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국제법률연구원(ILRI)은 귀사의 성공적인 해외진출을 돕기 위해 현지변호사들과 자체 개발한 온라인 법인설립서비스인 "오이오스(OIOS)" 를 제공하고 있습니다.
Taste different solution. 색다른 해결책을 맛 보세요.
저희는 52개국의 현지 로펌과 제휴한 해외진출지원 서비스를 제공하고 있습니다. 국제법률정보, 해외법인설립, 국제계약 검토, 해외기업 인수합병, 현지법인 운영대행, 번역통역 등과 같은 해외진출 지원이 필요하신 분들의 많은 문의 바랍니다. (참고. http://www.ilri.co.kr/establishment.htm )
본원의 업무사례를 볼 때 전화 보다는 이메일 상담이 더 효과적이어서 info@ilri.co.kr 로 무료상담 해 드리고 있으며, 전화상담은 유료이오니 꼭 참고해 주세요.
국제법률연구원 International Legal Research Institute - Korea.
Tel. [+82] (0)10-5295-0621, (0)2-557-3476
Fax. (0)303-0080-7001
Website. www.ilri.co.kr
Email. info@ilri.co.kr
아래에 멕시코 현지의 회사설립(법인설립)을 위한 정보와 주의사항을 안내합니다.
Francisco Serrano / Ana García-Cuéllar Céspedes / Alanis, Serrano y Doblado, S.C.
Incorporation of a Mexican Company by foreign investors, please be advised of the following:
The first issue that needs to be determined when opening a company in Mexico is the type of corporation, which will be chosen.
In this regard, the General Law of Commercial Companies provides for several types of companies that can be organized and, depending on the form chosen, there are various differences in their legal and tax treatment.
Even though there are more than two types of companies, we are going to explain the two which are most common in Mexico, Sociedad Anónima and Sociedad de Responsablidad Limitada.
I. Sociedad Anónima.
It is usually recommended to incorporate a limited liability stock corporation (“Sociedad Anónima” or “S.A.”). This type of company provides limited liability to its shareholders. A sole administrator or board of directors may manage the corporation. The shareholders are the ultimate decision-making body of the corporation. Shareholders may call ordinary or extraordinary meetings, in certain cases under the Law or as provided in the charter.
Foreigners, residents or non-residents, may be members of the board of directors. Meetings of the board of directors need not take place in Mexico, however, shareholders meetings must be held at the corporate domicile.
The key characteristics:
i. The shareholder’s liability is limited to their stock interest in the company and the directors are fully liable for the loyal and diligent administration of the company.
ii. It must have at least 2 (two) shareholders and a Minimum Capital of $50,000.00, (Fifty Thousand Mexican Pesos) (aprox $5,000.00 USD)
iii. Must appoint a statutory examiner or auditor who is a disinterested third party who supervises the operations of the company and represents the interests of the shareholders: and
iv. The shares, which represent the capital stock of the company, are freely transferable and can be traded publicly, after the corresponding filings take place.
II. Limited Liability Company.
The limited liability corporations, the “Sociedad de Responsabilidad Limitada” or “S. de R.L.”. is viewed for U.S. tax purposes as a partnership.
The key characteristics are as follows:
i. Like a “S.A.”, the partners’ liability is limited to their partnership interest in the company and the directors will be fully liable for the loyal and diligent administration of the company;
ii. It must have at least 2 (two) partners and a maximum of 50 (fifty), and a Minimum Capital of $3,000.00 (Three Thousand Mexican Pesos) (aprox $300.00 USD);
iii. The shares which represent the partnership interests in the company are not be freely transferable and cannot be traded publicly
Following please find a comparison of the above mentioned two companies:
Corporation (Sociedad Anónima or Sociedad Anónima de Capital Variable) Limited Partnership (Sociedad Responsabilidad Limitada)
It may be up to 100% foreign-owned. It may be up to 100% foreign-owned.
Minimum capital contribuition is $50,000 Pesos in capital stock. Minimum capital contribution is $3,000 Pesos in capital stock .
Minimum of two shareholders. Minimum of two partners and a maximum of fifty.
No limit to the life of a corporation. The company exists while there is a business purpose and partners remain the same.
Free transferability of stock ownership. Restricted transferability of partnership shares. Any changes in the partnership composition may cause the partnership to be liquidated.
Operational losses incurred by the Mexican entity or subsidiary may not be used by the U.S. parent company. If structured properly, it may offer tax advantages by allowing operational losses incurred by the Mexican entity to be used by the U.S. parent company. (Consult with a tax attorney in the U.S.)
Limited liability to shareholders. Limited liability is afforded the partners.
The process of establishing a corporation “Sociedad Anónima” or a Limited Partnership company “Sociedad de Responsabilidad Limitada” requires of the following steps:
1. Name of the Mexican Company. A Permit of Incorporation must be requested before the Ministry of Foreign Affairs, which authorizes the use of the name of the corporation in Mexico. It is customary to submit a list of three possible names for your Mexican Company. For this, we need you to send us three proposed names in order of preference. The authorization will take about two to three working days.
2. By-Laws. Prepare the by-laws of the Mexican company. We can prepare the by-laws in two to three working days, however translations or approval of the shareholders of the by-laws may take longer. For the preparation of the by-laws we need the following information:
i. If it is going to be a “Sociedad Anónima” or a “Sociedad de Responsabilidad Limitada”.
ii. Names of at least two partners or shareholders of the Mexican company. Mexican Law allows that partners or shareholders to be individuals or legal entities.
iii. Capital structure of the Mexican company. The amount and structure of the capital allocation of the company has to be determined in Pesos (Mexican currency) and stated in the articles of incorporation and by-laws.
iv. Administration and Representation. The administration of the Mexican company can be entrusted to either a board of administrators or directors or a sole administrator. You may also appoint middle managers and attorneys in fact depending on the company's needs. Powers-of –attorney should be granted to all this persons in the by-laws. Therefore, we need the names of the administrators, managers and attorneys in fact. We recommend to appoint in the by-laws the persons that are going to carry out the procedures to obtain the registry of the company before the Tax Registry and the National Registry of Foreign Investments.
Please note that the sole administrator or members of the board of administrator meetings may be held in or outside Mexico. If the sole administrator or directors are not Mexican citizens and will be acting in Mexico, they will need a migratory permit.
v. Name of the auditor of the Mexican company. Mexican law also requires the appointment of a board of surveillance formed by two or more statutory auditors, or a single statutory auditor, whose main function is the supervision of the corporation's administration and operations and protecting the partners' or shareholders interests. The Examiner is usually an accountant from a firm who regularly audits the Company. A deputy examiner could be appointed due to the fact that this position cannot be delegated at will.
vi. A domicile in Mexico for the Company.
3. Incorporate the Company before a Notary Public. Once the by-laws are ready the partners or shareholders or its representatives must appear before the Notary Public to sign the by-laws. Individual shareholders need to appear with their passport or identifications, as for legal entities their representatives need a power-of-attorney granted before a Notary Public, legalized, translated and/or apostille.
Please note that in case the partners or shareholders may not appear before the Notary Public they may grant a power-of-attorney to members of this firm in order for us to carry out the steps of incorporation. We can send you the templates for this powers-of-attorney that have to be granted before a Notary Public and thereafter legalized or apostille.
This process of appearing before the Notary Public takes approximately one week, after having the powers-of-attorney and the by-laws.
So the total minimum processing time to have the notarized by-laws (Certificate of Incorporation) is two weeks if all documents are here in México. After that the by-laws need to be registered (see point 4 below).
4. Registrations. After the incorporation, the company must be registered before:
a) The Tax Registry.- a provisional registration may be obtained in three working days, and with this the company may start operating, the definitive registration takes about 1 month.
b) The Public Registry of Property and Commerce.- this takes about 2 months, however the company can operate having a letter saying this registry is in process.
c) The National Registry of Foreign Investments.- this also takes long, however the company can operate, with the filing saying that this registry is in process
5. Shares Certificates and Books. The Company must issue registered share certificates, and the shareholders must be registered in the Company Stock Registry Book. Also other three corporate books should be prepared. We prepare all of this after the incorporation and takes about 1 week.
Please note that in México we don’t have the certification of business, however I can send you a notarized by-law which is the legal document companies in México use to evidence they are duly incorporated and validly existing.
FOREIGN INVESTMENT
Please note that Mexico has a Foreign Investment Law (FIL), this FIL establishes, as a general rule, that foreign investors may hold 100% of the capital stock of any Mexican corporation or partnership except in those few areas expressly subject to limitations under the Law.
The following are the major categories of limitations contained in FIL:
Activities reserved exclusively for the State:
a) oil production and oil refining;
b) basic petrochemical production;
c) sale of electricity to the public;
d) nuclear power;
e) telegraph and radiotelegraph services;
f) local postal service;
g) bill issuance and coin minting; and
h) control, supervision and surveillance of ports, airports and heliports.
Activities reserved for Mexican investors
a) domestic land transportation of passengers, tourists and cargo not including passenger, or package delivery services;
b) retail gasoline sale and distribution;
c) radio broadcasting and television services (except cable television);
d) credit unions;
e) development banks;
f) .
Activities subject to specific participation percentage
a) 10% in cooperative production companies;
b) 25% in domestic and specialized air transportation and air shuttle services;
c) 49% in insurance and bonding institutions, exchange houses, general deposit warehouses, companies mentioned in Article 12-Bis of the Securities Market Law, companies that manufacture and commercialize explosives, firearms, cartridges, munitions and fireworks, excluding their acquisition and use for industrial or extractive activities, or the production of explosive mixtures for consumption in these activities, printing and publication of newspapers for circulation exclusively in Mexico, ownership of series "T" shares of companies which own agriculture, cattle raising and timberlands, fishing in fresh water, along the coast and in the exclusive economic zone, except aquaculture; integral port administration, piloting port services for interior navigation operations, shipping companies commercially exploiting vessels for interior and coastal navigation, except for tourist cruise ships and for exploitation of dredges and naval artifacts for port construction, conservation and operation; supply of fuel and lubricants for ships, aircraft and railway equipment.
Majority interest; upon approval
Finally FIL establishes categories of activities in which foreign investors may hold greater than a 49% interest subject to approval of the Foreign Investment Commission. These activities include the following:
a) port services such as piloting, dock services, mooring and lighterage;
b) naval companies engaged in exploitation of vessels used exclusively for high-seas traffic;
c) administration of air terminals;
d) private educational services;
e) legal services;
f) credit information companies;
g) institutions for categorization of securities;
h) insurance agencies;
i) cellular telephone services;
j) oil and gas well drilling;
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LEGAL FEES
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In connection with our legal fees, please be informed that the Firm determines the amount of legal fees based on the time effectively devoted to each project, we charge on an hourly basis with the following rates:
i) Partner fee US$350.00 dollars per hour
ii) Senior Associate fee, US$270.00 dollars per hour
iii) Associate fee US$180 dollars per hour
iv) Law Clerk fee US$60.00 dollars per hour
Such fees are the most competitive ones among the firms of our category. In addition, is the Firm’s policy to send detailed monthly balance statements to the clients, describing the time and activities devoted to the project.
However, for the incorporation of a Mexican company, we have a fix legal fees of USD$6,000.00 (Six thousand Dollars) amount that includes: fees for the permit of incorporation given by the Ministry of Foreign Affairs, public notary fees, registration of the Company before the Public Registry of Property and Commerce and registration of the Company before the National Registry of Foreign Investments. Also, this amount includes the preparation of the by-laws, the corporate books and shares.
Please note that the above mentioned amount does not include the translations of documents and the notarization of powers-of-attorney.
We would require a retainer fee of USD$2,000.00 (Two Thousand Dollars)
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VISA
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Information about immigration into Mexico.
I. Employees.
An employee working for a Mexican company has to comply with the following requirements in order to obtain the FM3:
Documents that must be enclosed to the form f the procedure:
1. Official Format to Request to be admitted into México.
2. Valid Foreign Passport.
3. Letter written on a Letterhead paper, in Spanish or translated into Spanish by a private or public institution, national or international, expressing that they need the services of the technician of scientist, by which said company requires the admittance into Mexico of the foreigner and expressing the nature of the project or activity in which the foreigner will be involved, as well as the salary that the foreigner will be receiving in Mexico or abroad, duly legalized or apostilled.
4. If they represent a foreign company, a letter written in Letterhead paper of the company, in Spanish or translated into Spanish, expressing why is that person needed in Mexico, as well as the salary that the foreigner will receive in Mexico or abroad, duly legalized or apostilled.
5. Documents that prove the experience, capacity and know ledges in the specific area of knowledge needed on the employee like: diplomas, certificates, degrees, or other similar credentials, that prove the technical or scientific know ledges obtained abroad, duly legalized or apostilled in Spanish or translated into Spanish.
II. Business Man
If the solicitant is a business man, he must comply with the following requirements:
• Certificate of incorporation of his company.
• The last Tax Declaration or electronic receipt of the last Tax Declaration.
• Document that proves that the company has been registered on the National Foreign Investment Registry, if applicable.
Specific documents that must the enclosed to the Procedure Form:
1. Official Format of "Request of Immigration Procedure".
2. Valid Foreign Passport.
3. Setter addressed to the National Immigration Institution written in Spanish or translated into Spanish and signed by the solicitant in Mexico that is requesting the admittance. The letter must also include the information of the foreigner, the length in time of the visit, the activities that the foreigner will do in Mexico, the places that the foreigner will visit, and in which they take full moral and economical responsibility of the foreigner during their stay in Mexico
4. Must present any of the following documents:
• Letter of invitation en Letterhead paper in Spanish or translated into Spanish by the Chamber of Commerce or any Industry Chamber; financial institution in which they explain the purpose of the visit of the foreigner into Mexico and that the foreigner has enough economical support to pay all their expenses in Mexico, as well as the places where the foreigner will perform their activities in Mexico, with an official picture ID and signature of the subscriber of the letter; or
• Bank Letter proving that will have the monthly equivalent to five hundred days of minimum salaries valid in Mexico D.F; or
• Economic Solvency Letter of the company that represents during the length of time of the stay in Mexico
5. If it represents and foreign company, a letter with Letterhead paper, in Spanish or translated into Spanish, expressing the purpose of the visit, as well as the salary that will be receiving in Mexico or abroad, duly legalized or apostilled. |
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