Everything You Wanted To Know about Buying, Selling, Owning, Renting and Occupying Real Property in Mexico from MLS Baja

The list of articles on this link includes almost everything you need to know about real estate law, taxes and ownership in Mexico . It is put together by the Baja Sur MLS and is a great compilation of knowledge from the experts.  SEE INDEX OF AVAILABLE ARTICLES HERE.

If you need help with US taxes in Mexico or rental taxes on Mexico properties, email us at ddnelson@gmail.com

Buying and Selling Real Estate in Mexico - Reality Check on Enforcement of the Contract

When you buy or sell real estate in Mexico brokers and agents sometimes tell you that everything is done differently in Mexico than in the USA.  While in many respects, there are some differences, many parts of the process are remarkably similar to the USA.  Therefore, you should make sure your contract contains the same protective clauses and paragraphs you will find in a US contract of sale.   Using the California Association of Realtors contract as a guide is a good place to start when reviewing the contract given you by the RE agent, and making changes and improvements.

Where their may be some differences in the law, there are hugh differences in the enforceability of the contract.  Why?  The difference arises due to the Mexican legal systems, courts and the extremely long time in many areas of Mexico it takes to get a judgement or decision.  It can easily in some areas of Mexico take 5 or more years to get a judgment and sometimes due to factors not usually encountered in the US, the decision in any lawsuit may not be the correct one.

What is the solution?  Write a good contract and in the event a dispute arises, make certain it contains a mediation and arbitration provision.  The arbitraion laws are excellent in Mexico and if you and the other party agree to arbitrate it is likely you will resolve your dispute within  8 to 12 months.  That decision is then entered into the Court as a judgment.  Most arbitration are binding and cannot be appealled ( unlike most Court judgments in Mexico which are often appealled adding many more years to the final decision).

If you want to learn more about arbitraion or mediation, the clauses to put in your next contract, and how to have a dispute arbitrated or mediated, email us a ddnelson@gmail.com   If all parties agree, you can even remove your case from the Courts and have it decided by arbitration.  It is even legal to have the arbitrator be a US attorney or a panel of US and Mexican attorneys with real estate experience. Due to the speed of the process, you may save a lot of money in costs and attorneys fees.

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.

Mexico introduces tax amnesty program – U.S. businesses with pending tax disputes in Mexico should consider immediate action

2013 Mexican Tax Reform Law

Mexico introduced a comprehensive tax amnesty as part of the 2013 tax reform published in the Mexican official gazette on December 17, 2013. Under the program 80 to 100 percent of federal tax debt and related penalties incurred by companies and individuals are forgiven upon request of the taxpayers. Tax penalties for 2012 and 2013, other than penalties for failure to pay the tax, are also reduced by 60 percent.

General conditions. Under the tax amnesty program initiated by the Mexican tax authority (Servicio de Administración Tributaria - SAT) 80 to 100 percent of tax debt of individuals and entities will be forgiven based on the taxpayer's request to the extent the tax debt originated from tax obligations incurred before January 1, 2007.

The amnesty program also allows for a 60 percent reduction of penalties, other than penalties for failure to pay the tax, for the years 2012 and 2013 to the extent such penalties are paid within 30 days of receiving the tax authorities' notification about the penalties.

The amnesty program is part of the 2013 tax reform law (Ley de Ingresos) that was approved by the Mexican parliament on December 13, 2012.

Scope of the amnesty. The tax debt that is covered by the amnesty may be due to omission of income; failure to pay federal income tax or trade import duties (cuotas compensatorias); inflationary interest and penalties regarding either the federal tax or trade import duties; and penalties due to the failure to comply with federal tax obligations other than the payment of the tax (e.g. reporting obligations).

Taxpayers, that have been under SAT audit for tax years 2009, 2010 and 2011 and where the SAT determined as a result of the audit that there had been no tax deficiency or where the taxpayer paid the tax deficiency found by the SAT, will be granted a 100 percent forgiveness of the pre-2007 tax debt.

Mechanics for requesting tax forgiveness. Taxpayers may request the forgiveness of their tax debt by submitting a written application to local office of the SAT corresponding to the taxpayer's domicile or corporate seat.

U.S. corporations or owners of Mexican corporations with operations in Mexico should carefully review their federal tax and trade import duty situation in Mexico for the years involved. Applying for the tax amnesty may result in significant tax savings. The tax amnesty seems to also apply to tax amounts that are under dispute with the Mexican tax authority including amounts that are being litigated in court. Obtaining forgiveness for disputed amounts may bring further savings as it would eliminate dispute and litigation costs.

PRIVATE LETTER RULING OBTAINED ON FIDEICOMISO FILING FORMS 3520 - PLR 201245002

For the first time ever the IRS has made pronouncement concerning whether a Mexican Fideicomiso beneficiary has to file US tax forms 3520 and 3520A.  PLR 201245002.

The bad news is that it made this pronouncement by way of a Private Letter Ruling which is only binding on the IRS with respect to the taxpayer who applied for the ruling. The IRS  IS NOT bound by the holdings in the ruling with respect to other taxpayers. Other taxpayers also by law can not cite a Private Letter Ruling as authority for their position.

The Private Letter Ruling held that in the particular factual situation of the Taxpayer who applied for the ruling that the US Taxpayer was not required to file the Forms 3520 for that Taxpayer's Fideicomiso.

Whether referring to this private letter ruling will cause the IRS to eliminate penalties for not filing Forms 3520 for a Fideicomiso cannot be determined at this time.  For any filer to be completely certain they did not have to file these forms, the IRS would need to make a written public announcement that such filing was not required.  For the last 7-9 years the IRS has been requested to make such a public written holding, and has not done so to date.  READ THE RULING HERE THAT HAS NOW BEEN PUBLISHED 

Quick Expat Tax Facts for Gringos Living and Working in Mexico

· If you are a US Citizen you must file a US tax return every year unless your income is less than $ 9,500 (for 2011 and lower for earlier years) or have self employment-independent contractor  net income of more than $  400 US per year.  You are taxable on your world wide income and required to report it regardless of whether you filed a tax return in your country of residence.

· As an US expatriate living in Mexico on 4/15, your 2011 tax  return is automatically extended until 6/15 but any taxes due must be paid by 4/15 to avoid penalties.  The return can be further extended until 10/15/12 if the proper extension is filed. You may even be able to get a further extension until 12/15if you send the IRS the proper letter.

· For 2011 if you are a qualified expatriate you get a foreign earned income exclusion (earnings from wages or self employment) of $92,900, but this exclusion is only available if you file a tax return.

· If your spouse works and lives in Mexico, and is qualified, she can also get at $92,900 foreign earned income exclusion. A foreign housing deduction or exclusion is also available if you earn in excess of the foreign earned income exclusion. This amount varies by country.

· You get credits against your US income tax obligation for the taxes paid to Mexico or another foreign country on that same income but you must file a return to claim those credits.

· If you own 10% or more of a  Mexican  corporation, LLC or partnership or are a beneficiary of a Foreign Trust such as a  Fideicomiso in Mexico, you must file special IRS forms each year or incur substantial penalties which can be greater including criminal prosecution if the IRS discovers you have failed to file these forms.

· Your net self employment income or independent contractor income  is subject to US self employment tax of 15.3% (social security) which cannot be reduced or eliminated by the foreign earned income exclusion unless you work in one of the few countries the US Social Security Administration has a social security agreement with and pay social security to those countries. Mexico does not have a social security treaty with the U.S.

· If at any time during the tax year your combined highest balances in your  Mexican bank and financial accounts such as brokerage accounts, cash surrender value of foreign life insurance policies, foreign pensions, etc. (when added together) ever equal or exceed $10,0US you must file a FBAR form with the IRS by June 30th for the prior calendar year or incur a penalty of $10,000 or more including criminal prosecution. This form does not go in with your personal income tax return and is filed separately to a different address.

· In the several past year the IRS has hired more than 2,000 new employees to audit, investigate and discover Americans living abroad who have failed to file all necessary tax forms. Mexico has a treaty with the US for complete exchange of all tax information between the two countries.

· Often due to foreign tax credits and the the foreign earned income exclusion expats living abroad  when filing  all past year unfiled tax returns and end up owing no or very little US taxes.

· Beginning in 2011a new law is in effect which requires all US Citizens report all of their world wide financial assets if in total the value of those assets are $50,000 (and this may vary depending on your filing status) or more on form 8938.  Read more about the rules here.

· Income from certain types of foreign corporations are immediately taxable on the US shareholder's personal income tax return.  If your corporation only provides your personal services to customers you may have a Foreign Personal Holding Company which would cause all income to be immediately taxable to you. Income may also be immediately taxable when the income is from investments, rents, etc. This is call “Subpart F” income.

· If you own investments in a foreign or Mexican corporation or own a foreign mutual fund shares you may be required to file the IRS forms for owning part of a Passive Foreign Investment Company (PFIC) or incur additional, taxes and penalties for your failure to do so. A PFIC is any foreign corporation that has more than 75% of its gross income from passive income or 50 percent or more of its assets produce or will produce passive income.

· The IRS is now matching up your US passport with your US tax records and knows if  you  have not been filing all required US tax returns while you are living  Abroad.  The IRS will shortly start matching up information received from Foreign Banks with US tax returns and required FBAR forms. If you have not been reporting, now is the time to start.

· Download your 2011 US tax return questionnaire prepared expressly for Americans living in  Mexico HERE.  Our rates begin at $350 and up for returns claiming the foreign earned income exclusion and $250 and up for retirees living in Mexico not claiming that exclusion.

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 Don  D. Nelson, CPA, Attorney (Kauffman Nelson LLP) has been assisting US Citizens , Permanent Residents and nonresidents in over 40 countries around the world with their US tax planning, tax return preparation, and other tax / legal matters for 20 plus years. He offers his clients attorney-client privilege which is not available from other tax accountants. He has helped hundreds of US expatriates around the world “catch up” filing their past late returns most often with little or no tax cost to you the delinquent taxpayer. His main office is at 34145 Pacific Coast Highway #401, Dana Point, California 92629 USA.

• Visit our websites at www.TaxMeLess.com  or  www.expatattorneycpa.com .
• Email Don at ddnelson@gmail.com.
• US Phone 949-481-4094 or US fax 949-218-6483.
• Don's skype name is: dondnelson.

Our Tax Services Include

• US Expatriate and International Tax Return Preparation for Americans in Mexico
• US Nonresident return preparation for Mexican Citizens
• Review of IRS International Tax Forms Prepared by you or your tax preparer.
• Preparing and filing tax returns for past years – Our “Catch Up” tax service.
• Surrender of US Citizenship or Green Card Tax Planning and Assistance.
• International Business Tax Planning for Mexico and compliance.
• IRS Offshore Voluntary Disclosure Reprsentation and filing.
• IRS Audit Representation with respect to Expatriate and International Tax Issues

Mini Tax Consultations are available for you to discuss your situation with Don your personally and secure his counsel resolving your tax problems and future tax planning by phone or email. No personal visit is required. All consultations are subject to the absolut privacy and confidentiality of Attorney-client privilege. LEARN MORE HERE.