On September 23/2020, the Ministry of Economy through the General Directorate of Trade Facilitation and Foreign Trade, belonging to the Undersecretary of Industry, Trade, and Competitiveness, issued official letter No. 414.2020.2288 through which it announced the "Criterion for registering the address of an IMMEX plant, warehouse or storage facility" (Criterion).
This Criterion aims to resolve various concerns regarding starting the process to join the IMMEX program or maintaining it, detailing the fulfillment of various requirements and reiterating the importance of registering a domicile, its delimitation, and independence, whether or not it belongs to the taxpayer.
Although there are various options in which an IMMEX authorized company may be operating; that is, through an owned or leased domicile, this Criterion sets out the requirements that companies must meet:
Requirements to share an address.
In this regard, the Criterion mentioned above indicates that it is possible for two companies with the IMMEX program or one or more companies in the said program, even with other companies that are not in the program, may share an address, provided that they have legal possession of the property and the facilities are physically delimited from each other and are independent. The above translates into the following definitions:
i. Delimitation: It is mentioned that the area will be understood as delimited when in the document which proves possession of the property (for example, a contract), the dimensions of the occupied surface are established, and the physical division of the areas utilizing durable elements such as fences, walls, cyclonic mesh, panel and vinyl tapes adhered to the floor (only when the process to be carried out is related between the companies registered in the same address) are visible.
ii. Independence: The place must have an entrance, exit, and a loading and unloading area exclusively for the company, without any relationship or dependency between them.
Requirements for leasing or subletting domicile
It is reiterated that the lease, sublease, or commodate contract, which certifies the property's legal possession, must document that the signatories have the capacity and powers to enter into them. Likewise, it is restated that they must have a mandatory minimum term of one year and a validity of at least eleven months from the date of the submission of the application for registration to the IMMEX program.
When subletting, it is important to demonstrate that the property can be fully or partially sublet.
Specifications for the Certification of Facts requirement.
In this recent pandemic time, one of the most complex requirements to submit the application for registration in the IMMEX Program is, without a doubt, the certification of facts issued by a notary public, due to the fact that, although the notary public can go to the offices, these, in many cases, are closed derived from the partial or total cessation of operations, or simply due to the absence of employees in them, which undoubtedly hinders their work.
However, this Criterion restates that this requirement is mandatory and that also in some instances, such as when the production process requires the participation of two or more companies in the same domicile, and as a result of this, there is a non-compliance with the independence of the property, it will be necessary that this situation be mentioned in the certification of facts, indicating the material inability to comply with said independence, attaching sufficient photographic evidence.
Address registration for companies in the industrial modality of the IMMEX program.
It is established that companies in the industrial modality of the IMMEX program requiring to register addresses with the sole purpose of using them as warehouses will be able to prove their legal possession through a contract for the provision of storage services in which they must manifest and prove specific requirements.
Application of the Criterion.
It is established that, for the application of the Criterion outlined in this bulletin, companies must indicate the following in their request: "This request is made in accordance with official letter 414.2020.2288 issued by the General Directorate of Trade Facilitation and Foreign Trade."
Finally, it is important to mention that the points outlined throughout this bulletin not only apply to the applications for registration to the IMMEX program but also to the companies with the program in force. Likewise, the importance of constant verification of the state of the tax domicile before the Tax Administration Service (located status) and in the case of change, cancellation, or registration of a different one, the notice before the agency mentioned above and the Ministry of Economy.