Published: 2008-08-15

A guide for contributors and custom agents.

Published in Mexico on the 23 day of June 2005, The Federal Law for the Contributors Rights. This legislation it is but the Spanish record of the Decrees: Law 30/1992, dated November 26, 1992, related to the Legal Regimen of the Public Administrations and the Common Administrative Proceedings; Real Decree 2458/1996 of December 02, 1996, trough which is created the Council for the Defense of the Contributors; Real Decree 1/1998 of date February 26, 1998 and the Law 58/2003 from December 17, 2003, which contains the General Tributary Law.

This antecedent is important, since the Right not to self incriminate, has being well developed by does legislations instead of ours, and that will allow us a better comprehension of the subject. Now well, analyzing the Federal Rights Law for the Protection of the Contributor, we found that are incorporated on it three principal rights. Those related to the Legal security of the contributors; those of economical and heterogeneous character of defense.

The first search to create stability on the taxpayers, and above all, to know what to look for. They are oriented to protect their security in a plane form (Collaboration and assistance of the Contributor, confidence on the citizens, formalities on acts of accrediting, rights with in the Investigation proceedings, boundaries to such exercise, publish up date texts, no to make sudden changes, right no to self incriminate, etc.). The second; those of economical character, are link to the patrimony ambient about the payments of the Public Administration to the governed, such as the rights to the devolution, right to compensation, indemnify, indemnities, etc). The last ones are linked to the defense of the taxpayers (Terms to promote the means of defense, types of means of defense, terms of evidence, arguments, etc).

The right to not self incriminate is a right connected to the contributors legal safety and its essence is situated on the fact that the contributor, custom agent or the importer, do not present documents, evidence or reports with which The Tributary Administration Service could determine a fiscal credit or initiate a criminal process against them .

In effect, it is not logic that the contributor presents evidence or documents that later serve to the Tributary Administration to blame him on the administrative or criminal ambient. It is not logic that the rule obligates to provide all the elements that integrate its accounting, if these are going to be of use in a process suffered against the first ones.

Then, here is where our academic analysis begins, which will work as a guide for those who are connected to the fiscal area and of foreign trade and to all those that are subject to a criminal process.

On fist term we have to remember that the authority has discretional faculties to execute the acts of accrediting on matters of domicile visits (42 CFF), revision of cabinet (42 CFF), revision of report (42 CFF), verification on the emission of fiscal prove (42 CFF), sticker verification (42 CFF), rectification of mistakes and statements (42 CFF), verification of goods and merchandise in transport (42 CFF and 144 LA), first and second custom acknowledgement (43 y 144 LA), verification of origin (303 TLC y 9 LCE), determination of the price or amount of the consideration between the related parts (prices of transference) (215 LISR), annotation of requests (152 LA), liquidations by actions by report of a laboratory by obtaining samples (44, 46 y 152 LA), revision of compensatory quotas and estimated prices (62 LCE), proceedings on matters of disloyal practices (49 LCE), and suspension or cancellation of the patent of custom agent (164 y 165 LA).

At the moment of executing any faculty of verification the governed is obligated to provide the fiscal or customs authority the information that has at its reach and that is part of the accounting (45 CFF) and also, should provide in the terms on which this are required or to whom ever is obligated (53 CFF). Likewise, if the contributor opposes to that fact o does not provide it, the same could be sealed (46-III CFF) or inclusive, it could be ordered the seizure of the goods, accounting, bank accounts, or security boxes, simply because the authority judges that the person, custom agent, or third party are denying to provide the same or to collaborate with the treasury authority (40-II y 145 A-III CFF).




To this point, it looks like the transcribed dispositions are obligating us only to provide the information that is required by the fiscal and customs authorities with out any excuse, nevertheless, that is not the case, because there is the existence of the Right not to self incriminate, which allows all governed not to provide the information, data or documents that help the authority to determine a fiscal credit or to execute any criminal action against a particular.

That is right; the authority is obstructed to demand such documentation to the light that the rights to not self incriminate. Nevertheless, a question emerges to the entire prior. What right prevails with mayor strength?, the States to require information to exercise its verification faculties or that of the particulars, to not present all that that aggrieve o could be used to execute a criminal action.


It is evident that is clearly that two right exist on the same level: 1 the right of the authority to demand information to perform acts of verification and 2. The rights of the particular not provide that information or documents that could be used to administratively penalize or well, exercise criminal action for the possible commission of a certain crime. For that, the first thing we should analyze is which of the two prevails or has more rank with respect to the other.

We have mentioned the existence of legal safety rights, of economic character and heterogeneous. The two first ones are known as primary warranties, as to the second is considered with in the rank of secondary warranties of the governed.

The primary warranties are elevated to a constitutional rank and are not susceptible of being violated, inclusive, even if a law stipulates it, for that, in Mexico was created the Federal Law of the Rights of the Contributor, which contains several types of expelling rules, such as: Right to not present the information that is already in the hands of the acting authority (2-VI LFDC). This ruling has mayor weight over the Federation Fiscal Code (1 LFDC) because its function is precisely to regulate the basic rights of the contributors. Like that for example, when the Tributary Administration pretends to accuse a custom agent of under valuing or of contraband and demands him to present before them the requests, letters of commendation and attachments with which the operation was under valuated, inclusive, it attributes that the recipes are fake. This one is in aptitude to exercise the right to not self-incriminate, refusing to present the same, since in this one is the power of the acting authority.

In effect, the right to not self incriminate prevails over the right of the authority to demand data documentation, or documents that are necessary for the exercise of faculties of verification, since being a right in the constitutional rank, this prevails over any other. Also, the Federal Law of the Rights of the Contributors, is applicable over the Federal Fiscal Code, and that law is the one that allows the governed not to present the documents that are already in the power of the acting authority, since is evident that at the moment of the merchandise custom clearance, the custom agent presented a copy of the request, which remain on the hands of the General Customs Administration.

That is, in the case we have raise, a custom agent is not obligated to present all the information required, since with that would not only be subject to the determination of a fiscal credit, but to the exercise of a criminal action and to the beginning of a proceeding of suspension and cancellation of the custom agent patent. The same will occur with the importer or the third related with them, which are linked to such operation. It should be cleared that the negative does not implicate the obstacle or opposition to the exercise of the verification faculties, since is a right of constitutional rank and of primary character.

This same right to not self-incriminate not only operates when the authority has the required documental, but also when there are not on the power of this one, since has being said, this is a right that guardians the legal safety for the contributor. It is not a simple right of economical character or heterogeneous, is a right of constitutional rank that prevails in benefit of the governed.

The right to not self-incriminate has being primarily identified on the criminal law, when a person has the right to declare or not to do it against himself and is warn to the State, to exhibit the documental the evidence the responsibility of the subject, or otherwise, there is no evidence to prove the illegal conduct.

This way, it was imported from Europe, as it was said, with the new Federal Law of the Rights of the Contributor, the right to not self-incriminate on administrative matters, which operates as a right that allows the particular not to present that that injures his legal sphere or inclusive, serves as instrument to be investigated for an fiscal illicit.

One of the most important characteristics of the Right to not self incriminate is based on that this one is not subject to any Temporary, meaning, it operates at any phase of the administrative or criminal proceeding. Said in other words, the authority could require at any phase of the verification proceeding information, data or documents from the governed, but this one, is not obligated to present them if he considers that with them a sanction could be imposed, or also, initiate the exercise of the criminal action. With more strength, it operates on the liquidation ambient, where the treasury is in a complete aptitude to practice criminal action against the subject.


For that, if any contributor is being criminally prosecuted with the documents he provided in a voluntarily on the act of verification, is clear that this right operates, since at no moment the governed was warned that he had the right to not present all that aggrieve him. Evidence of that is that all the requirements from the authority with what the investigation was integrated with and the penal process do not contain in an express form the right for the governed to not self incriminate and for that, it was left defenseless, since it was his own accounting tools that help as base to implicate him and the State did not advice him of such right.

Under the prior primacies, it results evident that all the requirements of the authority should consigned, under penalty of nullity of any action, since the same is not constructed as aright to evade or avoid the compliance of the fiscal obligations, but it stands as a right to safeguard the legal safety of the governed.

It results logic the interpretation of the article 76 from the Federation Fiscal Code when stipulates in its contents that when the treasury authorities discover an infraction, the infractor will be sanction with a fine stipulated in the same precept.
Here the condition sine qua non of precedence of that infraction is that the authority realize it and the particular no being the one that aware the authority of such emission, for that, if the contributor exercise the right to not self incriminate and refuses to provide information, then, it would be the authority who should advice of the infraction and investigate thought attest copies, bank statements, or any other mean, the infraction conduct and if this one is advised, it could exercise legal actions against the particular, because it was them who clearly advise it, nevertheless, if the particular provided the legal information or accounting that contain the respective omission, then no infraction would have being appropriate, since under the provision of the referred article 76, it was not the authority who notice it, but it was simply particular whom willingly provided the same.

Like this then, if the contributors, importers, custom agents are required by the fiscal authorities in the exercise of its attributions, they should have known, if with the provided information they could be object of criminal persecution or any administrative infraction. They should know if with the information they provide could be constituted a tributary illicit and with that determine, if they make use of this constitutional right.

This way, if the authority requires information in accordance to article 53 from the Federal Fiscal Code that regulates the terms and is not provided, the only thing it could do is fine the contributor for not presenting that information, and exercise the method of presumption determination, but it could not require it to the level of harassing the contributor. On the other hand, if in the use of faculties contained on article 145 A fraction III of the Federal Fiscal Code, pretends to seized the bank accounts, properties, merchandise, security boxes, rights or any other right of the company, this one could recur to the protection since the measure is unconstitutional and violates all substantive rights, since the money in the bank accounts that is seized during the phase of verification because of not providing the accounting, is for the payment of taxes and salaries, which are in essence non assurance and much less “sizable”. It was sustained by jurisprudence by contradiction of thesis 2ª/J.26/2007, visible in the weekly judicial of the Federation and its monthly gazette for the month of March 2007, page 299 with the title. “BANK ACCOUNTS. THE SUSPENSION AGAINST THE PRECAUTION SEIZURE TAKES EFFECT WITH OUT ANY GUARANTEE”.

In this context we conclude, that the contributor has the right to not self incriminate in the administrative or criminal branch, for that, if in the present a fiscal credit was liquidated with information provided by the contributor, or well, a criminal action was executed by the data obtained by the governed,, it is clear that a violation exist to the right to not self incriminate that tutelage the guarantee of legal security that rules all governed, reason why it should be made be worth in the respective tribunals to repair the violation on which the authorities incurred, since it was them who should have provided the data, information and elements that classify the infraction of tributary crime, and not the contributor, whom by mistake, ignorance, good faith or in compliance of a duty, provided the information that later was used to sanction him on the administrative and criminal means. For that, it should be brought to suit in both ways in the constitutional instance.

By: Grupo Farías, Tax Attorneys