The plenum of the upper room of the Federal Court of Administrative Justice (TFJA), annulled the sentence issued on September 4, 2019 by the eighteenth collegiate court in administrative matters of the first circuit, by which it was determined Elba Esther Gordillo Morales a tax credit of nine million 431,418 pesos for Income Tax (ISR), updates, surcharges and fines for the 2012 fiscal year.
With seven votes in favor and three against, the presentation presented by magistrate Carlos Chaurand Arzate was approved and it was resolved that the magisterial leader demonstrated her claim, consequently, the null and void of the contested resolution that affected her was declared.
Likewise, it was considered that, if the authority so decides and is able to do so, it will reinstate the audit procedure, since it involves discretionary powers, in accordance with the resolution of that ruling.
According to the approved presentation, neither the National Union of Education Workers (SNTE), neither the teacher have deducted or have intended to deduct tax receipts and it is clear that article 35 of the regulations of the ISR law that refers to the requirement of deductions is not applicable.
“It is considered by this judge that the contested resolution is improperly founded and motivated by being based on an inapplicable regulatory precept and therefore improper as is article 35 of the regulations of the Income Tax Law to establish in charge of the plaintiff a tax obligation such as that relating to having tax receipts for the celebrations that it carried out, despite the fact that such receipts had not been deducted or were intended to be deductible ”.
“In accordance with the foregoing, as article 121 fourth section of the ISR Law, which when solving the appeal was considered legal and within the contested resolution, article 35 of the regulations of said law, inapplicable legal provisions, and therefore improperly applied to the detriment of the plaintiff today, the assumption of article 51 fraction is updated fourth of the Federal Law of Administrative Procedure, which makes it appropriate to declare the null and void of such resolutions based on Article 52, second section of the same order, ”argued the magistrate.
The presentation considered Gordillo’s arguments well founded, since, on the one hand, the defendant authority, in this case the deconcentrated legal administrator of the Federal District “1” of the General Legal Administration of the Tax Administration Service, of the Ministry of Finance and Public Credit (SHCP), does not cite any legal basis to support the conclusions it reaches in the sense that, although said union and other organizations are not obliged to maintain an accounting system in accordance with the Tax Code of the Federation, they are not relieved of requesting or having tax receipts for the expenses they make.