Reference in the Tax Statute to ‘rules’ and ‘instruments’ of the Code of Criminal Procedure. Some hermeneutical possibilities

Abstract

Tax auditing is the set of tools available to the administration for the purpose of verifying that the taxpayer has complied with its duty of self-assessment of the taxes with which it contributes to the public charges and, if necessary, to impose fines or penalties on those who evade or avoid their tax obligations. Although the Tax Statute established a robust catalog of sui generis, or “natural” means of proof of tax law, such evidentiary system is expanded through an express reference to the cognitive means of civil procedure legislation. In addition, thanks to Law 6 of 1992 -which reformed the Tax Statute-, the legislator also made two references to the criminal procedure regulations. Thus, Article 640-2 of the tax regime stated that in the tax inquiry and investigation “the rules” of the Code of Criminal Procedure shall be applied. On the other hand, Article 684-1 of the same Tax Statute, stated that in the investigation and evidence gathering in tax audit cases, “the instruments” established in the rules of the Code of Criminal Procedure may be used. This article postulates that the legislative wording of the reference to the criminal process is amphibological in such a crucial matter, and that the three main hermeneutical possibilities that emerge from the reading of the normative texts are contrary to the legal order, either because the references are useless -because they are overabundant-, or because they violate the principle of judicial reservation of public liberties, or because they simply constitute a symbolic use of criminal law. Thus, the referrals analyzed do not contribute -in any of the three hermeneutic eventualities studied- to the principle of participation of the citizen in public charges in accordance with the constitutional dictates on taxation.