In Buenos Aires, on the day of the month of October 2003, the Honorable Members of Chamber "E", Drs. Gustavo A. Krause Murguiondo, Catalina García Vizcaíno and Ms. Paula Winkler, met, with the presiding member named in the first place, in order to render judgment in the proceedings entitled: "SNIAFA SA, v. General Directorate of Customs, s/appeal, file no. 17.662-A".
Dr. Krause Murguiondo said:
I.- That on pages 12/13 back, the signature of the epigraph, through its representative, files an appeal against the PLA Resolution No. 2876/02, issued by the Customs Legal Procedures Department of the General Directorate of Customs. It states that by the decision subject to appeal it was sentenced to pay a minimum fine in the amount of eight thousand four hundred and twenty-four pesos ($8.424,00), a sum that, according to the appealed ruling, was deemed to have been paid. It states that, without prejudice to this, by resolution dated 26.08.02/18.06.02/01.06.02, the infraction record was ordered to be registered in the Importers and Exporters Registry, given that the payment of the fine had been made after the deadline. It is aggrieved because said record will be taken into account by Customs in the event of the commission of new infractions, making its situation more serious. He warns that the referred payment was made on 10/932/17.06.02, while the opening of the summary was notified to him on 18/930/XNUMX. He points out that, although the period of ten (XNUMX) days referred to in article XNUMX of the Customs Code expired on XNUMX/XNUMX/XNUMX, that date was declared a national holiday, reason why the deadline was extended to the following day, having made the payment precisely on the XNUMXth of that same month and year, operation that was carried out by check. He argues about the liberating effect of the payment, citing jurisprudence in support of his position. He alleges that the customs service did not make any reservation regarding the cancellation that it made and that although the corresponding certificate was issued after the date of deposit of the corresponding amount, this is due to the mechanism used for that purpose, which cannot be detrimental to him in any way. He claims that the check is an appropriate payment instrument for the purposes provided for in article XNUMX of the code on the subject. He cites case law on the issue. He offers evidence. He requests that the appealed decision be revoked, granting the appeal filed in the proceedings and ordering the General Directorate of Customs to remove the registered infraction record.
II.- That after notification at pages 18, at pages 21/27 the public prosecutor's office answers the notification of the appeal filed in the proceedings that was given to it at pages 15. It reviews the background that gave rise to the case. It formulates a general denial of the facts, the law and the documentation contained in the written response, which were not the object of its express recognition. It maintains that from the evidence in the administrative proceedings that it adds with its response it appears that the payment in question was made once the term established for this purpose had expired. It considers that it was the plaintiff's own conduct that configured the consequence that is discussed in these proceedings, since it claims that the payment has cancellation effects without respecting the bank compensation. It cites jurisprudence favorable to its position. It considers that, in this way, the judgment subject to appeal is in accordance with current legislation, for which reason it requests its confirmation with imposition of costs on the appellant.
III.- That on page 31 the proceedings are brought to the attention of Chamber "E", which on page 32 passed them to judgment.-
IV.- That on page 1 of file ADGA-2002-601.389, which is attached by line, there is the Complaint Report No. 094/01 drawn up against the firm Sniafa SAICFI for not having returned or converted into definitive form within the period granted the merchandise covered by PST 99 01 ET02 927 LA on page 3, the proceedings were sent to the Verification Division. The temporary exit permit involved in the case was noted on page 4. On page 7 the file was transferred to the Branch Section "D". On page 6, the appraisal of the merchandise in violation was carried out. On 20.05.02, the opening of a summary was ordered, in accordance with article 1090, paragraph c) of the Customs Code, and all the proceedings were brought to the attention of the accused firm (page 9). Likewise, he was informed of the benefit provided for in articles 930/932 of the aforementioned legal system and the amount of the minimum fine imposable, which was set at the sum of eight thousand four hundred and twenty-four pesos ($8.424,00). On 18.06.02/11/12, the accused firm appeared requesting to accept the voluntary payment of the minimum fine corresponding to the aforementioned infraction and its manual settlement (fs. 3266). A copy was added to fs. 89 -of the certificate for the depositor- of the credit note for account no. 13/2002, corresponding to the deposit, made on June 8.424,00, 48, of the amount of eight thousand four hundred and twenty-four pesos ($60050582), made by check (13 hrs.) no. 01.06.02 of the BNL. On fs. 20.06.02 the return notice regarding the notification sent to the firm Sniafa SAICFI, which was received on 15, was glossed. On 12 the payment voucher for the fine imposed in this case was issued (fs. 2002). On 2876 July 02 the PLA Resolution No. 8.424,00/15 was issued, by which the plaintiff firm was sentenced to pay the minimum fine, the amount of which amounts to eight thousand four hundred twenty-four pesos ($17), an amount that was deemed to have been paid according to the evidence in the payment certificate found on fs. XNUMX (fs. XNUMX/vta.).
V.- That it is appropriate to determine whether the payment reported in the record on page 15 of the administrative proceedings was made in a timely manner, in order for the appellant to be entitled to the benefit provided for in article 932 of the Customs Code, which literally reads: "the cases provided for in arts. 930 and 931 will only have an extinguishing effect on the criminal action if the voluntary payments and abandonment are made before the expiration of the term provided for in art. 1101. In these cases, the antecedent will not be recorded" (emphasis added).-
It is pertinent to point out that the regime under analysis constitutes a special regime of extinction of penal action to impose penalties for customs violations with respect to that established in article 929 of the Customs Code, established in favor of those offenders who agree to comply with the penalty in the forms and conditions prescribed by the norm that governs it. This benefit consists precisely in the possibility of paying the minimum of the penalty that may correspond, without the sanction being recorded as a prior infraction. To this end, it is required that the payment be voluntary and temporary (art. 932), for the total amount that actually corresponds and that it is not subject to the fulfillment of any condition.
VI.- That, as indicated above, the appellant was notified of the hearing of the summary on 01.06.02, for which reason the term established in the aforementioned article 930 expired on 14.06.02.-
That in order to extinguish the customs criminal action, the appellant made, on 13.06.02, the deposit of the amount claimed by check -48 hours- (see the record on fs. 12 of the administrative proceedings). Consequently, and adding to this that the 17th of that same month and year was declared a national holiday, the payment made was not credited in favor of Customs upon expiration of the term granted for the purposes of responding to the summary hearing, resulting therefore in the payment made being late, in accordance with the terms of the provisions of article 930 of the Customs Code.
According to the record on page 15 of the administrative file, the verification of the payment by check occurred on June 19, 2002, that is, outside the period provided for in article 932 of the Customs Code.
That it does not arise from the records in the administrative proceedings that are running on the line, nor has it been the subject of any evidentiary diligence before this instance that the payment made by the plaintiff was made on a date other than that indicated in the copy of the receipt included on fs. 15 of the administrative file. In relation to this, it should be noted that the documentation added to fs. 12 of the aforementioned file is only a simple photocopy from which the deposit in check of the sum claimed by the customs service would appear, but that in no way allows the payment to be made on the date of deposit of the check and, consequently, the criminal action of the Customs in these proceedings to be extinguished, in the terms of the rule whose application the plaintiff seeks. In this order of ideas, the resolution appealed in this case, insofar as it orders the conviction of the firm Sniafa SAICFI, orders the formulation of charges for the amount of the minimum applicable fine and considers said amount to have been paid, is in accordance with the law.
That the argument of the plaintiff that the date of payment should be taken as the date of deposit of the check cannot prosper. In effect, it is not at issue in the case because it has not been proven that a cancellation check was delivered under the regime of law 25345, arts. 8 to 11. Only a common check was deposited.
That the delivery or deposit of a common check, that is, one subject to the general check regime, does not have a cancellation force comparable to that of money.
The consequence of the above is that whoever delivers a check in payment of a debt is not released from it, nor can it be considered cancelled, except when the creditor obtains delivery or crediting in his account of the amount indicated in the title. That is what is expressed when it is said that these titles are delivered pro solvendo and not pro soluto. This is a consequence of the fact that the debtor is obliged to deliver to the creditor the same thing to which he is obliged to deliver, and the creditor cannot be obliged to receive one thing for another (art. 740 Civil Code). Therefore, whoever is obliged to deliver money must deliver money and not orders addressed to third parties, which are not money until they are paid by that third party.
That, in any case, the receipt or deposit of a check prevents the new demand for the fulfillment of an obligation, provided that the check is paid at the time of fulfillment of the obligation. The delivery and receipt of a check does not constitute a novation of the obligation in question.
That, for the reasons stated above, the payment made in the case of the minimum fine was made outside the period provided for in article 932 of the Customs Code.
VII.- That the circumstance that the customs service could not, for obvious reasons - payment by bank deposit slip - raise objections to the payment that the plaintiff made in this case does not imply unconditional acceptance of the same on its part, and even less so with the cancellation effect claimed.
Therefore, I VOTE FOR:
Confirm PLA Resolution No. 2876/02. With costs.-
Dr. García Vizcaíno said:
I) I agree with what is stated in points I to V of the preceding vote.
However, I believe that the contested decision should be revoked insofar as the infringement record should be cancelled, without costs, in light of the reasons set out below.
That according to art. 2 of decree 722/96, the rules of the National Law of Administrative Procedures (see also art. 1017 ap. 1 of the CA) and its regulatory decree are applicable on a supplementary basis to customs procedures.
That the DR of the LPA provides in its art. 106 that the Civil and Commercial Procedural Code of the Nation will be applicable subsidiarily to resolve issues not expressly foreseen and as long as it is not incompatible with the regime established by the law of administrative procedures and by this regulation.
That art. 156 of the CPCCN, after precepting that the terms begin to run from the notification and if they are common, from the last one, adds that the day in which said diligence is carried out, nor the non-working days, will not be counted.
That art. 1035 of the CA states that procedural deadlines begin to run from the next administrative business day after notification, while art. 1010 of the CA stipulates that the actions and proceedings of the procedure at customs headquarters must be carried out on administrative business days and hours.
That in this case the appellant was notified on 1/6/02 (see pages 13 of the previous administrative documents), which was a Saturday (and, therefore, a non-working day).
That, consequently, it should have been considered notified on 3/6/02, for which reason the period of ten working days for the purposes of the voluntary payment regime began to run on Tuesday 4/6/02 and expired on 18/6/02, since 17/6/02 was a holiday.
That from the simple copy (but not disputed by customs) of fs. 12 of the ant. adm. it appears that the appellant deposited check No. 60050582 of BNL at 48 hours with date 13/6/02, and therefore it should be considered credited on 18/6/02, independently of the date that appears in the certification of fs. 15 of the ant. adm. (19/6/02), since delays in the crediting of checks cannot be opposed to the person who deposited them.
In addition to the above, within the 10-day period of Articles 932 and 1101 of the CA, the appellant appeared on 18/6/02, accepting the voluntary payment regime (page 11 of the administrative antecedents).
II) That I favour the DGA not being ordered to pay any costs, given the difficulties of the issue raised for which it could plausibly have considered itself entitled to litigate, as demonstrated by the jurisprudential criteria found.
That, in effect, Carlos M. Giuliani Fonrouge and Susana Camila Navarrine (Tax and Social Security Procedure, pp. 105/107, Depalma, Buenos Aires, 2001, and their extensive citations) report that the first time the Tax Court had the opportunity to rule on the issue relating to notifications on a non-business day was in Cervecería y Maltería Quilmes dated 12/4/61 (LL, 103-152) where it recognized the validity of the notification made by mail on a Saturday and ruled that the term for appeal should be counted from the following Monday, an interpretation that was in accordance with the criteria supported in Opinion 217/60 of the Legal Affairs Directorate of the DGA. This doctrine was maintained in other decisions of this Court from 1964 to 1971, as well as in rulings of the Federal Chamber from 1962 to 1965 and of the Supreme Court, despite a valuable dissenting vote by the then member Dr. Zabala Rodríguez (Sackmann, 22/12/65, Fallos, 263:534).
The aforementioned authors maintain that, notwithstanding the above, there are some decisions in favor of the doctrine that we believe to be correct, that in the case of notification on a non-business day, it should be forwarded to the next business day; and thus, if the letter was delivered on Saturday, the notification should be considered to have been made on Monday and the term to run from zero hour on Tuesday. In this regard, we can mention several rulings of the Tax Court [Cía. Ind. y Fin. Argentina, dated 29/7/69; Prodesca, 23/4/70; Escudo, 10/12/69], of the Federal Court, Criminal Chamber [Giulietti, 24/4/62] and of the Civil Court, Chamber D [Malvasia SA, dated 2/9/66]. They add that when we had the opportunity to examine the first ruling of the Tax Court, in an opinion shared by Bello, we said that its conclusions were not convincing due to the application of civil principles alone and that, subsequently, by the application of art. 1° inc. d) of the National Law of Administrative Procedures, they were able to reinforce their arguments as to the fact that the actions and proceedings must be carried out on administrative business days and hours, but that those that are not may be authorized ex officio or at the request of a party.
They therefore conclude that both in the administrative and judicial spheres, notifications must be made on a business day. But the simple and straightforward replacement of the doctrine of the nullity of notification on a non-business day would cause serious disruption in the processing of tax cases, and a conciliatory solution of the fiscal and individual interest could be admitted, declaring the validity of the notification but transferring its effects to the next business day; in such a way that a letter delivered on Saturday must be considered received on Monday and the term counted from zero hour on Tuesday. This is the doctrine that the Tax Court and the courts of justice established in the cited cases, and the one that is most consistent with the protection of individual rights, especially when the exercise of a right may be endangered.
That's how I vote.-
Dr. Winkler said:
I agree with the preceding vote.
By virtue of the above agreement, by majority, IT IS RESOLVED:
Revoke PLA Resolution No. 2876/02. Without costs.-
Register, notify, promptly return and archive the administrative proceedings.
