This article of the Tax Code is the SAT's tool to nullify the effects of operating with companies that carry out non-existent activities.
Some of our subscribers have heard of the "SAT blacklist". When it is published, the targeted businessman should really be concerned, and in this newsletter we explain briefly why.
The current Federal Tax Code has incorporated a concept called "non-existent activities". These are defined in the first paragraph of article 69-B of the same, and refer to operations carried out by companies that do not have structures to carry out their "supposed" activities. The idea makes sense, if you have no assets, no employees, no infrastructure (what does "infrastructure" mean?), or material capacity directly or indirectly (we can think that it refers to subcontracting), or are found as "non-localized".
To the letter it reads as follows:
"Article 69-B. When the tax authority detects that a taxpayer has been issuing vouchers without having the assets, personnel, infrastructure or material capacity, directly or indirectly, to render the services or produce, market or deliver the goods covered by such vouchers, or that such taxpayers are not located, it will be presumed that the transactions covered by such vouchers do not exist.In the event that such taxpayers are not located, it will be presumed that the transactions covered by such vouchers are non-existent.
In the event that the SAT detects a businessman of whom it has elements to suppose that he is located in the 69-B assumption, it will carry out a procedure that is forced, before concluding that it is a question of "nonexistent" operations. For which, precisely the second paragraph of the same article explains that it would be as follows:
- Proceeds to notify that it is in this situation.
- Forms of notification:
- Tax Mailbox
- SAT website
- Official Gazette
- Forms of notification:
- A period of 15 days begins in order to refute and state what is legally convenient, providing documentation and information. This term starts from the last notification that has been carried out. It is not clear if the authority must use all 3 methods of notification, or if one is sufficient.
The provision is transcribed below (emphasis added):
...In this case, it will proceed to notify the taxpayers that are in such situation through its tax mailbox, the Tax Administration Service's website, as well as through publication in the Official Gazette of the Federation, so that such taxpayers may state before the tax authority what is in their best interest and provide the documentation and information they consider pertinent to disprove the facts that led the authority to notify them. For such purpose, the interested taxpayers will have a term of fifteen days as from the last of the notifications that have been made.
Once the evidence has been provided and the clarifications have been made, the authority will have a period of 5 business days to evaluate what has been provided. It is mandatory that the resolution be notified through the tax mailbox, on its web page and with publication in the Official Gazette, but only to those who the SAT continues to consider as subject of incurring in non-existent acts. The publication in the Official Gazette will always be later than 30 days after the notification in the tax mailbox or in the web page.
The code says it like this (highlighted is mine):
...Once said term has elapsed, the authority, within a term that shall not exceed five days, shall evaluate the evidence and defenses that have been asserted; it shall notify its resolution to the respective taxpayers through the tax mailbox and shall publish a list in the Official Gazette of the Federation and on the Tax Administration Service's website, only of the taxpayers that have not refuted the facts that are imputed to them and, therefore, are definitively in the situation referred to in the first paragraph of this article. In no case will this list be published before thirty days after the notification of the resolution.
The question is, what are the consequences if I continue to be considered as a generator of non-existent acts, because the answer is that the operations contained in your invoices do not produce tax effects, that is, they are neither deductible, nor are they cumulative, however, several collateral effects are derived from this, such as that the VAT paid is not creditable, and the person who paid for such operations should file complementary returns, and in the case of closed fiscal years, will have to prepare complementary returns to recalculate the ISR considering such expenses as non-deductible.
...The effects of the publication of this list will be to consider, with general effects, that the operations contained in the tax vouchers issued by the taxpayer in question do not produce and did not produce any tax effect.
The cost that this can represent for a bona fide purchaser can be really important, therefore, the same legal provision indicates the procedure that can be followed for the purchaser to validate with the SAT that his purchases were real, even though the SAT at the first moment would have considered that the seller faked operations, or in some way, these were nonexistent.
A term of 30 days is granted to prove before the SAT that the transactions were real or within the same term, they must correct their tax situation through complementary tax returns. In reality, there is no precision to determine from when the 30 days are counted, because the notifications are not made to the buyer, but to the one who invoiced.
...Individuals or legal entities that have given any tax effect to the tax receipts issued by a taxpayer included in the list referred to in the third paragraph of this article, will have thirty days following the date of the aforementioned publication to prove before the authority itself that they effectively acquired the goods or received the services covered by the aforementioned tax receipts, or they will proceed within the same period to correct their tax situation, through the corresponding supplementary return or returns, which must be filed pursuant to the terms of this Code.
The aforementioned article continues to create problems for those who have purchased from any of the listed taxpayers, because, if the authority carries out its verification faculties and detects that at the time indicated in the previous paragraph, the effective purchase or service received was not accredited, having resolved in favor of the taxpayer, in the clarification procedure, it will determine the resulting tax credits.
In the event that the tax authority, in the use of its powers of verification, detects that an individual or legal entity did not accredit the effective rendering of the service or acquisition of the goods, or did not correct its tax situation, in the terms provided in the preceding paragraph, it will determine the corresponding tax credit or credits. Likewise, the operations covered by the tax vouchers mentioned above will be considered as simulated acts or contracts for the purposes of the offenses provided in this Code."
And as a final part of the provision, it is specified that the transactions covered by the tax receipts issued by such taxpayers will be considered as simulated acts for the purpose of tax crimes. This crime is committed by those who issue, acquire and sell the vouchers issued. The penalty for whoever incurs in this conduct is between 3 to 6 years of imprisonment.
Article 113. A penalty of three months to six years imprisonment shall be imposed on the person who:
...
III. Issues, acquires or sells tax vouchers that cover non-existent or false transactions or simulated legal acts.
Conclusions:
It is very important, I would say, mandatory, to review on a monthly basis the list published by the SAT regarding the taxpayers indicated in Article 69-B of the Tax Code.
Likewise, it is very important to consult the tax mailbox as soon as you receive a notification.
Some customers have lost track of the email they registered when the mailbox mechanism was generated.
It is interesting to remember at this moment the penalties that correspond to those who carry out operations with companies that do not carry out real operations, because, beyond the issue of the cost of all the differences and fines that could be generated, they also fall into a prison penalty.
If you have any doubts regarding any of the operations that could be considered among those mentioned in this bulletin, please do not hesitate to contact us to receive the advice of one of our Partners.
