Are the shareholders responsible for the tax debts of the legal entities?


Are the shareholders responsible for the tax debts of the legal entities?

The concern of businessmen is constant, from the moment in which the tax authority decides to initiate some faculty of verification, call domiciliary visit, review of cabinet, revision of opinion or electronic revision, that normally culminates with the determination of a fiscal credit (quantification liquidity of a tax liability), regarding the responsibility that this entails.
That is, when one or two individuals operate through a legal person, in reality a legal fiction occurs, in which this new legal entity acts independently and separately from the shareholders, with its own personality, assets and responsibilities, such as general rule.
In this order of ideas, when the treasury determines a tax credit to a company, the responsibility is for the company and not for the shareholders. Thus, the company responds with all its assets, which evidently includes bank accounts, but the shareholders do not respond with their personal assets.
The foregoing, has 3 exceptions provided for in sections III and X of Article 26 of the Fiscal Code of the Federation, and in these cases not only the shareholder, but also the General Manager, General Director and Sole Administrator, will respond with their patrimony, always that: I) The company is not registered in the Federal Register of Taxpayers, II) Does not keep accounts, hide or destroy it, or III) Disappear from your fiscal domicile without giving notice.
In this order of ideas, it is important to note that as a rule, companies respond with their assets in case of having a debt in tax matters and this does not reach the partners or shareholders, provided they do not update any of the three scenarios described in the preceding paragraph. The above is called “Corporate Veil”, hence it is always better to take a business or professional activity through a moral person, which is taxed under the regime of individuals with business and / or professional activity.
The above is like this, since in the first and most important term, the personal patrimony is not at stake (legal and patrimonial security), and second, the maximum rate of a physical person in the case of income tax, reaches 35%, unlike a moral person who pays 30% of fixed rate, applicable to the fiscal result.
It should be noted that in 2013 there was a bill that sought to disappear the Corporate Veil. But nowadays it is in force, then, I advise to carry out the business and / or professional activities through a moral person, which now can even be uni-personal, such as Societies for Simplified Actions, which will be analyzed in the next column.

-Lic. Juan Antonio Aguilar

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