On December 31, 2024, the amendment to the second paragraph of Article 19 of the Political Constitution of the United Mexican States (CPEUM) was published in the Official Gazette of the Federation (DOF), effective as of January 1, 2025. The amendment broadens the catalog of crimes that qualify for official preventive imprisonment to include “any activity related to false tax receipts”, as defined by law.
This provision implies that if the Attorney General’s Office determines that a crime related to false tax receipts has been committed (e.g., the issuance, purchase, sale, or use of digital tax receipts — CFDI — through the internet that cover non-existent or simulated transactions), the judge must automatically order official detention during the criminal proceedings. There is no possibility of an extensive or restrictive interpretation. This represents a significant risk for individuals and companies involved in tax activities.
The e-signature (advanced electronic signature) is an essential tool for issuing CFDIs and performing other tax-related operations. However, if employees misuse it due to negligence, ignorance, or fraud, it could result in the issuance of false tax receipts. This could link the company with criminal activities under Article 19 of the Constitution. Consequences include:
- Criminal proceedings with preventive imprisonment for those involved.
- Economic penalties in accordance with the Federal Tax Code (CFF), such as fines ranging from 55% to 75% for each false tax receipt (Article 84, Section XVI), or prison sentences ranging from two to nine years if the evaded amount exceeds 7.8 million pesos (Article 113-Bis).
- Inclusion in the “black list” of the SAT (Article 69-B of the CFF), which affects the company’s reputation and operability.
- Damage to the public treasury, which could aggravate the legal consequences, as this is considered a crime against national security.
To mitigate the risks associated with improper e-signature use and avoid false tax receipt behavior, companies are recommended to implement the following measures:
- Signature Access Control
- Restrict access to the e-signature to authorized and trained collaborators only through secure authentication systems.
- Implement a detailed record of who uses the e-signature, including the dates, times, and operations performed.
- Avoid sharing e-signature passwords or certificates and ensure that each user has their own credentials.
- Letter of Responsibility for Collaborators
- All employees with access to e-signatures must sign a letter of responsibility. This letter must:
- Establish the obligation to use the e-signature exclusively for legitimate fiscal operations related to the company’s purposes.
- Acknowledge the legal, criminal, and administrative consequences of improper use, including possible preventive imprisonment.
- Require the collaborator to immediately report any irregularities or unauthorized use of the e-signature.
- Include a confidentiality clause to protect sensitive company data.
- To ensure its validity and compliance with regulations, the letter must be reviewed and endorsed by the company’s legal department.
- All employees with access to e-signatures must sign a letter of responsibility. This letter must:
- Training and Awareness
- Train employees on the proper use of e-signatures and the legal consequences of issuing or using false CFDIs.
- Provide information on the reform to Article 19 of the Mexican Constitution and the risks of unofficial preventive imprisonment to encourage a culture of tax compliance.
- Audits and Internal Monitoring
- Conduct periodic audits to ensure that CFDIs correspond to actual transactions and comply with tax regulations.
- Implement real-time monitoring systems to detect anomalies in the use of the e-signature, such as issuing receipts with inconsistent data.
- Maintain supporting documentation proving the materiality of operations, such as contracts, purchase orders, and payment vouchers, as recommended by applicable regulations.
- Legal and Tax Advice
- Consult with tax and criminal law specialists to design internal policies that minimize risk.
- Prepare a defense file documenting operations with the e-signature in the event of a tax or criminal investigation.
The amendment to Article 19 of the Constitution significantly increases the risks associated with improper use of the e-signature by classifying activities involving false tax receipts as crimes that may result in preventive imprisonment. To mitigate these risks, companies must adopt proactive measures to control access to and use of this tool, highlighting the implementation of a letter of responsibility that obligates employees to act diligently and responsibly is essential. These actions protect the legal entity from possible sanctions and reinforce tax compliance and operational integrity in a stricter regulatory environment.
Alberto Díaz de León
Counsel
+52 55 59850517
