On December 27, 2021, the Miscellaneous Tax Resolution (MTR) for 2022 was published in the Oficial Journal of the Federation and became effective on January 1 of this year, which has been the subject of extensive study by the legal profession, however, I have noticed that little has been said about the new obligation to have the controlling beneficiary identified..

Before starting with the explanation of what is established by the MTR, it is important to ask ourselves a question:what is the controlling beneficiary?

This figure is not new in Mexico since it is a figure extrapolated from the Federal Law for the Prevention and Identification of Operations with Resources of Illicit Origin (or "Anti-Money Laundering Law", as many know it) to the Tax Code. The Tax Code establishes that the" Controlling Beneficiaryis the person or group of persons who:

• "Directly or indirectly obtain a benefit from their participation in Moral Persons, Trusts or any other legal figure."

• "Ultimately exercise rights of use, enjoyment, enjoyment, exploitation or disposition of a property or service or on whose behalf a transaction is carried out, even if they do so or do so on a contingent basis."

• Directly, indirectly or contingently exercise control of the legal entity, trust or any other legal figure" , it shall be understood that "exercise control" when they manage to:
  • "Impose decisions in the Shareholders', partners' or equivalent meetings."
  • "Appoint or remove the majority of the counselors, administrators or their equivalents."
  • "Maintain ownership of the rights to exercise voting rights in respect of more than 15% of the capital stock or else."
  • "Directly or indirectly direct the legal entity, trust or any other legal entity."

Now then and attending a doubt that arises in many businessmen, accountants and / or administrators, what is this new obligation?. Here are some relevant points

• It will apply to legal entities, trustees, trustors, settlors, trustees, or contracting parties or members of legal entities.

• It consists of obtaining and keeping, as part of the accounting, the reliable, complete and updated information of their controlling beneficiaries and sharing this information with the SAT when required to do it.

• Notaries, brokers and any other person involved in the incorporation of companies, trusts or other legal acts, are also obliged to obtain the information to identify the controlling beneficiaries, in order to provide it to the SAT when required by this authority.

The MTR itself establishes the criteria for the identification of the Controlling Beneficiary, which are the following:

1. Who directly or indirectly:
   1. Obtains a benefit from their participation, even on a contingent basis.
   1. Exercises rights of use, enjoyment, enjoyment, use or disposition of a property or service or on whose behalf a transaction is carried out.

• Who directly or indirectly exercises control of the legal entity, trust or any other legal entity, even on a contingent basis.

• When it is impossible to identify in accordance with the above criteria, the Sole Administrator, or its equivalent, or the members of the Board of Directors, or equivalent body, will be considered the Controlling Beneficiary.

And what information about the controlling beneficiary will be part of the accounting?

Full name	II. Alias	III. Date of birth, or death when applicable	IV. Gender	V. Country of origin and nationality	VI. CURP
VII. Country of tax residence	VIII. Type and Identification numer	IX. RFC	X. Marital status, property regime and spouse identification	XI. E-mail and telephone	XII. Home and tax address
XIII. Relationship with the abligor	XIV. Grade of participation	XV. Description of participation (direct or indirect)	XVI. Number of stocks (or equivalent), series, class, nominal, value XVII	XVII. Place where stocks (or equivalent are deposited)	XVIII. Date since acquiring the status of controlling beneficiary
XIX. Information on the sole administrator or members of the administrative body	XX. Date of modification in the participation	XXI. Type of modification of the participation	XXII. Date of termination of the participation

Finally, I share with you the penalties for non-compliance:

Act	Penalty
Not obtaining, not keeping or not presenting the information or not submitting it through the appropriate vehicles or formats indicated by the SAT within the established deadlines.	From $1’500,000.00 to $2’000,000.00 for each controlling beneficiary of the legal entity.
Not keeping updated the information related to the controlling beneficiaries.	From $800,000.00 to $1’000,000.00 for each controlling beneficiary of the legal entity
Submitting information incompletely, inaccurately, with erros or in a different from the indicated.	From $500,000.00 for $800,000.00 for each controlling beneficiary of the legal entity

Arts. 84-M y 84-N Tax Code.

In addition, Article 32-D paragraph IX of the Tax Code establishes that those who do not comply with the obligations related to the controlling beneficiary may not enter into contracts with public entities.

So, what preventive measures can we apply?

As we can see, it is extremely important to implement preventive measures to avoid contingencies that may cause high penalties that impact corporate finances and put at risk the continuity of the company, so after an analysis we have designed some preventive measures that can work to reduce risks, some of these measures may be the following (without limiting these):

• Implement a detailed policy or manual in which a record with the identification of the Controlling Beneficiary(ies) is incorporated and the data mentioned in section 2.8.1.22 of the MTR is preserved. Another possibility is that the policy or manual designates a responsible person within the institutional organization chart in charge to obtain, keep and maintain available the information of the Controlling Beneficiary.

• Implementation of processes and/or policies for the transmission of stock or rights of a legal entity, establishing the mechanism for the identification of the Controlling Beneficiary after each operation and the obligation to deliver the required information.

• Modification to the Bylaws to establish the obligation to identify the Controlling Beneficiary and the obligation for him to share the information requested by the RMF.

Likewise, it is important to point out that the information requested by the MTR is "Personal Data" of the Controlling Beneficiary (definition according to the Federal Law on Protection of Personal Data Held by Individuals), so in addition to the aforementioned points, it is also important and indispensable to have a policy on data privacy and mechanisms for its proper handling and protection.

If you have any additional questions, please contact us without obligation info@g-r.mx.

M.D.E. Luis A. González Sánchez

lgonzalez@g-r.mx