seizure of assets of the taxpayer or of his business as an enforcement measure is unconstitutional. [28/09/2012]
On September 27, 2012 the Plenary of the Supreme Court of Justice of the National ruled that there were contradictory decisions with respect to the interpretation and scope of article 40, section III of the Federal Tax Code held by the First Chamber (it is unconstitutional because it violates the right to legal security) and the Second Chamber (the measure is appropriate and proportional in order to overcome resistance to the exercise of investigative powers) of the Court.
The Plenary determined that a contradiction of decision exists between the interpretations of the two chambers and that the interpretation of the First Chamber should prevail as court precedent. Which is to say that article 40, section III of the Federal Tax Code is unconstitutional because it violates the right to legal security.
The new court precedent resulting from contradictory decisions is relevant in light of an instrument that was heavily used in the PAN administrations as a means of coercion to get concessions from private parties in processes of determining tax liabilities, in which the application of the enforcement measure left taxpayers practically defenseless prior to the determination on the merits of the validity/legality of the action pursued by the State. In this regard the seizure of accounts was similar to a criminal restraining order:
Both concepts “invented” by the PAN administrations,
Both abusively and excessively used by the State in the absence of legal elements for properly grounding its actions,
Both violating human rights, and finally,
Both now buried in the legal cemetery.
We hope that neither of them are resuscitated assuming the form of legal zombies in any future film.
Although the final draft of the resolution has not been published a summary of the session can be consulted at: http://www2.scjn.gob.mx/AsuntosRelevantes/pagina/SeguimientoAsuntosRelevantesPub.aspx?ID=140660&SeguimientoID=499
If you would like to learn more about this matter please contact Lic. Rafael Sámano: rsamano@samanosc.com.mx