By: Tomás Barreto Ramírez/Partner at Saberex
Modification to the free zone regime
1. Electronic Commerce
Free Trade Zone users are allowed to make online sales, provided that imports into the TAN are made through postal traffic and express shipments. However, it is important that the final regulation clarify several operational issues that make this type of sales viable, especially for those made by industrial users who produce goods in the Free Trade Zone.
Indeed, if the good is produced with domestic raw materials, the regulation stipulates that a special import declaration must be submitted to pay VAT. Therefore, it must be clarified in these cases who will be the declarant and responsible for paying VAT: the Free Trade Zone user or the postal traffic intermediary.
Likewise, it must be clarified whether postal traffic intermediaries should be classified as commercial users in each of the Free Trade Zones, with a warehouse for urgent shipments, for the purpose of consolidating imported goods.
Likewise, it is necessary to indicate the document with which the goods will leave the Free Trade Zone, since, as the goods have not been previously transported, they do not have a postal traffic document that covers them, in which the corresponding customs duties are liquidated and which acts as a simplified import declaration.
2. Intangibles as part of the investment
The project establishes that it must be an intangible asset generated or formed by the industrial user after its authorization or qualification in the Free Trade Zone, it must participate directly and permanently in the income-producing activity, and it can only represent up to 20% of the investment. The issue that must be clarified is how this intangible asset will be valued, especially because it does not yet exist when the master plan or project is presented to the user operator.
Now, once the intangible asset has been generated or formed, another concern arises as to what evidence must be presented to demonstrate the intangible asset's value, to prove that it represents 20% of the value of the investment or the amount the user has committed to.
This issue is of the utmost importance, as it will determine the fulfillment of the investment without the risk of losing the rating, unless additional investments are made in productive fixed assets to maintain it.
3. Export of services to reduce commitments
The bill proposes that industrial users of a special permanent free trade zone for services, who, in accordance with their internationalization plan, anticipate annual service exports for a specified amount, may reduce their employment and/or investment commitment. Although it states that the sale of services to Colombian nationals or non-residents is considered an export of services, pursuant to Law 7a of 1991, it does not indicate whether, in addition to the reductions in investment and/or employment, the requirements established in Article 481 of the ET must be met to apply the VAT exemption.
It is necessary to determine whether these are independent benefits or whether both should be combined. It should be noted that the export of services can be configured in four ways, which do not necessarily comply with tax requirements and may even violate the principle of exclusivity, as they are provided outside the Free Trade Zone facilities.
By: Tomás Barreto – Saberex Partner
tbarreto@saberex.com.co
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