The emergency situation that led to the establishment of the regime of Law 27.541 is now compounded by the deepening of the crisis generated by the pandemic. More than ever, it is necessary to provide clear rules that limit the possibility of subsequent surprises arising in its application.
Introduction:
On December 23, 2019, Law 27.541 was published, through which, among other issues, a regime of “Regularization of Tax, Social Security and Customs Obligations for MSMEs” was established (see Chapter I of Title IV of the law).
The measure is aimed at taxpayers and those responsible for taxes and social security resources, who qualify and are registered as Micro, Small or Medium Enterprises (according to the terms of article 2 of law 24.467) in order for them to regularize their tax obligations due as of November 30, 2019, establishing as one of its benefits the extinction of criminal actions linked to such tax obligations.
Now, given that the deadline to join this regime expired on April 30, the Government arranged its extension until June 30 with the aim that the coronavirus pandemic and the consequent slowdown of the economy, does not prevent taxpayers from joining the facilitation plan and thus make it effective. the recovery of SMEs pursued by said law ([1]).
Thus, the emergency situation that led to the establishment of the regularization regime referred to above is now compounded by the deepening of the crisis generated by the pandemic, All of which makes it more necessary than ever to provide clear rules that limit the possibility of subsequent surprises, as occurred with the previous regularization regime provided for in Law 27.260.
II.- What does the current regime of “Regularization of Tax, Social Security and Customs Obligations for SMEs” establish?
Chapter I of Title IV of Law 27.541 establishes a regime of “Regularization of Tax, Social Security and Customs Obligations for SMEs.”
Thus, in its article 8 it is provided that “…taxpayers and those responsible for taxes and social security resources whose application, collection and inspection are the responsibility of the Federal Public Revenue Administration, who are classified and registered as Micro, Small or Medium Enterprises, according to the terms of article 2 of law 24.467 and its amendments and other complementary regulations, may benefit, for obligations due as of November 30, 2019 inclusive, or infractions related to said obligations, from the regime of regularization of tax debts and social security resources and forgiveness of interest, fines and other sanctions established by this Chapter…”
That same article adds that they are considered included in the regime “…the additional charges for export or import taxes, the settlements of the aforementioned taxes included in the procedure for infractions as provided for by Law 22.415 (Customs Code) and its amendments and the amounts that should be returned to the national treasury as export stimuli…”, while the following article 9° also includes “…the obligations provided for therein that are under administrative discussion or are the subject of an administrative or judicial procedure on the date of publication of this law in the Official Gazette, as long as the defendant unconditionally agrees to the regularized obligations and, where appropriate, desists and renounces all actions and rights, including the right of recourse, assuming payment of legal costs and expenses…”.
For its part, art. 10 provides that “…Adherence to this regime will result in the suspension of ongoing tax and customs criminal actions and the interruption of the criminal statute of limitations, even when the criminal complaint has not been filed up to that moment or whatever stage of the process the case is in, as long as it does not have a final judgment. The total cancellation of the debt under the conditions provided for in this regime, by compensation, in cash or through a payment plan, will result in the extinction of the tax or customs criminal action, to the extent that there is no final judgment at the date of cancellation…”.
Thus, for the purposes of this article, it is worth highlighting that the regime allows certain taxpayers to regularize their tax obligations due as of November 30, 2019, establishing the extinction of the criminal action linked to such tax obligations, that is, it is an "amnesty" as provided for in art. 59 of the Criminal Code and art. 75, paragraph 20 of the National Constitution.
III.- Problems that arose in the application of the previous regularization regime.
Although the regime of Law 27.260 established an amnesty similar to the current one, at that time there was a discussion about whether the criminal release established there was limited to tax crimes or whether it also extended to customs offenses, since some prosecutors and judges questioned its inclusion, generating several judicial precedents that analyzed the issue.
Thus, it should be remembered that Law 27.260 established an “Exceptional Regime of Regularization of Tax Obligations” that also included a case of extinction of the criminal action consisting of the payment by the taxpayer of the total amount owed in cash or through a payment facility plan (see art. 54 of the law).
Thus, after several people had accepted the aforementioned regime (and paid what the AFIP considered was owed), when they judicially requested the extinction of the criminal action, they found some legal opinions that considered that the law was only applicable with respect to tax crimes, not the same happening with customs crimes.
In this regard, it was held that the provisions of this regime could not be applied to customs offences since these offences were not specifically mentioned in the law.
In light of this discussion raised in some Courts of First Instance, the issue was transferred to the Economic Criminal Court where a broader position was adopted. Thus, it was held that “… from this rule it follows, despite its unclear wording, that this regularization includes, contrary to what was maintained by the a quo, criminal, tax and customs actions, and both tax crimes and customs crimes should be considered included in the regime as long as they involve an unpaid tax obligation…” ([2]).
Later, this position was also accepted by the Federal Court of Criminal Cassation, which stated that “… Although from the reading of the transcribed rule it could be interpreted that only customs violations are contemplated by not referring literally to “customs crimes”, the truth is that tax crimes, exchange crimes as well as customs crimes were contemplated there… from the literal tenor of the rule it is clear that the legislator referred in plural to “criminal actions” and then made mention of “tax and customs”. In this sense, if he had wanted to exclude customs criminal actions —as the court interpreted— he should have made reference —in singular— to the “tax criminal action”, on the one hand, and to the “customs action”, on the other…” ([3]).
Ultimately, after several months of processing appeals in different files, it became clear that the provisions of Law 27.260 could be applied to both tax and customs crimes as long as they generate tax obligations to be regularized.
IV.- Tax regularization regime of Law 27.541 for customs crimes. Need to provide certainty regarding its application.
As explained in the previous points, in view of the upcoming expiration of the acceptance period, the need arises to provide certainty regarding the application of this new tax regularization regime ([4]).
In this sense, although a marked tendency towards tax collection continues as the axis of criminal policy ([5]), a sort of recognition of the deepening of the economic crisis caused by the aforementioned pandemic is now also added, which requires an even broader interpretation so that this new start in the administration-administered relationship can work.
Thus, in order to encourage the decision to adopt the regime and respect the proposal to start over as pursued by the legislator, it is essential to provide the citizen with the peace of mind that there will be no subsequent surprises, as occurred in the previous regime.
The rules of the game must be clear and their benefits cannot be distorted by restrictive legal interpretations, and the principles of in dubio pro reo ([6]) and pro homine([7]).
In this regard, although this is a regime that applies only to taxpayers and those responsible for taxes and social security resources that are registered as Micro, Small or Medium Enterprises (according to the terms of article 2 of Law 24.467 and amendments), it is important to clarify that the effect of the extinction must be transferred to all those accused in the case.
Thus, since there is usually more than one defendant in customs criminal cases, if one of them agrees to pay the taxes owed, thereby regularizing the tax obligation underlying the customs offense in question, the effect provided for in art. 59, paragraph 2 of the Criminal Code (amnesty) is transferred to the rest, since the tax obligation is joint and several. It should be remembered that the Customs Code, in its art. 782, provides for this situation, stating that “…the authors, accomplices, instigators, concealers and beneficiaries of import or export smuggling are jointly liable for the relevant taxes…”.
This position was highlighted by Dr. Guillermo Coronel in a previous work ([8]), citing even a ruling by the National Chamber of Economic Criminal Matters in which it was highlighted that “… the effects of the amnesty would reach not only the author, but also the co-authors, accomplices and instigators. In that sense, the Federal Chamber of Criminal Cassation has ruled by stating that “…the extinction of the criminal action provided for in the referred norm is regulated for the cases related to the tax obligations directly relevant to the crimes charged or imputable to the subject who carries out the externalization, that is, contemplated as elements of the objective criminal type. Indeed, the benefit of release extends to criminal actions that are being or may be being brought against a subject as long as the externalization is with respect to the transgressions that constitute the procedural object of the criminal case in progress (Confr. CFCP, Sala IV, 05/06/2017, case No. FCB12000035/2012/5/CFC2, Reg. No. 641/17.4)…”. ([9]).
The question of whether the regime in question applies to all customs offences or only to some of them must also be clarified, since here too it is possible that restrictive interpretations contrary to the principles we have been stating may be adopted.
In this regard, in the same precedent cited in the previous paragraphs, the Economic Criminal Appeals Court stated that the extinction of the regime of the previous law was not automatic, since the “nature of the maneuver and the purpose pursued by it in each particular case must have been previously analyzed… since it cannot be considered that this is a maneuver carried out only to avoid payment or reduce the amount of import duties and other charges corresponding to the merchandise involved, but rather it would be the clandestine introduction into the country of merchandise that in that way would also have been removed from the controls linked to compliance with electrical safety standards established for its consumption within the country” ([10]).
That is to say, despite the acceptance of the application of the regime for customs crimes and even though the law did not establish any limitation, there is a tendency that would seek to limit its application only to cases in which the person accused of the crime of smuggling had only wanted to avoid paying taxes.
This same position seems to arise from a misreading of the ruling of the Federal Court of Cassation cited in the preceding point ([11]), in which, taking up a previous precedent ([12]), it would be indicated that it would only be applicable to the extent that the crime of smuggling charged is related "exclusively" to customs obligations of a tax nature, which in our opinion is not appropriate, because the regime does not require such exclusivity.
Recently, on June 2, 2020, the Economic Criminal Court ruled on the regularization regime of Law 27.541, rejecting its application ([13]). In this sense, following this restrictive position that we have mentioned, it considers that the benefit in question would only be viable if it is a case of simple smuggling, since when “… the protected legal asset receives a greater affectation, as is the case of the assumptions of arts. 865, 866 and 867 of the CA, it can be stated that the exceptional regime would not be applicable. It resists all legal logic, within the framework of a democratic regime of law, that the legislator intended to extinguish the criminal action by the simple payment of customs duties with respect to those cases…”.
Given that the rule does not make the distinction intended there in any part of its text (the letter of the law as the first source of interpretation of the law), we share what Guillermo Coronel stated in a similar work ([14]), in that it is not appropriate to establish a restrictive scope on the basis of a judicial interpretation. In this sense, article 10 of the law in question provides that compliance with the regime produces the suspension of the criminal actions tax and customs in progress, even if there is no complaint and at any stage of the process, with the sole exception that there is no final judgment.
That is to say, the text of the law itself establishes an amnesty in relation to all customs criminal actions without distinction, as long as they are cases that generate tax obligations that can be regularized. Thus, if the legislator had wanted to make any distinction between the applicable customs crimes, he would have done so expressly, resulting in the intended restrictive interpretation being contrary to what the letter of the law establishes, calling into question the division of powers provided for in the National Constitution.
On the other hand, it should be noted that not in all cases provided for in the crime of simple smuggling (arts. 863 and 864 of the CA) is there "an omission of payment of customs duties" ([15]) and for this reason, we understand that the legislator, within the scope of discretion in its criminal policy, decided to privilege tax collection over the prosecution of the crime in question, but only in cases where there are tax obligations to be regularized.
For that same reason, it is not appropriate to restrict its application through the lesser or greater affectation of the legal asset protected by the rule, since precisely as the Court held in the "Legumbres" precedent cited by the referred Oral Court, "... the legislator has conceived the crime of smuggling as something that exceeds the mere assumption of tax evasion (Rulings: 296:473 and 302: 1078), since the determining factor for punishment is that it tends to frustrate the adequate exercise of the legal powers of customs, a concept that has been specified in the wording of article 863 of the Customs Code, limiting said control powers, with respect to smuggling, only to the facts that prevent or hinder the adequate exercise of the functions that the laws grant to the customs service "for the control over imports and exports."
That is, if the basis for punishing the crime of smuggling is not found in the affectation of tax collection, but in the violation of the adequate, normal and effective exercise of the function of control of the international traffic of goods assigned to customs ([16]), it is not appropriate to find a limit in the application of the analyzed regime in the lesser or greater affectation of said control that the judged conduct may present, but only in the existence or not of the tax obligation to regularize ([17]). If this were not so, a case that, for example, falls within the figure of aggravated smuggling because it involves merchandise with a value greater than $3.000.000 (see art. 865, inc. i) of the Customs Code) should also be excluded from the benefit.
We reiterate, given that Law 27.541 does not establish any limitation, it is clear that in all cases where a customs crime is charged (that is, the crime of simple smuggling – arts. 863 and 864 of the CA -, aggravated – arts. 865 of the CA –, its attempt – art. 871 of the CA – or the crime of concealment – art. 874 of the CA –), As long as it has generated a tax obligation that can be regularized, it is eligible to be included within the regime in question..
Therefore, we believe that it is not appropriate to make any distinction based on what the accused would have wanted or whether it is a case in which, in addition to said tax obligation being evaded, it caused some additional effect such as, for example, the possible non-compliance with a restriction that can perfectly be corrected later. It is important to remember that it is one thing for the merchandise to be prohibited and quite another for its entry or exit to require prior intervention by another agency such as SEDRONAR, ANMAT, INAL, RENAR, etc. and that it only constitutes a restriction on import and export ([18]).
In this sense, if the customs crime analyzed in a criminal case has a tax obligation that can be regularized, the benefit in question must be granted, even if some other control function of the customs service has also been affected.
For all these reasons, the new Law 27.541 should not face conflict situations, being clear in stating in the second paragraph of article 10 that "... The total cancellation of the debt under the conditions provided for in this regime, by compensation, in cash or through a payment facility plan, will produce the extinction of the tax or customs criminal action, to the extent that there is no final judgment on the date of cancellation...".
Thus, the subjects who adhere to this regularization regime, as long as they comply with the payments provided for in this article, will enjoy the benefit of being exempt from any action for crimes under customs criminal law that may apply.
Therefore, the courts must limit themselves to verifying that the requirements demanded by the regime have been met, especially the payment of the required taxes, because if this payment was made, it is appropriate to apply this benefit of suspension and/or extinction, without establishing, through interpretation, requirements not provided for by law.
V.- Conclusions
For all the above, it is important to highlight that this is a regularization regime that is based on the aforementioned constitutional principles of prohomine and in dubio pro reo, as well as on the principle of legality (arts. 18 and 19 of the CN) and the exclusive jurisdiction of the National Congress for the purposes of determining the tax, its essential elements, the content and scope of the amnesty entailed by Law 27.451 and the releases from criminal actions established by this special regime (cfr. art. 4, 52, 75, inc. 1, 2 and 20 and 99, inc. 3 of the CN.
Regarding the latter, it is worth remembering that our Supreme Court has stated that "the National Constitution does not exclude the possibility of Congress legislating on other contents of the amnesty, as long as its essential character of general amnesties is maintained, since the amnesty is essentially general, covers all cases involved in a class of crimes, and is the responsibility of the Legislative Branch, the only branch that has the power to declare the criminality of acts, to create sanctions and to erase their effects."
And thus, the determining cause of acceptance (and its success) is the trust placed in the State, not only in its future management capacity, but in the conduct of its implementing bodies in fulfilling the benefits offered by Law 27.541.
The latter implies the commitment to a broad interpretation in favor of the taxpayer of all those aspects omitted or unclear in its letter, in order to achieve the recovery of the MSMEs, even more so now that the emergency situation that led to the issuance of the regime in question, deepened with the crisis generated by the pandemic.
By: Guillermo and Santiago Vidal Albarracín. Judicial Journal
Notes
[1] See in this regard the reference made in the article “Economic crimes and the pandemic” by Fernando Albano Quartarone published in Diario Judicial on 21/4/2020: https://www.diariojudicial.com/nota/86222
[2] For example, see the Chamber's resolution of June 8, 2017 in case No. Order 30.725 Internal Reg. 303/2017, among others.
[3] Chamber IV resolved the ruling “RUCHTEIN, Sergio Leonardo s/ appeal for cassation” dated June 25, 2019 with Reg. No. 1269/19.4.
[4] In this regard, this same issue was recently raised by Dr. Aguinsky in file No. 529/2016 in process before the National Economic Criminal Court No. 6 by highlighting the evident normative tension that could exist between the benefits of Law 27.541 and Decree of Necessity and Urgency No. 51/2017 in relation to the exercise of the right of ownership over donated merchandise, as well as regarding that which is still awaiting verification and appraisal by the customs service in order to evaluate its inclusion or not in said criminal process.
[5] See Hernán De Llano's position raised in “An approach to Argentine criminal policy on economic crimes” published in Economic Criminal Law, Volume I, Ed. Marcial Pons, 2010, pp. 303 et seq.
[6] Luis M. García recalls that the Inter-American Court of Human Rights has expressly identified the pro homine principle as “a principle of extensive interpretation of human rights and restrictive of their limitations” (IACHR, OC 5/85) – Luis M. García “International human rights law: a question of international law or a question of domestic law?”
[7] Mónica Pinto states that the pro homine principle contains a hermeneutical criterion that informs all human rights law, according to which one must resort to the broadest norm, or to the most extensive interpretation, when it comes to recognizing protected rights and, conversely, to the most restricted norm or interpretation when it comes to establishing permanent restrictions on the exercise of rights or their extraordinary suspension. This principle coincides with the fundamental feature of human rights law, that is, to always be in favor of man (e.g. art. 5 ICCPR; art. 29 ACHR) art. 5 (ICESCR) art. 1.1 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment: art. 41 Convention on the Rights of the Child) - Mónica Pinto, The pro homine principle. Criteria of hermeneutics and guidelines for the regulation of human rights in "The application of Human Rights Treaties by local courts", Cels. Puerto Editores, 2004, p. 163.
[8] Coronel, Guillermo Felipe, The customs penal extinction by effect of the law of social solidarity published on February 27 of this year on the website:
https://aduananews.com/blog/La-extinci%C3%B3n-penal-aduanera-por-efecto-ley-solidaridad-social
[9] According to Incident of acceptance to Law 27.260 – case no. 529/2016, Titled: “NN S/INF. LEY 22.415, JNPE No. 6, Sec. No. 11 – File No. CPE 529/2016/205/84/CA132- Order No. 28.850 – Chamber B – National Economic Criminal Court – 25.3.2019.
[10] Ruling cited in the previous footnote, which stated that “… the crimes provided for by the customs law, to the extent that they are linked to obligations arising from additional charges for export or import taxes,… are covered by the assumptions of suspension and interruption of the exercise of criminal action provided for in art. 54 of Law 27.260, and by the new cause of extinction of criminal action provided for in arts. 46 and 54 of the aforementioned law. However, those benefits are not automatically applicable to all cases of smuggling, but it is necessary to analyze the nature of the maneuver and the purpose pursued by it in each particular case.”
[11] Ruling “RUCHTEIN, Sergio Leonardo s/ appeal for cassation” of Chamber IV dated June 25, 2019 with Reg. No. 1269/19.4.
[12] Ruling “GUIDO, Diego Esteban and others s/ rec. de cassation” of Chamber III dated 29.3.2019 – Reg. 278/19. Thus, it was noted that: “… the facts constituting the crime of smuggling are not linked in all cases only with the non-compliance with tax obligations, to the extent that they can be related to conduct that affects other legal assets different from fiscal activity … Based on the above, it was highlighted that taking into account that Law 27.260 was conceived as a criminal policy tool linked to the financial and economic activity of the State, relating to the collection of funds to cover public spending, it can be concluded that the adoption of the exceptional regularization regime provided for in its Title II and, therefore, the benefits provided for those who adhere to said regime, are only applicable if the unfulfilled customs obligations are of a tax nature …”.
[13] Case 529/16(-B)/TO2 (2978) – TOPE 2 ruling dated 2/06/20. “PALOMINO ZITTA, Víctorio Esteban and others s/ smuggling”.
[14] Coronel, Guillermo Felipe, Considerations on the ruling that rejects the application of amnesty in Law 27.541 published on June 7 of this year on the website:
https://aduananews.com/blog/Consideraciones-sobre-el-fallo-que-rechaza-la-aplicaci%C3%B3n-de-la-amnist%C3%ADa-en-la-Ley-27541.
[15] Thus, for example, such omission is not observed in the payment of taxes in the cases of the so-called currency smuggling (art. 864, inc. d) of the CA).
[16] Cfr. Héctor Guillermo Vidal Albarracín, Customs Criminal Law, Ed. Didot, Buenos Aires, 2018, page 82 et seq.
[17] In this sense, cases of drug smuggling cannot be included in the regime, not because they imply a greater impact on the protected legal asset, but because they do not have a tax obligation to regularize.
[18] The SCJN ruled in this sense in the precedent “NATE” of 12/6/2012 – N. 6. XLVI. REX
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