Comments

Pursuant to the new obligation, the tax authorities will have specific verification powers to require information regarding the BCs and the compelled taxpayers will have to provide it within the next 15 business-day-term once the request is duly notified. The referred term may be extended to 10 more days as long as the corresponding extension request is duly justified. Likewise, the TAS may require the aforementioned information to Notaries Public and financial institutions.

Regarding the information requests, the TAS may rely in the public registers located in Mexico City and in other states, in the Financial Intelligence Unit of the Ministry of the Treasury and Public Credit, in the National Banking and Securities Commission, in the National Commission for the Pension System or in the National Bonding and Insurance Commission, through the conclusion of collaboration agreements, information exchange or in any other form the applicable provisions authorize.

CBs shall be understood as the individual or group of individuals that:

1. Directly or by means of other(s) individual(s) or of any legal act, obtain(s) the benefit that derives of their participation in a legal entity, a trust or any other legal figure or legal act, or those who ultimately exercise the rights for use, enjoyment, or disposal of a good or service or a transaction is performed on its behalf, even when the above is done contingently. 
2. Directly, indirectly, or contingently, exercise the control of the legal entity, trust, or any other legal figure. The exercise of control takes place when an individual or group of individuals, by means of shares’ ownership, an agreement, or any other legal act, may:
   • Directly or indirectly impose decisions in the general shareholders meetings, partners, or equivalent corporate bodies, or appoint or dismiss the majority of the counselors, administrators, or its equivalents. 
   • Maintain the ownership of the rights that allow the voting of more than the 15% of the share capital or good, either directly or indirectly.
   • Directly or indirectly lead the administration, strategy or principal policies of the legal entity, trust, or any other legal figure.

Regarding trusts, the settlor(s), fiduciary, trustee(s), and any other individual involved that ultimately exercise the effective control in the agreement, even when contingently performed, will be considered as CBs.

In case of committing an infringement deriving of the breach of the referred obligation, the penalties will vary from MXN $500,000.00 and MXN $2’000,000.00, as the case may be.

Finally, rules 2.8.1.20., 2.8.1.21. and 2.8.1.22. of the Miscellaneous Tax Resolution for 2022, states the criterion for the determination of the CB condition, as well as the mechanisms and parameters to identify, obtain and conserve the necessary information that must be included in the accounting records.

It is important to note that the incorporation of the CB figure for tax effects is the result from the Financial Action Task Force’s work and definition regarding the prevention of operations involving resources derived from illicit sources and terrorist funding. Consequently, such figure was introduced in the evaluations and agreements performed by the Global Forum on Transparency and Exchange of Information for Tax Purposes.

The several information that must be collected, conserved, and updated by the legal entities, trusts or any other legal figures in terms of this new obligation is too extensive; moreover, there will be complex cases where some type of legal secrecy could be arise. Consequently, this new obligation entails a considerable effort of corporate and legal control, and it will be essential for such legal entities, trusts and other legal figures to knows precisely their real and actual situation regarding the fulfillment of corporate obligations, and therefore its tax obligations.

Recommendations

It is of prime importance that all legal entities, trusts or other legal figures have the corporate and legal information that evidences their BCs, and such information is certain, complete, and up-to-date and within reach of the tax authorities through the implementation of the internal controls that result necessary in order to prevent and mitigate whichever contingency in tax matters.

Mexico City, February 24, 2022

Comments

The rules 2.7.7.1., 2.7.7.2., 2.7.7.3., 2.7.7.4., 2.7.7.5., 2.7.7.6., 2.7.7.7. y 2.7.7.8. of the MTR for 2022

did not suffer any substantial changes or modifications with respect to rules 2.7.1.9., 2.7.1.51., 2.7.1.52., 2.7.1.53., 2.7.1.54., 2.7.1.55., 2.7.1.56. and 2.7.1.57. of the Third Amendments Resolution to the MTR for 2021; however, rules 2.7.7.9., 2.7.7.10, 2.7.7.11. and 2.7.7.12. of the MTR for 2022 are new, which essentially establish the following:

The rule 2.7.7.9. indicates that those who provide the cargo transportation service and the owners of cargo vehicles, whether they are residents abroad or incorporated in accordance with foreign law and do not have a permanent establishment in national territory, may cover the transportation of domestic goods and/or goods of foreign origin in national territory with: (i) the customs documentation that proves their legal importation, or that proves their lawful tenure, transportation or handling, (ii) the sales note issued by the federal tax authority or institution authorized by it, and (iii) the e-invoice.

The rule 2.7.7.10. highlights that companies residing in national territory that provide the international transport service of general and specialized cargo of national or nationalized goods for export, must issue the “income” type e-invoice with BLS registering the entire service and indicating as final destination the address located abroad and the data of the means or mode of transport that will be used for its transfer, when the provision of the service begins in national territory and concludes abroad.

If there is a change in the mode or means of transport for the border crossing and said transport belongs to the same carrier, the latter must issue a “transfer” type e-invoice with BLS recording the data of the mode or means of transport and must relate the “income” type e-invoice that covers the entire service.

The rule 2.7.7.11. states that the owners, possessors or holders of national or nationalized goods to carry out their definitive exportation, will be able to prove their transport in national territory: (i) by means of the printed representation, on paper or in digital format of the “transfer” type e-invoice with BLS, if they use their own means and the transportation is to a warehouse or distribution center located abroad, and (ii) when there is a change in the mode or means of transport for the border crossing and this does not belong to the owner of the goods, by means of an “income” type e-invoice with BLS recording the data of the new mode or means of transport listing the “transfer” type e-invoice mentioned above. In the event that the aforementioned mode or means of transport belongs to the owner of the goods, it should only issue a “transfer” type e-invoice without BLS listing the initial e-invoice.

The rule 2.7.7.12. specifies that in the case of: (i) local transfer of goods, (ii) provision of parcel and courier services, (iii) provision of transfer of funds and securities services at local level, (iv) provision of towing cranes and towing and salvage cranes services at local level, and (v) provision of consolidated goods transport services, the taxpayers who transport goods using light cargo vehicles with characteristics less than a “C2 truck” in accordance with the NOM-012-SCT-2-2017 (i.e. Mexican Official Standard or MOS) or the MOS that replaces it, and does not exceed the weights and dimensions of said truck, or if the vehicles transport trailers without exceeding the weights and dimensions of the aforementioned “C2 truck”, it will be understood that they do not pass through sections of federal jurisdiction, as long as in its route the length of the federal section that is intended to be used does not exceed 30 kilometers.

Finally, the Forty-seventh Transitory Article of the MTR for 2022 establishes that the provisions set forth on all the aforementioned rules will be applicable as of January 1^st, 2022. It will not be considered to be committed, either a violation for not having an e-invoice with BLS, or the crime of smuggling, if before March 31^st, 2022, the BLS does not comply with all the requirements contained in the “Instructions for filling out the e-invoice to which the Bill of Landing Supplement is incorporated”.

Recommendations

Although an e-invoice with a BLS incomplete may be issued during the first quarter of 2022, it is essential to have a broad and clear understanding of their requirements in order to perform an appropriate management, coordination, and control of goods as of January 1^st, 2022, with the purpose to prevent and mitigate possible tax contingencies and the probable commission of smuggling.

If you have any questions regarding the foregoing, please do not hesitate to contact us.

Mexico City, December 28, 2021

Likewise, on October 26^th, 2021, the update of the support information to comply with the aforementioned provisions was published on the TAS website, including: (i) the BLS catalogs; (ii) the instructions for filling out the e-invoices with BLS, and (iii) frequently asked questions.

Finally, also on October 26^th, 2021, the Senate approved in all its terms the Chamber of Deputies Opinion who had previously approved without changes the Tax Amendment Project for 2022 (Tax Amendment) presented on September 8^th, by the Federal Branch. Said Tax Amendment is pending of publication in the Official Gazette of the Federation.

Comments

Most likely the provisions contained in the aforementioned rules related to the use of the BLS that should be included in the e-invoice will not suffer formal or substantial changes, although there are specific final guidelines, we consider that these are unclear, confusing and cause uncertainty, depending on who provides the goods transportation services, or who transfers them, being: (i) transportation of general and specialized cargo by land, rail, sea or air, (ii) parcel and courier, (iii) towing cranes and towing and salvage cranes and vehicle storage, (iv) transfer of funds and securities or hazardous materials and waste, and (v) other services that involve the transportation of goods.

On the other hand, it is important to note that among the many amendments that the Federal Tax Code suffered as a result of the approved Tax Amendment, it is the addition of section XXII to article 103, which states that the commission of the crime of smuggling happens when goods are transferred by any means of transportation in Mexico without having the corresponding e-invoice to which the BLS is incorporated.

This new provision is highly regrettable in addition to its lack of legal technique, since the particularities that would result in the criminal type are not included in the Law, but in administrative rules that may change at any time under the discretion of the tax authority, undermining also against the presumption of innocence.

Recommendations

We insist, it is essential to have a broad and clear understanding of the e-invoices and BLS requirements, to perform an appropriate management, coordination, and control of goods (from January 1^st, 2022, given that in December 2021 it will not be mandatory) with the purpose to prevent and mitigate possible tax contingencies and the probable commission of smuggling.

If you have any questions regarding the foregoing, please do not hesitate to contact us.

Mexico City, October 28, 2021

On September 29^th, 2021, the Third Early Version of the Third Amendments Resolution to the Miscellaneous Tax Resolution for 2021 (MTR) was published on the Tax Administration Service (TAS) website, in which are modified the rules 2.7.1.7. and 2.7.1.9, and added the rules 2.7.1.51., 2.7.1.52., 2.7.1.53., 2.7.1.54., 2.7.1.55., 2.7.1.56 and 2.7.1.57., all related with the use of the Bill of Landing Supplement (BLS) that must be include in the Internet Digital Tax Receipt (e-invoice).

Comments

The aforementioned rules establish the following:

The rule 2.7.1.7. specifies that the printed representation of an e-invoice in which the BLS is incorporated, in addition to the requirements provided for in said rule, must include the data established in the “Instructions for filling out the e-invoice to which the Bill of Landing Supplement is incorporated” (Instructions) that is published on the TAS website.

The rule 2.7.1.9. sets forth the obligation to issue an e-invoice of “income” type and incorporate the corresponding BLS, to those taxpayers who render services of: (i) transportation of general and specialized cargo by land, rail, sea or air, (ii) parcel and courier, (iii) towing cranes and towing and salvage cranes and vehicle storage, (iv) transfer of funds and securities or hazardous materials and waste, and (v) other services that involve the transportation of goods.

Said rule states that when the transfer of goods service is provided without having the e-invoice of the “income” type with BLS or the latter does not comply with the Instructions or with the “Standard of the Bill of Landing Supplement” (Standard), both whoever contracts the service as well as whoever provides it, will be responsible to the authority when it detects irregularities in the BLS data.

The rule 2.7.1.51. establishes that (i) the owners, possessors or holders of goods which form part of their assets, and (ii) the intermediaries or transport agents, in both cases that transfer such goods with their own means, may demonstrate said transportation with the printed representation, on paper or in digital format, of the e-invoice of the “transfer” type to which the respective BLS is incorporated.

The rule 2.7.1.52. exempts taxpayers who provide general and specialized cargo land transportation services that do not transit through sections of federal jurisdiction, from incorporating the BLS into the e-invoice of “income” type, as long as they meet certain requirements. Same situation for the owners, possessors or holders of goods which form part of their assets.

Respectively, the rules 2.7.1.53., 2.7.1.54., 2.7.1.55. and 2.7.1.57. exempt from incorporating the BLS into the e-invoice of “income” type meeting various requirements to those taxpayers who provide services of: (i) parcel and courier, (ii) transfer of funds and securities; (iii) towing cranes and towing and salvage cranes and vehicle storage, and (ii) transportation of identified consolidated cargo of goods, as long as in these cases they do not transit through sections of federal jurisdiction.

Finally, the eleventh Transitory Article of the First Amendments Resolution to the MTR is modified, specifying that the use of the BLS will be mandatory as of December 1^st, 2021; however, it is noted that during such month it will be understood that such obligation is fulfilled in those cases of taxpayers who issue an e-invoice to which a BLS is incorporated that does not comply with the Instructions and the Standard.

Recommendations

In addition to the comments and recommendations that we indicated in our Newsletter of July 13^th, 2021, due to these new rules it is essential to have a broad and clear understanding of the e-invoices and BLS requirements, for an appropriate management and control of goods that prevent and mitigate possible tax contingencies.

If you have any questions regarding the foregoing, please do not hesitate to contact us.

Mexico City, October 5, 2021

Comments

Mainly, the publications that must be made through the PBC are the following:

• Notice for a General Incorporation Meeting.
• Notice for Shareholders’ Meeting.
• Notice for Participation Certificate Holders’ Meeting.
• Notice for Meetings requested by the authorities.
• Shareholders’ Meeting agreements that approve the increment or reduction of the share capital.
• Balance sheet of the negotiation of foreign companies.
• Balance of companies that issue obligations.
• Financial statements, notes, and Commissioner’s opinions.
• Share capital reductions.
• Merger agreements, the last balance sheet of every company involved in the merger and the system established for the termination of the liabilities.
• Spin-off resolutions.
• Transformation agreements.
• Exhibition decree whose amount or term is not included in the stock.
• Agreements regarding partial distributions (liquidation).
• Final liquidation balance sheet.
• Results regarding sweepstakes of redeemed shares.
• Transportation employers’ regulations.
• Other publications set forth in commercial provisions according to the catalog provided in the PBC.

The PBC allows the performance of the following operations: (i) query, which allows the search of information and download of ballots; (ii) publication, which refers to the submission and delivery of the information that needs to be diffused in terms of the applicable provisions; and (iii) rectification, which allows the amendment and correction of the publications made.

It should be noted that the information that is generated, delivered, received, stored and/or filed in the PBC is considered as a data message in terms of article 89 of the CC; so these messages, as well as documents signed with the Advanced Electronic Signature produce the same effects that those with an autograph signature and have the same evidential value.

Recommendations

We suggest verifying the correct content of all the legal acts that the commercial provisions compel to be published through the PBC and, when applicable, amend whichever omission or mistake in the information submitted, making it necessary to address it through a Compliance Program in Corporate matters.

If you have any questions regarding the foregoing, please do not hesitate to contact us.

Mexico City, August 18, 2021

The rule 2.7.1.8. of the Miscellaneous Tax Resolution (MTR) for 2021, as well as rule 2.7.1.9. of the Fifth Early Version of the Second Amendments Resolution of the aforementioned MTR (Fifth Version), basically establish the mandatory use of the Supplements that include tax information to the “Bill of Landing” that will be published on the Tax Administration Service’s website, which will be necessary to incorporate them into the Internet Digital Tax Receipts (e-invoices) related to the goods that are transfer by land, rail, sea, air, or river in order to be able to prove the transport of such goods.

Comments

The said rule 2.7.1.9. highlights that when the owners of the goods are the ones who transfer them in national territory by land, rail, sea, air, or river, they must issue the e-invoices of “transfer” type and incorporate the corresponding “Bill of Landing” Supplements to prove the transport of your goods.

On the contrary, when the transfer of the aforementioned goods is carried out by a taxpayer that render the cargo transport services by land, rail, sea, air, or river, he will be the one who must issue the e-invoices of “income” type, as well as “Bill of Landing” Supplements to prove the transport of such goods.

Likewise, all taxpayers that are related to the transfer of goods must issue the e-invoices along with the “Bill of Landing” Supplements of “transfer” type or of “income” type, depending on their participation in the transfer operation.

Finally, in order for the carrier to prove the lawful stay and/or tenure of the goods of foreign or domestic origin, he must have the corresponding e-invoices that include the “Bill of Landing” Supplements.

The obligations contained in rule 2.7.1.9. will enter into force on September 30, 2021, in accordance with the provisions set forth in the First Transitory article of the Fifth Version in connection with the Eleventh Transitory article of the First Amendments Resolution of the MTR for 2021.

The foregoing will imply that in connection with this new information (i.e. “Bill of Landing” Supplements) the taxpayers must:

• Adapt, understand, and quickly apply the Annex 20 of the MTR consisting of a very technical catalog under which e-invoices must be issued.
• Know in detail several information such as the kinds, types, quantities, routes, and destinations of the goods transferred in Mexico, as well as the type and operation of the land, rail, sea, air, or river transport in question.
• Know specific data such as the year of the unit, railroad, aircraft or vessel, its registration or plate, its policy and name of the insurer, among others.

However, on a day-to-day basis that involves the transfer of goods within the Mexican territory, the land, rail, sea, air, or river transport used, on many occasions is not carried out in a single-route trip and with a single unit, railroad, aircraft, or vessel, on the contrary, they are executed on several trips and routes in which, even two or more means of transport of different nature intervene (e.g. land, rail, and air).

Recommendations

Incorporated the “Bill of Landing” Supplements will cause a series of problems and complexities in the transportation of goods, both for the owners and for the carriers and, even important tax contingencies, resulting essential to know properly the e-invoices requirements, redefine and update compliance programs related to management and control of goods, as well as redesign or create detailed databases or data systems.

If you have any questions regarding the foregoing, please do not hesitate to contact us.

Mexico City, July 13, 2021