On January 22 of 2021, it was published on the Federal Official Gazette (“DOF” in its Spanish Acronym) the Agreement for the creation of the permanent National Trade Facilitation Committee (herein the “Agreement). The purpose of the National Trade Facilitation Committee (herein the “Committee”) is to facilitate the coordination between governmental offices, agencies of the Federal Public Administration and independent constitutional agencies, within the scope of their different competences, participate in the regulation of programs related to foreign trade.
The aforementioned addresses both, the National Development Plan 2019-2024 as well as the Protocol Amendment of the Marrakech Agreement that establishes the World Trade Organization (herein the “Protocol”), which indicates in the second paragraph of Article twenty-three in the institutional arrangements, that each member will maintain or establish a National Trade Facilitation Committee. The purpose is to improve trade facilitation in order to abolish the inefficient procedures and requirements, resulting in a reduction of trade costs and simplifying administrative procedures.
The Agreement seeks to materialize the content of the Protocol, in order to accelerate the implementation of the trade facilitation provisions, based on national and international applicable regulations.
The Committee shall be composed of the following entities representatives: Secretariat of Economy, Secretariat of Foreign Affairs, Secretariat of National Defense, Secretariat of Finance and Public Credit, Secretariat of Environment and Natural Resources, Secretariat of Energy, Secretariat of Agriculture and Rural Development, Secretariat of Communications and Transportation and Secretariat of Health. All of the above, with the right to speak and vote in the sessions in which they are present.
Furthermore, it is expected to have as permanent guests the representatives of the Mexico’s Central Bank, the Tax Administration Service, the National Commission for Regulatory Improvement, and the Federal Antitrust Commission. In the same way, it is emphasized that when estimated, the Committee may include as guests the representatives of the private sector, civil society organizations, academic institutions and all subject matter experts. All of the above, with the right to speak in the sessions in which they are present.
Among the Committee’s important functions, the following may be highlighted:
- Serve as a coordinating body for the competent entities of the Federal Public Administration participating in the implementation and application of the Agreement.
- Collaborate with the Secretariat of Economy and the Secretariat of Foreign Affairs in the design of politics, programs and actions oriented to simplify and automatize the processes in matter of foreign trade.
- Propose suggestions related to implementation and application matters of the Agreement.
- Analyze, and when needed, submit recommendations in order to improve the efficiency of foreign trade processes, with the aim of reducing costs and eliminate trade barriers.
The creation of the Committee will encourage the strengthening of foreign trade policies, benefiting our country.
On January 12, 2021, the Amendment Decree through which a section IV is added to subparagraph A) and the section (IV) of the subparagraph B) is abrogated from article 298 of the Federal Telecommunications and Broadcasting Law, was published in the Mexican Federal Official Gazette (the “Amendment Decree”).
Under the Amendment Decree, the penalty for carrying out violations to the law, regulations, administrative provisions, fundamental technical plans and other provisions issued by the Federal Institute of Telecommunication, as well as to the concessions or authorizations not expressly referred to in Chapter II of the Federal Telecommunications and Broadcasting Law (the “General Violations”), which was provided for in Section (IV) of the subparagraph B) of Article 298 of the Federal Telecommunications and Broadcasting Law (the “Law”) was abrogated and included, with exactly the same text, in section IV, subparagraph A of the aforementioned Article 298. In consequence, the penalty for breaching the General Violations decreased from 1% to 3% to 0.01% to 0.75% of the income of the concessionaire or authorized.
It is important to mention, that Section (IV) of the subparagraph B) of Article 298 of the Law that is abrogated under the Reform Decree, was declared unconstitutional by resolution of the Supreme Court of Justice of the Nation in the normative section of the 1%, for considering that such provision violates Article 22 of the Political Constitution of the Mexican United States, as it is an excessive penalty that neglects the due relationship between the conduct, the consequences produced and the applicable penalty, besides that the minimum fine is greater than the minimum fine applicable for other infringements. This led to the jurisprudence 2ª/J. 167/2017 (10ª).
At the morning conference on January 7, 2021, the President of the Mexican Republic, Andrés Manuel López Obrador, expressed his intention to present a bill to disappear several autonomous bodies, including the Federal Institute of Telecommunications (“IFT“, as per its Spanish abbreviation) and the National Institute of Access to Public Information, with the aim of reducing public spending.
With regards to the possible disappearance of the IFT, the President mentioned that the functions currently performed by the IFT could be absorbed by the Ministry of Communications and Transportations (“SCT“) and openly questioned the acting and results of the IFT, accusing the commissioners of being “closely linked” to the dominant and foreign companies. The President finally indicated his intention to present in February a bill to disappear the IFT.
From our perspective, the disappearance of the IFT would, in principle, imply the following:
- A major reform of the Political Constitution of the Mexican United States, since it provides for the existence of the IFT, as well as the way in which the IFT is integrated and its directors chosen, among other things;
- An amendment to the New Treaty between Mexico, the United States and Canada, since Chapter 18, specifically Article 18.7, provides for the existence of an independent telecommunications regulatory body;
- A total reorganization of the SCT to assume the functions and authorities of the IFT, considering that the Sub-Secretary for Communications and Technological Development recently disappeared.
Notwithstanding the previous statements, on December 16, 2020, the President sent to the Permanent Commission of the Congress a request for Sayuri Adriana Koike Quintanar and Laura Elizabeth González Sánchez to be ratified as new IFT commissioners instead of former commissioner Gabriel Contreras and the current commissioner Mario Fromow, who will leave office this year.
On December 8th, 2020, a Decree that reforms, adds and repeals provisions of the Income Tax Law, the Value Added Tax Law and de Federal Fiscal Code (the “Decree”) was published in the Federal Official Gazette, which came into effect on January 1st, 2021.
According to the Decree, several modifications and additions were made to the Federal Fiscal Code (“CFF”, per its acronym in Spanish), the Income Tax Law (“LISR”, per its acronym in Spanish) and the Value Added Tax Law (“LIVA”, per its acronym in Spanish). Among the main modifications are the following:
I. Tax invoices and digital stamp certificates for invoice issuance
1. Requirements of the tax invoices. According to the Decree, amendments to the CFF are considered regarding tax invoices or as known in Mexico “Comprobantes Fiscales Digitales por Internet” (“CFDI”, per its acronym in Spanish) and the digital stamp certificates for invoice issuance (“CSD”, per its acronym in Spanish).
Article 29-A of the CFF establishes that, in cases where the Taxpayer’s ID (“R.F.C.”, per its acronym in Spanish) is not known for invoicing purposes, the taxpayers issuing the CFDI can use a generic code, as if the operation were celebrated with the general public.
Also, it states that the catalogues provided by the Tax Administration Service (“SAT”, per its acronym in Spanish) must be used, in order to include in the CFDI the data corresponding to quantity, measure unite, type of goods or services, etc.
Finally, for payments at one or more exhibitions, but on a deferred basis, the mentioned provision clarifies that a CFDI must be issued for the whole operation, at the moment its being carried and, after, a CFDI will have to be issued for each payment received.
2. Payments considered as deferred for issuing a simplified tax invoice. For the purposes of Article 14 of the CFF, when taxpayers issue a simplified CFDI, it will be understood as if the transaction is carried in installments, with deferred payments. The above is also applicable to those operations carried with the general public, when more than the 35% of the total price is deferred until after the sixth (6º) month and the term agreed exceeds twelve (12) months.
3. New assumptions for canceling or blocking access to the digital stamp certificates. Through the Decree, two (2) new assumptions are added to Article 17-H of the CFF, establishing that the CSD will be cancelled: (i) when the tax authority detects that the person that issued the CFDI did not disproved the presumption of inexistence of the operations covered in the invoices, definitely locating itself in the list, according to Article 69-B of the CFF, and (ii) when it is detected that it is before a scenario where the taxpayer was not able to disprove the presumption of having, incorrectly transferred tax losses, locating itself in the list mentioned by the ninth paragraph of Article 69-B of the CFF.
For the same Article 17-H, the term of three (3) days increased to ten (10), for the tax authority to solve the request of the taxpayer to obtain a new CSD, once it has corrected all irregularity identified by the SAT. Such term will start to count from the immediately following day to such when the request was received by the authority.
On the other hand, Article 17-H Bis of the CFF, regulates the assumptions for the authority to be able to block the CSD, eliminating sections IV and X, corresponding to the two (2) assumptions added to the cancelation scenarios, previously mentioned. In this regard, a maximum term of forty (40) business days is contemplated for taxpayers who suffered a CSD block, in order to request a clarification and correction of the irregularities observed by the tax authority.
In case such term is exceeded without having presented the mentioned request, the SAT is able to cancel the corresponding CSD.
II. Contribution refund procedures
In the case of the procedure for requesting a refund of contributions provided in Article 22 of the CFF, the refund mechanic will proceed as it has been in the past, with the difference that the tax authorities are now able to consider the request was not filed in the following cases: (i) when the taxpayer is considered under the Taxpayer’s Registry as not located, or (ii) when the address of the taxpayer is not located under the Taxpayer’s Registry.
In such case, the Decree establishes that the five (5) years term that taxpayers have to request the refund of their credit balance will continue to run, not considering that the request that was considered as not filed interrupts the prescription of such right.
Also, Article 22-D of the CFF clarifies that, when there are several active refund requests by the same taxpayer, for the same contribution, the tax authority can audit the corresponding taxpayer for each or the whole amount of refund requests, allowing it to issue a single resolution for all the procedures.
For issuing the corresponding resolution, the term of ten (10) days is increased to twenty (20) business days, at the end of the term established for the audits.
III. Notice to the Taxpayer Registry by legal entities
Regarding the obligation for legal entities to file the notice at the Federal Taxpayer Registry, reporting their corporate structure, contemplated in Article 27, section B, subsection VI of the CFF, initially it was required that the notice contained the name and R.F.C. of the shareholders and partners, in order to provide SAT with real-time information of the corporate structure of legal entities.
By the Decree, it is stated that such notice must be filed every time a modification or incorporation of such structure is made, including not only partners or shareholders, but also associates or any other person forming part of the organic structure of the legal entity, and hold such character according to the bylaws or the applicable laws of the country of its incorporation.
IV. Infringement for concessionaries of public telecommunication networks and withholding for digital personal services
1. Fines for concessionaries of public telecommunication networks. Considering the provision of digital personal services by foreign residents who do not have a permanent establishment (“EP”, per its acronym in Spanish) in Mexico, several articles are added to the LIVA and LISR to allow the SAT to block their access to digital services, in case of not complying with their obligations, as well as for any omission in the payment of their corresponding taxes.
In line with the above, Articles 18-H QUÁTER and 18-H QUINTUS of the LIVA establish that the blocks or unblocks will be ordered by the tax authority and must be carried by the concessionaries of public telecommunication in Mexico, always according to a resolution legally based by the SAT. On the other hand, Article 113-D of the LISR establishes the same, when failing to comply with their withholding and payment of the corresponding income tax (“ISR”, per its acronym in Spanish).
For those purposes, a maximum term of five (5) business days is granted to the concessionaire to comply with the blocking or unblocking order. When exceeding such term, the CFF added an Article 90-A, which establishes fines, from $500,000.00 (Five hundred thousand Mexican pesos, 00/100) to $1,000,000.00 (One million Mexican pesos, 00/100). The corresponding fine will be applicable for each calendar month that passes without complying with the ordered actions.
2. Withholding for digital personal services. For goods or services provided by Internet, through technological platforms, apps or similar, several modifications to the LISR and LIVA were made, to establish the way to withhold and the corresponding rates.
Based on Article 113-A of the LISR regarding natural personas who pay taxes under the chapter of business activities and sell goods or provide services by Internet, through technological platforms, apps or similar, related to intermediation between offering third parties of such goods and services and its clients/consumers, the withholding rates were modified.
The withhold must be done over the gross income effectively perceived by the natural persons, by the previously mentioned ways, considering that such withholdings will have the nature of provisional payments of the tax:
a) For the provision of terrestrial passenger transport or deliver of goods services, a 2.1% rate will be applicable.
b) For the provision of accommodation services, a 4% rate will be applicable.
c) For the disposal of goods and provision of services in general, a 1% rate will be applicable.
Also, a relevant modification was made to the LIVA, eliminating a paragraph that did not considered real estate disposal services as digital intermediation services. In that sense, such services will now be levied according to the LIVA.
V. Modifications to non-profit entities
Among the main modifications by the Decree, cooperative integration and representation organisms (as established in the General Law of Cooperative Entities) such as Federations and Confederations, were included in Title III del Régimen de las Personas Morales con Fines no Lucrativos of the LISR.
Likewise, there is a modification foreseen, that will be valid until July 1st, 2021, which states that only the following legal entities will be considered as non-profit entities and, therefore, non-taxpayers, as long as they are incorporated as non-profit organizations and have a valid authorization to be a non-taxpayer.
a) Civil Society or Foundation (“S.C.” or “A.C.” respectively, per its acronym in Spanish) that are focused in technological or scientific research, registered under the National Registry of Technological and Scientifical Institutions.
b) S.C. or A.C. dedicated to the granting of scholarships.
c) S.C. or A.C. that has as exclusive object the performance of wild, aquatically or terrestrial, flora and fauna preservation activities, between the geographical areas established in Attachment 13 of the Resolución Miscelánea Fiscal, as well as those that exclusively promote the control of the water, air and soil contamination, as well as the protection of the environment and, preservation and restauration of the ecological balance, before the population.
d) S.C. or A.C. that exclusively perform the reproduction of protected and endangered species and the conservation of its natural habitat. For those types of entities, it is necessary to have a previous authorization by the Mexican Ministry of the Environment and Natural Resources.
If those entities fail to comply with such conditions before July 1st, 2021, it will be considered that they will tax under the Title II of the LISR, “De las Personas Morales”, which will be considered as taxpayers for ISR purposes. Nevertheless, based on the Second Transitory Article of the dispositions of the LISR of the Decree, it is an obligation for those entities to determine the construed distributable dividends that were generated until December 31st, 2020, according to Title III of the LISR, and its partners and members must accumulate such dividends that was delivered to them in cash and goods.
1. Income of the non-profit non-taxpayer entities not related with their activities. Article 80 of the LISR was modified to establish a limit of 50% to the income that can be received by the non-profit, non-taxpayer entities, not related to their object or authorized activities to receive donations. In case such percentage is exceeded, the consequence will be to lose the authorization to be a non-taxpayer, non-profit entity.
In case the entity lost its non-taxpayer authorization for allegedly violating what it is established in the previous paragraph, the LISR contemplates a twelve (12) month term, after the notification of the revocation of the authorization, to obtain a new one and, in case of failing to obtain it, the corresponding entity will be forced to donate the 100% of its heritage to any other non-taxpayer organization, between the following six (6) following months. It is established that the CFDI issued by the non-taxpayer entity receiving such heritage, will not be deductible for ISR purposes.
The above will also be applicable to those legal entities who voluntarily cancel its authorization.
Finally, it is established that those non-taxpayer entities that did not renewed its authorization to receive donations, for failing to comply with the obligation to provide the general public with the information related to the destiny of its resources, will have one (1) month to comply with such obligation, after the revocation was duly notified. If they comply with that obligation, they will have the faculty to request for a new authorization.
VI. Salary income
According to the Decree, an addition to Article 94 of the LISR was made in order to establish a limit of $75,000,000.00 (Seventy-five million Mexican pesos, 00/100) for income obtained by individuals for the following concepts: (i) fees for services performed mainly to a service provider, as long as those services were not performed in the provider’s premises, (ii) fees received by individuals of legal entities or of individuals with commercial activities to whom they provide independent personal services, and (iii) income received by individuals of legal entities or of individuals with commercial activities, for whose commercial activities performed.
In case the mentioned amount is exceeded in the fiscal year, the regulations of Chapter I “De los Ingresos por Salarios y en General por la Prestación de un Servicio Personal Subordinado”, of Title IV “Individuals” of the LISR will not be applicable, as they must pay their taxes under the corresponding chapter, according to their incomes, starting from the immediately following month to the date when the income exceeded the mentioned amount.
VII. Other relevant regulations
1. Medical services for the purposes of the value added tax. Regarding the text of the Decree, it is established that no value added tax will be charged for the provision of professional medical services, as long as for those services, a valid medical certificate is required, and they are provided by assistance or private charity institutions.
2. Modifications to the general anti-avoidance rule. The mentioned rule, contemplated in Article 5-A of the CFF, was modified to establish that all effect given by the SAT to the legal acts of the taxpayers, in accordance with such rule, must be limited to the determination of the corresponding taxes, fines and legal accessories without prejudice to the liability or criminal investigations that occur by virtue of the conducts and the CFF.
3. Disposal in case of corporate spin-offs. When performing corporate spin-offs, Article 14-B of the CFF is modified to establish that, if as result of such transaction an item or concept arises in the stockholder’s equity of any of the involved companies, not previously registered in the statement of financial position of the general assembly of partners or shareholders who agreed to the spin-off, it will be considered as a sale for tax purposes.
4. New assumptions of joint liability. A new assumption is added to Article 26 of the CFF regarding joint liability, which will apply to Mexican tax resident companies or foreign residents with an EP in Mexico, who perform transactions with related parties resident abroad, over which there is considered to have effective control. In case they fail to comply with their obligations, the liability will be limited to the taxes that the foreign resident caused for the effectively performed operations with the Mexican entity or the EP.
5. Term to request the adoption of a tax ombudsman agreement. In case the taxpayers are willing to set up a tax ombudsman agreement (“Acuerdo Conclusivo”, per its full name in Spanish) before the Mexican Tax Ombudsman (“PRODECON”, per its acronym in Spanish) for acts of the tax authorities, Article 69-C of the CFF establishes that the request for the adoption of the agreement can be filed at any time, from the start of the audits by the SAT and until the twenty (20) business days following the notification of the final official letter, the observations official letter or provisional resolution.
Before the reform, the term of twenty (20) days did not exist, as the taxpayers had the possibility to file the request for the Acuerdo Conclusivo before the issuance of the final resolution that determines tax assessments.
We expect this will be helpful. The complete publication of the Decree can be found in the following link: http://www.dof.gob.mx/nota_detalle.php?codigo=5606951&fecha=08/12/2020
We look forward on commenting any doubt regarding the content of this document in the following emails:
By: Daniela Cervantes Escamilla.
On November 12, 2020, the President, Andrés Manuel López Obrador, announced a draft decree that seeks to modify the Mexican legal system in terms of outsourcing and that will be presented for discussion before the Chamber of Deputies (hereinafter the “Initiative”).
This Initiative implies various modifications in provisions of 6 (six) laws to harmonize the legislation with the proposed changes, which are: (i) Federal Labor Law (hereinafter “LFT”), (ii) Social Security Law (hereinafter “LSS”), (iii) National Institute of Housing Fund for Workers Law (hereinafter “LINFONAVIT”), (iv) Federal Tax Code, (v) Income Tax Law, and (vi) Value-Added Tax Law. The most relevant modifications are listed below:
Regarding the LFT, the Initiative provides the express prohibition of the outsourcing of personnel as stipulated in article 13. According to the Initiative, the contractor may only provide specialized services or the execution of specialized works that do not form part of the corporate purpose or the economic activity of the beneficiary.
The foregoing will also imply the enter into a service provision agreement between the contractor and the beneficiary (hereinafter, the “Agreements”), where the content becomes an object of verification by the labor authorities and the obligation of the contractor to report it quarterly. Additionally, the contractor must request an administrative procedure before the Ministry of Labor and Social Welfare (hereinafter “STPS”), through which, he will be authorized to register in a Specialized Service Providers Registry (hereinafter the “Registry”). This authorization will prove the specialized nature of the services or the works they carry out.
A second effect of the Registry will allow to keep up to date the contractor’s fulfillment of its labor, tax, and social security obligations since he will be required to renew the authorization every 3 (three) years. With this information, the STPS may be empowered to enter into coordination agreements with various authorities (for example, with the Mexican Institute of Social Security or with the National Institute of Housing Fund for Workers) in order to carry out an exchange of information that allows the correct continuity of the proceedings and the full exercise of the acts of authority.
Additionally, it is proposed to modify the figure of intermediary, understanding this as the natural or legal person involved in the hiring of personnel, and may include the processes of recruitment, selection, training, among other aspects. However, the beneficiary of the services will always be considered the employer of the hired personnel, so in no case may the intermediary be considered as such.
A last modification to the LFT is in the matter of employer substitution, through which it is intended that the assets of the company or establishment must be transferred to the substitute employer to carry out and take effect the substitution. Additionally, LINFONAVIT establishes joint and several liabilities in such a way that the substituted employer is liable together with the substitute employer concerning the obligations arising in the period before the date of the replacement and up to the following 6 (six) months.
Regarding the LSS and the LINFONAVIT, the Initiative seeks to promote a competitive business environment through which the social security and housing rights of workers are safeguarded in the present and the future (such as in case of pensions and/or access financing for housing), eradicating the evasion of payment of fees and eliminating bad practices due to the use of outsourcing.
Likewise, it is intended to establish before the workers used in the specialized services or the execution of specialized work a joint and several liabilities between the contractor and the beneficiary for the obligations outlined in said regulations.
On the other hand, the Initiative provides various modifications to the tax provisions, among which are (i) the prohibition to give tax effects (such as deductibility and credit for value-added tax) to the payments for outsourcing personnel; and (ii) qualifying in the commission of tax fraud due to the use of simulated service provision schemes or the execution of specialized works.
The non-compliance of the provisions outlined in the Initiative will result in the imposition of penalties, such as the imposition of fines or the commission of a crime.
Finally, under the transitory articles of the Initiative, the Decree provides for two periods of entry into force, being (i) the day after its publication in the Official Gazette of the Federation; with the exception that (ii) the reforms to the tax provisions will come into effect as of January 1, 2021. However, various deadlines are also ordered to comply with the established provisions:
Within 4 (four) months following the entry into force of the Decree:
a) The STPS shall issue the general provisions to establish the procedures relating to the authorization to provide specialized services or execute specialized works.
Within the following 6 (six) months as of this publication, contractors must obtain the authorization from the STPS for such purposes and register in the Registry.
b) The National Institute of Housing Fund for Workers shall issue the rules that establish the procedures for contractors to provide the information required in article 29 Bis of the LINFONAVIT, as well as to provide every four months the Agreements.
Within 6 (six) months following the entry into force of the Decree:
a) Contractors that provide specialized services or execute specialized works must begin to provide information regarding the authorization of the STPS and the Agreements.
We warn that the spirit of the Initiative maintains the need to safeguard the rights of the people who have been affected, mainly in the workplace. However, the business sector seeks to dialogue with Congress so that the full panorama of the Initiative is considered with the interests of all parties involved in labor relations.
We will continue to report on the legislative process of this Initiative and on any changes that may arise.
On November 2, 2020, the Ministry of Communications and Transportation (hereinafter, the “Ministry” or “SCT”) published in the Federal Official Gazette (hereinafter, “DOF”) a Delegation Agreement by which some powers in matters of communications and technological development, as well as in matters of the railway and multimodal development competence of the ex- Undersecretariat of Communications and Technological Development were delegated to the heads of the Undersecretariat of Transportation and Infrastructure (hereinafter, the “Agreement”).
The above responds to the presidential decree published in the DOF on April 23, 2020, through which some austerity measures were established and that must be observed by the agencies and entities of the Federal Public Administration, which include, among others, the order to cancel ten undersecretaries of State (hereinafter, the “Decree”).
As a result of the Decree, on August 10, 2020, the Ministry issued the COMMUNICATION-181-2020 through which it was reported the administrative restructuring and elimination of the Undersecretary of Communications and Technological Development, which was in charge of Ing. Salma Jalife Villalón. This measure foresaw the permanence of the ex-undersecretary within the SCT so that she could continue with the projects she was carrying out. However, at the beginning of September of this year, various media announced the resignation of Ing. Jalife from the Secretariat, information that has not been officially confirmed by the SCT to date.
Therefore, the Agreement seeks to materialize the restructuring proposed by the SCT by delegating the exercise of the powers provided in the Federal Telecommunications and Broadcasting Law and other applicable administrative provisions in matters of communications and technological development to the Head of the Undersecretariat of Transportation. In addition, the exercise of the powers provided in the Regulatory Law of the Railway Service and other applicable administrative provisions to the Head of the Undersecretariat of Infrastructure, is delegated.
Likewise, in its attempt to organize the legal sphere applicable to the Ministry, on August 27, 2020, was presented to the National Commission for Regulatory Improvement the Draft of the Internal Regulations of the Ministry of Communications and Transportation. In general terms, the proposal presented defines the competence of public servants, administrative units, decentralized administrative bodies, and coordination with the new organic structure, without creating new obligations or sanctions or restricting any right for individuals.
However, even though the Regulations were approved by the National Commissioner in September of this year, it has not been published in the DOF.
We will continue to inform you about the publication of the Regulation and any modification derived from these changes.
Acedo Santamarina has been recognized once again by Chambers and Partners (Latin America 2021) as one of the best firms in Mexico for the following practice areas: TMT (Telecommunications Media and Technology) Corporate/M&A and Tax.
We also congratulate our partners, Andrés Acedo and Rafael Tena, who were individually recognized as Leading Lawyers in such practices.
As per the requests of associations and individuals promoters of the right to housing, on July 8, 2020, two deputies of the MORENA Parliamentary Group presented to the Mexico City Congress the “Initiative with the Draft Decree Amending and Adding Various Provisions of the Civil Code for the Federal District, in the Matter of Leasing to Ensure the Right to Housing in the Context of the Pandemic” (the “Initiative”).
The Initiative, according to its Statement of Reasons, is supported by the following:
(i) The health crisis resulting from the COVID-19 virus has caused the failure of housing tenants to comply with their obligations to pay rent, as a consequence of economic and social difficulties such as loss of employment, reduction in wages, and commercial inactivity.
(ii) Non-payment of rent can lead to (a) displacement of families with roots in neighborhoods, villages and colonies, (b) evictions, and (c) several people in a homeless condition.
(iii) The civil legislation of Mexico City in the matter of real estate leases does not provide tenants with the appropriate judicial guarantees, as it contravenes the principles of affordability, bearable costs, and legal security of tenure, all components of the human right to housing.
(iv) It is necessary to balance the relationship between the parties of a lease agreement in order to guarantee the right to adequate housing, which is foreseen in Article 4 of the Federal Constitution and Article 9 of the Political Constitution of Mexico City.
The Statement of Reasons of the Initiative refers to the Guidelines on the implementation of the right to adequate housing, issued during April 2020 by the former United Nations Special Rapporteur, which mention the need to take measures to guarantee the right to housing of individuals, such as (i) the cancellation, reduction and/or deferment of rents, and (ii) the implementation of supports and soft loans for homeowners.
In addition, the Initiative highlights the figure of mediation provided in the Alternative Justice Act of the Federal District Superior Court of Justice, as an effective instrument for resolving disputes arising from housing leases.
Specifically, the Initiative proposes to modify the Civil Code for Mexico City, in accordance with the following
- Amendment to Article 2398.
- The housing lease is defined as “that which contributes to the fulfillment of the human right to housing of the lessee in exchange for a certain price in favor of the lessor“.
- The housing lease agreement must be subject to a mandatory term of three years, except as provided by the lessee.
- Addition of two paragraphs to Article 2406.
- The vacancy legal proceeding shall be inappropriate if the landlord does not submit a written lease of housing agreement, even if the proceeding is based on failure to pay rent.
- The landlord will lose the right to keep the deposit in case of anticipated termination of the housing lease agreement, or an equivalent amount in the case of the termination of the agreement.
- Addition of Articles 2406 BIS, 2425 BIS, and 2431 BIS.
- In the absence of a written agreement, the tenancy shall be presumed to exist if it is demonstrated that a party has consented the occupation of its own property by the other party in return for the payment of a certain price.
- In order to exercise any action derived from the breach of the essential clauses of the agreement, it will be sufficient to make a statement under oath in the sense that a lease relationship exists, in the understanding that the parties still may prove their claims to the court.
- The following rights are provided for tenants (a) not to request more than one month’s advance payment; (b) not to demand bail or any real estate guarantee; (c) not to be subject to “arbitrary, illegal and/or forced evictions”; (d) to notify the court order to vacate two months in advance of the date of the eviction; (e) to have staff from specialized institutions present at the eviction so that they can provide assistance to vulnerable persons such as children, women victims of violence, indigenous people, immigrants, etc; (f) access to measures to avoid leaving people homeless, such as temporary shelters and incorporation into housing programs; and (g) should fortuitous cases arise, access to mediation for the modification of the terms of the agreement.
- In cases of national emergency, natural disasters, declarations of environmental, natural or health emergencies, or any other situation of force majeure that paralyzes economic activities and prevents the lessee from complying with the agreement, the lessee may request the temporary or definitive renegotiation of the lease agreement, in accordance with the provisions of Article 1796 of the Civil Code.
The Initiative has been strongly criticized for considering that, if approved in its terms, it would violate contractual freedom, allow housing tenants to stop paying rent, and violate the rights of landlords, such as the right to property, thus discouraging investment in the real estate sector. Activists involved in the drafting of the Initiative, for their part, have stressed out the need to encourage written leases to provide legal certainty for tenants.
We hope that the discussion of the Initiative in the Mexico City Congress will be carried out through a deep, measured, and unbiased debate. Furthermore, that it contemplates the participation of litigants and judges and other sectors, in order to avoid deficiencies that could negatively impact the effective implementation of the legal provisions. Finally, we propose to be incorporated into the discussion, the feasibility of implementing supports such as those referred to by the United Nations Special Rapporteur, both for homeowners and tenants.