Amparo Trial, Secretaría de Hacienda and Tax Evasion
This week, Mexico’s Supreme Court –Suprema Corte de Justicia de la Nación (SCJN)- ruled that the Ministry of Finance and Public Credit –Secretaría de Hacienda y Crédito Público (SHCP)- cannot promote an Amparo trial against the decision of Federal Prosecutors of not pressing charges against tax evasion suspects.
According with an article published by El Universal Online –http://www.eluniversal.com.mx/, http://estadis.eluniversal.com.mx/notas/293715.html-, the SCJN established that SHCP lacked the required qualifications to start an Amparo trial in such circumstances.
The Amparo trial was originally created as a means to protect the citizen’s constitutional rights and to stop government abuse. Only as an exception, Section 9 of the Amparo Law opened the possibility for government bodies to act as plaintiffs of such trials. This exception takes place when another government entity affects their economic assets.
For example, if a Governor orders to seize a City building, the City Mayor can act as a plaintiff in an Amparo trial to fight for the City’s economic asset.
What the Supreme Court held is that with the decision from prosecutors of not pressing charges against an individual accused by SHCP for considering them responsible of tax evasion, does not affect SHCP’s economic assets.
This decision is relevant for all taxpayers; either they are Mexican residents or foreign entities who do business in Mexico. It implies that succeeding in a previous investigation started by federal prosecutors when SHCP accuses individuals of being responsible for tax evasion is more important than ever.
If the defense convinces prosecutors of the lack of merit of the accusation –or proves any legal excuse- and prosecutor decides not to press charges, that decision would be final. Would the accuser be a citizen, prosecutor’s decision could be challenged through an Amparo trial.
According with an article published by El Universal Online –http://www.eluniversal.com.mx/, http://estadis.eluniversal.com.mx/notas/293715.html-, the SCJN established that SHCP lacked the required qualifications to start an Amparo trial in such circumstances.
The Amparo trial was originally created as a means to protect the citizen’s constitutional rights and to stop government abuse. Only as an exception, Section 9 of the Amparo Law opened the possibility for government bodies to act as plaintiffs of such trials. This exception takes place when another government entity affects their economic assets.
For example, if a Governor orders to seize a City building, the City Mayor can act as a plaintiff in an Amparo trial to fight for the City’s economic asset.
What the Supreme Court held is that with the decision from prosecutors of not pressing charges against an individual accused by SHCP for considering them responsible of tax evasion, does not affect SHCP’s economic assets.
This decision is relevant for all taxpayers; either they are Mexican residents or foreign entities who do business in Mexico. It implies that succeeding in a previous investigation started by federal prosecutors when SHCP accuses individuals of being responsible for tax evasion is more important than ever.
If the defense convinces prosecutors of the lack of merit of the accusation –or proves any legal excuse- and prosecutor decides not to press charges, that decision would be final. Would the accuser be a citizen, prosecutor’s decision could be challenged through an Amparo trial.
But tax evasion accusations can only be made by SHCP, and Supreme Court’s decision is a setback for the tax authority. Amparo trial was not created to be a tool for government claims –except as established in Section 9 of Amparo Law-, but the opposite: to help individuals and corporations preserve their constitutional rights. Solution for SHCP: do a better job with prosecutors when they decide to make a criminal accusation against somebody they consider committed tax evasion.
posted by Mastropiero @ 12:06 PM
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