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ARTICLES

LEGAL RESOURSES

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    • ARTICLE 5: REQUIREMENTS THAT MUST BE MET FOR THE VALUE-ADDED TAX (VAT) TO BE CREDITABLE

    For the value-added tax to be creditable, the following requirements must be met:

  • That the value-added tax corresponds to goods, services, or the temporary use or enjoyment of goods, strictly indispensable for the performance of activities other than importation, for which the tax established in this Law must be paid or to which they are applied the rate of 0%. For the purposes of this Law, expenditures made by the taxpayer that are deductible for income tax purposes are considered strictly indispensable, even if they are not obliged to pay this last tax. In the case of partially deductible expenditures for income tax purposes, shall be considered for the purposes of the accreditation, the amount equivalent to the value-added tax that has been transferred to the taxpayer and the value-added tax itself that it paid for the importation, referred to in this Law that it had paid for the importation, in the proportion in which said expenses are deductible for income taxes purposes. (RLIVA: Art. 16)

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  • That the value-added tax has been expressly transferred to the taxpayer and that it is recorded separately in the tax receipts referred to in section III of article 32 (LIVA: Art. 32) of this Law;

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  • That the value-added tax transferred to the taxpayers has been effectively paid in the month in question.

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  • That in the case of the transferred value-added tax that had been withheld in accordance with articles 1A (LIVA: Art. 1A) and 18-J , section II, subsection a) of this Law, said retention is paid in the terms and period established in it. The tax withheld and paid, may be credited in the monthly payment declaration following the declaration in which the payment of the retention has been made;

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  • When obligated to pay the value-added tax or when the 0% rate is applicable, only for a part of the activities carried out by the taxpayer, the following will apply:

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  • When the value-added tax transferred or paid in the importation, corresponds to expenditures for the acquisition of goods other than the investments referred to in subsection d) of this section, for the acquisition of services or for the temporary use or enjoyment of goods, which are used exclusively to carry out the activities for which the value-added tax must be paid or the 0% rate is applicable, said tax will be fully creditable.

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  • When the value-added tax transferred or paid in the importation, corresponds to expenditures for the acquisition of goods other than the investments referred to in subsection d) of this section, for the acquisition of services or for the temporary use or enjoyment of goods, which are used exclusively to carry out activities for which the value-added tax should not be paid, said tax will not be creditable.

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  • When the taxpayer uses goods indistinctly other than the investments referred to in subparagraph d) of this section, services or the temporary use or enjoyment of goods, to perform the activities for which the value-added tax must be paid to carry out activities to which this Law applies the 0% rate or to carry out activities for which the tax established by this Law in which must not be paid, the accreditation will proceed only in the proportion in which the value of the activities for which the value-added tax must be paid or to which the 0% rate is applied, represents in the total value of the mentioned activities that the taxpayer carries out in the month in question (RLIVA: Art. 16) (RLIVA: Art. 17) (RLIVA: Art. 22A), and

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  • In the case of the investments referred to in the Law on Income Tax (Ley del Impuesto sobre la Renta), the value-added tax that has been transferred to the taxpayer in its acquisition or the one paid in its importation will be creditable considering the usual destination that said investments have to carry out activities for which the tax established in this Law is due or not to be paid or to which the 0% rate is applied, making the adjustment that is appropriate when the mentioned destination is altered. For these purposes, proceed as follows:

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  • In the case of investments that are destined exclusively to carry out activities for which the taxpayer is obliged to pay the value-added tax or to which the 0% rate is applicable, the value-added tax that has been transferred to the taxpayer or the one paid in its importation, will be fully creditable in the month in question.

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  • In the case of investments that are destined exclusively to carry out activities for which the taxpayer is not obliged to pay the tax established by this Law, the value-added tax that has been effectively transferred to the taxpayer or the one paid in its importation will not be creditable

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  • When the taxpayer uses the investments indistinctly to perform both activities for which the value-added tax must be paid or the 0% rate is applicable, as well as activities for which it is not obliged to pay the tax established by this Law , the value-added tax transferred to the taxpayer or the one paid in its importation, will be creditable in the proportion in which the value of the activities for which the value-added tax must be paid or the 0% rate is applied, represents in the total value of the aforementioned activities that the taxpayer carries out in the month in question, having to apply, as the case may be, the adjustment referred to in Article 5-A of this Law. (LIVA: Art. 5A) (RLIVA: Art. 16) (RLIVA: Art. 17) (RLIVA: Art. 22A)Taxpayers who carry out the accreditation in the terms provided in the previous paragraph, must apply it to all investments that they acquire or import in a period of at least sixty months from the month in which the accreditation in question was made .

    • To investments whose accreditation has been made in accordance with the provisions of article 5-B of this Law (LIVA: Art. 5B), the procedure established in the first paragraph of this numeral will not be applicable.

     

  • When the investments referred to in numerals 1 and 2 of this subsection cease to be used exclusively for the activities provided for in said numerals, in the month in which this occurs, the adjustment provided for in article 5-A of this Law must be applied. (LIVA: Art. 5A)

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  • In the case of expenses and investments in preoperative periods, the value-added tax transferred and the one paid in the importation corresponding to the activities for which will be required to pay the tax established by this Law or the 0% rate will be applied, will be creditable in the proportion and in the terms established in this Law, according to the options in which below are mentioned:

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  • Make the accreditation in the declaration corresponding to the first month in which the taxpayer carries out the aforementioned activities, in the proportion and in the terms established in this Law. For these purposes, the taxpayer may update the amounts of tax that should be accredited in each one of the months during the preoperative period, for the period from the month in which the tax has been transferred or the import tax has been paid until the month in which the declaration referred to in this subsection is presented.

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  • Request the return of the corresponding tax in the month following that in which the expenses and investments are made, in accordance with the estimate made of the proportion in which said expenses and investments will be allocated to carry out the activities for which will be obliged to pay the tax established by this Law or to which the 0% rate will be applied, with respect to the total activities to be carried out. In the event that this option is exercised, the following must be submitted to the tax authority, together with the first refund request:

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  • The estimation and description of the expenses and investments that will be made in the preoperative period, as well as a description of the activities that the taxpayer will carry out. For these purposes, it must present, among other documents, property titles, contracts, agreements, authorizations, licenses, permits, notices, records, plans and tenders that, where appropriate, are necessary to prove that the activities will be carried out.

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  • The estimate of the proportion that will represent the value of the activities for which they are going to be obliged to pay the tax established by this Law or to which the 0% rate will be applied, with respect to the total activities to be carried out.

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  • The financing mechanisms to carry out the expenses and investments.

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  • The estimated date to carry out the activities object of this Law, as well as, where appropriate, the prospectus or investment project whose execution will lead to carry out the activities for which are going to be obliged to pay the tax that establishes this Law or to which the 0% rate will be applied.

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    The information referred to in this subsection must be submitted in accordance with the general rules issued for this purpose by the Service Tax Administration (Servicio de Administración Tributaria).

     

    When any of the options referred to in subparagraphs a) or b) of this section are exercised, the taxpayer shall calculate in the twelfth month, counted from the month immediately following that in which the taxpayer initiated activities, the proportion in that the value of the activities for which the value-added tax was paid or to which the 0% rate was applied, represents in the total value of the mentioned activities that the taxpayer has carried out in the twelve months prior to said month and compare it against the proportion applied to prove the tax that was transferred or the one paid in importation in the expenses and investments made in the preoperative period, in accordance with subsections a) or b) of this section, as appropriate.

     

    When, from the comparison referred to in the previous paragraph, the proportion applied to credit the tax corresponding to the expenses or investments made in the preoperative period is modified by more than 3%, said accreditation shall be adjusted as follows:

     

    1. When the proportion of the value of the activities decreases for which the value-added tax must be paid or the 0% rate is applied, with respect to the value of the total activities, the taxpayer must refund the excess credit, updated since the month in which the accreditation was made or the refund was obtained and until the month in which the refund is made. In this case, the amount of the excess credit will be the amount that results from decreasing the amount of the tax actually credited in the month in question, the amount that results from applying the proportion corresponding to the twelve-month period to the amount of the tax that has been transferred to the taxpayer or the one paid in importation in expenses and investments in the said month.

     

    2. When the proportion of the value of the activities increases for which the value-added tax must be paid or the 0% rate is applied, with respect to the value of total activities, the taxpayer may increase the accreditation carried out, updated from the month in that the accreditation was made or the return was obtained and until the twelfth month, counted from the month in which the activities began. In this case, the amount of the accreditation to be increased will be the amount that results from decreasing from the amount that results from applying the proportion corresponding to the twelve month period to the amount of the tax that has been transferred to the taxpayer or the one paid in importation in expenses and investments in the month in question, the amount of the tax actually credited in that month.

     

    The refund or increase of the accreditation, which corresponds in accordance with numerals 1 and 2, of the previous paragraph, as appropriate, must be made in the month in which the proportion referred to in the second paragraph of this section is calculated, in accordance with the general rules issued for this purpose by the Service Tax Administration (Servicio de Administración Tributaria).

     

    For the purposes of this Law, the preoperative period shall be understood as the period in which expenses and investments are made prior to the beginning of the activities of alienation of goods, provision of independent services or granting of the temporary use or enjoyment of goods, to which it refers to Article 1 of the present Law (LIVA: Art. 1). In the case of extractive industries, it includes exploration for the location and quantification of new susceptible cites that can be exploited.

     

    For the purposes of this section, the preoperative period will have a maximum duration of one year, counted from the first request for the return of the value added tax, unless the interested party proves to the tax authority that that preoperative period will have a longer duration according to the investment prospectus or project whose execution will result in the performance of the activities encumbered by this Law.

     

    In the event that the activities encumbered by this Law do not start after the pre-operative period referred to in the preceding paragraph has elapsed, the amount of the returns that have been obtained must be refunded, updated from the month in which it obtained the refund and until the month in which said refund is made. In addition, surcharges will be caused under the terms of article 21 of the Federal Fiscal Code (Código Fiscal de la Federación) (CFF: Art. 21) on the updated quantities. The provisions of this paragraph shall apply without prejudice to the right of the taxpayer to carry out the accreditation of the tax transferred or the one paid in the importation in the preoperative period, when it begins the activities for which it must pay the tax established by this Law or to which apply the 0% rate, as established in subsection a) of this section.

     

    In the case of the extractive industry, the provisions of the preceding paragraph shall not apply when, for reasons beyond the control of the company, the extraction of the resources associated with the cites is not feasible or when for economic reasons not attributable to the company, the extraction of the mentioned resources is untenable. When the company stops carrying out the activities prior to the regular commercial extraction of the resources associated with the cites for reasons other than those mentioned, it must be return, in the month immediately following that in which it stopped carrying out the aforementioned activities, the value added tax that has been returned. The refund of the tax must be updated from the month in which the refund was obtained and until the month in which the refund is made.

     

    The updates referred to in this section must be calculated by applying the update factor obtained in accordance with article 17-A of the Federal Fiscal Code (Código Fiscal de la Federación). (CFF: Art. 17A)