Mexico modifies transfer pricing deadlines for filers of DISIF

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1 16 February 2018 Global Tax Alert News from Americas Tax Center and Transfer Pricing Mexico modifies transfer pricing deadlines for filers of DISIF EY Global Tax Alert Library The EY Americas Tax Center brings together the experience and perspectives of over 10,000 tax professionals across the region to help clients address administrative, legislative and regulatory opportunities and challenges in the 33 countries that comprise the Americas region of the global EY organization. Copy into your web browser: Tax/Americas-Tax-Center---borderlessclient-service Executive summary Mexico has incorporated recent tax developments into its tax legislation, which include changes to the due date for the Tax Situation Information Return (Declaración Informativa sobre Situación Fiscal or DISIF) and deadlines to file some of the transfer pricing returns for fiscal year (FY) Specifically, Mexico changed the due date for the DISIF to the same due date for the annual tax return under Article 32-H of the Mexican Federal Tax Code (MFTC) for FY2017, which is no later than 31 March. This change is relevant because, until FY2016, both the DISIF and the transfer pricing information return related to intercompany transactions with foreign related parties (Exhibit 9 of the Declaracion Informativa Multiple (DIM)) could be filed until 30 June For FY2017, however, the MFTC and administrative rules provided by the Mexican tax authorities (SAT) have been aligned and now establish that taxpayers that have exercised the option to file the DISIF must do so no later than 31 March. The administrative rules, however, still allow taxpayers that file the Statutory Tax Audit Report (Dictamen Fiscal) to file Exhibit 9 of the DIM until 15 July or 31 July 2018 (provided all contributions are paid by 15 July). The other transfer pricing (TP) obligations in Mexico are still valid and did not change in terms of content or dates of preparation or submission (e.g., TP documentation, BEPS 1 statements: local information return, master information return and country-by-country information return).

2 2 Global Tax Alert Americas Tax Center and Transfer Pricing Detailed discussion Background Statutory Tax Audit Report vs DISIF Statutory Tax Audit Report 2 The Statutory Tax Audit Report (Tax Report) is a report issued by a Certified Public Accountant (CPA) in which the CPA makes a tax compliance pronouncement about the taxpayer s fiscal situation on a yearly basis based on current tax rules. Such report may only be issued by CPAs previously authorized by the SAT, and taxpayers must file with the SAT on or before 15 July of each year or 30 July, when all contributions are paid by 15 July. Mexican taxpayers may engage an external auditor to prepare a Tax Report, which must be filed on the aforementioned dates. Taxpayers meeting the following criteria may file the Tax Report: Have aggregate prior-year revenues over MXN $109.9 million Have total assets over MXN $86.8 million Have 300 or more employees Or Are controlled by another company (Mexican or foreign) that falls under one of the three previously mentioned criteria Taxpayers that have exercised the option of filing the Tax Report do not have to file the DISIF. The due date for filing the Tax Report is no later than July of the year following the fiscal year in question. DISIF 3 The DISIF is a report prepared by the taxpayer (or a third-party advisor) in which tax compliance information is disclosed. The taxpayer must file the DISIF together with its tax return with the SAT on or before 31 March of each year. 4 Mexican companies meeting any of the following criteria must file the DISIF: Have aggregate prior-year revenues over MXN $708 million or hold shares in the public stock exchange Report under the optional tax regime for groups of companies, under Title II, Chapter VI of the Mexican Income Tax Law Are parastatal entities (i.e., entities that serve the government) of the federal public administration Have a permanent establishment in Mexico for a foreign resident Conduct transactions with foreign-based related parties Mexican resident companies performing transactions with foreign residents may choose not to file the DISIF if the transactions were lower than MXN $100 million. 5 For FY2016, taxpayers had to file the DISIF no later than 30 June TP due date changes DISIF Article 32-H of the MFTC, in force for FY2017, states that taxpayers filing the DISIF must file it along with the annual tax return by 31 March of the year following the fiscal yearend. The new due date represents a significant change in the filing due dates of the DISIF and Exhibit 9 of the DIM, because for FY2016, both had to be filed by the end of June. As of 15 February 2018, the SAT has not issued any official pronouncement related to a possible extension of the DISIF filing date. Therefore, taxpayers must begin to prepare all of the necessary information to ensure compliance. Penalties for non/partial compliance related to intercompany transactions range from MXN $12,080-$120,760. BEPS returns Article 76-A of the Mexican Income Tax Law requires certain taxpayers to file with the SAT the following annual returns in force since 2016: Master file (in English or Spanish) Local file (in Spanish) Country-by-country report (CbCR) Local and master file returns 6 The local and master file returns apply only if the taxpayer meets one of the provisions indicated in Article 32-H, Sections I, II, III and IV of the MFTC and carry out transactions with related parties. Such provisions are: Have aggregate prior-year revenues over MXN $708 million or hold shares in the public stock exchange Report under the optional tax regime for groups of companies, under Title II, Chapter VI of the Mexican Income Tax Law

3 Global Tax Alert Americas Tax Center and Transfer Pricing 3 Are parastatal entities (i.e., entities that serve the government) of the federal public administration Have a permanent establishment in Mexico for a foreign resident The deadline for complying with filing the local file and master file is 31 December of the year following the fiscal year in question. CbCR Taxpayers must file the CbCR if they have consolidated income for accounting purposes that is equal to or greater than MXN $12 billion in the immediately preceding fiscal year. The SAT has not issued any formal notification requirements with respect to the CbCR. The legal framework considers that a taxpayer has complied with the notification requirement when a designated Mexican taxpayer files the CbCR. For 2016, Mexican subsidiaries that complete a questionnaire as an appendix to the DISIF (due on 30 June 2017) and the Tax Report (due on 31 July 2017) will be deemed as notifying the SAT as to whether the ultimate parent entity will be filing the CbCR of the multinational enterprises. Next steps The DIM, the transfer pricing documentation and the DISIF must be filed in conjunction with the annual tax return no later than 31 March 2018; if the taxpayer opts to file the Tax Report, however, the taxpayer may prepare the documentation no later than 15 July or 30 July of the year following the fiscal year in question. Regarding BEPS returns (i.e., local file, master file and CbCR), certain taxpayers must prepare and review the information to be included on the returns so that they can file them no later than 31 December For those items that cannot be disclosed, legal alternatives should be explored, given the penalties for partial compliance. Endnotes 1. Base Erosion and Profit Shifting, as defined by the Organisation for Economic Co-operation and Development. 2. MFTC, Article 32-A and Rule of the 2017 MTR. 3. Article 32-H of the MFTC. 4. Sixth resolution of modifications to the 2017 MTR Rule According Rule of the 2018 MTR published in the DOF on 22 December 2017, taxpayers that must file the DISIF may choose not to submit it when the total amount of transactions carried out with foreign residents during the fiscal year is lower than 100 million pesos. 6. Applicable only if they are indicated in Article 32-H, Sections I, II, III and IV of the MFTC performing transactions with related parties.

4 4 Global Tax Alert Americas Tax Center and Transfer Pricing For additional information with respect to this Alert, please contact the following: Mancera, S.C., Mexico City Koen van t Hek Alma Gutiérrez Mancera, S.C., Nuevo León Enrique Gonzalez Cruz koen.van-t-hek@mx.ey.com alma.gutierrez@mx.ey.com enrique.gonzalezcruz@mx.ey.com Ernst & Young, LLP, Latin America Business Center, New York Ana Mingramm ana.mingramm@ey.com Enrique Perez Grovas enrique.perezgrovas@ey.com Calafia Franco Jaramillo calafia.francojaramillo@ey.com Ernst & Young LLP (United Kingdom), Latin American Business Center, London Jose Padilla jpadilla@uk.ey.com

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