The government accused Chinese tech giant Huawei of failing to comply with its payment and tax declaration procedures for the importation of hardware, which harms the national treasuryAgency sources told Infobae.
As noted, the Customs Related Companies Inspection Area carried out an analysis of the value of imports by the Argentine subsidiary of Huawei Tech Investment Company, which resulted in a claim of US$ 28 million in taxes paid and a fine of US$ 407 million, notified.
According to Argentine legislation, the Hardware import must be accompanied by payment of customs fees By the use parallel and mandatory of the software licenses associated with said imported equipment.
“The Argentine subsidiary of Huawei imported equipment (hardware) for the development of Argentine technology from the headquarters in China. This equipment is subject to global contracts called “systems”, whose technological specifications make the hardware, software and license rights inseparable, since they form an integral part of the purchase conditions. That is to say: you cannot buy the equipment (hardware) without buying the software and canceling the license fees at the foreign headquarters,” customs sources explained.
In this sense, for the organization headed William Michel, the technology company “had full knowledge of the license fees that it was obliged to pay for the import of goods, once the respective contracts have been signed.”
Likewise, they argued, “knowing the existence and value of said obligation, denying such circumstance in the forms of 'Customs Declaration of Value' (OM-1993/1-A), stating only the value of the equipment without including it in the customs royalty base, software and license value”he continued
Therefore, the Customs decided to file a complaint with the administration due to the false declaration of the company that caused the tax - in the terms of subsection a of the article 954 of the Customs Code– and demanded a tax difference of 28 million dollars. At the same time, it fined the Chinese company 407 million dollars.
He General Agreement on Tariffs and Trade (GATT), of which our country is a part, establishes that when the importer is obliged to remunerate, in addition to the agreed price for the goods, an additional value called “canon, license right or simple duties” exchange of the right to use this intellectual creation of the other party, this amount of money “incorporates the value for customs purposes.”
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Thus, to determine the customs value, the sources assured, to the price actually paid or payable for the imported goods, the “royalties and license fees related to the goods to be appraised that the buyer must pay directly” indirectly as a condition of the sale of such goods, to the extent such royalties and licenses are not included in the price actually borne or payable.".
As Customs explains, there is already a precedent in this matter of Supreme Court of Justice that, in the case Ford Argentina against the management customs general, in a decision of May 2013, reinforced the idea that “such transactions with the licensor to the seller implies, unless proven otherwise, that the sale of the goods is implicitly conditioned on the payment of royalties, and it is up to the buyer to prove that he was able to acquire them from independent suppliers.”