Value added tax effects within business restructuring
residents from requesting tax refunds9 (the only way in which the principal may recover the VAT paid) should not apply because, as mentioned above, the principal must issue invoices for its activities and file monthly returns as a VAT taxpayer, thus clearly falling within the general rule ofregistration established in Para. 1 of Art. 27.
8. Crediting of VAT paid
The crediting mechanism requires first to determine the total amount of activities subject to tax and the actual tax to be paid by multiplying the resulting amount for the corresponding rate; this result is then reduced by the creditable VAT, which is the amount that has been transferred to the taxpayer and that which has been paid by the taxpayer as part of the impor• tation of goods and services in the corresponding month.
It is worth noting that within the applicable legal provisions there are vari• ous requirements established in order for the aforementioned VAT to be creditable; also, the VAT creditability may be limited in terms of the ratio of tax exempted to taxable activities performed by the taxpayer within the relevant period.
Among the established requirements, the VAT shall correspond to goods, services or the temporary use of goods that are strictly indispensable for the carrying out of activities other than the importation, and also that those are activities subject to VAT. For these purposes, payments will be considered strictly indispensable if they comply with the requirements set forth to be deductible for purposes of the Income Tax Law, even if the taxpayer is not actually subject to payment of such tax.
In other words, it should be noted that the aforementioned provision does not require that the acquisition of goods is or was actually deducted for in• come tax purposes; rather it only requires that the acquisition be potentially deductible. This means that the legal possibility of deduction is relevant and not the actual deduction; therefore, there should not be any limit on the creditability of the VAT by the principal as seller of goods in Mexico, but since there is no PE in Mexico, there is no income tax to be paid.
Additionally, Art. 5 of the VAT Law provides further requirements that must be met by the taxpayer (in this case the seller of the goods), when
9.Established in Para. 6 of Art. 27 of the Federal Fiscal Code.