In Cuba, given the need for financial consolidation for its economic financial recovery, Law 73 was approved under the general principle of law. General Tax Procedures Standards were established, defined in Decree-Law 169, where the legal proceeding of the institution is categorically proposed, which has been subject to deviations that lacerate the image of the institution, having the influence of the provisions of circulars that limit and contravene the aforementioned financial consolidation mechanisms, so it is necessary to take control measures so that constitutional violations are not undertaken when legislating tax matters.
The modern State, in order to sustain social expenses, needs financial resources and given the coercive nature of the taxes, the taxes constitute the greatest source of resources since they show the most elaborate and legislative category, the most regulated.
Cuba, in the current economic situation and given the need to be in an international scenario, taking into account the historical background and taking experiences in international practice, developed a transformation of its Tax Administration policy and on August 4, 1994, and within the set of measures aimed at financial consolidation that the country required for its economic recovery, approves Decree Law 73 of the Tax System, this constitutes a stimulus and redistribution mechanism consistent with the dispersion and diverse modalities of economic subjects and is based on a system of tax principles collecting in its articles the fundamental principles of taxation of legality, equity, generality and social justice, is the highest expression of the tax system.
Coupled with this law, a set of norms defined in Decree Law 169 of January 10, 1997 was established where the legal procedure of the National Office of Tax Administration regarding the application of the set of tax obligations in as regards norms and procedures and invariable institutional principles.
In practice, deviations have been made in the legal order, which hampers the conduct of the office and is what we illustrate in the following work.
La aplicación de las leyes tributarias no se escapan a las contradicciones que de una manera u otra afectan a los contribuyentes y es lógico que suceda, pero si somos capaces de rectificar y utilizar otro principios en que se sostiene la Administración Tributaria, que no es más que la justeza, nada pude menoscabar nuestra conducta y nos hace cada día más fuertes y consolidados.
In 1995, the gradual application of Law No. 73 begins, and it is then that we realize the absence of a risk device that forces compliance with the pecuniary and formal regulations of taxpayers, in this year some provinces looking for mechanisms coercively, they applied the Resolution No. 9 of the defunct State Bond Committee dated April 13, 1994, which was designed for the private sector, since its legal basis was constituted by Law No. 998 of 1962 and Law 113 of 1967, by which was inapplicable for the state sector, in this situation it incurred a violation of legality, which it could not accept without damaging the image of the nascent tax Administration, it was then that Resolution No. 46 of 1996 of the Ministry of Finance was issued and prices,in which the framework of action of the aforementioned Resolution No. 9/94 was expanded, in which the state sector was introduced as subjects of these sanctions.
Although the modification or extension or extension within the legal scope is perfectly admissible, since the resolution may change the range of application of other resolutions, it is also true that it supports the aforementioned amended Resolution, they are the aforementioned laws, which were created under the protection of a policy aimed at the private sector and never at the state sector, therefore this procedure is unacceptable by the Tax Administration.
We agree that at this time the law of the General Rules of Tax Procedures did not exist, because although we consider that it should have come to light immediately after Law No. 73 as a complement to it, it was not so, from what we understand It was extremely damaging for this nascent Institution, since its application led to the campaigns of sworn declarations of natural persons, which caused numerous claims even with the low knowledge of the tax culture that existed.
Due to the lack of a sanctioning regime described for tax activities, fines were applied to natural persons who committed tax offenses with incorrect adjustments, as is the case of personal contraventions, which have their legal basis in Decree Law No. 99 of 1987, far from the regulations that have been enacted for tax offenses.
Even after the approval of Decree Law No. 169 of the General Norms and tax procedures, the sanctioning regime was not put into effect, for which sanctions per the legal norms mentioned above persisted, and it was necessary to incorporate successive modalities, as is the case not to allow the fines imposed on natural persons to be doubled, as established by the system of control and collection of fines and personal violations.
On April 28, 1997, Decree Law No. 169 was put into effect, providing for the application of the sanctioning regime one year from its entry into force, with a view to acquiring the necessary tax culture to assimilate these repressive measures..
Decree Law No. 169, in its first transitional provision, empowers the Minister of Finance and Prices to attend the charges and sanctions for a period of one year, however, on February 24, 1999, the Circular is issued. No. 1 of the Head of the ONAT Central Level, trying to regulate some provisions provided for in Articles 102 to 113, both inclusive, referring to infractions and sanctions of Decree Law No. 169, which results in the violation of the hierarchy established in our country for legal provisions, so that the bodies in charge of preserving Socialist legality cannot consider the adaptations of the aforementioned circular with legal force to support the application of an imposed measure.Corresponding in this case to the Attorney General of the Republic to demand the restoration of legality.
On the other hand, in the aforementioned Circular No. 1, amounts of sanctions are established for natural and legal persons, which are within the range established in Decree Law No. 169, which apparently and from the point of view of control This seems the most correct, since it forces the acting authority to impose fines with important appraisals, without having to make any valuation; from the most reasonable point of view is the limitation of the sanctioning framework of Decree Law 169, which is why both violators of legality and those in charge of repressing them are affected, since all provinces and municipalities do not have the same economic conditions, much less taxpayers, who do not receive the same income, even when they carry out the same commercial activity,they do not even have similar behavior in the fulfillment of their fiscal obligations and of all kinds, which causes us to impose a fine with the same amount on a peanut seller and a palatal owner in terms of formal duties, and we are leaving to comply with one of the principles on which the Tax Administration is based, which is the application of social justice.
In the other sections of Circular No. 1, the application of Decree Law No. 169 is also limited, since they oblige us as a percentage to assess the fine that must be imposed, in many cases if it were not for this limitation, it could be up to 50% of the debt, and in other cases, that the analysis so requires, below what is proposed by this Circular, for which we consider this body of law totally unjust and unconstitutional.
On June 30, 1997, Decree Law No. 174 was promulgated, as can be seen long before the regulation for the sanctioning regime, with the aim of legalizing the sanctions that must be imposed on self-employed workers and regulated in the Resolution Joint No. 1 of the MTSS and MFP, under the framework offered by the provisions contained in Decree Law No. 99, of personal violations.
In this legal body, an article is reserved for the Tax Administration to sanction fiscal infractions, in accordance with what is proposed in Decree Law 169, and in this way, to be able to exercise the coercive mechanism to achieve the discipline of natural persons who exercise the I work on my own accord.
When the regulation for the sanctioning regime comes into force, sanctions are still imposed on self-employed workers in accordance with the provisions of the aforementioned Decree-law 174, a matter that results in educational work through the fines imposed, already that the regulation provides for sanctions against all natural persons without distinguishing the activity they carry out, that is, at this moment natural persons are sanctioned by two different legal bodies, with different treatments, since one is in charge of personal contraventions and the Another tax offense, the latter being the one that truly corresponds.
In order to get an idea of the differences between both Decree Laws we expose the contradictions;
|
Decree Law 99 |
Decree Law 169 |
| »Fines double after 30 calendar days | »Fines are not duplicated. |
| »Three business days are given to file an appeal | »Fifteen working days are given to file an appeal for reform. |
| »Violations expire immediately by not proceeding against them, or when already committed, their effects have ceased to exist at the time of verification. | »Tax offenses are sanctioned even when the fact ceases to exist, either by partial or total liquidation. |
| »The enforcement procedure begins after 60 calendar days, counted from the date of imposition of the fine. | »The enforcement procedure can start 15 days after the determination is notified or extend to a term greater than that of the contraventions. |
Even managing to impose sanctions by the corresponding legal body, there remain situations that attempt against internal and external discipline, since the documents that are currently used for the imposition of fines and particularly the OC-1 models (ticket for imposing fines)) that are designed for personal contraventions, and when used for tax offenses, the procedure for claiming, controlling and collecting, are different. That is why the substitution of this document for a specific one, would eliminate these contradictions, as well as achieve a control and collection system of the Tax Administration where it controls and actions on taxpayer elusions.
In addition, Law 73 in Chapter VII of the Land Transport Tax establishes in its articles precisely in Article 32, the tax on property or possession of motor vehicles or animal traction intended for land transport and in Article 33 states that the owner or possessor can pay the aforementioned tax, while in the circular http: // 2006 in its first section it explains that only the natural persons who own the vehicle will be required to pay.
With this work we have tried to demonstrate the inconsistency that occurs in the execution of the Tax Legislation applied throughout its reform that began in 1994, as well as the close link with the sanctions process that is applied under a new system control and collection of tax fines. Therefore, we consider that:
- Law 73 is promulgated as a fundamental taxation mechanism in order to protect the lower income levels. Because there is a sanctioning regime, a circular is approved, which must be a Resolution and contravenes what is defined in Decree Law 169. 1/1999, the amounts of fines are set, leaving aside the range provided by Decree Law 169, it is equal to all taxpayers, municipalities, provinces, violating social justice. Currently, fines are imposed by Decree Law 174/97, having the sanctioning regime in accordance with Decree Law 169/97. The provisions of Law 173 are violated whenever circular 17/06 is applied as regards the payment of the Land Transportation Tax, therefore:
- Take the necessary control measures so that constitutional violations are undertaken when legislating tax matters. Impose sanctions only by the Sanctioning Regime provided in Decree Law 169/1997.
