In Buenos Aires, on the 25th day of August 2003, the members of Chamber E, Drs. Catalina García Vizcaíno, D. Paula Winkler and Gustavo A. Krause Murguiondo, with the last-named member presiding, met in order to resolve the case entitled: SCANIA ARGENTINA SA v. DGA s/ appeal; file No. 16.535-A.
Dr. Catalina García Vizcaíno said:
I) That on pages 18/21 back, Scania Argentina SA, through its attorney, files an appeal against Resolution No. 4555 issued by the Customs Legal Procedures Department of the General Directorate of Customs on 31/7/01 in file No. 601.590/00. It states that through temporary import clearance No. 1793-6/97, various parts and pieces destined for the manufacture of gearboxes were entered, which customs considered had not been re-exported. It indicates that before the expiration date, the plaintiff requested an extension of the term until 13/5/99. It indicates that from the lists that it says it encloses, it appears that the merchandise imported temporarily was mostly exported within the term granted. It states that the nationalization of the parts was done out of term, a few days after the expiration date. The petitioner points out that the fine should be assessed on nationalized parts. The petitioner complains about the assessment of taxes made by the customs service, considering that the company dedicated to the automotive industry pays 2% of the import duty when importing the merchandise from outside the zone and that it is exempt from paying the additional VAT and from collecting the income tax. As for the graduation of the fine, the petitioner believes that it is appropriate to graduate the fine in one time the amount of the taxes, considering that the petitioner has only one previous infraction, as reported in the appealed Resolution. He offers evidence and requests that the appealed Resolution be revoked, ordering a new reassessment of the fine, with costs.
II) That on pages 32/39 the prosecution's representative answers the transfer that was duly conferred upon it. It denies each and every one of the facts and rights invoked by the opposing party that are not the subject of an express recognition on its part or arise from the administrative proceedings. It makes a brief account of the facts. It states that according to the temporary import regime, the merchandise entered is subject from the moment of issuance to the fulfillment of a condition, which is the re-exportation before the expiration of the agreed term. It adds that it arises from the reading of the proceedings that the appellant temporarily imported the merchandise in question, but the same did not occur with respect to the fulfillment of the obligation that the regime entails, as regards the merchandise covered by DIT No. 1793-6/97. It points out that the accused did not appear at the appropriate procedural stage to make her defense, nor are there elements in the administrative file that allow the imputation of the infringement to be refuted. The plaintiff alleges that DI No. 99-073-IC81 119M is untimely (4/6/99), compared to the expiration of DIT 1793-6/97, which took effect on 13/5/99. The plaintiff maintains that the burden of proof, given the failure to comply with the obligations inherent to the suspensive import destination regime, falls on the importer. He cites case law. He argues that the excuses raised by the plaintiff in order to reverse the terms of the imposed sentence are not sufficiently significant. He offers evidence. He requests that a judgment be issued, confirming the appealed customs ruling, with express imposition of costs.
III) That at fs. 43 the case is opened for evidence, which is produced at fs. 53/66, 70/83 and 95/113. At fs. 136 the undersigned dictates a measure to better provide which is produced at fs. 150/159, 166/168, 186/197 and 205/209. At fs. 211 the proceedings are moved to argument, the argument being produced at fs. 218/219, without the Treasury making use of that right. At fs. 221 the proceedings are called to sentence.
IV) That on pages 2/5 of file No. 700.925/00 there is a copy of Import Clearance No. 1793/6 dated 21/05/1997, by which 400 rotary volumetric displacement gear pumps for gearbox lubrication systems were temporarily imported (part No. 1120646), 198 crowns (part No. 1118030), 4 cylinders (part No. 0384330), 1800 shift selector fork skates (part No. 1105282) and 4 complete gearbox turrets (part No. 1308607). On pages 6 shows a copy of DI 99.073 IC 81 000119 H, dated 4/6/99, which covers the 1800 skates referred to. On pages 19/23, a complaint is filed against the firm for alleged violation of art. 970 of the CA, given that it had not regularized within the term granted the situation of the merchandise temporarily entered through DIT No. 1793-6/97 and whose expiration was in effect and was nationalized late by means of import for consumption No. 99-073-IC 81 119 H. On pages 27, the opening of the summary is ordered in the terms of art. 1090 inc. c) of the CA. On pages 32, the accused is declared in default. On pages 35/37 back. the insurer appears to be in the right. On pages 43 back. It is clear that the appellant has only one criminal record. On pages 47/48, Resolution No. 4555, dated 31/7/01, is issued, which is the subject of the appeal.
V) That art. 970 of the CA in its section 1) provides that: Whoever does not comply with the obligations assumed as a consequence of the granting of the temporary import regime or the temporary export regime, as the case may be, will be sanctioned with a fine of one to five times the amount of the taxes that tax the import for consumption or the export for consumption, as the case may be, of the infringing merchandise, a fine that may not be less than thirty percent of the customs value of the merchandise….
That the offence attributed by customs is not purely formal, and the existence or not of fiscal damage is not relevant for this purpose, since the benefit of temporary importation is provided that the merchandise is re-exported on time (art. 250 of the CA), or its importation is eventually converted into a definitive one, for which the relevant request must be made within the time limits provided for in art. 271 of the CA. If an extension is requested, the requirements and terms of art. 266 of the CA must be met.
That the appellant only considers the 1800 skates documented by the DI for consumption No. 99-073-IC 81 119 H, made official on 4/6/99, to be in violation, while the expiration of the temporary permit in question expired on 13/5/99.
That on page 114 of the file the fiscal representation states that the plaintiff did not accompany the computerized forms of the download of the parts of the DIT in the folders of the Shipping Permits Nos. 50.252-1/97, 50.776-2/97, 50.216-3/97, 50.214-9/97, 50.649-3/97, 50.476-3/97 and 50.493-0/97.
That from the examination of the attached boarding permit folders it appears that the appellant did not include any DIT in them.
That, consequently, the undersigned issued the measure to better provide for fs. 136 of the proceedings, from the result of which it arises that the data entered in the form Annex I General Instruction 479/1995 are correct, each of the items of Annex I being included in the details of imported inputs shipped in each shipping permit of those referenced -see fs. 3, 4 and 71 of file Action Note No. 196/03 (DV TRIB)-.
That, consequently, and dealing with criminal matters, the charges made in the aforementioned Annex I must be considered valid, and therefore, taking into account the administrative background, as well as the result of the measure to better provide for the case arranged by the undersigned, I prepare the following table.
Number of imported pieces Shipping permit Exported quantities
Number of imported parts Boarding Permit Exported quantities 1120646 (400 bombs) TBU
TBU
TBU
TBU
50649-3172
60
40
100
281118030 (198 crowns) TBU
TBU
TBU
TBU
TBU36
7
21
98
360384330 (4 cylinders) 50476-3 4 1105282 (1800 skates) Extemporaneously nationalized by DI. to consumption No. 99-073-IC 81 119 H 1308607 (4 gearbox turrets) TBU 4
It follows from the above that only the 1800 skates (part number 1105282) should be counted as infringements, due to their late nationalisation.
VI) I estimate that the fine should be graduated at one and a half times the value of the taxes that tax the importation for consumption of the merchandise in violation, without taking into account the additional right of Res. ME 72/92 or the collections of income tax and VAT. This is so, since it arises from fs. 43 back. of the ant. adm. that the defendant has only one prior record.
Since the customs value of the merchandise in violation is $2459,69 (see DI 00119 H), the taxes amount to the following sums (without computing the items I referred to in the preceding paragraph).
Import duties (21%; see settlement on page 13 of the administrative records) – $516,54
Statistics Rate (0,50%; see settlement on fs. 13 of the previous administrative proceedings) – $12,30
VAT tax base: 2988,53. VAT 21% - $ 627,60
Total $ 1156,44
That, therefore, I cause the fine to be set at $1.734,70.
VII) That the event generating the tax obligation occurred at the time of the irregular transformation into a definitive import due to the expiration of the term; in the sub-lite this occurred on 13/5/99, without any evidence of re-exportation in the proceedings, as arises from the preceding points. If the merchandise had been re-exported after this expiration, it would not have removed the tax effects of the taxed import in the terms of arts. 274 ap. 1 inc. a), 638 inc. e), 639 of the CA, with the consequence that whoever had temporarily imported the merchandise will be responsible for the corresponding tax obligations, without prejudice to the application of the corresponding sanctions.
That the 2% import duty rate should not be computed because the merchandise is from outside the zone, as claimed by the appellant on pages 19/vta. of the file, since the authorization granted by Certificate 20/96 expired on 31/12/97 (see on container DI 119 H of 4/6/99 on pages 8 of the previous administrative proceedings), while the event generating the tax obligation in this case occurred on 13/5/99. In addition, customs reported that the aforementioned destination 119 of 4/6/99 is in an official state and not presented to customs, there being no effective record of the operation of the destination seized by certificate 20/96 (page 195 of the file).
That the plaintiff is correct regarding the perceptions of income tax and VAT.
That, in effect, the current art. 21 (previously art. 28 of the previous ordinance) of law 11.683 - amended in 1998 and amended - refers to advances that differ from other payments on account such as perceptions, as I have maintained, among others, in Tax Law, Volume I, pp. 355/361 (Depalma, 1st and 2nd edition. Buenos Aires. 1996 and 1999), highlighting that art. Article 22 (formerly Article 29) of Law 11.683 establishes that the collection of taxes will be carried out at the same source when so established by the tax laws (it is obvious; Law 11.683 is not a law superior to other laws) and when the AFIP (formerly DGI), considering it convenient, determines which persons and in which cases will intervene as withholding and/or collection agents.
I have stated on that occasion that the perception at source ensures the collection, since its income can be demanded at the same time that the manifestation of wealth subject to taxation is externalized. From the psychological perspective of the taxpayer, it has the advantage of making the tax less burdensome. It is more painful to part with an amount of money that one possesses, than to be deprived of a sum that one has never received. The taxpayer values his income in terms of net product. Citing the jurisprudence of the Supreme Court of Justice of the Nation, I have also emphasized that the responsibility that falls on the withholding agent for the non-compliance of the fiscal duties that the law places on him is not dispensable, based on the fact that the withholding constitutes a payment on account of the tax whose demandability as such ceases after the deadline for presenting the sworn declaration of the fiscal period in question has expired -unlike advance payments-; and this, because the taxable event is verified with respect to the passive subject of the withholding, to whom the law attributes it directly. The withholding agent who does not comply, voluntarily or through his own negligence, with the duty to withhold, becomes responsible for the payment of the tax due, the only exemption being the accreditation that the taxpayer paid the respective sums (CS, 'Cintafón SRL', dated 3/4/86, 'DF', t. XLI, p. 278) op. cit., p. 360-).
That the aforementioned jurisprudence of the Supreme Court is forceful regarding the differences between advances and withholdings (or collections), considering in the latter case that the expiration of the deadline for filing the sworn declaration for the fiscal period in question does not produce the expiration for the tax authority to demand amounts in the form of withholdings (or collections).
That, however, the AFIP has reported on page 156 of the proceedings that, as of 13/5/99, the plaintiff was exempt from customs collections of Income Tax according to General Resolution No. 3543/92 (DGI) and modifications, given that it had a valid Authorization for non-withholding of Income Tax, Article 28 of General Resolution No. 2784.
That in that report on fs. 156 the AFIP also points out that in terms of VAT, the appellant had a 100% exclusion percentage in accordance with General Resolution No. 17/97, so that Customs should not collect the additional Value Added Tax for the import operation of 13/05/99.
Therefore, both the tax assessment and the fine should not include the aforementioned perceptions in their calculations, in light of the aforementioned exemption.
Furthermore, it should be noted that, as regards the fine, the collection of VAT or additional VAT, or the collection of income tax, is not part of its settlement, since they are payments on account and, as such, do not have the character of taxes for the purposes of the settlement of sanctions.
That, consequently and in light of the liquidation carried out in point VI of this document, I propose that the tax charge amounts to $1156,44, from which the amount that the appellant would have paid for DI 119H of 4/6/99 should be deducted.
Therefore, I vote for:
1st) To modify Resolution No. 4555/01 of the 2nd Head of the Customs Legal Procedures Department, limiting the fine of its article 1 to $1.734,70 (one thousand seven hundred thirty-four pesos with 70/100), and the tax liquidation of its article 3 to $1156,44 (one thousand one hundred fifty-six pesos with 44/100), from which should be deducted the amount that the appellant would have paid for DI 119H of 4/6/99, plus interest.
2nd) Costs according to the due dates.
3rd) Sign this document and within five days, order the appellant to pay 2% of the fine for which she is effectively convicted as a fee for proceedings, under penalty of the General Secretariat of Customs Affairs issuing a certificate of debt.
Dr. Winkler said:
I agree with the preceding vote.
Dr. Gustavo A. Krause Murguiondo said:
That agrees with the vote of Dr. García Vizcaíno.
In accordance with the above agreement, it is unanimously RESOLVED:
1st) To modify Resolution No. 4555/01 of the 2nd Head of the Customs Legal Procedures Department, limiting the fine of its article 1 to $1.734,70 (one thousand seven hundred thirty-four pesos with 70/100), and the tax liquidation of its article 3 to $1156,44 (one thousand one hundred fifty-six pesos with 44/100), from which should be deducted the amount that the appellant would have paid for DI 119H of 4/6/99, plus interest.
2nd) Costs according to the due dates.
3) Sign this document and, within five days, order the appellant to pay 2% of the fine for which it is effectively convicted as a fee for proceedings, under penalty of the General Secretariat of Customs Affairs issuing a certificate of debt.
Register, notify, promptly return and archive the administrative records.
