Today, the SCJN published the isolated thesis 2025591, related to compensation between taxpayers as a means of extinguishing obligations, which according to the thesis is not prohibited to consider said contribution effectively paid. Below, we share with you the extract of said thesis:
VALUE ADDED TAX (VAT). COMPENSATION BETWEEN TAXPAYERS, AS A MEANS OF EXTINGUISHING OBLIGATIONS, IS NOT PROHIBITED IN ORDER TO CONSIDER SAID CONTRIBUTION EFFECTIVELY PAID.
Facts: A taxpayer requested the Tax Administration Service (SAT) to refund the balance in his favor for value added tax (VAT), which was denied on the grounds that he had not proven that said tax, transferred between taxpayers through compensation, had been effectively paid. Against this determination, he filed a nullity suit, in which the Regional Chamber of the Federal Administrative Court of Justice recognized its validity, considering that the law does not allow the payment of the tax through compensation between individuals.
Legal criterion: This Circuit Collegiate Court determines that there is no legal prohibition to consider creditable and effectively paid the value added tax that is transferred between individuals by virtue of operations carried out between them that have compensation as their origin, as long as it is demonstrated because, finally, the payment to the tax authority must be made in cash and in national currency.
Justification: The above, because from the systematic interpretation of articles 1o.-B, 5o., section III and 34 of the Value Added Tax Law, as well as 20, first paragraph, of the Federal Tax Code, it can be inferred that they do not require that when the payment of the consideration is made in goods or services, the transferred tax must be covered indefectibly separately and in cash, but that one and the other be broken down in the voucher for the respective operation. What they do require is that the final taxpayer, who executes the sale and the payment of the tax by carrying out the crediting mechanism, pay it to the treasury in national currency, that is, that he converts the tax that he transferred and received in goods, according to the assigned valuation, into cash that he will finally pay to the treasury in national currency. Therefore, in the case of compensation between individuals, it is enough to demonstrate the precise breakdown of the tax in the invoices according to the value of the operation for it to be considered effectively and reciprocally transferred. In fact, the law is not intended to be a mechanism that hinders the performance of taxed activities, inhibiting collection by requiring individuals to make separate payments in their operations between the consideration (in goods and/or services) and the tax transferred (in cash). In other words, it is not a matter of regulation, but of proof, since it is sufficient for the final consumer of the goods or services, whose VAT was transferred, to demonstrate that he paid it by any legal means of extinguishing obligations in order to prove that the taxpayer, who is ultimately responsible for paying it to the tax authority, in cash and in national currency, covered said tax; given that there is no legal prohibition against this being the case, even if it is a compensation between individuals, which is a common practice in the free market. To hold otherwise would imply admitting that the tax (extraction of wealth from displays of consumption) constitutes an impediment to such consumption and the commercial activity of those who lawfully agree to reciprocal compensation in goods, since it would be understood that they must always, despite this, pay out cash (even if they do not have it at that time), to the detriment of their freedom and intention to make payments in various ways protected by the constitution and law. Now, although article 2192, section VIII, of the Federal Civil Code provides that compensation will not take place if the debts (between the contracting parties) are fiscal, except in cases where the law authorizes it, regardless of the correct interpretation of such prohibition in the civil contractual context, which could give rise to the nullity of the act and independently of what should be understood by "tax debts" in that same context, what is relevant is that the rule itself establishes an exception, which is considered applicable in this particular case, since the Value Added Tax Law, in its article 1o.-B, provides that the considerations are considered effectively collected when the creditor's interest is satisfied through any form of extinguishment of the obligations, so there is no reason to exclude compensation.
FOURTH COLLEGIATE CIRCUIT COURT OF THE AUXILIARY CENTER OF THE TENTH REGION, WITH RESIDENCE IN SALTILLO, COAHUILA DE ZARAGOZA.
This announcement can be found at the following link:
https://sjf2.scjn.gob.mx/detalle/tesis/2025591