An overview of BEPS controversies in Mexico

In 2013 the Organization for Economic Development and Coordination (OECD) together with the countries that are part of the G20 (including Mexico) began the development of the action plan vs t base erosion and profit shifting (BEPS). The goal of the BEPS plan is to ensure that profits are taxed in the jurisdiction where the corresponding economic activity takes place and therefore where wealth is generated[1].

The BEPS plan consists of 15 actions grouped in three fundamental pillars[2]:

1. Provide clarity to those internal norms that address cross-border activities through five actions:
2. Digital economy (1).
3. Hybrid instruments (2).
4. Controlled foreign corporations (3).
5. Interest (4).
6. Aggressive tax practices (5).
7. Reinforce the demands on substance in the current international standards through the following three actions:
8. Treaty abuse (6).
9. Permanent establishment (7).
10. Aligning transfer pricing outcomes with value creation (8-10), and;
11. Improve transparency and security through five actions:
12. Evaluation and monitoring of the BEPS plan (11).
13. Disclosure of aggressive tax planning (12).
14. Country-by-country reporting and transfer pricing documentation (13).
15. Arbitration (14), as well as;
16. Multinational instrument (15).

It is important to consider that certain provisions of the Mexican Income Tax Law (ISR) and the BEPS plan are inextricably linked with the Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations published and approved by the OECD (OECD Guidelines), and that are applicable by virtue of article 179 of the ISR. 

While it is true that the BEPS plan is at the instrumentation phase[3], it is also true that some of its effects have been immediate and its application was quickly discussed by  the Mexican Courts, in particular, sensitive issues like the legal and economic proprietorship of intangibles under action 8, and disclosure of information under BEPS action 13 were under trial and resolved by the Courts. Here a summary of the most relevant cases.

ECONOMIC OWNERSHIP OF AN INTANGIBLE AND ITS IMPACT IN A LICENCING AGREEMENT

The BEPS plan action 8 (intangibles) seeks to avoid tax base erosion of multinational companies through intangible assets. Let us remember that the OECD Guidelines, in their most recent edition, propose a new definition for these type of assets: something that is neither a physical nor financial asset that could be held or controlled for its use in commercial activities and its use or transfer would require a compensation in case that the operation is carried out among independent third parties in comparable circumstances[4]. In addition to this definition, in itself restrictive, the OECD proposes to distinguish between “economic ownership” and “legal ownership” of an intangible. This difference is important because an entity, be it a corporation or an individual, by carrying out certain activities, that in transfer pricing terms are known as “DEMPE” functions (development, enhancement, maintenance, protection and exploitation), would have the right to claim arm’s length compensation for carrying out said activities, or eventually claim economic ownership of the intangible, which for tax purposes would imply the disallowance of any royalty payment for the licensing of the intangible to which it has economically contributed to.

The Upper Tribunal of the Federal Administrative Justice (TFJA) has established interpretative criteria related to intangibles, this to rule on a Case[5], that given its importance, will be detailed in the following.

Considering the ruling  by the International Tax Administration[6], a division of the Mexican Tax Authority (SAT), on a corporation (henceforth “the taxpayer” or “plaintiff”) whose main business activity consists of the purchase, sale, distribution and general commerce of alcoholic beverages, it was determined that the deductions claimed by the taxpayer in the fiscal year from concepts “marketing expenses” and “publicity expenses” derived from a non-exclusive brand licensing agreement, were disallowed as they were not deemed to be strictly indispensable in accordance to that established in the ISR.

The previous given that the taxpayer executed a non-exclusive licensing agreement for the use of a brand for the sale of its products where as a result of restructuring it changed its tax address to Switzerland, claiming the legal ownership of the intangible assets developed in Mexico, including the brand licensed to the taxpayer. As a consequence, the related party resident in Switzerland benefited by the agreements granted for the use and exploitation of intangible assets of its related parties resident in Mexico with the intention of commercializing products related to the said brand, alerting the tax authority that the group to which the taxpayer belongs to transfers profits that originated from intangibles in Mexico to Switzerland, triggering a tax deduction in Mexico, the authority arguing that the only purpose for the transfer was that the profits be taxed in Switzerland, a country with a lower tax rate, and not in Mexico[7].

To combat the claim sustained by the tax authority, the corporation presented an administrative  recourse[8] alleging that the expenses were in fact strictly indispensable to carry out its economic activities and should be considered as a deduction for ISR purposes , recourse that was confirmed by the Central Administration of the Large Taxpayer Litigation[9], a division of the SAT. The result from filing this legal recourse was the case being ceded to the Second Section (henceforth, “Second Section”) within the Upper Tribunal of the TFJA . It is therefore important to analyze the allegations of the plaintiff, as well as the response and position of the tax authority. 

ALLEGATIONS OF THE PLAINTIFF

FIRST. That the tax authority misunderstood the nature of the marketing and publicity expenses, and therefore its conclusion, the disallowance of the deduction due to a duplicate payment for identical publicity and marketing expenses, both increasing the brands value, is incorrect.

The plaintiff alleged that the publicity expenses have as their object to communicate relevant information of the products it commercializes and distributes, without increasing the value of the brand, these expenses being indispensable as they relate to the taxpayer’s main business activity allowing the public to know of its products. Otherwise, its main activity would be affected, by hindering the functioning and development of normal business activities, along with not being able to compete with companies belonging to the same industry.

SECOND. Regarding the marketing expenses, the taxpayer’s states that the increase in the sales of its products is sufficient to demonstrate that the respective payments are strictly indispensable because the intention of said expenses was solely to position the products in the market, and therefore the expenses do not increase the value of the brand.

 AUTHORITY´S POSITION

FIRST. That the tax authority did not misunderstand the nature of payments made by the plaintiff.  The expenses for both publicity and marketing were disallowed since they were not strictly indispensable. This because the brand already has a known presence and recognition in the Mexican market.

That the fact that the plaintiff makes royalty payments in virtue of the brand licensing agreement implies already having a presence and recognition in the market, for which the plaintiff makes duplicate payments for the same concept. It also mentions that the marketing and publicity expenses directly benefit the owner of the brand by having intangibles better positioned in the market. Additionally, the activities of the plaintiff would not be suspended nor would they necessarily significantly decrease due to the expenses not being strictly indispensable.

SECOND. That both the publicity and marketing expenses were disallowed because the plaintiff is not the owner of the brand it markets and that said expenses have the same end as the royalty payments it already makes. It goes on to argue that it is not feasible to consider that the expenses in question affect the normal business activities of the plaintiff since making royalty payments allows it to exploit the value already acquired from the brand, generating consumers, and consequently the expenses are not indispensable to carry out its main business activity, especially since they tend to enhance the patrimony of the legal owner of the brand.

RULING BY THE TFJA

In order to determine the origin of the deductions, the Second Section of the TFJA began the analysis of the applicable portion of the ISR to determine what is to be understood as “strictly indispensable”, concluding, based on the general precedents set by the PJF, that in order to understand said payment, one must analyze the activity of each company and the specific charge made. Therefore, to determine whether an expense is essential the following analysis must be performed in such a way that if any of the following conditions materializes, it would be correct to declare the deduction as marketing and publicity expenses.

1. That the expense is directly related to the company’s main business activity;
2. That said expense is necessary to accomplish the company’s business objectives or to carry out its regular course of business;
3. That if the expense is not incurred the company’s main business activities are affected or hindered

By virtue of the foregoing, the Second Section of the TFJA analyzed the main business activity of the taxpayer; the purchase, sale, distribution and general marketing of alcoholic beverages. Once this was properly defined,  the TFJA proceeded to analyze the marketing and publicity expenses with the goal to determine whether any of the previous items had materialized so the expenses could be considered ISR deductions, ruling the following:

FIRST. In relation to the first allegation by the plaintiff and the response to this by the defendant authority, the Second Section determined that the marketing and publicity expenses could only be incurred by the owner of the brand, since it would increase the value of the same as sales margins increased, achieving through this a direct benefit because it is in its interest that the brand is disseminated and retains its value, or in the best case, it increases, and hence the expenses to enhance the brand correspond to the owner of the same.

If the plaintiff incurred expenses for the advertising of a brand that was licensed through a specific agreement with the end to position its products in the market, said expenses are disallowed if they are intended to be considered deductions, not only because the plaintiff is not the owner of the brand but also by not meeting the requirements for strict indispensability for purposes of the licensor, since they are not expenses directly related to its business activities nor are they necessary for carrying out said activities in addition to the fact that the advertising expenses incurred by the owner imply the positioning of the plaintiff’s product through the use and/or exploitation of the intangible that was granted by the licensing agreement[10].

SECOND. Regarding the second allegation, marketing expenses were understood as those expenses that once incurred allow the placing of a product in the appropriate channels for its sale, and whose ultimate goal is the sale and distribution of said product. The Second Section ruled that said expenses may be considered as deductions for ISR purposes so long as the taxpayer’s business charter supports that the taxpayers activity consists in the purchase, sale, distribution and marketing of alcoholic beverages, and consequently met the requirements of strict indispensability since incurring said expenses allowed it to access distribution channels for its sale. Otherwise, the plaintiff’s business activities would be hindered since in incurring said expenses it obtains a benefit through increased sales, materializing the conditions for strict indispensability, and thus, the authority was incorrect in considering said that said marketing expenses were contemplated in the licensing of the brand by virtue of the analysis of the agreement and its addendum that made no reference to the marketing expenses.

As we saw in the previous example, even if the ruling of the TFJA makes no mention of the BEPS plan it is fully in accordance to action 8 (intangibles) of the plan. In this particular case, the taxpayer carried out DEMPE functions and, as previously mentioned, these are functions exclusively carried out by the economic owner of the brand, and therefore the taxpayer, as licensee, had no right to deduct the payments made for publicity of the brand as it was neither the legal or economic owner of the brand. Therefore, the licensee should not have deducted the marketing expenses in question.

While it is true that related parties enter into intercompany agreements, it is important to review the exact language used or an exhaustive review of the terms in the agreement, especially in provisions referencing the distribution of risks and which party assumes the risk of the operation, who may take actions to mitigate the eventuality of circumstances that impede, hinder or prevent the materialization of the agreement. Additionally, it is necessary to perform an exhaustive analysis to determine whether the terms and conditions in the respective agreement to avoid carrying out functions that would generate non-deductible expenses, not only because they lack documentary evidence, but also by carrying out functions outside the scope of that established in an agreement or carrying out functions exclusive to the owner the owner of the brand.

ACTION 13 OF THE BEPS PLAN AND THE CONSTITUTIONALITY OF ARTICLE 76-A OF THE ISR LAW

Action 13 of the BEPS plan (country-by-country reporting and transfer pricing documentation) constitutes an obligation for multinational companies to provide transfer pricing documentary support regarding its intercompany operations[11] including:

1. Master File, which compiles standard information from all members of the multinational group, including information regarding its global business operations along with transfer pricing policies.
2. Local File, which refers specifically to significant operations carried out by the domestic taxpayer. Said information is exclusive to each country incorporating detailed documentation regarding transfer pricing in relation to the transactions taking place, identifying those with related parties, the payments or income from said transactions and a transfer pricing analysis of said operations, and;
3. Country-by-country Report, which contains information relating to the global distribution of benefits and taxes paid along with indicators of the geographical location of where the economic activity within the multinational group.

This action seeks to strengthen transparency among tax administration and provides recommendations and models that referring to transfer pricing documentation of operations among related parties. In this sense, the OECD states that action 13 allows for the evaluation and verification of transfer pricing risks, it being essential to resolve the problem of base erosion and profit shifting[12].

In November 18, 2015 a Decree was published that reformed, added and repealed various tax provisions in Mexico. The addition of Article 76-A of the IRS[13] establishes the obligation of taxpayers who carry out operations with related parties to provide informative declarations as stated in said article. On the other hand, the addition and amendment to articles 32-D, fraction IV, 81, fraction XL and 82, fraction XXXVII, of the Fiscal Code of the Federation[14] (CFF) establishes that non-compliance would result in a chain of sanctions ranging from $154,800.00 MXN to $220,400.00 MXN[15], and also prohibits both the Mexican Federation, the Executive Branch of Government (under which the SAT is a dependency of) and the Mexican Attorney General Office[16] (FGR) to contract services, acquire or lease public works with those that fail to comply with the obligations set forth in article 76-A of the ISR Law, thus complying with the BEPS plan.

BEPS ACTION 13 AND THE CONSTITUCIONALITY OF ARTICLE 76-A OF THE MEXICAN INCOME TAX LAW

As a result of the implementation of the BEPS plan in Mexico, the Supreme Court (SCJN) also established interpretive criteria to the aforementioned norms due to its review of the indirect injunctions[17] 781/2016 among others[18], where it states its position regarding the constitutionality of taxpayer’s obligations to present informative declarations. Although the highest court in Mexico, when reviewing the aforementioned injunctions, confirms the previous court rulings, it is important to analyze the plaintiff’s allegations and the posture of the Court. The arguments of the plaintiff and the opinion of the SCJN are described in the following.

Action 13 of the BEPS plan (country-by-country report and transfer pricing documentation) constitutes an obligation for multinational companies to document their intercompany operations[19] by preparing:

1. Master File, that compiles standard information of the multinational group and its members including information regarding its global business operations as well as the group’s transfer pricing policies;
2. Local File, documentation that is specific to the operations of the domestic taxpayer that includes a transfer pricing analysis of each operation the domestic taxpayer carries out with related parties, and;
3. Country-by-country report, which contains information regarding the global operations detailing the jurisdictions where economic activity takes place, the value of the transactions and taxes paid.

Action 13 seeks to strengthen transparency and information exchange among tax administrations and provides recommendations and models to prepare transfer pricing documentation for transactions among related parties. The OECD mentions that action 13 allows for the documentation and evaluation of transfer pricing risk, it being essential to solve the problem of base erosion and profit shifting[20].

Mexican legislation incorporated action 13 in 18 November, 2015[21] formally creating the obligation for taxpayers who carry out operations with related parties to present informative declarations[22], local file, country-by-country report and master file to the tax authority. By incorporating BEPS action 13, the Mexican tax authority also established penalties for non-compliance of said obligations by triggering a series of fines that range from $154,800.00 MXN to $220,400.00 MXN[23]. These penalties extend to the prohibition of any governmental agency from engaging a corporation who does not comply with the previous obligations.

In this regard, as a result of taxpayers filing injunctions challenging the incorporation of BEPS action 13 in the Mexican legislation, the Mexican Supreme Court (SCJN or Court) emitted an opinion on the constitutionality of said action, setting a precedent for future cases challenging the implementation of the OECD’s BEPS action plan in Mexico.

PRECEDENTS SET BY THE SCJN

FIRST. The SCJN determined that said obligation was formal in nature and does not exempt a taxpayers obligation to pay income tax, given that the intention of presenting the informative declarations is to enable the exchange of information with tax authorities in other jurisdictions and whereby create a multilateral information exchange system to evaluate high level transfer pricing risks identifying intercompany operations that may represent tax evasion or base erosion risk.

The SCJN stated that the rule only establishes the obligation for taxpayers to present cited informative declarations and should not be understood as an exercise of the authority’s power of audit, given that “the authorities may only do as the law permits[24]”. While this grants the tax authorities certain power, it also has its limitations. If by analyzing a taxpayer’s informative declarations the tax authority determines that there are irregularities in said declarations it may “independently initiate its power of audit in accordance to the formal process[25]”. Regarding the allegation that the tax authority acted beyond that which it is permitted by law, the SCJN replied that the obligation is formal in nature and therefore this allegation is inadmissible[26].

Likewise, the Court determined that the obligation to present informative declarations constitutes the legal source where the tax authority emanates its power through the means and forms that the authority considers to be in compliance with said obligation[27]. 

SECOND. When analyzing the territoriality principle with regards to a tax law, the SCJN determined that said principle must be within the limits of the jurisdiction of the State. It points out that the rule is valid because it associates the presumption of an act to a specific actor determined by its nationality, domicile or residence as well as the applicable law of the location where the legal acts are carried out, taking into account that these are grounded on objective criteria that can reasonably justify the legislators actions[28].

Furthermore, the Court determined that said obligation is formal in nature as its intention is solely informative, considering that by their nature business groups operate in a way that “allows multinational groups to act interrelatedly, under international coordination among subsidiaries and the groups corporate headquarters”[29] and would enable them to pact operations at non market values, reason why there are global transfer pricing rules.

In other words, the obligation to present informative declarations has the end to detail the domestic taxpayers’ intercompany operations and does not produce an effect abroad. A domestic taxpayer in Mexico is considered to be one that is resident within the national territory and has a permanent establishment in Mexico, criteria that is sufficient to subject the taxpayer to Mexican Law. In this regard, the SCJN mentioned that domestic legislation establishes an obligation among corporations subject to Mexican law, and not those that lie outside of the country and does not in any way imply that its intention is to regulate persons or situations located in foreign territories[30].

THIRD. The SCJN established that said obligation does not violate the protection of personal data or its confidentiality[31] because the information exchange among different tax authorities must be treated as confidential and may only be transmitted to the pertinent authorities and persons tasked with the management, determination, liquidation, and the levying and administration of taxes explicitly mentioned in the intercompany agreement that norms the operation “as the information allows the verification of the margins agreed upon among related parties adhere to the arm’s length principle, also allowing for the identification of possible transfer pricing risks through the evasion of taxation or the erosion of the taxable base”[32].

With regards to the injunction promoted against the Multilateral Agreement among Competent Authorities addressing the exchange of Country-by-country Reports[33], the SCJN declared it as inadmissible in virtue that said agreement is an instrument whereby the signatory States commit to the exchange of information with respect to business groups that carry out economic activity within their jurisdictions “so that the subjects bound to the compliance are not directly the taxpayers, but exclusively the signatory States as well as the corresponding competent authorities”[34].  

Additionally, the taxpayer’s obligation to present informative declarations (master, local and country-by-country) “responds to the commitment of Mexico to participate and align its internal legislation to international agreements, to the effect of identifying tax strategies and practices of multinational companies, allowing the authority to act in anticipation to acts of tax avoidance or evasion”[35].

FOURTH.  Regarding the fourth precedent, the SCJN determined that the information relating to operations among related parties does not imply the use of the authority’s power of audit nor does it equal to a state of permanent taxation as the obligation only requires the taxpayer to disclose information, and does not constitute an investigation of the taxpayers financial situation[36].

FIFTH. Relating to the fifth precedent, the SCJN carried out an analysis regarding the nature of the penalties (a fine and the prohibition of engaging or being engaged by governmental institutions) and divided them among those that stem from criminal law and administrative law with the intention to determine whether the administrative infractions are applicable to the rules and principles of the sanctioning administrative law as a punitive measure of the State. In this regard the Second Tribunal of the SCJN determined that these are rules and principles are not applicable nor are the presumption of innocence and against self-incrimination, as it only establishes a formal obligation to present the informative declarations of related parties, denominated as master file, local file and country-by-country report, without constituting of a penalty because it is not part of the administrative infraction regime[37].

SIXTH. Finally, with respect to the sixth and last precedent, the SCJN did not agree with the taxpayer because it did not demonstrate the existence of a specific act that would be to its detriment by complying with said obligation”[38]. This because the referenced regulations require a specific act that creates, extinguishes or modifies a legal situation and, because there did not exist an imposition of a fine or a contractual bond with any governmental institution in the Case in question, therefore the injunction was considered invalid.

We consider it important to mention that the Highest Court in Mexico carried out an analysis to determine whether the imposition of said penalties (the imposition of fines and prohibition to engaging or being engaged by a governmental institution) is contrary to the principle of proportionality of penalties.

Another relevant matter and recent precedent set by the SCJN consist in the inadmissibility of provisionally suspending the obligation to present informative declarations, considering that society has an interest in the authority verifying the compliance of said tax obligations. Compliance of said obligation does not represent an exercise of the authority’s power of audit and satisfies the general publics interests by allowing for the identification of potential tax avoidance or evasion which would result in the collection of unlevied taxes[39].

CONCLUSIONS

The implementation in Mexico of the 15 actions that make up the BEPS plan has not finalized. The effects and consequences that were detailed in the previous Case are the result of the first challenges made by taxpayers to actions 8 and 13 of the BEPS plan in Mexico. It should be mentioned that the Mexican Congress has contemplated an analysis of the reforms, applicable to FY 2020, in which there is a provision to discuss items included in the BEPS plan such as digital economy, permanent establishment, combating hybrid instruments, rules regarding income from preferential tax regimes (REFIPRES) to controlled foreign corporations, the treatment of income and payments to transparent entities and foreign actors, the limits on deductions through a “radius of control”, disclosure of aggressive tax planning, mutual agreement procedures and anti-abuse rules to demand economic substance in operations among related parties. The discussion is still pending; however, this could mean a new direction in Mexico relating to transfer pricing and international tax. Without a doubt tax authorities and taxpayers should be prepared for new challenges and complexities that will arise from the 15 actions the BEPS plan, not just in Mexico but throughout the world. 

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[1] Spanish version: Proyecto OCDE/G20 de Erosión de la Base Imponible y Traslado de Beneficios. (2014). Orientaciones relativas a la Documentación sobre Precios de Transferencia y el Informe País por País.  Acción 13: Objetivo del 2014, p. 9. Available at: https://www.oecd.org/ctp/Action-13-ESP-preliminary-version.pdf

[2] Spanish version: OCDE. (2015). Proyecto OCDE/G20 sobre la Erosión de la Base Imponible y el Traslado de Beneficios. Informes Finales 2015, p. 9-10. Available at: https://www.oecd.org/ctp/beps-resumen-informativo.pdf

[3] Spanish version: Hallivis, Manuel. ¿Qué es el BEPS? inIDC Special Editions. May 2018, p. 3.

[4] OECD. Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations. A.6.6., p. 252. 2017.

[5] The matter derives from the Case 15378/16-17-09-2/1484/18-S2-08-04. Publicly available in Spanish at: http://sentencias.tfjfa.gob.mx:8080/SICSEJLDOC/faces/content/public/consultasentencia.xhtml

[6] In Spanish: “Administración de Fiscalización Internacional”

[7] For more information consult the Spanish version RTFJA, 8ª Época, Número 36, July 2019, pp. 287-296.

[8] In Spanish “recurso de revocación”, which is a legal procedure which represents the second opportunity of the plaintiff to escalate the case to a greater authority. 

[9] In Spanish “Administración Central de lo Contencioso de Grandes Contribuyentes”

[10] Spanish version: RTFJA, 8ª Época, Número 36, Julio 2019, p. 285. Tesis: GASTOS DE PROPAGANDA Y PUBLICIDAD. SU DEDUCCIÓN ES IMPROCEDENTE, AL NO SER ESTRICTAMENTE INDISPENSABLES PARA LA EMPRESA QUE VENDE PRODUCTOS BAJO MARCAS CUYO USO Y EXPLOTACIÓN LE FUERON OTORGADOS MEDIANTE UN CONTRATO DE LICENCIA NO EXCLUSIVA.

[11] In Spanish: Rojas, Aldrin. Reporte país a país y documentación de precios de transferencia. inIDC Special Editions. May 2018, p. 53.

[12]Proyecto OCDE/G20, op. cit, p. 13.

[13] In effect from 2016, the reader may refer to article 76-A of the Mexican Income Tax Law.

[14] In Spanish “Código Fiscal de la Federación”

[15] Updated figures, refer to fraction XXXVII of article 82 of the Mexican Fiscal Code.

[16] In Spanish “Fiscalía General de la República”

[17] In Mexican Law an Injunction (in Spanish “Amparo”) can be broadly defined as a constitutional legal recourse that protects any human right of the plaintiff that may be violated by the authority.

[18] The following summary derives from the indirect injunctions in review 781/2016, 782/2016, 927/2016, 954/2016, 1000/2016 y 1006/2016, ruled on by the Second Tribunal of the Mexican Supreme Court. Publicly available in Spanish at: http://www2.scjn.gob.mx/ConsultaTematica/PaginasPub/TematicaPub.aspx

[19] Rojas, Aldrin. Reporte país a país y documentación de precios de transferencia. en IDC Ediciones Especiales. Mayo 2018, p. 53.

[20] Proyecto OCDE/G20, op. cit, p. 13.

[21] Article 76-A of the Mexican Income Tax Law.

[22] For the purposes of this article “informative declarations” are to be understood as the document disclosing taxpayer operations with its related parties, be it master file, local file, country-by-country reporting or the collection of the three.

[23] Cifras actualizables, consultar la legislación doméstica mexicana (CFF, art 32, frac. XXXVII)

[24] Tesis de Jurisprudencia, 2a./J.49/2017 (10a.) SJF, Décima Época, Libro 42, mayo de 2017, Tomo I, página. 585. DECLARACIONES INFORMATIVAS DE PARTES RELACIONADAS. EL ARTÍCULO 76-A DE LA LEY DEL IMPUESTO SOBRE LA RENTA, VIGENTE A PARTIR DEL 1 DE ENERO DE 2016, POR SÍ MISMO NO DA LUGAR A UN ACTUAR ARBITRARIO DE LA AUTORIDAD HACENDARIA.

[25] Tesis de Jurisprudencia, 2a./J.47/2017 (10a.)  SJF. Décima Época, Libro 42, mayo de 2017, Tomo I, página 582. DECLARACIONES INFORMATIVAS DE PARTES RELACIONADAS. EL ARTÍCULO 76-A DE LA LEY DEL IMPUESTO SOBRE AL RENTA, VIGENTE A PARTIR DEL 1 DE ENERO DE 2016, NO VIOLA EL DERECHO A LA SEGURIDAD JURÍDICA.

[26] Consideraciones plasmadas por la Segunda Sala de la SCJN, en la ejecutoria del amparo directo en revisión 782/2016, del cual deriva la Tesis de Jurisprudencia, 2a./J.48/2017 (10a.) SJF. Décima Época, Libro 42, mayo de 2017, Tomo I, página 586. DECLARACIONES INFORMATIVAS DE PARTES RELACIONADAS. EL ARTÍCULO 76-A DE LA LEY DEL IMPUESTO SOBRE LA RENTA, VIGENTE A PARTIR DEL 1 DE ENERO DE 2016, PREVÉ UNA OBLIGACIÓN DE NATURALEZA FORMAL, QUE NO CONSTITUYE UN ACTO DE MOLESTIA NI ENTRAÑA EL EJERCICIO DE FACULTADES DE COMPROBACIÓN.

[27] Tesis de Jurisprudencia 2a./J.50/2017 (10a.) SJF. Décima Época, Libro 42, mayo de 2017, Tomo I, página 588. DECLARACIONES INFORMATIVAS DE PARTES RELACIONADAS. EL ARTÍCULO 76-A, ÚLTIMO PÁRRAFO (PRIMERA PARTE), DE LA LEY DEL IMPUESTO SOBRE LA RENTA, VIGENTE A PARTIR DEL 1 DE ENERO DE 2016, AL PREVER UNA CLÁUSULA HABILITANTE NO VIOLA LOS PRINCIPIOS DE LEGALIDAD Y SEGURIDAD JURÍDICA.

[28] Consideraciones plasmadas por la Segunda Sala de la SCJN, en la ejecutoria derivada del amparo directo en revisión 1936/2005, de la cual deriva la Tesis Aislada, 2a.VII/2007, SJF, Novena Época, Tomo XXV, marzo de 2007, página 711. TERRITORIALIDAD DE LAS LEYES FISCALES. SU FUNDAMENTO DERIVA DEL PRINCIPIO DE LEGALIDAD CONSTITUCIONAL.

[29] Ibidem.

[30] Consideraciones plasmadas Segunda Sala de la SCJN; en la ejecutoria del amparo indirecto en revisión 1000/2016, del cual deriva la Tesis Aislada, 2a.LXVII/2017 (10a.), SJF, Décima Época, Tomo I, mayo de 2017, página 722. DECLARACIONES INFORMATIVAS DE PARTES RELACIONADAS. EL ARTÍCULO 76-A DE LA LEY DEL IMPUESTO SOBRE LA RENTA, VIGENTE A PARTIR DEL 1 DE ENERO DE 2016, NO VIOLA EL PRINCIPIO DE TERRITORIALIDAD DE LAS LEYES.

[31] Como en los casos en que mediante tratado internacional en vigor del que México sea parte, que contenga disposiciones de intercambio recíproco de información, se podrá suministrar la información a las autoridades fiscales extranjeras y dicha información únicamente podrá utilizarse para fines distintos a los fiscales cuando así lo establezca el propio tratado y las autoridades fiscales lo autoricen.

[32] Tesis Aislada, 2a. LXIV/2017 (10a.) SJF. Décima Época, Libro 42, mayo de 2017, Tomo I, página 723. DECLARACIONES INFORMATIVAS DE PARTES RELACIONADAS. EL ARTÍCULO 76-A DE LA LEY DEL IMPUESTO SOBRE LA RENTA, VIGENTE A PARTIR DEL 1 DE ENERO DE 2016, NO VIOLA LOS PRINCIPIOS DE RAZONABILIDAD Y PROPORCIONALIDAD JURÍDICA.

[33]  Cabe decir que el mencionado Acuerdo Multilateral forma parte de una de las tres vías para facilitar el intercambio de los reportes país a país, el cual fue firmado por México el 27 de enero de 2016, junto con otras 68 jurisdicciones. Consultar en: Rojas, Aldrin. Reporte país a país (…), op. cit., p. 55.

[34] Tesis Aislada, 2a. LXIII/2017 (10a.). SJF. Décima Época, Libro 42, mayo de 2017, Tomo I, página 725. DECLARACIONES INFORMATIVAS DE PARTES RELACIONADAS. ES IMPROCEDENTE EL JUICIO DE AMPARO INDIRECTO CONTRA EL ACUERDO MULTILATERAL ENTRE AUTORIDADES COMPETENTES SOBRE EL INTERCAMBIO DE REPORTES PAÍS POR PAÍS, EN TANTO NO CONTIENE SUPUESTOS NORMATIVOS APLICABLES DIRECTAMENTE A LOS CONTRIBUYENTES.

[35] Tesis de Jurisprudencia, 2a./J.46/2017 (10a.). SJF. Décima Época, Libro 42, mayo de 2017, Tomo I, página 590. DECLARACIONES INFORMATIVAS DE PARTES RELACIONADAS. LA OBLIGACIÓN PREVISTA EN EL ARTÍCULO 76-A DE LA LEY DEL IMPUESTO SOBRE LA RENTA, VIGENTE A PARTIR DEL 1 DE ENERO DE 2016, ATIENDE A LOS COMPROMISOS INTERNACIONALES ASUMIDOS POR EL ESTADO MEXICANO.

[36] Tesis Aislada, 2a.LXV/2017 (10a.) SJF. Décima Época, Libro 42, mayo de 2017, Tomo I, página 721. DECLARACIONES INFORMATIVAS DE PARTES RELACIONADAS. EL ARTÍCULO 76-A DE LA LEY DEL IMPUESTO SOBRE LA RENTA, VIGENTE A PARTIR DEL 1 DE ENERO DE 2016, NO TRANSGREDE EL DERECHO A LA INVIOLABILIDAD DEL DOMICILIO.

[37] Tesis Aislada, 2a.LXVI/2017 (10a.) SJF. Décima Época, Libro 42, mayo de 2017, Tomo I, página 720. DECLARACIONES INFORMATIVAS DE PARTES RELACIONADAS. A LA OBLIGACIÓN PREVISTA EN EL ARTÍCULO 76-A DE LA LEY DEL IMPUESTO SOBRE LA RENTA, VIGENTE A PARTIR DEL 1 DE ENERO DE 2016, NO LE SON APLICABLES LAS REGLAS Y PRINCIPIOS DEL DERECHO ADMINISTRATIVO SANCIONADOR.

[38] Tesis Aislada, 2a.LXII/2017 (10a.) SJF. Décima Época, Libro 42, mayo de 2017, Tomo I, página 726. DECLARACIONES INFORMATIVAS DE PARTES RELACIONADAS. ES IMPROCEDENTE EL JUICIO DE AMPARO INDIRECTO CONTRA LAS DISPOSICIONES QUE PREVÉN CONSECUENCIAS JURÍDICAS POR EL INCUMPLIMIENTO DE LA OBLIGACIÓN DE PRESENTARLAS, EN TANTO NO INTEGRAN UN SISTEMA NORMATIVO CON EL ARTÍCULO 76-A DE LA LEY DEL IMPUESTO SOBRE LA RENTA, VIGENTE A PARTIR DEL 1 DE ENERO DE 2016.

[39] Tesis de Jurisprudencia, 2a.72/2019 (10a.) SJF. Décima Época, Libro 67, junio de 2019, Tomo III, página 2097.  DECLARACIONES ANUALES INFORMATIVAS DE PARTES RELACIONADAS A QUE REFIERE EL ARTÍCULO 76-A DE LA LEY DEL IMPUESTO SOBRE LA RENTA. NO PROCEDE CONCEDER LA SUSPENSIÓN SOLICITADA EN EL JUICIO DE AMPARO CONTRA SUS EFECTOS Y CONSECUENCIAS.