Derived from the return of contributions without rights (VAT, ISR, IEPS), can the authority file a complaint for tax fraud? In this blog we will talk about the return of contributions, and if this can fall into the assumption of tax fraud, we will deal with basic issues explaining from what taxes, refunds, to what can lead you to commit a tax crime.
What are contributions and taxes?
To begin with, it is important to differentiate between contributions and taxes, since they are basic concepts in the subject at hand.
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Contributions are the income that the State receives thanks to the mandatory contributions made by taxpayers, and with which it performs its functions.
While taxes are about the contributions to which individuals and legal entities are obliged, such as IVA, ISR and IEPS
In other words, according to what is established in article 2 of the Federal Tax Code, taxes are a type of contribution.
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What are taxes (IVA, ISR and IEPS)?
1.- IVA: The Value Added Tax is an indirect tax that is levied on the final domestic consumption of products and services produced both in the national territory and abroad.
2.- ISR: The Income Tax is a direct tax charge that is applied to the income obtained that increases the patrimony of a taxpayer, so that individuals and companies (companies) are obliged to pay this tax.
3.- IEPS: The Special Tax on Production and Services is a tax that is paid for the production and sale or importation of alcohol, beer, gasoline and tobacco.
What are tax returns?
According to article 22 of the Federal Tax Code, it is established that the tax authorities will return the amounts unduly paid and those that proceed in accordance with the tax laws.
The contributions that have been withheld will be returned to the taxpayer
Derived from the return of contributions without rights (VAT, ISR, IEPS), can the authority file a complaint for tax fraud?
The answer to this question is yes, below we explain why.
Let us remember that tax fraud can be found in article 108 of the Federal Tax Code and in a part of its text, which is in our interest, establishes the following: “… obtain an undue benefit to the detriment of the federal treasury.”
Now, doing an analysis of the element, we highlight that obtaining in this sense refers to the fact of receiving something from the Treasury, and the word undue refers to something that should not be done since it is inconvenient, legal or unfair.
In this case, what was obtained was a refund of contributions to which a person is not entitled.
So in the case of the return of undue contributions carried out by the taxpayer, it does not mean that the payment was omitted but that something was illegally obtained to which they were not entitled, even in which an undue benefit was obtained damaging to the Treasury, which makes compliance with the elements of the type of Tax Fraud.
An example that we could see very common is if the taxpayer uses false invoices or aggressive tax planning, in order to request refunds of contributions in his favor, this would make the SAT audit the person almost certainly.
In conclusion, it is important to know that the element of our interest in the crime of tax fraud, that is, obtaining an undue benefit, will be applicable in cases in which there is not properly an omission of contributions, but the undue return of contributions.
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