In a globalized world, foreign trade is inevitable; today it is common for goods to be manufactured with raw materials from certain countries and manufactured in others, in order to find the best prices. The competitiveness of companies depends to a great extent on their ability to reduce costs in raw materials and manufacturing, as well as to enter foreign markets.
However, foreign trade involves a sum of tariff and non-tariff obligations, according to the destination or use of the merchandise and consequently, the customs regime to which it corresponds. In our legal system, the Customs Law is the specific instrument that regulates the entry and exit of merchandise from the national territory, as well as the powers of the customs authority to verify compliance with foreign trade obligations.
In general terms, there are three types of customs regimes: definitive import and export and transit (understood as temporary imports and exports). This classification is a worldwide trend that exists with the purpose of regulating the transition of goods that are destined to remain definitively in the country or are only passing through Mexican territory, either to undergo a process of transformation, addition or modification to be later returned abroad or to be exported in the same conditions in which they were imported.
In practice, the application of the corresponding regime is complicated due to the large number of regulations and norms that exist in this regard, from the payment of the tax applicable to the merchandise, as well as obligations non-tariff in order for the authority to have sufficient elements to verify that the import or export complies with customs legislation, such as:
In fact, it is extremely important that importers and exporters, and their suppliers, keep an exhaustive control of the merchandise that is imported and exported, since the tax payable depends on this, as explained below.
The above has the following consequences: i. payment of the foreign trade tax (according to the tariff classification given to the goods); ii. countervailing duties (which are defined as a additional cost The tax is levied on imports when goods are purchased at a much lower price than what could be offered in the country of origin, which can harm local industries by competing unfairly; however, this tax is inapplicable when the country has entered into international treaties granting preferential tariff treatment;) iii. 16% value added tax (although there are exceptions); iv. and, if applicable, the corresponding excise tax on products and services.
In addition to the foregoing, compliance with regulations and restrictions must be non-tariff as well as customs clearance formalities.
However, in the case of an import temporary, In principle, no tax should be paid, as long as such importation is subject to a term and purpose, complying with the requirements set forth in the Customs Law. There are terms ranging from one month to ten years in very special cases.
However, what happens when the merchandise exceeds the term provided by law? This could be very burdensome for the taxpayer, since it will be considered that the merchandise is illegally in the country, which empowers the authority to assess all the taxes mentioned above, as well as penalties that could exceed 100% of the commercial value of the merchandise.
In the event that the merchandise is temporarily exported for the purpose of having modifications, improvements or additions made to it, only the general import tax corresponding to the value of the raw or foreign materials incorporated, as well as the price of the services rendered abroad for such transformation, in accordance with the tariff classification of the returned merchandise, must be paid. VAT and IEPS, if applicable, must be added to the above.
In summary, there is an accumulation of tax obligations in foreign trade matters, which, in turn, allows the customs authority not only to determine the corresponding omitted taxes, but also to impose fines and penalties for considering that there is non-compliance with tax obligations. tariff and non-tariffIt is worth mentioning that in most cases, Fines are determined according to the 70% and 120% of the commercial value of the merchandise, being the highest in tax matters.
In this sense, for a business to be profitable and successful in the import and export of its products or services, it is essential to know the corresponding tariff rates; all the non-tariff obligations that must be met; the necessary documentation to prove the destination of the merchandise; to know in which cases it will not be obliged to pay this tax; among other issues.
Thus, in the event of any requirement by the customs authority, before or during the exercise of its verification powers, it will be possible to respond promptly and expeditiously, in order to avoid the determination of a tax credit, where there is already a final determination of the taxes omitted in foreign trade matters (tariffs, countervailing duties, VAT and, if applicable, IEPS), penalties, updating, fines and surcharges. In this last case, the authority will also be empowered to to carry out precautionary seizures of the merchandise imported or destined for export, as well as the means in which they are transported, regardless of the other applicable sanctions, including criminal liability for tax offenses that could be attributed to the company, the administrative body, partners or shareholders.
It should be noted that, just as there are a myriad of obligations for taxpayers engaged in importing and exporting, there are also tax incentives and exemptions provided for in domestic laws, as well as those derived from international treaties to which Mexico is a party.
Nowadays, it is essential to have good legal advice in foreign trade matters, not only to prevent the authority from determining penalties and omitted taxes, but also to make use of all possible benefits to increase the profitability of the company. On the other hand, if your company is currently subject to an audit procedure, a good legal defense is key to prevent the authority from exercising its collection powers, which would inevitably affect your company's operations.
