Regulations of Article 28 of the Law on Efficiency in Income and Public Expenditure
Congreso Nacional
- Decree: 113-2011
- Published: January 9, 2017
- Issuing body: Congreso Nacional
- Category: Financial & Tax
Summary
This regulation establishes the procedure for authorizing tax exemptions in Honduras. It requires taxpayers to prove they are in good standing with the State (except for the exempted tax), present a valid solvency certificate valid for 60 days, and obtain a Finance resolution that serves as the sole document to prove the exemption to all public institutions.
Considerations
Whereas Article 247 of the Constitution of the Republic establishes that the Secretaries of State are collaborators of the President of the Republic in the direction, coordination, management and supervision of the organs and entities of the national public administration, in the area of their competence.
Whereas the Constitution of the Republic in Article 351 establishes that the tax system shall be governed by the principles of legality, proportionality, generality and equity, in accordance with the economic capacity of the taxpayer.
Whereas Decree No. 113-2011 containing the Law on Efficiency in Income and Public Expenditure published in the Official Gazette La Gaceta dated July 8, 2011 and its amendments, in Article 28 establishes that the Secretariat of State in the Office of Finance, in accordance with the Law, shall authorize exemptions, exonerations, and other tax benefits granted by present and future special laws, prior to the optional opinion of the Secretariats of State and other competent entities, without such opinions or reports having a binding nature. Likewise, in the Second Paragraph it establishes that the resolution issued by the Secretariat of State in the Office of Finance, provided that the beneficiary proves to be solvent with the State, shall be the sufficient document to accredit the exemption, exoneration or authorized tax benefit, so that no State institution shall require the processing of another declaratory or accrediting document.
Whereas Articles 71 and 72 of Decree No. 170-2016 containing the Tax Code published in the Official Gazette La Gaceta dated December 28, 2016, regulate the duties of collaboration of public servants outside the Secretariat of State in the Office of Finance (SEFIN), Tax and Customs Superintendency (STA), Tax Administration and Customs Administration, as well as the duty to provide all kinds of data, reports or antecedents with tax or customs significance.
Whereas Article 211 Number 4 of Decree No. 170-2016 containing the Tax Code published in the Official Gazette La Gaceta dated December 28, 2016, interprets Article 28 Second Paragraph of Decree No. 113-2011 published in the Official Gazette La Gaceta dated July 8, 2016, in the sense that the solvency that the beneficiary must prove with the State is for tax obligations distinct from the waiver of payment of taxes requested.
Whereas Article 212 Number 1 of Decree No. 170-2016 containing the Tax Code published in the Official Gazette La Gaceta dated December 28, 2016, authorizes the Secretariat of State in the Office of Finance (SEFIN) to issue resolutions from years prior to the dates of publication of this Decree when the beneficiaries of the resolutions have complied with the requirements established in the applicable legal framework, including the provision in the previous paragraph, and it also grants to the Secretariat of State in the Office of Finance (SEFIN) the power to issue the necessary instructions for the application of Article 28 of Decree No. 113-2011 dated June 24, 2011 published in the Official Gazette La Gaceta on July 8, 2011.
Whereas in accordance with Number 15) of Article 29 of the Law of Public Administration and its Amendments, the Secretariat of State in the Office of Finance is competent for all matters concerning the formulation, coordination, execution and evaluation of policies related to Public Finance, so that the correct application of legal norms related to the functioning of the Tax System of Honduras must be assured.
Whereas in accordance with Article 60 of the Regulation of Organization, Functioning and Competence of the Executive Branch contained in Executive Decree PCM-008-97 reformed by Decree PCM-35-2015 published in the Official Gazette La Gaceta on June 26, 2015, it is the competence of the Secretariat of State in the Office of Finance through the General Directorate of Tax Policy to define, monitor and evaluate tax policy, in order to achieve a sustainable fiscal policy for the benefit of Honduran society.
Whereas Article 9 of Decree No. 170-2016 published in the Official Gazette La Gaceta dated December 28, 2016, containing the Tax Code, establishes that the President of the Republic, through the Secretariat of State in the Office of Finance (SEFIN), is empowered to issue administrative acts of a general nature called Regulations, within the scope of tax and customs policy competence, and all those faculties that by disposition of the Constitution of the Republic and by Law correspond to him, on his own or through the aforementioned Secretariat of State.
Whereas Article 36 number 8 of the General Law of Public Administration establishes that it is an Attribute of the Secretariats of State to issue Agreements and Resolutions on the matters of their competence and those delegated to them by the President of the Republic, and to ensure their execution.
Amendments
- Modifies: Regulation on the Tourism Promotion Law (Interpretation) — articles 28
Articles
OBJECT. The purpose of this Regulation is to develop the provisions contained in Article 28 of the Law of Efficiency in Income and Public Expenditure and its reforms.
SCOPE OF APPLICATION. The norms contained in this Regulation shall apply throughout the national territory for all acts, facts, and situations regulated in Article 28 of the Law of Efficiency in Income and Public Expenditure and its reforms.
DEFINITIONS. For purposes of the application of this Regulation, the following concepts are defined: 1. SOLVENCY CERTIFICATE: Document that accredits the obligated taxpayer as being solvent with the State for tax obligations other than the waiver of payment of requested taxes. 2. TAX OBLIGATIONS: Legal relationships established by Law between the State and the Obligated Taxpayer, which may be formal or material in nature, and are administered by the Tax Administration or the Ministry of State in the Office of Finance, each within the scope of their competencies. 3. OPINION: Report issued by the Ministries of State and other competent entities regarding a fact or situation in response to a request from the Ministry of State in the Office of Finance prior to the issuance of authorizing resolutions for exemptions. 4. EXEMPTION RESOLUTION: Declaratory or evidentiary document of an exemption, issued by the Ministry of State in the Office of Finance (SEFIN) through the General Directorate for Control of Customs Franchises (DGCFA). 5. EXEMPTION: The total or partial waiver of payment of the customs tax obligation approved by the National Congress, whose individual processing corresponds to the beneficiary before the Executive Power, through the Ministry of State in the Office of Finance (SEFIN). 6. SPECIAL EXEMPTION LAWS: All those provisions approved by the National Congress with the rank of Law other than Tax Creation Laws, which release in total or partial form from the payment of the tax obligation. TITLE II OF THE OPINION OF THE MINISTRIES OF STATE AND OTHER COMPETENT ENTITIES AND THE SOLVENCY CERTIFICATE CHAPTER I OF THE REQUEST, REQUIREMENTS AND ISSUANCE OF THE OPINION OF THE MINISTRIES OF STATE AND OTHER COMPETENT ENTITIES
REQUEST FOR OPINION. The request for Opinion to other Ministries of State and other competent entities must be made by the Ministry of State in the Office of Finance through the General Directorate for Control of Customs Franchises (DGCFA).
REQUIREMENTS OF THE OPINION. The Opinion must at least comply with the following requirements: 1. Title of Opinion 2. Recipient General Directorate for Control of Customs Franchises of the Ministry of State in the Office of Finance 3. Background Description of the person or thing, subject of the examination, indicating the status at the time of the examination. 4. Explanatory paragraph Relationship of the practical tests conducted as well as the respective results, including obligations with respect to the Ministries of State or Entities 5. Location Competent regulatory bodies City where it is issued 6. Date Date on which the Opinion is issued 6. Signature and Seal Competent Authority
TIME PERIOD FOR ISSUANCE OF THE OPINION. The Ministries of State and other competent entities have a maximum period of TEN (10) DAYS counted from the date of receipt of the request for issuance of opinion from the Ministry of State in the Office of Finance through the General Directorate for Control of Customs Franchises (DGCFA). When the Ministries of State and other competent entities do not issue the Opinion within the aforementioned period, the General Directorate for Control of Customs Franchises (DGCFA) must require the submission of said Opinion within a maximum period of FIVE (5) business days, without prejudice to the corresponding sanctions established in the Tax Code for late submission. In the event of non-submission of the Opinion once FIVE (5) days have elapsed as described above, the General Directorate for Control of Customs Franchises (DGCFA) must proceed and sustain the tax procedure until its completion, requesting from the Ministries of State and competent entities the immediate delivery of the documentation delivered for the issuance of the requested opinion, without prejudice to the responsibility incurred by the official responsible for the omission.
CHARACTER OF THE OPINION. The Opinion is not binding for the issuance of the authorizing resolutions for exemption from the Ministry of State in the Office of Finance (SEFIN) through the General Directorate for Control of Customs Franchises (DGCFA). CHAPTER II OF THE SOLVENCY CERTIFICATE
PROCEDURE. The obligated taxpayer in the processing of the waiver of taxes at the General Directorate for Control of Customs Franchises (DGCFA) of the Ministry of State in the Office of Finance (SEFIN) must present the solvency certificate for tax obligations other than the waiver of payment of requested taxes.
ISSUANCE. The obligated taxpayers must request the solvency certificate from the Tax Administration, expressing the purposes thereof. The Tax Administration must issue the solvency certificate to natural or legal persons, in accordance with the following: Tax under exemption processing at the Ministry of State in the Office of Finance (SEFIN) | Compliance criteria at the Tax Administration for the Issuance of Solvency Certificates Income Tax | Withholdings in matters of Income Tax made to third parties, Sales Tax and its Withholdings, Other Taxes and their withholdings, Formal tax obligations Sales Tax | Income Tax and its withholdings, Withholdings in matters of Sales Tax, Other taxes and their withholdings, Formal tax obligations Income Tax and Sales Tax | Withholdings in matters of Income Tax and Sales Tax, Other taxes and their withholdings, Formal tax obligations Other Taxes other than Income Tax and Sales Tax | Income Tax and its withholdings, Sales Tax and its withholdings, Formal tax obligations All Taxes | Withholdings in matters of Income Tax, Withholdings in matters of Sales Tax, Withholdings in matters of other taxes, Formal tax obligations
VALIDITY. The Solvency Certificate that must be issued by the Tax Administration shall have a validity period of 60 calendar days, and its presentation is an essential requirement for the issuance of the Exemption Resolution.
VERIFICATION. The General Directorate for Control of Customs Franchises (DGCFA) of the Ministry of State in the Office of Finance (SEFIN) must verify the validity of the Solvency Certificates presented by the obligated taxpayers prior to the issuance of the Exemption Resolution. During the process of development of interfaces and connection of the systems of the Ministry of State in the Office of Finance with the Tax Administration, the Tax Administration is instructed to send by electronic means to the General Directorate for Control of Customs Franchises (DGCFA) the Solvency Certificates issued, for respective verification at the time of issuance of the resolution for waiver of payment of taxes in said Directorate. TITLE III TRANSITORY AND FINAL PROVISIONS
REQUESTS FOR WAIVER OF PAYMENT OF TAXES UNDER PROCESSING. The obligated taxpayers who have pending requests for waivers of payment of taxes at the General Directorate for Control of Customs Franchises (DGCFA) of the Ministry of State in the Office of Finance (SEFIN) must present the solvency certificate in accordance with the criteria established in Article 8 of this Regulation, in order for said Directorate to finalize the corresponding tax procedure.
EFFECTIVENESS. This Regulation shall enter into force on the day of its publication in the Official Gazette La Gaceta. BE COMMUNICATED AND PUBLISHED. JORGE RAMÓN HERNÁNDEZ ALCERRO Secretary of State, General Coordinator of Government By delegation of the President of the Republic Executive Agreement No.031-2015, Published in the Official Gazette "La Gaceta" on November 25, 2015 ROCÍO TÁBORA Secretary of State in the Office of Finance, by Law
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