At a meeting held on August 28, 2013, the Second Chamber of the Supreme Court of Justice of the Nation (the SCJN) declared the unconstitutionality of article 33 of the Decree for the Promotion and Operation of the Maquiladora Export Industry (IMMEX Decree), as it considered that the Congress of the Union has never authorized the Federal Executive to set discriminatory distinctions among the maquiladora companies.
Please bear in mind that article 33 of the IMMEX Decree limits the access to tax benefits for those companies that have a " maquila operation" and, in principle, it excludes service maquiladoras.
As a result of such resolution, the maquiladora under amparo protection may continue to enjoy the incentives relating to Income Tax (ISR) and Business Flat Tax (IETU) matters that are obtained by the industrial maquila companies engaged in "transformation" activities. That is to say, they may perform their obligations in transfer pricing matters in the same manner industrial maquila companies do, and even reduce the income tax base and receive a tax credit to be applied against the IETU for the fiscal year (benefits contained in various Presidential Decrees dated October 30, 2003 and November 5, 2007), which results in the fact that they have an effective tax rate equal to 17.5%.
Although the criterion described herein is not jurisprudence that is obligatory for all courts, it does provide us with an important precedent from the Second Chamber of the SCJN. For this reason, we recommend that service maquiladoras analyze their particular situation in order to determine the feasibility to use the tax incentives for ISR and IETU contained in the decrees dated October 30, 2003 and November 5, 2007.
In this sense, it becomes indispensable to analyze each case in particular to determine the application of this precedent and, if appropriate, the possibility to implement a strategy that ensures a safe application.