24/Ago/06 10:19
Hola a todos....una duda..
Una empresa mexicana esta importando software para su venta y pagando los impuestos de importación. Y lógiicamente estamos pagando a los proveedores dichas importaciones..... Tengo que hacer alguna retención a los proveedores por dichas compras??? mi duda surge porque uno de los socios pidio información a la embajada y le mandaron los siguiente,,, . UNA DISCULPA PERO ESTA EN INGLES (por los que no sabemos ingles)
Retention Tax and Customs Declaration for Software Sales
Retention tax and withholding tax are two terms to speak of the same issue. Retention or Withholding Tax is referred toa percentage that is taken from the final sales invoice. This tax is to avoid double taxation when there is a financialtransaction between two companies of different nationality. Mexico, as other countries, applies a certain tax equivalentto a percentage of the invoice to compensate each company being taxed by its own fiscal authorities. In Mexico thispercentage is 25%, but under NAFTA any transactions between an American and Mexican company will generate aretention tax of 10%. Additionally, this retention tax only applies to certain goods and services, such as software sales.
Retention tax and withholding tax are two terms to speak of the same issue. Retention or Withholding Tax is referred to a percentage that is taken from the final sales invoice. This tax is to avoid double taxation when there is a financial transaction between two companies of different nationality. Mexico, as other countries, apply a certain tax equivalent to a percentage of the invoice to compensate each company being taxed by its own fiscal authorities. In Mexico this percentage is 25%, but under NAFTA any transactions between an American and Mexican company will generate a retention tax of 10%. Additionally, this retention tax only applies to certain goods and services, such as software sales.
Concerning software sales made by an American company to a Mexican company, the Mexican company is required to retain or withhold 10% of the invoice value. The Mexican company is obligated to declare or file this amount to the fiscal authorities. In Mexico, companies declare/file taxes monthly. Thus, the Mexican company does not keep this money, but pays it to the fiscal authority.
Once this has been done, the Mexican firm sends an original and signed fiscal form with information of the transaction to the American software seller, and keeps a copy for when it declares the 10%.
Now the American company has an invoice for the total amount of the sale, which is equal to a deposit for 90% of the invoice, and the fiscal form for the remaining 10%. At this point both companies have complied with the fiscal requirement of the tax retention of 10%. The previous meaning that the Mexican company paid the full 100% of the invoice, but deposited 90% to the American seller and paid the other 10% to the Mexican fiscal authority.
What happened to the 10% the American company didn't receive?? The 10% is now in the Mexican fiscal authorities hands, but when the American company files its taxes it will declare a positive amount of 10% of its sale to the Mexican company, having the original fiscal form to prove it. It will then obtain a tax return or credit from the IRS for such amount. So, the Mexican fiscal authority kept the 10% and the IRS paid it back to the American company, but on a later date of the original transaction (when the American company files its taxes).
This procedure works the same when a Mexican company sells software to an American firm, but this situation the IRS keeps the 10% and the Mexican fiscal authority returns it to the Mexican firm later when taxes are filed.
All the above explanation is to say that, yes... the American it’s given back the 10% of the retention tax the Mexican company retained (withheld) on a later date.
On another issue, it is of our understanding that these services are not required to pay a retention or withholding tax. I will ask Luis Vera this specific issue.
I will send you an IMI published in our website that speaks of software sales and retention tax, as well as the fiscal form that must be used in these transactions. I am at home and these documents are in my office PC.
• TAXATION
The sale and exportation of the equipment (hardware) as such, is not subject to any Mexican withholding tax. Also, if the product is of U.S. origin, it is exempted of import duties.
The software of the system will be subject to a Mexican withholding tax of a 10% rate, as per the Mexican U.S. Treaty to avoid double taxation (UNDER THE Tax Law is 25%).
• TELECOMUNICATION ISSUES
As of this date, under the Mexican Telecommunications Act and the Rulings of the Mexican Federal Telecommunications Commission are in the sense that the service of VOIP is not permitted with the sole exemption of Telco’s which have been granted with concession from the FTC. Otherwise, the FTC may confiscate the equipment and impose fines.
www.buyusa.gov/mexico/en www.export.gov IT & Telecom Trade Americas / Mexico However, since VOIP systems are growing quickly in the global market place, it is expected that such service will
be approved by the FTC soon, after consulting with the Mexican and local Telco’s.
Regarding to my previous report on the above-referred matter, I would like to make a clarification to the telecommunications issues:
The current restriction on the VOIP telecommunication service? does not apply to the manufacturer of the equipment or system? Nor to a private company using the VOIP technology for internal purposes only. The restriction is for companies marketing telecommunication services using the VOIP technology, obviously advertising a substantial reduction in the international traffic tariffs.
The rationale for the above is due to the fact that TELMEX and the other Telcos carriers think that VOIP incurs in an unfair competition for those, which intend to market long distance services, without the proper authorization from the Mexican FTC.
1. PAYMENTS AT THE MEXICAN CUSTOMS
Mexican Customs Authorities are only entitled to collect customs duties and related levies such as VAT, etc. Therefore, they are not authorized to collect any income tax retention (withholding tax).
As a matter of fact, under the Mexican Income Tax Law, the only obligated to make retentions is the Mexican tax payer which as a consequence of a purchase or other international transaction should remit payments abroad when the source of the income is located within the Mexican territory and in the events specifically provided in the Mexican Income Tax Law and under international tax treaties (i.e.: royalties).
In spite of the above, it could be advisable to state in the customs commercial invoice, the description of the items (the products, equipments, etc. only). Post-sales activities, such as training, installation and maintenance can be billed to the customer in a separate invoice.
2. TAX RETENTION - MEXICAN WITHHOLDING TAX.
As indicated above, the retentions of applicable taxes should be made by the local customer (a Mexican resident) who remits payments abroad.
The payment of services such as training, installation and maintenance are not considered royalties, but technical assistance. Such technical assistance as a service in general, is subject of an income tax retention at the rate of 25%.
However, please notice that under the current Mexican US Treaty to avoid double taxation and the Tax Guidelines of the OECD (sections 11.1 - 11.13), it is established that no retention should be affected by OECD country members, such as Mexico.
3. CONCLUSIONS
In summary, for training, installation and maintenance services, the Mexican customs can not collect any retention.
Under the US Treaty to avoid double taxation and in particular the tax OECD Guidelines, exempt such items from any tax retention whatsoever.
Since certain tax retention provisions are subject of interpretation by the Mexican IRS authorities and in particular those related to international tax treaties, if required, we can request from the IRS a written opinion confirming that services provided by a foreigner resident, member of a tax treaty (like the US) and in particular, training, maintenance, etc., services are exempted from any tax retention in Mexico.
Software: Retention and Double Taxation
In Mexico Software is considered a copyrighted material and the purchase of a software license is considered as aroyalty payment. According to the terms of article 200 of the Income Tax Law (Ley del Impuesto Sobre la Renta –LISR), such payments are subject to a retention rate of 25% of the total amount of the transaction.
It’s important to note that the 25% rate is reduced to 10% by Mexico’s agreement on double taxation with the US.Thus, the retention rate for software license payments is 10% and NOT 25%.
This particular law is unknown to many U.S. firms exporting software, as well as to many Mexican companies importinga wide variety of programs. One must remember that the value is based not on the media in which the softwareprogram is recorded, but on the intellectual property for the development of such programs. Thus, it is clear thatretention is observed under the Mexican Fiscal Law.
Según lo anterior a la compra de software le tengo que hacer una retención , y no la estoy haciendo....pero tengo dudas........
Y al soporte técnico no hay que hacer retención (más dudas)
Alguien me puede ayudar.............y sus fundamentos...
MLUNA.
Comparte tus conocimientos. Es una manera de lograr la inmortalidad.
