Prosecutors Are Instructed To Reject the Application of New Amounts Established in the Criminal Tax Law

The new Criminal Tax Law, which came into force on January 5, 2012, increased the minimum amounts from which imprisonment applies. In general, the amounts have been multiplied by four (for more information, please see “New Tax Criminal Law Amendment to Be in Force” in Marval News # 113 of January 3, 2012). Since such amendment and by virtue of “the most benign law” principle, several new pronouncements considered the new amounts to be applicable to previous events; therefore, some proceedings were filed on the basis that they do not reach the new minimum amounts in order to be considered a crime, and others were reclassified from “aggravated evasion” to “simple evasion”, which provides a lesser penalty.

On March 8, 2012, the Attorney General, chief counsel of the Federal Government, rendered Resolution No. 5/2012 which instructs prosecutors with criminal jurisdiction to object to the retroactive application of the new law regarding the increase of the amounts.

The Attorney General rejects the application of “the most benign law” principle, stipulated in the Criminal Code and several international treaties with constitutional standing, on the grounds that the legislative amendment has not responded to a change of the social value of the offenses being punished but is based only on the need to offset inflation since the enactment of the previous law.

The Attorney General is pre-empting in refusing the application of the “Palero” precedent, in which the Federal Supreme Court decided that a law which had increased the amounts provided by the Criminal Tax Law for the crime of misappropriation of social security contributions should be applied retroactively. At that time, the opinion of the former Attorney General, whose grounds the Court relied on to resolve the case, argued that the amendments implied the “decriminalization” of the behavior, so if the most beneficial law was not applied the principle stipulated in international treaties would be violated.

The Attorney General mentions different precedents and arguments in support of his position. Thus, he proposed to discard the applicability of the constitutional principle of “the most benign law” which, as the Court has established on several opportunities, operates automatically.

In conclusion, it is expected that the prosecutors handling criminal cases affected by the new Criminal Tax Law abide by the instructions of the Attorney General and then it will be up to courts to pronounce on the application of the principle of “the most benign law”.