G 1 9866

Argentine Republic - National Executive Branch

1983/2023 - 40 YEARS OF DEMOCRACY

Judgment - National Tax Court

Número: INLEG-2023-18133598-APN-VOCXIXlffFN

CITY OF BUENOS AIRES

Thursday 16 February 2023

Reference: Expte. Ne 39.933-A, BASF ARGENTINA S.A. (Judgment)

In the city of Buenos Aires, in a meeting of the Judges of Chamber ''G", Judges Miguel Nathan Licht, Claudia Beatriz Beatriz, Claudia Beatriz, Claudia Beatriz, Claudia Beatriz and Miguel Nathan Licht, Judges. Miguel Nathan Licht, Claudia Beatriz Sarquis and Héctor Hugo Juárez (subrogated Vocal of the Vocal of the 21st Nomination), to resolve in the proceedings entitled "BASF ARGENTINA S.A. si recurso de apelación", file number 39.933-A, Dr. Miguel N. Licht said:

l. At pages 16/25 the firm BASF ARGENTINA S.A. appears, by proxy, and files an appeal against the resolutions issued by the Department of Customs Legal Proceedings ("DE PRLA") in the proceedings SIGEA nºl2646-204-2006n for Charge 1612 - Resolution nº8488 of 9/11/18 and SIGEA nºl2646- 204-2006/8 for Charge 1423 - Resolution nº9325 of 28/11/18, both notified on 11/02/2019, insofar as they 'maintain the value adjustment on some import destinations registered at Ezeiza Customs in the years 2009, 2010, 2011 and 2012 -Charge l 6 l2- and registered at Buenos Aires Customs in the years 2009, 2010, 2011 and 2012 -Charge 1423-, filed in the framework of a value investigation carried out by the Related Companies Division ("DV EVIN") in respect of raw materials and goods imported during the aforementioned periods. These charges amount to the total sum of USD 2,993,421.24 for the difference in import duties, statistical tax and VAT and for the amount of $ 4,152,824.16 corresponding to the collection of VAT and Income Tax, plus interest under Art. 794 CA.

II. The appellant's complaints, in brief, focus on the unlawfulness of Charges 1423/08 and 1612/08, in view of the fact that the customs service had adjusted the FOB value declared, adding a percentage for duties allegedly accrued and paid, even though they had not been subject to any of the manufacturing processes under the technology transfer contracts signed by the appellant. The line of argument adopted by the importer was based on the fact that, in the absence of objective and quantifiable data in relation to the transactions at issue, the requirement of direct or indirect payment as a "condition of sale" provided for in Article 8.1(c) of the GATT Value Agreement could not be verified. In support of this claim, it explains that it is mainly engaged in the sale of chemical products - which it manufactures locally in different industrial plants located in the country - and in the marketing of imported goods. Thus, it emphasises that it imports a large volume of tangible goods, comprising both products for resale and inputs for production, with its raw material suppliers being related and independent companies - the latter being local and foreign. Continuing with the explanation of its commercial activity, it indicates that, for the manufacture of some specific products, BASF ARGENTINA has entered into 6 technology transfer contracts: one with BASF Agktiengesellschaft (business segment: plastics), 3 with BASF S.E. (Polyurethane Plastics and Dispersions and Solutions segments) and 2 with Construction Research & Technology GmbH (Construction segment). Precisely within that framework, it argues that it should only pay royalties for the sale of products manufactured under the technology transferred by the licensors and for the use of the trade marks licensed exclusively for the sale of such locally manufactured goods. In view of the above, it argues that those products represent only a part of the totality of goods produced in the country, since BASF ARGENTlNA manufactures other types of products which are not covered by any licence. In this regard, it notes that the marketing of these goods is not at issue as they are resold in the same state in which they are imported, or purchased on the local market for resale, or imported as raw material for other businesses unrelated to the aforementioned contracts. Based on the above, it concludes that there is no relationship between the intangible asset and the imported products which are not used in the production process under such contracts, so that the "condition of sale" provided for in Article 8.1(c) of the GATT Value Agreement is not met. In the alternative, it complains about the inappropriateness of the 21% VAT on the grounds that it implies a duplication of the licensing tax. It cites case law. It complains about the application, until 28/02/19, of the 3% monthly interest rate provided for in Resolution No 314/04 of the former Ministry of Economy and Production, on the tax claim denominated in US dollars, which it considers to be null and void for being unreasonable. This opinion extends to the two rates provided for in Resolution nºS0/2019: one of 4.5%, in force during March 2019 and the other, in force since 01/04/19, equivalent to 1.2 times the nominal annual electronic channel rate for fixed-term deposits in pesos at 180 days of the BNA in force on the 20th day of the month immediately prior to the start of the referred period. It offers evidence. Reserves the Federal Case. It requests the revocation of resolutions no. 8488/18 and 9325/18 for nullity based on art. 1° inc. f) and 7° inc. b) and e) of the LPA, and charges no. 1423/14 and 1612/14.

III. On pages 34/45, the public prosecutor defends the fairness of the contested administrative act. It argues that the administrative act was issued in strict compliance with its essential requirements and, consequently, cannot be held to be invalid. In this context, it argues that the tax adjustment is justified. In addressing the issue at hand, it points out that the explanation of the facts provided by the applicant omits to consider the commercial reality of the economic group of which it forms part and which has a decisive bearing on the context of the disputed transactions. With this in mind, it shows that, although the liable party resold on the domestic market licensed goods acquired abroad and supplied by sellers who might not be related to the importer or the licensor, it was nonetheless true that the seller should be assumed to have made the manufacture of the licensed product conditional upon the importer having an authorisation authorising it to use the intellectual property contained in the licensed product and to bear the costs involved. In view of the above, it appears that the requirements for justifying an adjustment under Article 81(8) of the GATT Agreement are met. 8° of the GATT Agreement, taking into account that the existence of an intellectual property right involved in the import subject to valuation, the use or exploitation of which obliged the buyer to pay a royalty or licence fee that was not included in the invoiced price and its relation with the imported merchandise would have been verified; and emphasises that the payment of the royalty will always be a condition of sale when without that payment the goods would not have been sold, or at least would not have been sold at the price finally agreed. Going even further, he brings up the opinion of the European Economic Community Customs Code Committee, in Conclusion No 24 of which he argues that it is possible to control such payments [made to the person exercising direct control over the production and sale of the goods, or indirect control over the manufacturer] as a condition of sale, even if they do not constitute an obligation of the seller, but of the buyer towards the licensee', a diagnosis which, in his view, coincides with the present case. It considers it necessary to investigate the proper economic content of Article 8(1)(c), which would lead to the inclusion of "the trademark" as a condition of sale, together with the royalties and licence fees described therein. It cites doctrine and case law. In relation to the complaint concerning the interest rate applied, he considers it to be in line with the current legislation. He encloses as documentary evidence the SIGEA proceedings nºl2646-204-2006/7, 12646-204-2006/8 and 12646-204-2006/10. Reservation of the Federal Case. It requests that the DPRLA resolutions 8488/2018 and 9325/2018 under appeal be upheld, with costs.

IV. On page 54, the case is referred to Chamber "G" for consideration and on page 55 the case is called for judgment.

V. In view of the foregoing, first of all, I shall dismiss the nullity raised on the grounds of infringement of the applicable law. In this regard, I find that the complaints are not sufficiently serious to warrant a declaration of nullity. In fact, beyond the fact that the customs authority has complied with the necessary rules to proceed with the adoption of the contested decisions, I begin by noting that the validity of an administrative act whose content cannot be specifically determined by the competent authority is at issue. As a result, any irregularities in the administrative procedure can be remedied here. Here we already have the clear contrast between the possibility of remedying an administrative act issued in the exercise of regulated powers and an administrative act issued in the exercise of discretionary powers. It follows that the judicial review of eminently regulated acts allows for procedural defects to be remedied at a later judicial stage.

This opinion coincides with the reiterated doctrine of our Highest Court (Judgments 205:549, 247:52, 267:393, among others) which holds that "...when the restriction of the defence on trial occurs in a procedure that takes place in an administrative venue, the effective violation of article 18 of the National Constitution does not occur. 18 of the National Constitution does not occur as long as there is the possibility of remedying that restriction in a subsequent jurisdictional stage, because it satisfies that fundamental right by offering the possibility of appearing before a Jurisdictional Body in search of justice, as "in extenso", in the case in question, the appellant has done before this Court, being able to offer all the evidence that made his right...". [in re "Mirror Holding S.A", 15/9/06 expte. Nº 20.440-1).

In this context, I consider that the plaintiff's claim of nullity based on observations on the due process of law should be dismissed.

With regard to the complaints of lack of cause and lack of motivation of the contested administrative acts, taking into consideration the grounds put forward by the appellant to support them, they should be resolved together with the merits of the case.

VI. Having said this, I would also like to state at the outset that it is not disputed that BASF ARGENTINA is part of the BASF Group, founded in Germany in 1865, a leading group in the chemical industry; that BASF ARGENTINA is mainly engaged in the sale of chemical products manufactured locally in the various industrial plants located in the country and in the marketing of imported goods; and that BASF ARGENTINA imports a large volume of chemical products, which it manufactures locally in the various industrial plants located in the country and in the marketing of imported goods; that it imports a large volume of tangible goods, comprising both products for resale and inputs for production (used in its manufacturing plants); that its suppliers of raw materials are both related and independent companies, the latter being both local and foreign; and that for the manufacture of some specific products, BASF ARGENTINA has entered into six technology transfer contracts.

It is also uncontroversial that the imported inputs and goods that are the subject of this appeal are resold in the state in which they are acquired or are used in manufacturing processes that do not involve the 6 technology transfer contracts, being in both cases acquired by BASF ARGENTINA from companies that belong to the same economic group.

Likewise, it is explicit from both submissions - appeal and reply to the tax authorities' transfer - that, initially, the plaintiff had not included in the customs value of any of the imported raw materials and goods, any royalties accrued and paid. However, after the value investigation, the appellant partially consents to the adjustment and makes the corresponding payment of the differences arising from the transactions with related companies and referring to the imported products to be used in the manufacturing processes under technology transferred by the licensors and for the use of authorised trademarks for the sale of such locally manufactured goods, maintaining that the appellant had not included any royalty fees for royalties accrued and paid in the customs value of the imported goods.

locally manufactured goods, while maintaining the challenge with respect to the rest of the products which, in its opinion, would not be covered by any licence. Later, the AFIP itself, without prejudice to the substantive arguments that would legitimise the merits of the customs claim, excluded from the adjustment made the goods purchased from the ex-carriers that were not part of the BASF group and proceeded to re-settle the charges, as they were appealed in the proceedings.

For the sake of clarity, the sequence of debugging affecting the lists of DI included in each of the charges involved in the case is outlined below:

SIGEA n°12646-104-2006/7: refers to transactions officialised at Ezeiza Customs in the years 2009, 2010, 1011 and 2012 and includes Charges 1611 and 1612; only Charge 1612 is included in the contested Resolution n°8488.

ISIGEA nº12646-204-2006/8: refers to transactions formalised at Buenos Aires Customs in the years 2009, 2010, 2011 and 2012 and comprises Charges 1422 and 1423; only Charge 1423 is included in the contested Resolution n°9325.

VII. In the aforementioned conditions, as the Tribunal's jurisdiction has been delimited, the Tribunal must decide on the appropriateness of the value adjustment that adds a royalty for the use of the trademark of licensed products acquired from related foreign manufacturers and not subsequently used in a production process subject to the technology transfer agreements signed by BASF ARGENTINA S.A.

VIII. Here it is worth pausing for a moment to note that the case brought to the attention of this Court, with a great deal of doctrine in the different judicial instances, draws my attention to what I perceive as evident: the need to return to the very sources of taxation. I am convinced that before focusing on our specific problem, it is essential to start the analysis from the very foundational basis of the taxation power and Tax Law as a branch of Law from which Customs Law is derived, because it is the very rules that will guide us fluently to the understanding of the case, guaranteeing a perspective in accordance with the law. My proposal consists, then, in applying a deductive method of reasoning, starting from a macro vision of the taxable matter in order to circumscribe the specificity of the matter in question. In my opinion, such an approach, original in its simplicity, will shed light on a subject of concern today - considering the growing relevance of the digital economy in the whole economy, especially in foreign trade - not only because of its complexity but also in view of the commitment of the judge to contribute to reducing the legal uncertainty that could arise in the face of the legal challenge of dealing with a "new era of economic facts".

I will start by saying that the core of the legal issue at stake is the determination of the customs value of imported inputs with the trade mark of the economic group, of which the manufacturer and the plaintiff are part. I would like to state in advance that both contenders make a wrong legal approach, in line with the jurisprudence that is being produced, and that, I understand, disregards the meaning and scope of the taxable event debated in these proceedings.

lX. Having said that, and prior to the analysis of the matter at hand, let me digress by recalling some fundamental concepts of] tax law that I consider necessary to clarify the issue at hand.

Let us refresh the basic concept that tax law is the branch of law that regulates one of the most typical manifestations of the State's power to impose taxation, which can be defined as "the power of the State to unilaterally create taxes, the payment of which will be demanded from individuals, This implies the coercive power of the state to compel individuals to hand over a portion of their income or assets, which will be used to cover the expenses involved in fulfilling its purpose of meeting public needs. The taxing power, moreover, considered on an abstract level, means, on the one hand, supremacy and, on the other, subjection. The former, because it is the supremacy of the state at the moment of exercising this taxing power that endows Jo with the potential capacity to coercively obtain pecuniary benefits from individuals and to require the fulfilment of the instrumental duties necessary to obtain them. The latter, because it is not yet a credit right against a debtor or a right to demand formal benefits, but a "state of subjection" on the part of those who are under its spatial scope. Once the tax obligation has arisen, the position of supremacy disappears and the active subject -the tax authorities- and the passive subject -the taxpayer- are placed in a situation of equality before the law, with rights and obligations for both parties (cfr. VILLEGAS, Héctor B., Curso de Finanzas, Derecho Financiero y Tributario, Depalma, Buenos Aires, 1992 and 1977, pp.186-187 and 245).

This taxation power, deriving from the power of empire, is then exercised by the sovereign state as the representative of the will of the "people", the original owner of the power. Thus, Jean-Jacques Rousseau (1712-1778), in his book "On the Contract with the People", says of sovereignty, political society and the foundation of power: "Each of us puts his person and all his power in common under the supreme direction of the general will, and we receive each member as a body as an indivisible part of the whole". And he understands that each member of the political body is a vassal - insofar as he is submissive to the state, insofar as he obeys the laws voted by it - and a citizen - because he participates in the sovereign authority - and he designates the group of associated members as the "people". It also refers to authority as "sovereign" in its active quality and as "state" when it is passive. Sovereignty is, for Rousseau, inalienable, infallible, indivisible and absolute (cfr. García Vizcaíno, C., Derecho Tributario. Consideraciones Económicm y Jurfdicas, Tomo 1, AbeledoPerrot, Buenos Aires, 2014, pp.403-404).

If we delve deeper into the concept, it is possible to conclude that in a modern constitutional state, the Constitution is sovereign "because it is supreme in its order, given that in the divine order the supreme instance is God. It is sovereign, moreover, because it is the embodiment of the sovereignty of the people, and the rulers cannot move outside the orbit that it outlines for them. The people have original sovereignty, but when a Constitution is given, the sovereignty changes hands, since it embodies in it all their idiosyncrasy, their conscience, their feelings, their thinking, their customs, their social reality, the real constitution that was given to them by God. That is why the Constitution represents the people itself" (Garcla Vizcaíno, C., Los tributos frente al federalismo. Puntos de partida y recomendaciones para la reforma constituciona/, Depalma, Buenos Aires, 1975, p. 298).

Therefore, the State's power of empire deriving from the Constitution, and by which it can coercively bind those subject to it, must be a power that is not limited to the constitutional limits. That is to say, such power is not all-embracing but is limited by constitutional precepts, among which we can mention the principle of legality or reserve - taxation power must be exercised entirely by means of legal rules - as a formal limit with respect to the system of production of that power, and the principle of contributive capacity as a material limit with respect to the content of the tax rule. Both principles constitute the basic statute of the taxpayer protected by the National Constitution (cfr. VILLEGAS, Héctor B., Curso ob. cit., pp.187-188).

Finally, and given its relevance to the case at hand, I must mention the characteristics of the taxation power, which for Giuliani Fonrouge are that of being abstract (not to be confused with the concrete exercise of that power); permanent (it can only be extinguished by the State itself); and permanent (it can only be extinguished by the State itself); prescription and expiry refer to the State's credits in concrete cases, not to the State's taxation power, which is abstract); inalienable (without taxation power, the State could not subsist); and non-delegable except for the exceptions foreseen in the N. C. (e.g., the State's taxation power, which is abstract); and non-delegable except for the exceptions foreseen in the N. C. (e.g., the State's taxation power). N. (e.g., 1]-, renunciation implies relinquishing a right absolutely, while delegation implies transferring it to a third party on a transitory basis; the powers conferred cannot be delegated, but the Executive or an administrative body can be granted the power to regulate the details and details for the execution of the law (Giuliani Fonrouge, Carlos M., Derecho financiero, vol. 1, 3rd edition, 6th reprint, Depalma. Buenos Aires, 1986, pp. 276-278; vol. l 1997, pp. 335-336; t. 1, 2004, pp. 268-269).

To sum up, the taxation power held by the Argentine State, which enables it to establish taxes within its spatial taxation competence, is abstract, permanent, inalienable and non-delegable, and is limited by constitutional precepts.

X. It is common knowledge that the exercise of state taxation power creates substantive obligations (payment of the tax) and establishes formal duties (submission of tax returns, etc.), and that both requirements can - and usually are - regulated by different regulations,

It is worth mentioning that the material or substantive tax law regulates the different substantive aspects of the future relationship or legal bond that will be established between the State and the taxpayers subject to its power to impose taxes. And it is complemented by the rules of formal or administrative tax law, which provide the rules for verifying whether it is appropriate for the Treasury to collect a sum from a given subject as a tax, and the way "in which the claim will be transformed into a liquid tax amount, which will finally be paid into the Public Treasury" (cf. Villegas, Curso de finanzas, ob. cit., p. 245).

Asf, the material tax law includes the taxable event, tax exemptions and benefits, the active and passive subjection of the tax obligation, the quantitative elements to fix the magnitude of the tax claim, the ways of extinction of the legal bond that entails the tax obligation, the privileges and guarantees in tax matters, the obligations to pay advances and other payments on account (withholdings, perceptions at the source), tax supplements, and accessories (e.g. interest), and it also includes the rules for the payment of taxes and the rules for the payment of taxes, It also includes the rules that regulate the relationship that is, to a certain extent, the inverse of the legal tax relationship, the repetition (cfr. García Vizcaíno, C., Derecho Triburario, Consideraciones Económicas y Jurídicas, Tomo 1, Oepalma, Buenos Aires, 1996, pp.30 l-302).

From the above, it is useful here to delve deeper into one of the elements mentioned: the taxable event (H[), which "constitutes the conditioning legal hypothesis which, when it occurs in reality, generates the tax obligation, to the extent that neutralising legal hypotheses (exemptions and tax relief or benefits) have not been configured" (García Vizcaíno, C., Tratado de Derecho Tributario-! Parte General, Abeledo Perrot, 6th ed., Buenos Aires, 2014, p.557).

Villegas emphasises that the HI must, necessarily, have the following aspects: a) the objective description of a fact or situation (material or objective aspect); b) the individualisation of the person who must carry out or fall within such description (personal or subjective aspect); c) the time at which the configuration must occur or the "realisation" of the taxable event must be considered to have occurred (temporal aspect); d) the place where the "realisation" of the taxable event must occur or must be considered to have occurred (spatial aspect) (VILLEGAS, Héctor B. , Curso ..., op. cit., 1997, pp.273/281; 2002 and 2005, p. 352).

The objective element refers to the concrete factual situation, the element of the social reality that is taken as the basis for each tax or the situation in which it must be framed. It is the very fact that reveals the economic capacity selected by the legislator. It has to do with the matter that is taxed, and with the contributive capacity that is externalised when taxing.

The subjective element refers to the person who is the owner of the taxable event, the person who carries out the taxable event or who falls within the situation described by the legislator. It is the legal addressee of the tax, the person for whom the tax nullity was intended, whose ability to pay was taken into account. He is the natural taxpayer of the tax liability, although he is not always the person obliged to pay.

The spatial aspect refers to the precise delimitation of the geographical area within which a given taxable event will produce its effects.

The temporal element is the aspect of the budget which determines the exact moment at which the taxable event is considered to have taken place, which will allow the tax liability to be established, with all that this implies in terms of the application of the tax rules in time.

Therefore, the correct definition by the legislator of all aspects of the Hl is, on the one hand, what enables the taxing power to be converted into a taxable obligation and, on the other hand, what provides certainty to the taxpayer insofar as it allows him to anticipate whether a certain activity or fact that he carries out will fall within the taxable or is a case of non-taxation.

To simplify, we could say, then, that the first -and main- manifestation of the State's taxing power is the legislative establishment -by the constitutional principle of legal reservation- of the HI of the tax, through the definition of its four essential elements.

At this point I must point out that the above position, which I share for the reasons that I will explain in due course, is restrictive with respect to the broader thesis advocated by Dino Jarach, who includes in the expression "taxable event", in addition to the above and among other aspects, the tax base and the amount expressed in a finite sum -quantum of the obligation- (cfr. JARACH, Dino, Finanzas públicas y derecho tributario, Cangalla, Buenos Aires, 1985, pp.382-383 and 386-397; AbeledoPcrrot, Buenos Aires, 2013, pp.369-370 and 371-384),

XI. Now, the tax liability arises with the occurrence of the taxable event. This is because the tax law links the obligation to pay a tax to the State to certain acts carried out by certain persons. Therefore, it is stated that the obligation to pay a tax is ex lege, since all the elements of the tax obligation, the structuring aspects of the tax must be established by law, at the time the HI is defined.

Once the tax liability has arisen, the tax must be defined. And as a logical consequence of what has been explained above, it should be noted that the determination has a declaratory effect and not a constitutive effect of the tax liability, which is previously "constituted" through the four elements established by law at the time of defining the HI. Thus, there can be an assessment without tax liability (for example, due to an error by the tax authorities) and there can be tax liability without assessment (evasion unknown to the tax authorities).

XII. Here, it is of great interest for the resolution of the case to understand the difference between HI and how the tax liability is to be calculated, taking into account that both will have a bearing on the tax that must ultimately be paid to the Treasury, albeit at different levels.

Already Dr. Osvaldo Casas Osvaldo Casas, in his iconic opinion of the Procuración General de la Nación in the CSJN case "Jnsúa, Juan Pedros/recurso por retardo", judgement of 1/10/1987, held that "the first fundamental guarantee established in the CN in favour of the rights of taxpayers, and the birthplace of DT [Tax Law], is the one expressed in the Latin aphorism 'nullum tributum sine lege -, also enunciated by Anglo-Saxon public law in the phrase 'no taxation without representation''; i.e. "no taxation without representation". This affirmation is based, among other things, on recalling that "In our national law, the fundamental concept is reflected in the Minutes of the Cabildo Abierto of 25/5/1810, where it was included: and the gentlemen, having gone out onto the balcony of these Casas Capitulares, and having heard the People ratify by acclamation the content of said pronouncement or representation, after having been read by me in loud and intelligible voices, agreed....: That it may not impose contributions or levies on the People or its neighbours, without prior consultation and concurrence of this Most Excellent Cabildo' (Silva, Carlos A.: "El Poder Legislativo en la Nación Argentina" - T. I -.Imprenta del Congreso Nacional - Bs.As. - 1937 - p. 7); to be definitively enshrined in the CN of 1853, in its art. 17, 3rd paragraph, according to which: "Only the Congress imposes the contributions expressed in art. 4" (in accordance with arts. 4 and 67, inc. 1) and 2) which assign to the PLN the exclusive ownership of the power of taxation.

This doctrine was accepted by the Court, establishing the idea that ''The principle of the reservation of the tax law, of constitutional rank and proper to the Rule of Law, only admits that a legal norm with the nature of a formal law typifies the fact of what is considered taxable and what will constitute the subsequent cause of the tax obligation" (Judgments - 294:152, consid 18º; 303:245, cons. 6ºand 303:245)"--the emphasis belongs to me-.

Therefore, before continuing, let me insist on the idea that only by means of a law[2] issued by the Congress of the Nation can a tax of federal scope be established, and that such establishment must be given by the definition of the four elements of the HI: objective, subjective, spatial and temporal aspects. Once the HI has been defined, other aspects that make up the liquidation and revenue of the tax need not have - nor do they usually have - the force of law. [3)

Having established the above, it is appropriate to refer to the rules of the Customs Code as they define the HL of treatment,

In customs matters, the Substantive Tax Law is contained in Law n°22.4 l 5 of the Customs Code which, from a strictly dogmatic point of view, provides in point 1 of Article IO, that goods are any object that can be imported or exported. Then, in paragraph 2, it states that the following are also considered -always for the purposes of the CA- as if they were goods: a) The renting and provision of services, carried out abroad, whose effective use or exploitation is carried out in the country, excluding any service that is not provided under commercial conditions or in competition with one or several service providers, b) Copyrights and intellectual property rights and c) the provision of services carried out in the country, whose effective use or exploitation is carried out abroad. This is what leads the doctrine to affirm that the international traffic of services, as well as that concerning intellectual property rights, will only be affected by customs barriers when such services or rights have been incorporated into the merchandise object of such international trade (Ricardo Xavier BASALDÚA in ''Tributos al Comercio Exterior", Abeledo Perrot, Bs. As. As., 2011, p. 481 and sgtes).

With regard to import duties, the Code specifically devotes sections 635 to 640, 651 and 660 to 672, which it complements - according to the provisions of section 18 of Decree No. I026/1987 - with the provisions of Law 23.311 approving the General Agreement on Tariffs and Trade (GATT) and its Protocol. Then, by means of Law Nº24.425 of 23/12/1994, the Final Act of the Agreement was approved, incorporating the results of the Uruguay Round of Multilateral Trade Negotiations, the Ministerial Decisions, Declarations and Understandings, the Mnrrakech Agreement establishing the WTO and, among others, the Agreement on the implementation of Annex VII of the GATT 1994. VII of GATT 1994. The latter also incorporates the "Decision of the Customs Valuation Committee concerning cases where administrations have reason to doubt the veracity or accuracy of the declared value",

This legislative compound is explained by the fact that "the source of tax liability is the law, unless the issues are regulated by international treaties, since these have a higher hierarchy than laws, according to Article 75, paragraph 22, CN. Strictly speaking, treaties limit the taxing power of States..." (García Vizcaíno). "(García Vizcaíno, C., Derecho Tributario..., ob. cit., p. 556).

In accordance with the above, it should be noted that the quotation refers to tax liability, not taxable event. Likewise, let us continue and investigate what kind of delegation of "competences and jurisdiction" the Argentine accession to the General Agreement on Tariffs and Trade (GATT 1947) entails, as a Multilateral International Treaty.

I illustrate this with some of the objectives that can be gleaned from the recitals of the Agreement: "Recognising that their commercial and economic relations should aim at the achievement of higher standards of living, the attainment of full employment and an ever-increasing high level of real income and effective demand, the full utilisation of the world's resources and the increase in production and trade in products,.... [Desiring to contribute to the attainment of these objectives by the conclusion of agreements designed to secure, on the basis of reciprocity and mutual advantage, the substantial reduction of customs duties and other barriers to trade, and the elimination of discriminatory treatment in international trade,....".

In addition, as far as is relevant here, Article VU, which is the subject of the 'Agreement on Implementation of Article VII of the GATT', under which we are dealing with the present case, is entitled 'Customs Valuation' and refers only to how the Parties have agreed to measure the dutiable value of import duties of an ad valorem nature, and the procedure to be followed.

The foregoing leads me to conclude that only the aspect of the tax liability relating to the procedure to be followed in calculating the dutiable value of the quantum to be assessed has its source in the Agreement; there is no delegation of taxing power affecting the taxable event but how the basis of assessment to be applied is to be measured.

The parameters necessary for such a calculation, such as the valuation date, exchange rate, rate and so on, are defined by the Customs Code.

Therefore, as I have said before, and I must insist on this point, it is of significant importance to understand that, although the source of the tax liability arises from the set of provisions set out above, the taxable event as an externalisation of the non-delegable taxing power of the State is contained, in full, in a law issued by the Congress of the Nation -or higher nomia-; in this case, law nº 22415 of the Customs Code (CA).

Let us return then to the "Import Duty" as defined by the Code in order to identify the four essential elements of the HI that must be defined there: objective, subjective, spatial and temporal.

The objective element is found in Art. 635 and 636 insofar as they establish that "the import duty is levied on imports for consumption [i.e.] when the goods are introduced into the customs territory for an indefinite period of time".

The subject matter is regulated in Title 11 of Section IX (art. 777-819), and is defined in Title III of Section I of the CA. Specifically, Section I of Art. 91 refers to importers as "persons who import goods on their own behalf, whether they bring them with them or whether a third party brings them for them" and related persons, being jointly and severally liable for the tax obligation, the subjects listed in Title II "Auxiliaries of the trade and customs service" (Articles 36 to 90 CA).

The temporary element is represented by the moment when the import for consumption for an indefinite period of time takes place, a condition that is acquired in cases of regular introduction of goods, with the authorisation for circulation within the secondary zone -whether definitive or suspensive-, Such authorisation implies fulfilling all the steps concerning the traceability of the import: arrival of the means of transport (art.130 ), declaration of the cargo manifest (art.135), unloading (art.191), provisional import warehouse (art.198), official clearance (art.217), verification (an.241) and release (art.231). Therefore, the moment at which the taxable event is perfected in a regular import is with the release of the goods. On the other hand, when the introduction of the goods into the customs territory is carried out in an irregular manner, Article 638 establishes, for each case, the date to which the tax in question will apply.

The spatial element is given by the customs territory, defined as the part of the "land, water and air area subject to the sovereignty of the Argentine Nation, as well as in the enclaves constituted in its favour", "in which the same tariff system and prohibitions of an economic nature apply to imports and exports" (articles I to 8 of the CA).

From all this it is clear that the HI "Import Duties" is fully defined in the Customs Code and, when the time comes to measure it, whatever criterion is adopted or procedure is followed to determine the customs value -which, as I have already mentioned, will arise from the letter of the GATT Valuation Agreement-, it must correspond exactly to that definition. The customs value of the imported goods must neither exceed nor fall short of what the law defines as the Taxable Event; the correspondence must be exact -or as exact as possible-.

Regarding the perfection of the Hl, the Court of Appeal has stated that "the taxable event is perfected when the holder of the goods can keep them for an indefinite period of time within the territory... that the regular way of accessing this type of import is by means of clearance for consumption (art. 233, Customs Code). 233, Customs Code) whose procedure begins with the arrival of the goods and culminates with the act of release, always after payment of the corresponding taxes, and by which the goods are ready to be withdrawn by the importer (art. 231, Customs Code).... In other words, the mere presentation of the application for a destination does not constitute an importation for consumption, since it may be denied by Customs or withdrawn by the interested party. On the other hand, the importer's registration of an import application does nothing more than initiate the appropriate administrative procedure for that purpose, but in no way implies the automatic availability of the declared goods. Moreover, it is not created by the mere payment of import duties, since this does not enable the importer to introduce the goods for an indefinite period of time, but only occurs with the release (art. 231 of the Customs Code), because it is from that administrative act that the goods can remain indefinitely within the customs territory" (CNCAF "Labinca Labinca SA (TF 7599-1) c/DGI", Chamber V, judgement of 02/12/1996).

Coincidentally, recognised doctrine has expressed the opinion that "importation for consumption in regular cases only occurs with the act of customs clearance of the goods defined in art. 231, because it is from that administrative act that the goods can remain for an indefinite period of time within the customs territory, thus becoming part of the internal economic circulation, and it is this possibility Ja that characterises importation for consumption..., ...", this despite the fact that, "according to the provisions of art. 789, in principle, the payment of customs duties must be made prior to the release of the goods, in effect, this is a mere collection technique aimed at ensuring the collection of the duties .... "This prior payment "constitutes, strictly speaking, an advance payment which is subject to the fact that the release -and with it the importation for consumption, which is the taxable event- takes place; and if, in the end, this event does not take place, the amount of this advance payment of the taxpayer would have to be returned to him, because it would become a payment without cause" (Alsina, M. A., Basaldúa, R. X., and Cotter Moine, J. P.: (<Código aduanero - comentarios, antecedentes, concordancias" - T. IV - Bs. - 1985 - pp. 168 and 169, citing Cotter Moine, J. P.: (<importation for consumption)) - p. 451; and Sortheix, J. J. A.: "La estructura del hecho gravado por los derechos de importacióm> - Rev, Derecho Aduanero- T. V-A- p. 392).

Moreover, this idea has been taken up and deepened in a Report of the Subdirección General Técnico Legal Aduanera dependiente de la DGA, in which it states that "it varies according to the case, but there is always a common element: the introduction of the goods for an indefinite period of time into the customs territory, which is presumed iuere e( de iure by the Customs Code. This occurs, for example, with regard to goods unloaded at unloading, which were not justified as missing in the foreseen manner (conf. an. 142, 151, 157 and 164 of the C.A.), or those which had been the object of a temporary import destination, upon expiry of the period granted or non-fulfilment of the purpose (conf. art. 274 of the C.A.}, among other cases. The same applies to clandestine introduction, since, in the absence of an application for a destination (if the latter is required), a suspensive destination cannot be presumed, since they constitute exceptions to the general regime and are granted by the service''[4]. With this, the customs service wants to mean that the improvement as a requirement to sustain the taxable event in the import - entry for an indefinite period of time - is different if it is a regular or irregular event. In the former, the goods are subject to a customs destination and their entry into the market is authorised; but in the latter, the goods are not released into the market, as a consequence of their detention and denunciation by the customs service, notwithstanding which it is an importation in the terms of art. 9 CA and therefore the legislator imposes the tax as it is considered a taxable event of the so-called irregular ones. It should be noted here that in both cases there is a requirement that the goods remain within the customs territory for an indefinite period of time: one, by virtue of the authorisation of release by whoever has the power to control the international traffic of goods (DGA); and the other, by the non-authorisation of entry based on the complaint of smuggling, but with the effects of remaining in the customs territory either for confiscation, ex officio release, auction, sale or donation, which the same control authority determines based on what is prescribed by the Law -article 876 inc. a, 417 and ce. Law 22.415, Law 25.603-.

In short, what has been said so far can be succinctly stated as that all imports for consumption for an indefinite period of time of goods that verify the four essential elements of the taxable event "Import Duties" -as defined by the Customs Code- will be subject to taxation, being perfected the same -for the case of regular imports such as the present case- from the moment of the release of the product to the market. This moment, as I said, is particularly relevant since it is from that moment that the tax liability arises.

Now then: I must re-emphasise how essential it is to be able to differentiate between the system of liquidation and payment of the tax and the definition of the taxable event -through its 4 elements- in order to resolve this lawsuit. In a regular event, the determination of the tax (art. 637 and 639) is aligned with the taxable moment established in art. 636 of the C.A., which does not coincide with the event generating the taxation which results from the release of the goods to the market (entry for an indefinite period of time). However, this is completely different in the case of irregular taxable events, where the event giving rise to the obligation coincides with the taxable moment (art. 638 and 639 of the CA), and the tax is payable from the moment it is established, notwithstanding the fact that the goods have been released for consumption: "When the import for consumption occurs in an irregular manner, the moment at which the elements for the liquidation of import duties are established shall be the one corresponding to the application of art. 638, which will coincide with the moment of the configuration of the taxable event, since in these cases, being irregular, there will be no prior payment and, therefore, there will be no need to establish a chronological moment prior to the configuration of the taxable event in order to liquidate the taxes, because these will only be paid by the customs service, which will take place when the configuration of the event is noticed" (CóWgo Aduanero Comentado - Mario A. Alsina; Enrique C. Barreira, Ricardo Xavier Basaldúa; Juan P. Cotter Moine, Héctor G. Vidal Albarracin Tomo ll, p. 325, Editorial Abeledo Perrol).

From what I have said it can be inferred that the taxable value of the imported merchandise -calculated according to the letter of the Agreement, with the parameters of the CA- necessary for the payment of the tax, must not only correspond exactly with the taxable event -defined in the CA- but also be determined at the time indicated in articles 637 or 638 CA, as appropriate.

XVIII. Returning to the analysis of the specific case that we developed in Recital VII and incorporating the taxation concepts set forth above, the delimitation of the jurisdiction of this Court is then given by the duty to determine whether the value adjustment-which adds a royalty for the use of the trademark of products licensed and acquired from manufacturers -linked from abroad, and not used in a productive process subject to the technology transfer agreements subscribed by BASF ARGENTINA S.A.- contributes to the correct measurement of the taxable event. That is to say, if the adjustment reduces the gap that may exist between the declared transaction value and the taxable event defined in the Customs Code, measured in accordance with the provisions of the GATT Agreement, but at the date and with the parameters that correspond according to the CA.

This, in line with the inveterate doctrine of the Supreme Court that "It is known that if the taxable event is an event producing legal effects by will of the law; the central nucleus is the factual assumption to which the law links the birth of the tax relationship in its substantial aspects, according to the different moments and criteria of linkage. Certainly, the tax is not applied in the abstract but on acts and operations carried out in the exercise of any of the activities listed in the law as the event giving rise to the tax, that is to say, the actions or material acts that give rise to the exercise" (CSJN "Central Puerto S.A. e/ Buenos Aires, Provincia de s/ acción declarativa de inconstitucionalidad", judgement of 6/05/2021).

In order to move forward in the analysis of the merits and with a focus on the core of the controversy just defined, we must examine in depth the three elements at stake: the verified taxable event, the declared transaction value and the proposed adjustment. The first, as can be seen from the above, refers to the comparison of the transactions in crisis with the Hl concept of the CA; however, for the treatment of the declared value and the proposed adjustment, we must refer to the valuation provisions of the GAIT Agreement. That is, the former relates to an issue of the definition of Hl, the latter to an issue of liquidation and income.

XlX. At this point, it is imperative to refer to intangibles, as a central issue in controversy. It is therefore necessary to identify what they are and the treatment they receive in the CA, with a view to determining whether or not they are included in the HI verified in this case.

In relation to intellectual property rights, the doctrine has defined royalty, licence fee or royalty as any sum of money paid for the acquisition or licence to use such rights, being varied and extensive the kind of rights related to the trade of goods that the parties may assign or license. Thus, the World Intellectual Property Organisation (WIPO) understands that they can be differentiated into two main categories: industrial property rights (inventions -patents-, trademarks, industrial designs and appellations of origin) and copyrights, which cover literary works (novels, poems, plays, etc.) and artistic works (films, musical works, drawings, paintings, photographs, sculptures and architectural designs). Copyright recognises in the head of the creator of such intellectual works a plurality of exclusive faculties, being possible to differentiate -among those of an economic nature- the right of reproduction, the right of public communication of the work in a non-material form to spectators or auditors, and the right of transformation (confr. LASCANO, Juan C., "El valor en aduana de las mercaderías importadas", Editorial Buyatti, 2007, pp. 216-220).

In Argentina, such guidelines have been followed; Intellectual Property and Industrial Property are recognised and, within the latter, a distinction is made between Trademarks, Patents, and Models and designs. Specifically, the National Institute of Industrial Property (INPI)[S] defines a trademark as "a distinctive sign by means of which producers, traders or suppliers of products or services differentiate their products or services in the market", and recognises their main function as that of "allowing consumers to identify the product or service of a person or company in order to distinguish it from those of the competition"; in other words, the trademark allows a product to stand out in the market. He explains that by allowing companies to differentiate themselves and their products or services from those of their competitors, trademarks play an essential role in development and marketing strategies, as they help to project the image and reputation of the company's products or services to consumers. For this reason, he maintains that the registration of a trademark guarantees the owner the ownership of the same; it enables him to exercise all the necessary defences to prevent third parties, without authorisation, from marketing identical products or services with the same trademark or using a name so similar as to create confusion; and it protects him against partial imitations; the owner may authorise its use by third parties through licensing contracts, both exclusive and non-exclusive. On the other hand, the JNPI indicates that a patent of invention can be an object, a process, an apparatus for manufacturing the object, a chemical compound, a microorganism, etc. In all cases, it must comply with the requirements of the patent. In all cases, it must meet the three requirements for patentability: novelty, inventive step and industrial application. In this context, an invention is considered to be any novel technical solution applied to an existing problem; it begins when the problem is detected and a specific solution is proposed using known elements which, combined in a special way, give rise to a new object hitherto unknown in the technical field. Finally, industrial models (three-dimensional aspects) and industrial designs (two-dimensional aspects) are new forms incorporated or applied to an industrial or handicraft product that give it aesthetic or decorative characteristics. To be registered, they must be new and, therefore, it must be verified that others like them have not been published and that they are not copies or imitations.

In fact, this Court has understood that "any payment made for the use of intellectual property rights related to the imported goods, or for the licence to use such rights, constitutes a royalty, licence fee or regaifa" (TFN "FORD ARGENTINA S.A. s/Rec. de apelación", Sala E, sentencia del 21/10/2008). And the Court of Appeals has considered that "A royalty, licence fee or regaifa, is any sum of money paid for the acquisition of intellectual property rights related to imported goods, or for the licence to use such rights; being varied and ex.tensive the kind of rights related to the trade of goods that the parties may assign or license" (CNCAF "World Sport SA c/DGA si recurso Directo de Organismo Externo", Chamber IV, judgment of 15/09/2015).

The variety of denominations that can be included within the genus "Intellectual Property" and the species "Industrial Property" leads me to the opinion that the use of this 1st terminology should not hinder the correct tax treatment, but rather the concept behind the name should be taken into account. Having said this, we conclude that, although the denominations vary, in our legislation the concept of Intellectual Property Rights refers to trademarks, patents and designs, and the payment for the acquisition or use of such rights is called royalty, licence fee or regaifa.

Thus, in order to determine how Intellectual Property Rights are treated in the CA, we must refer to the aforementioned art. 10 CA which, in addition to the goods in section I, in its section 2, provides that copyright and intellectual property rights, among others, shall be considered as goods.

It is extremely enlightening to bring up the classification that certain doctrine makes of the intangible world. Thus, it distinguishes: "a) the intangible aspect of the imported merchandise (trademark, patent, know-how, copyright, etc...), b) the intangible aspects supplied to be applied: b.1) in the productive process carried out in the country of importation after the merchandise is imported (e.g. know-how) and/or; b.2 ) supplied to be applied to the product resulting from the production process for which, in the country of importation, imported goods possessing a certain technology have been used" (Rizzi, Juan Pablo, "Los requisitos de procedencia de un ajuste de valor de mercadería importada en los términos del art. 8. Dislinción entre la Condición de Venta de las mercaderias importadas y la condición para permitir la fabricación de otro producto- Corte Suprema de Justicia de la Nación, sentencia de 28/05/2013, en autos 'Ford Argentina SCA (TF 21.950-A) c/DGA "', Revista de Estudios Aduaneros - Sección Notas a Fallos, nº22, pp. 239-249).

From what has been said, it is clear that, from the point of view of foreign trade, an intangible asset can be introduced into the country as part of a tangible asset -option a), if it is a final product and b.2), if it is an input- or by itself as a right to be used in the country in some productive process or applied to a final product -option b.1) and b.2. In the first case, we are dealing with the indefinite importation for consumption of a good -which includes the intangible-, i.e. Art. 10(I); in the second case, we are dealing with the importation of an intellectual property whose treatment is, for the AC, as if it were a good, considered in Art. 10(2)(b). 10. In both cases, although they are different IHs, their entry into the customs territory is subject to the import duty of Art. 635, as long as they are imports for consumption.

Note that the importation of intangibles supplied to be applied to the product resulting from the production process -for example, a trademark- for which, in the importation process, imported goods possessing a certain technology have been used (option b.2) is considered both an importation of goods and an importation of intangible goods. Therefore, it should be considered as "importation of merchandise", since the input that enters the country in an import clearance for consumption, carries with it an industrial property represented by the technology with which it was built and which adds commercial value to it. Of course, whether this intangible is explicit or implicit does not logically preclude its existence. It is obvious that the input that has this or that technology is different from another that does not have it; and that, precisely, its presence will affect its commercial value. Hence, if imported, it goes without saying that the two parts that make up the whole of the input will be imported: the tangible and the intangible aspect.

But it should also be considered as "import of intangible", because the commercial value of the final product will be increased by the commercial value of the intangible imported for that purpose. Let us not forget that, for the Customs Code, an intellectual property right is treated as if it were merchandise; thus, it can be imported as if it were, and I think it is wrong to assume that, in this case, it needs a tangible "carrier". It follows that this intangible, which is to be applied to the final product, is different from the technology embedded in each of the parts that make up the whole, insofar as one can exist without the other, or both can coexist.

n this understanding of the matter, it is worth noting that there is no duplication of intangibles either. To confirm this, it is enough to imagine that parts with a certain technology are imported to manufacture a car. If the car is not manufactured with a certain technology (intangible "know how") and/or a "brand" (intangible "brand") is not added to it, no matter how many parts are manufactured with that brand, the final product "car" will never have the same commercial value as another with the same manufacturing technology ("know how") but without the "brand". And the same happens the other way around: a car manufactured with a certain know-how and/or bearing a brand name but composed of inferior quality parts will not have the same commercial value if such component parts had been manufactured with a certain technology that guarantees quality, durability, replacement, performance, etc. In short, the whole is more than the sum of its parts.

It is of particular interest to highlight that, in the case of intangibles incorporated into the product (option a) or input (option b.2), in accordance with the definition of "import duty" in articles 635 and 636, they are included in the scope of the tax to the extent that these Intellectual Property Rights have been incorporated into the goods subject to international trade. When? At the time the taxable event is perfected, i.e. on the date of shipment to the market in the case of regular imports.

It should be noted that the case of the technology transfer contracts referred to by the complainant in its challenge in respect of the inputs involved in them - and whose value adjustment was recognised by it - is different, since such contracts imply the transfer of the licensee's right to use certain technology in the production processes carried out in the country (option b.l.) to the licensee (the plaintiff). As I said, the intellectual property right, as an intangible, is considered by the AC as if it were merchandise and receives the same treatment, so that its importation is covered by the tax in question. The purpose of importing such intangible is to be used in manufacturing processes to be carried out in national territory. But to be clear, here we are talking about the taxable object defined in section 10(2)(b): import of a type of intangible called "intellectual property rights" which, according to the contracts themselves, are valued (i.e. it is a matter of valuation) as a percentage of the imported goods; but this circumstance does not change the fact that we are imposing an intellectual property right (this is the object of the HI).

The full understanding of the above clarifies the view of the dispute and leads to the study of the case.

Specifically in this case, from the joint analysis of Note nº974/14 (DV EMVI) of 5/9/2014 (fs. 1/32 of SIGEA nº2646-204-2006/8) and Note nº520/l 8 (DV EVIN) of 4n/2018 (fs. 132/143) regarding Charge 1423 (Resolution nº9325 of 28/11/18), and of Notes nº974/14 (DV EMVI) of 5/9/2014 (fs. 1 /17 SIGEA nº2646-204- 2006/7) and nº519/18 (DV EVIN) of 4n/2018 (fs. 1071118) by Charge 1612 (Resolution nº8488 of 9/11/18), it follows that the basis for the adjustments lies in the need to increase the taxable value for the ''brand'' concept, being licensed inputs acquired from manufacturers of the same economic group, although not used in any of the production processes within the pafs subject to any of the 6 technology transfer agreements signed by BASF ARGENTINA.

Taking into account that the industrial property in question is the trademark, and as I mentioned before, according to the interpretation that I understand must be given to the harmonic play of articles 10, 635 and 636 of the CA, I can affirm that this intangible is included in the taxable event verified in the proceedings, as it is added to the goods that enter the customs territory - for an indefinite period of time - at the moment of the conclusion of the HI.

And the fact that the inputs in crisis are not later used in the production processes subject to any of the 6 technology transfer contracts signed by BASF ARGENTINA does not twist my understanding, since the technology that represents the intangible is already added, inseparable, to the object of importation, and both are, in their integral completeness, those that constitute the product that is imported: material good + immaterial good. It is not a matter of importing an intangible, but of importing goods that have an intangible incorporated into them.

It reinforces this understanding of the matter to mention the legislation that the European Union has been applying for some time now, within the framework of the regulations of the Community Customs Code, and which refers to how the scope of the concept of "intangibles" in general and of "trademarks" in particular should be interpreted. I refer to Regulation (EEC) 2454/93 (now superseded by Commission Implementing Regulation (EU) 2016/481 of 1 April 2016), Article 157(1) of which provides:

"For the purposes of Article 32(I)(e) of the Code, royalties and licence fees shall mean, in particular, payment for the use of fees relating to:

the manufacture of the imported goods (in particular, patents, designs, models and manufacturing know-how); or

the sale for export of the imported goods (in particular, trademarks, registered designs), or

the use or resale of the imported goods (in particular, copyrights, manufacturing processes incorporated inseparably into the imported goods)".

As far as it is relevant here, the concept includes all payments for the use of rights relating to the use or resale of the imported goods which involve manufacturing processes inseparably incorporated into the imported goods. This characteristic, i.e. the inseparability of the tangible from the intangible, is the determining factor. This is a characteristic which is verified in the present case, since it is a trade mark.

Having concluded that the HI Right of Imponación includes an intangible "trademark" which is inseparable from the tangible asset, we must inquire whether in our specific case, that is to say, whether the inputs imposed by BASF ARGENTINA had, in fact, a trademark. That is to say, if the HI verified in the case file and on which we have to decide, really deal with branded products.

In this context, if we analyse the import destinations included in the reassessment carried out by the tax authorities and which are the subject of the dispute, the result of purging the initial list (Charge 1423: fs. 31/32, approximately 16,500 destinations; Charge 1612: fs. 16/17, approximately 2,300 destinations) of the transactions whose adjustment has been recognised and paid by the plaintiff (Charge 1423: fs. 73n4; Charge 1612: fs. 68/77), and subtracting the transactions with unrelated companies, we can see the following:

Charge 1423: comprises around 1 1,200 import dispatches, of which just over 11,100 correspond to suppliers declared by the appellant whose company name includes the word 111BASF" (99%); and the remaining 1% are imports that were acquired from companies included in the list of BASF subsidiaries issued by the AFIP's Related Companies Division (fs. 129 SIGEA 0°12646-204-2006/8). It should be noted here that, according to the Annex (CD) on page 74 submitted by the complainant, the basis for the non-recognition of the adjustment is ''It is not appropriate to pay because it is a supplier not related to BASF''.

Charge 1612: includes just under 1900 import shipments, of which around 1860 were purchased from declared suppliers whose company name includes the word "BASF" (99%); the remaining 1% are transactions with BASF subsidiaries, according to the list that the Related Companies Division of the AFIP attached on page 104 (SIGEA No. 12646-204-2006/7).

In this state of affairs, it is clear that the percentages of 99%, in both charges, allow to conclude, with a reasonable degree of certainty, that the universe of import shipments whose value adjustment was challenged and subject of the proceedings, correspond to inputs acquired from companies of the same economic group whose corporate name includes the name "BASF", so it is in line with reality to induce that such products carry the ''BASF" technology and, therefore, the "BASF" brand of its manufacturer. And it is precisely the circumstance of inseparability which adds commercial value to the product, bringing certainty to the consumer as to the production process involved in its manufacture.

Indeed, over the four years under study, the inputs imported by the plaintiff have been manufactured by more than thirty different companies, located in different parts of the world, which share the characteristic of including the name "BASF" in their corporate name. From this perspective, it is unequivocal that the inputs are manufactured with BASF's intellectual property and licensed to the Argentine buyer, who, when acquiring them, necessarily imports the product plus the intangible (BASF trademark), guarantee of the manufacturing technology of the tangible.

This hypothesis is reinforced by an analysis of the absurd: it is contrary to all logic to suppose that BASF Argentina carries out in 4 years more than 14,000 purchases from more than 30 BASF suppliers all over the world, of inputs manufactured by them, and to suppose that all of them do not have in their real implicit commercial value the BASF technology that assures the buyer - BASF ARGENTINA - a certain quality/prestige/guarantee that comes with knowing, precisely, that it was manufactured by the BASF economic group. And it is this added value that corresponds to the denomination "brand".

In view of the foregoing, the tax representatives are right when they state, in relation to the non-connection maintained by the plaintiff, that what is said does not reflect the commercial reality of the economic group since, according to the declaration of the import dispatches analysed above, the companies supplying the products bear the word "BASF" in their names, from which it is reasonably certain that they would form part of the same economic group with BASF ARGENTINA S. A. A. And, it is worth noting that this conclusion was not undermined by the appellant with evidence sufficiently convincing to remove all doubt.

In short, in order for imported inputs to be entitled to a certain intangible, they do not need to be subjected to any industrial process in the national territory, since such circumstance involves another type of taxable event. On the other hand, the generating event in question refers to the importation of goods for consumption for an indefinite period of time; and everything that forms part of the product that enters through customs will form part of the taxable value. Thus, neither the process to which the product was subjected abroad -whose consequence does affect the taxable value of the imported good- nor the process that could affect it while nationalised is under discussion; only the state of the product at the time the HI is perfected, i.e. at the time of release for free circulation -regular imports- is of interest.

In short, it is concluded that all the transactions carried out by BASF ARGENTINA and for which it imported BASF branded inputs, must include in the taxable value the real value of the product, understood as the aggregate of the tangible and intangible value.

Having said this, the problem is limited to a question of liquidation and payment of the tax.

A small digression. In recital X I mentioned that I do not share the broad concept of HI advocated by Dr. Dino Jarach, who includes, among other aspects, the basis for measuring the tax and the parameters. Having reached this stage in the development of the vote, I understand that the reason is clear: the Customs Code fully defines the taxable event in question; the other variables that affect the determination of the quantum, as far as this case is concerned, are provided for by another legal system -the GATT Agreement-.

Continuing, in Recital XIII I refer that, in customs matters, although the HI is defined in Law 22.415 of the Customs Code, the determination of the Customs Value as a basis for calculating the ad-valorem duties of imported goods is governed by the provisions of the "Agreement on Implementation of Article VII of the GATT", which sets out the general principles and methods. This body of law establishes a basic criterion for determination which is the "transaction value", which consists of the price actually paid or payable (Article 1), while Articles 2) to 7) establish the auxiliary criteria to be used in the order set out in this article.

If the transaction value (Vl) of imported goods is used as the valuation method, art. 1 of the Agreement must be combined with art. 8 of the Agreement, which states that "in order to determine the customs value in accordance with the provisions of art. 1, the price actually paid or payable for imported goods shall include, inter alia, royalties and licence fees relating to the goods being valued which the buyer has to pay directly or indirectly as a condition of sale of such goods, to the extent that such royalties and fees are not included in the price actually paid or payable.

And the Interpretative Note to Article 8 adds that:

"l. The licence fees and royalties referred to in paragraph 1(e) of Article 8 may include, inter alia, payments in respect of patents, trademarks and copyrights. However, in determining the customs value, the reproduction rights of such goods in the country of importation shall not be added to the price actually paid or payable for the imported goods.

2. Payments made by the buyer for the right of distribution or resale of the imported goods shall not be added to the price actually paid or payable where they are not a condition of the sale of such goods for export to the importing country" - emphasis added,

Due to its relevance to the case, it is important to note that the expression, among other things, leads to the interpretation that such assumptions are only enunciative -not exhaustive-, and that royalties or licence fees could be paid for any other form of intellectual property, as long as the requirements are met.

Note here the disparate use of the term intangibles mentioned above. For this reason, I would like to say that this tenninology should not prevent the corresponding adjustments from being made, provided that the payment corresponds to the incorporation of the intellectual property factor mentioned in the interpretative note to the aforementioned article 8 or another similar factor.

Having said this, it should be noted that it is not in dispute whether or not the taxable value of the imported inputs at issue here should include the concept of royalties, royalties, licence fees, patents, trademarks, copyrights, or any other type of intangible assimilable item included in the definition of IH of the Customs Code. This is an idea which, I understand, has been fully explained and founded in what has been written so far.

Indeed, one thing is the HI, which is what ultimately defines whether or not this or that concept should be included, and quite another how the legislator decides to measure that HI. In short, the measurement methodology is nothing more than a legislative effort to approximate the HI, and the controversy that this Court is called upon to resolve lies in the verification of this correspondence or lack thereof. Understanding this difference is crucial to understanding the problem and facilitating a solution.

And to make it clear: in the previous Recital I have mentioned that the Agreement requires, in order for the addition to the transaction value of the concepts of royalties and licence fees to proceed, that these must verify 3 conditions: l) that they are not included in the price actually paid or payable, 2) that they are related to the imported goods, and 3) that they are a condition of sale of such goods. This triple condition is what in international jargon is called a "safe harbour" provision, understood as one that enables the legislator, in this case, so that, on the one hand, the importer is legally and quickly relieved of the obligation to add an amount for intangibles to the value added tax if the triple condition is not met; and, on the other hand, so that the tax authorities are legally and efficiently facilitated in their task of adding this concept to the declared value added tax in the event that the triple condition is met.

Suffice it to say that the GATT Agreement is limited to facilitating the dimension of a fact of the past, through the enunciation of detailed requirements that make this retrospection plausible in a standardised degree of approximation to the truth, because, in effect, it is not the same to invest too much to adopt a decision of factual recovery than to do it under established parameters. It goes without saying that the former reconstruction is closer to the truth than the latter. This "distance" from the regulatory ideal has been intellectualised in modern procedural doctrine under the need to reduce or minimise the risks of error.

Therefore, the more the risks of error are reduced, the closer to the truth one will be, but also the higher the procedural costs will be. Precisely, procedures such as the one described above ensure that the legal operator in charge of reconstructing the facts can do so efficiently and thus come closer to the truth, thus minimising the risks of error. The opposition between a system that defends the free reception and evaluation of evidence as the optimum for the reconstruction of facts and a regulated system where the epistemic conditions are disciplined is the main point of disagreement in this matter.

In this state of affairs, if we consider the possibility of risks of error in every reconstructive decision on past facts and take into account the impossibility of eliminating them, it is clear to observe that these errors have consequences for one of the conflicting claims in the proceedings. Indeed, when a mistake is made, or a non-existent fact is taken as proven, or a fact that actually occurred is rejected, the legal system prefers that the risk of error in the factual reconstruction be located in one or other of those interests.

In that sense, the triple condition established is not directly aimed at reducing the risks of error in judgments -although it may have epistemological consequences with respect to those- but rather distributes those risks between the parties. From this perspective, the Agreement ends up imposing merely convincing evidence to prove the disputed facts, and therefore seems to be aligned with the typical standard of proof in civil matters, which is that of the 'preponderance of the evidence', without demanding clear and convincing proof.

In short, the GATT Agreement is limited to maintaining a delicate balance between the exorbitant prerogatives of the tax authorities and the individual guarantees of due process, which is why it provides an evidentiary standard for the incorporation of an intangible without any other valid interpretation of its letter, much less one that implies the modification of the taxable event -in excess or in defect- with respect to how it is defined in the Customs Code.

Having set out the normative interpretation that I propose with the level of detail that the case deserves, it is necessary to analyse whether in the present case, with respect to the licensed products imported by BASF ARGENTINA and subject to controversy, the 3 safe harbour conditions for the incorporation of an amount for brand name to the declared transaction value are verified: 1) they are not included in the price actually paid or payable, 2) that the royalties and licence fees are related to the goods under valuation and 3) that the buyer has to pay directly or indirectly the said royalties and fees as a condition of sale of the said goods.

With regard to the condition that the royalty is not included in the price paid or payable, there is no need for further reflection, since it is the plaintiff itself which maintains and defends the validity of the non-inclusion of an intangible "brand" in the declared price; an exclusion which, moreover, is the subject of controversy in the proceedings.

Regarding the condition that royalties and licence fees be related to the goods being valued, in Commentary 25.1 the Technical Committee on Customs Valuation of the Agreement states: "...The most frequent circumstances in which a royalty or licence fee may be considered to be related to the goods being valued are when the imported goods incorporate the intellectual property and/or are manufactured using the intellectual property included in the licence. For example, the fact that the imported goods incorporate the trademark for which the royalty is paid indicates that the royalty is related to the goods..." -the emphasis belongs to me-. -the emphasis belongs to me-.

The forcefulness of the wording of Comment 25.1 and the clarity of its direct application to the case in question do not require further explanation.

This interpretation of the GATT Technical Committee on Valuation, was adopted by the EU through Commission Implementing Regulation (EU) 2015/2447 of 24/11/2015 -of Regulation (EU) No 952/2013 of the European Parliament and of the Council laying down the Union Customs Code[6], of 24/11/2015-, in whose art. 136 (in respect of Article 71(1)(c) of the Code) provides that:

"1. Licence fees and royalties are related to the imported goods, in particular, if the duties transferred under the licence agreement or royalties are incorporated in the goods. The method of calculation of the amount of royalties or licence fees is not the decisive factor.

2. Where the method of calculation of the amount of royalties or licence fees is based on the price of the imported goods, it shall be presumed, in the absence of proof to the contrary, that the payment of such royalties or licence fees is related to the goods being valued.

If the royalties or licence fees relate partly to the goods being valued and partly to other components or constituent elements incorporated into the goods after importation or to post-importation services, an appropriate adjustment shall be made .... ".

In the same sense, the National Chamber of Appeals in the Federal Administrative Disputes has held that ''The most important factor to consider in determining whether the fee, duty or royalty is related to the imported goods and not to issues unrelated to their provision, is whether the importer would have acquired the tangible without purchasing the intangible; that it is not the way in which the royalty is calculated that is decisive, but the reasons for which it is paid" (CNCAF "World Sport SA c/DGA si recurso Directo de Organismo Externo", Chamber IV, judgment of 15/09/2015; in the same sense of the same Chamber "Arte Radiotelevisivo Argentino SA (TF 22829-A) c/DGA s/Apelación", judgment of 25/11/2010),

As I have already noted, the intellectual property of this case ("trademark") is incorporated into the imported goods as it translates the manufacturing process to which it has been subjected and which involves the use of certain BASF technology (the trademark). And given the inseparability of the tangible-intangible duo, BASF ARGENTINA could not have acquired the input without purchasing the technology used in its manufacture by the licensor. It is thus established that, in the present case, the royalty or licence fee for the intangible "trademark" is related to the goods under valuation.

As to the requirement that the payment of the royalty or licence fee constitutes a "condition of sale" of the goods, the aforementioned Commission Implementing Regulation (EU) 2015/2447 of 24/11/2015--regulating the Union Customs Code[...]-, in its art. 136 (in respect of Article 71(1)(e) of the Code) provides that:

"...4. Royalties and licence fees shall be deemed to be paid as a condition of the sale of imported goods if any of the following conditions are met: a) the seller, or a person connected with the seller, requires the buyer to make such payment; b) the buyer makes the payment to satisfy an obligation of the seller, in accordance with contractual obligations; e) the goods cannot be sold to or purchased by the buyer. without the payment of royalties or licence fees to a Licensor" -the emphasis belongs to me-.

This European reading of the "condition of sale" requirement has also been followed by Argentinean jurisprudence, stating that condition of sale "refers to the possibility of separating or not the purchase of the imported goods from the fact of their payment, so that the seller does not sell to the buyer the goods for export without the payment of a royalty or licence fee, or that the buyer cannot acquire or import the goods under valuation, legally and definitively, if he does not pay royalties and licence fees -confr. Technical Committee on Valuation, Information Document, Brussels, Dec. 10, 1996-" (CNCAF "Arte RadiorelevisiVtJ Argentino SA (TF 22829-A) c/DGA s/Apelacion", Chamber IV, judgement 25/11/201O; in the same sense do the same Chamber "World Sport SA c/DGA si recurso Directo de Organismo Exlerno", judgement of 15/09/2015).

However, Lascano warns that "the reality of international trade shows that, in general, contracts of sale or licence of rights are concluded separately from contracts of sale [and that] in general, the payment of patent rights to the seller, or to a third party, is always a condition of sale of the goods, because otherwise the goods could not have been manufactured. Whether the manufacturer is the owner of the patent, or has a licence granted by a third party who has registered the patent, the goods could not be manufactured without the payment of the royalties required by the manufacturer" (Lascano, Julio C., "El valor en aduana de las mercaderías importadas", Buyaui, 2007, p. 237 and 250).

The foregoing prevents a generalisation of the "condition of sale" rule and forces a case-by-case analysis, in the light of the sales contract, the licence contract and different factual issues -related to the manufacturer, its possible control, the licensee, the intervening commission agent, the specificity of the products, etc.-. (cfr. Zolezzi, Daniel, "Las marcas, las patentes y el valor en aduana (En instrnmentos de la Organización Mundial de Aduanas y en la jurisprudencia)", El Derecho-Diario, Tomo 252, p. 533, 18/04/2013). Furthermore, the author adds, a written clause makes the existence of a condition of sale clear, but this can be proven in other ways. Especially since the United Nations Convention on the International Sale of Goods exempts that convention from the requirement of writing: "A contract of sale need not be concluded or evidenced in writing or be subject to any other requirement of form. It may be proved by any means, including witnesses (art. 11)" (Zolezzi, Daniel, "Cánones y derechos de licencia: su incidencia en el valor en aduana (y un fallo que acierta y otro que no)", El Derecho- Diario, Tomo 285, 4/11/2019).

This leads me to consider the circumstance that, although there are no licence agreements in the case file authorising the more than 30 BASF manufacturers to produce the inputs imported by the Argentine company, this does not mean that such agreements do not exist or did not exist at the time the products in question were manufactured, since it is unreasonable to suppose that those manufacturers, over the course of 4 years, would have been able to produce goods with the same value as the products in question, since it is unreasonable to suppose that those manufacturers, over the course of 4 years, would have been able to produce goods with the same value as the Argentine company. It is unreasonable to suppose that those manufacturers could have produced goods with BASF technology and the BASF trademark for four years without any payment to the owner of that technology (royalty or licence fee) in order to be able to make use of it. Here we are talking about more than 30 BASF companies distributed around the world, confounding an economic group with BASF headquarters in Germany, with respect to operations of 4 years with BASF ARGENTINA; to suppose otherwise goes against the very concept of economic group.

An added value is the idea put forward by Rizzi when he states that the condition of sale of the imported merchandise is "the element that qualifies the type of relationship that this rule requires, since the relationship between royalty and imported merchandise must be such that the merchandise is sold because the buyer pays (or will pay) the said royalty. Therefore, we understand that the aforementioned requirements of origin form part of the cause of the transaction or sale of the goods, which will necessarily occur before or concomitantly with the registration of the import" (Rizzi, Juan Pablo, "Los requisitos", Ob. Cit., pp. 239-249) -the emphasis belongs to me-.

In this sense, to suppose that BASF ARGENTINA would buy any of the inputs in controversy if they were not manufactured with BASF technology and bore the BASF trademark, leads to a scenario far from reality, since the plaintiff acquires numerous products from national and foreign suppliers, related and unrelated, but the inputs in question are acquired from BASF manufacturers abroad. This circumstance thus becomes a clear demonstration that BASF ARGENTINA imports those inputs because they have a BASF trademark and, therefore, the existence of the condition of sale required by the rule is proven.

Finally, it should be noted that this is not a "condition for manufacture" as opposed to a "condition of sale" of the imported goods. Here, we refer to Advisory Opinion 4.9 of the Technical Committee, where it sets out what is to be understood by "condition of manufacture", stating that it is - "the fee [that] is paid for the right to manufacture the patented preparations incorporating the imported product and, ultimately, for the right to use the trademark for such preparations...Thus, the use of the trademark is unrelated to the goods being valued. The payment of the royalty is not a condition of sale for the export of the imported goods, but a condition for manufacturing and selling the patented preparations in the country of importation. It is therefore not appropriate to add that payment to the price actually paid or payable. However, in the present case, BASF ARGENTINA is not involved in any decision regarding the manufacture of the input; such activity is totally alien to it, since it belongs to the decision making sphere of its suppliers, who will have to pay as a "manufacturing condition" a fee in order to be able to produce the inputs that BASF ARGENTINA acquires. On this point, it is clear that the plaintiff acquires inputs from suppliers of the BASF economic group, manufactured with BASF technology. The manufacturing condition impacts on the supplier that manufactures the input, not on the buyer that acquires it - BASF ARGENTINA - for whom it will be a "condition of sale". And the fact that the exporter can transfer that condition of manufacture to the transaction price that will impact on the Argentine importer, does not prevent it from being a condition of manufacture for the manufacturer/exporter and a condition of sale for the buyer/importer.

However, in spite of all the above, I cannot fail to consider the fact that there is no document in the file from which it is explicitly clear that BASF ARGENTINA is required to pay a royalty or licence fee for the goods in question.

What has been said leads us to the idea of the existence, in this dispute, of an implicit condition of sale.

The implicit condition of sale or broad conception of "condition of sale" originated with the publication of Advisory Opinion 4.11 of the GATT Technical Committee on Customs Valuation and has been around for several years.

Echoing in the national doctrine, there are those who have supported such a broad view of the condition by saying that "the Agreement says 'condition of sale' [so} if the drafters had wanted to say something else, such as 'clause or stipulation embodied in the contract of sale', they would have said it asr- (cfr. Zolezzi, Daniel, "Valor en Aduana", 2nd ed., La Ley, 2008, Ch. VIII). And he supports this conviction in Judge Barber's opinion when he says: "The expression ..as a condition of the sale of goods...' is necessarily wider than 'as a condition of the contract of sale of the godos" -translation: The expression "as a condition of the sale of goods..." is necessarily wider than "as a condition of the contract of sale of the goods" (New Zealand Customs Appeal Authority, "Colgate" case, 17-1-2001).

In this sense, agreeing with Rizzi, I understand that this requisite for the appropriateness of the adjustment can be accredited by evidence that leads to the conviction of its existence in the will of the contracting parties at the time of the transaction (Rizzi, Juan Pablo, "Los requisitos... ,", Ob. Cit., pp. 239-249).

A clear example can be found in the recognised jurisprudence of the Supreme Court which, making use of evidence, bases its opinion by saying: "it constitutes an 'implicit condition of sale' to import parts, pieces and accessories supplied by foreign sellers who are members of the Ford International Economic Group, given that in order to manufacture 'Ford' brand products, an agreement between Ford Motor Company of the USA and Ford Argentina SA is indispensable, for the manufacture of 'Ford' brand products, by means of an agreement between Ford Motor Company of the USA and Ford Argentina SA. Ford Argentina SA, which licenses, among other things, the manufacture of 'Ford' branded products and makes it necessary to import parts, pieces and accessories that have a technology defined by the licensor and that can only be supplied by sellers belonging to the Ford International Group'. And it adds that "this conclusion is supported by the fact that the plaintiff has not demonstrated that it could have obtained the end products, which are the object of the licences, by acquiring the parts and accessories from third party suppliers, independent of Ford Motor Company of the United States of America" (CSJN "FORO ARGENTINA S.A. s/rec. de apelación, sentencia del 28/5/2013). The analogy with the present case is transparent.

The Court of Appeal also makes a valuable contribution in this sense by interpreting the text of article 8, paragraph 1, subparagraph e) of the Agreement, stating that "no distinction or reservation is made as to whether the beneficiary of the amount paid by the buyer as royalties is the holder of the intellectual property rights, the licensee, or another company legally authorised to receive them; its scope is not limited to the case in which the seller is the same subject 'licensor' because the letter of the nonna does not exclude the possibility that the royalties paid by the buyer are collected by a third party by virtue of an authorisation of the holder of those rights" (CNCAF "Mattel Argentina SA el DGA si Recurso directo de organismo externo", Sala V, sentencia del 10/07/2015, del voto del Dr. Alemany, with the majority of Dr. Gallegos Fedriani). This is a situation which, I understand, responds to the structure of the business involved in the case.

However, I think it is appropriate to point out that, just as I understand that the condition of sale may be implicit in the relationship between licence and sale contracts, I do not think that whenever a royalty is paid there must always be such a condition, nor that the lack of proof that such a royalty existed implies the non-existence of the condition. Indeed, it will be the careful analysis of the background of the case that will provide the appropriate solution.

At this point we may ask: What happens when what is sought to be elucidated is the real value of the transaction? When what is sought is to dispel the doubt as to whether the declared price is the actual price paid or to be paid, representative of the real commercial value of the imported goods? When is it intended to rule out the alternative that, for example, the input has been imported by declaring only the price of the tangible - in order to reduce the import tax burden - and leave to "charge" the value of the intangible at later stages? What alternatives are faced in case of under-invoicing due to the exclusion of the intangible?

In this regard, the Court of Appeals has held that "The matter regulated in Article 8, paragraph 1, subparagraph c) of the Customs Valuation Agreement refers to the determination of the customs value, i.e. the actual value of the goods entering the customs territory, from the perspective of the actual price paid by the buyer as consideration and the reasons for which he pays it; does not refer to the final recipient of the goods" (CNCAF "Mattel Argentina SA e/ DGA si Recurso directo de organismo externo", Sala V, Judgment of 10/07/2015, Dr. Alemany's vote. Alemany with Dr. Gallegos Fedriani mayorfa) -the highlight belongs to me-.

In line with the above, it is unavoidable to look for the real transaction value that corresponds to the taxable event defined above, regardless of the legal forms.

On this point, it is important to consider the fact that all of the import operations that are the object of the present controversy refer to transactions carried out by BASF ARGENTINA with other BASF companies, belonging to the same economic group. In this respect, the Spanish Supreme Court has said in "Warner Music Spain S.A.", judgement of 17/11/06, that "... it must also be added the essential circumstance that both Record and Wamer Music are subsidiaries - the former German, the latter Spanish - of the American company WEA International Inc, which is why the sales of the former to the latter cannot be separated from the obligations assumed between the parent company and the Spanish company".

In simpler terms and so that anyone can understand, if the importer had bought the goods from its related company, it would have paid the tax calculated with the rebaifa. However, it seeks to avoid that burden by interposing a third party. Having raised the issue, I would like to point out that it is one thing to frame and carry out legal transactions in terms that benefit the parties in order to reduce their tax burdens in the face of the difficulties that arise from assuming atypical or non-recurring sources, and quite another to abuse legal sources in order to deliberately reduce tax burdens, contrary to the principle of tax fairness. The latter cannot be allowed, as long as it is borne in mind that the legal system is a perfect order and that no option contrary to the proportionate distribution of public burdens can have any place or be legitimised.

Furthermore, the EV also incorporated the broad concept of condition of sale, and it did so through Conclusion n°24 of the European Union Customs Code Committee (Customs Valuation Section), which states that certain circumstances may indicate "that the licensee exercises direct or indirect control over the manufacturer, sufficient for the payment of royalties to be considered as a condition of sale for export". (a) Product elements: the product manufactured is specific to the licensee (in terms of design and trademark); the product has the characteristics and incorporates the technologies defined by the licensee. (b) Manufacturer elements: the licensee selects the manufacturer and imposes it on the buyer; there is a direct manufacturing contract between the licensee and the seller. (e) Elements concerning the actual control by the licensee: the licensee exercises actual direct or indirect control over the manufacture (as regards production sites or production methods); the licensee exercises actual direct or indirect control over the consignment and transport of the products to the buyer. The paper concludes that: "each of these elements does not in itself constitute a condition of sale, but the combination of several of them may indicate that the payment of royalties is a condition of sale, even in the absence of a link within the meaning of Art. 143 of the implementing provisions of the Customs Code" - emphasis added -.

In this respect, if we analyse the present case according to these parameters, it is possible to conclude that we are in the presence of inputs produced by a manufacturer/exporter that sells them to the Argentinean buyer/importer, with the certainty of having been manufactured with certain technology materialised in a brand that represents the economic group of both and whose parent company is domiciled in Germany; thus, each one of these elements does not constitute in itself a condition of the sale, but the combination of all of them indicates that the payment of the royalties is a condition of the sale.

All of the above leads me to conclude that we are faced with an implicit condition of sale, since the inputs imported by BASF ARGENTINA could never have been acquired without compensation for the use of the BASF trademark that the manufacturing technology of a company of the same economic group ensures. This is because the existence of a royalty in favour of the parent company of the BASF group for acquiring BASF inputs is unavoidable, regardless of who the seller may be, because in order to manufacture "BASF" branded products it is unavoidable to contract a licence between the owner of the brand (the parent company BASF in Germany) and the companies that manufacture BASF products and then pass it on to the buyers; in this case, BASF ARGENTINA SA, who indirectly end up paying the value of the intangible. In its business structure, the plaintiff needs to import inputs that have a technology defined by the licensor and that can only be provided by sellers belonging to the BASF Group, who in order to produce them had to agree, with the licensor, a remuneration for the use of such technology and brand. And the existence of a third party manufacturer does not attenuate the veracity of such implicit condition, since that third party is also part of the economic group and it is through it that the implicit condition materialises as a facilitating conduit of the same.

As anticipated, in addition to the requirements set out in article 8, paragraph l, subparagraph c) of the GAIT Value Agreement, there are the requirements set out in the Interpretative Note to paragraph 3 of the same article, which requires "objective" and "quantifiable" data on the increases to be made.

Although the Agreement does not define what is meant by "objective" and "quantifiable", Rizzi takes the view that, bearing in mind that we are in the framework of the Positive Notion of Value, these data are numerical terms actually agreed upon by the seller and the buyer at the time of the transaction that serves as the basis for the importation, and that the raison d'être of this requirement10 lies in the need to be able to arrive at the exact amount of the adjustment that may correspond, in accordance with the reality of the transaction entered into by the seller and the buyer (Rizzi, Juan Pablo, "Los requisitos . ...", Oh. Cit, pp. 239-249).

As I see it, the significance behind the condition of objective and quantifiable data is that the commercial value of the intangible can be determined with a reasonable degree of certainty and precision, thus preventing the possibility of discretionary and capricious handling by the tax authorities. However, I understand that this does not mean that Jo that the rule seeks to condition the existence of absolute certainty in the measurement in order for the adjustment to proceed, especially in cases where it must be determined ex officio without the importer's due cooperation. This, considering that it is the latter who is in the best position to provide the exact value and the fact of not making it available to customs at the appropriate time or with the necessary detail cannot result in a "non-adjustment".

Such conviction is based on the fact that not only would it be contrary to the objective pursued by the valuation regulations but also on the fact that, as we have seen, the taxable event in question instructs to include the intangible and, therefore, not including it would mean exempting it -which is the prerogative of the Argentine legislator and must always be interpreted in a restricted manner-, which would be contrary to law. Furthermore, to understand the contrary would imply a confluence in an interpretation that puts in conflict the different laws applicable to the case and does not give it the harmonious interpretation that the inveterate doctrine of the Supreme Court requires.

Furthermore, it is necessary to consider the inconsistency that it would mean to recognise an implicit condition of sale such as the one existing in this case and to condition the adjustment to the circumstance that the importer explicitly informs how much he actually paid for the licence.

It is in this interpretative context that I understand that the requirement of objective and quantifiable data must be addressed.

In view of this, the fact that the importer had to pay royalties for the manufacture or use of BASF-branded inputs which were then subjected to manufacturing processes in the framework of one of the six CTTs and did not declare having paid any royalties for inputs of the same brand but not subjected to such processes but in other processes or sold in the same state of importation, is a fact that, in both cases, both the importer and BASF had to pay royalties for the manufacture or use of BASF-branded inputs which were then subjected to manufacturing processes in the framework of one of the six CTTs, despite the fact that in both cases both the first and second inputs bear the same brand name and were purchased from companies belonging to the same economic group to which the plaintiff belongs, this is necessary and sufficient evidence to understand the similarity of the two businesses and the appropriateness of applying the para. This is necessary and sufficient evidence to understand the similarity between the two businesses and the appropriateness of applying the para. meters arising from the six CTTs signed and declared by the plaintiff for the quantification of the BASF inputs whose trademark licensing contracts remain opaque to the tax authorities.

Thus, from the analysis of the 6 CfTs signed by BASF ARGENTINA according to the Value Study Note nº974/I 4 (DV EMVI), included in fs. 1/11 of SIGEA 12646- 204-2006/7 and fs.1/11 of SIGEA nº12646-204-2006/8, the following emerges:

I) Plastics Segment: Technology Transfer Agreement (INPI Certificate 71/2010, Registration 13.306). Licensing of Trademarks and Know How. Licensor: BASF Agktiengesellshaft (Germany). Validity: from 12/4/2009 to 12/4/2011. Intellectual Property Rights (IPR): ''Against payment of a licence fee, BASF Agktiengesellshaft grants the Licensee a non-exclusive and non-transferable right for the Licensee to apply the improvements of BASF Agktiengesellshaft for the manufacture of the main products in its production facilities in the Republic of Argentina and for the sale of these main products in the Republic of Argentina. The right and licence granted includes the right of BASF Argentina S.A. to grant sub-licences of Licensee's improvements to BASF's subsidiaries. Regaifas: "Licence Fee of 23% of the Net Sales Price of all principal products to be manufactured by the Licensee and used for its own use or to be sold during the term of this contract".

Segment Polynesian Plastics and Pisnersions and Solutions: Technology Transfer Contract (INPI Certificate 162/2012, Registration l4.502). It has part of Technical Assistance and Part of Technology Licensing Licensor BASF SE (Germany). Validity: from 1/6/2011 to 1/6/2016. Exchange of (nfonnation and Technical Assistance. Intellectual Property Rights (IPR): "The Licensor agrees to grant to the Licensee the non-exclusive and non-transferable right and licence to use the Licensor's improvements for the manufacture of the main products and for the sale, use and/or authorisation of use to its customers in respect of the main products manufactured in the plant subject of the contract and for the use and/or authorisation of use to its customers". Royalties: ''2% of the Net Sales Price of all core products manufactured during the term of this Agreement, and sold used internally by the Licensee''.

Polinretaom Plastics and Dispersions and Solutions Segment: Technology Transfer Agreement. Licensor BASF SE (Germany). Valid from 1/1/2011 to 31/12/2021. Delivery of Technical Information. Intellectual Property Rights (IPR): --sasfSE agrees to grant the Licensee the non-exclusive and non-transferable right to manufacture, according to its technical information, the products of the Agreement, as well as to use and/or sell the same. The Licensee shall have the right to use the trademarks of BASF SE and the non-exclusive and non-transferable right to use improvements in connection with the manufacture of the products. Ratios: "3º/- of Net Sales to third parties and/or on the equivalent of net sales of the contract products manufactured and sold to third parties and/or used internally by the Licensee, plus the amount derived from indirect taxes (such as VAT on commercial transactions), if applicable".

Segment Plastics Polyurethanes and Dispersions and Solutions: Technology Transfer Agreement (INPI Certificate 60/2012, Registration 14,400), Licensor BasfSE (Germany). Validity: from 1/1/2011 to 3 1/12/2015. Delivery of Technical Information. Intellectual Property Rights (IPR): "Basf SE agrees to grant the Licensee the non-exclusive and non-transferable right to manufacture, in accordance with its technical information, the products of the Contract, as well as to use and/or sell the same." Rebates: "31/o of Net Sales to third parties and/or on the equivalent of net sales of the contract products manufactured and sold to third parties and/or used internally by the Licensee, plus the amount derived from indirect taxes (such as VAT on commercial transactions), if applicable."

Construction Chemicals Segment: Technology Transfer Agreement (INPI Certificate 625/2012, Registration 14.964). Licensor Construction Research & Technology GMBH. Validity: from 1/1/2012 to 3t/12/2016. Intellectual Property Rights (IPR): "Refers to all invention applications and patents, their applications, inventions and copyrights, all trademarks, domain names, service marks, trade names, label presentations, logos and their respective applications, in respect of the products covered". License to IPR and Technology: "The Licensor grants to the Licensee a non-exclusive, non-transferable, royalty-bearing license to use the IPR and technology within the Territory. Such licence shall also include the use of trademarks, where it relates to the advertising, promotion, sale and marketing of the products.... ". Royalties: "4% of Net Sales of all Products of the Lkeaciant".

Construction Chemicals Segment: Technology Transfer Agreement (INPI Certificate 140/2009, Registration 12.311). Licensor Construction Research & Technology GMBH. Validity: from 11/8/2008 to 31/12/2011. Intellectual Property Rights (IPR): "Refers to all invention applications and patents, their applications, inventions and copyrights, all trademarks, domain names, service marks, trade names, label presentations, logos and their respective applications, in respect of the products covered". Know How: "Any and all research and development results, techniques, records, or experiments, marketing information and literature on scientific and technical engineering, formulas and other technology, related to the products". License to IPR and Know How: "The Licensor grants to the Licensee a non-exclusive, non-transferable, royalty-bearing license to use the intellectual property and know-how and to use the trademarks in connection with the advertising, promotion, sale and marketing of the products...", Rebates: "4% of Net Sales of all Licensor's Products".

From the reading of the transcript of the 6 contracts described above, it is possible to observe that they all include royalties for the sale of the products manufactured with imported inputs, and that they cover 3 business segments: Plastics, Polyurethane Plastics and Dispersions and Solutions, and Construction Chemicals. Moreover, from the analysis of the tariff positions included in the disputed input universes it appears that they belong to the same business segments as the aforementioned CTTs, all of which leads me to confirm my opinion regarding the reasonableness of applying the data arising from the execution of such Contracts to determine the increase in customs value to be applied to the imports in crisis.

In view of the foregoing, I consider that it is appropriate to add to the price paid or payable for the imported goods, the percentage proportion of the said fee or licence which, according to the calculations made by the customs agency, resulted in an increase of 2.70% for imports in 2009; of 2.70% for imports in 2010; of 2.58% for the year 2011; and of 2.22% for imports of inputs in the year 2012 (fs. 1/IO of SIGEA nº12646-204-2006/7 and l/lO of SIGEA nº12646-204- 2006/8),

XXXIII. At this point, it is time to quickly return to the questioning made in Recital XXVI as to whether the three conditions of the evidentiary standard for the incorporation of a trademark amount to the declared transaction value are met for the products imported by BASF ARGENTINA and subject to dispute. In this regard, as detailed in Recitals XXVII, XXVIII and XXX, I must say that the triple condition is met11 in addition to the requirement of having objective and quantifiable data (Recital XXXII).

The foregoing leads us to agree that the value adjustments -which add a royalty for the use of the trademark of products licensed and acquired from related manufacturers abroad, and not used in a productive process subject to the technology transfer contracts signed by BASF ARGENTINA S.A. appealed in the proceedings- are appropriate, since they contribute to the correct measurement of the HI as defined in the Customs Code.

This, inasmuch as we agree with the affinnation of the Related Companies Division of the DGA that, by means of Notes N°519/l8 (fs.l07/118 of SIGEA nºl2646-204- 2006/8) and Note Nº520/18 (fs. 132/143 of SIGEA nºl2646-204-2006n) stresses the importance of considering the value of the trademark asset based on the fact that, given that the intellectual property substrate is only acquired once and for a certain period of time, it prevents the rest from using, manufacturing or circulating without the owner's authorisation, during the term of protection of the intellectual property, this right encumbers the circulation of the goods on which it falls. Since the exclusion of third parties is the main effect of intellectual property rights, to claim that the marketing and/or distribution contract "clearly and unequivocally" implies, as the plaintiff understands it, that the buyer is obliged to purchase the goods together with the obligation to pay a royalty or licence fee, would be to ignore the basic precepts of the scope of intellectual property and to ignore numerous doctrines and jurisprudence which, as we have seen, contradict it. In this case, then, there is a logical correlation between the payment of royalties and the acquisition and payment of the merchandise imported by BASF ARGENTINA S.A. and the adjustments made, in accordance with the provisions of Article 8.1.c of the Agreement, and the appellant has failed to refute the assertion made by Customs.

XXXIV. In relation to the claim of lack of motivation of the contested administrative acts, it is noted that the customs administration sufficiently and clearly expresses the reasons and circumstances of fact and law that have led to their issuance. In this regard, it can be read in the recitals of the appealed resolutions that the study of value carried out in the administrative proceedings shows that the imported goods should have had to be increased, to the FOB values, the duties or royalties, finding legal support in the GATT Valuation Agreement (Laws 23.311 and 24.425).

Regarding the alleged lack of cause of the resolution in crisis, and as has been insistently referred to above, it should be noted that its conclusions find sufficient factual support in the reports of the relevant areas, which are in the administrative file.

Therefore, I can only conclude that the administrative act in crisis complies with the essential requirements of article 7 of Law No. 19.549. And not being aware of any of the grounds for nullity of article 14 of the LPA, within the framework of the provisions of article 1017 CA, the grievance must be dismissed.

XXXV,- With regard to the complaint referring to the alleged inappropriateness of the 21% VAT on the grounds that it would imply a duplication of the licence tax, I must recall my opinion expressed in the case "PlONEER ARGENTINA S.R.L. s/ recurso de apelación (TF 29.777-A)", judgment of 26/12/2022", to the letter of which I refer.

In a brief summary of what was stated on that occasion, I have to say that the lVA (law nº 20.631 -to. Dto.280/1997- and Decree nº 692/98, Regulatory of the law) applies, as far as we are concerned here, to definitive imports of movable goods. We also said that it is an indirect and real tax, designed as a federal consumption tax, of a general nature, non-cumulative and applying the destination criterion. In addition, we mentioned that the non-cumulative character is implemented through a mechanism called "by subtraction", which consists in the deduction of credits against debits, so that each stage of production or commercialisation is taxed only for the value added at that stage. That is, at the time of determining the tax to be paid, the taxpayer will deduct the sum of the VAT paid on his purchases (tax credit) from the total [VA charged on his sales (tax debit), which constitutes the taxable base of the tax at that stage, and must then pay to the tax authorities only the net amount multiplied by the tax rate. In short, at each stage of production or commercialisation, tax is only paid on the value added at that stage, calculated as the difference between the sales price charged -without VAT- and the purchase price paid -without VAT-, to which the tax rate ((Pr Net Sales - Pr Net Purchases) x 21%) is applied.

Thus, it should be noted that the treatment of the ends of the production and commercialisation chain deserves special consideration for VAT purposes. In the present case, the transactions in question are located at one of those ends: the importation of inputs by BASF ARGENTINA. Therefore, it is appropriate to analyse, first of all, what the tax law contemplates for cases of importation. In this regard, we have also seen that, in matters of international or interjurisdictional trade, our legislation has adopted the principle of taxation in the country of destination, which means that, instead of taxes being paid in the jurisdiction where the goods are manufactured -and exempting them in the place where they are consumed- (country of origin criterion), the tax law opted to provide that the products must leave free of taxes from the place where they are produced, and must be taxed in the country of destination, where they are to be consumed. The rationale for this decision lies in the principle of equity, since "it is assumed that the subject resides in the State where he/she consumes and that State must be the one that provides goods and services, and therefore, it must be the one that receives the taxes".

Furthermore, specifically with respect to imports, it was established that imported goods should receive the same treatment as domestic goods, in such a way that they will be subject to the same tax rate as goods of national origin. To this end, article 2° of the DR of the VAT law clarifies that definitive importation is that which the Customs Code refers to as importation for consumption, and which it defines as that by virtue of which the imported merchandise may remain for an indefinite period of time within the customs territory (art. 233 CA).

In this sense, according to paragraph c) of article 1 of the law, the configuration of the taxable event requires the existence of two elements: one of an objective nature (imported movable thing) and the other of a territorial nature (the import must be made into our country). Thus, "unlike what happens with movable things of national origin, neither the requirement of onerousness nor subjective conditions of any specific type are necessary". And it is clearly understood that the transfer of goods prior to the destination for consumption is outside the object of the tax, as the territoriality requirement arising from paragraph a) of Article 1 is not met, since the goods are not located in the territory of the Nation (Opinion 51/98, DAT, BAFIP 26, p. 1681). On the other hand, according to Opinion 4/03 (DAL, BAFIP 71, pg. l 155), the registration of the import application consolidates the definitive import and indicates who is the definitive importer of the goods, so that "any transaction carried out from that moment onwards is being effected on goods siluated or placed in the country's territory and would be subject to taxation" (Marchevsky, Rubén - "Impuesto al Valor Agregado. Análisis integral" - Errepar - 1°edición. pp. 188/189).

Finally, we said that one of the characteristics of imports is that they are subject to a payment mechanism different from the general one, since VAT is "anticipated" with the dispatch to the market together with the customs duties (art. 27 of the law), being applied to the normal price - provided for in the CA, s/art. 64 DR - defined for the calculation of import duties, to which all import taxes are to be added (art. 25 of the law), the importer being liable for the tax (art. 4 of the law). In practice, VAT is calculated on the CIF value to which the corresponding import duties and statistical tax are added.

In short, the products to be imported are - or should be - tax-free and, when they are nationalised, they are subject to VAT. Therefore, the importer will have, in his tax liquidation, a tax credit that he will deduct from the debit generated with the sale of the imported input, and must pay to the tax authorities the difference multiplied by the allquota [(tax debit charged for the sale of the input in the domestic market - tax credit paid when nationalising the imported goods) x 21%].

It follows from the above that an imported product, once nationalised, is taxed at the same rate as another of national origin as far as VAT is concerned, since it is charged the tax corresponding to all the added value contained therein (the rate is applied to the CIF +DI + TE); in other words, it is equivalent to adding up all the added values produced abroad and, on that taxable base, the rate is applied.

Therefore, the taxable amount of the Import VAT (called (VA General Rate) of all goods imported for consumption, in terms of the Customs Code, is the price actually paid or payable for the goods from the country of exportation to the country of importation, since the total value added produced abroad must be taken into account. If, as in the present case, the valuation method chosen is the transaction value according to Art. 1° with the appropriate adjustments according to Art. 8°, then the taxable amount is that value.

The aforementioned means that, if the transaction value declared by BASF ARGENTlNA did not include the part corresponding to the intangible asset (brand), that is to say, if it had not declared the totality of the value added abroad but only a portion, such concept must be added as it constitutes part of the value added abroad and, therefore, forms part of the taxable base in accordance with the provisions of the tax law.

And the argument put forward by the plaintiff that the value of the licences would be doubled does not affect this conviction. This is because it does not require a greater effort of reasoning to understand that the added value that the trademark represents is not included in the price, since this is what the plaintiff itself has been asserting throughout its appeal. Having established the idea that the trademark represents an added value - in the country of manufacture - to the imported input, it goes without saying that if what the VAT TO seeks to tax is the total value added to the product abroad, the quantum of the tax cannot fail to include the totality of that value, because leaving out something would mean, in fact, exempting from the scope of the tax the excluded concept -branding- and such exemption, as stated above, is the exclusive prerogative of the legislator through the exercise of its power of taxation, never of the enforcement authority.

XXXVI. In view of the above, in relation to the items (.V.A. Perceptions RG 3431/91 and Perception of Income Tax RO 3543/92), the doctrine of the Supreme Court of Justice of the Nation in the case entitled "CLADD (TA S.A. c/ EN - DGA resol. 2590/06 (Expte. nº 604155/01) s/DGA" (fF 22.343-A)'', judgement of 26 November 2019, in the sense that"(...,) from the moment in which the term for submitting the sworn declarations of the aforementioned taxes expired, the defendant lost the power to demand the payment of the levies that should have been made for such concepts.

These levies constitute legal obligations that are based on section 27, last paragraph of Law 23.349 (text according to Law 25.063) and section 22 of its similar 11.683 (t.o. 1998) and whose compliance is independent of whether or not there is a debt for the tax to which they are imputed at the end of the respective tax period, since they are 'different obligations, with their own individuality and their own due date' (Judgments: 285:177)" (Judgments: 285:177)".

In the aforementioned precedent, on that basis, it is concluded that "(...) when the deadline for filing the sworn tax return of the taxes examined here has expired, the power of the collecting agency to demand the payment of those levies is extinguished, since the function they fulfil in the tax system ceases (art. Judgments: 302:504; 303:1496), since at that time the right of the Treasury to collect the levy, that is, the obligation resulting from the tax period, is born".

In such an understanding of the matter, the DGA lacks the power to demand the amounts required for VAT. Perceptions RG 3431/91 and Perception of Income Tax RG 3543/92.

In these two items, it is appropriate to impose the costs in their order, since the pronouncement of the highest court, and consequently, the criterion set therein, is dated after the issuance of the Resolutions under appeal (Resolution No. 8488 DE PRLA, dated 9/11/2018, and Resolution No. 9325 DE PRLA dated 28/11/2018), as well as after the date of filing of this appeal (07/03/2019).

XXXVII. Consequently, in view of the above, it is appropriate to modify the tax demand, as detailed below:         

Thus, the taxes due amount to the sum of U$S 43,640.04 and U$S 2,949,781.20 for charges 1612/14 and 1423/14 respectively, for a total of USS 2,993,421.24, in respect of Import Duty, Statistical Fee, WTO Specific Duty and LV.A. General Fee. All converted at the exchange rate of the day preceding the date of payment.

XXXVIII. Finally, I must deal with the grievance raised by the plaintiff regarding the application, until 28/02119 , of the 3% monthly interest rate provided for in Resolution No. 314/04 of the former Ministry of Economy and Production, on the tax claim denominated in US dollars, which it considers to be null and void for being unreasonable. This opinion extends to the two rates provided for in Resolution nºS0/2019: one of 4.5%, in force during March 2019 and the other, in force since 01/04/19, equivalent to 1.2 times the nominal annual electronic channel rate for 180-day fixed-term deposits in pesos of the BNA in force on the 20th day of the month immediately prior to the beginning of the referred period.

First of all, I must say that, in the matter of customs duties, article 794 of Law Nº 22.415 of CA establishes, for the creditor Treasury, that "once the term of TEN (10) days has expired, counted from the notification of the act by which the duties have been liquidated, or once the certain waiting period granted for their payment has expired, the debtor or responsible party must pay together with the duties an interest on the amount not paid within said term, including the respective update, if applicable. The rate of interest shall be fixed in general by the Secretary of State for Finance and may not exceed, at the time it is set, double the rate charged by the Banco de la Nación Argentina for the discounting of commercial documents. And. for cases of refund of amounts unduly collected as taxes, whether the payment has been made spontaneously or at the request of the customs service, the aforementioned regulatory body indicates in atts. 811 and 812 that "interest shall accrue from the date of the presentation of the document claiming the recovery until the time of payment" and that "the applicable interest rate shall be that set by the Secretary of State for Finance, in accordance with the provisions of article 794".

It should be recalled that the rate and mechanism for the application of compensatory interest in both tax and customs matters, for both cases of creditor and debtor Treasury, were generally fixed by the Ministry of Finance, through Resolution No. 3l 4/2004 of the Ministry of Economy and Production, which was repealed on 01/08/19 by Resolution MH No. 598/2019, which introduces significant modifications to the scheme of compensatory and punitive interest rates for taxes and customs resources, for both creditor and debtor tax authorities.

And while the rate corresponding to taxes, advance payments, payments on account and fines has undergone changes over the years -both at national and provincial level-, the same was not observed with respect to the rate paid by the Treasury in the case of repetitions, refunds, reimbursements or compensations, which had remained at 0.50% since its regulation both for customs matters (art. 3° of the aforementioned resolution) and tax (art. 4º of the same nonna) until the recent Resolution nº 598/2019 occurred in August 2019. On that occasion, it is established that such rate will be. for cases involving items not expressed in US dollars, equal to the "effective monthly rate arising from considering the average passive rate published by the Central Bank of the Argentine Republic for the period of thirty (30) days ending on the twentieth (20th) day of the month immediately prior to the beginning of the referred quarter". Meanwhile, for the cases "of concepts expressed in US dollars, the applicable interest rate will be zero point twenty percent {0.20%) per month".

The rate of compensatory interest for cases of tax creditors (established in Article 1 of Resolution No. 314/2004) was initially set at 2% per month for tax and customs duties, four months later reduced to 1.5% by Resolution No. 578/2004 of the Ministry of Economy and Production. In FY2020, the same Ministry of Economy and Public Finance issued Resolution No. 841 by which it raised the rate applicable to taxes to 3% per month.

During FY 20l9, and in view of a marked growth of the tax debt to the Treasury, the Ministry of Finance by Resolution nºS0/2019 (B.O. 8/2/2019) changes from a fixed to a variable rate regime, increasing the percentage to 4.50% until 3L March 2019. Thereafter, it provides that "...the monthly compensatory interest rate..., in force in each calendar quarter, shall be the effective monthly rate equivalent to one point two (1.2) times the nominal annual electronic channel rate for fixed-term deposits in pesos at one hundred and eighty (180) days of the Banco de la Nación Argentina in force on the twentieth (20th) day of the month immediately prior to the beginning of the referred quarter". The resulting rate for the quarter April to June 2019 stood at 3.76%, while the rate for the following period, i.e. July to September 2019, rose to 4.73% per month, which represents an increase of 26% with respect to the value in force in the previous quarter. The evolution can be seen in the following table (the resolutions in crisis are shaded):

Resarcitorlo Impositivo - Articulo 37 de la Ley Nº 11.683 Resarcitorto Impositivo/Aduanero - Resarcitorto Aduanero - Resarcitorto Impositivo/Aduanero - Resarcitorto Aduanero.

Resarcitorto Aduanero -Articulos 794,845 y 924 del Código Aduanero Obligaciones expresadas en USD o por categorías

Regime From To Standard Resarcitorios

Monthly          

Daily % Reimbursements

Monthly          

Daily

Regime 01/09/2022 R (MHA) 559/2022 5.91 0.20 0.83 0.027667

Current 01/07/2022 31/08/2022 R(MHA)598/2019 4,25 0,14 0,14 0,83 0,027667

            01/04/2022 30/06/2022 R(MHA) 59812019 3.72 0.12 0.12 0.83 0.027667

            01/01/2022 31/03/2022 R (MHA) 598/2019 3.35 0.11 0.11 0.83 0.027667

            01/10/202!       31/12/2021 R(MHA)598/2019 3,35 0,11 0,11 0,83 0,027667

            01/07/2021 30/09/2021 R(MHA) 59812019 3.35 0.11 0.11 0.83 0.027667

            30/04/2021 30/06/2021 R (MHA) 598/2019 3.35 0.11 0.11 0.83 0.027667

            01/01/2021 31/03/2021 R (MHA) 598/2019 3,35 0,11 0,11 0,83 0,027667

            01/10/2020 31/12/2020 R (MHA) 598/2019 3.02 0.02 0.IO 0.83 0.027667

            01/07/2020 30/912020 R (MHA) 598/2019 2.76 0.09 0.09 0.83 0.027667

            01/04/2020 30/6/2020 R (MHA) 598/2019 2.50 0.08 0.08 0.83 0.027667

            01/01/2020 31/03/2020 R (MHA) 598/2019 3.60 0.12 0.12 0.83 0.027667

            01/10/2019 31/12/2019 R (MHA) 598/2019 5.34 0.18 0.18 0.83 0.027667

            O1/08/2019 30/09/2019 R (MHA) 598/2019 0.83 0.027667

            01107/2019 30/09/2019 R (MH) 5012019 4.73 0.16 4.73 0.157667

            01/04/2019 30/06/2019 R (Thousand) 50/2019 3.76 0.13 3.76 0.125333

            01/03/2019 31103/2019 R (MH) 50/2019 4.50 0.15 4.50 0.150000

01101/2011 28102/2019 R (MEyFP) 841120103,00 0,10 3,00 0,100000

R(MEyOSP) R(MEyOSP) R(MEyOSP) R(MEyOSP)

01/02/2003 31/05/2004 R(MEyOSP) 36/20033.00 0.IO 3.00 0.100000

01/07/2002 31/01/2003 R (MEyOSP) 11onoo2 4.00 0.13 4.00 0.133333

01/10/1998 30/06/2002 R (MEyOSP) 1253/1998 3.00 0.10 3.00 0.100000

03/04/1998 30/0911998 R (MEyOSP) 366/1998 2.00 0.07 2.00 0.066667

01/12/1996 02/0411998 R (MEyOSP) 459/1996 2,00 0,07 2,00 0,066667

01/1211991 30/11/1996 R (SIP) 22/1991 3,00 0,10 3,00 0,100000

31/08/1991 30/11/1991 R(SIP)92/l99I

02/04/1991 30/08/1991 R (SIP) 25/19914,00 0,13 4,00 0,133333

7,00 0,23 7,00 0,233333

            10/09/1990 01/04/1991 R (SFP) 59/1990 15,00 0,50 15,00 0,500000

Scheme 29/08/1990 09/09/1990 R (SFP) 60/1990 1,50 0,05 1,50 0,050000

Previous 24/07/1990 28/08/1990 R (SFP) 36/1990 1,50 0,05 1,50 0,050000

            01/01/1901 23/07/1990 R (SH) I0/1988 2.00 0.07 2.00 0.066667

Bridge:                                                                        

AFIP                                                                           

As can be seen, Resolution No. 598/2019, with effect from 01/08/2019, although it does not modify the compensatory interest rate for debts in pesos, it does modify it for customs debts in dollars. In this case, it establishes that the applicable interest rate will be 0.83% "when the obligations in question are expressed in US dollars or must be paid in accordance with the amount of categories or other similar concepts in force on the date of their effective payment".

This being so, and in relation to the possibility of lowering the applicable interest rate, I note that it could be done without declaring the unconstitutionality of the applicable regulation and without the need to violate the procedural rule limiting the jurisdictional powers of this administrative jurisdictional body. Indeed, as I said when ruling in the case: "PETROQUIMICA COMODORO RIVADAVlA SA e/ DGA s/recurso de apelación", EX-2020-15395348- -APN-SGASAD#TFN (judgment of 18/02/21), this court cannot declare the unconstitutionality of a law by assimilating itself to the judges of the Constitution and bypassing with interpretative games the maxim that imposes the submission of the administration to the law. However, I also noted that this legal obstacle did not restrict the possibility of resolving the case submitted for decision by means of a fair weighing of the applicable principles and without the need to declare the unconstitutionality of any law.

In that sense, I emphasised that the legal limitation was exclusively related to cases that required a solution by subsuming the facts under the applicable rules. I added that only in cases of lack of substantial complexity, where the control of constitutionality should be direct, could the case not be resolved without a declaration of unconstitutionality, which I was forbidden to do.

On the contrary, I warned that a declaration of unconstitutionality was not necessary if the resolution of the case required recourse to the weighing up of values, principles and rules with an impact on the situation under examination. Thus, recently, on 30 April 2020, in the judgment handed down in re "C., J. C. e/ Estado Nacional - Ministerio de Defensa - Ejército si daños y perjuicios", EDCMXIX-139, Revista de Derecho Administrativo, May 2020 - Number 5, the Supreme Court declared inapplicable the regime of enforcement of monetary sentences against the National State, regulated in art. 22 of Law 23.982, regarding the credit of a person over 70 years of age, disabled, and with serious health problems. The High Court did so by finding that the plaintiff's case was not exempted from the general regime for the cancellation of unconsolidated credits against a public sector body, which involves a series of procedures and waiting periods for their collection, and the main vote considered the situation to be a "non-foreseen case" which, for reasons of equity, should be resolved by the application of analogous rules. As far as it is of specific interest here, it should be noted that the main vote (signed by Judges Maqueda, Lorenzetti and Rosatti) expressly and intentionally avoids declaring the unconstitutionality of article 22 of Law 23.982, even in terms of its application to the specific case. It is clearly significant that in this new pronouncement the High Court chooses to depart from the declaration of unconstitutionality and opts directly for the inapplicability of the law in the specific case.

In this interpretative framework, it should be considered that the Supreme Court has done nothing other than disregard the applicable nullity when it occasionally leads to an unjust result in its concrete application to a particular case, based on its particularities, sometimes unforeseeable by the legislator himself. In these cases, it is appropriate to disregard the letter of the rule and prioritise the spirit of the legislator, resolving the case as the legislator would have done had the circumstances of the case been represented, even if this means leaving aside the text of the non-active provision applicable to the case.

Thus, on the basis of the foregoing, and in accordance with my opinion expressed in the case "ASEGURADORA DE CRÉDITOS Y GARANTIAS S.A. v. DGA", I must consider the exemption of the exemption in the case "ASEGURADORA DE CRÉDITOS Y GARANTIAS S.A. v. DGA". c/DGA" case, I must consider the manifest exorbitance of charging an interest rate of 3%, 4.5%, 3.76% or 4.73% per month applied on a foreign currency updated on the day of payment by the current exchange rate (Case "ASEGURADORA DE CRÉDITOS Y GARANTIAS SÁ. e/Dirección General de Aduanas, slrecurso de apelación (FF. nº 39.770-A)", Chamber F, Judgment of 13/09/2021).

In view of the above, I propose the reduction of the interest rate to the percentage stipulated in Resolution n°598/2019 for debts expressed in dollars (i.e. 0. 83% per month), to be applied to the tax differences according to Recital XXXVII for the period accrued from 10 days after the notification of each charge -Charge 1423/14 on 25/09/14 and Charge 1612/14 on 26/l 1/14- (see fs. 34 and 20 of the respective AA), until the date of their effective payment in the terms of art, 794 of the CA.

XXXIX. In view of the foregoing, I vote to partially confirm the tax authorities' criterion, as set out in Considerations XXXIII to XXXVIII. Therefore, I vote for:

I.- Partially uphold Resolution nº8488 of 9/11/18, on Charge 1612, issued in SIGEA proceedings nº12646-204-2006/7, and Resolution nº9325 of 28/11/18, on Charge 1423, issued in the framework of S!GBA proceedings nºl2646-204-2006/8, as set out in Recitals XXXVI, XXXVII and XXXVIII. With costs.

ll.- Partially revoke the VAT, Perceptions RG 3431/91and Income Tax Perceptions RO 3543/92, in the terms of Recital XXXVI, Costs in their order.

Claudia B. Sarquis said:

I.- That I substantially agree with the above account, and with the Recitals that result in partially confirming the appealed customs ruling (l.- to XXXV. inclusive). I also agree -for procedural economy- with the application to the case of the doctrine of the Supreme Court of Justice of the Nation in "CLADD ita S.A. v. EN - DGA resol 2590/06 DGA expte. 604155/01, case TFN 22.343-A (See Recitals XXXVI.- and XXXVIL-). And with such support, to partially revoke it with respect to VAT, Perceptions RG 3431/91 and Perception of [mpucsto a las Ganancias RG 3543/92.

II.- I disagree with the interpretations relating to the interest rate applicable to those who must pay these customs debts in dollars, insofar as they propose to reduce the legally applicable rate, by "disregarding" the regulations, leaning towards the inapplicability of the law based on a precedent jurisprudence.

III,- I base my discrepancy of criterion on the need to respect the rates established by each nonna, according to the time in which they began to be in force. I consider that in this sphere - of administrative jurisdiction - it is forbidden to fail to apply the relevant Resolutions, even in an attempt to avoid a result which is presumed to be inequitable (but whose confiscatory nature has not been fully demonstrated in these proceedings).

In this sense, the Court itself has pronounced itself in the "Province of Santa Cruz" case (Fallos 316:42), when it held that an interpretation that is equivalent to disregarding the legal text is not justified, if there is no debate and declaration of unconstitutionality.

On the contrary, and in accordance with the express wording of the regulation -from whose application I find no serious reasons to depart- I observe that the intention of the Legislator at the time of having raised the rates, which were later modified by the passing of another Resolution, by which they were lower, tended at that time to allow the proper development of the purposes of the State, This position was also held when the Excma. C.S.J.N. ruled: "It is justified that the tax laws contemplate coercive means to achieve the timely satisfaction of tax debts whose existence directly affects the interest of the community because they affect the collection of public income; for that purpose, the application of higher interest rates is justified" (Judgments 316:42).

Likewise, I emphasise that the Supreme Court has not yet annulled or relaxed "per se" the rates that arise from the rules that specifically govern this matter.

As a consequence of the foregoing reasoning, it follows that the DGA must in each case apply the regulations in force according to the resolution that determines the corresponding fees, issued by the competent authorities, as indicated in sections 37 and 52 of Law 11.683 and in sections 794 and 797 of the Customs Code (Law 22415), especially when their invalidity has not been declared by our Supreme Court of Justice of the Nation. In our opinion, to apply a different morigeration, alien to the regulations, by the vfa of this Court, would imply overlooking the purposes taken into account by the competent authority, which legislated at each moment the rates applicable to this type of debts with the tax authority. This, according to its own assessment of opportunity, merit and convenience.

In this sense, it cannot be forgotten that the fixing of the interest rate applicable to tax credits is carried out on the basis of such criteria, which are not subject to judicial review, and it is only up to the judges to control the legitimacy of the actions of the administrative authorities, not being empowered to substitute themselves for them in the assessment of circumstances outside the legal Jo c! ampo {CSJN; FALLOS 3 08:2246 and its citations 311:2128; 321:1252, espc. Consid. Vil and citations therein)...". And much less so, consequently, if, as in the case at hand, they are members of the National Tax Court.

As a consequence of the grounds summarised above, I vote for:

Partially upholding Resolution 8488 of 9/11/2018, for Charge 1612, issued in SIGEA proceedings No. 12646-204-2006/7 and Resolution 9325 of 28/l l/18, for Charge 1423, issued in S[GEA 12646-204-2006/8, with the interest to be calculated by the Treasury according to the Recitals above and the provisions of arL 794 of the Customs Code. Orders the parties to pay the costs.

Partially revoke the VAT, Perceptions RG 343l/9 and Perception of Income Tax RG 3543/92, in the terms of Recital XXXVI.- of Dr Licht's vote. Costs in their order.

Dr. Héctor Hugo Juárez said:

That I adhere to the vote of Dr. Sarquis.

In accordance with the aforementioned agreement, by majority, IT IS RESOLVED:

1) Partially to partially confinn Resolution 8488 of 9/11/2018. by C.argo 1612, issued in the proceedings SIGEA Nro. 12646-204-2006/7 and Resolution 9325 of 28/11/18, by Charge 1423, issued in the SIGEA 12646-204-2006/8, with the interests to be calculated by the Treasury according to the Recitals of the vote of Dr. Sarquis and the provisions of art. 794 of the Customs Code. Orders the parties to pay the costs.

2) Partially repeal the items of !VA, Percepciones RG 3431/91and Percepciones del Impuesto a las Ganancias RG 3543/92, in the terms of Recital XXXVI.- of Dr. Licht's vote. Costs in their order.

Register, notify, return the administrative records and file.

[1] 24. Approve integration treaties that delegate powers and jurisdiction to supra-state organizations under conditions of reciprocity and equality and that respect democratic order and human rights. The norms issued as a result of these treaties have a higher hierarchy than laws.

The approval of treaties with Latin American states requires an absolute majority of the totality of the members of each chamber. In the case of treaties with other States, the Congress of the Nation, with an absolute majority of the members of each Chamber present, shall declare the convenience of the approval of the treaty and it may only be approved with the vote of the absolute majority of the totality of the members of each Chamber, one hundred and twenty days after the act of dedication.

The denunciation of treaties referred to in this clause shall require the prior approval of an absolute majority of the totality of the members of each House.

Except for the exceptions foreseen in the National Constitution (e.g., art. 75, sub. 24).

Notwithstanding the above, I reaffirm, once again, that customs law should not be brought back under the terms of the institute of legislative delegation and customs duties should not be considered as a tax or tribute. Indeed, given that the rates of customs duties should remain under the control of the Executive Power in order to deal with contingency situations, the only rational way forward is to frame these powers outside the institute of legislative delegation and, instead, to do so under the terms of the traditional doctrine of the Court, which distinguishes between proper and improper delegation. It is undeniable that, for more than a century, customs legislation has entrusted the executive branch with the task of determining the tax base and setting the rates. Here it should be noted that, unlike taxes, the dynamics of foreign trade require adaptation to changing circumstances. The increase in the price of foodstuffs as a result of the war is sufficient proof of the need for the administrative authority to be empowered to exercise its native powers. Consequently, the correct doctrine pronounced in the cases of Laboratorio Anodia (Judgments: 270:42) and Propulsora Siderúrgica (Judgments: 315:1820) should not be abandoned. In the first of these cases, when discussing the surcharges imposed by Decree 11917/58, the Court said: "[...] that the guidelines of the legislative policy on this point are sufficiently determined in the text and in the recitals of Decree Law 5168/58 (Law 14.467) and also that the Executive Power complied with its prescriptions [...]. In the first place, because carrying out a detailed "legislative policy" also implies the power to enact rules adapted to changing circumstances, especially in a matter which, being so subject to variations as the one in question, it was deemed appropriate to leave it to the prudent discretion of the Executive Branch, instead of subjecting it to the delays inherent in the parliamentary process; and, secondly, because it is not demonstrated or claimed that the Executive Branch has abused the powers delegated to it". This doctrine was maintained in subsequent rulings, as in the case where it was obliged to rule on Resolution 475/85 of the Ministry of Economy, which had established new quotas for the duties levied on exports to the United States and the then European Economic Community. The latter stated that "[...] from the broad terms" of Article 755 of the Customs Code and its Explanatory Memorandum "[...] it is reasonable to affirm that the enumeration of the powers granted to the Executive Branch can in no way be considered exhaustive, which allows, contrary to what the appellant maintains, that the power to apply the criterion arising from the contested resolution falls without difficulty within the scope of the aforementioned Article 755 of the Customs Code". As for the lack of public interest of the challenged resolution, it held that to delve into it''[...] would necessarily lead to resolving questions of economic policy that are the prerogative of the other branches of government, so it is not for the Court to rule on the point''. And I also remarked: '(...) this Court has pointed out that in admitting the validity of the legal recognition of powers left to the reasonable discretion of the executive body, it did so on condition that the legislative policy had been clearly established'. The court again focused on the regulatory power of the executive. It said: ...[t]his, given that in such cases, the executive body does not receive a delegation, but, on the contrary, is empowered to exercise its own regulatory power (article 86, paragraph 2 of the National Constitution), the greater or lesser extent of which depends on the use of the same power by the Legislative Branch. This is because it must be recognised that there is a fundamental distinction between the delegation of power to regulate aspects reserved to the law, and that to establish the limits within which the Executive Branch or its subordinate bodies must regulate the details necessary for the execution of the respective law". In addition, the provisions of a law must be assessed according to its intrinsic nature. Universal experience in customs matters has shown that it is imperative to leave to the reasonable discretion of the executive body both the determination of the goods subject to taxation and the applicable rate, which is clearly related to the fact that customs work is characterised by its complexity, dynamism and technicality. The essentially dynamic nature of the activity has led to the attribution of broad regulatory powers to the executive body, as it requires a body that can respond in an agile and efficient manner to the changing dynamics and complexity of foreign trade. This has led our legal system and comparative law to attribute to administrative departments broad powers in view of their intrinsic relationship with the satisfaction of the general welfare of society in the economic and social sphere (Judgments: 311:2339 and other precedents cited therein).

Report of the Subdirección General de Técnico Legal Aduanera - AFIP - "El hecho imponible por los derechos de importación y su perfeccionamiento", issued on 11/06/2020.

{5] https://www.argentina.gob.ar/inpi

[6] http://data.europa.eu/eli/reg_impl/2015/2447/oj

https://eur-lex.europa.eu/legal-content/ES/ALL/?uri=celex%3A320I5R2447

[7] http://data.europa.eu/eli/reg_impl/2015/2447/oj

https://eur-lex.europa.eu/legal-content/ES/ALL/?uri=ce "https://eur-lex.europa.eu/legal-content/ES/ALL/?uri=ce "https://eur-lex.europa.eu/legal-content/ES/ALL/?uri=ce "https://eur-lex.europa.eu/legal-content/ES/ALL/?uri=ce "https://eur-lex.europa.eu/legal-content/ES/ALL/?uri=ce "https://eur-lex.europa.eu/legal-content/ES/ALL/?uri=ce "https://eur-lex.europa.eu/legal-content/ES/ALL/?uri=ce "https://eur-lex.europa.eu/legal-content/ES/ALL/?uri=ce "https://eur-lex.europa.eu/legal-content/ES/ALL/?uri=ce "https://eur-lex.europa.eu/legal-content/ES/ALL/?uri=ce "https://eur-lex.europa.eu/legal-content/ES/ALL/?uri=ce "https://eur-lex.europa.eu/legal-content/ES/ALL/?uri=ce "https://eur-lex.europa.eu/legal-content/ES/ALL/?uri=ce "https://eur-lex.europa.eu/legal-content/ES/ALL/?uri=ce

Hector Hugo Juan:z Vocal

Vocalla XXI Sulu G Competencia Aduanero Tribunal Fiscal de la Nación

Locatlon: Ciudad Aulónoma de Buenos Alras

Miguel Nathan Licht Vocal

Vocalía XIX Sala G Competencia Aduanera Tribunal Fiscal de la Nación

Digitally signed by Gestlon Documental Electronica