Law 27.541, passed in December 2019, specifically determined the possibility of benefiting from the suspension of all pending tax and customs criminal actions, through the tax debt regularization regime; which in the customs criminal case in court, arise from the only crime recognized by the Customs Code, which is smuggling, highlighting art. 10 of said rule "regardless of the stage of the process in which the case is found."
Smuggling
Therefore, let us determine what smuggling consists of. First, we must know that the customs service exercises control over imports and exports, that is, over the entry and exit of goods to and from the customs territory. In turn, Customs Law in particular and as a branch of public law, is linked to constitutional law, administrative law, tax and financial law, and criminal law of an economic nature. Thus, art. 863 of the CA is very clear in stating that smuggling consists of any action or omission that has as its objective, through trickery or deception, to prevent or hinder the correct exercise of control that the laws grant to the customs service.
From what is expressed by the norm, it is clear what the protected legal right is, which consists of the correct exercise of control that the customs service exercises over the entry and exit of merchandise from the customs territory; including the collection of the corresponding taxes. Vidal Albarracín points out in Crime of Smuggling, page 44; that “the function of customs for the purposes of smuggling is to control the international traffic of goods, which is a legal asset, and such function is fulfilled for tariff purposes and compliance with prohibitions.” That is, the crime is configured with the trick or deception intended to prevent or hinder customs control, which obviously has as its purpose on the part of the perpetrator the complete evasion of a certain tariff or a specific prohibition, or to obtain a tax benefit other than that which corresponds.
Customs Opinion
That said, it is striking how inconsistent some of the AFIP/CUSTOMS rulings are, in which they confuse the tax obligation itself and the moment from which it arises, when such consideration cannot be identical to the case of a customs offence, since in that case it is the complement of the action by which it is sought to prevent or hinder customs control. In other words, an action or omission whose purpose is to prevent or hinder customs control will always have an associated tax obligation, regardless of whether or not there was a declaration or whether or not the merchandise was destined, because otherwise there would be no clandestine smuggling.
When the CA in its art. 635 mentions that the import duty taxes imports for consumption, it means that the import that must be taxed is that whose merchandise must remain indefinitely in the customs territory, regardless of whether it entered in a regular or irregular manner. Furthermore, whenever there is a smuggling crime, it is presumed that the merchandise has entered the customs territory for the purpose of indefinite stay, for which reason the taxable event is complementary to the action or omission and is perfected with the configuration of the crime.
Conclusion
In the case of goods that, having entered, have remained in the primary zone without being given a customs destination, but subject to a smuggling process, the taxable event arises from its irregular introduction into the customs territory, which means that there is a taxable moment that may be the date of verification of the crime.
To consider that the fact that they have not been given an import destination for consumption does not entail the relevant tax imposition, is to distort the nature of the crime of smuggling, which, as a complement, carries with it the fiscal benefit sought, whether clandestinely or through other modalities. Consequently, it cannot be considered that the application of Law 27.541 is not appropriate in these cases, thereby configuring a notorious inequality before the law and a violation of due process.
Guillermo J. Sueldo is a lawyer and member of the Institute of Customs Law and International Trade of the Argentine Association of Constitutional Justice
The author is a lawyer and member of the Institute of Customs Law and International Trade of the Argentine Association of Constitutional Justice.
