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Tax Incentives For Key Sectors Of The Export Industry

Mexico City, October 13, 2023

On October 11, 2023, the Ministry of Finance and Public Credit published in the Official Gazette of the Federation a decree granting tax incentives for ten key sectors of the export industry, as well as for taxpayers engaged in the production of cinematographic or audiovisual works.

This tax incentive entails making immediate deductions on new fixed assets whose acquisition is intended to be used exclusively for the development of key activities, deducting in the year in which the investment is made the percentages set forth in the decree.

Furthermore, the tax incentives include an additional 25% deduction during the fiscal years 2023, 2024 and 2025 for training granted to the beneficiaries’ employees of such tax incentives.

Santa Fe Real Estate Controversy

Controversy over certain assets in the Santa Fe neighborhood of Mexico City

Mexico City, September 22, 2022

Since September 12, 2022, certain newspapers of national circulation made public a number of controversies related to certain real estate assets located in the Santa Fe neighborhood of Mexico City, which are apparently exclusively linked to the property formerly identified as Prolongacion Paseo de la Reforma #371, currently segregated into 19 plots of land with an approximate aggregate surface of 20,740 sqm.².

This situation had been initiated since the year 2016, following the filing of lawsuits by the Institute of Administration and Appraisal of National Assets (Instituto de Administracion y Avaluos de Bienes Nacionales) claiming (i) the return of certain real estate assets, as a consequence of the invalidity argued by such authority of all the precedent actions over the property abovementioned, or (ii) the imposition to the owners of such properties of an indemnity payment penalty in favor of the Federation in connection with such assets.

As a result, in 2021 the Special Prosecutor's Office for Organized Crime (Fiscalia Especializada en materia de Delincuencia Organizada) opened several investigation files deriving in the seizure operations that have been recently carried out.

CONAGUA Administrative Resolution

Resolution on the Commencement of Emergency due to Severe, Extreme or Exceptional Drought in Basins for 2022

On July 12, 2022, the General Resolution on the Commencement of Emergency due to Severe, Extreme or Exceptional Drought in Basins for 2022 was published in the Official Gazette of the Federation, which, as part of the National Development Plan 2019-2024, seeks, among other priority purposes, the protection of the environment, through the efficient use of water during periods of drought.

The Resolution aims to guarantee a water supply to populations in places with extreme drought conditions, according to the Mexican Drought Monitor, and foresees: (i) the possibility of temporarily limiting existing water rights, through provisional water volume reductions for basin users suffering from severe drought conditions; (ii) the possibility for concessionaires and assignees of concessions to temporarily assign or transfer their rights to CONAGUA and request the interruption of the cancellation of the unused concessioned volumes, as long as the emergency continues, among other provisions.

Regulation of Real Estate Operations and Services in the State of Mexico

Mexico City, June 3, 2022

On May 2, 2022 the Regulations of Book Nineteen of the Administrative Code of the State of Mexico (the “Regulations”) were published in the State of Mexico’s Official Gazette, which, together with the Administrative Code of the State of Mexico (the “Administrative Code”) seek to regulate real estate operations and services in the State of Mexico, consisting of intermediation acts, tending to the execution of purchase and sale agreements, lease, donation, loan with mortgage guarantee, transfer of ownership, trusts, adjudication, assignment and/or any other agreement to transfer ownership, use or usufruct of assets, as well as administration, commercialization and consulting of the same (the “Real Estate Operations”), through certification, registration and monitoring processes of the activities of real estate service providers and registered real estate companies that carry out real estate operations in the State of Mexico.

Pursuant to the foregoing, service providers and real estate companies that intend to carry out Real Estate Operations in the State of Mexico must be (i) certified by the Secretary of Economic Development of the State of Mexico; (ii) register in the Registry of Real Estate Service Providers; (iii) comply with the provisions of the State of Mexico’s Code of Ethics for Real Estate Operations and Services; and (iv) comply with all other obligations set forth in the Administrative Code and its Regulations. However, those individuals or legal entities that have a right in rem (derecho real) over the assets or have the owner's authorization in compliance with the applicable laws are exempt from requiring such certification, and may promote, sell and lease assets directly, without the requirement to count with the certification and/or registration, and without using real estate service providers and/or real estate companies services.

Economic Reactivation Plan 2022-2024

Administrative Measures regarding Urban Development Matters

On March 17, 2022, the Economic Reactivation Plan for Mexico City 2022-2024 (the “Reactivation Plan”) was published on the official website of the Urban Development and Housing Ministry of Mexico City (“SEDUVI”), which seeks to accelerate the economy of Mexico City in the wake of the COVID-19 pandemic, through the promotion of family economy, and the construction, housing and tourism sectors, by means of three main axes: (i) Support to the public, social and solidarity economy; (ii) New instruments to support construction, housing and economy in general; and (iii) Actions to relaunch the tourism and cultural sector.

Based on the foregoing, on March 22, 2022, administrative measures regarding urban development matters to promote Mexico City’s Economic Reactivation Plan 2022-2024 were published in the Official Gazette (Gaceta Oficial de la Ciudad de México), where 4 main points are addressed:

(i) Guidelines for the Conversion of Offices to Housing, which main objective is to grant tax benefits through the transformation or adaptation of an asset to a use other than that for which it was originally intended, for optimal utilization; (ii) Submission of Urban and Environmental Impact Studies through Ventanilla Única and digital procedure (Ventanilla Digital), as well as the creation of the Comisión de Impacto Único, in order to facilitate the evaluation and approval of such studies; (iii) Update of the Special Program for Urban Regeneration and Inclusive Housing 2019-2024, which aims to reverse and correct processes of renewal of old urban centers, the increase in land prices and the main violations of urban dispositions, seeking the generation of Inclusive Housing and thus improve Mexico City´s urban conditions; and finally (iv) Administrative Measures to the Housing Institute of Mexico City (INVI) in connection with the processing of a Notice of Construction that does not required a Construction Manifestation or a Special Construction License for real estate projects intended for low-income housing.

Supreme Court Ruling Against Various Provisions of the Mexican Law on Asset Forfeiture

On January 6, 2022, the ruling on theUnconstitutionality Action 100/2019, filed onSeptember 9, 2019 by the National Human Rights Commission against various provisions of theNational Law on Asset Forfeiture (the "Law") and resolved by the Plenary of the Supreme Court ofJustice (the “SCJN”) in June 2021, was published in the Official Gazette of the Federation.

The SCJN, in its ruling, although invalidated some ofthe challenged provisions of the Law, the rest still subsist and remains in force. The declarations ofinvalidity formally took effect as of June 22, 2021, the date on which the Federal Congress was notified of the resolutions of the ruling by means of Notices 5024/2021 and 5025/2021, without retroactive effects to previous ongoing proceedings.

Generally speaking, the resolutions adopted by theSCJN with respect to the Unconstitutionality Actionof the Law establish that (i) asset forfeiture only applies to assets whose legitimate origin cannot be proven, element that refers punctually to the origin of the assets and not to their use or destination, as established in the Law; (ii) the action of assetforfeiture proceeds with respect to criminal conducts set forth in federal, general and local laws; (iii) the action of asset forfeiture under no circumstances has unlimited statute of limitations; (iv) the District Attorney may not access databases of other authorities, nor order the securing of assets as a provisional measure, without prior court order; and (v) one of the grounds for the early sale ofassets by the authority that established that thedisposal was necessary due to the “nature of theasset” is removed, since such circumstance was ambiguous and generated uncertainty as to theassets that fell into such category.

Finally, regarding the requirements to assume that an acquisition was made in good faith, it was necessary to prove, among other things, (a) theincapability of the purchaser to know that the assetsubject to forfeiture action was used as instrument, object or product of an illegal act or to hide or mix assets resulting from the illegal act; and (b) in theevent of having learned of the unlawful use of theasset, to have prevented or given a timely notice to the competent authority, elements that are invalidated and will no longer be required to prove good faith.

National Law On Asset Forfeiture 2021

Last June 2021, the Supreme Court of Justice (the “SCJN”) carried out the study of the Action of Unconstitutionality 100/2019 filed by the National Human Rights Commission (the “CNDH”), on September 9, 2019, against various provisions of the National Law on Asset Forfeiture (the “Law”), in force since August 10, 2019.

What the CNDH sought by promoting the Action of Unconstitutionality against several provisions of the Law, was to adjust the same to the applicable constitutional and conventional system, and thus guarantee the observance of human and fundamental rights related thereto, contributing to consolidate and preserve the Rule of Law.

The SCJN, in its revision, although invalidated some of the challenged provisions of the Law, the rest still subsist and will remain in force.

In this sense, it is important to take into consideration that the findings of unconstitutionality determined by the SCJN will not have retroactive effects to previous ongoing court proceedings and will take effect upon notification of the corresponding sentence resolutions to the Federal Congress, which has not occurred as of this date and it is expected that will take a couple of months to be notified.

UNCONSTITUTIONALITY OF CONCEPTS OF THE NATIONAL LAW ON ASSET FORFEITURE BY THE SUPREME COURT OF JUSTICE

On the other hand, it should be noted that in accordance with the Twelfth Transitory Article of the Law, in August 2020, the Attorney General had to undertake a public call for the review of the constitutional and legal system in the matter of asset forfeiture, that will aim the identification, discussion and formulation of constitutional and Law reforms, for its optimal operation, which is still pending to be carried out.

Generally speaking, the resolutions adopted by the SCJN with respect to the Action of Unconstitutionality of the Law clarify that (i) asset forfeiture only applies in connection with assets whose legitimate origin cannot be proven, element that refers punctually to the origin of the assets and not to their use or destination, as established in the Law; (ii) the action of asset forfeiture proceeds with respect to criminal conducts set forth in federal, general and local laws; (iii) the action of asset forfeiture under no circumstances has unlimited statute of limitations; (iv) the District Attorney may not access databases of other authorities, nor order the securing of assets as a provisional measure, without a court order; and (v) the cause for the early sale of assets by the authority under the argument that the disposal was necessary due to the “nature of the asset” is removed, since such circumstance was ambiguous and generated uncertainty as to the assets that fell into such category.

Additionally, another important provision invalidated by the SCJN is one of the elements for the proceeding of the asset forfeiture action, consisting of the owner´s knowledge (at present or that should have had) of the destination of the asset to the illegal act. The above is invalidated because it was considered that such element distorted and exceeded the constitutional legal system.

Finally, regarding the requirements to assume that an acquisition was made in good faith, it was necessary to prove, among other things, (a) the incapability of the purchaser to know that the asset subject to forfeiture action was used as instrument, object or product of an illegal act or to hide or mix assets resulting from the illegal act; and (b) in the event of having learned of the unlawful use of the asset, to have prevented or given a timely notice to the competent authority, elements that are invalidated and will no longer be required to prove good faith.

Regarding the controversial provisions of the Law that did not undergo any modifications and are still in force, note following: (i) the judge may order as a provisional measure, even prior to the filing of a court proceeding, the securing of the property subject to asset forfeiture, with the intention of guaranteeing the conservation of such assets, and the impossibility of the defendant or affected individual to offer any bond in order to lift the measure; (ii)the non-opposability of the banking, exchange, stock exchange, or tax secrecy, within the asset forfeiture proceedings in any of its stages; (iii) the possibility that in the event of a judgment declaring the asset forfeiture, the judge may also declare the extinction of other rights, whether principal or accessory, if it is proven that the owner knew of the cause that gave rise to the action; and (iv) the capability of an early sale of the asset, under certain circumstances (other than its nature), during the process of asset forfeiture, prior to the issuance of the final judgement.

The following is an analysis of the resolutions of the SCJN in connection with the Action of Unconstitutionality of the Law:

The Law defines asset forfeiture as the loss of rights that a person has, in relation to patrimonial assets where legitimate origin cannot be proven, particularly those that are instrument, subject or product of illicit acts, declared by judgement of judicial authority, without any payment or compensation to its owner or to the relevant individual that, for any circumstance, possesses or holds such assets. Likewise, under the Law, legitimate origin was defined as “the origin or lawful obtaining of the assets, or the lawful use or destination of the assets linked to the illicit act”, in this sense, the SCJN invalidates the second part of such term, considering that the Constitution, when stating that the asset forfeiture action shall be applicable with respect to assets where legitimate origin cannot be proven, refers only to the origin of such assets and not to their use or destination (Article 2, section XIV).

It determinó puntualmente que, los delitos por hechos de corrupción, el encubrimiento, los delitos cometidos por servidores públicos, el robo de vehículos, y recursos de procedencia ilícita (conocido también como lavado de dinero), por los que, entre otros hechos ilícitos, puede proceder la extinción de dominio, se refieren tanto al fuero federal como al local, toda vez que la Ley, originalmente, únicamente remitía a la legislación penal federal (Artículo 1, fracción V, incisos f, g, h, i y j).

The second paragraph of Article 5 is invalidated, in the provision that establishes “The information obtained by the District Attorney for the preparation of the asset forfeiture action, will be strictly reserved until it is presented before the judicial authority”. The foregoing, because it totally prohibited access to the information obtained by the District Attorney for the preparation of the asset forfeiture action before it was filed with the judicial authority, and it was considered an overinclusive measure that violated the human right of access to information and the principle of maximum publicity.

With respect to Article 7, which established that the asset forfeiture action would proceed, among others, (i) on those “assets of lawful origin used to conceal other assets of unlawful origin, or materially or legally mixed with assets of unlawful origin”, the characteristic "of lawful origin" (section II) is invalidated; and (ii) on "assets of lawful origin, which value is equivalent to any of the assets subject to asset forfeiture, when it is not possible to locate, identify, seize, secure or material seizure, and in which case the value is equivalent to any of the assets described in the preceding sections", the entire section (section IV) is invalidated. The foregoing because such provisions were clearly in violation of Article 22 of the Constitution, which expressly provides that asset forfeiture action proceeds only against patrimonial assets where the legitimate origin cannot be proven.

Likewise, Article 7, section V, states that the action is applicable with respect to assets used for the commission of illegal acts by a third party, "if the owner had knowledge thereof and did not notify the authority by any means or did not performed any action to prevent it". In this sense, such portion of the Law is invalidated, since it is deemed that the Constitution does not require evidencing such subjective element, in order to consider that the action may proceed with respect to such asset.

n terms of the Law, in order for the asset forfeiture action to proceed, the following elements must be present: (i) the existence of an illicit act; (ii) the existence of an asset of illicit origin or destination; (iii) the link between the two previous elements; and (iv) the owner's knowledge of the destination of the asset to the illicit act, or of the fact that it is the product of an illicit act. In this regard, the SCJN invalidates the subjective element of the knowledge that the owner has or should have had of the destination of the asset for the commission of the illicit act, provided in Article 9, paragraph IV, of the Law, since the Constitution does not require evidencing of such element, and the rule then exceeded the constitutional system. Likewise, and under the assumption that the same defect was found in other provisions of the Law, Articles 126, fourth paragraph, and 214, first paragraph, in the sections referring to the subjective element of the knowledge of the owner for the proceeding of the asset forfeiture action are invalidated by extension.

The Law established the imprescriptibility of the action in the case of assets of unlawful origin, provision that the SCJN invalidated since it noted that from the analysis of the legislative process it was not the will of the constituent to allow that such action did not had a statute of limitations, and such aspect could not be left to the will of the legislator. Furthermore, it considered that such provision did not pass the proportionality test (Article 11, first paragraph).

ticle 15 of the Law provided a presumption of good faith in the acquisition and destination of the assets, with respect to which, the SCJN recognized the validity only of the presumption of good faith in the acquisition of the assets as an element to determine their lawful origin, but invalidated the presumption of good faith with respect to the destination of the assets, since it considered that it was intended to take as a basis for the validity of the action, the destination of the assets and not their unlawful origin, as required by Article 22 of the Constitution. Additionally, sections V and VI of said article were invalidated, which established that in order to presume good faith, it was necessary to prove, among other things, (a) the incapability of knowledge by the defendant or affected party that the property subject to asset forfeiture action was used as an instrument, object or product of the illicit act or to cover-up or mix assets resulting from the illicit act; and (b) in the event of having learned of the unlawful use of the property owned, to have prevented or given timely notice to the competent authority.

Regarding the procedure, the following provisions of the Law are modified:

(i) The Law allowed the District Attorney, in case of urgency or other duly grounded need, to adopt as a provisional measure the securing of assets subject to asset forfeiture, a power that the SCJN considered to be violating of the right to judicial protection, in addition to the fact that it did not pass a proportionality test, since the legislator could have opted for less harmful measures to guarantee the effectiveness of the action without the need to dispense the prior judicial control, therefore such power is invalidated (Article 173, second paragraph).
The District Attorney was empowered to access, in cases of urgency, information contained in databases without prior judicial authorization, provision that is invalidated as a violation of the right to the protection of personal data set forth in Articles 6 and 16 of the Constitution, since the measure was not necessary to achieve the purposes intended by the legislator (Article 190).
(iii) The Law provided for the possibility of carrying out the early sale of the assets subject to forfeiture process, among other cases, when the disposal was necessary due to the "nature of the asset". This assumption is invalidated as it is deemed a violation of the principle of legal certainty, for not establishing with precision the specific characteristic of the nature of an asset that would make an anticipated sale necessary (Article 228, paragraph a).

Bill To Reform The Urban Development Law And Civil Code For Mexico City On Construction And Residential Pre-Sales

On November 10, 2020 a bill was introduced to the Mexico City Congress seeking to amend and add a paragraph to article 93 of the Urban Development Law, as well as a new article 2279 Bis to the Civil Code, both for Mexico City (the “Bill”).

The preliminary statements of the Bill discuss the issue related to certain irregular practices from some real estate developers when commercializing residential units, such as the marketing and pre-sale of apartments that are not included in the construction license granted over the underlying plot of land, and which may result in a demolition order of unauthorized units from the competent authority. This becomes a complex issue when the authority decides to proceed with the demolition of such units, and the units are no longer owned by the developer, but by bona fide third parties, unaware of the terms and conditions of the construction license.

The foregoing, represents an important problem in a city where the pre-sale of vertical condominiums has such a high demand, being the largest vertical developed in Mexico along with the State of Mexico.

In this regard, the Bill proposes the prohibition of executing purchase and sale agreements with respect to projects during early construction stage on real estate assets, until the occupancy permit is granted by the competent authority, under penalty of definitive construction suspension in case of breach thereof.

The use and occupancy permit is obtained when the construction completion notice is filed, being the final authorization to be obtained to complete the construction authorization processes types B or C (residential up to 10,000 sqm and above 10,000 sqm, respectively).

It is important to note that despite the Bill preliminary statements mention pre-sales, the proposed text reform does not allow the execution of purchase and sale agreements only, being silent and, therefore not prohibiting the signing of promissory purchase agreements and sale offers.

The Bill was turned to the relevant Commission, through the Directive Panel for its analysis and subsequent ruling, which will be responsible for the drafting of the preliminary reform project. If the Bill is approved by the Commission, it will be included in the agenda for its presentation at the Congress, in order to be discussed, voted and, as the case may be, approved or rejected.

COVID19 Reform to the Civil Code of Chihuahua for Leases

The Decree establishes amendments to the provisions of the CCC regarding leases in the event of a major epidemic or sanitary contingency (the "Contingency"), consisting in classifying such Contingency as a valid case for the applicability of the legal feature known as "Hardship", granting the parties the right to "agree on the terms of the termination or the modifications of the contract under the principles of equity and good faith, taking into account the extraordinary circumstances during the period they remain in force, or to appear before the competent courts, which shall evaluate the principles and circumstances mentioned above".

Likewise, it is provided that in the event of a Contingency, during the time that the measures deriving thereof remain in force, recognized by the competent sanitary authority, which prevent or modify full or partial conditions of use of the leased property for the tenant, it shall be considered that no default in the payment of rent is incurred, therefore, the landlord could not terminate the lease on such basis.

It is important to remark that the Third Transitory Article of the Decree, establishes that the parties with lease agreements in force in 2020, must agree on the corresponding modifications, with retroactive effects as of March 23, 2020, in order to reestablish conditions of fairness under the current socioeconomic circumstances, while and until normal conditions are reestablished or the end of the Contingency is decreed by competent authority.

Considering the principle of non-retroactivity of the law, in the interest of legal certainty, provided under Article 14 of the Constitution, which states that “no law shall be given retroactive effect in detriment of any person”, the Decree might be challenged by anyone who is affected.

Finally, from our review to the original reform proposal, we noted that the intention was to cover the restaurant industry thereby, however, while being processed by the State of Chihuahua Congress, it was extended to all type of leases and asset classes.

Following a complete transcript of the reform under the Decree:

Artículo 1691-e: Only those unforeseeable events of general nature, which produce unfair alterations in what was agreed by the parties, such as circumstances that affect national, state or regional economic situation or other related matters, in such a way that if the contracting parties had known them, they would not have agreed in the way and terms they did or would not have contracted, will be considered as extraordinary events.
In case of major epidemics, as recognized by the competent federal or state sanitary authority, the provisions of paragraph 2330 and other applicable provisions of this Code shall be applied.

Artículo 2330: If by act of God or force majeure the tenant is completely prevented from using the leased property, no rent shall be accrued while the impediment lasts, and if the impediment lasts more than two months, tenant may request the termination of the contract.
If the impediment to use the leased property is due to a major epidemic recognized by competent federal or state sanitary authorities, the provisions of articles 1691-a to 1691-g of this Code shall be applicable. In this case, the parties may agree on the terms of termination or the modifications of the contract under the principles of equity and good faith, taking into account the extraordinary circumstances during the period that they remain in effect, or they may go before the competent judicial authority, which shall evaluate the aforementioned principles and circumstances.
Regarding leases, in the event of causes derived from epidemics of major character recognized by competent sanitary authority, which prevent or modify the conditions of total or partial use of the leased property, in accordance with the provisions of this article, and other relative of this Code, it shall be considered that there is no default in the payment of rents, during the time that the measures derived from the sanitary contingency remain in effect.

Third Transitory Article: Individuals and/or legal entities with lease agreements in force during the present year 2020, must agree on the modifications of the forms and modalities of the execution of the same, with retroactive effects as of March 23 of said year, in order to reestablish the conditions of equity under the current socioeconomic circumstances, while and until restoration of normal conditions occur or until a decree is issued by legally competent means, establishing the end of the sanitary emergency set forth in the Agreement published that same day in the Official Federal Gazette, by which the SARS-CoV2 virus (COVID-19) epidemic in Mexico is recognized as a disease of serious priority attention, as well as establishing the activities of preparation and response to such epidemic. The recognition of reestablishment to the referred normality, will be equally valid if it is issued by competent state authority.

COVID19 Reforms To The Civil Code of Nuevo Leon For Retail Leases

On October 2, 2020, Decrees 357 and 358 were published in the Official Gazette for the State of Nuevo León, which amended articles 2005 and 2326 of the Civil Code for the State of Nuevo León (“CCNL”), entering into force on October 3, 2020, pursuant to the following:

Article 2005: No one is obliged to acts of God or force majeure, except when given caused or contributed thereto, when expressly accepted such responsibility, or when mandated by law.
Article 2326: If the use of the property is impeded only in part, the tenant may request a partial reduction in rent, based on the opinion of experts, unless the parties elect to terminate the contract, provided the impediment lasts for the period of time set forth in the preceding article.
Tenants of real properties conducting commercial activities that are disturbed in their enjoyment as a result of a declaration of civil protection or sanitary emergency issued by competent authority, which orders the suspension of their commercial activities, may be entitled to a reduction in rent for the duration of the emergency declaration and prohibition for opening their business on the jurisdiction where the property is located, according to the terms agreed to by and between landlord and tenant, or in the absence of an agreement, as defined by competent authority.

Likewise, it is important to remark that article 2327 of the CCNL establishes that articles 2326 and 2325 are non-waivable, the latter in turn providing that: “If by act of God or force majeure the tenant is completely prevented from using the leased property, no rent shall be accrued while the impediment lasts, and if it lasts more than two months, tenant may request the termination of the contract.”

On the other hand, it is important to consider that unlike article 2325 of the CCNL where the existence of an act of God or force majeure is conditioned to an absolute impediment as a result of a wide variety of concepts, the reformed article 2326 of the CCNL specifically conditions the temporary reduction of the rent to the following circumstances:

Leases over a real estate property where commercial or retail activities are carried out (not applicable then to residential or industrial leases).
Declaration of civil protection or sanitary emergency issued by competent authority, ordering the suspension of commercial activities.
Such declaration resulting in the disturbance to enjoy the leased property by the tenant.

Since new article 2326 establishes that the tenant shall have the right to a reduction in the rent amount, which will be subject in first instance to the agreement between the parties and, in the event of not reaching an agreement, the competent authority will be in charge to determine the applicable temporary reduction, it is advisable to prevent this type of eventualities in new lease contracts for commercial real estate facilities located in Nuevo León, by including a specific and balanced provisions regarding the agreement of the parties on a temporary reduction in rent that may become applicable in terms of such article 2326 of the CCNL.