TAX COURT OF THE NATION
Buenos Aires, October 10, 2001.
CARS AND SEEN:
File No. 13.623-A, entitled: VOLKSWAGEN ARGENTINA SA v. GENERAL DIRECTORATE OF CUSTOMS s/ appeal, and
CONSIDERING:
I.- That at fs. 36/42vta. The company VOLKSWAGEN ARGENTINA SA is represented by proxy. (continued from AUTOLATINA ARG. SA, which absorbed TRANSAX SA) and appeals against resolutions Nos. 505/99 (EA17-95-12.513); 499/99 (EA17-95-11.690); 733/99 (EA17-95-11.715); 496/99 (EA17-95-12.504); 506/99 (EA17-95-12.509); 567/99 (EA17-95-12.383); 504/99 (EA17-95-12.515); 507/99 (EA17-95-12.507); 498/99 (EA17-95-12.839); 500/99 (EA17-95-11.730) and 501/99 (EA17-95-12.134). He states that through the import dispatches, copies of which are attached, merchandise originating in Brazil was imported under ACE 14 – Protocol 21, guaranteeing the lack of certificates of origin, which were subsequently presented to Customs after three months, with the consequent automatic fine. He added that, however, charges were made for the difference in duties, which gave rise to the appeal claims, which were rejected by Customs. It points out that the appealed decisions refer to mere formal issues: that the certificates have a validity period of 180 days from their issuance; that according to Notice 77/95, they must be issued within 10 days of shipment and, finally, that the certificates must be presented within three months, referring to Res. 1022/92. It understands that Customs has misinterpreted the Agreement, since it does not foresee the collapse of the regime due to mere formal issues. It states that these are imports of merchandise originating in Brazil, and that the tariff benefit is derived from this zonal origin, duly accredited by means of certificates of origin. He claims that the appealed rulings resolve contrary to the letter of the Agreement and the recent doctrine of the Court when resolving the Mercedes Benz-case 8010-A and Autolatina Argentina SA cases. Case 7893-A, where priority was given to a harmonious interpretation of the rules, rejecting the position of Customs and the Tax Court that declared the certificates invalid for mere formal reasons. He added that Customs is aware of the origin of the imported merchandise, as they are the same pieces that have been imported before and after the cases in question. It is noted that the applicable origin regime in this case is the 17th PA of ACE 14, which provides a similar system for resolving deviations as art. Article 16 of Annex V of ACE 14, which prevents the imposition of sanctions or the loss of benefits agreed by the regime without prior request for reports aimed at amending formal issues. He adds that if Customs had understood that local customs control was compromised due to incorrectly presented and issued certificates, it should have observed the mechanism established by the Agreement, and produced the evidence offered at that headquarters to request a report from the certifying entity and the exporting company. It concludes that, since the Brazilian origin has been accredited at customs with the certificates that support the imported merchandise with preference, there is no doubt that the benefit applies and that the appealed decisions violate the property, legality and due process, in addition to the intelligence of the exchange regime protected by the Treaty and ratified by the Court's ruling. He offers evidence, reserves the right to a federal case, and requests that the appealed rulings be vacated.
II.- That on pages 78/81 the representative of the GENERAL DIRECTORATE OF CUSTOMS answers the transfer of the appeal. She claims incompetence due to the amount with respect to three of the disputed charges. She states that all the instruments attached in order to certify the origin of the merchandise imported under the preferential regime suffer from essential defects that prevent them from being considered valid, as regards the conditions under which they must be issued, that is, their origin as a suitable document. She adds that the lack of this requirement cannot be corrected or remedied in the future through extended or supplementary information and that the customs service has not deviated from the factual reality that makes up the present case, having carried out a correct application of the regulations that govern it. She understands that the consultation system is not applicable because the certificates do not have elements that cast doubt on their validity. She offers evidence and requests that the appeal filed be rejected, with costs.
III.- That at pages 85/88 the plaintiff answers the claim of incompetence made by the fiscal representative. At pages 93/94 the preliminary question is resolved, declaring the lack of jurisdiction based on the amount of the Court to hear the appeal of resolution No. 733/99. At pages 95 the evidence offered by the appellant is rejected, and at pages 96/96 a revocation appeal is filed, which is resolved at pages 104. At pages 108 the files are forwarded to Chamber F and proceed to judgment.
IV.- That the customs service made various charges to the appellant for differences in taxes, based on the fact that the certificates of origin involved in each of the administrative actions were presented outside the three (3) month period, counted from the registration of each import clearance (Res. 2536/95); because they were issued after ten (10) business days following the shipment of the merchandise (Notice No. 77/95 ANSTOC) and because they are not valid (180 days) counted from the date of issue (Res. 78/87 ALADI).
That through the import clearances involved in the case, the appellant firm documented the import of different parts and pieces for the manufacture of automobiles, in accordance with the terms of ACE 14, Protocol 21, having attached a guarantee form, due to the lack of certificates of origin. Subsequently, the certificates of origin corresponding to each import clearance were presented to Customs.
V.- That the matter brought to the attention of this Court must be analyzed in light of the provisions contained in the Partial Scope Agreement on Economic Complementation No. 14, signed between the Republic of Argentina and the Federative Republic of Brazil; in particular, its Annex V - Regime of Origin -, a rule that specifically regulates the origin of the goods imported under said Agreement, without prejudice to what is also regulated in this regard by Resolution No. 78/87 - General Regime of Origin for the Latin American Integration Association -, which is of a general nature.
In this regard, Article 180 of Annex V establishes that in order for the importation of products included in the Agreement to benefit from the reductions in taxes and restrictions granted by the signatory countries among themselves, a declaration must be included that certifies compliance with the requirements of origin. This declaration, Article 3 adds, must be issued by the final producer or exporter and certified by an official department or trade association with legal personality, authorized by the Government of the exporting country. Article 78 establishes that the certificates of origin issued will have a validity period of 87 days, counting from the date of their issuance. The same provision is contained in Article 180, paragraph XNUMX, of Resolution No. XNUMX/XNUMX of ALADI, stating that the certificates of origin will have a validity period of XNUMX days, counting from the date of certification by the competent body or entity of the exporting country.
In all the cases at hand, it turns out that the certificates of origin were issued by the entity authorized for that purpose, not only after the shipment of the merchandise but also after the registration of the import destinations for consumption. In fact, DI 14705-67/94 was registered on 20-10-94 and the CO was issued on 24-11-94; DI 13648-9/94 was registered on 3-10-94 and the CO was issued on 24-11-94; DI 12.122-3/94 was registered on 7-9-94 and the CO was issued on 24-11-94; DI 14.556-2/94 was registered on 18-10-94 and the CO was issued on 24-11-94; DI 11.740-4/94 was registered on 1-9-94 and the CO was issued on 24-11-94; DI 14.226-6/94 was registered on 13-10-94 and the CO was issued on 29-12-94; DI 15.608-5/94 was registered on 3-11-94 and the CO was issued on 24-11-94; DI 11.739-8/94 was registered on 1-9-94 and the CO was issued on 24-11-94; DI 11.567-5/94 was registered on 30-8-94 and the CO was issued on 24-11-94 and DI 13.720-8/94 was registered on 4-10-94 and the CO was issued on 24-11-94.
That subject to the provisions of the twelfth article of Annex V, if a certificate of origin is valid as of the date of its issue or certification, since each of the imports was made prior to that date, there is no valid certificate that duly accredits the intended origin of the goods. That is to say, the validity of the certificate operates from the moment of its issue, because this is expressly established by the Agreement, hence its effects operate for the future, such that the import to which each certificate of origin presented by the plaintiff is intended to be attributed must necessarily be made within 180 days of the date of issue of the certificate of origin and such legal requirement is not fulfilled in any of the operations under analysis.
Furthermore, it should be noted that none of the certificates of origin submitted comply with the requirement contained in the Twenty-Sixth Additional Protocol, in force since 26-7-94, which establishes that: In all cases, the certificate of origin must have been issued prior to the date of shipment of the merchandise covered by it and, at the latest, within ten business days following the aforementioned date. This assertion is supported by the customs and complementary documentation contained in each of the import clearance folders.
That in turn, CO Nos. 5825/94, 5804/94, 5782/94, 6937/94, 5775/94 and 5780/94 attached to DI Nos. 13.648-9/94, 12.122-3/94, 11.740-4/94, 14.226-6/94, 11.739-8/94 and 11.567-5/94, respectively, also do not comply with the provisions of ALADI Agreement No. 91, which expressly establishes in its art. 2º that without prejudice to the period of validity referred to in the General Regime of Origin in its article 7, paragraph 3, the certificates of origin may not be issued before the date of issue of the commercial invoice corresponding to the operation in question, but on the same date or within the following sixty days, as long as the aforementioned certificates were all issued after 60 days of the issue of the corresponding commercial invoices. Indeed, CO No. 5825/94 was issued on 24-11-94 and the commercial invoice No. 14.631/94 to which it corresponds was issued on 15-9-94, CO No. 5804/94 was issued on 24-11-94 and the commercial invoice No. 14.391/94 to which it corresponds was issued on 2-9-94, CO No. 5782/94 was issued on 24-11-94 and the commercial invoice No. 14.037/94 to which it corresponds was issued on 23-8-94, CO No. 6937/94 was issued on 29-12-94 and the commercial invoice No. 15.208/94 to which it corresponds was issued on 1-10-94, CO No. 5775/94 was issued on 24-11-94 and the commercial invoice No. 13.958/94 to which it corresponds was issued on 18-8-94 and CO No. 5780/94 was issued on 24-11-94 and the commercial invoice No. 14.008/94 to which it corresponds was issued on 22-8-94.
VI.- It must be determined whether the requirements not met by the certificates of origin in question are or are not merely formal.
It is the reiterated opinion of the undersigned, supported in various precedents followed between the same parties in litigation, that said requirements do not constitute a mere formality, since they make the certificate valid (among others, Sala F, judgment of 31-8-99, file no. 9274-A, AUTOLATINA ARGENTINA SA), insofar as it concerns the conditions under which it must be issued, that is, its birth as a suitable document, and its purpose is to ensure timely and adequate control over the existence and origin of the merchandise by the entity authorized to issue it.
In this regard, it should be noted that failure to comply with these demands or requirements, unlike other deficiencies relating to the description and individualization of the merchandise, cannot be corrected or remedied in the future by means of additional or supplementary information provided by the issuing entity, as the appellant mistakenly claims.
That, consequently, in this case the consultation system provided for in the sixteenth article of Annex V of ACE 14 and in the twelfth article of Chapter IV of the 17th Additional Protocol, the latter being reserved for those cases in which the administration of the importing country has doubts as to the authenticity or veracity of the certification, or as to compliance with the requirements of origin, is not applicable…..
It should be noted that the aim here is not to verify the authenticity of the certificate or to dispel any doubts of the customs administration regarding the goods in question, which may arise from the verification of the same or from the description of the goods made both in the customs document and in the CO, cases for which the aforementioned temperament has been provided for in the cited articles. What has been breached here relates to the opportunity in which the certificates of origin have been issued and not to their authenticity or content.
That according to the Vienna Convention on the Law of Treaties – which the Argentine Republic approved by law 19.865 of 1972 and which, on the other hand, the Federative Republic of Brazil did not approve – treaties must be complied with (art. 26: pacta sunt servanda: Every treaty in force is binding on the parties and must be complied with by them in good faith) and, in this case, the Contracting Parties clearly and expressly established a deadline for the issuance of certificates of origin, so there is no room to depart from the will thus expressed in the Protocol in question.
That the Contracting Parties, when agreeing to preferential tariff regimes, make the benefits subject to compliance with certain requirements. This is the case with ACE 14, and they adopt the necessary measures to ensure adequate and efficient control over the benefited goods, which are none other than those originating in the respective countries.
VII.- That without prejudice to the opinion previously expressed, it is appropriate to consider the doctrine established by the Supreme Court of Justice of the Nation in relation to the validity of certificates of origin in re MERCEDES BENZ ARGENTINA SACI, judgment of December 21, 1999 and in re AUTOLATINA ARGENTINA SA- TF 7920-A c/ DGA, judgment of August 24, 2000, in order to determine whether it is applicable to the case.
That the Supreme Court in the cited precedents has taken into consideration the non-compliance with formal requirements, which could be remedied by means of the procedure provided for in article twelfth of Annex V of the cited Protocol, obtaining from the authorities of the exporting country the additional information that corresponds to solve the problem.
That in this understanding, it has come to consider a merely formal requirement: a) the fact that the certificate of origin is issued after the shipment of the merchandise, despite the provisions of ACE 14, Seventeenth Additional Protocol; b) the fact that it is issued after ten business days from shipment, despite the provisions of ACE 14, Twenty-sixth Additional Protocol; c) the fact that the certificate is issued even after the time of clearance of the merchandise, despite the provisions of ACE 14 (both Protocols) and the provisions of CA, art. 639, which sets the relevant time to determine the tax treatment of the merchandise.
That this criterion has been reiterated by the SCJN, in re Ciadea SA (TF 8159-A) c/ANA, judgment of 21-12-99, where it confirmed the judgment issued by Chamber 5 of the CNACAF, dated 29-8-97, in which the different date between the certificate and the commercial invoice was considered a formal breach.
That, consequently, leaving our opinion unchanged, by applying the criteria established by the High Court, in the case at hand there is no other option than to admit the validity of the certificate of origin attached to the import operation for consumption.
Therefore, IT IS RESOLVED:
1.- Revoke Resolutions Nos. 505/99, 499/99, 496/99, 506/99, 567/99, 504/99, 507/99, 498/99, 500/99 and 501/99 and the charges confirmed by them, with costs.
2.- Once the professionals involved in the proceedings have complied with the declaration of their registration number in the DGI and their status with regard to VAT, their fees will be regulated.
Register and notify. Let this be signed by the General Secretariat of Customs Affairs, return the administrative proceedings and file them in due course.
SIGNED: Drs. Susana Silbert, Silvia Crescia and Ricardo Xavier Basaldúa.
