In 2011, in resolving the contradiction of decisions between different collegiate circuit courts, the First Chamber of the Supreme Court of Justice of the Nation issued the jurisprudence entitled: “INVOICES. PROBATORY VALUE BETWEEN WHO ISSUED THEM AND WHO ACQUIRED THE GOODS AND SERVICES”, in which it is argued that the invoice is a private document used as a tax receipt for the purchase and sale or rendering of services, which allows evidencing in court the commercial relationship between the parties and the exchange of goods and services, according to (i) the circumstances or characteristics of its content and (ii) the subject before whom it is presented for collection. The foregoing in the understanding that if the invoice is challenged at trial, the content of such document will not be sufficient by itself to prove the commercial relationship and therefore, in such case, the party that has presented the invoice will be obliged to prove the facts of its claims using additional evidence.
Based on the amendment to Article 29 of the Federal Tax Code, precisely since 2011, the generalized use of the Digital Tax Receipt by Internet (CFDI) began gradually, together with the implementation of the Authorized Certification Providers (PAC) necessary for electronic invoicing. Subsequently, as of April 1, 2014, electronic invoicing became mandatory for taxpayers generating more than $250,000.00 pesos of annual income, on the understanding that since a year earlier the validity of printed invoices had already been eliminated. In mid-2017, modifications were incorporated in CFDIs such as the availability of validation of the data contained therein to all users of the Tax Administration Service, and in 2018 it is indicated that taxpayers must have a tax mailbox to exercise the right to accept or cancel a CFDI.
Recently, our courts have adopted criteria that deviate from the jurisprudence mentioned at the beginning of this document, since they consider that electronic invoices that meet the requirements contained in Articles 29 and 29 A of the Federal Tax Code may be useful by themselves to prove in court the commercial relationship and the exchange of goods or services, even if they have been challenged as to their evidentiary value.
Said jurisdictional bodies base their decisions on the fact that the mentioned jurisprudence of the First Chamber of the Supreme Court of Justice was issued prior to the incorporation of electronic invoices and on the reliability of the CFDIs, which are issued through various security and authenticity mechanisms used by the tax authority.
In this sense, we consider that the distribution of the burden of proof of the parties in lawsuits that intend to rely on electronic invoices or CFDIs should be analyzed considering the criteria recently issued by the courts in Mexico.