Last May 2024, the First Chamber of the Supreme Court of Justice of the Nation issued thesis 1a. XI/2024 (11a.) under the heading "PRESCRIPTION OF THE TAX CREDIT. IT IS INTERRUPTED WITH THE INTERPOSITION OF MEANS OF DEFENSE WHICH EXPRESSLY OR TACTIVELY RECOGNIZE THE EXISTENCE OF THE CREDIT".
The content of this thesis is as follows.
Digital registration: 2028895
Instance: First Chamber
Eleventh Epoch
Subject(s): Administrative
Thesis: 1a. XI/2024 (11th.)
Source: Gazette of the Judicial Weekly of the Federation. Book 37, May 2024, Volume II, page 2259.
Type: Isolated
THE STATUTE OF LIMITATIONS OF THE TAX CREDIT IS INTERRUPTED BY THE FILING OF MEANS OF DEFENSE WITH WHICH THE EXISTENCE OF THE CREDIT IS EXPRESSLY OR TACITLY ACKNOWLEDGED.
Facts: In two thousand twelve a company received a determination of a tax credit. Dissatisfied with this, the company filed an appeal for revocation which, upon resolution, the tax authority confirmed its validity. Consequently, the company filed a nullity proceeding, which was resolved in two thousand fourteen and confirmed the validity of the credit. Against this judgment, the company filed an amparo proceeding in which it was denied constitutional protection. The company filed an appeal for review and, in two thousand fifteen, the Second Chamber of the Supreme Court of Justice of the Nation dismissed such appeal for review.
In two thousand seventeen, the tax authority rejected the tax credit guarantee offered by the company. Against this rejection, the company filed a nullity proceeding, which was dismissed in two thousand eighteen.
In two thousand twenty, the tax authority issued a writ of execution and demand for payment to enforce the tax credit. As a result, the company filed an appeal for revocation against this order and, upon resolving the appeal, the tax authority confirmed the validity of the enforcement act.
That same year of two thousand twenty, the company filed a nullity proceeding before the Federal Court of Administrative Justice in which it alleged that the tax credit of two thousand twelve had already expired because article 146 of the Federal Tax Code states that tax credits are extinguished by statute of limitations within five years. The referred court ruled that the statute of limitations had not expired because the company acknowledged the existence of the tax credit when it promoted different means of defense related to the same and its enforcement.
In disagreement with this decision, the company filed an amparo proceeding in which it argued that Article 146 of the Federal Tax Code violates the principle of legal certainty, since it does not define the assumptions for the recognition of the tax credit by the taxpayer that interrupts the statute of limitations. The Collegiate Court of Appeals denied the amparo, for which reason the company filed an appeal for review before the First Chamber of the Supreme Court of Justice of the Nation.
Legal criterion: The Federal Tax Code states that the statute of limitations of a tax credit is interrupted when the taxpayer expressly or tacitly acknowledges its existence. This occurs on each occasion in which the person files a defense against the credit or its enforcement, from which it can be inferred that he/she expressly or tacitly acknowledges the existence of the credit. Thus, the rule respects the principle of legal certainty because it allows individuals to know that the recognition of the existence of the claim interrupts the statute of limitations, without the need to provide a catalog of events for this purpose. Such interruption may occur as many times as the person resorts to means of defense against the claim or acts derived therefrom if in the means of defense he expresses that he is aware of the claim or it may be inferred that he is aware of it.
Justification: In tax law doctrine, two types of acknowledgments on the existence of credits are contemplated in order to waive the statute of limitations or interrupt the term for it to be configured. The first type is express, which operates when the taxpayer acknowledges it, without any doubt, through oral or written expression by means of any technology or unequivocal signs of the will. The second type is tacit, which underlies when, without mentioning anything about it, there are undoubted facts that presuppose his knowledge about the existence of the credit or allow to deduce it.
In this sense, if a person promotes a means of defense in which he expressly acknowledges the tax credits or from which it can be deduced that he is aware of their existence, the same legal consequence is produced, which is the interruption of the statute of limitations period for such credits.
Indeed, according to Article 146 of the Federal Tax Code, the statute of limitations of a tax credit may be interrupted by the debtor's express or tacit acknowledgment of its existence.
Therefore, the referred precept respects the principle of legal certainty, since it allows individuals to know that each time they recognize the existence of a tax credit to which they are liable the statute of limitations is interrupted, regardless of whether the recognition derives from the filing of a defense proceeding, since what is relevant is that such recognition is evidenced, which does not require a catalog of acts or facts that can be classified as constituting such recognition because there is a variety of acceptable assumptions that lead to its actualization; so that its configuration requires the analysis of each particular case.
Amparo in direct review 4124/2023. Proyectos y Construcciones Sur, S.A. de C.V. December 6, 2023. Majority of three votes of Justice Ana Margarita Ríos Farjat, Alfredo Gutiérrez Ortiz Mena and Jorge Mario Pardo Rebolledo. Dissenting: Minister Loretta Ortiz Ahlf and Minister Juan Luis González Alcántara Carrancá, who formulated a dissenting vote. Speaker: Ana Margarita Ríos Farjat. Secretary: Javier Alexandro González Rodríguez.
This thesis was published on Friday, May 31, 2024 at 10:36 a.m. in the Semanario Judicial de la Federación.
In this regard, we can consider the following.
In effect, there is a lack of definition in the norm as to what type of express or tacit acknowledgment must be made by the debtor of the existence of the credit, in order to consider that it is susceptible to interrupt the statute of limitations period. It is valid to think that not any type of manifestation can have that scope, nor before any authority.
In view of the nature of the figure being regulated, we consider that only the declaration made before the competent authority, and above all, that implies the recognition of the validity and legitimacy of the debt, is the one that can interrupt the statute of limitations period.
We must emphasize that since the legal provision under analysis does not expressly state that the filing of defense actions interrupts the statute of limitations, it is not valid to give it that scope as the Court did.
We must also take into account the provisions of Article 5 of the Federal Tax Code, and the strict application of the rule when it comes to any of the elements that affect the determination of the tax, as in this case is the issue of the statute of limitations, which being a substantive legal figure that is related to the extinction of the obligation, must be applied in a strict manner.
This is explained because we could consider that in some way the exercise of the right of the individual is conditioned to the fact that by doing so he knows that it will have as a consequence the interruption of the statute of limitations. This is not in accordance with the postulates set forth in the constitutional norm, in the sense that the right to access to effective judicial protection must be free and without biases such as the one in which the Court concluded in the thesis under analysis.
Now, in this case we must make it clear that when it comes to the filing of means of defense, there is a distinction between requiring compliance with certain procedural requirements, which is a constitutionally valid purpose, and establishing a harmful condition with its exercise, such as having the statute of limitations interrupted if it is decided to file such means of defense.
The following theses are illustrative.
Digital registration: 321002
Instance: Second Chamber
Fifth Epoch
Subject(s): Administrative
Source: Semanario Judicial de la Federación. Volume XCII, page 116
Type: Isolated
TAX STATUTE OF LIMITATIONS, THE GRANTING OF A BOND DOES NOT INTERRUPT IT. The guarantee granted by a taxpayer to determine the collection procedure followed against him and to defend his rights, through the opposition trial in the Tax Court, cannot be legally considered as a commitment to pay a valid or recognized obligation, but purely as a preprocedural prerequisite, which must be covered, in order to exercise the corresponding action, that is to say, it does not imply a tacit recognition of the debt, but only a guarantee of payment of an uncertain obligation, as to its validity and amount. Therefore, any action related only to such bond, in no way means a tacit or express acknowledgment of the existence of the tax benefit and, therefore, does not interrupt the statute of limitations in favor of the taxpayer.
Amparo administrativo en revisión 1098/47. "La Independiente", S. A. April 9, 1947. Unanimous four votes. Absent: Alfonso Francisco Ramirez. The publication does not mention the name of the reporter.
Digital registration: 162250
Instance: Collegiate Circuit Courts
Ninth Epoch
Subject(s): Constitutional, Common
Thesis: I.7o.C.66 K
Source: Judicial Weekly of the Federation and its Gazette. Volume XXXIII, May 2011, page 997.
Type: Isolated
ACCESS TO JUSTICE. INTERPRETATION OF THE RULES GOVERNING THE FILING OF APPEALS. In the same way that citizens have a constitutional right to defend their rights in a process established by the legislator, they also have the right to have access to the legally established remedies to challenge the resolutions issued by the Judge of first instance. This is so, because the appeal is the continuation of the process, given that through it, the ad quem organ reviews the decision of the organ a quo; so that the principles of defense, equality of the parties, contradiction and legal equality in the application of the law, are also applicable to the right of access to the appeals. Hence, when the procedural system regulates a remedy, access to it by the party who suffers a prejudice to his rights, is included within the rights to effective judicial protection and administration of justice. However, although the right to remedies has a constitutional basis, because it finds its foundation in the rights to effective judicial protection and to the administration of justice, provided in Article 17 of the Political Constitution of the United Mexican States, its legal configuration corresponds to the ordinary legislator, but such power is not omnimal since it can only limit the access to remedies in order to protect other fundamental rights. Thus, the legislator cannot create unreasonable or disproportionate obstacles that prevent the parties affected by a procedural act from immediately accessing a second instance. For their part, the Judges and courts have the duty to apply and interpret the legal provisions that regulate the appeals, in the manner most favorable to their admission, since access to them, is governed by the same principles of the right to effective judicial protection, given that they constitute the continuation of the process; in such a way that, when there is a means of defense to challenge the resolutions of the Judge of the process, the affected party has the following rights: (a) to file the means of defense without disproportionate requirements; (b) to have the appeal admitted, unless there is a legal impediment to do so, but such impediment must be interpreted in the sense most favorable to the appeal; c) that the legal impediments that hinder access to appeals be applied without formalism and in accordance with their purpose; d) that appeals be processed in accordance with the principles of equality and contradiction; and e) that a substantive decision be issued in the second instance that resolves the controversy raised by the appellant on its merits. In short, free access to appeals in order to be able to raise the issues that affect the rights of the parties in a proceeding is a necessary condition for the rights to judicial protection and to the administration of justice to be effective. This implies that the legislator must configure the access to appeals by means of a law that establishes the terms, forms and ways of processing them; but he is prevented from freely establishing limits to this right, since he can only do so in a restrictive manner and in order to cover or protect other constitutionally guaranteed goods, and observing that the burdens that these limits impose on the parties are not disproportionate. For their part, judges and courts must interpret the rules governing the processing of appeals in the most favorable sense that allows the parties access to a second instance, avoiding introducing or making strict interpretations of the legal provisions that impede access to the means of legal defense.
SEVENTH COLLEGIATE COURT IN CIVIL MATTERS OF THE FIRST CIRCUIT.
Amparo in review 62/2011. Visión Care Laser Center, S.A. de C.V. and another. April 14, 2011. Unanimous vote. Speaker: Sara Judith Montalvo Trejo. Secretary: Arnulfo Mateos García.
VI-TASR-XXXVIII-3
STATUTE OF LIMITATIONS IN TAX MATTERS. ITS TERM IS NOT INTERRUPTED BY THE FILING OF DEFENSE ACTIONS. LEGISLATION IN FORCE IN 1997.-Article 146 of the Federal Tax Code in force in 1997, establishes the existence of the statute of limitations as a form of extinction of the credits owed by individuals, which operates when the term of 5 years elapses, computed as of the date payment of the debt can be legally demanded; it can be interrupted when the creditor notifies or makes the debtor aware of a collection action or by the express or tacit acknowledgment of the debtor with respect to the existence of the credit. Now, the filing of the means of defense does not constitute an acknowledgment of tax debts since it does not pursue that purpose, but rather the exercise of the right of access to justice, enshrined in article 17 of the Political Constitution of the United Mexican States, hence article 146 of the Federal Tax Code in force in 1997 cannot be considered to have that scope; In this sense, when the tax authority does not prove that its collection powers have been limited by the granting of the suspension of the administrative enforcement procedure, then, it must be concluded that according to the aforementioned numeral, the filing of the means of defense does not interrupt the statute of limitations.
Administrative Litigation No. 4473/08-07-03-9.- Resolved by the Third Western Regional Chamber of the Federal Court of Tax and Administrative Justice, on September 8, 2010, by unanimous vote.- Instructing Magistrate: Georgina Ponce Orozco.- Secretary: Lic. Alejandro Moreno León.
R.T.F.J.F.A. Sixth Epoch. Year IV. No. 40. April 2011. p. 520.
In this case, we should analyze the nature and applicability of the principle non reformatio in peius, a Latin locution that translates into "do not reform in worse" or "do not reform to the detriment", used in the field of procedural law and which governs all means of defense; it obliges the jurisdictional authorities not to issue a resolution or sentence that could further affect the legal situation of the defendant who resorted to a means of defense.
To clarify this point, it is convenient to point out that the legal figure of the statute of limitations has its origin in Civil Law, it is derived from the Latin term "praescribere", which means to acquire a real right or extinguish a real right or action of any kind, by the mere passage of time, under the conditions established by law; Thus, Article 1135 of the Federal Civil Code establishes that the statute of limitations is a means of acquiring property or freeing oneself from obligations, through the passage of time and under the conditions established by law; therefore, it is clear that the content of Article 146 of the Federal Tax Code is of a substantive nature and arises from common legislation.
In effect, the Federal Civil Code (source of the Theory of Obligations) provides as a cause for interruption of the statute of limitations the recognition of obligations, however, this refers to the case in which the debtor recognizes the validity and legitimacy of the debt, that is to say, that it really and legally has a debt pending before its creditor; which may be expressly or tacitly.
Evidently, there is a distinction between (i.) having knowledge of the existence of a debt because the creditor attempts to collect it and (ii.) recognizing the legitimacy of such debt, being the second assumption, in civil and commercial matters, the reason for interruption of the statute of limitations. It makes sense that the second assumption can interrupt the statute of limitations, regardless of whether the creditor has attempted collection, since in practice the debtor is not only acknowledging its existence, but also its legal origin.
The foregoing respects the essence of the legal figure of the statute of limitations, which has the purpose of providing legal certainty for both the creditor and the debtor, being considered a matter of public order; while the former is obliged to carry out all acts tending to collect a debt in order to avoid the statute of limitations, the latter could not free itself from its obligation, in case of recognizing its existence and legal origin.
However, a very different case occurs when the creditor attempts to collect a debt (which may or may not be legally determined) and a defense is filed against it due to some illegality in the same or by virtue of the collection procedure. In this case, the legitimacy of the debt is clearly not recognized, but rather, the right of defense is being exercised against it, so that the principle of access to justice cannot be considered to be respected when it results in the interruption of the statute of limitations.
