We have said that as a result of the Energy Reform, PEMEX changed its legal nature from a decentralized state-owned company (organismo descentralizado) to an EPE. Pursuant to the provisions set forth in Article 2 of the LPEMEX, said company is the exclusive property of the Federal Government, with its own legal capacity and own assets and estate, and has technical, operative and managerial autonomy.
PEMEX will have EPS and affiliate companies. EPS are State-owned productive companies, with their own legal capacity and own assets and estate; while affiliated companies are those in which PEMEX participates, directly or indirectly, in more than 50% of their stock capital, regardless of whether they are incorporated in accordance to Mexican or foreign laws; these affiliate companies shall not be State-owned entities and shall have the legal nature and be organized according to the private laws of the place of their incorporation or creation.
General considerations of the tax regime
Before the Energy Reform, PEMEX and its subsidiary companies had a special tax regime, set forth mainly in the LIF. Currently, PEMEX and its EPS shall pay taxes pursuant to the general rules applicable to commercial legal entities, with the exception of specific rules, which shall be analyzed in this work.
PEMEX' affiliate companies shall also pay taxes according to the general rules applicable to commercial legal entities; however, since such companies are of private entities, they are not subject to tax rules (unlike PEMEX and its EPS).
Tax effects of the first corporate restructure
Transitory Article Eighth, section A, paragraph V of the LPEMEX provides that the transfer of assets, rights and obligations arising from PEMEX' first corporate restructure shall not be regarded as a sale for tax purposes. Additionally, said transfer and the other transactions that derive directly from the corporate restructuring are not subject to any federal tax.
Said rule follows a language similar to that of Article 14-B of the CFF, and it must thus be construed in the sense that the transfer of assets, rights and obligations that takes places as a result of the first corporate restructure shall have no tax consequences whatsoever, even if a sale takes place for other legal purposes.
We also consider that such rule provides that any civil, corporate and commercial acts in general, present and future, shall have no effect for tax purposes when they are required to implement (for...