In Buenos Aires, on the 9th day of September 2003, the members of Chamber E, Drs. Catalina García Vizcaíno, D. Paula Winkler and Gustavo A. Krause Murguiondo, met, with the last appointed member presiding, in order to resolve the case entitled RODRíGUEZ JORGE OSCAR v. DGA s/ appeal; file No. 17.746-A
I) That on pages 15/18 back, Jorge Oscar Rodríguez, in his own right, files an administrative contentious claim against Resolution No. 104/01, dated 14/05/01, issued in proceedings No. SA-49-010/2000, for which he was charged $9481,35 in taxes, and at the same time he was definitively dismissed for violating art. 970 of the CA. He states that he was the owner of the Kia vehicle, license plate VBQ 670, which he drove to Buenos Aires on 10/7/98 with a temporary exit permit N° 8538 for a period of 60 days, and that it was stolen from him on 31/7/98, a fact that he brought to the attention of the Ushuaia Customs on 14/8/98, but that the latter charged him with taxes. He refers to the appealed Resolution and states that the existence of theft or robbery would eliminate any possibility of reproach, and that he should therefore be exempt from punishment. He maintains that the status of victim is evident, and that it is an excess on the part of the administration to impose a tax penalty on the basis of hypothetical assumptions, when the interpretation that should be adopted would be linked to the principle in dubio pro reo. He understands that by elevating the proceedings to the higher court in the terms of art. 1115 of the CA, there would be a case of double jeopardy. He emphasizes that there was no fraud, fault or prejudice to the State that would allow the imposition of a sanction of any nature. He adds that the passage of time without the vehicle being located must be interpreted in the sense of art. 360 of the CA as to consider the merchandise irremediably lost due to chance or force majeure. He indicates that the tax imposition is excessively burdensome, acquiring a confiscatory nature that threatens his assets. He offers evidence, reserves the federal case and requests that the appealed resolution be revoked insofar as it has been the subject of appeal. Alternatively, he requests that the amount of taxes be recalculated so that it does not become confiscatory.
II) That on pages 38/39 back, the intervening Court declares itself incompetent to hear the proceedings since they only deal with a tax settlement, and orders their referral to this Tax Court.
III) That on pages 60/61 the actor invokes the application of art. 360 of the CA in a broader manner, since when dealing with the theft of a motor vehicle, being a registrable movable property for which there is a theft report and its corresponding seizure order, this property lost its quality as such and its essential characteristics, given that its use and enjoyment in the usual and normal ways would be impossible.
IV) That on pages 67/71 the fiscal representation answers the transfer that was duly conferred upon it. It makes a brief summary of the actions and the grievances expressed by the plaintiff. It refers to the concept of temporary import suspensive destinations and cites art. 250 of the CA. It states that according to the Temporary Import Regime, the temporarily entered merchandise is subject from that moment to the fulfillment of a condition and this is the re-exportation before the expiration of the agreed term, from which it would be deduced that whoever presents such a request assumes the tax and penal consequences that such non-compliance entails. It considers that the punishable conduct materialized (sic, it does not take into account the dismissal) when the plaintiff did not comply with the obligations assumed as a consequence of the benefit of the temporary import, making the sanction imposed by the judgment that is aggrieved appropriate. It cites jurisprudence. The Court maintains that the failure to comply affects the purpose taken into account for granting the aforementioned regime. It concludes that the General Directorate of Customs has taken into account each and every one of the records in the case file as well as the current regulations to establish the sentence imposed in the appealed ruling. It reserves the right to appeal the federal case and requests that the appealed ruling be confirmed, with costs.
V) That on page 83 the warning provided for on page 80 is made effective, elevating the proceedings to Chamber E, which passes them on to sentence.
(VI) That on pages 1/2 of file SA 49-10/00 there is a complaint regarding temporary exit permit No. 8538 corresponding to the KIA brand vehicle, domain BUQ-670, property of the appellant, with a term granted for 60 days, which operated on 8/9/98, its entry was not registered. On pages 4, on 14/8/98, the appellant states that he was on vacation in the City of Buenos Aires, when on 31/7/98 at 10 a.m. he left his vehicle parked in Pje. Mirasol, between Ramón Falcón and Ibarrola in the Federal Capital, to carry out some procedures, and that upon returning to pick it up he noticed that it had been stolen, for which reason he filed the relevant complaint at the 44th Police Station. On pages 5 there is the coverage certificate issued by Omega Seguros and on pages 6 copy of the vehicle title. On pages 7 the certificate of complaint for the KIA PRECIO 3.0 combi, license plate BVQ 670, is glossed. On pages 13 the appraisal of the order is carried out ex officio. On pages 14 the taxes are settled. On pages 15 the opening of the summary is ordered and the appellant is given notice, who appears on pages 21/23 back. On pages 37/50 the case of Court No. 22 in Criminal and Correctional Matters, Secretariat 148 entitled NN s/ theft of a motor vehicle or vehicle on a public road is attached. On pages 51/53 Opinion No. 089/01 is issued and on pages 54/57 Resolution No. 104/01 is issued, appealed as to the tax settlement. On pages 61/62 the dismissal is approved by Res. 1066/2001 (SDG OAI).
VII) That the contested resolution considered that theft was sufficiently proven as a cause of force majeure, preventing the return of the vehicle in question to the Special Customs Area, a circumstance that allows concluding the exclusion of disciplinary reproach in the matter of infraction. However, it formulated a charge for taxes, considering the exception provided for in art. 360 in fine of the CA applicable due to the possibility of use of the merchandise by a third party.
That the tax settlement on page 14 of the previous administrative proceedings that gave rise to the challenged charge settled import duties, value added tax (which taxes the definitive import of movable property; exports are not taxed), additional VAT or VAT collection and income tax collection.
This implies that, although the customs office invoked art. 360 of the CA regarding temporary exports (which provides for the application of taxes that tax exports for consumption, except for fees accrued for services), it actually settled the taxes on imports for consumption according to the provisions of art. 261 of the CA.
VIII) That, in the first place, the appellant's claim regarding the violation of the principle of non bis in idem by the Superior Court's approval in the terms of art. 1115 of the CA (see pages 16 back/17 of the proceedings) cannot prosper, especially since the dismissal was approved, without aggravating the charge for taxes formulated by the appealed resolution. Consequently, no specific harm was caused or could have been caused to him by the issuance of Res. 1696/2001 (SDG OAI).
That, on the other hand, I have maintained that the principle of non bis in idem prevents double prosecution in successive cases, but does not prohibit judgment by different instances through the remedies provided for in the legal system, within a single process. Let us note that the international treaties mentioned [art. 8, section 4 of the American Convention on Human Rights and art. 14, section 7 of the International Covenant on Civil and Political Rights] refer to the requirement of a final judgment for the admissibility of such principle (Tax Law, Volume II, pp. 98/99, 2nd Edition, Depalma, Buenos Aires, 2000).
IX) That having established the above, it is appropriate to decide whether the theft, which the customs considered to have been proven in the contested resolution, can exempt the payment of taxes on imports for consumption.
That art. 261 of the CA provides that: Merchandise that is totally destroyed or irremediably lost due to chance or force majeure during its stay under the temporary import regime 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.
Regarding the theft of merchandise in general, the Supreme Court has held, although in the area of internal taxes, that there is no need to refund the stolen cigarettes before they were delivered for consumption, since the factual condition provided for by law was met with the departure of the products from the factory. Furthermore, the stolen merchandise had tax stamps attached to it, so there is no need to repeat such taxes, since there is no material possibility that these stamps will be invalidated or returned to the DGI (Nobleza Piccardo SA, dated 30/6/98; Judgments, 321-1812).
That, however, in the present case the appellant has not requested the refund of any tax, but rather the revocation of the charge for import taxes for consumption, in light of the theft of the vehicle.
I believe that you are right, since the vehicle is a registrable thing and as such, in order to be used by a third party, it requires legitimate documentation that the appropriators cannot have in their possession.
So much so that, with regard to art. 261 of the CA, it has been said that the temporary importer cannot be held responsible for the rights on that definitive import, which should be the responsibility of the subtractor, in addition to the corresponding penalties for the illicit act committed (Tosi, Jorge Luis, Código Aduanero- Coñado y Anotado, p. 341, Editorial Universidad, Buenos Aires, 1997).
That, on the other hand, the event giving rise to the tax obligation was not due to a lawful import provided for in art. 637 of the CA, and it is appropriate to rule out that the appellant had committed an irregular import as contemplated in art. 638 of the CA, taking into account that the theft was perpetrated prior to the expiration of the period granted and, especially, by virtue of the dismissal decreed by customs.
X) That, due to the difficulties of the issue raised, for which the customs could plausibly consider itself entitled to litigate, I favor not imposing costs on the Treasury.
That as I held in the judgment issued in Molinos Río de la Plata, dated 16/11/00, although Law 25.239 (Official Gazette 31/12/99), which modified art. 184 of Law 11.683 - as amended in 1998 and authorised the defeated litigant to be exempt from costs with justification, has not expressly reformed art. 1163 of the CA (according to Decree 1684/93), it should be noted that art. 1140 of the CA provides that: The seat of the Tax Court (…), the plenary sessions, the calculation of terms, the regulations and other powers shall be governed by the customs order in accordance with the provisions of the relevant provisions of Law 11.683 (emphasis added in this opinion).
That undoubtedly falls within the concept of powers those relating to the respective chamber to exempt the defeated litigant totally or partially from this responsibility [of payment of costs], provided that it finds merit for doing so, expressing it in its ruling under penalty of nullity of the exemption (art. 184 of law 11.683, according to the modification introduced by law 25.239).
Therefore, I vote for:
Revoke Resolution No. 104/01 of the administrator of the Río Grande Customs Office regarding the tax charge formulated in its points 3 and 4. Without costs.
Dr. Winkler said:
I agree with the preceding vote.
Dr. Gustavo A. Krause Murguiondo said:
Which refers to the statement of facts contained in the preceding vote.
The undersigned considers that resolution No. 104/01 should be confirmed in its articles 3° and 4°, since both article 261 and article 360 do not exempt from the payment of taxes, if the property in question can potentially be used by a third party.
That the possibility of the use of the thing by a third party is obviously typical of cases of theft or robbery, which, although they constitute an act of God or force majeure, do not exempt from the payment of taxes.
That the fact that the vehicle is a registrable asset does not prevent its use by a third party, even if its use were illegal, in the same way that theft or robbery was illegal.
That under the Customs Code, the use of the benefit of temporary import or export implies for the beneficiary the obligation to respond for the payment of taxes in the event of non-compliance with his obligations, in the terms of arts. 261 and 360, and he is the subject who must comply with them, regardless of the situation of those who carried out the illegal acts that gave rise to the fortuitous event or force majeure.
That, for all the above, I vote for:
Confirm arts. 3° and 4° of resolution No. 104/01. With costs.
In accordance with the above agreement, by majority, IT IS RESOLVED:
Revoke Resolution No. 104/01 of the administrator of the Río Grande Customs Office regarding the tax charge formulated in its points 3 and 4. Without costs.
Register, notify, promptly return and archive the administrative records.
