Tax verification powers in mexico

It is the obligation of Mexicans to contribute to public spending in a proportional and equitable manner, as stated in our Magna Carta:

Article 31. The obligations of Mexicans:

IV. Contribute to public expenses, both of the Federation, as well as of the States, Mexico City and the Municipality in which they reside, in the proportional and equitable manner provided by law.

Within this order that is the origin of taxes, there are various principles:

Compulsory; Proportionality; Generality; Equity; Legality; and Relationship with public spending.

These principles must be observed by the legislator when submitting a reform or addition to the law, since otherwise, any individual and / or taxpayer who considers that their human rights or individual guarantees are violated as a result of blindness due to part of the legislator, with respect to the fundamental principles of taxes, could file an indirect amparo trial against the law or part of it that it considers affects its legal sphere and that in the worst case, the Supreme Court of Justice of the Nation (SCJN) could be forced to declare a declaration of unconstitutionality.

Articles 14 and 16 of the Political Constitution of the United Mexican States, are part of the pillars the pillars of the presumption of innocence, starting from the premise, that the presumption of innocence is a right that arises from the general principle of law which is that everyone is innocent until proven otherwise.

However, in tax matters, it appears that the Collegiate Circuit Courts have the criterion that in tax matters, all taxpayers are guilty until proven otherwise, with the duty of proof falling on the taxpayer, in violation of the provisions of the Fiscal Code of the Federation, and I mean that the authorities must demonstrate in a well-founded and motivated way the facts that led to their decision-making, either starting from a simple consultation or exercising their powers of verification.

The foregoing becomes relevant for the thesis published in the Federal Judicial Weekly on December 4, 2015, with the title:

“POWERS OF VERIFICATION OF THE FISCAL AUTHORITIES. THOSE PROVIDED FOR IN THE FEDERATION TAX CODE ARE NOT GOVERNED BY THE PRINCIPLE OF THE PRESUMPTION OF INNOCENCE. ”

From the criteria issued by the Plenary and by the First Chamber of this Supreme Court of Justice of the Nation, it follows that, although as a general rule the principle of presumption of innocence must be observed in criminal law, it must also be applied to proceedings administrative sanctions, that is, those in which the State exercises its faculty of ius puniendi, or those of investigation, in order to obtain evidence to use it in said procedure. That is, the aforementioned principle is reserved for matters in which a penalty or sanction could derive as a result of the punitive power of the State; hence, it is not applicable to different rules such as administrative or tax. Now, the Federation Tax Code provides various powers,being that those whose purpose is to determine omitted contributions or tax credits, constitute inspection procedures from which a penalty does not derive, since they are not sanctioning in nature and, therefore, are not included within the figures that protect criminal law. Consequently, the numerals that these powers provide for cannot be analyzed in accordance with the principle of presumption of innocence.

The criterion issued by the courts becomes relevant, when analyzing that, as we well know, the jurisprudence for reiteration of criteria is made up of the set of 5 pronouncements on similar cases, without any against, something that the thesis previously stated, already has 2 direct shelters within your countdown.

In 2014, the tax legislation suffered a major setback regarding the means of control by which the tax authorities can supervise the correct compliance of tax provisions by taxpayers.

At the heart of these changes is the tax mailbox, which is nothing more novel than an email account simulation replaced by an interface system between the taxpayer's email account and the tax authority.

Another relevant aspect was the entry into force of a new method of exercising its powers of verification by the tax authorities (I mean tax authorities, because although it is only used by the Tax Administration Service, it may also be used by of the Mexican Institute of Social Security and the Institute for the National Fund of Housing for Workers), the so-called electronic review.

Adam Smith in his book, "The wealth of the nations", published in 1776, more than two centuries ago, the author pointed out that part of the perfection in the collection consisted in separating as much as possible the interaction between the taxable person and the active subject, in order to avoid improper manipulations or arrangements.

Two centuries after it was proposed by the economist Adam Smith, his proposal was heard by the legislative scholarly opulence and the electronic review was implemented, which we will later develop his process.

Article 42 of the Tax Code of the Federation is one of the foundations of the tax authorities, since the means by which the tax authorities can verify the correct compliance and observance of tax provisions are listed:

Rectify errors in declarations and requests; Accounting review; Home visits; Review of opinions; Verification of compliance with your tax obligations;

Issuance of tax receipts; Operation of machines and accounting systems; Consisting of containers containing alcoholic beverages containing their proper label; Cigarette packs containing the security code printed; Checking the legal ownership of possessions; SAW. Practice appraisals;

Collect reports from officials; and Practice of electronic reviews.

Chapter I Formalities

Every visitation order must contain specific points so that it can boast of legality, which is regulated in article 43 of the Federal Tax Code, which states:

The place or places where the visit must be made; The name of the person or persons who must make the visit, which may be substituted, increased or reduced at any time; In the case of home visits, the visit orders must contain the name printed. of the visited; These data must allow identification, which may be obtained at the time of the home visit

In the cases of a visit to the tax domicile (without prejudice if the power of verification is referring to section II or III of article 42 of the CFF, but as long as it takes place at the taxpayer's domicile), the tax authorities, the visited, the solidarity managers and third parties will be as follows:

The visit will take place at the place or places indicated in the visit order;

If the visitors or their legal representative are not present when the visitors appear, they must leave a summons for the mentioned visitor to wait for them on the day and time indicated and if they do not do so, the diligence finds out who is in the visited place);

When there is a danger that the visitor may be absent or may carry out maneuvers to prevent the initiation or development of the procedure, the visitors may proceed to the accounting assurance.

Under no circumstances may the visitors remove the accounting from the tax domicile, but they may require a photostatic copy of these.

At the beginning of the visit, the visitors must identify themselves, requiring the person visited to designate two witnesses and, if not, the visitor will appoint two witnesses; The tax authorities may request the help of other competent tax authorities, so that they continue a visit already started.

In the cases of visits to the fiscal domicile, it is the obligation of the visited, to allow the visitors access to the place or places that are the object of the visit, as well as to keep at their disposal the accounting and other work papers that comprise it.

Chapter II

Deadlines for concluding visits to taxpayers

The tax authorities must conclude the visit that takes place at the taxpayers' tax domicile or the review of their accounts that is carried out at the offices of the authorities themselves, within a maximum period of twelve months from the taxpayers are notified of the commencement of verification powers.

In the case of Taxpayers who make up the financial system and the optional regime for a group of companies, the term will be eighteen months from the date on which the taxpayers are notified of the start of the verification powers and the term will be two years Regarding taxpayers, the tax or customs authority requests information from the tax or customs authorities of another country or is exercising its powers to verify compliance with tax obligations.

The deadlines for concluding the visits are suspended

For strike;

Death of the taxpayer; vacate his tax domicile; Do not meet the request for information; Reposition of the process; When the authority is prevented from continuing the exercise of its powers of verification by fortuitous event or force majeure.

Chapter III Cabinet Review.

It is known as a cabinet review to the faculty that the authority has to be able to require taxpayers, jointly responsible persons or third parties related to them, to display at their home, establishment, in the offices of the authorities themselves or within the tax mailbox, the accounting, as well as the data or other documents or reports that are required in order to carry out its review.

In the cabinet review, as it could be observed, the authority “requires” that information be provided to it in order to carry out its review procedure, either to determine correct compliance with tax provisions or for other acts related to the compliance with the tax provisions of the taxpayer or third parties related to them.

Chapter II

Home visit

The home visit will take place under the following rules:

In every visit to the home, a record will be drawn up in which the facts or omissions that have been known by the visitors are recorded in a circumstantial manner.

The facts recorded in the minutes provide full proof of the existence of such facts reflected in the minutes.

If the visit is carried out in several addresses simultaneously, partial minutes must be drawn up for each address.During the visit, the visitors in order to ensure the accounting, correspondence or goods that are not registered in the accounting, may, without distinction, seal or place marks on said documents, goods or furniture, filing cabinets or offices where they are, as well as leave them as a deposit to the visited or to the person with whom the diligence is understood, after an inventory that they make, provided that said The assurance does not prevent the carrying out of the activities of the visitor. Partial or complementary minutes may be drawn up in which facts, omissions or circumstances of a specific nature are recorded, which are known in the course of a visit.Once the final act has been drawn up, supplementary minutes cannot be drawn up without a new visitation order. The acts or omissions known to third parties will also be recorded in said minutes.

In the last partial act that is drawn up, an express mention of such circumstance will be made and between this and the final act, at least twenty days must elapse, during which the taxpayer may present the documents, books or records that distort the facts. or omissions, as well as choosing to correct your tax situation. In the case of more than one revised fiscal year or fraction thereof, the term will be extended for a further fifteen days, provided that the taxpayer presents notice within the initial period of twenty days.

The facts consigned in the acts referred to in the preceding paragraph will be considered consented, if before the closing of the final act the taxpayer does not present the documents, books or records of reference or does not indicate the place where they are, provided that this It is the fiscal domicile or the authorized place to keep its accounts or it does not prove that they are in the power of an authority.

When it is impossible to continue or conclude the exercise of the powers of verification in the establishments of the visited, the minutes in which the development of a visit to the fiscal domicile is recorded may be drawn up in the offices of the tax authorities. Previously notify this circumstance to the person with whom the diligence is understood, except in the event that the person visited has disappeared from the tax domicile during the course of the visit.If at the closing of the final record of the visit the visitor was not present or Your representative will be summoned to be present at a specific time the following day. If he does not appear, the final act will be drawn up before whoever is present at the place visited;At that time, any of the visitors who have intervened in the visit, the person visited or the person with whom the procedure is understood and the witnesses will sign the minutes of which a copy will be left for the person visited. If the person visited, the person with whom the proceeding was understood or the witnesses do not appear to sign the act, refuse to sign it, or the person visited or the person with whom the proceeding was understood refuses to accept a copy of the act, said circumstance is it shall be entered in the act itself without this affecting its validity and probative value.or the person visited or the person with whom the diligence was understood refuse to accept a copy of the act, said circumstance shall be established in the act itself without this affecting its validity and probative value.or the person visited or the person with whom the diligence was understood refuse to accept a copy of the act, said circumstance shall be established in the act itself without this affecting its validity and probative value.

Chapter IV

Information outside the home visit

When the tax authorities request from the taxpayers, joint and severally liable parties, reports, data or documents or request the presentation of the accounting or part of it, for the exercise of their powers of verification, outside a home visit, they will be in compliance. following:

The request will be notified to the taxpayer; The request will indicate the place and the term in which the reports or documents must be provided The required reports, books or documents must be provided by the person to whom the request was directed or by their representative. As a consequence of the review of the reports, data, documents or accounting required of taxpayers, jointly liable parties or third parties, the tax authorities will formulate observations, in which they will record in detail the facts or omissions that have been known and entail non-compliance with the tax provisions of the taxpayer or jointly liable party. When there are no observations, the supervisory authority will notify the taxpayer or jointly-responsible party, by letter,The conclusion of the cabinet review of the documents presented The taxpayer or the jointly and severally liable party will have a period of twenty days, counted from the day following the day in which the notification of the official notice takes effect, to present the documents, books or records that distort the facts or omissions established in it, as well as to choose to correct your tax situation

The facts or omissions recorded in the official letter will be considered consented, if within the evidentiary period the taxpayer does not present supporting documentation that would distort them.

VII. When the taxpayer does not fully correct his tax situation pursuant to the official letter of observations or does not distort the facts or omissions set forth in said document, the resolution determining the omitted contributions or benefits will be issued, which will be notified to the taxpayer

Chapter v

Electronic reviews.

Electronic reviews will be carried out in accordance with the following:

Based on the information and documentation in their possession, the tax authorities will disclose the facts that lead to the omission of contributions and benefits or the commission of other irregularities, through a provisional resolution to which, in its In this case, a pre-settlement notice may be attached to it, when the recorded facts suggest the payment of a tax credit.

In the provisional resolution, the taxpayer, jointly liable or third party, will be required so that within a period of fifteen days following notification of the aforementioned resolution, it will manifest what is appropriate to its right and provide the information and documentation, tending to distort irregularities or to prove the payment of the contributions or uses consigned in the provisional resolution.

Once the evidence provided by the taxpayer has been received and analyzed, within the ten days following that in which the aforementioned term expires, if the tax authority identifies additional elements that must be verified, it may act interchangeably according to any of the following procedures:

He will make a second request to the taxpayer, which must be attended to within a period of ten days from the notification of the second request. He will request information and documentation from a third party, a situation that must be notified to the taxpayer within ten days of the request for information.

The third party must attend to the request within ten days of notification of the request; the information and documentation provided by the third party must be disclosed to the taxpayer within ten days following that in which the third party has provided it; for which the taxpayer will have a period of ten days from the notification of the additional information of the third party to express what is appropriate to their right.

The authority will have a maximum period of forty days for the issuance and notification of the resolution based on the information and documentation in the file.

Administrative acts and resolutions, as well as promotions of taxpayers will be notified and presented in digital documents through the tax mailbox.

Conclusions.

The Tax Code of the Federation indicates that the tax provisions are applied strictly, without allowing any kind of interpretation, much less if it is favorable to the taxpayer because a tax crime may be incurred.

Although it is true that there are different methods of legal interpretation, (literally, literally, logically, historically, systemically…) reality does not mean that each method has different results, but on the contrary, in a strict sense, the spirit of legislator when imposing the norm, should not vary in terms of its understanding, notwithstanding that the laws are not interpreted but simply applied; The complexity and dynamism of the Mexican tax system means that a greater degree of knowledge, the application of the rule can be deepened, which does not mean that legaloid handling causes bad practices, but on the contrary, reinforces its application. with valid arguments interpreted systemically and not individually.

The development of the powers of verification, are for the accountant, what for the student an exam and for the "flirt" the courtship, by which I mean, that a faultless ethic leads to unexpected results.

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