Este 29 de noviembre de 2023, se publicó en la sección matutina del Diario Oficial de la Federación el DECRETO por el que se reforman los artículos 251 de la Ley del Seguro Social y 146 de la Ley Federal del Trabajo, y se adiciona un artículo 59 Bis a la Ley del Instituto del Fondo Nacional de la Vivienda para los Trabajadores (DOF – Diario Oficial de la Federación) el cual entrará en vigor el 1 de enero de 2024. 

Mediante dicho Decreto se establece que las personas trabajadoras que se hayan inscrito voluntariamente al régimen obligatorio de la Ley del Seguro Social, podrán realizar aportaciones al Fondo Nacional de la Vivienda, que les permitan obtener un crédito barato y suficiente, realizando aportaciones para su abono a la subcuenta de vivienda, de la cuenta individual prevista en los sistemas de ahorro para el retiro, en términos de Ley del INFONAVIT, y en lo que corresponda en la Ley del Seguro Social y en la Ley de los Sistemas de Ahorro para el Retiro; considerando dentro de las cuotas obrero patronales, el cálculo de las aportaciones de vivienda sobre el ingreso reportado.

Con la finalidad de otorgar beneficios a las compañías que buscan optimizar sus operaciones mediante la estrategia del nearshoring que actualmente se ubican en México, y pertenecen a los sectores identificados como clave en la industria exportadora, este miércoles 11 de octubre de 2023, la Secretaría de Hacienda y Crédito Público (SHCP) publicó en la sección matutina del Diario Oficial de la Federación (DOF) del 11 de octubre de 2023 el Decreto por el que se otorgan estímulos fiscales a industria citada consistentes en la deducción inmediata de la inversión en bienes nuevos de activo fijo y la deducción adicional de gastos de capacitación, permitiendo que las empresas extranjeras pueden percibir a México como un destino favorable para establecer sus operaciones y aprovechar los beneficios fiscales otorgados.

This Decree becomes effective the day after its publication, that is, on October 12, 2023, and will be in effect until fiscal year 2024, being applicable with respect to those investments that taxpayers maintain in use for a minimum period of two years immediately following the fiscal year in which the immediate deduction is made.

Among its most relevant aspects are the following:

a) Beneficiaries

• The beneficiaries are legal entities under the general regime of the Income Tax Law (LISR) or the simplified trust regime (RESICO), and individuals under the business and professional activities regime, when these taxpayers are engaged in the production, processing or manufacture and export of the following goods, and estimate that during fiscal years 2023 and 2024 the amount of their export income will represent at least 50% of their total invoicing for each fiscal year:
  1. Products intended for human and animal feed.
  2. Fertilizers and agrochemicals. o Raw materials for the pharmaceutical industry.
  3. Electronic components.
  4. Machinery for watches, measuring, control and navigation instruments, and electronic medical equipment.
  5. Batteries, accumulators, batteries, power cables, plugs, contacts, fuses.
  6. Gasoline, hybrid and alternative fuel engines for cars, vans and trucks.
  7. Electrical and electronic equipment, mechanical systems for automobiles, vans, trucks, trains, ships and aircraft.
  8. Internal combustion engines, turbines and transmissions.
  9. Non-electronic equipment and devices for medical use.
  10. Production of cinematographic or audiovisual works.

b) Immediate deduction of investment in new fixed assets

• The incentive consists of an immediate deduction for new fixed assets (those that are used for the first time in Mexico) acquired from October 12, 2023 through December 31, 2024.
• The amount of the immediate deduction in the year in which the investment is made will be determined by applying to the original amount of such investment the percentages established in such Decree according to the type of fixed assets and the activity for which they are used; the minimum percentage established is between 86% and 89% for property, plant and equipment and between 56% and 88% for machinery and equipment. In the event that the taxpayers are engaged in two or more of the aforementioned activities, the percentage corresponding to the activity in which the taxpayer obtained most of its income in the year in which the immediate deduction of the investment is applied must be applied.
• Specific percentages of the original amount of the investment deducted in relation to the elapsed years of the investment will be applied to investments in fixed assets, products intended for human and animal feed, as well as machinery and equipment.
• It will only be applicable with respect to investments maintained in use for a minimum period of two years immediately following the year in which the immediate deduction is made.
• When the assets are disposed of, lost or rendered useless, a partial deduction may be made.
• The incentive does not apply to office furniture and equipment, automobiles powered by internal combustion engines or automobile armoring equipment.
• Such immediate deduction may be recognized in the provisional income tax payments in the year in which the investment is made, and the immediate deduction made in the same year may be deducted from the taxable income. Likewise, in order to determine the profit coefficient to be used in the provisional payments of 2024 or 2025, the effect of the immediate deduction applied must be included.
• Those who choose to apply this incentive must keep a special record of the investments for which the immediate deduction was applied, such record must include data of the supporting documentation, the fiscal year in which it was applied and the date on which the asset is derecognized.

c) Additional deduction of training expenses

• The incentive consists of an additional deduction of 25% of the increase of the training expense received by each of the employees, applicable in the annual tax return for fiscal years 2023, 2024 and 2025. In case of not applying the deduction in the fiscal year in which the expense is incurred, the right to do so in subsequent fiscal years will be lost.
• Training will be in technical or scientific knowledge related to the taxpayer's activity and provided it is given to active workers registered with the Mexican Social Security Institute.
• Taxpayers applying this incentive must make a specific record of the training provided to the workers and indicate the supporting documentation, as well as describe what the training consisted of and the relationship it has with the original activities for which the taxpayer was benefited.

d) Requirements to be met in order to obtain benefits

• Be registered in the Federal Taxpayers Registry (RFC) and have the tax mailbox enabled.
• Positive opinion of compliance with obligations.
• To file a notice in accordance with the general rules established by the Tax Administration System stating that they opt for the application of the tax incentives during the 30 calendar days immediately following the month in which they are applied for the first time.

e) Excluded or non-beneficiary taxpayers

• Those listed as companies that deduct non-existent transactions or do not rebut the presumption of issuance of tax receipts for non-existent transactions, as well as the presumption of undue transfer of tax losses.
• Have firm tax credits.
• Failure to comply with the established special investment and training records.
• Are in liquidation.
• Are in the procedure of temporary restriction of the use of digital stamps for the issuance of digital tax receipts through the Internet.
• Have cancelled the certificates issued by the Tax Administration Service (SAT).

PUBLIC FINANCE (hacienda.gob.mx)

On September 8, 2023, the Federal Executive, through the Ministry of Finance and Public Credit (SHCP), delivered to the Congress of the Union for the corresponding legislative process the Economic Package for 2024, which is the last budget of the current administration.

The Package is presented without proposing or proposing modifications to the fiscal legal framework; therefore, no taxes are created nor are current rates increased, i.e., there are no changes to the Income Tax (ISR), Value Added Tax (VAT), Special Tax on Production and Services (IEPS) laws, nor to the Federal Fiscal Code (CFF), The bill includes only the General Economic Policy Criteria (CGPE) and the Initiatives to the Federal Income Law (LIF), the Federal Law on Duties (LFD) and the Federal Expenditure Budget (PEF).

As a preamble to the presentation of the Package, the Executive has pointed out in accordance with the CGPE that the results obtained during the same and what has allowed that it has not been necessary to increase or create new taxes derive from a responsible tax policy, since the current Administration in its beginnings implemented some of the collection measures to increase tax revenues that were being analyzed and worked on in previous Administrations, making changes in the tax regulatory framework towards a progressive tax system to combat social inequality, also indicating that among the actions carried out, or well implemented, are the elimination of universal compensation, the classification of tax fraud as a serious crime, the adaptation of the tax framework to the digital economy, the implementation of measures of the BEPS (Base Erotion, Profit Shifting) project of the OECD (reportable schemes, neutralization of hybrid schemes and the limitation of base erosion through interest), the establishment of anti-abuse rules, and the elimination of write-offs.

In this regard, the Executive Branch points out that the characteristics of the 2024 Economic Package include the consolidation of a welfare state, forecasting a 2.5% to 3.5% real annual economic growth based on consumption and employment, as well as the continuity of the fiscal policy that will allow the public debt balance to be sustainable, guaranteeing the strength of tax collection to avoid tax evasion and avoidance through the LIF and favoring social welfare through austerity, efficiency and rationality in public finance spending through the PEF.

In general terms, it should be noted that it is expected that, in the LIF, on the one hand, there will be no changes in the tax incentives established and, on the other hand, that an increase in the withholding rate on interest paid by the financial system will be established.

According to the deadlines of the legislative process, the draft of the LIF initiative must be approved by October 31 at the latest, while the PEF must be approved by the Chamber of Deputies by November 15 at the latest.

In addition, although there are no modifications to the current legal fiscal framework, it is important to take into account the following for 2024:

1) Outsourcing of specialized services.

a) Renewal of the Registry of Providers of Specialized Services or Specialized Works (REPSE).

As a result of the 2021 labor reform regarding the subcontracting of specialized services, the Ministry of Labor and Social Welfare (STPS) created the public registry known as REPSE, which, on the one hand, is mandatory for all employers that provide specialized services other than the corporate purpose of their clients, among other characteristics, On the other hand, it is valid for 3 years, so that any individual or legal entity that is registered in the registry must keep in mind that during the fiscal year 2024 and, in particular, during the second half of the year, it must process the first renewal of its registration, if it was made for the first time in 2021 and it was not cancelled. REPSE STPS.

It is important to mention that the validity of the registration is mandatory and necessary to operate legally when rendering and/or receiving specialized services, in addition to the fact that, among others, the REPSE is an indispensable requirement in tax matters and, specifically, for the deduction of payments made and the crediting of VAT for this type of services.

2) International Taxation

Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting . (Known as "MLI": Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting or Multilateral Instrument MLI). beps-mli-position-mexico.pdf (oecd.org)

As of January 1, 2024, the MLI will be effective in Mexico, provided that each country with which Mexico has a treaty has also concluded its domestic processes, initiates its effectiveness and considers Mexico as a treaty covered by the MLI.

The provisions of the MLI will apply to each tax treaty entered into by Mexico (except for the United States of America and Germany) to form part of it, functioning as a protocol, even if they are not integrated in the same document, to jointly interpret and execute such treaty and the MLI as a single agreement. In other words, the MLI will include regulations for the precision of treaty concepts for their better application, as well as for the interpretation of particular clauses and their technical aspects, with the objective of avoiding the erosion of the tax base, the diversion of benefits by multinational companies, and the abuse of treaties or treaty shopping through structures whose sole objective is to benefit from the treaties without there being a justification of the need for the operation, that have no business reason and, One of the most important changes of the MLI is that it includes the concept of the principal purpose test (commonly abbreviated as PPT), so that most of the tax treaties entered into by Mexico will contain provisions that will deny the obtaining of treaty benefits if it is considered that the obtaining of a tax benefit was the main or one of the main purposes of the corresponding transaction.

In this sense, although there may be differences with each country covered, the entry into force of the MLI will have effects on transactions with foreign residents and on the planning for individuals who have investments abroad, so it is important to review and comply with its provisions in order to have access to the benefits of the treaties and in turn not have contingencies to deduct the respective payments.

It is worth mentioning that, among others, the MLI includes regulations on double residence, beneficial ownership, related third parties, specific rules for dividends and capital gains, fragmented or split contracts for permanent establishment purposes, control of hybrid schemes, as well as the review of income that is not taxed at source (business profits), to verify when treaty benefits will or will not be applicable.

a) Pacific Alliance

As from January 1, 2024, the Convention to avoid double taxation of the Pacific Alliance, formed by Colombia, Chile, Mexico and Peru, will also be applicable, which modifies the bilateral agreements to avoid double taxation subscribed between said countries, on the one hand, granting resident status to pension funds for the purposes of applying said agreements and obtaining the tax benefits foreseen in said bilateral agreements and, on the other hand, equalizing the tax treatment for income from pension funds for the purposes of applying said agreements and obtaining the tax benefits foreseen in said bilateral agreements, The agreement amends the bilateral agreements to avoid double taxation signed between these countries, on the one hand, granting the status of residents to pension funds for the purposes of the application of these agreements and obtaining the tax benefits provided in these bilateral agreements, and on the other hand, equating the tax treatment for interest income and capital gains from the sale of shares made through a stock exchange that is part of the Latin American Integrated Market (MILA) and received by the pension funds. CONVENTION TO AVOID DOUBLE TAXATION OF THE PACIFIC ALLIANCE ENTERED INTO FORCE AND WILL BEGIN TO APPLY FROM NEXT JANUARY 1 (http://www.gob.mx).