In recent days, the Second Chamber of the Supreme Court of Justice of the Nation (hereinafter “SCJN”) resolved the contradiction of thesis 413/2022, regarding whether the figure of civil figure of civil compensation could be considered as a form of payment of Value Added Tax (hereinafter “VAT”).
This contradiction arose from the criteria issued by the Fourth Collegiate Circuit Court of the Auxiliary Center of the Tenth Region, in Saltillo, Coahuila, when resolving the direct amparo 559/2022 and the criteria issued by the Plenary in Administrative Matters of the Sixteenth Circuit, in Leon, Guanajuato, when resolving the contradiction of thesis 3/2022.
Now, through press release number 091/2023 the SCJN issued the jurisprudence by contradiction of thesis with the title“VALOR AGREGADO. THE INTERPRETATION OF ARTICLES 1, 1-B, 5, 17, AND 18, OF THE RELATED LAW, GENERATES THE INAPPLICATION OF THE CIVIL COMPENSATION AS AN EXTINCTIVE FIGURE OF THE TAX OBLIGATION OF THE AFOREMENTIONED TAX, FOR WHICH REASON IT DOES NOT GIVE RISE TO A REQUEST FOR A BALANCE IN FAVOR OR CREDITING. (LEGISLATION IN FORCE FOR THE 2019 AND 2020 FISCAL YEARS)”,which determined that civil compensation is not a means of payment of VAT nor can it give rise to a request for a balance in favor or crediting of the tax. With the above, taxpayers are prohibited from crediting and requesting a refund of the balance in favor of VAT, which would have been considered effectively paid by means of compensation.
Now, we consider that the contradiction unfortunately interpreted in an unfavorable way for taxpayers the provisions of articles 1-B and 5, section III of the VAT Law, since the articles refer as a means of payment any form by which the interest of the creditor is satisfied, by any means of extinction of the obligations, such as compensation.
In this sense, it is important to mention that this jurisprudence will not have retroactive effects to the detriment of taxpayers who have previously determined a credit balance or a creditable VAT through the figure of compensation. In addition, the binding effect of this jurisprudence throughout the country is subject to its publication in the Judicial Weekly of the Federation, which to date has not occurred.
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 tax authorities.
