Pedro Trejo: Is retroactive payment of fees illegal for VAT-IEPS certified IMMEX companies?

Pedro Trejo VargasPedro Trejo Vargas Source: Courtesy

In accordance with the Foreign Trade Resolution of the SAT published in the DOF the July 24, 2020, the fraction was modified XI of the rule 7.2.1. to read as follows: (Obligations in the Registry in the Company Certification Scheme) “7.2.1. (…) XI. Companies that have the Registry in the Business Certification Scheme of any modality, whose validity is 2 or 3 years, must make the ANNUAL payment of rights provided for in article 40, subsection m) of the LFD, (…) one and two years after the resolution is issued authorizing its registration and submitting it (…) ”.

In the same publication, a section VI was added to Section A of rule 7.2.2. to look like this: (Causes of requirement for Registration in the Business Certification Scheme) “7.2.2. AGACE will require taxpayers, when (…) the breach of any requirement is detected or any of the following assumptions is updated:

A. (…) VI. When the companies that have the Registry in the Company Certification Scheme, in any modality, have not made the payment of fees (…) ANNUAL or by renewal; as appropriate. (…) For the purposes of this rule, the customs authority will notify taxpayers (…) of the request, indicating the causes that motivate it and will grant a period of 20 days to correct or disprove the inconsistency. (…) ”.

Therefore, and in my interpretation based on articles 5 and 33-I g) of the Fiscal Code of the Federation and in the aforementioned rules, I have concluded the following regarding the collection of the SAT of the referred right:

1.- The law must be strictly applied, In other words, the authority is obliged to make a literal interpretation of both article 40 m) of the Federal Law on Rights, as well as the aforementioned rules. Recall that it is about the establishment of charges to individuals, since such provisions refer to the subject, object, base, rate or rate, and even to infractions and sanctions (cancellation of the registration).

2.- The referred general rules Cannot be applied retroactively To the detriment of the taxpayer, since they have just been published on July 24, 2020, so that such collection of fees is understood – making a literal interpretation – that they only apply for this year and onwards; According to these new rules, it follows that it is a new obligation or additional burden.

3.- Finally, I must emphasize that companies could only be obliged to pay the corresponding rights to the 2020 certification and so annually for each subsequent year or renewal, respectively; and where appropriate, they could wait for the requirement for the annual payment of the previous years 2015 to 2019; with the reservations of the comments in the lines above. What do you think of the illegal collection? .

The author is Managing Partner of ENCOR Consulting and Services.

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