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TRANSFERRING WEALTH? IT’S A MATTERTRUST. OF TRUST.TRUST.TRUST. TRUST.TRUST. GUIDE GUIDE TO GUIDE DOING GUIDE TO TODOING BUSINESSTO DOING DOING BUSINESS BUSINESS IN BUSINESS NORTH IN INNORTH AMERICAINNORTH NORTH AMERICA AMERICA AMERICA GUIDE GUIDE TO TO DOING DOING BUSINESS BUSINESS IN IN NORTH NORTH AMERICA AMERICA VOLUMEVOLUME TWOVOLUMEVOLUME: TWOMexico TWO: TWOMexico: Mexico: Mexico VOLUMEVOLUME TWO TWO: Mexico: Mexico TRANSFERRING WEALTH? IT’S A MATTTRUST.ERTRUST. OFTRUST. TRUST.TRUST.TRUST.TRUST.TRUST. TRUST.TRUST.TRUST.TRUST. GUIDE GUIDE GUIDE TOGUIDE TOGUIDE GUIDEDOING GUIDEDOING TOGUIDE TO TODOING TODOING BUSINESS TODOING BUSINESS TODOING DOING DOINGBUSINESS BUSINESS BUSINESS BUSINESSIN INBUSINESS NORTHBUSINESS NORTH IN IN INNORTH INNORTH AMERICA NORTH IN AMERICA NORTHIN NORTH NORTHAMERICA AMERICA AMERICA AMERICA AMERICA GUIDEAMERICA GUIDE GUIDE GUIDE TO TO TODOING TODOING DOING DOING BUSINESS BUSINESS BUSINESS BUSINESS IN IN NORTHIN NORTHIN NORTH NORTH AMERICA AMERICA AMERICA AMERICA Doing Business In North America VOLUMEVOLUMEVOLUMEVOLUME TWOVOLUME TWOVOLUMEVOLUME:VOLUME TWOMexico: TWOMexico TWO TWO: Mexico:TWO Mexico:TWO Mexico: Mexico: Mexico: Mexico VOLUMEVOLUMEVOLUMEVOLUME TWO TWO TWO TWO: Mexico: Mexico: Mexico: Mexico Introduction The information in this booklet provides an overview of the fundamental legal considerations to be addressed when acquiring or establishing a business in Mexico. The content is intended to summarize some of the pertinent provisions which apply and is not intended as specific legal advice. Readers are well advised to seek the counsel of specialist professionals in Mexico to advise on compliance with the laws and identify the many planning opportunities. Visit our website at millercanfield.com for additional information, updates, and newsletters. i Table of Contents 1. Overview....................................................................................................................1 2. Types of Businesses and Operations..........................................................................2 3. Establishing a Business..............................................................................................5 4. IMMEX and Shelter Operations ................................................................................7 5. Labor and Employment..............................................................................................10 6. Immigration................................................................................................................16 7. Customs......................................................................................................................17 8. Federal Income Tax and Other Taxes........................................................................19 9. Payments to Foreign Persons.....................................................................................24 10. Financing the Mexican Operation..............................................................................25 11. Securing Assets in Mexico…………………………………………………………..26 12. Economic Development Incentives ...........................................................................28 13. Product Liability ........................................................................................................30 14. Litigation....................................................................................................................30 15. Antitrust .....................................................................................................................35 16. Environmental Laws ..................................................................................................37 17. Dissolving a Business ................................................................................................39 18. Meet the Law Firm.....................................................................................................41 1. Overview Introduction Unlike the U.S., Mexico has a civil legal system, in which the vast majority of its laws are codified. The legal system is based on Roman law and similar to European legal systems. Although many practices and legal concepts are similar to the U.S., foreigners doing business in Mexico need to be aware of some significant differences. Most of the laws that govern business and commerce are set forth in the Commercial Code and the Civil Code, and are national in scope. Certain local differences may apply in some areas of the law, but, in general, Mexican laws apply across the entire country. Similar to the U.S., Mexico’s governmental framework has an executive, a legislative and a judicial branch of government. It is also a federal system, with the federal government and the various states responsible for different aspects of public and private life. However, because of its unique history, Mexico’s federal government is much more centralized and controls and regulates more legal and economic activity than in the U.S. In addition, state and municipal authorities must complete certain legal formalities. Legal practices are quite formalistic. For example, the form of contracts can be quite important. Certain types of documents must be prepared by a Mexican notary and executed in person, and then formally filed with public registries. Notary publics are licensed attorneys and appointed officials that serve an important function in Mexico than notaries in the U.S., have stringent legal requirements with which they must comply, and in certain cases must be used in order to effectuate documents or transactions. Many forms and permits must be filed with various agencies in Mexico City, which can sometime lead to delays. The parties and persons executing a legal document must have a valid power of attorney to do so, and this can also be a cause for delay. Foreign business people doing business in Mexico for the first time are often unprepared for the level of formality required both in normal commercial affairs and in dealing with government agencies. An understanding of this aspect of doing business in Mexico will help in planning business activities there. The central government and its agencies are empowered with enforcing laws. Compared to the U.S., lawsuits are relatively rare, slow and expensive. With very few exceptions, there are no juries in Mexico for either criminal or civil cases. Judges are both fact-finders and decision makers in a legal dispute, and the American tradition of public trials applies rarely and under different rules in Mexico. The new National Criminal Procedure Law, which provides for public trials in addition to other similarities to the U.S. procedural criminal system, is in the process of enforcement and is expected to be fully enforceable by June 18, 2016, repealing all of the state criminal procedural laws currently enforced. Although considered historically stable when it comes to legal framework, Mexico is in the process of “rebooting” many of its laws and legal structures and restructuring key industries DOING BUSINESS IN MEXICO 1 within the country. In addition to the aforementioned changes to the criminal system, major recent reforms include the labor reform approved in 2012 and the following reforms that stem from the 2013-2018 National Development Plan (encompassing amendments to current laws or the constitution, repeals and new bills): Tax Reform Energy Reform Financial Reform Telecommunications Reform Education Reform Antitrust Reform 2. Types of Businesses and Operations a. Overview When conducting business in Mexico, foreigners should bear in mind that business entities are formed in accordance with the General Law of Commercial Enterprises, which is national in scope. The choice of the type of legal structure depends on many factors discussed below. Legal and financial advisors should be consulted in making this decision. Some key issues to consider in arriving at an appropriate arrangement include: Limited liability protection and risk management Funding and financing Public image Income and other taxes Repatriation of profits and capital b. Forms of Entity The two most common forms of entities in Mexico are: 1. Sociedad anónima (S.A.) or Sociedad anónima de capital variable (S.A. de C.V.): stock corporations with either fixed or variable capital 2. Sociedad de Responsabilidad Limitada (S. de R.L.) or Sociedad de Responsabilidad Limitada de capital variable (S. de R.L. de C.V.): limited liability company Other forms of business entities include: Sociedad en Nombre Colectivo (general partnership), Sociedad en Comandita Simple (partnership with limited and unlimited liability partners), Sociedad civil (civil partnership, for professional practitioners), Asociación en participación (joint venture contract), Sucursal de sociedad extranjera (branch of a foreign corporation), Comerciante - Empresa de persona física (sole proprietorship), and Asociación civil (civil association, for charitable and other nonprofit corporations). Foreign companies and individuals may own any portion or all of the equity of a Mexican company, with the exception of companies engaged in activities or acquisitions reserved or DOING BUSINESS IN MEXICO 2 subject to specific regulation, such as banks, credit unions, oil and gas, electricity, postal services, and other governmental functions. c. Sociedad anónima The legal amount of capital for a S.A. (stock corporation) is fixed by the charter documents of the entity and any changes to the fixed capital require amendments to the