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  • Writer's pictureCristina Barragán Silva | L.D

Certain date for tax purposes

What is the certain date?

Currently, the tax authorities in Mexico have made clear their position regarding the requirements to consider the effective date of a private document, imposing additional formalities to taxpayers that may generate an additional burden for them.




The certain date is the actual date verifiable in specific legal acts.

Although this concept comes from Article 2034 of the Federal Civil Code, which has existed for several years in civil matters, it is from the Thesis: 2a./J. 161/2019 (10a.), of the Second Chamber in Administrative Matters, that this formality transcends to tax issues, with the purpose of avoiding simulations of acts with tax repercussions through the pre-dating of documents in legal acts:


Thesis: 2a./J. 161/2019 (10a.)

PRIVATE DOCUMENTS. MUST COMPLY WITH THE REQUIREMENT OF "CERTAIN DATE" IN THE EXERCISE OF THE VERIFICATION FACULTIES, IN ORDER TO VERIFY COMPLIANCE WITH THE TAX OBLIGATIONS OF THE TAXPAYER.


Due to this, in case of a tax review, the authority has the faculty to request supporting information (which in some cases are private documents) to verify that the activities and acts presumed by the taxpayer were actually carried out, this being the materiality of the acts.


From the above it follows, that the tax authority, asserting its faculties of verification, will request that private documents such as loan agreements, credit, provision of services, leasing and minutes of assemblies or any document in which it is agreed to distribute remainders, dividends, transfer of shares or corporate parts, among others; that although in commercial matters or civil matters, their notarization is not mandatory, but which for the tax authorities will be practically nonexistent if they do not have a certain date, thus generating an additional burden for the taxpayer, who will have to find a way to comply with this requirement.


For such purpose, the Federal Civil Code stipulates three ways to prove the certain date, which are:


Registration in the Public Registry of Property. When a contract is registered in the Public Registry of Property in the locality -prior payment of fees-, it acquires a certain date.


Death of one of the signatories. Dead people cannot sign. If one of the parties dies, it is established that the contract had to be signed before his death, thus covering the requirement.


Presentation before a notary public. Notaries and public brokers are vested with public faith. The date on which a contract is signed and notarized before a notary public is certain.


The first of these can be simple. However, this entails an additional cost for the taxpayer and, as if this were not enough, this act loses privacy as it becomes a public document available to anyone who requests it at the Public Registry of Property.


The second, fortunately, only becomes a form of accrediting the certain date due to its nature.


The third form, like the first one, in addition to the costs, generates delays in some of the taxpayer's operations.


Finally, every day taxpayers must comply with more requirements demanded by the authorities. In case you have any query about this and other issues, ask for an appointment with the advisors of Consultores Rojas, Teran y Asociados, who will be pleased to assist you.



Giving a certain date to the different legal documents of the companies in fiscal acts should be a day-to-day activity that should not generate conflicts, nor to hinder their most essential operations.

 

Published on July 7th, 2022


“In terms of article 89 of the Fiscal Code of the Federation in force, the content of this reproduction, exhibition, presentation, program, or transmission and/or the documents and/or examples used to expose it, may express positions that do not coincide with the criteria of the Mexican tax or judicial authorities. This reproduction or exhibition is not intended and may not be used by any person for the purpose of circumventing (i) a federal, local, or municipal tax, or (ii) the imposition of tax penalties in the United Mexican States.


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