Published: 2008-08-15

As it is of the knowledge of everyone, delinquency and organized crime has overcome the public institutions in Baja California. This overcoming is not conceived from the weapons point of view, intelligence systems or money with what the delinquent operates, but it should be perceived that this suppuration rises clearly because the delinquency infiltrated the public organizations at all government levels, and based on the obtained information on the same, such illicit activities are slanted and inclusive, they participate on them.

The taxes could be a useful tool to diminish, and inclusive, rearrange the insecure problems that prevailed in our State. For the taxes or contributions paid by the Businessman of Baja California could help for that purpose, it should


be mention on first term, that is not a matter of paying less taxes or not pay tribute, creating a state of anarchy, but to pay through a legal figure that allows the reinvention of mayor recourses that help fight the unsure problem directly in Baja California.

It is known by everybody, that the tributary jurisdiction falls on the Public Treasury, meaning, on a first term the treasury who should receive trough the federation treasury, the income that are perceived by contributions or exploitation or any other that the State has the right to perceive.

The universal approach and the one that operates in all the countries of the world is designed so that the tribute to collected by the State and this one at the same time, to distributed for the public necessities, among them, the insecurity.

The recollection concept and the extinction of the obligation, are directly linked, because as long as the treasury do not directly collect, it would be understand that the contributor has not comply with its fiscal obligations and this could cause serious problems to the business sector with a series of legal actions by the federal fiscal, state and municipal.

Then the question that arises in regards with the prior reasoning is: Could the businessperson pay taxes and comply with its fiscal obligations whit out depositing such amount directly to the treasury of the federation or with the state entities?

As it could be observed, our question confines several problems, since we try to prove, if the contributor at the moment of paying tax to a private organ different from the Public Treasury, complies or not with the law?.

Attending the prior premise, it should be said that in first place the contributor, it is unaware that he should pay taxes nor he pretends to do it in a less scale to the one it corresponds in accordance to the fiscal dispositions.

Neither it searches to not know the tributary authority of the State and its right to receive the tribute, but the only thing it ask for, is that given the wave of insecurity In Baja California, the search of tools that allow, from a technical point of view, deposit such amounts on a different entity to the public funds, that work as a renounce before the lack of actions against the organized crime.

Let us remember that the treasury is a natural tax creditor and the business man its debtor, because it was the legislative who granted such right with the administrative, tributary, extra tributary rules and Para tributary that regulate the authority to collect from the creditor to the public treasury, but that privilege was precisely designed considering that the State would take care of the public necessities, of the public objective and the common well. The question about this reflection: Has Baja California invested taxes to discourage delinquency. The answer evidently is no and is because of that that the essence of tribute fails, whose levy is designed to support the public and social necessities. Nevertheless, delinquency has not yet being dejected in our State, and for that, we repeat our question: Could the businessperson pay its taxes and comply with his fiscal obligations whit out depositing such amount directly in the federation treasury or in the State?

In appearance, no law exists, ruling or decree in Mexico that allows that a different entity other than the fiscal to receive the tribute, nonetheless it should be said that in a lot of countries it has been experienced the so called tributary independence, on which a State, entity or municipality or delegation survive with the resources that are contributed by their own community and those resources that are paid by concept of taxes, are not destined for different purposes of those programmed for that on region, which means that this figure does exists even do the same is not recognized yet in Mexico.

The called “tributary independence” exist in Mexico, on which the origin tribute authority has being conferred to the Federation, but this one at the same time, has transferred to the federal entities so they can take advantage and enjoy on one part, of the benefits by the collection of the tribute, such as it occurs on the agreements of administrative collaboration celebrated between the State Government and the Federation, on which a primary function of the federation is transferred to Baja California.

Like this, it could be said that the state could legally authorize that that tributary authority be transferred to the federal entities (second grade), to the cities (third grade), delegations (fourth grade) or also to the institutions that administer contributions for a common purpose, such as to take down crime (fifth grade), that could be represented by the chambers, confederations or associations of Baja California.

We shouldn’t loses sight that the right to collect taxes by the State is a right provided for by law, but that right closely related to the obligation to comply to the citizens with public services; obligation that is also provided for by law, then; if they should have provided security in Tijuana and did not realize it because the organized crime surpassed the authorities -, then, the right to receive the tribute is also lost or extinguished, because precisely the collecting function depends of this interaction right – responsibility. On which if they do not comply, I am not obligated.

Like this then, the tribute should be paid, when the public necessities and of public safety are satisfied, but if in Tijuana those satisfactoriness have not being received or that safety, then a mechanism of “indirect collecting” could be created that is subordinated to the society interest and that acts separately from the federal fiscal. This mechanism of indirect collection, should be legitimated in the law, thought the constitution of an entity (Association with out lucrative purposes or trust) that receives and administrates the contributions that should be paid to the Federation, the State and the Cities and formally should be destined to be spend on the public necessities, among them, those of public safety.

This organ of indirect collection could be constituted in a temporary manner or well, in a definitive manner and is not new in the world, since it has existed in the past institutions known by the name of “renting”, that have taken charge of collecting the tribute in an independent form with out the money passing the public funds. This institution of “renting” is help by another organ denominated “collaborator” which is banking or for banking entity (stock exchange, investment institutions, etc) that assists with the administration of the funds. The renting system had a great importance until the French War and was used since the Roman Public Treasury on the 753 before Christ, on which it was confine to the public or entities of capital very influenced, the manage and distribution of the funds.

These institutions started too disappeared because the financial freedom of the State was imitated, at the existence of a private State with in the public State, nevertheless, even do is not of use now in day, some European countries establish on their legislation the possibility of the existence of an entity of this nature.

The name of renting had a simple connotation, the State continue to be the right holder “owner of the authority” but a private entity had the use, disposition and possession of that property as if it was a tenant, re investing the funds on its self.

Next to mention, that if in Baja California is determined to implement a system of “indirect levy”, the fallowing is needed

-An entity essentially constituted by chambers, associations and agencies of renowned prestige and representation.

-A bank Institution or for banking where three accounts could be opened to make deposits that come from taxes destined for the Federation, State, or Cities.

-That the contributors continue complying with their fiscal obligations, extra fiscals and extra tributaries on their totality, meaning, keeping, Books, systems, registries and the actual obligations they have, but instead of depositing the money in the federal treasury, or State, they do it with the entity created for that purpose and in at the designated banking institution.

-The existence of a budget of expenses of the collected income.

-The existence of a monthly report to the federal, state, city treasury about the amount of the total amounts collected, the contributors that comply and the destine of that tribute.

-That the contributions administrated by such entity are not related to the foreign trade, only internal taxes.

-That the administrative entity enjoy of internal independence, meaning, to have a structure of collection, inspection, legal, budget and of supervision, management and governmental coordination.

-Local census of contributors.

-That the extras not destined for common purposes to be handed directly to the federation, state, or city that corresponds.

-That the original collecting authority of the public entities not to be ignored, but to simple enforced the collection authority of exercise, which is the one enforced by the public or private entities different from the federation.

-Standards of control, training, collection and destine of the money.

-That the private entity in this concept of indirect collecting, responds to the public treasury about the amount paid by a particular in compliance of its fiscal obligations, as much as in the contributions as in their accessories.

In such manner it could be concluded, that in attention to the prior considerations, if the businessman can pay for its contribution and obligations with out depositing such amounts directly with the Federation or State treasury, but should verify the existence of an agency created for that effect and that agency to comply with the appointed

stipulations in the prior points, which with out invading the tributary authority, will assist with the collected of the tribute for a direct distribution of the income, attending to the theory of the benefit, on which, the one that pays the most, would be majorly beneficiated.

By: Grupo Farías, Tax Attorneys