PROBLEMATIC.
Our client filed a request for a refund of the General Import Tax, due to the application of Article 502 of the North American Free Trade Agreement (NAFTA), entered into between Canada, the United States of America and Mexico, which establishes that when preferential tariff treatment has not been requested for an imported good that has qualified as originating, the importer of the good may request the refund of the duties paid in excess.
However, the tax authority denied the requested refund, arguing that the taxpayer did not comply with the legal formalities to apply preferential tariff treatment in terms of Article 36-A of the Customs Law, by virtue of the fact that the Certificate of Origin was not attached to the rectification import declaration.
ACTIONS AND STRATEGIES IMPLEMENTED BY OUR FIRM.
The specialists of Stratego’s legal area carried out an analysis of the resolution by which the refund was denied and, upon noticing that it was illegal, filed a nullity lawsuit before the Federal Court of Administrative Justice. In it, arguments were formulated to demonstrate that, in terms of the North American Free Trade Agreement (NAFTA), entered into between Canada, the United States of America and Mexico, the obligation to attach the certificate of origin to the importation is not established, since this is a requirement only for the refund and not for the import, having the opportunity to show it when requesting such a refund.
RESULT.
As a result of the foregoing, the Second Section of the Superior Chamber of the Federal Court of Administrative Justice issued a judgment in which it declared the nullity of the contested resolution as illegal, given that the fact that the import declaration has not been attached to the certificate of origin does not make the refund request inadmissible, since said certificate is a requirement for the origin of the refund and not for the importation, the foregoing in terms of the North American Free Trade Agreement (NAFTA), entered into between Canada, the United States of America and Mexico.
Finally, the Chamber of Knowledge recognized the subjective right to the refund of the General Import Tax, generated by reason of the importation of the merchandise subject to preferential treatment.
The criterion achieved constitutes a true case of success for our client, because through the judgment reached, he was able to obtain the refund of payment of the undue plus the corresponding updates.
At STRATEGO implementing innovative strategies for litigation and complex matters in Tax and Foreign Trade matters; under one of the pillars for which we work every day, to protect the most important thing for our clients… their assets!
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