For your seven billion dollars. We allegory it whenever there are risks of ninety
percent are SMEs that generate eighty per s give me, twenty minutes of your
time and I, in return, would give you information on the most relevant
issues in foreign trade, tax and customs with a human touch And let'
s make a truk, a telese magas podcast Mexina hello. How about good
afternoon welcome to one more edition of let' s have a barter And we
' re here today, because we' re going to have a theme by
master Omar Lara, who is connecting at this moment forms of administrative silence.
Well, we also want them to tell us. They already started putting us
here in the chat room where they' re seeing us today. I also
welcome the panelists, Doctor Maximo Carvajal, albista Antonio Carballido and master Hector Castro,
welcome. There too is the engineer Enrique joining and, well, the
Master Sea who already mentioned that she was joining how welcome teacher. Well,
he' s also a professor. You already know of traiten collects it then
always very interesting his presentations. And well, if I may, I'
m going to present your face. Master Omar Lara holds a degree in law
from the Universidad Veracruzana, a specialist in constitutional and administrative matters from the Universidad
Autónoma de Baja California and a master' s degree in legal sciences from the
UABC. It has various courses and degrees in tax law and foreign trade,
as well as the preparation course for the Secretary of correct federal judicial agreements.
He is a professor of administrative, fiscal and customs law from two thousand eight
in various institutions of higher education. He is an exhibitor and writer in fiscal,
administrative and customs matters. He has served as a candidate lawyer since nineteen
hundred and ninety- nine and from two thousand and four he has specialized in
the areas of prosecutor, administrative and customs. He is currently a partner of
the firm Lara González, a tax company consulting group legal network specializing in the
areas of labor, social security, tax, administrative, foreign trade and customs.
And we welcome you Master, because with this important subject for more administrative
silence, I give you the microphone, already, as you know, well,
it is first the presentation and then the question and answer session is given.
Welcome, Thank you Doctor good afternoon, to all, to these a
taste, as always, to be here with the experts. I come here
to settle doubts. Generally speaking, I thank you for your invitation, and
indeed we have a subject here today which, if it is already known to
the majority, I suppose, but it is a subject that must always return
to the basis for remembering things. And definitely, this is a basic issue
in the administrative, fiscal, administrative silence, all the consequences that it has
in the area of administrative activity and precisely what we are going to discuss here
we put it. I' m going to share a little presentation and I
think you' re done, but only the full screen is missing. S
is that it' s PDF. Better. That' s why very well.
Usually good. I don' t see those three dots, but there
' s a way to present them in pdf. Oh, okay. I
think in his right hand he' s on the bottom, he' s
like a flechita after the lucas and there he can show up ah Ok.
No, no, yes, this yes, I' m presenting, but
this present ask if it looked, because I' m supposed to see it
presented, but I don' t know if you can see it. Yeah,
we see it, yeah, it looks good, take the presentation.
Yes, yes, yes, but be perceived ah perfect. Yeah, I
thought you didn' t see it. Okay. Thank you again. So,
let' s talk and I' m not going to talk about this
issue of administrative silence. And so, precisely in order to enter into the
matter before, I had discussed, because here also a barter of the administrative
legal relationship that occurs, since in the field of public administration, when it
acts and in some way links individuals, even other authorities, to certain acts,
certain behaviors that they must observe, certain burdens are placed, but it
recognizes rights, and so on. What is true is that this administrative activity,
which has the diversity of acts regulation, initiation, contract, fact,
initiation. As for the form of legal expression, there are other classifications,
but as for this aspect of manifestation, as a legal act, it would
be in this sense. As to the fact that when a transit police actually
issues an offence ticket, a fine, as it binds the person to have
the burden of paying to pay is the amount of that fine by virtue of
the fact that, as it violated the transit regulations, the SAT when it
determines a tax credit and places a burden of paying precisely that tax debt derived
from some contribution or perhaps some profit, depending on the origin of the tax
credit. And well, the situation is that the initiative authority has that activity
always and this activity links individuals. What does this have to do with the
administrative silence here? What I would like to point out above all is that
these effects precisely make it possible for the individual to carry out his or her
determinations in the case of such resolutions to comply with his or her duties.
However, there are situations where authority has or rather the law determines certain legal
effects that are not enforceable, to certain situations where there is no express resolution.
That is, this is within the realms of an activity that can be
verified, can be seen, but there is a context where that activity is
not appreciable, but the same law so let us put it fictitiously, because
the correct word presumes that there is a resolution and that it has certain effects.
When this situation occurs in article 8 of the Constitution, the seventeenth constitutes
it here for a question of another nature more than anything else, but in
the general sphere, all the authorities are obliged to respond in a written way
to a written response to petitions that are carried out, also in a peaceful
and respectful way, tells us article 8 of the Constitution, because this we
know as a right of petition. It is a constitutional and general requirement in
which, in some way, we rest that power or right that we have
to demand this from the authority. The 17th Constitution, since it is not
really the right of petition, indicates it only, because it is also a
form of demand, although here it is already within the jurisdiction, where we
can demand a court that issues a decision, a judgment in which it resolves
a matter that is raised to it opens a dispute. And, because this
is equally necessary, because there is also the question of amparo, but it
is not the issue that we are going to deal with. I just wanted
to mention this point. That is why what interests me is the general question
of success agency to the Authority when, therefore, raising that request in this
way, I repeat respectful patience, because they do not respond. Although I
am not going to go into the right of petition either, from here everything
is silent, a lack of action on the part of the Authority in giving
that answer. We make it the request and there is no such answer as
we seek. And what the actress is that a certain period is given although
the right of petition a while ago was considered to be violated when the four
months passed, already a few years ago, a sentence for a criterion,
but a jurisprudential thesis where she says that, since it is according to the
reasonableness of the petition, that is, already the four months are not properly
the time to admit answers, but according to that need that you have answer.
I repeat, I am not going to go into the fact of petition,
but even if you want a question on this subject ahead, we can
also comment there on what I want to do to what I am going to
do with these omissions that have authority, because they are reflected in the right
of petition. However, in the administrative sphere there are certain figures that the
law has created for the purposes of when we are in this situation of this
omission of response, of lack of response the way of action by the individual
is faster, that the answer to be given to the individual does not remain
immobilized. And, obviously, the same inistrative activity, because it flows that
it is dynamic and does not stagnate in the lack of response. We call
this administrative silence. The administrative silence which, in some way, is that
lack of response by an administrative authority. It is what gives rise to these
forms that we are going to discuss a moment more then, because in general
terms, the right of petition is the one that protects us against the author
' s omission. We give an answer. However, in the context of
the federal civil service, the administrative authors are subject to the law, to
respect this right and, where appropriate, the same law assigns effect to the
lack of response, which we call administrative silence itself. So, the right
of petition, as I mentioned, is the right to demand from you any
authority that responds in writing and notifies that response to a petition also in writing
that peacefully and responsively is made to it. But the administrative silence we will
consider as that omission by the administrative authorities or refraining from resolving an instance,
or says here the author in the dictionary. Now, the silence of the
authors, refraining from ruling against instances presented or promoted by private individuals and that
the law after some time attributed the legal effect of having issued an initiative decision
contrary to the interests of those instances or, where appropriate, favorable. Well,
I think it' s mostly the instances, more than the instances that
promote it. But it is a concept that is in this dictionary for purposes
of distinguishing from what is the right of petition. Then, when the lack
of response is given in the administrative headquarters that call it an administrative order,
it is the one that omits to do so and the law determines the legal
effect, we will be faced with the administrative silence in this table that I
present below, as you can see more graphic. More graphically this case of
an omission of response by an authority. If it can give rise to what
is a simple omission to give answer, there are no effects attributed by law,
say, the law tells us in this case the meaning will be negative
or positive. Here comes the right of petition when that omission, as it
does not have those effects mentioned in the law, but when the law determines
that that lack of response will have a negative meaning or a positive sense,
this effect is before definite resolutions, which is what we call administrative silence itself.
This is then sought out by the fact that you want to avoid immobilization
of the administrative activity. And so, more than anything, what is sought
here is that the individual can defend himself, not that he is previously vulnerable
to these omissions. It must be borne in mind that the right of petition
protects us from all authority, but there, for example, if an authority
where this form of administrative silence does not exist stops me from answering some procedure
or request that I make to it and spends a considerable time. I can
go to the amparo trial and the effect is that the authority will respond.
That is what is sought truth and by generally answering the meaning of Campares'
resolution, or to be, especially the judgment because it is given answer,
the damage that is caused to me, which is the lack of answers,
is understandable. But now I would have to defend myself against this response.
And so within the established legal time limits, that is, it is a
path to follow that because the time is not determined itself and then, because
the respective legislation will have to be seen in each case but in the administrative
silence, the law determines in which cases after a certain time. There are
different times, two months, three months, four months. The general time
is three months that we know in the fiscal code of the Federation, in
the lefe of the initiation procedure and pabey organic of the tematera of justice on
the initiative of the passing of the deadlines. What' s more, it
' s the law, the tax code, and the befa from Vissatino.
It is those three months, though, I repeat, there may be or
other regulations, state laws, municipal laws, other special laws in terms of
deadlines, but the point is that, after this period it is understood that
you were denied what you requested or that they confirmed what you do not want
to accept or that they gave you what you requested? Already depending on what
the law says, then there is a side effect rivic, not executable.
Executable is when, as I have a duly determined tax credit from a tax
authority. True, he has visited me at home, and after the thirty
- day period, the credit becomes enforceable. If I have not paid for
it, they start the coercive economic procedure, the invisitive one of execution,
because they seize me well and finish it, etcetera. There' s an
execution here, not here. If I ask for it to be declared,
or if a decision determining a tax claim is left unimplemented and not resolved within
the prescribed time limit. And it' s a definite negative, because it
' s going to be understood that I was denied what I' m asking.
But that definite resolution, as we mentioned, cannot be implemented, but
the authority is still obliged to give an answer And I can expect to explain
it a moment more then. That is the difference between administrative silence itself and
what is an omission that results in a violation of the right of petition.
Now, as I mentioned in the question of the legal relationship, since administrative
activity, whether an administrative act, either the effect of the rule of a
regulation, for example, or the agreement of wills, of a contract or
an administrative act, will generate legal effects that do bind the public administration to
the people. The fact is that, because it is based on some act
precisely perceptible, a trade where what decides in some event that comes to be
given perhaps some question derived from some damage in a public work is manifest the
fact, but in administrative silence there is nothing. In sigistrative simply and plainly,
what one does not answer. Some have said well that more than a
negative resolution is the failure to issue an administrative act or resolution. This is
already left in the doctrinal sphere, the theoretical scope, which is very interesting,
but for legal purposes, the resolution will already have that negative positive effect,
regardless of whether there is such a resolution. Then an express resolution is
that which, in fact, the will of the authority manifests itself through these
avidiative acts regulations contracts or facts derived from the initiative activity, because there is
a tangible event with a prejudice that, therefore, will cause the legal effects
and in the initial silence does not exist, but in this case the fact
that the authority stops responding is binding, because we will think of a request
for evolution of taxes does not give you answer, because you already have the
right to demand through the Court of Justice initiative, because this negative act,
that is, the omission to return you based on a resolution that, although
it does not exist, is presumed to have been in the negative sense.
They are then binding effects that allow us to come to attack these kinds of
situations. What are these kinds of ways in which they are found, although
here I mention generally known federal standards, tax code and federal administrative procedure law.
Or I mentioned a moment ago, because in the diversity of state,
municipal and federal special laws, there may be regulations that establish these forms of
administrative silence, either negative or with positive effects. It will be necessary to
look at each case and then determine what is to be continued. There may
be cases where, as they are not regulated at the state level generally and
at the municipal level, we can therefore turn to an instance, in a
district court, on the grounds that there is a violation of the right of
petition. Although going a little further than what we are going to see later
on at the federal level, basically the activity of the administrative bodies that are
subject to what the Feder de Justicia actival jurisdiction initiates. Any omission that results
in requests or delays resolving proceedings, as it will result in a definite refusal,
as there is a general regulation by the Federal Administrative Court of Justice.
But outside of that general regulation, article 37 tells us to see here to
read. Here you can see the table that says the instances or petitions that
are formulated to the fiscal orders must be resolved within three months. After that
period, without notification of the decision, the person concerned may consider that the
authority has ruled negatively. This is the negative effect we mentioned, and to
bring in the means of defence at any time after that period. As long
as the resolution is not issued or wait until that series is what we said.
It is understood that it is in a negative way, but the Authority
really cannot implement this resolution. Fi will in any case have to resolve the
case raised and the individual may wait or challenge this failure to reply after three
months. Of course there are rules for all this. At this point I
am only going to set out the forms and, well, in some cases
it says the deadline for resolving the consultations referred to five, thirty- four
will be eight months ago to other deadlines. Article one hundred and thirty-
one, for its part, mentions the following from the Tax Code also the
Authority shall issue a decision and notify it within a period not exceeding three months
from the date of appeal. The silence of the Authority shall mean that the
contested act has been confirmed. It may decide to await the express decision or
at any time to challenge the alleged confirmation of the contested act. This word
confirmation, of course, creates a bit of confusion. In some cases it
can be understood as an affirmative or positive ficta, but it really is in
essence a fixed negative, because what it is doing is denying you. What
you' re asking for. If you ask him to cancel, leave him.
Without effect, it is an administrative act, because the negative effect is
that it will tell you that it does not cancel out. But here it
is assumed that the validity of the act is confirmed, because previously that you
contested the act had presumption of legality, then that presumption of legality of the
act is confirmed. So we have to have this negative form, because it
is going to take place either in administrative procedures in general or in administrative appeals
generally. Article 130 provides for an administrative remedy. Now article seventeen of the
faith of initiation procedure tells us the following, unless another legal or administrative provision
of a general nature is established. It may not exceed three months for the
decentralized agency to resolve what is appropriate after the applicable deadline. Resolutions shall be
understood to be negative. Or that meaning, that effect to the promoter,
unless another legal provision or initiative of a general nature, is provided otherwise.
In the event that the refusal is resorted to for lack of resolution and this
in turn is not resolved within the same term, it will be considered confirmed
in the negative sense is the sense of confirmation. Even here he raised a
specific case. We' re going to think that I' m making a
request to some other administration. He' s not answering me. Within three
months, the negative ficta is set up and I go to the review resource,
which is the one that regulates the hierial of the initiation processing. I
submit my appeal for review and because the deadline also passes and the authority does
not answer me and the question is negative on negative. Here it is not
mathematical as the fact that positive signs are going to give you positive negative signs
there. And all this kind of stuff doesn' t work here. Here
the question is a confirmation, confirmation that you were denied what you specifically asked
for. That is the question of confirmative ficta. Article ninety- four,
since it resumes this figure, states which appellant may await the express decision or
challenge the alleged confirmation of the contested act at any time. So I have
the first two assumptions They refer to the Federation' s tax code, the
second to the federal law of initiating proceedings. In the first case, the
tax code is the fictitious refusal. In the second case, it is the
confirmative ficta, in the second block the fera law of initiation procedure, the
seventeen regulates the negative ficta and the article ninety- four the confirmative physical.
All of this I mentioned are decisions of administrative silence, in the negative sense,
now in a positive sense, as it turns out that in tax matters,
because there is no positive physical ficta or affirmative occurs only in the administrative
sphere. It seems over there that also in questions of consultations on tariff classification
there is handled the positive ficta, that is to say, they are confirmed
here by our expert teachers. But it does seem to exist there in that
matter. However, in tax matters as such, since there is now no
such thing as regulating the administrative prosecution if it is stated at the request of
the person concerned, a record of such a circumstance must be issued between the
two working days following the submission of the respective application, with whom the same
record must be decided, when other provisions provide that, after the applicable time
limit, the decision must be taken in a positive sense. That does recognize
the figure that in other types of laws can be handled as positive or positive
affirmative. Later on in the third title chapter of the faith law of invenistrative
position, I believe it was article sixty- eight ms. And I remember
it not badly, but I spoke properly of the definite affirmative, but because
it is already raging. However, article 17 continues to recognize this figure,
providing for the possibility of the legislation establishing this figure. Then this one will
have to see each specific case in the special law in order to be able
to challenge precisely the positive or affirmative ficta. And I say that, in
the case of affirmative action, the law should indicate this, because in the
matter of ficta refusal, the figure derived from the regulation in the Federal Court
of Justice initiative has been generalized, which we are going to see for a
moment. So up to here, we have these forms of administrative silence as
to their effects, truth and we can see them here. The negative effects
will give us a ficta negative and the effects or a ficta confirmative and the
positive effect will give us a form of ficta affirmative or also called positive fi
This I said, because it does generate effects link the individual, but I
return to the point, they cannot be executed. However, the ficta affirmative
does imply the requirement that the individual can make the authority to be recognized to
be configured the ficta affirmative, and it issues a record where the credit that,
in fact, the administrative silence derived from a ficta affirmative. For example,
a permit. If I apply for a permit for x the activity and
if in the regulation regulating this permit it was said that if after three months,
two months, four months, it already depends on the respective rule.
If, after the deadline indicated by the author, a further reply is deemed
to have been granted. That is the figure of the positive affirmative or confirmative
ficta, then I request in a procedure a permit and if the author does
not answer me in the respective case, since it will be understood that I
was granted it, then I will have to go to the opera to send
me the record that, in fact, I already have my permission. For
this figure of administrative silence. The problem is that here again they leave to
the authority the possibility of saying and whether or not this situation is configured,
since obviously there may be petitions that are totally introducible. And in this case,
because we will think that if everything is left in one piece the positive
or firmative ficta, since any situation even illegal could be authorized, then it
is still subject to the Authority of this record, but if you refuse to
give this record, I can challenge this omission. For me then I'
ve seen it like this. Refusal, confirmation and affirmative action are forms that,
although there is no resolution as such, allow the individual to defend himself
not to be vulnerable to this omission of authority. And so also that the
administrative activity, the dynamic initiative, because it does not stop, does not
remain stagnant. I said a moment ago that in the matter of affirmative action,
this must be expressly indicated in the rule. The refusal also, but
there are cases where it is not necessary, because this happens in question of
ficta negative. This third article is the current Organic Law, the Alfe of
Justice initiative and tells us the following, the Court will hear the trials that
are promoted against the final decisions, administrative acts and procedures that indicate below sub
- reaction decima fifth points out to us those that are configured by ficta refusal
in the matters mentioned in this article for the duration of the period indicated in
the Federal Tax Code, the three months, the Federal Law of the initiating
procedure also three months or the applicable provisions, that is, if a special
law regulates administrative silence, since it is also considered within the established time period
and here comes the party where it opens practically any situation in the administrative sphere
says or in its absence within three months, that is, any situation of
these matters that regulates the Federal Court of Administrative Justice, results in an omission
of the authority to resolve within three months, since it is understood that there
is a fixed refusal. This is another cause of widespread denial to virtually the
entire federal civil service. Of course it will be necessary to see particularities,
but the fictitious refusal does not work this way nor does it continue to say,
as well as those that deny in the issuance of the constancy of having
configured the positive resolution ficta when it is provided for in the law that governs
these matters, that is, it refers to the law. If it'
s not in the law, there' s no positive fict. But in
the case of a fictitious refusal, any failure to resolve a period of three
months shall be understood as this figure and may be challenged in the particular case.
In conclusion, this does not apply to the provisions of the preceding paragraph,
in all cases where the right of a recognized third party may be affected
or in a register or annotation at the initiative. So, then, what
are the forms of administrative silence that exist then, indeed, the negative forms
lead us to this definite negative. And where is it understood that you are
denied what you ask for the confirmative ficta, where you have to confirm the
validity of an act of which you are being asked to be left without effect,
or the positive ficta or positive ficta affirmative which implies that you are understood
to be given what you ask for another figure positive ficta? It seems to
me that in this situation of regulation of the system of registration of companies providing
specialized services. If after the deadline set in that regulation, they do not
give you answers, understand that authorizing or registering another form of positive ficta that
is there. And well, as far as the question of forms is concerned,
they are these confirmative, yes, different, I repeat what is actually
the right of petition that when there is no regulation regarding these forms, because
we will be able to exercise in that right of petition. And so,
it would be for the time being, because what we were going to talk
about now. Yes, well, if there are questions with pleasure, then
we are here at our disposal. Thank you, thank you, thank you,
thank you. Well, yes, we have here a question to see
to begin with, says that in my case, the Infonavit restructures me without
I have signed anything, a firm that collects credits for being loving. I
asked Infonavit to give me proof where he signed. More than three months went
by and I' ve been tried He applied for a definite refusal. Then
he came to the home of Infonavid and stuck a leaf. At my address.
The lawyer applied for amparo, but this was in two thousand nineteen.
He says he doesn' t know anything that could be ok Here' s
something to see. It is sometimes difficult to distinguish the situation in terms of
the nature of the act, because Infonavit is indeed a decentralized decision- making
body. It is a grain of centralized public organisation state unemployment that is subject
to administrative and fiscal rules and, definitively, can result in negative fects.
But this is generally the case in the area of relations between the employer and
the infonavit When it comes to situations arising from tax credits as well as housing
credits, it can have a civil effect, but here, in fact,
like what you do, it was a situation that can come within the scope
of administrative nature. You can come in. I do not say this in
a decisive way, because it is subject to the analysis of the criterion of
a court, that is, the court determined that it is an administrative matter,
since, regardless of whether it is related to a housing claim, it
is of a civil nature. The exercise of the right of most of all
to the exercise of the right of initiative that gives subject to the situation of
the nature of the act as such and the infonavirus a decentralized body, although
more I would go for the case of the right of petition. In this
case I would say to myself by right of petition. I think it is
likely that they will not have you I am not saying that that happened was
clear, but it is probable, according to the situation as I am seeing
you being told in some initiating court that it does not proceed because, as
that figure is not recognized as such, you should have gone to sue for
the violation of the right of petition. That is what I now consider to
be the issue of the execution of the civil contract, because yes, that
is yesterday, it is not my subject, not there, but it would
not come in. But in the matter of requesting this as the authority responsible
for regulating everything in the Housing Fund, I think so. There should have
been amparo, but it would be a matter of right of petition and non
- negative amparo. The end. All right, thank you and well,
I' d like to open the microphone to our panelists ahead engineer. Thank
you, to express interesting, interesting talk about this we have heard a lot.
I say how I don' t handle the right. The doctor'
s gonna swipe me here, but this whole thing is awesome. You commented
on tariff classification resolutions. I don' t remember ever having given a positive
a fictitious refusal or asking for any of that clear. What happens is that
you need the little paper where they give you the resolution and they tell you
it' s classified here, because that' s what you have to introduce
yourself to customs then and what they have is I say article forty- seven
forty- eight of customs adria. They tell you you' re four months
old. You have four months to resolve as soon as you have all the
documentation. When they go through that time and have not solved what they do
is they ask you for information and start counting the time again, then they
leave four or eight a year. Whatever they want and that' s what
they do. No, but definitely not. With regard to a classification of
necessity, I have never seen that there is a positive ficta or a negative
ficta and what interesting case not these cases of or subspelicity, of looking at
a happy embrace. Damage, thanks to that for the clarification. Yes,
indeed, I have heard, as I mentioned, that this figure was given
there in consultation. But precisely because I didn' t have it confirmed.
But it' s a good thing it clears that up for us. Thank
you. That' s what happens, you can' t apply it.
I mean saladan. You' re telling me, hey, I got a
positive score. Don' t wait here. If you don' t have
your document, then I haven' t seen anything about it. I don
' t know if Hector knows a little bit more about that, that I
' ve been very involved in resolutions of this kind, too. No,
but not me who remembers I never saw a positive ficta or a question like
that. I often talked about it. No more positive resolves. It doesn
' t affect. There' s no positive here. It affects if you
don' t have the document. No more, you have nothing. Well,
thank you and congratulations. Thank you, thank you. Go ahead,
maesec well this one. As Enrique said, the issue that was dealt with
on the most truly difficult hole day, especially since it is not uncommon for
the Authority to consider the time limits for issuing resolutions, although in practice,
in practice, the rules indicate that the time limits within which the Authority has
to issue the decision run from the time when the file is properly integrated.
And look who says a file is due in integrated Authority. Then the Authority
uses that subterfuge to send you to requests for some information and that the deadline
for resolution is not due. They do it for two reasons. The first
of these is to avoid administrative responsibilities because they incur misdemeanours that have caused you
a penalty, but the other is because the case of injury could occur.
As you point out, when the meaning of the resolution is affirmative, I
' m going to stay with a case right now. It is simply not
exactly a ficta affirmative, but it is a good hypothesis that is handled by
customs law, which is Article sixty- one fraction seventeen. Article sixty-
one is a catalogue of goods which can be imported without the payment of import
taxes. They are the exemptions and in the article in section seventeen, it
says to see when you donate merchandise to attend to such natural transmas or contingencies
of that nature, and if those goods, for introduction to the country,
are subject to non- tariff regulations and restrictions, then ask the competent authority
to tell you if it agrees that it is imported. That' s it
and it says the norm. If the authority, within a period of ten
days, does not issue a ruling, it considers that the opinion was favourable,
a definite affirmative and grants the corresponding authorization so that it can be imported
into the goods without the payment of contributions. That is an assumption provided for
in the customs law previously. I looked it up? I looked it up?
But I couldn' t locate him earlier. The customs law provided for
the following in article forty- eight forty- nine, one of the two
accounts and is not drugged. It could be that in the forty- nine
it was. But in particular, the assumption is or was when you have
doubts about the classification to nancelary in the merchandise imported with whatever you want,
with which you think it is convenient, but formulates, consults and fulfills the
revolutions and restrictions of both tariff fractions. If after the deadline the authority has
to issue the decision, it does not dictate it, it will be understood
that the ancestry classification, the ancestry fraction that you used, was the correct
one. That was the positive ficta. That rule no longer exists. There
is no longer such a provision and therefore the rule was drafted to say when
there is doubt of advance classification, the individual can formulate a consultation and the
authority will consult the with a technical board of tariff classification so that he will
tell me what is the correct classification of foolishness. The rules for formulating the
relevant resolution and those involved are set out in Annex 6 to the Pheneral Rules,
in Section A and Section B of Link Six, which provide the classification
criteria to be issued by the relevant committee where appropriate. It' s just
an anecdotal issue. Henry' s the expert. Now they change it.
Henry is the expert, but previously we were with the sixth amendment of the
harmonised semen of designation and coding of goods and annex six had an ancestry classification
criterion, but as the modification of the good was done, a honuera was
edited to them import and export, where the seventh amendment is harmonized with that
criterion of classification. Here I gave Dr Maximo Carvajal. It is somewhat anecdotal,
because that annex what they did was they tested the text of the criterion
and published it this text the criterion, realizing that I put there that makes
that criterion have to be removed, but I test it so that in the
consultations they tell me whether they agree or not. They published it and that
annex is published the same all the time. The interesting thing is that in
the sixth amendment and in the seventh amendment. The tariff fraction and the east
number will be economic, but I am going to specifically not change. He
didn' t change ID number that didn' t change. And so that
criterion could have prevailed without having to change it. But at the end of
the day, they didn' t test. What I discussed with the classroom
is to consider that current criterion, which is not true, because legally it
is not But the criterion. The reason to argue that the classification criterion was
correct continues to subsist because the fraction and the nico did not change. But
from the legislative point of view, of legislative technique, it is a valvarity
what they did. Returning to the issue of the refusal or the effects of
the silence of authority, I find the doctor' s comment that the Authority
is silent most right. The law establishes a consequence that is or I am
denied the petition or I have confirmed the act, but it cannot be executed
and when it cannot be executed, the following consequences appear. I' ll
give you an appeal for revocation. During the revocation appeal, I am given
a period within which I will receive the decision of the Authority. But at
the same time they give me a benefit, which is not to guarantee the
tax interest after the time limit within which the decision must be made. The
Authority is silent and we would say that somehow the resolution is confirmed in a
definite way. I can go to the Federal Court of Administrative Justice, or
I can be quiet and expect to be told, but the administrative unit that
collects resumes the administrative procedure of execution and then I would have or would be
obliged to guarantee the fiscal iustence, even if I was in the event that
I went to the appeal to blackize. But it' s very interesting.
The issue is very interesting because really, when one demands Christmas or goes to
the shelter, the only thing that provokes me is that the authority dictates the
resolution. That' s the reality. We returned to the moment I was
issued the resolution. I become aware of it and now yes, in that
the means of enlightenment that, in your case, I judge to be favorable.
And also, to comment on a last criterion that surely horita of being
knowledge to all of you just came out a criterion of the collegiate in matter
initiative of Mexico City, in the sense that the NAM was exercising unconstitutional powers
and waters, because then all the acts of the express authority are unconstitutional.
Very interesting topic, but this is simply today' s topic. Thank you
very much for the comment. It is a topic of reflection and, by
the way, positive. There are more, yes, there are more positive
ones in the donor law and the regulation and in the general rules, but
you have to take a look at them. We leave them for the next
time. This was the negative. Thank you very much, claus bra Thank
you for eating definitively, it is a term, a complete subject and in
matter I donated because I think there is a lot to deepen. The fact
is that yes, there is, and it is another subject also already the
challenge in court, that is because it brings many edges there, as,
for example, that it is only limited to that you can deal with the
substance of the matter and then there are some things as interesting as, for
example, if I submit a remedy already beyond the deadline, that is,
to think passed a year, I present it and I do not answer the
octod within the time frame the ficta refusal was entrusted. I am going to
the contentious trial and the authority says there claims the formal issue of prosecuting precisely
arising from the extemporaneity of the appeal. But since it is limited to the
substance, I can no longer claim that it was out of time and then
practically reverts to a matter that is out of time and serero as a type.
There are criteria about that and, by the way, but it is
very interesting, no, and also this issue that is causing the stir right
now. There does not seem to be a euphoria there that there is the
issue of unconstitutionality. He mentioned that there are coritories against it. There are
also two sentences that were published there on xára Twitter before Twitter Ford were published
on issues that also resolved constitutionality and over there I saw a comment made by
Master Ricardo. This is precisely what we said we were fifty- fifty,
because, in fact, the organic law of the Federal Public Nation, since
it is the regulatory law of the 1990s, and there the executive is given
the power to create the deconcentrated objective organs and to equip them with powers.
In seventeen and eighteen they say it and the powers are not in the Law
of the Sat. They' re in the law, in the federal public
announcement organic law. When it says that the estate would have the power to
supervise and enforce everything preferential to the customs issue, then they only diversified them,
they specified them in the Law of the Sat. Then you could say
that the executive is not prevented from creating the ship. It' s constitutional.
But the other criterion, if taken into account and the seventeen is problematic
of the organic law, because it says that deconcentrated initiating bodies can be created
and endowed with powers according to the applicable legal provisions. There comes the question
of the list, but that is an interesting topic to see what happens to
place bets, not even the subject that commentant African Mendez. It' s
very solid. The argument is the only problem. And here in the hierarchy
and the laws, we are before two legal systems of the same level,
the organic law and public administration. And as far as the organic law of
the SAT and the subject of today' s criterion that we were talking about,
what the collegiate says in this case is to see no one is arguing
whether or not he can create deconcentrated organs. Chiro applauds him very well,
no more than the faculties are in the sato and if you pull the SAT
pulls with a decree forgive me. It is a legislative provision that can only
be amended by the procedure followed in Congress. These powers cannot be secured by
the executive. That was the argument used by the collegiate, that is,
Warren' s law or organic law. This gives you the power to create
deconcentrated organs forward, but you do not take away the power to be one
organ to give them to another exclusively. That was the argument then or not.
Very interesting. That' s the argument there. Now, then,
for the litigants. That way, you have to leave until they change my
baby' s record that they' re going to change them, they'
re going to change them. I do not have the slightest doubt left,
but it is a technical issue that is worth taking into consideration. I reiterate
the most painful thing about the issue of affirmative affirmative action is that the Authority
remains silent, causing us significant harm. Right now. We are talking from
a technical point of view. Let us remain from the point of view of
the impact of my activity. We' d say daily. I have a
contingent which is a tax credit or some consultation, which is a request to
the Authority for repayment and has not answered it to me. I mean,
it' s causing me damage from an economic, operational and other point of
view. It' s not just that she' s quiet, it'
s that she' s causing me trouble. It' s more even forcing
me to go to the ball in a second instance to the best and necessarily.
That is also the very important point that must be taken into consideration when
we talk about the refusal or an affirmative ficta for another barter another special issue
that they make and that an expert in constitutionalist to the magazines is very interesting
and we leave you. No doubt, thank you. Thank you very much,
Doctor. Well, they almost said everything. I no longer congratulate Omar
on such an interesting subject. You know I like history. Historically we have
been given many positive ficts, nothing more than the authority has been failing with
the deadlines and then has been modifying all those positive ficts that originally had to
such degree, as Hector said. As for the last one, until the
file is integrated. Before that was not to say you were fulfilled the four
months, the three months and automatically you dropped the positive ficta for not having
finished a resolution in that file. Instead, now. Instead, now it
has to be until the file has been integrated and there it is consumed all
the time or it is certainly resorted to asking for new things and new things.
This is why, because they don' t finish it within the time
limit that is set by law. This is the interesting thing to congratulate you
on, of course, and a little comment on what is being talked about.
I haven' t read. I want to clarify I have not read
the resolution of the collegiate. I didn' t read it anymore, but
Hector' s comment leads me to a reflection. I agree that, of
course, this regulation cannot take away functions from a law. But there'
s something I' ve always seen in the creation of the ANAM. The
power of the President is regulated, according to the first eighty- nine fraction,
but by regulation of a law and here we have never known which law
was regulating, especially in the first decree, which was of June of twenty
- two. I believe this one where he believes it and then in December
he abrogates it. It abrogates this was what is the law to which it
is regulating through a regulation of the decree that comes out. Then you cannot,
of course, do it to remove powers from a law, because you
do not have the legislative power in that case, not even standing in the
one hundred and thirty- one paragraph. Secondly, it could, because here
it can modify to a single law, the law of general import and export
tax, as it is established, to modify, therefore, quotas, to
prohibit, in order to allow for any of the most extensive things, the
power that is available and which, moreover, is a very good faculty for
the dynamism of foreign trade, as it did, for example, to regulate
products from the basic basket at the time of inflation. And that' s
true, but it' s about a law. It has only that power
given to it by the forty- nine and the second paragraph or also by
article twenty- nine of the Constitution, when there is a situation of risk
to the country, an invasion, when, as was previously known to use
it the previous language the suppression of individual guarantees, indeed, at that time
it would be a suppression of human rights already very limited to the omnimode power
that the President had in article twenty- nine, which for many years was
so and which, fortunately, of our country only used it once in one
thousand nine hundred forty- one, forty- two, when the two German
submarines sink, they join our two oil ships and then PresidentÁvila Camacho,
decreed the state of emergency, declares war on the axis and then it is
legislated by the executive. But these are the cases of exception that we have
here. There isn' t, and I do think it won' t
happen, and Hector predicted it won' t happen, too, but there
' s a unconstitutionality. I' m sure there' s going to be
a remedy. Yes, and it is practically impossible for this to be overturned
all the activity that ANAM has had, because since it has already been created
according to that in December of the 22nd, do not imagine all the acts,
all the expeditions, are the resolutions, the own call for the examinations
of customs agents. All this would be null and void. So, this
and more, in a system like the current one and in a last year
of government, it' s not going to happen. Thank you and happy
to omar Radio Doctor And definitely yes that point of the delegated decree, that
is, the magnitude that has to only remember the cases brought to this management
analysis, which is also very important and I think yes. I also agree
with what they say about this thorny issue of general public order. And all
of that is definitely, because it is very complex that a generalized unconstitutional will
be decomposed. Thank you, otherwise, to you, thank you to show
your participation. Thank you very much, Doctor. Well, we are going
to give the recognition to ma master and let' s do a treueque and
TLC Magazine give the present recognition to the Master Omar Lara for bartering in the
virtual conversation with the subject for more of administrative silence, on the seventeenth of
January two thousand twenty- four and it is signed by our President, Dr
Octavio de la Torre, and teacher Daniela Martínez. And well, we invite
you to continue connecting. We are in the middle of the month and the
next, because we will be here already on the 22nd day with the challenges
of the car transport with the teacher Claudia Sánchez and on the 24th day the
fiscal complexity for the exercise two thousand twenty- four and the legal alternatives for
the resolution of conflicts with the master Omar Garibo, graduated from raiden lo College.
We will also have on the twenty- ninth day of foreign trade control
trends with the license Licette Herrera and to close this month that is flying January
on the thirty- first day and one we will have marine ports node generator
of the economy in a nation in charge of the Master Miguel Angel Reyes good,
since it is a pleasure to be with you. We' ll see
you next week, see you later, thank you very much, we'
ve reached the end of today' s tackle. Thank you so much for
joining us. This was let' s barter via are an event tels Mexico.
You like this talk. Don' t forget to share each event with
your contacts so that we continue to spread knowledge and stay up to date.
Find all our talks through our online education platform, entering www TLC Magas in
Mexico com Mx in the course section, where you can see them again without
things. If you are interested in a specific topic, send us a message
through the social networks of TELS Magas in Mexico and we will look for an
expert who can clarify your doubts. This was a crucible.