Last June 7, 2023, the Second Chamber of the Supreme Justice Court (“SCJN” per its acronym in Spanish) validated the modifications made to the Federal Fiscal Code that entitles the Tax Administration Service (“SAT” per its acronym in Spanish) to establish the rules for issuing Digital invoices (“CFDI” per its acronym in Spanish) with the Carta Porte complement.
The Second Chamber of the SCJN solved this, considering that Article 29 of the Federal Fiscal Code only refers to the SAT faculty to detail the contents that must be included in the CFDI’s, with the purpose that they serve to prove the legality of the transportation of goods, but it does not grant faculties to the tax authority to issue rules tended to regulate commerce and, therefore, violate Article 73, section X of the Mexican Federal Constitution, by invading the exclusive competence of the Federation to legislate in this matter.
Considering the above, it is important to recall what a CFDI with a Carta Porte complement consists of, who must use and issue it, when its issuance is mandatory, as well as the fines and penalties for not issuing it correctly.
Firstly, it is necessary to specify that a CFDI with a Carta Porte complement is an electronic invoice with the purpose to show the income received for the rendering of transportation services, or for transporting goods or merchandise, through which the legal possession of goods or merchandise during their transportation in the national territory is demonstrated.
Under Article 29, penultimate paragraph of the Federal Fiscal Code and rule 2.7.7.1.1. of the Miscellaneous Tax Resolution for the fiscal year 2023, taxpayers, intermediaries, or transportation agents, dedicated to transportation services of general and specialized cargo, that circulate by land, railroad, air, or navigate by sea, as well as those that provide the service of parcels and courier services, of towing cranes and towing and salvage cranes and vehicle deposit, as well as the transfer of funds and valuables or hazardous materials and waste, among other services that imply the transportation of goods or merchandise, must issue a CFDI of income type with the requirements established in Article 29-A of the Federal Fiscal Code to which they must incorporate the Carta Porte complement.
For the application of the provisions related to the Carta Porte complement, the SAT has granted several extensions for its application, and more than two (2) years have elapsed before its use becomes mandatory and can be sanctioned.
The obligation to issue CFDI’s including the Carta Porte complement was initially foreseen in the Miscellaneous Tax Resolution for the fiscal year 2021, published in the Official Gazette of the Federation (“DOF” per its acronym in Spanish) on December 29, 2020, which provided for a period of thirty (30) non-business days from the publication of the complement in its website for its use to be mandatory. However, such period was modified by the First Resolution of Amendments to the Miscellaneous Tax Resolution for 2021, since in the Eleventh transitory article it was established that the Carta Porte complement would become effective as of June 1st, 2021, with a period of one hundred and twenty (120) days of familiarization, that is, until September 30, 2021.
After several additional extensions, with the publication in the DOF, on December 27, 2021, of the Miscellaneous Tax Resolution for the fiscal year 2022, it was established that the CFDI with the Carta Porte complement would be applicable on a mandatory basis as of January 1st, 2022, following the provisions of the Forty-seventh transitory article of said ordinance. However, the complement could be issued with mistakes and without all the requirements established by the SAT, from said date until March 31st, 2022, in which case no penalties or fines would be applied.
In the same way as in the case of the beginning of the mandatory application of the provisions regarding the Carta Porte complement, the application of fines and penalties for the omission of issuing such complement has been extended, and to date, there are still no penalties of any kind for issuing the Carta Porte complement without all the requirements.
In this regard, on December 27, 2022, the Miscellaneous Tax Resolution for the fiscal year 2023 was published in the DOF, which provides in its Tenth transitory article that the application of fines and penalties for incorrectly issuing the Carta Porte complement would finally begin as of August 1st, 2023.
As of the date of publication of this tax flash, no other extension to start applying fines and penalties has been published in the DOF, so it is considered that as of August 1st, 2023, taxpayers will have to issue the Carta Porte complement with all the requirements established in the applicable provisions. However, it must be considered that the tax authority may again extend the application of fines and penalties, as it has done previously.
In the sense of the above, it is important to specify that the fines and penalties applicable for incorrectly issuing the Carta Porte complement are as follows:
- For each CFDI that is issued missing the Carta Porte complement, fines ranging from MXN$400.00 (Four hundred pesos, 00/100 M.N.) to MXN$600.00 (Six hundred pesos, 00/100 M.N.) will be applied (Art. 84, f. IV, paragraph d) of the Federal Fiscal Code).
- When goods or merchandise are moved by any kind of transportation in national territory without the corresponding CFDI, including the Carta Porte complement, such conduct will be considered as smuggling (Art. 103, f. XXII of the Federal Fiscal Code).
Rafael Tena C. rtena@acsan.mx
Luis Shahid Kanchi G. lkanchi@acsan.mx
