Two rulings of enormous importance demonstrate the legal quality of the National Tax Tribunal (TFN). This is due to the analysis of each of them (to which, for the sake of brevity, we refer in this note). In all cases, these are appeals in which this high Court had to resolve.
The first of them dates back to July 2021, in cars “ELDEN SA v. DGA s/ appeal (EX-2019-53692049—APN-SGASAD#TFN)” This case is an appeal filed by the aforementioned firm, having been sentenced by customs to pay antidumping duties because the customs service considered that the Certificate of Origin (CO) had expired, and consequently had to pay the corresponding taxes, given that the origin was considered to be the People's Republic of China, when what the appellant declared was that the origin corresponded to Indonesia.
From the extensive analysis carried out by the TFN, it is concluded that the origin was indeed Indonesia, according to the administrative documentation that the importer had submitted in due time. In order to do so, Dr. Juan Manuel Soria considered that "the acquittal decision of the appealed resolution itself, with respect to the violation of art. 954.1 inc. a), establishes that the fact that the CO has expired does not allow us to presume that the declared origin -Indonesia- is incorrect.” Therefore, the judge continues in his vote, “The Customs having desisted from Considering the declaration regarding the declared origin of the merchandise (Indonesia) to be inaccurate, it is an inseparable consequence of this that there is no action regarding the tax on the basis, precisely, of considering that it has a different origin than that declared; in this case, Indonesia”. “Thus, it must be considered as a proven fact in the proceedings, given the absence of elements that contradict it, that the origin of the imported merchandise is Indonesia”.
The Customs Office considered the application of antidumping duties upon expiry of the CO, without considering that it was the agency itself that dismissed the offence under art. 954, paragraph 1, recognising the origin of the goods. In other words, it contradicted itself in applying an antidumping duty.
Thus the ruling states: “Since it has been confirmed in the proceedings that the origin of the merchandise is Indonesia, the antidumping duties are inadmissible, due to a substantial divergence from the origin considered by Customs to impose them (see administrative proceedings fs. 1 third paragraph, fs. 8 third paragraph, fs. 51 third paragraph, fs. 58 fourth paragraph).”
Dr. Musso and Dr. Juárez agreed with the above and presented further arguments.
The following case corresponds to the cars “AGRO EPSILON SA v. DGA s/appeal”, file No. 31.011-A. From December 2021. This is the application of export duties that the plaintiff appealed because it considers that they were applied retroactively.
The company had already paid the taxes relevant to the operation, but based on a particular criterion, Customs intended to extend these rights by applying Law 26.351.
The appellant stated during her appeal that her operation was covered by the terms of Law 21.453 and that the subsequent law (26.351) clarifying the previous one could not be applied to her particular situation.
In this regard, Dr. Miguel Nathan Licht said in his vote: “Based on the facts described, it is necessary to determine whether the payment of the tax difference claimed by the National Treasury based on Law 26.351 is in accordance with the law. I advance that the provisions contained in the cited law cannot be applied retroactively to the transaction in question, since the sales abroad have been arranged and presented to the enforcement authority in the terms established in Law 21.453.
It is very important to transcribe part of his vote, in which he states:
VIII.- “In this understanding of the matter, I find that the reform introduced by Law 26.351 violates the principle of retroactivity, since by providing for the increase in the applicable rate, there is no doubt that it modified the legal effects of the transactions entered into under the current legislation. In this sense, it is eloquent that the requirement incorporated by the legislative reform is supervening and unforeseeable for those responsible who declared their tax position under Law 21.453, thus injuring acquired rights and affecting legal certainty. In customs matters, there are numerous international treaties to which the tax regime applicable to imports and exports is subordinated, such as the General Agreement on Tariffs and Trade (GATT), which establishes the non-retroactivity of customs duties as one of the essential principles. Likewise, the Customs Code establishes the non-retroactivity of customs taxes in arts. 637, 639, 726 and 728”.
IX.- “In this conceptual framework, it is obvious that Law 26.351, which calls itself a clarification of Law 21.453, under the pretext of being an interpretation of the previous law, grants it new content, adds a conditio sine qua non to consolidate the tax effects of the operation – to reliably prove the possession or acquisition of the products to be exported –, being a modification of the tax effects towards the past to the detriment of the principles of legality, retroactivity and legal certainty.".
According to the very clear exposition of the magistrate, which highlights the importance of common sense in the application of the Law, whose component is also rules applicable to society as a whole with a criterion of justice, the rules do not have retroactive scope and even less so when they contain changes in legal relations in such a way that they substantially modify legitimately acquired rights. In the present case, the new law (26.351) also contained provisions clarifying the previous one, without providing a provision different from that one.
For further clarification, the magistrate considered that “Law 26.351 revisits a legal relationship established before its validity, which is given by the presentation and registration of the DJVE; thus depriving it of one of its main effects (application of the export duty rate in force at the closing of the sale) due to non-compliance with a requirement that, as already explained, was not provided for in the previous law.”
Subsequently, judges Pablo Garbarino and González Palazzo adhered to Dr. Licht's vote.
In the opinion of the undersigned, the greatest legal rigor when analyzing a case and applying the rules should never deviate from common sense, because the Law seeks to regulate the legal relationships of the components of a society, aimed at applying the value of justice. Without sufficient sensitivity to be able to understand particular situations, the application of the law would only be an imperative normative automation, almost like a permanent franchise for the abuse of law. That is why I believe that the legal rigor applied in both rulings should be appreciated, with an authentic sense of justice. And finally, something also worth highlighting is the attitude of closeness with the community that the TFN has adopted, by publishing rulings on Twitter. It is a very important gesture that helps to travel a path of rapprochement and empathy between citizens and the bodies in charge of dictating justice, which in reality already arises from our own republican system of government, with the TFN acting accordingly.
Guillermo J. Sueldo is a lawyer, Professor of Customs Law and member of the Institute of Customs Law and International Trade of the AAJC.
The author is a lawyer and member of the Institute of Customs Law and International Trade of the Argentine Association of Constitutional Justice.
