Executive Summary:
- A Circuit Collegiate Court recently declared the Internal Regulations of the National Customs Agency of Mexico (“ANAM”) unconstitutional, considering that it contravenes the principle of hierarchical subordination to the Tax Administration Service Law.
- Although this is currently an isolated criterion, the unconstitutionality of the Internal Regulations can be used to challenge fines and/or resolutions issued by the National Customs Agency and its administrative units.
On May 24, 2022, the “Decree amending and adding various provisions of the Internal Regulations of the Ministry of Finance and Public Credit and the Internal Regulations of the Tax Administration Service, and issuing the Internal Regulations of the National Customs Agency of Mexico.”
This Decree established that the Ministry of Finance and Public Credit will be assisted, in the resolution of matters within its jurisdiction, by decentralized bodies, and was added as such to ANAM.
In this regard, the Internal Regulations of the National Customs Agency of Mexico reiterated that the agency is a decentralized body of the Ministry of Finance and Public Credit and, in addition, that it is endowed with technical, operational, administrative and management autonomy, with the character of customs and fiscal authority with respect to federal customs revenues, with powers to issue resolutions within the scope of its competence.
It was also specified that said agency, in aid of the Tax Administration Service, is exclusively in charge of the direction, organization and operation of customs and inspection services, to apply and ensure compliance with the legal regulations that govern the entry and exit of goods from the national territory, the collection of federal customs revenues, as well as those that are expressly instructed by the head of the Ministry of Finance and Public Credit.
In this regard, the subject matter of the appeal resolved by the Circuit Collegiate Court (“TCC”) focused, essentially, on elucidating whether the President of the Republic, in exercising his regulatory power, was able to grant exclusive powers in customs matters to the National Customs Agency of Mexico in its capacity as a decentralized body of the Ministry of Finance and Public Credit or, where appropriate, whether the Executive Branch was invading powers granted exclusively by the Legislative Branch to the various decentralized body called the Tax Administration Service in the law that regulates it.
That is to say, the controversy was not regarding the creation, considered in itself, of a different decentralized body of the Ministry of Finance and Public Credit, but regarding the fact that said body (ANAM) was endowed with the powers in customs matters that were granted in its law to the Tax Administration Service.
In this regard, the Collegiate Court concluded that the reform sought by the aforementioned Decree contravenes the principle of hierarchical subordination and legal reserve, by granting various powers in customs matters to ANAM that are exclusive to SAT, as established in the Tax Administration Service Law.
Based on the criteria indicated above, we consider that the position upheld by the Collegiate Court supports the illegality of the fines and/or resolutions issued by the National Customs Agency and its administrative units, making it reasonable to challenge them through an administrative appeal and/or a nullity trial, since these are acts issued by an authority that lacks the authority to issue such administrative resolutions.
