What documentation is required to evidence the transportation of foreign and national goods in Mexico?
Edmundo Elías- Fernández
In Mexico there is an extensive legal framework that must be complied with by companies or individuals when transporting goods of their own or when they contract the services of third companies to transport their goods within Mexican territory.
In this legal framework, there are provisions establishing that several documents must be issued and carried along with the transport of goods, with the purpose of evidencing before the competent authorities the transportation, legal possession, and legal status (importation) of the goods in Mexico.
In the past several years (2014–2021), a number of amendments have been made to the applicable legal framework, which has generated confusion among the owners, holders and services providers of transportation of goods, regarding the documentation that must be accompanied by carriers to evidence the service provided.
Derived from the above changes, there are now three (3) types of documentation that must accompany the transportation of goods in Mexico:
1. Tax documentation.
2. Customs documentation.
3. Commercial documentation.
Documentation for tax purposes
For tax purposes, proof of materiality of the service provided must be evidenced before the tax authority, in order to support the tax deductibility of the payment made for said service; or, to evidence that the goods were transported by the own means of its owner, consequently, no payment was made to third parties for said service.
The above is evidenced with the issuance of the applicable digital tax receipts issued through internet (“CFDI”), whether “traslado” or “ingreso” which must be issued by the party that performs the transportation of the goods (owner or third party).
The CFDI previously referred will only evidence the transportation of the goods, and the legal possession of the goods must be evidenced with other applicable documentation.
In addition, by September 2021, the document published and named “Complemento Carta Porte” would be issued contemporaneously with the corresponding CFDI and attached to it, to evidence the transportation of the goods. This document is pending to become effective as of this date and its implementation is still uncertain.
Please note that this document is an independent document from the traditional “carta de porte”.
Documentation for customs purposes
The transportation of foreign goods (imported) into Mexico must always be accompanied with the documentation that evidences their legal status (importation) and transportation in Mexico, regardless of who performs the transportation of the goods.
To evidence the legal status and possession of foreign goods during its transportation in Mexico (imported goods), the owner or holder of the goods must provide to the transport company the documentation evidencing that the goods transported are legally in Mexico (that the customs clearance of the goods was performed in accordance with the applicable law), that is, the pedimento or a tax invoice (CFDI).
If none of this documentation is issued and available while the goods are being transported, the customs authorities may assume that the goods are illegally in Mexico and proceed to confiscate the goods and initiate an administrative procedure in customs matters.
Documentation for commercial purposes
Generally, every time that a third party performs the transportation of goods in Mexico, the transport must always be accompanied with a transportation document (carta de porte) for each shipment transported, to evidence the commercial relation between the carrier and the owner, holder or consignee of the goods.
The carta de porte is the document by means of which the relationship between the carrier and the owner, holder or consignee of the goods transported, is evidenced. The carta de porte´s main purpose is to regulate, in general, the terms and conditions of the transport service, and its content regulates the issues that may arise during the transportation of the goods.
Notwithstanding the above, is always recommendable to sign a transportation services agreement with the carrier, to precisely regulate the commercial relation between the parties (rights and obligations), since the carta de porte only includes certain specific aspects of said relation.
As of the entry into force of the 2014 amendments to the tax legislation, the carta de porte is only valid for commercial purposes and federal highway regulations. Nevertheless, it also evidences the engagement made by the owner or consignee of the goods to the carrier to perform the transportation of the goods.
What are the possible penalties of not having the documentation that evidences the transportation and legal possession of the goods?
In case that the transportation of goods is not accompanied with the applicable documentation, the authorities may deem that the foreign or national goods transported are illegally in Mexico, and they can apply the following fines and sanctions:
• Fine from 130% to 150% of the omitted import duties.
• Fine from 55% to 75% of the omitted value added tax.
• Fine from 55% to 75% of the omitted customs processing fee.
• Fine from 70% to 100% of the commercial value of the goods when the non-tariff regulations and restrictions are not complied if non-tariff regulations and restrictions are applicable.
• Preliminary confiscation of the goods through an administrative procedure in customs matters, which, in some cases may carry that title to the goods passes to the Mexican federal treasury.
• Presume the commission of contraband crime, sanctioned up to nine years of prison.
In addition to the above, in case of not having the documentation required by the federal highway legislation, the competent authority may apply a fine up to one thousand units of measure and update (UMA), since the transportation was not accompanied with the corresponding documentation. Currently this fine is of approximately of MX$80,000.00 pesos.
Edmundo Elías-Fernández
eelias@rrs.com.mx
Daniel Torres-Güemez
dtorres@rrs.com.mx
Daniel Ascencio-Zamarripa
dascencio@rrs.com.mx
