INTRODUCTION
The analysis of any legal issue related to the amparo trial, is always of transcendental importance through this extraordinary means of defending our rule of law, and the main generator of the control of legality of the acts of the authorities.
Administrative tax protection is, perhaps, one of the most fascinating subjects that are always undergoing evolutions, changes, modifications and updates, since sometimes it changes in a vertiginous way, and when undergoing these changes they tend to be imperfect, since some fall into unconstitutionality and affect the rights of individuals, that is why we appeal the administrative amparo trial, as it is a means of defense through which we enforce our rights against acts of unconstitutionality of the authority, since we are paying under certain laws or administrative rules, does not mean that we agree.
The tax protection is a one hundred percent Mexican institution and recognized worldwide as a means of protecting human rights, it has had a historical development according to the fundamental principles that govern it and taking into account its legal nature.
Its importance in praxis is manifest, however, its legislation, like everything human, is prone to errors that can be easily amended when they are recognized, however praxis has shown that generally, it is preferred to leave them subsumed and continue to act as if they didn't exist.
That is why when I began to read this theory, the tax amparo, aroused a sincere interest in carrying out a more in-depth study on the subject, and as currently it is intended to reform the amparo trial but only on tax matters, I focus to the reform approved by the Chamber of Deputies, which resulted in the choice of this issue to prove the unconstitutionality of the new reform to the judgment of guarantees.
Mention is made of why it is necessary to make modifications to the law, this is due to the social dynamics so it is necessary to make reforms, additions, derogations, even legal abrogations, to adapt the rules of law to the new realities of the conglomerate human. Thus to be able to preserve the subjective public rights contained in the general constitution of the republic.
Returning to the amparo trial in an indispensable fact for the projects of social life that has been transformed with the passage of time.
Thus, the political and economic situation in our country in recent years has suffered a sharp deterioration, especially in the legislative processes regarding the approval of reforms and the establishment of laws; especially in fiscal matters, which is where the government obtains the income for the public treasury.
By reforming the protection in tax matters, the Mexican citizen and companies are left defenseless in the face of excessive or illegal tax charges, which will aggravate the disadvantageous situation faced mainly by merchants, industrialists and service providers in general, in the context of the current financial and economic crisis, committing an unconstitutionality.
1.- CHAMBER OF DEPUTIES
The plenary session of the Chamber of Deputies approved a constitutional reform that establishes that the resolutions of the Supreme Court of Justice of the Nation (SCJN) in fiscal matters will be applicable to all taxpayers and not only in favor of the company or citizen that promoted the amparo trial.
Arguing that currently promoting an amparo against tax laws or provisions has a high cost that can only be assumed by large consortia with specialist offices, which are the only beneficiaries of the favorable resolutions issued by the Court.
This perspective can give us a real panorama of the effects that said reform will generate, since as it is the only efficient means of constitutional control, its exercise will now be limited, which means that the excess of some will harm all. This is serious if we consider that the legislator may impose taxes, sometimes unconstitutional, that cannot be claimed in a democratic state such as Mexico, because although it is true that there will be special rules that will regulate their exercise by individuals, the truth is is that the respective modification what would cause is that in the short term everyone is treated with the degree of irresponsibility that only some have exercised.
It is a social error, a degeneration that the State and legislators propose in the reform that the amounts that have been paid previously to the declaration of invalidity of unconstitutionality should not be returned to the taxpayer because that alters public finances.
2.- THE ADDITION TO ARTICLE 107 OF THE POLITICAL CONSTITUTION OF THE UNITED MEXICAN STATES OF FRACTION VII BIS OF THE POLITICAL CONSTITUTION OF THE UNITED MEXICAN STATES.
"ARTICLE 107 VII BIS. The amparo lawsuits that are brought against laws on tax matters, will have general effects when they are processed collectively or when their importance and significance so warrant it, in the terms and conditions that the regulatory law of articles 103 and 107 of this constitution. These trials will be resolved in a single instance by the plenary session of the supreme court of justice of the nation. "
The judgments issued in the amparo proceedings referred to in this section will have general effects. These must be approved by a law on tax matters and if such a vote is not achieved, the arguments subject to the trial will be dismissed and may not be reviewed except by the plenary session of the supreme court of justice of the nation, in the cases and terms. determined by law.
The declaration of unconstitutionality to which this section refers will not have retroactive effects.
The only thing that is going to cause is that more companies close and emigrate to other countries and Mexico is on the ground internationally; since taxpayers, large and small, will be left in a state of total defenselessness as they cannot defend their constitutional guarantees against the collection of illegal taxes, and that will generate higher unemployment due to not being able to finance the high tax costs and therefore, higher crime.
The reform itself deforms the constitution itself, since it violates the dogmatic part of our individual guarantees in articles 1, 14, 16, 31, section IV.
The guarantee of equality will be violated because a distinction and restriction will be made for access to the amparo trial in tax matters, since we must not forget that individual guarantees must be respected in all legal matters, so when giving a different treatment in Tax matter is unequal and discriminatory by itself, especially when we are all taxpayers, to a greater or lesser degree.
3.- ARTICLE 107 FRACTION VII OF THE POLITICAL CONSTITUTION OF THE UNITED MEXICAN STATES
The proposed amendment to article 107 of the Constitution goes against these principles because:
It monopolizes the amparo action. Thus, it eradicates individual protection, preventing the governed from defending itself. This contravenes international human rights law.
The non-restitution proposal destroys the fundamental and universal principle of law, consisting in that, with respect to all damage caused by an illegal act - such as an unconstitutional law - its reparation proceeds.
The monopoly of the action is not limited only to the case of tax laws, which are those that establish contributions, but would include any law that is identified as fiscal.
It will also apply with respect to any violation of the constitution by a fiscal law and not only in the case of violation of the guarantees of tax justice established in article 31, section IV of the Constitution.
The power that this formula would give the government (be it federal or local) to temporarily use unconstitutional laws that violate any guarantees established in the constitution is exorbitant and would violate any notion of legal security. Not even in criminal matters would there be restorative protection.
The text approved by the H. Chamber of Deputies, indicates that the sentences that had been pronounced previously will be revoked. (understand those obtained by a complainant in an individual amparo, when the Supreme Court of Justice exercises its power of attraction and deems the opposite to what is resolved by a district judge or by a collegiate court, which would violate the principle of thing judged). In this regard, it is to be considered that with this reform there would be an attack on the guarantee of legal security, at the same time that the principle of res judicata would be nugatory in the protection against tax laws.
Considering the qualified majority of eight votes of Supreme Court ministers required by the proposal, in order for a law found to be unconstitutional by the simple majority of the ministers to be annulled, there would be confusion between the figures of protection and the actions of unconstitutionality, their purposes and legal effects of both figures.
It should be added that the proposal is based on the false premise that from the perspective of comparative law, the Mexican tax protection is an anomaly, this is true; Individual action against unconstitutional tax laws with restorative effects is equally enshrined in many advanced countries, including the United States of America and Germany.
If successful, the proposed reform would leave the Mexican government with fewer rights to constitutional justice than the people of our main trading partner, the United States of America. Such legal backsliding is unacceptable.
4.- VIOLATION OF ARTICLE 14 CONSTITUTIONAL
It also violates article 14 of the Constitution which provides that "no law shall be given retroactive effect to the detriment of any person"
Therefore, by not returning the illegal taxes, it will obviously be against this principle since the retroactive effect is not given for the benefit of the governed, but in our total detriment by not returning the amounts unduly paid, that is, a total theft if you can do anything.
5.- VIOLATION OF ARTICLE 17 CONSTITUTIONAL
It violates article 17 of the Constitution, which deals with the administration of complete justice, it violates it because in this type of protection, there will be no type of suspension, neither prior nor definitive.
That is, the tax authorities will continue to collect, execute and seize taxes while the trial process lasts, which obviously will leave us in a total state of defenselessness by not being able to stop or avoid in any way the damages that they continue to cause us, which will Useless protection in case it is granted.
It violates the very object of the amparo lawsuit, which is to restore the governed to the enjoyment of the violated guarantee, restoring things to the state they were before the violation, so that by not returning the taxes collected improperly, it could not restore the governed its legal guarantees.
6.- VIOLATION OF ARTICLE 31 CONSTITUTIONAL FRACTION IV.
Violating article 31, sections IV of the Constitution, which “provides that all Mexicans are obliged to contribute to public spending of the federation, as well as the federal district or the state and municipality in which they reside, in the proportional and equitable manner that they provide. laws."
Well, it is evident that 90% of all taxes are unconstitutional because they are not proportional to our economic capacity; far from fair.
7.- CONCLUSION
Social dynamics imposes the need to make reforms, addictions, derogations, even legal abrogations, in order to adapt the rules of law to the new realities of the human conglomerate.
On the other hand, safeguarding human rights is generating important legal innovations that preserve the subjective public rights contained in the general constitution of the republic.
The man is a legal person by the fact of existing, and as a person he has a series of rights.
There is no doubt that the sources of our individual guarantees is the idea of human rights.
We can say that the amparo trial is an indispensable fact for social life projects that has been transformed over time.
Due to the economic requirements, social pressures and the political upheavals of the country and through these characteristics in the fundamental rights, citizens assert their rights against the power of the state, drawing the limits of its action against individuals. And that it consists of respect for the rights of man, which in turn are constituted by the power of individuals to enjoy equality, freedom, property and security.
The political situation in our country in recent years has suffered a sharp deterioration, especially in the legislative process regarding the approval of reforms and the establishment of laws.
For this reason and as an important tax reform is approaching, it is necessary, once approved, to carry out a comprehensive and systematic analysis of which articles, laws and codes, in tax matters, constitutionally affect the governed and taxpayers, that is, those that do not comply with the constitutional principles of proportionality, equity, legality, reserve of law and use or destination of the contribution; to be able to file indirect protection against laws, in a timely manner.
The reform that is made to the amparo trial by adding it to article 107, section VII Bis, would be like removing much of the essence of this means of protection, I am referring to the principle of relativity of the amparo also known as the otero formula.
Besides that I think that for that there is the action of unconstitutionality, since the amparo is the means of protection consecrated for those aspects.
It should be noted that the collection of unconstitutional taxes will be allowed, since the executor would not have retroactive effects and neither would suspension of the act claimed.
Since it leaves Mexican citizens and companies defenseless in the face of excessive or illegal tax charges, which aggravates the advantageous situation faced mainly by industrial merchants and service providers in general, in the context of the current financial and economic crisis.
Because if the protection is won, they will not return the money, it is like not having had protection.
I believe that it is an extremely negative reform initiative that directly affects the institution of the amparo trial.
It is a pity that this reform was approved without consulting civil society.
With this approval, they have deprived us of defense mechanisms against tax laws to achieve the restitution of individual guarantees that have been violated.
The only thing that I consider and believe about this "constitutional" reform is that it is totally unconstitutional.
8.- BIBLIOGRAPHY
1.-V. Castro Juventino, guarantees and protection, thirteenth edition, Mexico, Porrúa editorial
2-Castillo Chávez Raúl, theoretical practical treatise on the amparo trial, second edition, Mexico, Porrúa editorial
3.-Gonzalez Cosió, the amparo and its reforms, Mexico 2000 edition, Oxford editorial
4.-Political Constitution of the United Mexican States, editorial trilla, Mexico, 2010
5.-www.senado.gob.mx
6.-Agenda de amparo 2009. Editorial ediciones fiscal isef.
7.-Supreme Court Of Justice Of The Nation, manual of the amparo trial
www.senado.gob.mx.com
AGENDA OF AMPARO 2009
Idem page 28
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