Fiscal provisions against sub-invoicing in import transactions

Decree No 779/2006 provides that in final import transactions for consumption the Custom Service (Dirección General de Aduanas - the “DGA”) shall require a guarantee for the difference in VAT calculated provisionally by the DGA, on the basis of values established by the DGA. The purpose of this provision is to avoid the damages that may be inflicted on AFIP in cases of sub-invoicing of imports.

General Resolution No 2133/2006 (the “Resolution”) was published in the Official Gazette on October 2, 2006. This Resolution regulates the terms and conditions upon which the abovementioned guarantees shall be granted and establishes the procedures for their restitution, according to the results reached by the DGA after its analysis of the product’s value.

The guarantee shall be granted for the difference between the tax actually paid, and that which should have been paid, according to the values established by the DGA for the relevant product. The calculations shall be made in respect of VAT, import duties and all other taxes due in connection with the final import transaction for consumption.

Pursuant to Section 2 of the Resolution - and Section 455 of the Customs Code - all duly registered importers with their fiscal obligations up to date may grant the abovementioned guarantees in any of the following manner:

(i)                 money deposits,

(ii)                 public debt securities deposits,

(iii)                 bank guarantees,

(iv)                insurance and real estate guarantees with first priority ranking, or

(v)                 National Treasury guarantees.

Importers who have been registered with the Registry of Importers for less than six months, or who have not complied with their customs or social security obligations, must grant the guarantees only in any of the following manner:

(i)                   money,

(ii)                   bank guarantee, or

(iii)                  public debt securities.

These provisions have been in force since October 9, 2006.

Once the guarantee is granted, the DGA will analyse the declared value and may reach either of the following conclusions:

(i)           that the declared value was correct, in which case the importer must require the restitution of the guarantee; or

(ii)           that the declared value was incorrect. In such case, the importer may either choose to apply the guarantee to the cancellation of the debit, if possible, or pay such debt and require the restitution of the guarantee. If the calculation is final, and the importer does not make any declaration, the DGA may call on the guarantee up to the amount of the relevant debt.