By Baker & McKenzie

The Federal Law on Governmental Fees, in force as of January 1, 2005, contains several amendments to sections I to V of article 49, provision that refers to the customs processing fees ("CPF").

It should be noted that the above-mentioned provision states that individuals or legal entities that carry out goods imports or exports by means of import or export declarations ("pedimentos"), or any other document set forth in the Customs Law, are required to pay customs processing fees.
In the specific case of imports, this governmental fee is calculated by applying 0.8% over the customs value of the goods, in other words, the declared value of the goods for customs purposes.

Moreover, regarding fixed assets being imported on a temporary basis by Maquiladoras or PITEX companies under their corresponding programs, the corresponding fees are calculated by applying 0.176%.

This governmental fee is paid at the moment of clearing the goods for importation before the customs house where the importation is performed.

Also, it should be noted that imports of goods originating in most countries with which Mexico has entered into a free trade agreement are exempted from this fee.

Recently, the Mexican Supreme Court issued a court precedent (jurisprudencia) regarding the characteristics that governmental fees must have in order to meet the requirement of tax proportionality established by section IV of article 31 of the Mexican Constitution. Such precedent states that in order for this type of contributions to comply with the above-mentioned requirement, they must be set forth in accordance with the cost that the rendering of the corresponding service represents for the State.

From our point of view, and taking into consideration the provisions of the aforementioned court precedent, we consider that the customs processing fee is contrary to the provisions of section IV of article 31 of the Mexican Constitution.

The above conclusion is based in the fact that, on one hand, the amount of .8% or .176% has no direct relation with the cost that the rendering of the corresponding service represents for the State.

Also, from our point of view, there are enough legal grounds to sustain that there are no grounds to justify the difference between the amount corresponding to fixed assets being imported on a temporary basis from the amount corresponding to any other good, as well as to that fact that goods originating in countries with which Mexico has entered into a free trade agreement are not subject to payment of such burden since, in both cases, the State is rendering the customs processing service, which is the service of recognition and clearance of the goods for their import into the country under any customs regime.

Moreover, we are of the opinion that there is no reason for considering that each vehicle in which goods are transported must be deemed as a different operation in the case of consolidated pedimentos, since that fact is irrelevant with respect to the service rendered by the customs authorities that derives in the payment of the corresponding governmental fees.

Any importer subject to the payment of such governmental fees for the importation of foreign goods may file an indirect amparo against the corresponding articles of the Federal Law on Governmental Fees. It should be noted that such amparo would need to be filed during the fifteen days following the date in which the customs processing fee is paid for the first time, that is, during the fifteen days following the date in which the importation of goods subject to such governmental fee takes place or within the thirty days following the date of entry into force of such provision, which is January 1, 2005.

On the other hand, it is important to note that the fact that there were no substantial amendments in connection with the hypothesis triggering payment of this fee, does not preclude taxpayers that had previously consented to its payment from challenging its constitutionality, because the fact that there are amendments to the Federal Law on Governmental Fees, implies that such amendments constitute a new legislative act, which is susceptible of being challenged by an indirect amparo lawsuit even if the constitutionality of such fee in force until December 31, 2004 had been consented by the taxpayers.

It should be noted that those individuals or legal entities who challenged through an amparo petition the legal provisions in force until December 31, 2004 and obtained a favorable amparo, must file a new indirect amparo lawsuit; otherwise they will consent this new legislative act and will be legally required to pay this fee.

It is important to note that, as in any other litigious matter, it is not possible to guarantee a specific result. However, we consider that there is a good chance to obtain a favorable outcome.