The recent enactment of the so-called "tax innocence law" has been presented as a paradigm shift in the relationship between taxpayers and the State. In general terms, the law seeks to consolidate a trust-based approach, providing greater predictability and reducing litigation by establishing the presumption of truthfulness of tax returns filed by taxpayers, as long as they are not challenged by the tax authorities.
However, beyond this laudable objective, the truth is that the finally approved text has failed to introduce modifications that would have a real impact on customs matters, leaving the issue unresolved. It should not be forgotten that customs criminal law has its own particularities that differentiate it from tax criminal law, both in its normative structure and in its logic of prosecution.
Notwithstanding the foregoing, the regulation incorporates a provision in the final part of its Article 40 that deserves special attention. It states that: “To the extent that the presumption of accuracy mentioned in the first paragraph of this article applies, taxpayers are released from all civil action and from any corresponding tax, customs, or administrative offenses.” This provision opens up an area of interpretation that cannot be overlooked.
Indeed, it could be argued that in cases where a sworn statement has not been challenged and has therefore acquired a presumption of accuracy, it could have implications in the area of customs-related criminal law. Thus, in the event of an investigation initiated by the General Directorate of Customs, it could be argued that the presumed validity of the statement limits or even excludes the possibility of charging a crime related to the facts stated therein.
This interpretation could even be extended to ongoing proceedings, insofar as there is a direct connection between the criminal charges and the sworn statement that has become final. At this point, the focus of the analysis will be on determining the causal link between the conduct under investigation and the content of the validated statement. This is not merely a formal matter, but a substantive examination that will require weighing in each case whether the legal presumption is sufficient to neutralize the State's punitive claim.
However, beyond these potential interpretive implications, the fact remains that the law has missed a significant opportunity to introduce at least the most urgent reforms to the customs criminal code. For example, nothing has been said regarding the amounts currently stipulated in Articles 947 and 865, subsection i) of the Customs Code, which are clearly outdated. It suffices to point out that, currently, an irregularity involving merchandise valued at over USD 350 can be classified as smuggling, and if that value exceeds USD 2.000, the conduct could be classified as aggravated smuggling.
For this reason, we want to conclude by celebrating the intention expressed by the President of the Nation at the opening of the ordinary sessions, regarding the idea of moving forward with a reform of the Customs Code that includes the customs criminal regime, seeking its harmonization with the principles of modern criminal law.
In this regard, it is not only necessary to consider new ways of combating what is known as economic crime, but also to avoid the risk of automatic decriminalization or unwanted reductions in sentences resulting from the retroactive application of the more lenient criminal law. That is to say, a reasonable distinction must be made between what warrants punishment as a crime and what merely constitutes an alleged infraction, as the starting point for any modification.
Lawyer. Specialist in Criminal Law from the Universidad Austral. Professor of Customs Criminal Law at various public and private universities. Author and contributor to books and articles on this specialty. Currently, he is a partner at the Durrieu Abogados law firm, in charge of the Customs Criminal Law Department.
