VII-CASR-8ME-89
DONATIONS. THOSE MADE BY RELIGOUS ASSOCITATIONS GENERATE THE SAME LEGAL EFFECTS FROM SAID ACTS OR ACTIVITIES, THEREFORE THEY NEED TO PAY THE VALUE ADDED TAX USING THE 16% AND 11% RATES.- In accordance with articles 14, section I, of the Federal Tax Code, 2-A and 8º, of the Value Added Tax Law and 26 from its regulation, and 176, section III, of the Income Tax Law, all of them in force in 2010, book, magazines, brochures, etc. donations, edited by the religious associations for the public in general, should be considered as taxable sales by the value added tax; and, those acts and activities subject to a 0% rate, that in accordance to what is sated within article 2-A from the Value Added Tax Law, they produce the same legal effects as those acts and activities which a tax rate of 16% and 11% need to be paid, where they do generate the entire tax obligation, therefore, the legal possibility of transfering the tax exists, even though the result from the operation is zero and that should be the amount declare at that moment, in addition of having the right to apply the respective accreditation, even though a compensation is none existent and therefore it is posible to request a reimbursement that results appropriate. The above is true because a sale is defined as any transfer of property, and in particular, in relation with the value added tax, the donations are transfers that a corporation makes that are not tax deductable for the income tax, but are bound to pay the value added tax. The donations made by companies or religious associations to the public, as legal persons with none lucrative purposes which are not tax payers, are regulated in accordance with the dispositions for individuals and, exceptionally, by the dispositions for the general regime for legal entities , if the total of their income made by sales different from their fixed assets or by providing services to a person other than its members exceeds 5 percent of the total income of that legal entity in the fiscal year (postulation in which the legal entities with none lucrative purposes are considered tax payers), therefore the donation or the gifts of books does not meet the requirements for the deductibles set in articles 31, section I (general regime for legal entities), and 176 of the Income Tax Law (regime for individuals), because they are made to the public, this is, to unauthorized people whom receive deductible donations of the income tax.
Fulfiling the enforcable judgment dictated in the Contentious Administrative Proceeding No. 18647/15-17-08-1.- Solved by the Eighth Metopolitan Regional Chamber of the Federal Court of Administrative Justice, in session of April 17, 2017, by unanimity of votes in favor: Reporting Judge: Victoria Lazo Castillo – Secretary: Lic. Jonathan Hernández García.
R.T.F.J.F.A. Eighth Era. Year III. No. 26. September 2018. p. 336