DRAFT OF THE FIRST RESOLUTION OF MODIFICATIONS TO THE MISCELLANEOUS TAX RESOLUTION FOR 2021

12/2/2021

On January 11, 2021, the Draft of the First Resolution of Modifications to the Miscellaneous Tax Resolution for 2021 was released through the SAT website, which is still pending publication in the DOF.

Through this Resolution, changes are made that were not included in the Miscellaneous Tax Resolution for 2021 relating mainly to the following:

MORAL PERSONS WITH NON-PROFIT PURPOSES

Several rules of this area are reformed to make various clarifications, correct reference or drafting errors and make adjustments in accordance with the tax reform of the relative articles of the Income Tax Law, which entered into force on January 1, 2021.

Rule 3.10.2. Authorization to civil organizations and trusts to receive deductible donations

1.  

Section II of this Rule is amended to establish that when Civil and fiduciary organizations, with respect to the trust in question, during the validity of the authorization to receive deductible donations, present any promotion related to the authorization or authorizations granted by the SAT, or submit a request for authorization of additional activities to previously authorized, the SAT may Validate that all documentation complies with the requirements set forth in the current tax provisions, including the statutes that are in the file and, if they do not comply with it, initiate the procedure provided for in article 82-Quáter, section B of the Law of the ISR, relative to the
revocation of the authorization to receive deductible donations from the ISR.

Rule 3.10.4. Validity of the authorization to receive deductible donations

Section IV of this rule is added, which establishes an additional requirement, so that at the end of the exercise it is not necessary for the SAT to issue a new authorization document, and which refers to the following:

IV. They are not with canceled status before the RFC.

Rule 3.10.5. Assumptions and requirements to receive deductible donations

The following details are made:

• Subparagraph b) of section V of this rule is amended to specify that the document that serves to accredit the activities for which civil organizations and trusts request authorization to receive deductible donations must expressly indicate the legal bases with which it acts.
• The reference to the organizations that prove their activities with their current registration in the Federal Register of Civil Society Organizations of Indesol is added.
• The last paragraph of section VI is amended to adjust its wording to the provisions of section V of article 82 of the Income Tax Law amended as of January 1, 2021 to read as follows:

In the event that the authorization to receive deductible donations is revoked or when its validity has ended and has not been obtained again or renewed, within the twelve months following the date on which such events occur, the entire estate must be allocated within of the following six months from the end of the period to obtain the authorization again; Civil organizations and trusts authorized to receive deductible donations registered in the Federal Register of Civil Society Organizations, with active status, that receive the patrimony must issue the corresponding tax receipt for donation, which will not be deductible for purposes of the ISR.

Rule 3.10.10. Information regarding the transparency of assets and the use and destination of donations received and activities aimed at influencing legislation      

It is established that The informative statement regarding the transparency of the assets and the use and destination of the donations received must be made available to the general public in the month of May 2021 (before: July 2021).

It also indicates that in the case of authorized donees who received donations in order to attend to the contingencies caused by the earthquakes that occurred in Mexico in September 2017 and have indicated through the corresponding final report presented in 2020 that they have donations pending allocation, the SAT will proceed in accordance with the provisions of article 82-Quáter, section A, section III and section B of the Income Tax Law, regarding the procedure for revocation of the authorization

Rule 3.10.14. Information that civil organizations and trusts authorized to receive deductible donations keep available to the general public

It is modified to specify that it will be understood that civil organizations and trusts authorized to receive deductible donations, keep the corresponding information available to the general public for consultation, when the information related to the authorization and compliance with tax obligations, as well as that related to transparency and the use and destination of the donations received and their assets, is found In a visible place and easily accessible to the general public, within its facilities.

Rule 3.10.17. Compliance with the irrevocable asset transfer clause

This rule is reformed to establish a new term for civil organizations and trusts authorized to receive deductible donations from income tax, comply with the provisions of article 82, sections IV and V of the income tax law, as may modify their statutes or contracts in accordance with the provisions of the aforementioned legal provision no later than December 31, 2022, unless before that date they make any modification to their statutes or contracts, in which case the adequacy of the transmission clauses of the patrimony must be carried out together with the aforementioned modification.

Rule 3.10.19. Deadline for submitting the information in the case of revocation

This rule is reformed to adapt it to the reform of section V of article 82, establishing that Civil organizations and trusts whose authorization to receive deductible donations from income tax has been revoked must submit, within 30 calendar days following the date on which the six months that they have for the transfer of assets have elapsed, the report provided for in the procedure sheet 19 / ISR “Informative declaration to guarantee the transparency of the patrimony, as well as the use and destination of the donations received and activities destined to influence the legislation”, contained in Annex 1-A.
              

Rule 3.10.21. Recovery fees

The concept of recovery fees is modified to read as follows:

Recovery fees are considered, the amounts collected by the institutions authorized to receive deductible donations in terms of article 82 of the Income Tax Law for the delivery of goods or the provision of services, directly related to the corporate purpose or purposes for which it was authorized, which is included in the authorization certificate, provided that said amounts are less than or equal to the costs incurred by the donee to generate them. The authorized donees may establish differentiated recovery quotas in accordance with the socioeconomic studies they carry out on their beneficiaries.

Rule 3.10.28. Donations to combat and mitigate the pandemic caused by the SARS-CoV2 coronavirus

The reference to donations received prior to the publication of this rule is deleted.

Is added a second paragraph to establish that non-profit legal entities or trusts whose authorization has been revoked, or when the validity of the authorization has ended and the authorization has not been obtained again or renewed, as well as those Those who present a notice of suspension of activities, when they fall into one of the cases indicated in this rule, must submit a report in accordance with the provisions of the procedure sheet 146 / ISR “Informative declaration of donations to mitigate and combat the virus SARS-CoV2 ”, contained in Annex 1-A.

Finally it is pointed out that In the event that the authorized donees who receive donations and in the CFDI, indicate in the description section, or else, in the legend section of the donee complement, the word “COVID-19” and do not present the report indicated in the previous paragraph, they will lose the validity of their authorization.

NORTHERN BORDER REGION AND SOUTHERN BORDER REGION FISCAL STIMULATION DECREE

With the publication of the Miscellaneous Tax Resolution for 2021, the Rules corresponding to Chapter 11.4 related to the Decree of Tax Incentives of the Northern Border Region were eliminated, so with this First Resolution of Modifications they are included again in Chapter 11.9. “Of theDecree on fiscal stimuli for the northern border region, published in the DOF on December 31, 2018 and modified by publication in the same broadcasting body on December 30, 2020 and the Decree on fiscal incentives for the southern border region, published in the DOF on 30 December 2020 ”  

It is worth mentioning that although they are part of a new chapter, these rules are not new but are basically the same as those in force in the Miscellaneous Fiscal Resolution for fiscal year 2020, but added with the references to the new Decree of the Southern Border Region, therefore that only the most relevant changes will be discussed compared to the rules in force in 2020, without considering the references to the new Decree.

Rule 11.9.1. Notice of registration in the Register of beneficiaries of the fiscal stimulus for the northern or southern border region, regarding ISR.

The procedure sheet is updated 1 / DEC-12 “Notice of registration in the Registry of beneficiaries of the fiscal stimulus for the northern or southern border region”.

Rule 11.9.2. Notice to apply the VAT tax incentive in the northern or southern border region.

The following procedure sheets are updated:

• 3 / DEC-12 “Notice to apply the fiscal stimulus on VAT in the northern or southern border region”
• 4 / DEC-12 “Notice to cancel the fiscal stimulus on VAT in the northern or southern border region”

Rule 11.9.4. Real-time verification program for taxpayers in the northern or southern border region

The following details are made:

• It is stated that the real-time verification will be carried out annually (previously semi-annually) from January 2022 to December 2025
• Section III establishes a period of 5 business days from the business day following the one on which the taxpayer has expressed their willingness to collaborate in the verification, so that the authority notifies the official letter in which the taxpayer is requested to attend. or the presentation of the information.

• In section VI it is provided that the tax authority will deliver to the taxpayer a copy of the corresponding minute
• In section VII, the action of the tax authority is specified when it does not detect irregularities, in which case, it will notify the taxpayer of a letter stating that the verification has concluded.
• Section VIII distinguishes the performance of the authority when it considers that the taxpayer has distorted the irregularities and when it does not consider it so.

Rule 11.9.5. Income earned exclusively in the northern border region

The wording of this rule is modified to specify that the requirement that at least 90% of the total amount of income obtained by the taxpayer be obtained exclusively in the northern border region,

includes those obtained in Mexico or abroad, for any reason, in accordance with the provisions of the Article 1 of the Income Tax Law, not including income derived from intangible assets, as well as those corresponding to digital commerce.

The foregoing will also apply to estimate the income they will obtain, in the case of taxpayers who start activities in the northern border region or carry out the opening of branches, agencies or establishments in said area.

Rule 11.9.7. Age of the tax domicile, branch, agency or establishment in the northern border region         

This rule is modified to consider, unless proven otherwise, that taxpayers have their tax domicile, branch, agency or establishment in the northern border region, when the registration with the RFC of said domicile or the presentation of the notice of opening in accordance with articles 22 and 23 of the CFF Regulations, has an antiquity of at least eighteen months immediately prior to the date on which the registration notice is submitted to the “Register of beneficiaries of the stimulus for the northern border region.”

Likewise, the property or cadastre payment slips are eliminated as documents to prove seniority in the tax domicile and the receipts for payment of services are replaced by account statements of the services.

Rule 11.9.9. Documentation to prove income earning exclusively in the northern or southern border region

This rule is modified to specify that Taxpayers will be able to verify that their total income for the immediately preceding fiscal year and, where appropriate, for the fiscal year, obtained in the northern or southern border region, as appropriate, represents at least 90% of the total amount of their income obtained, Through the annual declaration of the immediately preceding fiscal year or the provisional payment, as appropriate, as well as the work paper through which the income obtained in the immediately preceding fiscal year in the northern or southern border region is integrated. Therefore, the demonstration under protest of telling the truth is eliminated.

Likewise, the integration of income amounts must be indicated by branch, agency or establishment and the sum of these must coincide with the amount reported in the trial balance of the period for which the income is integrated.

Rule 11.9.13.  Application of the fiscal stimulus on income tax and VAT in the north or south border region to taxpayers who are located in the case of article 69, penultimate paragraph, section VI of the CFF

The possibility of applying the tax incentive of ISR (previously it only applied to the VAT stimulus) is included when taxpayers are located in the assumption provided in article 69, penultimate paragraph, section VI of the CFF and, consequently, are included in the list published on the SAT Portal, provided that the reason for the publication is only a consequence of the forgiveness of payment of fines.

Rule 11.9.15. Notice of renewal of the Registry of beneficiaries of the fiscal stimulus for the northern or southern border region, in terms of ISR        

The procedure sheet is updated 1 / DEC-12 “Notice of registration in the Register of beneficiaries of the fiscal stimulus for the northern or southern border region”, which is in turn the renewal notice that will be submitted by taxpayers who choose to continue applying the fiscal stimulus in terms of the ISR.

Rule 11.9.16. Notice to unsubscribe from the Register of beneficiaries of the fiscal stimulus for the northern or southern border region, in terms of ISR 

The procedure sheet is updated 2 / DEC-12 “Notice to unsubscribe from the Registry of beneficiaries of the fiscal stimulus for the northern or southern border region”

Rule 11.9.18. Verification of compliance with the requirements to apply the VAT tax incentive in the northern or southern border region      

This rule is added to establish the procedure by which The tax authority may require the taxpayers who presented the notice to apply the VAT incentive, the information and documentation it deems necessary, in order to verify if they comply with the requirements established in the Decrees of the northern and southern border region, in accordance with the following :

I.       The tax authority will notify the taxpayer, through the tax mailbox, an official letter by which it indicates the detected irregularities, indicating the reasons and grounds for which it considers that it does not comply with the requirements provided for in the decrees, giving it a period of ten days working days, counted from the business day following the one on which the notification takes effect, so that you can present the information and documentation that is convenient for you.

II.     The taxpayer may request, through the tax mailbox, on a single occasion, an extension of five business days to the period provided for in the previous section, to present the information and respective documentation, as long as the request for an extension is made within said period . The requested extension will be understood to be granted without the need for a pronouncement by the tax authority and will begin to be computed from the business day following the expiration of the term provided in section I of this rule.

III.   The tax authority may require additional documentation and information within a maximum period of ten business days, counted from the business day following the one on which the taxpayer submitted the information and documentation, which must be provided within a period of five business days following the the one in which the notification of the requirement takes effect.

IV.   If from the analysis of the information and documentation presented by the taxpayer, the tax authority considers it necessary to exercise any of the powers established in the CFF, in order to be able to issue the corresponding resolution, it must inform the taxpayer of this circumstance, by means of an official letter that indicates the place where it will take place, which may be the tax domicile, premises or establishment located in the northern or southern border region, or in the offices of the tax authority and will be notified through the tax mailbox.

When the tax authority conducts any visual inspection or interview with the taxpayer or his legal representative, a minute will be drawn up that will include, at least, the data listed in this section. The tax authority will read the minute, so that the parties ratify its content and sign accordingly, and will deliver a copy to the taxpayer or their legal representative.

V.      The tax authority will assess the information and documentation provided by the taxpayer and, where appropriate, that obtained from the diligences or procedures referred to in section IV of this rule and will notify the taxpayer of a letter, through the tax mailbox, through the which indicates the reasons for which it disproved the detected irregularities, or, why it did not disprove said irregularities, indicating the date on which it ceased to comply with the requirements established in the corresponding Decree.

In the event that the taxpayer does not provide information and documentation, does not comply with the requirement referred to in section III of this rule, provides incomplete information and documentation, or does not attend the procedures referred to in the previous section, the The tax authority will issue the official letter referred to in this section with the information and documentation that it has at its disposal.

The office referred to in this section must be notified within ten business days following the one in which the deadline for submitting the information and documentation, the deadline to resolve the requirement established in section III or the deadline for exercising the powers of verification referred to in section IV of this rule.

In the event that the tax authority detects that the taxpayer failed to comply with any of the requirements established in the Decrees, the taxpayer will lose the right to apply the stimulus in terms of VAT from the date on which the requirements ceased to be met and must Present, no later than the month following the one in which the official letter referred to in section V of this rule is notified, the corresponding supplementary statements, by means of which they correct their tax situation, as well as make the corresponding payment with the update and applicable surcharges. The procedure established in this rule will be carried out with the taxpayer or their legal representative.

Rule 11.9.19. Failure to comply with the requirements to apply the VAT tax incentive

This rule is added stating that When the tax authority notifies the taxpayer of the official letter referred to in rule 11.9.18., section V, by means of which it indicates that it did not comply with any of the requirements established in the aforementioned decrees, the taxpayer may not continue applying the tax incentive on the matter VAT and may not present again the notice referred to in rule 11.9.2.

Rule 11.9.20. Deadlines to resolve on the registration in the Register of beneficiaries of the fiscal stimulus for the northern or southern border region

This rule is added to establish that The SAT will register in the Register of beneficiaries of the fiscal stimulus for the northern or southern border region, the taxpayers who present the notice of registration in the aforementioned Register, as long as they present the notice within the terms established for it and comply with the requirements set forth in the aforementioned Decrees.

Rule 11.9.21. Opinion on compliance with tax obligations for the northern or southern border region

For the purposes of Article Seventh of the Northern Border Region Decree and the same paragraph of the Southern Border Region Decree, it will be considered that the requirement established in the aforementioned provisions is met when the opinion of compliance with tax obligations in a positive sense is obtained in accordance with the provided in rule 2.1.39.

The previous Rule 11.4.15 that established the treatments and tax incentives applicable together with the tax incentive of the income tax of the northern border region is eliminated.

TRANSIENT

First. Validity of the Resolution

This Resolution will enter into force the day following its publication in the DOF and its content will take effect in terms of rule 1.8., Third paragraph of RFM 2021, except for the notices referred to in rules 11.9.1. and 11.9.2., which will be applicable as of January 11, 2021, in the terms of the amendment to Annex 1-A.

Second. Presentation of the notice of the VAT stimulus of the southern border region

For the purposes of the Eleventh Article, section II of the Southern Border Region Decree, taxpayers may submit the notice to apply the tax incentive in terms of VAT in said region, in terms of rule 11.9.2., No later than 11 February 2021.

Third. Option to defer the issuance of the CFDI, for the beneficiaries of the VAT stimulus in the southern border region

The beneficiary taxpayers of the Southern Border Region Decree may defer the issuance of the CFDI by applying the credit derived from the VAT stimulus, for the period from January 1 to January 31, 2021, provided that no later than February 17, 2021, all the CFDIs for which the indicated deferral option has been taken have been issued.

When taxpayers fail to comply with the issuance of CFDIs, they will lose the right to apply this facility, being considered omissions in complying with their obligation to issue CFDI.

Taxpayers receiving CFDIs who have carried out operations during the period from January 1 to 30, 2021 with taxpayers issuing CFDIs that have applied the VAT stimulus and the facility contained in this article, may obtain the CFDI whose issuance has been deferred, no later than February 17, 2021.

Bedroom. CFDI cancellation,for beneficiaries of the VAT stimulus southern border region

Taxpayers who, as of January 1, 2021 and before the presentation of the notice to apply the fiscal stimulus on VAT in the southern border region, would have issued CFDI applying the general VAT rate, having the right to apply the fiscal stimulus of the VAT, having submitted the aforementioned notice in a timely manner, they may cancel the aforementioned CFDI in terms of what is established in rule 2.7.1.38., Or because it is in the cases of rule 2.7.1.39., With the exception of section VIII, issuing a new CFDI with the application of the rate reduced to 8% VAT in terms of rule 11.9.3., no later than February 17, 2021,provided that the amounts corresponding to the differential with the general rate of 16% VAT have not been covered by consumers and they are not transactions that have been carried out with the general public in accordance with rule 2.7.1.24.

In the case of operations in which the consideration had been paid in a single payment, the amount corresponding to 8% relative to the differential referred to in the previous paragraph, must be returned in full in a single act to the recipient of the CFDI canceled in the terms of this precept. Said operation must be covered by a CFDI of expenditure, for an amount equal to the credit derived from the application of the stimulus; said CFDI must be related to the electronic invoice of income that was canceled