Impact of the corporate structure of the company and its update in its RFC for the request of standards of specific sectors.
In the Import Export area, information related to the corporate structure of the company is often not available, as well as the changes within it and the updates derived from said movement, since generally all control of this information is "competent" to the accounting or finance area, in most cases the foreign trade area, does not have at its disposal the documents referring to constitutive acts, assembly minutes, which modify the people they represent and control the company, it is important to emphasize that the fact of being unaware of this issue, may have the consequence of hindering your requests for SPECIFIC SECTOR REGISTERS, which, in view of the mobility of the customs operation, most of the times have the character of the urgent ones
One of the most important requirements that is required for a request for sectoral registers, regardless of whether it is import or export, is the one indicated both in the procedure file 6 LA (IMPORT SECTORS) and in 141 LA (IMPORT SECTORS). ), is the one related to the partners and legal representatives, same files that indicate the following:
5. In the case of goods listed in Sectors 10 "Plastics", 11 "Rubber", 12 "Wood and paper", 13 "Glass", 14 "Iron and Steel" and 15 "Aluminum" of Section B, of Annex 10 of the General Rules of Foreign Trade, in addition to what is established in numeral 1, you must attach the following:
a) In a plain text file (txt), a list with the full name and the valid RFC code of the partners, shareholders and current legal representatives of the company, in accordance with what is established in the minutes notarized before a Notary Public; who must be registered and active before the RFC. provide your information in terms of the procedure file 295/CFF "Request for updating of partners or shareholders" of Annex 1-A of the Miscellaneous Tax Resolution in force. When the information of the legal representative is not updated in the RFC, you may submit a case for clarification, with the label "Legal Representative PISE" attaching the documentation that proves your legal representation with the requirements set forth in the tax provisions.
A requirement as simple as a list might seem, can become very complicated due to ignorance of the shareholding structure and also since what the authority indicates in the request is very vague, since it reviews points that are not included in the Explicitly, this can result in refusal of said requests; which could hinder the operation of the company, by preventing the entry of urgent merchandise, the main incidents that can occur are the following:
MAIN INCIDENTS.
• The person in charge of the foreign trade area does not know the shareholding structure or under whom the domain power rests, so that sometimes all the minutes and modifications made by the company are not available, which makes it difficult to collection of the data or, where appropriate, they are placed erroneously due to the existence of a modification subsequent to the date of the last record that the person in charge of Import Export has.
• The accounting area did not submit procedure 295/CFF "Request to update partners or shareholders" or, if applicable, the subject of the legal representatives of the company has not been updated in the RFC through the clarification procedure "Legal Representative PISE”, which is important to mention in case it is outdated and presenting that update, it can take more than 90 days to be carried out by the authority, which in addition to being grounds for refusal is a situation that will lengthen the procedure quite a bit.
• In the case of partners abroad, the 96 format has not been submitted for the previous year, which has to be submitted every year for the first 3 months, and sometimes the accounting area has the idea that it is only submitted once , but the same is presented each fiscal year, not presenting it brings with it the fulfillment of said obligation, which is also a cause for refusal.
• In the case of partners who are taxed in national territory, have a negative opinion, are not registered in the RFC under any regime, or, if applicable, do not have the "dividend income regime" registered in their RFC derived from their role as partner of a company that reviews dividends of this.
• Some of the company's legal representatives are not in compliance with their tax obligations and therefore have a negative compliance opinion.
• The company has an external legal representative who does not work for the company, and he himself is the legal representative of several legal entities, and does not have the corresponding regime for "professional services", the authority determines that it is not in compliance with its obligations, therefore, we do not meet that requirement.
It is important to highlight the repercussion that an apparently simple procedure can generate, not having a correct knowledge of the shareholding structure of the company, as well as the presentation of the corresponding notices, especially since it is a subject that generally foreign trade area is unaware or, in its case, does not give it the pertinent importance due to the same ignorance.
Therefore, it would be important to consider the following recommendations:
• Have a control in conjunction with the respective area, which could be through a shared file, where the constitutive act and all the modification acts that the company has had are contained, in case of a modification, to determine when it would have a notice. .
• Verify that the corresponding area submits the notices corresponding to Format 96 and 295/CFF, requiring them either every year with format 96 or each time 295/CFF applies, or in the event that the corresponding area demarcates from the presentation of said notices, foreign trade commit to carry them out to be in compliance.
• Verify month after month that our legal representatives and national partners are in compliance with their tax obligations, requesting their compliance opinion on a monthly basis to verify that it has a "positive" status.
• In case you need to urgently request “SPECIFIC SECTOR REGISTERS”, it is essential to ask the national partners for their proof of fiscal situation to verify that they have the “dividend income” regime.
We inform you that this information provides general information based on the current laws and regulations, and in case of an individual report, be sure to receive advice from an expert before handling it.
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