In Buenos Aires, on the 14th day of the month of May 2003, the members of Chamber E, Drs. Catalina García Vizcaíno, D. Paula Winkler and Gustavo A. Krause Murguiondo, met, with the latter presiding, in order to render judgment in the case entitled: TEXTIL KS SRL v. General Directorate of Customs, s/appeal, File No. 17.513-A.
Dr. Catalina García Vizcaíno said:
I. That on pages 8/11 back, the appellant, through its representative, files an appeal against Resolution No. 3081/02, dated 23/07/02, of the General Directorate of Customs, issued in file EAAA No. 580.485/99, which confirms charges 1340/99 and 1341/99 for taxes. The appellant states that it imported merchandise through import dispatches 98 ICO4 53.109-W and 98 ICO4 80.182-A, to which the Orange Channel was assigned, and that they were dispatched to the plaza, without the customs service making any observations. It indicates that the María Computer System, when entering the tariff item corresponding to the merchandise of the aforementioned shipments, automatically liquidated the tax levels on the basis of a Minimum Specific Import Duty of US$ 1.49 per kilogram, but that through Res. 723/98, Res. MEYOSP 98/98 was rectified, the DIEM to be applied until 31/05/98 and where it says US$ 1.49 it should say US$ 2.49. This last Resolution states that it will begin to apply as of the day following its publication. It indicates that the charges appealed by the aforementioned rectification were formulated up to 31/05/98. It explains that the customs claim involves giving retroactive character to the tax established by a norm dated after the one established by the base law. It highlights that the import clearances were registered before 20/06/98, the date of entry into force of Res. 723/98, so the applicable DIEM level is the one that existed when the application was registered, which was US$ 1,49. It raises the unconstitutionality of Res. 723/98 for affecting acquired rights, in violation of the provisions of art. 17 of the National Constitution and art. 3 of the Civil Code. It offers evidence. It reserves the federal case and requests that the appealed resolution be revoked, leaving the charge without effect.
II. That on pages 21/23 back, the public prosecutor's office responds to the transfer that was duly conferred upon it. It makes a brief summary of the proceedings and the grievances raised by the plaintiff. It refers to the reports included in the administrative proceedings due to the brevity of the case, citing the aforementioned reports. It maintains that the DGA has only limited itself to applying the current legislation. It considers that the statements of the appellant lack factual and legal support, as well as that the charges formulated are based on the law, so they should be confirmed. It argues that the jurisprudence cited by the plaintiff is not applicable to the case at hand. It adds that the plaintiff's interpretation of resolution 723 is erroneous since it would clearly emerge from it that it applies backwards and up to the date indicated, and not the opposite. It maintains that the challenged resolution has been issued in accordance with the legally conferred powers, that the decree 2275/94 approved the Common Nomenclature of Mercosur at the national level and, as an integral part of it, established the Common External Tariff, import duties and refunds that would apply as of 01/01/95. The Court offers evidence, reserves the right to appeal the federal case and requests that the appeal be rejected, with costs.
III. That on page 28 the cause is declared as purely legal and the proceedings are sent to Chamber E, which passes them on to judgment.
IV. That on page 1/3 of file CDGA No. 580485/99, charge No. 1340 is formulated with respect to DI 98 001 IC04 053109 W, based on Res. MEYOSP 723/98 which increased the DIEM from 1,49 to 2,49. On pages 4/7, charge No. 1341 is formulated in relation to DI 98 1 IC04 80182, on the same grounds. On pages 11/14 the plaintiff files an objection against these charges. On pages 20, file ADGA-2000-426014 is attached, which begins on pages 1 with the request for prompt dispatch. On pages 22, there is a report from the Import Inspection and Valuation Division. On pages 26 shows the DI IC04 053109-W officially issued on 7/4/98 in an envelope. On pages 27, the DI IC04-080182-A officially issued on 23/5/98 is glossed. On pages 31/33, Resolution No. 3081/02 appealed in this case is issued.
V) That this Court cannot declare MEYOSP Resolution 723/98 unconstitutional, since it is prohibited by art. 1164 of the CA, since that regulation has been enacted by the powers of the Customs Code (as well as by virtue of the provisions of the Law of Ministries -to 1992- and in Law No. 22.792 and in use of the powers conferred by Decrees Nos. 751 dated March 8, 1974, 1011 dated May 29, 1991 and 2.275 of December 23, 1994).
That, consequently, in the present case I will refrain from analyzing whether or not MEYOSP Resolution 723/98 violates Article X, 2 of the GATT.
That, however, is not an obstacle to interpreting the aforementioned Resolution in accordance with guidelines of reasonableness and taking into account the principle of legality of taxation, which prevents the application of art. 13 of law 19.549.
Furthermore, Article 13 of Law 19.549, which establishes that the administrative act may have retroactive effects, makes the exception that this may be done provided that no acquired rights are violated and that it is issued in substitution of another revoked act or when it favors the administered party.
The Supreme Court has declared that legal norms must always be interpreted avoiding giving them a meaning that puts their provisions in conflict, destroying one for the other, and adopting as true that which reconciles them and leaves all with value and effect (doctr. of Fallos, 296-372, 297-142, 300-1080).
That MEYOSP Resolution 723/98 did not revoke any administrative act, but rather made, in what is of interest here, a mere rectification as of 31/5/98, which should be applied to the extent that the Supreme Court doctrine of the liberating effect of payment of constitutional origin is not violated. Obviously, it did not favor the taxpayer in the terms of art. 13 of law 19.549.
So much so that if - hypothetically - any importer had guaranteed (instead of having paid) the taxes due at the taxable moment included within the retroactivity provided for by MEYOSP Resolution 723/98, it does not seem doubtful to conclude that the DIEM are applied to it retroactively.
That the aforementioned MEYOSP Resolution 723/98 (BO 19/6/98), whose entry into force was set for 20/6/98 (see art. 3) provided in its art. 2: The Annex to MEYOSP Resolution and O. and SP No. 98/98 is hereby amended to rectify the Minimum Specific Import Duty (DIEM) to be applied until May 31, 1998 corresponding to tariff item 6001.92.00 of the Common Nomenclature of MERCOSUR (NCM):
WHERE IT SAYS: IT SHOULD SAY:
1,49 2,49
That this Resolution, which constitutes a substantive tax rule (not a regulation), based on the conferral of powers provided to MEYOSP, was published - I reiterate - in the Official Gazette on 19/6/98, since in this case it deals with import dispatches officially registered on 7/4/98 and 23/5/98, and it is not disputed that the taxes due were paid in accordance with the regulations in force at the time of those payments. No amount appears as given as collateral. The dispatches in the sub-item corresponded to Orange Channel 0004, and the corresponding documentary control was carried out (see pages 26 and 27 of the administrative records).
That the taxable moment was set, according to the cases, on 7/4/98 and 23/5/98 in accordance with the terms of arts. 637 inc. b), 639 and related articles of the CA
That, as I have held in the judgment handed down in a case that presents a certain analogy with the present one MOUSSA ZOUGHOUT Y CíA. SA, dated 3/5/01- the payment made in accordance with the regulations in force at the time of the payment has a liberating effect, taking into account as in this case- that the customs did not invoke that it had been less than what was due on those dates (7/4/98 and 23/5/98), since the customs claim is based on retroactively applying the aforementioned Res. MEYOSP, which although it rectified the DIEM retroactively, it is incontrovertible that it was published in the Official Gazette on 19/6/98.
In this case, I consider the Supreme Court's doctrine of the liberating effect of payment to be applicable, which exempts cases of concealment, fraud or gross negligence on the part of the taxpayer, which assumptions were not invoked by the customs. Note that MEYOSP Resolution 723/98 was dated 17/6/98, that is, approximately two months and one month, respectively, after the officialization of the DI of the sub-lite.
That, in effect, (as I noted, among others, in Derecho Tributario, pp. 198/202, De Palma, Buenos Aires, 1996, 1st edition - and 1999, 2nd edition-) the Supreme Court held that retroactive tax legal norms cannot be applied, among other assumptions, when the taxpayer has paid the tax in accordance with the law in force at the time of payment, the constitutional guarantee of property being affected if a new law were to be applied that established an increase for the period already paid (Ernesto N. de Milo, 3/4/67, Fallos, 267-247 and their citations; Cafés, Chocolates Aguila y Productos Saint Hnos. SA, 26/10/70, Fallos, 278-108; Loma Negra CIASA, 26/11/81, Fallos, 303-1876).
Furthermore, it should be added that in Armando Victorio Garibotti, dated 20/11/72 (Judgments, 284-232), the SC declared that the error regarding the correctness of the exercise of its own and exclusive powers by the tax receiving authorities does not harm the taxpayer, as long as there was no fraud or serious negligence on the part of the latter (Judgments, 258-208, 259-382 and others), since the notorious demands of both the stability of legal transactions and the just order of coexistence impose the recognition of the existence of constitutional grievance in the reopening of definitively settled issues and on the basis of a subsequent and unforeseeable modification of the pertinent criterion in the application of the laws that govern the case. This doctrine is reiterated in Bernasconi SA, dated 12/11/98.
It follows from this that if the Supreme Court did not admit the invocation of a change in general interpretative criteria to affect situations settled by payment, a fortiori it is not appropriate to admit that it is intended to tax by applying a tax rule published after the taxable moment because art. 17 of the CN and the principle of legal certainty that has constitutional hierarchy would be affected (Fallos, 220-5, 251-78, 317-218, consid. 9, among many others, cited in Bernasconi SA, 12/11/98).
That the foregoing makes applicable the provisions of the first paragraph in fine of art. 3 of the CC in that the retroactivity established by law may in no case affect rights protected by constitutional guarantees.
That, on the other hand, Chamber 2 of the CNCont.-Adm.Fed.Cap. has held that although art. 2 of the CC provides for the possibility that regulations may be retroactive, the Supreme Court of Justice of the Nation, in multiple precedents, has established a limit to the retroactivity of the law, in those cases where there has been the acquisition of a right, incorporated into the taxpayer's assets (among others, "Fallos", 151-103, 152-268, 234-753, 259-261) (Odol SAIC c/DGI, 27/2/01; Taxes, April 2001, p. 20).
That the payments made by the plaintiff on 7/4/98 and 23/5/98 of the taxes related to the merchandise entered by the aforementioned offices meant the acquisition of a right to extinguish the tax obligation for that DI, having been incorporated into its assets.
That the criteria set forth herein in relation to Res. MEYOSP 723/98 was upheld, among others, in my vote in the judgment issued by this Chamber JAIME TEODORO YEMAL E HIJOS SA, dated 18/7/02.
Therefore, I vote for:
Revoke Resolution DEPLA DVI No. 3081/02 and charges 1340/99 and 1341/99 confirmed by it. With costs.-
Dr. Winkler said:
I substantially agree with the preceding vote.
Dr. Gustavo A. Krause Murguiondo said:
I.- That it refers to the relationship of facts contained in the preceding vote.
II.- That first of all it is necessary to analyze whether it is appropriate to apply MEYOSP Resolution No. 723/98 of June 1998, which seeks to retroactively rectify the DIEM that should have been applied until May 31, 1998, corresponding to Tariff Item 6001.92.00.
That it arises from the administrative proceedings (fs. 2), that the officialization of Import Clearances 98 ICO4 No. 053.109 W, and 98 IC04 80.182-A was carried out on 7/4 and 23/5 of the year 1998, for which reason the appellant had to pay, in accordance with MEYOSP Resolution No. 98/98 (dated 27/01/1998) and its Annex, the sum of US$ 1,49 per Kilogram of imported merchandise.
That the appellant, fulfilling said obligation, paid the Charge in force at the time of carrying out the Import Clearance.
That on 17/06/1998 Resolution No. 723/98 was issued (published BO 19/06/1998), by which the DIEM to be applied until May 31, 1998, corresponding to PA NCM 6001.92.00 is rectified so that: where it says 1,49 it should say 2,49.
In relation to the above, Charge FI 1340 and 1341 of the year 1999 is generated, in relation to the aforementioned Import Clearances, through which the collection of the difference arising from the application of the coefficients US$ 1,49 and US$ 2,49 is claimed.
That art. 2 of MEYOSP Resolution No. 723/98 provided for the modification of the DIEMs provided for in MEYOSP Resolution No. 98/98, retroactively to its entry into force. Given that said regulation is of a delegated nature in relation to the enabling regulations of Decrees No. 751/74 and 2275/74 (see recitals of Resolution No. 723/98), it is one of the provisions of those provided for by art. 1164 of the Customs Code, on which it is not appropriate to rule on its eventual invalidity on constitutional grounds, in this instance. For the same reason stated, the provisions of art. 793 of the Customs Code are inapplicable, since it refers only to the case of retroactive interpretations, which does not occur in the case at hand, in which a delegated regulation with such scope was issued.
That, however, does not prevent the plaintiff from considering the constitutional guarantee of property to be affected in the circumstances of the case, when retroactively seeking payment of an increase in a tax, which was originally paid at the rate in force at the time of the taxable event, is sought (Supreme National Court: Ernesto N. De Milo, judgment of 3/4/67, Rulings: 267-247; Loma Negra CIASA, judgment dated 26/11/81, Rulings: 303-1876, among many others).
That, in this regard, no specific ruling by the National Supreme Court declaring art. 2 of Resolution No. 723/98 invalid has been invoked in the case, so that it could enable the intervention of the Tax Court in the terms of art. 1164 of the aforementioned Administrative Code.
III.- That, in relation to costs, they must be imposed in order taking into account the circumstances of the case and the grounds for the decision.
That this Chamber of the Court, as will be seen, has the power to impose costs in its order, at the point where they have been imposed.
That, in the opinion of the undersigned, the reform introduced by Law 25239, in its point 18, to art. 184 of Law 11683, must be interpreted extensively, considering that it also reforms art. 1163 of the Customs Code. No other interpretation is possible given that it is the same Court, with the exercise of similar jurisdictional powers in both areas, in which there is no reason to differentiate them at the time of the imposition of costs. The precise basis for the extensive interpretation is given: the legislator in this case, when sanctioning the law minus dixit cuam voluit, that is, has expressed in the letter less than what corresponds to its true real intention, which has been to return to the same, without any distinction, the power to exempt from costs when justified. The reform introduced by Law 25239, point 18, is also expressive of a general principle, enshrined in all, or almost all, of the Procedural Codes, in relation to the exercise of the jurisdictional function. To claim that this principle can be applied in the Tax Court only partially, without any possible justification, exceeds the margins of reasonableness of interpretation.
If the case were approached from the point of view of gaps in the law, and not from the point of view of extensive interpretation, it could be stated that in the situation there is, as Karl Larenz discusses in the Methodology of the Science of Law, Ediciones Ariel SA, Barcelona, 1966, p. 293, a case of a hidden regulatory gap. That is to say, in the case the rule of art. 1163 of the Ad. Code apparently subsists, but it is no longer applicable because according to the principles of the legal order (contained in the case in the various Procedural Codes) or in a subsequent rule for analogous situations (art. 184 law 11683 with the reform of law 25239), its scope must be reduced or modified to apply the principles of the subsequent rule for analogous cases or of the legal order, taking into account the purposes of the same, which arise in this case from the foundations of law 25239 itself.
That for the reasons stated above, Resolution No. 3081/02 should be confirmed. With costs in order.
In accordance with the above agreement, by majority, IT IS RESOLVED:
Revoke Resolution DEPLA DVI No. 3081/02 and charges 1340/99 and 1341/99 confirmed by it. With costs.-
Register, notify, promptly return and archive the administrative records.
