In Buenos Aires on the 6th day of the month of May 2003, the members of Chamber E, Drs. D. Paula Winkler, Gustavo A. Krause Murguiondo and Catalina García Vizcaíno, with the second of those named as president, met in order to resolve the exceptions raised in the proceedings entitled: «SCANIA ARGENTINA SA v. DGA s/ appeal», file No. 17.411-A and its cumulative file.
Dr. Winkler said:
I.- That on pages 32/38, the appellant firm Scania Argentina SA appears, through its representative, and lodges an appeal against resolution No. 160/02, issued on 14.6.02, by the administrator of the Tucumán customs office. It states that, through official documents filed with that customs office during 1996, charges were filed against it for a difference in taxes that were intended to be notified to it by means of a note sent to a post office box that the firm uses to receive commercial correspondence. That address not being the one established at the customs office, it did not receive any notification and therefore could not contest the charges. It states that it was informed of the act that it is now appealing by chance and raises the nullity of the notification of the charges filed since it was not carried out in accordance with the provisions of art. 1003 of the CA. It states that it does not raise the nullity for the nullity itself, but that if it is not upheld, the charges and the resolution would be final and the prescription of the actions of the Treasury to demand taxes would have occurred. It cites jurisprudence and refers to the substance of the issue raised. It offers evidence and requests that the appealed resolution be revoked, with costs.
That after notification, on pages 48/51 the Treasury answers the notification. It requests the rejection in limine of the appeal filed, given that the resolution against which it was filed was based on a procedure in which the plaintiff was not a party. It points out that the notification whose nullity is sought had effects with respect to the importing firm, so it is abstract to analyze the alleged prescription of the Treasury to claim payment of the tax differences. It offers the administrative proceedings as evidence, raises the federal case and requests that the appeal filed be rejected, with costs.
II.- That at fs. 54 the exceptions of nullity and prescription raised by the plaintiff as requiring prior and special pronouncement are declared. At fs. 55 a measure for better provision is ordered, which, answered, appears at fs. 56/61. At fs. 113, Chamber E decides to join the case to the one with No. 17.417-A, entitled: HSBC La Buenos Aires Seguros SA v. General Directorate of Customs s/ appeal. In said file, at fs. 87/95, ref., the firm HSBC La Buenos Aires Seguros SA files an appeal against the same resolution, adhering to the grounds of the co-plaintiff and, in what is of interest now, raises the exception of prescription. He invokes the provisions of the fifth clause of the General Conditions of the issued policies, refers to the issue of the merits, offers evidence, reserves the federal case and, in what he is now called to resolve, requests that the objection raised be taken into account and that it be upheld. After the transfer of said appeal to the Treasury, the latter responds to it on pages 104/106 ref., which in its brief writing, although it refers to the objections raised, concludes that the formulation of the charges is in accordance with the law. He reserves the federal case and requests that the appeal be reconsidered and the customs decision be confirmed, with express imposition of costs.
III.- That -for the purposes of this document- it appears from EA 74-151/01 that the customs had to formulate the charges for tax differences indicated on pages 25/26 of the previous administrative documents. Said act was attempted to be notified to the importer at Post Office Box 3 (see pages 72 of the previous administrative documents). On pages 85, opinion No. 004/02 is issued and on pages 86/89, resolution No. 160/02 is notified to the appellant firm at Catamarca 258 in San Miguel de Tucumán (see pages 90).
IV.- That, first of all, it is necessary to resolve the nullity of the notification of the charges requested by the plaintiff firm SCANIA ARGENTINA SA
That through Note No. 112/01 (AD TUCU) the Tucumán customs intended to communicate the formulation of the charges indicated therein, attempting to notify the aforementioned act to the plaintiff firm at Post Office Box 3 (see pages 25/26 and 72 ant. adm.).
That art. 1001 of the CA provides that any person who appears before the customs service must, in his/her first appearance, establish a domicile within the urban radius of the respective customs office.
That the address indicated in the form added to fs. 9 of the proceedings indicates the special address of Tacuarí 147 1st floor of Capital Federal as the one registered by the plaintiff before the customs service. Such address, even, is the one that arises from the response to the measure of fs. 59 of the proceedings, special address. Said report refers to the registered address on the date of the presumed notification of the customs (see also fs. 72 of the administrative proceedings).
Since the domicile registered with the customs service is not located within the urban radius of the Tucumán customs office, the provisions of art. 1003 of the CA shall apply, which states: Whenever the interested party has not established a domicile, the one registered with the customs service, which is located outside the urban radius of the customs office where the action is processed, shall be considered as the established domicile for the sole purpose of serving the first notification. Therein, the interested party shall be warned that he must establish a domicile in the manner prescribed in article 1001 within ten days, under penalty of the provisions of article 1004.
That consequently, the notification of Note No. 112/01 should have been sent to Tacuarí 147 1st floor of Capital Federal or at least the summons to the company to establish its domicile within the radius of the customs office involved in the case.
That this was not the case and since the customs service attempted to notify the plaintiff at an address other than the one contemplated by the applicable legal regulations, it cannot be considered that the same had the effects for which it was issued.
V.- That being so, it is appropriate to consider the plaintiff notified of the charges in question on the date of filing the appeal before this instance, insofar as I have ruled - it is not a matter of declaring nullity for the sake of nullity itself, but of preserving the right to due process and, when this, as will be seen, is possible, it is not appropriate to consider such a defense.
That, without prejudice to the deficiencies noted in the procedure in question, which are made clear in this vote, I have ruled that (…) if the formal defect in the procedure is remediable in a subsequent judicial process, it has been considered that it does not affect the right of defense and therefore, the nullity is considered relative (conf. CASSAGNE, Juan Carlos, Administrative Law, Buenos Aires, 1985, Vol. II, p. 246. Doctrine concordant with the precedent Universidad Bartolomé Mitre of the CSJN, Fallos, 134: 86, majority vote, reiterated in the subsequent jurisprudence of that High Court).
That the appealed resolution has resolved the challenge filed by the firm LA BUENOS AIRES COMPAÑíA ARGENTINA DE SEGUROS SA on behalf of the importer SCANIA ARGENTINA SA (see arts. 1°, 2° and 3° of resolution No. 160/02 of the administrator of the Tucumán customs office) and since in this instance the firm Scania Argentina SA can assert all its rights and defenses and offer evidence, especially since it has not effectively filed any challenge, but is considered to have been spontaneously notified by its presentation before this Court, in my opinion there are not sufficient reasons for the importer to consider itself aggrieved and for the requested nullity to be granted.
VI.- That not considering that the charges formulated in this regard constitute administrative res judicata, for the reasons I have been stating, the plaintiff's right to due process is sufficiently preserved in this instance, and therefore it is not appropriate to consider abstract the claim regarding the statute of limitations and the merits of what was raised by the co-plaintiffs, which the prosecution is seeking.
That even if it were considered that strictly in the species there has not been an act that resolves the challenge (not presented by the plaintiff in the hearing), I have maintained that (…) the sense of requiring the express pronouncement of the National Customs Administrator, who was the authority called to resolve in said precedents - to enable the instance of this Court, has as its objective that the tax administration issue a ruling on the tax (…) so that, a posteriori, this Agency intervenes by way of appeal (…). I added that, however, in cases where it is possible to presume a denial, going back to the requirement of a customs pronouncement implies the requirement of a useless ritualism (v. Valenciana Arg. José Aisemberg y Cía. SAICIF c/ ANA s/rec. of appeal, judgment of this Chamber, of 12.8.92, in minority, Sucesores De Emilio Segard SRL, id., judgment of 2.6.99, among others). Therefore, I consider that in the particular case under examination, it is appropriate to apply the doctrine and precedents cited, and reject the nullity requested by SCANIA SA, and this Court may turn to the analysis of the present case.
VII.- That, with respect to the exception of nullity to which the co-plaintiff adheres, it should be noted that it must also be rejected in its regard in light of the grounds set forth in the previous section.
VIII.- That, with respect to the exception of prescription raised by the importer, it should be noted that it cannot prosper for the following reasons.
In the case of imports formalized during 1996, the deadline for fiscal action to demand taxes expired on January 1, 2002.
However, the term of art. 803 of the CA was interrupted, in my opinion, by the notification of the customs tax liquidation formalized to the co-plaintiff insurer (see fs. 69 of the adm. ant.), in the terms of art. 806, inc. a) of the CA.
That art. 808 of the CA, beyond the legal characterization made of the bond provided by the importer's insurer, literally states: In everything that is not provided for in this code, the prescription of the actions referred to in this Chapter is governed by the provisions of the Civil Code.
That art. 3994 of said normative body textually establishes that the interruption of the prescription emanating from one of the joint creditors, benefits the co-creditors; and reciprocally, that which has been caused against one of the joint debtors can be opposed to the others. (The underlining is mine) that the same provision is contained in art. 713 of the same Code.
That the fifth clause of the General Conditions of the policies involved in the case does not invalidate the above, since in my opinion it does not specifically address the case of the interruption of the liberatory prescription, which is regulated in the case, in a supplementary manner, by the Civil Code, as I said.
That, thus, at the time of the issuance of the appealed resolution, the action of the Treasury to collect taxes was not prescribed for either the importer Scania SA or its co-plaintiff.
IX.- I therefore vote to reject the exceptions of nullity and prescription raised by both co-appellants, without costs, insofar as, given the complexity of the issue raised in this vote, both parties could, in my opinion, consider themselves credibly entitled to raise them. Let the case be returned to the 13th Nominating Court to continue with the pending proceedings on the merits.
Dr. Gustavo A. Krause Murguiondo said:
I.- That it substantially agrees with the preceding vote regarding the nullity and the substance of the matter.
It should be noted that, prior to any consideration, this Court's case law has repeatedly held that, since the issue under discussion in this case is the intervention of an insurance company by issuing a surety bond in favor of the customs service, the relationship between said service and the insurer not being regulated in particular in the insurance legislation, but the said surety being given as a guarantee in the terms of articles 453, paragraph c) and 455, paragraph d) of the Customs Code, and the situation of said guarantor vis-à-vis the eventual creditor customs service not being regulated in said Code either, the aforementioned insurer must be considered a joint guarantor (surety) in the terms of article 2003 of the Civil Code and its relations and/or rights and duties vis-à-vis the creditor (insured) in the context of the regulation of the civil code, which must be applied as a supplement.
That according to art. 462 of the Customs Code and the general conditions of the policy, the demand for payment against the insurer only depends on the formulation of the charge to the principal debtor, in which procedure the insurer has been given intervention to guarantee its right of defense. There is no benefit of excussion for the Insurer to the point that the general conditions of the policy, if it pays the amount owed, transfer the rights of the DGA against the debtor in favor of said insurer.
II.- Regarding costs, I believe they should be imposed on the losing parties.
Dr. Catalina García Vizcaíno said:
I. That I substantially agree with Dr. Winkler's vote regarding the date of calculation of the notification by Scania Argentina SA
Therefore, I consider that the notifications made to the importer at the customs office at an address that was not the one registered or established by her have been null and void.
II. I do not share the opinion of Dr. Krause Murguiondo in describing as peaceful the jurisprudence that applies the Civil Code in the relations of insurers of customs tax obligations.
I base this discrepancy on the autonomy of tax law, which means that the Civil Code is not necessarily applicable in a supplementary manner with regard to the guarantee provided in accordance with the Customs Code, in accordance with the specific regulations contained therein, e.g. in its arts. 786 and 794.
Thus, the Supreme Court of Justice of the Nation held that the supplementary nature of the Civil Code "does not apply when the literal meaning of the tax regulations excludes civil principles or these are not adequate to elucidate tax problems (doctrine of Fallos, 249:256) (Tacconi y Cía. SA, of 3/8/89; Fallos, 312:1241).
That, therefore, the application of the Civil Code in this matter is exceptional, so that e.g., the accrual of interest with respect to the insurer differs from that with respect to the insured (see arts. 786 and 794 of the CA), the interest rates provided for in art. 791 of the CA are also different from those applied in the civil sphere, there are concepts by which the importer is obliged (additional rights) without obligation on the part of the insurer, etc.
III. In this case, I consider that the provisions of the Civil Code referred to in the preceding opinions do not apply in a supplementary manner, in light of the specificity of article 807 of the CA, which reads: The suspension and interruption of prescription with respect to the principal debtor also have effects in relation to joint debtors and subsidiary debtors, except in the cases contemplated in article 806, paragraphs d) and e). If the causes for suspension or interruption of prescription are only fulfilled with respect to a subsidiary debtor, they will not have effects with respect to the principal debtor or his joint debtors.
It should be noted that art. 808 of the CA only allows the application of the Civil Code in matters of prescription of the action of the treasury to collect taxes governed by customs legislation in everything that is not provided for by this code. Hence, I understand that the express provision of art. 807 of the CA displaces the principles of arts. 713 and 3994 of the Civil Code.
Furthermore, it should be noted that with respect to the guarantee, the Civil Code in its art. 3997 provides that ... the claim filed against the guarantor, or his recognition of the debt, does not interrupt the prescription of the principal obligation. In the note to that provision, the codifier stated that: The accessory with all its effects cannot exercise any influence on the principal, which has an existence independent of all the accessories.
That, consequently, the notification made to the insurer (which is not the main debtor) on 15/2/01 - see fs. 69 of the adm. antecedents - has no influence on the appellant importer in its capacity as main debtor.
That, consequently, I favor the declaration of the statute of limitations on the action of the Treasury to claim the taxes demanded from Scania Argentina SA, given the nullity of the notifications made in this regard at the customs office. Without costs, due to the difficulties of the issue raised.
That, however, I consider that the action of the Treasury to claim taxes from the appellant insurer (which was notified on 15/2/01, before the prescription took effect on 1/1/02) has not prescribed, in light of the principle of proper delay arising from arts. 786 and 794 of the CA and the specific solution of art. 807 of the CA. Therefore, in this case I propose that the exception of prescription be rejected, with costs.
That's how I vote.-
Pursuant to the above vote, by majority, IT IS RESOLVED:
1.- Reject the exception of nullity raised in this case.
2.- Reject the exception of prescription raised in this case against the insurer, with costs.
3.- Reject the exception of prescription raised in the proceedings against the purchasing firm, without costs.
Register and notify. Return the files to the 13th Nomination Chamber to continue with the pending procedure on the merits.
