Continuing with how in Chihuahua the administrative procedure works, after I depicted its generalities in the entry The Administrative Procedure in Chihuahua Part I where I talked about the following topics:

• 1) Nature of the Administrative Procedure
• 2) Exceptions
• 3) Supplemental Regulations
• 4) Mandatory Acceptance of Requests
• 5) Administrative Act
• 6) Elements of Validity of the Administrative Act
• 7) Requirements For Validity of the Administrative Act
• 8) Validity, Effectiveness, and Enforceability of the Administrative Act
• 9) Nullity, Annulability, and Revocation of Administrative Acts
• A) Nullity
• B) Annulability
• C) Nullity and Annulability Ex Officio
• D) Revocation
• 10) Extinction of the Administrative Act
• 11) Administrative Silence
• 12) Administrative Procedure
• A) Initiation of the Administrative Procedure
• B) Requirements For Individuals to Initiate the Administrative Procedure
• C) Signature Prevention
• D) Promotion and Reception
• E) Registration and Control
• F) Evidence
• Expert Opinions
• Testimony
• Judicial Inspection
• G) Evidentiary’s Term
• H) Technical Opinion
• I) Conciliation
• J) Conclusive Arguments
• K) Expiration
• L) The Termination of the Administrative Procedure
• M) Final Resolutions

Table of Contents

• 13) Inspection and Verification Visits
• A) Rules for the Practice of Inspection and Verification Visits
• B) Delivery of the Visit Order
• C) Initiation of the Visit
• D) Scope of the Visits
• E) Inspection Record
• F) Previous and Complementary Minutes
• G) Objections and Evidence
• H) Resolution
• 14) Security Measures
• 15) Sanctions
• A) Term
• B) Considerations for Imposing Sanctions
• C) Individualization of Sanctions
• D) Independence From Administrative Sanctions
• E) Expiry of the Powers to Impose Sanctions
• 16) Administrative Relief
• A)Appropriateness
• B) Term
• C) Presentation and Resolution Body
• D) Optional Legal Remedy
• E) Requirements
• F) Documents Attached
• G) Processing
• H) Inadmissibility
• I) Suspension of the Challenged Act
• J) Inadmissibility of the Suspension
• K) Suspension’s Guarantee
• L) Admission of Evidence
• M) Type of Evidence
• N) Conclusions
• Ñ) Resolution
• O) Content of the Administrative Review’s Resolution
• P) Challenge of the Administrative Review’s Resolution

13) Inspection and Verification Visits

Among the powers that the different administrative authorities of Chihuahua state have are verification visits commonly associated with the Federation, specifically with the Tax Administration Service. This perception is due to the slow development of Administrative Law in Chihuahua and its budgetary problems.

However, one of the areas that you should pay the most attention to as a businessman is complying with the administrative regulations relevant to your type of business, such as roads, health, transportation, construction, etc. This is because the state of Chihuahua has already realized that through the different sanctions that the local public administration has, it can obtain the resources it cannot get by other means, such as taxes.

That said, it should be clear to you that the purpose of the inspection and verification visits is for the administrative authority to verify whether you are complying with the legal and regulatory provisions (which, I will be honest with you, even for the lawyers themselves they are often difficult to find) to If this is not the case, impose a series of sanctions that I will mention later. Inspection and verification visits can be ordinary and extraordinary, the former being on business days and hours, while the latter at any time.

A) Rules for the Practice of Inspection and Verification Visits

Individuals or public officials conducting inspection or verification visits must be provided with a written order and a handwritten signature issued by the competent authority. An order that must specify: 1) the name of the person in respect of whom the visit is ordered; 2) the place or area to be verified or inspected; 3) the purpose of the visit; 4) the scope it should have and 5) the legal provisions that support it.

B) Delivery of the Visit Order

The visit order with the above requirements must be delivered to you as the visited person or to your representative. If neither of the two is present, the administrative authority shall leave you a prior notice so you can attend to the procedure later. If you do not appear yourself or through a representative, the visit order shall be left to any person in the place or area where the inspection or verification visit must be carried out.

C) Initiation of the Visit

The people in the place to be visited must allow access to the public officials designated for the diligence, under the warning that public force may be used if they do not do so.

On the other hand, at the beginning of the visit, the official must identify himself to the people present. This is done with the current credential with a photograph issued by the competent authority that accredits him to perform that function, as well as the express order that I mentioned previously.

D) Scope of the Visits

The administrative authorities may inspect and verify goods, documents, any processable means of data storage, and transport vehicles to verify compliance with legal provisions without any limitations other than complying with the formalities set out in this section of the entry.

E) Inspection Record

A detailed record shall be drawn up of every inspection and verification visit in the presence of two witnesses named by the person visited or the person with whom the visit is conducted. A copy of this record shall be left with the person visited, even if they refuse to sign. In any case, such circumstances shall be recorded in the inspection record.

Under this framework, the following shall be recorded in the inspection record:

I.-  Name or company name of the person visited.

II.- Time, day, month, and year in which the procedure begins and ends.

III.- Street and number, town or neighborhood, telephone or other form of communication available, municipality in which the place where the visit is carried out is located, and the postal code.

IV.- Number and date of the document that motivated the visit.

V.- Name and position of the person with whom the procedure was carried out.

VI.- Name and address of the people who served as witnesses.

VII.- Data related to the visit.

VIII.- Declaration of the person who knows about the procedure if they wish to do so.

IX.- Name and signature of those who participated in the procedure, including those of the person or persons who carried it out.

If the person designated to receive the procedure in question or his legal representative refuses to sign, this shall not affect the record’s validity. The person carrying out the inspection or verification must state the reason and inform the circumstances about the visited person’s refusal to sign.

F) Previous and Complementary Minutes

The Administrative Procedure Law of the State of Chihuahua provides for the possibility of creating prior or complementary minutes that refer to those inspection minutes on specific facts that arise during the visit or immediately after its conclusion, as long as they satisfy the requirements. The same formalities are set out above.

G) Objections and Evidence

The persons for whom a visit and verification record has been drawn up may, during the visit, make observations during the procedure and offer evidence about the facts recorded in the inspection record. In any case, this same right may be exercised later within 5 days of the minutes being drawn up, but in writing.

H) Resolution

Once the evidence presented by the visited person has been resolved, within the next 10 business days, the administrative authority shall issue a reasoned resolution in which it may establish the corresponding responsibility for the infractions found during the visit and verification. Of course, it may also impose the corresponding security measures and sanctions.

14) Security Measures

Security measures, in terms of the Administrative Procedure Law of the State of Chihuahua, are provisions issued by the administrative authority to prevent damage to people and property, protect health, and guarantee order and public safety.

On the other hand, the security measures are immediately executed, have a preventive nature, and shall be applied without prejudice to the sanctions that may apply. These measures shall have the duration strictly necessary to correct the irregularities or prevent the respective risks and, where appropriate, may be modified when the circumstances that motivated them change.

In this sense, the administrative authorities, based on the results of the verification or inspection visit that I have already mentioned, may dictate security measures to correct the irregularities found. Security measures that in any case are the following:

I.- The total or partial suspension of construction, installation, exploitation, works, jobs, services, or activities.

II.- The temporary, total, or partial closure of facilities, constructions, services, and works.

III.- The removal of facilities, materials, furniture, or equipment.

IV.- The prohibition of acts of use.

V.- Isolation.

VI.- Quarantine.

VII.- Personal health observation.

VIII.- Mandatory vaccination of people.

IX.- Mandatory vaccination of animals.

X.- The destruction or control of insects or other transmitting and harmful fauna.

XI.- The seizure and destruction of objects, products, or substances.

XII.- The total or partial vacancy or eviction of houses, buildings, establishments, and, in general, any property.

XIII.- Precautionary securing of animals.

XIV.- Neutralization or any analogous action that prevents the materials from generating harmful effects pursuant to the laws of the matter.

XV.- The identification and delimitation of risk places or areas.

XVI.- Preventive actions to be carried out according to the nature of the risk.

XVII.- Temporary evacuation of the establishment or building partially or totally, depending on the risk.

XVIII.- The other matters determined by the administrative authorities on different issues, following the applicable legal provisions to prevent risks from being generated or continuing to cause.

In my opinion, many of these security measures are notoriously unconstitutional and can be challenged by filing an indirect amparo proceeding. However, in a later entry, I will discuss the reason for such a statement and how Amparo works in Mexico.

15) Sanctions

Within the catalog of administrative sanctions that public administration authorities in Chihuahua can impose are the following:

I.-  Reprimand with warning.

II.- Fines.

III.- Temporary or permanent, partial or total closure.

IV.- Arrest for up to thirty-six hours.

V.- The others indicated by the laws or regulations of the matter from which the administrative act emanates.

You should know that the previous sanctions may be applied simultaneously, except for arrest. Also, in the case of recidivism, the corresponding fine may be doubled without exceeding the maximum established as a fine in the respective law.

In any case, for the imposition of sanctions, except those determined by the administrative authority as urgent to preserve the public interest, the corresponding administrative procedure must be initiated, allowing you to present what is appropriate to your right and, where applicable, provide the respective evidence.

A) Term

Once the probable offender has been heard and the evidence offered and admitted has been presented, the appropriate resolution shall be issued in writing within the following 10 days, which shall be notified personally or by the Mexican Postal Service by registered mail with return receipt.

B) Considerations for Imposing Sanctions

The administrative authority must found and motivate the resolution with which it imposes administrative sanctions on individuals, considering the following for the individualization of said sanctions:

I.- The nature of the impact on legally protected assets.

II.- The amount of the benefit, profit, damage, or economic loss derived from the breach of obligations, if any.

III.- The intentional or unintentional nature of the action or omission constituting the infringement.

IV.- The seriousness of the infraction.

V.- The repetition of the fault.

VI.- The socioeconomic condition of the offender.

C) Individualization of Sanctions

When several violations of laws, regulations, or other administrative orders are recorded in the same inspection record, in the respective resolution, the fines and sanctions shall be determined separately, and the total amount of all fines, if any, shall be determined.

When two or more violating persons are included in the same act, the corresponding sanction shall be imposed on each of them, except when compliance with the obligations provided for in a legal provision corresponds to several persons jointly, in which case they shall be jointly responsible for the infractions they commit and for the sanctions imposed, if applicable.

D) Independence From Administrative Sanctions

The sanctions for administrative infractions shall be imposed without prejudice to the penalties that correspond to the crimes that, if applicable, the violating persons incur. The administrative authority shall only have the obligation to notify the ministerial authority—which is also administrative—so that, where appropriate, the corresponding criminal liability can be established.

E) Expiry of the Powers to Impose Sanctions

The Administrative Procedure Law of the State of Chihuahua stipulated, with a deficient legislative technique, that the powers of the administrative authorities to impose sanctions expire 5 years from the time the infraction was committed when the correct thing was to establish that they expired.

This is so because, considering the distinction made by doctrine and judicial precedents, expiration (caducidad) and statutes of limitations (prescripción) are two different legal institutions. The first refers to the loss of the authority’s powers to do something, such as imposing sanctions, while the second refers to the extinction of a right, such as collecting the fine that has already been imposed.

Therefore, beyond the error of legislative technique, the important thing to consider is that if the administrative authority does not detect irregularities in individuals’ administrative provisions in 5 years, it shall not be able to initiate its verification powers, much less impose sanctions.

16) Administrative Relief

Previously, one of the biggest problems faced by the public administration was figuring out how to challenge the mistakes of the different public agencies, both municipal and state. Since in some cases, there were not even ordinary legal remedies to challenge the determinations of the administrative authorities, while in others, the deadlines were very short, and the legislation that regulated the appeal was very sparse.

To standardize and grant legal certainty to individuals, the Administrative Procedure Law of the State of Chihuahua contemplates a legal remedy called ‘administrative review’ that allows modifying or revoking the administrative acts of the administrative authority. Of course, it is a legal remedy that only becomes applicable to the matters and authorities subject to said law—which are practically 80% of municipal and state public agencies—and that you can determine by reviewing the jurisdiction and application of the law in Chapter 2) of this entry.

A)Appropriateness

This legal remedy proceeds against the resolutions of the administrative authorities in matters whose jurisdiction is contemplated in the Administrative Procedure Law of the State of Chihuahua.

B) Term

The deadline for filing this legal remedy is within 30 business days from the administrative resolution to be challenged.

C) Presentation and Resolution Body

The administrative relief must be submitted in writing to the authority that issued the contested act and shall be resolved by whoever has hierarchical superiority in the public administration; same that shall process and substantiate it, unless the contested act comes from the person who owns a dependency, in which case it shall be resolved by the same.

D) Optional Legal Remedy

The administrative relief is optional since the governed without major problems can, instead, file a Contentious Administrative Trial that shall have to be resolved by the State Court of Administrative Justice (TEJA) under the terms of the contentious procedure that I have already analyzed in a different entry called Administrative Justice in Chihuahua, Mexico, which I invited you to read.           

On the other hand, I recommend exhausting this legal remedy first before going to the State Court of Administrative Justice as long as the administrative authority that issued the act and the one that must resolve it is in the same district, as may be the case in controversies with the municipal public administration. This is so that we can check the matter more easily and, why not, encourage its prompt resolution.

Furthermore, consider that in Chihuahua, there is only one Chamber of the State Court of Administrative Justice of the State of Chihuahua for the entire state and, therefore, the court is practically collapsed, so it’s more likely that the administrative authority itself is the one to resolve the matter faster.

E) Requirements

For filing this administrative relief, you must indicate the following requirements:

I.- The authority to whom the legal remedy is directed.

II.- Your name and, if applicable, the person representing you. Also, provide the interested third party’s name and address, if appropriate.

III.- Your address to receive notifications and documents from the resolution body and, where appropriate, an email address.

IV.- The name of the people you authorize to receive notifications.

V.- The act or administrative resolution that you challenge.

VI.-  The date of notification of the contested resolution.

VII.- In the case of acts that, in the absence of an express resolution, are understood to be denied and that, therefore, the fictitious refusal is updated, you must accompany the document initiating the respective procedure or the document on which no resolution has been issued.

VIII.- The administrative authority issuing the act or resolution challenged from.

IX.- The background or facts of the challenged act or resolution.

X.- The arguments or issues aimed to nullify the challenged resolution.

XI.- The evidence you offer in the administrative review, relating it to the facts or background of the appeal.

F) Documents Attached

The administrative review must accompany the following:

I.- Documents that prove the personality of the petitioner when acting on behalf of another individual or legal entity.

II.- The document in which the act or resolution challenged is recorded.

III.- The proof of notification of the contested act or the last publication if the notification had been by edicts, except when the appellant declares under oath that he was not notified or was unaware of it.

IV.- The evidence offered in the administrative relief that has an immediate and direct relationship with the resolution or contested act must accompany the available documents.

G) Processing

Once the administrative relief is received, the authority that issued the contested act or resolution and to whom the administrative review must be filed shall forward the file to the resolution body within the following 3 business days. Subsequently, the resolution body shall provide within 10 business days the admission, prevention, or dismissal of the legal remedy, which must be personally notified to the petitioner.

If the administrative relief is admitted for processing, the resolution body shall request from the public servant who authorized or issued the contested act a report that may accompany evidence related to the contested act and reinforce its legality. This shall be done within a period of no more than 10 business days.

H) Inadmissibility

The administrative relief shall be inadmissible and, therefore, dismissed when the following legal hypotheses happen:

I.-  When the same act is challenged under another legal remedy and the resolution is still pending.

II.- Against acts that do not affect the legal interests of the petitioner.

III.- Against acts consummated irreparably.

IV.- Against acts that have been expressly consented to through written statements of an indubitable nature.

V.- When the administrative relief is filed out of time.

VI.-  When the authority revokes the contested act.

I) Suspension of the Challenged Act

Upon filing the administrative relief, the petitioner may request the administrative authority that issued the act to suspend its execution. Suspension can be granted in any case until before the appeal is resolved.

The suspension’s granting or denial must be agreed upon no later than 24 hours after your request.

The effect of the suspension is that things remain in their current state while the corresponding resolution of the administrative relief is issued. Said suspension may be revoked if the conditions under which it was granted are modified.

J) Inadmissibility of the Suspension

The suspension shall not be granted in cases where administrative relief is not admissible, harm is caused to the public interest, public order provisions are contravened, damages are caused to third parties, or the procedure is left void.

K) Suspension’s Guarantee

When deciding on the suspension, the authority must indicate the necessary guarantees to cover the damages that may be caused to third parties by said suspension. In any case, fines must be guaranteed pursuant to the rules of tax liabilities provided for in the Tax Code of the State of Chihuahua.

The guarantee for the above damages shall be guaranteed in the following ways:

I.- By deposit ticket issued by the institution authorized for this purpose, as income collection.

II.- Bond issued by the respective institutions.

Finally, I want to point out that the lawmakers in the Administrative Procedure Law of the State of Chihuahua do not properly develop many aspects of the suspension and other institutions even though such institutions’ existence and minimum scope are contemplated. This is because such matters would have to be the subject of a Regulation of the Administrative Procedure Law of the State of Chihuahua, which has remained without being issued to this date.

Therefore, to know what is related to how to guarantee tax credits or damages that could be caused to third parties, we must adhere—for now—to what is contemplated in a supplementary manner by the Administrative Justice Law of the State of Chihuahua, to the Tax Code of the State of Chihuahua and the Code of Civil Procedures of the State of Chihuahua. Topics that, in any case, I had already discussed in the entry of this blog called the Administrative Justice in Chihuahua and that I have previously cited.

L) Admission of Evidence

Once the administrative relief has been admitted and the report of the public servant who issued the contested act has been received or, where applicable, the term to do so has expired, the resolution body must rule on the evidence offered by the parties within 15 days following receipt or not of the report.

M) Type of Evidence

The evidence I already referred to in section 12), section F) (F) Evidence) of the first entry about the Administrative Procedure in Chihuahua will be admissible for administrative relief. To avoid repetition, I refer the reader to said entry to clarify what evidence they should present to the authority.

N) Conclusions

Once the evidence has been revealed according to its nature, the resolution body shall grant both parties 5 business days to formulate conclusions that, although they don’t need to be taken into account, can generate conviction to the resolution body in favor of the case from whom the matter should be resolved.

Ñ) Resolution

Once both parties’ arguments have been presented or the time they had to do so has expired, the resolution body must resolve the administrative relief within 15 business days.

Now, among the determinations made by the resolution body, the following may be:

I.- Dismiss the administrative review as inadmissible.

II.-  Confirm the contested act.

III.- Declare the non-existence nullity of the contested act or revoke it totally or partially.

IV.- Modify or order the modification of the contested act or order the issuance of a new one to replace it when the administrative review filed is totally or partially resolved in favor of the complainant.

Administrative acts or resolutions cannot be annulled, revoked, or modified with arguments you have not asserted. Hence, you should hire an administrative lawyer to file it and not do it alone.

O) Content of the Administrative Review’s Resolution

The resolution issued by the resolution body must meet the following requirements:

I.- The examination of each one of the issues raised by the complainant, unless one or some are sufficient to vacate the validity of the contested act or resolution.

II.- The examination and assessment of the evidence provided.

III.- The mention of the legal provisions that support the resolution.

IV.- The expression in the operative paragraphs of the reinstatement of the procedure ordered, the acts or resolutions whose validity is recognized or whose invalidity is declared, the terms of the modification of the contested act or resolution, the sentence that, if applicable, is decreed and, if possible, the effects of the resolution.

P) Challenge of the Administrative Review’s Resolution

As I have already clarified in other sections, the administrative resolution of the administrative review can also be challenged through the Contentious Administrative Trial, which I discussed in the entry “Administrative Justice in Chihuahua, Mexico. “

By Omar Gómez

Mexican Tax, Administrative and Constitutional Attorney

Partner

Contact me at [email protected]