Some legal provisions are enacted for a very specific purpose. However, the way they come to be applied in practice may lead to them being analyzed from a perspective different from the one for which they were originally intended. This is the case with NOM-035-STPS-2018, whose inclusion in the list of improper tax practices prompts an analysis of the true scope of this decision.
At first glance, it might seem that the authority is shifting an employment obligation to the tax sphere. However, the ruling does not challenge NOM-035 nor does it modify the obligations it establishes. Rather, it analyzes the tax treatment that certain taxpayers applied to specific transactions based on their alleged compliance with this standard.
Why did a provision created to prevent psychosocial risk factors end up being mentioned in a list of improper tax practices? The answer lies not in the provision itself, but in the way some schemes sought to use it to justify a specific tax treatment.
NOM-035: A Standard Designed for Prevention
To understand this criterion, it is first important to recall the purpose of the rule itself.
NOM-035-STPS-2018 sets forth the obligations established by the Federal Labor Law regarding occupational safety and health. Its objective is to identify, analyze, and prevent psychosocial risk factors, as well as to promote a supportive organizational environment. In practice, it requires companies to implement policies, assessment mechanisms, and preventive measures to reduce risks that could affect the physical and emotional health of their employees.
Compliance may require investments in training, assessments, consulting services, or internal programs. However, NOM-035 does not provide for financial benefits for workers, nor does it require the payment of indemnities, compensation, or additional payments resulting from compliance.
How did NOM-035 come to be applied in the tax sphere?
The reference to NOM-035 did not first appear in 2026.
The Miscellaneous Tax Resolution for 2024 incorporated Criterion 43/ISR/NV, through which the tax authority warned about certain schemes in which associations or corporations were used to make payments to employees, partners, or shareholders under headings such as employment incentives, bonuses, commissions, supplementary compensation for inventions, premiums, or even, for alleged compliance with NOM-035-STPS-2018.
In accordance with this criterion, the authority considers it improper to treat these payments differently for tax purposes than is appropriate given their true legal and economic nature, as well as to fail to withhold and remit the income tax that is legally applicable.
Throughout 2025, the criterion remained in effect without any substantive changes, and on July 17, 2026, it was finally incorporated into Annex 3 of the Miscellaneous Tax Resolution, which lists improper tax practices.
Consequently, the 2026 amendment did not introduce a new type of conduct or expand the scope of the criterion. What it did was expressly incorporate into the list a position that the authority had already held since 2024.
Rather than questioning compliance with NOM-035, the authority focuses on the alignment between the purpose of the standard and the intended tax treatment of certain transactions. In other words, the analysis is not limited to the term used to document a payment, but rather to whether there is legal and economic justification for attributing the intended tax effects to it.
Every rule has a specific purpose; to deviate from it is to distort its essence.
An Interpretation Beyond the Criteria
Although this criterion specifically refers to NOM-035, the message goes beyond that provision.
Tax audits have evolved into an analysis that is not limited to formal compliance with obligations. It is becoming increasingly important that transactions be consistent with the purpose of the regulations governing them and that the tax treatment applied reflect their true legal and economic nature. This approach is consistent with concepts such as materiality, economic substance, and business rationale, which are now among the factors the tax authority considers when reviewing certain transactions.
Final Thoughts
The inclusion of criterion 43/ISR/NV in the list of improper tax practices does not alter the obligations set forth in NOM-035 nor does it limit its implementation within companies. Nor does it imply that compliance with this standard, in and of itself, gives rise to tax consequences different from those provided for in the law. Rather, it reflects the authority’s stance toward schemes that seek to use a provision intended for preventive purposes to support a tax treatment that does not necessarily correspond to the nature of the transaction.
In that regard, this criterion also conveys a broader message: the tax treatment of a transaction does not depend solely on the way it is documented or the legal basis invoked, but rather on whether there is consistency between the purpose of the rule, the reality of the transaction, and the legal and economic effects intended to result from it.
In an environment where regulatory oversight increasingly prioritizes substance over form, proactively reviewing these aspects helps reduce risks, strengthen compliance, and provide greater legal certainty in business decision-making.
