Decision No. 00814 of the Political Administrative Chamber (Case: Daewoo Motors de Venezuela, S.A)
Decision No. 00814, issued by the Political Administrative Chamber of the Supreme Tribunal of Justice on July 7, 2015 and published on July 8, 2015, was published in Official Gazette No. 40,723 of August 13, 2015. Said decision established that the graduation of the penalties of fine in the cases in which there exist mitigating and/or aggravating circumstances must be made in a prudential manner.
The Political Administrative Chamber modified the criterion of Decision No. 01649 of November 18, 2009 (Case: Constructora Seana, C.A.) that stated that the calculation of pecuniary penalties derived from the commission of tax-related unlawful acts was to be made in accordance with the occurrence of the circumstances that mitigate and aggravate the criminal tax liability established in article 86 of the Organic Tax Code of 1992 (OTC) that is applicable ratione temporis to such case, starting at the mean point of said penalty. Therefore, when making such calculation, it had to be taken into account how many of the five (5) mitigating circumstances or of the five (5) aggravating circumstances were applicable to the specific case.
Thus, according to article 99 of the OTC of 1992, there were two limits, a minimum of one tenth (10%) of the omitted tax and a maximum of twice the amount of said unpaid tax (200%). The sum of both limits and the subsequent division of the same by two (2) resulted in a percentage of 105%, which is equivalent to the mean of the penalty.
The aforesaid result (that is, 105%) would be the starting point for the imposition of the relevant fine and depending upon the concurrence of aggravating or mitigating circumstances, said percentage would be increased or reduced without exceeding the aforesaid 10% and 200% limits.
Therefore, in order to make the relevant calculation, it had to be taken into consideration that each mitigating circumstance declared to be applicable would be equivalent to a rebate of 19% or of one fifth (1/5) of the total amount of the penalty determined, this percentage being derived from the calculation made by subtracting the 10% from the 105%, followed by its division by the five (5) mitigating circumstances legally established.
The amount of 19% or of 1/5 resulting from this mathematical operation must be subtracted from the mean of the penalty, that is, from the 105%, as appropriate in each case, since the percentage of said subtraction will depend on the mitigating or aggravating circumstances that are declared to be applicable.
Now then, the Political Administrative Chamber modified the aforesaid criterion and established that the penalty is to be applied between the mean point and the maximum or minimum limit, as appropriate, taking into consideration the magnitude of the applicable mitigating or aggravating circumstances, that is, its increase or reduction will depend on the merits of the respective concurring circumstances and not on the result of a mathematical operation or equation according to article 37 of the Criminal Code and in agreement with article 94 of the OTC in force.
Lastly, in relation to the application in time of this valuation criterion, the Chamber established that it will be applied to the cases heard after the publication of the decision, that is, to future cases.
In order to access Decision No. 00814, please click here.