Precautionary attachment in tax matters in mexico

INTRODUCTION

For all The tax burden thus becomes, in the minds of many, a great sacrifice, of little or no benefit, personal and social, origin of abuse. This situation is intensified by the complex and for the most indecipherable set of rules that govern collection.

It is normal for tax issues to be a concern for the taxpayer, but that does not mean that those who approach it for the first time observe it with fear and little sympathy.

In the present work, I am referring to the legality of a tax norm to later incur the possible illegality for infractions to those.

As we all know, the most important resources that the well-known public treasury state obtains come from fiscal or tax revenues. Which are established through the power that our legislators have to create laws that impose burdens on the governed who carry out the activities provided for in the law; Being a tax optional power.

This is done in order to fulfill what is entrusted (the collective need).

The state justifies the collection of the public treasury, saying that it is done with the purpose of protecting the collective interest, although sometimes it is not certain that there is indeed an interest that the treasury must protect and perhaps its only interest is to ensure the same, as is clear from the provisions of articles 41 fraction II and 145 of the federal prosecutor's code, where it provides for the figure of the precautionary embargo.

The seizure is not necessarily an act irreparably consummated for the purposes of which it is the subject of a suspensive measure in matters of judgment of guarantees, in accordance with the criteria mentioned herein, the need to grant a suspensive measure in strict observance of two concepts of transcendental importance and procedural requirements thereof, the appearance of good law and danger in delay.

All this because there is no fixed time for the taxpayer to distort the facts considered by the authority. Likewise, considering this and other reasoning, it is necessary to analyze the constitutionality of the precautionary embargo established in the federation's fiscal code. Indicating the constitutional limits to which the tax power of the authority must be subject, as well as any act of authority issued by the tax law, while continuing to highlight the supremacy of the political constitution of the United Mexican States over federal laws or codes., such is the case of the federation tax code.

1.- EMBARGO

Tax legislation in Mexico authorizes the precautionary embargo on assets or negotiations of the taxpayer, with the simple fact that the tax authority believes that it is trying to evade its obligation to the treasury or because it considers that there are risks that the taxpayer alienates or expand your assets.

These assumptions are only based on uncertain performance where the authority does not even verify it and does not give the affected person time to demonstrate otherwise.

Taking the embargo even without determining the tax credit or verifying that it is payable, which leaves the affected party in a defenseless state; causing great insecurity and legal uncertainty to the taxpayer, since it is not known with certainty the amount or amount of what is owed and if it is actually owed. And despite this, the authority seizes the goods it deems appropriate, finding in said procedure a lack of legality and thereby generating flaws in the procedure.

In addition, as a result of the act of the authority, other obligations that the taxpayer must fulfill are affected, thus achieving an accumulation of breaches of obligations and generating more problems for the citizen with the treasury.

Although by affecting the taxpayer, the country is also affected, because the activities that generate wealth are stopped in many aspects of the country.

Analyze and explain the topics that serve to deepen the study of the central theme of this research essay; in order to have a broad overview of the entire process and the steps that a prosecutor must follow. In addition to studying the constitutional foundations of contributions and the power of the tax authority known as tax authority. And establish the limits in which it is located constrained.

2.- EVOLUTION OF THE PRECAUTIONARY EMBARGO ESTABLISHED IN THE FISCAL CODE OF THE FEDERATION.

The general law on tax payments published on December 31, 1937 is the immediate legislative antecedent of the fiscal code of the federation in its substantive and administrative character. As well as the tax justice law published on January 1, 1937 in its procedural nature.

Regarding the embargo, we can comment that among the forms of guarantees contemplated in article 12 fraction v general law on fiscal perceptions of the aforementioned federation, we find conventional kidnapping in the administrative, negotiations and real estate channels, which could carry out in tax matters to ensure the public purse, with the previous valuation before the tax office that in turn had to qualify the guarantee.

The Fiscal Code of the Federation in its first version appeared published in the official journal of the federation on December 31, 1938 and which entered into force on January 1, 1939, it was in turn replaced by the fiscal code published on 30 December 1966, which entered into force on April 1, 1967; and the one that is still in force today is published on December 31, 1981, which came into effect on October 1, 1982, not to mention each of the reforms that the previous codes have been subject to. But only analyze what corresponds to the topic.

3.- REFORMS BETWEEN 1936 AND 1966

The first fiscal code of the federation already mentioned, indicates an entire administrative procedure of execution, as well as the administrative resources, the administrative embargo was in the third title of the unofficial phase of the tax procedure, specifically, in its third chapter, under the name of the executions of the administrative resolutions in fiscal matter.

The reference code refers to the precautionary seizure only in its article 90, which mentions that it may be carried out in the same act of request with the following reason: “whenever there is danger of the debtor being absent or transferring or hide your assets, whether they are credits from taxes, duties, products or uses ”.

From the aforementioned, it can be observed that it was not stated in the text whether the embargo could be carried out before the credit was determined or after it, but in the same article it is mentioned that the order to carry out this embargo will be included in expressly stated in the writ of execution referred to in article 86 of the same, so when studying this precept it is concluded that this embargo is only carried out after the determination and as indicated, in the same act of the request, which I consider gave more legal security to the taxpayer.

This is confirmed with the thesis of jurisprudence "where the highest court establishes respect for the code under study, that the precautionary embargo can only be applied when there has previously been a determination or quantification of the obligation, even in the event that the other requirements for the origin of that embargo are fulfilled, such as the alleged concealment of assets and in the case of not observing the foregoing, the laws of the procedure and the guarantees of the complainant are being violated so that this act could be Actionable on the amparo route.

It is important to note that the embargo according to the 1939 code could be carried out even for credits derived from products, as previously exposed, unlike what happens in the current one where products are not contemplated within those considered as credits This is how the tax code in force in its article 145 last paragraph, prohibits the carrying out of an administrative execution procedure to collect credits derived from products.

Regarding the 1939 tax code, in addition to the above and according to the topic, the following stands out:

The precautionary embargo is established, it makes mention of the administrative seizure or insurance of assets in the administrative way that can be equal to the final administrative embargo in force, since it is carried out when the tax credit becomes payable and this is past the term three business days after the request. Contained in article 91 section I of this code.

In article 12 section V, conventional kidnapping is regulated; where it is considered as one of the guarantees that can be granted to ensure the interests of the treasury and that can be compared to the embargo in the administrative way.

After the payment request, three days are given so that they can carry out the administrative kidnapping, that is, that is the payment period, unlike the 45 days that are given in the current one in terms of determining the tax authority.

Regarding the precautionary embargo, it is carried out for lack of declarations or for not meeting requirements, in both cases with the determinations established therein according to the current tax code; no regulation is made in the 1939 code in what refers to a precautionary embargo, it is only considered as corresponding infractions, therefore a sanction.

4.-REFORMS BETWEEN 1967 AND 1982

On April 1, 1967, a new federation tax code entered into force, with reforms regarding the enforcement procedure, regulated in article 112.

To enter the analysis of article 112 of the code we must make some notes;

v Article 108 establishes the provenance of the administrative enforcement procedure for credits not paid within the legal term.

v Article 110 establishes the term of three days to make the payment of the tax credit, that is, so that the seizure of assets can be made, the same term as in the law that reforms, adds and repeals various legal provisions, published in the official journal of the federation on December 31, 1979, the same commented article was changed through a reform, which entered into force on January 1, 1980, leaving the term of five days to be able to carry out the Seizure within the administration of execution procedure

v As for the collection procedure, the solidary person is responsible, who is given a term of 15 days to make the payment. Unlike the previous code that does not indicate an end for the joint debtor.

Article 112 of the fiscal code of the federation indicates the causes by which it may carry out the administrative seizure or insurance of the assets in the administrative way of execution and which are the following:

I.- After the period of three days after the request for payment, if the debtor has not covered the credit in charge.

II.- at the request of the interested party to guarantee a tax credit.

III.- When, in the opinion of the tax authority, there is a danger that the obligor may be absent, transfer or conceal his assets or carry out any maneuver tending to leave the credit unpaid. In these cases, if the credit is covered within the legal terms, the debtor will not be obliged to pay the execution costs.

IV.- When, when carrying out inspection acts in negotiations, vehicles or objects, whose possession, production and exploitation, capture, transport and import must be manifested to the fiscal authorities or authorized by them, without having complied with the respective obligation.

V.- in the other cases that the laws prevent.

As can be seen from the indicated cases, the name of administrative kidnapping of execution is generalized, but also in the case of an embargo that can be equated to the precautionary embargo, as well as the conventional one in the case of guaranteeing the fiscal interest.

The causes that could be considered as a precautionary embargo are fractions III and IV since they can materialize without having determined the tax credit.

"The third fraction finds its antecedent in article 90, but the power to practice the assurance of assets 'precautionary embargo'…"

It can be seen that, like the 1939 code, this code also grants the term of three subsequent days to cover the tax credits determined by the authority, and if it is not carried out, then administrative kidnapping can be used, but the reform that this code was made in article 112, through which several tax provisions, which were published in the Official Gazette of the Federation on December 31, 1979, were repealed and repealed, was to extend the term to five days.

For the purposes of the topic, it is considered important to give more support to the fact that the precautionary embargo can be carried out already, before the determination of a tax credit, as follows: “The precautionary seizure will no longer be conditioned on the enforceability of the tax credit or the requirement, but can be exercised previously. So a principle of equity is established, whereby if the debtor does after having carried out the kidnapping but within the legal term, pays the tax credit at his expense, there will be no obligation to cover the cost of the execution ”

Although this code authorizes to be able to carry out a precautionary embargo without having determined the tax credit, as previously demonstrated, even so, there is a term of thirty days to carry out the determination, which is much less than the term that they grant today. So with this, the damage caused to the taxpayer was somewhat lightened, since the term granted in the current code and studied later, is too long, according to article 145 of the same.

Section V of Article 112 leaves open the possibility for other laws to indicate different cases of kidnapping practices.

Regarding the precautionary embargo that is authorized in case of lack of declarations or requirements, there was no regulation, as in the code previously studied and it is considered as infractions that consequently correspond to sanction.

5.- REFORMS UNTIL TODAY

The reforms have been announced as a response to restructure the tax system, modernize and improve the efficiency of its administration and the level of taxpayer compliance.

The precautionary embargo is regulated from the publication of the current code and to date in articles 41 section II and 145 of the federal tax code; through which the precautionary embargo is authorized.

Since the possibility is considered that with a single requirement the indicated means can be expanded, in addition to the fact that although the presentation of the declarations is not complied with, the tax authorities have a period of two months to exercise their powers of verification so that the precautionary garnishment is not without effect, which could also happen if the taxpayer complies with the requirement.

Article 145 of the tax code violates legal security guarantees; This is due to the fact that the private person is deprived of the term that he has to make the payment of the determined fiscal credit, as well as the hearing, since the possibilities of the affected person to make use of the means of defense that the law grants you.

As in the previous reforms, there are no changes in fiscal policy, the fiscal articles will continue to be reformed, as many times as necessary, if the necessary aspect is changed so that the guarantees established in our charter do not continue to be violated, only with the purpose of escaping the declarations of unconstitutionality of the highest court.

6.- Article 41, sections I and II of the Federal Tax Code.

v The insurance of assets is foreseen as a precautionary measure when presumed tax debts are determined.

v It is established that the insured assets subject to attachment may be deposited with the taxpayer.

v It is also considered the obligation of the depositary to report monthly to the tax authority on the assets under custody.

7.- Article 145-A of the Federal Tax Code.

v It is established that the accounts will only be mobilized up to the amount of the determined tax credit.

v a deadline of two business days counted from the mobilization for the financial entities or cooperative savings and loans companies to report to the tax authority on the transfer of funds

v made once the tax credits have been final and the corresponding order is notified to the corresponding entity or company

8.- rules to make effective the seized goods for the payment of tax credits.

Once they are firm:

v the tax authority will order the financial entity to transfer the resources up to the amount of the tax credit.

v The mentioned entities must inform the SAT, within three days, the amount transferred.

v If the interest is guaranteed in any way other than the money deposit, financial guarantee or bond granted by a credit institution, the authority will require the taxpayer to pay the tax credit within five days.

v In case of not paying, the authority may make the guarantee effective or the seizure of accounts, in this case request the transfer of resources. Once the transfers have been made, the authority must, in three days, release the guarantee.

v If the tax interest is not guaranteed, the authority may freeze the accounts and request the transfer of resources.

Legal basis: Article 156-TER of the CFF.

9.- CLASSES OF EMBARGOES:

Precautionary attachment, and definitive attachment.

The precautionary embargo, your name specifies it, is an embargo of provisional, preparatory, not definitive, reason for which it is only appropriate in certain exceptional cases, justifying its application in the need for the Treasury to ensure the tax interest at your expense immediately. In contrast, the definitive embargo suffers from being firm.

The precautionary embargo will be without effect if the authority does not issue, within the terms referred to in articles 46-A and 48 of this code in the case of sections II and III and 18 months in that of section I, counted from the date it was practiced, resolution in which it determines tax credits. If the authority determines them within the established deadlines, the precautionary seizure will become definitive and the administrative procedure of execution will continue in accordance with the provisions, and the resolution and its notification must be recorded in the execution file. If the individual guarantees the tax interest under the terms of article 141, the embargo will be lifted.

Definitive Garnishment. In one way or another, it has already been clarified that it is a definitive embargo, which, in contrast to the precautionary one, must be conceptualized as one that is a consequence of the existence of a duly determined and settled tax credit. The same extremes apply to this type of embargo as conductive as to the precautionary one, which is why, in order to avoid useless repetitions, I ask the reader to have the aforementioned comments reproduced in this space.

The precautionary seizure and the definitive seizure, like all acts of authority, must be legally founded and motivated, although this requirement is not expressly stated in article 145 of the CFF, the need for its compliance with what is literally regulated by Article 38 section III of the same law, a legal precept that regulates the elements that must be observed so that an administrative act that must be notified to a private individual is legal. In this regard, the reference article indicates the following:

“Article 38. The administrative acts that must be notified must have at least the following requirements:

I. Test in writing.

II. Report the issuing authority.

III. Be founded and motivated and express the resolution, object or purpose in question.

IV. Hold the signature of the competent official and, where appropriate, the name or names of the people to whom it is addressed. When the name of the person to whom it is addressed is ignored, sufficient data will be indicated to allow identification.

In the case of administrative resolutions that determine joint liability, the legal cause of the liability will also be indicated. "

10.- ASSURANCE OF ACCOUNTING

The visitors will be able to assure the accounting with stamps or marks in documents, Goods, or in furniture or offices, and leave them in deposit to the visited Previous obtaining certified copies. This must be done without impeding the performance of the taxpayer's activities, and a partial Act must be drawn up.

The assurance can only be made in the following cases:

When there is a danger that the visitor is absent or may prevent the start or development of the home visit.

When correspondence, documentation or goods that are not registered in accounting are found.

Goods or merchandise are discovered whose importation, possession, production, exploitation, capture or transport, should have been manifested to or authorized by the tax authorities, without having complied with that obligation.

If the taxpayer does not demonstrate that he is registered in the Federal Taxpayer Registry, or does not show the documents that protect the legal possession or ownership of the goods, he may be subject to Precautionary attachment on the goods or the negotiation, in order to ensure the tax interest.

The embargo will be canceled once the taxpayer is registered in the Federal Taxpayer Registry, or where appropriate, proves the Legal possession or ownership of the merchandise

11.- CONCLUSION

From the humanistic point of view as a taxpayer it is important to know what are the rights and obligations, since at all times, there is a legal relationship with the treasury; mainly if a profession is exercised, or whether an institution or company is formed, or the simple fact of being Mexican forces us in some way to be more pending in the payment of taxes, contributions, rights, etc. so as not to incur offenses that warrant sanction by an active person or the State, one of the sanctions being the precautionary embargo

El ciudadano para solucionar la afectación que se le ocasiona debido a la institución del embargo precautorio, acude a los órganos superiores a interponer el juicio de garantías, contra el acto de la autoridad fiscal que sería el embargo; para que a través de este órgano superior se cumpla con las garantías individuales otorgadas en la constitución política de los estados unidos mexicanos que tiene el carácter de ley suprema y ninguna otra ley o código debe contravenir a lo establecido en la misma; Trayendo como consecuencia la carga excesiva de trabajo a los jueces y tribunales que tienen que resolver la cuestión planteada. Además de que con eso se incrementa la falta de credibilidad en las instituciones de nuestro país.

The foregoing can be corrected with a perfect application of the constitutional principles established in the Magna Carta, from which the substantive and adjective laws of the process that govern the problem posed are derived.

For this reason, it is necessary to analyze the instruments provided by the precautionary embargo, embodied in the fiscal code of the federation, and at the same time the acts that affect the process and which are governed by constitutional principles. And so demonstrate that there are gaps in the law, demonstrating that the legislators are not interested in the welfare of the people, but are there for personal interests, perhaps increasing their wealth and with this I suggest that our laws should be reformed.

12.- BIBLIOGRAPHY

* Rodríguez lobato Raúl, tax law, second edition, Mexico 2009, Oxford editorial. P. 159.

* idem, page 164.

* amparo agenda, Mexico 2009, editorial ediciones fiscal isef.

* fiscal agenda, Mexico 2009, editorial tax editions isef.

* García Máynez Eduardo, introduction to the study of law, 38th ed., Mexico, Porrúa, 1986.

* Laws and codes of Mexico, tax code of the publishing federation Porrúa, Mexico 1967.

* Andrade Manuel, fiscal code of the federation, customs information of Mexico sa de cv México

* Precautionary embargo on tax legislation, fifth epoch, second chamber, Judicial Seminar of the Federation, volume LXXXIX, August 1946, p. 2284

Federation tax code and its reforms. Volume II. Ministry of Finance and Public Credit, second edition, contains reforms from 1967 to 1980.

Andrade Manuel, fiscal code of the federation, customs information of México sa de cv México df1954 p. 1089

Precautionary embargo on tax legislation, fifth epoch, second chamber, judicial seminar of the federation, volume LXXXIX, August 1946, p. 2284