In Buenos Aires, on the day of the month of October 2003, the Honorable Members of the Chamber "E", doctors Gustavo A. Krause Murguiondo, Catalina García Vizcaíno and D. Paula Winkler, with the president of the Honorable Member named in the first place, met in order to resolve the proceedings entitled: "VICENTE TRAPANI SA, c/DGA s/recurso de engaño", file no. 18.611-A.-
Dr. Krause Murguiondo said:
I- That on pages 10/14 the signature of the epigraph by proxy (see pages 18), files an appeal against Resolution No. 382/03 issued in file EA52-2605/00 by the Rosario Customs. He sets forth and justifies his grievances. He offers evidence and requests that the appealed resolution be revoked.
II- That prior to any other procedure, it is necessary to decide on the temporality of the appeal filed in the case.
It should be noted that the deadline for filing appeals against decisions issued in challenge proceedings is 15 business days, as provided for in art. 1133 of the CA. That the decision in question was notified to the plaintiff on 11-7-2003 (see pages 6/back). Therefore, the deadline for appealing the decision in question expired within the first two hours of August 19, 2003, while the plaintiff filed the same on August 21, 2003 (see charge on pages 14/back).
That consequently the appeal filed in the case should be declared untimely.
Likewise, the deadline for filing an appeal is a peremptory deadline, so once it has expired, the right expires.
Consequently, it is appropriate to declare the inadmissibility of the appeal filed against Resolution No. 382/03 issued in file EA52-2605/00 by the Rosario Customs Office as untimely.
Therefore, I VOTE FOR:
Declare the inadmissibility of the appeal filed against Resolution No. 382/00 issued in file EA52-2605/03 by the Rosario Customs Office due to being untimely. Without costs, given that there has been no procedural activity by the tax representation.
Dr. García Vizcaíno said:
That although the undersigned has repeatedly considered that it is impossible to extend the deadline for filing the appeal due to the possibility provided for in art. 81 of the DR of law 11.683 of filing the appeals before the dependencies of the current AFIP-DGA corresponding to the tax domicile (Tax Law, Vol. II, p. 136 -1st edition-, p. 169 -2nd edition-, Depalma, 2000), at present I consider that the appeal should be considered filed in a timely manner, given that the appellant's actual domicile is in the town of Los Nogales, Province of Tucumán (see F4 of fs. 1 of the files).
That the address established in customs proceedings is not necessarily identified with the tax address (see arts. 1001, 1002, 1003, 1004 and 1005 of the CA).
That, therefore, as I held in my vote in Volkswagen Arg. SA, dated 26/3/01, file No. 13993-A-, for the appeal of the final resolutions issued in the challenge procedure, issued by customs offices that are not located in the jurisdiction of the tax domicile of those affected, the extension of the term due to the distance contemplated by art. 1036 of the CA is applicable, in accordance with art. 158 of the CPCCN.
That, applying such regulations, it can be concluded that the appeal in this case has been filed in a timely manner.
That this solution, in my opinion, adequately safeguards the right to a defence of constitutional origin.
It is also worth remembering that Chamber 5 of the CN Cont.-Adm. Fed. Cap. in Oeste Automotores SA, dated 2/4/96 (DT, XIII-36) admitted the applicability of art. 158 of the CPCCN on the extension of the time limits for appealing before this Court, pointing out that even though the issue is doubtful, it is appropriate to seek a solution that contributes to the full exercise of the established challenge devices, a criterion that is imposed by the restrictive interpretation that, from a general perspective, can be assigned to mechanisms that destroy rights.
Therefore, I vote for:
1°) To consider as timely filed the appeal filed against Resolution No. 382/03 issued in file EA 52-2605/00 by the Rosario Customs Division.
2°) Return the files to the 14th Nomination Chamber for the continuation of the procedure.
Dr. Winkler said:
I agree with the preceding vote.
By virtue of the above agreement, by majority, IT IS RESOLVED:
1°) To consider as timely filed the appeal filed against Resolution No. 382/03 issued in file EA 52-2605/00 by the Rosario Customs Division.
2°) Return the files to the 14th Nomination Chamber for the continuation of the procedure.
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