Pursuant to the content of the Eighth Transitory Article of the Decree published on November 12, 2021, which amended, added, and repealed several provisions of the Federal Tax Code and other regulations, on January 1, 2023,
the addition of the sixth and seventh paragraphs of Article 23 of the aforementioned Code came into effect
The paragraphs in question establish that taxpayers may choose to correct their tax situation through the application of the amounts they are entitled to receive from the tax authorities for any concept, i.e., to offset.
In order to be able to carry out the referred compensation for tax correction, the legal provisions established enabling clauses for the Tax Administration Service to regulate the corresponding procedure and requirements, through
general provisions.
The foregoing becomes valuable since in 2019 universal compensation was eliminated, through Article 25, section VI of the Federal Income Law for the Fiscal Year 2019, which established that taxpayers obliged to pay through a tax return could only choose to offset the amounts they had in their favor against the amounts they were obliged to pay due to their own debt, provided that both derived from the same tax, including their accessories.
Derived from the above, we consider that article 23 of the Federal Tax Code violates the principle of tax equity, by allowing universal offsetting for those taxpayers who are within the powers of verification, excluding other
taxpayers.
In this sense, the article in question provides for a distinction of treatment among taxpayers, by allowing the aforementioned right of correction, offsetting balances, exclusively to taxpayers subject to verification powers, while those taxpayers who wish to correct their tax situation without the mediation of an auditing act, are not allowed to carry out the aforementioned offsetting.
This inequitable treatment allows taxpayers excluded from this tax benefit to challenge it before the district courts in order to enjoy it.
Derived from the foregoing, the tax team of Vega, Guerrero & Asociados is ready to advise companies that require information regarding this issue or other acts of nuisance by the authorities
