Both individuals and corporations have the obligation to comply with the regulations and requirements of the tax authority and there are so many changes and updates that the Tax Administration Service (the SAT), performs requiring taxpayers to be well informed. Whether they are individuals or legal entities, they will always have to ask an expert in tax regulations to be able to adequately comply with the provisions that the SAT requires of their taxpayers. Likewise, any legal entity or natural person that begins or wants to start doing business within the Mexican Republic must be kept informed and has to be able to comply with all the requirements that this entity requires.
The first thing that each natural or legal entity must do is to document or educate themselves regarding the obligations that their tax regime requires. It should also be known how the different rules and regulations apply in our businesses or operations, the facilities that exist to be able to comply with the Fiscal Authority, and the possible sanctions that may be generated for not complying with the guidelines that are required. It should be borne in mind that revisions to the same sanctions can always be requested in order to get an extension and even the “pardon”, so to speak, of the said sanction, taking into consideration that all the requirements of the SAT must be fulfilled in a timely manner. The SAT ensures that we always comply with our tax obligations and monitors all taxpayers to be able to make sure that these obligations are met.
Tax obligations not only depend on being a natural or legal entity, there are also different types of tax regimes that depend on the type of business the taxpayer does. Each different tax regime grants the taxpayer rights and obligations derived from carrying out a specific economic activity. The first tax obligation that must be met regardless of the regime or being a natural or legal entity is the presentation of periodic returns and the obligation to issue electronic receipts for the activities that are carried out. Another primary obligation for all taxpayers is to be registered in the Federal Taxpayers Registry and keep all the data updated (name, address, start and stop of activities, regime, etc.) and have a tax mailbox to consult and see the communications that the SAT has made to the taxpayer.
Within the types of tax regime, it is possible to first differentiate between individuals or legal entities. Within this section, tax obligations will be listed depending on the regime to which they belong.
- Wage-earners or employees: Receive income and benefits through an activity subordinate to an employer and only the annual return that is usually made by the same employer must be submitted.
- Leasing of Real Estate: Those who have a fixed income from renting a property either for commerce or housing. They must always provide a receipt against the lease through an electronic billing system. Individuals who pay tax under this type of regime must submit a monthly, annual, and, if necessary, or if the person wants informative declaration.
- Business Activity: Individuals who have a business or trade and must submit their electronic accounting and do electronic invoicing in order to verify all transactions. Annual, monthly, informative and multiple informative declarations must be submitted.
- Fees: Independent persons who perform independent services and provide receipts for honorary fees. These people must comply with electronic accounting and invoicing to generate tax receipts (CFDI) and record the use that is given to the income they receive. An annual, informative, and multiple informative declaration must always be presented when working under this regime.
- Tax Incorporation Regime (RIF): People who carry out business activities, who sell goods or provide services for which a professional title is not required. They must handle accounting and electronic invoicing, in addition to submitting bi-monthly returns.
For Legal Entities:
- General regime (They are all types of companies that are described and regulated within the Commercial Code and the General Law of Titles and Credit Operations which are): mercantile companies, mercantile society, society, civil association, cooperative production society, credit, insurance and surety institutions, general deposit warehouses, financial lessors, credit unions and capital investment companies; decentralized organizations that commercialize goods or services, and trusts with business activities, among others, that carry out lucrative activities.
- Their tax obligations are to keep their Electronic Accounting and electronic invoicing; submit monthly declarations and payments, as well as annual declaration. They must also present the Informative Declaration of Operations with Third Parties (DIOT) and annual informative declarations, and the corresponding Income Tax withholdings. They must, in the same way, keep financial information up to date, such as financial statements, inventories, tax profit, and the amount of the Workers’ Profit Sharing. Keep the SAT informed about loans and contributions for future capital increases that are received in cash, within 15 days after receiving them.
- In the event of having been classified as a taxpayer of IEPS (Special Tax on Products and Services), the corresponding declarative information must also be submitted.
- Non-profit: They are not intended to obtain financial gain or profit. They must issue tax receipts, keep Electronic Accounting, submit monthly and informative returns, withhold income tax in case of paying wages and salaries, receive professional services, issue income tax withholding certificates, pay the subsidy for employment to workers who are entitled to receive it according to the ISR.
In the event of a forgetfulness, erroneous information or omission in the returns, there is the opportunity to correct it later by submitting the omitted or supplementary return within a period established by law, but this could depend on the particular situation of the taxpayer.
In case of non-compliance, the tax authority will send them a request to present this omitted declaration plus the corresponding sanction, which is usually a fine unless the law provides for another sanction, which will also obey the particularities of the taxpayer. You can always count on the help or advice of experts in the field to be able to comply with the obligations in the best possible way.
Gloria Ponce de León & Hernández
The dissolution of a commercial company does not immediately extinguish the company, but determines the beginning of a liquidation period during which the legal entity continues to exist, until the liquidation operations are concluded. In other words, the dissolution of a commercial company does not make the legal entity disappear, but it does completely modify its object since it is prevented from continuing to carry out its activities in a normal way, having to limit itself only to concluding the operations that have been carried out and finally distribute the equity or corporate assets among the partners or shareholders.
At the time of incorporation, the partners or shareholders can establish in the bylaws what will be the causes for which it will be dissolved, but additionally, the General Law of Mercantile Corporations in its article 229 contemplates various reasons why it can be given, among them the following:
1) Due to the expiration of the term established in the social contract.
2) Due to the impossibility of continuing to carry out the main purpose of the company or because it is completed.
3) By agreement of the partners taken in accordance with the social contract and with the Law.
4) Because the number of shareholders becomes less than the minimum that this Law establishes, or because the parties of interest come together in a single person.
5) For the loss of two thirds of the capital stock.
6) By judicial or administrative resolution issued by the competent courts, in accordance with the causes provided in the applicable laws.
Given that the dissolution constitutes a modification to the corporate deed, it must be registered in the Public Registry of Commerce. However, it is not obligatory when the dissolution is carried out due to having concluded the social life, since it operates by right. The aforementioned registration is for the purpose of informing the creditors of the dissolution of the company.
The administrators will not be able to carry out new operations, being jointly and severally liable for the businesses comprised against such prohibition, the Assembly for its part is also limited in its powers, since it can only make resolutions regarding the liquidation. On the other hand, its functions after dissolution are transitory until the appointment of the liquidators.
Once the dissolution is made, the liquidation is carried out, which is the procedure by which the company is extinguished. The creditors are liquidated with their assets and the social assets are divided among the partners.
This will be in charge of one or more liquidators who will be the legal representatives of the company and will be responsible for the acts carried out beyond the commission that was made to them and will act jointly. The process will be carried out in accordance with the relative stipulations of the social contract or the resolution made by the partners when agreeing or recognizing the dissolution of the company. In the absence of such stipulations, the liquidation will be carried out in accordance with the law.
Once the appointment of the liquidators has been made, the administrators will deliver all the assets, books and documents of the company to them, drawing up an inventory of the corporate assets and liabilities. For which the liquidators will have the following powers:
- Conclude the social operations that were pending at the time of dissolution.
- Collect what belongs to the company, pay what it owes and sell the company’s assets if it has them.
- Practice the final balance of the liquidation, which must be submitted to the discussion and approval of the partners or shareholders. As well as liquidating each partner or shareholder their social assets.
- Obtain from the Public Registry of Commerce the cancellation of the registration of the social contract, once the liquidation is concluded
Finally, once the balance sheet has been approved, the liquidators will proceed to make the payments that are pending to the partners or shareholders, against the delivery of the share titles; and the sums that belong.
María Fernanda Ortega
Gloria Ponce de León & Hernández
Money laundering is a process in which different economic, financial and commercial transactions are carried out with the purpose of having the appearance of legality to illicit resources, it should be noted that resources of illicit origin are all those generated by some type of crime .
The financing of terrorism, for this part, consists of seeking resources, whether legal or not, to facilitate the development of terrorist actions.
In Mexico, the one who regulates the prevention of money laundering in general is the LFPIORPI Federal Law for the Prevention and Identification of Operations with Resources of Illicit Origin; We bear in mind that the Prevention of Money Laundering (PLD) is not a tax issue, despite the fact that registrations and notices are presented on the platform of the Tax Administration Service (SAT), among others. The SAT is the supervisor of the LFPIORPI.
Among the particularities that emerge from the LFPIORPI is that there are obligated subjects and vulnerable activities.
Vulnerable activities are economic activities that due to their nature and characteristics may be a possibility for the entry of money obtained from illicit sources.
An obligated subject is one who, by law or regulation, must comply with a special compliance regime to help the authorities fight crimes such as money laundering, corruption, and terrorist financing.
The information provided by the obliged subjects is the basis for strengthening efforts to identify, analyze, supervise and prevent money laundering and the financing of terrorism.
Although there is no official figure of what money laundering represents in Mexico, according to various researches and official reports, it can be concluded that around 50,000 million dollars are laundered each year in the country (INACIPE), which is why it is very important that we know, if our professions or activities are established as obligated subjects or vulnerable activities, and if we are part of them, to know the obligations that we contract to avoid a legal problem and contribute to the prevention of money laundering.
Javier Estrada Vega
Gloria Ponce de León & Hernandez
On January 11, 2021, the Decree amending Article 311 was published in the Official Gazette of the Federation and adding Chapter XII Bis of the Federal Labor Law, on Teleworking, the above with the purpose to regulate this modality under which workers may work from their home or in a place freely chosen by them.
The relevant points of these reforms are the following:
1.- Regarding Telework, the following definitions are established:
- Telework: it is defined as a form of subordinate labor organization that consists of the performance of tasks in places other than the employer’s establishment, so that the physical presence of the worker is not necessary in the workplace and instead they are used Information and communication technologies for contact between the worker and the employer.
- Worker under the Teleworking modality: will be the person who provides their personal, paid and subordinate services in a place other than the workplace, and who uses information or communication technologies.
- Information and communication technologies: will be the set of services, infrastructure, networks, software, computer applications and devices that are intended to facilitate the functions in the work centers, as well as all those technological components that allow creating, modifying, store, protect and retrieve information related to its functions.
- These provisions will govern those labor relations that are developed at the worker’s home or at the home chosen by him, in more than 40% of the time.
- Telework will not be considered that which is carried out occasionally or sporadically.
- The conditions under which Telework will be carried out must be established in a contract. Both the worker and the employer must keep a copy of the contract.
- If there is a collective bargaining agreement, the Teleworking modality must be part of it and a free copy must be delivered to the worker.
If the employer does not have a collective bargaining agreement, teleworking must be included in the internal work regulations, as well as establishing contact mechanisms between workers who are working under this modality.
- Special obligations are generated for both the employer and the worker who is working under the Telework modality: Special obligations of the employer:
- Provide, install and take care of the maintenance of the necessary equipment for Telework.
- Assume the costs derived from Telework (payment for telecommunication services and proportional part of electricity).
- Implement information security mechanisms
- Respect the right of the worker to disconnect at the end of the working day.
Special obligations of the worker:
- Care and conservation of the equipment and materials received from the employer.
- Report the costs derived from Telework on the use of telecommunications services and electricity consumption.
- Attend data and information protection policies and mechanisms implemented by the employer.
- It is established as a special power of the Labor Inspectors to validate the due fulfillment of the special obligations of both employers and workers.
It is important to mention that although this Decree came into force on January 12, 2021, the Federal Executive Power will have a period of 18 months (counted from the aforementioned date) to publish an Official Mexican Standard in which they are regulated Obligations regarding health and safety for Teleworking.
Gloria Ponce de León & Hernández
The minimum wage in Mexico of $123.22 pesos established for the year 2020, increased an inflationary percentage of 6% and an Independent Recovery Amount (IRM) of $10.46 pesos. This increase is in addition to those granted in 2019 of 16% and in 2020 of 20% that have allowed the recovery of purchasing power to continue and the National Commission of Minimum Wages (CONASAMI) used again the MIR factor (which was used for the first time in December 2016) to recover the purchasing power of workers that receive a general minimum wage to reach the welfare line suggested by the National Council for the Evaluation of Social Development Policy (CONEVAL).
The discussion on the relationship between trade and labor in the World Trade Organization (WTO) achieved important advances within the Free Trade Agreements since express obligations are established in minimum wages with their own reference without referring exclusively to international commitments under the International Labor Organization (ILO).
Likewise, in the negotiations for the treaty between Mexico, the United States of America, and Canada (T-MEC), the minimum wage was also one of the issues mentioned since it was one of the major concerns within the labor standards intended to be increased in Mexico.
However, one of the disadvantages to this increase in the minimum wage is the aforementioned “Lighthouse Effect,” which is described as “the transfer of increases in the minimum wage over the rest of the salary distribution, especially over the income of the workers, whose salary is the above-said indicator.”
This implies that if the minimum wage is increased, other wages and prices will also rise. According to the Bank of Mexico, this new salary distribution may induce companies to raise their products’ prices due to increased labor costs and the indirect increase in prices of immediate goods and services.
According to the Economic Commission for Latin America and the Caribbean (ECLAC), if both wage and price growth are realized, there would be no benefit for workers, but rather the opposite, there would be other disadvantages.
However, companies can take different paths to reduce inflation on wages, such as reducing operating expenses, advertising to fill vacancies, and training expenses, among others. Job loss could be a possible scenario since a higher minimum wage could lead companies to hire fewer workers.
ECLAC provided a solution to avoid adverse results in the economy, which consists of making “modest” increases to destabilize local and personal economies.
This issue is of vital importance to the ILO, which mentions that following the effects of the minimum wage “is a key element of any system based on factual data,” since it not only has repercussions on the pockets of those who receive this amount but on a myriad of economic and social variables of the entity.
In 1970, the ILO, during its general conference, granted certain criteria to determine the level of minimum wages, which are:
- The needs of workers and their families.
- The general level of wages in the country.
- The cost of living and its variations.
- Social security benefits.
- The relative standard of living of other social groups.
- Economic factors, including the requirements of economic development, productivity, and the desirability of achieving and maintaining a high employment level.
Currently, the country’s minimum wage is $141.70 pesos per day, while for the Northern Border Free Zone, it is $213.39 pesos per day.
Lic. Génesis Moyeda Salazar
Gloria Ponce de León & Hernández