In Buenos Aires on the 24th day of the month of October 2003, the members of Chamber E, Drs. Catalina García Vizcaíno and Ms. Paula Winkler, met with the last appointed member in the chair, in order to resolve the case entitled: RENAULT ARGENTINA SA v. General Directorate of Customs, s/appeal, File No. 17.108-A.
Dr. Catalina García Vizcaíno said:
I) That at fs. 27/46 Renault Argentina SA, through its representative, files an appeal against the Ruling No. 164/2002 (AD CORD) issued in file No. SA17-97-084, insofar as it condemns the payment of a fine equivalent to the sum of $733.630,64, in accordance with the terms of art. 954 ap. 1 inc. a) of the CA He states that the proceedings are initiated as a result of the complaint filed by the Export Valuation Division, based on the ANTAVVEE report No. 1128/97 dated April 11, 1997, prepared by Branch 4 Machines of the Export Analysis Section. It indicates that through ANTV note 180/97, issued by the Head of the Technical Valuation Department, the above is shared and it is recommended that a complaint be filed regarding the alleged commission by the firm CIADEA SA (whose successor is the appellant) of the infringement provided for in art. 954 of the CA He points out that for this reason the instruction of the summary is ordered, a review of all the proceedings is arranged and on 18/4/02 the condemnatory resolution is issued, confirming the complaint formulated in its entirety. It states that the customs charge was based on a value reconstructed according to the cost structure of the goods in question. He complains of the failure to consider arguments that had been expressly introduced by the defence, of the alleged absence of infringement and of the subordinated values in accordance with art. 325 and following. from CA It considers that, given the refusal of customs to pay the incentives in question and the adoption of red channel control measures for all foreign trade operations of the appellant, it was clear that the detailed values were subject to the results of the investigation that was being carried out and for which additional reports were periodically required. It points out that all the shipping permits affected by the investigation correspond to operations registered in mid-1994, after the multiple requests made in order to obtain payment of the refunds owed by the Treasury, and which were not granted because their payment was conditioned on the results of the investigations initiated prior to the claim, and even on the registration of the export operations. This leads us to conclude that the export operations were undoubtedly conditioned by the value investigations that customs was carrying out in 1994, and that the declarations were subject to this, since at no time were the corresponding incentives paid. She claims that she has been incriminated by analogy, in open violation of the provisions of art. 895 and following. of the CA, since the declared values have not been challenged for being unrealistic or false, but rather for a questionable interpretation of some costs of the exported merchandise that could affect the consideration of the value reconstituted by customs. It is understood that the validation of the methodology used by Customs to reconstruct and adjust the transaction value is arbitrary; that there is no doubt in the applicable doctrine or jurisprudence that the pattern to follow is based on the price derived from a transaction; that the application of the supplementary bases of art. 748 of the CA It only applies when the price paid or payable does not constitute a suitable valuation basis for the purposes of determining the tax base; that the order in which the alternative mechanisms are provided demonstrates a certain priority; that if the operations are accredited in the accounts, there is no reason why the Treasury does not accept said value as a suitable tax base to calculate the incentive, especially if the vast majority of the operations have been carried out at a loss and a minimal number of them with an insignificant profit margin; that the validation of the adjustments made by the complainants contained in the contested resolution has been arbitrary. He rejects the claim that administrative, financial, etc. expenses had been counted twice. As regards royalties, it should be noted that the taxable value includes the value of the right to use the patent, design, model or trademark when the merchandise to be valued has been manufactured in accordance with these circumstances. Distinguishes the price from the cost of the good. He also complains of the failure to consider in the appealed decision the objections raised regarding the manner in which the fine imposed was to be settled, and also questions the lack of adequate justification. Provide proof. Reserves the federal case. He requests that a judgment be issued revoking the decision of the Customs of Córdoba, and that the incentives owed be paid with the corresponding interest in accordance with the provisions of the Customs Code, all with express imposition of costs.
II) That at fs. 53/58 the fiscal representation answers the transfer that was duly conferred upon it. Make a brief review of the administrative actions. He denies each and every one of the facts, rights and documentation submitted by the plaintiff, which are not the subject of special recognition on his part. It states that the customs service adjusted its conduct to the rules governing the procedure for infringements, given that in the case under study the inaccurate declaration regarding the value relative to the calculation basis for refunds has been demonstrated. It is noted that art. 954 of the CA It sanctions anyone who, in order to carry out any of the import operations or destinations, makes a declaration to the customs service that differs from what results from the verification and that, if it goes unnoticed, produces or could have produced... the entry or exit from or to the exterior of an amount paid or payable other than that which corresponds. It is noted that from the analysis and study carried out by customs agents, it is concluded that the concepts of administrative expenses, financial expenses and the variations of the cost elements, which were foreseen or arise as a difference between the budgeted cost and the actual cost, are considered included within the cost of production in a double manner, understanding that at the date of the requirement, that is, in the year 1995, they were not active because the aforementioned concepts were activated for 1993 and 1994: therefore they should not have been taken into consideration for the purposes of defining the taxable value. The Court also argues that it also appears that royalties were included in the audited cost, since this concept corresponds to a percentage of the FOB export value that is paid to the company RENAULT, which is why it is not appropriate to include them for the purposes of establishing the basis for the refund due, since the domestic taxation of these royalties is due to the withholding that the national treasury applies to the holder of the right, in this case to the Regie Nationale des Usines Renault. He highlights that the reporting agents state that in the cost sheet on file at fs. 26/47, provided by the accused firm, the item Charges on Materials of the audited cost was opened and from which the import duties would not have been disaggregated, for which reason said duties are included in the Base for the purposes of Refund, indicating that the Base for the purposes of Refund was calculated according to the data entered in the cost sheet attached by the firm as Annex 2, excluding the taxes that tax the import for consumption, in accordance with art. 825 point 2 of the CA He argues that, as a result, the adjustment of the taxable values of the goods under study is promoted, in the understanding that we are dealing with the infringement provided for and punished in art. 954 inc. a) of the CA and that the tax damage caused is due to having improperly established the Taxable Value for the calculation of the export refunds for the shipping permits detailed in the ANTVEE report No. 1128/97. He adds that the adjustments to the taxable value and the refund base were made within the framework of Resolution 3023/93 and that once the relevant documentation was gathered, the taxable value was determined outside the price paid or payable, taking as an analysis method the value obtained from the cost of production, in accordance with the provisions of art. 748 inc. e) of the CA He explains that, based on the above, the customs office proceeded to make a value adjustment regardless of whether the declared value was false or not. He acknowledges that the real value of the merchandise was not questioned by the respondent entity. It concludes by stating that the counterparty failed to demonstrate, through the contribution of objective elements, the inappropriateness of the value adjustment. Provide proof. reserves the federal case. He requests that the appealed decision be confirmed, with express imposition of costs.
III) That at fs. 60 the case is opened for evidence, which is produced at fs. 79/83, 85 and 88/97. At fs. 102 the proceedings are put to argument, making use of this right the plaintiff and the Treasury at fs. 107/110 and 112/113. Without prejudice to this, at fs. 103 the Court dictates a measure to better provide which is produced at fs. 120/230. At fs. 231 the proceedings are called to sentence.
IV) That on pages 1 of file SA 17-97-084, a complaint is filed by agents of the Export Valuation Division for improper collection of refunds that would be classified under art. 954 of the CA according to ANTVEE No. 1128/97 that appears on pages 3/14. On pages 7/14 there is a list of Shipping Permits for the year 1994, from the Córdoba Customs registry. On pages 16/18 there is a special report from the auditors of the firm Deloitte & Touche, and on pages 19 there is a detail of the unit sales cost of the vehicle models sold to Tierra del Fuego during the year 1994. On pages 20/23 there is a special report from the auditors of the firm Deloitte & Touche. On pages 24/25 details the unitary sales cost of the exported vehicle models and on pages 26 the details of the sales made to southern Argentina during the month of June 1994. On pages 27 the calculations of the refund in accordance with the legal regulations in force appear, detail of the unitary sales cost of the exported vehicle models, on pages 28 the sales made to southern Argentina during the month of July 1994 and on pages 29 the calculation of the refund in accordance with the legal regulations in force. On pages 57 the summary case is instructed against the firm CIADEA SA. On pages 64/76 the accused answers the hearing conferred. On pages 103 the evidentiary period is closed. On pages 169/171 the Ruling No. 096/02 is issued by the Legal Service of the Customs of Córdoba. On pages 172/174 vta. Resolution No. 164/02 is issued, which is the subject of appeal.
V) That in relation to the alleged infringement of the right of defense referred to in fs. 31 of the proceedings, it should be noted that it has been said that when the restriction of the defense in court occurs in the procedure that is substantiated in an administrative seat, the effective violation of art. 18 of the CN does not occur as long as there is the possibility of correcting said restriction in a subsequent jurisdictional stage (Judgments, 205-549, 247-52 consid. 1º., 267-393 consid. 12 and others), because the requirement of the defense in court is satisfied by offering the possibility of appearing before a jurisdictional body in search of justice (Judgments, 205-549, consid. 5º and its citations) -TFN, Sala E, among others, Rivera, Alcides of 27/5/86, López Arispe, José, of 5/9/88-.).
With respect to the omissions of a ruling referred to on pages 31/32 back, it should be noted that the decision being sufficiently founded, it is not necessary to expressly mention all of the appellant's arguments (among others, Fallos, 251-39). It should also be remembered that judges are not obliged to consider all of the evidence produced in the case, but only those that they consider conducive to its correct solution and that, by means of the federal remedy, this Court should not be attempted to be converted into just another ordinary instance ("Fallos", 274-35, 276-132 and 248, 278-135, among many others) (Fallos, 301-676).
With regard to the arbitrariness alleged in pages 32 back and 44 back, it should be noted that it has been repeatedly stated that it is SC doctrine that the charge of arbitrariness is not applicable to a well-founded resolution or judgment, regardless of its correctness or error (Judgments, 243-560, 246-266, 248-584, 249-549), except in certain cases that do not occur in this case, such as the contradiction between the recitals and the operative part (see, among others, Scicolone, Manuel S. v. Prantera, Omar Alberto and others, 26/11/91).
That in this regard there is no imposition of costs, given the integrative manner with the substance in which the issues addressed in this point have been raised, requesting the correction by this jurisdictional body (see fs. 32 back), without prejudice to the lack of jurisdiction that I later propose to declare.
(VI) That the Customs Code protects the principle of truthfulness and accuracy of declarations and statements submitted to customs. Article 954 of that Code punishes and sanctions - in relation to the legal interest protected - anyone who, in order to carry out any import or export operation or destination, makes an inaccurate declaration to the customs service, which if it goes unnoticed, causes or could cause, among other things: a) fiscal damage, which will be sanctioned with a fine of 1 to 5 times the amount of said damage. For this reason, the appellant was convicted by Resolution No. 164/2002 of the Administrator of the Customs of Córdoba, appealed herein.
That art. 956 inc. b) of the CA understands fiscal damage as the failure to pay into the customs service the amount corresponding to taxes whose collection is entrusted to it (…) or the payment by the Treasury of an amount that does not correspond to export incentives.
That the contested resolution sets the fine at one time the alleged fiscal loss resulting from the liquidations of pages 7/14 of the ant. adm. contained in ANTVVEE No. 1128/97 (pages 3/14 of the ant. adm.).
That in this case the container envelopes of the shipping permits involved in these settlements have not been added.
That on page 103 of the case, Chamber E, as a better provision measure, ordered that Federal Court No. 1 with seat in the City of Córdoba report whether judicial file 6-A-94 involved the shipping permits relating to the firm CIADEA SA made official by it and detailed in ANTVVEE No. 1128/97; that, if so, the procedural status of said case be made known, and, if said shipping permits had been removed, that the respective container envelopes be sent.
That, in response to that measure, on pages 120/230 the Federal Judge No. 1 of the Province of Córdoba sends copies of the forms that detail the shipping permits that are related to the investigation that is being carried out in the case entitled: ANTELO Manuel Fernando PEíN Jesús ORECCHINI Osvaldo et al. p.ss.aa. Qualified Smuggling Fraud (File 19-A-979 ex No. 6 - A-94) ... in which the defendants were acquitted, a measure that did not become final, so they are currently under investigation. He adds that the originals of the corresponding shipping permits are reserved by Customs of Córdoba.
That from the comparison of the forms added by Federal Judge No. 1 regarding the details of pages 7/14 of the administrative records, I came to the conclusion that the following are involved in the case for qualified smuggling and fraud: shipping permits Nos. 5180 (pages 128 and 8 of the administrative records), 6308 (pages 135 and 12 of the administrative records) and 7619 (pages 147 and 13 of the administrative records), 5607 (pages 164 and 9 of the administrative records). Furthermore, on page 229 it is stated that the configuration of fiscal damage due to refunds is being investigated.
Furthermore, to all the shipping permits, as decided by this Court, the customs has applied the observations of ANTVVEE No. 1128/97, which implies that they must necessarily be subject to a single judgment.
That this Court is not competent in matters of smuggling crimes (see arts. 1025, 1026 and 1027 of the CA).
It should be noted that if, ultimately, it were concluded that this type of crime was committed with respect to all or some of the shipping permits in the sub-item, the provisions of art. 913 of the CA should be applied, which includes the principle of absorption in matters of ideal competition, so that only the penalties provided for the crime should be applied. Therefore, it would be premature for this Court, for example, to confirm the sanction for the customs violation charged.
Furthermore, the possibility of a legal scandal due to the possibility of contradictory sentences on the same fact must be avoided.
That, consequently, by virtue of the fact that art. 1132, section 1 of the CA provides that in matters of final resolutions that fall within the procedure for infractions, the interested party may opt for the appeal before the Tax Court or the contentious claim before the competent judge, it is appropriate to reframe the present case in this type of claim and refer it to the latter in order to avoid the possibility of a legal scandal regarding the assessment of the facts.
That it is not an obstacle that the interested party did not opt for the contentious claim, since the conclusion I reached takes into account the rule of paragraph 4 of art. 42 of the CPP (applicable in a supplementary manner by art. 1174 of the CA) in that when dealing with related causes, the questions of jurisdiction must be resolved taking into account the best and quickest administration of justice.
Furthermore, art. 18 of the CPP extends federal criminal jurisdiction to include contraventions (in accordance with art. 1024 of the CA), while according to art. 892 of the CA the term infraction is equivalent to that of contravention.
That no imposition of costs is appropriate, given that the lack of jurisdiction is declared ex officio.
Therefore, I vote for:
1°) To declare the incompetence of this Court to hear the appeal filed against Ruling-Decision No. 164/2002 (AD CORD), dated 18/4/02. Without costs.
2º) Sign this document, by the General Secretariat of Customs Affairs, and send the proceedings to the Federal Court No. 1, Secretariat of Economic and Tax Criminal Matters, of the Province of Córdoba.
Dr. Winkler said:
I agree with the preceding vote.
In accordance with the above agreement, it is unanimously RESOLVED:
1°) To declare the incompetence of this Court to hear the appeal filed against Ruling-Decision No. 164/2002 (AD CORD), dated 18/4/02. Without costs.
2º) Sign this document, by the General Secretariat of Customs Affairs, and send the proceedings to the Federal Court No. 1, Secretariat of Economic and Tax Criminal Matters, of the Province of Córdoba.
Register, notify, promptly return and archive the administrative records.
The following sign this document: Dr. García Vizcaíno and Dr. Winkler, as the position of Member of the 14th Nomination is vacant. (Conf. art. 1162 of the CA)
