arrow-grey
News
August 9, 2016

SINCERATION AND CRIMES

Goods entered clandestinely could be exteriorized.

Héctor Guillermo Vidal Albarracín - Guillermo Vidal Albarracín

The recent law 27,260 regulates the "Tax Sincere Regime", which allows the taxpayer to externalize their undeclared tax situation in exchange for a reasonable economic proposal without administrative or criminal penalties.

Unlike previous similar regimes (laws 26,476 of 2008 and 26,860 of 2013), the scenario in which this “money laundering” is projected is surrounded by greater legitimacy, not only because it recognizes the situation of compliant taxpayers and links it to reparation historical for retirees and pensioners, but also because it responds to an OECD recommendation to allow taxpayers to externalize their hidden assets before in 2017 the multilateral information exchange agreement between tax administrations begins to govern.

Thus, although a marked collection trend continues as the axis of criminal policy, now it also adds a kind of recognition of the injustice of the current tax regime, proposing to start again in the administration-administration relationship.

Now, in order to promote the decision to externalize said funds and respect this proposal to start over, it is essential that the declarant be given the reassurance that there will be no subsequent surprises, such as being denounced, investigated or prosecuted for not having timely declared. the assets to the treasury, nor be reached by the social reproach generated by the well-known cases known as Panama Papers or HSBC Switzerland.

The rules of the game have to be clear and its benefits cannot be distorted by subsequent legal interpretations. In this regard, it should be remembered that our Supreme Court has said that "the National Constitution does not exclude the possibility that Congress legislate on other contents of the amnesty, as long as its essential character of general amnesties is maintained, provided that the Amnesty is essentially general, encompassing all the cases involved in a class of crimes, and it is the spring of the Legislative Power, the only power that has the power to declare the criminality of the acts, to create sanctions and to erase their effects. ”

Previous bleaching

On the other hand, it is important to highlight that in the 2008 money laundering, it was discussed whether the criminal release was limited to tax crimes or whether it also extended to exchange and / or customs crimes. Then, in 2013, the exchange matter was understood and there was no ruling on customs. Thus, as their discrimination was not clear, the competent authorities (Central Bank and Customs) were obliged to file the corresponding criminal actions so as not to incur in a breach of their duties.

Note that these are crimes that despite having a different legal classification, in certain cases keep a certain connection and overlap. Thus, for example, in the case of import and export operations between related companies, there is a conflict of interest between the organisms in charge of the respective controls: tax (transfer price), customs (value at Customs) and exchange (transfer of foreign exchange). Also, when Customs controls the payment of taxes related to foreign trade (VAT, Profits and internal), jurisprudentially it is discussed if the deceit to the organism configures evasion or contraband.

The new law 27,260 overcomes such conflictive situations by expressly contemplating in its article 46, subsection “b”, that the subjects that make the voluntary and exceptional declaration will enjoy the benefit of the liberation of all action for crimes of the tax, criminal and exchange rate penal law. , customs and administrative offenses that may correspond, specifying that this amounts to the extinction of the criminal action.

Thus, through the recently sanctioned regime, the release of criminal action was also expressly included with respect to customs crimes that may correspond due to the breach of related obligations or that had their origin in the declared assets and possessions.

Thus, within the analyzed assumption, it could be mentioned, for example, the externalization of goods that had entered or left clandestinely or the externalization of funds generated by assumptions of under-invoicing or over-invoicing in import or export operations (article 864, subsections " a ”and“ b ”, respectively, of the Customs Code).

In our opinion, such termination of the criminal action is also applicable for cases currently pending. This is not only due to the provisions of article 59, subsection “2” of the Penal Code mentioned by the norm (and expressly highlighted in article 13 of regulatory decree 895/16), but also due to the application of the principles of in He dubio pro reo and pro homine, and to avoid the risk of frustrating the objective pursued by the legislator.

Finally, it should be added that in the title called “Exceptional regularization of tax, social security and customs obligations”, another assumption of suspension or extinction of the current customs criminal action is also established for cases in which the accused avails himself of the referred regularization regime.

In conclusion, after having suffered from foreign trade in a context of extreme regulation that hindered all activity, we understand that the new and supposedly latest “money laundering” regime offers an opportunity for reconciliation to face a new stage in the future. Only one factor remains that no longer depends on the text of the law, but on the economic measures that encourage investment and productivity. This will be a guarantee of governability for future years.

The authors are partners of Estudio Vidal Albarracín, specialists in economic criminal law.

SOURCE: THE NATION