How am I going to appear in court if the prosecutor accuses me of tax fraud? (Practical case)

How am I going to appear in court if the prosecutor accuses me of tax fraud? (Practical case)

Practical case:

To Juan in his capacity as administrator of the legal entity “X y” S.A de C.V. A tax credit was imposed for the amount of 10 million pesos for non-payment of income tax in fiscal year 2020.

By not facing the payment of the omitted contributions, the Federal Public Prosecutor’s Office makes the decision to file a complaint for the crime of Tax Fraud and immediately begins the investigation by the Federal Public Ministry.

How does the criminal process begin?

1.- The first step will be precisely for the federal public prosecutor to collect all the necessary evidence data for the purposes of proving the criminal type and the probable responsibility of the accused (Juan).

2.- The federal prosecutor can carry out investigative acts without the need to notify them, in certain cases, based on his obligation indicated in the National Code of Criminal Procedures:

Article 131. Obligations of the Public Ministry For the purposes of this Code, the Public Ministry shall have the following obligations:

V. Initiate the corresponding investigation when appropriate and, where appropriate, order the collection of evidence and means of proof that should serve for their respective resolutions and those of the jurisdictional body, as well as collect the necessary elements that determine the damage caused by the crime and its quantification for the purposes of reparation.

3.- Likewise, on the other hand, there will be means of proof such as bank accounts or financial information that the Federal Public Ministry will need to ask the judge for permission (judicial control) because it is an act of nuisance that disrupts the privacy of taxpayers (16 Constitutional).

Basis for obtaining financial information of the taxpayer extracted from the National Code of Criminal Procedures:

Article 252. Investigative acts that require prior authorization from the Control Judge With the exception of the investigation acts provided for in the previous article, all investigation acts that imply violation of rights established in the Constitution require prior authorization from the Control Judge. as well as the following:

Vl.The others indicated by the applicable laws.

What type of criminal offense will Juan be accused of?

As was indicated, the amount of the defrauded is 10 million pesos, so we will have to attend to what the federal tax code indicates.

Federation fiscal Code

Article 108.- Commits the crime of tax fraud who, with the use of deceit or taking advantage of errors, totally or partially omits the payment of any tax or obtains an undue benefit to the detriment of the Federal Treasury.

The crime of tax fraud shall be punished with the following penalties:

III. With prison from three years to nine years when the amount of the defrauded is greater than $ 2,898,490.00.

In this case it obviously goes beyond this point.

What will be the form of conduction of the accused to process, will it be by means of a summons or will it be by means of an arrest warrant?

In this case, it will depend on the way in which the prosecutor attributes the fact to the Control Judge, I say this for the following:

A) Article 19 of the Constitution indicates among the crimes that merit informal preventive detention the following

The judge will unofficially order preventive detention … as well as serious crimes determined by law against the security of the nation.

B) Now, by reason of the national security law, it states the following:

Article 5.- For the purposes of this Law, the following are threats to National Security:

[…] XIII. Illicit acts against the federal treasury referred to in article 167 of the National Code of Criminal Procedures.

C) And article 167 of the National Code of Criminal Procedures states the following:

Crimes that merit informal preventive detention are considered those provided for in the Fiscal Code of the Federation, as follows:

[…] I. Tax fraud and its equivalent, in accordance with the provisions of articles 108 and 109, when the amount of the fraud exceeds 3 times the provisions of section III of article 108 of the Federal Tax Code, exclusively when are qualified.

Now, based on this analysis, the following conclusions must be reached:

Conclusions: How am I going to appear in court if the prosecutor accuses me of tax fraud?

1. Although evidently the 10 million pesos exceed 3 times what is indicated by section III of article 108 of the Federal Tax Code (8,695,470), if the public prosecutor does not generate its accusation with any qualification (indicated in the same article 108) In that sense, he must be taken to the criminal process and to the initial hearing to formulate the summons by summons (Article 310 of the National Code of Criminal Procedures)

The general rule is that people attend the appointments made by the Control Judge (Criminal Judge) in freedom.

2. Now, the other scenario is that the federal prosecutor generates his accusation attaching some of the qualifications indicated in article 108 of the Federal Tax Code, now if in this scenario, that is, the assumption in which it exceeds 3 times the amount indicated in section III and is also qualified, this achieves that the accusation of the crime meets the requirements to be considered as those who put national security at risk (19 constitutional), that is why in that sense, Juan will know that he has a criminal process until the arrest warrant is completed, since there is a need for caution in it.