In regard to customs matters, Law 22.415 considers the statute of limitations to be one way, among others, to extinguish the action regarding tax demands, as well as actions aimed at imposing penalties for violations. In this sense, the statute of limitations is aligned with a period pre-established by the law, which, if it elapses, will lead to considering any possibility of such demands terminated.
It should be remembered that prescription is a public order institution that safeguards the interest of a society to put a limit on all types of claims that encompass the claim of a fiscal or private claim and in this way not make claims last indefinitely, generating uncertainty about them.
In any case, we consider, as the Supreme Court of Justice of the Nation has held (1), that if it had operated, since it is a matter of public order that, as such, operates by full right when the conditions required by the norm are verified, it must be declared ex officio.
Thus, Article 929, paragraph c) of the Customs Code lists the statute of limitations as one of the reasons that extinguishes the action to impose penalties for customs violations, in conjunction with Article 934, which expressly establishes that the period that must elapse is five years, counted from January 1 of the year following the date on which the violation was committed or, if this cannot be specified, from the date of its verification (see Art. 935 of the CA).
For its part, Article 787 of the Customs Code, in its subsection e), establishes the statute of limitations as a form of extinguishment of customs tax obligations. For this, a period of 5 years must also elapse, counted from January 1 of the year following the date on which the event generating said obligation occurred (see Art. 803 and 804 of the CA).
In both cases, the law establishes express acts that, if they occur, suspend or interrupt the current period. Without prejudice to the enumeration of these, it is evident that this legal precept of ending a fiscal prosecution is related to the passage of a determined time that has been established by the legislator.
However, it may happen that even when the time period corresponding to the activation of the legal mechanism for the extinction of the action has not elapsed, the presence of an excessive amount of time is noted, which converges towards the violation of the reasonable term.
Reasonable time frame
Dr. Juan Pablo Rizzi (2) reminds us that the procedural guarantee of “reasonable time” refers to the right of all persons to obtain, after a legally processed trial, a firm resolution that puts an end, as quickly as possible, to the situation of legal uncertainty in which they find themselves. He also indicates that this principle is enshrined in several international treaties and is reflected, with different characteristics and scopes.
Indeed, this principle corresponds to an elementary guarantee of universal human rights, as enshrined in the American Convention on Human Rights, which states: Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent and impartial judge or tribunal (art. 8.1). Art. 14, paragraph 3.c) of the International Covenant on Civil and Political Rights also recognizes the right of every person accused of a crime to be tried without undue delay.
Both normative statements are part of the so-called block of constitutionality, as it arises from article 75, paragraph 22 of the National Constitution, thus granting the corresponding constitutional hierarchy. And it is in this sense that there are no doubts about the obligation to apply the conventional provisions, as well as the duty to control the compatibility of the internal legal norms with the American Convention on Human Rights. Such consideration has already been pointed out by the Inter-American Court itself in the case “Almonacid Arellano and others vs. Chile” and by the Supreme Court of Justice of the Argentine Nation, highlighting as precedents the rulings “Mazzeo” (Fallos, 330:3248), “Ekmekdjian c/ Sofovich” – La ley, 1992-C-543) and Simón (Fallos, 328:2056).
Also in the “Mattei” case, the Supreme Court ruled: “…the right of every accused to obtain, after a trial conducted in a legal manner, a ruling that, defining his situation before the law and society, puts an end, as quickly as possible, to the situation of uncertainty and undeniable restriction of freedom that criminal prosecution entails, must be considered to be included in the guarantee of defense in court enshrined in art. 18 of the National Constitution.” This ruling is similar to customs proceedings, since it incurs uncertainty, sanction and possible suspension of the right to exercise the due right to trade of the accused (3).
Likewise, in the “Losicer” case (4), the Court considered that the unreasonable delay of the administrative procedure is incompatible with the right to due process protected by the National Constitution and by the American Convention on Human Rights. It emphasized its scope to all types of process. Thus, it expressly held: “…it is possible to rule out that the administrative nature of the summary procedure may become an obstacle to the application of the principles outlined, since in the rule of law the validity of the guarantees set forth in art. 8 of the aforementioned Convention is not limited to the Judicial Branch - in the eminent exercise of such function - but must be respected by any public body or authority to which materially jurisdictional functions have been assigned. The Inter-American Court of Human Rights has held in this regard that when the Convention refers to the right of every person to be heard by a competent court to determine his rights, this expression refers to any public authority, whether administrative, legislative or judicial.
Based on this, when faced with a process that encounters an unreasonable time limit for obtaining a resolution, the situation would be one of being affected at the beginning of the reasonable time limit, but it may happen that the time limit stipulated by law for the application of the statute of limitations has not yet elapsed. This is when we must ask ourselves: what should prevail in these cases?
The legal remedy must be sought in the hierarchy of the norm, considering in this framework that, since the reasonable period is a guiding principle that is upheld within the international and constitutional frameworks, it should apply above what is provided for in terms of prescription in the base law.
Dr. Juan Patricio Cotter (5) recalls that the guarantee of speed of justice is contemplated in the American Convention on Human Rights, which requires that the trial must be carried out within a reasonable time. He also points out that it is protected by the International Covenant on Civil and Political Rights, which requires that trials be carried out within reasonable time periods, and that failure to comply with this guarantee of speed may lead to the denial of justice.
On the other hand, it should be remembered that principles such as the species have a constitutional value, and as Dr. Claudio Augusto Gonçalves Pereira (6) reflects, the principles encompass relevant propositions that have the purpose of serving as a basis for a certain structure of knowledge on which the understanding of legal norms is based. They are authentic vectors that must be followed by both the legislator and the applicator of legal norms and the executors of the laws. The principles act as essential matrices and pillars for the current legal system. Therefore, there is no doubt that the violation of principles is presented as the most serious form of transgression of an established legal norm, since it has serious consequences for the internal structure of any type of legal system.
In addition, it should be added that certain procedures, such as the challenge procedure regulated in article 1053 of the Customs Code, have a period of limitation suspended by the very claim introduced by the taxpayer, generating greater uncertainty over time and the lack of obtaining a resolution within a suitable period, with the added interest and exchange rate in the event that the grounds that have supported the challenger's action are rejected. Recalling what was pointed out by Dr. Mateo Mc. Cormack (7), regarding the delay in customs procedures, and fundamentally in challenge procedures where the period of limitation to collect taxes is suspended until the final resolution is issued, is a constant concern that has been getting worse over the years.
Therefore, we consider that a reasonable period should prevail over a statute of limitations, when the process itself shows the presence of a lack of reasonableness in the time in which the process should take place, or when faced with the manifestation of only acts that only indicate the interest of preventing the scope of the statute of limitations and not its advancement. Therefore, if this principle is affected, the prevailing rules are the International Agreements and the National Constitution itself over the statute of limitations established by the Customs Code.
Conclusion
Foreign trade is an activity that calls for the need to have transparent, predictable and agile schemes. While the globalized world is preparing to take measures concerning the Trade Facilitation Agreement, promoting the rapid circulation of goods across borders, which are based on best practices from around the world. In Argentina, customs processes involving tax or infringement situations persist in the analog era. This inevitably results in the presence of extensive processes, based on the possibility granted by law to keep us existing, regardless of the time elapsed. This is when it should not be overlooked that such processes also involve issues related to foreign trade, and therefore, they must be aligned more quickly with the precepts that lead to the need to reduce the time to obtain a final resolution.
By means of DNU 70/23 (8) important guidelines have been incorporated into the Customs Code that call, from the Law itself, for the adoption of procedures and mechanisms that simplify the fulfillment of its obligations with the different actors involved in foreign trade activities, including the extended use of information, automation and communications technologies for the electronic exchange of information (9). Likewise, it aims at the professionalization of customs personnel, based on the principles of objectivity, neutrality, merit, capacity, publicity and transparency. This rescues two functional elements of great value to achieve the agility of all processes, both operational and customs procedures that may correspond to be processed in Customs.
In this case, if the passage of time affects long processes, either due to the effects of delays by the Administration, the Justice or by actions of the administered, it is evident that the solution lies in channeling these procedures, both administrative and judicial, to reduce their time span of duration, through systems that call for such objectives. Undoubtedly, the digitalization that was incorporated, makes it possible not only to make them transparent, but to speed them up. This can be seen, through the electronic systems that the Justice itself and the Tax Court of the Nation incorporated and now, through the "Single System of Customs Management" (SUGA) (10), seeking the simplification and harmonization of customs procedures, will make it possible to obtain agile management in customs administrative actions.
It should be noted that the foundations of the SUGA regulation explain that the intensive use of information and communication technologies (ICT) constitutes a strategic and permanent objective of this Federal Administration, by virtue of the potential that it offers to consolidate, among other management criteria, a "Paperless Customs". In this way, the AFIP recognizes that the new data registration system provides traceability to the actions, increasing certainty, efficiency and transparency in the management of the same, which will result in a better service to the administered. Therefore, now, the General Directorate of Customs must proceed to dictate the complementary regulations for the implementation of the single system in order to comply with the goals that guarantee greater security and real facilitation of trade.
In this scheme, computerizing all the processes undoubtedly predisposes them to result in more expeditious procedures and thus contribute to reducing deadlines to avoid unreasonable deadlines. But it is eloquent that other measures must be added, such as what Dr. Juan Patricio Cotter indicated, in terms of promoting the analysis of current customs legislation and adapting its postulates to constitutional and conventional precedents. Above all, we consider it appropriate to establish within the Customs Code a prescription period aligned with the principle of reasonable time.
All these actions, both digitalisation and the analysis of the regulations, can be an encouraging step towards designing procedures that find a real and concrete sense regarding moderate times to resolve customs cases and thus avoid stages of situations that imply coercion at the beginning of the reasonable period, which in many cases are seen to be violated, even in the face of the non-scope of the prescription regulated in the Customs Code; despite this, as previously indicated, there would be an affectation of the constitutional and conventional principles.
- SCJN Rulings 305: 1236; 311: 2205, 313:1224; 323: 1785, among others.
- Dr. Juan Pablo Rizzi, “The guarantee of a reasonable period and the customs infringement procedure”, Argentine Jurisprudence, Thomson Reuters, 16.02.2024/XNUMX/XNUMX
- In this regard, the following case law precedents are noted: CSJN, Mattei, Fallos, 272:188, CSJN, Camilo Mozzatti, Fallos, 300:1102, CSJN, Alderete, Fallos, 324:1944, CSJN Esposito, Fallos, 324:4135, CSJN, Lépori, Fallos, 324:1710, CSJN, Genie Lacayo vs. Nicaragua, Merits, reparations and costs. Judgment of January 29, 1997. Series C No. 30, para. 77. Losicer, Jorge Alberto et al. v. BCRA – Resol. 169/05 (file 105666/86 – SUM FIN 708) 26.07.2012/XNUMX/XNUMX.
- Dr. Juan Patricio Cotter, The guarantee of a reasonable period and the recourse procedure. Argentine Jurisprudence, Thomson Reuters, 16.02.2024
- Dr. Claudio Augusto Gonçalves Pereira, “The principle of reasonable duration in the Brazilian customs field: the customs clearance procedure”, Argentine Jurisprudence, Thomson Reuters, 16.02.2024/XNUMX/XNUMX.
- Dr. Mateo Mc. Cormack, The guarantee of a reasonable period in the challenge procedure. Argentine Jurisprudence, Thomson Reuters, 03.05.2024.
- Provision 43/2024 AFIP (BO10.05.2024)
- Decree of Necessity and Urgency (PEN) 70/23. BO21.12.2023, in force since 29.12.2023.
- Decree 70/2023, Incorporates Article 120 bis. to the Customs Code.
- Provision 43/2024 AFIP (BO10.05.2024)
- Dr. Juan Patricio Cotter, The guarantee of a reasonable period and the recourse procedure. Argentine Jurisprudence, Thomson Reuters, 16.02.2024.
The author is a lawyer and member of the Institute of Customs Law and International Trade of the Argentine Association of Constitutional Justice.
