Publication of the Third Resolution of Modifications to the Miscellaneous Tax Resolution for 2021

Mexico City, November 24, 2021

New Provisions Regarding Income / Transfer CFDI and Complement Bill of Lading
and Extension for its Applicability

Esteemed Clients:

     As it has been noted in past communications, under the original terms of the Eleventh Transitory Article of the First Resolution of Modifications to the Miscellaneous Tax Resolution for 2021 (“1° RMMTR”), the issuance of the Income and Transfer Internet Digital Tax Receipt (CFDI in Spanish, referred to in this documents as “Invoices” and “CFDI”), as well as the Bill of Lading Complement (Complemento Carta Porte) for the provision of transport services in Mexican territory, would be mandatory 120 days after June 1, 2021; that is, on September 29, 2021.

     However, since the publication of the advance versions of the Third Resolution of Modifications to the Miscellaneous Tax Resolution for 2021 on the portal of the Tax Administration Service (Servicio de Administración Tributaria), and taking into account the interpretation of rule 1.8 of the Miscellaneous Tax Resolution for 2021 (“MTR 2021”), we can conclude that the entry into force of the provisions relating to the Income and Transfer CFDI and Complement Bill of Lading has been extended in the following terms: (i) for the purposes of Rule 2.7.1.9 and the Thirty-Sixth Transitory Article of the MTR 2021, the use of the Complement Bill of Lading shall be mandatory as of December 1, 2021; and (ii) before January 1, 2022, taxpayers shall be in compliance with the aforementioned rule 2.7.1.9. when they issue the Complement Bill of Lading incorporated into the corresponding CFDIs, even if these documents do not comply with the requirements of the “Standard of the Complement Bill of Lading” and the “Instructions for filling out the CFDI to which the Complement Bill of Lading is incorporated”.

     Subsequently, after numerous advance versions had been published, on November 18, 2021 the Secretariat of Finance and Public Credit (Secretaría de Hacienda y Crédito Púlico) published in the Official Gazette of the Federation the definitive version of the Third Resolution of Modifications to the Miscellaneous Tax Resolution for 2021, through which the Rules 2.7.1.7. and 2.7.1.9., and the Eleventh Transitory Article of the 1° RMMTR are reformed, and the Rules 2.7.1.51., 2.7.1.52., 2.7.1.53., 2.7.1.54., 2.7.1.55., 2.7.1.56 and 2.7.1.57 are added.

     With this Resolution of Modifications, the terms of rule 2.7.1.9. are substantially reformed, as this new version states the obligations applicable to different modes of transport services (parcel and courier service, towing and rescue cranes, vehicle storage, transfer of funds and securities, transfer of hazardous materials and waste, etc.) The specific obligations regarding these transport modalities are referred to the new rules 2.7.1.51., 2.7.1.52. 2.7.1.53. 2.7.1.54. 2.7.1.55., 2.7.1.56. and 2.7.1.57., as follows:

In reference to Rule 2.7.1.7..

The following subparagraph is added: “IX. For printed representations of the Invoice to which the complement indicated in rules 2.7.1.9. and 2.7.1.51. is incorporated, in addition to what is indicated in the previous fractions of this rule, must include the data established in the “Instructions for filling out the CFDI to which the Complement Bill of Lading is incorporated”, which the SAT publishes on its Portal.”

In reference to Rule 2.7.1.9..

     The concepts of this rule are updated in relation to the specific guidelines regarding the Income Invoice with which the transport of goods is verified.

  • It is established that, in order to demonstrate the services they provide, the following service providers shall issue an Income CFDI with a Complement Bill of Lading in compliance with article 29-A of the CFF: taxpayers engaged in the service of transport of general and specialized cargo […] as well as those who provide the service of parcel and courier, towing and rescue cranes and deposit of vehicles, as well as the transfer of funds and securities or hazardous waste, among other services that involve the transport of goods or merchandise […] – The aforementioned CFDI and its Complement shall validate and prove the transport and legal possession of the goods or merchandise in national territory with its printed representation on paper or in digital form.
  • Likewise, in the case of goods of foreign origin, the number of the import petition (pedimento) must be included to the Income CFDI with Complement Bill of Lading issued by the carrier.
  • For the transport of fuels and hydrocarbons, in addition to the issuance of the Invoices and Complement mentioned in previous lines, service providers shall also issue the Hydrocarbons and Petroleum Complement referred to in Rule 2.7.1.45.
  • A new obligation is added for the parties that contract the transport services in Mexico, establishing that they must: provide […] with accuracy, the necessary data for the identification of the goods or merchandise that are transported, in accordance with the provisions of the “Instructions for filling the CFDI to which the Complement Bill of Lading is incorporated”, in order for the carrier to issue the corresponding tax documents.
  • Finally, it is clearly stipulated that in cases in which cargo is transported without the correct issuance of the corresponding tax documents, both of the parties involved in the service of transport of goods or merchandise (client and service provider), shall be liable before the competent authority.

 In reference to the addition of Rule 2.7.1.51.

     his new rule defines the specific guidelines regarding the tax documents that must be issued by owners and holders or cargo, transport agents or intermediaries to verify the transportation of goods or merchandise.

  • In this sense, the owners of goods that transport said goods with their own means must issue a Transfer CFDI with Complement Bill of Lading with zero value and their own RFC as the issuer and receptor of said document, indicating the code for products and services that is specified in the “Instructions for filling the CFDI to which the Complement Bill of Lading is incorporated”.
  • With regards to intermediaries of transportation services (i.e. Brokers and 3PLs) who provide the logistics service for the transportation of goods or merchandise, or have a mandate to act on behalf of the client, they shall issue the Transfer CFDI with a Complement Bill of Lading described before, PROVIDED THAT THE TRANSPORTATION IS CARRIED OUT BY THEIR OWN MEANS.

This in Mexico is a legal impossibility given that only registered and authorized carriers can render transportation services in Mexico and intermediaries are not allowed to render transportation services using their own means (equipment, operators). So, we can safely conclude that intermediaries are not required to issue documents pursuant to this reform.

In reference to the addition of Rule 2.7.1.52.

     This new rule defines the specific guidelines regarding the tax documents that must be issued by carriers or owners of cargo to verify the transfer of goods or merchandise through local roads, establishing the following:

  • When the transport of goods is carried out, exclusively through in non-federal routes, the carriers may issue an Income CFDI WITHOUT COMPLEMENT BILL OF LADING, and in which they must specify the code for products and services that is indicated in the “Instructions for the filling of the Invoice to which the Complement Bill of Lading is incorporated”.
  • On the other hand, when the transport of goods is carried out by an intermediary, exclusively through in non-federal routes, the intermediary may issue a Transfer CFDI WITHOUT COMPLEMENT BILL OF LADING, in which they must specify the code for products and services that is indicated in the “Instructions for the filling of the Invoice to which the Complement Bill of Lading is incorporated”.

In reference to the addition of Rule 2.7.1.53.

     This new rule defines the specific guidelines regarding the tax documents that must be issued by providers of parcel and currier services, establishing the following:

  • Parcel and courier service providers may issue, to verify the service they provide, an Income CFDI WITHOUT COMPLEMENT BILL OF LADING, in which they must include as “Concept” the numbers of guides of all the packages covered by said Invoice; and additionally apply the following:

a) Regarding first mile services, when the same are carried out in non-federal routes, service providers may issue a Transfer CFDI WITHOUT COMPLEMENT BILL OF LADING, and in which they must specify the code for products and services that is indicated in the “Instructions for the filling of the Invoice to which the Bill of Lading Complement is incorporated”, and include as the “Concept” of said Invoice the tracking numbers (números de guía) of all the packages covered by the Invoice.
b) For the intermediate stage of the service, they must issue a Transfer CFDI WITH COMPLEMENT BILL OF LADING, for each section that implies a change of means or mode of transport, registering the tracking numbers of the packages that are transported.
c) Finally, for the delivery of parcels to recipients, when the services are carried out in non-federal routes, they may issue a Transfer CFDI WITHOUT COMPLEMENT BILL OF LADING, and in which they must specify the code for products and services that is indicated in the “Instructions for the filling of the Invoice to which the Bill of Lading Complement is incorporated”, and including as the “Concept” of said Invoice the tracking numbers of all the packages covered by the Invoice.

  • If at any time during the services, the service providers use federal roads, they shall issue a Transfer CFDI WITH COMPLEMENT BILL OF LADING.
  • Subcontracted carriers that provide parcel and courier services shall be obliged to verify said service through the issuance of an Income CFDI WITHOUT COMPLEMENT BILL OF LADING.

In reference to the addition of Rule 2.7.1.57.

This new rule defines the specific guidelines regarding the tax documents that must be issued by providers of consolidated transport services, establishing the following:

  • Consolidated transport service providers may issue, to verify the service they provide, an Income Invoice WITHOUT COMPLEMENT BILL OF LADING, in which they must include as “Concept” the specific identification numbers to correlate the transported cargo covered by said Invoice; and additionally apply the following:

a) Regarding first mile services, when the same are carried out in non-federal routes, service providers may issue a Transfer CFDI WITHOUT COMPLEMENT BILL OF LADING, and in which they must specify the code for products and services that is indicated in the “Instructions for the filling of the Invoice to which the Bill of Lading Complement is incorporated”, and including as the “Concept” of the Invoice the specific identification numbers to correlate the transported cargo covered by said Invoice.
b) For the intermediate stage of the service, they must issue a Transfer CFDI WITHOUT COMPLEMENT BILL OF LADING, for each section that implies a change of means or mode of transport, specifying the code for products and services that is indicated in the “Instructions for the filling of the Invoice to which the Bill of Lading Complement is incorporated”, and including as the “Concept” of the Invoice the specific identification numbers to correlate the transported cargo covered by said Invoice.
c) Finally, for the delivery of parcels to recipients, when the services are carried out in non-federal routes, service providers may issue an Transfer CFDI WITHOUT COMPLEMENT BILL OF LADING, and in which they must specify the code for products and services that is indicated in the “Instructions for the filling of the Invoice to which the Bill of Lading Complement is incorporated”, and including as the “Concept” of the Invoice the specific identification numbers to correlate the transported cargo covered by said Invoice.

  • If at any time during the services, the service providers use federal roads, they shall issue a Transfer CFDI WITH A COMPLEMENT BILL OF LADING.

    With respect to the reform of the Eleventh Transitory Article of the First Resolution of Modifications to the Miscellaneous Tax Resolution for 2021

  • It is provided that, for the purposes of rule 2.7.1.9. and the Thirty-Sixth Transitory Article of the MTR 2021, the use of the Complement Bill of Lading will be mandatory as of December 1, 2021

     This resolution arises from the commitments made by the Tax Authorities during the meetings and working tables that have been carried out with different commercial chambers and providers of transport and logistics services, and with it the commencement of the obligation of the issuance and incorporation of the Bill of Lading Complement to the Income and Transfer CFDI, is extended until December 1, 2021.

     Additionally, it is important to take into account that from the beginning of the obligation and until January 1, 2022, even though the issuance of the aforementioned documents is compulsory, it will be considered that taxpayers are in compliance with said obligation even when the documents they issue have deficiencies, errors or omissions, establishing this term of 31 days as a “trial period” for taxpayers to verify and check the suitability of the systems they have implemented to comply with rule 2.7.1.9., which will become fully mandatory until January 1, 2022.

Crime of Smuggling by omission of Tax Documents

     Finally, it is important to mention that on November 12, 2021, the “Decree reforming, adding and repealing various provisions of the Income Tax Law, the Value Added Tax Law, the Law on the Special Tax on Production and Services, the Federal Law on New Automobile Tax, the Fiscal Code of the Federation and other regulations” was published in the Official Gazette of the Federation. Through this publication, among other things, new provisions relating to the crime of SMUGGLING are added to article 103 and article 104 of the CFF, in order to stipulate the following:

Article 103.- The crime of smuggling is presumed to have been committed when::
[…] XXII. Goods or merchandise are transported by any means in national territory, without the issuing of the income or transfer digital tax receipt (CFDI), as applicable, to which the Complement Bill of Lading is incorporated.
XXIII. Hydrocarbons, petroleum or petrochemicals are transported by any means in national territory, without the issuing of the income or transfer digital tax receipt (CFDI), as applicable, to which the Complement Bill of Lading is incorporated, as well as with the other complements intender for those goods.

In accordance with paragraph IV of Article 104 of the CFF, in cases in which goods are transported without the tax documents that demonstrate the legal stay and transport of the cargo in Mexican territory, the crime of Smuggling will be punished with THREE TO SIX YEARS IN PRISON.

Kind Regards.

Sesma, Sesma & McNeese 

Sesma
Author: Sesma