TAX, CRIMINAL LAW and COMPLIANCE. Developments regarding the rules relating to the Bill of Landing Supplements October 28, 2021
On October 25th, 2021, the Fifth Early Version of the Third Amendments Resolution to the Miscellaneous Tax Resolution for 2021 (MTR) was published on the Tax Administration Service (TAS) website, which contains the rules 22.214.171.124., 126.96.36.199., 188.8.131.52., 184.108.40.206., 220.127.116.11., 18.104.22.168., 22.214.171.124., 126.96.36.199 and 188.8.131.52., all related to the use of the Bill of Landing Supplement (BLS) that must be included in the Internet Digital Tax Receipt (e-invoice). Such rules did not suffer any modification with respect to those contained in the Fourth Early Version.
Likewise, on October 26th, 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 26th, 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 8th, by the Federal Branch. Said Tax Amendment is pending of publication in the Official Gazette of the Federation.
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.
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 1st, 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