Setting up a business in Mexico

To set up a business in Mexico, you will probably need to hire an attorney and/or an accountant, who will be able to guide you through the process and help you determine the best corporate, accounting and tax structure for your company.

You should negotiate with your attorney or accountant what steps are included in their fee and determine who will be responsible for out-of-pocket expenses such as notarial and registration fees. If you use the services of both and attorney and an accountant make sure that they coordinate to avoid duplicity or oversight.

Ownership of Equity

Under the Foreign Investment Law of 1993 and the North American Free Trade Agreement (NAFTA), most economic activities in Mexico, whether in manufacturing or services, are open to 100 percent participation by U.S. and Canadian investors.

Only a few areas are completely restricted or limited to minority participation. Some areas which previously had been reserved to the government, especially in the infrastructure sectors, are now being opened to private investment, and certain areas such as financial services which had been reserved to Mexican investors are now available to foreign investors as well.

Common Types of Companies

Limited Liability Stock Corporation (Sociedad Anónima, S.A.)

A sociedad anónima must have at least two (up to an unlimited number) of share holders whose shares are transferable by endorsement. The minimum fixed capital needed to establish a sociedad anónima is $50,000.00 pesos. For the option of variable capital, an S.A. de C.V. (capital variable) can be established with both fixed and variable portions of capital as long as the total never falls below $50,000.00 pesos.

Limited Liability Company (Sociedad de Responsabilidad Limitada, S.R.L.)

A sociedad de responsabilidad limitada is similar to a closed corporation in the United States. The minimum capital is only $3,000.00 pesos, but the company can only have up to 50 partners.

Civil Enterprise (Sociedad Civil, S.C.)

Service providers, such as lawyers and accountants, use this company structure, which has no minimum capital requirements. There are no limits on the number of partners in a sociedad civil, but each is jointly personally liable for obligations and debts.

Branch (Sucursal)

A U.S. company can open a branch in Mexico with the approval of the National Commission of Foreign Investment (Comisión Nacional de Inversiones Extranjeras, CNIE) and the Secretariat of Foreign Affairs (Secretaría de Relaciones Exteriores, SRE). The branch must also be registered with the Public Registry of Commerce (Registro Público de Comercio).

Subsidiary (Subsidiario)

Unlike a branch, a subsidiario is actually a separate legal entity from the parent company. Establishing a Mexican subsidiary shields the parent company from liability.

Company Formation

Once the company type and ownership issues have been resolved, you will need to follow these steps:

Corporate Name

You will need to select a corporate name and register it with SRE. Before SRE grants a permit for the name, it will check that no identical name or one that might lend to confusion is already registered.

Proforma Agreement

Under Mexican Law, your company will have to enter a proforma agreement, whereby any non-Mexican shareholder shall be deemed to agree to be bound by Mexican laws and not invoke the diplomatic protection of his government.

Charter and By-laws

An attorney can help you prepare these documents that spell out corporate governance, corporate purpose, duration of existence, domicile, capital stock provisions, management powers and special provisions for liquidation.In addition, you will need to decide how capital will be subscribed, how the Board of Directors and officers will be appointed and what powers will be specifically granted to individuals. Also, it is regular practice in Mexico to grant powers of attorney.

The charter and by-laws must be taken along with the permit from SRE to a notary public (notario publico) to formalize the incorporation. There are far fewer notary publics in Mexico that in the United States, so this step may take from 10 days to a month, depending on the notario’s work load and his relationship with your attorney.

If the incorporating shareholders are non-Mexican individuals, they may legally sign the charter if they hold an FM-N, FM-2 or FM-3 visa ( see Immigration section). If some of the shareholders are corporate entities, an individual with power of attorney for these entities must sign the document.

Tax Registration

Immediately after incorporation, you must register the company with the Federal Taxpayer’s Registry (Registro Federal de Contribuyentes, RFC) at the Secretariat of Finance and Public Credit (Secretaría de Hacienda y Crédito Público, Hacienda). Your company’s RFC number is necessary for all tax and accounting records, and it must be printed on all company invoices.

Registry of Commerce

After the notary public issues a notarial transcript, he usually handles registration with the Public Registry of Commerce (Registro Público de Comercio). If your company is not registered, it may create personal liability for shareholders and managers.

Importer’s Registry

If your company will be doing any foreign trade, such as importing raw materials, components or finished products, you will need to register with the Importer’s Registry (Padrón de Importadores) at Hacienda. This step will take approximately 10 to 15 days, and the whole procedure is handled through the mail.

Import/Export Programs

Permits for maquila programs, programs for temporary import for subsequent export (programas de Importación Temporal Para la Exportación, PITEX) or other similar import/export programs can be obtained from the Secretariat of Commerce and Industrial Promotion (Secretaría de Comercio y Fomento Industrial, SECOFI).

Foreign Investment Registry

Registration with the Foreign Investment Registry (Registro Nacional de Inversiones Extranjeras) is normally handled by your attorney, who will need information about your shareholders, domicile and company directors.

Additional Required Registrations

• The corresponding Chamber of Commerce or Industry for your business. (Under Mexican law, every company must belong to one of these chambers.)
• Mexican Institute of Social Security (Instituto Mexicano del Seguro Social, IMSS)
• Employee Housing Institute (Instituto Nacional del Fondo de la Vivienda para los Trabajadores INFONAVIT)
• Retirement Insurance Fund (Sistema de Ahorro para el Retiro, SAR)
• National Institute of Statistics, Geography and Information (Instituto Nacional de Estadística, Geografía e Infomática, INEGI)

Starting Operations

Once your company has been formed in Mexico, you may start operations. Keep in mind these requirements.

Zoning

In most urban areas you will need to obtain a zoning permit from municipal authorities which identifies land use. In the metropolitan area of Mexico City, many industrial activities are restricted, and business operations in residential areas are strictly controlled.

Environmental Regulations

To carry out manufacturing activities, you must first submit an environmental impact statement with the Secretary of the Environment, Natural Resources and Fisheries (Secretaría de Medio Ambiente, Recursos Naturales y Pesca, SMARNP). Your company may also need special permits for air or noise emissions, water discharge or solid waste.

Health or Sanitary Licenses

Any activities that involve food preparation or the manufacture of medicines or health products require licenses from the Secretariat of Health (Secretaría de Salud) ad local health authorities.

Employment Issues

Once you select your personnel, have labor contracts prepared. If no contract is executed, Mexican law would deem that a relationship exists and supplementary rules would apply.

Immigration

Any non Mexican must secure a business visa to work legally in Mexico. Certain categories of both non-resident and resident visas – obtained through Mexican consulates abroad – allow you to receive income in Mexico.Citizens of the United States and Canada can also enter Mexico with an FM-N (NAFTA) visa, which they can get immediately at the point of entry. This visa allows you to work in Mexico for up 90 days on behalf of a U.S. or Canadian employer as long as you are only receiving compensation outside of Mexico.

A tourist visa (FM-T) is never legitimate for conducting business in Mexico.

Article presented with the kind permission of the American Chamber of Commerce in Mexico