1 | Modification of the criminal tax regime
Law 27,430, published in the Official Gazette of 12/29/17, established a new criminal tax regime, which repealed the previous one (Law 24,769 and its amendments), which maintained the system of minimum amounts of money that must be exceeded to be configured several of the crimes contemplated therein.
These modifications in the crimes, configure an assumption that gives rise to the disincrimination of all those conducts that, due to the change in criminal law, have fallen below these new minimum amounts. Returning from the judicial fair, the lawyers and court-appointed courts began to apply this peaceful interpretation, which in criminal tax matters was supported by two old Court precedents, the Cristalux SA and Palero rulings.
But the peace did not last long, since on 2/21/18 the Attorney General of the Nation issued General Instruction 18/18, which refloated the questioned directives that Esteban Righi had made, when he held that position, PGN 5/12 , and consequently, he generally instructed all his subordinates to maintain until the last resort that the regulatory changes did not constitute a more benign criminal law, but a mere update of the amounts for monetary update issues.
Then, the AFIP did its thing, instructing the different areas of the organization to accompany the prosecutors in their criteria.
These two instructions gave rise to the promotion of a considerable amount of proposals and resources, which finally generated, as the Court itself highlights, an unprecedented situation in Federal courts throughout the country.
2 | Vidal Case – Criminal Cassation Chamber III
The majority of Chamber III had considered that Law 27,430 was not applicable to a case of tax evasion that occurred prior to its entry into force, as it was not a more benign criminal law and consequently, it did not enable its retroactive application in favor of the defendant. . Thus, as requested by the Prosecutor in his appeal, he married and annulled the sentence of Chamber B in Economic Criminal Matters, which, following the doctrine of “Palero” had dismissed the accused for the crimes of evasion.
Faced with this resolution, the defense requested the issuance of a plenary sentence by the Federal Criminal Cassation Chamber in full, in order to unify their criteria. We must clarify that only two members of Chamber III considered that we were not facing a more benign criminal law case.
The presidency of Chamber III did not allow the proposal because it considered that it did not comply with the requirements established in an agreed (3/12) and because it was not a final judgment. This denial motivated the filing of an extraordinary appeal before the Supreme Court, which gave rise to the ruling that we are commenting on.
3 | Supreme Court Resolution
The Court opened the appeal, and in doing so pointed out the need to overcome the situation of collapse caused by such a proliferation of recursive activity as a result of a discrepancy in the interpretation of the principle of non-retroactivity of the criminal law and the retroactivity of the criminal law. benign and thus put an end to a controversy of undoubted institutional significance.
The Court considered that the decision of Chamber III appeared to be compromised in a double aspect: a) the departure from the doctrine of “Palero” and b) having enabled the extraordinary route instead of treating the plenary.
In its lengthy ruling, it warns that the Cassation considers in a more restrictive way the concept of a final judgment to enable a plenary session that, to grant an extraordinary appeal, which is not consistent with the adequate provision of the justice service to avoid the perplexity of the habitants.
Having said this, he stressed that, to enable the extraordinary appeal, he should have previously settled the divergence raised in his own bosom, the plenary ruling of the entire Chamber of Cassation, in this case, was the final sentence.
Here we have one of the important points of this judgment, in the cases in which it corresponds, as in this one in which there was no uniformity of criteria within the highest federal court with exclusive competence in the matter, the Court must exhaust all the instances, that is, to meet in plenary session and issue a plenary sentence that unifies the interpretative criteria.
Considering that this duty, to convene the plenary, is a task that belonged not only to Room III, but to all the other rooms, when noticing the contradiction within, but instead, each one remained in its position and nothing was done other than to transfer the controversy to the Court.
The Court continued to analyze the appeal, despite the fact that it was in a position to pronounce the nullity of the decision by Chamber III and to return the case. It did so because it considered that, by virtue of the judgments of that Chamber, and the enormous amount of appeals filed by the Public Prosecutor’s Office and the AFIP, the entire federal jurisdiction was affected, and delaying the solution even more implied, aggravating the legal uncertainty of all those persons subjected to the process who should have a response within a reasonable period of time. Here he began to treat that argument outlined to depart from “Palero”, according to the Court the only one is that of the monetary update. The same as the Procurator in both resolution 5/12 and 18/18.
The Court is the highest court and due to the stability of the institutions in similar cases, its decisions must be followed and considered by the lower courts, “it is inherent to its constitutional function that when it exercises jurisdiction, it imposes on the national and provincial courts, the obligation to respect and abide by the constitutional doctrine embodied in its decisions ”.
It considered that Chamber III had withdrawn without grounds to justify it from the interpretation of the guarantee of retroactivity of the more benign criminal law, set in Palero, lacking any grounds. It harshly indicates “there is no reason why the referred monetary update should authorize the non-application of the Palero solution.”
It also recalls that the arguments of the monetary update had already been filed previously by the accusing parties, due to previous modifications of the quantitative amounts and these resources had been rejected (Art. 280 CPCyC). That the argument that Law 27,430 raised the quantitative amounts of criminal charges, in order to maintain equal treatment over time between maneuvers of equivalent economic value at a time of monetary depreciation, constitutes a dogmatic statement that does not find support in element of judgment. But not only the Camaristas of Cassation received reprimands, there were also reprimands by the interim Attorney General, who coincidentally in the preceding Palero, when he was deputy attorney, held the position contrary to his instruction, the Court highlighted it in the ruling. The important thing is that, as a result of this ruling, both AFIP and the Attorney General immediately set aside their general instructions, which they expressly repealed.
4 | Fresh air of unconstitutionality
One cannot fail to point out that the unnecessary procedural activity that took place has led us to tremendous jurisdictional wear, especially when only two of the thirteen members of the Cassation had that position and they formed a Chamber due to the rotation own of its members annually, so that their special theories against the rest were imposed and were not solved by means of the plenary ruling in their own bosom, without the need to unnecessarily burden the Supreme Court.
The important thing is that this jurisdictional waste not only exhausts the subjects subjected to the process and their lawyers, but also the judges, who must recharge their tasks, which implies time, man hours, unnecessary expenses, even paper. An enormous waste of money, which goes against a procedural principle that is that of economy and another that is that of control, because the court that had to put an end to this we call intellectual whim had the means to do so by calling or opening the appeal of inapplicability that the party had filed. But perhaps the most encouraging thing about the Vidal ruling is that at a time when we are all scared by the lack of institutionalism that the country is going through, this Supreme Court ruling, putting things in their place and saying what it should say firmly now Whoever the gown fits, we receive it like that restorative drizzle on an intense summer night and it allows us to say, paraphrasing Shakespeare, “not everything is rotten in Denmark”.
From the Tax Criminal Department of the Bertazza Nicolini Corti y Asociados Law Firm.