Tax Interest Guarantee

Based on the International Trade Acceleration Support Program of the International Accelerator of the Americas for fiscal year 2020, it was indicated that taxpayer taxation increases, and with it also the revisions. To make the issue even more worrying, the economic impact due to the suspension of most economic activities due to COVID-19 caused that, in many cases, the payment of contributions was affected. As a result, tax credits were also more noticeable than in past years.

However, there are different means of defense (which are extensively exposed in this publication), however, it is prudent to mention that the Treasury does not litigate without guarantees, regardless of the result of the means of defense; this is known as the Tax Interest Guarantee. For the above, it is necessary to know what type of guarantees exist and at what time they proceed.

ORIGIN OF THE GUARANTEES OF THE FISCAL INTEREST

In accordance with Article 142 of the CFF, the Tax Interest Guarantee is applicable in the following cases:

• • When the suspension of the administrative enforcement procedure is requested, even if such suspension is requested before the Federal Court of Administrative Justice.
  • When an extension is requested for the payment of tax credits or in the event that two partialities have been stopped, it must be submitted within the thirty days after the second unfulfilled partiality should have been paid.
  • In the trial of indirect Amparo or Trial of Nullity and the payment of the debt was not made.
  • Within thirty days of the notification of the resolution made by the tax authority taking effect.

Likewise, for the guarantee to be qualified and accepted, the authority considers that the value of the goods must be sufficient to cover the updated tax debit, plus the accessories caused (surcharges) and those caused in the twelve months following its granting. Otherwise, the guarantee will be considered insufficient and the authority will proceed to carry out collection actions for the unsecured party. It is worth mentioning that, according to the SAT, different forms of guarantee can be combined to cover the total amount to be guaranteed.

WARRANTY MODES

The types of guarantees are as follows:

• • Deposit Note: It is a cash guarantee displayed at Banco del Bienestar, S.N.C. (formerly BANSEFI).
  • Letter of Credit: It is a payment instrument through which a banking institution issues a letter where said institution undertakes to pay a certain amount on behalf of the beneficiary. This letter is irrevocable and is valid for one year and must contain the data of the applicant and the debit.
  • Pledge: This guarantee is constituted on movable property for 75% of its value. Such assets must be free of encumbrance. It is carried out through a legal delivery; that is, a documentary where the authority and taxpayer agree to leave the assets in the possession of a third party or in the possession of the same taxpayer, as long as the law allows it.
  • Mortgage: It is constituted on 75% of the value of the appraisal or cadastral value. This guarantee is made by public deed, which must be registered in the Public Registry of Property.
  • Bond Policy: It is a document where a guarantor undertakes to comply with the payment of the taxpayer’s tax debts before the authority, in case it does not do so, so said guarantor must check its solvency. This procedure is done before the tax authority or public notary.

In case of being a natural person, at least 10% of your income declared in the fiscal year must be guaranteed. If you are a legal entity, you must not exceed 10% of your paid-up share capital and you must not have tax losses for Income Tax purposes in the last two regular fiscal years.

Seizure in the administrative route through tangible Movable Property: It is constituted for 75% of the value of movable property through a seizure diligence, without the extraction of the same being carried out. In this case, it is the tax authority that determines who is the depositary of such assets.

Seizure in the administrative route through Urban Real Estate: It is constituted by 75% of the cadastral value or the appraisal through a seizure procedure. The tax authority is the one who determines who is the depositary of the property.

Seizure in the administrative way through negotiation: It is constituted by 75% of the cadastral value or the appraisal through an embargo diligence. The tax authority is the one who determines who is the depositary of the property.

Value Title: A Value Title is a document (essentially transferable) that contains a right of collection, as is the case with checks, bills of exchange or promissory notes. These are considered movable property. In order to guarantee tax debts by this means, it is essential to demonstrate the impossibility of guaranteeing the entire debt by any other modality and the value that the authority discretionally sets will be accepted.

Credit portfolio: It consists of the set of obligations that the taxpayer has pending collection in different documents that he has in his favor, so that, where appropriate, the authority has the right to collect said portfolio and thereby cover the tax debit. This form of guarantee shall be accepted at the value to be fixed at its discretion by the tax authority.

The requirements of each of the modalities of Guarantee of the Fiscal Interest depend on the nature and scope of the same, however, there are some that are common to all, for example: the Form of Guarantee of the Fiscal Interest, duly completed and signed by the taxpayer or legal representative, means of identification of personality.

For individuals: official photo identification and in some cases, marriage certificate. For the assets that are under the regime of conjugal society, a duly signed letter is necessary, where the third party (spouse) expresses his acceptance to constitute himself as a joint and several obligor.

For legal entities: articles of incorporation and its modifications, notarial instrument accrediting the personality of the legal representative, Official identification of the legal representative, among others.

In certain cases a photographic archive is necessary where the property, execution expenses, etc. can be identified. For all it is necessary to identify name and business name, RFC, tax address and debit data (total amount to be guaranteed, date, issuing authority, number of the determinant).

INCREASE IN THE GUARANTEE OF TAX INTEREST

From the day following one year of acceptance of the guarantee, the taxpayer may extend the guarantee through the Tax Interest Guarantee Format. In this format it must be indicated that it is an extension of guarantee, the type of guarantee offered and the amount of the unsecured difference in the tax credit, additionally you must attach the evidentiary documentation corresponding to the guarantee offered.

Subsequently, the authority will analyze and qualify the increase in the guarantee and will decide whether it is accepted or not. In the event that the taxpayer does not extend the guarantee, or in case it is not accepted, the authority may proceed to require the payment and / or seizure of goods for the difference of the unsecured amount.

REPLACEMENT OF TAX INTEREST GUARANTEE

If the taxpayer has a guarantee of a different modality than the one previously offered, he may exchange it before the authority through the Tax Interest Guarantee Format, in which he must indicate the replacement of the guarantee and present the evidentiary documentation corresponding to the new guarantee offered.

Subsequently, the authority will analyze and qualify the replacement of the guarantee and will decide whether it is accepted or not.

If the guarantee is accepted, the authority will not carry out the administrative enforcement procedure, provided that the tax claim is duly secured.

REDUCTION OF GUARANTEE OF THE FISCAL INTEREST

If the taxpayer partially paid the tax credit, or by judgment it was determined that the debit proceeds only partially, he can recover part of the guarantee he granted. To do this, you must submit the Tax Interest Guarantee Form accompanied by a free letter requesting the decrease of the guarantee and proof of payment, or the resolution where it was partially favored.

The authority shall carry out the analysis and decide whether the reduction of the guarantee is appropriate or not.

CANCELLATION OF TAX INTEREST GUARANTEE

If the taxpayer paid the tax credit in full, or it was determined by judgment that it was null and void, he will be able to recover the guarantee in full. To do this, you must present the Tax Interest Guarantee Form accompanied by the payment format for the entire debt or the resolution that canceled the tax credit.

The authority shall carry out the analysis and decide whether the cancellation of the guarantee is appropriate or not. In the event that the taxpayer does not follow this procedure of requesting cancellation of guarantee, the authority will notify the taxpayer of the cancellation of the guarantee and will make it available to him, according to the type of guarantee in question.

 

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