Intraprocedural tax mediation: ¿A mechanism to eliminate the criminal presumption established in the determination document?

Abstract

Introduction: Alternative dispute resolution methods have intruded in most of the branches of law and the tax field has not been the exception, so its application is not intended to limit the competence of the judge to hear a dispute, but to complement and make effective its resolution. This research begins by analyzing the regulations in force in Ecuador and how it is developed in the tax scope in relation to the elimination of the criminal presumption established in the determination act, based on the review of bibliographic sources and the internal regulation. The possibility of incurring in intra-procedural tax mediation will be identified, in relation to the criminal types that affect the development regime, and the effectiveness of the ADR, in relation to the compensation of the damage caused to the State. In addition, the perception of foreign regulations will be described, which will serve to guide the application of these procedures. Objective: To analyze the intraprocedural tax mediation as a mechanism that could eliminate the criminal presumption established in the determination act. Methodology: The hypothetical-deductive method was applied, focusing on the approach of a hypothesis related to a vision of application of the object of study, assessing the acceptance or refutation of the process based on the grounds.  Results: It is shown that upon determining the criminal presumption established in the determination act, it may not be eliminated through the intraprocedural mediation process in ordinary proceedings; however, said conflict could be resolved with the conclusion of the transactional act, before the conclusion of the fiscal instruction stage, in certain criminal types that are related to the tax area, considering that there is the possibility in criminal types that do not exceed five years of deprivation of liberty. Conclusions: Intraprocedural tax mediation can be held according to the guidelines established in the internal norm, since, conciliation does not have a specific development, therefore, the guidelines in terms of foreign regulations will be relevant for an adequate development of such procedure.