By majority vote, the plenary session of the Supreme Court of Justice of the Nation (SCJN) declared unconstitutional the unofficial preventive detention for tax fraud, and for the issuance, sale, transfer, purchase or acquisition of false tax receipts.
The plenary session of the SCJN began the study of constitutionality of the decree of November 8, 2019, by which various provisions of the Federal Law against Organized Crime, the National Security Law, the National Code of Criminal Procedures, the Federal Tax Code and the Federal Criminal Code. These reforms are related to tax returns and apocryphal tax receipts.
The minister José Fernando Franco González Salas presented a project on unconstitutionality actions promoted by the National Human Rights Commission and various members of the Senate of the Congress of the Union, demanding the invalidity of said various provisions. The project planted rejecting the arguments and declaring the validity of all the precepts.
However, in the in-depth study, a majority of ministers considered it excessive to consider tax crimes as a threat and an effect on national security.
By majority vote of the ministers Arturo Zaldívar; José Fernando Franco González Salas; Luis Maria Aguilar Morales; Alfredo Gutiérrez Ortiz Mena; Javier Laynez Potisek; Norma Lucia Piña and Alberto Pérez Dayán, the plenary session of the Court declared the invalidity of the amendments to the second paragraph of Article 187; and the third paragraph of article 256; and the addition of a seventh paragraph with sections I, II and III, to article 167; and a third paragraph to article 192 of the National Code of Criminal Procedures.
Those norms considered unofficial preventive detention for smuggling and its equivalent, exclusively when they are qualified; tax fraud and its comparable, and issuance, sale, disposal, purchase or acquisition of tax receipts that cover non-existent, false operations or simulated legal acts that exceed 3 times what is established in section III of article 108 of the Federal Tax Code.
The ministers Yasmín Esquivel Mossa and Margarita Rios Farjat (former head of the SAT in the current federal administration), who were proposed in office by President Andrés Manuel López Obrador as ministers, defended preventive detention for tax fraud and false billing. Along with Minister Franco González Salas, Ministers Esquivel and Ríos voted in favor of the project.
The minister Yasmín Esquivel Move He considered that preventive detention is not all cases, “not in any case, not just any offender; for example, when the false billing exceeds 8 million 695,470 pesos, when the crime of tax fraud exceeds this amount, but is also considered qualified ”.
The minister president of the SCJN, Arturo Zaldivar, argued that informal preventive detention can only be when there is a danger of the abduction of the person or can destroy evidence, and it is not allowed to establish the danger of the subject or the crime.
Minister Alberto Pérez Dayán considered that the catalog of crimes that deserve preventive detention has already been established, so maintaining the contested norms “could lead us more to configure a penal system that is aloof from the daily regularity to which society develops, converting the preventive detention basically in a predetermined punishment ”.
However, Ministers Arturo Zaldívar and Pérez Dayán are free to determine the informal preventive detention.
Reference-www.eleconomista.com.mx