Doing Business in Mexico - Microsoft Azure · Capital gains Losses Tax group Tax rate Taxable at...

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©2013 CliftonLarsonAllen LLP CLAconnect.com Doing Business in Mexico September 10, 2013

Transcript of Doing Business in Mexico - Microsoft Azure · Capital gains Losses Tax group Tax rate Taxable at...

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©2013 C

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CLAconnect.com

Doing Business in Mexico September 10, 2013

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Circular 230

To ensure compliance imposed by IRS Circular 230, any U. S. federal tax advice contained in this presentation is not intended or written to be used, and cannot be used by any taxpayer, for the purpose of avoiding penalties that may be imposed by governmental tax authorities.

The information contained herein is general in nature and is not intended, and should not be construed, as legal, accounting, or tax advice or opinion provided by CliftonLarsonAllen LLP to the reader. The reader also is cautioned that this material may not be applicable to, or suitable for, the reader’s specific circumstances or needs, and may require consideration of non-tax and other tax factors if any action is to be contemplated. The reader should contact his or her CliftonLarsonAllen LLP or other tax professional prior to taking any action based upon this information. CliftonLarsonAllen LLP assumes no obligation to inform the reader of any changes in tax laws or other factors that could affect the information contained herein.

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Housekeeping

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CPE Requirements

• Answer the polling questions.

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Learning Objectives

At the end of this session, you will be able to:

• Understand the various key developments in the Mexican economy

• Obtain practical guidance for doing business in Mexico

• Understand the Mexican tax structure

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About CliftonLarsonAllen

• A national CPA and consulting firm

• Service areas include audit, tax, consulting, and outsourcing

• 3,600+ professionals

• More than 90 offices nationwide

• Independent member of Nexia International

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Speakers

Jeff Kvilhaug CliftonLarsonAllen LLP

Phoenix, AZ

Alfredo Solloa Solloa CP

Mexico City, Mexico

Doing Business in

Mexico

September 2013

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• Mexico: A Profile – Geographical/Historical Background – Solloa-Nexia

• Why Mexico? – Investment Climate – Economy, Labor – Investment opportunities

• Mexico vs. ???

• Issues for clients starting a business in Mexico – Type of entity – preferred by US subs. – Income Tax and Flat Tax – Value Added Tax (VAT) – Expatriating profits – Dividends, Royalties, Interest – Transfer Pricing – IMMEX – VAT and Income Tax benefits

WEBINAR OUTLINE

• GEOGRAPHY & HISTORY

• POLITICAL REGIME & LEGAL SYSTEM

• SOLLOA-NEXIA

• ECONOMY

• LABOR-MGT. RELATIONS

• INVESTMENT CLIMATE AND OPORTUNITIES

MEXICO A PROFILE

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MEXICO • Independence from Spain in 1810

• Mexico in 1821:

1823 - Separation of Central America. 1848 - With the “Treaty of Guadalupe Hidalgo”, Mexico gave up over 50% of its territory to the US - California, Nevada, Utah, New Mexico & Texas and parts of Arizona, Colorado, Wyoming, Kansas & Oklahoma)

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MEXICO

• Revolution from 1910-1923 • End of dictatorship & beginning

of Military & Democratic regimes

• Legal system based in Civil Law

• Democratic Republic – Federal System • 3 Powers – Executive, Legislative & Judicial

• 32 States (31 + Federal District)

• 3 levels of Government : Federal, State & Municipal

• Population of 115+ million

• Presidential regime 6 yrs.

• COVERAGE

• GENERAL OVERVIEW

• SERVICES

SOLLOA-NEXIA

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GEOGRAPHY & FOOTPRINT

• 32 STATES • PRESENCE IN 15+

SOLLOA COVERAGE

INFLUENCE

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50 Years in Business

300+ Total Staff nationwide

6 Offices throughout the country

HQ in Mexico City

Ranked in top 15 in the country

Member of Nexia (former group) for 20 years

PCAOB Registered since 2007

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Client Base:

• 850+ clients in varied industry sectors.

• Publicly Traded or with publicly traded debt.

• Well known US and EU company subs established in Mexico

• Mid-size privately held Mexican companies.

• Government

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ECONOMY • Ranked 12-14th. Economy in the World (GDP) and

climbing…. • Projected @ #10 for 2018 above Spain, Canada, Italy &

South Korea

• Balanced Budget • 0.3% GDP deficit for FY12 & 0% for FY13

• Inflation of 3.6% for 2012 and est. @ 3.5%-4% for 2013

• Stable currency & record Reserves (160+ BUSD)

• Minimum wage - reference

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ECONOMY

• NAFTA Member – Exports tripled since 1994. • Mexico is 2nd. US source for imports (Canada is #1)

• US represents 85% of Mexican exports.

• EU represents only 4.3%

• Part of OCED 34 country group.

• 31 Commercial Treaties in effect.

• 34 Double Taxation Avoidance Treaties (3 in process)

• Foreign Account Tax Compliance Act (FATCA) signee.

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ECONOMY

• Major Industry Sectors:

• Petroleum & Gas (7th. largest producer)

• Automotive - Car Assembly & Export (3rd. in World)

• Tourism (22M+ visitors per year)

• Agriculture

• Electronics – second supplier to US

Polling Question 1

1. Mexico is

1. 3rd source for imports into the US

2. Not a commercial partner with the US

3. Second supplier of electronics to the US

4. Not a member of NAFTA

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Labor-Management Relations

• Employee Profit Sharing 10% (taxable income)

• New Labor Law just approved in Dec. 2012

• Limits the use of Outsourcing • Intends to limit “general” outsourcing not by specific

area of service (ie. admin., technical, marketing…)

• Potential Social Security (IMSS) and Employee Profit Sharing (PTU) issues.

• New forms of contracts allowed.

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Investment Climate

• Not an over-regulated environment.

• Open Investment allowances in most sectors.

• Foreign Investment Law • Limits foreign investment in some “strategic” sectors -

to any type of ownership or majority ownership.

• Most activities allowed for foreign investment • Filings with “RNIE” (Foreign Investment Registry)

• Major Regulation changes for Telecomunications & TV in 2013.

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Investment Climate – cont…

• Anti-monopoly regulations getting stringer.

• Oportunities: • Real estate – foreign ownership along border and

beach pending Senate approval.

• Petroleum extraction – initiative in Congress.

• Infrastructure (roads, rails)

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Mexico vs. China…

• Wages have become less

competitive

• 2.9% growth in labor market from

2010 to 2020 (27.2 million) • Working age population estimated to

shrink after 2030

• Accounts for 17.5% of US

imports.

• Logistics issues.

• Corruption problems.

Mexico • Wages currently 20% lower than

China vs. 200% more costly 2003

• “Demographic Bonus” • Growing labor market est. @ 20% from

2010 to 2020 (14.2 million)

• Low transportation costs to major NAFTA markets and quick supply.

• Structural reforms which promote Competitiveness and Foreign Investment.

• Accounts for 12.4% of US imports

• Legal certainty.

China

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Mexico vs. China …according to IMF

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THE EMERGING MARKET OF THE AMERICAS

Video

http://mim.promexico.gob.mx/wb/mim/videos

Polling Question 2

1. Worldwide, Mexico is the largest exporter of:

1. Beer, silver and flat screen tvs

2. Silver, Petroleum and cars

3. Electronics and minerals

4. Cement, IT services and beer

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• PREFERRED TYPES OF ENTITIES

• PROCESS OUTLINE

• TIMELINE & COSTS

COMMON FORMS FOR

STRUCTURING A BUSINESS IN

MEXICO

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• Mexican Entity (subsidiary) – S.A. or S. de R.L (Corp. vs. LLC)

• Branch or Office – PE tax consequences – Permanent Establishment

– Acting through a representative or hiring employees

• Limited sectors for investment - Foreign Investment Law

• Employee Profit Sharing (PTU) – 10%

BUSINESS STARTUPS Legal Forms, Fiscal Treatment & Other

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PREFERRED TYPES Limited Liability Corp (LLC) or

Partnership *(LLP)

(S de RL or *SC in Mexico)

Private corporation (Ltd)

and Public corporation

(SA in Mexico)

CHARACTERISTICS

*SC (LLP) only allowed in certain cases

Partners/shareholders 2 minimum / 50 maximum 2 minimum / no max.

Restrictions Partnership: 2 minimum, no limit No limit

Directors (S de RL or SA) Sole Administrator or a Board of Directors

Minimum capital

LLC: 3,000 pesos

Partnership: no minimum No minimum

BUSINESS STARTUPS

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Liability

The legal representative (with power of attorney) and in

some cases the Sole Administrator or Board as well as the

partners up to the amount of their contribution.

Governance

LLC: Board of Directors or Sole

Administrator

Board of Directors or

Sole Administrator

Partnership: One or more partners

Taxation Mexican residents on all income, regardless of source

Official name

Sociedad de Responsabilidad

Limitada (S de RL) with fixed or

variable equity (CV)

Sociedad Anónima (SA)

with fixed or variable

equity (CV)

If publicly held:

Sociedad Civil (SC) Sociedad Anónima

Bursátil (SAB).

BUSINESS STARTUPS

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BUSINESS STARTUPS Process Outline

• Obtain authorization of company name from the Ministry of Economics

– Valid for 90 days or forfeit name “reservation”

• Prepare draft deed with object, duration, partners, governance body,

paid in capital, POA’s, company domicile, etcetera.

• Sign deed of incorporation before Notary Public

– Notarized and Apostilled POA’s in case of foreigners.

• Register Deed in the Public Register of Commerce

• Register before Tax Authorities – obtain tax ID number

• Obtain electronic signature for filing tax returns and notices - FIEL

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• Register with the Mexican Social Security Institute (IMSS) – only employers

• Register with the local (State) Tax administration for payroll tax

• Notice of opening a mercantile establishment before local government

• Filing with the Foreign Investment Registry (RNIE) – 45 days

• Filing with the National Institute of Statistics, Geography and Information

• Issue certificates to shareholders or partners

Time needed approximately 3 – 4 weeks

BUSINESS STARTUPS Process Outline – continued…

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BUSINESS STARTUPS Timeline & Costs

Obtain Company Name Authorization (Ministry of Economics)

Prepare draft Incorporation Deed

Sign and get copy of Incorporation Deed

with Notary

Obtain Tax ID number & other tax

registrations

Parallel Actions Obtain Notarized

and Apostilled POA’s abroad

Notary to proceed with Public Registry and issue letter that

in process

Foreign Investment Registry and

opening bank accounts

Time 3-4 Weeks

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• INCOME TAX (ISR)

• FLAT TAX (IETU)

• VAT

• FISCAL CODE • DIGITAL INVOICING

• DOUBLE TAXATION TREATIES – EXPATRIATION OF PROFITS

• MAQUILADORAS

MEXICAN TAX

HIGHLIGHTS

- Companies

- Individuals

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• TAX RATE

• INFLATIONARY EFFECTS (GAIN/LOSS)

• DIVIDENDS

• TRANSFER PRICING

• FOREIGN RESIDENTS

INCOME TAX (ISR)

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INCOME TAX (ISR)

General

descriptionCorporate income tax Branch income tax

Taxable entities

Incorporated in Mexico and/or

overseas with central

management and control

located in Mexico

PE located in Mexico

Taxable income Worldwide profits Profits derived by PE in Mexico

Calculation of

taxable profits

Related party

transactions

Tax year,

return and

payment

Capital gains

Losses

Tax group

Tax rate

Taxable at 30%.

In some cases, withholding tax on gross proceeds

Carry forward 10 years

Set off against taxable profits

Holding company w/ at least one subsidiary.

Can consolidate results of each individual subsidiary and up to 100%

of their losses can be offset against the profits of others

30% during 2012

29% during 2013 and

28% from 2014 and on

Interest

payments

Tax deductible

Comparisons with inflation rates = taxable gains or deductible losses

Thin capitalisation rule is 3:1

If liability exceeds ratio, interests paid in excess = non-deductible

On an arm’s length basis

Substantiate w/ formal annual transfer pricing study

Calendar year

Monthly advanced payments

Annual tax return (3 months after tax year end)

Resident corporation Permanent establishment (PE)

Accounting profit is adjusted for various tax add-backs and

allowances to arrive to profits chargeable to corporation tax

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General

descriptionCorporate income tax Branch income tax

Taxable entities

Incorporated in Mexico and/or

overseas with central

management and control

located in Mexico

PE located in Mexico

Taxable income Worldwide profits Profits derived by PE in Mexico

Calculation of

taxable profits

Related party

transactions

Tax year,

return and

payment

Capital gains

Losses

Tax group

Tax rate

Taxable at 30%.

In some cases, withholding tax on gross proceeds

Carry forward 10 years

Set off against taxable profits

Holding company w/ at least one subsidiary.

Can consolidate results of each individual subsidiary and up to 100%

of their losses can be offset against the profits of others

30% during 2012

29% during 2013 and

28% from 2014 and on

Interest

payments

Tax deductible

Comparisons with inflation rates = taxable gains or deductible losses

Thin capitalisation rule is 3:1

If liability exceeds ratio, interests paid in excess = non-deductible

On an arm’s length basis

Substantiate w/ formal annual transfer pricing study

Calendar year

Monthly advanced payments

Annual tax return (3 months after tax year end)

Resident corporation Permanent establishment (PE)

Accounting profit is adjusted for various tax add-backs and

allowances to arrive to profits chargeable to corporation tax

INCOME TAX (ISR)

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Tax rates 30% for 2012 & 2013 ( for 2014 expected to increase…)

OTHER MEXICAN TAX RULES

• Mexico applies a so-called “monetary correction” to account for the

impact of inflation on monetary assets and liabilities. As a result of the

varying effects of monetary correction, there have been periods where

Mexican companies have incurred a higher tax burden as a result of

being capitalized by debt instead of equity.

• Management, technical assistance and service fees paid to related

parties should be deductible in most cases, and such fees are not

subject to Mexican withholding tax provided the services in question

are rendered outside of Mexico.

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OTHER MEXICAN TAX RULES – cont…

• Mexico will want documentation that intercompany charges are

reasonable. The reasonableness of the transfer price on any

purchases of products from or sales to related parties should

also be documented.

– Transfer Pricing Study required yearly and reasonability and

method used, must be mentioned by external auditor on filing audit

report to Mexican IRS – mandatory “tax” audit if gross income>

2.650 MUSD in prior FY.

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INCOME TAX ON INDIVIDUALS

Residents Non-residents

Taxable income Worldwide income On income from Mexican

source

Types of taxable

income

● Property income (usually rent)

● From capital investment (interest, sale of goodwill,

dividends, royalties, annuities)

● From business activities/professional activities

● From personal services or pensions

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INCOME TAX ON INDIVIDUALS

Calculation of

taxable income

● Business income minus cost

● Rent income entitled to an optional 35% “blind”

deduction, or else accountable expenses.

● Salary income computed by applying progressive table

@ 0% to 30% tax. (no deductions)

• Dividends not taxed if distribution paid tax at

corporate level (originate from “CUFIN” basket) –

obligation to accrue and credit tax in annual tax

return (applies if shareholder is a company)

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Tax year, payment

Calendar year or any period of time until December

Usually withheld by payer

Annual return due before end of April the following year

Losses Very specific cases (from the sale of assets and

business activities)

Maximum tax rates

30% during 2012

30% for 2013

2014 and on…???....

INCOME TAX ON INDIVIDUALS

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• TAX RATE

• TAXABLE BASE • CASH FLOW BASIS

• MONTHLY PAYMENTS

• HOW IT WORKS WITH INCOME TAX

FLAT TAX (IETU)

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FLAT TAX (IETU)

General description Works as alternative minimum Income Tax (ISR)

Payable to the extent it exceeds Income Tax

Taxable entities and

taxable income

Computed on a cash-flow basis

Collected income

minus Expenses actually paid

Except: salaries and wages (credit), interest and

royalties paid to related parties which are not

integrated into the tax base.

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Tax year, tax assessment and tax

payment

Calendar year

Monthly advance payments based

on real accumulated cash flow base

for the period.

Annual return within 3 months after

tax year end

Losses Carry forward 10 years

Set off ONLY against future IETU

Tax Rate 17.5%

FLAT TAX (IETU)

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INCOME TAX & FLAT TAX CONCEPT A) INCOME TAX A) FLAT TAX

Accruable Income 100

Collected Income 80

Allowed Deductions (accrued / paid)

70 50

Taxable Base 30 30

Income Tax (ISR) 9.0

Flat Tax (IETU) 5.25

Tax Payable:

Income Tax 9.0 0 Flat Tax

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• TAX RATE

• HOW IT WORKS

• CASH FLOW BASIS

• EXPORTS

• IMMEX PROGRAM

VALUE ADDED

TAX (VAT)

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TAX PAYERS

All entities and individuals

Residents or not

Performing activities within Mexican territory, as described

by Law

TAXABLE

ACTIVITIES

● Transfer of goods

● Rendering of services

● Property derived income (rent)

● Import of goods/services

● Export of goods/services

VALUE ADDED TAX (VAT)

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0% RATE

(examples)

● Food (taxed for 2014 ?)

● Primary activities (agriculture, fishing, catering)

● Export of goods and some services

EXEMPTIONS

(examples)

● Medicines (taxed for 2014 ?)

● Books

● Interest from financial institutions

● Services rendered or goods transferred by not-for-profit

organizations

VALUE ADDED TAX (VAT) cont.

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REFUND Within 40 working

days

Not allowed to foreigners under

general rules

TAX LIABILITY Supplier of goods/services is responsible for charging

VAT

TAX RATES &

BASE

● Standard rate = 16%

● Rate along the border = 11%

● Rate on exports and food = 0% (for 2013)

● Tax is computed on a cash-flow basis

VALUE ADDED TAX (VAT) cont.

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ADMINISTRATIVE

OBLIGATIONS

• Registration with tax authorities • Applies even if no PE – not exempt by Tax Treaties.

• File monthly returns

• Withhold VAT when applicable

• File monthly and annual informative

returns via internet of all transactions

with third parties (DIOT format A-29)

• VAT specifically separated in electronic

invoicing – or non-deductible for income tax.

VALUE ADDED TAX (VAT) cont.

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• DIGITAL INVOICING

FISCAL CODE

(CFF)

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DIGITAL INVOICING (CFF)

Mandatory for:

- Taxpayers with TURNOVER above 4 million mxp

(about 325,000 usd) and those already issuing

digital invoices

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DIGITAL INVOICING (CFF)

Characteristics:

• Digital tax receipt called a “CFDI” or Digital Tax Invoice

• Documents and validates business transactions

• Must be generated, transmitted and protected by electronic means.

• Companies must keep track of the invoices issued, by storage or backup of digital vouchers (.XML), subject to review by Tax Authorities.

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• TAXES COMPRISED

• EXPATRIATING PROFITS

• WITHHOLDING TAX RATES

DOUBLE TAXATION

TREATY

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TAX TREATY US - MEXICO

TAXES COMPRISED:

• INCOME TAX

• FLAT TAX – creditable while study in process – how long?...

(VAT NOT INCLUDED)

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TAX TREATY US - MEXICO

Dividends 5% – 10%

Interest 4.9% – 15%

Royalties 10%

Sale of shares Taxable when more than

25%for at least 2 years

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* Business income not taxable

Polling Question 3

Mexican Taxes:

1. Federal Income Tax in Mexico is @ 35%

2. Flat Tax or IETU, works as a minimum Income Tax.

3. VAT in Mexico is applied @ 18% without exception

4. Dividends are always taxed when paid to shareholders.

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• QUICK OVERVIEW

• IMMEX

MAQUILADORAS

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Maquiladoras

Maquila

Industrial process or services for

the production, transformation or

repair of foreign goods

temporarily imported for later export

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IMMEX

Incentives program for the:

Manufacturing,

Maquiladora and

Export Services Industry Export Services: production, processing or repair of goods of foreign origin, imported temporarily for subsequent return abroad

REQUIREMENTS FOR IMMEX PROGRAM

1. Legal and economical relation with foreign entity

(maquila contract)

2. Maquiladora incorporated as a corporation subject

to Income Tax under Title II provisions.

3. Operations:

- Repair or

- Transformation into a different product with added value.

4. Goods imported temporarily must return abroad with

the finished product.

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REQUIREMENTS FOR IMMEX PROGRAM

5. Raw materials, parts and components under temporary importation, and 30% of machinery and equipment:

Property of foreign resident entity that hired the maquila, or Property of foreign resident third party with manufacturing relationship with the above.

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REQUIREMENTS FOR IMMEX PROGRAM

6. Export 500,000 USD or 10% of production.

7. Import only authorized fractions as per Customs Law.

8. Allocate goods for what was authorized.

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REQUIREMENTS FOR IMMEX PROGRAM

9. Meet agreed deadlines.

10. Keep goods in declared domicile.

11. Keep inventory control as provided in

the Customs Law

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REQUIREMENTS FOR IMMEX PROGRAM

12. File reports to SE and SHCP if:

– Change of corporate name, RFC, address

– Change of sub-maquila’s address

– Suspend activities.

13. Comply with Transfer Pricing provisions

SE – Secretaria de Economia (Ministry of Economics)

SHCP – Secretaria de Hacienda (Revenue Service)

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MAQUILA BENEFITS

No Permanent Establishment (PE) for foreign residents with legal or economic relationships with maquiladoras, if:

• It habitually processes goods or merchandise maintained in Mexico by the foreign resident .

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MAQUILA BENEFITS – cont…

• Uses assets provided by the foreign resident or any related party .

• Mexico and the foreign resident's country have entered a Treaty to Avoid Double Taxation and meet requirements .

• Companies comply with Transfer Pricing provisions.

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Temporarily import duty free for:

– Machinery and equipment

(life of program approval)

– Parts, components and raw material

(12 to 60 months)

– Containers (2 years)

MAQUILA BENEFITS – cont…

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VALUE ADDED TAX (IVA)

– 0% on maquila services

– 0% on sales to final consumer or distributors in

Mexico = Export

MAQUILA BENEFITS – cont…

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VALUE ADDED TAX (IVA)

– No VAT on temporary imports

– No VAT on Mexican purchases

Expedited VAT refunds on VAT paid in Mexico

- General: 20 working days

5 if Entity is Certified

MAQUILA BENEFITS – cont…

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INCOME TAX (ISR)

• Partial exemption

ISR payable considering greatest of operational cost +6.5% , or revenue of 6.9% on assets

minus:

ISR payable considering greatest of operative cost + 3% or revenue of 3% on assets

MAQUILA BENEFITS – cont…

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TAXABLE INCOME TO AVOID P.E.

• Safe Harbor

Higher of:

• Assets employed in maquila operation x 6.9%

• Costs/expenses of maquila operations x 6.5%

• Methodology Study 1999 + 1%

Sales + (machinery x 1%) = Taxable income

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SAFE HARBOR I. ASSETS EMPLOYED IN MAQUILA OPERATIONS

Property of the maquiladora 500,000 Property of foreign resident 150,000 ª TOTAL 650,000 Percentage on assets 6.9% Taxable gain 44,850 II. COSTS AND EXPENSES OF MAQUILA OPERATIONS Costs and expenses incurred by maquiladora 250,000 Costs and expenses incurred by foreign resident 10,000 TOTAL 260,000 Percentage on expenses 6.5% Taxable gain 16,900 III. HIGHER OF I AND II 6.9% on assets 44,850 Income Tax Rate 30% INCOME TAX 13,455

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METHODOLOGY STUDY 1999 + 1%

Methodology 1999 1% Machinery (foreign) Total

Sales 273,000 150,000ª x 1% = 1,500 274,500

Costs

and expenses 260,000 260,000

Mark-Up 5% 5.5%

Operating gain 13,000 14,500

Income Tax Rate 30%

INCOME TAX 4,350

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BUSINESS FLAT RATE TAX (IETU)

• Tax Credit

Taxable Income = ISR

MAQUILA BENEFITS – cont…

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Polling Question 4

Maquiladoras adhering to IMMEX program:

1. Pay no Income Tax or VAT on sales

2. Pay no Income Tax

3. Constitute a PE in Mexico

4. Pay no VAT on sales

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Contact us at:

www.solloacp.com.mx

(52 55) 2629-7232

Thank you!

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Questions?

Please submit any questions via the questions function on the upper

right hand side of your screen

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Thank you

Jeff Kvilhaug, Partner

[email protected]

407-802-1200