The current COVID 19 situation has left us with a lot of unprecedented changes and has forced us to adapt to a series of unimagined personal and social changes. At this juncture, the fulfillment of obligations had a series of variations and innovations that are hard and necessary to adapt. The above, because we could be exposed or incur in an administrative or criminal sanction from the fiscal point of view. Under this perspective, it is important to define in which scenario we would be facing a tax crime.
As a first instance, we cannot forget that the tax legislation has the following objectives: a) create taxes, b) modify taxes, c) extinguish taxes, d) exonerate taxes, e) control the tax compliance and f) the tax collection. Additionally the Tax Authority has the faculty to inspect such compliance in a way that it can satisfy the needs of the State and its institutions. In our opinion, this type of legislation does not have as its main objective to apply a sanction to t taxpayer. Consequently, the tax legislation does not pursue in itself pecuniary or punishments that restricts freedom against the taxpayer. However, there is no doubt that Tax Administration has to proceed with further efforts, in order to be effective in the tax collection and that is why, the State is allowed to apply tax sanctions to the taxpayers that fails to comply with such requirement. A Reliable proof of the abovementioned situation is that the main purpose of the State is not the sanction itself, instead, it is constituted by the legal excuse, indicated in article 92 of the Code of Tax, which states as follows: “It would be deemed as a legal excuse, the fact that the taxpayer complies with the tax obligation, without the requirement from the Tax Authority” In order words, this means that the taxpayer can repair the damage without being criminally prosecuted as long as it proceeds with the economic repair without having been warned by the Tax Administration.
In our legal system, tax crimes are regulated in the Code of Tax, Regulations and Procedures, specifically in Title III “Tax Illicit Acts”. Following Article 65.- Unlawful tax acts are classified into (i) administrative infractions and (ii) tax crimes. The Tax Authority will be the main entity to enforce the sanctions for administrative infractions. They will consist of economic fines and business closures. On the other hand, the Prosecutor Office and the Criminal Courthouse will be responsible of dealing with tax crimes through the entities designated for such purpose. The sanctions that apply in case they are responsible for tax crimes are: a punishment which restricts freedom and additionally with the payment of the pending economic sum not received by the Tax Administration.
In the case of administrative offenses, we can indicate, for example, article 78.- Omission of the declaration of registration, modification, or deregistration; Article 79.- Omission of the tax returns filing, Article 80.- Late payment of the tax determined by the Tax Administration, as well as the omission of issuing invoices. On the other hand, when we talk about Tax Crimes, we normally tend to think about Tax Evasion, however, there are various crimes that can be committed, that punish not only the obligated parties but also public workers related to Tax Administration, in which we can state, the following articles: Article 95.- Improper management of information systems: It will be sanctioned with three to five years in prison, who, without authorization of the competent authority, seizes, uses, copies, destroys, disables, alters, conserves or transfers, by any means, information systems or database or information contained through them, which is used by the Tax Administration and provided that they have not been declared by resolution for public use. Article 96.- Facilitation of passwords and code of access: Whoever provides their assigned password and/or code of access, in order to enter the tax information systems, will be punished with three to five years of prison. Article 98 bis. — Criminal liability of a public servant due to an act of willful default: It will be sentenced with one to three years of prison plus the in-habilitation of ten to twenty years to hold public positions, the public servant that due to recklessness, negligence, or inexcusable carelessness in the exercise of his functions, enables or helps the obligated parties with the noncompliance of the tax requirements and/or with the investigations of such failure.
There is no doubt, that the tax crime that occupies more the attention of the taxpayers , is “Article 92.- Fraud to the Public Treasury: Anyone who, by action or omission, defrauds the Public Treasury with the purpose of obtaining, for himself or for a third party, a patrimonial benefit, in which defaults the payment of taxes, amounts withheld or that should have been withheld, or income on account of remuneration in kind or unduly obtaining returns or enjoying tax benefits thereof form, provided that the amount of the defrauded quota, the amount not paid from the withholdings or the income on account or from the refunds or the tax benefits unduly obtained or enjoyed exceeds five hundred base salaries, will be punished with five to ten years of prison
As it can be seen, this is a crime, that contains a boundaries of actions, that can be considered criminal. Therefore, some important aspects must be taken into account: 1) that the amount of five hundred base salaries that will be considered an objective condition of punishment, It must be related to what is indicated in article 2 of Law No. 7337 which refers to The denomination “base salary”, (…), corresponds to the amount equivalent to the monthly base salary of “Clerk 1” that appears in the list of positions of the Ordinary Budget Law of the Republic, approved in the month of November prior to the date of consummation of the crime.
In accordance with the previously stated, the base salary established in the year (2021) is ¢ 462,200.00, which means that the actions described in the aforementioned criminal type, in order to be investigated as such, evasion must exceed the amount of 231,100. 000 (two hundred thirty-one million one hundred thousand exact colones). 2) Another aspect of relevance and that always generates doubt, is that this amount should not include interest, fines, or any other penalties. This is an aspect that has been previously discussed, as it is consider by some colleagues that this tax crimes should be modified, so that more tax criminals could be taken to the criminal courthouses due to their evasive actions. This is a thesis which we do not share. The above, because in our opinion, what is relevant is not the criminal sanction, instead, we think that the possibility of using existing mechanisms is the way to increase tax collection and as a last resource criminal proceedings.