Thursday, 28 January 2010 12:12
Well understood that we refer to those suppositions in which the goods – from a customs point of view – are in transit throughout the national territory.
It is worth starting from the assumption that comes forth from the Law 22.415 and its amendments (hereinafter the "Customs Code"), which does not consider the facts of theft or robbery – though constituents of Acts of God or force majeure – with sufficient power to exempt the carrier from any responsibility on the tax field.
The assignment of Import Transit is foreseen in the arts. 296 and following of our Customs Code, being characterized as a regime by virtue of which it is authorized that the imported goods, which still lacks of free circulation, be transported from the customs through which it came until another customs to be submitted to another customs destination. It is stated that while the merchandise is under such situation it is not subject to the levy of taxes, except for the retributive services rates (art. 304 of the Customs Code).
The obligation that the regime imposes to its beneficiary – the carrier – is to transport the merchandise to the destination customs within the established term, taking care that it arrives in its totality (arts. 310 and 317 of the Customs Code). It is worth pointing out that tax responsibility is exempted in the assumptions as regards to the destruction or loss of the goods due to force majeure. Without prejudice, in art. 311 of the Customs Code, an assumption is stated – which does not admit any evidence to the contrary – that the merchandise that does not arrive at destination after ONE (1) month has elapsed as from the term expiration agreed for the compliance of the transit, has been imported for consumption, with the consequent responsibility that this implies in the tax scope, this principle is still considered when the merchandise has not be delivered. That is to say, that the responsibility support in this matter is the exclusive outcome of a legal supposition (to consider that the merchandise was imported definitively for consumption), regardless of any other action attributed to the subject.
This does not prevent to consider that the transport company had acted with the duly diligence, carrying out the corresponding police complaint for the illicit fact which has been object, as well as having informed the Customs Service about the event, as required by the art. 306 of the Customs Code. Nothing of this turns out to be enough to exclude the tax responsibility, whenever the carrier or representative had the merchandise confiscated, used by a third party (the author of the crime or a different one). One of the basic fundamentals of this principle is that in these assumptions of illegitimate maneuver (robbery of theft) that deprives the carrier of the cargo, cannot be understood as irremediable loss of it, given the feasibility of its later use and/or commercialization.
It is clear that the intention with this – from the state interest field – is to protect the rent tax, avoiding the desnaturalization of the exception regime, with maneuvres of replacement or loss of the effectively carried goods.
The main obliged party of the missing goods in these assumptions is the Carrier or its voluntary representative before the Customs Service (the Customs Transport Agent). In a subsidiary manner and for the assumption that neither the Carrier nor the Customs Transport Agent do not make the credit effective, the loader, those who have the legal availability of the merchandise and the beneficiaries of the Import Transit Regime (art. 312 of the Customs Code) will respond. That is to say, that against these latter it can only be acted against once the goods of the main obliged parties have been executed, and in the hypothesis that they turn out to be insufficient to consider the fiscal debt.
To present, the rulings of the National Fiscal Court have applied the mentioned principles of the Customs Code without exception, in the sense that having to do with goods from abroad that do not have free circulation in the territory for not having arrived to the destination customs, the merchandise circulates illegally in the market and in such a case the Law, art. 311 of the Customs Code, supposes without admitting evidence to the contrary that it has been imported for consumption (among others Cause No. 16961-A TFN "BLANCANUEZ S.A. C/DIRECCIÓN GENERAL DE ADUANAS", sentence dated June 2nd 2006).
Nevertheless, a recognition of the injustice and irreasonability of the ruling decision in question can be observed in the vote of the minority of the mentioned Court, which is a circumstance that opens the perspective of raising arguments related to the inconstitutionality of the rule at legal instances (the National Fiscal Court in as administrative body).
While this does not happen and considering the magnitude that the tax responsibility might entail in each specific case before the customs body, the reality demands that the own international transport risks have an insurance cover, by means of policies that cover the eventual robbery or theft completely during all the way of the international transit. Said insurance shall comprise the Import Rights, VAT and additional VAT, Profits and Gross Incomes, and shall, to be duly protected, be independent from the insurance that the merchandise owner hires, for not being the latter opposable to the Customs Service considering the import tax claims that might be raised to the Carrier or its Transport Agent for the entry of the merchandise for consumption.
Rodolfo E. Levrero
Levrero Abogados & Asociados
Consultores en Derecho Aduanero y Comercio Internacional
Uruguay 292 piso 3º Oficina 6
(C1015ABF) Buenos Aires
República Argentina
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