IRS Finally Make a Ruling that Benefits All Fideicomiso property Owners in Mexico and Eliminates Possible Filing Requirements

After 10 years of controversy and refusals to make a ruling, the IRS has finally ruled that most Fideicomiso's in Mexico are not foreign trusts required to file Forms 3520 and 3520A.

Revenue Ruling 2013-14 describes a typical fideicomiso or Mexican Land Trust (MLT) and concludes that the arrangement is not a trust within the meaning of § 301.7704-4(a)   You should read this ruling carefully since it only applies to the situations described therein. If you have Fideicomiso that falls outside the the ones described in this ruling, you may still be a foreign trust under US tax law and be required to file special forms.

Revenue Ruling 2013-14 will be in 2013-26, dated June 24, 2013.

Fideicomiso Filing Requirements May Change

It is rumored that an attorney in Texas has applied for a private letter ruling on behalf of a client asking for a ruling from the IRS that an owner of a property held in a Fideicomiso does not have to file forms 3520 and 3520A. Private letter rulings are only binding on the IRS with respect to the individual taxpayer who requested it, though sometimes the IRS will apply them to everyone.  That ruling is expected to be released within the next month and finally for the first time there will be an IRS written declaration on filing requirements for Fideicomisos.

AMERICANS MUST FILE SPECIAL US TAX FORMS TO REPORT FIDEICOMISO'S OR RISK HIGH PENALTIES

As you know, properties along the Coast of Mexico owned by Americans must hold title through Fideicomisos which are foreign trusts. This means certain special tax forms must be filed each year with the IRS to report your Fideicomiso holdings. Though a few tax commentators have written learned articles saying Fideicomisos are required to file these forms, the IRS has never so stated in writing and the IRS has further stated it does not intend to exempt Fideicomiso owners from filing these forms forms.

These forms do not result in any additional tax, but are informational only. Starting in tax year 2011, you may also have to file Form 8938

Failure to file these forms in a timely manner, or filing the required forms late can result in the IRS imposing penalties up to 35% of the value of the real property held in the Fideicomiso. The IRS has stated that if a late filing excuse is attached penalties may be waived. In fact they have waived penalties in the past though it is not certain how long this will continue into the future.

• Form 3520A is due on March 15^th, but can be extended if an extension is filed by that date.

• Form 3520 must also be filed for your fideicomiso. This six page form is due on the same day as your personal tax return but is mailed to a separate address.

We have prepared hundreds of Forms 3520 and 3520A for our clients in Mexico over the past ten years. If you want to prepare the forms yourself, we also offer a review service so you can be assured you prepared them correctly. Let me know how we can help.

Click here to download our Fideicomiso/3520/3520A Tax Organizer. After you fill it out, return it to us by fax or email and we can provide you with a fee quote. (File is in msword format for easy completion)

We will be in  Los Cabos and La Paz to assist our clients  there from March 16th thru May, 2012.  Please email or contact us for an appointment.

Don D. Nelson, C.P.A., Attorney at Law

Kauffman Nelson LLP

Dana Point, CA 92629 USA

US Phone: 949-481-4094 US Fax 949-218-6483 Skype: dondnelson

Email: ddnelson@gmail.com

Websites: www.TaxMeLess.com www.expatattorneycpa.com

Blogs:  www.USExpatriate.blogspot.com

LATEST IRS LETTER CONCERNING IF A MEXICAN FIDEICOMISO OWNER MUST FILE FORM 3520

The following letter from an IRS Technical Reviewer  was Published by Tax Analysts(R) concerning the issue of whether or not a Mexican Fideicomiso must file Forms 3520 and 3520A.

UIL: 6048.00-00
Release Date: 6/24/2011
Date: November 17, 2010
Refer Reply To: GENIN-141622-10 – CC:INTL:B01:* * *
Dear * * *:
This is in response to your request for general information regarding the infor-mation reporting obligations with respect to Mexican fideicomisos that own certain Mexican residential real property on behalf of U.S. persons who are not also Mexican citizens.
Under section 6048(a) and (c) of the Code,¹ a U.S. person who makes a transfer to or receives a distribution from a foreign trust generally is required to report certain information on Form 3520, Annual Return to Report Transactions with Foreign Trusts and Receipt of Certain Foreign Gifts. Under section 6048(b) of the Code, a U.S. person who is treated as the owner of a foreign trust under the grantor trust rules (sections 671 through 679 of the Code) is required to complete Part II of Form 3520 and to ensure that the foreign trust files Form 3520-A, Annual Information Return of Foreign Trust with U.S. Owner. Section 6677 of the Code imposes significant penalties (up to 100 percent of the gross reportable amount) for failure to comply with section 6048.
The rules for determining whether an entity is classified as a trust for U.S. federal income tax purposes are found in section 301.7701-4 of the Procedure and Administration Regulations. The rules for determining whether an entity that is classified as a trust is a foreign trust are found in section 7701(a)(31)(B) of the Code and section 301.7701-7 of the Procedure and Administration Regulations. Any U.S. person who transfers property to or has an interest in a Mexican fideicomiso that is classified as a foreign trust must comply with section 6048.

            This letter provides general information only and does not constitute a ruling. See Rev. Proc. 2010-1, section 2.04, 2010-1 I.R.B. 7. If you would like a definitive determination as to whether a particular fideicomiso is classified as a foreign trust for U.S. federal income tax purposes, you must request a private letter ruling pursuant to the procedures set forth in section 7 of Rev. Proc. 2010-1.

We hope this information has been helpful to you. If you have any questions, please contact * * *, Identification Number * * *, at * * * (not a toll-free call).

Sincerely, M Grace Fleeman - Senior Technical Reviewer, Branch 1 (International)

TRANSLATION OF THE ABOVE REFERENCED LETTER FROM THE IRS:

We’re not telling you that your particular fideicomiso is a trust and we’re not telling you your particular fideicomiso is NOT a trust.  All we are saying is that if it IS a trust you have to file Form 3520.  In other words, if you wish to be safe you should file form 3520, 3520a because the IRS refuses to state Fideicomisos are not foreign trusts.  That refusal is a clear  message to taxpayers. 

Everything You Want to Know About 2011 IRS Voluntary Disclosure Program

The deadline for entering the IRS 2011 Voluntary Offshore Disclosure Program has been extended until September 9, 2011.  The procedures for entering the program are complex and must be followed carefully. You can also prior to the previous mentioned date obtain an additional 90 day extension of time to file all of your past tax returns including the special foreign reporting forms such as 5471, 8865, 5472, 3520 and TDF 90-22.1 (FBAR).

You can read all of the details and latest developments concerning the Voluntary Offshore Disclosure Program at our sister blog:  www.usexpatriate.blogspot.com .  You can read more about the special forms required at our website at www.taxmeless.com.

Remember, if you have failed to file required forms 3520 and 3520A for your Mexican Fideicomiso that means you have until 9/9/11 to file all past forms (if the real property has not produced revenue) without penalty under FAQ 18 in the rule to the program.

You also have until that date to file all past forms for your Mexican Corporation (form 5471) if  you have reported all taxable income from that corporation on your personal tax return without risk of penalty.

Form 3520A due on 3/15/11 For Your IRS Reporting Requirement for Fideicomisos

Report your Fideicomiso to Uncle Sam

Form 3520A is due on 3/15/11 to comply with IRS requirements for reporting your Fideicomiso. That form can be extended until 9/15/11 if you file form 7004 by that due date. The related Form 3520 is due on the extended due date of your personal tax return.

If you have a US Corporation or LLC, those returns are due on 3/15/11 also for the 2010 tax year unless you file for an extension. There are now stiff penalties for not filing these returns on a timely basis based on the number of months it is filed late and the number of shareholders or members of the entity.

MEXICAN FIDEICOMISO PROPERTY OWNERSHIP BY US TAXPAYERS – WHAT ARE THE IRS FILING REQUIREMENTS?

By Don D. Nelson, Attorney at Law, C.P.A.

If you own your Mexican real estate through a Fideicomiso you have a yearly U.S. Tax filing obligation with the IRS.  There are  two informational forms which must be filed each year by  Fideicomisos which have been deemed to be foreign trusts.   These filing requirements are set forth below:

•    Form 3520A is due on March 15th following the end of each calendar year. The due date of this form can be extended for six months if the extension is filed before the due date..  None of the Banks in Mexico who act as trustee will file this form for your as required by US tax law.  Therefore, you must file it yourself since it is you the IRS will penalize if it is not filed. There is a penalty of 5% of the value of the assets in the trust for failing to file this form. This penalty can be waived for resonable cause. The form contains information on the Fideicomiso, its beneficiary(ies), its income and expenses, and the value of its assets, etc.

•    Form 3520 is due on the extended due date of your personal tax return. However it is filed separately from your personal return. Failure to file this form can result in a penalty equal to 35% of the value of the Mexican real estate  transferred to  the Fideicomiso. This penalty is currently waived if you provide the IRS with a reasonable late filing excuse.  This form mostly duplicates the same information contained in the form 3520A the addition of other informational items.

•    The Fideicomiso must secure a US Federal ID number from the IRS.  The ownership of all US owners must be reported.

•    If you the property you own in your Fideicomiso has been your primary personal residence for 2 out of the past 5 years, and you filed jointly with your spouse, the first $500,000US  ( $250,000US if you are singled) can be exempt on your US tax return.  You can claim a foreign tax credit for taxes paid on your sales gain in Mexico against your US tax on any gain on the sale in excess of the exemption amount.

•    If the property in your Fideicomiso is a rental, you must report the income and expenses on of the rental on your US tax return.  You must  depreciate the value of the improvements and structure on the property over a 40 year period.  Keep in mind that you must also file and pay income and IVA taxes on your rental income in Mexico or risk problems with the Hacienda.

In the past year several attorneys have written articles analyzing the IRS foreign trust filing requirements and have expressed their opinion that a Fideicomiso is not a foreign trust and should not have to file Form 3520 and 3520A. That is good theory, but does not reflect the position of the IRS.  Unfortunately the  Fideicomiso document is worded  as a foreign trust, holds title to the property in your behalf, and is administered by the Mexican Bank trustee. The IRS has never issued any pronouncement in  writing  that exempts Fideicomisos from filing the forms. Representatives of the IRS have indicated that it does not  have any plan to exempt Fideicomisos from filng these forms. Therefore, if you chose not to file you are at risk of  being assessed the high penalties for nonfiling as set forth previously.

If you own your Mexican real estate through a Mexican corporation you are required to file Form 5471 each year with your US income tax return. This form reports various information on the shareholders, income and expenses, and assets and liabilities of the corporation and the property it holds.  Failure to file this form on filing it late can result in a $10,000 per year penalty.  If you have a reasonable excuse for late filing that penalty is currently usually waived, though this policy may change in the future.

___________________________________________________________________________

Don D. Nelson is a U.S. Attorney and C.P.A.  who has been assisting US Citizens who live, work or own property in Mexico with their US tax  return filing requirements  and tax planning for over 20 years.  He is a recognized US international and expatriate tax expert.  In the past six years he has assisted a large number of Americans file their Fideicomiso US Tax Forms and has been  to date very successful in helping all of them avoid any penalties for filing past years or filing late.

No  need to visit his office. All services and return preparation is provided to clients by phone, email, fax and the internet. Contact him if you need assistance filing the required Fideicomiso US Tax forms.  Most accoutants and tax preparers do not understand these forms or know they exist. Since the forms are not filed with your personal tax return, they can be prepared and filed separately from that return.  Our if you wish, we can prepare all of your US and state income tax forms.

 Visit Don' websites at www.TaxMeLess.com & www.ExpatAttorneyCPA.com  Email: ddnelson@gmail.com   US Phone (949)481-4092.

For the lastest developments and news concerning US and Mexican taxes visit his blog at www.us-mexicantax.blogspot.com

Fideicomiso US Tax Compliance Update - Don't Miss the 9/23/09 deadline!

Under the IRS Offshore Voluntary Disclosure Program if a Fideicomiso Beneficiary has failed to file Form 3520A and 3520 (when required) they have until 9/23/09 to file those forms for the past six years without penalty if the property held by the Fido has produced no income during those past six years.  Though the IRS has not been clear, it has implied that after that date if someone files their past unfiled forms 3520 and 3520A forms they may impose the $10,000 late filing penalty for each year whether or not the Beneficiary has a reasonable excuse for late filing.  The same rules hold true for Fido Beneficiaries that have reported all of their income from the Fideicomiso, but failed to file the Forms 3520 and 3520A.

If you had unreported rental income from the Fido property and did not file those forms you must talk with an international tax expert to determine if you should enter the Voluntary Offshore Disclosure Program or risk the potentially  bigger penalties of not entering the program.  9/23/09 is the deadline to take action or risk  being assessed the tremendous penalties that the IRS can impose for not filing these forms.

US Fideicomiso Taxation

If you own property in Mexico in a Fideicomiso you must file Forms 3520 in its initial year of existence and in its final year of existence. You must file form 3520A for each year that it exists. That form was designed to be filed by the Trustee Bank, but none of them will do it, so therefore under IRS rules you as the beneficiary must file the form. These forms are filed separate your from your personal tax return. These forms must be filed even though your income is too low to require you to file a US tax return.

Failure to file these forms can result in monetary penalties. If the property in the fideicomiso generates no income (your house) or generates income and you have reported it on your US tax return if you attach a late filing excuse the penalties will be waived. If it generates income you did not report on your US tax return you may want to consider the IRS VOLUNTARY OFFSHORE DISCLOSURE PROGRAM which will end on 9/23/09 which could reduce your penalties for non filing and will stop any criminal prosecution for violating US tax law.

More information is at: http://www.taxmeless.com/page11.html



If you own property in a Mexican corporation you must file form 5471 with your yearly US tax return whether or not it makes income or you are required to file a US tax return. We will discuss this in a separate blog post.

If you wish assistance with these forms or with the Offshore Disclosure or forms 5471 contact me. I have over 20 years experience in Mexican - US taxation and other international tax matters. I do spend a great deal of time in Mexico and understand its business, real estate and taxes.