Dear clients and friends
Through this newsletter, would like to inform you about a change in criteria by the current Constitutional Chamber of the Supreme Court of Justice, which gives the power to initiate, through the Attorney General’s Office of the Republic, a criminal judicial procedure when there are indications of the commission of crimes of Fraud to the Treasury, without having exhausted the administrative channel.
The opinion shared by the former Constitutional Chamber of the Supreme Court of Justice was that it had issued precautionary measures to the Office of the Attorney General of the Republic, ordering it to refrain from presenting tax requirements related to the crime of Tax Evasion, due to false or inaccurate declarations, until the administrative procedure had been exhausted through the General Directorate of Internal Taxes, an entity that should issue a resolution where they would establish the conclusion of a certain case, and thus be able to continue with a judicial process.
The current Constitutional Chamber of the Supreme Court of Justice, through constitutional protection processes under the references: 364-2020, 108-2021, 354-2020 and 462-2020, determined that its jurisdiction does not extend to matters of non-conformity of actions or omissions based upon the premise that other institutions may give their input on the cases referring to the crime of Tax Evasion,. Therefore, the Constitutional Chamber has changed the criteria described above and has ordered the cessation of the Precautionary Measures corresponding to the Attorney General’s Office, which stated to refrainfrom presenting tax requirements without having first exhausted the administrative procedure before the General Directorate of Taxes. Further, they established that within the work that corresponds to the Office of the Attorney General of the Republic, is to assess whether or not it is appropriate to present the requirements corresponding to the crimes of Tax Evasion to the Courts with jurisdiction in criminal matters, and it will be those Courts that will determine if the request issued by the Attorney General’s Office is protected under Articles 249 letter a), 249-A inc. 1st numeral 3), 251-A of the Penal Code, which is where the crimes of Tax Evasion are regulated.
Writer: Rolando Suria, from Mayora & Mayora