Tax collection is a matter of general interest for both the Federal Public Administration and taxpayers, where the power of the Public Administration to collect taxes and the obligation of taxpayers to contribute are based on an economic nature.
As a consequence of this nature, every year, various tax provisions are modified, added, or repealed, affecting or benefiting essential sectors such as real estate.
In that order of ideas, on September 8, 2021, the Federal Public Administration, through the Ministry of Finance and Public Credit (SHCP), presented before the Legislative Authority the “2022 Economic Package ” which includes the initiative with draft Decree reforming provisions on Income Tax (ISR), Value Added Tax (VAT), Fiscal Code of the Federation (CFF), to mention some of them.
Although the content of these reforms has not yet been approved, it is almost a fact that they will be approved since the current government has the necessary representation at Congress to promote this reform.
Consequently, and as part of the analysis of the tax reform initiative, we have proceeded to list the 7 most important aspects in the real estate sector and the impact that this would have if approved:
1.- Consider its income and deductions arising from transactions with related parties based on market prices and amounts. Otherwise, the authority will determine the income and deductions considering reasonable profit margins or amounts. It is important to note that this power is already regulated in the CFF, but the LISR seeks to provide the authority with more tools.
2.- Obtain a final judgment issued by a competent authority, which demonstrates having exhausted all instances for the debtor’s payment, if applicable, the impossibility of collection to exercise the deduction authorized for uncollectible debts. This requirement is much more complex than the current text, which allows the exercise of such deduction with the simple filing of the lawsuit.
3.- Obligate to pay taxes under the Simplified Trust Regime for Legal Entities to corporations that are integrated by individuals and that do not exceed $35 Million Pesos of income obtained during the previous fiscal year. This regime contains interesting aspects such as considering income and deductions according to cash flow as well as the benefit of deducting fixed assets in a higher percentage than the general regime.
4.- Inform the SAT of the percentage of participation that the partners represented in the company, in addition to indicating who has effective control of the company.
5.- Obtain and keep complete and reliable information of its controlling beneficiaries, such as partners, directors, and administrators, as well as those persons who directly or indirectly exercise acts of direction in the main policies of the legal entity, to be provided to the authority at the time it so requests, with a maximum term of 15 business days for the delivery of the obligation.
6.- Avoid any discrepancy between the description of the goods or services indicated in the Digital Tax Receipt by Internet (CFDI) and the economic activity registered by the taxpayer in its RFC. Otherwise, the tax authority will update the economic activities and obligations of the taxpayer to the corresponding regime according to the description of the CFDI, which could cause the taxpayer to accumulate income and pay taxes under a regime that is detrimental to him/her.
7.- To avoid incurring any error when issuing a CFDI, if the error is corrected or canceled, the taxpayer could be subject to a fine ranging between 5% and 10% of the amount covered in each tax receipt, according to the proposal that would be added to the CFF in Article 82 section XLII.
In summary, most of the content of the reforms comes to correct issues of form, so their impact does not have a major transcendence in the activities of the real estate sector. However, there are important aspects both in operation and tax determination that will cause a study to be carried out for specific cases to determine the differences or similarities of the previous exercises with the one to be implemented in the year 2022, especially regarding points (1), (2) and (3).
“Commission of the Real Estate Sector of TR&A” integrated by:
L.D. Luis Alfonso Licona Ortiz | firstname.lastname@example.org
C.P. Arianne Fernanda Tapia Ruelas | email@example.com
C.P. Jerson Giovanni Cárdenas Peña | firstname.lastname@example.org
Published on October 20, 2021
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