A decree whereby various provisions of the Federal Law on Litigious Administrative Proceedings are amended, added, and repealed (the "Decree") was published in the Federal Official Gazette few days ago. This law regulates the nullity petition procedures before the Federal Tax and Administrative Court.
The Decree entered into force on June 14, 2016, thus all the lawsuits that are filed as from this date will be regulated by the new rules of the nullity petition procedure.
The Second Transitory Article of the Decree, confirms that the lawsuits that have been filed with the Federal Tax and Administrative Court prior to the entry into force of the Decree (June 14, 2016) will be processed until their complete resolution under the provisions that had been in effect at the moment the claim was filed. Notwithstanding the above, such transitory legal provision does not contemplate the rules that would be applicable to the resolutions issued before the amendment under analysis, whose deadline to be challenged has not expired before the new rules entered into force.
The most significant modifications included in the Decree, are listed as follows:
- The following terms are reduced within the nullity petition procedure to expedite it the trials:
< >To file and answer the nullity petition claim, from 45 business days to 30 business days.
To extend the complaint and to answer to such extension, from 20 business days to 10 business days.
For the third party to appear, from 45 business days to 30 business days.
To formulate pleadings, from 15 business days to 5 business days (the term of ten business days subsequent to the publication of the pleadings agreement is eliminated, due to the fact that now it will not be necessary to issue an agreement whereby the trial hearing is closed).
To file the appeal against the resolution, from 15 to 10 business days.
To issue the resolution, the Court has a term of 45 business days, instead of the term of 60 business days.
To elaborate the resolution's draft, the Magistrates shall have a term of 30 business days counted after the term of 5 business days to formulate pleadings.
With respect to the suspension, the term to decide on the provisional suspension shall be of 24 hours, and to decide on the definitive suspension is a term of 5 days from the day the authority’s reports should have been submitted.
- The board of expert's witnesses figure is created in cases where the Magistrates deem clarification necessary with respect to the opinions provided by experts.
- Section III of Article 52 is eliminated (nullity for certain effects).
- If the trial was processed under an ordinary proceeding, the term for compliance with a judgment will be of 4 months and if the trial was processed under a summary proceeding, the term will be of 1 month. The period for compliance in both cases starts when the judgment becomes final and enforceable.
- For the legitimacy of summary proceedings, the respective amount was increased from five times to 15 times the general minimum wage in effect per year, which equals $394,416.00 pesos. The term for filing the claim under summary proceedings is of 30 business days following the date on which the notification of the ruling that is challenged takes effect; whereas the term to formulate pleadings is of 3 business days, and the term to issue the respective resolution is 10 business days.
- As a cause for the legitimacy of an appeal, the authorities add the fact that nullity has been declared in the judgment owing to the non-applicability of a general rule, in the exercise of vague control of constitutionality and conventionality by the Court.
- Only personal notifications or notifications by registered mail will be made, in the following cases:
- The ones serving a copy of the claim, as well as the summons to individuals in suits of detriment.
- The ones summoning the witness who cannot be presented by the offering party.
- Other notifications shall be made by electronic means through the Jurisdictional Bulletin, previously sending to the parties via email a notice on the fact that a notification will be made. The notification notice shall be sent at least 3 days prior to the publication of the motion, decision or resolution in question, and shall be deemed as served with the sole publication in the Jurisdictional Bulletin.
- As long as the notification has not been made via the Jurisdictional Bulletin, the parties may appear in person before the Court to be notified personally.
- Notifications made through electronic bulletins will take effect on the third business day following the day on which the publication has been made.
In principle, we deem that the changes that have been made are positive changes, due to the fact that the reduction of the terms for motions and resolutions, as well as notifications made via electronic means, will have as a consequence that the proceedings will be more expeditious and resolved in a shorter period of time than before.
Likewise, we noted that no Transitory Article is incorporated in the Decree to clarify what happens with cases where the legal term to file the nullity petition claim has not expired, because the notification of the resolution was served before the new rules came into effect. This is very important, since an interpretation could be made in the sense that a taxpayer has loose its right to challenge a resolution because of the reduction of the legal terms from 45 business days to 30 business days.
On the other hand, in our view it is important that the personal notifications of the court ruling and requirements are replaced with an electronic notification, since this will expedite the communication between the Court and the parties avoiding the excess in paper. The important thing will be to confirm how the Jurisdictional Bulletin works
Likewise, we are of the opinion that by deleting Section III of Article 52 of the Law (nullity for certain effects) the Court will be bound to resolve on the merits of the case instead of addressing procedural errors that only delays the resolution of the cases.