The National Congress enacted the “Law on social solidarity and productive reactivation within the framework of the public emergency” (Law 27.541). The regulation published on December 23, 2019, among other measures, established a system of moratorium, forgiveness of taxes and extinction of tax and customs actions, both criminal and infraction in nature.
The measure is aimed at taxpayers and those responsible for taxes and social security resources, which qualify and are registered as Micro, Small or Medium Enterprises, according to the terms of article 2 of law 24.467 and its range It is for all obligations expired as of November 30, 2019 –inclusive- and infractions related.
Consequently, the standard enables three aspects fundamental: a) The regularization de tax debts and social security resources; b) forgiveness de interests; ç) The forgiveness of fines and other sanctions that are established.
The following are some questions:
What effects does it have on customs criminal matters and customs infractions?
a) SUSPENSION: 1) Acceptance of this regime will result in the suspension of ongoing tax and customs criminal actions, 2) Also, the interruption of the criminal statute of limitations, even when the criminal complaint had not been filed until that moment or whatever stage of the process the case is in. This will apply as long as there is no final judgment.
b) EXTINCTION: The rule expressly establishes the extinction, namely: 1) In tax and customs criminal matters: When the debt is fully cancelled, whether by compensation, cash or through a payment plan established by the law itself. Provided that there is no final judgment on the date of cancellation; 2) In customs infringement matters: Total cancellation will produce extinction in accordance with the terms of articles 930 and 932 of the Customs Code. That is to say, it will have the effect of a voluntary payment. Consequently, there would be no records of such infringement, as indicated by the articles of law 22.415 that recovers the regulation discussed here. It should be noted that this extinction will take place to the extent that, at the time of acceptance, a final judgment is not registered regarding the imputed infringement.
When does extinction take place?
It will happen Once the tax obligations have been cancelled corresponding. In this sense, taking into account that the regulations allow the taxpayer to pay in different ways, "forgiveness", "cash" and even in the terms of the "payment plan regime" established in the regulation itself. For the latter case, the extinction will operate at the time of total cancellation, that is, once the final installment has been paid. This leads to the warning that in the face of the expiration of the payment facility plan that is granted, it will imply the resumption of the tax or customs criminal action, as the case may be. Or it will enable the promotion of the corresponding criminal complaint that has been suspended due to the effect of the agreement to payment that the taxpayer has exercised.
Can the prescription be applied?
Given that the statute of limitations is interrupted in the event of non-compliance with the payment plan, not only will the criminal case in tax or customs matters not be extinguished, but it will also mean the beginning or resumption, as the case may be, of the calculation of the tax and/or customs criminal statute of limitations.
What customs criminal case can be extinguished?
In all criminal cases that determine the status of imputation of a customs crime, whether in the criminal type of smuggling (art. 863/864/865), attempt (art. 871), concealment (art. 874) and to the extent that it generates tax obligations. The suspension may first be applied by the agreement to pay these taxes and then be reached by the extinction once such obligations are cancelled.
Therefore, any person who is charged in a customs criminal case, at any stage of the process, as long as there is no final conviction, even in cases where the criminal complaint has not been filed and is within the requirements taught by law - prior to November 30, 2019 (inclusive) and is registered in the Registry of Micro, Small or Medium Enterprises, according to the terms of article 130 of law 2 – may request the termination of the criminal action by agreeing to pay the tax obligations arising from such accusation. Extinction takes effect when the total payment is made.
Should you be the owner of the goods?
In several customs criminal cases, different subjects are accused, many of them not necessarily owners of the goods and/or cargo involved. Even in the face of this circumstance, we consider that any of the accused may exercise the right to the extinction of the criminal action, as long as they agree to pay the taxes generated by the irregular taxable event involved in the criminal case.
In accordance with the provisions of Title II, Chapter One, regarding “debtors and other persons responsible for the tax obligation” by indicating in its article 782 of the Customs Code, that "The authors, accomplices, instigators, concealers and beneficiaries of import or export smuggling are jointly liable for the relevant taxes," If the law determines the tax liability of the different defendants, any of them can agree to pay and obtain extinction by the effect of the amnesty provided by the norm - Law 27.541 -.
Is the termination applicable to the rest of the subjects involved in the customs criminal case?
In customs criminal cases, where the same “irregular taxable event” is charged against several subjects, if one of them agrees to pay the taxes and requires the extinction of the criminal action, it should generate effects of extinction for the rest of the accused in the terms of art. 59 inc. 2 of the Penal Code.
Such premise becomes in order to: 1) Rule 27.541, which grants amnesty through the effect of extinction of the action upon payment of taxes, does not specify any impediment; 2) Law 22.415 (Customs Code) establishes that the tax obligation in cases of smuggling falls on the different subjects, whether they are co-authors, instigators, concealers or beneficiaries of the crime of import or export smuggling, specifying that they will be jointly liable; 3) The solidarity provided by law for these cases - regarding the tax obligation - imposes that the payment made by one extinguishes the obligation of the other. Consequently, if one defendant pays the taxes, the obligation with respect to all the others in the customs criminal case is extinguished and, in accordance with this, each defendant holds the benefits of amnesty that Law 27.541 requires upon cancellation of the tax. Each of the accused subjects must individually request the right to the pertinent criminal extinction, proving that he is registered in the registry of Micro, Small or Medium Enterprises, according to the terms of article 2 of Law 24.467 (requirement mandated by the standard ).
This has also been considered by jurisprudence in similar cases: "This, insofar as the extinction of the action provided for by the norm, in the terms of art. 59, inc. 2°, of the CP, refers to that which arises from the allegedly unlawful act susceptible of finding typical adequacy in any of the criminal assumptions provided for by law 22.415, in which case, the effects of the amnesty would reach not only the author, but also the co-authors, accomplices and instigators. In that sense, the Federal Court of Criminal Cassation has ruled by stating that "... the extinction of the criminal action provided for in the referred norm is regulated for the assumptions related to the tax obligations directly pertinent 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, Chamber IV, 05/06/2017, case No. FCB12000035/2012/5/CFC2, Reg. No. 641/17.4). (In accordance with Incident of protection of Law 27.260 – case no. 529/2016, Titled: “NN S/INF. LAW 22.415, JNPE NO. 6, SEC. NO. 11 – FILE NO. CPE 529/2016/205/84/CA132- ORDER NO. 28.850 – CHAMBER B – ECONOMIC CRIMINAL CHAMBER – 25.3.2019/XNUMX/XNUMX).
Is customs criminal action extinguished if the taxes have been paid at the time of the complaint or after it?
Law 27.541 establishes its application for all tax obligations prior to November 30, 2019 – inclusive -. It forgives customs criminal cases provided that the obligations arising from the irregular taxable event that is charged in the criminal case are paid.
In this sense, to the extent that such criminal action accrues taxes resulting from the alleged act and despite the fact that, for different reasons, they may have been cancelled prior to the promulgation of Law 27.54, if such tax obligation is prior to November 30, 2019, these criminal cases should be covered by the amnesty and their extinction should be ordered in the terms of art. 59 inc. 2 of the CP.
Its basis is derived from the constitutional guarantees applicable in criminal and tax matters, which must safeguard the equality of all citizens before the law. On the contrary, in the case of two identical cases that meet the requirements set forth in the law to apply the amnesty, that is, in both cases there are: 1) a customs criminal action, 2) obligations of taxes arising from such taxable event and 3) that are prior to the date determined by the rule – 30.11.19/27.541/30.11.2019 –, nothing prevents the scope of the extinction by effect of the amnesty, if in both cases the cancellation of the tax obligation occurs; even when in one of them, the cash payment has occurred prior to the rule. Otherwise, one would be punished and the other would benefit, only for having made the payment prior to the rule, but still having the customs criminal case open, which would show an affectation of the guiding principles in criminal matters: “benefit to the most lenient criminal law”. Especially when Law XNUMX itself enables extinction through total cancellation in cash, without considering or preventing that such payment may be executed prior to its promulgation. The only limitation is that the taxes respond to a tax obligation prior to XNUMX/XNUMX/XNUMX. In this case, the interest on these cancelled taxes is not forgiven.
Does extinction operate automatically?
Law 27.541 is a framework for amnesty for tax and customs criminal actions. In this way, it enables the extinction of ongoing customs criminal actions or at the request of the latter, as long as the requirements determined by the law itself are met - cancellation of the tax obligation -.
The extinction of the criminal offence must be decreed by the acting judge or court by applying this rule and article 59, paragraph 2 of the Penal Code – Extinction of the action by amnesty –.
Once the requirements have been met and the tax obligation is still pending cancellation, since the accused has opted for the installment payment system, the courts must suspend criminal proceedings until the cancellation takes place. Once the last installment has been paid, the termination takes place and it will be necessary to resolve the case accordingly.
In this sense, we consider that the judge should only observe compliance with the requirements mandated by law 27.541 and if these are present – among them the cancellation of tax obligations – has the duty to extinguish the action without further ado, both for the subject who requires the extinction of the action by proving compliance with the requirements, and for the rest of the accused.
In this case, the Justice should only ex officio summon the rest of the accused to prove compliance with the obligation mandated by the law, as regards registration in the registry. of Micro, Small or Medium Enterprises, according to the terms of article 2 of law 24.467, although we believe that such a request should be enforceable for the person who initially exercises the voluntary action to pay the tax obligation arising from the customs criminal case. Thus, it would be extinguished for the remaining defendants, due to the effect of such cancellation already made by one and without prejudice to the fulfillment of such element. Given that, at this stage of the events described, the requirement of registration in the registry would become a formal requirement, lacking factual value, to apply the extinction mandated by the criminal law in accordance with art. 59 inc. 2 of the CP.
Notwithstanding the foregoing, it should be noted that the Economic Criminal Justice has held in cases of equal treatment that the termination is not automatically applicable, but rather it is necessary to analyze the nature of the maneuver and the purpose pursued by it in each particular case –“…the crimes provided for by the customs law, insofar as 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.” (Ref. CPE 1157/2013/1/CA, res. of 06/03/2018, Internal Reg. No. 195/18 and CPE 1155/2016/4/CA2, res. of 06/04/2018, Internal Reg. No. 182/18, among others) – in accordance with Incident of acceptance of Law 27.260 – case no. 529/2016, entitled: “NN S/INF. LAW 22.415, JNPE No. 6, SEC. No. 11 – FILE No. CPE 529/2016/205/84/CA132- ORDER No. 28.850 – CHAMBER B – ECONOMIC CRIMINAL CHAMBER – 25.3.2019).
We do not share these guidelines for the type of amnesty established by the new law discussed here – Law 27.541 –, given that the legislator clearly determines the requirements for the application of this benefit of suspension and/or extinction. Consequently, once they are met, the extinction must operate automatically, without entering into the review of the Justice the analysis of the maneuver or purpose pursued in the request of the accused. It is clear that the law limits only the verification of compliance with the requirements and if these are met, the criminal cases will be suspended or the extinction will operate without further ado.
Does customs criminal extinction apply in cases of additional charges of illicit association?
The objective of Law 27.541, in terms of forgiveness, is to provide amnesty for all criminal cases resulting in tax or customs obligations arising from the alleged unlawful act. To such an extent that Article 9 of the aforementioned law specifies that the obligations foreseen that are in the course of administrative discussion or are the subject of an administrative or judicial procedure at the date of publication of this law are included, establishing as a requirement for the effects of extinction, the prior cancellation of the obligations resulting from customs criminal actions, without specifically mentioning the crimes.
The Court, regarding the extinction due to the effect of the previous amnesty law known as “fiscal sincerity” -27.260-, denied the closure of the cases due to extinction when the crime of “criminal association” is imputed together with smuggling, based on: “It should be noted first of all that Article 46, paragraph b), of Law 27.260 establishes the possibility of accessing, based on the fulfillment of certain requirements, the release of “…from all actions…for crimes under the criminal tax law, criminal exchange law, customs law and administrative infractions…", which means that such release would not have been foreseen by the legislator with respect to the criminal action arising from the crime of illicit association… In fact, it is clearly noted that the statement in art. 46, inc. b) of law 24.260, regarding the type of actions susceptible to extinction through the adoption of the exceptional regime ordered by that norm, is exhaustive,… the omission of the crime typified by art. 210 of the Penal Code as a cause for exclusion of the liberatory benefits granted by law 27.260 (see arts. 82 to 84), does not enable the possibility of including that crime in the regime of extinction of the action that is analyzed here". (According to Incident of acceptance to Law 27.260 – case no. 529/2016, Titled: “NN S/INF. LAW 22.415, JNPE No. 6, SEC. No. 11 – FILE No. CPE 529/2016/205/84/CA132- ORDER No. 28.850 – CHAMBER B – ECONOMIC CRIMINAL CHAMBER – 25.3.2019/XNUMX/XNUMX).
The new law – 27.541 –, unlike the previous one, when referring to both the suspension and the extinction against cancellation of tax obligations, does so expressly with respect to tax and customs criminal actions. Specifically, the rule applies amnesty to open tax or customs criminal cases. It does not limit it to “crimes under customs law” as the courts had based on the previous amnesty rule. Therefore, it is eloquent that the legislator sought extinction in all customs criminal cases, as long as the requirement of cancellation of tax obligations is met and without prejudice to the fact that in said open customs criminal cases, there is an accusation in terms of customs law and/or another criminal rule, as may occur with the criminal type of art. 210 of the CP – illicit association. In this sense, if the new regulation does not specify the crimes and refers to all customs criminal actions, the extinction must be applied to all customs criminal cases, without prejudice to the criminal offense charged.
Is there a deadline for exercising this right to termination?
It should be noted that compliance with the requirements and acceptance of this regime must be done before the April 30th 2020 – inclusive –. Such action generates the suspension of tax and customs criminal cases. Extinction takes place once the tax debt has been cancelled.
By: Dr. Guillermo Felipe Coronel, Lawyer specializing in Customs Law
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