The Concluding Agreement as an Alternative Means of Defence.

The Taxpayer’s Defense Attorney’s Office (hereinafter PRODECON) is a decentralized, non-sectorized public body with functional and managerial technical autonomy, which is specialized in the tax area and provides free advice, guidance, defense and legal representation of taxpayers before the acts carried out by the tax authorities in which it is presumed that their rights are violated. Concluding

Among many of the powers and attributions that this unit has, is the processing and relief of the Concluding Agreement, which is a mechanism in which PRODECON, once the powers of verification of the tax authorities referred to in sections II, III and IX of article 42 of the Fiscal Code of the Federation have begun,  acts as an intermediary between the tax authority and the taxpayer, at the request of the latter by submitting a free document, in which he must indicate the facts or omissions with which he does not agree and, in turn, attach the evidence he deems necessary to prove his saying; the foregoing in order to reach a consensual agreement between the parties and thus resolve the taxpayer’s tax situation.

The procedure for adopting the Concluding Agreement is provided for in articles 69-C, 69-D, 69-E, 69-F, 69-G and 69-H of the Fiscal Code of the Federation, as well as its Organic Law and its Organic Statute, which have very particular characteristics and grant great benefits to taxpayers, for which we will briefly explain the substantiation of said procedure as follows:

1. 1. As a precedent there must be an act of annoyance on the part of a tax authority towards a taxpayer, which must consist of one of the cases referred to in sections II, III or IX of article 42 of the Fiscal Code of the Federation, that is, the relief of a desk / cabinet review (fracc. II), the practice of a home visit (fracc.  III) or the electronic review procedure referred to in Article 53-B of the Federal Tax Code (fracc. IX).
   2. In turn, the taxpayer who is affected must submit a free letter addressed to the owner of the Federal Delegation of PRODECON corresponding to his domicile, in which he must describe the facts or omissions made by the tax authority that in his opinion violate his rights, attaching evidence and stating allegations about them.
   3. Once the letter has been received by PRODECON, the tax authority that is carrying out the act of nuisance is notified so that, first, it suspends the deadlines referred to in article 46-A of the Fiscal Code of the Federation and, secondly, to formulate a response regarding what is alleged by the taxpayer,  with which two assumptions can be presented; whether or not the authority agrees with the taxpayer’s claims. The first assumption directs the procedure for PRODECON to present the draft Conclusive Agreement to the parties and, if accepted, proceed to the subscription of the same, obliging the taxpayer to correct their tax situation in the terms that were set in the Conclusive Agreement and the supervisory authority to issue the Resolution,  once the taxpayer has demonstrated the correctness of his tax situation.
   4. In the event that the tax authority does not agree with the taxpayer’s claims, it must base and motivate its position, presenting the logical/legal arguments that support its statement, for which, the taxpayer may request PRODECON to carry out work tables in which the supervisory authority, the taxpayer and PRODECON participate as an intermediary,  where the taxpayer can present evidence and raise questions with the authority regarding the facts or omissions claimed, and the authority must pronounce on them.
   5. In the event that the supervisory authority considers that the evidence and allegations referred to by the taxpayer are not sufficient to distort the facts or omissions on which the claim is seen, it may choose not to sign the Concluding Agreement, which will put an end to said procedure by issuing it, by PRODECON,  of the Closing Agreement, stating in writing the position of the supervisory authority.

We must take into consideration that, once the Concluding Agreement has been signed, it will be of observance and mandatory compliance by the parties, so that the authority that signed it cannot ignore the facts or omissions on which the Concluding Agreement was concerned, nor will the trial referred to in the first paragraph of article 36 of the Fiscal Code of the Federation proceed with respect to the request of the tax authority to modify decisions by the Court of Administrative Justice.

In view of the above, we can conclude that the adoption of a Concluding Agreement is a very useful and beneficial tool for those taxpayers who are subject to audit procedures by the tax authorities in the exercise of their powers of verification, since, although it is true that it is not considered as a procedural instance,  it is also true that this procedure obliges the supervisory authority to pronounce on the specific request of the taxpayer, that is, the facts or omissions on which the taxpayer motivates his claim, and whose purpose is the resolution agreed by the parties through the signing of the Concluding Agreement, together with the benefit of the forgiveness of 100% of the fines derived from the audit procedure for cases in which the taxpayer choose to correct their tax situation.

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