In Buenos Aires, on the 13th day of the month of November 2002, the members of Chamber E, Drs. Catalina García Vizcaíno, D. Paula Winkler and Gustavo A. Krause Murguiondo, met with the latter presiding, in order to render judgment in the case entitled: RENAULT ARGENTINA SA v. Directorate General of Customs, s/appeal, File No. 16.051-A.
Dr. Catalina García Vizcaíno said:
I) That on pages 51/53 back, Renault Argentina SA, through its representative, appeals against Resolution/Judgment No. 189 issued on May 11, 2001 by the Administrator of the Mendoza Customs, in the summary proceeding processed under No. SA38/96/148. It maintains that the case began as a result of the unlawful act perpetrated by unknown authors on December 23, 1993, consisting of the theft of merchandise originating and coming from the Republic of Chile, covered by MIC/DTA No. 12949/93 and which was being taken to the Córdoba Customs in accordance with the authorization issued in PTT Nos. 2318, 2321, 2330, 2343, 2381 and 2384/93, by the Mendoza Customs Office, as it passed through the Province of San Luis. It indicates that this gave rise to the charge against its representative for the alleged commission of the infraction provided for and punished by art. 973 of the CA, a case that concluded with the issuance of the appealed resolution that ordered its dismissal, but that carried out the tax liquidation for $ 110.996,23 that is detrimental to it, and which fails to consider that the merchandise, being originated in the Republic of Chile, is negotiated in the ACE 16, held between our country and Chile within the framework of ALADI with a percentage tariff preference of 100%. It indicates that the statistical rate has been set at 10%, when the 3% rate should have been applied; and that, in addition, the concepts of additional VAT and Income Tax have been included. Accepts the appealed settlement up to the sum of $ 39.034,42. Notes that at the time the taxable event occurred, the partial exemption was in force, provided for by art. 1 of MEyOySP Resolution No. 1149/93, by which the statistical rate applicable to imports of industrial inputs made by automotive terminal companies located in the country was reduced from 10% to 3%. Notes that the sale in the domestic market was ultimately not made by the importer, due to the theft of the goods during transit, for which reason it understands that the collection of Income Tax and additional VAT does not apply. Provides evidence. Requests that the contested settlement be revoked due to contrary empire, with costs.
II) That on pages 62/64 back, the fiscal representation answers the transfer that was duly conferred on it. It denies each and every one of the facts and statements made by the opposing party, as well as the documentation attached that was not the object of its express recognition. It makes a brief summary of the facts. It emphasizes that the merchandise was recovered by the police and entered into the bonded warehouse of the plaintiff company, having subsequently proceeded to its nationalization, as stated on pages 47 of the ant. adm. It offers evidence. It requests that the appeal be rejected, with costs.
III) That at fs. 74 a measure is issued for better provision, which is produced at fs. 75/99, 116/124 and 130/136 of the proceedings, and at fs. 187/189 of the ant. adm. At fs. 137 the proceedings are elevated to Chamber E, which passes them on to judgment.
IV) That on pages 1 of file EAAA No. 38/96, there is SUMR No. 415/96 which requires information about the nationalization of the land transit requests detailed. On pages 2/37 there is added documentation relating to PTT Nos. 2318, 2321, 2330, 2343, 2381 and 2384, all of them from 1993. On pages 38/42 there is the International Cargo Manifest No. 12949 and 20246. On pages 44 the preliminary investigation is arranged. On pages 47 and 68/70 the accused respond to the hearing conferred. On pages 48 there is a police report dated 23/12/93. On pages 173/174, Resolution 189/00 of the Mendoza Customs appears on pages 177/178. On 14/6/2001, Resolution No. 0798/2001 was issued, approving the decreed dismissal.
V) That the contested resolution established the configuration of a fortuitous event in relation to PTTs 2318, 2321, 2330, 2343, 2381 and 2384/93, of the Mendoza Customs, in accordance with the provisions of art. 315 of the CA. However, in its art. 3º it resolved to notify the plaintiff of the payment of the taxes that it considered owed, since the latter did not communicate the incident in the terms of art. 308 of the CA.
Although it is true that the plaintiff did not make the communication of art. 308 of the CA, it is also true that this rule refers to cases of an accident that causes the deterioration, destruction or irreparable loss of the merchandise subject to the import transit regime, so that the customs service adopts the necessary measures to ensure the integrity of the merchandise and the conditions that allow the effective exercise of customs control. However, in this case, since the fortuitous case of the theft of the merchandise has been proven, it can be inferred that the purpose of the rule has not been violated.
So much so that the Supreme Court has held, in regard to internal taxes, that any event from which a difference arises in the articles subject to such taxes, must, as a principle, be immediately reported to the administration; that the lack of this timely report constitutes a serious element of judgment leading to the rejection of the evidence of discharge attempted by the taxpayer; but that, on the other hand, if the loss occurred during the regular transport of the merchandise, the transport company being national and if it has issued repeated official certification regarding the fire in which it occurred in intinere, the requirement of the taxpayer of another report of the fact other than the one made on the occasion of his information upon arrival of the merchandise is not pertinent, as well as the requirement of demonstrations beyond its scope (Cia. Nobleza de Tabacos SA, dated 9/3/53; Rulings, 225-159). Hence, Chamber C of this Court has held that if the loss of taxable goods occurred during regular transport, with the transport company being national and the official certification having been issued, it is not pertinent to require the taxpayer to report the fact in any other way than the one made at the time of the information provided to him upon arrival of the goods, nor to require demonstrations outside its scope (CINBA SA, dated 22/10/98).
That, on the other hand, art. 315 of the CA provides: Merchandise irremediably lost due to an accident occurring during its transport under the import transit regime and which has been communicated in accordance with the provisions of article 308 is not subject to the taxes that tax its importation for consumption, except for the fees accrued for services, provided that the cause invoked is duly accredited to the satisfaction of the customs service. Merchandise will not be considered irremediably lost when, despite not being able to be recovered by its owner, it could be used by a third party.
In the sub-lite it should be noted that the theft of the merchandise did not prevent its use by a third party.
In this regard, the Supreme Court has held, although in the area of internal taxes, that the cigarettes stolen before their delivery for consumption are not refundable, since the factual assumption provided for by law was established with the departure of the products from the factory. In addition, the stolen merchandise had tax stamps attached, so the repetition of such taxes is not appropriate, since there is no material possibility that these stamps will be invalidated or returned to the DGI (Nobleza Piccardo SA, dated 30/6/98; Fallos, 321-1812).
Although on pages 47/vta. of the previous administrative proceedings the carrier claims that the stolen goods were promptly recovered by the police and taken to the Bonded Warehouse of the CIADEA SA firm, and that they were subsequently nationalized due to the payment of taxes, as can be seen from file EA 17-94-683, such assertion has not been proven.
That, in effect, in relation to the better provision measure provided for on page 109 of the proceedings, the appellant states on page 136 that the taxes have not been paid as a result of the corresponding liquidation being questioned, due to not sharing the amount and cause thereof and attaches the proof of payment of taxes related to file EA 17-94-683, which do not refer to the present case.
That file EA 17-94-683 (see pages 130/136) is linked to file SA No. 38/96-149 (administrative background of file No. 15.827-A, of the same title as this one, the referral of which was ordered ad effectum videndi), since its verification does not show that it is related to the sub-lite, since the theft reports that appear in SA No. 38/96-149 and in SA No. 38/96-148 (background of the case that I voted on), referred to merchandise transported in different vehicles and to different complainants: in the first one, the PEGASO brand truck, model 1980, domain GH 6045, and the FARGO brand trailer, model 1976, Domain DID 743; the complainant was Mr. Sergio Roberto Aguilar Apablaza (page 28 of file SA 38/96-149). However, in the case being sentenced, the theft of the merchandise transported in the truck RENAULT GT 290, model 1991, license plate DN 7902, trailer DIA 137 was reported, the complainant being Julio César Carrasco Isla (page 48 of file SA 38/96-148). Regarding the difference between both complaints, see page 152 of file SA No. 38/96-148. Also note that the knowledge involved is different (page 84 of file SA 38/96-149 and page 1 of file SA No. 38/96-148).
VI) That with respect to the questioned taxes, it should be noted that as a result of the better provision measure provided for on pages 74- the customs carried out the liquidation of pages 187/189 of the ant. adm., recognizing preferential treatment to PTT 2381/93 and 2384/93.
That, however, it observed that preferential treatment could not be granted to PTTs 2318/93 and 2321/93 because the date of the certificates of origin can never be earlier than the date of the commercial invoice.
That these observations are not valid, given the doctrine of the Supreme Court in the judgment of 21/12/99 in Ciadea.
That with regard to PTT 2343/93, customs considered that preferential treatment could not be granted due to the lack of a date on the certificate of origin. However, the original certificate of origin shown on page 39 of the file shows that it was issued by the certifying authority on 7/12/93, and it can be seen that the stamp relating to this date was placed with little ink, which would have caused it not to be visible in the photocopy on page 79 of the administrative records.
Regarding PTT 2330/93, the customs claimed that the commercial invoice had not been provided and the relevant controls could not be carried out. However, the commercial invoice No. 7229 to which the customs refers is found on page 26 of the proceedings and is consistent with the certificate of origin on page 27 of the proceedings. Therefore, nothing affects the preferential regime.
That, consequently, preferential treatment should be given to PTTs 2318/93, 2321/93, 2330/93, 2343/93, 2381/93 and 2384/93.
Therefore, I vote for:
1º) Modify art. 3 of Resolution/Judgment No. 189/00, in the manner arising from section VI of this vote. Costs according to the due dates.
2nd) Order the DGA to carry out liquidation, within a period of 60 days, in accordance with the guidelines in section VI of this document.
3rd) Once the liquidation has been approved, within a period of five days, the plaintiff must pay the remainder (that may result) of the fee for proceedings provided for in Law 22.610 and amendments, under penalty of issuing a certificate of debt.
Dr. Winkler said:
I agree with the preceding vote.
Dr. Gustavo A. Krause Murguiondo said:
That substantially agrees with the vote of Dr. García Vizcaíno.
In accordance with the above agreement, it is unanimously RESOLVED:
1º) Modify art. 3 of Resolution/Judgment No. 189/00, in the manner arising from section VI of this vote. Costs according to the due dates.
2nd) Order the DGA to carry out liquidation, within a period of 60 days, in accordance with the guidelines in section VI of this document.
3rd) Once the liquidation has been approved, within a period of five days, the plaintiff must pay the remainder (that may result) of the fee for proceedings provided for in Law 22.610 and amendments, under penalty of issuing a certificate of debt.
Register, notify, and promptly return the administrative records and archives.
