PROBLEMS
On October 21, 2015, the Ministry of Finance and Public Credit filed a complaint against whoever was responsible, for the crime of EQUATED TAX FRAUD provided for in article 109, section V, and punishable in the various 108, fourth paragraph, section III, both of the Federal Tax Code, since a legal entity failed to file for more than twelve months the annual return of the Income Tax and the Single Rate Business Tax corresponding to the fiscal year 2009, omitting the payment of said taxes in the amount of $1,885,729.02 and $5,721,376.62, respectively, causing damage to the federal treasury in the total amount of $7,607,105.64.
For his part, the Agent of the Public Ministry of the Federation, requested an Arrest Warrant against our client and in her capacity as general representative of the company, since he considered her responsible for the crime in question, as she was in charge of filing the company’s tax returns.
It is the case that, prior to the corresponding procedural stages, by judgment of September 5, 2023, the District Judge Specialized in the Accusatory Criminal System of the Federal Criminal Justice Center, in its capacity as Trial Court and competent authority, resolved to the detriment of our client the following:
- That the Agent of the Public Prosecutor’s Office accredited the legal existence of the crime of Comparable Tax Fraud, provided for in Article 109, section V, and punishable by the various 108, section III, of the Federal Tax Code (in force at the time of the facts).
- That the commission of this crime by our client, in her capacity as legal representative of the taxpayer legal entity, was accredited, given that she had processed the advanced electronic signature before the Tax Administration Service and, therefore, having it in her possession, she was responsible for filing the returns online.
- Likewise, it sentenced her, in her capacity as legal representative of the taxpayer legal entity, to a prison sentence of THREE YEARS IN PRISON, to which must be deducted the time in which the sentenced has been deprived of her liberty due to the events that gave rise to the present criminal matter, as well as the payment of the amount of $5,586,489.18 (five million five hundred eighty-six thousand four hundred eighty-nine pesos and eighteen cents national currency), for Income Tax; and the amount of $16,949,629.72 (sixteen million nine hundred forty-nine thousand six hundred twenty-nine pesos and seventy-two cents national currency), for the Single Rate Business Tax; corresponding to the fiscal year of two thousand nine; that is, the total amount amounts to $ 22,536,118.90 (twenty-two million five hundred thirty-six one hundred and eighteen pesos and ninety cents national currency).
- Finally, it ordered the suspension of our client, in the exercise of her political and civil rights of guardianship, guardianship, attorney-in-fact, defender, executor, expert, trustee or judicial auditor, trustee or bankruptcy auditor, arbitrator, arbitrator or representative of absentees, for the same period of the prison sentence imposed, while she is effectively deprived of her liberty.
ACTIONS AND STRATEGIES IMPLEMENTED BY ASESORES STRATEGO
Our professionals specialized in the field, carried out a meticulous analysis of the conviction, as well as the procedures carried out by the Agent of the Public Prosecutor’s Office and by the District Court, realizing the illegality with which said sentence was issued, for which an appeal was filed expressing various grievances, among which it was pointed out that there was no typicity on the part of our client with respect to the crime charged; this, since our client had no responsibility as she was not legally or contractually responsible for filing the tax returns; the evidence evaluated was illegal since it was obtained in violation of fundamental rights, such as the inviolability of the home, enshrined in Article 16 of the Constitution, prescription of criminal action, among others.
RESULT.
Prior to the corresponding procedural stages, the competent Collegiate Court of Appeal, by judgment of December 7, 2023, resolved the grievances formulated in the appeal brief, therefore, revoked the appealed judgment in which our client had been convicted of the crime of tax fraud, in her capacity as legal representative of the legal entity and, in accordance with article 327, section VI, in relation to 329, both of the National Code of Criminal Procedure, decreed the total dismissal of the criminal case, with the effect of acquittal, since the statute of limitations of the criminal action with respect to the crime of Comparable Tax Fraud had been updated.
The above determination was confirmed by the First Collegiate Court of the competent one, by means of an executory order of April 24, 2024, issued in the direct amparo filed by the Director of Investigations of the Federal Deputy Attorney General’s Office for Investigations of the Federal Prosecutor’s Office of the Ministry of Finance and Public Credit, against the judgment of December 7, 2023, since it was resolved not to protect or protect the complainant against the acts complained of.
In this sense, the acquittal obtained was final, causing its legal effects in favor of our client and with which a result was achieved that not only transcended the economic aspect but also personal freedom.
As a firm, at ST STRATEGO, our high expertise in Legal Defense in Tax and Customs matters, allows us to have an incomparable scope of strategies that translate into true solutions for our clients.
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