Recently a Collegiate Court in Administrative Matters granted constitutional protection (“Amparo”) in favor of a taxpayer of the automotive sector, recognizing its right to obtain the refund of the amount unduly paid as custom processing fees (Derecho de Trámite Aduanero or “DTA”), in accordance with Article 22 of the Federal Fiscal Code.
The background of this matter is as follows:
- The taxpayer is a company incorporated in Mexico that imports raw materials, mostly from the European Union, to perform its main activity. Therefore, imports are carried out under a preferential tariff treatment derived from the Free Trade Agreement between Mexico and the European Union, proving the above with a certificate of origin of the merchandise, which results in paying a much lower amount for DTA on each import.
- In 2020, when importing several goods, the merchandise was dispatched from Europe without having issued the certificate of origin covering the preferential treatment, which resulted in the company’s full payment of the DTA.
- Upon the merchandise’s arrival in Mexico and customs clearance, the import application was rectified, considering the correct certificate of origin (eur1), which resulted in an amount to be paid for DTA much lower than the one initially paid. The difference generated a credit balance in favor of the taxpayer for the undue payment of the DTA, which could be requested as a refund in accordance with Article 22 of the Federal Fiscal Code.
- In February 2022, the taxpayer filed his request for refund of the unduly paid DTA, in accordance with Article 22 of the Federal Fiscal Code.
- However, in March 2022 the tax authority determined that the refund was not applicable due to the following consideration:
In accordance with the provisions of rule 2.2.3. of the Resolution on Customs Matters of Decision 2/2000 of the Joint Council of the Interim Agreement on Trade and Trade-Related Matters between Mexico and the European Community (“Customs Ruling“), it was not possible to refund DTA, since the aforementioned rule provides only for the refund of custom tariffs (“aranceles”) paid in excess, but not of government fees of any kind and that, since it was not possible to equate custom tariffs with DTA, it could not be refunded.
- In May 2022, a nullity trial was initiated against such resolution, in which, once all the phases of the trial were concluded, in September of the same year the final resolution was issued by the Mexican Federal Administrative Justice Court confirming the legality of the authority’s interpretation, that is, that the refund of DTA was not applicable in accordance with the provisions of rule 2.2.3 of the Customs Ruling.
- Against the resolution of the Mexican Federal Administrative Justice Court, the company filed a constitutional lawsuit (“demanda de amparo”). As a result of the trial, the taxpayer was granted constitutional protection and the right to the refund of the DTA unduly paid was recognized, including the amount paid, updated, and with interests, in accordance with the provisions of Article 22 of the Federal Fiscal Code. The following is a summary of the most important reasoning behind this ruling:
- a) The fact that the Customs Ruling provides only for the refund of custom tariffs paid in excess when the preferential tariff treatment was not applied, does not mean that the refund of DTA is prohibited since that is a different matter than the one corresponding to the Customs Ruling which the tax authority intended to apply; especially since such ruling refers to the elimination of customs tariffs, but not to other contributions such as DTA.
- b) That the DTA refund should not have been analyzed based on the Customs Resolution, but rather conferring a general treatment in accordance with Article 22 of the Federal Fiscal Code, which provides for the refund of contributions and “amounts” paid in excess, among which rights –such as DTA– are included.
- c) The Mexican Supreme Court of Justice has established that the refund of amounts paid in excess must be made immediately by the authority to the taxpayers.
This decision sets a very relevant jurisdictional precedent for the benefit of taxpayers, since there were no precedents of similar cases, and in all the procedures for the refund of contributions the authority used to rely on provisions not applicable to each particular case, to reject the refund of contributions that were paid in excess or unduly by taxpayers.
We are ready to assist you if you have any questions or queries.
Rafael Tena C. rtena@acsan.mx
Luis Kanchi G. lkanchi@acsan.mx
