2022 Tax Reform Initiative.

On September 8, 2021, the Federal Executive presented before the Chamber of Deputies a “Tax Reform Initiative that amends, adds and repeals several provisions of the Income Tax Law, the Value Added Tax Law, the Production and Services Tax Law, the Federal Law on the Tax on New Automobiles, the Federal Tax Code and other laws” with three main objectives: (i) eliminate various tax avoidance mechanisms; (ii) expand the taxpayer base through the creation of the Simplified Trust Regime (RSC) for individuals and corporations; and (iii) prevent labor subcontracting (outsourcing).

Reforms to eliminate tax avoidance mechanisms and broaden the tax base

• Accumulation of income from property consolidation.

The initiative proposes to amend Article 18 of the Income Tax Law (LISR), to prevent taxpayers from dismembering the property through the sale of the bare ownership and to reserve the usufruct, seeking that, subsequently, the bare owner consolidates the property without being considered that there is a sale, thus avoiding the accumulation of income.

Therefore, a new section is introduced to the aforementioned article so that the bare owners must accrue the usufruct right as income.

• Business reason in corporate restructurings.

The initiative proposes to amend Article 24 of the Income Tax Law to impose additional obligations for taxpayers that intend to carry out a corporate restructuring.

In the event of not complying with the requirements or if there is no business reason in the opinion of the tax authority, the authorization to sell the shares at tax cost will be without effect.

• Deduction of uncollectible accounts.

The requirements for the tax deduction of uncollectible accounts are tightened by requiring the conclusion of the judicial and arbitration collection procedures and not only their interposition.

• Restriction on the transfer of tax losses.

The transfer of tax losses in the case of spin-off of companies is restricted and it is clarified that they must be limited to the spun-off companies that carry out the same “line of business” as the spun-off company that generated them and that transferred them by the spin-off agreement.

• Obligations between related parties.

Regarding the obligations with respect to transactions between related parties resident in Mexican territory (local related parties), it is now required that they have the “supporting documents” with which they can demonstrate that the amount of their accumulated income or authorized deductions were made at market prices and that they applied the methods set forth in the Income Tax Law for these cases. Therefore, now local related parties must also have the transfer pricing study to support their income and deductions.

• Mandatory tax report.

The “mandatory tax report” is reestablished for taxpayers that obtain cumulable income greater than $876’171,996.50 M.N. or for those companies that have shares placed among the general investor public through stock exchanges. The tax report must be prepared by a registered public accountant.

Reforms to broaden the taxpayer base

• Simplified Reliance Regime (RSC) for individuals.

The initiative proposes the inclusion of a RSC to facilitate the payment of income tax and broaden the taxpayer base.

Thus, taxpayers, individuals, who only carry out business or professional activities or grant the temporary use or enjoyment of goods, may choose to pay their taxes under this regime, provided that in the immediately preceding fiscal year their income did not exceed 3.5 million pesos.

Taxpayers will determine the monthly payments considering the total income received for the activities referred to in the first paragraph of this article and covered by the CFDIs effectively collected, without including value added tax, and without applying any deduction, considering the following table:

It is important to point out that the reform excludes from this regime several individuals, among others, partners or shareholders of legal entities or residents abroad who have one or more permanent establishments in the country.

• RSC for legal entities.

The initiative states that, in order to reactivate the economy and promote investment, this tax regime is created for the benefit of legal entities resident in Mexico only incorporated by individuals, whose total income in the immediately preceding fiscal year does not exceed 35 million pesos, or legal entities resident in Mexico only incorporated by individuals who start operations and who estimate that their total income will not exceed the referred amount.

Taxpayers opting for this RSC will be able to deduct, among others: (i) acquisitions of merchandise and raw materials; (ii) investments; and (iii) contributions payable by employers paid to the Mexican Social Security Institute.

Reforms to avoid labor subcontracting

The initiative sets forth two main reforms to avoid labor subcontracting; on the one hand, it increases the requirements for the deduction of payments made for technical assistance, technology transfer or royalties and, on the other hand, it set sorth as a tax fraud offense the simulation of the rendering of independent professional services.

The aforementioned amendments should not be considered as exhaustive since the initiative includes several additional changes, such as the expansion of the notions that integrate the concept of “original amount of the investment” in order to depreciate over the useful life of the asset or investment and avoid that such items become deductible as expenses in a single period.

Should you require further information in relation to this topic or advice, please do not hesitate to contact us.

Yours sincerely,

Cannizzo