FBAR’s and Fideicomisos: To File or Not to File, That is the Question (The Article)

To file or not to file, that is the question:
Whether ’tis nobler in the mind to suffer
The slings and arrows of outrageous fortune,
Or to take arms against a sea of troubles,
And by opposing end them?

To die: to sleep; No more;
and by a sleep to say we end
The heart-ache and the thousand natural shocks
That flesh is heir to,
’tis a consummation Devoutly to be wish’d.
To die, to sleep;

To sleep: perchance to dream: ay, there’s the rub;
For in that sleep of death what dreams may come
When we have shuffled off this mortal coil,
Must give us pause: . . .

Yes, sometimes it seems easier to shuffle off this mortal coil, than to fill-out and file Federal Forms with the US Treasury and the IRS. (Where filing on-time from Mexico presents its own problems: if you use Turbo-Tax, you can only e-file from Mexico if you still have and list a US address, while H&R Block’s TaxCut allows e-filing from Mexico, without a US address.)

Back to the points about FBAR’s and Fideicomisos:

Requirements for US Tax filing . . .
Since we just went through the annual Tax-Time angst rituals, I raised the question among some ex-pat internet pals on filing requirements the FBAR (Foreign Bank and Financial Account Reporting) for aggregate foreign accounts and trusts worth more than $10,000K on the Mexconnect website – with emphasis on Fideicomiso requirements – and the following reply came back:

“I was concerned about Fbar filing. I called the treasury dept.
I spoke to a women in the Fbar division I started telling her about fidecomisos before I could get the entire word out she mentioned fidecomisos. I asked her how she knew about them? She said many people called last year to ask if they have to file Fbar for the trust. She said it was discussed in full detail and since the trust is not used for stock bonds, or any other type of investment and no cash could go in or out you do not have to file no matter the value of the property in the trust.
She said if I wanted to I could ask the IRS that deals with Fbar, she gave me their email address.
I emailed the question in explaining I have a fide. and explained that the other person in Fbar division said you do not have to file if you have a trust.

I got an answer back (one word: correct)”

http://www.mexconnect.com/cgi-bin/forums/gforum.cgi?post=162522;sb=post_latest_reply;so=ASC;forum_view=forum_view_collapsed;page=last;#last

This seems to tie a nice bow onto the question of whether US expats who own homes/property using Mexican real estate trusts (Fideicomisos ): Since no cash, nor stocks, nor options are transferring is moving in or out, the logic says thatFideicomiso trusts for Mexican real estate do not require Form TD F 90-22.1 filing.

Having cleared that up, note that current national IRS policy is that US taxpayers with Mexican property Fideicomisos must file 3520’s and 3520-A’s by March 15 of every year, unless they get a personal waiver letter from the IRS. Read IRS Manual Chapter 22. International Error Resolution – Section 19. Foreign Trust System – 3.22.19.1.1.1 (01-01-2013) FIDEICOMISO (a.k.a. Foreign Trust)

======================================================
2013 FIDEICOMISO UPDATE
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 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.

========================================================
Skeptics might note the date (Jan. 1, 2013), if they believe that IRS policy has changed.

Further: If you have aggregate foreign bank accounts or investment or cash trusts exceeding $10K in that Tax Year, you still have to file.

In a follow-up report of the web author’s communications with Treasury Dept. officials, the Treasury and IRS are currently standing behind the stipulation that if filers are reporting all income, then the Fideicomisos on property are not an issue, yet the Treasury folks further explain that they are currently drafting a formal release of their final opinion(s)/ruling(s) on the matter of Fideicomisos, which leaves the door slightly open for higher-ups to possibly reverse the US Govt’s current position.

The official IRS & Treasury rules on FBARS are listed in these web Publications & FAQ’s:
http://www.irs.gov/businesses/small/article/0,,id=210244,00.html
http://www.irs.gov/businesses/small/article/0,,id=148849,00.html

The actual form is at:
http://www.irs.gov/pub/irs-pdf/f90221.pdf

Disclaimer: Yucalandia and its authors are not tax preparation experts, though they have been doing their own US tax filings for 46 years, are 10:10 in disputes raised by US tax officials, have coincidentally prepared returns for 8 other individuals over the years, and enjoy accumulating and passing along helpful tidbits of tax information for others to do with what they wish. Granted, this truly is an odd hobby. . .

Helpful?

* * * *
If you liked this article, you might also check out our growing body of articles on tax issues for expats in Mexico:

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

~ 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

~ Comparing Tax Rates and Tax Policies for US Earned Income and Mexican Earned Income

* * * *
Please Continue to Make Comments and Replies to Help Keep This Information Current!
Disclaimer: This information is not meant as legal advice. It is for educational and informational purposes only. Government policies vary between States and offices, and Mexican Government officials have broad discretion in how they individually enforce policies, so, your personal experiences may vary. See a professional for advice on important issues.

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

Read on, MacDuff!

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54 Responses to FBAR’s and Fideicomisos: To File or Not to File, That is the Question (The Article)

  1. Pingback: FBAR’s and Fideicomisos: To File or Not to File, That is the Question | Surviving Yucatan

  2. Cindy says:

    Our neighbor here in Baja Sur was audited last year by the IRS and faced severe penalties for not filing or reporting his Fideicomisos on the 3530/3520A forms. He hired an attorney out of Texas (costing $10k dollars) who took his case to the National office of the IRS . The National office told the local IRS agents to back off, but they would not go as far as to state their position in writing regarding fideicomisos. He did not have to pay the penalties which were $350k dollars.

    After his experience, we filed the 3520’s for the first time last year and hired a CPA to assist with back- filing for the 5 years prior. It’s a pain in the butt. This is a very informative website- are there articles here where you’ve discussed this issue? Opinions abound on online forums regarding this issue.

    Thanks for the info about the FBAR filing. I wasn’t aware this form was required for our new Mexican checking account (and had no idea there was a question regarding it’s application to Fide’s). I thought it was strange when I filed out the 1040 this year where it asks about foreign bank accounts but doesn’t ask you to elaborate. Our US tax guy made no mention of the FBAR filing requiremnt either – thanks dude.

    • yucalandia says:

      Cindy,
      Great to hear from you!

      Expats here in Mexico tend to believe that Mexico is the (only) Land of Bureaucratic Personal Interpretations. It seems their Northern Brethren in the US IRS have learned some of the same tricks. A friend here advises that your friend request a formal ruling from the IRS in Washington DC on their case. The rulings, issued as individual letters, are not broadly or universally binding on future IRS decisions for everyone, but if enough expat fidei comiso holders howl for letters, the IRS jeffes in Washington may get the message that Fidei Comisos should not be considered financial instruments => hopefully they will will make a new rule/regulation that Fidei Comiso holders do not have to file under FBAR requirements.
      THANKS!
      steve

  3. Tony says:

    There’s scores of ways to get the wrong impression when dealing with these complex issues. You were right, in your website, to say that fideicomisos are not accounts so as to trigger a Form TD F 90-22.1 filing, but the information should have been elaborated to say this did NOT mean you didn’t have a Form 3520 and 3520a filing requirement.

    • yucalandia says:

      Hey Tony,
      The guidance/advice out of Washington’s IRS office on FBARs says that real estate Fideicomisos should not be treated as fiscal instruments reported under FBAR rules, but this is NOT a final RULE. As a result, some individual IRS offices and IRS agents are fining Americans with Fideicomisos that are not registered under FBAR rules.

      The IRS may ultimately rule that Fideicomisos must be filed as Foreign Trusts, since Americans can realize significant capital gains on the purchase and resale of foreign real estate, and we know how the IRS wants to tax all gains/income.
      steve

  4. Tony says:

    I think the two reporting requirements must be clearly distinguished, to avoid confusion, the first being those which related to foreign accounts, and the second being those that relate to foreign trusts. They each have their own rules, and require the use of different forms.

    Comments about FBAR not requiring the reporting of foreign trusts, which seems to be the case to me, too, should not be understood to mean that the requirements to report foreign trusts, which is another of the reporting requirements, do not apply.to fideicomisos.

    Cautious practitioners are recommending that fideicomisos be reported annually, as foreign trusts, until the IRS rules otherwise.

    • Scott says:

      All this seems very condradictory to me, but basically, regarding fideicomismos specifically, you don’t need to report, but do it anyway. I am buying a property, previously held by a presta nombre for years, and applying for a fideicomismo, which I believe I will get. The property is beachfront, on the coast south of Puerto Vallarta, in the Federal Maritime Zone land, and has a Federal concession. The bank is telling me that they have no reporting requirement to the US and also that Federal Maritime zone land is treated differently. I have alsways tried to keep way under the IRS radar, and I do not want to do any differently now. I think I would rather keep the property owned by a Mexican citizen (presta nombre) with a Power of Attorney from him, as the previous owner did, and take my chances. But should I continue with my Fideicomismo application, can anyone give me the name of a competent english-speaking tax attorney, who specializes in the proper filling out and filing of all necessary reporting forms (Puerto Vallarta area)

      • yucalandia says:

        Hi Scott,
        You do need to report Fideicomisos, or risk $10,000 USD to $25,000 USD fines per property per year, since Tax Year (TY) 2011. This is not just an opinion, but it is the direct instructions given by the IRS in special training seminars that they have conducted for Tax CPAs in the USA for the past 3 years.

        It is an informational filing only.

        Your bank can tell you anything they want to say about supposedly not needing to file, because they are not liable. The IRS rulings and IRS actions have been very clear on this, American citizens who own property through any foreign trust, i.e. a Fideicomiso, must file, since TY 2011. If you do not wish to file in future tax years, you can apply to the IRS for a personal waiver or personal exemption from filing. You still must file informational filings on Fideicomisos anyway in the meantime, until the IRS officially grants your personal waiver, or you are liable for nasty fines and penalties.

        There are multiple expats from across Mexico who are reporting that they are being hit with the $10,000 per year fines, plus retroactive penalties and interest back to TY 2011. They are appealing these fines and penalties, but so far, we have read no reports of success. If the IRS believes that you are intentionally avoiding filing, and that you have basically filed past returns in bad faith, they can hit you with penalties of up to 40% of the asset’s worth, in addition to the other fines. The IRS says they have hired an additional 1,500 agents to pursue these claims.

        We don’t know of any competent attorneys in the Puerto Vallara area.
        All the best,
        steve

  5. Hello Guys, quick question: are there any Canadians accessing this site for information. I notice most of the topics relate to US expats and don’t see any Canucks replying?? I would love to hear from some Canuck expats.

    Lauren

  6. Horst says:

    A similar issue arises with respect to “trusts for sale” of English land. Since joint tenancy and tenancy in common cannot be registered with more than 4 titleholders and becomes unwieldy in any case, it is common to name nominees as “trustees”. The beneficial owners have for all purposes absolute right to deal with the property and receive its fruits, and they and their estates have the same tax consequences, as if they were on the title. Some US persons file 3520, others do not. I am not aware of any adverse consequences for nonfiling. (As others have said, FBAR has nothing to do with this situation.)

  7. John says:

    See Private Letter Ruling PLR 201245003

    • yucalandia says:

      Hi John,
      Good citation. For others who want to read it, go to http://www.irs.gov/pub/irs-wd/1245003.pdf .

      I have been looking for proof that the IRS has actually broadly decided that this individual IRS ruling on a single individual case, now applies to ALL Mexican Fideicomiso land trusts in the special border and coastal zones. For the last 4 years, the IRS office in Washington DC has been granting this exemption, ON A CASE BY CASE basis – issuing letters just like this one. Regional IRS offices did not necessarily follow the GUIDANCE out of Washington.

      I have found no evidence of a broad national IRS ruling that Mexican Fideicomisos are exempt from being treated as foreign trusts.

      Do you have a citation of either an IRS court ruling or and IRS circular or other IRS national publication or press release that applies to all US citizens with Mexican Fideicomiso trusts? If there is only this one letter, then, things have not changed for everyone.

      Without an official national ruling, the IRS appears to be contining its policy of the past 4 years to grant waivers/exemptions to some individuals on a case-by-case basis…

      I say all this, because just last year, special official IRS training seminars for CPA accountants with clients in foreign countries specifically said, in writing, that the Americans with Fideicomisos must report them or face stiff penalties.

      ===============================
      A bit more research shows that the scrubbed file you referred to had a cover letter from the IRS. In the cover letter, the IRS agent wrote:

      This letter provides general information only and does not constitute a ruling. See Rev. Proc. 2010-1, §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.

      So, we are no further along than we were 3 years ago…. EACH American who has a Fideicomiso, MUST still make individual applications to try to get the waiver – and their regional IRS offices can and DO reject some claims and approve some others…

      Just like Mexico – where each office has discretion to make their own rulings that contradict other office’s prior rulings.
      steve

      • yucalandia says:

        For those who have not read the individual ruling that John cited: There are various discussions going on expat websites where some individuals say that this letter exempts them from reporting their Fideicomisos. Unfortunately, there are simultaneous reports by at least 2 individuals who are currently being forced to pay $10,000 and $25,000 USD fines for not filing.

        The interpretations that advise US expats to not report their Fideicomisos, unfortunately ignore one clause on the last page of this IRS individual agent’s personal ruling:

        “… This ruling is directed only to the taxpayer requesting it. Section 6110(k)(3) of the Code
        provides that it may not be used or cited as precedent. ”

        I think this pretty much puts the issue to bed.
        Happy Holidays!
        steve

      • Joe says:

        I like that your reading of this is so conservative. That´s a big contrast with others who may comment on this ruling so as to imply that filings may be unnecessary, broadly speaking. I cite as an example the following which, though it contains a disclaimer, can be highly misleading.

        http://intltax.typepad.com/intltax_blog/2012/11/irs-rules-that-mexican-fideicomiso-is-not-a-trust.html

      • Scott says:

        Thanks, Steve, for your information. I do need to contact a good streetsmart tax attorney regarding fideicomismo reporting. Even though you do not know one in the Puerto Vallarta area, can you point me to one, wherever they are, who can help me??

        Regards

        Scott

  8. John says:

    Steve–

    As far as I know, the IRS has not issued a Revenue Ruling that would bind the Service with respect to all taxpayers. The cost of obtaining a PLR can be pretty steep. In my experience, Revenue Agents are unlikely to ignore a PLR ruling in an audit of another taxpayer. In the event a Revenue Agent took a contrary position, the taxpayer could seek Technical Advice from the National Office–the process would be similar as applying for a PLR, but no fee is required.

    The Austin, Texas, lawyer who obtained the PLR wrote a good article on fideicomisos and U.S. taxation in Trust & Estates a few years back. Having obtained one, she has told me she is willing to do similar PLR requests at a discounted rate.

    http://www.sjbt.com/repository/pub-res/What's%20a%20Fideicomiso.pdf

    John

    • Joe says:

      I didn’t like this article quite as much as you did, John. Have a careful look at pages 29-30 in which the author makes assumptions about the nature of the fideicomiso which, at least in my case, are not justified.

  9. Pingback: IRS Reporting Requirements for Fideicomisos / Mexican Land trusts | Surviving Yucatan

  10. Joe says:

    I agree with John that it is important to clearly indicate whether we are talking about filing requirements relating to foreign accounts, or whether we are talking about the filing requirements relating to foreign trusts, to avoid confusion. I’ve been filing FBARs for years. Although it took me some time to decide how, exactly, to execute the forms relating the foreign trusts, starting when I bought my condo, I now find it quick and easy to do the reporting required each year.

    I think it’s been pointed out, but neither the FBAR nor the foreign trust filings are part of a tax return, the only mention of either appearing in Schedule B, and in reports of taxable income or capital gain, when there is any.

    • yucalandia says:

      Joe,
      Agreed, agreed, agreed. The filing dates are different, as are the mailing addresses, from the common US IRS Apr. 15 deadline for filing personal income taxes. They may or may not be tax returns, since for some filers these are only informational filings, while for other filers they do describe potential tax liabilities, especially in areas where US tax rates may be higher than Mexican tax rates. There were a few years when we were getting 4% – 6% per month interest on some of our Mexican accounts, and under the current rulings, we would owe US taxes on them. Capital gains may also be owed NOB in the USA or Canada when a Mexican property is sold, with the Fideicomiso filing identifying changes in property value over time. (?) (Which is why some IRS agents and some IRS regions are requiring US expats to report their Fideicomisos, since 2011.)
      steve

  11. Joe says:

    Not to quibble, Steve, but I think it is important to stick to the terminology to avoid confusion: these information filings may indeed contain data that relate to potential tax liability, but that does not make them tax returns.

  12. Joe says:

    Steve, I think you’re right to caution people against relying to readily on web postings that would suggest filings are unnecessary. For me, on the question whether to file FBAR’s, 3520’s and 3520a’s, the fact that filing them creates no new liabilities for taxes or penalties, and not filing them can, is enough for me to know what to do.

  13. Ric Hoffman says:

    Did you know that U.S. Citizens can now file TD F 90-22.1 (FBAR) via the BSA web site as individuals? This is the link: http://bsaefiling.fincen.treas.gov/main.html for information and registration. This may be really good for those up your way to know so they no longer have to use snail mail or courier service to file.

  14. pedro gonzalez says:

    Mexico just signed and agreement http://www.treasury.gov/resource-center/tax-policy/treaties/Documents/FATCA-Agreement-Mexico-11-19-2012.pdf with the US that basically will have all Mexican financial institutions report to the US most financial accounts of US citizens in Mexico. I am not sure if Land Fideicomisos are Reportable accounts or not, according to the treaty,

    On page 33 of the agreement we find the following

    II. Deemed-Compliant Financial Institutions. The following categories of institutions are
    Non-Reporting Mexican Financial Institutions that are treated as deemed-compliant FFIs for
    purposes of section 1471 of the U.S. Internal Revenue Code:

    D. A fideicomiso the assets of which consist solely of real property.

    Does this means that Fideicomisos will not be reported or it might just depend on what the bank choses to do?
    May be somebody will have a clearer understanding of this vital issue than me and will elaborate.

  15. Pingback: Fideicomisos and FATCA: US – Mexico Agreement on FATCA Reporting Requirements | Surviving Yucatan

  16. Joe says:

    Thanks, Pedro, for this. My own take on it is that a fideicomiso whose assets consist solely of real property does not have to be reported by the Mexican financial institution, under the terms of this bilateral agreement. It does not affect the duties otherwise imposed on the U.S. person to report the existence of fideicomisos and foreign accounts in which he has an interest, as I read it, however.

    • Joe says:

      Here is a page, taken from the IRS website, that may help clarify a part of the reporting duties: I found it helpful.

      When first dealing with the 3520 and 3520a reporting-filing issues I spent a good deal of time trying to decide whether my fideicomiso fit the definition of a grantor trust, as defined by the tax code. Ultimately I decided that it clearly was. Reference to this type of trust is made to this in the webpage above. The significance of this for me consists primarily in the understanding that all the tax and reporting obligations associated with the fidei are mine.

  17. Pingback: Tax Issues for Americans Living and Working in Mexico – A Redux for 2012 | Surviving Yucatan

  18. Joe says:

    Steve, this being your website I’m a little reluctant to call attention to things I think might mislead but I’m concerned that only careful and well informed readers will fully appreciate that your comments about no need to file reports of fideicomisos, under the FBAR reporting requirements may lead some to think you are suggesting that Forms 3520a (due Mar 15) and 3520 (due when the tax return is due) do not have to be filed for fideicomisos, either. Some nonfilers may also have taken comfort in the report contained in your blog that IRS had agreed not to require Mexican Banks for report the existence of fideicomisos in the hands of U.S. taxpayers but my response is to say, why should they when they can get the information from another very official Mexican source, the Ministry of Foreign Affairs, which must approve every fideicomiso issued.

    On another forum a poster has just reported being assessed a $10,000 penalty for matters related to Forms 3520a, and 3520. I, personally, believe that we are still in the early years of enforcement in this area and that more and more fideicomiso holders will be receiving these notices in the years to come.

    • yucalandia says:

      Hi Joe,
      You are exactly right about filing 3520 and 3520-A on fideicomisos – as the IRS Webpage on this points out in:
      Part 3. Submission Processing
      Chapter 22. International Error Resolution
      Section 19. Foreign Trust System


      3.22.19.1.1.1 (01-01-2013)
      FIDEICOMISO (a.k.a. Foreign Trust)
      The name for Trust in Spanish is “Fideicomiso.”
      Process all Form 3520 or Form 3520-A returns where the name of a Trust begins with “Fideicomiso” as you would any other Form 3520 or 3520-A return.
      Any statement attached to Form 3520 or 3520-A questioning whether a Form 3520 or 3520-A is required to be filed must remain attached to the return.

      3.22.19.1.2 (01-01-2013)
      Form 3520-A Background
      Form 3520-A, Annual Information Return of Foreign Trust With a U.S. Owner is the annual information return of a foreign trust with a U.S. owner. It is used to set forth a full and complete accounting of the:
      Trust’s activities
      Trust’s operation
      Other relevant information

      In addition to the above, the U.S. owner is responsible for ensuring that the trust furnishes such information annually to himself and, if any, to other U.S. Owners, and U.S. beneficiaries of the trust who receive a distribution in that year.

      Form 3520-A is filed and processed at the OSPC.
      The due date for Form 3520-A is the 15th day of the third month following the end of the trusts tax year. The return can be a Fiscal or Calendar year return.

      Form 7004 is used to request an extension of time to file for Form 3520-A.

      Any tax arising from an inclusion of an item of income reported on Form 3520-A must be paid with the tax return of the owner (i.e., Form 1040, Form 1120, Form 1041, Form 1065, etc.).
      http://www.irs.gov/irm/part3/irm_03-022-019r.html

      Good points, especially about future IRS enforcements. Every American taxpayer with a Fideicomiso in Mexico must file the forms, unless they have received a personal exemption letter from the IRS specifically exempting them from filing. US Taxpayers can apply for an exemption (for future years), but they must still file in the meantime to avoid $10,000 to $50,000 penalties.

      I have edited this post to reduce the chances for misperception(s). THANKS,
      steve

  19. Joe says:

    On my computer there is no indication which of your articles contains new comments from readers: is there a way to highlight those to which new comments have been added, since a reader last looked at a thread?

  20. Dear Readers of Fideicomisos and Shakespeare

    I am impressed with the thoughtful comments and understanding of what is a very complex area of the U.S. international tax law. I am a U.S. international tax lawyer (former accountant) who also studied international law in Mexico City in the 1990s. http://www.procopio.com/attorneys/patrick-w–martin I happen to be the tax partner in charge of a team of specialized international tax lawyers, many of whom studied in Mexico and then later in the U.S. I passed the CPA exam back in the 1980s and also worked for the IRS Chief Counsel Office some 20+ years ago.

    Our international tax team simply focuses on complex international tax law matters. Fortunately, or unfortunately, this little world is our professional life. Incidentally, my wife has a small real estate project in Mexico and so I live with these issues personally – in addition to advising various taxpayers

    This question of Fideicomisos and informational reporting under IRC Section 6048 is something that is near and dear to our hearts. One of our tax lawyers is currently on a special task force with the AICPAs and IRS regarding foreign trust reporting.

    In short, we have argued for years that the IRS should not include Fideicomisos as foreign trusts subject to reporting under IRC Section 6048 (which gives rise to IRS Forms 3520 and 3520-A). My partner Enrique Hernandez formally presented such a proposal on behalf of the State Bar, Taxation Section to the IRS and Treasury. mexican residential trusts and the reporting requirements … – Procopio
    http://www.procopio.com/…/mexican-residential-trusts-and-the-reporting-

    Many IRS and U.S. Treasury tax attorneys (particularly in Associate Chief Counsel – International; and International Tax Counsel of U.S. Treasury) have been sympathetic to this argument. Unfortunately, they could not and would not exclude Fideicomisos from reporting. As pointed out, the IRS Internal Revenue Manual (which is the Bible of the IRS and its employees) even expressly contemplates Fideicomisos and IRS Forms 3520- and 3520-A IRS Manual Chapter 22. International Error Resolution – Section 19. Foreign Trust System – 3.22.19.1.1.1 (01-01-2013) FIDEICOMISO (a.k.a. Foreign Trust)

    Where does the IRS currently stand today regarding Fideicomisos and reporting on your U.S. income tax return?

    • IRS Form 3520 and 3520-A; Other than a private letter ruling (“PLR” – which cannot be relied upon by taxpayers other than the one who requested it) that was issued to a single taxpayer last year, the IRS’ formal position has not changed. i.e., a Fideicomisos is a foreign trust and hence subject to IRS Forms 3520 and 3520-A.
    • The penalty for failure to file either form, if required, is a US$10,000 penalty. In practice, we notice that the IRS regularly waives the penalty it assesses in this area, but only after a fight. This means that it gets expensive for the taxpayer
    • I have personally had conversations with key lawyers at the IRS national office in DC, over the last few weeks, who are contemplating issuing some type of formal guidance to exclude Fideicomisos from the foreign trust filing requirements (IRS Form 3520 and 3520-A). These discussions have also been on-going with the AICPA task force regarding foreign trusts. To date, no exclusion has been issued, but I have my fingers crossed.
    • Our general recommendation is continue to file IRS Form 3520 and 3520-A; UNLESS AND UNTIL the IRS issues such guidance (e.g., in the form of a Revenue Ruling or General Counsel Memorandum). It is less expensive to do so, compared to having to fight penalties that are assessed by the IRS. We have seen numerous penalties being assessed and consistent with the IRS Internal Revenue Manual rules.

    * IRS Form 8938 (not IRS Form 3520/3520s). Next, the reporting requirements under Section 6048 (i.e., regarding foreign trusts – discussed above), should not be confused with different reporting requirements that now are in place under the 2010 tax amendments for reporting of “specified foreign financial assets”; also known as “FATCA” reporting. under IRS Form 8938. This is yet another layer of tax reporting by U.S. taxpayers and is required by IRC Section 6038D (a different code section)
    http://www.irs.gov/Businesses/Corporations/Do-I-need-to-file-Form-8938,-%E2%80%9CStatement-of-Specified-Foreign-Financial-Assets%E2%80%9D%3F

    The regulations under these provisions provide that assets held in a “grantor trust” (which virtually every Fideicomiso with Mexican real estate would be a “grantor trust”) are the assets that must be identified to see if they are so-called “specified foreign financial assets.” Real estate is NOT a “specified foreign financial asset” and hence, the general rule, consistent with the regulations, is that such real estate would not be required to be filed and reported on IRS Form 8939; PROVIDED there are no other assets held in the Fideicomiso. Be careful, however, since a U.S. citizen could always have other assets held in the Fideicomiso which could be “specified foreign financial assets’; e.g., stocks or bonds in the Mexican Bolsa. While this might be the rare case, we have seen such cases –
    http://www.irs.gov/Businesses/Corporations/InformationforUSTaxpayers

    ** Treasury Department Foreign Bank Account Report (“FBAR”) not IRS Form 3520/3520s. Finally, under a completely different federal statute (Title 31 – the Bank Secrecy Act versus Title 26 the Internal Revenue Code) imposes reporting of foreign bank and investment accounts where the U.S. taxpayer has “signature authority over” or a “financial interest in” such foreign account. Definitions of both of these concepts are expansive pursuant to regulations issued in 2011. See my article on these regulations and their application: FOREIGN BANK ACCOUNT REPORTS – 2011 R – Procopio http://www.procopio.com/…/foreign-bank-account-reports—2011-regulati...

    At the end of the day, I think the thoughts of a once famous writer, previously quoted, are worth reflecting upon:
    Whether ’tis nobler in the mind to suffer
    The slings and arrows of outrageous fortune,
    Or to take arms against a sea of troubles,
    And by opposing end them?

    Unfortunately, the tax law in this area has become absolutely far too complex. The Taxpayers Advocate has written extensively in her latest annual reports about how U.S. taxpayers are burdened by these rules. Thoughtful and conscientious U.S. citizens and other U.S. taxpayers try desperately to keep their head above water to understand these rules. Penalties abound for all of us who do not report any of these information reporting requirements (US$10,000 minimum penalty by statute for failure to file each of the above forms, when required).

    Hopefully, this helps clear up some of the confusion in this area! If not, please write to your Congressman!!! 😉 Suerte!

    Saludos – Patrick

    Ps – My disclaimer is that the above is not legal advice that anyone can rely upon for their own particular circumstances.

  21. Joe says:

    Nice of Patrick to drop by: he reinforces the argument that it makes more sense to file, than to ignore the reporting requirements. Many continue to grasp at straws to justify their decision not to file. Some will run afoul of the IRS, at some point. I do not see enforcement activity in the area diminishing and, until there is a change in the law or regulations, more and more taxpayers will be getting unfortunate notices from the IRS which are routinely closed with the words, “We apologize for any inconvenience this may have caused you….”

  22. Pingback: TAX TIME 2013 ! ~ Summaries of US Tax Laws Affecting Citzens Living Abroad | Surviving Yucatan

  23. Kaye Kirkes says:

    Okay…excited to hear your take on the new law passed today…Articulo 27, doing away with fideicomisos and allowing direct residential ownership of beach and border land without a fideicomiso or trust. It states residential…does that mean you can have no rentals or any type of economic gain now? And will we no longer have to file 3520’s and 3520 A’s if we are no longer in a trust? Anxious to hear from you, Steve!!

    • yucalandia says:

      Auuuuuughhh…. We have to find a copy, read it … digest… ruminate…

      Has anyone seen a copy yet? I don’t think it will be published in the in the D.O.F. until Peña Nieto signs it.
      steve

    • yucalandia says:

      Hi Kaye,
      Note that the Constitutional amendment still needs approval from the Senate and a majority of the country’s 32 state legislatures to become law. Summaries of the the law are saying that foreign ownership of land in the 50 km zone for “commercial purposes” is prohibited. … No renting without a Fideicomiso or corporation …

      One key quoted section says:
      Que el uso de las tierras sea destinado para vivienda única y exclusivamente. Que el uso de las tierras no tenga uso comercial, industrial, agrícola o cualquier otro que implique explotación económica directa o indirecta que derive de un uso a la vivienda o casa habitación. El extranjero deberá convenir con la Secretaría de Relaciones Exteriores, en los términos de la fracción primera, párrafo noveno, del artículo 27 constitucional. En caso de que las tierras sean destinadas a un uso distinto al de vivienda, la ley establecerá los procedimientos para que el extranjero pierda los bienes adquiridos en beneficio de la nación.

      “~ These lands are intended exclusively and only for (private) housing.
      ~ These lands are not to be used for commercial, industrial, agricultural or any usage the directly or indirectly economically exploits these lands, as they are being used for living and (private) housing.
      ~ The foreign owner must agree with the Ministry of Foreign Affairs, under the terms of the First Part (fracción), Ninth paragraph of Article 27 of the Constitution.
      ~ In the case where the lands are intended for uses other than housing, the law shall establish procedures for that the foreigner loses their previously acquired benefits (loses rights the property?) to benefit the nation of Mexico. ”

      Still looking for a copy of the actual text of the bill,
      steve

  24. Kaye Kirkes says:

    I realize that now, after reading a better translation of the article. I am now just wondering when it will come up for a vote in the Senate?

  25. Good News! The IRS is about to release Revenue Ruling 2013-14 directly addressing these foreign trust/fideicomiso reporting issues head on; for the public at large.

    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).

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

    FINALLY, finally, finally!!! The IRS has taken recommendations made by our offices over the years and the Taxation Section of the State Bar of California to treat the typical MLT as NOT a foreign trust – http://www.lacba.org/Files/Main%20Folder/Sections/Taxation/Files/5.pdf‎

    This will certainly simplify the rules and provides a common sense approach to a very real problem that affects many of us.

    Kind regards,

    Patrick W. Martin
    International Tax Partner

    Procopio, Cory, Hargreaves & Savitch LLP
    525 B Street, Suite 2200
    San Diego, CA 92101
    direct dial: (619) 515-3230
    direct fax: (619) 744-5430
    patrick.martin@procopio.com
    http://www.procopio.com

    Antes de imprimir este mensaje, asegúrese de que es realmente necesario. Gracias. P

  26. Just when you thought this was over!

    I’m curious if any one has actually read Revenue Rule 2013-14. From the lack of responses to the announcement, I have a feeling that most people only read the headlines stating that a Fideicomiso is not a trust required to file Form 3520/3520-A

    Unfortunately, if you read the Revenue Ruling you’ll see that it does not apply to everyone. The Ruling does not apply “if the trustee is permitted to perform any activity beyond holding title.”

    An expert in this area sent the following information in response to comments made on http://fideicomiso.wordpress.com/**
    **Editor’s note: This link takes you to the poster’s personal website.

    “I’ve read your interesting commentary on fideicomisos. As part of my practice, I am involved in negotiating and documenting fideicomisos for US clients on a daily basis.

    There is no fideicomiso contract that is limited to the bank merely “holding title”.

    Bear in mind that a fideicomiso is a creature of contract under Mexican law and thus, it does not exist as a separate legal person like a corporate entity or even a US Trust.

    The Mexican banks that act as trust fiduciaries (fiduciarios) build protective mechanisms into each trust which allows them to take certain actions under various circumstances including, but not limited to execute mortgages to create a lien against the property, take an instruction to sell the property, to enter into long-term leases, etc.

    All these things must be done at the instruction of the trust beneficiary but since the technical title to the land is in the name of the Bank, virtually any action could be deemed to be beyond merely holding title.”

    Juan E. Zúñiga

    http://www.rimonlaw.com/professionals/juan-zuniga

    From Mr. Zuniga’s opinion, one can easily conclude that IRS Revenue Ruling 2013-14 applies to nobody, as all of the Banks that are Fideicomiso trustees are permitted to perform tasks beyond holding title.

    That being said, tread carefully when deciding whether or not to continue filing!

    John Dillinger, CPA, CGMA, PFS, MS.tax
    Dillinger Carter & Associates, Inc.
    400 Oyster Point Blvd., Suite 114
    South San Francisco, CA 94080
    http://www.dcataxservice.com

    • yucalandia says:

      Dear Mr. Dillinger,
      As a US CPA in San Francisco, I suspect that you have limited experience working with Mexican Notarios or Mexican Attorneys on complex real estate law issues. Mexican law, especially in the area of real estate and tax status is very dense, and not easily understood by outsiders. If you ask 5 Mexican attorneys about even modestly complex real estate/tax-law issues, you generally get 5 different answers from licensed professionals. From reading Mr. Zuniga’s personal web page, Zuninga has impressive US business law credentials, but one quick look at his resume and his titles reveal that he is missing both the “Lic.” and “CPA” qualifications (or US Tax Law certifications) after his name.

      The absence of the “Lic.” says that he has not qualified to practice law in Mexico. The absence of CPA and apparent absence of formal training in US Tax Law on foreign trusts also speaks volumes.

      When someone without qualifications offers advice that is completely contrary to the expert opinions of Mexican Notarios and Mexican lawyers, and contrary to US tax experts, then each reader has a choice: Should they:
      ~ Follow the advice of someone with no formal qualifications in Mexican law, and zero published background on US tax law, an individual who has not passed even the lowest levels of official Mexican certification, who also offers ZERO legal references, and ZERO specific examples, and ZERO legal precedents or official decisions, and ZERO official IRS policies & decisions, to confirm his personal interpretation of Mexican law? or

      ~ Follow the advice of fully trained, well-experienced US and Mexican professionals, esp. US Tax experts well-experienced in IRS policies on Foreign Real Estate trusts?

      Each person can decide who they want to represent them on Mexican real estate matters and complex US/international tax matters on trusts: An American with a Harvard law degree, and no published Mexican law license and no published right to practice law in Mexico and no published expertise in US tax law, or to hire a licensed experienced US or Mexican professional. Most people would consider hiring a US Tax expert, who knows US tax laws on foreign trusts.

      It is also worth noting that Mr Zuniga lists his best attributes and highest most important skill levels and experience as: “Commercial Transactions” and “Mergers and Acquisitions“. Do most readers believe that Harvard-trained US Merger and Acquisition specialists are the best choice, especially when the M&A guy is preaching things that are the exact opposite of what is reported in the Press, and the opposite of Mexican legal professional’s opinions, and is ironically the opposite of months of multiple IRS publications ?

      Now, to return to practical real-world examples of Fideicomisos that are KNOWN to not qualify, consider Americans who have Fideicomisos that allow them to rent their properties, and to generate revenues: This class of revenue generating Fideicomisos have been described as being required to file annually with the IRS. Do good experts miss or forget to mention actual areas where the IRS has said that Mexican Fideicomiso holders must file?

      We at Yucalandia are also not legal experts, and as such we offer/quote the expert opinions of licensed professionals and citations of actual laws and regulations, and we do not offer or give legal advice.

      Happy Trails,
      steve

  27. Pingback: 2014 Reporting requirements, trusts and financial accounts - Playa del Carmen & Riviera Maya Forum by In The Roo

  28. John Dillinger, CPA, PFS, MS.tax says:

    Hello Steve,

    Please excuse my tardy response to your response. Unfortunately, I recently received notice of the post.

    First I want to state the following: Steve, If I previously struck a nerve, I apologize.

    I think that you are doing a great job keeping the public informed on the situation.

    My only issue is that I would have been even more impressed if you mentioned, as the AICPA did, that the Revenue Ruling only applies if “the Bank is not permitted to perform any activity beyond holding title”. However, the majority of professionals have also overlooked this sentence when discussing Revenue Ruling 2013-14.

    My comments follow yours and are in (parenthesis)

    As a US CPA in San Francisco, I suspect that you have limited experience working with Mexican Notarios or Mexican Attorneys on complex real estate law issues. Mexican law, especially in the area of real estate and tax status is very dense, and not easily understood by outsiders. If you ask 5 Mexican attorneys about even modestly complex real estate/tax-law issues, you generally get 5 different answers from licensed professionals.

    (Actually, I have quite a bit of experience with Mexican Notarios and Mexican Attorneys. Most recently, I was in Merida and a Mexican Attorney was discussing Revenue Ruling 2013-14.
    I asked him if he had read the ruling. He said that he had heard about it from a US client. I informed him that the ruling doesn’t apply if the bank is permitted to perform activities beyond holding title to the property.

    The Attorney was shocked and said “then the ruling applies to nobody”.

    However, I agree with you regarding asking 5 attorneys a question and getting five different answers. It’s the same in the US. Give 100 CPAs tax information and you’ll receive 100 different tax returns!)

    From reading Mr. Zuniga’s personal web page, Zuninga has impressive US business law credentials, but one quick look at his resume and his titles reveal that he is missing both the “Lic.” and “CPA” qualifications (or US Tax Law certifications) after his name. The absence of the “Lic.” says that he has not qualified to practice law in Mexico. The absence of CPA and apparent absence of formal training in US Tax Law on foreign trusts also speaks volumes.

    (Hmm, I don’t think that I follow your logic here. We are not questioning Mexican Tax Law.

    What we are questioning is U.S. Tax Law. The only issue is whether or not a “Bank is permitted to perform any activity beyond holding title” to determine if a Fideicomiso is covered under Revenue Ruling 2013-14.

    Typically an International Transactions Attorney with over 20-years of experience with both a Bachelors and J.D. from Harvard isn’t considered to be lacking in qualifications)

    When someone without qualifications offers advice that is completely contrary to the expert opinions of Mexican Notarios and Mexican lawyers, and contrary to US tax experts, then each reader has a choice: Should they:

    (Agreed, each reader has a choice! Unfortunately, it appears that most tax professionals who have posted on the internet, did not actually read the entire Revenue Ruling and simply stated that a Fideicomiso is no longer required to file Form 3520 or 3520-A.

    As with all IRS code, regulations and rulings, one must read all the way to the bottom of the authority to see if the document actually applies to their situation.

    In this case, the comment that “if the Bank is permitted or required to engage in any activity beyond holding legal title the revenue ruling does not apply”, causes great concern.

    This statement could be a huge “gotcha”! How can anyone possibly tell if their Fideicomiso is covered under the Revenue Ruling if they do not have a translated copy? That is, unless they can read Spanish.

    This is why the AICPA Trust Committee stated that they would continue to review trust agreements to evaluate whether they fall under the Revenue Ruling when they publicly thanked the IRS for the Ruling.

    Additionally, each “vanilla” translated Fideicomiso Trust document that I reviewed contains clauses that cause concern. When I forwarded these comments to the AICPA Trust Committee, I was told that the clauses contain characteristics that potentially may viewed by the IRS as not within the scope of the Revenue Ruling, and that the beneficiary should request a Private Letter Ruling.

    Therefore, in a situation that can result in such great penalties, I advise that nobody follow anybody.

    Instead, one must wonder what would happen if they were audited by the IRS.

    What would happen If the IRS noticed their Fideicomiso and read Revenue Ruling 2013-14 and asked for proof that the Bank was not permitted or required to engage in any activity beyond holding legal tile?

    How do you think the IRS Agent would respond to I don’t know it’s all in Spanish?

    I think the IRS Agent would require a translation and that one had better hope that nothing in the Fideicomiso Trust Document even hints that the Bank is permitted to perform any activity beyond holding title.)

    ~ Follow the advice of someone with no formal qualifications in Mexican law, and zero published background on US tax law, an individual who has not passed even the lowest levels of official Mexican certification, who also offers ZERO legal references, and ZERO specific examples, and ZERO legal precedents or official decisions, and ZERO official IRS policies & decisions, to confirm his personal interpretation of Mexican law? Or

    (Again, I’m a little confused here. A International Transactions Attorney with both a BA & JD from Harvard Law School, who creates Mexican Fideicomiso’s, has zero experience? Again, we are not discussing Mexican Tax Law. We simply need to know if the Bank is permitted to perform any activity beyond holding title)

    ~ Follow the advice of fully trained, well-experienced US and Mexican professionals, esp. US Tax experts well-experienced in IRS policies on Foreign Real Estate trusts?

    (You are correct, the AICPA Trust Committee stated that they would continue to review trust agreements to evaluate whether they fall under the Revenue Ruling)

    Each person can decide who they want to represent them on Mexican real estate matters and complex US/international tax matters on trusts: An American with a Harvard law degree, and no published Mexican law license and no published right to practice law in Mexico and no published expertise in US tax law, or to hire a licensed experienced US or Mexican professional. Most people would consider hiring a US Tax expert, who knows US tax laws on foreign trusts.
    It is also worth noting that Mr Zuniga lists his best attributes and highest most important skill levels and experience as: “Commercial Transactions” and “Mergers and Acquisitions“. Do most readers believe that Harvard-trained US Merger and Acquisition specialists are the best choice, especially when the M&A guy is preaching things that are the exact opposite of what is reported in the Press, and the opposite of Mexican legal professional’s opinions, and is ironically the opposite of months of multiple IRS publications?

    (Have you read any translated Fideicomiso documents?

    I have, and all of them contain clauses that permit the Bank to perform activities beyond holding title. When I presented these clauses to the AICPA Trust Committee, I was told that these were not “vanilla trusts”.

    Well, they were “vanilla trusts”. This is why I agree with Mr. Zuniga, it’s my experience that Fideicomiso trust documents contain comments that permit the Bank to perform activities beyond holding title.

    While I cannot say all Fideicomiso Trust Documents contain such clauses, I can state that my experience reading the documents concur with Mr. Zuniga’s statement that there are protective mechanisms built in to each trust which could be deemed to be beyond merely holding title.

    As a result, I believe it is dangerous for anyone to act as if Revenue Ruling 2013-14 pertains to them unless they have a trust document that they are able to both read and understand.

    Additionally, if any comments suggest the Bank is permitted to perform an activities beyond holding title they should request a Private Letter Ruling or obtain a ruling from a tax professional with good Professional Liability Insurance.)

    Now, to return to practical real-world examples of Fideicomisos that are KNOWN to not qualify, consider Americans who have Fideicomisos that allow them to rent their properties, and to generate revenues: This class of revenue generating Fideicomisos have been described as being required to file annually with the IRS. Do good experts miss or forget to mention actual areas where the IRS has said that Mexican Fideicomiso holders must file?

    (I’m not sure where you received this information regarding revenue generation?

    If you read the Revenue Ruling, Situation 1 discusses a property that is occasionally leased and that the owner reports the income on their US federal income tax return.

    The holding is that under Situation 1, they do not have to file as a foreign trust unless the bank is permitted or required to engage in any activity beyond holding title. The receipt of occasional rental income is not an issue. However, the Revenue Ruling does not address the factor of regular rental income.

    The Revenue ruling does not state that revenue generating Fideicomiso’s must file From 3520/3520-A. However, the beneficiary does need to report the income on either Schedule C or E.)

    Saludos!

    John Dillinger, CPA, CGMA, PFS, MS.tax
    Dillinger Carter & Associates, Inc.
    400 Oyster Point Blvd., Suite 114|South San Francisco, CA 94080|T. 415.524.7572 x111|F. 415.524.7571
    http://www.dcataxservice.com|jdillinger@dcataxservice.com

    IRS Circular 230: This message (including any attachments) contains confidential information intended for a specific individual and purpose, and is protected by law. If you are not the intended recipient, you should delete this message. Any disclosure, copying, or distribution of this message, or the taking of any action based on it, is strictly prohibited.

    Any tax advice included in this communication was not intended or written to be used, and it cannot be used by any taxpayer, for the purpose of avoiding any penalties that may be imposed on the taxpayer by any governmental taxing authority or agency.

    • yucalandia says:

      Good Morning Mr. Dillinger,
      Well said. All of it.

      The bit about revenue generation came from a Notaria who interpreted renting the property, acting as a landlord, using the property as a hostelry, or collecting rent or lease payments, etc “additional activities” that disqualify the property from being exempt.

      This interpretation made sense to my crude understandings.
      Thank you for all the good inputs,
      steve

  29. Pingback: Tax Implications of Having a Fideicomiso

  30. Joe says:

    This may have been asked and answered somewhere else on your site, Steve, but knowing that a number of people have now filed what they said was a “final” annual report of their fideicomiso, relying on the revenue ruling under discussion here, has anyone you’ve heard of had any response at all from the IRS, or any inquiry from the IRS, after doing so?

  31. Joe says:

    Sounds like that’s “no,” then. Thanks!

    • yucalandia says:

      Hi Ron,
      I didn’t completely understand your question the first time.

      Yes, people are filing “final reports’ with the IRS, and the friends we know who have filed them (through accountants) have not heard any more about it from their accountants.

      Thanks for hanging in there with us,
      steve

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