Regarding the amendments to the VAT law regulations published on October 14, 2022 that restrict the possibility of issuing “final consumer” invoices above certain amounts, we can comment on the following:
The VAT law regarding invoice issuance obligations establishes:
“ARTICLE 29. Mandatory documents.
The taxpayers subject to the tax of this Law are obliged to issue with legible and permanent characters or by electronic means, to deliver to the acquirer and, in turn it is the obligation of the acquirer to demand and withdraw, the following documents:
(a) Invoices, for sales, exchanges, leases, withdrawals, destruction, loss, or any fact that implies lack of inventory when it constitutes a generating fact of this tax, and for the services rendered by the taxpayers affected, even with respect to exempt operations or with exempt persons. In the latter case, it must be indicated in the invoice that the sale or rendering of service is exempt and the corresponding legal basis.
b) Small Taxpayer Invoices, in the case of taxpayers affiliated to the Small Taxpayer Regime established in this Law.
c) Debit notes, for price increases or surcharges on transactions already invoiced.
d) Credit notes, for refunds, cancellations or discounts on transactions already invoiced.
e) Other documents that, in specific and duly justified cases, are authorized by the Tax Administration to facilitate taxpayers’ timely compliance with their tax obligations.
The Tax Administration is empowered to authorize, at the request of the taxpayer, the use of invoices issued on tapes, by recording machines, in electronic form or other means, provided that the nature of the activities carried out fully justifies it. The regulation will develop the requirements and conditions”.
We see that this article does not establish any obligation regarding the identification of the acquirer or his Tax Identification Number (NIT) as a legal requirement for the issuance of the same.
In the previous wording of the regulation the provision on Final Consumer was incorporated, which, we consider, was done since the law did not indicate absolutely nothing on how to issue invoices to acquirers who were not identified; therefore, it was a procedure that facilitated collection.
Comparatively, the reformed article and the previous one, look like this:
*The underlined is the incorporation by reform.
Acuerdo Gubernativo 5-2013 | Acuerdo Gubernativo 245-2022 |
| From the beginning of the effective date of this regulation, invoices, special invoices, small taxpayer invoices, debit and credit notes must comply with the following requirements, data and characteristics as a minimum: | Invoices, special invoices, invoices of Simplified Taxation Regimes, debit and credit notes, shall comply at least with the following requirements, data and characteristics: |
| 1) Identification of the type of document in question. | 1) Identification of the type of document in question. |
| 2) Series and correlative number of the document. The series shall be different for each establishment of the taxpayer. | 2) Series and correlative number of the document. The series will be different for each establishment of the taxpayer. Exceptions are made for electronic tax documents issued under the FEL Regime, which will have the series and number of the document assigned in each authorization. |
3) As applicable to each type of document, according to the legislation in force, the following phrases: a. It does not generate the right to tax credit. b. Direct Payment, number of resolution and date. c. Subject to quarterly payments. d. Subject to definitive withholding. | 3) As applicable to each type of document, according to the legislation in force, the following sentences: a. It does not generate right to tax credit. b. Direct Payment, resolution number and date. c. Subject to quarterly payments. d. Subject to definitive withholding. e. For the Special Agricultural Taxpayer Regime, as applicable, the phrases: i) “With form of payment on gross sales”. ii) “With form of payment on profits, not withholding”. f. For the Small Taxpayer Electronic Regime and the Special Agricultural Taxpayer Electronic Regime, the phrase: “Do not withhold” and the number of the resolution of incorporation to the regime. |
| 4) Full names and trade name of the issuing taxpayer, if any, if it is an individual; corporate name and trade name, if it is a legal entity. | 4) Full names and trade name of the issuing taxpayer, if any, if it is an individual person; corporate name and trade name, if it is a legal entity. |
| 5) Tax Identification Number of the issuing taxpayer. | 5) Tax Identification Number of the issuing taxpayer. |
| 6) Address of the establishment or office where the document is issued. | 6) Address of the establishment or office where the document is issued. |
| 7) Date of issue of the document. | 7) Date of issue of the document. |
| 8) Full names and surnames of the acquirer, if individual person; name or corporate name, if legal entity. | 8) Full names and surnames of the acquirer, if an individual person; name or company name, if a legal entity. |
| 9) NIT of the purchaser. If the latter does not have it or does not provide it, the words final consumer or the acronym “CF” shall be entered, or in its absence, the personal identification document number. | 9) NIT of the purchaser. If the purchaser does not have it, the Unique Identification Code -CUI- of the Personal Identification Document -DPI- shall be entered. The words final consumer or the abbreviation “CF” may only be included in documents that accredit sales or services of less than Q. 2,500.00 quetzales; and in documents that accredit the provision of basic consumption services of potable water, electric energy and telephony of less than Q.500.00 quetzales. |
| 10) Detail or description of the sale, service rendered or leases and their respective values. | 10) Detail or description of the sale, service rendered or leases and their respective values. |
| 11) Discounts granted, if any. | 11) Discounts granted, if any. |
| 12) Charges applied in connection with the transaction. | 12) Charges applied in connection with the transaction. |
| 13)Total price of the operation, including tax when applicable. | 13) Total price of the operation, including tax when applicable. |
| The data referred to in items 1) to 6) must be printed in the documents prepared by the printer, except when the SAT authorizes the change of regime, in which case the authorized invoices may continue to be used until they are exhausted, adding a stamp to add the phrases indicated in item 3) above. | The data referred to in items 1) to 6) must be printed on the documents prepared by the printer, except when the Superintendency of Tax Administration authorizes the change of regime, in which case they may continue using the authorized invoices until they are exhausted, adding a stamp to add the phrases indicated in item 3) above. |
| Paper invoices shall be issued in such a way as to ensure that they are legible and are not erased over time. | Paper invoices shall be issued in such a way as to ensure that they are legible and are not erased over time. |
| Regarding the data to be contained in the authorized documents, they shall be printed in accordance with the specifications authorized by the Tax Administration. | The data to be contained in the authorized documents shall be printed in accordance with the specifications authorized by the Tax Administration. |
| Depending on the nature of the taxpayer’s economic activity, the Tax Administration may authorize the use of invoices with blank spaces for the purchaser to enter his full name and Tax Identification Number. It may also authorize the use of invoices for temporary establishments. | Depending on the nature of the economic activity of the taxpayer, the Tax Administration may authorize the use of invoices with blank spaces for the purchaser to enter his full name and Tax Identification Number, except for electronic tax documents issued under the FEL Regime. |
| In no case may the latter be substituted for those authorized for use in establishments with a fixed commercial address. | It may also authorize the use of invoices for temporary establishments. In no case may the latter be substituted for those authorized for use in establishments with a fixed commercial address. |
In the wording in force up to now, the following was read in numeral 9: NIT of the acquirer. If the latter does not have it or does not provide it, the words “final consumer” or the acronym “CF” or, failing that, the personal identification document number shall be entered.
It is clear that the document should not be issued “blank”, so some solution was provided.
The amendment modifies this paragraph as follows: 9) NIT of the acquirer. If the latter does not have it, the Unique Identification Code -CUI- of the Personal Identification Document -DPI- shall be entered. The words final consumer or the abbreviations “CF” may only be included in documents evidencing sales or services of less than Q. 2,500.00 quetzales; and in documents evidencing the rendering of basic consumption services of potable water, electric energy and telephony of less than Q.500.00 quetzales.
Now, the wording of the article does not directly clash with the law, but rather regulates an assumption not established in the law. We can argue that the regulatory function in tax matters can only be on processes that facilitate the collection and the administrative collection procedure, so that the regulation to the law cannot deal with this aspect.
Additionally, it is important to remember a regulatory reform that took place back in 2004, during the FRG government, in which it was intended that the issuer of the invoice would be responsible for the identity of the buyer and “prohibited” issuing invoices without filling out data. At that time, appeals were obtained against this attempt to sanction those taxpayers with such regulatory rule. The argument revolved around the reasonableness of that provision.
Thus, we continue to see the lack of reasonableness of the rule. The main point is that the issuance to a specific NIT does not guarantee that this person is the actual purchaser. It is also unreasonable to think that if the buyer does not tell me what his NIT is, he will give me his CUI.
In such a way that the issuer of the invoice is placed in an unreasonable limitation or restriction to perform its formal obligation: to issue an invoice. Although the mechanism of buying CF has been a strategy to avoid the registrations in SAT and, possibly, the payment of the tax obligations derived from the exercise of the commerce, the remedy does not seem to be a rule that can be demanded.