IRS Tax Issues for Americans Living and Working Abroad in Mexico – Master Article

February 9, 2020

This is Yucalandia’s Master Article on tax issues for Americans living abroad.  (… We report this, because this website has many other tax articles that may or may not be updated and current – which means we need to do some housecleaning. 😉 .

Because IRS rules have been changing these past years, we ask readers to refer to this article for your current issues.  (Treat the other articles as archives – resources in case the IRS questions things you did in the past – because this year’s IRS rulings/changes do not grandfather-in past rules or past filings.)

~ CLICK HERE ~ to jump to the Table of Contents for Key Tax Issues Sub-Sections:

It is that time of year … again …   ~ The time of year when our banks, employers, mutual fund companies send us notices of our income from last year, which allows us to pay our annual tribute to the State and Federal Governments, as we scramble to figure out what to do.

Brave readers who venture into reader’s Comments on other Yucalandia articles have noticed that there have been a spate of questions about tax issues for expats living and working in Mexico. This year’s questions have taken on more specific and detailed forms than ever, including Fideicomiso filing issues (3520 & 3520 forms), even to the level of requesting specific advice about their particular personal situations. Scary, nu ?

Anyway, getting back on point, several Yucatan readers have asked some particularly good questions that no easy references to find on the internet.

Having no formal references that are found by Google searches … had left me puzzling over how to best answer a SPECIFIC tax question from a US teacher in Mexico … teaching English as a second language …  and How much would she owe the US Govt ??**

Hint … Study the 1992 Mexico-USA Tax Convention … and dig into the fine print clauses  on exempt “Personal Services”.** 😉

It got messier as yet another US teacher asked how much ($$) a potential teacher living in China would hypothetically have to pay in US taxes if he moved to Mexico to take a position, and if he sold property with Capital Gains, and if he emptied part of his 401K realizing substantial dividends, and if he took social security benefits. The latter poster even gave substantial-looking references/links to official Accountants advice and US News magazine reports that indicate he would have to pay on all-of-the-above (a box I always hated to check).

This article provides the specific official IRS references for people to read about their situations.

Why read this article?
Quick … Tell us where your official residence is …
Seriously … Where is your residence?

Is it where you maintain status as a registered voter (back in the USA) … Is it the place you spend 183 days or more a year? … Is your “tax home” the address where any income is paid??

Officially:
“Principle place of activity” is USA’s terminology for determining “residency” … – while the “Center of vital interests” is the Mexican ISR tax code’s determinor of place of “residence”.
😉

Notice that our tax residence (or “tax home”) is NOT defined as the USA IRS’s place where we spend 183 or more days per year. …   Then notice,  that claiming to be a “bona fide resident of a foreign country”  takes the US IRS a full 2½ pages of official publications, to determine if you actually are a resident of Mexico under IRS definitions.  (Read the details on this below.)

.
.
.
Table of Contents for Key Tax Issue Sub-Sections:Quick
~ Click on an Issue to jump there. ~
~ Commonly Known US IRS Rules for Innocents Abroad

~ Tax Guide for U.S. Citizens and Resident Aliens Abroad

~ Got Worldwide Income?

~ Got Foreign Income or Foreign Accounts?

~ IRS and Mexico SAT’s Definitions of a Tax Home

~ Where to File… and When to File…

~ E-Filing

~ New Developments in International Taxation: Possible Fideicomiso Exemptions

~ Now that You are Planning to File – on time – … ~ How to Proceed ~ :

~ Just what taxes are owed by US Citizens earning income in Mexico?

~ Recent Changes in IRS Requirements for Americans Living Abroad – FBAR and Fideicomisos and FINCEN

~ FATCA Requirements for Expats with over $50,000 total in Foreign Accounts and Trust and Recent July 2014 requirements to File W-9’s to certify your Exempt status.

~ A tip for teachers, who get paid for teaching in Mexico.

~ OTHER Key Tax Items Affecting Americans Living in Mexico

~ Is US Pension Income and Social Security Income Taxable by Mexico?

~ US Income Taxes on Other Mexican Income Sources

~ Income from Immovable Property (Real Property)”>

~ Pension income and Social Security benefits

~ $3000 Income exemption for artists, performers, athletes et al.

***********************************************
~ Useful Internet References:
~ Publication 54, Tax Guide for U.S. Citizens and Residents Abroad (IRS PDF)
~ Publication 4732, Federal Tax Information for U.S. Taxpayers Living Abroad (IRS PDF)
~ International Frequently Asked Questions (IRS Website)

International Taxpayer – Internal Revenue Service

~ http://www.irs.gov/pub/irs-trty/mexicotech.pdf

US – Mexico Tax Treaty

Publication 901 (04/2013), U.S. Tax Treaties

* * * * * * *

And now, the rest of the story…

Commonly Known US IRS Rules for Innocents Abroad
Many old-hands to Mexico know that there is a Foreign EARNED Income Exclusion (aka FEIE) of $107,600 for Tax Year 2020 (TY 2020): IRS: Foreign Earned Income Exclusion , which begins a cascade of web-links that we list at the end of this articles, and insert only occasionally at the author’s whim…

In addition to the FEIE, U.S. expats can also exclude or deduct their foreign housing costs from their gross income, provided they qualify under the US-IRS’s bona fide residence or physical presence tests (see below) .

The housing exclusion also applies to employer-provided amounts, which includes any amounts paid to you or paid or incurred on your behalf by your employer that are taxable foreign earned income for you. Using the housing deduction, instead of an exclusion, applies to amounts paid for with self-employed earnings. Note that the foreign housing exclusion and/or the deduction will reduce your regular income tax, but they do not reduce your self-employment tax owed in the USA. See Form 2555.
Note: They do not include expenses that are lavish or extravagant under the circumstances, nor the cost of buying property, purchased furniture or accessories, nor improvements and other expenses that increase the value or appreciably prolong the life of your property.

* * * * * * *

FOREIGN TAX CREDIT RELIEF –
Under our USA-Mexico Tax Treaty, income taxes paid in once country, are credited against those owed in the other country. As such, a number of foreign taxes might appear to be “income” taxes, they but do not qualify for purposes of taking the foreign tax credit. For instance, foreign real estate taxes, sales taxes, luxury taxes, turnover taxes, value-added taxes, and wealth taxes, are generally not creditable.

The employee portion of foreign social security taxes in certain countries can be considered a foreign income tax available for the foreign tax credit.

* * * * * * * *
Other old-hand-expats (a.k.a. non-gringos) know about the 330 day requirement for “physical presence” outside of the US (for that TY) to definitively qualify as a Resident of Mexico for IRS tax purposes * , while they are not fully a Resident of Mexico if “The resident is present in the United States for more than 183 days in a 12-month period.“***

Confused? In cases where you are in the USA for more than 35 days out of a non-leap year Tax Year (TY), but less than and 184 days, you use the rules for Dual Resident Taxpayers (liable for taxes in both countries for a given TY).**

Ready to go down the rabbit hole? (or through the looking glass…)
Conundrums? The stock and trade of the US IRS.

Next, remember that not everyone who is exempt from paying taxes is also exempt from filing an IRS return. e.g. Even though you may qualify for the Foreign Resident Earned Income Exclusion, you may still need to file.

Tax Guide for U.S. Citizens and Resident Aliens Abroad
Got Worldwide Income?
Armchair expat experts might know that the Publication 54 – Internal Revenue Service, Tax Guide for U.S. Citizens and Resident Aliens Abroad tells us you have to consider  your total worldwide income: Single filers must file a US return for worldwide gross income exceeding $10,000 for TY 2013, and joint filers must file a US return for gross income exceeding between $20,000 to $22,800 depending on your ages.****

IRS Publication 54 Tax Guide for U.S. Citizens and Resident Aliens Abroad- Filing Requirements for US Citizens:
“Your income, filing status, and age generally determine whether you must file an income tax return. Generally, you must file a return for 2018 if your gross income from worldwide sources is at least the amount shown for your filing status in the following table.

Filing Status* Amount (s)
Single …………………….  $12,000
65 or older ………………. $13,600
Head of household …………… $18,000
65 or older ………………. $19,600
Qualifying widow(er) …………. $24,000
65 or older ………………. $25,300
Married filing jointly ………….. $24,000
Not living with spouse at end of
year …………………… $ 0
One spouse 65 or older ……… $25,300
Both spouses 65 or older ……. $26,600
Married filing separately ……….. $12,000

*If you are the dependent of another taxpayer, see the instructions for Form 1040 for more information on whether you must file a return.”

The filing requirements for income amounts listed above  do not include the form 8938 filing requirements for $50,000 total in any combination of foreign accounts on the last day of the tax year, or $75,000 at any time during the tax year, …  or the FBAR reporting requirements for having $10,000 aggregate in foreign accounts at any time during the calendar year. Joint filing threshold limits are higher for both categories. ****

= = = = = =
UPDATES:

September 2017 Update on Mexican Taxes owed by Foreigners
See this link:

SAT Clarifies Mexican Income Taxes for Foreigners

Jan. 25, 2021 UPDATE:
Mexico’s Current Tax Rates:
http://world.tax-rates.org/mexico/income-tax?fbclid=IwAR36OizEO1nHcqZh8uuw0GkcEUhmOVl-G4bvlB13piCSYFa4w0yVdgGY9sA

Dec. 16, 2016’s UPDATE  ~ Treasury Department CHANGES  FBAR  Filing Deadline:

~ Who says Washington can’t get anything done ~

https://www.fincen.gov/news/news-releases/new-due-date-fbars-0

For people who claim that Washington can’t get anything done:
Imagine an 2015 innocuous  Veteran’s Health Care bill,  interwoven into a new Surface Transportation bill …  and *poof*  … Treasury moles sneak in changes in FBAR reporting due dates.

Consider the 2015 Surface Transportation and Veterans Health Care Choice Improvement Act of 2015, Public Law 114-41 …  and YES… Our Washington leaders ARE accomplishing things.

But WAIT …   In typical  Washington-insider-power-player-speak …
Is the FBAR due date really April 15 ?

That would be far too succinct & clear-cut:    Instead,   our Pooh-bahs added some fine-print disclaimers:

* ~ The due date for FBAR filings for foreign financial accounts maintained during calendar year 2016 is April 18, 2017,   because even though ‘the Act’  says April 15 … 2016 TY’s Federal income tax due date is special:  April 18, 2017

and

** ~To implement the statute with    ‘minimal burden’   to the public  and (to make FinCEN’s lives easier) …  FinCEN will grant filers failing to meet the FBAR annual due date of April 15 an  automatic  extension to October 15  each year.
.
.
.
So… pick a date…  any date:   April 15…  April 18 …  Oct 15 …

They are all the same in Congress-world.

April 26’th, 2015 Update:

Per our earlier warnings, there are new FATCA provisions kicking-in on July 1, 2014, and the IRS has pulled back the curtain to reveal that ALL US citizens with foreign bank accounts or foreign brokerage accounts (FFIs), may be required to file W-9’s with their foreign financial institution, to certify whether they ARE or ARE NOT exempt from FATCA.  See more details below at:  ~ FATCA Requirements for Expats with over $50,000 total in Foreign Accounts and Trust and Recent July 2014 requirements to File W-9’s to certify your Exempt status.

We’ve also added FBAR 2014/2015 filing information for people with over $10,000 total in foreign financial accounts.  For details, see:  Filing FBAR Foreign Financial Account Information for US Citizens for FINCEN 114 – Article AND https://yucalandia.com/living-in-yucatan-mexico/filing-fbar-foreign-financial-account-information-for-us-citizens-for-fincen-114-article/

For US citizens who are claiming to be official residents of a foreign country… this link describes the filing requirements: (including the requirement to file a W8BEN)

https://www.irs.gov/individuals/international-taxpayers/claiming-tax-treaty-benefits
= = = = = = = =
~Back to the main Article:

Got Foreign Income …. or Foreign Bank Accounts?

Where you file depends on your “principal place of activity”.  Hacienda (the Mexican Treasury Dept.) has a general policy that Mexican resident’s worldwide income must be reported by expats whose principal place of activity is Mexico.   Just what does that “principal place of activity” really mean?

“Principle place of activity” is US terminology – (aka “center of vital interests”   in the Mexican ISR tax code. )   Consider how does our “principle place of activity” affects Americans moving to Mexico.     In the past, Hacienda (SAT) and INM supervisors have personally explained:   If an American residing full time in Mexico works online , works for a Canadian internet company (doing no work for a Mexican employer),   and they receive their pay outside of Mexico,    then   no   taxes are owed to Mexico.   In this case, taxes are owed in the USA where the income is paid,   even though the expat is a full time Mexican resident working for a Canadian company.   ~ Why ask INM?  It is important for expats to get the correct/proper type of residency permit, that fits their working status, and INM has to approve Residente Temporales and Visitors for working. ~

How does an American living & working full-time on the internet in Mexico, paying no income taxes in Mexico, jibe with Hacienda’s policy that Mexican resident’s worldwide income must be reported by expat residents living in Mexico?   If the gringo works in Mexico and legally resides in Mexico,   how can they owe   only  US taxes?

It all comes down to the precise legal definitions of   “principal place of activity”  terminology – aka “center of vital interests” .

Universal Disclaimer:   For complex situations, talk with a good tax professional who knows international tax law and the US-Mexico Tax Treaty.   We offer these stories for only informational and entertainment purposes, not as tax advice nor legal advice.  Still, it can be useful to read what other experts have published.

IRS Definition of “Tax Home”:
“Your tax home is the general area of your main place of business, employment, or post of duty, regardless of where you maintain your family home. Your tax home is the place where you are permanently or indefinitely engaged to work as an employee or self-employed individual. Having a “tax home” in a given location does not necessarily mean that the given location is your residence or domicile for tax purposes.”
International-Taxpayers – Foreign-Earned-Income-Exclusion—Tax-Home-in-Foreign-Country

When considering the issue of   “principal place of activity”  (aka “center of vital interests”) as related to our “tax home” (IRS terminology)  or “tax residence”  (ISR terminology),  versus our “personal residence”,  it really does make better sense to quote an expert:

Mexican Taxes by Raoul Rodriguez-Walters, Mexican Taxes by Raoul Rodriguez-Walters, CFP® Mananging Partner, Mexico Advisor,  identifies the importance of distinguishing between  our “legal residence” and “tax residence”:

“Legal residence and tax residence are two different concepts.   The first is related to the authorization, generally from the immigration authorities, to be in Mexico for a given period of time.     This authorization comes is various forms, typical examples of which are evidenced in a tourist card or an FM-3.    Tax residence, on the other hand, is defined in the tax law and tax treaties.    The distinction between who is a Mexican tax resident and who is not is important because generally non-residents are subject to higher taxes than tax residents.”

“In 2004,   the Mexican Fiscal Code (the “Code”) established a new definition of “tax resident,”  as anyone who has established an abode in Mexico,   irrespective of the time he or she has spent in the country.   The Code also stipulates that if you have one home in Mexico and another abroad,   you are considered a tax resident of the country where you have your “center of vital interests.”   Mexico considers that your center of vital interests is in Mexico if   over 50% of your income is derived from Mexican sources,   or   if you are employed (or self-employed) in Mexico.”

“There are two main repercussions for a foreigner in Mexico as regards tax residency.   The first is that tax residents are supposed to register to obtain a tax ID,   known as an “RFC”, and file an annual tax return reporting worldwide income.    The second, and perhaps more of an immediate concern to many foreigners who own real estate in Mexico,   is the ability of the foreign national to obtain a tax exemption on the sale of their Mexican residence.    This income tax exemption is outlined in the section of the Mexican Income Tax Law applicable to tax residents and is clearly meant to benefit taxpayers who have been complying with their Mexican income tax obligations.” (Author’s note:  The homeowners exemption and capital gains taxes on Mexican property sales changed dramatically in Feb. 2010.  See:   Capital Gains Taxes on Mexican Properties )

Got Foreign Bank Accounts or Foreign Financial Assets?

Check out whether you need to file FATCA Form 8938 (on Foreign Financial Assets) with your April IRS filings and/or FinCEN BSA E-Filing, Report of Foreign Bank and Financial Accounts (FBAR) Single filers need to file 8938 if  they have $50,000 total in any combination of foreign accounts on the last day of the tax year, or $75,000 at any time during the tax year.

Americans must also file FBAR reports if they have $10,000 at any time during the calendar year.  ~Joint filing threshold limits are higher for both categories.~

Unsure on if you need to file?  Check out    Publication 54, Chapter 1 Who must file  and IRS: U.S. Citizens and Resident Aliens Abroad  

To determine the US Dollar value of your 2015 Tax Year (TY) income or your foreign financial accounts,  you can use one of 3 methods:
~ Use the official IRS rate for USD to MXN Pesos for 2015:  $1 : $17.700  http://www.irs.gov/Individuals/International-Taxpayers/Yearly-Average-Currency-Exchange-Rates

or
~ You can use the each pay date’s average daily mid-market rate to convert each individual receipt.

In our personal experience, XE.com is the most reliable source for genuine exchange rates, (for when you want to actually change money), because XE actually exchanges MXN pesos, and they use real-world/real-time trade data to get their published mid-market rates. In contrast, the Australians (Oanda) do not actually exchange MXN pesos – instead, they get non-representative data from other sources. As a result Oanda’s (generally too high) rates are good to use for calculating your pesos to dollars for the IRS, while XE rates are better to use when talking with your bank about actual exchange rates.

Now that you know whether to file, we are left with:
Where to File… and When to File… IRS: U.S. Citizens and Resident Aliens Abroad

“When to File:
If you are a U.S. citizen or resident alien residing overseas, or are in the military on duty outside the U.S., on the regular due date of your return, you are allowed an automatic 2-month extension to file your return and pay any amount due without requesting an extension. For a calendar year return, the automatic 2-month extension is to June 15. …”

Where to File:
If you are a U.S. citizen or resident alien (Green Card Holder) and you live in a foreign country, and you claim the Foreign Income Exemption, (no check included) then mail your U.S. tax return to:
Department of the Treasury
Internal Revenue Service Center
Austin, TX 73301-0215
USA

If you are enclosing a check or money order, file your return with:

Internal Revenue Service Center
P.O. Box 1303, Charlotte, NC 28201-1303 USA

Residents of Guam, BVI, etc mail to their own IRS special addresses.

”

E-Filing:
“Taxpayers with an AGI (Adjusted Gross Income) of $57,000 or less can electronically file their tax return for free using freefile. Taxpayers with an AGI greater than $57,000 can either use the Fillable Forms or efile by purchasing commercial software. ” It is worth noting that some commercial software (notably past versions of Turbo Tax) do NOT allow e-filing unless you have a US IP address – and will not work if they detect you are connected to the internet in Mexico. IRS: U.S. Citizens and Resident Aliens Abroad

Now that You are Planning to File – On time – … ~ How to Proceed ~
Before diving into the guts of preparing a return and then having to make after-the-fact edits due to changes in the tax law, it is better to check for that year’s changes in the Infernal Revenue Services Tax Code. Fortunately, a quick check of New Developments in International Taxation“ for TY 2013 shows only one major item for typical expat situations in Mexico:

New Developments in International Taxation: Possible Fideicomiso Exemptions
In June, 2013 the IRS made a FINAL RULING that Mexican Land Trust (MLT) Fideicomisos now NO LONGER need to file at foreign trusts (3520/3520A) AS LONG AS your Fideicomiso specifies that your real estate trust (fideicomiso) holds just one property and only allows just ONE activity: “holding title to the property” to maintain the exempt Mexican Land Trust status.  Mexican Land Trust Not Considered a Foreign Trust (Rev. Rule 2013 – 14) (PDF)

“[An] MLT [Mexican Land Trust, or fideicomiso] is not a trust within the meaning of § 301.7701-4(a). [However] If, under the MLT agreement, B [“B” in the holding refers to your bank] holds legal title to any assets other than Greenacre or is permitted or required [by the terms of the fideicomiso] to engage in any activity beyond holding legal title to Greenacre, the holding of this revenue ruling does not apply… ”

So, the Fideicomiso must hold only one asset (one property), but it does allow renting.

IRS Bulletin No. 2013-26, June 24, 2013, has the IRS’s detailed set of analyses and detailed descriptions of Rev. Rul. 2013-14.  http://www.irs.gov/pub/irs-irbs/irb13-26.pdf

In “Situation 1” on p 1267 the IRS clearly describes the exempt type of Mexican Land Trusts (fideicomisos) and on page 1268, the IRS describes under “Situation 1”:
“X (the American taxpayer) retains the right to manage and control Greenacre.  X has the right to collect any rent on Greenacre.   In addition, X has the obligation to pay directly any taxes and other liabilities due with respect to Greenacre.    Accordingly, because X is treated as a disregarded entity under § 301.7701–2,  A (the BANK) is treated as the owner of Greenacre. ”

This one IRS publication clearly identifies an American taxpayer who has a fideicomiso as an exempt Mexican Land Trust, is not a foreign trust for tax purposes, and does not have to file the 3520/3520A forms – and DOES have the right to collect rents.

Some tax attorneys are advising qualifying MLT fideicomiso owners (who have filed on this in the past) to file one last set of 3520/3520A’s for 2014 – checking the “Final Filing” box – to officially notify the IRS that you qualify for the “IRS Rev. Ruling 2013 – 14” exemption – to keep them from pursuing you in the future if your Mexican bank notifies the IRS of your MLT real estate “title holding” only trust.    A belt and suspenders approach ???

This Brings us to the Crux of the Matter:
Just what taxes are owed by US Citizens earning income in Mexico?
There is SO much misinformation, speculation, and arm-chair quarterbacking by gringos, that it seemed like time to finally roll-up-our sleeves and dive into the famed Mexico-USA Tax Treaty IRS: UNITED STATES – MEXICO INCOME TAX CONVENTION – 1993 … all 38 pages. … not bad as treaties and Gob. documents go ,,,

But before we dive into the legalese of the 1993 Tax Treaty, it’s worth taking a look at what the IRS has summarized in: IRS: Publication 901 – US Tax Treaty Summaries . Click on the link and you find it only takes about 120 page-downs to get through the IRS summary… (In their defense, they try to address US tax issues for all countries on the planet – while we only care about ~ Mexico ~ ) Anyway, have fun scanning the Mexico section – paying special attention to the exemptions offered to professionals providing personal services, like lawyers, doctors, physicians, consultants, and … teachers(?) Remember that because the US-Mexico Tax Treaty is reciprocal, then all terms and conditions listed by the IRS for Mexicans living in the USA, also apply fully for US citizens living in Mexico. …

Recent Changes in IRS Requirements for Americans Living Abroad – FBAR and FINCEN:
Since July 1, 2012. FBAR (Foreign Bank and Financial Account Reporting) rules requires Americans with foreign accounts and trusts (including some fideicomisos) worth more than an aggregate $10,000 US dollar value “of all foreign financial accounts (that) exceeded $10,000 at any time during the calendar year” to file annual reports with the Treasury Department. http://www.fincen.gov/forms/e-filing/Efiling_FAQs.html      and   ~ Report of Foreign Bank and Financial Accounts (FBAR) ~

Plus:  Check out our update on the current April 15 ~ April 18 ~ Oct. 15  FBAR Filing Deadlines … CHANGED for 2017  … TY 2016 …

~ US Treasury Department CHANGES FBAR Filing Deadline(s) for Expats

*       *       *       *

Since our previous FBAR reports on Fideicomisos, it is worth noting that in July 2013, the IRS decided that some “single activity – title holding” real estate Fideicomisos for Mexican properties do not require FBAR filings, as long as the OWNER DOES NOT RECEIVE ANY INCOME (no rental income) from the real estate trust/property, or have any other activities permitted by the trust other than holding the land title. Still, if you are an expat married to a Mexicana, or if your fideicomiso allows other activities, and if you have Mexican bank accounts that have aggregate worth over the $10,000 limit, you are required by the US FinCEN (Financial Crimes Enforcement Network) to make annual e-filings in June with the US Treasury.

Full details on filing FBAR – FINCEN Form 114 at our article:  Filing FBAR Foreign Financial Account Information for US Citizens for FINCEN 114 – Article

ALSO NOTE: For US citizens who are claiming to be official residents of a foreign country… this link describes the filing requirements: (including the requirement to file a W8BEN)

https://www.irs.gov/individuals/international-taxpayers/claiming-tax-treaty-benefits

KEY FACTS on FBAR FINCEN Form 114 (BSA E-Filing):
~ Filing at the BSA E-Filing website is FREE.

~ FinCEN granted a general exemption for mandatory E-Filing for the FBAR until June 30, 2013.

~ FBAR filers can start the process at: File an Individual FBAR – FinCEN BSA E-Filing System

~ The US IRS has kindly recognized “that some U.S. taxpayers living abroad have failed to timely file U.S. federal income tax returns or Reports of Foreign Bank and Financial Accounts (FBARs), Form TD F 90-22.1, but have recently become aware of their filing obligations and now seek to come into compliance with the law. ” As a result the IRS announced a “New Streamlined Filing Procedure” that includes being: “required to file delinquent tax returns, with appropriate related information returns (e.g. Form 3520 or 5471), for the past three years and to file delinquent FBARs (Form TD F 90-22.1) for the past six years.”

http://www.irs.gov/uac/Instructions-for-New-Streamlined-Filing-Compliance-Procedures-for-Non-Resident-Non-Filer-US-Taxpayers

*sigh* So, it appears that if you do not owe anything, you can catch up on past omissions using their “new” systems.

============================================

FATCA Requirements:

On Feb. 1, 2012 the IRS updated requirements for Expats who have over $50,000 total of foreign financial/savings/checking/investment accounts to file a new form with the IRS every year, starting with our 2011TY filings in 2012.   Specifics can be found at IRS websites: “Foreign Account Tax Compliance Act (FATCA) IRS Nov. 16, 2012 Update” and “IRS: Summary of Key FATCA Provisions”

Yucalandia’s most CURRENT information on this is at:

IRS – FATCA Reaches Out and Touches in Unexpected Ways

Summary of Key FATCA Provisions
“The Foreign Account Tax Compliance Act (FATCA), enacted in 2010 as part of the Hiring Incentives to Restore Employment (HIRE) Act, is an important development in U.S. efforts to combat tax evasion by U.S. persons holding investments in offshore accounts.

Under FATCA, certain U.S. taxpayers holding financial assets outside the United States must report those assets to the IRS. In addition, FATCA will require foreign financial institutions to report directly to the IRS certain information about financial accounts held by U.S. taxpayers, or by foreign entities in which U.S. taxpayers hold a substantial ownership interest.

Reporting by U.S. Taxpayers Holding Foreign Financial Assets (FATCA)
IRS Website Specifies:

1. You are a specified individual (responsible for FATCA filings).

A specified individual is:

• A U.S. citizen
• A resident alien of the United States for any part of the tax year (see Pub. 519 for more information)
• A nonresident alien who makes an election to be treated as resident alien for purposes of filing a joint income tax return
• A nonresident alien who is a bona fide resident of American Samoa or Puerto Rico (See Pub. 570 for definition of a bona fide resident)

AND

2. You have an interest in specified foreign financial assets required to be reported. 

A specified foreign financial asset is:

• Any financial account maintained by a foreign financial institution, except as indicated above
• Other foreign financial assets held for investment that are not in an account maintained by a US or foreign financial institution, namely:
  • Stock or securities issued by someone other than a U.S. person
  • Any interest in a foreign entity, and
  • Any financial instrument or contract that has as an issuer or counterparty that is other than a U.S. person.

Refer to the Form 8938 instructions for more information on the definition of a specified foreign financial assets and when you have an interest in such an asset.

AND

3. The aggregate value of your specified foreign financial assets is more than the reporting thresholds that applies to you:

• Unmarried taxpayers living in the US: The total value of your specified foreign financial assets is more than $50,000 on the last day of the tax year or more than $75,000 at any time during the tax year
• Married taxpayers filing a joint income tax return and living in the US: The total value of your specified foreign financial assets is more than $100,000 on the last day of the tax year or more than $150,000 at any time during the tax year
• Married taxpayers filing separate income tax returns and living in the US: The total value of your specified foreign financial assets is more than $50,000 on the last day of the tax year or more than $75,000 at any time during the tax year.
• Taxpayers living abroad.  You are a taxpayer living abroad if:
  • You are a U.S. citizen whose tax home is in a foreign country and you are either a bona fide resident of a foreign country or countries for an uninterrupted period that includes the entire tax year, or
  • You are a US citizen or resident, who during a period of 12 consecutive months ending in the tax year is physically present in a foreign country or countries at least 330 days.

If you are a taxpayer living abroad you must file if:

Refer to the Form 8938 instructions for information on how to determine the total value of your specified foreign financial assets.”

FATCA requires certain U.S. taxpayers (described immediately above) holding foreign financial assets with an aggregate value exceeding $50,000 for those who are US residents to report certain information about those assets on a new form (Form 8938) that must be attached to the taxpayer’s annual tax return. Reporting applies for assets held in taxable years beginning after March 18, 2010. For most taxpayers this will be the 2011 tax return they file during the 2012 tax filing season. Failure to report foreign financial assets on Form 8938 will result in a penalty of $10,000 (and a penalty up to $50,000 for continued failure after IRS notification). Further, underpayments of tax attributable to non-disclosed foreign financial assets will be subject to an additional substantial understatement penalty of 40 percent. …”

Repeating one key requirement for Expats LIVING ABROAD – filing as a resident of another country:

“If you are a taxpayer living abroad you must file if:

Another IRS site goes on to describe:
“Form 8938 is required when the total value of specified foreign assets exceeds certain thresholds. For example, a married couple living in the U.S. and filing a joint tax return would not file Form 8938 unless their total specified foreign assets exceed $100,000 on the last day of the tax year or more than $150,000 at any time during the tax year.

The thresholds for taxpayers who reside abroad are higher. For example in this case, a married couple residing abroad and filing a joint return would not file Form 8938 unless the value of specified foreign assets exceeds $400,000 on the last day of the tax year or more than $600,000 at any time during the year.

Instructions for Form 8938 explain the thresholds for reporting, what constitutes a specified foreign financial asset, how to determine the total value of relevant assets, what assets are exempted, and what information must be provided.

May 26, 2014

In an unexpected twist, many US citizens living abroad may be required to file W-9’s and /or W8BEN forms … even it they are FULLY EXEMPT from FATCA. US citizens living abroad with some foreign Bank accounts, some foreign brokerage accounts, and FOREX trading accounts may soon be getting notices from their banker/broker/FOREX exchange trading firm(s) to prove/certify that the client (you) are exempt from FATCA.

For US citizens who are claiming to be official residents of a foreign country… this link describes the filing requirements: (including the requirement to file a W8BEN)

https://www.irs.gov/individuals/international-taxpayers/claiming-tax-treaty-benefits

Some foreign banks are already asking their US citizen clients to fill out W-9’s …  For details on whether you are exempt from FATCA, see:  FATCA Fallout for US Expats Living Abroad   and  ~ FATCA Requirements for Expats with over $50,000 total in Foreign Accounts and Trusts

Unfortunately, even if you are exempt,  your foreign bank or brokerage may still have IRS requirements to have you fill out W-9, to certify that you are exempt from FATCA.   (US citizens who work for foreign brokerages and foreign banks may also have to fill out a W-9A.)

Here is one good description of the details on this new IRS requirement (provided by the FOREX firm “FCCM”):

“In what cases do I need to submit a Form W-9/W8-BEN/W8-BEN-E to FXCM?

In order to determine if tax withholding is applicable, FXCM must authenticate the residency of its accountholders. For instance, if an account is held by a non U.S. citizen or non U.S. registered business entity, FXCM may require a Certification of Foreign Status, such as Form W8-BEN or W8-BEN-E for the account. Similarly, if an account is held by a U.S. citizen, U.S. resident alien or U.S. business entity, the accountholder may be required to certify his/her tax status by completing a Form W-9.”

*    *    *    *
“How will I know what Form to complete?

U.S. citizens or corporations may complete a W-9 form.
Instructions for non-US citizens or corporations can be found in detail here, and are generally outlined below for your convenience:

~ W-8BEN – non-US individual (unless individual falls under below classification)
~ W-8BEN-E – non-US entity (unless entity falls under below classification)
~ W-8ECI – non-US person with claim that income is effectively connected with the conduct of a trade or business in the United States
~ W-8IMY – non-US intermediary, non-US flow-through entity, or non-US trust
~ W-8EXP – non-US government, international organizations, non-US central banks of issue, non-US tax-exempt organizations, non-US private foundations, or governments of US possessions

The outline provided above is not intended to be exhaustive and is not warranted or guaranteed by FXCM as to its completeness or accuracy. For assistance with selecting and completing the tax Form applicable to you, please consult a qualified tax professional.”

****
“How does FATCA impact FXCM and its clients?

To be FATCA compliant, FXCM must register its own FFIs with the IRS. In addition, FATCA regulations require FXCM to review existing onboarding and withholding processes and enhance them to comply with the regulations.

As part of an enhanced client onboarding process, additional documentation may be requested for clients holding accounts at FXCM. For instance, FXCM may need to obtain tax forms (i.e. W9/W8 series documents) after July 1, 2014, from both new and existing accountholders in order to identify the client’s tax classification.”

http://www.fxcmmarkets.com/legal/fatca/

“Onboarding” (?)

Fun, fun, fun, and yes, Daddy is taking the T-bird away, on July 1, 2014.

NOTE that if you are required to file under FATCA… you are also required to file FBAR information to Treasury under the FINCEN BSA E-Filing System…

See this article for FBAR Dept of Treasury details: (separate from IRS reqmts)

Filing FBAR Foreign Financial Account Information for US Citizens for FINCEN 114 – Article

* * * * * * *

IRS annual Filings for Overseas Bank Accounts or Investment Accounts:
Form 8938 is not required of individuals who do not have an income tax return filing requirement.“
“IRS Releases Guidance on Foreign Financial Asset Reporting”

It is worth noting that the key provisions of FATCA supposedly will not kick-in until July, 2014: http://americansabroad.org/issues/fatca/acas-position-fatca/  ?    On July 12, 2013, the US Treasury Department said that due to overwhelming questions and comments from countries around the world,   (effectively postponing agreements with other countries), Treasury has extended the start of the withholding and account due diligence requirements of the Foreign Account Tax Compliance Act, or FATCA, for 6 months, until July 1, 2014, to allow the Treasury Department more time to complete agreements with foreign jurisdictions.  Treasury Delays FATCA Withholding Requirement – Accounting Today.

======================================================

**Getting back to the Questions from Readers:
Here’s a tip for teachers and other people providing personal services, (esp. the 2 who have made Comments/Questions), who get paid in Mexico for teaching or working in Mexico.
If you don’t like personally slogging & slugging through 120 page-downs of government-speak regulations… jump now to Table 2’s explanations of the US-Mexico’s Tax Treaty’s Article 14 and Article 15 that explain the reciprocal exemptions for Americans providing personal services in Mexico, and Mexicans providing personal services in the USA:

“Table 2
This table lists the different kinds of personal service income that may be fully or partly exempt from U.S. income tax. You must meet all of the treaty requirements before the item of income can be exempt from U.S. income tax. The income code numbers shown in this table are the same as the income codes on Form 1042-S, Foreign Person’s U.S. Source Income Subject to Withholding.

Independent personal services. The term “independent personal services” generally means services you perform for your own account if you receive the income and bear the losses arising from those services. Examples of these services are those provided by physicians, lawyers, engineers, dentists, and accountants who perform personal services as sole proprietors or partners.

IRS on Dependent personal services. “Dependent personal services usually are those you perform for someone else as an employee. ”

Then, paging down to the MEXICO section of the table we find that based on “Treaty Article 15”, “Dependent personal services” are exempted from US income taxes, as long as you do not exceed a “Maximum Presence in U.S.” of “183 days”, and that your employer is not a Resident of the United States. Also note that there is “No limit” of “Maximum Amount of Compensation” for US expats providing dependent personal services in Mexico.

and if you read just 2 more eeensy weeeeensy little lines, the IRS summary table says that “Studying and training:” activities are QUALIFIED PERSONAL EXEMPTION activities…

Waaaaa- Hoooooo….

Did you teachers connect the dots?
Since the Mexico-US tax treaty exempts “dependent personal services”, and… because the IRS allows “studying and training” activities as qualified TAX EXEMPT “personal service” activities, then … it sure looks like income from such teaching in Mexico, qualifies as an IRS-approved tax-exempt “personal service”. Which makes it … exempt.

(Since “teaching and training” are qualified as personal services for students, then teachers providing that “teaching and training” are providing a personal service… Even though they are not specifically identified in the tax treaty: The IRS set the precedent of “studying and training” as personal services, which means the professional teacher who teaches overseas is providing a tax exempt “personal service”, nu ?)

http://www.irs.gov/pub/irs-trty/mexicotech.pdf ============================================================

A gentle reminder: Sometimes the IRS folks need a little help finding the appropriate regs. The IRS interprets the tax rules for Mexicans working in the USA and reciprocally US citizens working in Mexico as independent contractors providing independent personal services – exactly the same way for both cases (Mexicans and US citizens – because the Treaty requires the same treatment by both/each country of the other’s citizens. Remember, even though the IRS rules are written for Mexicans working in the USA, the same rules apply for Mexicans working in the USA. This means IRS publication 901 on rules for Mexicans working in the USA are exactly the same rules for US citizens working in Mexico. (If either government doubts this: Tell them to read the Tax Treaty’s Articles 14 and 15 for confirmation.)

****************

OTHER Key Tax Items Affecting Americans Living in Mexico:
~ The 1993 Treaty expressly prohibits double taxation on income, which means that any income taxes you pay in Mexico are credited against your in-kind US taxes and vice-versa.
Let’s repeat the point:
~ The 1993 Treaty expressly expressly requires allowing credits for payments of income taxes in one country against in-kind income taxes owed in the other.

~ The 1993 Treaty expressly allows the exemptions, credits, and deductions of the other country’s tax laws:

“ARTICLE 1
…
2. The Convention shall not restrict in any manner any exclusion, exemption, deduction, credit, or other allowance now or hereafter accorded:
a) by the laws of either Contracting State; or
b) by any other agreement between the Contracting States.”

US Income Taxes on Other Mexican Income Sources: Taxes that you may owe – or be exempted-from.
Interested readers should also read the Treaty Articles that affect them. These articles are clearly written in easy-to-understand English, (if you know a little government-speak) so, search the following list for topics that may affect you:
~ Article 4: Determining Residency,
~ Article 6: Income from Immovable Property (Real Property)
~ Article 10: Dividends,
~ Article 11: Interest,
~ Article 12: Royalties,
~ Article 13: Capital Gains,
~ Articles 14 & 15: “Personal” and Professional Services,
~ Article 18: Artistes and Athletes,
~ Article 19: Pensions, Annuities, Alimony, and Child Support,
~ Article 20: Govt. Service,
~ Article 21: Students.
IRS: UNITED STATES – MEXICO INCOME TAX CONVENTION – 1993

e.g. Consider

“ARTICLE 6
Income from Immovable Property (Real Property)
1. Income derived by a resident of a Contracting State from immovable property (real property), including income from agriculture or forestry, situated in the other Contracting State may be taxed in that other State.
…
5. A resident of a Contracting State who is liable to tax in the other Contracting State on income from real property situated in the other Contracting State may elect for any taxable year to compute the tax on such income on a net basis as if such income were attributable to a permanent establishment in such other State. ”

This basically says that US citizens who realize capital gains on the sales of Mexican property owe US taxes on the gains, and that the net Mexican gains are calculated using US tax rules, allowing depreciation, and allowed deductions for expenses and improvements.

Nice, eh ?

~ Is US Pension Income and Social Security Income Taxable by Mexico?

Pension income and Social Security benefits are exempt. From the 1993 US-Mexico Tax Convention (Treaty):

Article 19
“…a) pensions and other similar remuneration derived and beneficially owned by a resident of a Contracting State in consideration of past employment by that individual or another individual resident of the same Contracting State shall be taxable only in that State;”

The last clause means that pension and Social Security benefits are basically taxable only in the “State” (country) that is paying them => Meaning that in typical expat retiree cases, (see Article 20 Government Service exceptions), US pension benefits can only be taxed in the USA, and Mexican pension benefits can only be taxed in Mexico.

We report this last item, because the internet currently has a number of seemingly reliable reports from impressive sounding authors like Deloitte and US News and World Report, who just got these two… wrong, in their most recent reports. (And yes, this Tax Treaty has been around since 1993, so, one would think that the “experts” would be able to get something so important to 10,000’s of expats retired in Mexico… not to mention the upcoming 40 million retirees who will have about $1 million of net assets as they retire between 2014 – 2030. )

and one final item to some folks who often don’t like to read government-speak:
…Treaty Article 18 describes a $3000 income exemption for artists, performers, athletes et al.

* * * * * * *
Closing Thoughts:
All you folks with Fideicomiso property in Mexico (and no personal/individual exemption letter to you from the IRS) need to file your informational filings as described in FBAR’s and Fideicomisos: To File or Not to File, That is the Question . and Single filer folks (US Residents) with over $50,000 total in foreign financial accounts need to file their FATCA filings ~ Updated 2011 IRS Requirements: Foreign Account Tax Compliance Act (FATCA) ~ Note that the FATCA thresholds for taxpayers who formally qualify under IRS rules as resident of a foreign country are higher. For example in this case, a married couple residing abroad and filing a joint return would not file Form 8938 unless the value of specified foreign assets exceeds $400,000 on the last day of the tax year or more than $600,000 at any time during the year. (Since the limits are 4X higher for US citizens who qualify as residents of foreign countries.)

Finally, I am not a professional tax preparer, and all information presented here is just for educational and entertainment purposes – please read the references (all provided) for yourself.

Why write this? I have done tax returns for the past 48 years, did years of returns for the other graduate students, did friends returns, did years of returns for 6 different Mexican friends living and working in the USA, and in the 11 times that the IRS challenged these various returns, I have so far been 11 for 11 , winning every dispute.

I do find some odd pleasure in analyzing and cutting through the Gordian knots…
steve

On that note, I am off to nap.

Disclaimer: Note that all of this information is for educational and entertainment purposes only. Please see a competent professional for all important tax and investment questions.

* * * * * * *
Internet References:
~ *IRS: Foreign Earned Income Exclusion – Requirements
~ **IRS: The Effect of Tax Treaties
~ ***IRS: Publication 54 (2012), Tax Guide for U.S. Citizens and Resident Aliens Abroad
~ ***IRS: Filing Information (for US Citizens and Resident Aliens Abroad)
~ IRS: Publication 901 – US Tax Treaty Summaries
~ ****IRS: UNITED STATES – MEXICO INCOME TAX CONVENTION
~ *****IRS: Who Must File a Return
~ *******IRS: Foreign Currency and Currency Exchange Rates
~ IRS: U.S. Citizens and Resident Aliens Abroad
~ International-Taxpayers – Foreign-Earned-Income-Exclusion—Tax-Home-in-Foreign-Country
~ IRS: New Developments in International Taxation
~ Publication 54, Tax Guide for U.S. Citizens and Residents Abroad (IRS PDF)
~ Publication 4732, Federal Tax Information for U.S. Taxpayers Living Abroad (IRS PDF)
~ International Frequently Asked Questions (IRS Website)
~ “Foreign Account Tax Compliance Act (FATCA) IRS Nov. 16, 2012 Update” and

~ “IRS: Summary of Key FATCA Provisions”

~ International Taxpayer – Internal Revenue Service

~ ~ http://www.irs.gov/pub/irs-trty/mexicotech.pdf
~ http://www.irs.gov/pub/irs-trty/mexico.pdf

~ Publication 901 (04/2013), U.S. Tax Treaties

~ International-Taxpayers – Foreign-Earned-Income-Exclusion—Tax-Home-in-Foreign-Country

For US citizens who are claiming to be official residents of a foreign country… this link describes the filing requirements: (including the requirement to file a W8BEN) … https://www.irs.gov/individuals/international-taxpayers/claiming-tax-treaty-benefits

* * * * * * *

For readers with US Tax obligations: Yucalandia has a growing body of US IRS information in several articles:

~ Capital Gains Taxes on Mexican Properties
~ Income Tax Liabilities in Mexico
~ Fideicomisos and FATCA: US – Mexico Agreement on FATCA Reporting Requirements
~ IRS Reporting Requirements for Mexico: Fideicomisos / Mexican Land trusts
~ FBAR’s and Fideicomisos: To File or Not to File, That is the Question ,
~ US Income Tax Filing Information for Ex-Pats
~ Tax Issues for Americans and Other Expats Living in Mexico
~ Updated 2011 IRS Requirements: Foreign Account Tax Compliance Act (FATCA)
~ Summaries of US Tax Laws Affecting Citzens Living Abroad
`~Filing FBAR Foreign Financial Account Information for US Citizens for FINCEN 114 – Article

~  US Treasury Department CHANGES FBAR Filing Deadline(s) for Expats

FBAR – FINCEN – BSA E-Filing:

Filing FBAR Foreign Financial Account Information for US Citizens for FINCEN 114 – Article

* * * * * * *
Feel free to copy while giving proper attribution: YucaLandia/Surviving Yucatan.
© Steven M. Fry

Read on, MacDuff.