VIII-P-SS-246
PRESUMPTION OF INEXISTENCE OF OPERATIONS. MOTIVATION OF THE OFFICIAL LETTER WITH WHICH THE PROCEDURE REGULATED IN ARTICLE 69-B OF THE FEDERAL TAX CODE IS INITIATED.- According to the first paragraph of article 69-B of the Federal Tax Code, when the tax authority detects that a taxpayer has been issuing tax receipts without having the assets, personnel, infrastructure or material capacity, directly or indirectly to render the services or produce, commercialize or deliver the goods covered by such receipts, or that such taxpayers are not located, it shall presume the non-existence of operations covered by such receipts; and in accordance with the provisions of the second paragraph of the aforementioned legal precept, in that case, shall proceed to notify taxpayers who are in that situation, in order that they may declare before the tax authority what is convenient to their right and provide the documentation and information they deem relevant to distort the facts that led the authority to notify them. In those terms, in order to have the constitutional requirement of motivation duly fulfilled, in the official letter through which the tax authority notifies the taxpayer that he or she is in such a situation, it is enough to specify the special circumstances, particular reasons, or immediate causes that allowed tax authority to detect that the taxpayer was issuing tax receipts without having the assets, personnel, infrastructure or material capacity, directly or indirectly; in other words, it must prove the assumptions of the relative presumption (iuris tantum), established in the first paragraph of article 69-B of the Federal Tax Code; as it happens when it indicates the facts it knew derived from the domiciliary visit it made to the taxpayer, as well as the consultation of the databases it has and to which it has access, specifying the numbers of receipts, their date, the concept they cover, their amount, in favor of which persons they were issued and their federal taxpayer registry; it is not necessary to specify what should be understood by assets, personnel, infrastructure or material capacity; since at the time of issuing such office, the authority is not certain that the taxpayer effectively does not have those elements to provide services or produce, commercialize or deliver the goods covered by the receipts in question, but based on known facts carries out a logical deduction that allows it to presume the non-existence of operations covered by such receipts; especially that the presumption it makes has the character of provisional truth, in other words, it admits evidence to the contrary, and is therefore susceptible to being destroyed with the evidence provided by the taxpayer for that purpose, within the fifteen-day period that the tax authority grants it in respect of its fundamental right to a prior hearing.
VIII-P-SS-246 Administrative Proceedings No. 255/17-14-01-9/4261/17-PL-02-04.- Resolved by the Plenary of the Superior Chamber of the Federal Court of Administrative Justice, in session of August 8, 2018, by unanimity of 11 votes in favor.- Reporting Judge: Nora Elizabeth Urby Genel – Secretary: Lic. Diana Patricia Jiménez García. (Thesis approved in session of August 8, 2018)
R.T.F.J.A. Eighth Era. Year III. No. 25. August 2018. p. 109