Fiscal matter courts, continuously resolve in favor of taxpayers several lawsuits against fiscal matter related acts or laws. Analyze the most important criteria and judgments.
-A taxpayer can not be subjected to fiscal investigation twice. (The correct application of non bis idem).
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The innovations to fiscal law have experienced a significant turnaround in the past years. The non bis in idem principle in fiscal subject matter is a proof of it, where it has resulted that the fiscal authorities can not audit a same taxpayer twice for the same fiscal year and the same tax obligations and besides that, they can not perform two audit simultaneously, even though different periods and fiscal years are involved. This analysis derives from the genesis of the last paragraph of article 46 of the Federation’s Fiscal Code, where the authority is restricted from auditing a taxpayer simultaneously, even in the event different periods and fiscal years are involved, since the aforementioned provision requires that an audit be concluded, before starting a second audit. While article 19 of the Federal Taxpayer Rights Law, prevents the authority from auditing a same period and a same tax obligation for a second time. A situation that was not being respected by the fiscal authorities of our country. Accordingly, any taxpayer that has undergone two simultaneous audits, may declare as annulled the second one based on said principle and with respect to those that have already been audited for a fiscal year and tax obligations, the authority finds itself restricted from trying a determination for a second time. We invite you to explore this opportunity for the benefit of your company. |
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- Limitation of the deduction of social welfare expenses referred to by article 31, section XII of the LISR. Unconstitutional. (The violation to the principle of the tax obligation proportionality)
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JURISPRUDENCE THESIS NUMBER 130/2006 (PLENARY). ARTICLE 31, SECTION XII, OF THE RELATED TAX LAW, UPON RESTRICTING THE DEDUCTION OF SOCIAL WELFARE EXPENSES, VIOLATES THE TAX OBLIGATION PROPORTIONALITY PRINCIPLE. (LEGISLATION IN FORCE AS OF JANUARY 1, 2003). The aforementioned precept, upon restricting the deduction of the social welfare expenses, by conditioning that the related benefits are to be of general nature, being understood that said requirement is complied with among other cases, when said disbursements – excluding the contributions of social welfare – are on an arithmetic average basis per each non-union worker, in an amount equal or lesser than the deductible disbursements for the same concept carried out by each union worker; and by provisioning that when the employer does not have union workers, the social welfare benefits may not exceed ten times the overall minimum wage of the geographic area to which the worker corresponds, elevated to a year, violates the tax obligation proportionality principle contained in section IV of article 31 of the Political Constitution of the United States of Mexico. The foregoing happens to be so, by virtue of numeral 31, section XII of the Income Tax Law in force as of January 1, 2003, obligates individuals to contribute to public expense in accordance with an economic and fiscal situation that does not reflect its actual tax payment capacity, since they are forced upon determining a profit that their operation does not generate, on the understanding that the payments that a company makes for social welfare expenses certainly has an effect in the determination of their tax payment capacity. We invite you to continue reading and taking advantage of this resolution. |
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