Delimitación entre facultad determinadora y potestad sancionadora del SENAE en control aduanero.

Abstract

Customs control may reveal, from the same set of facts, elements relevant both to the determination of a tax obligation and to the exercise of the sanctioning power of Ecuador’s National Customs Service (SENAE). The legal issue arises when these two functions are confused and a tax discrepancy detected during customs control is treated as sufficient grounds for establishing an administrative infringement. This study examines the criteria that allow both powers to be distinguished under Ecuadorian tax and customs legislation and through relevant case law concerning tariff classification, sanctioning proceedings, and the principle of favorability. The analysis concludes that the tax assessment power is aimed at establishing or correcting the elements and amount of the tax obligation, whereas the sanctioning power requires the identification of previously defined unlawful conduct, the determination of the responsible party, action by the competent authority, and observance of due process guarantees. Consequently, a tax discrepancy may justify a tax assessment and may serve as supporting evidence for initiating sanctioning proceedings, but it does not, by itself, constitute sufficient proof of an infringement. Finally, the study identifies a tension in the wording of Article 114 of the Regulations to the Customs Facilitation Title and proposes its amendment to provide a clearer distinction between tax assessment consequences and administrative sanctions.