Pellerano & Herrera The Pellerano & Herrera Foundation

General rule 02-2010 that establishes the applicable procedures for the unilateral determination of taxes and the right to rectify tax returns filed by tax payers by the tax administration.

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As of march 2010, the Tax Administration issued the General Rule 02-2010 that establishes the applicable procedures for the unilateral determination of taxes and the right to rectify tax returns filed by taxpayers, by the tax Administration.

The scope of this General Rule is the integral process of unilateral determination of a tax by the Tax Administration or the right to rectify tax returns filed by the taxpayers when an omission is identified, an anomaly is detected in the accounting records, an inconsistency is verified in the tax return made, a discrepancy in the data provided or any other event that, in accordance to the Tax Code, must be corrected by filing a tax return or rectifying the present tax return. The process ends with the notification of the resolution which unilaterally determines the tax amount or a request for a rectifying declaration or the issuance of a waiver/release document. This rule does not include the reconsideration process, in the event that the taxpayer disagrees with the results of this phase.

General Principle of the Unilateral Determination of a Tax. The determination can be made, in accordance with the tax declaration filed by the taxpayers, liable parties or third parties, in the period and conditions established in the regulations. The declarations of the taxpayers are considered to be true, notwithstanding the right of the Tax Administration to verify the accuracy of such declarations or to modify the items that are challenged.

Unilateral Determination of the Tax. The Tax Administration may proceed to unilaterally determine, on solid basis, mixed basis or on a presumed basis, the taxes in any of the following situations:

a. When the taxpayer or liable party has omitted the filing of the tax declaration;

b. When the tax declaration offers doubts related to its sincerity and accuracy;

c. When the tax declaration is not supported by documents, accounting books or other means that the tax rules establishes or is not displayed in such documents.

In those cases where it is impossible for the Tax Administration to determine the tax obligations on a “certain basis”, it must resort to the determination on a mixed basis and then on a presumed basis.

It will be interpreted that an impossibility exists to know in a certain and direct manner the facts established under the law as tax generating activities in the event of partial or total inexistence or failure to provide the accounting records or documentation related to the operations in accordance with the legal and regulatory provisions, when the accounting is not consistent with the principles and accounting techniques and when it shows that the accounting records and documentation does not relate to reality. Accounting records or documentation that is illegible or incomprehensible will also be considered as nonexistent.

Procedure to make an unilateral determination. The determination documents, whether they are made under certain, presumed or mix base, must be appropriately supported, therefore, they must clearly state the aspects related to the taxable events and the tax obligations.

When the taxpayers attend the Tax Administration, they must receive a subpoena form which specifies the facts, inconsistencies, failures and omissions that have been identified. This form must be signed by the taxpayer as receipt.

Deadline to present a Discharge Letter. The taxpayer will have 15 days after they receive the subpoena form to file their arguments in writing and show the evidence to sustain the rights, for the administration to discharge the ‘failures to comply’ that are attributed.