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( DOING BUSINESS IN GUATEMALA )

 

LEGAL FRAMEWORK FOR FOREIGN INVESTMENT

All sectors of Guatemala's economy are open to both local and foreign investment and ownership. Other than applicable taxes, no restrictions apply to remittance of profits and repatriation of capital. Guatemala's legal framework is that of an pen market that maintains a healthy respect for both entrepreneurial activity and foreign investment. The Guatemalan legal framework actively promotes investment and includes provisions that recognize, reaffirm and guarantee private property rights for both national and foreign investors. Additionally, Guatemalan law grants favored nation status to foreign investment through the Foreign Investment Law (Decree 9-98).

 

DIRECT FOREIGN INVESTMENT IN GUATEMALA

Direct foreign investment in Guatemala is accomplished by registering a local corporation or establishing a branch of a foreign corporation.

 

REGISTERING A LOCAL CORPORATION

Registering a local corporation is a simple and quick procedure, taking close to 48 hours for provisional registration and a maximum of four months to achieve final registration. Corporations may initiate operations under provisional registration.

 

REGISTERING A LOCAL CORPORATION INCLUDES THE FOLLOWING REQUIREMENTS:

A minimum of two persons, individual or corporate, is necessary to form a corporation. There are no restrictions on the origin of the parties. The charter of the corporation must be executed in a public deed.

A certified copy of the public deed must be filed at the Commercial Registry within thirty days of the corporation's chaffer.

After verifying compliance with legal requirements, the Commercial Registry provisionally registers the corporation. One notice of the registration request must be published in the Official Gazette and one other local newspaper. If no opposition is tendered, the Registry proceeds with final registration. Legal organization of Guatemalan companies.

 

GUATEMALA'S COMMERCIAL CODE PROVIDES FOR THE ESTABLISHMENT OF THE FOLLOWING TYPES OF COMPANIES:

General Partnership (Sociedad Colectiva): all partners are equally responsible for all of the debts of the partnership to an unlimited extent. This form of organization is equivalent to the simple partnership in the US. Limited Liability (Sociedad de Responsabilidad Limitada): a maximum of twenty partners in which liability is limited to the amount of equity paid by each partner. Limited partnership (Sociedad en Comandita Simple): formed by two types of partners: one or more general partners who direct business and' are jointly and severally liable for debts, and one or more limited partners whose liability is limited to the amount of equity paid in. Limited partners have no management voice in the firm's operation. Special limited partnership (Sociedad en Comandita por Acciones): same as limited partnership except shares represent equity. Stock corporation (Sociedad Anonima): this type of organization compares with the incorporated business in the U.S. Equity is divided and represented in equal value shares. Stockholder responsibility is limited to the amount of shares purchased. The corporation must have a board of directors, or a sole administrator, and must record annual stockholders meetings in a minute's book duly authorized by the Ministry of Finances and the Commercial Registry. No limitations are placed on the number or percentage of foreigners serving on the board of directors of a Guatemalan corporation. Corporations are required a resident manager who can be a resident alien with a work permit or a Guatemalan citizen. Shares may be issued to the bearer or made out to the stockholders' name.

 

ESTABLISHING A BRANCH OF A FOREIGN CORPORATION

A corporation legally established in a country other than Guatemala may obtain registration and approval to operate in Guatemala by meeting the following requirements before the Commercial Registry:

1- Demonstrate it has been duly organized in accordance with the laws of the country of origin. Present a certified copy of its articles of incorporation, by-laws and amend men ducted locally establishing a bond for US$50,000.00 extended by a Guatemalan bonding company issued to the Ministry of Economics.

2- Agree to submit to the jurisdiction of the Guatemalan courts and law.

3- Submit a declaration of commitment to fulfill legal obligations prior to withdrawing from Guatemala.

4- Present certified copies of the latest financial statements (balance sheets, profit and loss statement).

5- All documents must be notarized and translated into Spanish by an accredited translator and authenticated at a Guatemalan Consular office and then legalized by the Ministry of Foreign Affairs. Subsequently they must be entered into the records of a registered Guatemalan notary prior to submission to the Commercial Registry.

6- The Commercial Registry must verify compliance with all legal requirements and establish that charter provisions are not contrary to Guatemalan law. Subsequently, one notice of the registration request is published in the Official Gazette and one other newspaper. If no opposition is tendered, the Commercial Registry proceeds with registration, after verifying that the operating capital has been duly deposited in an authorized bank.

7- Operations must be initiated within a year of the date of registration. The process of filing for registration and approval is usually completed in approximately 4 months.

8- Registration with the Internal Revenue Service (Superintendence of Tributary Administration (SAT)) Registration at the Unified Revenue Registry of the SAT is required to obtain the necessary tax identification number (NIT).

The following are required for registration:
A- Affidavit of provisional registration from the Commercial Registry.
B- Copies of the public deed and legal representatives appointment filed before the Commercial Registry.
C- Form No. SAT-0011 provided by the Internal Revenue Service, supplying the corporation’s general information.

DISCLOSURE OBLIGATIONS

Any changes of the corporation's by-laws, capital, legal representative or purpose must be reported to the Commercial Registry. Liquidation or bankruptcy in the country of origin must also be reported to the Internal Revenue Service.

 

TEMPORARY OPERATIONS

Foreign corporations may also request approval for temporary operations for a period of less than two years at the Commercial Registry. Corporations are required to post a US$50,000.00 bond and provide proof of being duly organized in their country of origin and must appoint a representative in Guatemala.

 

OPERATIONS REQUIRING NO REGISTRATION OR AUTHORIZATION

Foreign corporations do not require registration and/or approval to engage in the following:

1- Sell to or purchase from independent commercial agents legally established in Guatemala.

2- Seek orders through agents legally established in Guatemala, provided such orders are subject to confirmation or acceptance abroad.

3- Open or maintain accounts in authorized banks.

4- Acquire real estate or other property, with the exception of land near international borders     and waterfront properties, as long as this is not the company's principal activity.

5- Grant loans to businesses established in Guatemala.

6- Draw, endorse or protest credit instruments in Guatemala.

7- Participate in any legal action or proceeding before a Guatemalan court or public office. It is sufficient to extend a power of attorney to an accredited Guatemalan lawyer.

 

TAXATION

INCOME TAX

According to Guatemalan law taxable income is all income generated by capital, property, services, and rights invested or used in the country as well as income derived from any type of activities taking place in Guatemala. All individuals, corporations and businesses, domiciled or not in Guatemala, are subject to income tax. Income tax filing must be presented 90 days after the end of the accounting year. For companies the fiscal year ends in December or June. Individuals must file by June 30 of each year.