Fundamental Aspects of the Offense of Incitement to Non-Compliance With Tax Obligations

Abstract

The 2014 Organic Tax Code introduced the offense of instigation to the non-compliance of tax obligations (Article 123), reinforcing a shift in Venezuela’s tax system from a traditional legal relationship toward a relationship of power. This criminal provision treats instigation as an autonomously punishable preparatory act, sanctioning anyone who publicly encourages or coordinates actions aimed at promoting collective refusal to comply with tax duties. Its structure reinforces a regulatory approach centered on state authority in matters of tax compliance. The protected legal interest is not tax collection itself but rather financial public order and social peace. Because of this, the offense is strictly intentional and requires publicity as an objective condition for punishment. Calls made in private settings, academic environments, or technical discussions do not meet this threshold and therefore fall outside the scope of the crime. The requirement of public dissemination is essential to distinguishing criminal instigation from legitimate discourse. The author argues that this new offense represents a form of legal over-protection, since the existing Penal Code already contained a general instigation provision capable of safeguarding public order, including the financial sphere. The article emphasizes that professional opinions, technical interpretations, and legitimate criticism of tax laws remain protected expressions under the principle of right to freedom of expression. This ensures that the new offense should not be interpreted as criminalizing lawful debate or expert analysis in the tax field.