Smuggling crime What is it and how is it configured? The crime of smuggling is very common in the border area of the Mexican State, so it is common for people who have not paid their contributions in foreign trade, or even compensatory fees, to be detained by customs agents when they realize that it was omitted. the payment of the same, that is why in this article we will help you by explaining what this crime is about and the options that exist when facing a criminal process of this nature.
1. What is smuggling?
The crime of smuggling is regulated in article 102 of the Federal Tax Code and is defined as follows:
Article 102.- Whoever enters the country or extracts goods from it commits the crime of smuggling:
I. Omitting the total or partial payment of the contributions or compensatory fees that must be covered.
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This fraction allows the crime to be committed under this fraction under two actions
Introduce goods to the country, evidently omitting the total or partial payment of the contributions or compensatory fees, and.
Extract merchandise from the country, also omitting the total or partial payment of the contributions.
In that sense, if you dedicate yourself to this activity of transporting goods from one country or another, or your business has this purpose, it is important to know the consequences of not paying the indicated contributions, in addition, there are already some cases where prison is applicable ex officio preventive for this crime.
II. Without permission from the competent authority, when this requirement is necessary.
For this point it is very important that they are advised by their lawyers in foreign trade matters, since it is through circulars, agreements of the federal executive, in addition to the laws that regulate this matter where we realize what type of merchandise they need from a permit from the competent authority.
III. Import or export prohibited.
In this fraction in the same way the crime can be committed under these two actions or hypotheses
introduce prohibited import merchandise into the country
extract prohibited export merchandise from the country.
In the same way, it will be necessary to be advised by your lawyer in foreign trade matters so that they are updated on the prohibited export and import goods, which are indicated in the general import and export tax law.
The crime of smuggling is also committed by those who intern foreign goods from the free zones into the rest of the country in any of the above cases, as well as whoever extracts them from the fiscal or supervised areas without having been legally delivered by the authorities or by the people. authorized to do so.
Also in article 103 of the same code, we can find more specific each of the actions that are considered contraband.
Under this analysis we mention that smuggling occurs in the following cases.
2. How does the crime of smuggling proceed?
Smuggling proceeds when the Federal Treasury presents its declaration with the exception of what is established in the third paragraph of art. 102 of the Fiscal Code of the Federation, that is, if the amount does not exceed $ 195,210.00 or ten percent of the taxes caused, whichever is greater, nor if the amount of the omission does not exceed fifty-five percent of the taxes that must be covered.
3. Is it a crime that warrants preventive detention?
Yes, as long as they are due to events as of January 1, 2020 and the circumstances indicated in the following point also exist:
-It is a matter of omission of contributions greater than 1,385,610.00, and in the event that there are compensatory quotas, which together exceed 2,078,400.00, or are merchandise of prohibited traffic, excluding merchandise of prohibited traffic that the federal executive has decreed in use of its powers indicated in article 131 of the federal constitution, and;
– They are exclusively qualified (article 108 subsection A to H of the Federal Tax Code)
These are the qualifiers:
– Use false documents.
– Repeatedly omit the issuance of receipts for the activities carried out, provided that the tax provisions establish the obligation to issue them. It is understood that there is a repeated conduct when during a period of five years the taxpayer has been sanctioned for that conduct the second or subsequent times.
– Manifest false data to obtain from the tax authority the return of contributions that do not correspond to it.
– Not keeping the accounting systems or records to which one is obliged in accordance with the tax provisions or entering false data in said systems or records.
– Omit withheld, collected or transferred contributions.
– Manifest false data to make the compensation of contributions that do not correspond to it.
– Use false data to credit or reduce contributions.
– Declare non-existent tax losses.
It does not apply for events prior to January 1, 2020, due to the fact that the criminal tax reform that entered into force on January 1, 2020 is where these new penalties are indicated.
4. Does the reparation agreement proceed?
For this crime it is not appropriate to resort to the reparatory agreement since it does not fit into the assumptions established by the National Code of Criminal Procedures.
5. Is the conditional suspension of the process appropriate?
The conditional suspension of the process is a criminal procedural figure which aims to reach an “arrangement” with the victim, in this case the public treasury, which is met as long as:
the damage caused is repaired
the accused is obliged to fulfill a series of obligations during a period of time
Based on this, he indicated that the conditional suspension of the process is appropriate in the case of the omission of maximum contributions of $ 1,385,610.00, and in the event that there are compensatory fees, which as a whole do not exceed $ 2,078,400.00.
6. Is there a way out other than trial if I am being accused of smuggling?
Yes, there is a different solution to the trial which is established in article 92 of the Federal Tax Code, mentioning that before the public prosecutor and legal adviser formulate the closing allegations, it can be dismissed at the request of the Secretary of Finance and Public Credit, as long as the defendants pay the contributions originated by the imputed facts, the sanctions and the respective surcharges or the tax credits are guaranteed to the satisfaction of the Secretariat.
This means, more words or less words, that already being in process and before the order is issued that opens oral proceedings, it can be sought to pay the omitted taxes, so in case the finance ministry, through its advisor Treasury, agree with the offer, the latter may request that the public prosecutor dismiss the process, which will result in the acquittal of the accused, and therefore, his freedom.
The Mexican criminal process explained in English
