In today’s article in Law In Cabo we will talk about Fines for Late Filing of Tax Returns. Fines imposed for filing tax returns outside the period established by law are unlawful if they are based on article 81, section i, of the CFF.
In the first place, we must start from the principle that administrative sanctioning law and criminal law are manifestations of the punitive power of the State and given the unity of the latter, in the constitutional interpretation of the principles of administrative sanctioning law we must resort to the adduced principle of typicality, normally referred to criminal matters, This principle must be extended to administrative infractions and sanctions, so that if a certain administrative provision establishes a sanction for an infraction, the conduct carried out by the affected party must fit exactly within the previously established normative hypothesis, without it being licit to extend it by analogy or by majority of reason, since it is of strict application.
Being applicable to the specific case, the jurisprudence thesis P./J. 100/2006, issued by the Plenary of our Maximum Court, available in the Semanario Judicial de la Federación y su Gaceta, Volume XXIV, August 2006, page 1667, which states: “TIPICITY. THE RELATIVE PRINCIPLE, NORMALLY REFERRED TO CRIMINAL MATTERS, IS APPLICABLE TO ADMINISTRATIVE INFRACTIONS AND SANCTIONS. The principle of typicality, which together with the principle of reservation of the law make up the hard core of the principle of legality in matters of penalties, is manifested as a requirement of clear and precise normative predetermination of the unlawful conducts and the corresponding penalties. In other words, this principle is complied with when the law contains an intelligible predetermination of the infraction and the sanction; in any case, it presupposes the presence of a lex certa that makes it possible to predict with a sufficient degree of certainty the infringing conducts and the sanctions. In this order of ideas, it must be stated that the legislative description of the unlawful conducts must enjoy such clarity and univocity that the judge can know its scope and meaning when carrying out the mental process of typical adequacy, without the need to resort to legal complements that go beyond interpretation and that would lead him to the field of legal creation to make up for the imprecision of the norm. Now, since administrative sanctioning law and criminal law are manifestations of the punitive power of the State and given the unity of the latter, in the constitutional interpretation of the principles of administrative sanctioning law, the adduced principle of typicality, normally referred to criminal matters, must be used, This principle must be extended to administrative infractions and sanctions, in such a way that if a certain administrative provision establishes a sanction for an infraction, the conduct carried out by the affected party must fit exactly within the previously established normative hypothesis, without it being licit to extend it by analogy or by majority of reason.
As well as the thesis sustained by the First Collegiate Tribunal in Administrative Matters of the First Circuit, published in the Judicial Weekly of the Federation, volume 86, Sixth Part, page 59, which states: “FINES. TYPICALITY OF THE INFRACTION. Article 11 of the Federal Fiscal Code is applicable to administrative fines, which are to be classified as profits in accordance with Article 5 of the Federal Fiscal Code, so that in the case of administrative fines, the precept that establishes them in relation to an infraction must be strictly applied, regardless of the law in which it occurs. And in this way, the principle of typicality of penalties is applicable to any fine (which is nothing more than an administrative penalty for an infraction of this order). That is to say, if any law establishes a penalty of fine for any infraction, it is thereby establishing an advantage, and in that aspect, that law is subject to the principle of strict application that states “nulla poena sine lege”, according to which if a sanction is applied to an offense, the conduct carried out by the affected party must fit exactly in the normative hypothesis, without it being licit to extend it neither by analogy, nor by majority of reason”.
Having established the foregoing, this plaintiff considers that the determining resolution dated *** of *** of *** of 2022 is illegal, since the authority, when issuing the challenged resolution, pointed out as motivation when imposing the disputed fines, that the plaintiff had filed several returns “outside the terms established in the tax provisions”; notwithstanding that such conduct is not an infraction assumption provided for in ordinal 81, section I, of the Federal Tax Code, as explained.
This leaves the plaintiff in a state of defenselessness, by imposing two fines by virtue of infractions that were not updated, based on a normative hypothesis that is not exactly applicable to the conduct attributed to the undersigned.
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