As discussed in our April 12, 2017 Alert, Special Economic Zones (“SEZ”) are designated geographical areas in Mexico, in which business and trade regulations differ from those that prevail in the rest of the country. SEZ intend to boost economic growth and enhance public services in Mexico’s underdeveloped areas through the promotion of local and/or foreign direct investment, by providing tax benefits, customs and business facilitation measures, among others.

President Enrique Peña Nieto recently announced and published in the Mexican Official Gazette three Decrees that create the first three expected SEZ (i.e., i) Puerto Chiapas, located in Tapachula, Chiapas; ii) Lázaro Cárdenas-La Unión, located at the Port of Lázaro Cárdenas, in the State of Michoacán; and iii) Coatzacoalcos, located in the metropolitan zone of Coatzacoalcos, in the State of Veracruz).

With the SEZ expected to initiate operations on or before November 30, 2018, the most relevant benefits for Mexican individuals and entities and foreign investors with a permanent establishment for tax purposes in Mexico (“Beneficiaries”) are as follows:

1. Income Tax: The Beneficiaries will obtain a 100% discount of the income tax generated from activities performed within the SEZ for the first 10 years and 50% for the following 5 years. This benefit needs to be applied on a yearly basis and may not be carried forward.

An additional benefit related to income tax is an allowable deduction of 25% of the expenses paid for training employees working and located within the SEZ.

It should be noted that in order to obtain these benefits, the Beneficiaries will be bound to maintain in the SEZ at least the same number of employees as originally recorded with the Mexican Social Security Institute (“IMSS”) for such SEZ.

An additional consideration that may be worth noting is that the Beneficiaries operating under an IMMEX or maquiladora program (i.e., temporary duty free imports of inputs to transform them into end products for exportation), will not be able to apply for the safe harbor benefit provided under Articles 181 and 182 of the Mexican Income Tax Law. In other words, it is most likely that a resident abroad for tax purposes who is a Beneficiary, will be deemed to have a permanent establishment in Mexico for its IMMEX operations, since the safe harbor benefit generally provides that a company will not be deemed to have a permanent establishment for tax purposes in Mexico to the extent such company complies with the requirements mentioned under the aforementioned provisions.

Notwithstanding the foregoing, such company will have the income tax discount mentioned above, which should compensate for the lack of access to the safe harbor benefit at least during the first 10 years of operation within the SEZ.

2. Social Security Tax: Beneficiaries will have a tax benefit consisting of an income tax credit equivalent to 50% of the employers’ social security contributions made for health and maternity insurance during the first 10 years of operation and 25% for the following 5 years.

In those cases where the tax credit mentioned above is greater than the income tax in a given fiscal year, the Beneficiary will be entitled to the corresponding refund.

3. Value Added Tax (“VAT”): Individuals and entities that are residents in Mexico for tax purposes, and are located outside of the SEZ, will apply a 0% VAT rate to services provided to companies located within the SEZ or to the sale of goods to companies established therein.

Also, for certain specific cases, companies established within a SEZ that pay VAT for services or purchase of goods, will be generally able to request a tax refund for said VAT paid, provided that such services or goods are used for the benefit of the activities performed within the SEZ.

Goods transferred from a SEZ to the rest of the Mexican Territory will be subject to VAT. However, certain exemptions may apply, for instance, transfer of machinery and equipment for repair will be exempted from VAT to the extent such machinery and equipment is returned to the SEZ within the year it was transferred. Also, goods transferred from the SEZ for exportation purposes will not be subject to VAT.

Sales, leases and services provided between and amongst companies located within a SEZ, or located in other SEZ will not be subject to VAT.

4. SEZ as a customs regime: The publications undertaken in the Mexican Official Gazette created a special customs regime consisting in the introduction of foreign or Mexican goods for a period of 60-month into a SEZ, to be used in authorized activities within the SEZ. The 60-month period mentioned above will not be applicable to the introduction of goods such as machinery and equipment to be used within a SEZ, which may remain within such SEZ as long as the specific SEZ authorization remains in force.

Goods introduced to the SEZ customs regime may be removed from it to be destined either to definitive importation, definitive exportation, return abroad, re-introduction to the rest of the Mexican territory, or imported into Mexico on a temporary basis.

Likewise, goods introduced under the SEZ customs regime will neither trigger payment of import duties nor be subject to non-tariff restrictions and regulations. Certain exemptions will apply, as it occurs with non-NAFTA materials used in the production of NAFTA originating goods exported to the USA or Canada, for which introduction importation duties shall be paid.

Extraction of goods from the SEZ customs regime for its introduction into Mexican territory will not be subject to Excise Tax on Production and Services (“IEPS”).

5. Local Incentives and Administrative Facilitation Measures: the incentives and facilitating measures to be granted by local governments will have to be enacted on or before March 20, 2018.

It may be worth noting that domestic and foreign investment is welcomed in the SEZ, provided that the corresponding authorization is obtained.

It should also be noted that specific accounting and compliance control provisions will be applicable to companies located within the SEZ.

Gardere’s International Trade Group will continue to monitor developments concerning SEZ in Mexico in order to inform about them as they occur.