On May 1, 2020 “Decree No. 62 by means of which Title Second, Chapter IX, articles 133, 134, 135 and 136 are amended and articles 136-1, 136-2, 136-3, 136-4, 136-5, 136-6 and 136-7 are added, and Chapter XIX, article 156-9, Chapter XXII, article 156-48 are amended, all from the Finance Act of the State of Baja California”, entered into force, same that was published on April 30 of the same year in the Official Gazette of the State of Baja California.
These Decree sets forth an environmental tax over the emission of gases to the atmosphere, in which the air emissions of certain substances generated for the use of polluting goods or the consumption of polluting products in the State of Baja California, are set as the contribution’s object. For purposes of this provision an air emission will be understood as the direct or indirect expulsion of the following greenhouse gases (GHG): carbon dioxide, nitrous oxide, hydrofluorocarbons, perfluorocarbons and sulfur hexafluoride.
This tax musts be covered by individuals, legal entities and economic units with facilities or fixed sources, in which goods or products generating air emissions are sold to final consumers, in the State of Baja California. The tax to be covered will be determined by applying the of $0.17 pesos per sold liter or kilogram of CO2, as applicable, of gasoline, diesel, natural gas and/or LP gas.
It is our opinion that this new tax is unconstitutional because, even though the Decree indicates the contribution’s object to be the emission of gases to the atmosphere, what it is really taxing is the sale of gasoline, diesel, natural gas and/or LP gas. The latter results in an invasion of the sphere of competence of the Federation.
Similarly, we estimate that the above referred articles violate several fundamental rights recognized by the Constitution, such as: legality, legal certainty, tax equity, tax proportionality, among others.
Therefore, we consider it appropriate for the companies deemed affected by this provision to file an indirect amparo procedure before the District Courts of Baja California.
The amparo procedure must be filed either within the 30 business days following the entering into force of the provision, term that will lapse next July 10, 2020, or during the 15-business following its first implementing act, consisting of the payment of the tax. There are various elements bearing in the term to file the suit, reason why we suggest a personalized advice in order to determine the term in each specific case.
The lawyers of the tax, environmental and energy law practices of Basham, Ringe & Correa, S.C., are at your service to comment on the content of the present.
Daniel del Río
Juan Carlos Serra
May 25, 2020