On October 4, 2023, the Supreme Court of Justice of the Nation (SCJN), issued press release 347/2023, in which it published a relevant criterion related to the removal of the tax domicile.
On the one hand, the judgment issued in the original trial shows that the plaintiff argued that the challenged resolution in the natural trial was time-barred in accordance with the provisions of article 146 of the Federal Fiscal Code; This, since the term of five years established by the aforementioned article had elapsed in excess and since the plaintiff considered that the only action taken by the defendant authority did not comply with the provisions of articles 110, section V, 134, section III and 139 of the CFF, it should not be considered that the plaintiff had vacated the tax domicile for the purposes of suspending the term for the statute of limitations to run; However, the responsible court considered the plaintiff's arguments unfounded, recognizing the validity of the challenged resolution by considering that the tax credit was not time-barred since the plaintiff had vacated its domicile without presenting the corresponding notice before the authority.
Dissatisfied with the foregoing, the plaintiff filed a lawsuit for direct amparo, to which corresponded the judgment of the direct amparo from which it was considered unfounded the arguments related to the fact that the responsible court omitted to make a systematic and conforming interpretation of articles 134, Section III, 139 and 110, Section V, in connection with Article 146 of the Federal Tax Code, since from such interpretation it is inferred that the tax authorities are obliged to go at least three times in order to consider a taxpayer as unreachable in his domicile and as unoccupied; explaining that, the tax code defines that it must be understood as "disappears from the premises where he has his fiscal domicile", when the authority goes on three consecutive occasions within a period of twelve months and is unable to carry out the diligence; Therefore, in accordance with the general principle of law that states that where there is the same reason, the same provision applies, it should be concluded that this definition applies in all matters where reference is made to the legal consequences of the vacating of the tax domicile, including those related to the notification by strados and the suspension of the statute of limitations, otherwise discriminatory treatment is incurred in identical legal situations, in contravention of the fundamental right of equality, enshrined in Article 1 of the Constitution, which only allows the use of suspicious categories when there is a very strong justification for it.
Since it considered that the judgment of merit did not resolve the questions of unconstitutionality of articles 134, section III, 139 and 146 of the Federal Tax Code, for having given a different treatment to the one provided by article 110, section V of the Federal Tax Code, with respect to the procedure to consider the taxpayer as having disappeared from the place where it has its tax domicile, with respect to the "vacating of the tax domicile", the plaintiff filed an appeal for direct amparo review under number 1507/2023, which was resolved by the presidency of Minister Loretta Ortiz Ahlf.
From the project it can be seen that the legal problem to be solved by the Ministers of the Second Chamber of the Supreme Court of Justice of the Nation, in charge of dealing with administrative and labor matters, consisted in determining whether Articles 134, section III; 139 and 146; in connection with Article 110, section V, all of the Federal Tax Code, establish a differential regulatory treatment that violates the principles of equality and non-discrimination; However, they agreed that the referred articles do not establish the existence of a differentiated normative treatment, that is, that subjects who are in equal circumstances are treated unequally, but rather it is the regulation of substantially different legal institutions that are not susceptible to be contrasted.
For the reasons stated, in the project of direct amparo in review 1507/2023, it considered that the existence of a different legislative treatment denying the amparo and protection of the federal justice was not demonstrated, resulting relevant for those taxpayers who are in such situation.
List of references.
Public version of the nullity judgment 6169/2107-02-7, under the index of the Second Western Regional Chamber of the Federal Court of Administrative Justice.
Public version of the decision of the Fourth Collegiate Court in Administrative Matters of the Third Circuit (Amparo Directo 361/2021), issued by the Fourth Collegiate Court in Administrative Matters of the Third Circuit.
Public version of amparo en revisión 1507/2023, issued by the Second Chamber of the Supreme Court of Justice of the Nation.
Press Release 347/2023, dated October 04, 2023, issued by the Supreme Court of Justice of the Nation.
