This Informational Notice refers to the Decree that compiles various tax benefits and establishes measures regarding regulations simplification, published on March 30, 2012 in the Official Daily of the Federation (the “Tax Benefit Decree”), which entered into effect as of April 1, 2012.
I. Purpose of the Tax Benefit Decree
The purpose of the Tax Benefit Decree is to compile in one single legislative document the various current tax benefits and incentives that have been granted in prior years and to organize them according to subject matter, along with new benefits included to simplify tax collection.
II. Generalities of the tax incentives by subject matter
A) Income Tax
- Reduction of the Employees Profit Sharing for provisional tax payments.
The Tax Benefit Decree includes the Decree published in the Official Daily of the Federation (the “DOF”) of November 28, 2006, which contains an incentive that enables entities to pay taxes under the General Regimen of the Income Tax Law, to diminish their taxable income for the provisional payments as Income Tax (the “ISR”), the amount of the Employees Profit Sharing (the “PTU”) paid in the same fiscal year. Said provision describes how to obtain such reduction. The PTU reduction cannot be deducted from the accumulated income of the taxpayer.
- Reduction of the amount of the immediate deduction to determine provisional payments.
The Tax Benefit Decree includes the Decree published in the DOF on November 28, 2006, regarding the incentive that allows entities that pay tax under the General Regimen of the ISR Law, to lower their tax profit determined for the purpose of making provisional payments of ISR, the amount of the immediate deduction for the investment in new fixed assets made in the same fiscal year according to Article 220 of the ISR Law.
- Applicable guidelines to apply the incentives of the PTU and the immediate deduction.
The incentives may be applied in up to the base tax profit for the payment of applicable provisional payments, but in no event shall the profit quotient of the provisional payments be recalculated.
- Donation of basic goods for human subsistence.
The Tax Benefit Decree includes the Decree published in the DOF on January 26, 2005, that provides for incentives for charitable donations of basic goods for human subsistence, consisting in an additional deduction of an amount of 5% of the cost of goods that would have corresponded had they been sold; provided, however, the gross profit margin of the goods donated in the fiscal year when the donation was made must be equal to or greater than 10%. In the event is less, the percentage of the additional deduction will be reduced to 50% of the gross profit margin.
- Passenger or cargo aircraft leases.
The Tax Benefit Decree includes the incentive published in the DOF on November 29, 2006, applicable to those taxpayers resident in Mexico for tax purposes who use airplanes under a concession or permit from the Federal Government for the commercial transportation of passengers or cargo and are leased to foreign residents that do not have a permanent establishment in Mexico; provided, however, the lease agreement provides that the amount of ISR incurred by the Second Paragraph of Article 188 of the ISR Law, which will be paid by the resident of Mexico for tax purposes. This incentive consists in a tax credit equivalent to 80% of the ISR payable.
- Employment of the elderly and the handicapped.
The Tax Benefit Decree includes the incentive published in the DOF on March 8, 2007, allowing individuals or entities ISR tax payers the right to deduct from their accumulated taxable income for the corresponding fiscal year, an additional amount equal to 25% of the effective salary paid to the following individuals: (i) individuals who are 65 years old or more, (ii) suffer from a motor function handicap, that requires the use of a permanent prosthesis, crutches or wheelchair; mental handicap; hearing; or, language deficiency, greater than 80% of the normal capacity or blind individuals.
- Historical landmarks.
The Tax Benefit Decree includes the various Decrees published in the DOF which are establishing tax incentives to rescue historical landmarks, allowing entities taxpayers under the General Regimen of the ISR Law, includes individuals who grant the temporary use or enjoyment of real property to deduct on an immediate basis up to 100% of their investment in real property in the areas detailed by such Decree.
- Long-Term Productive Infrastructure Projects.
The Tax Benefit Decree includes the fiscal incentive contained in the Decree published in the DOF on May 12, 2006, allowing entities which are taxpayers under the general Regimen of the ISR Law, and which participate in Long-Term Productive Infrastructure Projects ( the “PIDIREGAS”) by means of financial public works, entered into up to December 31, 2004, to consider as accumulated income for the fiscal year the estimated advance in the public works project even though if they are not authorized to charge same, allowing a ISR deduction of the corresponding cost of what is sold against said income in the method indicated in such Decree.
- Deduction for the leasing of automobiles.
The Tax Benefit Decree includes the Decree published in the DOF on April 23, 2003 granting entities which are taxpayers under the General Regimen of the ISR Law, as well as individuals engaging in professional and entrepreneurial activities, that make payments for the use or temporal enjoyment of automobiles, to deduct up to MexPs$250 per day for each vehicle, so as long as such taxpayers comply with the requirements for deductibility of said disbursements under the terms of applicable ISR regulations, in lieu of applying the deduction of said payments in the amount indicated in Section XIII of Article 32 of ISR Law, that is MexPs$165.00 per day.
The Tax Benefit Decree provides that individuals who are obligated to include interest received as income taxable may opt to not declare in their annual tax return, the amounts of interest received, as long as they treat the amount interest received as a final payment of ISR, the amount withheld by the payer of such amounts of interest.
- No longer necessary to file certificates of withholding.
The Tax Benefit Decree allows companies that are obligated to withhold ISR and Value Added Tax (the “IVA”) to opt out of filing certificates of such withholding, only when the individual who rendered the professional services or leased assets issues a Digital Tax Invoice by Internet in compliance with the requirements established by Articles 29 and 29-A of the Federal Tax Code (the “CFF”) and that the said Invoice the amount of tax withheld is specifically mentioned.
B) Corporate Flat Tax
- Option to accumulate income.
Taxpayers who engage in activities described in Article 1 of the Corporate Flat Tax Law may declare Corporate Flat Tax (the “IETU”) on the same date where ISR is taxable instead of accumulating taxable income until such income is effectively received. The Tax Benefit Decree includes the ISR criteria published in the DOF on November 5, 2007.
- Real Estate and Infrastructure Trusts and Real Estate and Infrastructure Companies.
The Tax Benefit Decree grants the option to grantors of assets to Real Estate Trusts (the “FIBRAS”) referred to in Article 223 of the Income Tax Law, to deem the transfer of said assets as taxable income on the same date when such grantors are mandatory obligated to consider for such transfer for purposes of the ISR or to allow the taxpayer to consider the income as taxable delay until such profit is effectively received for said transfer.
- Option for provisional payments.
Taxpayers that have no obligation to provide audited financial statements, except those who do, but that in the prior fiscal year had taxable income in the aggregate in an amount up to MexPs$40´000,000 and which are obligated to make IETU provisional payments, in lieu calculating provisional payments of IETU on odd months (January, March, May, July, September and November) of the corresponding fiscal year, may calculate as of the month of May 2012, said IETU payments taking into account the two IETU months paid immediately preceding the corresponding provisional payment calculated under the terms described in this Decree.
C) Value Aggregate Tax
- Domestic suppliers of companies subject to the Program for the Promotion of the Manufacturing Industry, Assembly Plant and Export Services.
The Companies subject to a Program for the Promotion of the Manufacturing Industry, Assembly Plant and Export Services (the “IMMEX”) under the terms of the Decree published in the DOF on November 1, 2006, may withhold IVA transferred for the purchase of assets, under the terms of Section IV of Article 1-A of the IVA Law, without having to comply with the Domestic Supplier Program, so as long as such companies satisfy such requirements that under the Tax Benefit Decree.
- Importers or Sellers of juices, nectars, concentrates and beverages with milk and non-gaseous water.
The Tax Benefit Decree includes the Decree published in the DOF on July 18, 2006 which establishes an incentive to importers or sellers of juices, nectars, fruit or vegetable concentrates and beverages where milk is a component that is added with vegetables, lactic cultures, lactobacilli, sweeteners or other ingredients, such as yogurts, fermented lactic products or shakes, containing non-gaseous water or compiled in containers of less than ten liters, that are taxed of up to 100% of the IVA payable for the importation or sell of said products should only apply, when IVA it is not transferred to the buyer of such products. This tax incentive is deductible against IVA payable for said activities.
- Transactions with a 0% rate.
IVA Taxpayers and those who carry out activities described in Article 23-A of the IVA Law who are levied with a 0% IVA rate may opt to not declare the information mentioned in Section VII of Article 32 of the IVA Law, in their ISR Returns so as long as they timely comply with the obligation to file monthly information referred in to Section VIII of Article 32 of the IVA Law.
- Exemption of interest of Cooperative Entities.
The Benefit Decree exempts IVA payments on interest received or paid to partners or clients by savings and loans cooperative entities, including popular financial entities, community financial entities and rural financial integration organizations mentioned in the Law of Popular Savings and Credit, and compliant with the applicable regulations to operate as such under the Article 14, Section X, Item b) of the IVA Law.
D) Cash Deposit Tax
- Cash Deposit Tax Refund.
The Tax Benefit Decree grants the benefit published in the DOF on June 30, 2010, the corresponding taxpayers requesting the refund of the difference of Cash Deposit Tax (the “IDE”) paid after applying the credit and compensation procedures, may exercise the option to not present the certification referred to in the Fourth Paragraph of Article 8 of the IDE Law, as long as they file timely information by means established by general rules issued by the Tax Administration Service (the “SAT”).
E) Federal Tax Code
- Financial statements audited by an authorized public accountant.
Taxpayers obligated to file audited financial statements by an authorized public accountant, who in the prior fiscal year had accumulated incomes or up to MexPs$40’000,000 may opt to not file said audit financial statements, so as long as the value of their assets or the number of their employees exceeds not the capped amounts provided for in Section I of Articles 32-A of the CFF. In the event such option is exerted by taxpayers are required to file ISR Returns under the general rules issued by the SAT.
- Option to file provisional or final tax returns.
The Tax Benefit Decree provides that taxpayers that must file provisional or final tax returns of their federal taxes payable no later than the 17th day of the following day of the month to which the Tax Return corresponds for their own taxes or for withholdings, taxpayers may, taking into its account, the sixth numerical digit of their Federal Taxpayer registrations (the “RFC”), file Tax Returns no later than the date specified by the Tax Benefit Decree. Likewise, this Tax Benefit Decree provides where such provision is not applicable.
- Fiscal consolidation.
The Tax Benefit Decree incorporates sundry rules applicable to taxpayer entities using consolidation regimen and applying tax incentives provided in the Tax Benefit Decree.
F) Common conditions of the Tax Benefit Decree
Sundry common conditions are established, vis-à-vis, the tax incentives in the Tax Benefit Decree, like: (i) incentives are not taxable incomes for tax purposes of ISR; (ii) it is not mandatory to notice of the application or crediting of the tax incentives established by Decrees issued by the Executive Power, except when said obligation is expressly provided for in such tax incentives; or, (iii) such incentives shall be applicable when the taxpayer files tax information established by the SAT in general rules.