Administrative procedure. Request for refund of taxes. Nullity of Res. 3428/96.
TAX COURT OF THE NATION.
In Buenos Aires, on the 8th day of the month of November 2004, the members of Chamber "E", Drs. D. Paula Winkler and Catalina García Vizcaíno, met, with the presiding Judge appointed second, in order to resolve the proceedings entitled: "SADIA ARGENTINA SA s/ rec. de desafio", File No. 17.465-A;
Dr. Winkler said:
I.- That on pages 37/44 the signature of the epigraph, through an attorney, files an appeal for delay, dated 7.8.02. It requests that this Tax Court address the merits of the issue raised in file ADGA No. 449.706/99 and grant the request for a refund of the amount overpaid as a statistics fee with respect to the days indicated. It also requests a refund of the amount paid pursuant to the provisions of Res. 3428/96. On pages 69/73, the plaintiff reports a new fact and informs that on 14.11.02/1157/02, the Paso de los Libres Customs Office issued provision No. 3/3, by which it resolved to archive the request for repetition formulated, invoking the application of Annex II, Point 3428, subsection b), 96rd paragraph of Res. 29153/3. The Court states that the company carried out import operations of goods originating in Brazil, through documents No. 29197-7, 29198-4, 29205-5, 29206-2, 29207-9, 29514-6, 29526-9, 29638-5, 29795-1, 1.994-10, all from 686, paying in relation to them the rate of 4% as a statistical tax. It indicates that the Paso de los Libres customs decided to archive the request for repetition, arguing that the firm did not present the original OM XNUMX-B element XNUMX and/or the corresponding bank certification, since it failed to consider the payment evidence presented in the proceedings. It adds that the ruling issued is untimely because it was issued after the filing of the delay appeal was communicated. He also reiterates that the evidence provided confirms payment of the taxes, and that the customs office is being excessively strict. He reserves the right to appeal the federal case. He offers evidence and requests that the appeal be allowed and that the processing of the appeal be continued due to delay.
That on pages 84/85 it is ordered to reframe the appeal for delay in the appeal against Provision No. 1157/02 issued by the Administrator of the Paso de los Libres customs in the terms of section 1) inc. a) of art. 1132 of the CA and the plaintiff is informed that the other issues raised in the presentation of pages 69/73 and back will be resolved at the appropriate procedural time, as well as the initial presentation of pages 37/44, in order to preserve the right to due process of the Treasury.
II.- That on pages 92/96 the tax authority contests the transfer conferred. It states that the refund was submitted without complying with the requirements of the cited customs resolution. It states that said resolution has been issued in accordance with the general rules of the customs code and that therefore it is unquestionably covered by all legality. It adds that OM 1724 contains a commitment signed by the petitioner by which he assumes the obligation to appear to be notified of the observations that were formulated and to comply with the requirements that were made to him, producing in case of non-appearance the withdrawal of the request and its consequent filing. It states that the evidence provided by the opposing party was never recognized, nor was it understood that the legal requirements to access the benefit were fulfilled. Consequently, it requests that the claim be rejected, with costs.
That at fs. 115 the case is opened for evidence, a period that closes at fs. 170. Once the files have been submitted to Court E, they are placed for argument. At fs. 181/182 are the arguments of the Treasury and at fs. 183/188 back, those of the plaintiff. At fs. 190 the files are submitted for judgment.
III.- That the act of general scope contained in Res. No. 3428/96, which has been issued in exercise of the powers conferred by art. 23, paragraphs i and j) of Law 22.415 and by art. 12, paragraph g) of Law 22.091 cannot, in my opinion, have the scope intended here.
It is true that art. 1 of point A) of Annex II of the same textually provides that the following documentation "must be added to the Form prior to its presentation." Said documentation, among others, consists of the "original of copy No. 4 of the Deposit Slip or, failing that, certification issued by the Banco de la Nación Argentina."
That inc. b) of art. 3 sanctions with the tacit withdrawal of the claim those who have not complied with the missing requirements in the observations, "of which the interested party will be notified at the time of his appearance in accordance with the obligation assumed by signing OM 1724-B."
That consequently, in the respective forms in which the plaintiff requested its return, there is a legend that reads: "I hereby assume the obligation to attend to notify me of the observations that are formulated to this management within a period of three (3) days counted from the fifth (5) day of the officialization inclusive, and to comply with the requirements within a period of ten (10) days of said notification. If I do not do so, I am notified in accordance that the request will be considered withdrawn and its archiving will be arranged, without prior notification." Said legend, as an integral part of the form, has been signed by the attorney representing the appellant.
IV.- That in the field of the "observations" of the same it was recorded with respect to the di Nos. 29.153-3, 29.197-7, 29.198-4, 29.205-5, 29.206-2 and 29.207-9 "You must attach original element No. 4 OM 2204 and original element No. 4 OM 686-B and/or bank certification (see pages 1/6 ant. adm.), and with respect to the di Nos. 29.514-6, 29.526-9, 29.638-5 and 29.795-1 "You must attach original element No. 4 OM 2204" (see pages 7/10 ant. adm.).
That arises from the administrative acts that the appellant has attached the original copy 4 of the deposit slip OM 686-B regarding the di Nos. 29.514-6, 29.526-9, 29.638-5 and 29.795-1 and element 5 regarding the other di involved.
That the repetition procedure is an administrative procedure and, as such, although it has specific regulatory standards in customs regulations, it shares its characteristics and its own general principles govern it.
V.- That the LPA prescribes that the administration may exercise the power to declare the expiration of the procedures in the event of inactivity of the party for a certain period, after which if within another additional period the party does not appear at the administrative headquarters, the same is declared ex officio. However, this declaration does not prevent the administered from raising its claims again in another file (see ap. 9, paragraph e) of art. 1) and the doctrine has provided that it should not be interpreted that the expiration operates automatically on the basis that such an effect would not harmonize with the principle of informality in favor of the administered, since this would be to attribute a formally more rigorous consequence to the expiration of the terms of the law. As a result, despite the inactivity of the administered party, it was considered that the expiration does not operate automatically, and the administration may order the continuation of the procedures despite the passage of the expiration periods (COMADIRA, Julio R. "Abnormal modes of termination of the administrative procedure", JA, 1976, Volume IV, p. 630 and CASSAGNE, Juan Carlos, "Administrative Law", Abeledo-Perrot, 1985, Volume II, p. 433), a doctrine that I fully share.
Following the principles of informality in favor of the administered and the right to due process, art. 66 of the LPA regulations has literally provided: "Any withdrawal must be formulated reliably by the interested party, his legal representative or attorney."
Therefore, in my opinion, the rule of the resolution invoked by the customs and mentioned above when establishing that the withdrawal becomes tacit exceeds its regulatory framework of relevance, by considering the same as a sanction for mere formal non-compliance.
That the fact that the plaintiff's attorney signed the form does not hinder the above. Such subscription does not imply voluntary submission to the regime, nor does the dispute in the proceedings regarding the decision imply violating the doctrine of proper acts, since the decision in question that motivated it has been challenged through an act of individual application, by means of the present appeal.
VI.- That art. 1165 of the CA provides that "The Tax Court may declare in a specific case that the ministerial or administrative interpretation applied does not conform to the interpreted law."
That the CA does not foresee the sanction imposed by the resolution in question and, by not expressly regulating the institute of withdrawal, it becomes subsumed in the regulatory norms of the national law of administrative procedure and its regulatory decree by imposition of section 1 of art. 1017 of the aforementioned normative body.
VII.- That art. 66 of the regulations of said law, as I said, textually provides that "all withdrawal must be formulated reliably by the interested party, his legal representative or attorney", that is to say, it prevents tacit withdrawals from being considered as existing.
That a regulation has as its principle the respect for the superior hierarchical norm.
Therefore, the ex-ANA resolution No. 3428/96, insofar as it provides in section b) of point 3 of section A of Annex II that the "TACIT DISMISSAL of the claim shall be carried out without fail, ordering without further ado, by means of a decision signed by the Head of the area, the archiving of the proceedings (...), in imposing said sanction has exceeded, in my opinion, the regulated norm.
Since no question of unconstitutionality of said rule has been declared or is being reviewed, this Court is not precluded from declaring the present. Indeed, art. 1165 states that the "Tax Court may declare in a specific case that the ministerial or administrative interpretation applied does not conform to the interpreted law."
That inc. i) of the repealed art. 23 of the CA by the decree, now in force, 618/97 on the basis of whose norm the resolution in question was issued, established that the Customs administrator was authorized to "impose general norms for the interpretation and application of the laws and regulations on the subject" - it is assumed that he was careful not to violate its spirit and not to contradict its norms.
VIII.- That resolution No. 3428/96 constitutes what the doctrine has called "executive regulation" in the sense that its norms complete and assist in the application of the law and its regulations. This is not an obstacle to the application of art. 1165 of the CA in accordance with the arguments I have been setting forth (see, among others, judgment of 25.2.00, in re Pasa SA, my vote).
That the resolution, whose illegitimacy is now declared, having served as motivation for the contested act, the same must fall and in this sense it should be left without effect.
Furthermore, it should be noted that former ANA Resolution No. 3428/96 has been partially repealed by Res. No. 35/2002 (BO 30.9.2002), since it annulled the payment of the $200 fee.
IX.- Having clarified this, it is necessary to analyze whether it is possible to process the initiated repetitions with the accompanying copies.
That from the records it arises that the copies of element 4 of the payment slips of the Banco de la Nación Argentina have been certified by the banking entity.
That the data arising from the certified copies are consistent with those contained in the originals, elements 4 and 5, as indicated - which are contained in the administrative records.
That, consequently, the customs requirement is clearly a ritual excess if it is intended to curtail the appellant's right to repeat what he requests. In this sense, the Treasury's solution has been, in my opinion, unreasonable, since reasonableness is an unnamed guarantee of the National Constitution and, as such, an obligatory source of all government acts.
Furthermore, it should be noted that the zonal origin of the merchandise has been accredited by means of the co-additions in the ant. adm. (the original of co N° 7689/94 appears on page 104 of the file).
X.- That as regards the substantial merits of the plaintiff's claim, it is appropriate to refer to what I duly ruled in re: Trumar SAIC, judgment of 30.9.97 of this Court, in which I held -in what is of interest here
That, consequently, the issue in question must be analyzed within the regulations of AAP/CE No. 14 or simply ACE No. 14, signed on December 20, 1990 between Argentina and Brazil…
That in the Complementary Notes referring to Argentina it is stated that The importation of products negotiated by the Argentine Republic is subject, without prejudice to the conditions established for each case, to compliance with the following provisions: … 3. Law No. 23.664 of 1/VI/1989. Establishes the collection of a statistical tax in the amount of 3 percent applied to the CIF value, and is payable at the time of liquidation of the corresponding import duties.
That, consequently, in accordance with the treatment provided for in ACE No. 14, the import carried out under its protection was taxed at a rate of 3% as a statistical fee and not 10% as the plaintiff paid it and is the opinion of the defendant.
Although it is true that decree no. 1998/92 (October 30, 1992), which increased the statistical tax rate from 3% to 10%, is subsequent to the agreement where it had been negotiated at 3%, given that we are dealing with regulations of different normative hierarchy, it is clear that the principle stating that the later regulation repeals the previous one is not applicable since, as will be seen, it is possible to agree preeminence to what the signatory countries decide in the respective international treaties. Otherwise, in addition to the legal principle of constitutional roots that is applicable, local governments would be granted powers to easily abrogate those agreements, which in addition to being unlawful, is totally unreasonable and contrary to the principle of good faith, which also governs the international community.
That, in effect, ACE No. 14 has the nature of an international treaty, in accordance with the provisions of Article 2 of the Vienna Convention of May 23, 1969 on the law of treaties, approved by our country by Law 19.865. In said Convention, the principle pacta sunt servanda is enshrined in Article 16 in the following terms: Every treaty in force is binding on the parties and must be complied with by them in good faith, with Article 27 specifying that A party may not invoke the provisions of its internal law as justification for non-compliance with a treaty.
That, in this regard, that is to say, regarding the inapplicability of an internal rule that would modify an international treaty without this being expressly stated, the Supreme Court of Justice of the Nation has had the opportunity to issue a ruling, among others, in re: CAFE LA VIRGINIA, dated October 13, 1994.
That, on the other hand, the National Constitution, after the reform of 1994, establishes in its article 75, section 22, that `Treaties and concordats have a higher hierarchy than laws
XI.- That, pursuant to the foregoing, it is appropriate: 1) To declare the nullity of resolution 3428/96 in the present case and to resolve the pending merits; 2°) Consequently, to uphold the appeal filed and consequently, to uphold the attempted repetition for the sum of $23.025,14 (twenty-three thousand twenty-five pesos and fourteen cents), plus the corresponding interest from 29.12.99/25.344/25.725 to the date of full and effective payment. However, for the accrual of interest and payment, it must be taken into account that the debt is consolidated under the terms of Law No. 58, extended by Law No. 3 art. 4-; 1166º) Costs to the Treasury; XNUMX°) Once this is made final, let the DG.A. carry out the liquidation in the terms of art. XNUMX of the CA SO I VOTE.
Dr. Catalina García Vizcaíno said:
Whatever the criteria that is supported regarding the legality or not of ANA Resolution 3428/96, it does not arise that the appellant in the sub-lite had voluntarily accepted the aforementioned tacit notification regime, so that the doctrine of own acts could be opposed to it, since in point VIII of the written justification of the claim for repetition the appellant expressed that: In relation to the commitment indicated in form OM 1724 B, I request that you kindly notify at the legal address established in case there are any observations regarding this procedure, taking into account the time that it generally entails, which is longer than the deadlines indicated there and in accordance with the administrative practice that the customs service has been carrying out in relation to it (fs. 14 back of the ant. adm.).
In addition to the above, art. 66 of the DR of the LN .PA states that: All withdrawal must be formulated in a reliable manner by the interested party, his legal representative or attorney. This provision is applicable in a supplementary manner to the customs repetition procedure in accordance with decree 722/96.
That Chamber III of the CN. Cont.-Adm. Fed. has held that although the withdrawal does not require sacramental formulas, it must be reliable, true and leave no doubt (Military Manufacturing Directorate, 17/10/82, cited by Tomás Huchinson, Administrative Procedures Regime, p. 318, Astrea, Buenos Aires, 1998).
That, therefore, in the present case it can be inferred that the appellant cannot be considered to have withdrawn her claim for repetition, especially since the principle of the inviolability of the defense in court is involved.
That, on the other hand, the question regarding the illegality of Resolution 3428/96 insofar as it provides for tacit withdrawal was sufficiently studied in the vote of Dr. D. Paula Winkler (to which I referred in substance) in the judgment issued in PASA SA on 25/2/00, as well as in the preceding vote.
In all other respects I agree with the above vote.
That's how I vote.-
Pursuant to the foregoing vote, IT IS RESOLVED:
1) Declare the nullity of resolution 3428/96 in the present case and resolve the pending merits.
2°) Consequently, to uphold the appeal filed and consequently, to uphold the attempted recovery for the sum of $23.025,14 (twenty-three thousand twenty-five pesos and fourteen cents), plus the corresponding interest from 29.12.99/25.344/25.725 to the date of full and effective payment. However, for the accrual of interest and payment, it must be taken into account that the debt is consolidated under the terms of Law No. 58, extended by Law No. XNUMX, art. XNUMX-.
3rd) Costs to the Treasury.
4°) Once this document is signed, the DG .A. will carry out the liquidation in accordance with the terms of art. 1166 of the CA.
Register, notify, promptly return and archive the administrative records.
This document is signed by Dr. Winkler and Dr. García Vizcaíno, as the position of Member of the 14th Nomination is vacant (art. 1162 of the CA).
