JURISDICTIONAL CRITERION 6/2022
“FINE. IT IS UNLAWFUL TO IMPOSE THE FINE FOR HAVING FILED THE TAX RETURN OUTSIDE THE TERMS ESTABLISHED IN THE TAX PROVISIONS, SINCE SUCH CONDUCT DOES NOT FALL UNDER ANY OF THE INFRINGEMENT ASSUMPTIONS SET FORTH IN SECTION I OF ARTICLE 81 OF THE CFF. The referred article provides that the following conducts are offenses related to the obligation of payment of taxes, filing of returns, applications, documentation, notices, information or issuance of certificates and the entry of information through the Tax Administration Service’s website: a) failure to file the returns, applications, notices or certificates required by the tax provisions; b) failure to file them through the electronic means indicated by the Ministry of Finance and Public Credit; c) filing the referred obligations, at the request of the tax authorities; d) failure to comply with the requirements of the tax authorities to file any of the documents or electronic means; and e) compliance with the requirements of the tax authorities to file any of such documents or electronic means, outside the deadlines indicated therein. By virtue of the provisions of the aforementioned normative portion, the Jurisdictional Body resolved that the determination of the authority to consider that the conduct consisting of “having filed the tax return outside the terms established in the tax provisions” is illegal, since the conducts referred to in paragraphs a) and b) are only applicable when the tax returns are not filed; the one indicated in paragraph c), occurs when the returns are filed at the request of the authority, while the cases indicated in paragraphs d) and e), occur when the requirements of the authority are not complied with, or the compliance is made outside the term granted in the requirement, resulting evident that the conduct motivated in the fine imposed, consisting of having filed the return outside the terms established in the tax provisions, is not located in any of the cases of infraction set forth in the cited article.
Administrative Litigation in the summary proceeding. Gulf Regional Chamber of the Federal Court of Administrative Justice. 2021. Final Judgment
Thus, the conduct deployed by the undersigned, consisting of filing several tax returns “outside the terms established in the tax provisions”, does not FIT in the legal provision cited by the authority, Article 81, section I, of the Federal Tax Code, which generates the lack of adequacy between the legal grounds invoked by the defendant and the observed conduct.
This becomes even more relevant if it is considered that, according to the principle of typicality, applicable both to the infractions and to the administrative sanctions, the conduct carried out by the plaintiff should fit exactly in the assumptions contained in the grounds invoked by the defendant authority, without it being valid to extend them by analogy or majority of reason.
For this reason, it is concluded that the authority used as a fundamental reasoning to issue the challenged resolution, a conduct that is not exactly foreseen as an infraction in the numerals cited as the basis of said administrative act; hence, it is evident that the observed infraction did not occur and, therefore, the imposition of the sanctions against this plaintiff is not justified, since there is no correspondence between them.
It is applicable to the specific case, mutatis mutandis, the Jurisprudence Thesis sustained by the First Collegiate Tribunal in Administrative Matters of the First Circuit, of the Seventh Epoch, visible in the Judicial Weekly of the Federation, page 280; whose heading and text establish: “VICTIATED ACTS, FRUITS OF. If an act or proceeding of the authority is flawed and unconstitutional, all the acts derived from it, or that are supported by it, or that in some way are conditioned by it, are also unconstitutional by their origin, and the courts should not give them legal value, since doing so, on the one hand, would encourage vicious practices, whose fruits would be exploitable by those who perform them and, on the other hand, the courts would become in some way participants of such irregular conduct, by granting such acts legal value”.
In such conditions, this plaintiff requests the decree of NULL AND VOID of the challenged resolution, for having been issued in contravention of the provisions applied, failing to apply the due provisions; which actualizes the ground of illegality provided in Article 51, section IV, of the Federal Law of Administrative Contentious Procedure, and consequently it is appropriate to declare its nullity, in terms of the different numeral 52, section II, of the same Law.
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