In recent days, the Judicial Weekly of the Federation published the thesis II.3o.A.12 A (11a.) issued by the Third Collegiate Court in Administrative Matters of the Second Circuit, whereby it addressed the study regarding the fact that the Value Added Tax (hereinafter “VAT”) must be considered as effectively paid in order to proceed with the refund of the balance in favor, requested by the taxpayer that sold a good or rendered a service, but transferred it to the acquirer.
In the referred thesis it is noted that a taxpayer filed a contentious administrative trial against the denial of the request for the refund of the balance in favor of the value added tax, which was transferred to the purchaser of the good or service rendered.
The criterion states that the Regional Chamber of the Federal Court of Administrative Justice declared the nullity of the challenged resolution, recognized the right of the plaintiff to the refund, and sentenced the authority to make it.
Dissatisfied, the tax authority filed an appeal for review, considering that the decision of the Chamber was illegal, for not correctly interpreting the term “effectively paid”.
In this manner, the judges of the Collegiate Circuit Court ruled that the moment in which the VAT must be considered as effectively paid for the refund of the related credit balance, requested by the taxpayer who sold a good or rendered a service, but transferred it to the purchaser, is when the amount equivalent to the referred tax was effectively paid and that it was transferred to the withholding taxpayer since the latter is the one who will pay it to the tax authority.
In this sense, if the person to whom the VAT was charged is the one who sold a good or rendered a service, but transferred it to the purchaser, then the moment that must be considered for this case is when the amount of the tax is transferred to the withholding taxpayer, so that its crediting is not subject to the fact that the person who sold the good or rendered the service had declared and reported before the tax authority the tax that must be paid by the final consumer.
Derived from the above, the tax team of Vega, Guerrero & Asociados remains at your disposal to provide the corresponding support and advice for compliance with these provisions in tax matters.
