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Tax News No 16 – July 2021

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Tax News No 16 – July 2021

Incorporation of the Waybill Complement to the Tax Receipts

On December 29, 2020, the Miscellaneous Tax Resolution for 2021 was published in the Official Gazette of the Federation, which included rule 2.7.1.9., this rule contains the requirements that taxpayers must meet in the receipts that used to evidence the transportation of goods.

Through a transitory provision, it was established that the provisions of rule 2.7.1.9. in question, regarding the incorporation of the waybill complement to the tax receipts (CFDIs), would be in force once the Mexican tax authorities (SAT) publishes the aforementioned complement on its website and a period of thirty calendar days is elapsed.

However, on May 3, 2021, the First Resolution of Modifications to the Miscellaneous Tax Resolution for 2021 and its Annexes was published in the Official Gazette of the Federation, in which it is indicated by means of a transitory provision that the waybill complement would be in force as of June 1, 2021. However, during the following 120 calendar days, after the beginning of the term, it would be possible to choose to issue the corresponding CFDI without incorporating the waybill complement, but at the end of said period the use of the waybill complement shall be mandatory for the aforementioned taxpayers (i.e. as of September 30, 2021).

The 2.7.1.9. of the Miscellaneous Tax Resolution specifies the following assumptions:

  1. The owners of national merchandise, which is part of their assets may prove the transportation of said merchandise when they are transferred by land of cargo that circulates on federal highways or by rail, sea, air or rivers, only through the digital file of a transfer-type CFDI issued by themselves or their printed representation, to which they must attach the waybill complement published for such purposes on the SAT’s website.
  2. In the cases in which the transportation of the goods is carried out through an intermediary or a transport agent, whoever carries out the transportation of the goods, it will be said agent who must issue the CFDI referred to in the previous paragraph and use this or its printed representation to prove the transportation of the goods.
  3. In case of transportation of imported goods that correspond to acquisitions from first-hand sales, when these are subject to sale, the CFDI that is issued must additionally contain the importation requirements, and be attached through a digital file or printed representation, to the CFDI referred to in the preceding paragraphs.

Derived from the above, when goods are transported, it will be important to review that the corresponding CFDI is previously generated; this is, the electronic invoice with the waybill complement, in order to be able to prove the legal possession of the goods during the transfer, accompanying them with the digital file or printed representation.

The information that must be recorded in the waybill complement will depend on the subjects involved in the operation, the means of transport and the type of CFDI (Entry or Transfer).

At FRALLA we are at your service in order to review the freight transport schemes to identify the applicable requirements as of September 30, 2021.

We remain at your service for any clarification or comment that is required regarding this publication.

 

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July 2021

México City

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Tax News No 15 – June 2021

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Tax News No 15 – June 2021

Publication of ISR Effective Rates Great Contributors

On June 13, 2021, the Tax Administration Service (SAT) released through its website the first reference parameters regarding effective income tax rates for the measurement of tax risks corresponding to forty economic activities[1] for fiscal years from 2016 to 2019 on the register of large taxpayers.

According to the statement, the parameters disclosed were made based on the information provided in the institutional databases that contain annual returns, tax reports, information on the tax situation of taxpayers, informative returns, tax receipts, etc.

Likewise, the tax authorities indicate that in order to facilitate and encourage compliance, taxpayers are invited to consult the effective tax rate corresponding to the economic activity to which they belong and compare it with the effective rate of each fiscal year for measure your tax risks and, where appropriate, correct your tax situation by filing the corresponding complementary annual returns to minimize the possibility of in-depth reviews aimed at corroborating the correct compliance with your tax obligations.

According to the first parameters, if the effective rate calculated by the taxpayer in each year is higher than the industry’s effective rate calculated by the tax authority, there is a lower tax risk. On the contrary, if the taxpayer’s calculated effective rate is less than the parameter, the tax risk is greater.

Said publication is made as a result of the reforms to the tax provisions due to the economic package for the year 2021, by means of which subsection i) of section I of article 33 of the Tax Code of the Federation was added, which establishes that the authorities Taxpayers for the best fulfillment of their powers will provide free assistance to taxpayers and citizens, trying to make known periodically and in general for taxpayers of income tax, parameters of reference with respect to the utility, deductible concepts or effective rates of tax presented by other entities or legal figures that obtain income, compensation or profit margins for the performance of their activities based on the economic sector or industry to which they belong, establishing that the dissemination of said information will be done with the purpose of measuring tax risks. The SAT under the protection of voluntary compliance programs may inform the taxpayer, their legal representative and in the case of legal entities, their management bodies, when it detects cases of risk based on the parameters previously indicated, without considering that the tax authorities initiate the exercise of their powers of verification and without these programs being binding.

Next, we put at your disposal the link where you can consult the publication in comment in more detail.

http://omawww.sat.gob.mx/TasasEfectivasISR/Paginas/index.html

It should be noted that on this page the tax authorities also made known certain frequently asked questions in relation to the publication of the parameters.

Finally, in order to determine the tax risk that could exist for our clients, we are at your disposal in order to review the calculation of the effective income tax rate for the years 2016 to 2019 and, where appropriate, take the pertinent measures under the new control policy of the current tax authorities.

 

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June 2021

Mexico City

[1] The 40 economic activities are part of five economic sectors: mining, manufacturing, wholesale trade, retail trade, and financial and insurance services, including the automotive and pharmaceutical industries. Said economic activities are those referred to in Annex 6 of the Miscellaneous Tax Resolution.

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Tax News No 14 – June 2021

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Tax News No 14 – June 2021

2n Resolution Amendments to the RMF for 2021 - Second Provisional Version

On June 1, 2021, the Tax Administration Service (SAT per its acronym in Spanish) released through its website the second provisional version of the Second Resolution of Amendments to the Miscellaneous Tax Resolution for 2021, through which various rules are amended, added and repealed.

Among the modifications observed in the version in question, the following rules stand out, although we suggest our readers to review in detail all the rules in order to detect if there is any change that affects their particular case

Non-working days

Rule 2.1.6 is amended to establish that the SAT’s first general vacation period for 2021 comprises the days from July 19 to 30.

Amendment of fiscal situation through instalment payments

Rule 2.11.10 is amended to establish that the provisions of section III of article 66-A of the Federal Tax Code (guarantee of tax interest) will not be applicable in the case of taxpayers who choose to amend their tax situation by paying in instalments at any stage within the SAT’s exercise of powers of verification and even before the resolution of the tax credit is issued, adding as a requirement in such cases that the taxpayer in question should pay in advance 20% of the aggregate amount of the omitted tax through the filing of the corresponding tax return, in addition to making the respective payments in the amounts and dates that have been authorized.

Forgiveness of fines derived from the application of undue tax losses

A second paragraph is added to rule 2.16.11., in order to establish that when taxpayers express their intention to cover their payable contributions and accessories through partial or deferred form in terms of articles 66 and 66-A of the Federal Tax Code, the percentage of forgiveness of the fine will be 50%.

Submission of the adjusted statement of financial position (electronic accounting)

Through transitory provisions, it is established that for purposes of the provisions contained, among others, in rule 2.8.1.7. (compliance with the provision to submit accounting through electronic media on a monthly basis) regarding the submission of the adjusted statement of financial position at the close of the tax year, natural persons who are required to keep accounting and file the statement of financial position through the SAT’s website, may submit the aforementioned adjusted financial position statement at the close of the tax year corresponding to the 2020 tax year, no later than June 2021.

Below, we put for your convenience the link where you can consult the resolution in question in more detail.

https://www.sat.gob.mx/normatividad/23669/versiones-anticipadas-de-la-rmf

We remain at your service for any clarification or comment that is required regarding this publication.

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June 2021

México City

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Tax News No 13 – May 2021

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Tax News No 13 – May 2021

Registration of Providers of Specialized Services of Specialized Works

On May 24, 2021, the “Agreement which sets forth the general provisions for the registration of natural or legal persons that provide specialized services or execute specialized works referred to in article 15 of the Federal Labor Law” was published in the Official Gazette of the Federation, which will enter into force the day after its publication, in accordance with the Decree published on April 23, 2021 which modified various labor and tax provisions regarding the outsourcing.

Below we point out the provisions that we consider most relevant; however, if any of these provisions result applicable, we recommend a detailed review of the Agreement in order to identify any particularities:

1) Definitions. The following relevant definitions are established:

• Beneficiary: that natural or legal person who receives the specialized services or the execution of specialized works from the contractor, provided that they are not part of its corporate purpose or its predominant economic activity;
• Contractor: the natural or legal person who has the registration referred to in article 15 of the Federal Labor Law (LFT) issued by the Ministry of Labor and Social Welfare (STPS, per its acronym in Spanish) and provides specialized services or executes specialized works with workers under his dependence in favor of one or more beneficiaries;
• Specialized services or works: are those that comprise distinctive elements or factors of the activity carried out by the contractor, which are supported, among others, by training, certifications, permits or licenses that regulate the activity, equipment, technology, assets, machinery, risk level, average salary range and experience, which add value to the beneficiary.

2) It is provided that for administrative purposes the interpretation of the aforementioned Agreement corresponds to the STPS.

3) It is established that, a computer platform of the STPS will be available for purposes of requesting the corresponding registration. This platform is already available at the link http://repse.stps.gob.mx/, in which it may already be consulted, among others, the frequently asked questions section.

4) Among the information that should to be provided is the following:

a. Electronic signature
b. General data: name, denomination or company name, commercial name, Mexican tax identification number, geolocation, register number of articles of incorporation and data of the legal representative, in case of being a legal entity and its supporting documentation
c. Geolocation
d. Employer registration with the Mexican Institute of Social Welfare (IMSS, per its acronym in Spanish) and affiliation number before the Institute for the National Fund for Employee Consumption (FONACOT, per its acronym in Spanish)
e. Number of workers
f. Economic activity according to the catalog of activities for the classification of companies in the IMSS’ occupational risk insurance
g. Activities wished to be registered before the register, which must be established with precision, likewise for each activity to be registered, the specialized nature of the same and the description of the elements or factors that provide support must be evidenced, under protest of telling the truth, their exceptional nature by providing information and documentation in accordance with the platform’s requirements regarding training, certifications, permits or licenses that regulate the activity, equipment, machinery, among others. Said services or specialized works that are to be registered must be contemplated within their corporate purpose.

5) It is established that once the information and documentation are entered, a folio number will be assigned to follow up the registry request. Through the platform the STPS must rule on said request within 20 business days after receiving the request. In the event that the ruling is not issued, the applicants may request the Ministry to issue the corresponding registration notice within the three days following the submission of the request. Once said period has elapsed without issuance of the notice of the registration, it will be considered as duly carried out for the applicable legal purposes.

6) It is established that the STPS may deny the registration, among others, when:

a. The specialized character is not evidenced
b. The solicitor is not up to date with tax and social security obligations before the Mexican tax authorities, the IMSS or the Institute of the National Housing Fund for Workers (INFONAVIT, per its acronym in Spanish)
c. Failure to comply with the requirements indicated in the aforementioned Agreement
d. Refusing to meet the information or additional documentation requirements required by the STPS

7) Similarly, it is established that the STPS may cancel the registration at any time, among others, when any of the following cases occurs:

a. Unregistered specialized services or works are provided
b. Specialized services or works are provided that are part of the main corporate purpose or economic activity of the beneficiary
c. There are outstanding debts derived from tax and social security obligations not duly met before the SAT, the IMSS or the INFONAVIT
d. Refuse to meet any request for information or documentation that is required by the STPS

It is provided that once the Ministry notices a possible non-compliance issue, it shall notify the service provider so that within a period of five working days he can express what is appropriate to his right and, where appropriate, resolve the pertinent issue.

8) The registration will be valid for three years and will be essential for the contractor to provide the services. The service provider registered before the registry must process every three years the renewal of its registration through the platform, the process of which must begin within the period of three months prior to the date on which the validity of the registration ends.

9) It is provided that the natural and legal persons who obtain the registration will be obliged to identify their workers by means of the image, name, badge, identity code that links said workers with the company that provides the service or executes the specialized work during the development of their work in the facilities that hire the services.

10) It is established that the contracts entered into by the contractors and beneficiaries must include the registration and folio of the activity and specialized work.

For your convenience, below is the link where said publication can be consulted:

http://dof.gob.mx/nota_detalle.php?codigo=5619148&fecha=24/05/2021

We remain at your service for any clarification or comment that is required regarding this publication.

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May 2021
Mexico City

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Legal News No 1 – May 2021

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Legal News No 1 – May 2021

Mobile Telephony - Biometric Record

The Decree through which various provisions of the Federal Telecommunications and Broadcasting Law are amended and added, was published in the Official Gazette of the Federation on April 16, 2021. This Decree establishes the obligation for users of mobile telephone lines to submit biometric data to their providers of mobile phone services.

The improper use of the information that the users of mobile telephone lines are required to submit to the telephone companies affects and puts their integrity, privacy and assets at risk, since there are no clear security controls that guarantee that NO wrong can be done with such information.

We consider that the ideal means of defence to challenge the improper use of the information that users of mobile telephone lines must submit to telephone companies is the amparo suit, with which a District judge will request provisional protection (suspension) so as not to comply with the law until the suit is finally resolved.

At FRALLA we design a “semi-massive” promotion schemes for these kind of suits in order to minimize administrative costs, without hindering the agility of the trial, which is why we put our services at your convenience in this regard.

The deadline for filing the amparo suit for protection expires on May 25, 2021.

We remain at your service for any clarification or comment that is required regarding this publication.

 

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May 2021

Mexico City

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Tax News No 12 – May 2021

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Tax News No 12 – May 2021

1st Resolution of Modifications to the RMF for 2021

On May 3, 2021, the First Resolution of Modifications to the Miscellaneous Tax Resolution for 2021 (“RMF”) was published in the Official Gazette of the Federation, through which various tax rules of the RMF for 2021 are amended, added and repealed.

In our previous Tax News, we have informed about the main changes incorporated in the draft versions of said First Resolution; however, in case we detect any additional relevant change we will inform you in a later Tax News.

Below we put at your convenience the link in which said publication can be consulted:

http://dof.gob.mx/nota_detalle.php?codigo=5617389&fecha=03/05/2021

Additionally, derived from the aforementioned publication, the draft versions of various Annexes of the RMF for 2021 were published on the Mexican tax authorities’ webpage. Among the main modifications to said annexes, it is included the modification to Annex 3 “Non-binding criteria on tax provisions”.

The modification to the aforementioned Annex 3 consisted in the addition of the non-binding criterion “2/CFF/NV Disclosure of generalized reportable schemes. Making it seem that they have the character of customized reportable schemes is contrary to what is established by the applicable legal provisions ”, which establishes that it is considered an improper tax practice not to file the informative tax return for the disclosure of generalized reportable schemes by virtue of deliberately making it seem that a generalized reportable scheme has the character of a customized reportable scheme, since such customized schemes should not be reported if the profit obtained or expected to be obtained is less than 100 million pesos.

Correspondingly, the aforementioned criterion establishes that it is considered an improper tax practice not to disclose the mechanism to avoid the application of article 199 of the Federal Tax Code (cases in which a reportable scheme is considered to exist) by virtue of making it seem that the generalized reportable scheme has the character of a customized reportable scheme.

Below we put at your convenience the link where the anticipated versions of the Annexes can be consulted:

https://www.sat.gob.mx/normatividad/58521/resolucion-miscelanea-fiscal-(rmf)-

We remain at your service for any clarification or comment that is required regarding this publication.

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May 2021

México City

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Tax News No 8 – April 2021

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Tax News No 8 – April 2021

Upgrade Outsourcing Reform

In relation to our Tax News No. 07 and the labor and fiscal reform initiative to regulate the subcontracting or outsourcing regime, we inform that in the plenary session of the Chamber of Deputies that began on April 13, 2021, it was held the discussion of the Report on said reform, which was approved on April 14, 2021 and sent to the Chamber of Senators.

 In general terms, the Report voted in the Chamber of Deputies maintains the modifications proposed by the Federal Executive; however, certain relevant details and additions were incorporated due to the agreements reached on April 5, 2021.

As a summary, below we list the modifications and additions of the referred Reform that we consider most relevant:

– Labor legislation

  • The subcontracting of personnel is prohibited, this being when an individual or legal entity provides or makes its own workers available for the benefit of another.
  • The subcontracting of specialized services or the execution of specialized works that are not part of the corporate purpose or the predominant economic activity of the beneficiary of said services is allowed, to the extent that the contractor (service provider) is registered before the Public Register of the Ministry of Labor and Social Welfare, said registration must be renewed every three years.
  • The employees’ profit sharing (PTU) will be limited to three months of the employee’s salary or the average of the participation received in the last three years, the amount that is most favorable to the worker will be applied.

The entry into force of these provisions is expected to be the day after their publication in the Official Gazette of the Federation (DOF).

–  Fiscal legislation

  1. i) Federal Tax Code (CFF)
  • Payments for subcontracting personnel to carry out activities related to both the corporate purpose and the predominant economic activity of the beneficiary will not have tax deduction or crediting effects. Similarly, no tax effect will be given to the services in the following cases:
    • When the workers that the provider of the service makes available or provides have been workers of the beneficiary and have been transferred to the provider.
    • When the workers that are provided or made available by the provider cover preponderant activities of the beneficiary.
  • Tax deduction or accreditation of payments for subcontracting specialized services or execution of specialized works that are not part of the corporate purpose or the predominant economic activity of the beneficiary may be allowed, to the extent the provider is registered in the Register established in terms of the labor legislation and the requirements established in the Income Tax Law and the Value Added Tax Law are met.
  • The legal entities or individuals who receive any of the previously indicated services or works will be jointly liable with the provider for the contributions that would have been caused in connection with its workers.
  1. ii) Income Tax Law (LISR)
  • Regarding the provision of specialized services or the execution of specialized works, it is established as a requirement for the deduction that the beneficiary verifies that the service provider has the registration in terms of the labor legislation and obtains from said provider a copy of the payment vouchers of wages of the workers who have provided the service, of the receipt of payment of the corresponding withholdings and of the receipt of payment of worker-employer fees, among others.
  • Payments for subcontracting services that are not for specialized services or the execution of specialized works mentioned above will not be deductible in terms of article 28 of the Law *.

 iii) Value Added Tax Law (LIVA)

  • The 6% value added tax withholding for services where personnel is made available to is repealed.
  • The value added tax that is shifted for the subcontracting of services other than specialized services or the execution of specialized works mentioned above will not be creditable.
  • It is established as a requirement for the accreditation of the value added tax shifted for the provision of specialized services or execution of specialized works previously mentioned* that the beneficiary verifies that the service provider has the corresponding registry in terms of the labor legislation and obtains a copy of the value added tax returns and their corresponding payments, which must be supplied by the service provider no later than the last day of the month following that in which the beneficiary made the payment and, in case the documentation is not collected within said period, it would be necessary to file a supplementary tax return reducing the amounts credited for corresponding the shifted tax.

Through transitory provisions, it is expected that the modifications to the tax provisions (CFF, LISR and LIVA) will come into force as of August 1, 2021.

Finally, we reiterate our disposition in order to evaluate the current structure maintained and, where appropriate, develop alternatives that could mitigate the effects of the approval of the referred reform.

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April 2021

México City

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Tax News No 9 – April 2021

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Tax News No 9 – April 2021

Reform Approval Outsourcing

In relation to our Tax News No. 07 and 08, we inform that on April 20, 2021 the labor and tax reform was approved in general and in particular in the plenary session of the Chamber of Senators to regulate the subcontracting or outsourcing[1] regime and it was sent to the Federal Executive for publication

In our Tax News No. 08 you can find the main modifications and additions made to the various labor and fiscal provisions, which can be consulted in our News section at the following link:

https://fralla.mx/noticias/

As we have indicated, it is foreseen that the entry into force of the reforms to the labor provisions will occur on the day following their publication in the Official Gazette of the Federation, except for the entry into force of the reforms to the fiscal provisions, which will occur as of August 1, 2021, as well as the entry into force of these provisions for the agencies and entities of the Federal Public Administration, for which they will enter into force until fiscal year 2022.

We recommend that our readers review the current staff hiring structure and, where appropriate, analyze the tax implications that would arise with the entry into force of said reforms. We reiterate our willingness to review and address any questions or concerns that may arise in relation to said Reform.

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April 2021

México City

 

[1] “Draft decree by which various provisions of the Federal Labor Law, the Social Security Law, the Institute of the National Housing Fund for Workers Law, the Federal Tax Code, are amended, added and repealed, of the Income Tax Law, of the Value Added Tax Law, of the Federal Law of Workers at the Service of the State, Regulatory of Section B) of Constitutional Article 123, of the Regulatory Law of section XIII Bis of the Section B, of Article 123 of the Political Constitution of the United Mexican States, regarding labor subcontracting.”

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Tax News No 10 – April 2021

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Tax News No 10 – April 2021

First Resolution of Amendments to the RMF for 2021 Sixth Provisional Version

On April 22, 2021, the Tax Administration Service (SAT) released through its website the sixth provisional version of the First Resolution of Amendments to the Miscellaneous Tax Resolution for 2021, through which various rules are amended, added and repealed.

Among the modifications observed in the version in question, the following rule stands out:

Annual ISR payment in installments 2020

Rule 3.17.3 is modified, in order to incorporate in within the payment option of up to 6 installments of the payable tax corresponding to the 2020 tax year, the extension of the term to file the annual tax return for the 2020 tax year, provided said tax return is duly filed prior to May 31, 2021.

Additionally, it is established that individuals who have submitted their annual tax return for the 2020 tax year prior to April 6, 2021 and have chosen to pay in installments may continue to pay according with the expiration dates indicated in the generated payment codes.

It is also established that those individuals who have filed the annual return prior to April 6, 2021 may choose to file a supplementary tax return until May 31, 2021, subtracting any payment previously made, in case they made it. At the time of filing said supplementary tax return, new payment codes will be generated for the following installments.

For such purposes, it is stated in said amendment that the last installment must be covered no later than October 2021 and, in the same way, the option of payment in installments will be rendered ineffective when the taxpayers have filed their annual tax return and paid the first installment, but the outstanding balance has not been fully covered by October 2021, at the latest.

Below, we put at your convenience the link where you can consult the resolution in question in more detail.

https://www.sat.gob.mx/normatividad/23669/versiones-anticipadas-de-las-rmf

We remain at your service for any clarification or comment that is required regarding this publication.

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April 2021

México City

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Tax News No 11 – April 2021

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Tax News No 11 – April 2021

Publication of Outsorcing Reform

Today, April 23, 2021, in the evening edition of the Official Gazette of the Federation it was published the Decree through which there are amended several provisions in connection with the subcontracting or outsourcing regime, which will enter into force the day after its publication, except for certain provisions such as the modifications, additions and repeals to the Income Tax Law, Value Added Tax Law and Federal Tax Code, which will enter into force on August 1, 2021 .

Below we put at your convenience the link where said publication can be consulted:

http://dof.gob.mx/nota_detalle.php?codigo=5616745&fecha=23/04/2021

Finally, we reiterate our willingness to review and address any questions or concerns that may arise in relation to said Reform.

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April 2021

México City

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