In this ruling I was supported by Dr. Hendler, but he based his vote on arguments different from those of the undersigned. "The basis of my vote, based on concepts expressed a long time ago, refers to the differences between crimes and infractions that apply both in the tax and customs fields.
The case discussed was classified by the undersigned under Law 11.683 as an infraction and not as a crime, for the simple reason that tax evasion (having signed trusts in order to avoid taxes on profits and personal property) is expressly provided for in art. 47, paragraph e of the referred law. And by the principle of specialty, such a rule displaces criminal rules. This, provided that the infraction circumstances regarding the suitability of the fraud are present.
That is to say, the intent used by the accused in the illegal maneuver must be analyzed and it must be determined whether this seriously or slightly injures the legally protected asset. If the injury is serious, it is a crime, and if, on the contrary, the injury is slight, it would be an infraction.
This criterion differentiating between crimes and infractions based on the degree of damage to the legally protected asset is also clearly found in customs law, when, for example, it is necessary to differentiate between documented smuggling (art. 864, subsection b, of the Customs Code) and the infraction of inaccurate declaration (art. 954 of the cited legal body). As well as in many other related customs infractions such as those provided for in arts. 965 and 970, in which the limit with the crime is very subtle.
Likewise, in response to the question of whether many customs cases are being processed, he stressed that there was a considerable increase in cases, which suggests that the control agencies are acting actively.
As for "How do you think we can combat smuggling and tax evasion?" he replied that the essential requirement to combat these scourges is to act strictly in accordance with the law, condemning those responsible, which also entails the unrestricted defense of the innocent.
What do you think of the new Criminal Tax Court? You said that the three young and competent judges appointed will allow us to renew and intensify the fight against crime. But I repeat that it is not a question of individual men or judges, but that society must become aware that such illegal acts seriously undermine the country's economy.
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