This content is from: Mexico

Amendment threatens taxpayers' right to a proper defence in Mexico

The Mexican Federal Tax Code (FTC) in force was published on December 31 1981, and established for the first time a 45 day deadline to file an administrative appeal, unlike the FTC published on January 19 1967 that stated a 15 day deadline.

On the other hand, in an amendment made to the FTC on May 6 2009, taxpayers were granted the right to offer additional documentation from that offered in the administrative appeal within a month of its filing, and a two- month deadline after the offer to submit it.

As noted in the Statement of Legal Reasons, the establishment of such a probationary period was to grant the right stated in article 14 of the Constitution, and to promote the filing of administrative appeals before going to jurisdictional organs, giving the opportunity to exhibit documents that for any reason were not offered to the tax authority who issued the contested resolution.

However, on September 8 2013 the president presented his “Tax Reform for 2014” project that, among other aspects, reduces the deadline to file the administrative appeal, and offer and submit additional documentation.

It was proposed to reduce the deadline to file an administrative appeal to 15 days and that the additional documentation had to be announced in the appeal and submitted within 15 days after the appeal’s filing.

The project sent by the president was mitigated by the Mexican House of Representatives, establishing that the taxpayers shall file the administrative appeal within the 30 days after its notification and stating that additional documents can be offered in the administrative appeal or within 15 days after its filing. Such documents will have to be submitted 15 days later from its offer. Such amendments were discussed and approved by the Senate and sent to the president for publication.

Lastly, legal precedent 73/2013 issued by the Mexican Supreme Court of Justice, determines the prohibition to offer new documents in the nullity petition before the Federal Tax Court, if they were not previously offered and submitted in the audit or in the administrative appeal.

In this regard, we consider that it is contradictory that in less than five years since the amendment came into force granting taxpayers the possibility of submitting additional documentation to protect the right for a proper defence, now an opposite amendment has been approved, reducing the deadlines and obstructing taxpayers from preparing a proper defence not only in the correct approach of the arguments and the submission of additional documentation, but also through the nullity petition, which means you can lose the right to submit such documentation.

Therefore, the amendment at hand regarding this legal precedent could violate the human right of due process foreseen in article 17 of the Constitution as well as the progressiveness principle that this human right has to have, because the State instead of granting a proper defence at trial, hinders it.

Sandro Castañeda (sandro.castaneda@mx.pwc.com) and
Pedro Gerardo Olivares (pedro.olivares@mx.pwc.com), PwC Mexico

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