the present case, and as it arises from File EAAA -1994-574341, where there are pieces of the file of the Economic Criminal case entitled Prosecutor Ricardo Juan Cavallero s/smuggling complaint, whose contents in what is relevant to the case have been referred to in Consideration VII, it arises that on 6-2-89 a notarial deed of power was granted in relation to the BMW 320 i automobile, and testimonies were issued in favor of Ramos and Suarez of the same.
That the negotiations carried out, the purchase of the vehicle and the payment of a deposit, arise from and are recognised by the statements mentioned in points c and d of Recital VII.
As regards the acts of possession or ownership carried out on the vehicle from that date and subsequently, reference should be made to the ruling of the economic criminal judge, referred to in point e) of recital VII. The judge in this regard stated: …it is clear that a customs offence has been committed, due to the deviation of the destination of the vehicle imported through diplomatic franchise…. The judge then states that this statement is supported… by the existence of the notarial deed (with all its intrinsic details), the issuance of testimonies for the representatives of the power in question, the documentation seized from Carbone (receipt to Amfin SA, agenda page, BMW 320 i CD 1619 card in the name of Julio Ramos seized at fs. 183/4 8 (of the judicial file),…, the dates of the repairs in the Milanese Workshop to the BMW and the fact that the invoices that attest to this were paid by Anfin SA (testimonial of fs. 151 back) and all the statements of the accused that I have already cited. I conclude then, that this car was also purchased by Julio Ramos, this time for use by his wife, from an Israeli diplomat, during the term of the prohibition of sale of the franchise, with Carbone's agency acting as intermediary, the purchase being documented as prohibited by the deed constituting the power. The He fixed it after buying it, since it was a sports car, and it is incredible what Ramos said about how he took the opportunity to repair and condition the car while it was standing still, and without having paid for it in full. He not only repairs his friends' cars (first Mercedes Benz), but also those of strangers from whom he might buy them (this BMW).
That the undersigned shares the conclusions of the Economic Criminal Judge that have been transcribed above, confirmed, in addition, by what is set forth in Recital VII, and on which, moreover, there is no possibility of review.
It is necessary to add that the illegal possession or ownership of the BMW vehicle extended until 24-1-90, the date on which the First Secretary of the Embassy of Israel, Mr. Arie Kalyach, who was the transferor of the vehicle, ceased his duties in the country, according to the report on pages 8/9 of file 602978/94, provided by the National Directorate of Ceremonies of the Ministry of Foreign Affairs.
That what is stated in the previous paragraph is confirmed by the record on the last page of the vehicle's file (see page 251 of the administrative summary), where it was only on January 25, 1990 that the diplomat requested the nationalization of the vehicle.
That the commission of the infraction, possession of the vehicle in violation of the franchise regime, having continued from 6/2/89 to 24/1/90, the term of prescription began to run on January 1, 1991, and on the date of opening of the summary on 13/11/95 said term had not been fulfilled.
That, consequently, the exception of prescription raised must be dismissed, with costs.
IX.- Mr. Ramos argues that the alleged infringement did not exist because decree 315/89 allows the sale of the vehicle if the diplomat ceases his duties, and that said sale could have taken place because the cessation of duties occurred in 1989. This defense cannot prosper, because as has been explained and developed in the previous Consideration, the cessation of duties of the Israeli diplomat who transferred the vehicle only occurred on January 24, 1990.
X.- That the questioning of the value of the vehicle made by Mr. Julio Ramos must be subject to analysis. In this regard, the statements related to the value of the Mercedes Benz automobile are not relevant, since the value of said vehicle is of no interest to the case. What is of interest in this case is whether the value of the BMW in violation is adjusted to the facts of the case or should be modified.
That on page 17 of the summary, and in the review of pages 33/34 of the same file, the vehicle is valued at the sum of $28.994. That according to page 16 of the summary, the valuation carried out in accordance with art. 918 of the Customs Code is as of the date of the commission of the infraction, that is, 6-2-89.
That the indicated valuation does not appear unreasonable if one takes into account that it was a 1988 model car, and that in his writing on pages 74/84 of the administrative file, Mr. Ramos himself states on pages 83- that if he had bought it new it would have been a car worth US$34.000. It is reasonable then that a new car in 1988 worth US$34.000 could perfectly be worth $28.994 in February of the following year. Furthermore, in the case there is no evidence of excessive use or deterioration of the car on the date of its valuation.
That the elements provided on pages 177/179 and 188/206 of the administrative file do not appear to have value for the valuation of the vehicle, since these are valuations of vehicles from 1988 carried out many years later, when they were already used vehicles for several years (five or six), and not, as is discussed in the case, of a 1988 model that as of 6-2-1989 had only been used for a few months.
That there is an additional element useful for the valuation of the vehicle. In the file of the property registry of said BMW vehicle, there is form 08 signed by the attorney of Mr. Julio Ramos and Mrs. on the occasion of the acquisition of the vehicle, it appears that on the date of its signing a purchase price of A 82.000.000 was declared. Applying an exchange rate of A 305.000 per dollar, it would appear that the price said to have been agreed upon on February 8, 1990 is approximately U$S 27.000. That taking into account that the value set by Customs on 6-2-89 was $28.994.-, the value set a year later in form 08 clearly shows that the value previously set by Customs was not arbitrary, but rather was in accordance with reality.
That, in any case, for the reasons stated above, considerations linked to the theory of the actions themselves prevent the plaintiff from continuing to challenge the value set by customs for the merchandise.
XI.- That with regard to the taxes imposed on Julio Ramos and Silvana Rosa Suarez by article 7 of the appealed resolution, there are no apparent reasons to modify them.
XII.- As regards the degree of punishment, an issue on which Julio Ramos also complains, the undersigned believes that said degree of punishment should be modified. In effect, the report on page 273 of the administrative file shows that neither Ramos nor Silvana Rosa Suarez have any prior record of infractions. Since there are no other causes that could increase the penalty, it is appropriate to impose a fine equal to the customs value of the vehicle, setting the amount of the fine at twenty-eight thousand nine hundred and ninety-four pesos ($28.994).
XIII.- That the costs of the appeal filed by Mr. Ramos shall be awarded according to the due dates.
XIV.- That as regards the sentence imposed on Mr. Fernando Polledo Olivera, it is based, basically, on the following facts:
a) The existence of the card, a copy of which is found on page 4 of file EAAA-1994-572917 (See Recital VI, a)). The card or card for persons authorized to drive issued by the National Directorate of Ceremonial, shows that Mr. Polledo Olivera, the diplomat Abubakar, is authorized to drive the Mercedes Benz 300. His identity card and driver's license details are also listed. Apparently, from the report on pages 7/8 of the cited file, the addition of Mr. Polledo Olivera would imply an adulteration of the card.
(b) From the informative declaration that appears on pages 47/48 of the administrative summary in copy, it appears that Mr. Fernando Polledo Olivera states that in December 1990 he met Mr. Abdu Usman Abubakar by chance at the service station on Libertador and Salguero and expressed his interest in the Mercedes Benz 300 car, provided he could test it and that the papers were in order. He was struck by the fact that the vehicle was a 1991 model, despite being in December 1990. That on the occasion of that conversation, Mr. Abubakar then took the car to the Bank located at Esmeralda 130 for said test purposes. He left it for two days. That for that reason the declarant called Mr. Abubakar to express his interest in buying the car, and Abubakar answered that unfortunately he could not sell it since he was confirmed in the position or that he would not be transferred, adding other explanations that he did not understand. That is why he immediately returned the car to the owner. He adds that during the days he had it, it was parked in the garage of his home at 2524 Guido Street.
XV.- That in the opinion of the undersigned, there is no evidence in the case by which Mr. Polledo Olivera can be accused of any involvement in the adulteration of the card with driving authorizations from the National Directorate of Ceremonial. The presence on that card of the numbers of the identity document and the driver's license of Mr. Polledo Olivera appears to give rise to some doubt in this regard. In this regard, however, it is possible that the statements of the witness Alicia Noemí Galvez on pages 104/105 of these proceedings, and on pages 49 (in copy) of the administrative file, may provide a beginning of explanation.
That, as regards the statements of Mr. Polledo Olivera mentioned in the preceding Recital, in the opinion of the undersigned, the only acknowledgement they contain is that the car in question - Mercedes Benz - was in the garage of his home for a couple of days while negotiations were being carried out with Mr. Abubakar on the possibility of its purchase by Polledo Olivera, and so that the latter could assess its condition. The car was delivered at 130 Esmeralda Street and then driven to the garage. As the transaction could not be carried out because Mr. Abubakar remained in office, the car was immediately returned.
That, to evaluate these facts, as set forth by the accused, as a transfer of ownership of the vehicle as prohibited by decree 25/70 and decree 315/89, or art. 544 of the Customs Code, exceeds, in my opinion, prima facie, the scope of a reasonable interpretation of customs legislation. It is known that foreign diplomats, when they are about to leave the country, try to get rid of the vehicles that are their property, if the legislation allows it. In the opinion of the undersigned, very brief contacts such as the one reported by Mr. Polledo for the stated purpose do not seem to be able to be classified as a transfer of ownership of the vehicle in the sense required by customs legislation, to typify the infringement provided for by art. 982 of the Customs Code. The release of ownership provided for in that article requires, in my opinion, a certain degree of continuity that is not appreciated prima facie in the case at hand. It does not seem unreasonable to compare this situation with others, such as the delivery of the vehicle to a mechanic's workshop for repairs, to a car wash for cleaning, to a service station for a service, with periods that can sometimes extend for days or weeks, and which do not constitute a customs violation. In all cases, these are services performed for the benefit, not strictly of the car, but of its owner by virtue of the advantages that he receives from the good operation of the vehicle. In the present case, the diplomat of the car also seeks the benefit of the possibility of a potential buyer.
It cannot be argued against the above that the car could not be sold, since this was something that Mr. Polledo Olivera was apparently unaware of when he received the car.
That despite the above, I understand that the combination of the adulteration of the card of the National Directorate of Ceremonial, and the statement made by Polledo Olivera, give rise to doubts as to whether the violation of art. 982 could have been configured. For this reason, the issue must be resolved by applying art. 898 of the Code of Administrative Procedure, revoking the sanction imposed on Mr. Polledo Olivera.
XVI. That, as regards costs, in the appeal of Mr. Polledo Olivera, the grounds of the decision must be imposed in order.
That this Chamber of the Court, as will be seen, has the power to impose costs in its order.
That, in the opinion of the undersigned, the reform introduced by Law 25239, in its point 18, to art. 184 of Law 11683, must be interpreted extensively, considering that it also reforms art. 1163 of the Customs Code. No other interpretation is possible given that it is the same Court, with the exercise of similar jurisdictional powers in both areas, in which there is no reason to differentiate them at the time of the imposition of costs. The precise basis for the extensive interpretation is given: the legislator in this case, when sanctioning the law minus dixit cuam voluit, that is, has expressed in the letter less than what corresponds to its true real intention, which has been to return to the same, without any distinction, the power to exempt from costs when justified. The reform introduced by Law 25239, point 18, is also expressive of a general principle, enshrined in all, or almost all, of the Procedural Codes, in relation to the exercise of the jurisdictional function. To claim that this principle can be applied in the Tax Court only partially, without any possible justification, exceeds the margins of reasonableness of interpretation.
If the case were approached from the point of view of gaps in the law, and not from the point of view of extensive interpretation, it could be stated that in the situation there is, as Karl Larenz discusses in the Methodology of the Science of Law, Ediciones Ariel SA, Barcelona, 1966, p. 293, a case of a hidden regulatory gap. That is to say, in the case the rule of art. 1163 of the Ad. Code apparently subsists, but it is no longer applicable because according to the principles of the legal order (contained in the case in the various Procedural Codes) or in a subsequent rule for analogous situations (art. 184 law 11683 with the reform of law 25239), its scope must be reduced or modified to apply the principles of the subsequent rule for analogous cases or of the legal order, taking into account the purposes of the same, which arise in this case from the foundations of law 25239 itself.
That, for all the above, I vote for:
1º) Modify art. 6º) of resolution 3025/99, imposing on Julio Alfredo Ramos and Silvana Rosa Suarez a fine of one time the customs value of the automobile BMW 320 i year 1988 cd 1619, which amounts to the sum of twenty-eight thousand nine hundred ninety-four pesos ($ 28.994.-).- With costs according to the due dates.
2nd) Confirm art. 7 of resolution 3025/99. With costs.
3) Partially revoke art. 2 of resolution 3025/99, leaving without effect the fine imposed on Mr. Fernando Polledo Olivera. With costs accordingly.
Dr. García Vizcaíno said:
(I) That I agree with Dr. Krause Murguiondo in rejecting the exception of prescription raised by Mr. Julio A. Ramos, with costs, given that I have repeatedly maintained that "based on the form of action, illegal acts [tax crimes and infractions] are classified as instantaneous (the action that consummates them is perfected in a single moment; e.g., the presentation of inaccurate or misleading sworn statements) and permanent (what remains is not a mere effect of the illegal act, but the state of consummation itself, and all moments of its duration can be imputed as such; e.g., the infractions described in arts. 966, 971 and 987 of the CA). This classification influences the calculation of the prescription" (Tax Law, Volume II, p. 329, 2nd edition, Buenos Aires, 2000).
That, therefore, the infringement attributed to the aforementioned defendant began to be committed on 6/2/89 with the granting of the special power in his favor of the car belonging to Mr. Arie Kalyach (protocol 90 of the Notary Ana Dubois de García; see page 78 of file No. 574341/94) and the action continued at least until 25/1/90 when he requested the nationalization of the vehicle (see last page of the file on file at page 251 of file No. 602.978/98). Thus, the five-year statute of limitations (see art. 934 of the CA) began to run on 1/1/91 (see art. 935 of the CA), which is why it had not taken effect as of 13/11/95, when the summary was opened (page 4 of file No. 602.978/94) and which had the force of interrupting the statute of limitations (see art. 937, inc. a, of the CA).
II) I also agree with the preceding vote insofar as it confirms the tax assessment, considers the infringement attributed to Mr. Julio A. Ramos and sets the fine at the legal minimum, as well as the way in which it decreed the costs.
That with regard to the tax settlement, the appellant did not make a specific and reasoned criticism, which is why it is appropriate to confirm it, since from the principle of art. 377 of the CPCCN (of supplementary application in the matter according to art. 1174 of the CA) it follows that it is the procedural burden of the appellant to have conclusive evidence that invalidates the items or the amount of the tax settlement, so that since he did not do so, the tax determination made by the DGA must prevail, which enjoys a presumption of legitimacy, until such time as the contrary is proven or invoked with good reason.
It has been said that the official estimates or liquidations made by the treasury are legitimate; and it is up to the person who challenges them to prove the facts (CNCont.-Adm. Fed. Cap., Room 1, «Willman Argentina SAIC s./ Appeal-income tax», dated 22/5/92, «Tax Criteria», November 1992, p. 75).
III) I do not agree with the solution reached with respect to Mr. Fernando Polledo Olivera, given that I consider that the infringement attributed by customs was confirmed.
That from the comparison of the attached proceedings it appears that the Ambassador of Nigeria appears to have signed the authorization for Mr. Fernando Adolfo Polledo Olivera (CI 5.033.979; Driver's Lic. 462.392) to drive the Mercedes Benz, model 300-TE24, owned by Mr. Abdu Usman Abubakar - Counselor of the said Embassy -, license plate CD 1522, displaying on this authorization a certification issued by the Counselor of the National Directorate of Ceremonies of the then Ministry of Foreign Affairs and Worship (see pages 3/ 4 of file No. 572.917/94).
That this Court cannot rule on the claim of falsity of this authorization because it supposedly concerns an ambassador, considering that in cases concerning ambassadors the Supreme Court of Justice of the Nation has original jurisdiction (cfr. arts. 116 and 117 of the National Constitution), without being hindered by what is stated on pages 7/8 of the file. No. 572.917/94 by the National Directorate of Ceremonial, since it states, on 22/4/91 (after December 1990 when Mr. Abubakar allegedly handed over the vehicle to Mr. Polledo Olivera; see pages 47/48 of file No. 572.917/94) that it had been informed that Mr. Fernando Adolfo Polledo Olivera was driving the vehicle in question and that it had been sent to it "a photocopy of the yellow card to which the name of Mr. Polledo Olivera had been added a posteriori ..."; Although he believes that the credential was adulterated, he does not give any reason for his statements about why he reported that the accused was driving the car four months after having received it, nor who informed him of this circumstance, nor about the possible result of any investigation that the Nigerian Ambassador should have carried out in relation to the alleged adulteration of the authorization, taking into account that his alleged signature and the seal of the Embassy appeared on it.
That, however, even disregarding this alleged authorization (by which Mr. Fernando Adolfo Polledo Olivera would have driven the aforementioned car; see pages 7/8 of file No. 572.917/94), it should be noted that the accused has acknowledged in his information statement on pages 47/48 back of file No. 572.917/94 that the Mercedes Benz car, model 300, owned by the Nigerian Embassy, license plate CD 1522, was lent to him by Mr. Abdu Usman Abubakar, in December 1990, at the Bank where he worked so that "he could try it out the next day." In said statement he added that "since he was interested, two days later he called Abubakar telling him that he did want it...". Furthermore, he stated that "during the two days that the declarant had the car, he kept the car at his home (...) in the garage that he owned" (page 48 of file No. 572.917/94).
There is no doubt that Mr. Fernando Polledo Olivera had the car, which was imported with diplomatic immunity, in his possession for two days, violating its regime, since art. 982 of the CA does not provide for a minimum period of possession for the infringement provided for therein to be classified. In my opinion, this possession cannot be equated to that of mechanics, car washes, garages, etc. (as it is claimed on page 60 of the record), since in these cases a service is provided to the owner of the car, unlike the conduct of this defendant who, out of self-interest, claims to have tested the car in order to acquire it later.
It should be remembered that art. 2352 of the Civil Code defines the holder as "the one who actually has a thing, but recognizing the ownership in another...". Furthermore, art. 982 of the CA outlines the active subject of the infringement in treatment as "the one who by any title has in his possession...", it not being disputed that, for at least two days, he actually had the vehicle in his possession, having been delivered to him by the owner in person. This configures the title of the possession: commodato in the event that there has been no payment (cfr. art. 2255 of the Civil Code), or leasing of things if there has been monetary consideration by the accused (cfr. art. 1493 of the Civil Code).
That on page 109 of the proceedings the National Directorate of Ceremonial reported that it only "authorized and continues to authorize the driving of vehicles entered with diplomatic franchise," and that: "The persons authorized to drive said vehicles are: a) direct relatives; b) Embassy personnel; c) drivers duly accredited before the National Directorate of Ceremonial."
That Mr. Polledo Olivera has not demonstrated or even invoked that he met any of these qualities with respect to the automobile in question.
Furthermore, it should be noted that it is rather strange that he only trusted the words of an unknown person who said he belonged to an Embassy, who had given him a mere personal business card and who had left him a Mercedes Benz car at his office, to whom he had put as a condition that "the papers were in order" (see page 47 back of file No. 572.917/94), although Abubakar "did not show him any papers relating to the car in question, and that (…) he did not sign anything, adding that since it had a diplomatic license plate he was not too worried, since if they stopped him he planned to show the card that Abubakar had given him [simple personal card] and tell them to contact the person named at the Embassy" (page 48 of file No. 572.917/94).
It is worth asking, since the car's documentation was not shown to him: Did he consider it legal to drive a car with a diplomatic license plate without being a diplomat and without documentation, especially since the laws are presumed to be known by all inhabitants (principle of arts. 1 and 20 of the Civil Code)?
From the above I infer that the situation is serious enough to consider the violation of the diplomatic franchise regime by the accused as holder in the terms of art. 982, ap. 2, of the CA fully proven.
Finally, I would like to point out that the diplomatic exemption regime by which beneficiaries can import vehicles from abroad without paying customs duties does not authorize them to allow the vehicles to be driven by third parties not authorized by the regulations, within the period in which the transfer is prohibited even free of charge (see art. 544, section 2, of the CA). Otherwise, in my opinion, the regime would be mocked, allowing profits to be made from vehicles for which the burdensome customs duties have not been paid in consideration of the diplomatic functions to be fulfilled with their use, with the consequent damage to the fiscal coffers. Nothing prevents diplomats who cease their functions from re-exporting them to their new destination, or transferring them to another diplomatic beneficiary.
So much so that decree 315/89 (Official Gazette 15/3/89), in its amendment to art. 14 of decree 25/70, provided that a vehicle introduced with diplomatic exemptions may be transferred within two years of its release to the market: 1) to be re-exported; 2) to another beneficiary with the same unused exemption; 3) due to the "cessation of functions in the Argentine Republic due to the transfer of the beneficiary. In this case, if the transfer occurs or is communicated before three hundred and sixty-five days of the assumption of functions in the Argentine Republic, the beneficiary must pay 100% of the taxes established at the time of release to the market from which they were duly exempt..." 4) due to abandonment to an insurance company in the event of a total loss, after paying 100% of the taxes at the time of release to the market from which they were duly exempt.
It can be seen from this that the fiscal interest is severely affected with respect to the violation of the purposes for which this type of tax exemption is granted, which are limited only to vehicles for exclusive use in diplomatic functions, without allowing this exemption from taxes to continue in cases where the stay of the diplomat is less than a certain time. The entry of vehicles free of taxes under the diplomatic exemption regime has the purpose of ensuring a dignified performance of such functions and not of allowing undue economic benefits.
Therefore, I vote for:
1st) To reject the exception of prescription raised by Mr. Julio Alfredo Ramos. With costs.
2º) Modify art. 6 of DEPLA Resolution No. 3025/99, imposing on Julio Alfredo Ramos and Silvana Rosa Suárez (arg. art. 1136 of the CA) a fine of one time the customs value of the automobile BMW 320 I year 1988 CD 1619, which amounts to the sum of $28.994 (twenty-eight thousand nine hundred and ninety-four pesos). Costs according to the due dates.
3) Confirm art. 7 of DEPLA Resolution No. 3025/99. With costs.
4) From the amount of $535 paid as a fee for proceedings by Mr. Julio Ramos (page 28 of the proceedings), allocate the sum of $200 to the fee for the contested tax assessment and allocate the remainder to the fine for which he is convicted. The person signing this document must pay the balance of the fee for proceedings for the sanction for which he is effectively convicted, under penalty of issuing a certificate of debt.
5) To confirm the fine imposed on Mr. Fernando Polledo Olivera under Article 2 of DEPLA Resolution No. 3025/99. With costs.
6th) By signing this document, Mr. Fernando Polledo Olivera must pay 2% of the fine for which he is effectively convicted as a fee for actions provided for in Law 22.610 and amendments, under penalty of issuing a certificate of debt.
Dr. Winkler said:
I substantially agree with the preceding vote.
By virtue of the above agreement, by majority, IT IS RESOLVED:
1st) To reject the exception of prescription raised by Mr. Julio Alfredo Ramos. With costs.
2º) Modify art. 6 of DEPLA Resolution No. 3025/99, imposing on Julio Alfredo Ramos and Silvana Rosa Suárez (arg. art. 1136 of the CA) a fine of one time the customs value of the automobile BMW 320 I year 1988 CD 1619, which amounts to the sum of $28.994 (twenty-eight thousand nine hundred and ninety-four pesos). Costs according to the due dates.
3) Confirm art. 7 of DEPLA Resolution No. 3025/99. With costs.
4) From the amount of $535 paid as a fee for proceedings by Mr. Julio Ramos (page 28 of the proceedings), allocate the sum of $200 to the fee for the contested tax assessment and allocate the remainder to the fine for which he is convicted. The person signing this document must pay the balance of the fee for proceedings for the sanction for which he is effectively convicted, under penalty of issuing a certificate of debt.
5) To confirm the fine imposed on Mr. Fernando Polledo Olivera under Article 2 of DEPLA Resolution No. 3025/99. With costs.
6th) By signing this document, Mr. Fernando Polledo Olivera must pay 2% of the fine for which he is effectively convicted as a fee for actions provided for in Law 22.610 and amendments, under penalty of issuing a certificate of debt.
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