LEGAL STRATEGY
Whenever the rights granted to a person or an entity are affected by a public act – which can be a new law, a legal amendment, a closure, a public policy or a fine – that person or entity is entitled to appeal such an act. Whether the appeal is the best course of action or not shall be determined over a cost-benefit analysis. In this article we will present a case that took place in the State of Tamaulipas, Mexico, in 2017. Derived from an inspection of several casinos in different cities of Tamaulipas, the customs authority resolved that the gaming machines that were inspected, which were imported to Mexico, did not comply with the legal requirements for importation, thus the authority proceeded to seize them and impose fines against the manufacturer who brought the machines into the country . At first glance, this case was probably not worthy of appeal, but as we will go on to explain, not only did the actions of the authority show some irregularities, but the evidence of the legal importation of the gaming machines was absolute, therefore It was decided to appeal the fines imposed and request the return of the gaming machines. The facts In April 2017, the Deputy Secretary of Revenue of the Ministry of Finance of Tamaulipas (the “MFT”) ordered an inspection visit to a casino located in a city of said state to review the compliance of the gaming machines, that were installed in the casino at that time, with Customs and Imports Regulations. Then in May 2017, the MFT ordered an inspection visit to a casino located in another city of Tamaulipas with the same purpose as the visit held back in April. As a result of its inspections, the MFT determined in both cases that the gaming machines did not comply with the legal importation requirements. They proceeded to seize the gaming machines that were installed in the casinos at the time, which initiated the Administrative Procedure in Customs Matters (in Spanish Procedimiento Administrativo en Materia Aduanera; Spanish acronym “PAMA”). An important clarification is that the seizure of the gaming machines was not construed as a sanction per se, but as a precautionary measure. Since the authority had initially determined that the gaming machines were not legally
imported, it assumed that the corresponding import taxes had not been paid and it proceeded to seize the gaming machines as a guarantee to the payment of tax credits. Once the PAMA was initiated, and pursuant to Article 153 of the Customs Law, a period of ten days is allowed, counted from the day following that on which the notification made by the authority is received, for the defendant to offer, by writing, the evidence and allegations that he or she deems appropriate. In this case, the manufacturer who imported the gaming machines responded in a timely manner and presented the documents that evidenced the legal importation of the gaming machines. Among the stipulations established in the Customs Law, importers are required to affix a label to the goods they introduce into the country that displays specific commercial information. This obligation comes from the Mexican Official Standard NOM-024-SCFI-2013 (the “Label NOM”). The Label NOM applies to new, refurbished, and second-hand products, and it is beyond dispute that it applies to gaming machines. The MFT alleged several breaches of the Customs Law from the manufacturer, however, the main argument was that the gaming machines did not show the labels that were supposed to be affixed to them at the time of the inspections. The non- compliance with the Label NOM were sufficient grounds to determine that the gaming machines were not correctly imported and as a consequence the MFT imposed the respective fines on the manufacturer. The appeal Even though the manufacturer contested all and every argument presented by the MFT and submitted substantial evidence, such as photographs of the labels adhered to the gaming machines, the MFT concluded that the importation of the gaming machines did not comply with the legal requirements and levied several fines on the manufacturer. The manufacturer had the choice of paying the fines and recovering the gaming machines or appealing the MFT’s resolution through an administrative trial before the Federal Court for Administrative Justice (the “Administrative Court”). Despite the fact that the litigation would represent more in
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IMGL MAGAZINE | OCTOBER 2023
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