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Review of Bank Accounts without a Court Order




On May 11, the First Chamber of the Supreme Court of Justice of the Nation determined that article 142, section IV, of the Credit Institutions Law is not arbitrary, disproportionate, nor does it violate the right to private life, by allowing federal tax authorities to require information for tax purposes related to bank secrecy, without judicial authorization.


This resolution arises from the amparo lawsuit 470/2021, filed by Manuel Cardona Picones, owner of the textile company Grupo Industrial Denim, through which he claimed the unconstitutionality of the aforementioned article based on which, the Ministry of Finance and Public Credit asked the National Banking and Securities Commission information about his bank accounts, and which served for the tax authority to file a complaint against him for the possible commission of a crime comparable to tax fraud. The project proposed confirming the appealed sentence: denying protection to the complaining party.


During the session, Minister Ana Margarita Ríos Farjat pointed out as a precedent the contraction of thesis 147/2021 voted by the First Chamber on February 9 of this year, through which the following criteria are set out:


  • The one supported by the Third Collegiate Court in Criminal Matters, in the thesis under heading: “Banking secret. Article 117, section II, of the Credit Institutions Law, in its text prior to the reform published in the Official Gazette of the Federation on January 10, 2014, violates the right to private life," he specified that the request of banking information carried out by the ministerial authority, had to be preceded by judicial control, however, that reason was not sufficient to consider that the bank account statements of the convicted taxpayer, which were in the file, had to be excluded as they were illegal evidence. This is because this banking information was not collected by the Social Representation to verify the corpus delicti and the criminal responsibility of the accused, but rather was requested by the tax authorities of the National Banking and Securities Commission, based on the exception to banking secrecy provided. in the Law for tax purposes; that is, with the intention of determining the tax generated by the taxpayer subject to the corresponding home visit. Therefore, the second instance judicial authority proceeded in accordance with the law by having the full criminal responsibility of the convicted person proven, based on the same evidentiary material with which the elements of the tax crime were proven, among which were the aforementioned bank account statements, which the Ministry of Finance submitted to the investigating Public Prosecutor's Office, due to the complaint that was filed against the taxpayer, and

  • The one supported by the Second Collegiate Court, from which it was deduced that all information derived or obtained in violation of the banking secrecy protected by the aforementioned legal precept, lacked evidentiary effectiveness in the process, unless the request for that information, made by the ministerial authority, will be preceded by judicial authorization. Thus, the information provided by the National Banking and Securities Commission, in response to the request made by the tax authorities, among which were the bank account statements in the name of the complainant, constituted evidence whose transition from tax matters to criminal, was done in an unlawful manner, because even though they were lawfully obtained by the tax authority, and legally destined for the criminal case; However, they were not corroborated by the Public Ministry when they were presented as evidence of the facts when the complaint was formulated, through the corresponding means of improvement and under judicial control, and therefore, said information was ineffective. Furthermore, it considered that the exception provided for in the section and the cited article only authorized the tax authority to request information protected by bank secrecy, for tax purposes; not for the purposes of proving the crime and criminal liability of the user of financial services.


The criterion that prevailed was that the bank account statements provided by the National Banking and Securities Commission to verify compliance with tax obligations, exhibited by the Ministry of Finance and Public Credit as the basis for the complaint for the crimes of tax fraud and fraud equal prosecutor, it is unnecessary for the public ministry to subject them to prior judicial control, in the case of mixed criminal proceedings.


In such a way that the Chamber recognized the relevance of the right to privacy; However, he warned that, like any right, it is not absolute and must be weighed against other purposes of high constitutional importance, such as when a tax authority requires information in order to verify correct compliance with the citizen's obligation to contribute to public spending, which may be diminished through conduct such as tax fraud, money laundering, terrorism or organized crime.


Likewise, the high court determined that the request for financial information by the tax authorities does not constitute an investigation technique related to a criminal process, but rather an administrative action for the purposes of verifying compliance with tax obligations, so it is not arbitrary as it must be duly founded and motivated. In this way, based on the information sent, the authority can go to the Public Ministry to report facts that possibly constitute a crime.


These new criteria have a transcendent impact on the citizens of our country, by justifying the actions of the authority without the existence of an accredited cause, which will surely motivate Mexicans to promote actions related to guaranteeing their rights, so they will surely There will be more criteria from the Supreme Court derived from this resolution.


 

Acta Número 5 de sesión pública, 9 de febrero de 2022, Primera Sala, Suprema Corte de Justicia de la Nación, 2022, disponible en: https://cutt.ly/HHLXrh3 


Acta Número 17 de sesión pública, 11 de mayo de 2022, Primera Sala, Suprema Corte de Justicia de la Nación, 2022, disponible en: https://cutt.ly/YHLXsCO 


Tesis: 1a. /J. 20/2022 (11a), Primera Sala-Contradicciones de Tesis, Suprema Corte de Justicia de la Nación, 2022, disponible en: https://cutt.ly/8HLXjDi 

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