In Buenos Aires on the twenty-third day of the month of August of one thousand nine hundred and ninety-five, at three o'clock in the afternoon, the members of the Tax Court of the Nation with jurisdiction in customs matters, Drs. Ricardo Xavier BASALDUA, Rodolfo Hector CAMBRA; Silvia A. CRESCIA; Catalina GARCIA VIZCAINO; Jorge Celso SARLI and Susana Lía SILBERT, met with Dr. Gustavo A. KRAUSE MURGUIONDO (AA-946) as President, on the occasion of the call made in the case: 7346-A entitled "YPFSA v. National Customs Administration, s/appeal", in order to establish the legal doctrine "On the application of art. 954 ap. 1. inc. c) of the Customs Code, in matters of exports as long as decree 530/91 is in force, without prejudice to the fact that in specific cases it may be considered that another illegal act has been committed or not." Once the act has been opened,
Dr. Susana Lía Silbert said:
As regards the point submitted to the plenary session "application of art. 954 par. 1 inc. c) of the Customs Code, in matters of exports while decree 530/91 is in force, without prejudice to the fact that in specific cases it may be considered that another illicit act has or has not been committed", it should be noted from now on that the undersigned has issued an opinion when ruling in the cases entitled "Nidera SA" and "Siat SA", dated 5/12/94 and 9/3/95 respectively, an opinion that is ratified herein.
In order to clarify the exposition, it is considered appropriate to transcribe the text of the rules that gave rise to the plenary session, that is, that of art. 954 of the CA, which heads the seventh chapter, of title two of Section XII that the legislator named "Criminal provisions", as well as that of art. 1 of decree 530/91.
Art. 954 of the CA provides: “1. Anyone who, in order to carry out any of the import or export operations or destinations, makes a declaration to the customs service that differs from what results from the verification and that, if it were to go unnoticed, would produce or could have produced:
a) a tax loss, will be sanctioned with a fine of ONE (1) to FIVE (5) times the amount of said loss;
b) a violation of an import or export prohibition will be sanctioned with a fine of ONE (1) TO FIVE (5) times the Customs value of the infringing merchandise;
c) the entry or expenditure from or to abroad of an amount paid or payable other than that which actually corresponds, will be sanctioned with a fine of ONE (1) to FIVE (5) times the amount of the difference.
2. If the act falls simultaneously into more than one of the cases provided for in section 1, the highest penalty shall be applied.
Article 1 of Decree 530/91 provides: "The obligation to enter and negotiate in the exchange market the currencies from the export of products, which was established by Article 1 of Decree 2581 of April 10, 964, shall be repealed."
As stated, the issue submitted to the plenary session arises once the facts in the specific case have been analyzed, and whenever such analysis reveals that an inaccurate declaration was made to carry out any of the export operations or destinations before the customs service.
If we find ourselves in such a situation, we must continue to analyze whether the aforementioned inaccurate statement, as far as we are concerned, falls within the assumption provided for in paragraph c); that is, whether the objective conditions of punishability described therein also exist.
This is so, since art. 954 of the CA, after describing what an inaccurate statement consists of, requires for its punishability that the same - the inaccurate statements - also be capable of producing one of the effects that it also expressly indicates, as can be seen from reading the already transcribed rule. That is, it adds objective conditions of punishability. If these do not occur, that is, any of the three situations that are expressly described, the inaccurate statement cannot be considered to fall within said rule.
The undersigned understands that the legislator, when drafting the infraction in question, considered that the legal system should deal with, among other situations, "the entry of foreign currency from abroad" and thus decided to sanction all entry of foreign currency -whatever the inaccurate statement that caused it- that was not what "actually corresponds".
That is to say, by incorporating subsection c) in art. 954 of the CA, any inaccurate statement made to carry out an export operation or destination before the customs service, which if it went unnoticed, produced or could have produced "the entry from abroad of an amount paid or payable other than that which actually corresponds", became unlawful, and for this reason the same rule imposes a sanction that, it is worth noting, must be calculated precisely, taking into account the difference in foreign currency that entered or should have entered from abroad.
The regulation we are analyzing was issued within a legal context that established the obligation to enter the country and negotiate the currencies from exports through a regulated banking system -dec. 258/64, art. 1- and in that context it makes sense that the regulation considers both to complete the customs infraction figure and to calculate the corresponding penalty, "the amount that should be entered" (the underlining is ours).
With the issuance of Decree 530/91 (Official Gazette 28/3/91), this obligation was rendered ineffective, that is, as stated in Article 1 of the same, already transcribed, as of 29/3/91 exporters are not required to bring into the country the foreign currency from export operations. Therefore, there is no amount that must be brought in.
If we take into account that there is only one right, we must conclude that, as of 29/3/91, the minor or major transfer of foreign currency from abroad as a result of export operations, ceased to be considered illegal conduct.
Such principle is ratified by the provisions of arts. 3 and 4 of the aforementioned decree 530/91, which establish: "Art. 3. The Central Bank of the Argentine Republic and the National Customs Administration shall, within the scope of their respective powers, issue the necessary provisions aimed at the elimination of bank endorsement of shipping permits, the registration of endorsements by banking entities, the obligation to report daily endorsements, the reporting of lack of foreign currency receipts, or any other provisions that may be relevant in accordance with the provisions of this decree. Art. 4. The provisions of art. 10 of decree 1555 dated September 4, 1986, on the entry and negotiation of foreign currency for access to the tax refund system established therein, are hereby repealed. Payment of the amounts corresponding to the operations covered by this regime will be made in accordance with current regulations, using the closing exchange rate of the Banco de la Nación Argentina on the day prior to the payment or crediting to the exporter's account.
Consequently, the assumption provided for in section c) of article 954 referring to the entry from abroad of an amount paid or payable other than that which actually corresponds, as of the date of validity of the aforementioned decree, lacks the budget relating to the non-compliance of a legal duty, consisting of entering the amount of the corresponding foreign currency, since in the current regulations it is not "required" to enter any sum, so an "undue" entry of foreign currency cannot be configured.
The fact that with the sanction of Decree 530/91, the entry of foreign currency into the country as a result of export operations is no longer mandatory and therefore there is no longer an element (the entry from abroad of an amount paid or payable other than that which actually corresponds, because none corresponds) to typify the infraction provided for in section c) of art. 954 of the CA, does not mean that when the customs service finds an inaccurate statement in an export operation, it cannot analyze and consequently the Tax Court in its review stage, whether the conduct examined is or is not likely to be classified under any of the other sections of the aforementioned article or any other infraction figure.
The powers to do so are expressly established in arts. 1102 and 1143 of the CA-
I therefore vote for it to be established as legal doctrine that, "in matters of exports, as long as Decree 530/91 remains in force, the provisions of art. 954, paragraph 1, paragraph c) of the CA are not applicable; without prejudice to the classification that may be made of the inaccurate statement, verified in the specific case, in another type of infraction."
Drs. Silvia A. Crescia, Ricardo Xavier Basaldúa, Rodolfo Héctor Cambra and Jorge Celso Sarli said:
Who adhere to the preceding vote.
Dr. Gustavo A. Krause Murguiondo said:
I propose that the following legal doctrine be established: "Article 954, section 1, paragraph c) of the Customs Code is in no way affected in terms of its validity and applicability by decree 530/91."
I base my statement on the following arguments:
I.-Article 954, paragraph 1) of the Customs Code provides that: "1.- Whoever, in order to carry out any of the import or export operations or destinations, makes a declaration to the customs service that differs from what results from the verification and that, if it were to go unnoticed, would produce or could have produced: a) a fiscal loss will be sanctioned with a fine of one (1) to five (5) times the amount of said loss; b) a violation of a prohibition on import or export will be sanctioned with a fine of one (1) to five (5) times the customs value of the merchandise in violation; c) the entry or exit from or to the exterior of an amount paid or payable other than that which corresponds will be sanctioned with a fine of one (1) to five (5) times the amount of the difference.
That by decree 530 of 991 the obligation to enter the exchange market for foreign currency from exports and other operations was eliminated. Due to the issuance of this regulation, it was held in doctrine that the violation of art. 954 of the CA has virtually lost validity in the aspect provided for in its section 1, subsection c), that is, the one that refers to erroneous statements that could produce an income or expenditure from or to abroad other than that which corresponds. (See Jorge Celso Sarli, in «The scope of the inaccurate declaration «punishable» in the figure of inc. c) of section 1 of art. 954 of the Customs Code», in Revista de Estudios Aduaneros, year II, No. 4 -Year l99l/2.).
I hold, as will be seen in the following paragraphs, a different opinion from that stated above, and I affirm that subsection c), section 1) of the cited article remains in full force and applicability.
II.- It should be noted first of all that the Supreme Court of Justice of the Nation, in a ruling dated May 2, 992, issued in the case of "Frigorífico Rio Platense SA", based on the analysis of the legal interest protected by art. 954 of the CA, established a broad interpretation of the provision in question, in the sense of maintaining that this does not distinguish whether the "different" amount to be paid was greater or less, whether in imports or exports, there being no reasons to depart from its text, given that, in both cases, the infringement in question would be configured (see also the vote of Drs. Petracchi and Belluscio in the judgment of May 12, 1991, issued in the case "Subpga SACIE e I" -
The rulings in question primarily highlight that the legal right protected by the law is the principle of truthfulness and accuracy of the customs declaration, and that compliance with such a requirement tends to prevent, under the protection of the export and import regime, any maneuvers that distort or pervert it from being perpetrated.
It should be noted that the maneuvers that are being avoided by penalizing inaccurate declarations are not only those of foreign exchange, but are also related to the various aspects involved in international trade. Note, for example, that from the exclusive foreign exchange point of view, it would not seem prima facie of interest to penalize declarations of higher value in exports, or lower value in imports, because they represent a higher inflow or a lower outflow of foreign currency respectively, but nevertheless the Court's rulings cited, that is, the doctrine that supports them, in any case consider them subject to the penalty of art. 954, ap. 1, inc. c). Consequently, it is not noted how the issuance of decree 53O may affect the full validity and applicability of art. 954, ap. l), in relation to its subsection c).
III.- In my opinion, the elimination of the obligation to enter or negotiate in the foreign exchange market the foreign currency from exports does not affect the scope of application of art. 954, ap. l, inc. c). In fact, this rule does not speak, nor does it refer literally to the entry or expenditure of "foreign currency", but its text states that it is appropriate to sanction the possibility of "the entry or expenditure... of an amount paid or payable other than that which actually corresponds."
For the reasons that will be seen, we consider that the term "income" should be understood in the sense of the expected consideration in favor of the exporter. This consideration must be that which corresponds in reality, commercially, legally and from a customs perspective to the operation carried out, and if something different is declared, this declaration is punishable, completely independently of the fact that according to Decree 53 there is no obligation to enter foreign currency within a certain period in the exchange market. With reference to this last aspect, it should be noted that the fact that there is no obligation to negotiate in the exchange market does not mean that in fact and voluntarily these currencies are not negotiated, or that the fulfillment of the services and the pertinent payments are not made by other means permitted by international trade.
Payment of the price may be made through multiple operations, credits or provisions, typical of the extremely complex international commercial, accounting and financial system. All these movements and operations constitute real “income” for exporting companies from the point of view analysed. Linking the expression “income” used by the regulation in a univocal manner to the exchange fact of “obligatory entry of foreign currency into the exchange market” leads to granting inc. c) of art. 954, 1), a restricted and incorrect interpretation, which in our opinion does not arise from the text of the regulation, nor from the legislative precedents, nor from the foreseeable purposes addressed by the legislator.
IV.- According to the Statement of Reasons of the Customs Code, in the matter of inaccurate declarations there is a new formula (art. 954) that tends to avoid the extension and confusion of the previous ones, providing a new type that orders the arts. l67 and l7 of the customs law, to the extent that the declaration causes any of the effects foreseen in the subparagraphs a) b) and c) of section 1). The fact that in the text of art. 954 the references to modalities of quantity, species, nature or value of the previous norms disappeared, does not mean that these differences are not covered by the sanctions foreseen, for example, in subparagraph c), when they could give rise to income or expenses different from those that correspond. Otherwise, the provisions of arts. 234 and 332 of the Customs Code, which require that the customs declaration, in addition to the requested destination, indicates the position of the merchandise in the tariff nomenclature, the nature, species, quality, condition, weight, quantity, price, origin, provenance and any other circumstance or element necessary to allow the correct tariff classification and valuation of the merchandise by the customs service. For the reasons set forth above, the scope of art. 954, ap. l, inc. c) cannot be limited to only repressing certain exchange maneuvers, but it is reasonable to understand its scope in correlation with the rules that require the correct valuation of merchandise (Law 23.3ll, art. 735 and correlatives of the Customs Code) and with those mechanisms that accept correct valuations as background for other operations. The purpose fulfilled by the regulation in question cannot be considered unrelated to the necessary complementation with the regulations relating to statistics on international trade, dumping, etc. in customs matters, or with others that form part of the tax legislation, supply, identification of goods, etc., which, as will be analysed later, were positively taken into account each time legislation was passed on the subject of false or erroneous customs infringements.
It is also possible to consider that the magnitude of the protection provided by the legal asset protected by Article 954, in its various sections, can be considered to include situations in which, as in the higher than real values that can be declared in exports, they come to have some of the incorrect purposes that can be sought through international trade, and its finances, such as, for example, illegitimate attempts at money or income laundering, a situation that can also occur when declaring lower than real values in import operations.
It should be made clear that not all erroneous declarations are punishable, since there are errors that are irrelevant for the purposes of determining the applicable taxes, or the incentives for export, or for complying with restrictions or prohibitions on imports or exports, or for affecting income or expenditure from or to abroad. These irrelevant errors are not punishable by the analyzed rule.
V.-With reference to the legislative background of the rule, its reading shows that the exchange aspect was never the exclusive element in the foundation of its historical purpose.
In the Customs Law (to l962), starting with the reforms of law l6690, false declarations were punished for the mere fact of their falsity, although the penalty was regulated according to possible effects. (See the analysis carried out in this regard in the note submitting the bill to the Executive Branch, sanctioned under No. l7138). It was considered that Customs could not, with its intervention, give the appearance of legality to a false or erroneous operation, of greater or lesser quantity or value. This was so, not only because of the possibility of clandestine movements of foreign currency, but also because other regulations or goods could possibly be affected, such as the system of prior deposits or other requirements provided by the Central Bank. But it was also estimated that customs legislation should contribute to compliance with any other legislation that could be affected by customs declarations, such as internal tax legislation, supply legislation, merchandise identification legislation, etc. In terms of exporting goods, there was also a very important objective: the need to influence the correctness of declarations, since the heritage that the country's traditional and new markets represent had to be protected.
With the enactment of Law 7138, the basic nature of the customs punitive regulations regarding erroneous export declarations was not altered.
In the message from Elevatoria to the EP of the 988 law, other additional motivations are mentioned, linked to erroneous declarations and their punishment. When mentioning in particular the case of under-invoicing, it refers to the desire to avoid illegitimate advantages derived from different exchange market quotes, but, in addition, it is intended to alleviate the total or partial evasion of antidumping legislation, and the evasion of internal tax regulations (such as income tax for example), by increasing expenses with a corresponding decrease in benefits. It should be noted, at this point, that the 988 law did not change the essence of the punitive system of customs export declarations, but as expressed in the Elevatoria note, it only attempted to improve it, so that export declarations continued to be penalized for being false, and not merely for their effects, which only influenced the magnitude of the penalty. The analysis of the motivations that led to the reforms introduced by laws 17.138 and 19.881 has been carried out with extraordinary clarity and lucidity in a ruling by the Third Chamber of the Honorable National Chamber of Appeals in Federal Administrative Matters, in re «Ramgras SACI s/ appeal», judgment dated December 15, 989, in a sense coinciding with the one we maintain here. That in said judgment the following was expressed (I do not put quotation marks because I have introduced small variations in the wording):
That the purpose of the reform to Law 9881 was to improve the problems of over-invoicing of imports and under-invoicing of exports, which is not the same as determining that these situations would be the only ones incriminated. In this sense, the accompanying message specifically highlights the fact that the customs department used to concentrate its efforts on detecting the opposite phenomena (paragraph 3), which were thus implicitly recognized as punishable. Corroboratingly, when paragraph 12 dealt with export manifestations, it was indicated that protection against under-invoicing already existed, although in order to improve said protection, various types of punishable differences were incorporated (paragraph XNUMX), from which it did not follow that the new text excluded the repressive consequences of over-invoicing of exports.
That strictly speaking, in accordance with the new rule established by law 9881 (art. l7l) this overbilling could cause a difference in quantity (inc.a), as well as in the nature, type or quality of the merchandise (inc.c) or in the amounts received or to be received (inc.b), with the rule of art. l7l, inc.e) coming into effect in the event of bankruptcy.
But nothing is said in this text, as in the previous one provided for by law 7138, to understand that the rule of paragraph b) of art. 7, according to the text of law 988, would prevent contemplating any other case than that of the under-invoicing of exports.
That precisely the same conclusion would be drawn from the fact that the message of Law 988 did not indicate any intention to reform the purpose of the previous Law 7, that is, to preserve, even in the absence of fiscal damage, "something very important, such as the heritage that its external markets, traditional and new, represent for the country. …." (paragraph 38, point 11, pertinent part).
If such were the objectives that emerged from the messages of laws 7 and 38, the Statement of Reasons of the Customs Code (chapter seven) is even more compelling, from which it follows that the new formula (art. 988) tends to avoid the extension and confusion of the previous ones, providing a single type that orders arts. 954 and 67 of the customs law to the extent that the declaration causes any of the effects provided for. The fact that the reference to the types of differences (quantity, quality, type, nature or value) has disappeared does not indicate that the case of over-invoicing of exports has been eliminated, since: a) Neither the current regulation nor its evolution shows that the entry from abroad of a different amount paid or payable should be limited to under-invoicing; b) Nothing is said in the Message of the Code regarding not penalizing export over-invoicing, which also undeniably produces this result; c) Nor are considerations expressed regarding not foreseeing or protecting the public interest expressly contemplated in Law 7 and maintained in Law 7.
That the thesis that is refuted could lead to considering superfluous the obligation to adequately value the goods that leave the country (art. 735 et seq., Customs Code) or distort the valuation mechanism as a precedent for other operations.
That the fact that the overbilling of exports does not tend to a clandestine transfer of foreign currency does not mean that they are excluded from penalties, since they may produce income from abroad that is different from what corresponds to reality, which is an express assumption of the new rule (CNF. Cont. Adm., sala I, –«Frigorífico Gualeguaychú» 20/10/87).
That, as has been demonstrated, neither the Customs Code nor its Message limit the repression, in such cases, to the sole assumption of clandestine transfers of foreign currency, to which is added that in previous texts that it is sought to consolidate, such assumption was expressly provided for as punishable (paragraph II, point 3 of the message of law l7), or implicitly but in an unquestionable manner (paragraph 38 of the Message of law l12).
VI.- Based on the arguments presented, I conclude that art. 954, par. 1, inc. c) remains in full force and applicability, and the issuance of decree 530/91 cannot be interpreted as weakening or annulling its scope.
Dr. Catalina García Vizcaino said:
I) That the Customs Code protects the principle of truthfulness and accuracy of declarations and statements submitted to customs. Article 954 of that Code punishes and sanctions - in relation to the legal interest protected - anyone who, in order to carry out any import or export operation or destination, makes an inaccurate declaration to the customs service that, if unnoticed, produces or could produce, among other cases: c) the entry or exit from or to abroad of an amount different from that which actually corresponds, with a fine of 1 to 5 times the amount of the difference.
Regarding the historical interpretation and scope of paragraph c) of article 954 of the CA, I have expressed my opinion, among others, in «Frigorifico Regional Salto SA» of 22/12/87, in the sense that this norm represses over-invoicing in imports and under-invoicing in exports.
That also the Second Chamber of the CN Cont. Adm. Fed. Cap. in re «FRIA SAIC», OF 31/12/87 held with respect to a difference consisting in that the value resulting from the difference in quality was lower than that declared, that it could not be included in the type provided for in art. 954 inc. c) of the CA, since such a difference «could only constitute an illicit act in import operations and not in export operations, since the consequence is a greater inflow of foreign currency, a circumstance that is not the one that the aforementioned rule seeks to sanction». Greater inflow of foreign currency - as explained in point II - does not necessarily mean, in my opinion, that they should be negotiated on the exchange market.
That the Supreme Court of Justice of the Nation in «Frigorífico Rioplatense SA -case F. 171, XXII- and «Olega SA» -case O. 190, XXII-, both dated 12/5/92, has declared that -as explained in the Statement of Reasons of the CA- the legal right protected by the aforementioned sanctioning rule «turns out to be the principle of truthfulness and accuracy of the manifestation or declaration of the merchandise that is the object of a customs operation or destination», and that «given the limited framework of knowledge of the federal remedy granted, it must be concluded, consequently, that the reliability of what is declared through the corresponding documentation is based on an entire system aimed at avoiding that, under the protection of the export or import regime, if applicable, maneuvers are perpetrated that denature and pervert it …»; therefore, the sentences of the Honorable Chamber of Appeals, by which the decisions of the Tax Court confirming the conviction of the appellants for the infringement described in art. 954, paragraph c) of the CA had been revoked
It can be assumed that the revocation of these sentences was due to the fact that no analysis had been made of whether or not the aforementioned maneuvers had been carried out.
That it does not alter what has been said that the Supreme Court has confirmed the condemnatory pronouncement of the Chamber in "Frigorífico Rioplatense" -case F, 517. XXII-, dated 12/5/92, given that in this precedent the High Court referred to the doctrine established in the case "Subpga SACIE e I." -case S, 227. XXII-, of the same date, in which, despite dealing with a case of section c) of art. 954, the issue analyzed consisted of an excess of weight that exceeded the tolerance, which in my opinion meant an underinvoicing in exports. Only the vote of Drs. Enrique Petracchi and Augusto C. Belluscio expressly interpreted that the application of the sanctioning rule under examination was independent of the magnitude of the payment "greater or lesser".
II) That, in accordance with the historical interpretation set forth and the jurisprudential doctrine referred to in the preceding point, I consider that, even during the validity of decree No. 530/91, maneuvers may be perpetrated - by means of inaccurate declarations - that distort or pervert the export regime, so that they make the sanction of art. 954 ap. 1 inc. c) of the CA applicable; that is, as I held, in the pronouncements of Chamber E issued in "YPF SA" of 4/5/95, "Nidera SA" of 7/3/95, art. 954 ap. 1 inc. c) of the CA is applied in matters of exports, even during the validity of decree No. 530/91, since it has not repealed art. 954 inc. c) of the CA.
That this is so, given that Decree No. 530/91 repealed "the obligation to enter and negotiate in the foreign exchange market the foreign currency from the export of products ..." (art. 1). This non-obligation regarding the foreign exchange market does not mean that the declaration of foreign currency and income, in general, derived from exports in the respective shipping permits is not obligatory. The expression "income ... from ... abroad" used by the criminal provision examined in the sub-lite denotes the price obtained by the export, which also constitutes a profit for the exporter. Expenditures abroad are the amounts paid or payable for imports.
So much so that the word “income” has usually been considered in tax language as rent (what comes into the estate). When referring to income tax, the English use the word “income” which denotes what comes in or enters; the Germans use the expression “einkommen” which broadly means income or entry, while “ertrag” refers to the periodic product that is repeated.
That the antecedent of art. 954 ap. 1 inc. c) of the CA is found in law 19.881, being that in the Note to the Executive Power that accompanied its project, it was expressed that "one of the problems that have deserved main concern is that of overinvoicing in import operations and underinvoicing in export operations, this is due to the fact that, in general, the customs department usually concentrates its efforts on detecting, precisely, the inverse phenomena.
"Overvaluations in imports are caused by situations where the actual values do not acquire decisive relevance for customs tax purposes directly or for the application of restrictions to such operations."
«The situations most exposed to this behavior are those in which the direct customs tax cost, for the remaining taxes, derived from over-invoicing, is insufficient to offset the illegitimate advantages that can be provided by the difference in the exchange rate between the official market and the clandestine ones, the total or partial evasion of the application of antidumping or compensatory duties and the evasion of direct internal taxation, through the fictitious inflating of expenses with a corresponding decrease in benefits … That is to say, apart from the damage that is directly inflicted on the Nation at a given moment in the exchange mechanism, there is also direct damage to the fiscal system in the case of antidumping and compensatory duties and another mediate one in the remaining ones … At the same time, the same kind of concerns motivates the review of the provisions that repress the false export declaration» (emphasis added).
That Law 19.881, by amending the customs law to penalize inaccurate declarations with respect to -as stated- under-invoicing in exports and over-invoicing in imports, referred to amounts paid or payable -imports- and amounts received or receiveable -exports-, and established the penalty on the basis of the "amount of the difference between the amounts declared or documented and those that are proven to actually correspond" -see arts. 167 inc. b) and 171 inc. b) of the customs law as amended by Law 19.881-, similar to art. 954 ap. l inc. c) of the CA which states the expression "income or expenditure from or to abroad of an amount paid or payable other than that which actually corresponds", sanctioning with a fine of 1 to 5 times the "amount of the difference".
That, consequently, according to the historical interpretation set forth, the sanction contained in this rule for the inaccurate declaration that, if unnoticed, produces or could produce the entry or expenditure from or to the exterior of an amount other than that which corresponds, protects the necessary veracity of the declarations in order to prevent - as stated - under-invoicing maneuvers in exports and over-invoicing in imports.
That such maneuvers produced or could produce consequences in the exchange order before the validity of decree No. 530/91, and both in the past and during the validity of this decree they produce or could produce consequences that are projected in areas of non-customs taxation (e.g., direct internal taxation, mentioned in the Note to the Executive Branch that accompanied the draft law 19.881, such as taxation on income and assets. In general, saved income becomes an asset or assets).
That in the judgment of Chamber E in "Frigorífico Regional Salto SA" dated 22/12/87, I inferred that the purpose of art. 954 par. 1 inc. c) "in matters of exports is to penalize under-invoicing, evidenced by documenting less than what is exported, whereby part of the sale price would remain abroad ...".
Although Decree No. 530/91 produced consequences in the exchange order by which, as a general rule, it could be understood that it is irrelevant that part of the sale price remains abroad, this does originate consequences in direct taxation, since as of Law 24.073, the principle of taxability by "worldwide income" has been enshrined in the case of residents in the country, while it was decided to tax assets located in the country and those abroad with respect to those domiciled in Argentina. Despite the repeal of the tax on assets, it should be noted that another wealth tax is in force, such as the tax on personal property, which taxes individuals domiciled in the country and undivided estates located there, for assets located in the country and abroad (Law 23.966 amended by Law 24.468).
It goes without saying that, as regards direct taxation, it is currently of particular importance that part of the sale price remains abroad, for the purposes of due control by the General Tax Directorate.
It should be noted that under-invoicing in exports may cause exporters to fictitiously reduce the profits they subsequently declare to the General Tax Authority, which are of Argentine origin -see art. 8, paragraph a) of the income tax law- and if part of them remains abroad, they in turn generate profits from foreign sources (e.g., interest) that are taxed in our country ("worldwide income" for residents) and which may not be declared to the Argentine tax authorities, resulting in easy evasion. Although this is not the case in this case, it should be clarified, in order to properly interpret the sanctioning rule whose scope is being analyzed, that over-invoicing in the import of inputs can lead to a fictitious increase in costs and, in the same way as over-invoicing in the import of manufactured products, can lead to an artificial decrease in the profits subject to taxation from the subsequent sale in the domestic market of the goods -made with imported raw materials or sold in the same state in which they were acquired, respectively-. It is obvious that when the supporting documentation for the sworn declarations made to the Treasury (e.g., the import dispatches that support the declarations presented to the DGI) inaccurately increases the purchase (import) price of a good, the lower profit declared for its subsequent sale is also false. If the taxpayer uses the undeclared portion of profit to increase his or her assets, without declaring the increase, such an attitude can also lead to easy tax evasion in the case of wealth tax.
That, therefore, I conclude that Decree No. 530/91 neither expressly nor implicitly repealed paragraph c) of art. 954, section 1 of the CA, given that under-invoicing in exports and over-invoicing in imports may indirectly or mediately produce harmful effects on state revenues (the "mediate damage" referred to in the Note to the Executive Branch that accompanied the draft of Law 9.881), which are not included in paragraph a) of art. 954, section 1 of the CA, which refers to the fiscal damage, potential or real, that the declaration could directly cause.
Furthermore, it should be noted that the ANA may provide information to the General Tax Directorate so that it may exercise the powers of verification and oversight granted to it by law; tax secrecy does not apply to national, provincial or municipal tax collection agencies, in relation to information directly linked to the taxes of their jurisdictions - cfr. art. 101 inc. b) of law 11.683, to 978 and amended.
That if the ANA provides another tax collection agency with false information based on inaccurate declarations by exporters and importers, this necessarily hinders the proper exercise of the aforementioned powers, to the detriment of tax collection.
That's why I vote for:
Declare that art. 954 par. 1 inc. c) of the CA applies to exports, even during the validity of decree No. 530/91.
In accordance with the foregoing Agreement, the Honorable Members by majority AGREED: to establish the following legal doctrine: "In matters of exports, as long as decree 530/91 remains in force, the provisions of art. 954, section 1, paragraph c) of the CA shall not apply; without prejudice to the classification that may be made of the inaccurate statement, verified in the specific case, in another infraction figure." With this the act ended, at XNUMX:XNUMX p.m.
Register and return the cars to the Room of origin
