14
television programs. Finally, the State pointed out that it neither “adjusts the facts that
occurred” “the central idea that [Mr.] Ivcher outlines [in the sense that] the company […]
always pa[id its debts] to the tax authority, and [that], therefore these debts exist only
beginning from the unfortunate intervention of the Winter administration.” Also, the State
informed that in the year 1994 “the amount of [the] tax debt of [the CLRSA] was more
than […] $7 million dollars” and that, in this context, said company received the “exchange
of the tax debt for public services in favor of the State and/[or] organs of the State, which
were appli[ed] between 1994 and 1995.”
28.
That Mr. Ivcher did not question having received a payment made in his favor by
the State for the dividends and fees let unpaid and for the loss of value of the company, in
accordance with that resolved by the Arbitral Tribunal (supra Considering 23).
29.
That Mr. Ivcher Bronstein pointed out that “[t]he Peruvian State has pursued,
through distinct ways, to elude the fulfillment of the judgment of merits that constitutes
‘RES JUDICATA’, to expect to obligate[him] for the payment of taxes generated by the
Peruvian State itself, as a consequence of the removal of [his] nationality.” Also, regarding
that resolved in the arbitral award, the representatives highlighted that the present case
does not deal with “the formality [and difference between a] legal entity and its members,”
but the fact that produces the “capture of the State” “is done to a deprived legal entity to
violate the right to property of a citizen and to control a means of communication.” “The
tax debt […] is not a product of a regular activity, [the CLRSA] did not lose money or end
up owing the State because it did bad business” [the c]hannel […] had this tax
accumulated because it carried the money of the company, there was not only one
investment in these years, there is no new building, there are no television machines, there
are no new programs, nor new artists […] hir[ed], the money that the company generated
[…] carried it and this is the reason for which they could not pay the taxes.” Also, he
pointed out that “natural persons may have their rights violated precisely through legal
entities that are the vehicles used as in this case to prejudice them.”
30.
That also, Mr. Ivcher pointed out that “during the period that the Peruvian State
[…] controll[ed] [the company], this is, the years 1997 to 2000, it did not fulfill with honor
the tax obligations generated during part of this period […]. On August 1, 1997, [the]
company […] did not owe taxes to the Peruvian State [and] was found in a favorable
financial economic situation because it counted, according to the balances at that moment,
upon money in CAJA [and] banks that reached approximately US$8,300,000.” “[W]hen the
channel as recuperated by [Mr.] Ivcher on December 6, 2000, [it] had accumulated a tax
debt of approximately US$7,000,000.” Also, Mr. Ivcher emphasized that “during the
administration of ‘Latin Frequency’ through [the Winters, the Peruvian State – through the
SUNAT-] did not put pressure upon, process, or seize any account or asset of [the
company] to demand the payment of the unpaid taxes.” Regarding the processes of
constitutional protection, Mr. Ivcher pointed out that “[i]t is true that he had managed to
obtain cautionary provisional measures that had suspended the intentions of SUNAT to
coercively charge [the company] the taxes left unpaid by the Peruvian State itself.
Nevertheless, this situation is provisional and nothing assures [him] that […] later the
Peruvian State will not try again to coercively demand these taxes.”
31.
That also, Mr. Ivcher specified that the company received a special system of tax
partition in January 2001, “because even the Court had not issued its judgment.” “To
deliver the judgment of February 6, 2001, and the jurisdiction order of the Peruvian Judicial