PROBLEMATIC.
Our client filed a refund request for the amount of $20, ***, ***.** (millions of figures, expressed with – for confidentiality of information), for “Foreign Trade Tax, Contributions for the Application of International Free Trade Agreements to importation, 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 a good at the time of importation and that it has qualified as originating, the importer may later request the refund of the duties paid in excess.
Despite the fact that the request was fully admissible, the Administration of Legal Support for Foreign Trade Audit “2”, under the Central Administration of Legal Support for Foreign Trade Auditing, of the General Administration of Foreign Trade Audit, denied the requested refund, arguing that the legal formalities to apply preferential tariff treatment in terms of Article 36-A of the Customs Law were not complied with, by virtue of the fact that the Certificate of Origin was not attached to the import declaration.
ACTIONS AND STRATEGIES IMPLEMENTED BY STRATEGO ST.
The legal defense team of St Stratego filed an appeal for revocation, however, the authority that heard the appeal, namely, the Decentralized Legal Administration of Baja California “2”, confirmed the appealed resolution, since in its opinion, it was legal for the Legal Support Administration of Foreign Trade Audit “2”, to conclude that by omitting to transmit electronically as an annex to the pedimento, the Certificate of Origin under the North American Free Trade Agreement, it was not complied with ordinal 36-A, of the Customs Law and, therefore, they did not comply with the formalities provided by law to apply the benefit of preferential tariff treatment, so the request for payment of the undue was not admissible.
In view of this, the Contentious Administrative Trial was brought before the Federal Court of Administrative Justice, where the nullity of the resolution issued to the appeal for revocation was claimed, as well as of the one that was its subject. Through the initial application, 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 importation.
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 well as of the one originally appealed, as it was considered illegal, since 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 Article 502 of the North American Free Trade Agreement (NAFTA), entered into between Canada, the United States of America and Mexico, so that it can be exhibited until the time of the presentation of the application.
In view of the above, the Hearing Chamber recognized the subjective right of our client to a refund for the amount requested in refund plus the corresponding updates.
In addition to the favorable result obtained; This success story constituted a very relevant precedent in the field of foreign trade, as the origin of this type of tax refunds was determined, with very special characteristics, such as the application of the commercial benefits provided for by Treaties.
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