In Buenos Aires, on the 28th day of August 2000, the members of Chamber "E", Drs. Catalina García Vizcaíno, D. Paula Winkler and Gustavo A. Krause Murguiondo, with the last named member presiding, met in order to resolve the proceedings entitled: "VOLKSWAGEN ARGENTINA SA v. DGA s/ appeal»; file No. 13.985-A.
Dr. Catalina García Vizcaíno said:
I) That on pages 33/41 back, Volkswagen Argentina SA, through its representative, files an appeal against Provisions Nos. 1270, 1296, 1294, 1292, 1263, 1264, 1302, 1259, 1281, 1279, 1304 and 1299 of 2000, issued in files EA42-99 Nos. 11097, 11508, 11497, 11404, 11126, 11124, 11562, 8856, 11073, 11076, 11572 and 11524.
That on page 43, before providing, the plaintiff is required to, within a period of five days, settle the interest corresponding to the charges whose amounts do not reach the amount established by law 25.239.
That on pages 56/58 the plaintiff complies with the requirements. From said liquidation it is clear that in relation to Provisions Nos. 1302/00 referring to charge No. 4797/99, and challenged in file No. EA42-11562/99 and 1294/00 referring to charge No. 4879/99 and challenged in file No. EA42-11497/99, this Court is incompetent due to the amount.
That this is so because art. 19, point 1, of law 25.239, published in the Official Gazette on 31/12/99, has replaced the minimum appealable amount of paragraphs a), b) and c) of section 1 of art. 1025 of the CA., raising it to more than $2.500 - charge No. 4879/99 plus interest amounts to $1.638,16 and No. 4797/99 to $2.295,09-.
That Law 25.239 came into force for the purposes of Title XVI (Art. 26, paragraph k), as of January 1, 2.000, which is why, on the date of filing the appeal (22/5/2000 -see charge on file at fs. 41 back-), it was in force.
That being so, it is appropriate to declare the incompetence of this Court due to the amount questioned in the proceedings with respect to the aforementioned Provisions, which do not reach the minimum established by the aforementioned law.
It should be added that the lack of jurisdiction of this Court, due to the amount, does not prevent the plaintiff, in accordance with art. 19 in fine of the RP of the TFN, from being able to appeal various administrative resolutions issued by the same collecting agency in a single document, which means filing jointly all the actions it has against the appealed entity, since although this action requires the comprehensive composition of the different litigations that make up the objective accumulation, this does not mean that it is a plurality of actions, the disputed amount of which must be established independently for the purposes of the jurisdiction of the Court due to the amount.
That, likewise, by application of art. 1017 of the CA and in order to duly safeguard the rights of the plaintiff - in my opinion - the appeal filed regarding Provisions Nos. 1294/2000 and 1302/2000, confirming charges 4797/99 and 4879/99, should be reclassified as a "minor" hierarchical appeal under arts. 89, 90 and 93 of the DR of the National Law of Administrative Procedures (as a prior stage to the eventual judicial instance), taking into account that the provisions of the aforementioned Provisions totally prevent the substantiation of the plaintiff's claim. No reclassification in the appeal for reconsideration of art. 84 of the DR of the National Law of Administrative Procedures (which implicitly entails, in subsidy, the hierarchical appeal), given that it does not arise from the proceedings that the appeal was filed within the 10-day period provided for in art. 84 of the DR of the LPA
Therefore, I hereby request that this document be forwarded to the Director General of Customs so that he may process it accordingly.
That a solution contrary to the aforementioned reformulation could prevent the possibility of judicial review, since according to arts. 1139 and 1183 of the CA, the final resolutions that are part of the challenge procedure, when they become final, become res judicata and according to art. 1132 ap. 2 of the CA, the Tax Court of the Nation is the exclusive appeal channel regarding the challenges of art. 1053 of the CA, except with regard to subsection f) of this rule.
That, therefore, despite the fact that the CA does not contemplate the reconsideration appeal - which has been suppressed, according to its Statement of Reasons, because "experience has shown its ineffectiveness" - in the case we are analyzing, it could be estimated that the interested parties have the possibility of filing the reconsideration appeal of art. 84 of the DR of the LPA - within the period of 10 days of the notification of the resolution that rejects the challenge for amounts equal to or less than $ 2.500 - and the hierarchical appeal of arts. 88, 89, 90, 93 and concordant of the DR of the LPA, as a previous step for the judicial claim, in order to exhaust the administrative route.
That the Supreme Court has held 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 the one that reconciles them and leaves all with value and effect (doctr. of «Fallos», 296-372, 297-142, 300-1080) and that «the first source of interpretation of the law is its letter («Fallos», 299-167 and 304-1820). But to this it is necessary to add that the hermeneutics of the law is not exhausted with the reference to its text, but rather it must also be investigated what it says legally, giving full effect to the intention of the legislator, computing the totality of its precepts in such a way that they harmonize with the remaining legal system and with the principles and guarantees of the national Constitution («Fallos», 304-937)».
It is worth remembering that, following the precedent of "Fernández Arias, Elena" ("Fallos", 247-646), the jurisprudence of the Supreme Court has been consistent in admitting the constitutional validity of stable administrative jurisdictional bodies, that is, those created outside the framework of the Judiciary, provided that the activity of these bodies - among other conditions - is subject to limitations that it is not lawful to transgress, especially the one that requires their pronouncements to be subject to sufficient subsequent judicial control (doctrine of "Fallos", 247-646, 253-485, 278-287 and many others; in a similar sense, CNCont.-Adm. Fed. Cap., Sala 1, "De la Fuente, Gabriel", dated 28/12/79; Sala 4, "Fox Film de la Argentina SA", dated 26/12/80). In its rulings, 205-17 and 245-351, the Court clarified that sufficient judicial control means: a) recognition of the right of litigants to lodge appeals before ordinary judges; b) denial of the power of administrative courts to issue final decisions on the disputed facts and law, except in cases where, having a legal option, the interested parties have chosen the administrative route, voluntarily depriving themselves of the judicial route.
That in accordance with these jurisprudential principles, the possibility of resorting to the judicial route must be recognized to anyone affected by the issuance of a final resolution that falls on the subject matter of challenge, or by the delay in issuing it, if the amount in dispute is equal to or less than $2500. For amounts that are greater than this figure, the TFN is exclusively competent (art. 1132, ap. 2 of the CA), without the legal system expressly providing for procedural remedies for lower amounts, with the aggravating factor that – as I stated supra - according to arts. 1139 and 1183 of the CA, the resolutions that fall on the challenge procedure, once final, become res judicata, which prevents a new pronouncement on the facts that were the subject of the proceedings.
That the interpretation I propose - in my opinion - seems to be consistent with the principle of defense in court guaranteed by art. 18 of the National Constitution and international treaties (e.g., art. 8, paragraph 1 of the American Convention on Human Rights and art. 14, paragraph 1 of the International Covenant on Civil and Political Rights), which have constitutional hierarchy according to art. 75, paragraph 22 of the CN.
Lastly, the reformulation that I propose is based on the application of the principle of informality in favor of the administered -conf. arts. 1º inc e), 7, and 5º of the National Law of Administrative Procedures, this order of supplementary application in the matter according to decree 722/96, and art. 1017 of the CA-; it is not relevant in this aspect that the appellant had not expressly requested it, since these are provisions that affect the rights of the litigants to obtain a reasoned resolution to their requests.
Therefore, I vote for:
1) To declare "in limine" the lack of jurisdiction of this Court due to the amount to hear the appeal filed against AD PASO Provisions Nos. 1294/2000 and 1302/2000, and to reclassify it under the "minor" hierarchical appeal of arts. 89, 90 and 93 of the DR of the National Law of Administrative Procedures. Without costs, given the procedural state in which the lack of jurisdiction is declared.
2º) Through the General Secretariat of Customs Affairs, this pronouncement is brought to the attention of the Director General of Customs, attaching a copy of the document on pages 33/41 back and the copies added by the plaintiff relating to files EA 42-11562/99 and EA42-11497/99 (pages 19/20 and 27/28).
3rd) Return the files to the 15th Court of Appeals. Nomination for the substantiation of the appeal regarding the rest of the appealed resolutions.
Dr. Winkler said:
That the facts have been related in the preceding vote.
That art. 19 of the RGPTFN allows for the accumulation of actions, meaning that it is possible to appeal in the same appeal several administrative resolutions issued by the same collecting body.
That, in light of the foregoing, the amount of all the actions is “in my judgment” the amount that should be taken into account in determining jurisdiction based on the amount to appeal to this Court.
Accordingly, I vote to declare the jurisdiction of this Court to hear the case. The same shall be returned to the 15th Nomination Chamber to hear the appeal of all the decisions contested here.
That, notwithstanding, knowing the majority opinion expressed in the resolution dated 25/8/00 issued in the proceedings with the same title as this one, file No. 13.939-A, as to whether or not the reframing advocated by Dr. García Vizcaíno in her vote is appropriate, I agree with the conclusion reached insofar as the administrative bodies are obliged ex officio to forward the file with respect to which they declare themselves incompetent to the relevant body (art. 5, sec. 1 LPA No. 19549. In the same sense, from the High Court, Chamber V, Vieytes SACIFIeI v. DGI, judgment of 13.2.97 and Grandes Pinturerías del Centro, of 6.4.93).
Dr. Gustavo A. Krause Murguiondo said:
I.- That she shares the vote of Dr. García Vizcaíno in declaring the Tax Court's lack of jurisdiction in the case with regard to the aforementioned provisions.
II.- That it does not share the restructuring of the appeal formulated in the previous vote. I consider that the Court lacks jurisdiction to formulate the restructuring of an appeal that is not within its competence and to impose its knowledge on another administrative body, therefore its decision is not binding on the relevant administrative body. All of this without prejudice to the presentations that the plaintiff may make in this regard at the administrative headquarters, and to what is resolved there.
III.- The files must return to the 15th Chamber to continue their processing.
In accordance with the above agreement, by majority, IT IS RESOLVED:
1) To declare "in limine" the lack of jurisdiction of this Court due to the amount to hear the appeal filed against AD PASO Provisions Nos. 1294/2000 and 1302/2000, and to reclassify it under the "minor" hierarchical appeal of arts. 89, 90 and 93 of the DR of the National Law of Administrative Procedures. Without costs, given the procedural state in which the lack of jurisdiction is declared.
2º) Through the General Secretariat of Customs Affairs, this pronouncement is brought to the attention of the Director General of Customs, attaching a copy of the document on pages 33/41 back and the copies added by the plaintiff relating to files EA 42-11562/99 and EA42-11497/99 (pages 19/20 and 27/28).
3rd) Return the files to the 15th Court of Appeals. Nomination for the substantiation of the appeal regarding the rest of the appealed resolutions.
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