Alsea won its first battle against the SAT. The controller of Starbucks and Domino’s Pizza in Mexico is just beginning the path to challenge the payment of a tax credit for 3,881 million pesos , which the Tax Administration Service imposed on it as a result of the purchase of Vips, in 2014 .
For now, the company directed by Fernando González Somoza filed an exclusive resolution trial on the merits before the Federal Court of Administrative Justice (TFJFA), which ordered the suspension of the execution and collection of the contested credit .
But this process could be far from reaching an end point . In general terms, when a company is facing the collection of a tax credit, the first step is the suspension of the execution, which allows the Court to take the necessary time to study the file before issuing a final resolution, while the company guarantees the amount of the tax credit, which can be through a bonding company.
“When they are tax credits of this size, it can take many months or years, because expert evidence must be presented, such as documents and opinions, so that in the end the Court determines whether or not the company should pay the credit,” he explains. Rodrigo Escartín, partner of Escartín Abogados.
In general, in this type of dispute between legal entities and the tax authority, there are three possible scenarios : plain nullity , which completely annuls the tax credit; nullity for purposes , in which the authority determines that the debt is less and instructs the treasury to make a new calculation under certain parameters, and, finally, that the authority declares the firmness of the fiscal credit .
Even in the last scenario, companies can resort to an appeal before a Collegiate Court in Administrative Matters, which is in charge of analyzing the actions of the TFJA, the SAT and the legal person, that is, the company.
For now, Alsea’s message to the market was clear: it maintains its operations on a regular basis, while waiting for the tax body to comply with the TFJA order on the suspension of the execution and collection of the tax credit and lift the embargoes in the coming days. while the trial begins.
The origin of the dispute
In February of last year, the SAT notified Alsea of claiming a tax payment for alleged income from the acquisition of goods for the purchase of Vips from Walmart for 3,881 million pesos, a figure that includes concepts of updating, surcharges and fines. .
At that time, the also owner of Burger King announced that they had sufficient elements to show that this claim was inadmissible, since they complied “in a timely manner” with their tax obligations in relation to the transaction.
The SAT began the review of the transaction , valued at 8,200 million pesos , and determined that the figure did not correspond to the value of the acquired brands , consisting of 362 Vips, El Portón, La Finca and Ragazzi restaurants.
“The Federal Tax Code establishes that the authority has the power to determine a tax profit or loss with respect to these operations, so if the value is different from the market value, the authority has the power to determine a profit on the operation to match that market value”, explains Juan Edgardo Beltrán Ávila, member of the Fiscal Development Commission 3 of the Association of Public Accountants of Mexico (CCPM).
In February of last year, Alberto Torrado, executive president of Alsea, announced that they held a meeting with the tax authorities; however, no agreement was reached. By April 29, 2021, the SAT obtained the resolution to collect the 3,881 million pesos from Alsea, a movement that the company faced with the lawsuit it filed before the TFJFA, and which led to the suspension of the collection execution. .
As part of the same investigation, in May 2020 Walmart agreed to pay 8,079 million pesos for the sale of Vips , when the authority demanded the payment of 10,559 million pesos, which also considered taxes, fines, surcharges and updating.
“Alsea has to demonstrate that the price with which they acquired these goods is in accordance with the market price. To prove it, several studies have to be done, it’s like an evaluation. There are many studies, and the authorities determine if they agree, and they must also show elements to support their statement”, concludes Beltrán Ávila.
