Doing Business In: Puerto Rico

Ferraiuoli LLC

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Overview of Puerto Rico

  • Currency: United States dollar
  • Dimensions: 100 x 35 miles (160 by 56 kilometers)
  • Climate: Tropical, 82 degrees Fahrenheit (28° C) annual average temperature
  • Time Zone: “Atlantic Standard Time”. For most of the year, due to “Daylight Savings Time”, March through November has the same time as the East Coast of the United states.
  • U.S. Jurisdiction: Puerto Rico is a United States territory and, thus, offers businesses the security and stability to operate in a U.S. jurisdiction. Moreover, no passport is required for United States citizens when traveling from the mainland to and from Puerto Rico. Our main airport is easily accessible from most hubs (New York, Miami, Texas, Panama City and Madrid) and travel within the Island is extremely accessible and fast.
  • Legal system: Puerto Rico enjoys United States constitutional, legal, financial and regulatory protection, including for intellectual property and Homeland Security matters. Its banking system is regulated under the United States laws and insured by the Federal Deposit Insurance Company (FDIC) and our access points are protected by the U.S. Customs and Border Patrol. Puerto Rico enjoys the benefits of being a United States free trade zone and our citizens and residents enjoy federal grants and funds available to the United States citizens located in the mainland. It also shares common military defense with the U.S.
  • Geographical advantage: Puerto Rico is located in the eastern Caribbean and is the smallest of the Greater Antilles. Its geographical location strategically positions Puerto Rico between North America and South America and makes it the link between the United States and the Latin America markets.
  • Workforce: Puerto Rico offers a skilled, highly educated, and talented bilingual workforce. The Island enjoys a wide cultural diversity founded in the different backgrounds of people that have converged in the Island throughout its history. Many of our residents, who are United States citizens, are fully bilingual (official languages are Spanish and English). Puerto Rico has highly educated human capital; more than 30,000 university degrees are granted annually, including 10,000 in the science, mathematics and technology areas. Therefore, most of its workforce is highly educated and focused on providing a high standard of quality and services.
  • Local tax system: The local tax system is regulated by the Department of the Treasury of Puerto Rico. Because Puerto Rico is a United States territory, corporations are not subject to federal taxes unless earnings are repatriated. In turn, the corporate tax structure provides benefits of operating at a United States jurisdiction while providing tax benefits of a foreign country. Puerto Rico has also developed laws providing incentives and tax exemption benefits for multiple industries and activities, including manufacturing, research and development, export services, tourism and film, among others. Legislation also provides attractive benefits to individual investors that become Puerto Rico residents.

Doing business in Puerto Rico

Incorporation of Registration to do Business in Puerto Rico

Businesses establishing operations in Puerto Rico usually organize as a Corporation or a Limited Liability Company (“LLC”) under the laws of Puerto Rico. In Puerto Rico, any natural or corporate person may organize a corporation or LLC. The entities are created by filing the Articles of Incorporation (corporations) or Articles of Organization (LLC’s) with the Puerto Rico State Department, where they become available for public inspection, and by paying an incorporation fee based on the authorized capital stock of the corporation. In most cases, the articles may be electronically filed using the Department of State’s website at https://estado.gobierno.pr. Newly incorporated or organized entities must apply for and obtain an Employer Identification Number (“EIN”) with the United States Internal Revenue Service (“IRS”).

Alternatively, businesses organized under the laws of a state of the United States or a foreign country may register to be authorized to conduct business within Puerto Rico as a foreign corporation. These businesses must file with the Puerto Rico State Department a “Certificate of Authorization to do Business”. The application must set forth its name, place and date of incorporation, physical address of its corporate domicile, address of its registered office and name of its resident agent in Puerto Rico, names and business address of its directors and officers, a statement of its assets and liabilities, a description of the business it proposes to carry on in Puerto Rico, and a statement that it is authorized to do business in the jurisdiction of its incorporation.

LLC Classification Election

The default classification for Puerto Rico LLCs under the Federal Internal Revenue Code is to be taxed as an “association taxable as a corporation”. Puerto Rico LLCs that desire to be taxed as a flow through entity (either as a Partnership or as a Disregarded Entity) under the Federal Internal Revenue Code must file an election to that effect (the “Federal Classification Election”) with the United States Internal Revenue Service. The Federal Classification Election must be filed using Form 8832 and may be provide for an effective date of up to 75 days prior to the actual filing date.

All (i) PR LLCs (regardless of their classification under the Federal Internal Revenue Code) and (ii) Non-PR LLCs that for Federal tax purposes are taxed as an “association taxable as a corporation” may elect to be taxed as either a corporation or a partnership for purposes of the Puerto Rico Internal Revenue Code. These LLCs must file a classification election (the “PR Classification Election”) with the Puerto Rico Department of Treasury (“PRTD”).

Non-PR LLCs that for Federal Tax Purposes are taxed as either “Partnerships” or “Disregarded Entities” will be taxed as partnerships for purposes of the Puerto Rico Internal Revenue Code. These LLCs must file a notice of their Puerto Rico tax classification as a “partnership” with PRTD.

Puerto Rico Treasury Registration

The Puerto Rico taxpayer account number will be the same as the federal EIN. Upon receipt of the EIN from the IRS, and prior to commencing operations, companies must inform the EIN to the PRTD by registering in the Uniform System of Internal Revenue (“SURI” for its Spanish acronym). The taxpayer must provide copy of the letter from the IRS assigning the EIN. To access SURI, the business must visit the PRTD’s website https://suri.hacienda.pr.gov. To register in SURI, the business must provide an email address and create a user account.

Merchant Sales and Use Tax Registration

Generally, all sales (or the use, consumption, or warehousing) of a taxable item or a taxable service in Puerto Rico are subject to a 11.5% sales and use tax (IVU for its Spanish acronym) that includes a 10.5% state sales and use tax, and a 1.0% municipal sales and use tax. In the case of services rendered to other merchants or designated professional services, the sales and use tax rate is 4%.

To comply with the Puerto Rico sales tax provisions and be authorized to collect the sales tax from their customers, all merchants are required to register in SURI. Once a company registers, it will electronically receive, through SURI, a Merchant’s Registration Certificate (Form SC 2918) which must be placed in a location of the business that is visible to the general public. If the company is engaged in a business that is exempted from the collection of sales taxes, it must still register. The exempted company will receive Merchant’s Registration Certificate indicating that it is exempt from collecting the sales tax. Each location from which the business will be conducting its operations will require a separate Merchant’s Registration Certificate.

Municipal Business License

Companies must apply for a municipal business license within 30 days of commencing operations in the municipality(ies) where it will conduct business. The notification must include a copy of the certificate of incorporation or authorization to do business in Puerto Rico, a copy of the lease agreement, and a copy of the “Use Permit” for the facility to be used within the Municipality.

Upon receipt of the notice of commencement of operations, the Director of Finance of each municipality will issue a provisional certificate or license free of tax for the semester corresponding to that in which such activity commenced. For the next semester, a business volume declaration, together with the corresponding tax must be filed with and paid to the municipality within the first 15 days of the semester. The business volume will be the one derived during the first semester of operations raised to an annual basis.

Local Labor Law Requirements for Private Companies

Social Security and Medicare Withholdings – per federal law, employers must generally withhold part of social security and Medicare taxes from employees’ wages and employees pay a matching amount.

  • Vacation Days – Non-exempt employees accrue vacation leave in every month they work at least 130 hours. In Puerto Rico, exempt employees are not entitled to statutory vacation leave. However, many employers in Puerto Rico consistently offer either the statutory, or some form of vacation leave to exempt employees, as part of the benefits to such employees. Non-exempt employees are entitled by law to the liquidation of the accrued but unused balance of vacation leave at the time of termination.
  • Sickness Days – Non-exempt employees accrue paid sick leave in every month they work at least 130. Payment for sick leave will be based on the regular workday at the time the benefit is used or paid. Sick leave is not paid upon termination of employment. In Puerto Rico, exempt employees are not entitled to statutory sick leave. However, many employers in Puerto Rico consistently offer the statutory, or some form of sick leave, to exempt employees as part of the benefits to such employees.
  • Christmas Bonus – Employees who have worked at least 1350 hours (or 700 hours if hired prior to January 26, 2017) within the twelve (12) month period between October 1 of the previous calendar year and September 30 of the current calendar year, will be eligible to receive an Annual Christmas Bonus. The amount of the Annual Christmas Bonus will depend on the employee’s date of hire and the size of the employer’s workforce. Employees hired on or after January 26, 2017, may be entitled to an Annual Christmas Bonus of at least two percent (2%) of their annual salary (up to a maximum of $300.00 or $600.00, depending on the number of employees).
  • State Insurance Fund – The cost of the premium payable by employers to the State Insurance Fund Corporation for workers’ compensation due to occupational accidents or illnesses depends on the salary of the employees and their employment classification under the State Insurance Fund’s risk classifications. Employees on leave due to a work-related accident covered by the State Insurance Fund have a 12-month (6 months in case of employers with 15 employees or less) reserve of employment from the day of the occupational accident or injury occurred, under certain circumstances.
  • Chauffeur’s Social Security Insurance – Employers are only obligated to pay premiums for this government-mandated insurance for non-exempt employees who, as part of their duties and responsibilities, regularly operate a motor vehicle (including fork-lifts). The premiums are .80 cents per week per non-exempt employee. The employer may deduct .50 cents from the employee’s weekly payroll and the company will contribute the remaining .30 cents. Reservation of employment applies to employees receiving these benefits.
  • Unemployment Insurance – The unemployment policy premium is based on the employer’s experience rating with the Puerto Rico Department of Labor. The percentage of the premium is notified to the employer once it requests its account number with the Puerto Rico Department of Labor.
  • SINOT (Short Term Non-Occupational Disability Insurance) – (SINOT) is calculated alongside the mandatory unemployment insurance and is also obtained from the Puerto Rico Department of Labor. The SINOT premium is .60% of employees’ yearly wages without taking into consideration those wages paid in excess of $9,000. (Employer and employee divide the cost at .30% each. Some employers, however, opt to voluntarily pay the totality.) Reservation of employment applies to employees receiving these benefits.
  • Termination of Employment – Puerto Rico is not an “employment at will” jurisdiction. Thus, indefinite-term employees discharged without just cause are entitled to receive a statutory severance payment based on the length of their employment and salary, pursuant to the statutory formula.
  • Meal period – Non-exempt employees are entitled to a meal (or rest) period of one hour in length, unless the employer and the employee mutually agree in writing to reduce its length if the reduction is for the mutual benefit of the employer and employee.

Statutory Filing Requirements of Companies Resulting from the Regular Course of Business after Commencing Operations in Puerto Rico

A. Corporate Income Tax Return

For taxable years commencing after December 31st, 2018, the taxable income of corporations is taxed at a regular tax rate of 18.5% (the “Regular Corporate Tax”). In addition, the taxable income of corporations is also subject to an additional tax at graduated rates that range from 5% to 19% (the “Additional Corporate Tax”).

In addition, dividend distributions made by Puerto Rico Corporations, or by Non-Puerto

Rico Corporations that derive at least 80% of their gross income from sources within Puerto Rico, to their Non-Puerto Rico shareholders, are subject to a 10% withholding tax.

Non-Puerto Rico Corporations that derive less than 80% of their gross income from sources within Puerto Rico are not subject to the withholding tax on dividends. However, they are subject to a 10% Branch Profits Tax (the “BPT”) on any reductions in their Puerto Rico net equity, but only to the extent that the Non-Puerto Rico Corporation has any current or accumulated earnings and profits that were derived from the conduct of a Puerto Rico trade or business (the “Dividend Equivalent Amount”).

The Puerto Rico Corporation Income Tax Return must be filed on or before the 15th day of the 4th month following the close of the taxable year. An automatic 6-months extension to file the income tax return may be requested through SURI. All businesses with a volume of business in excess of $3,000,000.00 must include, with their income tax return, audited financial statements prepared by a Certified Public Accountant licensed to practice in Puerto Rico.

B. Partnership Income Tax Return

As discussed above, under the Puerto Rico Internal Revenue Code, partnerships (including LLCs electing to be taxed as partnerships) are treated as pass-thru entities. Accordingly, the partnership will not be taxed on its taxable income, which will instead flow thru and be taxed to its partners. In that sense, partnerships must file an Informative Income Tax Return for Pass-Through Entity and their income flows thru and is taxed to the partners at the partners’ income tax rate.

Regardless of the above, the partnership is responsible for depositing with the PRTD, an amount equal to 30% of its Taxable Income (the “Tax Deposits”), which will be credited to the tax liability of the partners. All of the partners will be required to file an income tax return with the PRTD. The partners must include, as part of their taxable income, their distributable share of the partnership’s taxable income and will be entitled to a credit for their distributable share of the Tax Deposits.

The Informative Income Tax Return for Pass-Through Entity (Form 480.20 EC), must be filed on or before the 15th day of the 3rd month following the close of the taxable year. An automatic 6-months extension to file the income tax return may be requested through SURI.

The Partnership must also provide each of its partners with an informative return detailing all the information required by the partner for purposes of completing its income tax return. This informative return (Form 480.6 EC) must be filed on or before the last day of the 3rd month following the close of the taxable year through SURI. An automatic 6-month extension to file this return is granted to partnerships that have extended their Forms 480.20 EC.

C. Sales and Use Tax Returns

As a general rule, businesses must collect 11.5% sales and use tax (“SUT” or “IVU” for its Spanish acronym) on all of their taxable transactions. The 11.5% SUT includes a 10.5% state sales tax and a 1% municipal sales tax. In the case of certain designated professional services and certain services rendered to other registered merchants, the state SUT rate is 4% and the municipal SUT will not apply.

Merchants collecting the SUT are required to electronically file a monthly SUT return through SURI, which is due on or before the 20th day of the month following the month the SUT was collected (e.g. all tax collections derived from January sales must be reported and paid no later than the 20th of February), and to electronically remit the SUT to the PRTD.

Merchants importing goods into Puerto Rico are also required to electronically file a monthly return with regards to their introduction of goods into Puerto Rico, which is due on or before the 10th day of the month following their introduction of the property (the “Import Return”). All bill of lading documents related to shipments of goods into Puerto Rico must be submitted electronically to the PRTD, which must then authorize the release of the shipments to the recipient after payment of any SUT that may apply to the shipment. Some merchants are allowed to post a bond guaranteeing the payment of the SUT in exchange for the release of their shipments prior to the payment of the SUT. Furthermore, subject to certain limitations, merchant’s may be allowed to claim a credit on their SUT return for a portion or all of the taxes paid with regards to the Import Return.

D. Municipal Sales Taxes

The filing requirements for the reporting and payment of municipal sales taxes will depend on the municipality where the business carries out its operations. The municipal portion of the sales tax (1.0%) must be paid directly to the municipality using a “Monthly Sales Tax Return”. Most municipalities have an online platform where you may prepare and filed the monthly municipal sales tax return.

E. PRTD Informative Returns

The Puerto Rico Internal Revenue Code, as amended, provides for the required filing of certain informative returns depending on payments and withholdings made throughout the year.

F. Municipal License Tax (“Patente”)

Generally, the gross revenues of all businesses operating within Puerto Rico are subject to a municipal license tax. Depending on the municipality, the license tax ranges from .2% to .5% of gross revenues for non-financial businesses and may not exceed 1.5% of revenues for financial businesses.

In that sense, businesses must file a Volume of Business Declaration (“VOB”) with each municipality where they operate. The VOB is due five (5) working days after April 15th of each year. A 5% discount is available if the entire municipal license tax is paid with the timely filing of the return. Otherwise, the municipal license tax is payable in two installments, which are due on the July 15th and the January 15th following the due date for the filing of the VOB. Separate returns must be filed with the Director of Finance of each municipality in which the corporation conducts business.

If the total gross volume of business (gross income) exceeds $3,000,000, the VOB must be accompanied by financial statements, including a balance sheet, income statement, and cash-flow statement, as of the close of the fiscal year ending on the preceding calendar year, audited by a Certified Public Accountant licensed to practice in Puerto Rico. If the volume of business is less than $3,000,000, audited financial statements are not required, and the return must include a copy of the Puerto Rico income tax return filed with the PRTD which details its gross income and operating expenses, together with a statement to the effect that they are true and exact copies of what was filed with PRTD.

G. Municipal Revenue Collection Center (CRIM)

Personal Property Businesses in Puerto Rico are subject to a personal property tax on certain tangible property located within Puerto Rico. Depending on the municipality, the tax rates currently range from 5.83% to 10.33%. Personal property taxes are self-assessed by each business as of January 1st. The self-assessment is made by filing, with the CRIM, a Personal Property Tax Return (“PPTR”) which must be electronically filed with through the CRIM’s website (https://emueble.crimpr.net/). The PPTR and payment of the taxes are due on the 15th of May each year. A single return is used to pay the total tax due to all the municipalities.

An automatic extension of no more than ninety (90) days is granted for corporations by filing Form AS-I, “Request for Automatic Extension of Time to File Personal Property Tax Return”, on or before May 15. The automatic extension must be filed through CRIM’s website, https://emueble.crimpr.net/.

Taxpayers that are subject to the payment of personal property taxes are required to prepay such taxes in four equal installments that will be due on (i) August 15; (ii) November 15; (iii) February 15; and (iv) May 15 (the “Personal Property Tax Installments”). Taxpayers must compute their estimated tax obligation based on a reasonable estimate of the personal property that will be subject to tax on their personal property tax return.

H. Municipal Revenue Collection Center (CRIM) – Real Property

Local law imposes real property taxes on all real property located within Puerto Rico, unless specifically exempted by law. Real property includes the land and subsoil, plus all structures, objects, machinery or implements attached to a building on a permanent manner. Similar to personal property, real property taxes are assessed as of January 1st of each year and paid in two (2) installments due on January and July of each tax year. The real property tax rates vary by municipality and currently range from 8.03% to 12.33%.

I. Department of State Annual Reports

Every Puerto Rico corporation and every foreign corporation authorized to do business within Puerto Rico must annually file, no later than April 15, an annual report with the Puerto Rico Department of State. This report must be filed electronically in Department of State’s website and must be accompanied by an annual fee of $150.

LLC’s are not required to file the Corporate Annual Reports. In lieu of the annual reports, they are required to pay an annual fee of $150 to the Puerto Rico State Department.

A 60-day extension may be requested for complying with the filing of the Corporate Annual Reports. No extension is available for the payment of the LLC annual fee.

Payroll Filing Requirements of Companies Resulting from the Maintenance of Employees within Puerto Rico

A. Employer’s Deposit of Social Security and Medicare Taxes

Employers must electronically deposit through the Electronic Federal Tax Payment System (“EFTPS”) the Social Security and Medicare tax withheld with the United States Treasury. The deposit schedule for a calendar year taxpayer is determined from the total social security taxes reported in a four-quarter “look back period,” which begins July 1 and ends June 30.

If the employer reported $50,000 or less of social security taxes during said look back period, the employer is a monthly schedule depositor and must deposit the taxes by the 15th day of the following month in which payments were made. If the employer reported more than $50,000 of social security taxes during said look back period, it becomes a semiweekly schedule depositor and must deposit the taxes on payments made on Wednesday, Thursday and/or Friday by the following Wednesday; and on payments made on Saturday, Sunday, Monday and/or Tuesday by the following Friday (i.e., within the next three (3) banking days).

If the employer’s quarterly tax liability is less than $2,500, no deposits are required, and it must pay the tax with the quarterly return on Form 941 PR. If the employer’s tax liability is $100,000 or more on any day during a deposit period,2 it must deposit the tax by the next banking day, whether it is a monthly or semiweekly schedule depositor.

B. Employer’s Quarterly Federal Tax Return (Form 941 PR)

Employers in Puerto Rico must file quarterly returns on Form 941 PR, “Employers Quarterly Federal Tax Return,” if Social Security and Medicare taxes were withheld for the quarter, and must pay any undeposited income, Social Security, and Medicare taxes if total tax liability for the quarter was less than $2,500. The returns are due by the last day of the calendar month following the close of each calendar quarter (i.e., by April 30, July 31, October 31, and January 31) and may be filed electronically at the IRS’s website.

C. Employer’s Annual Federal Unemployment Tax Return (Form 940 PR)

Employers in Puerto Rico must file Form 940 PR, “Employer’s Annual Federal Unemployment Tax Return,” by January 31 of the year following the calendar year in which the unemployment tax was accrued, summarizing the unemployment tax accrued during the preceding calendar year.

D. Wages Withholding Statement (Form 499-R-2/W-2 PR)

The original of Form 499-R-2/W-2 PR, “Withholding Statement,” prepared for each employee from whom Social Security tax (“FICA Tax”) was withheld must be filed by the employer, with the Social Security Administration, together with Form W-3 PR, “Reconciliation Statement,” by the last day of February of the year after the calendar year for which withholding was performed through the Social Security Administration’s website, https://www.ssa.gov/bso/bsowelcome.htm.

E. Deposit Slip of Employer’s Monthly Deposit of Income Tax Withheld (Form 499R-1)

Every corporation that maintains employees in Puerto Rico must file Form 499R-1, “Employer’s Monthly Deposit of Income Tax Withheld”, accompanied with deposit of income tax withheld on wages during the preceding month with any PRTD Collector’s Office or any authorized bank. These forms should be filed through the SURI website, https://suri.hacienda.pr.gov.

F. Employer’s Quarterly Return (Forms 499R-1B and 499R-1C)

The quarterly return (Form 499R-1B, “Employer’s Quarterly Return of Income Tax Withheld”) will include information related to the taxes withheld from salaries paid during the preceding calendar quarter, and must be filed by the last day of the calendar month following the close of each calendar quarter (that is, by April 30, July 31, October 31 and January 31) including payment of any undeposited income taxes withheld from wages. Employers in Puerto Rico must electronically file their quarterly returns through the Department of Treasury’s SURI website, https://suri.hacienda.pr.gov.

Recent significant changes in local law

  • Puerto Rico Incentives Code (Act 60-2019): The Puerto Rico Incentives Code codifies various tax incentives laws into a single code, including tax incentives formerly granted under Act 20 (export services), Act 22 (relocation of individual investors), and Act 73 (manufacturing, research and development, software development and industrial operations), among others, as an economic development tool. Under the Puerto Rico Incentives Code, various sectors may benefit from tax incentives, including traditional sectors such as manufacturing, tourism and agriculture, as well as aerospace, biosciences, technology, renewable energy, entrepreneurship and export services. In addition, it defines new incentives to support emerging sectors, such as the creative, eSports and entertainment industries.
  • Puerto Rico Civil Code (Act 55-2020): The Puerto Rico Civil Code is the systemized set of rules of law that regulate our civil relations, including succession and hereditary rights, estate planning, family law, contractual relationships, obligations and torts, real property rights, among others. Puerto Rico’s Civil Code was approved in 1930 based on the Spanish Civil Code and, despite numerous intents to comprehensively amend it, no significant amendments were made until Act 55-2020. The new Civil Code becomes effective on November 28, 2020.

The information provided herein are for informational purposes only and is not intended nor it should be construed as legal, tax or financial advice.