Supreme Court
- YO -
On pages 293/296 back, Chamber V of the National Court of Appeals in Federal Administrative Litigation upheld the judgment of the National Tax Court (on file 230/235 back), which, in turn, had partially ratified Resolution DE PLA 2.296/06, issued by the Head of the Customs Legal Procedures Department, insofar as it had reassessed a series of charges for import operations carried out in 1995, applying for this purpose the provisions of Law 25.561, Decree 214/02 and external notes 02/04 and 09/05 (DGA) and ordering the conversion of the debt into pesos and the adjustment by the reference stabilization coefficient (CER, hereinafter), plus the corresponding interest.
First, the Court rejected the arguments regarding the inadmissibility of the CER for the liquidation of the indicated debts. It argued that art. 6 of Law 20 stipulates that import and export taxes shall be determined in US dollars and that, beyond the provisions of arts. 23.905 and cc. of the Customs Code, payment may be made in national currency, in which case the determination of the equivalence will be made according to the exchange rate in effect on the day prior to the actual payment.
He added that, as a result of Law 25.561 and its complementary regulations, the existing obligations in foreign currency, created before the end of convertibility, were converted into pesos. And that, as provided in arts. 80 and 40 of Decree 214/02, they must be converted at a rate of one dollar equal to one peso, with the CER being applied to the balance at the time of payment.
The Court also rejected the objections of unconstitutionality directed against decree 214/02, based on a violation of the principle of legal reserve in tax matters, maintaining that they lack validity since it was ratified by article 64 of law 25.967.
The Court also dismissed the complaint regarding the calculation of interest made by Customs, which, in compliance with the aforementioned external notes, set the interest until 2 February 2002 on the pure capital and, from that date, on the capital plus the CER. The Court held that the plaintiff had not expressed a reasoned criticism in this regard and that, furthermore, the accrual of interest on the capital with the CER is a natural consequence of the delay and not a mechanism for updating.
– II –
fs. 30l/314 back shows the extraordinary appeal filed by Volkswagen Argentina SA, granted on fs. 323 considering that a federal issue is involved.
In summary, he argues that the interpretation of laws 22.415, 23.905,23.928, 25.561 and 214, as well as decree 02/02 and external note 04/XNUMX DGA, are at stake.
The plaintiff complains that Article 20 of Law 23.905 is not a law in force because it was repealed by the provisions of Law 23.928. In this regard, the plaintiff claims that the application of the CER to customs duties and liquidated interest constitutes a violation of the right to property and the principle of legality, given that the debt had originally been established in pesos.
On the other hand, the Court maintains that Decree 214/02 does not apply to tax obligations since, in summary, at the time of its issuance there were no debts with the National Treasury that were not in pesos, by virtue of the fact that the aforementioned article 20 of Law 23.905 had previously been repealed. It added in subsidy that it could not have included tax obligations among its provisions either, due to the unrestricted validity of the principle of legality in this matter, in accordance with the terms of article 99, paragraph 3, of the National Constitution.
Finally, the Court of Appeals complains that the Court of Appeals ruled that compensatory interest is applied to the capital plus the CER, and also in relation to taxes that, in its opinion, do not tax imports, such as the additional VAT and the income tax.
– III –
I consider that the extraordinary appeal filed is formally admissible, since the interpretation given by the superior court of the case to federal regulations - laws 23.905 and 25.561, decree 214/02 - has been questioned and the decision has been contrary to the right that the appellant bases on them (art. 14, inc. 3, law 48). SCV312, L.XLV
On the other hand, it is not idle to remember that, in the task of establishing the correct meaning of federal norms, the Court is not limited by the positions of the appealed court or the appellant, but it is incumbent upon it to make "a declaration on the point" (art. 16 of law 48), according to the understanding that it rightly grants them (arg. Rulings: 307:1457; 310:2200; 314:529 and 1834; 320:1915, among others).
– IV –
As reported, the first grievance of the plaintiff refers to the study of the provisions of article 20 of law 23.905, and its questionable validity in light of the subsequent enactment of the austral convertibility law that prohibited any form of updating and repotentiating debts.
This provision established that import and export duties, as well as other taxes levied on such operations, "shall be determined in US dollars."
He added that payment can be made -among other options contemplated therein- in dollars or in the national currency, in which case "the equivalence will be determined according to the exchange rate in effect on the day prior to the actual payment." . .'
In my opinion, such provision was not set aside by Law 23.928 because, according to the provisions of its Article T, it was only directed towards obligations to pay certain sums in national currency - australes at the time of its sanction -, while the obligations under discussion here had to be determined in dollars.
Furthermore, I consider that the appellant's argumentative effort based on the understanding of article 639 of the Customs Code is also sterile insofar as it mentions that, in order to proceed with the liquidation of import duties and other charges, the conversion of foreign currency into national currency must be done considering the exchange rate in force on the dates established for the various cases regulated by articles 637 and 638 of said Code, for the simple reason that, since Law 23.905 was subsequent to the enactment of the aforementioned legal body, the provisions therein must be followed.
On the other hand, considering the aforementioned article 20 of Law 23.905 to be in force is the criterion that, implicitly but undoubtedly, underlies the judgment of that Court of April 27 of this year, issued in case B.828, L.XLIII, "Bridgestone Firestone Argentina SA (TF 16.674-A) cl Directorate General of Customs", given the way in which the controversy was resolved there.
-V-
Following the logical order of the plaintiff's grievances, it is appropriate to elucidate next which taxes are referred to in article 20 of law 23.905 when it mentions that the obligations corresponding to "the other taxes that tax imports and exports" must also be determined in US dollars (emphasis added). Specifically, the appellant mentions that Customs has liquidated in dollars the VAT, the collection of the VAT corresponding to RG 3.431 (DGI) as well as the collection of the income tax of RG 3.543 (DG1), circumstances confirmed by the judges of the case.
It is an undisputed hermeneutical guideline of this Court that the first source of exegesis of the laws is their letter and that when this does not require an effort of interpretation it must be applied directly, regardless of considerations that exceed the circumstances of the case, since to do otherwise would mean disregarding its text (arg. Rulings: 324:2885).
With the accurate guidance provided by said guideline, I understand that, of the concepts referred to in the first paragraph of this section, only VAT is a tax that "taxes" the operations involved, since it is thus established in art. 1, inc. c), of law 23.349 (to 1997 and its amendments) and that, therefore, only in that case was it appropriate for the respective tax obligation to be determined in dollars together with the pertinent customs duties.
On the contrary, the assessments established by the mentioned regulations do not constitute rulings on account of taxes whose taxable events fall on import operations. In effect, on the one hand, the one referred to the income tax of law 20.628 constitutes a way of anticipating the future -and eventual- tax that could arise in the head of the taxpayer 'for all his income obtained and subject to said tax (arg. arts. 1° and,cc. of the mentioned law).
And, on the other hand, the perception of general resolution 3.431 (and its modifying regulations) is related to an advance payment of VAT that must be paid in a timely manner by the importer of movable goods, but for merchandise that is later subject to commercialization in the domestic market (arg. arts. 4°, 1° and cc., and 2° paragraph of its recitals).
For these reasons, I believe that the appellant should be recognized as being right in respect of both perceptions, which should have been made in pesos from the start.
SCV312, L.XLV
– VI –
Once the above points have been resolved and it has been clarified which tax obligations arose determined in dollars at the time of the import operations, it is time to enter into the study of the third grievance of the plaintiff, based on the respective conversion to pesos and the application of the CER for its final settlement.
In this regard, it is appropriate to point out that the appellant directs its attacks against decree 214/02 which, as it is a decree of necessity and urgency, pursuant to the provisions of paragraph 3 of article 99 of the Magna Carta, could not regulate -among others- tax matters.
However, in all truth, the conversion to pesos and the application of the indicated coefficient was also ordered by the National Congress with the enactment of Law 2, the constitutionality of which has not been disputed here by the appellant. The latter did not modify its similar Law 830 and became effective upon its publication, but retroactively to January 25.561, 6, which is why the study of the constitutionality of Decree 2002/214 on the point is unnecessary.
-VII –
The last grievance of the plaintiff, contained in section IV.5 of the document on pages 301/314 back, is aimed at questioning the calculation of the interest, insofar as such amount has been liquidated to her, based on the conversion of her debt into pesos, including the CER in the calculation base.
It is well known that interest has a compensatory purpose, which is based on the debtor's default and is accrued from the moment in which said situation occurs (arg. Rulings: 328:1390). In addition, in tax matters, it has also been established with the purpose of encouraging compliance in time with tax and social security obligations (arg. Rulings: 328:3297).
In this regard, I note that the appellant does not provide any argument on the inadmissibility of such accessories, nor does she indicate on which rules she intends to base her complaint on the point, nor does she refute the arguments developed by the trial courts for its admissibility, reasons for which I believe that the extraordinary appeal on the point lacks the adequate foundation required by article 15 of law 48 and the jurisprudence of the Court (arg. Rulings: 324:1860,2885; 4388, among others)
– VIII –
Finally, in any event, given that both parties recognize that some of the determinations were originally made in national currency (see statements by the defendant on fs. 213 back, and by the plaintiff on fs. 265), I consider it appropriate to recall that Your Excellency, in case E.222, L.XLII, «Editorial Perfil SA IT.F. 13.456-A) cl DGA», ruled on August 12, 2008, shared the opinion of the undersigned that, in such case, there is no amount to «transform» since the obligation was expressed in pesos from its origin, without prejudice to the powers of the Administration to claim from the importer, through a supplementary tax determination (arg. art. 792, 793 and cc. of law 22.415), the difference in value for not having liquidated the tax in the manner provided for in art. 20 of law 23.905.
– IX –
In view of the foregoing, I am of the opinion that the appealed judgment should be confirmed, with the partial scope arising from the provisions of Chapters V and VIII of this document.
Buenos Aires, July 5, 2010.
V. 312. XLV.
Volkswagen Argentina SA (TF 22.179-A) c/ DGA.
Buenos Aires, August 23, 2011
Having seen the cars: Volkswagen Argentina SA (TF 22.179-A) v. DGA.
Considering:
1°) That the issues raised have been adequately considered in the opinion of the Public Prosecutor, the grounds for which are shared by the Court, and to which it is appropriate to refer for the sake of brevity, excluding what is expressed in points VII and VIII.
2°) That with regard to the grievances relating to the liquidation of interest contemplated in art. 794 of the Customs Code, an issue dealt with in point VII of the aforementioned opinion, the Court considers that the extraordinary appeal is inadmissible (art. 280 of the Civil and Commercial Procedural Code of the Nation).
3°) That with respect to the matters indicated in point VIII, the Court deems that the reference to the precedent Editorial Perfil SA (TF 13.456-A) v. DGA, dated August 12, 2008, may be dispensed with, since, beyond the generic expressions formulated by the parties on pages 213 back and 265, the truth is that in the sub lite all the charges formulated by Customs have been expressed in US dollars. Therefore, in accordance, as appropriate, with the opinion of the Public Prosecutor, the extraordinary appeal is formally declared admissible except in relation to the point mentioned in the second paragraph of the recitals, with respect to which it is dismissed and the appealed judgment is partially revoked with the scope arising from this judgment. With costs in order in light of the complexity of the issues raised and the manner in which it is decided.
Notify and forward the proceedings to the court of origin so that a new ruling may be issued by whomever is appropriate in accordance with the decision herein.
RICARDO LUIS LORENZETTI – ELENA I. HIGHTON de NOLASCO – JUAN CARLOS MAQUEDA – E. RAUL
ZAFFARONI.
IT IS COPY
Extraordinary appeal filed by the plaintiff, Volkswagen Argentina SA, represented by Drs. Carlos Alberto Velarde and Santiago Carlos Velarde, sponsored by Dr. Carlos Alberto Velarde. Transfer answered by the General Directorate of Customs, represented by Dr. María Laura Barrueco. Court of origin: Chamber V of the National Chamber of Appeals in Federal Administrative Litigation. Court that previously intervened: Tax Court of the Nation. V. 312. XLV. Volkswagen Argentina SA (TF 22.179-A) v. DGA.
To access the opinion of the Attorney General's Office, go to:
http://www.mpf.gov.ar/dictamenes/2010/monti/julio/volkswagen_argentina_sa_v_312_l_45.pdf
Pesification – Import duties – US dollars
– Customs code – Customs – Tax – Interest
Buenos Aires, Having seen the files: «Volkswagen Argentina SA (TF 24. 279-ABIS) s/ resol. 6836/07 (file 441.352/95)».
Considering:
That the issues raised in the sub examine, with regard to the application of the Reference Stabilization Coefficient (CER) on the collection of VAT corresponding to general DGI resolution no. 3431, and on the collection of income tax under general DGI resolution no. 3543, are substantially analogous to those considered in case V.312.XLV "Volkswagen Argentina SA (TF 22.179-A) c/ DGA", judgment issued on August 23, 2011, to whose grounds and conclusions it is appropriate to refer, where pertinent, for the sake of brevity.
The extraordinary appeal is therefore declared admissible and the appealed judgment is partially revoked with the implications arising from the above. With costs in order in light of the complexity of the issues raised. Notify and forward the proceedings to the court of origin, with a copy of the judgment issued in the aforementioned proceedings, so that a new ruling may be issued accordingly by whomever is appropriate.
RICARDO LUIS LORENZETTI
Juan Carlos Maqueda
E. RAUL ZAFFARONI
Elena Highton from Nolasco
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