Fiscal Code of the Federation (CFF)

22/9/2020

In this order, reforms are proposed to a significant number of articles, some of which propose updating provisions, correcting errors or making relatively simple clarifications, however other modifications may imply significant changes in compliance with tax obligations. Here is a summary of the proposals that we consider most relevant:

General anti-abuse rule

Clarify that lThe effects that the tax authorities grant to the legal acts of the taxpayers due to the general anti-abuse rule, will be limited to the determination of the contributions, their accessories and corresponding fines, without prejudice to the investigations and criminal liability that may arise with relation to the commission of the crimes foreseen in the Fiscal Code (amendment to the last paragraph of article 5-A).

Term disposals with deferred payment or in installments

Specify that disposals of time assets are also made with deferred payment or in installments when simplified tax receipts are issued, in the terms of article 29-A, section IV, second paragraph of the CFF (reform of article 14).

Spin-off of companies

Establish that the division of companies will have the character of disposal, when it gives rise to the creation of concepts or items whose amount was not registered or recognized in the stockholders’ equity accounts. of the statement of financial position approved at the general meeting of partners or shareholders that agreed to the spin-off (reform of article 14-B).

It is also proposed that in the previous case, the limit of joint and several liability of the spun-off companies is not applied, indicated up to the value of the capital of each one of them at the time of the split (reform of section XII of article 26)

Concept of recognized markets

Update the concept of recognized markets, including public limited companies that obtain a concession from the SHCP to act as a stock exchange under the terms of the Securities Market Law (reform of section I of article 16-C)

Cancellation and temporary restriction of digital seal certificates

• Transfer to article 17-H the sections IV and X currently provided for in article 17-H Bis, in order to immediately render the digital seal certificate without effect in the case of taxpayers issuing tax receipts that did not disprove the presumption of non-existence of the operations covered in such vouchers and are published in the final list of the fourth paragraph of Article 69-B, as well as of taxpayers who did not disprove the presumption of unduly transmitting tax losses and are found in the list of the eighth paragraph of the Article 69-B Bis.
• Extend the deadline for the tax authorities to resolve requests for clarification submitted by taxpayers in terms of article 17-H, sixth paragraph, from 3 to 10 days.
• Establish a time limit of forty business days so that taxpayers who have been temporarily restricted from using the digital seal certificate for the issuance of digital tax receipts, present the request for clarification to correct the irregularities detected or to disprove the causes that motivated the application of such measure, since currently the term is indefinite (amendment to the second paragraph of Article 17-H Bis).

Refund of balances in favor

• Establish that a refund request will be considered not submitted, when the taxpayer, or the address indicated by it, is found as not located before the RFC and also when the request is considered not submitted, it will not be considered as management of collection that interrupts the prescription of the obligation to return (amendment to article 22)
• Increase the period for the authority at the end of the exercise of the powers of verification to verify the origin of the return, issue and notify the corresponding resolution, from 10 to 20 business days (amendment to section VI of article 22-D)

Joint responsibility

Incorporate as joint and several responsible the resident in Mexico who maintains operations with related parties residing abroad when the latter constitute a permanent establishment in Mexico, for the contributions that such operations would have caused said resident abroad (addition of section XIX to article 26).

Federal taxpayer registration

The following reform proposals are made to article 27 of the CFF regarding the RFC:

• Establish that a single e-mail address and a telephone number of the taxpayer must be registered with the RFC and kept updated (modification of section II of section B)
• Specify that the notice referred to in section VI of section B must be presented each time any modification or incorporation of partners and shareholders is made, which also includes associates and other people who by their nature are part of the organic structure and that they have said character in accordance with the statutes or legislation under which they are constituted, whatever the name by which they are designated.
• Add section XII of section C, to incorporate as a faculty of the tax authority, suspend or reduce the obligations of taxpayers, when it is confirmed in their systems or with information from third parties, that they have not carried out any activity in the three previous years.
• Add fraction IX of section D, to establish a series of requirements that taxpayers who present the notice of cancellation in the RFC due to total liquidation of assets, due to total cessation of operations or due to merger of companies must comply.

Digital tax receipts

It is proposed to modify art. 29 to add the obligation that taxpayers have to request the respective digital tax receipt, when they make partial or deferred payments, and when they export goods that are not subject to sale or whose sale is free of charge.

Requirements for digital tax receipts

The following modifications to article 29-A are proposed:

• Specify that an operation will be considered as celebrated with the general public when the generic code established by the SAT is indicated in the voucher
• Clarify that the quantity, unit of measure and class of the goods or merchandise or description of the service they cover, will be established in the digital tax receipts using the catalogs included in the technological specifications.
• Specify that when the consideration is paid in a single installment but is carried out deferred from the moment the digital tax receipt is issued, the tax receipt will also be issued for the total value of the transaction at the time it is carried out and is will issue a tax receipt for the payment received.

Deadline to keep the accounting

The following modifications to article 30 are proposed:

• Include the information and documentation necessary to implement the agreements reached as a result of the dispute resolution procedures contained in the treaties to avoid double taxation, as part of the documentation that must be kept for as long as the company subsists.
• Include in an enunciative way the information and supporting documentation that must be kept as part of the accounting, to prove the increases or decreases of the capital stock, the merger or division of companies, as well as the distribution of dividends or profits.
• Establish that when the tax authority is exercising powers of verification regarding fiscal years in which tax losses from previous years are reduced, dividends or profits are distributed or paid, capital is reduced or capital remittances are reimbursed or sent, they must also provide 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 they originated .

Tax assistance and dissemination

The following modifications to article 33 are proposed:

• Establish changes regarding the way in which tax authorities will provide assistance, including: providing assistance to the general public, inform about the possible consequences of not complying with tax provisions, provide supporting printed or digital material, rather than brochures, and generally provide a better assistance service to promote a tax culture and formality among the population (reform of sections a) and b) of section I of article 33)
• Periodically disclose tax parameters (such as profit, effective rate and deductions) that must correspond to taxpayers, based on the economic sector or industrial activity category to which they belong. The scope of this publication will be merely

Guidance seeking to generate risk perception when taxpayers are outside the parameters disclosed by the SAT (addition of item i) of section I of article 33)

• Promote compliance by sending payment proposals or pre-filled statements, communicated to promote compliance or to report any inconsistencies detected, without considering that the sending of these documents initiates verification powers (addition of section IV of article 33)

Precautionary Assurance

Include in the cases of article 40 third parties related to taxpayers, for the purpose of making them subject to precautionary insurance when they do not comply with requests for information or documentation requirements addressed to them (reform of section III of article 40)

Incorporate third parties related to the taxpayer or jointly responsible in article 40-A, which indicates the procedure for the precautionary assurance, proposing several changes in the process, highlighting the following:

• Establish that the precautionary assurance of assets or the negotiation of third parties related to the taxpayer will be practiced for up to a third of the amount of the operations, acts or activities that said third party carried out with the taxpayer or the amount that the tax authority intends to verify with requests for information or documentation addressed to them.
• Incorporate the precautionary assurance of containers or containers that contain alcoholic beverages that do not have labels or seals attached, are false or altered, as well as labels or seals that the taxpayer has in his possession and of which their legal possession is not proven.
• Adjust the order of priority of the precautionary insurance, pointing first to bank deposits and following in the order the accounts receivable, stocks, bonds, etc; money and precious metals; property; movable property; the negotiation of the taxpayer; as well as copyright and artistic works, scientific collections and jewelry.
• Add as one of the assumptions for the precautionary insurance of bank accounts to proceed, when the taxpayer, jointly and severally liable or related third party, has been sanctioned on two or more occasions for the commission of any of the infractions provided for in section I of the Article 85, which states, among other causes, not providing the data, reports or documents that the tax authorities legally request to verify compliance with obligations. In addition, establish in the event that they do not have bank accounts, that the precautionary assurance will be practiced on any of the assets without the need to exhaust the established order of priority.
• Specify that financial entities or savings and loan cooperative societies in no case may deny taxpayers information about the authority that ordered the insurance.

Home visit records

Specify that if the visited person, the person with whom the diligence was understood or the witnesses refuse to sign the minutes at the closing of the same, or refuse to accept a copy of the minutes, said circumstance will be recorded in the minutes itself, without this affects the validity and probative value of the same, by modifying the third paragraph of section III of article 44.

Use of technology

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 proof of the goods and assets that exist in the tax domicile, the which will be protected in terms of article 69 of this Code (reform of article 45)

Procedure for home visits

Establish that home visits may also be carried out in offices, warehouses and warehouses or where administrative activities are carried out in relation to the taxpayer. In addition, allowing visits to be exhausted in more than one diligence, providing that the authorities may return to the domicile or establishment of the taxpayer where the visit is being carried out, in order to carry out a second or subsequent procedures under the same order, this changing the reference from “record” to “record or minutes” of home visit (amendment to sections I, III, IV and V of article 49)

Public Accountant Opinion Review

Specify that the review of the opinion not only requires the exhibition of the working papers prepared by the public accountant for the audit, but also so that in the same act, appear before the tax authority to make the clarifications that are requested. request, without legal representation being appropriate.

It also proposes to establish that the sequential review of the opinion does not proceed, in the case of the review of uses derived from the authorization or concession granted to individuals for the handling, storage and custody of foreign trade merchandise in fiscal or supervised areas. , or in the case of fines in foreign trade (reform of section I, subsection b) and second paragraph; and section III subsection f) of article 52-A)

Deadline for submitting reports or documents in reviews

Establish that any of the deadlines for providing information in the audit acts, established in article 53, may be extended for ten more days, in the case of reports whose content is difficult to provide or difficult to obtain (amendment to the last paragraph of the article 53)

Electronic Reviews

Specify that the term to conclude the electronic examination in foreign trade will be six months and will only be two years when an international certificate is carried out within the procedure (amendment to the last paragraph of article 53-B)

Fiscal Secret

Include within the obligation to keep absolute confidentiality, images and any material collected by the tax authority through the use of technological tools in the exercise of their powers of verification.

In turn, establish that the reservation of the information referred to in article 69 will not be applicable, when the request is made for the investigation of a fact that the law indicates as a crime, as long as it is made by the Public Ministry and the Police (amendment to the first paragraph of article 69)

Undue transfer of the right to reduce tax losses

The following modifications to article 69-B Bis are proposed:

• Specify that what the authority may presume in accordance with this article refers to “the undue transmission of the right to reduce tax losses” replacing “the improper transmission of tax losses”
• Establish that the statements made by the taxpayer to the authority must indicate the purpose of the legal acts that gave rise to the transmission of the right to reduce tax losses
• Incorporate the possibility that taxpayers can request, on a single occasion, an extension of ten days to the period foreseen to provide the information and documentation
• Establish that when the taxpayer has not corrected their tax situation, it will also be considered that the transmission of the right to reduce the tax loss is a simulated act for the purposes of the crimes provided for in the CFF

Conclusive Agreements

The following reforms are proposed:

• Establish a time limit to adopt a conclusive agreement, up to within fifteen days after the one in which the final act was drawn up or the notice of observations or the provisional resolution was notified, as the case may be (amendment to the second paragraph of the Article 69-C).
• Incorporate the grounds on which the request for the adoption of a conclusive agreement will not proceed, which include: verification of the origin of returns, certifications and completion of resolutions and judgments, or when the applicants are companies that invoice simulated operations (EFOS ) presumed or definitive (addition of the third paragraph of article 69-C)
• Establish that against the conclusive agreements reached and signed, no means of defense or dispute resolution procedure contained in a treaty will proceed to avoid double taxation (amendment to article 69-H)

Fines and Infractions

• Reduce the period from 45 to 30 business days after the notification of the sanction takes effect, to pay the fine and obtain a reduction of 20% of its amount (reform to section VII of article 75)
• Consider as aggravating that taxpayers do not comply with the tax provisions on transfer pricing (addition of section V to article 75)
• Eliminate the 50% reductions in the case of fines for infractions in the matter of transfer prices (The tenth paragraph of article 76 is eliminated)
• Establish a fine of $ 500,000.00 to $ 1’000,000.00 to concessionaires of a public telecommunications network in Mexico that do not comply, within a maximum period of five days, with the order to block access to the digital service of the provider of said services provided for in the Article 18-H QUÁTER, of the VAT Law, or when said concessionaires do not carry out the unblocking in accordance with Article 18-H QUINTUS of the aforementioned Law (addition of Article 90-A)

Presumption of Contraband

Incorporate as a presumption of the crime of smuggling when it is omitted to return, transfer or change the customs regime, merchandise imported temporarily in terms of article 108, section III, of the Customs Law (addition of section XXI to article 103)

In accordance with the aforementioned provision of the Customs Law, allows companies with export promotion programs, import merchandise of foreign origin temporarily during the term of the program and without payment of the contributions corresponding to the definitive importation, However, there are companies that do not return merchandise abroad, nor do they change their regime once the program ends, which is intended to be avoided with this reform.

Notifications and guarantee of tax interest

• Modify the personal notification procedure to include the aspects contained in the various criteria that the courts have issued. Likewise, empower the notifier to use technological tools to collect images or material that serves as proof of said diligence, which will be protected by fiscal secrecy in terms of article 69 of the CFF (amendment to the first and second paragraphs of article 137).
• Reduce the legal deadlines for notification by court, from 15 to 6 days (amendment to the first paragraph of article 139).
• Establish that the seizure in the administrative route, to guarantee the fiscal interest, may be locked only on tangible and immovable property, except rustic properties, as well as on negotiations (amendment to section V of article 141)

Finally, it should be mentioned that changes are also foreseen in the Federal Law of Rights as part of this Economic Package for 2021.