Tax information requests derive from the Tax Administration’s power of inspection. Its main function is to request information and documentation from the taxpayer to determine their tax liability, that is, to determine the collection of taxes by coercive means.
This power of inspection is regulated mainly in the Tax Code and, through art. 21 “A”, paragraph 17, it was stipulated that requests for information give rise to the administrative process. In this way, this article allows the request for information to be made the first procedural act; and like any act of the Public Administration, these can contain formal errors that affect the rights of taxpayers.
For this reason, requests for information must comply with minimum parameters to be admissible. Among the most important are the following:
- The request for information establishes, in a specific manner, the tax period and the tax to be audited.
- In the request for information, only information and documentation that the taxpayer is obliged to present can be requested. It is not appropriate to request prescribed information, information that cannot be materially presented and information that constitutes a business secret, among others.
However, there are three legal consequences of not presenting the information and documentation requested by the Tax Administration:
- Resistance to the auditing action of the Tax Administration. This legal effect occurs in the case that the information is not presented within the period of 3 days contemplated in 93 of the Tax Code, and its consequence is a sanction equivalent to 1% of the gross income obtained by the taxpayer during the last monthly, quarterly or annual period declared in the tax regime to be audited.
- Emergency precautionary measures. If the failure to provide information and documentation to the Tax Administration persists, the next legal consequence is the request for information made judicially by an Economic Coercive Judge, as regulated by articles 170 and 170 “A” of the Tax Code. If the information is not provided within the 10 days stipulated by law, the consequence is the certification of the crime of resistance to the inspection action of the Tax Administration.
- Crime of resistance to the Tax Administration’s auditing action. In the event of non-compliance with the court order issued in the emergency proceedings, the third legal consequence is the initiation of criminal proceedings for the crime, which is regulated in 358 “D” of the Penal Code. This crime can have the following consequences:
- Imprisonment for 1 to 6 years.
- A fine of 1% of gross income during the period under review.
- If it is a legal person, a fine equivalent to the amount of the omitted tax will be imposed, and if there is a repeat offense, the criminal court will request the definitive cancellation of the business license.
It is important to be aware of the legal consequences that may arise from the tax information requests that give rise to the administrative file. For this reason and given the possibility that the Tax Administration may make mistakes in these information requests, taxpayers must present suitable means of defense to avoid administrative, judicial, or even criminal contingencies.