On January 5, 2024, Annex 3 of the Miscellaneous Tax Resolution for 2024 was published in the Official Gazette of the Federation ("OGF"). The Annex contains a new Non-binding criteria 43/ISR/NV "Amounts paid to employees, partners or shareholders as labor incentives, bonuses, commissions or complementary compensation for invention, bonuses or any other similar concept, paid through third parties. They are not treated as exempt income, nor are the amounts paid to third parties deductible, nor is the Value Added Tax (“VAT”) transferred for such payments creditable". (hereinafter the "Nonbinding Ruling").
The purpose of the Non-binding criteria is to highlight undue tax practices regarding the payment of income similar to salaries to employees and/or dividends to partners and/or shareholders, which are disguised as various concepts made through a third company or association, with the purpose of avoiding the payment of income tax ("IT"), as well as the undue crediting of VAT.
In this regard, the Tax Administration Service has detected that some taxpayers make payments to their employees, partners and/or shareholders, under concepts such as labor incentives, bonuses, commissions, complementary compensation for invention, other labor compensation, premiums or any other similar concept in accordance with the Federal Labor Law ("FLL"); however, they do not withhold and pay the taxes to which the persons who make such payments are obligated, in accordance with articles 10 and 96 of the Income Tax Law (“ITL”).
Under such scheme, the employees, partners and/or shareholders of the contracting company receive economic resources with their respective CFDI for the concepts referred to in the preceding paragraph, without the legal entity considering those resources for its employees, partners and/or shareholders as income from wages or salaries, income assimilated to salaries or payment of dividends. Consequently, they are not considered subject to income tax, which is erroneous since all income paid as a result of an employment relationship, as well as the payment of dividends, are taxed, regardless of the figure used to transfer the resources. In this sense, if the income is not expressly exempted by Article 93, the income tax due must be paid.
Based on the foregoing, employers must withhold and pay the tax caused by the payment of bonuses, commissions, complementary compensation, premiums or any other similar payment, even through associations and third-party companies. Additionally, another undue tax practice identified as a result of the previous transactions, consists of the deduction by employers and corporations that pay dividends, of payments made to associations and/or companies that disburse payments to employees and shareholders. The above is not an authorized deduction in terms of article 27, section I of the ITL, since they are not indispensable disbursements for the operation of the company, nor would the VAT transferred be creditable, since it does not comply with the requirements established in article 5 of the VAT Law.
Therefore, and based on the Criteria, it is considered that they are engaging in an undue tax practice:
- Taxpayers who, for IT purposes, make payments to their workers, partners or shareholders, including through associations or corporations, for labor incentives, bonuses, commissions, complementary compensation for invention, bonuses or any other similar concept, granting them the tax treatment of exempt income, when in fact it is income from wages, salaries, income assimilated to wages or payment of dividends.
- Those who omit to withhold and pay IT on wages, salaries, income similar to salaries or dividends, as applicable, for the amounts they deliver to their employees, partners or shareholders, including through associations or corporations, under the terms of the preceding section.
- Individuals who receive the payments referred to in Section I, and do not consider such resources received as accruable income for IT purposes.
- Those who make the deduction of payments made to civil associations or any other form of society or association, so that these, in turn, make payments of labor incentives, bonuses, commissions, complementary compensation for invention, labor compensation, premiums or any other similar concept to such workers, partners or shareholders.
- Those who credit the VAT corresponding to the payments made under the terms of the preceding section.
- Whoever advises, counsels, provides services or participates in the realization or implementation of any of the above practices.
Los Criterios vinculativos son posicionamientos que emite la autoridad fiscal sobre ciertos actos o actividades que considera indebidos, no obstante que no son ilegales por disposición de ley. La emisión y publicación de dichos Criterios, tampoco resulta de aplicación obligatoria para los contribuyentes.