RESOLUTION No. 359-2019-MINEM/CM
Lima, July 11th, 2019
RECORD : “LINCOLN XXIX”, code 01-00532-05
Taking into account the file of Validity Right and Penalty “LINCOLN XXIX”, code 01-00532-05-V
SUBJECT : Appeal for Review
SOURCE : Geological Mining and Metallurgical Institute - INGEMMET
ADMINISTERED : Macusani Yellowcake S.A.C.
VOCAL DICTAMINATOR : Attorney Cecilia Sancho Rojas
I. BACKGROUND
A. In the file of Validity Right and Penalty of the mining claim “LINCOLN XXIX”, code 01-00532-05-V
1. By written Request N° 01-002214-18-D, dated July 2nd, 2018 (page 17), Macusani Yellowcake S.A.C. credited the payment of the Rights of Validity of its thirty-two mining claims, among which is the said mining right. In said request were attached the BBVA Banco Continental’s payment vouchers N° 6306, 6307, 6308, 6309, 6310, 6311, 6312, 6313, 6314, 6315, 6316, 6317, 6318 and 6319, all dated July 2nd, 2018 (pages 19 to 21).
2. By written Request N° 01-002217-18-D, dated July 3rd, 2018 (pages 24 to 25), Macusani Yellowcake S.A.C. pointed out that, at the time of submitting request No. 01-002214-18-D to prove the payment of the Rights of Validity of its thirty-two mining concessions, it was not allowed to attach the following payment receipts: No. 6320, 6321, 6322, 6323, 6324, 6325, 6326 and 6327 (pages 26 to 27). The reason reported was that these payment vouchers were later than 4:30 p.m. However, this is not true, since only vouchers No. 6326 and 6327 have a later time. Therefore, it enclosed the aforementioned vouchers and requested to take knowledge of the aforementioned and to consider fulfilled the payment of the Rights of Validity of his mining concessions, among which is the mining right “LINCOLN XXIX”.
3. The Legal Area of the Directorate of Validity Rights of the INGEMMET through Report N° 1924-2018-INGEMMET DDV/L, dated October 3, 2018 (pages 32 to 38), evaluated the written requests N° 01-002214-18-D and N° 002217-18-D, concluding the following: 1. It is not in dispute that the administered entered INGEMMET’s facilities on July 2nd, 2018 during office hours; 2. The administered did not have the payment vouchers for the Validity Rights until 4:30pm, when the entry to the public is no longer allowed. 3. The payment receipts for the Rights of Validity entered irregularly to INGEMMET’s facilities after 4:30 pm. 4 The fact that the administered has entered the INGEMMET facilities does not imply that the documents reception office has to wait indefinitely until it can meet the requirements of its legal obligations. Allowing events such as what happened would cause those administered to enter INGEMMET’s and remain indefinitely in its facilities, waiting for the documentation to be submitted from outside and that they do not carry with them until closing hours. 5. Written request No. 01-002214-18-D entered the documents reception office without payment vouchers and admitting an accreditation such as this would lead to the violation of the Principle of Impartiality, because a privileged treatment is given to a user which is not given to others.
4. The Directorate of Validity of INGEMMET, by resolution dated October 3rd, 2018 (page 3, on the back), elevated the said Report to the INGEMMET’s Executive Presidency with the corresponding draft resolution.
5. INGEMMET’s Executive President, through a resolution dated October 3rd, 2018, declared inadmissible the accreditation requested by Macusani Yellowcake S.A.C. by means of written requests N° 01-002214-18-D and N° 01-002217-18-D and ordered that it be made known to the administered that the resolution can only be challenged together with the corresponding contradiction of expiration.
B. In the file of the mining claim “LINCOLN XXIX”, code 01-00532-05.
6. By Presidential Resolution No. 115-2017-INGEMMET/PCD, dated August 29th, 2017, published in the Official Gazette “El Peruano” on August 31, 2017 (page 61), it was reported the relationship of mining claims that have not complied with the payment of the Right of Validity for the year 2017, being among them the mining claim “LINCOLN XXIX”, code 01-00532-05, which is contained in item No. 23515 of the aforementioned resolution.
7. By resolution dated October 4th, 2018, supported by Report N° 1939-2018-INGEMMET/DDV/L (page 66, on the back), the Director of the Right of Validity of INGEMMET authorized to be informed of those administered, through INGEMMET’s website, the list of mining claims whose holders have not complied with the timely payment of the Validity Right for the year 2018, being among them the “LINCOLN XXIX” mining claim, which appears in the item No. 13303 of annex No. 1 of the aforementioned resolution.
8. By Presidential Resolution No. 0464-2019-INGEMMET/PE, dated February 20th, 2019, of the INGEMMET’s Executive President, the expiration, among others, of the mining claim “LINCOLN XXIX” was declared due to the non-timely payment of the Right of Validity for the years 2017 and 2018, which appears with No. 30 in the relation annexed to said resolution.
9. With Document No. 01-000511-19-D, dated March 14th, 2019, specified by Document No. 01-000769-19-D, dated March 22nd, 2019, Macusani Yellowcake S.A.C. interposed Appeal for Review against Presidential Resolution No. 0464-2019-INGEMMET/PE.
10. By means of a resolution dated April 10th, 2019 of INGEMMET’s Executive President, it is agreed to grant the Appeal for Review indicated in the previous paragraph and submit the file of the “LINCOLN XXIX” mining claim to the Mining Council for the purposes of its competence; being sent with Official Letter No. 226-2019-INGEMMET/PE, dated April 12, 2019.
11. In this instance, the appellant submitted written Request No. 2955665, dated July 9th, 2019, with which it expands the foundations of its Appeal for Review.
II. APPEAL FOR REVIEW
The appellant bases its Appeal for Review, arguing, among others, the following:
12. In spite of having complied with the requirements demanded by article 37th of the Regulation of Various Titles of the Single Ordered Text of the General Mining Law (attach original deposit vouchers and indicate the mining claim for which the payment is made) and having respected the deadline for submission, INGEMMET declared inadmissible the accreditation of payment on grounds that are at odds with the law.
13. With respect to the statement made by INGEMMET that written Request No. N° 01-002214-18-D, through which was accredited the payment of the Rights of Validity of the 32 mining rights, entered without the corresponding payment receipts, it is indicated that this statement is not consistent with reality, because, on July 2nd, 2018, INGEMMET agreed to receive the letter of accreditation of fourteen (14) payment receipts of the 22 that were available.
14. INGEMMET endorsed the resolution of inadmissibility of payment accreditation of Validity Rights invoking the application of jurisprudence of the Mining Council, which is impertinent because they are administrative precedents that do not bear any similarity with the facts under evaluation, since they deal with cases that are factually and legally different.
15. The obligation to present the payment vouchers on the last day allowed, from the birth of the obligation to pay the Validity Right, was fully fulfilled, so it is not appropriate to relate the case to one of breach of obligation.
16. INGEMMET did not want to receive all of the payment vouchers at the time of the corresponding accreditation, so three claim sheets were generated: 80161R, 80162R, 80163R, all of them dated July 2nd, 2018. These claims were attended by Letter N° 012-2018-INGEMMET/SG UADA, dated August 6th, 2018, by the Documentary and File Administration Unit, which attaches Report N ° 03-2018-INGEMMET/UADA, dated July 12th, 2018.
17. When INGEMMET points out that the administered can only present at the documents reception office the documentation that they brought with them at the time of their entry, it is establishing an additional requirement based on interpretations that the law does not contemplate, restricting their rights based on conjecture or assumptions that have no legal support.
18. There is strong evidence that the payment vouchers were presented on the last day of accreditation allowed by law and that, in addition, such vouchers were presented within the business hours of INGEMMET, since otherwise they would not have been accepted, much less, with the reprinting of the proof of attention in order to modify the observation indicated initially (no deposits attached) with another one (fourteen (14) original payment vouchers for Validity Rights attached).
19. The Computer System of Mining Rights and Cadastre-SIDEMCAT allows the generation of codes to receive documents once past 4:30 pm. This means that it is feasible to submit documents after that time, it being not possible for the attention of said entity to be strictly limited to 4:30 pm, but to be allowed, in application of the Principle of Informalism that governs all Public administration entities, accept the presentation of documents by those administered once the business hours have ended.
20. While it is true that all payment vouchers were not attached, this was due to reasons totally unrelated to their will, given that INGEMMET discriminated against the previously mentioned vouchers based on the time they were generated, failing to comply with its obligations as part of INGEMMET’s documents reception unit.
21. It should be understood that written Request dated July 2nd, 2018 must have been accompanied by 22 payment vouchers and not fourteen (14). The remaining eight (8) vouchers were not attached to the aforementioned request, due to the illegal qualification made at INGEMMET’s documents reception office; for this reason, those had to be presented through a second written Request on July 3rd, 2018.
III. CONTROVED QUESTION
It is to determine whether or not to declare the expiration of the “LINCOLN XXIX” mining claim due to the non-payment of the Validity Right for 2017 and 2018.
IV. APPLICABLE REGULATIONS
22. Article 59th of the Single Ordered Text of the General Mining Law, approved by Supreme Decree No. 014-92-EM, modified by the single article of Law No. 28196, published on March 27th, 2004, applicable to the present case, in compliance with the provisions of numeral 2) of the Sole Transitory Provision of Supreme Decree No. 054-2008-EM, which establishes that it produces the expiration of claims, petitions and mining concessions, as well as the concessions of benefit, general labor and mining transport, the non-timely payment of the Right of Validity or the Penalty, as the case may be, for two (2) consecutive years. If the payment of one year is omitted, its regularization may be complied with the payment and accreditation of the current year, within the period established in article 39th of the law. In any case, the payment will be charged to the previous year due and not paid.
23. The first and third to the eighth paragraphs of article 37th of the Regulation of Various Titles of the Single Ordered Text of the General Mining Law, approved by Supreme Decree No. 03-94-FM, modified by article 1 of Supreme Decree No. 008-2013-EM, published on March 13th, 2013, which states that the payments for Validity and/or Penalty Law will be made from the first business day of January to June 30th of each year, in the entities of the Financial System duly authorized by the Geological, Mining and Metallurgical Institute-INGEMMET, using the unique code of the mining claim, in which case the accreditation will be automatic. The holder must prove the payment for the Validity and/or Penalty Right only in the following cases: a) if the payment has been made without using the unique code of the mining right, b) if the mining claim is extinguished and does not appear in the National Mining Register, being the resolution that declared the extinction of said claim questioned judicially. In order for the aforementioned accreditation to be declared admissible, a written document will be submitted requesting it, in which it is necessary to: (i) attach the original vouchers of the entire deposit due in the accounts authorized by INGEMMET; and, (ii) identify the right for which the payment is made. The presentation of the aforementioned letter will be held until June 30 of each year at the headquarters of INGEMMET or decentralized bodies. If the documentation required in the previous paragraph is not submitted and within the indicated period, INGEMMET will declare the accreditation inadmissible, which can only be challenged together with the contradiction of expiration. Without prejudice to the provisions of the preceding paragraph, payments made and credited after the deadline may be reimbursed ex officio by INGEMMET.
24. Numeral 1.4 of Article IV of the Single Ordered Text of Law No. 27444, Law of the General Administrative Procedure, approved by Supreme Decree No. 004-2019-JUS, referring to the Principle of Material Truth, which establishes that in the procedure the competent administrative authority must fully verify the facts that serve as grounds for its decisions, for which it must adopt all the necessary probative measures authorized by law, even if they have not been proposed by those administered or have agreed to exempt from them. In the case of trilateral procedures, the administrative authority shall be entitled to verify by all available means the truth of the facts proposed by the parties, without this implying a substitution of the probative duty that corresponds to it. However, the administrative authority shall be obliged to exercise said power when its pronouncement could also involve the public interest.
25. Numeral 1.5 of article IV of the Single Ordered Text of Law No. 27444, Law of the General Administrative Procedure, referring to the Principle of Impartiality, which establishes that the administrative authorities act without any kind of discrimination between the administered ones, granting them treatment and guardianship against the procedure, resolving according to the legal system and with attention to the general interest.
26. Numeral 1.8 of Article IV of the Single Ordered Text of Law No. 27444, referring to the Principle of Procedural Good Faith that establishes that the administrative authority, the administered, their representatives or lawyers and, in general, all the participants of the procedure , perform their procedural acts guided by mutual respect, collaboration and good faith. The administrative authority cannot act against its own acts, except for the cases of ex officio review referred to in the same law. No regulation of the administrative procedure can be interpreted in such a way that it protects any conduct against the procedural good faith.
27. Article 149 of the Single Ordered Text of Law No. 27444, Law of the General Administrative Procedure, which establishes that the opening hours of the entities for the performance of any action are governed by the following rules: 1. They are working hours those corresponding to the schedule set for the operation of the entity, without in any case the attention to users can be less than eight consecutive daily hours; 2. The schedule of daily attention is established by each entity fulfilling a period not coinciding with the ordinary working day, to favor the fulfillment of the obligations and actions of the citizenship. For this purpose, it distributes its personnel in shifts, fulfilling days not exceeding eight hours a day; 3. The business hours are continued to provide its services to all matters within its competence, without dividing it to attend some on certain days or times, or affecting its development for personal reasons; 4. The business hours conclude with the provision of service to the last person appearing within the business hours; 5. Acts of a continuous nature initiated during business hours are concluded without affecting their validity after business hours, unless the administered agrees to defer them. Said consent must be stated unquestionably; 6. The time followed by the entity governs in each service; in case of doubt or lack thereof, it should be verified immediately, if possible, the official time, which will prevail.
28. Article 4 of Supreme Decree No. 083-2009-PCM, which establishes that in all cases, entities guarantee the attention of all matters within their competence, during the public service hours established for that purpose, which is not less than eight (8) consecutive daily hours.
29. Article 1 of Presidential Resolution No. 102-2013-INGEMMET/PCD, dated July 25th, 2013, published in the Official Gazette “El Peruano” on August 9th, 2013, amended by means of published errata on August 10th, 2013, which establishes the INGEMMET customer service schedule to provide its services in all matters within its national jurisdiction, according to the following detail: Monday to Friday, start time: 08:15 hours and end time: 4:30 p.m.
V. ANALYSIS OF THE CONTROVED QUESTION
30. From the norms set forth in numerals 22 and 23, it follows that the payment for the Concept of Validity Right is an annual legal obligation required by the State to the holder of a mining claim, which must be paid and credited between the months from January to June of each year. Otherwise, these concepts would be unpaid and that could lead to expiration due to non-payment for two consecutive years.
31. According to the Annual Debt Registry of Validity Rights of the claim “LINCOLN XXIX”, which is attached in this instance in a copy, it is noted that the Validity Rights corresponding to the years 2017 and 2018 are not paid, being recorded for each period the amount of US $ 3000.00 (three thousand and 00/100 US dollars), calculated based on 1,000,000 hectares of extension and the general regime.
32. It should be noted that INGEMMET set a schedule for those administered to carry out their procedural actions, which runs from 08:15 am to 4:30 pm. Said schedule must conclude with the provision of service to the last person appearing within the business hours, as indicated by the norm of numeral 27 of this resolution. Consequently, the appellant had to be treated within said schedule to prove the payment of Validity Rights for the years 2017 and 2018.
33. After reviewing the Validity Right and Penalty file of the “LINCOLN XXIX” mining claim, it is noted that INGEMMET verified that the appellant submitted the written Request No. 01-002214-18-D, dated July 2nd, 2018, without annexing the payment vouchers and that is credited with the generation of the first proof of attention with its observation made at 4:30 pm and the code generated at 4:35 pm, as indicated in Report No. 001- 2018-INGEMMET/OSI-DM/MSG-MGM, of the Information Systems Department, whose copy is attached. Consequently, with the receipt of the aforementioned writing request and with the receipt of the proof of attention it can be noted that they were carried out within the hours of attention of INGEMMET (08:15 am to 4:30 pm) approved by Presidential Resolution N° 102-2013-INGEMMET/PCD, and the attention to the recurring company culminated from the moment the aforementioned proof of attention and respective code were generated.
34. On the other hand, it is noted that, after the submission of written Request 01-002214-18-D with its respective certificate, INGEMMET received fourteen (14) proof of payment and the initial observation was changed in the record, indicating that the aforementioned payment vouchers are attached, and this is done at 5:16 p.m., as indicated in Report No. 001-2018-INGEMMET/OSI-DM/MSG-MGM, that is, outside the business hours indicated in the numeral 29. Consequently, with a new attention, it is intended to record that the written Request No. 01-002214-18-D had fourteen (14) payment vouchers from the beginning, which does not respond to the reality of the facts. It should be noted that said situation was verified by INGEMMET, in compliance with its functions, after the Complainant appellant filed its complaints in the Book of Ccomplaints (No. 000080161R, No. 000080162R and No. 000080163R, whose copies are attached), because of not being allowed to present eight (8) more vouchers, which were presented the next day by means of written Request No. 01-002217-18-D, dated July 3rd, 2018.
35. Therefore, the INGEMMET, after attending the appellant during office hours and receiving its written request without payment vouchers, should not have received the fourteen (14) vouchers previously mentioned outside said schedule. It had to proceed as it proceeded with the remaining eight (8) vouchers (which were not received), because upon receiving them it left without effect an event occurred, that is, a procedural action that initiated an administrative procedure, and that was subject to evaluation and subsequent analysis by the competent mining authority.
36. It should be noted that receiving payment vouchers from the administered after submitting written Request No. 01-002214-18-D without such vouchers is to give preferential treatment with respect to other users, without any support or reasonableness. Likewise, such exceptional treatment would discriminate against the other administered ones who are or would be in the same situation and would not benefit from a similar treatment. Therefore, it would be contrary to what is prescribed by the Principles of Impartiality and Procedural Good Faith.
37. Regarding what was indicated by the appellant in its Appeal for Review and that is stated in numerals 17 and 18 of this resolution, it is specified that those administered can be treated as long as they are within the hours of INGEMMET (08:15 am to 4:30 pm) and, in the present case, the appellant was within the aforementioned schedule and was attended by INGEMMET when it accepted its written Request No. 01-002214-18-D with the observation that the vouchers were not attached. These vouchers were presented after the proof of attention was generated and printed with its original observation, that is, at 5:16 p.m., after hours. It should also be noted that the appellant had the opportunity to cancel the Right of Validity for the years 2017 and 2018 between the months of January to June of each year; however, it paid and credited the respective payments by presenting fourteen (14) payment vouchers on the last day outside of INGEMMET's business hours and eight (8) vouchers by means of written Request N° 01-002217-18-D, the next day and outside term to credit said payments.
38. Having submitted from the beginning written Request 01-002214-18-D without attaching the respective payment vouchers, the recurring company did not comply according to law to the fulfillment of the payments for the Validity Rights corresponding to the years 2017 and 2018. Consequently, the payments made cannot be used to credit payment of the Validity Right for said consecutive years corresponding to their mining claim, being thus in cause of expiration; reason why the resolution appealed is according to law.
VI. CONCLUSION
Based on the foregoing, the Mining Council must declare unfounded the Appeal for Review filed by Macusani Yellowcake A.A.C. against the Presidential Resolution No. 0464-2019-INGEMMET/PE, dated February 20th, 2019, of the Executive President of the Geological, Mining and Metallurgical Institute-INGEMMET, to the end that it declares the expiration of the “LINCOLN XXIX” mining claim by the non-timely payment of the Right of Validity for the years 2017 and 2018, which must be confirmed.
Having the opinion of the informant member and with the favorable vote of the members of the Mining Council that subscribes;
IT IS RESOLVED TO:
Declare unfounded the Appeal for Review made by Macusani Yellowcake S.A.C. against the Presidential Resolution No. 0464-2019-INGEMMET/PE, dated February 20th, 2019, of the Executive President of the Geological, Mining and Metallurgical Institute-INGEMMET, to the end that it declares the expiration of the “LINCOLN XXIX” mining claim by the non-timely payment of the Right of Validity for the years 2017 and 2018, which is confirmed.
Be it Registered, Communicated and Filed.
ENGINEER FERNANDO GALA SOLDEVILLA
PRESIDENT
ATTORNEY LUIS F. PANIZO URIARTE
VICE PRESIDENT
ATTORNEY CECILIA E. SANCHO ROJAS
VOCAL
ENGINEER VICTOR VARGAS VARGAS
VOCAL
ATTORNEY CECILIA ORTIZ PECOL
VOCAL
ATTORNEY RODOLFO CAPCHA ARMAS
SECRETARY