- The new taxis non-transferable and should not be included in the total cost charged to the consumer;
- The associations say that also argue that it contravenes the policy of the Federal Government of not creating new taxes.
Mexico City is creating a new tax, called “Aprovechamiento“, that will affect delivery apps. The tax is due to the use of urban public infrastructure and for the mobility of Mexico City, that must be covered by individuals and companies, which carry out intermediation, promotion or digital facilitation activities through the operation or administration of apps, and for interconnection that allows users contacting third-party suppliers of goods, for the delivery or reception of food, groceries or any type of merchandise in the territory of Mexico City.
The Aprovechamiento must be paid on a monthly basis, no later than the fifteenth day of each month, and will be calculated before taxes with a rate of 2% on the total collection of commissions or fees that under any denomination are collected for each intermediation, promotion or facilitation, considering the deliveries made in the immediately previous month.
The new tax is non-transferable and should not be included in the total cost charged to the consumer, nor be charged to third-party suppliers or any other third party that delivers.
According to the new law, individuals and companies who only deliver the products and parcels (e.g., couriers and the delivery services), are not subject to its payment, nor are the individuals and companies that manage directly the offer and delivery of the goods to be traded.
To LABS, the consultancy firm Baker McKenzie Abogados said that although the reform mentions that the Aprovechamiento must be paid by individuals and companies that operate, use or manage applications or computer platforms, and is restricted to be transferred to third delivers, suppliers of consumers in the final price, “it is likely that will be difficult to comply with this prohibition, due to the economic nature and volume of these purchasing and consumption operations.”
“In our view this new provision, beside its defective wording, would be certainly challenged at courts as unconstitutional, because the transgression to the principle of division of powers, international treaties signed by Mexico, and the human rights of equity, proportionality, destination of public spending, legal security and freedom of business, recognized and protected in the Political Constitution of Mexico. Therefore, a constitutional action (“Amparo“) may be filed no later than 14 February 2022,” it said.
In a document to deputies of Mexico City, the Mexico Internet Association (AIMX), AC Sporting Goods Association (AADAC), Latin American Internet Association (ALAI), Mexican Association of Courier and Parcel (AMMPAC), Mexican Association of Online Sales (AMVO), Mexico‘s Fintech Association (FTMX), National Private Transport Association (ANTP), Confederation of Employers of the Mexican Republic CDMX (COPARMEX), Confederation of Industrial Chambers of the Mexican United States (CONCAMIN), Mexican Business Council for Foreign Trade, Investment and Technology (COMCE), National Chamber of Manufacturing Industry (CANACINTRA), and National Council of Logistics and Supply Chain Executives, A.C. (ConaLog) said that they reject the new tax for its “negative impact to users and businesses”.
“The tax generates a direct negative impact on the economy of the thousands of businesses, consumers and delivery people that depend on these platforms. This new tax is clearly unconstitutional, illegal, discriminatory and discretionary. Additionally, it represents a barrier to innovation, since it threatens the efforts to accompany the economic reactivation in a complex period such as the pandemic.”
They also argue that it contravenes the policy of the Federal Government of not creating new taxes, thus such as the agreements acquired by Mexico before the OECD not to establish more taxes on digital economy, which is a key sector for the economic recovery of Mexico City.
“The economic and social contribution of this industry is indisputable. This sector was already one of the most important economic activities since before the pandemic. As of Covid-19, the participation of the digital economy in the Mexican economy has been much higher and with more scope. The new tax will undoubtedly affect the evolution of this sector, directly impacting consumers and people who find a source of income.”
The associations also claim that local tax for using the streets is unprecedented and unconstitutional, and it goes against the principle of tax equity. “It is also a measure that damages the digital economy, limiting the creation of economic and social value, which, beyond benefiting end-users and consumers, affects them to a large degree. This new tax will result in a modification to the cost structure of the intermediary platforms and thousands of restaurants, micro and small businesses, which will have inevitably an impact on the prices paid by final consumers, increasing the already high inflation and, with it, directly affecting the pocket of Mexican families who demand these services and thousands of delivery people who have found on digital platforms a means of generating profits in these times of pandemic.”