For the Tax Reform of the 2021 tax year, the Executive power presented on September 8, 2020, to the Congress of the Union the respective Economic Package, which includes, among others, proposals for the Fiscal Miscellaneous, regarding Income Tax Law (LISR), Value Added Tax Law (LIVA), Special Tax on Production and Services Law (IEPS) and the Federal Tax Code (CFF).
The Economic Package proposal does not include new taxes, but it does include adjustments in the applicable regulations related to compliance with obligations and requirements, increasing control, based on premises on administrative simplification, legal security, modernization, tax management, collection efficiency, combat against corruption and impunity and tax evasion and avoidance.
Once the project is analyzed by the Chambers of Congress, it must be approved no later than October 31, 2020, to begin its validity in 2021.
Although the final approval of the project is pending, below, we mention the most relevant aspects that are included to reform the LISR, LIVA, LIEPS and CFF:
1. Income Tax Law (LISR)
1.1. Elimination of the School Company Programs as authorized donees.
Since there are no requests from “Programas Escuela Empresa” to receive ISR deductible donations, it is proposed to eliminate said programs as authorized donees.
1.2. Non-profit legal entities that must be authorized as donees to not pay ISR.
On the other hand, the associations or societies that grant scholarships, those dedicated to scientific or technological research, those dedicated to the research or preservation of wild, terrestrial or aquatic flora or fauna and environmental protection activities and entities dedicated to reproduction of species in protection and danger of extinction and the conservation of their habitat, they will be able to pay taxes as legal entities for non-profit purposes, as long as they obtain authorization to receive deductible donations, otherwise, they will have to pay the ISR that corresponds to them for their activities.
1.3. Expenses that are considered distributable remnant of non-profit legal entities.
It is proposed that non-profit legal entities, in addition to being authorized as donees, support their acts and activities with tax receipts and with the corresponding additional documentation, otherwise any unsupported expense will be considered as distributable remnant.
1.4. Cooperative integration and representation organizations referred to in the General Law of Cooperative Societies.
It is proposed to add non-profit legal entities for ISR purposes as cooperative bodies for the integration and representation of cooperative societies.
1.5. Special requirements for authorized donees.
1.5.1. Income not related to the authorized activity.
It is proposed to revoke the authorization of authorized donees to those who obtain more than 50% of their income from / from activities not related to their activity, to prevent them from engaging in lucrative activities. In case of not obtaining their authorization again within the 12 months following the loss of the first authorization, they must allocate all their assets to another donee authorized to receive deductible donations from income tax.
Authorized donees who have obtained tax receipts issued by taxpayers with non-existent and / or simulated operations, and who are listed as such by the tax authorities, must consider as income the amount covered by the aforementioned tax receipts, having to pay the tax if in a period of 30 days does not prove that they actually acquired the goods or received the respective services.
1.5.3. Donees patrimony.
The donees may only allocate their assets to other authorized donees when their authorization is revoked and / or their authorization is rendered invalid. The beneficiary donees must issue the corresponding tax receipt for donation, which will not be deductible for ISR purposes. The foregoing shall also apply in the event that an authorized donee is approved ofits request to cancel her authorization.
1.5.4. Revocation of donees authorization.
In scope and consistency with the foregoing, the project additionally proposes to revoke the authorization of the donees when they do not allocate their assets to the exclusive purposes of the corporate purpose for which they obtained their authorization, do not issue tax receipts or issue them as donations when they correspond to a different operation and that is not a donation, as well as when they are within the definitive list of taxpayers who carry out non-existent and / or simulated operations.
Likewise, the authorization will be revoked if the legal representative (s), partners or associates or any member of the Board of Directors or Administration of a civil organization or trust whose authorization has been revoked within the last 5 years, are part of civil organizations. and trusts authorized to receive deductible donations during the term of the same.
Civil organizations and trusts whose authorization to receive deductible donations has been revoked due to the previous assumptions will not be able to obtain authorization again to receive deductible donations, until they correct the reason for which they were revoked or, where appropriate, pay the corresponding ISR.
On the other hand, in the event that the authorization is revoked due to obtaining income not related to the purpose of the donee, the authorization may not be obtained again and all its assets must be allocated to another authorized donee.
The SHCP must notify the taxpayer of the cause of revocation of their authorization as donee, granting them the opportunity to distort the observations and / or causes of said revocation.
1.5.5. Elimination of donee certification.
It is proposed to eliminate the option for grantees to be certified regarding compliance with fiscal, transparency and social impact assessment obligations.
It is proposed to specify the transfer pricing requirements that the maquiladoras must comply with, indicating the elimination of the indication that the maquiladoras must obtain and keep the supporting documentation of transfer prices, that is, transfer pricing studies, since said requirement does not It corresponds to the current regulation and currently it is only necessary for the taxpayer to have a particular resolution or Advance Transfer Pricing Agreement.
Law of Value Added Tax (LIVA)
2.1. Exemption to professional medical services.
Since authorized assistance or charitable institutions are created non-profit, it is proposed to include in the tax exemption for professional medical services those provided through said institutions, provided that the provision of services requires a medical degree and they are provided by natural persons, either individually or through civil companies.
2.2 Digital Services.
2.2.1. Intermediation for the sale of used real estate.
The exemption for digital intermediation services aimed at the sale of used movable property is eliminated.
2.2.2. Residents abroad who provide digital services through digital intermediation platforms.
It is proposed to establish the obligation to digital intermediation platforms to withhold 100% of the VAT charged, when they provide their intermediation services to residents abroad without an establishment in Mexico, whether they are individuals or legal entities, who provide digital services to people located in the country, to whom payments are processed, since it has been observed that said residents abroad do not comply with the obligations of the Law registration in the RFC, indicate an address in the country and designate a legal representative, due to its low participation in the Mexican market.
Likewise, it is proposed that residents abroad without permanent establishment in the country who provide their services to recipients in Mexico, through digital mediation platforms, are not obliged to comply with the obligations of registering in the RFC, offering and collecting the Tax on the price, provide information to the tax authorities, provided that the intermediation platforms retain and pay the respective tax.
Similarly, the digital intermediation platforms that process the payments that carry out the withholding of the tax, will not have the obligation to provide the tax authorities with information on residents abroad without an establishment in Mexico that provide digital services, in whose operations they have acted as intermediaries; however, intermediaries must issue and send to the recipients of digital services in national territory that request it, the receipts corresponding to said services, with the tax transferred expressly and separately, either in the name of the person to whom it is requested make the withholding or in their own name.
It is also proposed that digital mediation platforms, instead of expressly and separately stating the tax corresponding to the price at which the respective goods or services are offered, may publish it without doing so, as long as said prices include the tax and the publish with the legend “VAT included”.
2.3. Breach of obligations.
Given the lack of jurisdictional control over residents abroad who provide digital services and who for this require the use of an Internet access infrastructure that is provided by concessionaires of public telecommunications networks in Mexico in order to allow the connection between the issuer and receiver of the digital service, it is proposed to establish a control mechanism so that when taxpayers providing digital services residing abroad without an establishment in Mexico incur serious tax omissions, the temporary blocking of Internet access can be carried out its services.
However, it is proposed to establish a procedure that respects the right to a hearing prior to the issuance of the blocking order, through which the tax authority must inform the taxpayer of the resolution in which it determines the breach of the obligations in question, so that said taxpayer can distort or correct the unfulfilled obligations.
Likewise, it is proposed that the tax authority should make the official publication of the taxpayers that are blocked.
Federal Fiscal Code (CFF)
3.1. General anti-abuse rule.
It is proposed to clarify that the application of the general anti-abuse rule to determine the legal effects that the tax authorities grant to taxpayer operations that are considered without business reason, will be limited to tax matters without prejudice to investigations and criminal liability corresponding, in relation to the crimes established in the CFF.
3.2. Hours of the Tax Mailbox.
In order to grant legal certainty about the hours of the tax mailbox, it is proposed to specify that the hours of the Central Zone of Mexico are the one that governs the operation of the tax mailbox.
3.3. Term disposals with deferred payment or in installments.
It is proposed to specify that installments with deferred payment or in installments will also be considered when a simplified tax receipt is issued and even when said transfers are made with the general public.
3.4. Company spin-offs.
It is proposed to foresee that the division of companies or spin- offs will have the character of alienation, even when the non-alienation requirements are met, when derived from said spin-off generate concepts or items that did not exist before it, and which, although they respond to the need to balance the accounting equation, as a consequence that results from the way in which the shareholders’ meetings of the splinter and spun-off companies decided to distribute the existing values in the assets and liabilities accounts, they cannot be attributed income tax consequences and carrying out acts or activities.
In this regard, it should be added if in a division of companies concepts or items that did not exist before are generated, in the dividing, spun-off or spun-off company, the shareholders of the spun-off companies will be jointly and severally liable, without limitation.
3.5. Updating of the regulatory framework for recognized markets.
In order to be consistent with the Securities Market Law, it is proposed to adjust the recognition within the stock market of any corporation that obtains the concession title granted by the SHCP, and not only the Mexican Stock Exchange.
3.6. Identity verification service.
Individuals who determine the use of advanced electronic signature as a means of authentication or signing of digital documents, may request the SAT to provide the verification and authentication service of advanced electronic signature certificates, as well as that of identity verification of the users, the above derived from the biometric information of the identity of the people or taxpayers that the tax authority collects on the occasion of the electronic signature process; this verification service will be done without exposing any personal data provided by the citizen.
3.7. Cancellation of digital seal certificates.
It is proposed to establish that digital stamp certificates are canceled and not only restricted, when taxpayers are definitively listed as taxpayers who carry out non-existent operations and / or transfer tax losses improperly.
On the other hand, it is proposed that in the procedure to disprove irregularities related to digital stamp certificates, the term that the authority has to issue a resolution be extended from 3 to 10 days.
However, taxpayers whose digital seal certificate has been rendered ineffective may carry out the procedure that, through general rules, the SAT determines to correct the irregularities detected, in which they may provide the evidence they your right is convenient and, where appropriate, obtain a new certificate.
On the other hand, it is proposed that in the procedure to disprove irregularities in relation to digital seal certificates, the term that the authority has to issue a resolution be extended from 3 to 10 days.
3.8. Restriction of digital stamp certificates.
The reform project proposes to establish a temporary limit of 40 business days so that those taxpayers who have been temporarily restricted from the use of the digital seal certificate for the issuance of CFDI’s, can submit a request for clarification to correct the irregularities detected, or to distort the causes that motivated the application of such measure; once the corresponding request for clarification has been submitted by the taxpayer, the day after this happens, the tax authorities must re-establish the use of the digital seal certificate for the issuance of digital tax receipts over the Internet, a situation that will be allowed until as long as the resolution on said procedure is issued.
The tax authority must issue the resolution on said procedure within a maximum period of 10 days.
If the request for clarification is not submitted and / or the irregularities indicated by the authority are not disproved, the digital seal certificates will be rendered ineffective.
3.9. Messages of interest.
It is proposed to establish that the tax authority, in addition to notifying any administrative act or resolution that it issues, in digital documents, including any that may be appealed, the tax authority may also send messages of interest informing taxpayers, through the tax mailbox, benefits, facilities, invitations to programs, aspects related to your tax situation and useful information for the fulfillment of your tax obligations. Likewise, it is established that individuals and legal entities who have a tax mailbox assigned to consult it within 3 days after receiving a notice from the tax authority, through any of the means of contact registered by the taxpayer, which may be the email and cell phone number.
3.10. Refund of balances in favor.
The reform project proposes that the lack of location of the taxpayer, or of the domicile stated before the RFC, is considered as a cause for having a refund request not submitted.
In this regard, it should be noted that said cause does not imply a requested refund refusal for the taxpayers, since they will only have to regularize their fiscal situation before the RFC, by submitting the corresponding notice, so that the authority can verify the veracity of the information provided to said Registration and, where appropriate, determine the origin of the requested refund for the balance in favor.
Likewise, the reason for not having a request for refund turn as not submitted will not be considered as a collection management that interrupts the prescription of the obligation to refund.
In the case of several requests for the refund of the same taxpayer for the same type of contribution, it is proposed that the authority carry out a single exercise of powers for the total number of requests or an exercise of powers for each of them, issuing only one resolution.
Likewise, it is proposed to establish that once the authority’s powers of verification in a refund procedure have been concluded, the authority must issue and notify the taxpayer of the corresponding resolution within a period of 20 days and not 10.
3.11. Joint responsibility.
The resident in Mexico or the resident abroad with a permanent establishment in the country who maintains operations with related parties residing abroad will be considered jointly and severally liable when the latter constitute a permanent establishment in Mexico.
Likewise, the assumption of joint and several liability due to division of companies/spin-offs mentioned above is also added.
3.12. Federal Tax Registry (RFC).
It is proposed to modify the obligation to indicate an email account and a telephone number, to specify that said data, in addition to being registered, must be kept updated.
On the other hand, it is proposed to specify that the information that the authority requires from the partners and shareholders of a legal entity is also that of related figures such as associates, employers, among others, that is, it must correspond to that information related to the members. of the legal person whose functions, obligations and rights are similar to those of a partner or shareholder, regardless of the name with which they are designated or recognized by the legislation or statutes under which they are constituted.
Likewise, the reform project proposes that the SAT by act of authority may suspend or reduce obligations that taxpayers have registered with the RFC when it determines that they have not carried out any type of activity in the last 3 previous years.
It is also proposed that prior to the cancellation of the RFC, and to foresee the possibility that the treasury obtains collection losses, taxpayers, in addition to complying with the obligations and requirements established through general rules, must be up to date in the fulfillment of its obligations for the origin of its cancellation, that is, a taxpayer who has tax deficiency assessment in charge, for example, will not be able to cancel his registration until he covers the corresponding debt.
However, in those cases in which the taxpayer is already liquidated, but his registration has not yet been canceled due to non-compliance with an obligation, said taxpayer will not have to comply with periodic (formal) obligations, so that even in therefore, they cannot be fiscally canceled, they must not comply with the filing of returns or other formal obligation.
3.13. Online Digital Tax Receipt (CFDI).
It is proposed to specify the concept of operations with the public, such as those in which there is no RFC of the recipient of the voucher, and the possibility of granting facilities to them
The data on the quantity, unit of measure and class of the goods or merchandise or description of the service or of the use or enjoyment covered by the CFDI’s, will be established in the digital tax receipts online using the catalogs included in the applicable technological specifications for their expedition.
On the other hand, with respect to CFDI corresponding to advances or partial or deferred payments, it is proposed to clarify and specify in the standard that a receipt must be issued for each payment, regardless of whether it is prior (advance) or later than the moment in the operation is carried out, as well as indicating that the way to cover the payment of the operation is a deferred payment.
Likewise, it is established that those who make partial or deferred payments that settle CFDI balances, export merchandise that are not sold or whose sale is free, must also request the corresponding CFDI.
3.14. Conservation of accounting and supporting documentation.
It is proposed that the obligation to keep the accounting and documentation related to compliance with tax provisions is not for 5 years but indefinite, or for the entire duration of the company or respective contract, when it comes to information and documentation necessary to implement the agreements reached as a result of the dispute resolution procedures established in the treaties to avoid double taxation to which Mexico is a party.
The same shall apply in the case of the articles of incorporation of the legal entities, of the joint venture contracts, of the minutes in which the increase or decrease of the share capital, the merger or companies spin-offs, of the certificates issued or received by legal entities when distributing dividends or profits.
It is worth mentioning that the reform project also proposes to specify the documentation that must be kept in each of the following cases:
- Capital increases: account statements issued by financial institutions, or the corresponding appraisals for an increase in kind, with which the materiality of the capital increase can be verified.
- Increases due to capitalization of reserves or dividends: meeting minutes in which said acts are recorded, as well as the corresponding accounting records.
- Increases due to capitalization of liabilities: meeting minutes stating said acts, as well as the document certifying the accounting existence of the liability and its corresponding value.
- Minutes of reduction of capital stock through reimbursement to partners: The account statements issued by financial institutions stating said situation.
- Minutes of decrease of share capital by means of release granted to the partners: subscription, release, and cancellation of the shares, as appropriate.
- Merger or division of companies: statements of financial position, statements of changes in stockholders’ equity and working papers for the determination of the net tax profit account and the capital contribution account, corresponding to the immediately preceding and subsequent fiscal year to the one in which the merger or split was carried out.
- Certificates issued or received for distribution of dividends or profits: account statements issued by financial institutions stating said situation.
On the other hand, it is established that in the event that the tax authority is exercising verification powers regarding fiscal years in which tax losses from previous years are reduced, dividends or profits are distributed or paid, its capital is reduced or reimbursed or send capital remittances in terms of the LISR or amounts are received for loans, granted or received, regardless of the type of contract used, taxpayers must provide the documentation that proves the origin and origin of the tax loss, the supporting documentation of the loan or the documentation and information that supports the original balance and the movements of the net tax profit account, the contribution capital account or any other tax or accounting account involved in the aforementioned acts, regardless of the year in which the loss, the loan, or originated the movements of the account of Net tax profit, from the contribution capital account or from any other tax or accounting account involved.
The foregoing will also apply in the case of contracting debts with creditors, or for the recovery of credits from debtors.
Taxpayers will not be obliged to provide the previously requested documentation when, prior to the exercise of the powers of verification, the tax authority has exercised said powers in the year in which the tax losses for which verification is requested were generated, unless they are unreviewed facts.
3.15. Financial account reports – Standard for the Automatic Exchange of Information on Financial Accounts in Tax Matters (FATCA and CRS).
It is proposed to modify the date of presentation of the information of the high value accounts and new accounts that are reportable, as well as the information of the low value accounts and pre-existing accounts of entities that are reportable accounts through an annual declaration before the tax authorities to no later than August 31 and, for the first time, no later than June 30, 2017 (Annexes 25 and 25 Bis of the Miscellaneous Tax Resolution).
3.16. Assistance for Taxpayers.
It is proposed to specify that the tax authorities can provide assistance not only to those taxpayers with respect to certain tax obligations, but to the public in general, as well as to inform about the possible consequences in case of not complying with the tax provisions and specify that in the cases In which the explanation is on tax provisions of a complex nature, the tax authorities should provide printed or digital support material, instead of the preparation and distribution of brochures.
Likewise, it is proposed that the authorities provide periodically and in general to taxpayers, merely for guidance and in order to measure tax risks, information on benchmarks with respect to profit, deductible concepts or effective tax rates that They present other entities or legal figures that obtain income, consideration or profit margins for the performance of their activities based on the economic sector or industry to which they belong.
The reform project also proposes to promote through invitations voluntary compliance in the filing of returns and that the taxpayer can correct their tax situation, with the sending of payment proposals to taxpayers through pre-filled returns, as well as communicated to promote voluntary compliance and report on inconsistencies detected by the authority, without this being considered to initiate verification powers.
3.17. Precautionary insurance of Assets.
It is proposed to include third parties and / or joint and several liable persons related to the taxpayer who is a direct subject as subjects of the constraint measure for the insurance of assets and / or negotiations.
In this regard, it is proposed to establish that the amount of the precautionary insurance is for one third of the amount of the operations, acts or activities that the third party and carried out with the taxpayer or jointly responsible, or the amount that the tax authority intends to verify with requests for information or documentation requirements addressed to them.
Likewise, it is proposed to establish the order of priority of the assets to be insured, pointing first to bank deposits, followed by accounts receivable, shares, bonds, expired coupons, etc. in order; money and precious metals; property; movable property; negotiation of the taxpayer; as well as copyright and artistic works, scientific collections and jewelry, among others.
It is also proposed to carry out the precautionary assurance of the containers that contain alcoholic beverages that do not have labels or seals attached, when these are false or altered, as well as the labels or seals that the taxpayer has in his possession with respect to the which their legal possession is not credited.
Likewise, it is proposed to establish that the assets or the negotiation of the taxpayers, jointly responsible or third parties related to them, are insured from the moment they are designated as such in the diligence by which the precautionary insurance is practiced, including when they are subsequently ordered, noted or registered with other institutions, agencies, registries or third parties, in order to avoid fraudulent actions by taxpayers to avoid the precautionary insurance of their assets.
3.18. Verification faculties/Tax inspection powers.
3.18.1. Home visits(tax home inspection).
The reform project proposes to specify that in cases of home visits related to foreign merchandise, rules and provisions of the Customs Law will be applied.
3.18.2. Signature of home visits.
It is proposed that, as with what is established in the matter of home visits to verify the issuance of tax receipts, it is established that the validity and probative value of the home visit records will not be affected when they refuse to sign the record or accept a copy of the same person who attended the diligence or the witnesses.
3.18.3. Use of technology.
It is proposed to incorporate the use by the tax authority, of tools such as photographic and video cameras, tape recorders, cell phones or others, that allow the collection of information that serves as evidence of the facts detected by the tax authority in the exercise of their actions, in addition to the fact that the result of the use of these tools will be protected by fiscal secrecy.
3.18.4. Places for home visits.
It is established that the act of inspection can be carried out covering those places where the taxpayer carries out part of his activities, that is, in addition to the fiscal domicile, establishments, branches, premises, offices, warehouses, warehouses, fixed and semi-fixed positions on public roads, of taxpayers or tax advisers, provided they are open to the general public.
3.18.5. Inspection of tax opinion by certified public accountant.
It is proposed to specify that in the review of the opinion by public accountant may be required not only to display the working papers that he prepared for the audit but also to appear before the tax authority in order to carry out the relief of questions in relation to the aforementioned working papers.
It is established that the review of such opinion will be carried out exclusively with the public accountant who has formulated it, without the legal representation being appropriate.
Likewise, it is proposed not to limit the action of the authority to the review of the opinion and, therefore, that the sequential review of the opinion does not proceed when it comes to the review of uses derived from the authorization or concession granted to individuals. for the handling, storage and custody of merchandise, that is, when fiscal or supervised enclosures are reviewed, or when dealing only with fines in foreign trade matters.
3.18.6. Deadline for submitting reports or documents.
The deadline for answering the first request for information issued by the authority is extended from 6 to 10 days.
3.18.7. Electronic reviews on foreign trade.
It is proposed to specify that the term to conclude the electronic inspection will be 6 months, regardless of the matter and will only be 2 years when an international certification is carried out within the procedure.
3.18.8. Tax secret.
Derived from the inclusion of the use of technological tools in the exercise of the verification powers of the tax authorities, it is proposed to establish within the obligation of keeping absolute confidentiality, images and any material collected by the tax authority through the use of the aforementioned technological tools.
Likewise, it is proposed to incorporate as an exception to the reserve or fiscal secrecy to the obligation established in the National Code of Criminal Procedures regarding the obligation to provide the information required by the Public Ministry and the Police regarding investigations of specific criminal acts, since this contributes to the clarification of the facts, to ensure that the culprit does not go unpunished and that the damage is repaired.
3.18.9. Origin of new revisions.
In the event that there is already a final or firm resolution of the tax authority that had determined the taxpayer’s fiscal situation with respect to specific items or concepts corresponding to one or more contributions or benefits of a certain period, said items or concepts may be reviewed again only when facts other than those already reviewed are verified and the powers of verification of the tax authorities have not expired, being able, where appropriate, to determine the contributions or omitted uses that derive from said new facts.
3.19. Presumption of undue transmission of the right to reduce tax losses.
Among other assumptions, the presumption of the undue reduction of tax losses will apply when the taxpayer obtains tax losses and deductions are noticed whose consideration is covered by the subscription of credit instruments or any other legal figure, and the acquired obligation is extinguished by a form payment other than those provided for the purposes of deductions in the LISR; in other words, the reform consists of not limiting the form of payment to credit instruments.
On the other hand, it is proposed to establish that the tax authority may consider, in the exercise of its powers, the undue transmission of tax losses as a simulated act and consequently establish a criminal or criminal liability.
Currently, the applicable rule establishes that taxpayers can disprove the presumption in question, within a period of 20 days, after being notified of said presumption, for which the reform project establishes that taxpayers may request through the tax mailbox , for the only occasion, an extension of 10 days to the initial term to provide the information and documentation that is appropriate for you.
Likewise, it is proposed to point out that when the taxpayer makes the statements to disprove the presumption in question, he must indicate the purpose of the legal acts that gave rise to the transmission of the right to reduce tax losses; in order for the authority to be able to determine that this transfer had as its main objective the development of its business activity and not that of obtaining a tax benefit.
3.20. Final settlement agreement to the Office of the Taxpayer’s Advocate (PRODECON-Mexican Tax Ombudsman).
The Executive proposes in its tax reform project an adjustment to the procedure related to the adoption of final settlement agreements, limiting deadlines, and including cases in which the request for the agreement would be inadmissible.
In this regard, it is proposed that even though the adoption of the final settlement agreement may be requested at any time, it is indicated that the time limit to do so will be 15 days after the one in which the final act has been drawn up or the official notice of observations or provisional resolution, as the case may be.
Likewise, it is proposed that the agreements that correspond to the exercise of powers of verification in the matter of refunds of balances in favor or payment of the undue are inadmissible, since there is no determination of omitted contributions, or practices that are recognized as evasive.
Likewise, it is proposed that the agreements be inadmissible when the resolution determining the tax credit is already in the process of being notified, in the case of compulsory third parties, the execution of judgments or resolutions, when the applicants for the adoption of a conclusive agreement They are companies that invoice presumed or definitive simulated operations (EFOS) and powers of verification are initiated regarding the issuance of tax receipts or when there is a presumption of the commission of tax crimes.
Finally, it is proposed that no dispute resolution procedure provided for in any international treaty will proceed to avoid double taxation signed by Mexico, against the final settlement agreement reached between individuals and authorities.
3.21. Fines related to transfer and adjustment prices.
In relation to the imposition of fines, it is proposed to consider non-compliance with transfer pricing obligations as an aggravating factor, such as omitting obtaining the supporting documentation of having agreed market prices with related parties residing abroad, as well as not present the master, local and country-by-country informative returns, among others.
3.22. Infringement for concessionaires of public telecommunications networks.
In congruence with the sanctions established for non-compliance with some of the obligations of foreign residents without an establishment in Mexico who provide digital services in the country, it is proposed to establish a sanction for concessionaires of a public telecommunications network in Mexico that do not comply, within a maximum period of 5 days, with the order to block access to the digital service of the provider of said services. Likewise, an equal sanction will be applied when the concessionaires do not carry out the unblocking within the corresponding period.
3.23. Presumption contraband.
It is proposed that the practice of importers not to return abroad, transfer or change the regime of temporarily imported goods be considered as contraband.
3.24. Administrative appeal for revocation (Administrative means of tax defense).
It is proposed to specify that when processing revocation appeals, taxpayers who present any type of information and documentation in a language other than Spanish before the tax authority must attach the proper translation.
Likewise, it is established that the term to comply with what is resolved in a resolution to a revocation appeal will be 30 days and not 15, unless the taxpayer challenges said resolution.
3.25. Guarantee of tax interest.
It is proposed to establish that the seizure in the administrative route, to guarantee the fiscal interest, cannot be executed on intangible assets, such as trademarks, since they do not represent an ideal means to recover tax credits. Rustic properties are also excluded since their characteristics are generally irregular and are difficult to sell for the recovery of a tax debt.
3.26. Seizure of credits.
The seizure of credits will be notified directly by the tax authority to the debtors of the seized taxpayer, and they will be required in order to inform the characteristics of the contractual relationship with the taxpayer, aware that if they do not appear within 3 days, a fine will be imposed; Likewise, they will be required not to make the payment of the respective amounts to the taxpayer (creditor / seized person) but to the tax authority, warned of double payment in case of disobedience.
3.27. Publication of the auction call
It is proposed to make clarifications related to the publication of the call for the auction procedure on the website of the tax authorities, since the current rule establishes that public auctions will be carried out through electronic means.
3.28. Auction of goods
It is proposed to specify that the auction will be considered concluded until the winning bidder makes the full payment of the bid offered, as well as to incorporate the payment of the balance of the amount offered by bank deposit, to facilitate payment to the bidder.
Special Tax on Production and Service Law (LIEPS)
4.1. Supplementary quota scheme applicable to those provided for automotive fuels
The Executive’s reform project proposes to establish counter-cyclical instruments to strengthen public finances, by adjusting to IEPS quotas in accordance with the economic variables that have been defined and by applying complementary quotas, which represent the difference between the base prices updated by the inflation of gasoline and diesel and the reference prices of said fuels.
In this regard, it is proposed that the SHCP publish each week the complementary IEPS quotas applicable to the sale of gasoline, diesel and non-fossil fuels.
- Other Considerations
5.1. Mandatory Disclosure Rule-Reportable Schemes (REMINDER)
It is important to note that the deadlines to comply with the obligations of reportable schemes will begin to be computed as of January 1, 2021.
In this regard, the obligation to provide information on issues that the tax authorities have identified as risk areas during the exercise of their powers, establishing the disclosure of reportable schemes in Mexico, is in force as of fiscal 2020.
The obligation to disclose reportable schemes will be applicable to those schemes that arise from 2020, or earlier, when their tax effects are reflected from that year. In the latter cases, what must be disclosed will only be the part of the reportable scheme whose tax effects are reflected as of 2020, and the obligation will be the sole responsibility of the taxpayer.
Now, in general terms, reportable schemes are those that can generate (directly or indirectly), obtaining a tax benefit in Mexico and have any of the characteristics identified by the authorities as risk areas.
Among the risk issues subject to reporting are:
- those related to REFIPRES,
- transmission of tax losses,
- EP generation,
- use of hybrid mechanisms,
- labor outsourcing, among others.
It is established that the main obligated parties will be the tax advisers who must present an informative declaration, in which they will reveal the general data of the tax advisor, the beneficiary of the scheme, a detailed description of the scheme, mention of the tax benefits and financial information.
The SHCP must issue a secretarial agreement through which the parameters on minimum amounts are determined, for which the mandatory disclosure standards will not be applied.
On the other hand, it is established that the mere lack of presentation of a reportable scheme would interrupt the expiration periods of the powers of the tax authorities to review the obligations of taxpayers, or to determine contributions at their expense.
Likewise, it should be borne in mind that a tax advisor shall be understood to be any natural or legal person who, in the ordinary course of their activity, is responsible for or is involved in the design, commercialization, organization, implementation or administration of a reportable scheme.
If several tax advisers are obliged to disclose the same reportable scheme, they will be deemed to have complied with the obligation, if one of them discloses said scheme in the name and on behalf of all of them. When a tax advisor, who is a natural person, provides tax advisory services through a legal entity, the disclosure of schemes will not be required, provided that said legal person discloses the reportable scheme for being considered a tax advisor.
In the event that a scheme generates tax benefits in Mexico but is not reportable or there is a legal impediment to its disclosure by the tax advisor, the tax advisor must issue a certificate to the taxpayer in which he justifies and gives reasons why he considers it not reportable or there is an impediment to disclose, which must be delivered within 5 days following the day on which the reportable scheme is made available to the taxpayer or the first fact or legal act that forms part of the scheme is carried out, whatever happens First.
Also, it is important to mention that taxpayers are obliged to disclose reportable schemes when the tax advisor does not provide the identification number of the reportable scheme; when the reportable scheme has been designed, organized, implemented and administered by the taxpayer; when the taxpayer obtains tax benefits in Mexico from a reportable scheme that has been designed, commercialized, organized, implemented or administered by a person who is not considered a tax advisor; when the tax advisor is a resident abroad without permanent establishment in national territory, as well as when there is a legal impediment for the tax advisor to reveal the reportable scheme and when there is an agreement between the tax advisor and the taxpayer to be the latter the one obligated to disclose the reportable scheme.
The SAT will keep a registry of tax advisers, classifying the types of generalized and personalized tax schemes, and will identify them with a number to be included in taxpayers’ tax returns.
Likewise, the tax authorities may make home visits to tax advisers in order to verify that they have complied with their obligations regarding reportable schemes.
Now, to date, it is pending that the tax authority dictates the provisions or administrative regulations related to the specific or exact requirements that must be met to file the information and corresponding informative declaration, or the way in which it must be carried out; however, it should be considered that taxpayers must comply with the following:
- Report the general data of the taxpayer, their tax advisor and the parties involved, indicating which of them have been created or incorporated in the last two calendar years, or whose shares or participations have been acquired or disposed of in the same period.
- Detailed description of the reportable scheme and the applicable national or foreign legal provisions, including each of the stages that make up the plan or project.
- Report a detailed description of the tax benefit obtained or expected
- The fiscal years in which the scheme is expected to be implemented or has been implemented
- Provide any additional information required by the authority.
Additionally, it must be reported when it is considered that the obligation to report does not apply, explaining the reasons why the operation is not reportable.
The disclosure of a reportable scheme does not imply the acceptance or rejection of its tax effects by the tax authorities. The information presented and that is strictly essential for the operation of the scheme, in no case may be used as a precedent for the investigation for the possible commission of tax crimes, except in the case of smuggling crimes and crimes related to the issuance, alienation , purchase or acquisition of tax invoices that cover non-existent or simulated operations, as well as illicit enrichment.
In the case of tax advisers, non-compliance with their obligations in terms of reportable schemes can reach up to $ 20 million pesos.
On the other hand, the following behaviors are offenses committed by taxpayers related to the disclosure of reportable schemes; However, any fine imposed is susceptible to being combated through defense or prosecution.
The infractions and fines are as follows:
- Do not disclose a reportable scheme, disclose it incompletely or with errors. The information is considered to be incomplete or with errors, when the lack of that information or the incorrect data substantially affect the analysis of the reportable scheme. Failure to comply with the above implies a sanction consisting of not applying the tax benefit provided in the reportable scheme and an economic sanction equivalent to an amount between 50% and 75% of the amount of the tax benefit of the reportable scheme that was obtained or would be applied. or I would expect to obtain in all the fiscal years that the application of the scheme would imply.
- Do not include the identification number of the reportable scheme obtained directly from the tax authority or through a tax advisor in the taxpayer’s tax return. Failure to comply with the above implies a fine of $ 50 thousand pesos to $ 100 thousand pesos.
- Failure to respond to the request for additional information made by the tax authority or falsely declare that it does not have the required information on the reportable scheme. Failure to comply with the foregoing implies a fine of $ 100 thousand pesos to $ 350 thousand pesos.
- Failure to report any change that occurs after disclosure of the reportable scheme or report such change extemporaneously. Failure to comply with the above implies a fine of $ 200 thousand pesos to $ 2 million pesos.