However, on January 1st, 2021, the amendment to article 27, section B, subsection VI of the FTC entered into force, which establishes that with the aforementioned Notice the name and the number in the FTR must be reported, not only of partners or shareholders, but also associates and other members regardless of the name they are designated, which by their nature are part of the organic structure and have such character according to the bylaws or provisions under which the legal entity is constituted, each time any modification or incorporation is made to said structure in accordance with the corresponding general rules.
The rule 2.4.19. of the MTR for 2021 states that the Notice must be submitted no later than 30 business-day-term following that in which any modification or additions was made. However, the Fifty-third transitory article of such MTR indicates that taxpayers who were obliged to submit the aforementioned Notice in 2020 and did not do so, may do so, for a unique occasion, no later than March 31st, 2021. Likewise, taxpayers who made any modification or incorporation during the first semester of 2021 must submit the Notice no later than September 30th, 2021.
Comments
We consider that the aforementioned provisions retain the same lack of legal certainty as in 2020, since: (i) they do not consider legal entities that have not undergone modifications or additions of partners or shareholders since their establishment; (ii) they do not consider cases in which the legal entities shares’ are placed among many investors through the Mexican Stock Exchange; and, furthermore, (iii) now include any member who according to the legal entities’ bylaws or applicable provisions is part of their organic structures, no matter that member do not have any connection in their shareholding structure.
We estimate that this Notice does not replace the Report that must be submitted by legal entities no later than the following March after the close of each fiscal year regarding the partners, shareholders or associates, residents abroad, indicating their domicile, tax residence and tax identification number (TIN) in accordance with article 27, section A, last paragraph of the FTC.
Recommendations
If the Notice was not submitted in 2020, whether or not there are modifications or additions to the organic structure of the legal entity in question, we suggest submitting it in order to avoid a fine for its omission but, above all, to avoid the temporary restriction of digital seal certificates for the issuance of e-invoice, situation that would totally paralyze its activities and operations.
If you have any questions regarding the foregoing, please do not hesitate to contact us.
Mexico City, February 18, 2021
