When we speak of seizure in tax matters, we refer to the means of securing the tax interest that the authorities have at their disposal; the authorities resort to seizure for the purpose of securing the debts, both principal and accessory, that the taxpayers have with the tax authorities, that is to say, it is a way of guaranteeing the payment of the debt. (Federal Tax Code, article 145).
The seizure is the second phase of the administrative enforcement procedure (also known as PAE), which takes place right after the payment demand, where the authority addresses the taxpayer (debtor) to remind him/her that there is a debt owed, demanding immediate compliance (Federal Tax Code, Article 145).
In the event that the debtor does not prove to have guaranteed the debt or during the proceeding does not make the payment in full, the executor will proceed to seize the assets belonging to the debtor that are sufficient to cover the tax credit and its accessories.
However, in order for the tax authority to carry out the seizure of assets, it must ensure that the tax claim it seeks to collect is enforceable, i.e., that the claim has gone through the following stages:
Once each of the above phases has been exhausted, the tax credit will be considered enforceable and the competent authority may initiate the PAE; however, can the authority seize intangible assets of the taxpayer?
Pursuant to Article 151 bis of the CFF, intangible assets are susceptible to seizure by tax mailbox, strados or edicts, as well as bank deposits, savings or investment components associated with life insurance or any other deposit, stocks, bonds, matured coupons, marketable securities and in general easy and immediate collection credits and real estate.
Before going deeper into the subject, it is necessary to pause to define what intangible assets are; these assets are those that lack a physical existence, are not palpable, but have a transcendental importance in the patrimony of a company. Even the International Accounting Standard (IAS) number 38 establishes a series of requirements that must be met for an asset to be considered intangible, among which are:
One of the main intangible assets is the intellectual property of the person (whether physical or moral), that is, all those assets created by human ingenuity and mind or as a result of the commercial operations of a company; as already mentioned in previous videos, intellectual property is divided into two areas: copyright and industrial property.
In turn, copyrights are also divided into two types of rights: moral and economic rights; the former are considered attached to the author who created the work and seek to recognize the talent and work of the author at the time of the creation of the artistic or literary work; the latter, on the other hand, are mainly economic in nature and grant the author the right to exploit his works exclusively for profit or to authorize others to exploit them (Federal Copyright Law, article 11).
However, although moral rights and economic rights are treated differently, in the case of the possibility of being seized, the Federal Copyright Law is clear in establishing that both are non-seizableHowever, in the case of economic rights, the fruits and products derived therefrom may be seized, for example: the payment of royalties for the transmission of a work is subject to seizure (Federal Copyright Law, article 41).
Unlike copyrights, industrial property rights are susceptible to be seized in accordance with the provisions of the Federal Law for the Protection of Industrial Property, without there being a distinction between the asset itself and the fruits it generates; in effect, the law establishes that the rights derived from any type of registration (whether of an invention, utility model, industrial design, trademark, commercial notice, among others) may be encumbered, that is, a burden of a personal nature may be imposed on them, which in this case falls on the intangible asset. (Federal Law for the Protection of Industrial Property, article 137).
In addition, in order for such lien to produce effects to the detriment of a third party, it must be registered before the IMPI; otherwise, the holder may assign or sell its industrial property rights without any impediment or opposition (Federal Law for the Protection of Industrial Property, article 137).
In this sense, if the tax authority, in the exercise of the PAE, decides to seize any of the taxpayer's intangible intellectual property, the process to be followed is to order the IMPI to register the lien of the asset in order to avoid the transfer or sale of the asset.
An example of this occurred with the newspaper "El Financiero", which by court order had three trademarks seized, including "El Financiero", as well as several designs and commercial legends; therefore, it could not dispose of them, although it could make use of them. (CNNExpansión, 2014).
In conclusion, the intangible assets of a company can be seized by the tax authority; however, focusing exclusively on intellectual property, it is necessary to take into account that while industrial property rights are seizable, copyrights are not, unless we are talking about the fruits or products of the economic rights, which, if they do not yet exist or the exploitation of the work is not carried out, would be unseizable.
List of references:
CNNExpansión (August 05, 2014). Judge asks to seize "El Financiero" trademark. Expansión. Retrieved July 18, 2024. https://expansion.mx/negocios/2014/08/05/un-juez-embarga-marca-el-financiero
Federal Tax Code. Last amendment on November 12, 2021. https://www.diputados.gob.mx/LeyesBiblio/pdf/CFF.pdf
Federal Copyright Law. Last amendment on July 01, 2020. https://www.diputados.gob.mx/LeyesBiblio/pdf/LFDA.pdf
Federal Law for the Protection of Industrial Property. Last amendment on July 01, 2020. https://www.diputados.gob.mx/LeyesBiblio/pdf/LFPPI.pdf
