Court confirms illegality in accusation of the FGR

Unanimously, a federal court confirmed the illegality of a criminal process for alleged tax fraud promoted by the Attorney General’s Office (FGR) against a businessman who, in turn, maintains a dispute over a millionaire inheritance with a partner of the head of the FGR itself, Alejandro Gertz Manero. The reason? There was no crime to pursue.
This is the case against businessman Ernesto Álvarez Morphy Alarcón, whom the FGR accused of not having paid just over 10 million pesos in taxes. In January 2021, a judge of the North Prison, Artemio Zúñiga, agreed to link the businessman to the process, after considering that he could have committed an illicit act.
However, an amparo judge and now three magistrates of a federal court annulled the process after concluding that, improperly and violating their constitutional rights, neither the FGR nor Judge Artemio Zúñiga took into account that the businessman paid the missing balance on a supplemental tax return, before the SAT made the official notification. 

The court determined that, although the crime was not consummated, the FGR tried to “unnecessarily prolong the process,” “hurting the rights of the accused.”
Political Animal published on May 18 that federal judge Luz María Ortega Tlapa granted an amparo in favor of Álvarez Morphy Alarcón after reviewing the file of the criminal process and the investigation folder FED/SEIDF/CGI-CDMX/695/2020.
In her decision, the judge considered that the process promoted by the prosecution violated provisions of the fiscal rules and was based on “insufficient, illogical and potentially illicit” evidence.

Ortega Tlapa argued that at no time was intervention given to the SAT, the only authority with legal powers to identify irregularities in the businessman’s statements. The SAT also did not intervene because Álvarez Morphy, spontaneously, covered the shortfall of his payments before any verification process would begin. 
The judge identified 19 different irregularities in the case so she ordered the process to be deactivated. However, both the FGR and the Treasury challenged the amparo granted, so the case was turned over for review to the Second Collegiate Court in Criminal Matters, made up of magistrates Alejandro Gómez Sánchez, Ariel Acevedo, and José Alfonso Montalvo.
After multiple delays and deferrals, on May 26 the session of the aforementioned collegiate tribunal was held where the resolution of this issue was addressed. Unanimously, the three judges endorsed the draft resolution of Judge Gómez Sánchez in which it is proposed, for formal defects, to dismiss this process.
The investigation in question was activated after the FGR received an alleged anonymous complaint, in which it was stated that said businessman and his relatives were involved in an alleged plot of tax fraud and even possible money laundering.
After months of investigation and with the support of the Attorney General’s Office, prosecutors presented the case to the judge in August 2020 only because of the issue of missing tax payments.
Judge had to stop the case
In the session held virtually, the magistrates agreed that Judge Artemio Zúñiga should have dismissed from the beginning the possibility of opening a process against the businessman, since it was clear that with the payment of 11 million pesos (which no authority doubted), what the law calls “cause of exclusion from crime” was updated.
Magistrate Ariel Acevedo pointed out that although it is true that to link a person to the process only minimal evidence is required that allows us to assume that he committed a crime, it is the legal duty of the judge to make a control review to establish that the fact that is investigated represents a crime. A task that must be done from the beginning.
“The Treasury argued that the evidentiary standard of the link is not the same as the dictation of a sentence. However, the effort of the judge is to determine from the beginning if there is no exclusion of the crime and, therefore, avoid prolonged trials, with the wear and tear that this implies and unnecessarily. It is an effort that must be made to avoid long trials and damages to the accused,” said the aforementioned magistrate.
For his part, Judge Alfonso Montalvo stressed that the fact of opening an investigation for alleged tax crimes, as the FGR did, does not replace in any way the legal obligation that it is the SAT who exercises the functions of verification and, therefore, any payment made before this body reports an anomaly must be taken as valid.
“The authoriThey insisted on the existence of a complaint. The draft states that the existence of the complaint is not enough. It is necessary to verify how the authority discovered the alleged omissions. Not just any finding can be considered such. This must come from the powers of verification of the authority that has the powers to do so, a situation that in this case does not occur,” said Judge Montalvo.
In this context, what is now appropriate is that Judge Artemio Zúñiga receive in writing the notification of the resolution of the aforementioned collegiate court so that he can then summon the parties to a hearing where the case is considered definitively closed.
Álvarez Morphy case
The criminal process that the FGR tried to promote against the businessman Álvarez Morphy occurs while he maintains a testamentary dispute with his uncle, Gabriel Alarcón Velázquez, for a fortune valued at more than ten billion pesos.
It is a legal lawsuit that has been going on for two decades, but that has gained relevance after the death of Álvarez’s mother, which makes him the executor of the part of the inheritance that corresponded to her.
According to sources close to the businessman, the fact that he was criminally prosecuted put at risk his ability to serve as executor, in accordance with the clauses established in the will.
This media announced that the counterpart in this dispute, Gabriel Alarcón Velázquez, is a partner for several years of the current prosecutor Alejandro Gertz Manero, in a company called Aeroservicios y Transportes Galger, SA de CV, constituted in 2011.
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Original source in Spanish