Regardless of the Mexican courts' precedents stating that the property tax and the public lighting fees are unconstitutional, such levies continue to be collected.
The property tax is collected based on the classification of real estate in the Appraisal Charts of each Municipality, yet, such classification is not clear, given that the grounds to catalog the real estate are uncertain.
Now then, with respect to the public lighting fees (commonly known as DAP), since 2012 the Municipalities have moved from charging a 5% on the electricity consumption, to charging a monthly or bimonthly fixed fee, based on the fixed fee classification charts.
Through Municipal Decrees published during December 2011, the Municipalities of the State of Chihuahua approved the Appraisal Charts which provide the calculation methods for the property values of the real estate, as well as the collection of the property tax for 2012.
Also, the State Congress modified the Municipal Code for the State of Chihuahua with respect to the collection of the DAP, by granting the Municipalities the authority to determine the taxable base and tariff for such collection. We are of the opinion that the referred Code is unconstitutional, since an administrative authority, such as the Municipalities, may not establish the basic elements of a tax levy. Moreover, the Mexican Supreme Court has ruled that the Municipalities are prohibited to collect electricity consumption based taxes or levies, such as the DAP.
Considering the above, it is possible to submit an amparo claim before Federal District Judge requesting the constitutional protection against said unconstitutional collections.
Should the collection of the property tax be challenged, up to 70% of the payments made could be reimbursed, upon securing a favorable resolution. Also, the collection of the DAP may be challenged and if the claim prevails, the DAP paid in 2012 should be reimbursed and it will not be collected during the following months of 2012; however, it is also possible to challenge the Municipal Code for the State of Chihuahua which, upon securing a favorable resolution, would mean the DAP should no longer be paid for the following years, as long as the Code is not revised.