Decision No. 01102 issued by the Political-Administrative Chamber
Case: Artesanías San Elías y Fábrica de Pantry de Venezuela, C.A.
Decision No. 01102, issued by the Political-Administrative Chamber of the Supreme Tribunal of Justice on October 7, 2015, was published in Official Gazette No. 40.853 of February 22, 2016. Said decision modified the criterion that the Chamber has sustained with respect to how letter a) of article 29 of the Regulations to the Organic Customs Law of 1991 must be understood and applied.
The Political Administrative Chamber established that according to the limits prescribed in the Organic Customs Law of 1999 (OCL), it must be understood that the warehouse rate referred to in article 29 of the Regulations to said Law (ROCL) will be applied on the CIF or FOB value of the goods, that is, to the customs value of the same; as to the percentages to which said article 29 of the ROCL refers, specifically 2%, 10%, and 20%, it established that they must be fixed as per the provisions of the OCL of 1999, and that the periods of time of warehousing prescribed in letter a) of the regulatory provision must remain.
Likewise, the Chamber stated that it pronounced judgment on this issue in Decision No. 00043 of January 16, 2008 (Case: Cervecería Regional, C.A.), when it established that said letter a) of article 29 of the ROCL of 1991 is to be understood as follows:: 1% for the first 5 days; 2% up to 45 days, for all of the warehousing period, and 4% for all of the warehousing period after the elapsing of the 45 days.
Notwithstanding the criterion sustained in said decision, the Chamber reexamined said criterion, given that in order to fix the warehouse rate corresponding to the last period prescribed in the ROCL of 1991 (article 29, letter a), the maximum limit established in letter d), number 5 of article 3 of the OCL of 1999 was not taken into account, nor was the rate for the stay of goods in the warehouse for a period of 45 days adjusted to a mean.
Given that letter d) of number 5 of article 3 of the OCL of 1999 provides that the warehouse rate will be fixed within the following limits : “(…) between one percent (1%) and five percent (5%) of the FOB or CIF value of the goods (…)”; the Chamber estimated that on the basis of an authentic interpretation of the rule and according to the periods of warehousing of the goods fixed in the regulatory rule, the rates must be understood as follows. (1%) for the first 5 days; 3% up to 45 days, for all the warehousing period; and 5% for all the warehousing period, after the elapsing of the aforesaid 45 days.
Then, up to December 3, 2014, date on which the Regulations to the Decree with the Status, Value, and Force of Organic Customs Law on Customs Duties was published, which repealed Chapters I and II, article 41 of Chapter III of Title II, and Title III of the ROCL of 1991, the wording of letter a) of article 29 of the ROCL of 1991 must be understood and applied in the manner indicated above in the cases similar to the one resolved by the Chamber in this case, in order to maintain the due harmony among its regulations with a view to guaranteeing the payment of the credits arising in favor of the National Treasury.
Lastly, in relation to the application in time of this criterion, the Chamber established that it will be applied to future cases governed by letter a) of article 29 of the ROCL of 1991 by reason of time, as from its publication in the Official Gazette of the Bolivarian Republic of Venezuela in order to guarantee the principles of legal certainty, lawful trust or reasonable expectation.
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