ANNULMENT REQUEST OF A SIMULATED ACT. IS NOT A PRECONDITION TO DISREGARD THE TAX EFFECTS OF NONEXISTENT OPERATIONS.- Articles 2180 through 2183 of the Federal Civil Code, state that an act is simulated when the parties falsely declare or confess what has not happened or has not been agreed upon between them; that said simulation can be absolute when the simulated act has no realness to it, which, is the case when there are no legal effects created and when the legal act is given a facade that hides its true nature; likewise, the annulment of the legal acts can be requested, by injured third parties, or the Public Prosecutor when there is a transgression of the law, or in detriment of the State Treasury. Now, in accordance to the legal provisions mentioned, the tax authority can resort to the competent judicial body to request the annulment of the legal acts that are considered simulated, but this possibility is not a precondition to ignore the tax effects derived from the nonexistent operation that were noted from the exercise of the authority’s verification powers, because the resolution of the tax authorities, does not implicitly state the annulment of the general effects of said acts.
Administrative Proceeding Num. 4351/16-07-01-4-OT/1124/17-S1-04-04.- Solved by the First Section of the Superior Chamber of the Federal Court of Administrative Justice, in session August 15, 2017, solved unanimous with 5 votes in favor.- Reporting Judge: Rafael Anzures Uribe.- Secretary: Ana María Reyna Ángel. (The thesis was approved in a session from October 5, 2017)
F.C.A.J.J. form the Eighth Era. Year II. No. November 16, 2017. pg. 318