printable version | March 2022
February 24, 2022, went down in history as a turning point for dozens of multinational brands, who, two weeks after the start of the war, are still looking for a solution that will mark their position and leadership between the thin line of morality and financial impact... this is what consumers around the world demand.
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printable version | March 2022
The Federal Economic Competition Commission (“COFECE”) issued an opinion addressed to the Chamber of Deputies through which it recommends not approving the “Decree initiative to reform articles 25, 27 and 28 of the Political Constitution of the United Mexican States”, presented by the President of the Republic on September 30, 2021.
Read full note here.
When starting a new business, it is necessary to define the commercial objective, the target market, the financial projections, the logistics, the supply chain and the value for the clients, among other indispensable elements. However, it is common for entrepreneurs to forget to take into account the legal aspects that will allow them to grow in a sustained and formal manner.
The Law + Entrepreneurship clinic of Tecnológico de Monterrey, currently present at the Mexico City and Santa Fe campuses, is a space where students and recent graduates of the Law degree have the opportunity to advise social entrepreneurship projects from a corporate legal perspective.
Veversion to print | November 2021
The 2022 tax reform proposes establishing stricter requirements for the deduction of bad debts.
Currently, the Income Tax Law allows for the deduction of uncollectible credits due to “notorious practical impossibility of collection” in debts greater than 30 thousand investment units (approximate value $208,684.98 MX) provided that the debtor has been sued judicially or arbitration. This has allowed taxpayers to apply this deduction from the moment the lawsuit is filed or the arbitration procedure is initiated.
The reform proposes to extend this requirement in order to force taxpayers to obtain a final resolution issued by the competent authority, which demonstrates that they have exhausted all collection efforts or, where appropriate, that it was impossible to enforce the resolution. This means that taxpayers will have to postpone the deduction and that the legal costs they will have to incur will increase.
This treatment will not apply to legal entities under the simplified trust regime proposed by the reform. Since these taxpayers will accumulate their income only until they receive it, they will not have this problem since the deduction of these debts is made by taxpayers who accumulated income that was never collected.
We recommend that you identify your debts that exceed this threshold and analyze the possibility of promoting the legal procedures required for the respective deduction in this fiscal year, that is, before the reform comes into force.
***The publication of this note does not constitute legal advice, nor is it intended to be applicable to particular cases.
If you require additional information, please contact the partner responsible for your matters or one of the lawyers mentioned below:
Veversion to print | November 2021
In December 2020, the 2021 Miscellaneous Tax Resolution (“RMF 2021”) was published, which included the obligation to incorporate the bill of lading complement to the digital online tax receipt (“CFDI”) of income type and to the CFDI of transfer type, as appropriate for the operation.
The Bill of Lading Supplement is the document that supports the legal ownership or possession of the transfer of goods, which must comply with certain requirements provided for in the tax provisions.
The deadline for entry into force has been postponed. In the early version of the RMF, it was indicated that the use of the Carta Porte Complement was mandatory as of December 1, 2021. However, on November 25, 2021, the Fourth Resolution of Modifications to the RMF 2021 1st early version was published on the Tax Administration Service (“SAT”) portal, where rules 2.7.1.8 and 2.7.1.9, as well as the Thirty-Sixth Transitory Article of the RMF 2021 They foresee that the use of the Carta Porte supplement will be mandatory from January 1, 2022.
It is important to mention that taxpayers will be able to apply the benefits contained in the advance versions published by the SAT once they are published on the SAT Portal.
We remain at your service for any questions regarding the Bill of Lading Supplement, who is required to issue the aforementioned supplement and its respective implementation.
***The publication of this note does not constitute legal advice, nor is it intended to be applicable to particular cases.
If you require additional information, please contact the partner responsible for your matters or one of the lawyers mentioned below:
printable version | December 2021
On December 1, 2021, the Council of Representatives of the National Minimum Wage Commission (“CONASAMI”) approved a 22% increase to the current general minimum wage of $141.70 pesos and to the minimum wage in the Northern Border Free Zone of $213.39.
The new minimum wages were determined by a direct increase of 9%, plus the amount of $16.90 pesos for the Independent Recovery Amount (“MIR”) for the general minimum wage and $25.45 for the minimum wage in the Northern Border Free Zone.
As a result of the aforementioned modifications, the new general minimum wage as of January 1, 2022 will be $172.87 pesos and the minimum wage in the Northern Border Free Zone will be $260.34 pesos.
Professional minimum wages will also receive a 22% increase.
If you require additional information, please contact the partner responsible for your matters or one of the lawyers mentioned below.:
printable version | December 2021
On November 29, 2021, the Ministry of Environment and Natural Resources (“SEMARNAT”) published in the Official Gazette of the Federation (“DOF”), the Mexican Official Standard NOM-013-ASEA-2021, Liquefied Natural Gas Storage and Regasification Facilities (“NOM-013-ASEA-2021
The purpose of this Standard is to establish the specifications and technical requirements in terms of Industrial Safety, Operational Safety and Environmental Protection that must be applied in the Design, Construction, Pre-start-up, Operation and Maintenance of Liquefied Natural Gas Storage and Regasification Facilities on land and offshore.
It should be noted that the aforementioned standard repealed NOM-013-SECRE-2012, Safety requirements for the design, construction, operation and maintenance of liquefied natural gas storage terminals that include systems, equipment and facilities for receiving, conducting, vaporizing and delivering natural gas.
The Decree came into force the day after its publication in the DOF.
If you require additional information, please contact the partner responsible for your matters or one of the lawyers mentioned below:
printable version | December 2021
On December 8, 2021, the Ministry of Environment and Natural Resources (“SEMARNAT”) published, in the Official Gazette of the Federation (“DOF”), the “AGREEMENT by which the general public is informed of the days of December 2021 and 2022 that will be considered non-working days for the purposes of administrative acts and procedures carried out by the Ministry of Environment and Natural Resources and its decentralized administrative bodies” (the “Non-Working Days Agreement”).
This establishes the vacation period corresponding to the second half of 2021, during which work will be suspended and no deadlines and terms will run for the purposes of administrative acts and procedures carried out in the exercise of their powers by the different administrative units of SEMARNAT and its decentralized administrative bodies, which includes the days 20, 21, 22, 23, 24, 27, 28, 29, 30 and 31 December 2021, as well as the following days of 2022:
1.- As ineligible, with suspension of work:
February 7, in commemoration of February 5;
March 21;
April 14 and 15;
May 5;
16 of September;
November 2nd; and
November 21, in commemoration of November 20.
2.- As unfit, without suspension of work:
1 September.
The Decree came into force the day after its publication in the DOF.
If you require additional information, please contact the partner responsible for your matters or one of the lawyers mentioned below:
Version pto print | December 2021
On December 14, the Congress of Mexico City (“CDMX”) approved the tax reform for 2022. Among the relevant points of said reform is the incorporation of a new obligation for digital platforms to pay the government of the City a “profit” equivalent to 2% of the total collection they make for each delivery of goods (parcels, food, groceries or any merchandise) in CDMX.
Although this “exploitation” should not be passed on to the consumer, this measure will have an economic impact on all those involved in the distribution chain. This payment is identified as a “exploitation” (and not a tax) because the reform considered that it derives from the use of the CMDX urban infrastructure.
It is important to note that the “taking advantage” rate is not progressive (fixed), nor does it allow for any type of deduction or adjustment, and it also creates unequal treatment for the platforms. Therefore, in our opinion, this measure contains flaws of unconstitutionality that could be challenged judicially by the affected digital platforms through an amparo trial, since, regardless of whether it has been identified as “taking advantage”, it has the characteristics of a tax.
We reiterate that we are at your disposal to discuss any matter related to this note.
***The publication of this note does not constitute legal advice, nor is it intended to be applicable to particular cases.
If you require additional information, please contact the partner responsible for your matters or one of the lawyers mentioned below:
printable version | January 2022
On December 20, 2021, the Ministry of Health published, in the Official Gazette of the Federation, the new Mexican Official Standard NOM-241-SSA1-2021, Good manufacturing practices for medical devices, which aims to establish the minimum requirements for the processes of design, development, manufacturing, storage and distribution of medical devices for use by the patient or final consumer. According to the General Health Law, medical devices include medical equipment, prostheses, orthoses and functional aids, diagnostic agents, dental supplies, surgical and healing materials, as well as hygienic products.
The aforementioned NOM classifies medical devices according to the risk that their use represents: Class I, Class II and Class III. Likewise, the Quality Management System, through the measures adopted, guarantees the quality of medical devices for their intended use, incorporating the standards of GMP, GMP, GMP, GMP and the principles of Risk Management.
Additionally, the standard establishes criteria for the design and development of medical devices, which must be planned by the person responsible for the development area of the same, as well as the requirements that must be met by the facilities and equipment used at the time of manufacturing, storage and release of finished products on the market, to guarantee the quality of the medical devices.
Based on the above requirements, a system for qualification and validation of compliance with the standard is incorporated, as well as studies on the stability and final destination of waste, also establishing a complaints system for users that makes the communication of faults with the devices effective.
The entry into force of this Standard will render the Mexican Official Standard NOM-241-SSA1-2012, Good manufacturing practices for establishments dedicated to the manufacture of medical devices.
If you require additional information, please contact the partner responsible for your matters or one of the lawyers mentioned below:
printable version | January 2022
On December 31, 2021, the Energy Regulatory Commission (“CRE”) published in the Official Gazette of the Federation (“DOF”), the “Agreement No. A/037/2021 of the Energy Regulatory Commission by which Agreement No. A/049/2017 is modified, which issues the interpretation criteria of the concept of Own Needs, established in article 22 of the Electricity Industry Law, and which describes the general aspects applicable to the Isolated Supply activity”[1] (he "Agreement”), through which new criteria of interpretation on the subject of reference were issued.
According to what has been published, the Agreement has the following main objectives:
The Agreement proposes, among others, the following modifications:
“A group of individuals or legal entities organized under schemes of direct or indirect participation of share capital, provided that in that group all legal entities qualify as companies that produce and/or market goods or provide services, in which the same company maintains control of said legal entities.
Control will be considered to exist if a natural person or legal entity directly or indirectly owns the majority of the shares, equity interests, contributions or securities in circulation with voting rights of the controlled company(ies)."
"(...) the generation or importation of electrical energy, consumed by the Load Centers of the same physical or legal person, or of a group of these that belong to the same Economic Interest Group, or for export, without transmitting said energy through the National Transmission Network or through the General Distribution Networks.
For the purposes of the preceding paragraph, it will be considered that de jure control, as well as related interests and coordination of activities can be demonstrated and, consequently, an Economic Interest Group exists when any of the following criteria or a combination thereof are met:"
"(…) the generation or importation of electrical energy to satisfy own needs or for export, without transmitting said energy through the RNT or through the RGD[2].
Isolated Supply facilities may or may not be permanently or temporarily interconnected or connected to the RNT or the RGD for the sale of surpluses or purchase of shortages of Electric Energy and Associated Products through the interconnection or connection point, as appropriate.
In these cases, the holder of the generation permit must be: a) the natural or legal person who consumes the electric energy; b) one of the persons who make up the economic interest group; or c) It is repealed. (…)"
Following the modifications previously proposed, the consequences and impacts for the electricity sector are increasingly greater, since these modifications were proposed from a specific and independent point of view without taking into consideration the general panorama of the operation and the production chain of the industry.
An example of the above is the impossibility of delegating activities of financing, installation, operation, maintenance, etc., of power plants to third party experts, understanding that now the load centers will be the only ones that can carry out the actions and works necessary for their operation directly, which will result in additional expenses and costs for those who participate in the Isolated Supply schemes and, as a consequence, the general prices of electric energy will rise and competitiveness in the sector will be limited.
Another consequence derived from the Agreement is the repeal of numerals 2.3 and 3, paragraphs two, three and four, by means of which the figure of local generation is eliminated, which, unlike what is contemplated and raised in the Agreement, does not constitute a new modality of ownership of an electricity generation permit, but rather this figure is contemplated within the specifications and modalities of generation covered by the permit granted by the CRE, in addition to the fact that by eliminating the figure of local generation, a reduction is presented in the alternatives to which users can access, taking into consideration that it is one of the figures of energy generation that seeks to reduce the costs of generation and supply of electric energy for end users, and makes it impossible for generators to recover their costs through the sale of surpluses.
It is important to highlight that the CRE requested the National Commission for Regulatory Improvement (“CONAMER”) the exemption from submitting the regulatory impact analysis (“AIR”), since it considered that the proposed modifications do not affect the rights of individuals. However, the reality is that each and every one of the proposed modifications affect, to a greater or lesser extent, the rights and interests of individuals who carry out generation activities under the modalities of isolated supply and local generation, especially by eliminating the figure of local generation because the rights acquired by individuals who carry out this type of activity, and whose power plants are in operation, will be affected, making it impossible for some participants to migrate to the MEM, as well as being able to continue carrying out their activities.
Furthermore, the proposed modifications not only have the real objective of limiting the activity of energy generation under the Isolated Supply and Local Generation modalities, but they also affect the interests and rights of end users by limiting the electricity supply options to which they have access, raising generation and supply costs and restricting the business models of generators, which generates a distortion in the market and violates, mainly, the principles and rights of free competition and economic competition in the electricity generation and supply sector, as well as legal security and certainty.
In this regard, the general director of competition promotion of the Federal Economic Competition Commission (“COFECE”) sent, via email to CONAMER, COFECE's comments regarding the draft Agreement, through which, among other issues, it was recommended that the Agreement be subject to the regulatory improvement process with an AIR with an impact on competition because the proposed modifications limit the use of efficiency in the generation of electric energy under the self-supply scheme, as well as preventing access to electric energy in the best conditions, compromising the competitiveness of the sector. However, said comment was not taken into consideration since the exemption was granted.
In accordance with the above, there are arguments and defense mechanisms available to the agents involved and affected by the modifications proposed in the Agreement, in order to maintain and respect the balance and certainty of the current legal framework in the energy sector. Specifically, it is possible to file an amparo lawsuit against the Agreement, for which there is a period of 30 business days from its entry into force.
Our office offers the possibility of supporting the affected agents based on the arguments presented in general in this document, as well as on the specific aspects derived from the analysis and study of each particular case, with the purpose of developing a strategy for each situation, with the collaboration of our lawyers specializing in energy, economic competition, human rights, constitutional litigation and protection of rights.
The Agreement entered into force the day after its publication in the DOF.
[1] Original publication in DOF: https://www.dof.gob.mx/nota_detalle.php?codigo=5639919&fecha=31/12/2021
[2] Where RNT means “National Transmission Network” and RGD means “General Distribution Networks”.
If you require additional information, please contact the partner responsible for your matters or one of the lawyers mentioned below:
printable version | January 2022
On December 30, 2021, Annex 1-A of the 2022 Miscellaneous Tax Resolution (“Annex 1-A RMF 2022”) was published, which provides that taxpayers who intend to file the cancellation notice in the RFC due to a merger of companies (“Cancellation Notice”) must first comply with the procedure provided for in form 316/CFF (“Compliance Notice”), through which it is verified that the merging party complies with the requirements so that the Cancellation Notice can be filed.
Essentially, it must be verified that the merging company does not have tax credits, is not published on blacklists and that the declared income matches the digital tax receipts issued. The authority has a period of 10 business days to resolve this procedure, without implying that the deadline for submitting the Cancellation Notice is suspended.
As a result of the above, there is a risk that mergers that were concluded at the end of 2021 may not obtain the Notice of Compliance in time, which would result in the mergers being considered taxable for tax purposes.
In light of the above, we remain at your service to analyze what alternatives can be implemented to mitigate these tax consequences.
***The publication of this note does not constitute legal advice, nor is it intended to be applicable to particular cases.
If you require additional information, please contact the partner responsible for your matters or one of the lawyers mentioned below:
