In Buenos Aires, on the 8th day of the month of May, 2002, at four o'clock in the afternoon, the Members of the Tax Court of the Nation, Drs. Catalina García Vizcaíno, Ricardo Xavier Basaldúa, Esteban Juan Urresti, Graciela T. de Wurcel, Paula Winkler, Jorge C. Sarli, Ethel E. Gramajo, Susana Lía Silbert, Silvia A. Crescia, José E. Bosco, Ignacio J. Buitrago, José D. Litvak and María Isabel Sirito, met, with Dr. Agustín Torres as president, on the occasion of the call made for the purpose of analyzing the opinion issued by Commission 28 sent to this Tax Court on April 30 of this year. The act having been opened, Dr. García Vizcaíno said:
1st) The transitional rules of article 3 should include the following:
The lawyer members who, at the time this reform comes into force, occupy positions of nominations related to accountants will continue to serve in them until vacancies occur in the positions assigned to lawyers, to which they will be reassigned.
2nd) In the reform of inc. a) of art. 65 of law 11.683 (revised in 1998 and amended), 2nd paragraph, it would be necessary to refer to "final judgment" instead of definitive judgment, since the Tax Court issues definitive judgments -see, among others, art. 188 inc. c) of the aforementioned law 11.683-.
On the other hand, since the jurisdiction is unified, it might be convenient to provide for the prescription in a manner similar to the regime of the Customs Code that extends the suspension of the prescription in cases where "the debtor or responsible party files an appeal or claim that has a suspensive effect against the tax liquidation, until a decision is made that enables its execution" -art. 805 inc. c) of the CA-.
3rd) The appeal regime should be unified in relation to acts sanctioned with the joint penalties of closure, fine and, where appropriate, suspension of the use of a license or registration (art. 40 of the aforementioned law 11.683), since the proposed reform to art. 77 of the aforementioned law 11.683 encourages the latter sanction to be appealed within 5 days before senior officials of the AFIP, while the proposed reform to art. 78 of the aforementioned law 11.683 proposes that the first two sanctions be appealable by one of the remedies of art. 76, within 10 days of notification of the resolution.
This implies the duplication of resources for the same act punishable by joint penalties, which could lead to the possibility of a legal scandal due to contradictory rulings.
4th) It would be appropriate to expressly provide for the appeal procedures against the resolutions issued in the planned appeal for reconsideration in matters of closures and other joint sanctions, since the modification of the assumptions of the contentious claim of art. 82 of the aforementioned law 11.683, whose subsection a) refers only to fines, has not been proposed.
In addition, in these cases it would be advisable to foresee the suspensive effect of the claim or appeal in court, since the opposite could imply its unconstitutionality in the terms of the doctrine of the Supreme Court.
It should be noted that, at the time, the Public Bar Association of the Federal Capital criticized the fact that the appeals were resolved by DGI officials, and that the administrative resolution issued by them was final, enabling the closure to be applied and the fine to be enforced; among other aspects, considering that the right of defense, protected by art. 18 of the CN, was violated and in contradiction with the doctrine established by the jurisprudence of the Supreme Court of Justice of the Nation in re "Dumit, J. c/Instituto Nacional de Vitivinicultura", dated 8/11/72 ("Fallos", 284-150) which declared inadmissible analogous powers that the National Institute of Vitivinicultura sought to arrogate to itself (PET, 18/12/96, p. 7).
The Supreme Court, due to the undeniable repressive nature of the closure, rejected the extraordinary appeal filed by the tax authority against a second instance judgment issued in an amparo suit that declared the unconstitutionality of arts. 10 and 11 of law 24.765 [today, arts. 77 and 78 of law 11.683], insofar as they ordered the execution without further substantiation of the sanction applied by the administrative authority, and the granting for the sole purpose of devolution of the appeal filed before the corresponding judicial body, for which reason, consequently, it ordered the DGI to refrain from closing the plaintiff's business premises until the admissibility of said sanction was debated and resolved with a final judicial judgment (Lapiduz, Enrique, 28/4/98).
5th) It would be appropriate to return to the wording prior to Law 25.239 of the fourth paragraph of the proposed article 146 of the aforementioned Law 11.683, in the sense that:
"The number of chambers and members may be increased by the National Executive Branch."
6th) It has been proposed to modify art. 166 of the aforementioned law 11.683, but the same has not been done with art. 1145 of the CA regarding the possibility of offering evidence without the limitations set out by law 25.239.
7th) The deletion of art. 1141 of the CA does not seem appropriate, since it refers expressly to representation and sponsorship before the National Tax Court, notwithstanding that it refers to the proposed rules of arts. 1030 and 1034 of the CA, applicable to procedures before the customs service. Otherwise there would be a legal vacuum.
8th) Art. 1163 of the CA should be amended in a manner similar to art. 184 of the aforementioned Law 11.683, considering the possibility that in customs matters costs may be decreed according to the order incurred, since although Law 25.239 (BO 31/12/99), which amended Art. 184 of Law 11.683 - as amended in 1998 and amended - authorized the defeated litigant to be exempted from costs with justification, it did not expressly reform Art. 1163 of the CA (according to Decree 1684/93), giving rise to the paradox that the law provides for this possibility in tax matters and not in customs matters.
Dr. Sarli said: that he supports the vote of Dr. García Vizcaíno
Dr. Winkler said:
I make the following observations:
IV. Project motivation.
Certain pathological reactions, seen simply… is a dogmatic and unclear statement from a sociological point of view that, although it has been in the mouth of Von Ihering and other philosophers of law, does not seem appropriate taking into account the advances of the social sciences in the 11.683st century. Furthermore, and this is what is worrying, such a phrase can arouse, as it is written, unnecessary animosity between those who, wrongly, hold or held the idea that is intended to be denigrated in said paragraph. It could be replaced by something like this: During the last few years, with the preparation of some modification projects of Law 1998 (to in XNUMX), which did not prosper, it was intended to strengthen the mistaken idea about that the existence of a court that operates within the orbit of the administration could be replaced by another type of different organization, believing that with this a real solution to the problem of tax collection at a national level was provided.
Project. Closings topic.
It should be noted that for appeals filed against judgments handed down by the Tax Court before the Appellate Courts, the effect with which they are granted is also suspensive and, consequently, add in the motivation of the reform, that this is received by the jurisprudence of the Court, Lapiduz, Enrique, of 28.4.98, in which the High Court declared inadmissible the appeal filed by the National Treasury against the declaration of unconstitutionality of arts. 10 and 11 of law 24.765.
Point 7: replacement of art. 146.
The fourth paragraph, although it is a copy of Law 25.239, is inappropriate. It would be better to word it as follows: The composition and number of chambers and members may be increased by the National Executive Power, while modifying it as proposed in the project also implies decreasing it.
Point 10: replacement of art. 151 of the aforementioned law:
Paragraph 7: In my opinion, it should be worded as follows:
When any of the Chambers bound by the doctrine established in the plenary sessions referred to in this article, understands with reason that in a certain case it is appropriate to review that jurisprudence, a new plenary session must be convened, with the provisions previously established being applicable in this regard.
The observation is due to the fact that, following Gordillo, it has always seemed to me that the institution of the plenary, although it is consecrated to protect the legal security of the parties in the process and to achieve an adequate uniformity in the jurisdictional interpretation of the norms, reduces pluralism in the exercise of jurisdiction, and prevents the judge from acting with the independence that is functionally imposed on him. On the other hand, in this way, when establishing the call, the Chamber that proposes it collaborates with the plenary in what concerns the analysis of the formal admissibility of the same.
Point 12: added to art. 164.
I do not agree, since the dismissal and withdrawal of claims or appeals brought before the Court also entail the need to rule on costs. Therefore, they should be resolved by the Court.
Drs Bosco and Torres said:
That by virtue of having integrated the Commission created by Resolution No. 28/02 of the Ministry of Economy, they abstain from expressing an opinion in relation to the Opinion issued by the majority of the aforementioned Commission.
Notwithstanding this, they clarify that although they abstained from voting on the Commission's Opinion, they did not share the majority's view on the eventual entry into force of the reform, which they made contingent on the implementation and start-up of the new structure of the Tax Court, which could never take place before September 1, 2003.
Drs Gramajo and Buitrago said:
First objection:
The first and fundamental objection formulated to the project prepared by the Commission appointed by the Minister of Economy and Public Works and Services through Resolution No. 28/02, is referred to the unification of tax and customs powers, whose foundation would be to provide equal legal security to both parties of the tax - customs relationship and to obtain the achievements of a fast and effective justice, where the tax phenomenon as a whole comes from a single root and therefore must be unified for its judgment in a single interdisciplinary competence by the jurisdictional body and that the elimination of separation of powers currently existing in procedural legislation responds to the most modern canons of full tax dogma, to which the customs phenomenon is integrated, thus reaching the conclusion that the modification project is directed to the opening of the process before the Tax Court of the Nation and the effectiveness of effective jurisdictional protection.
First of all, it should be noted that effective jurisdictional protection for both tax and customs matters is fully safeguarded at present with the current composition of the Chambers with tax and customs jurisdiction, so that it can hardly be argued that the unification of jurisdictions that is being promoted is aimed at opening the process before this Tax Court, because both matters have the way open to appear before this jurisdictional body in safeguarding and defending their respective rights.
Although it is true that at the beginning this Tax Court was created with only tax jurisdiction, later, through decree 6692/63, customs jurisdiction was added to the tax jurisdiction, and its jurisdiction was then unified until 1972, when through law 20.024 its separation was arranged, establishing that the Court would be divided into six (6) chambers, four with exclusive jurisdiction in tax matters and two with jurisdiction in customs matters (art. 115). In this regard, it should be noted that the unification was left aside precisely for the sake of the exclusive specialization of its members in each of these matters, given the complexity of the regulations in force in both branches that led precisely to their separation.
Furthermore, the reform ignores the fact that the Members of this Court were appointed to their positions after a competition based on their backgrounds that prove their competence in tax or customs matters, as the case may be (Article 147, Law 11.683), a circumstance that is not validated by the reform that is being proposed to the first paragraph of the aforementioned article, as it replaces the disjunctive conjunction or the copulative conjunction, and because the competence they gained through a competition is being altered - a posteriori - in which they proved their knowledge in the tax or customs specialty, as the case may be, as required by the law in force at the time of their presentation in the call for the respective competition.
Second objection:
It is referred to the TRANSITIONAL RULES (Art. 3, point 1, last part), insofar as it establishes that through reform of the Rules of Procedure of the Court, the reassignment of Vocals and causes will be carried out.
Beyond the fact that the issuance of the Regulations is the exclusive responsibility of the Body, the proposal is unacceptable, since if -eventually- despite the majority opinion of the plenary against the unification of competences, this were to take place, it must govern for the future, and the order of original filing of the cases cannot be altered, since this would result in a violation of the principle of a natural judge.
Third objection:
If, it is reiterated, the draft partial reform of Law 11.683 were to be approved in any case, the entry into force provided for in Article 4 of the aforementioned Transitional Rules must be subordinated to this Court having a new structure appropriate to the jurisdiction being extended (e.g. closures) and the necessary financial means for this purpose, otherwise the supposed purpose of streamlining the processing of cases in pursuit of a rapid ruling would become a mere expression of wishes, since without human and technological means such a goal would be impossible to achieve.
Dr. Basaldúa said:
In view of the joint plenary meeting convened by Mr. President Dr. Agustín Torres for today (8-5-02) in relation to the matter identified as tax reform, I am obliged to point out:
PRELIMINARY CONSIDERATIONS
(l) That the draft prepared by Commission No. 28/02 was signed by the President of this Court without giving the members of the Court the opportunity to express themselves, either as a body or individually, on the draft in its entirety. The members were informed of the text that arrived hours before it was hastily signed on Monday, April 29, 2002.
Previously, the President had insisted in the previous meetings in which he addressed the issue before the members that there were only papers and that there was no actual project on which to express an opinion.
2) That the President of the National Tax Court is the natural and legal representative of the same (conf. law 11.683, to in 1998, art. 158). Likewise, in resolution no. 28/02 of the Ministry of Economy he was designated as representative of the National Tax Court (conf. art. 2º res. cited). However, Mr. President did not attempt to obtain in a timely manner from his representatives, the Honorable Members of the Court, their opinion on the project in whose elaboration he participated in the aforementioned capacity.
Furthermore, there were only two issues on which the members were able to express an opinion in a partial and urgent manner at the plenary meeting held on April 17, 2002, namely on the subject of the unification of tax and customs powers and on the new power assigned on closures. At the closures, almost all the members expressed themselves against their incorporation. On the subject of unification of powers, a clear majority of twelve to five voted in favor of maintaining the specialization. The minutes signed on April 29, 2002 at the headquarters of the Undersecretariat of Public Revenue did not record such a majority opinion, limiting itself to stating that it has been informed about the points of view of the members of the National Tax Court on some of the projected regulations, among them, the unification of jurisdiction in customs and tax matters, as well as the implications of such a decision, abstaining from voting on these issues, with the exception of Dr. Gustavo A. Krause Murguiondo, who did so in the affirmative. Dr. Agustín Torres reserves his favorable opinion on the text of the project, in all its parts. All these opinions, together with those of the members of the Commission, have been evaluated for the final drafting of the project.
On the other hand, it is clear that the opinions expressed by e-mail on Friday 26-4-02 by some members of this Court and addressed to the members of Commission No. 28 were not taken into consideration or subject to any debate, since on Monday 29 they were summoned to sign the minutes and not to discuss any matter.
3) It follows from the above that in preparing the project, the commission created by resolution No. 28 did not seek to obtain opinions other than its own, despite the fact that it was a question of amending Law 11.683 and the National Customs Code.
In particular, the representative sectors of foreign trade (Chamber of Importers, Chamber of Exporters, Argentine Chamber of Commerce, Association of Importers and Exporters of the Argentine Republic, Customs Brokers Center, etc.) have not even been heard, even though they were all summoned and were able to express their opinion at the time the Customs Code was drafted. The Argentine Institute of Customs Studies, which requested from Mr. Undersecretary Ballesteros in a note dated 24-4-02 the possibility of seeing the text of the project and expressing its opinion, did not receive any response.
No officials from the General Directorate of Customs or the National Tax Directorate participated in the commission, despite the powers assigned to them by law.
The Public Bar Association was also not given any intervention, despite the important modifications that are intended to be introduced in relation to sponsorship and representation in customs cases and in the integration of customs chambers.
It is pertinent to remember that before the approval of the Customs Code, the following institutions formulated comments and observations, which we mention in the order that corresponds to the date of their respective presentation: Banco de la Nación Argentina (27-9-79), Argentine Chamber of Commerce (28-9-79), Chamber of Commerce, Industry and Production of the Argentine Republic (28-9-79), Transatlantic Navigation Center (1-10-79), Mariano Moreno Higher Institute (1-10-79), Customs Tariff Nomenclature (1-10-79), Association of Importers and Exporters of the Argentine Republic (3-10-79), National Tax Court (4-10-79), Chamber of Manufacturers of Chemical-Pharmaceutical and Related Products (Proquifarma) (9-10-79), General Administration of Ports (10-10-79), Argentine Institute of Customs Studies (15-10-79 and 1-11-79), Customs Brokers Center (19-10-79), Institute of Legislative Studies of the Federation of Bar Associations (19-10-79), Argentine Industrial Union (26-10-79), Center of Cereal Exporters (1-11-79), Permanent Commission of Representatives of Aviation Companies on Facilitation for the Argentine Republic (16-11-79), Bar Association of the City of Buenos Aires (28-11-79), Chamber of Exporters of the Argentine Republic (13-12-79) and College of Graduates in Economic Sciences (21-4-80).
The lack of transparency in the processing of the project that now brings us together has been confirmed, unfortunately, by the members of this Court who were not appointed to be part of it nor were they informed in a timely manner of its development and conclusions. However, the lack of transparency has already been incorporated as a working method, since the Commission decided... not to record personal opinions or reservations, but rather the final result of the deliberations...
4) Furthermore, a divergence has been revealed between the opinion of the President of the Court and that of the majority of its members, who have not seen themselves fully represented by the President on the said commission.
GENERAL OBSERVATIONS ON THE PROJECT:
The project prepared by the commission created by resolution nº 28/2002 with the specific mission of proposing measures to optimize the operation of the National Tax Court, reducing the time taken to administer justice, does not meet the primary objective proposed.
In fact, rather than speeding up the administration of justice, it will cause a serious delay.
Firstly, with the unification of tax and customs powers, the processing of cases will take longer, as a consequence of the necessary study and updating of the subject matter that is incorporated into the current area of specialization by the majority of the members. As I stated in my previous vote on the subject, its solution will be significantly delayed and the quality of the sentences will be reduced in the face of the insufficient specialization, in many cases, of those who must dictate them. This also contradicts the purpose proclaimed in the Grounds of the reform project, when it states that said project tends to increase the value of a specialized justice….
Secondly, the incorporation of the competence over closures will force the members to urgently intervene in the most diverse situations, which will force them to postpone the solution of other causes.
2) The intended amendment to Article 1034 of the Customs Code, to replace it with a text stating that In all presentations in which legal issues are raised or debated, the intervention of a lawyer or public accountant will be mandatory, has no justification whatsoever and raises a serious problem of professional responsibilities.
It should be noted that such a claim regarding the new professional activity to be performed by public accountants was already considered when drafting the Customs Code and the commission chaired by public accountant Dr. Carlos Tacchi rejected it.
It should be noted that, currently, art. 146 of Law 11.683 (text ordered by Decree 821/98) provides that customs chambers must be staffed exclusively by lawyers. For their part, arts. 1030, 1034 and 1141 of the Customs Code provide that sponsorship and representation in customs matters is reserved for lawyers and attorneys registered in the federal court registry.
The rules of the Customs Code are not new and have their source in the provisions of arts. 26 and 27 of the Customs Law (consolidated text, 1962) as well as the provisions of art. 1, paragraph f), point 1 of the National Law of Administrative Procedures (law 19.549), arts. 31 and 32 of the Regulatory Decree of the latter (Decree 1759/72) and arts. 46 and 47 of the Civil and Commercial Procedural Code of the Nation.
Consequently, the replacement of arts. 1030 and 1034 and the deletion of art. 1141 of the Customs Code constitute an unfortunate modification that breaks with a legislative tradition in this matter.
3) The inclusion of public accountants in the Chambers with jurisdiction over customs matters is also not justified. This implies a clear lack of knowledge of customs matters, foreign trade regulations and at the same time raises a serious problem of professional responsibilities.
I have already expressed my opinion on the particularity of Customs Law and the impossibility of subsuming it under tax law in a previous opinion, to which I refer.
It should be noted here that under the title Grounds for the draft reform it is stated that the Tax Court is a body …where tax disputes are settled…, when the truth is that the customs matters over which this Court has jurisdiction far exceed such issues, with at stake often being the interpretation of the application of customs regimes and operations as well as customs criminal law, with its customs infractions whose types are linked to such regimes (CA, art. 1080). Nor is it taken into account that international trade is also regulated by non-tariff restrictions, which have nothing to do with the application of taxes, but with the application of absolute or relative prohibitions (conf. CA art. 1053, inc c).
Contrary to what is stated in the Fundamentals of the project, specialized doctrine in Europe has pointed out the phenomenon of the separation of customs duties from other internal taxes. Thus it has been noted that… the principles of the GATT have had the essential effect of radically dissociating customs duty from indirect taxation insofar as it is today fixed by convention and cannot therefore be raised unilaterally by the signatory States. The limits to the sovereignty of States do not stop, moreover, only at the rate of duty. They concern both the rules of collection and, to a certain extent, the customs formalities themselves (BERR, Claude, and TREMEAU, Henry, Le droit douanier communautaire et national, Economica, 4th ed., Paris, 1997, p. 3). In this regard, it is enough to remember that the taxable base of ad valorem customs duties must be determined based on the Agreement on the implementation of Article VII of GATT 1994, which implies the application of an entire legal system to determine the customs value of goods. And for this, the imported merchandise must have been previously classified in the Nomenclature of the Harmonized System, which must be done in accordance with the International Convention on the Harmonized System of Description and Coding of Goods of the World Customs Organization (Brussels 14-6-83 and Amendment Protocol of 1986, in force since 1988), of which our country is a party (law 24.206), which requires taking into account the General Rules for the Interpretation of the System as well as the Explanatory Notes (compiled in three volumes).
4) The project, by including an accountant in all customs chambers, will cause the division of the chambers in their natural and current integration, having previously filled each position individually by the appointment of a specialized member in a public competition of antecedents. Its division will raise the question of the natural judge in many customs cases, which is guaranteed by the National Constitution.
5) The comparison of the sanction of closure with the infringement relating to customs luggage is clearly unfortunate and implies a lack of knowledge of the system established in customs legislation for customs infringements. The weighting that led to such a comparison is not explained in the elevatoria note.
In this regard, the rule projected as art. 146 of 11.683 establishes that the application of penalties of closure and fines provided for in art. 40 of the law, as well as those referring to alleged violations of the baggage regime, will be resolved by the investigating member, without intervention of the other members of the Chamber that he or she integrates. It is noted that given the composition of the Chambers, the investigating member may be a public accountant and, according to the rule, must issue a sentence in the case of a criminal nature. Such a solution is not compatible with the respective professional responsibilities.
Furthermore, both the closure and the luggage violation can take place in any of the provinces of the Nation, so that in order to appeal their origin, those affected must go to the City of Buenos Aires, the seat of the Court, to achieve a quick and immediate solution.
6) In short, the project does not resolve the most pressing needs of the Court in the face of a constant increase in cases in both the tax and customs sectors. It should be noted that as of 28-2-02, the four tax chambers were processing 2.999 cases and the three customs chambers were processing 3.531 cases. Also, since the beginning of the current year until April 30, 226 cases were entered into the tax jurisdiction and 275 into the customs jurisdiction.
The project, beyond promising in the elevator note, once again, the provision of greater resources to the Court to undertake the jurisdictional function legally entrusted to it, does not fulfil the purpose declared in ministerial resolution no. 28/02 of ensuring a better and more accelerated management of justice.
In light of this, I believe that a detailed consideration of the project in question is not relevant at this time, and that a complete review should be proposed with the participation of all the interested institutions, with the possibility of being heard in a framework that guarantees transparency and participation, which is proper to a democratic system. That is my vote.
Dr. Basaldúa said at the previous Plenary Session on April 24, 2002:
By resolution No. 28/2002 of the Ministry of Economy and Infrastructure, published in the Official Gazette on 14/3/02, a Commission was created within the scope of said Ministry with the mission of proposing measures to optimize the operation of the National Tax Court, reducing the time taken to administer justice.
Having taken note of the text of a project prepared by this Commission that proposes to reform Law 11.683 and the National Customs Code, I observe that it includes, among other proposals, the modification of the powers assigned by said legal regulations.
In fact, it is proposed to unify the powers of the current tax and customs chambers into new chambers, which will therefore have to consider and resolve both tax and customs matters, that is, those related to internal taxation as well as those related to foreign trade.
In my opinion, the proposed solution will not only fail to optimize the functioning of the TFN by reducing the time taken to deliver justice, but will have the opposite effect, significantly delaying its resolution and reducing the quality of the sentences due to the lack of specialization, in many cases, of those who must issue them.
It should be remembered that the raison d'être of the National Tax Court is specialization.
Tax and customs matters present notable differences, which have led to the existence of separate legislation in almost all countries of the world, as well as separate institutions for their application.
First of all, it should be noted that Customs Law cannot be subsumed within Tax Law. Moreover, in the modern world, customs tax aspects are increasingly less relevant compared to the so-called non-tariff restrictions, which are also applied by customs (import and export prohibitions, absolute and relative, such as quotas, contingents, anti-dumping duties, compensatory duties, safeguards, import licenses, certificates of origin, technical barriers to trade, etc.). On the other hand, imports and exports carried out under customs suspensions are not subject to customs duties.
Secondly, the so-called customs tax law has peculiarities that clearly differentiate it from internal tax law. Thus, it is clear that the principles advocated by the doctrine in relation to the latter cannot be applied in their entirety to customs tax law. It is enough to recall here the inapplicability of the principles of non-confiscation (pointed out by Germán J. Bidart Campos, Derecho Constitucional, vol. II, p. 384), of proportionality (pointed out by Juan Carlos Luqui, La autoridad tributaria, Depalma, 1989, pp. 105 and 106) as well as that of economic or tax capacity. On the other hand, customs tax law is governed by a specific principle for customs duties, that of uniformity, enshrined in art. 75, inc. 1, of the National Constitution. We have previously dealt with these differences, indicating the opinions in the doctrine, in our work Derecho Aduanero, Abeledo Perrot, Buenos Aires, 1992, Chapter VII. 4 Relation to Tax Law, pp. 230 to 245.
Furthermore, the application of customs duties involves specific issues that are not considered in internal taxation. In fact, prior to the application of taxes, the merchandise must be individualized in the Tariff Nomenclature, which determines the need to classify the merchandise. This task constitutes a function of the Customs, which translates into a classification decision and is appealable before the Chambers with customs jurisdiction of the Tax Court. Consequently, specific knowledge regarding the classification of goods in the Harmonized System Nomenclature is required, which must be carried out in accordance with the International Convention on the Harmonized System of Description and Coding of Goods of the World Customs Organization (Brussels 14-6-83 and Amendment Protocol of 1986, in force since 1988), of which our country is a party (Law 24.206), which requires taking into account the General Rules for the Interpretation of the System as well as the Explanatory Notes (compiled in three volumes).
Once the merchandise has been classified in accordance with the applicable regulations, it is necessary to proceed to determine its tax base. In the case of ad valorem customs duties, which constitute the vast majority, import duties must be applied on the so-called customs value, which arises from the application of the valuation system established by the Agreement for the Implementation of Article VII of the GATT of 1994, approved in the Final Act of the Uruguay Round, which our country approved by law 24.425. It is a complex system applied by Customs and which is appealable before the Courts with customs jurisdiction of the TFN.
The determination of the applicable duties must be carried out by applying specific rules that regulate the taxable moment of customs duties (Customs Code, arts. 637 and 638), taking into account various circumstances of a customs nature and which distinguish between regular and irregular imports (customs offences) of the merchandise.
The need to address and apply the existing preferential tariff regimes, which arise from our commitments within the framework of ALADI (Montevideo Treaty of 1980) and MERCOSUR (Asunción Treaty of 1991) presents the problem of determining the origin of the merchandise, for which purposes standards have been established at the national level (Customs Code, art. 14 and law 19.640) and international level (Agreement on rules of origin, approved in the Uruguay Round law 24.425 and Kyoto Convention, Annexes D.1, D.2 and D.3, now in revised version in 1999).
In all Customs offices around the world there are departments or sectors specialised in matters relating to the classification, valuation and determination of the origin of goods. Furthermore, both at the national and international level (remember the specific international conventions that govern them) all these issues have been considered separately, due to their complexity and the specific problems they pose and the knowledge required for their interpretation and application.
In addition to what has been indicated in relation to the aspect related to tax customs law, we bear in mind that the majority of the 1091 articles that make up the Customs Code of the Nation do not deal with tax issues, but rather consider aspects that relate to the regulation of customs destinations for imports (import for consumption, temporary import, import transit and storage deposit) and exports (export for consumption, temporary export, export transit and removal), to the application of economic and non-economic prohibitions on imports and exports (called non-tariff restrictions), to the application of customs offenses (among the violations are inaccurate declarations, undeclared merchandise on board, violation of the obligations imposed as a condition of a benefit, violations of the regimes of suspensive destination, baggage, junk and diplomatic franchises, postal shipments, unjustified possession of merchandise of foreign origin for commercial or industrial purposes, petty smuggling), whose typicality is linked to customs regimes and operations, the regulation of special regimes (e.g. means of transport, containers, luggage, food, junk, border traffic, re-importation, etc.), it is noted that the content of Customs Law is much broader and requires special knowledge related to the regulation of foreign trade for its full interpretation and application.
It should be noted that the so-called customs economic regimes do not involve the payment of taxes as they are customs suspension destinations.
The progress of international law is noticeable in Customs Law, due to the creation of the World Trade Organization and the manifest extension of the competence of the GATT. Thus, the Customs Law of each country is already governed by such disciplines in certain sectors (e.g. valuation, origin, dumping, subsidies, safeguards). Other sectors are to a certain extent the responsibility of the World Customs Organization (nomenclature and classification).
All of the above allows us to note: 1) that the assimilation of Customs Law to a sector of tax law does not stand up to the slightest analysis; 2) that customs matters are so complex and extensive that they require specialization.
The foregoing considerations fully justify the existing differentiation of powers between the Chambers of the National Tax Court.
Its unification would inevitably entail a greater delay in the study and processing of cases.
It is enough to keep in mind that the clarification of these requires a thorough knowledge of the administrative procedures that are processed in two departments whose tasks are very different, since the General Directorate of Customs is not merely a collecting entity but must apply the external commercial policy and the same may have as its objective the protection of the industry and the facilitation of foreign trade and not an increase in collection.
Therefore, the analysis of these administrative files without being familiar with customs operations or those of the DGI will necessarily take more time for unified and non-specialized chambers.
It should be recalled that Article X of GATT 1994 provides that each WTO Member shall apply in a uniform, impartial and reasonable manner the laws, regulations and administrative provisions relating to customs classification or valuation and customs duty rates, import or export restrictions or prohibitions, to which end paragraph 3 provides that it shall maintain or institute, as soon as possible, courts or judicial or administrative proceedings which shall be independent of the bodies responsible for applying the administrative measures. Such a provision established by treaty has a higher rank than the laws of the Nation.
Finally, a legal issue must be kept in mind: the majority of the members of the National Tax Court have assumed their positions after a public competition of backgrounds related to knowledge in customs or internal taxation matters. Consequently, their suitability in the branch in which they have competed has been guaranteed by the respective competition. The proposed unification of competencies necessarily affects this accredited suitability and constitutes a moral violence for those who, from their studies and accredited knowledge, have chosen a defined competence, which is now intended to be modified, extending it to matters that, as has been demonstrated, are not similar to those assumed with responsibility. The suitability of judges is a guarantee for those administered and makes their right to defense in court, guaranteed by the National Constitution (arts. 16 and 18).
All of the above leads me to categorically reject the proposed unification of powers. That is my vote.
Dr. Silbert said that she supports Dr. Basaldúa's vote.
Dr Crescia said:
The project prepared by the Commission appointed by Resolution No. 28/02 clearly exceeded the purpose set forth in said Resolution in terms of proposing reforms to optimize the work of the National Tax Court. In fact, the project in question was not limited to the indicated purpose but extended to other issues that clearly satisfy other requests that reflect personal concerns of the members of the aforementioned Commission and of some group of professionals.
The following modifications serve as an example:
Non-compliance with promotional regimes is eliminated as an exception to the ex officio determination procedure (art. 14 of law 11.683).
A paragraph is removed from art. 143 of the tax procedure law that allows for non-compliance with promotional regimes to be considered void for tax purposes, creating resources for taxpayers with suspensive effects for determinations made by the tax authority as a result of the aforementioned non-compliance.
The creation of a case of suspension of the execution of the Court's ruling that determines taxes and/or their accessories, not only does not improve the performance of the Institution but will cause delays in collection (art. 65 inc. a).
The remedy provided for in the matter of closures before the Court has a suspensive effect, contrary to the one currently in force before the Federal Court. This characteristic will make it much more attractive for taxpayers because it will constitute an effective means to prevent the immediate application of the sanction, so it is foreseeable that in most cases they will appeal the measure imposed by the administrative authority and the possibility of discussing the fine (whatever its amount) that is applied together.
Far from speeding up the processing of appeals, all these issues will mean an increase in the number of cases, which is impossible to calculate at the moment, and a foreseeable increase in litigation and consequent delay in collection.
Furthermore, despite the planned unification of jurisdiction in the Court, there are still differences on issues such as the suspension of the statute of limitations on the powers and actions of the tax authority during the processing of cases, which can only be attributed to haste and lack of analysis or ignorance of customs legislation. Likewise, there are still procedural differences regarding the offering of evidence, imposition of costs, time limit for appealing amparo rulings, etc.
Otherwise I agree with Dr. Ricardo Xavier Basaldúa.
Dr. Sirito said:
On Monday, May 6th at 15.10:XNUMX p.m., I received the summons to attend this plenary session.
The second point of the call reads Tax Reform.
Later, by telephone, I was informed that the item was intended for us to present in writing the comments, suggestions and observations that we deserved regarding the opinion prepared by the Commission created by Ministerial Resolution No. 28 dated 8-3-02 (BO 14-3-02) later expanded by Ministerial Resolution No. 63 of 14-4-02 (BO 23-4-02) -of which I have just become aware yesterday-.
The urgency of the request is clearly surprising given the alternatives contained in the opinion issued by the aforementioned commission on 29/4/02, the analysis of which is intended, and which appear explicitly in the section Preliminary considerations of the vote of Dr. Basaldúa presented in this agreement.
Furthermore, I consider it unnecessary to make observations on a proposal that is already being processed with a view to becoming a draft that could be sent to the Legislative Branch for consideration shortly.
In the event that the outcome of this plenary session may have some effect on the aforementioned opinion, I would first like to point out that on the day it was signed - 29/4/02 - the President of the Commission, Dr. Eduardo Ballesteros, did so in his capacity as head of the Sub-Secretariat of Public Revenue of the Nation, when in fact the new Minister of Economy of the Nation had assumed office on Saturday 27/4/02, and was presumably confirmed in office on 2/5/02, as reported in the newspaper La Nación on that same date - page 7 of the main section.
I do not lose sight of the fact that this brief incompetence due to time was remedied by the aforementioned confirmation of the official, but the above points show that the signing of the opinion of the self-proclaimed Commission 28 could have been postponed.
I also note that this is the first time that in a proposal to modify a law of such importance, the different or opposing opinions on each of the reformed articles are not reflected in the preamble to the report, even more so if one takes into account that the members of the Commission represented state and private entities.
Although there is much that could be proposed or objected to - and in general terms my distinguished colleagues have done so in the votes that I have seen - due to the urgency I consider it appropriate to refer to what was said in the e-mail written at the last minute on 26-4-02, which for technical reasons was received by the members of Commission 28 on 29-4-02 before the signing of the commented opinion, and which I consider should be expressly recorded in this act.
Through the Members of this Court who are members of the Commission created within the Ministry of Economy and Infrastructure by Resolution of that Ministry No. 28 dated 8-3-02 (BO 14-3-02) whose mission is to propose measures to optimize the operation of the National Tax Court, reducing the time taken to administer justice, we have been verbally informed of the most relevant reforms proposed within that Commission, and said information was completed at the joint plenary meeting held today at 15.30:XNUMX p.m.
As a result of the debate and votes made at the session of April 17, we wish all members of the Commission to be aware that, after voting on only some of the issues of the proposals of which we were informed, the result was as follows:
I. The seventeen (17) present Members unanimously advocate that any reform that is promoted take into account that it is essential to previously provide the Court with the infrastructure resources (building, computerization, work elements, etc.) and human resources (expansion of staff - currently with Members included it amounts to one hundred and thirty-seven (137) positions, of which only one hundred and nine (109) are currently covered). It is estimated that this requirement is prior to any other consideration, since it is already difficult at present to effectively comply with the respective assigned competencies.
II. When the issue of unification of jurisdiction was put to a vote, that is, that all the Chambers deal with tax and customs matters, for which one more Chamber would be created and four Members with a Public Accountant degree would be incorporated, twelve (12) Members voted against and five (5) in favor of the unification.
There was a broad debate and the majority of the members cited legal and expedient reasons in relation to the current situation in the country.
Among the legal issues, we send the vote presented by Dr. Ricardo Xavier Basaldúa, Member of the Customs jurisdiction, with a recognized career and prestige in the field of Customs Law.
III. Likewise, a vote was taken on whether it was appropriate to enable the competence regarding the sanction of closure and whether this power should be exercised in a single-person manner, by twenty-four (24) Members (16 with a degree in Law and 8 with a degree in Public Accounting) who would decide for themselves. This vote resulted in fifteen (15) voting against and two (2) voting in favor.
Legal reasons were put forward on this issue (mainly the meaning of the integration into Chambers, for which the Commission favours the incorporation of professionals with a Public Accounting degree); also because of the transparency that the decision by the Chamber means; the lack of fiscal interest "taking into account that the closures do not contribute income to the Treasury coffers-; also the commitment that it means for a Court located in the sphere of the Administrative Power to venture into urgent issues related to the freedom to exercise commerce, a constitutional right that by its rank deserves a more detailed consideration. Even more so if there are no resources and infrastructure and human resources that, as has been pointed out, are prior to any reform.
IV. Finally, also unanimously, the present Judges supported returning to the previous legislation that established the possibility of offering and processing evidence in this jurisdictional instance, without prejudice to that offered in the administrative headquarters, taking into account that the Court is an administrative body with full jurisdiction.
NOTE: It should be noted that, as we did not have access to the working papers that were circulated in advance among the members of the Commission, we refer only to those issues that came to our attention.
On the table, Drs. Urresti, Wurcel and Litvak said:
Given the large number of votes on Opinion of Commission No. 28, we consider it appropriate to propose the creation of a commission to prepare a working paper on the aspects contained therein, the conclusions of which will be evaluated at a future Plenary Session.
The members unanimously AGREED: To entrust a committee with the preparation of a working paper regarding the content of the Opinion issued by Committee No. 28, within ten days, which will be submitted to the Plenary for consideration. The Committee will be composed of Drs. Catalina García Vizcaíno, Silvia A. Crescia and María Isabel Sirito. The event ended at 17,45:XNUMX p.m. Please register.
