Tax Administration REVIEW Inter-American Center State Agency of Institute of Fiscal Studies of Tax Administrations Tax Administration MINISTRY OF FINANCE AND PUBLIC ADMINISTRATION Nº45 CIAT AEAT IEF SEPTEMBER 2019 ISSN 1684-9434 Nº45 SEPTEMBER 2019 DIRECTOR OF THE REVIEW EDITORIAL POLICY Márcio Ferreira Verdi The Technical Cooperation Agreement signed by CIAT EDITORIAL COUNCIL and the State Secretariat of Finance, the State Agency Márcio Ferreira Verdi of Tax Administration (AEAT) and the Institute of Fiscal Santiago Díaz de Sarralde Miguez Studies (IEF) of Spain, provided for the commitment Alejandro Juárez Espíndola of editing a review that would serve to disseminat the Juan Francisco Redondo Sánchez different tax approaches in force in Latin America and Europe. An Editorial Board formed by CIAT officials (the Executive EDITORIAL SECRETARY Secretary, the Director of Tax Studies and Research, the Neila Jaén Arias Director of Training & Human Talent Development and Head of the Spanish Mission) is responsible for determining the topics and selecting the articles for each edition of the CORRESPONDENCE Review. Communication must be addressed to: [email protected] The articles are selected, through a public announcement made by the CIAT Executive Secretariat for each edition AUTHOR’S RESPONSIBILITY of the review. It is open to all officials of the Tax, Customs The opinions expressed by the authors do not represent Administrations and/or Ministries of Economy and Finance those of the institutions for whom they work or those of of the CIAT member countries and associate member the CIAT Executive Secretariat. countries. Likewise, those members of the MyCiat Community not belonging to any of the aforementioned entities may also participate, following evaluation by the COPYRIGHT Editorial Council. No part of this publication may be reproduced without the written authorization from the CIAT Executive Secretariat. SPONSORING ORGANIZATIONS Inter-American Center State Agency of Institute of Fiscal Studies of Tax Administrations Tax Administration MINISTRY OF FINANCE AND PUBLIC ADMINISTRATION CIAT AEAT IEF Content 3 Editorial MÁRCIO FERREIRA VERDI 5 Theory of proof in tax assumptions MARIANO J. CURIO 35 Tax Policy vs Cadastral Policy, new role play DIEGO ALFONSO ERBA 49 Comments on Action 12 of BEPS and its inclusion in México MARCO ANTONIO MORALES MEJIA / MIGUEL GAETA ROSALES A vision of the relationships of tax crime and money laundering Spanish model of institutional collaboration between the financial intelligence unit 65 and the tax administration ROCÍO GAMO YAGÜE / IGNACIO PÉREZ-HICKMAN TIEDTKE 87 Analysis tools for the fight against corruption LAURA MARÍA GARCÍA CARRIZOSA 107 Customs valuation and transfer pricing documentation LEONARDO MACEDO 117 BEPS Action Plan and its impact on Ecuador MARLON MANYA ORELLANA 131 Brazilian Tax Burden in historial perspective . Statistics reviewed JOSÉ ROBERTO R. AFONSO / KLEBER PACHECO DE CASTRO 147 2013-2016 Estimate of Sales Tax (ST) Evasion in Honduras DAVID PINEDA PINTO / PEDRO ZÚNIGA Electronic Contracting in the State Agency of Tax Administration 159 after the new Public-Sector Contract Law OLGA LUISA SÁNCHEZ GIL 179 REVIEW: Hacienda Pública y Gobernanza Fiscal en España: Desafíos 2020 COORDINATORS: MARÍA JOSÉ GARDE GARDE / JESÚS GASCÓN CATALÁN / TOMÁS MEROLA MACANÁS FOREWORD: ÁLVARO RODRÍGUEZ BEREIJO Content Editorial Dear Readers, We are pleased to present to all the tax on Ecuador; Brazilian tax burden in historical administrations officials of the members and perspective statistics reviewed; 2013 - 2016 associates member countries of our organization Estimate of sales tax (ST) evasion in Honduras; and, in general, to the entire international tax Electronic contracting in the State Agency of Tax community, the Tax Administration Review that is Administration after the new public-sector contract published as part of the Technical Cooperation law. In addition to these articles, a new section of Agreement that CIAT maintains with the State reviews of other publications of interest is included Secretary of Finance, the Institute of Fiscal Studies in this issue in relation to the book “Hacienda A vision of the relationships of tax crime and money laundering (IEF) and the State Agency for Tax Administration Spanish model of institutional collaboration between the financial intelligence unit Pública y Gobernanza Fiscal en España: Desafíos and the tax administration (AEAT) of Spain. 2020”. In recognition of the professional career in the public sector of Mr. Juan Antonio Garde Roca”. This edition presents (10) articles: Theory of proof in tax assumptions; Tax policy vs. Cadastral We appreciate the great reception given to the call policy, new role play; Comments on action 12 of to submit contributions for this edition of the Tax BEPS and its inclusion in Mexico; A vision on the Administration Review. relationships of tax crime and money laundering LEONARDO MACEDO Spanish model of institutional collaboration We reaffirm our commitment to disseminate between the financial intelligence unit and the tax information of interest that contributes to learning administration; Analysis tools for the fight against and stimulates the transfer of useful knowledge for corruption; Customs valuation and transfer pricing the international tax community. documentation; BEPS action plan and its impact Márcio Ferreira Verdi Director of the Review INDEX THEORY OF PROOF in Tax Assumptions Mariano J. Curio SYNOPSIS The purpose of this paper is to unravel the legal The characteristics of each element that comprises structure of the assumptions that are used in the this, the type of reasoning involved and the nature procedural field of tax law. of the evidence obtained by result will be identified, to finally enter into the analysis of the particularities The aim will be to provide tools to identify the that this type of evidence has concerning the presence of an assumption, and in that case judge taxable event and the role that the tax base plays. its appropriateness in line with the tax and general principles of law; all this in the area of proof of the taxable event deployed by tax administrations in the exercise of their powers of control. CONTENT 1. Preliminary aspects. Sources and means of 6. The presumed fact in the assumptions of art. proof 18 of Law 11.683 2. The degree of conviction of assumptions 7. The proof of the piece of evidence 3. The crux of assumptions 8. Conclusion 4. The assumption 9. Bibliography 5. The link between the signs and the presumed fact. The rules of sound criticism THE AUTHOR Public Accountant, from the National University of Lomas de Zamora (UNLZ); Master in Tax Law, from the Catholic University of Argentina (UCA); Tax Auditor with the Federal Administration of Public Revenues (AFIP). INDEX INTRODUCTION sources of evidence presented to our assessment; I would further dare complement the classification The theory of proof of assumptions does not have a proposed by maestro Carnelutti to adapt it to the most purely dogmatic interest but will allow to accurately modern conception. identify the presence of an assumption, which sometimes is a bit confusing1, as well as provide tools that allow Then, I will analyze each of the components of the judging the proper configuration of these phenomena phenomenon, as well as the type of logical reasoning to under the principle of reasonableness. In addition, this which the act of assuming belongs. knowledge will allow to identify the presence of chains of assumptions and when this type of phenomena I will study the degree of conviction involved in the invalidates the proof that is tested. presumed event, the characteristics that the indications must possess and the questions that revolve around While the theory of assumptions is common to their proof, such as the complex indirect proof and the all classifications, the work will be more useful in complex source of evidence. understanding the structure of simple, hominis or human assumptions, while its construction is under the I will devote more time to the study of the link between public official who serves as administrative judge, and the indications and the presumed fact, highlighting its eventual revision under the judge. This authority the fundamental role that exceptions play. Along this in the Argentine law is included in article 18 of the law line, I will define what is meant by rules of experience 11.683. and by the norms of sound criticism, even offering a classification of the former. Notwithstanding the foregoing, the examination that will be carried out will have a practical interest on the Inevitably, I will analyze the particularities that this relative legal assumptions or iuris tantum assumptions technique possesses when the presumed fact is contained in that legal provision, given that it is not represented by an event considered as a incidence uncommon for these to be complemented by simple theory of the tax obligation, emphasizing the role played assumption. by the tax base. To do this, I will take as basis the positions of two great First Definitions authors. On the one hand, the teachings of Francesco Carnelutti who is considered one of the mentors in the Assumption can be defined as the logical process that study of the theory of proof in our country. And on the is performed by inferring from one or more known facts other hand, a more modern vision of the subject as it is the existence of another. From that simple definition, it done by Enrique Falcón. is clear that such an act consists of three elements or parts, with one or more indications, the logical process In this order of ideas, it will first be necessary to make and the fact to be proven. a brief approach on the classification of the different 1 It is often disputed whether the challenge of deductions and tax credits by the State Treasury, questioning vouchers as fake, turns out to be a assumption. About this case in particular, I will address at the end of this work.