Problems
The Tijuana Customs Office determined that our client would be responsible for a tax credit in the amount of $——— pesos, for general import tax, value added tax, surcharges and fines, as the infraction contemplated by article 176 section I sanctioned with article 178 section I of the Customs Law, as merchandise of foreign origin had been introduced.
Prior to the above, the Customs Administrative Procedure (PAMA) provided for in numeral 150 of the Customs Law was developed, with respect to which it was additionally definitively resolved that the merchandise of foreign origin subject to the aforementioned procedure became the property of the Federal Treasury.
Likewise, as a consequence of the initiation of the administrative procedure in customs matters (precautionary seizure and presumption of updating of infringing conduct), the Tax Administration Service filed a complaint with the Federal Criminal Authority, for the probable responsibility of the alleged smuggling crime, provided for in Article 103, section II in relation to numeral 102, section II, and sanctioned by 104 section I, all of the Federal Tax Code as well as for the provisions of numeral 13, section II, of the Federal Criminal Code (in force at that time).
Due to the above, the Legal Representative of our client was deprived of his liberty, updating violations of Fundamental Rights, which were claimed and repaired as a result of the defense strategies implemented.
ACTIONS AND STRATEGIES IMPLEMENTED BY ASESORES STRATEGO.
In order to implement the most appropriate defense strategies, our group of specialists immediately proceeded to carry out a thorough analysis and comprehensive evaluation of the information related to the case.
With respect to the Criminal Procedure and immediately on the date on which our firm assumed the defense of the matter, the appropriate means of defense were presented to the Criminal Authority, verifying that our client did not incur in the criminal behaviors that were improperly attributed to him.
With regard to the Administrative matter, since our firm began its intervention in this matter once the final resolution on Foreign Trade was issued, an Appeal for Revocation was first filed with the Decentralized Legal Administration, which confirmed the legality of the contested resolution issued by the Tijuana Customs.
Subsequently, a Nullity Trial was filed before the Federal Court of Tax and Administrative Justice, which first declared the nullity plain and simple of the contested resolution, to later declare its validity in observance of the Appeal for Tax Review filed by the Tax Administration Service, a circumstance for which a Direct Amparo Lawsuit was filed before the Collegiate Circuit Courts, demonstrating indubitably that the introduction of the merchandise of foreign origin originated due to fortuitous causes in accordance with Article 73 of the Federal Tax Code, that is, that it was due to a cause or event that was outside the domain of our client.
Based on the foregoing, in the Direct Amparo Trial in Administrative Matters promoted, a favorable judgment was obtained, in which the Protection of Constitutional Justice was granted in favor of our client, in which the Court of Administrative Justice was ordered to issue a new judgment in which it determined to declare the plain and simple nullity of the challenged resolutions.
An excerpt from the aforementioned judgment is reproduced below:
“… Under this line of argument, in view of the merits of the concept of violation studied, it is appropriate to grant the amparo and protection of the Federal justice to the complainant so that the responsible Chamber leaves the judgment complained of inexistent and issues another in which, following the guidelines of this executory, it establishes that the provisions of Article 73 of the Federal Tax Code apply in the species and declares the nullity plain and simple of the resolution challenged in the natural controversy.
It is not necessary to study the various concepts of violation contained in the application for amparo, since its analysis would not lead to any practical purpose, if it would in no way improve what the complainant obtained in the present resolution.
In view of the foregoing and grounds, with the support of Articles 107, section V, paragraph c), of the General Constitution of the Republic; 1, section I, 76, 77, 78, 158 and 184 of the Amparo Law and 1, 34, 35 and 37, section I, paragraph c), of the Organic Law of the Judicial Power of the Federation,
“RESOLVES
UNIQUE. The Justice of the Union protects and protects
, against the act that he claimed from the Second Regional Chamber of the Northwest I of the Federal Court of Fiscal and Administrative Justice, with residence in Tijuana, Baja California, consisting of the judgment issued within the records of the nullity trial with file number * of its index.
Be notified, published and noted in the registry book; with authorized testimony of this resolution, return the original records to the place of origin and, in due course, file the present file.
This was resolved by this Fifth Collegiate Court of the Fifteenth Circuit by unanimous vote of the Magistrates ***; the first of those named being president and the second rapporteur; who sign together with the licensed court secretary ***, who authorizes and attests…”
It should be noted that the application of this criterion by the Collegiate Court constitutes a transcendental precedent when updated in the matter of Foreign Trade.
RESULT
Based on the strategies implemented for the resolution of this case, a final judgment of Nullity Plain and Plain was obtained, as the concept of violation related to the FORTUITOUS EVENT IN CUSTOMS MATTERS was founded.
On the other hand, within the Criminal Procedure it was demonstrated from the beginning that our client at no time maliciously displayed the criminal conduct that was improperly attributed to him of alleged smuggling, for which reason the District Judge of Federal Criminal Proceedings in the State of Baja California, issued a sentence in which he decreed the Release Order for lack of elements to prosecute our client, ordering his immediate release.
An excerpt from the judgment handed down in the Criminal Procedure is reproduced below:
“… In such a way, the crime committed translates into an action with which an active subject, by intervening in its realization, endangered the protected legal right, consisting of the right of the State to receive the amount of taxes, as well as the protection of industry in the country, in this case, since there are goods whose entry must be restricted for the benefit of strategic areas of production and employment due to various national interests, so that, in the opinion of the adjudicator, in accordance with article 168 of the applicable adjective code, the body of the crime is accredited, the unlawful action being attributable to the active subject based on the fact that there is a causal link between the typical result and the procedure that was required of him, that is, that he should refrain from introducing the merchandise of foreign origin into the territory of the country, without the corresponding prior permission.
Therefore, it is concluded that the means of evidence analyzed, adminiculated among themselves and evaluated as a whole under the terms of numbers 279 and 284 to 290 of the Federal Code of Criminal Procedure, are sufficient and effective to consider as proven the body of the alleged crime of smuggling provided for in article 103, section II, in relation to number 102, section II, and punishable by number 104, section I, all of the Federal Tax Code, since these lead to the knowledge that at approximately eighteen o’clock on (…), someone introduced into the national territory through the tactical center called the “Garita el Chaparral” International Line, merchandise of foreign origin, conduct that he carried out without the permission of the corresponding authority that accredits his legal introduction or stay in the country, and therefore, omitting the total payment of the contributions, act with which he violated the legal right protected by the norm, consisting of tax collection and the protection of the country’s industry; thus satisfying the circumstances of the manner, time and place in which the event under study took place.
Sixth. Probable liability.
Notwithstanding the accreditation of the corpus delict of alleged smuggling provided for in Article 103, section II in relation to numeral 102, section II and punishable by numeral 104, section I, all of the Federal Fiscal Code; it is considered that in the species, the intentional commission by the accused is not proven (…) and therefore, neither is his probable responsibility in the perpetration of the crime in question in the terms provided for in the third paragraph of Article 168, of the Federal Code of Criminal Procedure, which reads as follows:
(…)
This is so, despite the fact that in order to consider the body of the crime under study to be accredited, the means of conviction provided during the investigation were taken into consideration, among which is primarily the informative report of (…), Foreign Trade officers attached to the General Administration of Customs, under the Ministry of Finance and Public Credit, based in Mexico, Federal District.
(…)
In this context, the person who is now ruling considers that the aforementioned means of conviction is insufficient at this stage of the proceedings to prove the probable responsibility of the accused, without the record showing a different element of evidence provided by the agent of the Public Prosecutor’s Office of the Federation to strengthen the fact for which he brought criminal action.
In this regard, it should be noted that the agent of the Public Prosecutor’s Office of the Federation attached to this court did not provide any evidence to strengthen the statements of the Foreign Trade offices attached to the General Administration of Customs, which were apt to establish that (…) he wanted to carry out the action of introducing the vehicle into the country.
…
For all of the foregoing, since it has been demonstrated that (…) he did not maliciously engage in the criminal conduct attributed to him in accordance with the provisions of the third paragraph of Article 168 of the Federal Code of Criminal Procedure, interpreted to the contrary, his probable responsibility in the perpetuation of the alleged smuggling crime provided for in Article 103, section II, in relation to numeral 102, section II, and punishable by 104, section I, all of the Federal Fiscal Code, and in these conditions, the appropriate thing to do is to decree a release order for lack of elements to prosecute and with the reservations of him in favor of (…) for which his immediate release is ordered and solely and exclusively for the aforementioned crime and within the criminal case of the index of this Court.
..
In view of the foregoing, based on and supported by Articles 19 of the Federal Political Constitution, prior to the reforms, and Article 67 of the Federal Code of Criminal Procedure, it is hereby stated:
RESOLVES:
First. A release order is decreed for lack of elements to prosecute in favor of (…), with respect to the probable responsibility attributed to him in the commission of the crime of alleged smuggling provided for in article 103 section II in relation to number 102 section II and punishable by 04 section I all of the Federal Tax Code, in terms of article 13, section II of the Federal Criminal Code.”
Finally, it should be noted that as a result of the intervention of our team, in the present case it was possible to avoid through the corresponding legal means, a real legal contingency for our client, which evidently in this case endangered not only his assets but also the freedom of his Representative.
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