Amendment to Article 113 Bis of the Federal Tax Code: criminal liability of digital platforms and constitutional and conventional tensions

Executive Summary

• In connection with the fiscal package for fiscal year 2026, the federal legislator introduced an amendment to Article 113 Bis of the Federal Tax Code (“CFF”) which, although formally aimed at combating simulated invoicing schemes, significantly redefines the criminal liability regime applicable to digital platforms.

• The reform broadens the scope of the criminal offense by expressly providing for the possible liability of digital service platforms that allow the publication of advertisements related to the acquisition or sale of tax receipts that cover non-existent, false or simulated transactions.

• This modification raises relevant questions from a threefold perspective: (i) fiscal-criminal, regarding the standard of imputation and duties of control; (ii) constitutional, with respect to the principles of legality in criminal law, presumption of innocence, and legal certainty; and (iii) conventional, in relation to the commitments assumed by Mexico in international treaties, particularly in the area of ​​digital trade.

• Beyond its immediate impact on the tax field, the reform introduces a structural change in the way the Mexican legal system conceives the responsibility of digital intermediaries, with relevant practical implications for platforms, economic operators and corporate legal areas.

Prior to the amendment, Article 113 Bis of the Federal Tax Code (CFF) criminally penalized those who issued, acquired, or sold false tax receipts, as well as anyone who knowingly permitted or published advertisements related to such conduct through any medium. The requirement of actual knowledge served as a defining element of the criminal offense and limited its application to cases of conscious participation in illicit schemes.

The published reform eliminates, for certain individuals, this subjective element and expressly adds digital service platforms as potential targets of the criminal law, introducing a standard focused on the act of "allowing the publication" of the aforementioned advertisements. With this, the focus of criminal liability shifts from knowledge of or direct participation in the content to the mere existence of the content within a digital environment managed by the platform.

This seemingly technical adjustment substantially transforms the design of the criminal offense and significantly expands the universe of potentially responsible subjects.

From a fiscal perspective, the reform strengthens the State's strategy to combat fraudulent invoicing networks, extending the scope of liability beyond the direct issuers and purchasers of false tax receipts. However, this strengthening relies on a model of imputation that may create friction with basic principles of administrative and criminal law.

In particular, the notion of “allowing publication” raises questions about the existence—or not—of a general duty of prior supervision by platforms, as well as about the reasonable limits of diligence required in environments characterized by a high volume of content generated by third parties.

Furthermore, the reform could influence how tax and administrative authorities design their research and inter-institutional coordination strategies, by incorporating digital intermediaries as relevant actors within the tax compliance ecosystem.

From a constitutional perspective, the amendment to Article 113 Bis of the Federal Tax Code requires careful analysis in light of the principles of legality, specificity, and culpability. Expanding the scope of the criminal offense through open or indeterminate concepts can create scenarios of legal uncertainty, particularly when dealing with individuals whose primary activity does not involve generating the sanctioned content.

Additionally, the absence of a clear subjective element for certain cases of responsibility could strain the principle of presumption of innocence and the requirement that all criminal sanctions be based on personally reprehensible conduct, and not exclusively on the position one occupies within an economic or technological chain.

These aspects foreseeably anticipate relevant constitutional debates in the jurisdictional arena, both in the area of ​​diffuse control and the amparo trial.

The reform must also be analyzed in relation to Mexico's international commitments, particularly those related to digital trade and the liability of intermediaries. The introduction of criminal liability schemes based on content generated by third parties could be subject to scrutiny from the perspective of trade agreements that seek to limit general surveillance duties and protect digital intermediation.

In this context, it cannot be ruled out that the application of the new Article 113 Bis may give rise to questions in international forums or to controversies related to the interpretation and fulfillment of conventional obligations.

The reform requires digital platforms, companies operating in digital environments, and corporate legal departments to review their internal policies for controlling, moderating, and responding to potentially illegal content, as well as their cooperation mechanisms with tax authorities.

From the perspective of fiscal, administrative, and constitutional defense, it will be crucial to evaluate, case by case, the real scope of the new provisions, as well as the available avenues of appeal against acts of application that may violate fundamental rights or exceed the limits of the principle of criminal legality.

The amendment to Article 113 Bis of the Federal Tax Code (CFF) transcends the strictly tax-related sphere and silently but significantly redefines the liability regime applicable to digital intermediaries in Mexico. Its proper implementation will require a careful balance between the legitimate objectives of combating illicit tax practices and the preservation of constitutional and conventional principles that underpin legal certainty and due process.

Monitoring its practical application and the jurisdictional criteria issued in this regard will be crucial to assessing its real impact on the tax system and the digital ecosystem.