The creation of the aforementioned system, by provision of the Federal Constitution, is in charge of the Legislative Power, which must be recognized as a legitimate aspect to define the model and tax policies that at each historical moment fulfill their purposes in the best way, without overlooking that there are certain limits that cannot be exceeded or violate constitutional principles, that is, the validity of the democratic principle and the reservation of law in tax matters[2]
Thus, the Mexican Staterequires sufficient resources to fulfill its basic functions, so that through tax policy it has the ability to redistribute the financial resources available to a community among the members that form it.
The main revenues of fiscal policy are obtained through taxes, duties, products, profits and internal and external public indebtedness. Fiscal policy as an action of the State in the field of public finances, seeks the balance between what is collected by taxes and other concepts and government expenditures.
Thus, to achieve an efficiently collected and equitable tax system, it is of vital importance to establish temporary and effective fiscal incentives for savings and investment, on the other hand, it is necessary to expand the taxpayer base, strengthen collection, combat tax illegality (curb tax evasion and avoidance); providing security and legal certainty for the authority and thetaxpayers.
In this situation , the tax reforms seek to establish a tax system that conforms to these objectives, for which the norm must be modified through the Legislative Power. However, the changes introduced must be promulgated by the Executive Branch.
Thus, year after year the legislators present a tax reform through which they modify the laws to improve tax management. Likewise, the Tax Administration Service, a decentralized body of the Ministry of Finance and Public Credit, in charge of collecting taxes, issues each year the Miscellaneous Tax Resolution through which it details the way in which taxpayers must apply the tax regulations, in order to and fully comply with their tax obligations and in a certain way fill the gaps contained in the law. In this way, it seeks to avoid improper practices and, above all, contribute to the economic development of Mexico.
This does not only occur infiscal matters, but also in foreign trade, since by issuing the General Rules of Foreign Trade established by the Federal Government and the customs authority they have the purpose of establishing the form, means and steps for the correct declarationof operations before customs.
So, it is said that for a country’s economy to prosper, it is necessary that modifications to tax laws be carried out. That is why a tax
reform has as its main objectives: i) to contribute to national economic growth, ii) the simplification of tax procedures for taxpayers and iii) to combat tax fraud and evasion.
However, in this search to fulfill the aforementioned purposes, the legislative power and the tax authorities, fall into abuses and arbitrariness that affect the rights of taxpayers or cause them a grievance in their interests.
Therefore, our Magna Carta provides means of defense to taxpayers so that they can face acts of authority or even if the fiscal rules affect their fundamental rights, such as the federal administrative contentious procedure, the direct amparo and the indirect amparo trial.
In this article, we will focus on the study of the indirect amparo trial, which is an extraordinary and jurisdictional means of defense protecting the human rights established in the Political Constitution of the United Mexican States and in theinternational treaties to which Mexico is a party, whose purpose is to restore to the governed in the enjoyment of the right violated, which finds its basis in articles 103 and 107 of the Political Constitution, and is regulated by the AMPARO LAW, Reglamentaria of Articles 103 and 107 of the Political Constitution of the United Mexican States.
To speak of the human rights of taxpayers is to refer to the material principles of tax justice provided for in article 31, section IV , of the Constitution, that is, those of legality, equity, proportionality and destination to public expenditure that, in the light of the doctrine and its subsequent reception by the Supreme Court of Justice of the Nation, they are identified with contributory capacity, equaltaxity, reservation of law and destination to public expenditure, so that any norm and act of authority must be issued in light of these rights.
Thus, when with the creation or reform of a law or norm, the human rights of taxpayers are affected, they cango to the indirect amparo trial whether the affectation is caused by its entry into force or on the occasion of its first act of application.
Likewise, the indirect amparo lawsuit not only proceeds against norms and laws but also againstacts or omissions of the tax authority that affect the legal sphere of the governed.
In fact, Article 107 of the Amparo Law provides for the cases of origin of the means of defense in question, which, to mention a few, are the following:
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- Against general rules that by their mere entry into force or on the occasion of the first act of their application cause harm to the complainant.
- Against acts or omissions that come from authorities other than judicial, administrative or labor courts;
- III. Against acts, omissions or resolutions arising from an administrative procedure followed in the form of a trial, provided thatit is:
- a) The final decision for violations committed in the same resolution or during the procedure if by virtue of the latter the complainant has been left without defense, transcending the result of the resolution; and
- (b) Acts in the proceedings that areimpossible to repair, understood as those that materially affect substantive rights protected in the Political Constitution of the United Mexican States and in the international treaties to which the Mexican State is a party;
From the above, we can cite some examples that in practice have been challenged through the indirect amparo trial, because they violate to the detriment of taxpayers rights and principles such as legal security, reservation of law, equity,proportionality, freedom to work, etc.
General rules:
- Rules of the Miscellaneous Tax Resolution, for example: 2.7.7.1, 2.7.7.2, 2.7.7.3, 2.7.7.4 2.7.7.8, 2.7.7.12 of the Miscellaneous Tax Resolution, which regulate the obligations of taxpayers to incorporate the Carta Porte supplement in their CFDIS.
- General rules of foreign trade, for example: Rule 1.3.3. of the General Rules of Foreign Trade for 2018, which provides for the cases of suspension in the register of importers.
- Acts of authority:
- Office by which the competent authority suspends the governor from the register of importers.
- The verification order or home visit.[3]
- Precautionary seizure or immobilization of bank accounts.
- Omissions of authority:
- Failure of the customs authorities to issue the call to obtain the customs agent referred to in Article 159 of the Customs Law.
- The failure to respond to a request made in terms of article 8 of the Constitution (right of petition).
It should also be noted that within the indirect amparo trial, precautionary measures are foreseen, such as the suspension of the act claimed, which is carried out separately and basically consists of whether the act complained of issusceptible of being suspended (that it complies with the requirements of Article 128 of the Amparo Law). ), the judge will order the authorities designated as responsible to keep their actions paralyzed or detained for the entire duration of the substantiation of the amparo trial ; in other words, to paralyze the effects of the action of the authority and the change in the way in which the tax obligations are fulfilled according to the new law that is considered to violate the legal sphere of the complainant, until it is finally decided on the constitutionality or unconstitutionality of the act.
With the suspension, the amparo trial is prevented from being left without matter as a result of the execution of the act claimed and the complainant is prevented from suffering discomfort whilethe amparo trial is finally resolved.
On the other hand, it is important to know that the indirect amparo trial is governed by the following guiding principles, namely:
- Instance of aggrieved party: Such a character is a person who claims to be the titleof a right or a legitimate individual or collective interest, provided that he alleges that the act complained of violates the rights recognized by this Constitution and thereby affects his legal sphere, either directly or by virtue of his special positionvis-à-vis the legal order.
- Existence of direct personal grievance or derived from the particular circumstance in which the governed person finds himself: this principle establishes that the person who promotes the amparo trial must be the one who, in his sense, suffers the violation of his fundamental rights caused by an act of authority.
- Principle of definitivity; Consisting in that before resorting to the indirect amparo trial, all ordinary means of defense must be exhausted, however, there are exceptions to this principle, such as when direct violations of the constitution are asserted.
- Principle of strict law; this principle is that the judge must specify himself to examine the constitutionality of the act claimed in the light of the arguments expressed in the “concepts of violation” expressed in the application.
- Relativity of the judgment. This principle mandates that the amparo judgment only protects individuals who have requested it, without making a general statement regarding the law or act claimed.
In general terms, the indirect amparo trial is subject to two instances hence it is calleda bi-instantial trial: the first of them, as a rule,
is carried out before the federal court, whose judgments can be reviewed in a second instance by the Collegiate Circuit Courts and in some cases the Supreme Court of Justice. e Justice of the Nation in accordance with its original competence of review, when the matters are of importance and transcendence and a question of constitutionality persists.
The first instance begins with the presentation of the application for amparo in the district court in turn according to the domicile of the complainant, which must comply with the formalities required by article 108 of the Amparo Law.
If there is no prevention on the part of the court, the court will admit the application, set a time and date for the holding of the constitutional hearing and request the responsible authorities to which the act complained of is attributed, so that they render their justified reports.
At the constitutional hearing, the evidence will be released (the confessional is not admitted by positions), and the ruling will be issued.
The judgment that resolves the amparo trial may be issued in the following senses:
- Sobreseer in the trial (when any cause of inadmissibility or dismissal is updated -art. 61 and 63 of the Amparo Law-)
- Denying amparo
- Grant the amparo.
For its part, the second instance consists of the resolution of the appeal for review referred to in article 81 of the Amparo Law, which proceeds, among others, against the judgments issued in the constitutional hearing; which will be resolved by the corresponding Collegiate Circuit Court and whose enforceability may confirm, amend or set aside the judgment under appeal.
Therefore, the indirect amparo trial is a procedure of a Federal jurisdictional nature, eminently constitutional, whose foundations and original provisions are found in the maximum legal system that governs the legal life of our country, andthis is, the Political Constitution of the United Mexican States, and therefore, this fundamental instrument of defense, is born to legal life as a procedure of special importance to the scope of individuals governed, capable of subjecting theillegal action of the authorities, regardless of their level, type or nature, and therefore, this constitutional procedure is the ideal one to claim all kinds of acts of authority, when it is considered that these acts injure or intend to injure the rightsenshrined in our Magna Carta in favor of the governed individuals.
[1] “Article 31. The following are the obligations of Mexicans:
(…) Iv. Contribute to the public expenditures of the Federation, as well as of the States, of the City of México and the Municipality in which they reside, in the proportional and equitable manner provided by law.”
[2] 1a./J. 159/2007, supported by the First Chamber of the SCJN, Judicial Weekly of the Federation and its Gazette. Volume XXVI, December 2007, page 111, with digital registration 170585, of heading: “TAX SYSTEM. ITS DESIGN IS WITHIN THE SCOPE OF FREE LEGISLATIVE CONFIGURATION, RESPECTING CONSTITUTIONAL REQUIREMENTS.”
[3] Jurisprudence: PC. III. A. J/11 A (10a.), published in gaceta del Semanario Judicial de la Federación. Book 26, January 2016, with registration 2010933, of heading: “HOME VISIT ORDER. IT CAN BE CHALLENGED IN INDIRECT AMPARO ON THE OCCASION OF ITS DICTATION DENTRO OF THE PERIOD OF FIFTEEN DAYS, WITHOUT IT BEING VALID TO DO SO SUBSEQUENTLY ON THE OCCASION OF SUBSEQUENT ACTS, SUCH AS, FOR EXAMPLE, FOR THE ISSUANCE OF THE PARTIAL MINUTES (INTERPRETATION OF THE JURISPRUDENCE P./J. 2/2012 (10a.))”.
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