The foundation telethon will have to pay the Value Added Tax (VAT) generated by all its operations, since This tax and the law that regulates it do not violate the Constitution, determined the Supreme Court of Justice of the Nation (SCJN), an instance that denied an amparo to the civil association dedicated to caring for minors who live with a disability.
Unanimously, the five ministers that make up the First Chamber of the Court rejected the lawsuit filed by the foundation, with which it sought to to be completely exempt from paying VAT to its suppliers, and to third parties who provide you with a service.
The disagreement of the Telethon against VAT was generated because companies and individuals charge this tax when the group requires some good or service. By paying VAT to its suppliers, the tax becomes an expense that the association cannot transfer to its users, which in the end, according to the Teletón, ends up having an economic impact on its finances.
The civil association argued in its request for amparo that, in general terms, the tax regime that must be complied with, and VAT in particular, is contradictory and violates the principles of legislative reasonableness, legitimate trust, proportionality and tax equity.
However, the ministers of the Court did not agree with the Telethon, rejecting its protection, because indirect taxes, such as the Value Added Tax, “do not directly tax the movement of wealth that corresponds to the operation.” of the taxpayers.
To better explain the claims of the Telethon and what was resolved by the Court, we can give doctors as an example: They do not charge VAT to their patients, but when they purchase surgical instruments or buy any other product, they are obliged to pay VAT to the taxpayers who sell them said goods.
The same happens with the Teletón, in its services in favor of minors with disabilities they cannot be charged VAT, but when the association buys some good, it must necessarily pay this tax to the supplier. That is, the The foundation wanted to be considered as an exception taxpayer so as not to pay VAT to its suppliers.
The association detailed in its petition that “it must assume as an expense the Value Added Tax transferred to it by its suppliers, without being able (later) to transfer it to the users of its services, alienations or leases and/or recover it”, according to the sentence whose project was drawn up by the minister Jorge Mario Pardo Rebolledo.
Given this, the Court responded to the Telethon that this expense can be considered in the price of the services it provides, even though VAT is not charged on them. Ergo, the foundation’s problem is not accounting or fiscal, but rather administrative, since, like other taxpayers who cannot charge VAT for their activities, the amount of each of its services also considers operating expenses.
“While it is true that the producer of goods or the provider of services (formal taxpayer) must absorb the tax burden as an expense or cost, thus avoiding the cumulative effect of the tax, it is also true that has the possibility of considering said expense or cost in the sale price”, points out the sentence of the First Chamber of the Court.
Continuing with the example of doctors, if a doctor spends 20,000 pesos a month to maintain a private practice, obviously the cost of the consultation, even if it does not charge VAT, must be in accordance with said expenses. Obviously, if the doctor has higher expenses, this will also be reflected in what he charges his patients.
Thus, the Court reiterated that legal entities authorized to receive deductible donations from Income Tax (ISR), they cannot stop paying VAT to their suppliers, since this last tax “has a constitutionally valid purpose” and is reasonable.
The Value Added Tax is levied on consumption, while the ISR is a contribution that is set based on the income or wealth of the taxpayers. Non-profit civil associations, such as Teletón, must report to the Tax Administration Service (SAT) the income they receive from donations, without this implying the payment of tax to the Mexican treasury.
In addition, donees, as this type of organization is known that can receive ISR-deductible donations, are exempt from paying VAT to the SAT, unlike other taxpayers, but this last exemption does not include that they should not pay VAT to their suppliers.
MORE NEWS:
surya palaces Journalist and lawyer, specialist in legal analysis and human rights. She has been a reporter, radio host and editor.