The National Chamber of Commercial Appeals signed a harsh resolution weeks after the end of the judicial year, where he referred to the financial behavior of Oil Combustibles SA (OCSA) the oil company owned by Cristóbal López and Fabián De Sousa. The chambermaids decided that the default began in 2011 despite the fact that the defense of businessman K maintained that it was during the macrista administration. The claim that there were “ruinous or fraudulent acts” was validated by the firm that “systematically accepted payment plans to obtain liquidity in an irregular manner”, with the “complicity of state officials.”
Oil Combustibles was denounced in the criminal jurisdiction, for not paying the AFIP -During the government of Cristina Kirchner, more than $ 8,000 million from the Fuel Transfer Tax (ITC). While they were not facing tax obligations, the accusation argued, they decided to expand the business conglomerate and to do so, they used “systematic payment plans” granted by the collecting body. That is why López, De Sousa and Ricardo Echegaray were prosecuted for defrauding the State.
In parallel in the civil and commercial justice, the bankruptcy of the company was decreed. It was determined that it was on June 22, 2011 when the state of default of payment of the plans that the AFIP granted to Oil began. Cristóbal López insists that the date is much later, because the central argument is that the government of Mauricio Macri put them into a situation of financial stress that prevented them from facing the payment of fees. Chamber D of the Chamber of Commerce overthrew that argument.
The chambermaids Pablo Heredia, Gerardo Vassallo and Juan Garibotto, determined that with their behavior, Oil generated a “dramatic reality” that put the treasury in a situation of “difficulty in recovering its debts”, as “direct consequence of an exorbitant fiscal debt whose existence cannot but be explained from the evident complicity of state officials”, in relation to the AFIP of the Kirchner administration.
In this regard, the judges said that “it is evident that the financing strategy that, in an intentional and discretionary manner,” López’s oil company chose, “prolonged a state of insolvency for years that could not even be remedied by filing a bankruptcy” . Then, they endorsed the proposal of the Trustee who said that the default began much earlier, that is, in June 2011.
For the Receiver, Oil’s behavior “constituted a modus operandi that implied a ruinous or fraudulent means to obtain resources”, since since the beginning of 2011 “it adopted the business policy of systematically financing itself compulsively against the Treasury, to facilitate the loan of resources thus had (sometimes even without repayment term and / or without interest rate) to other members of the same economic group (mainly to its controlling shareholders: Inversora M&S SA and Oil M&S SA), in order to achieve the expansion of the Indalo Group through business purchases ”.
For this reason, the receivership said that it is “facing a reiterated and recalcitrant mechanism of not paying a tax (ITC) “ which was reflected in the acceptance of 192 payment facility plans, “from 5/2011 to 12/2015”. The final concept was even harder: “The whole question has a disturbing whiff, because it is before a maneuver to get funds ” which later turned to companies, “while the possibility of complying with obligations was dramatically affected.”
The chambermaids referred to the competition law when talking about “ruinous or fraudulent means used to obtain resources”. In this specific case, they said that the “tax regularization plans were intended for intra-group financing” and that it frames “the possible civil qualification of fraudulent means” before “the tricks used by the debtor to get money in an irregular way.”
When analyzing the arguments of Oil Combustibles, the judges replied that “changes in oil market prices, the presence of tax liens for unpaid debts, the suspension by the AFIP of the possibility of continuing to request moratoriums for the ITC, etc. , are elements of judgment that are incapable of erasing the certain, concrete and legally relevant fact that on 6/22/2011 ”, the López oil company“ stopped paying a huge tax debt to, from then on, benefit from successive payment plans that were only very partially fulfilled ”. For the Chamber, such events “aggravated an already installed insolvency, whose initiation date is obviously earlier.”
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