Por Dra. María José Etulain Sórensen
Paper presented at the 14th International Customs Law Conference – AAEF 2025.
Customs valuation is one of the central pillars of modern foreign trade. In this context, the interaction between multilateral rules of the World Trade Organization (WTO), technical recommendations of the Organisation for Economic Co-operation and Development (OECD), and Argentine domestic law raises significant debates regarding normative hierarchy, tax legality, and customs enforcement powers.
This paper analyzes the tensions between these regulatory systems based on an emblematic case law precedent, examining the scope of international standards in Argentine customs valuation.
Introduction
Within the framework of Directive No. 1 issued for the organization of this international conference, attention was drawn to the issuance in Argentina of Decree of Necessity and Urgency (DNU) 70/2023, presented as a key component of the current economic policy.
In the field of foreign trade, emphasis was placed on the need to strengthen and promote activity through the adoption of international standards, such as the rules and consensus developed within the WTO framework and the recommendations issued by the OECD.
However, it should be noted that DNU 70/2023 does not incorporate WTO rules or specific commitments to OECD guidelines as binding on the Argentine Republic.
Currently, Argentina is a member of the WTO, but it has not yet fully joined the OECD, maintaining its status as a candidate country for accession.
WTO and OECD: points of contact and differences
The World Trade Organization (WTO)
The WTO is a multilateral organization that establishes binding agreements for its member states.
Its core purpose is to regulate international trade between countries, especially:
- trade in goods
- trade barriers
- tariffs
- customs rules
- settlement of trade disputes
In customs matters, the Agreement on Implementation of Article VII of the GATT 1994 is of particular relevance, as it forms the normative basis of modern customs valuation.
The Organisation for Economic Co-operation and Development (OECD)
The OECD is an international organization focused on developing better public policies.
It addresses areas such as:
- taxation
- education
- health
- environment
- trade
- digitalization
- governance
In tax matters, its transfer pricing guidelines have had a strong global impact.
Point of contact between both systems
The main point of contact between the WTO and the OECD is observed in multinational enterprises that:
- imports goods from related foreign entities
- pays customs duties on the declared value
- deducts costs for income tax purposes
Allí surge la tensión entre:
- customs value (WTO)
- transfer pricing (OECD)
The principle of tax legality in Argentina
The principle of tax legality has constitutional status and establishes that no tax can exist without a prior law that creates it.
In the field of import duties, the Argentine legal framework is primarily based on:
- National Constitution
- Customs Code (Law 22.415)
- Law 24.425 (incorporation of WTO Agreements)
This prevents the creation of taxes, adjustments, or mandatory methodologies by analogy or through sources not incorporated into legislation.
The Supreme Court has consistently held that tax obligations cannot be extended beyond what is expressly provided by law.
The case Helm Argentina SRL v. DGA
One of the most relevant precedents on this matter was the Helm Argentina SRL case, related to customs value adjustments on imports made from a related foreign company.
Position of the Customs Authority
The customs authority considered that the relationship between the parties had influenced the declared prices.
For that purpose, it compared transactions with third parties and relied on external benchmarks, rejecting the transaction value declared by the importer.
This resulted in a multimillion tax assessment due to differences in import duties.
The decision of the National Tax Court (Tribunal Fiscal de la Nación)
The Tax Court substantially upheld the customs adjustment.
In its analysis, it incorporated criteria linked to the OECD Transfer Pricing Guidelines, considering the arm’s length principle applicable (arm’s length).
Under this view, the price agreed between related parties could be disregarded as a valid basis when it did not reflect comparable market conditions.
The decision of the Federal Administrative Court of Appeals (Cámara Contencioso Administrativo Federal)
Chamber IV overturned the tax adjustment and ruled in favor of the taxpayer.
Among its main grounds, the Court highlighted:
- The Customs Authority did not adequately prove that the related-party relationship had influenced the price.
- The mere existence of a related-party relationship is not sufficient to reject the declared value.
- Adjustments in imports must be governed by the GATT Valuation Agreement incorporated by Law 24.425.
- It is not appropriate to replace the applicable legal framework with OECD guidelines without explicit legislative authorization.
Subsequently, the position was upheld after the extraordinary appeals were dismissed.
Customs Valuation: WTO vs OECD Transfer Pricing Standards
The case raises a central issue:
Customs Value (WTO)
It is based on:
- the price actually paid or payable
- a specific import transaction
- specific rules of the GATT Agreement
Transfer Pricing (OECD)
It is aimed at:
- income tax
- business profits
- comparable margins
- arm’s length principle in related-party transactions
Both systems may be economically related, but they serve different legal purposes.
Impact for importing companies in Argentina
This debate has significant practical effects for companies operating with related foreign parties.
Resulta clave contar con:
- robust documentation of transactions
- preliminary price analysis
- coordinated customs and tax strategy
- technical defense in valuation audits
- comprehensive regulatory compliance
Conclusion
The analysis of the case reaffirms the continued validity of the principle of tax legality in matters of import duties.
Customs enforcement powers must be exercised within the applicable legal framework: the GATT Valuation Agreement approved by Law 24.425, the Customs Code, and the National Constitution.
OECD guidelines may provide technical elements for comparative analysis, but they do not, by themselves, replace the binding legal regime governing customs matters.
In conclusion, fiscal control must be exercised firmly, but also in full compliance with constitutional guarantees and the principle of statutory reservation.
📄 Academic paper
Web version of the paper
“OECD Standards, WTO Rules and Domestic Law: Tensions and Scope in Argentine Customs Valuation”
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About the author
Dra. María José Etulain Sórensen
Attorney specialized in Customs Law, anti-dumping, and risk management
Consultant in foreign trade and internationalization
Member of the Customs and International Trade Bar Association (CITBA)
Director of MJE Global
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