Business Strategy

May 18, 1994: Mexico joined the OECD by the “Decree promulgating the Declaration of the Government of Mexico on the acceptance of its obligations as a member of the Organization for Economic Cooperation and Development” published in the Official Federal Gazette on July 5 of the same year. This event, together with the former Free Trade Agreement[1] between Mexico, the United States, and Canada on January 1 – also in 1994 – opened the country to a mature globalization phenomenon.

 

Under the main motto of this international organization, “Better policies for better lives,” several initiatives have increased the efficiency in tax collection by the member countries. Two of those initiatives are the Model Agreement of the OECD – double taxation avoidance – and the fight against the Base Erosion and Profit Shifting (BEPS).

 

In addition to these efforts, many countries recently signed an agreement to tithe Multinational Entities (MNEs) under a worldwide minimum tax of 15% from 2023.

 

Among the 15 actions that the BEPS plan has developed, Mexico will advance in 2022 in implementing action 4: “Limitation of the erosion of the tax base through deductions of interest and other financial expenses,” published on October 5, 2015. In addition, to date, Mexico has taken significant steps through miscellaneous amendments to the Income Tax Law.

 

On December 1, 2004, Mexican Treasury published section XXVII of article 32 of the Income Tax Law in the Official Federal Gazette, which establishes the non-deductibility of interest derived from excess debts with related parties, commonly known as “thin capitalization.” With the new Income Tax Law, which entered into force on January 1, 2014, said provision shifts to section XXVII of article 28, which begins:

 

Article 28.- For this Title, it will not be deductible:

 

And it continues to the section:

 

XXVII. The interests that derive from the taxpayer’s debts exceeding three times their stockholders’ equity come from debts contracted with related parties residing abroad in terms of article 179 of this Law.

 

Since 2007, a new paragraph appeared with the purpose of offering a better alternative for those companies whose primary financing comes from their related parties residing abroad:

 

To determine their exceeding debts, taxpayers may choose to consider as stockholders’ equity the amount that results from adding the initial and final balances of the year’s common stock, net tax profit, and reinvested net tax profit accounts and divide the result of that sum by two. Those who opt for this must continue to apply it for no less than five years from the moment they choose it. Taxpayers who do not use generally accepted accounting principles to determine their stockholders’ equity will consider as stockholders’ equity for this section, the capital paid in as described in this paragraph.

 

To better understand this alternative, the Capital Contribution Account (CUCA) stands for the common stock increased by inflation and the Net Tax Profit Account (CUFIN) as the accumulated tax profits improved by inflation. In addition, the Reinvested Net Tax Income Account (CUFINRE) adds to the operation, although it is practically in disuse since few companies still maintain dividends to be distributed from 1999 to 2001. This document will name this sum as “tax equity.”

 

When comparing both options, the benefit of this fifth paragraph added in 2007 glimpses when compared to the mechanism expressed in the original paragraphs 1 to 4 of section XXVII, of article 28 of the current Income Tax Law:

 

Loans that exceed three times the stockholders’ equity (paragraphs 1 to 4 of section XXVII of article 28 of the ISR Law 2014 – 2021) Loans that exceed three times the “tax equity” (paragraph 5 of section XXVII of article 28 of the ISR Law 2014 – 2021)
 

1. Stockholders’ equity analysis:

a. Average share capital as of 12-31-2021: $281,441,100.00

b. Estimated accumulated losses as of 12-31-2021: $178,601,835.00

 

 

d. Estimated stockholders’ equity as of 12-31-2021 (a + b): $102,839,265.00

 

e. Three times the stockholders’ equity, estimated as of 12-31-2021 (3d): $308,517,795.00

 

 

1. Analysis of CUCA + CUFIN + CUFINRE

A. CUCA estimated as of 12-31-2021: $302,092,025.00

B. Estimated CUFIN as of 12-31-2021: – $1,209,020.00

C. CUFINRE estimated: $0.00

 

D. CUCA + CUFIN + CUFINRE estimated average as of 12-31-2021 (A + B + C): $300,883,005.00

E. Three times the estimated “fiscal capital” as of 12-31-2021 (3D): $902,649,015.00

 

2. Debts that generate interest with related parties residing abroad:

f. Estimated average as of 12-31-2021: $166,014,307.00

 

 

2. Debts that generate interest with related parties residing abroad:

F. Estimated average as of 12-31-2021: $166,014,307.00

 

3. Debts that generate interest with other unrelated parties or residents in the national territory:

g. Estimated average as of 12-31-2021: $188,070,187.00

 

 

3. Debts that generate interest with other unrelated parties or residents in the national territory:

G. Estimated average as of 12-31-2021: $188,070,187.00

 

4. Calculation of the deductibility factor:

h. Total sum of interest-bearing debts (f + g): $354,084,495.00

Three times the equity (e): $308,517,795.

i. Excess debt (h-e): $45,566,699.00 > excess.

 

 

4. Calculation of the deductibility factor:

H. Total sum of interest-bearing debts (F + G): $354,084,495.00

Three times stockholders’ equity (E): $902,499,015.

I. Excess debt (H-E): – $548,414,520.00 < no excess.

 

5. Proportion of related parties residing abroad (i / f)[2] :

j. Factor = 27.44%

 

 

5. Proportion of related parties residing abroad (I / F)[3]:

J. Factor = 0% (there is no excess)

 

 

6. Non-deductible interest (including exchange loss[4])

k. Interest paid to related parties residing abroad: $22,338,974.00

l. Exchange loss derived from credits with related parties residing abroad: $33,196,040.00

m. Total interest for tax purposes: $55’535,014.00

 

 

6. Non-deductible interest (including exchange loss[5])

K. Interest paid to related parties residing abroad: $22,338,974.00

L. Exchange loss derived from credits with related parties residing abroad: $33,196,040.00

M. Total interest for tax purposes: $55’535,014.00

 

 

 

There are two more observations before delving into the change approved for 2022. The first is the concept of “interest” for tax purposes. Article 8 of the Income Tax Law (with slight modifications for 2022) clarifies it:

 

Article 8.- The treatment that this Law establishes for the deductible interests should apply to exchange gains or losses accrued by the foreign currency fluctuation, including those corresponding to the principal and the interest itself.

 

It is a fact that, for many companies levered in foreign currency, the most decisive blow to deductibility is not the interests – since they agree at the LIBOR rate (average 2021: 0.075%) or the one published by the FED[6] (currently at 0.25%) – but in the exchange loss suffered by the Mexican peso against other currencies. For instance, there is a 1.5 to 1 ratio between foreign exchange loss derived from loans and the interest accrued on those same loans in the model above. The Mexican currency lost 80% of value versus the U.S. dollar, 74% vs. euro, 80% vs. yen, 135% vs. yuan, and 46% vs. the sterling pound, since 2003.

 

As a second point, on December 9, 2019, section XXXII of the same article 28 was added, which indicates the non-deductibles:

 

XXXII. When the net interest for the year exceeds the amount resulting from multiplying the adjusted tax profit by 30%.

 

This section will only apply to taxpayers whose interests accrued during the fiscal year derived from their debts exceed $20,000,000.00. This amount will apply jointly to all legal entities subject to this Title and permanent establishments of residents abroad that belong to the same group of related parties. This amount will be distributed among the group members or related parties in the proportion of the cumulative income generated during the previous fiscal year by the taxpayers who apply this section.

  

Nonetheless, losses are not interest under this section:

 

For this section, the exchange gains or losses accrued due to foreign currency fluctuation will not be treated as interest unless they derive from an instrument whose performance is considered interest. Neither will be regarded as interest for this section, the consideration for acceptance of a guarantee unless they are related to an instrument whose performance is considered interest.

 

In addition, it establishes a measure of compensation and control twinned with section XXVII:

 

The provisions of this section will only be applicable when the amount of non-deductible interest determined per the previous paragraphs is higher than that specified under section XXVII of this article, in which case, said section will not be applicable.

 

The is an assumption, using the example above:

 

Under the method of paragraphs 1 – 4 of section XXVII of article 28 of the Income Tax Law and without adjusted tax profit

 

 

Under the method of paragraph 5 of section XXVII of article 28 of the Income Tax Law and without adjusted tax profit

 

q1. Tax result: – $47,092,092.00

k. Accrued interest: + $22,338,974.00

r. Deduction of investments, deferred charges, and expenses in the pre-operating period: + $8,009,032.00

 

s. Adjusted tax profit = – $16,744,086.00

t. By 30% = $0.00

u. Limit: $20,000,000.00

 

v. Surplus, without exchange loss (k-u) $2,238,974.00

n. Comparative section XXVII, paragraphs 1-4: $15,238,807.84

 

Conclusion: only the non-deductibility of section XXVIII applies since it is greater than that of section XXXII: $15,238,807.84 non-deductible for the company.

 

 

 

Q1. Tax result: – $47,092,092.00

K. Accrued interest: + $22,338,974.00

R. Deduction of investments deferred charges, and expenses in the pre-operating period: + $8,009,032.00

 

S. Adjusted tax profit = – $16,744,086.00

T. By 30% = $0.00

U. Limit: $20,000,000.00

 

V. Surplus, without exchange loss (K-U): $2,238,974

N. Comparison section XXVII, paragraph 5: $0

 

 

The non-deductibility of interest for $2,238,974.00 applies since it is greater than the non-deductibility calculated in section XXVII.

 

 

The same exercise, with adjusted tax profit:

 

 

Under the method of paragraphs 1 – 4 of section XXVII of article 28 of the Income Tax Law, with adjusted tax profit

 

Under the method of paragraph 5 of section XXVII of article 28 of the Income Tax Law, with adjusted tax profit

 

 

q2. Tax result: $47,092,092.00

k. Accrued interest: + $22,338,974.00

r. Deduction of investments, deferred charges, and expenses in the pre-operating period: + $8,009,032.00

 

s2. Adjusted tax profit = $77,440,098.00

t. By 30% = $23,232,029.00

or. Limit: $20,000,000.00

 

v. Surplus, without exchange loss ((k-u) <t) $2,238,974.00

n. Comparative section XXVII, paragraphs 1-4: $15,238,807.84

 

 

Conclusion: the interests exceed the established limit by $2,238,974.00, but without exceeding 30% of the adjusted tax profit (t), so only the non-deductibility of section XXVII would apply: (n) $15,238,807.84 of non-deductible interest.

 

 

Q2. Tax result: $47,092,092.00

K. Accrued interest: + $22,338,974.00

R. Deduction of investments, deferred charges, and expenses in the pre-operating period: + $8,009,032.00

 

S2. Adjusted tax profit = $77,440,098.00

T. By 30% = $23,232,029.00

U. Limit: $20,000,000.00

 

V. Surplus, without exchange loss ((K-U)<T): $2,238,974

 

N. Comparison section XXVII, paragraph 5: $0

 

 

Conclusion: the interests exceed by $2,338,974.00 the established limit of 20 million. Still, they do not exceed 30% of the adjusted tax profit ($23,232,029.00), so there is no non-deductibility based on section XXXII nor paragraph 5 of section XXVII. All interest is deductible.

 

Congress recently approved an amendment to paragraph 5 of section XXVII of article 28 to enter into force on January 1, 2022. The new text, compared to the current one, is:

 

Current text until 12-31-2021 Text as of 01-01-2022
 

Article 28.- For this Title, the following will not be deductible:

 

…XXVII. The interests derived from the taxpayer’s debts exceed three times their stockholders’ equity that comes from debts contracted with related parties residing abroad in terms of article 179 of this Law.

 

…Taxpayers may choose to consider as stockholders’ equity for the fiscal year, to determine the amount above their debts, the amount that results from adding the initial and final balances of the fiscal year in question from their contribution capital accounts, utility net tax, and reinvested net tax profit and divide the result of that sum by two.

 

 

 

Article 28.- For this Title, the following will not be deductible:

 

…XXVII. The interests derived from the taxpayer’s debts exceed three times their stockholders’ equity that comes from debts contracted with related parties residing abroad in terms of article 179 of this Law.

 

…Taxpayers may choose to consider as stockholders’ equity for the fiscal year, to determine the amount above their debts, the amount that results from adding the initial and final balances of the fiscal year in question from their contribution capital accounts, utility net tax, and reinvested net tax profit, reducing the sum of the initial and final balances of the tax losses that have not been considered in the determination of the tax results, and dividing the result of that operation by two. The option referred to in this paragraph may not be exercised when the impact of the procedure above is greater than 20% of the stockholders’ equity of the year in question, except that, during the exercise of verification procedures, the taxpayer accredits before the tax authorities that the situations that cause the difference between said amounts have a business reason and demonstrate that the integration of their contribution capital accounts, net tax profit, reinvested net tax profit and tax losses pending reduction, have the corresponding support.

 

 

Based on the example used so far, only in the case where all the interests are deductible when applying sections XXVII and XXXII of article 28 of the Income Tax Law, the non-deductibility in the fiscal year 2022 would be as shown below.

 

Until 12/31/2021 As of 01-01-2022
A. Average CUCA 2021: $302,092,025.00

B. Average CUFIN 2021: – $1,209,020.00

C. CUFINRE 2021: $0.00

D. CUCA + CUFIN + CUFINRE (A + B + C) estimated average as of 12-31-2021: $300,883,005.00

 

D2021. Amount to multiply: $300,883,005.00

E2021. Three times (3 * D2021) = $902,649,015.00

H. Long-term notes payable that bearinterest: $354,084,495.00

Y2021. Debt margin allowed to deduct all interest that does not exceed $20,000,000.00 per year[7] (E-F): $548,414,520.00

A. Average CUCA 2022: $302,092,025.00

B. Average CUFIN 2022: – $1,209,020.00

C. CUFINRE 2022: $0.00

D. CUCA + CUFIN + CUFINRE (A + B + C) estimated average as of 12-31-2021: $300,883,005.00

X[8]. Accumulated tax losses to 2022: $139,560,738.00

D2022. Amount to multiply: $161,322,267.00

E2022. Three times (3 * D2022) = $483,966,801.00

 

H. Long-term notes payable that bear interest: $354,084,495.00

Y2022. Debt margin allowed to deduct all interest that does not exceed $20,000,000.00 per year[9] (E-F): $129,882,306.00

d. Stockholders’ equity: $102,839,265.00

Z. Comparison of the calculation of “tax capital” against stockholders’ equity (D / d-1): $161,322,267.00 / $102,839,265.00 – 1 = 56.86%> 20%

Taxpayers cannot exercise this option upon the 20% difference and use instead the stockholders’ equity.

 

The sentences added to section XXVII go in two senses:

 

1)    The addition of accumulated tax losses. This change assimilates “tax equity” (CUCA + CUFIN + CUFINRE) to stockholders’ equity, which is the sum of the capital contributed common stock, reserves, and contributions) and the money earned (profits minus losses).

 

2)    Condition the use of “tax equity” not to exceed 20% of stockholders’ equity. This condition forces the entity to increase the amount of stockholders’ equity, that is, to “fatten” the capital in a range that is farther from the so-called “thin capitalization.”

 

This change will force companies to capitalize some of their liabilities contracted with related parties —or to make contributions— until reaching the range where the “tax equity” method is permitted. The authority has already understood that it is not enough with the withholding applied to interest, dividends, and royalties paid to residents abroad, which ranges from 5% to 15%, since, in addition to being deductible, the rest of the payment (85% 95%) ends up abroad.

 

In the example above, if the equity does not increase or debts capitalize in 2022, the tax payable or deferred non-deductible interest would amount to $4,571,642.35, representing a real rate of 20% on the interest accrued the exercise ($22,338,974.00). Adding this real rate to the withholding applicable by an international treaty to avoid double taxation (assuming 15%) would benefit the Mexican treasury for about 35% of the value that would flow abroad, limiting, however, only the cash flow of the Mexican counterparty.

 

For the capital increase, we must not forget two fundamental aspects:

 

–         If it comes from capitalization of liabilities, rule 2.8.1.23 of the Miscellaneous Tax Resolution for 2021 establishes the obligation to certify the accounting existence of the liability. A Registered Public Accountant must issue this certification or opinion under the terms of the Federal Tax Code.

–         To determine the stockholders’ equity, it is necessary to divide by two the sum of stockholders’ equity at the beginning and the end of the fiscal year. Therefore, in a strict sense, for the increase to be more profitable, it must be exhibited, formalized before a Notary Public, and registered in the Public Registry before January 1, 2022.

In both cases, it is essential to consider that resolution of December 6, 2019, that talks about the concept of ‘certain date[10]: “private documents must comply with the requirement of a “sure date” in the case of the exercise of the powers of verification, to verify the taxpayer’s compliance with tax obligations.”

 

It is a fact that the public treasury in Mexico is applying letter by letter the mechanisms proposed by the OECD, specifically in action 4 of the BEPS. The document entitled “Limitation of the erosion of the (tax) base that implies deductions of interest and other financial payments – Action 4”, in its update 2016[11], mentions in a third chapter who should apply the schemes suggested there: 1. Entities that are part of a multinational group; 2. Entities that are part of a local group; 3. Entities that are not part of any group; and 4. The minimum threshold of taxation. The XXVII and XXXII sections mentioned in this document clearly and forcefully attack the reduction of the base, planned or not, of those first two types of companies.

 

Where is Mexico heading to in tax matters? Since the country belongs to supranational organizations such as the OECD, the G20[12], the WTO[13], the IMF[14], it will continue to fine-tune its fiscal policies to raise the level of collection, which will benefit the country’s economy, in line with the motto “better policies for a better life.” Likewise, it will mean a more significant challenge for sound fiscal planning, locally and internationally, to the point where each country reaches a limit where it realizes that, if it goes deeper, it will reduce foreign investment. If it goes backward, the collection will decrease. This dynamic, accessible, statistical fine point is the essence for perfecting capitalism in a free-market world.

[1] NAFTA

[2] There is an interpretation of considering the ratio as (i / h) due to confusion with the expression “average annual balance of all the taxpayer’s debts” in paragraph 2 of section XXVII of article 28 of the Income Tax Law. However, in paragraph 3 the factor refers only to debts with related parties residing abroad.

[3] Idem

[4] According to Article 8 of the Income Tax Law, the exchange loss is considered interest, for tax purposes.

[5] Idem

[6] Federal Reserve (of the United States of America)

[7] Refers to section XXXII of article 28 of the Income Tax Law, which entered into force on 01-01-2020 and limits the deductibility of accrued interest that in the year exceeds $20,000,000.00

[8] Represents the first modification to paragraph 5 of section XXVII of article 28 of the Income Tax Law.

[9] Idem

[10] Jurisprudence 2 / J.161 / 2019 (10th) issued by the Supreme Court of Justice of the Nation on 12/6/2019. Judicial Weekly of the Federation.

[11] (OECD Base Erosion and Profit Shifting Project, 2017) : Limiting Base Erosion Involving Interest Deductions and Other Financial Payments, Action 4 – 2016 Update: Inclusive Framework on BEPS, OECD / G20. Paris.

[12] Group of 20.

[13] World Trade Organization.

[14] International Monetary Fund.

Deja un comentario

Tu dirección de correo electrónico no será publicada. Los campos obligatorios están marcados con *

Abrir chat
¿En qué podemos ayudarle?
- Contabilidad
- Impuestos
- Costos
- Control interno