THE 0 % RATE PROVIDED IN ARTICLE 29, SECTION IV, PARAGRAPH D), OF THE VALUE ADDED TAX LAW, IS APPLICABLE TO THE CONSIDERATION FOR COMMISSION SERVICES, ONLY IN THE CASE OF THE EXPORT OF GOODS OR SERVICES THAT TAKE PLACE ABROAD.
In recent days, the Judicial Weekly of the Federation published the thesis I.10o. A (11a.) issued by the Tenth Collegiate Court in Administrative Matters of the First Circuit, which addressed the study that the 0 % rate provided in article 29, section IV, paragraph d), of the Value Added Tax Law (hereinafter “VAT”), is applicable as long as the considerations charged to residents abroad, without a permanent establishment in Mexico, come from exported services that take place abroad.
The referred thesis states that a taxpayer who works as a commission agent of a foreign shipping company, sued before the Federal Court of Administrative Justice (TFJA) the nullity of the refusal of the Tax Administration Service (SAT) to return the VAT credit balance derived from the services contracted to third parties, related to arrivals and departures of ships of the foreign shipping company with which it has entered into a commercial commission contract.
The criterion states that the respective Chamber recognized its validity, for which reason the former filed a direct amparo lawsuit, considering that the 0% rate is applicable to the commissions received for the services mentioned above.
Thus, the judges of the Collegiate Circuit Court ruled that the 0% rate provided in Article 29, Section IV, paragraph d) of the VAT Law is applicable, provided that the considerations charged to residents abroad, without a permanent establishment in Mexico, come from exported services that take place abroad, since the Second Chamber of the Supreme Court of Justice of the Nation, in the isolated thesis 2a. CXXIX/2015 (10a.), held that the application of the 0% rate is subject to the fact that both the service rendered and the goods sold are actually used abroad and not within the country, given that the export of goods and services has a fundamental importance in the national economic development, so it is necessary that a special treatment be granted.
In this sense, the criterion continues to point out that the scope of the concept “benefit” should not be understood in a broad sense, nor under the perspective of a benefit or eventual economic gain obtained by the person residing abroad with whom the national company carries out the commercial operation. Thus, the terms “benefit” and “rendering of service” are closely linked, because at the moment the service is rendered, simultaneously, the benefit is susceptible of appreciation by the person requesting it, therefore, this is configured through the rendering of the service in question, therefore, to the commission for the export of goods or services is applicable the 0% rate of the mentioned tax, as long as the use, enjoyment or enjoyment is abroad, otherwise the general rate will be applicable.
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.
