https://doi.org/10.37955/cs.v8i2.344
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The extinction of the crime of tax
fraud regarding the payment of the
obligation in Ecuador
La extinción del delito de defraudación tributaria frente
al pago de la obligación en Ecuador
Jonathan Alexander Jiménez Pilco
Estudiante de la Universidad Indoamérica, Facultad de Jurisprudencia y Ciencias
Políticas, Carrera de Derecho.
https://orcid.org/0000-0003-3286-3022
Jjimenez24@indoamerica.edu.ec
Esthela Paulina Silva Barrera
Abogada de los Tribunales de la República del Ecuador, Magíster en Derecho
Tributario, Especialista Superior en Derecho de la Empresa y Magíster en Derecho de la
Empresa, Docente de la Universidad Indoamérica
https://orcid.org/0000-0003-4354-9258
esilva13@indoamerica.edu.ec
ABSTRACT
This study focuses on the analysis of Article 298 of the COIP, which
penalizes tax fraud and emphasizes the role of the Tax Administration
as an active subject in the exercise of criminal action, even when
taxpayers have fulfilled their obligations. It explores the relationship
between income tax payment and the lack of harm to the protected
legal interest in the crime of tax fraud, specifically in the "development
regime" according to the regulation. The study addresses the
complexity of tax fraud in the Ecuadorian legal context, focusing on
the challenge of reconciling harm to economic development with the
regulations allowing criminal action, despite compliance with tax
obligations. Additionally, it examines the regulatory framework
established in Article 298 of the COIP, which classifies illicit behaviors
related to tax fraud. The objective is to assess the absence of harm to
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the protected legal interest when income tax is paid or tax obligations
are fulfilled in this criminal type. The qualitative methodology
employed includes an analysis of the structure and modalities of the
offense, using analytical-synthetic and deductive methods, along with
literature and documentary review.
RESUMEN
Este estudio se centra en el análisis del artículo 298 del COIP, que
penaliza la defraudación tributaria y destaca el papel de la
Administración Tributaria como sujeto activo en el ejercicio de la
acción penal, incluso cuando los contribuyentes han cumplido con sus
obligaciones. Se explora la relación entre el pago del impuesto a la
renta y la falta de daño al bien jurídico protegido en el delito de
defraudación tributaria, específicamente en el "régimen de desarrollo"
según la norma, abordando la complejidad de la defraudación
tributaria en el contexto legal ecuatoriano, enfocándose en la dificultad
de conciliar la lesión al desarrollo económico y la normativa que
permite la acción penal, a pesar del cumplimiento de las obligaciones
tributarias. Además, se analiza el marco regulatorio establecido en el
artículo 298 del COIP, que tipifica las conductas ilícitas relacionadas
con la defraudación tributaria. El objetivo es evaluar la falta de
perjuicio al bien jurídico tutelado cuando se realiza el pago del
impuesto a la renta o se cumplen los deberes tributarios en dicho tipo
penal. La metodología cualitativa empleada incluye un análisis de la
estructura y modalidades del delito, utilizando métodos analítico-
sintético y deductivo, junto con la revisión bibliográfica y documental.
Keywords / Palabras clave
Tax Fraud, Tax Obligation, Crime, Omission, Intent, Deception
Defraudación Tributaria, Obligación Tributaria, Delito, Omisión,
Dolo, Engaño.
Introduction
The purpose of this research is to evaluate the lack of damage to the
protected legal right when the payment of income tax is made or the
tax duties are complied with according to the provisions of numeral 15
of article 298 of the COIP, and its relation with the lack of affectation
to the economic development as a protected legal right in the
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Ecuadorian context. To this end, research objectives and questions will
be formulated to justify the relevance of the topic in the legal and
economic sphere of the country. Income tax will be analyzed as one of
the most important tax obligations and the configuration of the crime
will be examined according to the elements established in the COIP.
Likewise, the exceptions of affectation to economic development as a
consequence of income tax evasion will be evaluated. The results will
support the internal validity of the study.
We describe how informed consent was obtained from the participants
and review the current regulations on tax obligations and their
extinction. Then, it is examined whether or not there is damage to
economic development, which is the legal good protected by the Tax
Code (2005). According to article 15 of said code, the tax obligation is
the personal legal bond between the State or the tax creditor entities
and the taxpayers or responsible parties, who must comply with a
benefit in money, species or services appreciable in money, upon the
occurrence of the generating event established by law. Therefore, the
tax obligation arises between the State and the taxpayer when the
generating event occurs. Article 6 of the same code states the purposes
of taxation.
Therefore, tax obligation is the legal duty that arises when the State
requires a taxpayer to pay an amount of money for the realization of a
generating event. Taxes not only have a collection function, but also
have an extra-fiscal function, i.e., they serve to guide the general
economic policy of the State.
This is established in Article 6 of the Tax Code (2005), which states
that taxes must stimulate investment, reinvestment, savings and their
channeling towards productive purposes and national development;
meet the demands of social stability and progress and seek a better
distribution of national income. Thus, the direct relationship between
the purposes of taxation and the legal good protected by the
Ecuadorian substantive criminal law, which is economic development,
is evident.
Reyes (2008) defines this concept as the process in which the real per
capita income of a country increases over a prolonged period of time.
National economic development depends, among other factors, on
state revenues, including tax revenues, which represent one of the
country's main sources of public financing.
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The tax obligation refers to the legal duty of individuals, companies
and other entities to comply with the payment of taxes established by
law. It arises as a consequence of the need to finance the expenses of
the State and the maintenance of its structures and institutions (Ponce
Álvarez et al., 2018). This obligation is established based on the
economic activities declared by the taxpayer and may vary according
to the type of tax and the economic activity carried out. Failure to
comply with tax obligations entails tax penalties and may be
considered a crime, as in the case of tax fraud.
Income tax is a tax levied on income earned by individuals or legal
entities, whether derived from labor or capital. According to Article 1
of the Internal Tax Regime Law (2004), the purpose of this tax is to
finance public spending and redistribute wealth. Therefore, it is a tax
obligation that must be complied with within the term established by
law. In order to determine whether this obligation is legally
established, the following elements must be considered: active subject,
passive subject, generating event, taxable base, rate and exemptions.
Income tax is applied to the liquid income obtained in the fiscal year
by individuals or legal entities, national or foreign, as well as undivided
successions. Income may come from various sources, such as
dependent work, business activities, capital investments, among
others. Most countries use a progressive tax system, where individuals
or entities with higher incomes pay a higher proportion of their income
in taxes.
The Tax Code (2005) defines the tax obligation as the legal bond that
arises between the State (or collecting entities) and the taxpayers
(taxpayers or responsible parties) when a generating event foreseen by
law occurs, and which obliges them to make payments in money, in
kind or services valued in money. In other words, it is the legal
relationship established between the State and the taxpayers when a
situation occurs that generates the duty to pay taxes. These tributes
serve to finance the functioning of the State and its services, and to
ensure the economic and social progress of the country (Ponce Alvarez
et al., 2018; Tubón Guerrón, 2013).
Taxpayers are required to declare their income and calculate the
corresponding income tax, following the regulations and procedures
established by the tax authority. In some cases, deductions and
exemptions may be applied that reduce the taxable base and,
therefore, the amount of tax payable.
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It is a mechanism that allows the State to finance its functions and
improve social welfare, based on the contributive capacity of economic
agents. Thus, the government can provide indispensable public
services such as education, health, security and infrastructure. Income
tax also has an economic role, by encouraging investment,
reinvestment and savings, and a social role, by redistributing wealth
through progressive taxation, reducing income gaps (Tubón Guerrón,
2013). Tax resources are invested in national development, supporting
projects that promote sustainable growth and improve the quality of
life. In conclusion, income tax not only seeks to raise funds, but also to
generate equity, boost the economy and support initiatives that favor
society.
Compliance with tax obligations, including income tax, is crucial for
the economic and social stability of a country. Ignorance or non-
compliance with these obligations can lead to penalties and negatively
affect the country's growth and citizens' quality of life. Therefore, tax
policies should encourage citizens to file and pay their taxes correctly
and in a timely manner.
Failure to comply with the obligation to pay income tax results in the
application of penalties by the tax administration. In addition, it may
be considered a tax fraud offense if it is proven that there was an
intention to evade payment by concealing or falsifying information.
According to Bramont-Arias (1992), in the field of economic crimes, it
is found that the determination of the legal good cannot be established
precisely, since it does not directly attack a socially respected value,
but rather elements that ensure a space where other social values can
fully develop. In clearer terms, the legal good in economic crimes
contributes to the proper functioning of the social system, which
presupposes the existence of other legal goods within it. Consequently,
the legal good is presented as a concept of a macro-social nature, of
interest and at the service of the collectivity as a whole, given that
everyone participates in the relationship that defines the economic
order.
By virtue of the foregoing and for the purpose of defining the legal good
in economic crimes, it can be stated that it is composed of the "set of
economic rules that structure a specific economic order of the State,
essential for the satisfaction of the needs of all the members of the
system". The legal good "economic order" is not conceived as any
injury caused to the economy in the process of production,
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distribution, consumption of goods and services, and subsequent
investment (economic process). In these cases, the injury is caused by
the perpetrator without considering or taking into account the
economic order (without a devalued action against the economic
order), but only taking into account the immediate damage caused to
a legal good of a macro-social nature. It is important to highlight that
the aforementioned injury may cause damage to the economic process
as a devalued result, but it is not configured as an action consciously
directed against the economic order itself.(COIP, 2014).
According to the above, the crime of tax fraud, typified in the COIP,
attacks "economic development" as a protected legal good. This
concept is examined in this part of our research, relating it to the
payment of income tax. To this end, a journey is made from tax law to
criminal law, seeking to understand the conditions that determine
whether or not economic development is harmed by this offense.
Economic development is a fundamental objective of public policies,
which seeks to improve the living conditions of the population through
sustainable economic growth and equitable distribution of wealth. It
is related to tax matters as it is a branch of law that regulates the
relationship between the State and taxpayers, establishing the rules
and principles that govern the imposition, collection and control of
taxes.
Tax law has an essential role in the protection of economic
development, since it allows financing the activities and public services
that promote it, as well as guiding the behavior of economic agents
towards social and environmental purposes. However, it must also
respect the rights and guarantees of taxpayers, avoiding arbitrariness,
abuse and confiscation in the exercise of taxation power. Thus, it must
seek a balance between efficiency and equity, between collection and
incentive, between control and trust, between general and particular
interests. In this way, it contributes to economic development from an
integral perspective, which considers not only the quantitative but also
the qualitative aspect of economic activity.
In turn, its fundamental objective is to guarantee the economic
development of a country by collecting taxes and preventing tax
evasion (Forero Hernández, 2020). This principle implies protecting
the economic and financial order of the nation, ensuring that the
resources destined for development and public services are obtained
in an equitable and efficient manner.
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Criminal tax law, for its part, is responsible for punishing crimes
against this legal right. These crimes not only harm the State's
revenues, but also violate tax equity and justice, generating
inequalities among taxpayers. Taxes are indispensable to finance the
economic and social development of a country, since they allow
investment in public infrastructure, education, health and other basic
services that improve the quality of life of the population (Forero
Hernández, 2020). Therefore, tax law and criminal tax law play an
essential role in ensuring that all taxpayers comply with their fiscal
duties.
The criminal system punishes actions that violate tax regulations,
including the crime of tax fraud. This crime consists of concealing,
omitting, falsifying or deceiving the Tax Administration in order to
evade the payment of the corresponding taxes. Specifically, Article 298
establishes the following penalties, the purpose of which is to
discourage tax evasion and guarantee the integrity of the tax system.
For such purposes, for paragraphs 1 to 11, the penalty is one to three
years imprisonment. For paragraphs 12 to 14, the penalty is from three
to five years, with a maximum penalty if the amount of sales receipts
exceeds a certain limit. Items 15 to 17 have a penalty of five to seven
years, with the possibility of the maximum penalty if the amount of
taxes defrauded exceeds a certain threshold. Items 18, 19 and 20 carry
a penalty of five to seven years, with the possibility of seven to ten years
if the undeclared taxes exceed a certain threshold. Aggravated fraud,
with the participation of tax administration officials, results in the
maximum penalty and dismissal. For legal entities, the penalty is
extinction and a fine of fifty to one hundred basic unified salaries.
Legal representatives and accountants are liable; in cases of State
withholding agents, in addition to the penalty, dismissal and
disqualification for six months are applied.
The tax system must be fair, based on the principle of economic
capacity of taxpayers. The prevention and prosecution of tax evasion
is essential to ensure that the tax burden is shared equitably among all
citizens, preventing some from taking undue advantage of the
collective effort.
It is important to remember that the State is the active subject of this
tax, while the passive subjects are natural persons, undivided estates
and national or foreign companies, whether or not residing in the
country, that receive income subject to taxation according to the law
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(Forero Hernández, 2020). Thus, the protected legal right corresponds
to the patrimony of the State.
Economic development as a protected legal good in tax law reflects the
interconnection between tax collection, tax equity and the general
welfare of society. Through an effective criminal tax system that
punishes tax evasion and other forms of tax avoidance, it seeks to
ensure that all taxpayers contribute equitably to the financing of public
services and the economic development of the country. This approach
not only promotes tax justice, but also contributes to building a more
equitable and prosperous society.
In the formal tax sphere, all persons with an income above the annual
exempt taxable base are subject to the filing and payment of the tax on
their income. Exceeding such base, progressively implies the payment
of income tax, through the application of the rate provided according
to each range of income acquired by the different taxpayers
(Vilcacundo, 2021).
As mentioned in the elements of income tax, the taxable base consists
of adding all the taxable income and subtracting from them the
deductible expenses that allow us to obtain the taxable profit. This
item is subject to the application of the respective income tax rate.
The non-compliance of the referred tax entails the affectation of the
treasury or national patrimony, since omitting taxable income or
increasing deductible expenses implies the reduction of the income tax
payable (Iglesias Capellas, 2011). This means that by reducing the
taxable base, the Treasury is being harmed with an erroneous amount,
which can be audited and claimed by the Internal Revenue Service,
which is the competent body and the creditor of the tax, and, in
addition, can lead to criminal consequences for possible tax fraud.
At this point, it is important to determine with precision the scenarios
that entail the real materialization of a tax fraud crime, which produce
the non-compliance of the tax obligation correctly calculated, in
relation to the income tax and consequent affectation to the general
budget of the State, understood as the protected legal good of the State:
economic development.
The social and democratic State under the rule of law has the function
of protecting the legal assets that guarantee the participation of
individuals in society. Among these legal goods are the economic,
social and political conditions that favor human development. For this
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reason, compliance with tax obligations is a civic duty that contributes
to the common good. By paying taxes, such as income tax, citizens
contribute to the economic growth of the country and to the financing
of public services provided by the State to improve the quality of life of
the population (Linares, 2016). Thus, the payment of taxes is a form of
social participation that reflects the commitment to the rule of law
(Orrala, 2017).
In the Ecuadorian tax context, the analysis of the protected legal good
in the criminal normative body, reveals a complexity inherent to the
compliance with tax obligations, to be precise, on the payment of taxes;
and, the search for a balance between the interests of the State, the
taxpayers and national development (Linares, 2016). The fundamental
notion underlying the legal protection of these interests is closely
linked to the State's ability to collect revenues in a fair and efficient
manner, thus promoting social welfare and progress.
The crime of tax fraud directly affects the legal property of the public
treasury, which is supported by the economic resources that the State
obtains through the collection of taxes. These resources are
indispensable for the national government to be able to fulfill its
essential functions, such as the provision of quality public services and
the execution of infrastructure works that improve the living
conditions of the population. Therefore, it is necessary to have a solid
and efficient tax system that ensures the collection of the necessary
revenues to meet the demands of the State and promote sustainable
economic development. This is recognized by Morales (2021), who
highlights the relevance of criminal tax protection as a mechanism to
prevent and punish conducts that violate the fiscal assets of the State.
Another crucial aspect of the protected legal right is its link with the
equity provided for in Ecuador's tax regulatory system. The
distribution of the tax burden must be carried out in an equitable
manner, ensuring that those with greater contributive capacity
contribute more significantly (Morales & León, 2018). The application
of equity seeks to avoid tax inequality and ensure that taxes are
perceived as fair by the society in which it is applied, thus
strengthening the legitimacy of the tax system.
Tax collection is an indispensable means to achieve national
development, which is a legal value that must be protected and
promoted. Taxes make it possible to finance projects and programs
that drive growth and improve living conditions in various areas, such
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as education, health and infrastructure. Therefore, it is necessary not
only to preserve tax revenues, but also to use them efficiently to
promote sustainable and equitable development. To ensure
compliance with tax obligations, the State has administrative and
criminal control mechanisms.
Criminal tax law punishes conducts that seek to evade or avoid the
payment of taxes due, through the omission of income, the inclusion
of expenses, costs, deductions, exemptions, rebates or withholdings
that are false or nonexistent or higher than those established by law.
These conducts are typified as crimes against the development regime
in numeral 15 of article 298 of the COIP.
Materials and Methods
The development regime is a special system that grants tax benefits to
companies that carry out productive, innovative or social interest
activities in certain areas of the country. In order to avoid tax fraud in
the development regime, the following measures can be taken:
- Strengthen the control and inspection mechanisms by the Tax
Administration, by verifying compliance with the requirements and
obligations of the companies benefiting from the regime.
- Establish harsher penalties for violators, both administrative and
criminal, to deter fraudulent behavior and generate an exemplary
effect.
- Promote a tax culture based on ethics, responsibility and solidarity,
through awareness, education and dissemination campaigns on the
benefits of the development regime and the negative consequences
of tax evasion.
- Encourage collaboration among the different actors involved in the
development regime, such as local authorities, trade associations,
social organizations and the media, to create a climate of trust and
transparency in the management of public resources.
- Implement tax simplification and modernization measures, which
facilitate voluntary compliance with tax obligations by companies,
reduce administrative costs and improve the efficiency and
effectiveness of the tax system (Mendoza Llamacponcca, 2018).
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Tax legislation is a key element for the economic development of a
country, since it allows the State to establish the appropriate
mechanisms to finance public expenditures that benefit the population
and growth; being one of the main revenues of the State the tax one.
However, there are individuals or companies that fail to comply with
their tax obligations through acts of fraud, which consist of hiding,
omitting, falsifying or deceiving the tax authority to avoid paying taxes.
These behaviors not only harm the collection of resources, but also
generate a situation of inequity and fiscal injustice, by obtaining an
undue advantage over other taxpayers and affecting the common good
and the national interest. For this reason, the State has a criminal tax
system, which is the set of rules and procedures that establish the
penalties applicable to violators of the tax law, including the crime of
tax fraud.
The purpose of this system is to deter and punish these illegal
conducts, thus guaranteeing the integrity of the tax system and
supporting the country's economic development regime. Penalties
may be of a criminal nature, such as imprisonment, or of an
administrative nature, such as fines and other corrective measures
that seek to restore the legal order and protect the legal good of
economic development.
The enactment of regulations to prevent fraudulent or evasive conduct
seeks to preserve the integrity of the system. The effectiveness in
collection is subject to the prevention and prosecution of practices that
may undermine the tax base (Mendoza Llamacponcca, 2018). Thus,
the protection of this legal good implies the implementation of
measures that guarantee transparency and legality in the payment of
tax obligations.
Consequently, a tax system emerges that aspires to become an
instrument of economic development, equity and social justice.
However, this balance is delicate and subject to constant challenges.
The tension between the need for revenue collection and the
preservation of equity can generate conflicts, especially in taxpayers'
perception of the fairness of tax burdens.
It is essential to highlight that, when analyzing the protected legal good
referred to in this article, certain questions related to the application
of tax regulations arise. Equity, for example, becomes a key principle
to prevent the burden from falling disproportionately on specific
segments of society. The struggle for equity is manifested in the
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constant revision of tax structures to ensure that those with greater
capabilities contribute adequately.
The relationship of the development regime and the criminal tax
system to the crime of tax fraud is fundamental to the protection of the
legal good of economic development. The development regime refers
to the policies and strategies implemented by a country to promote
economic growth and the welfare of its citizens. Tax collection is
essential to finance a country's economic and social development.
Taxes provide the necessary resources for public infrastructure,
education, health and other essential services that promote the general
welfare of the population.
The criminal tax system, by sanctioning tax fraud, seeks to deter and
punish these illegal conducts, thus ensuring the integrity of the tax
system and contributing to the country's economic development
regime. Penalties may include custodial sentences, fines and other
measures that seek to reestablish the legal order and protect the legal
good of economic development. In short, economic development as a
protected legal good in tax law reflects the interconnection between
tax collection, tax fairness and the general welfare of society.
Through an effective criminal tax system that punishes tax evasion and
other forms of tax avoidance, it seeks to ensure that all taxpayers
contribute equitably to the financing of public services and the
economic development of the country. This approach not only
promotes tax justice, but also contributes to building a more equitable
and prosperous society.
Analysis of the Configuration of the Tax Fraud Offense
The crime of tax fraud, provided for in Article 298 of the Organic
Comprehensive Criminal Code (2014), which punishes anyone who
deceives or evades the tax authorities through various fraudulent
conducts, is analyzed. It focuses especially on numeral 15 of said
article, which punishes whoever declares lower income than the real
ones or includes false or excessive expenses or deductions, in order to
reduce the amount of taxes to be paid. For this purpose, the legal
regulations in force are studied and the constituent elements of this
type of tax infraction in Ecuador are identified.
Tax fraud covers the formal tax and criminal tax spheres, as it
evidences an alleged damage to the State in terms of the reduction in
tax collection and the fraudulent intention to evade taxes.
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The Comprehensive Organic Criminal Code (2014), in its third chapter
establishes the extinction of the penalty. As such, there is no definition
of extinction of the crime, rather than a typical, guilty antijuridical
conduct punishable by the norm, in accordance with this, the
extinction of the crime implies extinction of the penalty (Prado, 2000).
Even so, the doctrine establishes that the modes of extinction of the
crime, in other legislations, occur by death of the offender or by
prescription (Forero Hernández, 2020).
This research seeks to demonstrate that the crime of tax fraud,
established in article 298, numeral 15 of the COIP, does not affect the
protected legal right (economic development), when it comes to the
payment of income tax. Likewise, the final paragraph of the same
article is questioned, which provides that the investigation,
prosecution and punishment of this crime will be carried out
regardless of the payment or compliance with tax obligations.
For this purpose, it is necessary to analyze the constituent elements of
the crime of tax fraud, in order to determine whether or not the
criminal offense in question is configured, through a detailed study of
the applicable legal norm.
In addition, the criterion of the National Court of Justice expressed in
Ruling No. 17282-2017-03592 (2020) should be considered, in which
it is held that the failure to pay taxes is not an essential element of the
criminal type. Let us recall that omitting means not doing, saying or
consigning something voluntarily or involuntarily. However, the last
paragraph of Article 289 of the COIP (2014) states, "Each case will be
investigated, judged and sanctioned without prejudice to the
fulfillment of tax obligations, as well as the payment of taxes due."
The COIP defines antijuridicity in its article 29 and states that the
criminally relevant conduct will be antijuridical when it threatens or
injures, without just cause, a legal good protected by this Code
(Mogrovejo, 2011).
According to Mogrovejo, the COIP is intended to punish atypical and
unlawful actions, but it cannot punish mere intentions. Thus, having a
bad intention to generate damage cannot be considered as the
commission of a crime, since for the configuration of a fraudulent
crime there must be an imminent damage.
Crimes against the public treasury and social security are those that
affect the economic interests of the State, which is in charge of
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collecting and administering taxes and social security contributions.
The active subject of these crimes is the person obliged to pay who, by
means of deceit or simulation, totally or partially evades his tax or
social security obligations. The passive subject is the State,
represented by the Tax Administration or the Social Security.
These crimes have an objective dimension, which refers to the typical,
antijuridical and punishable conduct described in the criminal law,
and a subjective dimension, which is related to the elements that make
up the culpability of the perpetrator, such as intent, recklessness, spirit
or tendency. Criminal law protects, through these crimes, the social
conditions that allow the participation of individuals in society,
guaranteeing solidarity and redistribution of wealth. Thus, if the
conduct is not correctly assessed, the two sides lose their function,
there is no causal nexus, therefore, neither a responsible party nor the
materialization of the crime.
Results
Tax fraud, according to article 298 of the Organic Integral Penal Code,
contains several grounds for prohibition that detail the criminal
conduct that indicates the infraction. The first paragraph of this article
establishes that there is tax fraud when a person hides, omits, falsifies
or deceives the administration in the determination of the tax
obligation, avoiding the total or partial payment of the taxes due,
either for his own benefit or for the benefit of a third party.
The COIP establishes that the mere intention to cause damage to the
State, without materializing, is not sufficient to constitute a criminal
offense. It is necessary that there is a concrete harmful action that
generates a damage to the protected legal good, in this case, the
economic development. Therefore, tax evasion requires acts that
evidence fraudulent intent, i.e., the purpose of causing damage
through tax evasion.
It is often difficult to prove that the omission in the payment of taxes
is done with the intention of harming the economic development of the
country. In addition, the complexity of tax legislation can lead to
taxpayers not fully understanding their obligations or facing economic
difficulties that prevent them from complying with them. In these
cases, non-payment may not be considered as an act of tax fraud if
there is no intention to benefit oneself or third parties. Therefore, we
can say that there may be situations where compliance is omitted due
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to the impossibility of making the payments, but not due to the
intention of impeding economic development.
The Tax Administration has the power to impose default interest to
taxpayers who omit or delay their payments, as well as to determine
the value of the tax that corresponds to each one. This power seeks to
guarantee compliance with tax obligations and the economic
development of the country. However, what happens when the
taxpayer pays the value determined by the Tax Administration, but it
differs from the one he declared? Can it be considered that there is a
damage to the economic development, even if it is not permanent?
The answer is even more complicated than just proving the existence
of fraud, since the payment of the obligations allows to put an end to
the interruption of the economic development, but it cannot be said
that an irreversible or permanent damage was done.
The central debate is whether the total and unconditional payment of
the outstanding tax obligations can extinguish the criminal action for
tax fraud. The criminal tax law contemplates cases in which the
payment of the debt can lead to the extinguishment of the criminal
action. This raises the question of whether, once the obligation
determined by the Tax Administration has been fulfilled, it is still
possible to demonstrate damage to the protected legal asset and,
therefore, to maintain the charge of an alleged crime of tax fraud.
The general order to close the criminal investigation reveals that it is
not always possible to establish a clear link between the crime of tax
fraud and the responsible parties when there is no evidence of damage
to the protected legal interest or fraudulent intent in the action. This
case suggests that the payment of tax obligations, even after the
initiation of an investigation, could mitigate or eliminate the alleged
damage caused, questioning the appropriateness of the criminal
sanction.
The extinguishment of the crime of tax fraud versus payment of the
obligation in Ecuador is a complex issue that requires a detailed
analysis of the taxpayer's intentions and the real impact of his actions
on economic development. While the COIP penalizes actions that
actually cause harm, the possibility of extinguishing the criminal
action through payment of the outstanding tax obligation raises a
debate on the nature and purpose of penalties for tax fraud. This
approach seeks to balance the need for tax compliance with the
recognition of the economic and legal realities faced by taxpayers.
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Conclusions
This paper examined the extinction of the crime of tax fraud and the
non-existence of damage to the protected legal interest "economic
development" in Ecuador, according to the final paragraph of Article
298 of the Comprehensive Organic Criminal Code (COIP). In
conclusion, when analyzing the extinction of the crime of tax fraud in
the Ecuadorian context, specifically in relation to the fulfillment of
tax obligations, especially the payment of income tax, the importance
of understanding the direct connection between these actions and the
preservation of the economic development of the country is
highlighted.
Within the framework of the extinction of the crime, it is evident that
compliance with tax obligations, such as the timely payment of
income tax, emerges as a crucial element. This compliance not only
implies acting in accordance with tax regulations, but it is also a
fundamental pillar for safeguarding the protected legal asset, which is
the "economic development" of the nation.
In this context, the relationship between tax compliance and the
absence of harm to economic development manifests itself as an
essential interconnection. The payment of taxes is perceived not only
as a legal obligation, but also as a direct mechanism to contribute to
the proper functioning of the State's economic system. The lack of
harm to economic development is consolidated when taxpayers
honor their tax commitments, which, in turn, has a positive impact
on the progress and general welfare of society.
The analysis focused on the crime of tax fraud, particularly on
numeral 15 of article 298, which deals with the omission of income to
evade the payment of taxes. The criminal and tax perspectives were
examined, pointing out inconsistencies and possible problems of
interpretation. In addition, the challenges arising from the
criminalization of this offense in the Ecuadorian legal system were
evaluated, exploring constitutive elements such as intent,
contributive capacity and criminal consequences.
The relevance of the final paragraph of article 298, which establishes
a presumption of fraud in case of repeated noncompliance with tax
obligations, was evaluated, discussing its impact on the legal security
of taxpayers. The importance of tax compliance as a civic duty for the
financing of public policies and the economic development of the
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country was emphasized, identifying inconsistencies between the
criminal and tax perspectives, especially in cases where non-payment
does not denote an intention to harm the Treasury.
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