By interpretation of legal norms, we must understand the intellectual activity tending to establish its true meaning, that is why in this chapter called the interpretation of tax law, I indicate what are the methods of interpretation of legal norms, looking for the true meaning of their expressions; likewise, the doctrinal criteria for the interpretation of tax laws, to resolve cases that offer difficulties in interpreting a tax law; in the same way, the principles and their impact on the constitutional interpretation, which are derived from the content of the norms established in the country's political constitution, and that the fiscal activity of the state must be subject to said principles; and the advantages of a proper interpretation,mentioning that any method of legal interpretation can be used, as long as it is not contrary to the nature of tax law.
1. The interpretation of the tax law
At present, what is related to the interpretation of the tax law is finally a peaceful question insofar as the problems concerning it are resolved in the same way as is done in the rest of the legal system. In other words, the tax law is interpreted according to the same principles and criteria that generally govern legal interpretation. Therefore, you are not facing a subject to which you are offered sui generis solutions and in an exceptional way.
Legal interpretation, broadly speaking, is the action and effect of interpreting a norm, of explaining or clarifying the meaning of a thing; Legally, interpretation is important (since laws, even tax laws, are due to legal interpretation), which is given to the law by jurisprudence and doctrine, as well as that made of legal acts in general and of contracts and wills in particular, since sometimes it happens that the literal meaning of the concepts is doubtful or does not coincide with what it presumes to have been the true intention of the contracting parties or of the testator; Interpretation essential to make, as is fair, the will of the interested parties prevail over words.
A law or norm is interpreted when its meaning is sought and clarified or unraveled by analyzing the words that express it.
Due to the autonomy of tax law, its interpretation also presents special characteristics, mainly because it does not regulate relationships between individuals, but rather governs the relationships of the tax administration with individuals, therefore its rules participate in the nature of public law. In addition, considering that tax law encompasses principles and norms of both public and private law, from the latter, because it encumbers the legal relationships that derive from it, hence, it is sometimes necessary to interpret the aforementioned public tax law, frequently to private law rules, which together need to be interpreted for tax purposes.
In this sense, the Supreme Court of Justice of the Nation has issued the Jurisprudence thesis called “Fiscal Norms. They Are Susceptible To Interpretation ”, which provides:
• Although it is true that the Tax Code of the Federation establishes that the tax law regulations that establish charges to individuals and those that indicate exceptions to them will be strictly applied, it is also true that said strict sense refers to the application of the tax burdens without distinction, as long as they fit into the hypotheses or assumptions contained in the precepts to be applied, but at no time does it refer to the fact that a fiscal norm cannot be legally interpreted, since precisely the Science of Law teaches that the literal content of the rule, or its legal interpretation when there is obscurity, since such interpretation helps to specify the correct meaning of certain terms or signs.
1.1. Methods of Interpretation and Integration of Legal Norms
The issue regarding the interpretation of legal norms and the assessment of its various methods has undoubtedly been one of the most aided by the doctrine and on which the most conflicting positions have been expressed.
It is up to the General Theory of Law to address the study of the nature and methods to be used in the work of interpreting the law. This has extended its letter of naturalization to a series of methods that are recognized as suitable tools to unravel the meaning and value of the law.
We must understand that the interpretation of tax laws is not an easy task but it is an activity that must be carried out taking into account the sources of interpretation, as well as the methods that exist to interpret them. To avoid involuntary tax crimes due to a misinterpretation of the rule.
The legal technique has developed, in the course of time, the methods of interpretation of legal norms, which can be used by tax law:
Exegetical method, is essentially based on taking into account only the literal or grammatical meaning of the words used in the expression of the legal norm. It is the method used by the followers of the school of absolutist theory. In this sense, we have that in our Mexican tax law this method is adopted for the regulations that establish charges or exceptions to individuals, as well as those that refer to infractions and sanctions. In addition, it must be taken into account that there is no obligation to contribute, without a law expressly establishing it.
This method consists of unraveling the meaning of the words through which the will of the legislator is manifested, therefore the law is considered as a series of words that it submits to analysis in terms of grammatical rules.
To understand the fiscal rules, analyze how the language is structured, how the punctuation and accent marks were placed, and everything that is related to the language, in order to understand the meaning in which the rule is intended to be understood.
Logical or conceptual method, is the one by means of which the purpose of the rule is sought, that is, the true meaning of its issuance. It is the method used by the followers of the school of subjectivist theory.
The logical method consists in relating the various provisions of the same normative body as parts of a whole so that harmony arises.
This tries to find out what the legislator wanted to say, and to achieve it, the thought of the same is reconstructed, going to sources such as the explanatory statement, the circumstances that gave rise to it, among other things.
Historical or evolutionary method, it is based on finding the true meaning of the law, investigating its antecedents, its genesis, that is, the needs that gave rise to it and its evolution.
It is evident that the law as a cultural product is inserted in a specific historical context that to some extent conditions its content, hence, for the supporters of this method, it is necessary, in interpretive work, to know the historical moment with its circumstances such as period conditions, debates within commissions and in the parliamentary sphere, and explanations, all of which are valuable elements for knowing the will of the legislator.
Systematic method, according to this method, the legal norm must be interpreted with the entire group of norms that constitute the set of which it forms part, which are duly linked by the affinity derived from them, and are related to each other, forming part of a coherent and organic system; from which the consequent practice is derived that when interpreting a norm it is not necessary to analyze it in isolation, but as part of a whole that is the legal system to which it belongs, the interpretation must be harmonious. It is the method used by the followers of the school of Objectivist theory.
In this regard, the Supreme Court of Justice of the Nation has issued the following theses:
"Tax laws. The systematic interpretation of its rules does not contravene the principles of interpretation and strict application and legality that govern in this matter "
• Although it is true that the interpretation and application of the tax rules is strict, it is also true that it would be impossible to interpret each provision considering it outside the regulatory context of which it is part, since if so, any strict attempt at interpretation would be unsuccessful for determine the meaning and scope of the rules. Every norm requires an interpretation, even literal, regardless of its rank, be it constitutional, legal, regulatory, contractual or of any other nature, and a principle of hermeneutics requires the interpretation of the legal precepts according to the others that make up the legal system to which they belong, and according to the other legal systems that make up a certain legal regime;Without this implying that a strict interpretation in tax matters, but at the end of the day interpretation, will oblige the taxpayer of the tax rule to pay contributions not established in the tax laws. Consequently, interrelated the norms in a systematic way does not violate the principle of legality that prevails in said matter, in accordance with article 31, section IV, constitutional.
"Tax laws. Sending an order to other tax matters, for purposes of interpretation of its rules, can be done while there is no specific provision that prohibits "
• To determine the content and scope of a provision is necessary to see others who are related without For this, an express referral is necessary, that is, as long as there is no specific provision that prohibits referral to other provisions of the same or other legal systems, such referral can be made.
Economic method, this method consists of looking for an economic meaning to the fiscal legal norms, since their issuance derives from an economic reality, which is the essential purpose of the content of the legal norm of a fiscal nature, that is to regulate the way in which the Individuals must provide the financial resources that the State requires for the satisfaction of its powers.
For Antonio Jiménez González, it is not possible to speak of an economic interpretation of legal norms, since every interpretation of the legal system is legal, however, there is a very marked current within the tax dogmatics that postulates the need to introduce or privilege the criteria economic factors in interpretive work, taking into account the prevailing economic nature of the tax phenomenon.
Analogical interpretation is banished as a method of interpreting tax laws, because its elasticity would allow a provision to be extended to situations that it was not the intention of the legislator to tax and that would be affected by its mere resemblance to the situation actually foreseen. Margain Manautou.
By virtue of the analogy supposing that there is a situation not foreseen by the law because if it is applied the principle of legality is violated, hence Sergio de la Garza says that the so-called analogical interpretation is not interpretation but integration.
Notwithstanding the foregoing, the analogy can be used as long as it does not give rise to creating, modifying or extinguishing the tax obligation or some of its essential elements of the tax. It can be applied when the tax obligation has already arisen, by virtue of the fact that the subject is in the legal situation of fact.
It should be noted that it would be totally a mistake to think that all tax regulations should be interpreted strictly, in a very isolated way from the other provisions that make up a Law; By virtue of the fact that the correct thing is that it must be interpreted in a harmonious way, it means that they must be related to each other, so as not to give an isolated norm an undue scope, simply because the norm has used a certain word without making a distinction.
We even find in Article 5 of the Fiscal Code of the Federation, that what corresponds to the object (taxable event), subject, base, rate or rate and payment period, will be strictly applied, as well as those that indicate exceptions and sanctions to the themselves. The same fifth Article mentioned indicates that: "The other fiscal provisions will be interpreted by applying any method of legal interpretation, and that in the absence of an express fiscal norm, the provisions of common fiscal law will be additionally applied, as long as this application is not contrary to the very nature of tax law.
The interpretation of the law will always be and must attend to it, otherwise, the principle of legality, established in Article 31, section IV of the Constitution, would be violated.
The interpretation of the tax rule consists of clearly defining the meaning of it, there are no equivalences (analogies), since due to legal protection (principle of strict application), all tax rules, in their entirety, must as Regarding the elements or configurative variables of the contribution, be fully identified, in an abstract, impersonal and general way.
Now, in the case of the integration of legal norms, the possibility of recourse to common law in the terms prescribed in the aforementioned article 5 of the Fiscal Code of the Federation does not constitute but the legal consecration of one of the most helpful formulas of self-integration. legal.
The purpose of legal integration is to overcome or fill in the shortcomings that the legal system shows in order for it to be able to offer solutions to specific cases.
In this topic, two large blocks of procedures or techniques can be distinguished for this purpose.
One is the heterointegrative method, it consists of filling the gap suffered by a certain legal order from solutions imported from a different legal system to that one, which is used for its prestige or leadership or for its proximity to it.
Heterointegration nowadays occurs through the possibility of one part of the legal system going to another part of it in order to make use of it and fill the gaps in the first. Therefore, this is now emerging as a procedure that does not go beyond the legal system, but occurs from one part of it with respect to another, for example, the gaps in commercial law fill them through the application of civil law.
Another is the self-integrative method, this presupposes the sufficiency of the legal system to be sufficient for itself and through its own dynamics to fill the legal gaps.
This method is based mainly on the analogy, which consists in applying a legal norm to a case not foreseen in it, by virtue of the particular relationship of similarity that exists between it and the one contemplated by the norm. It is worth mentioning that, it is not enough that both cases resemble each other, but it is necessary that the same reasons that support or justify the treatment agreed by the legislator is given to the intended case, are the same ones that support the provision of the same treatment of the unforeseen event.
This has been enshrined in the maxim that reads, "where the same reason exists, the same provision should apply."
Although in matters of substantive tax law there is no room for analogical procedures, this by virtue of giving priority in such tax area the principle of formal reservation of law in the terms of article 31 section IV of the Constitution, however, in the rest of the sectors of the phenomenon tax, that is, those that fall under the regulation of administrative, procedural law, etc., the analogy will have a place to the extent that each of these disciplines welcomes it, therefore the permits and restrictions facing such institution in matters Tax will come from the domains of each of these disciplines and not strictly from tax law.
1.2. Doctrinal Criteria for the Interpretation of Tax Laws
At present, it is common place, both in the doctrine and in the legislation of the countries related to our legal tradition, to proclaim in an absolute way that if the tax law constitutes a plot like the rest of those that make up the legal system, therefore Therefore, there is no reason why the problems or questions that arise within it demand solutions other than those that the General Theory of Law offers to the Law as a whole.
In the tax doctrine, three basic criteria are mentioned to resolve cases that specifically offer difficulties in interpreting a tax rule:
* In doubt, the interpretation of the tax rules must be made against the treasury, this doctrinal criterion is based on the fact that if the legislator is the author or creator of the rule that establishes the tax obligation, and is part of the public power, it must suffer the consequences of the issuance of an obscure or deficient norm, since the contributions are burdens that are imposed on the taxpayers, in case of darkness or doubt, there must be no imposition or payment.
* Undoubtedly, the interpretation must be made in favor of the treasury, here it is argued that the State does not establish the contributions to enrich itself or increase its wealth, but that it requires what is essential to cover the needs provided in the expenditure budget, and what is underpaying for a taxpayer, becomes an aggravation of the situation of another, therefore, for the State to survive, what is not paid by one must be paid by another.
* In doubt, the law should not be interpreted neither against nor in favor of the taxpayer, but according to its true meaning, thus the fiscal norm must be taken strictly in its scope.
1.3. The Principles and their Impact on Constitutional Interpretation
The starting point of the process of legal explanation of the taxes must be the Constitution for the sole reason that this is the supreme norm at the current moment of the Mexican legal experience, that is why the rest of the legal system owes it from its Existence of the same subjection and therefore what is prescribed by it must prevail or prevail over what is ordered by the other legislative components.
The attribute of the supremacy of constitutional norms in Mexican law implies, among other things, first that the rest of the components of the legal system, international treaties, laws, jurisprudence, regulations, exist only because they are foreseen and have been given in accordance with the Constitution and second that the constitutional norms are above the rest of those that make up the legal system, in such a way that the other norms may not contradict them, that is, to dispose of anything against them.
The principles in our Constitution acquire greater prominence, because it is the achievement of an interpretive effort to recognize certain rights in constitutional texts, it does not mean, without a doubt, only the need to defend against a legislative power and an increasingly overwhelming administration, but the formulation of express purposes of the legal system.
They are institutions that by eliminating the arbitrariness of the government's actions become guarantors of the taxpayer, therefore, they are placed in the foreground as rules of immediate application, regulating the relations between the public power and the taxpayer.
In interpretation, express principles of constitutional rank are used to justify so-called conforming interpretations, that is, those that adapt the meaning of a provision to that of a previously identified principle. Conforming interpretations do not derogate from one of the antinomic rules, their purpose is to establish the meaning or compatible meaning between them and the constitutional order.
1.4. Advantages of an Appropriate Interpretation
Article 5 of the Fiscal Code of the Federation indicates with precision that the fiscal provisions that establish charges to individuals and those that indicate exceptions to them, as well as those that establish infractions and sanctions are strictly applicable.
Likewise, the indicated article clarifies that it is considered that the norms that refer to the subject, object, base, rate or rate (constitutional elements of a contribution) establish charges to individuals.
And that the other tax provisions will be interpreted applying any method of legal interpretation. In the absence of an express rule, the provisions of common federal law will be applied additionally when their application is not contrary to the nature of fiscal law.
Given the strict application of tax provisions, which does not allow deviations in the interpretation and use of tax provisions, a concept called "tax avoidance" arises by means of which it is sought to find in legal texts a conceptual interpretation other than the intention of the legislator, all with the aim of obtaining an economic benefit.
The interpretation made by a taxpayer of a law, different from that made by the tax authority, should not necessarily be understood as tax avoidance, since the latter implies knowledge of the fractures of the law, choosing the paths that generate the greatest benefit, as long as the first simply chooses the legal path according to a thorough understanding.
A different interpretation of the law as well as tax avoidance must in most cases be aired in the tax courts because the same tax authority does not have the competence to establish not only that there was tax avoidance, but also the interpretation made by the taxpayer. it's not the right. Remember that a basic legal principle of Mexican law is that when the law does not establish, the taxpayer is not obliged to assume.
In this regard, a thesis of the Collegiate Circuit Courts which refers to the elements that the legislator must consider to elaborate a legal text based not only on real facts, but on abstract situations that cause different interpretations of that subjectivity to exist. The legislator seeks that there are no gaps in the law that allow violating the provisions contained therein, called “presumptions and legal fictions. The function and application of these techniques in tax matters ”, which provides:
• In the Mexican system, the presence of legal constructions is frequent that, understood as legal presumptions of full right and as fictions, serve the legislator in his task of frustrating the mechanisms of fraud to the Tax Law, both in their evasion dynamics and in that of circumvention. Absolute presumptions suppose the link established by its author between a known fact and another that, although it is unknown, must be considered to exist for the purposes of the law, since its realization is really possible or probable when it is demonstrated by the maxims of the experience and knowledge of the factual world on which it is intended to act.
From a substantive rather than probative angle, a legal fiction is noticed when its author collects data from reality and legally qualifies them in such a way that, consciously violating its nature, creates a concept of legal (artificial) truth far from coinciding with the reality.
In both cases, the application of the regulations governing these figures represents an irrefutable effect for taxpayers exempted from any additional evidence, justified by the need to resolve the inconsistency between the legal reality and the economic reality to which the tax justice aspires.
The strict form of interpretation is based, essentially, on taking the literal or grammatical sense of the words used by the legislator, in the expression of a legal norm. This form of interpretation has been distinguished from the others because it highlights the gaps or defects in the terms or words used in the legislative task.
This criterion is applied by the Supreme Court of Justice of the Nation:
• In the application of taxes, the terms of the law that creates them must be taken into account exclusively, without it being possible to expand or restrict them.
• Regarding taxes, the interpretation of the law must be strict, and it must be applied in its terms and without giving them more scope than those that naturally have, and the collection that is made without adhering to these rules constitutes a violation of the Articles 14 and 16 of the Constitution.
With the above, I conclude that this form of interpretation has the following prerogatives:
* Tax provisions must be interpreted harmoniously, not in isolation, in order to give the law a conceptual unity between its purpose and its application.
* When a tax provision contains a term with more than one meaning, it must be in its legal sense if the law defines it, if the law does not specify it, then it must be in its technical meaning.
* All tax provisions must be strictly interpreted, since they establish charges for individuals, as well as those that indicate exceptions to them.
* When there is no express fiscal rule, integration is admitted by additionally applying the provisions of common law, with the sole condition that they are not contrary to the nature of fiscal law, and do not refer to the concepts that establish charges or exceptions to individuals, offenses and penalties
Bibliography
1. FERNÁNDEZ Martínez, Refugio de J., “Fiscal Law”, McGraw-Hill, México, 1998.
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3. JIMÉNEZ González, Antonio, "Lessons in Tax Law", Thomson, Mexico, 2004.
4. MARGAÍN Manautou, Emilio, "Introduction to the Study of Mexican Tax Law", Autonomous University of San Luis Potosí, Mexico, 1979.
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