The regime detailed in the title of this note is regulated precisely in Section VI of the Code, Chapter XI, under the name "Import or export regime to compensate shipments of merchandise with deficiencies."
In this regard, Article 573 states: ARTICLE 573. -When, by virtue of a guarantee obligation, the import or export of certain merchandise is intended to replace another identical or similar merchandise with material or manufacturing deficiencies, said destinations are exempt from the payment of taxes that burden them, from the corresponding negotiation of foreign currency and from the application of prohibitions of an economic nature, provided that the conditions determined by the regulations are met.
The respective regulation is particularly important, since it is not uncommon for goods to present manufacturing deficiencies, for example, in the shipment of both imports and exports. In this regard, and as the same article indicates, it is foreseen that in cases of imports or exports intended to compensate for these deficiencies, the relevant operation will be exempt from paying taxes, in addition to the application of economic prohibitions, always within the framework of a guarantee obligation, of course.
This is also in line with the provisions on international sales, the regulation of which has been established in the Vienna Convention of 1980 and ratified by the Argentine Republic through Law 22.765. This Convention establishes that in the case of merchandise that does not comply with what was agreed in the corresponding contract, the buyer has the right to demand the delivery of another merchandise, which replaces the one that has been delivered with defects. And when considering the Convention regarding merchandise that does not comply with what was agreed, it does not only give rise to its substitution by another identical merchandise, but it may be another merchandise that due to its composition fulfills the same function as the deficient one and that commercially produces the same results for the buyer.
Furthermore, this regime applies to operations of definitive destination as well as those of suspensive destination and covers situations relating to the payment of taxes, prohibitions and the negotiation of foreign currencies. But for all this to fit together, the reading of the same article reveals the need to meet certain requirements, namely:
a) Deficiencies in the merchandise, whether material or manufacturing.
b) Replacement with another of identical or similar characteristics.
c) Such replacement operation is part of the fulfilment of a guarantee obligation.
On the other hand, the reference article indicates in its final part that in order to comply with the regime, the conditions of the regulations must be met. And this is regulated in decree 1001/82, as it determines that the benefits indicated are not cumulative, allowing the guarantee for the purposes of the release to the place in the event that there is something pending at the time of its issuance.
In order to be able to access the indicated regime, the operator (importer or exporter) must accompany his order with the sales contract, adjusted to the clauses of international sales, since under these conditions the provisions of the Customs Code can be accessed in this regard. And it is as a consequence of this that the need for exemption from taxes and prohibitions is met.
From reading the article in question, it seems that only a complete replacement is referred to, as the possibility of partial compensation is not clarified. However, I consider that there is no impediment to this being possible, as long as it is not expressly prohibited. In this case, the same requirements must be met as if it were a complete replacement of the merchandise.
I also understand that the possibility of a sworn declaration by the seller of the defective merchandise, admitting this circumstance, should be admitted if it is not possible to provide the sales contract, because in many international business opportunities this formality is dispensed with. And of course, this documentation, whether it is the contract or another that replaces it, must have the proper Consular intervention and its translation, so that it is completely legitimate when presented to the Customs Service.
Although what has been described here is regulated in the Customs Code and even based on an International Convention, it is not usual for operators to know and use it. It is important to disseminate it so that importers and exporters have the possibility of being able to use this regime, thereby avoiding new operations with new taxes and submission to various prohibitions.
It is also important to note that this regime is enabled for operations with third countries that are not part of Mercosur, since in the case of operations within the Mercosur area, their specific regulations apply.
The author is a lawyer and member of the Institute of Customs Law and International Trade of the Argentine Association of Constitutional Justice.
