Fiscal Package 2022 – Nuevo Leon

On November 20, 2021, the Governor of the State of Nuevo León presented the fiscal package for fiscal year 2022 to the State Congress. This package includes the initiative with the draft Decree ("Decree") to reform, add and repeal various fiscal provisions in the State of Nuevo León, which was unanimously approved on December 13, 2021 and published in the Official State Gazette on December 23, 2021.

The guiding principles of the Decree consist mainly of the following:

• Propiciar una mayor recaudación para mitigar los estragos causados por la pandemia de COVID-19
• Proveer mayor claridad y simplificación en las disposiciones legales
• Provide greater certainty and interpretation of current legislation, in line with technological advances, that allow for legal certainty and greater tools to facilitate citizens' compliance with their tax obligations.
• Combat climate change, biodiversity loss and environmental degradation, as well as pollution through efficient public transport and control of emissions from refineries and industry

It should be noted that the reforms contained in the aforementioned Decree came into force on January 1, 2022.

In this regard, we comment on the aspects that we consider most relevant in this tax reform:

I. Treasury Law of the State of Nuevo Leon

1. Reform of gambling and raffles (Taxes on Casinos)

Certain paragraphs of articles 10 and 19 of the Law are added and amended to specify that, both for the calculation of the tax on expenditures in games with bets, as well as the tax for the realization of games with bets and raffles, the "total amount bet" must be taken as a base, which will include cash and any amount given to participants regardless of the name given ( promotions, memberships, access to facilities, among others), specifying that these concepts should not be reduced from their base.

On the other hand, the tax rate on gambling expenditures is increased by 50% from 10% to 15%, in order to obtain resources for state public spending.

Finally, a Chapter Nine is added to the Law, through which the Rights for the Services of Supervision, Control and Issuance of Certificates of Entry to the Database, of Gaming and Betting Machines are created , by which the individuals and legal entities that operate under any title commercial establishments in the state of Nuevo León, in which machines or equipment are installed or are installed that allow the public that accesses said premises to participate in betting games of any kind that award prizes in money or in kind or in games in which the prize is obtained by the skill of the participant or by chance, must pay no later than March 17 of each year, a fee equivalent to 300 annual installments for each machine.

A period of six months is granted from the entry into force of the Decree for the Secretary of Finance and General Treasury of the State to issue the general rules for the issuance of the hologram corresponding to each machine.

The above reforms, as well as the creation of rights for machine supervision, must be analyzed in greater detail to determine their adherence to the constitutional principles of tax proportionality, legality and legal certainty, among others.

2. New green and moving Leon (green taxes)

Of note is the addition of the title On Ecological Taxes , with five sections: Section I On the Environmental Tax for Pollution in the Extraction of Stone Materials , with articles 118 to 123; Section II On the Tax for the Emission of Pollutants into the Atmosphere , with articles 124 to 129; Section III On the Tax for the Emission of Pollutants in Water , with articles 130 to 135; Section IV, On the Tax for the Emission of Pollutants in the Subsoil and/or Soil , with articles 136 to 137 Bis-3; Section V, Supplementary Powers and Responsibilities ; with articles 137 Bis-4 and 137 Bis-5 of the Treasury Law of the State of Nuevo León, (LHNL); and with it the addition of the ecological taxes called green taxes .

Through this reform, pollution caused by individuals or corporations and economic units within the state of Nuevo León is taxed, regardless of the taxpayer's domicile, through the extraction of stone materials, emission of pollutants into water, soil and/or subsoil, and the emission of gases into the atmosphere, through the creation of the following taxes:

• Environmental tax on pollution from the extraction of stone materials
• Impuesto de contaminantes a la atmósfera por la emisión
• Tax on the emission of pollutants into water
• Tax on the emission of pollutants into the subsoil and/or soil

The basis of these new green taxes varies taking into consideration various assumptions, namely: (I) the volume of stone materials extracted, exploited or used in the territory of the state; (II) the excess of the maximum limits of polluting emissions into the atmosphere generated in the various activities and productive processes that are developed in the state and that affect the territory thereof; (III) the quantity in cubic meters of water affected expressed in milligrams per liter, derived from the emission of polluting substances that are deposited, disposed of or discharged into the water of the territory of the state; (IV) the pollutants dumped into the soil and affected subsoils, as well as the organic or inorganic waste dumped into the soil per kilogram in every 100 square meters of affected land.

Now, the applicable rate for the determination and payment of the new green taxes is the following:

By adding these ecological contributions, companies that pollute will pay taxes to remedy or reduce the negative and/or harmful effects they generate within a production process that has an ecological impact on the environment, so that the state can recover the costs necessary to remedy them and not as a sanctioning measure.

En relación con la época de pago de los nuevos impuestos verdes, se establece que deberá efectuarse mediante declaración mensual a más tardar el día 17 del mes siguiente al que corresponda dicha declaración, la cual deberá presentarse en las formas y medios autorizados por la Secretaría de Finanzas y Tesorería General del Estado.

It should be noted that, to date, the forms and means that the State Finance and General Treasury Secretariat must establish for the declaration and payment of said green taxes have not been issued .

We consider that various issues contained in ecological taxes could contravene various fundamental rights contained in the Political Constitution of the United Mexican States; therefore, each case in particular must be analyzed in order to be able to know the legal arguments to challenge its unconstitutionality.

3. Payroll Tax

Article 154 Bis is added to the Law to include that all expenditures made for concepts that are similar to salary income in terms of the Income Tax Law must be considered within the payroll tax base.

We consider that the aforementioned reform could violate various constitutional guarantees and principles, since it includes within the base of the payroll tax concepts (payments) that are not consistent with the purpose or with the indicator of contributory capacity of the contribution in question.

Finally, it is noted that payroll tax payment declarations may be made electronically.

II. Tax Code of the State of Nuevo Leon

Según se establece en la Exposición de Motivos de la iniciativa del Decreto, diversas de las reformas para el Código Fiscal del Estado de Nuevo León (“Código”) fueron planteadas con la finalidad de homologarlo con el Código Fiscal Federal.

1. Suspension of deadlines

A paragraph is added to article 13 of the Code to establish that the tax authorities may suspend deadlines due to force majeure or unforeseeable events and that such suspension must be made known through general rules.

2. Tax mailbox

Article 18 Bis-1 is added to the Code, which establishes that individuals and legal entities registered in the state registry of taxpayers will be assigned a tax mailbox, which will be the means of communication between taxpayers and authorities in order to promote electronic interaction and optimize time, processes and resources. It is also established that through said mailbox the tax authority will carry out notifications of any act or resolution and taxpayers will submit promotions, requests and compliance with requirements.

Likewise, it is expected that, if the taxpayer does not enable the tax mailbox or indicates incorrect or non-existent means of contact, the authority may carry out notifications through noticeboards.

As a result of the above, a period of one year is granted from January 1, 2022 for the Secretariat of Finance and General Treasury of the State to implement the tax mailbox and issue the general rules relating to its operation.

3. Compliance opinion

Article 33 Bis is added to the Code, which establishes that the Executive, Legislative and Judicial branches of the State and other government entities, prior to contracting acquisitions, leases, services or public works with individuals, corporations or legal entities, must request an opinion on compliance with tax obligations. Likewise, said opinion on compliance must be obtained by those taxpayers who wish to benefit from subsidies and tax incentives granted by the state.

In this regard, a period of 6 months is granted from January 1, 2022, for the Secretariat of Finance and General Treasury of the State to issue the general rules relating to the issuance of the opinion on compliance with tax obligations.

4. Joint liability

Se establecen supuestos adicionales para determinar que existe responsabilidad solidaria para las personas que tengan conferida la dirección general, la gerencia general, o la administración única de las sociedades mercantil cuando el contribuyente desocupe el local donde tenga su domicilio fiscal sin presentar el aviso de cambio de domicilio y cuando no se localice en el domicilio fiscal registrado.

Additionally, as in the reform of the Federal Tax Code for the 2022 fiscal year in relation to the joint obligation established for the purchasers of negotiations with respect to contributions that were caused in them, various assumptions are established regarding which it is considered that the acquisition of a negotiation has effectively existed .

5. Consultations

Se establecen ciertos requisitos para determinar el alcance y obligatoriedad de las consultas que formulen individualmente los interesados ante las autoridades fiscales sobre situaciones reales y concretas, a fin de inhibir prácticas indebidas en el uso de esta figura.

6. Coercive measures

In order to strengthen tax inspection and collection, enforcement measures include the precautionary seizure of assets or transactions and the provisional closure for three days of the establishment in which the activities subject to the inspection powers are carried out.

7. Tax crimes

Various provisions relating to tax crimes are being amended in order to have a more robust tax legislation on criminal offenses and criminal proceedings that promote compliance and inhibit conduct contrary to the tax order, both by taxpayers and public servants.

8. Electronic review

The Secretariat of Finance and General Treasury of the State is included as a power of verification to carry out electronic audits of taxpayers.

9. Home visits

The inspectors are granted the power to carry out the assessment of the documents or reports obtained from third parties during the development of the visit, as well as the documents, books or records presented by the taxpayer in order to refute the facts or omissions indicated in the last partial report.

III. Reform to the Law that Creates the Vehicle Control Institute of the State of Nuevo Leon

Penalties of up to 300 times the daily value of the Unit of Measurement and Update (“UMAS”) are established for infractions such as failure to register vehicles with the Vehicle Control Institute, failure to endorse and the use of vehicle identification means in vehicles other than those for which they were issued.

On the other hand, through the update of the Program Put it in your name, facilities will be offered to the citizens of Nuevo León for the registration (during the year 2022) of vehicles from the year 2013 and earlier, for which there is no suitable document that legally accredits the acquisition of these. To do so, its registration may be requested by presenting some other means of proof with which the legal possession is justified, complying with the requirements established for this purpose by the Institute itself, provided that the vehicle does not have a theft report and the legal importation is accredited in the case of foreign vehicles, having to pay the corresponding rights.

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