Application of surcharges on the tax on remuneration for personal work – The application of surcharges whose purpose is purely collection and not extra-fiscal is not appropriate, since they become simple percentages of the taxable base of the tax, which violates the principle of tax proportionality.
PROBLEMS
The Executive Branch of the State of Baja California issued the Revenue Law of the State of Baja California for the fiscal year 2023, through which, in its article 3, fourth paragraph, it imposed two surcharges of 1.20% and 1.25% on the basis of the Tax on Remuneration for Personal Work, which obliges the subjects who pay said tax to pay such surcharges.
ACTIONS AND STRATEGIES IMPLEMENTED BY STRATEGO.
At Stratego, our professionals specialized in Tax matters, carried out a meticulous analysis of the constitutionality of the legal norm, filing the Indirect Amparo Lawsuit before a District Court in the State of Baja California, where the unconstitutionality of the second, third and fourth paragraphs of article 3 of the Baja California State Revenue Law for the fiscal year 2023 was claimed, through which two additional rates or surcharges of the Personal Work Remuneration Tax of 1.20% and 1.25% were imposed, which in terms of the aforementioned Law, are calculated on the basis established in article 151.14 of the Finance Law of the State of Baja California, whose resources obtained by the Executive Branch of the State of Baja California, would be used to exercise directly and indirectly the strengthening of higher education, public security and infrastructure in the State; however, it was considered that this was unconstitutional, because the alleged non-fiscal purposes pursued were not sufficiently motivated nor was the need for such a measure justified. In addition, it was considered that the purposes pursued by the aforementioned surcharges were not extra-fiscal, but to collect to cover programmable public spending, which does not take into account the contributory capacity of the parties responsible and, therefore, violates the principle of tax proportionality.
RESULT.
As a result of the legal strategy implemented by our firm, the District Court granted the Amparo and Protection of the Federal Justice to the complainant company, ruling that in effect the surcharges of 1.20% and 1.25% imposed in Article 3 of the Revenue Law of the State of Baja California for the fiscal year of 2023, are unconstitutional, as the extra-fiscal purpose that they allegedly pursued was not duly motivated, since they were aimed at satisfying public spending, which distorted the purpose of the surcharges, and, therefore, departed from the provisions of Article 31, section IV of the Constitution, because the percentages of 1.20% and 1.25% became part of the taxable base, which violated the principle of tax proportionality.
Thus, the amparo was granted to the effect that the surcharges of 1.20% and 1.25% of the Personal Work Remuneration Tax, provided for in Article 3, fourth paragraph, of the Baja California State Revenue Law, for the fiscal year 2023, will not be applied to the complainant.
It should be noted that the effects of the Amparo judgment were not only determined in terms of the declaration of UNCONSTITUTIONALITY of the Decree (with which the overrates of the tax should not be applied to the complainant) but also ordered the State Government to RETURN TO THE COMPLAINANT THE AMOUNTS THAT SHE HAD PAID FOR SAID TAX, WITH THEIR CORRESPONDING UPDATE; with which real protection and reparation was obtained for the flagrant violations of fundamental rights that were generated with the determination of the aforementioned Tax.
For several years, Asesores Stratego has represented numerous companies throughout the country, in Tax and Foreign Trade matters, under a priority objective, to protect the security and assets of its clients.
This success story undoubtedly responds to the excellent defense strategies implemented by our legal practice area, which has more than 18 years of experience and the professionalism with which each of the cases are handled.
With the granting of this protection, an important precedent is achieved in tax matters and the rights of the clients we represent are protected.
Our economic research area is kept as up-to-date as possible, generating and simplifying information of international interest for decision making, which is why Stratego is your best option if you want to invest in Mexico.
With a long history at Stratego, we have become experts in the field of individuals or companies related to simulated activities. We have the ability to challenge these assumptions and offer concrete and effective solutions in this complex and delicate area.
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