Francisco Romero

+5281-8336-4020

fromero@rrqb.mx

 

Martha Gómez

+5281-8336-4020

mgomez@rrqb.mx

Lo relevante de la Ley Fintech

De acuerdo con Fintech Radar México, actualmente se encuentran en operación alrededor de 300 empresas de tecnología financiera en nuestro país, las cuales resultan atractivas por estar relacionadas con el uso de dispositivos móviles, son innovadoras, flexibles y no requieren la presencia física de los contratantes para llevar a cabo diversos trámites. 

En virtud del crecimiento que este sector ha registrado durante los últimos años en México, el 09 de marzo del 2018 se publicó en el Diario Oficial de la Federación La Ley para Regular las Instituciones de Tecnología Financiera, la cual busca regular la organización, operación y funcionamiento de las instituciones de las empresas emergentes que brindan servicios financieros a través de aplicaciones informáticas, páginas de internet o cualquier otro medio de comunicación electrónica o digital.

 

Las figuras contempladas para su regulación en la Ley son las Instituciones de Financiamiento Colectivo (crowfunding) y las Instituciones de Fondos de Pago Electrónico (dinero electrónico),

 

Instituciones de Financiamiento Colectivo (IFC). La actividad de estas instituciones es la de poner en contacto a personas del público en general para que entre ellas se otorguen financiamientos a través de aplicaciones informáticas, interfaces, páginas de internet o cualquier otro medio de comunicación electrónica o digital, solo pueden llevarse a cabo por personas morales autorizadas por la CNBV.

 

Las operaciones que podrán efectuarse son el Financiamiento colectivo de deuda, el Financiamiento colectivo del capital y el Financiamiento colectivo de copropiedad o regalías.

Instituciones de Fondos de Pago Electrónico (IFPE). Las actividades de

estas instituciones son, entre otras, de emisión, administración, redención y de transmisión de fondos de pago electrónico a través de aplicaciones informáticas, interfaces, páginas de internet o cualquier otro medio de comunicación electrónica o digital.

 

Se considerarán fondos de pago electrónico a aquellos que estén contabilizados en un registro electrónico de cuentas transaccionales que al efecto lleve una IFPE y que estén referidos a un valor monetario.

 

Requisitos Comunes de las ITF.

  1. Solicitar autorización ante la CNBV, previo acuerdo del Comité Interinstitucional, el cual será presidido por la CNBV e integrado por la SHCP, Banxico y la CNBV.
  2. Elegibilidad de accionistas y administradores.
  3. Presentar a sus accionistas y administradores el aviso de operaciones.
  4. Contar con capital mínimo para operar y por activos sujetos a riesgo.
  5. Deben constituirse legalmente como sociedades anónimas (S.A.)

 

Requisitos de Operación:

  1. Controles internos y administración de riesgos,
  2. Seguridad de la información y continuidad de la operación.
  3. Límites de operación por cada cliente.

 

Protección al Consumidor.

  1. Divulgación de riesgos y responsabilidades.
  2. Medidas para evitar conflicto de intereses.
  3. Segregación de recursos propios.
  4. Confidencialidad de la información.

 

Operaciones con Activos Virtuales. Un activo virtual (criptomoneda) es la representación de valor, registrada electrónicamente y utilizada entre el público como medio de pago para todo tipo de actos jurídicos y cuya transferencia únicamente puede llevarse a través de medios electrónicos.

 

Sólo se podrá operar con los activos virtuales que sean autorizados por Banxico, pero no son reconocidos como moneda de curso legal y no están respaldadas por el Gobierno Federal, ´por lo que las ITF que operen con criptomonedas deberán indicar como mínimo que no son monedas de curso legal y las operaciones no son reversibles una vez ejecutadas y su valor es muy volátil y no hay amparo alguno en caso de pérdida.

 

Supervisión. La supervisión del cumplimiento de lo dispuesto en la Ley

y las disposiciones que de ella emanen corresponden a la CNBV, al Banxico y a la CONDUSEF en el ámbito de sus respectivas competencias.

 

En la Ley también se encuentran reguladas las sanciones administrativas y penales para los casos en que se incumpla con lo establecido en la misma o disposiciones que de ella emanen.

 

Marco Fiscal. La Ley de Impuesto Sobre la Renta no sufrió modificación alguna tras la publicación de esta Ley, por lo que las ITF al ser constituidas como sociedades anónimas tendrán que tributar en el Título II de la LISR y cumplir con toda la reglamentación y obligaciones establecidas para las personas morales.

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