Tax Issues for Americans and Other Expats Living in Mexico

ARTICLE UNDER CONSTRUCTION
Tax issues for Foreigners living in Mexico take a number of basic forms.
We may owe taxes on interest paid on a Bank or Investment account held in Mexico, or we may have income from part-time renting of a vacation home, or we may owe taxes if we sell a home or property, or we may have a Mexican Corporation that owns our home on the coast, or we may work here, or even own a business here.

In any case, it really does take a good Mexican tax expert like a tax attorney or tax accountant to professionally evaluate each person’s tax liabilities and to set up a scheme to keep them legal, paying their taxes owed both in Mexico and NOB (Canada and the US).

Having realized that we are not in a position to give legal advice, we can however describe the various scenarios that Americans and other expats in Mexico are likely living that cause them to owe taxes in Mexico, and then briefly examine the principles of Mexican taxation, and ultimately help expat readers understand just what their attorneys and accountants are trying to tell them.

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For those 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)
~ Tax Issues for Americans Living and Working in Mexico – A Redux for 2013

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Specifically, a Yucalandia reader observed that choosing Residente Permanente may raise some tax issues that may have lain dormant if one chose Residente Temporal instead. In Joe’s own words:
“¨What insights do you have from the foreigner’s perspective on tax liabilities?¨

Certainly the U.S. wants to tax the income of U.S. persons where ever they may live, and Mexico wants to tax the income derived in Mexico. Where it gets trickier is on the question of taxation of world wide income of foreigners, holding the status of permenent resident in Mexico.

There is an exemption for certain of foreigners´ income from abroad which is written into Mexican Tax Law and, if you´re not a citizen of Mexico, you´re clearly a ¨foreigner¨ for the purposes of this exemption, but what is not so clear to me is what happens when you assume the status of permanent resident, as ¨foreigness¨ begins to be a little more muddied, especially when coupled with physical presence in Mexico more than 180 days in 360 (the point at which you become subject to Mexican Tax,

The information provided when you sign up with Hacienda points that out: this harmonizes with the tax law of all the jurisdictions I´ve lived in, thus far, and must be an international standard for establishing residency for taxation purposes).

Like many countries, Mexico has a provision that says if you do not declare the foreign income on your Mexican Tax return, and claim it as exempt, you lose the exemption. It may just be that no one has ever tested this by declaring their foreign investment income, pension income, or social security income, derived from abroad, on their Mexican Tax return, if they file one.

Like I said, this is a question for those better versed in Mexican Tax Law than me, and there may be a reason why this is not an issue, as a matter of Mexican Tax Law: I´ll leave it to them.”

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We replied:
Joe,
Solid insights, that fit our understandings too.

Many times the person asking the supposedly “simple question” often happens to know more than the so-called “expert” they are consulting with. I think this is one of those cases, especially when personal experience trumps theoretical or strictly legal evaluations.

Have you read our older article on Income Tax Liabilities in Mexico for Foreigners? at https://yucalandia.wordpress.com/living-in-yucatan-mexico/income-tax-liabilities-in-mexico/ This article focuses on issues faced by expats from the perspectives of the previous INM Inmigrante, No Inmigrante, and Inmigrado permits. but the basic principles still apply… You might also check out our article on Capital Gains taxes for Foreigners, when they buy or sell Mexican properties. e.g. How you handle the purchase can either cost you or save you $60,000 – $100,000 USD later when you try to sell your Mexican home. See our Capital Gains Taxes article atL https://yucalandia.wordpress.com/living-in-yucatan-mexico/capital-gains-taxes-on-mexican-properties/ . In addition to the references in these articles, you might find http://www.taxmeless.com/MEXICO.htm and http://www.taxmeless.com/page4.html helpful?

For readers who are thinking, Just what are Joe and Steve fussing about?, consider:

Can you tell us: Just where is your home?….

Is it your Tax Home?
Is it the property you call “home”?
Is it your principal place of Fiscal Activity?
Is it the locale where you have full voting rights?
Is it the place where you have been the past 183 days?
Is it the place where you spent at least 183 days last year?
Is it the place that you can sell, and then claim a homeowner’s exemption on any Capital Gains taxes?

If you know the best answers, and why, then read no further. If you hesitated on even one of the 7 questions, then it might be worth reading on…

It turns out that there are different-but-equally-valid-and-legal answers to each of these questions. Further, your answer should depend who is asking you, and when they are asking.

e.g. To do things well, you should give different answers if you are responding to
~ US-CIS,
~ different answers for Hacienda,
~ yet different answers to US-CBP,
~ other answers for INM’s purposes,
~ totally unique answers to US-IRS, and
~ different answers for SRE’s question, and
~ different answers to US-State Dept/Consular Officials, and
~ yet still different answers to your local voting precinct officials…

Not to be cute, but the answers you give may either:
~ get you deported, … or save you from deportation…
~ allow you to enter a country… or get your entry denied…
~ cost you $10,000’s of dollars in taxes owed, … or save you $10,000’s in taxes avoided,
~ cost you $25,000 to $50,000 in IRS penalties, not counting interest and bad-faith penalties, or have you owe nothing.
~ trigger a decade of IRS audits going back into time, and continuing forward for another decade, or avoid IRS problems
~ allow you to vote, … or have your voting rights suspended
~ trigger tax problems with Hacienda, of which I have no ideas of the consequences
~ cause you to be detained by ICE officers for hours and hours in the basement of some US airport …
~ …???

In addition to these issues, consider the issues that Joe raised, where your choice of Residente Permanente vs Residente Temporal may dramatically affect the future taxes you may owe or avoid, based on your choice at INM today.

Anyway, this all provides more grist for our mills, and raises the issue of a need for an updated article on tax liabilities ?
steve
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What are the basic rules for Expats who do work while they are here:
Expats’ tax liabilities for work performed online or over-the-phone in Mexico comes up over and over on forums across the web. The situation becomes even more interesting if they live here full-time, doing on-line work for a non-Mexican company, and receive their pay in foreign (non-Mexican) accounts. This ball was most recently kicked-around at length on a Mexconnect thread. “Tax Liabilities in Mexico”

At first glance there appears to be a conundrum between: Hacienda’s policy that worldwide income must be reported by expats whose principal place of activity is Mexico … and INMs policy for (not?) giving visas to expats work online and live in Mexico, who do not work for Mexican employers and receive their pay outside of Mexico. This becomes further convolved with whether foreigners applying for residency in Mexico should apply for Residente Permanente (which permits the foreigner to get an RFC and work) vs. Resident Temporal.

Here’s one perspective on the issue of expats working on-line or over the phone from Mexico:
I spoke with a Merida INM supervisor last year about these specific issues, and she made a phone call to her manager to check on her understandings. She then said that:
1. INM would issue this person a “No Inmigrante Visitante Otros – No Lucrativa” – “FM3” – visa/permit.
2. No taxes are owed to Mexico.
3. The expat should not register with Hacienda.

She gave the following written instructions for an INM application for the “No Inmigrante Visitante Otros – No Lucrativa” visa/permit.
~ ~ ~ ~ Register your INM application online at the “Solicitudes de Tramite” website.
~ ~ ~ ~ Choose “FORMATO MIGRATORIO PARA TRAMITES DE ESTANCIA”
~ ~ ~ ~ Under “QUE DESEA HACER“: Choose “Realiza actividades diferentes a las autorizades”
~ ~ ~ ~ Complete the online application, and bring a copy of the printed final form that shows your Pieza Number, to your INM Office.
~ ~ ~ ~ Bring passport & copies.
~ ~ ~ ~ Bring a comprabante & copies of your residence (CFE or JAPAY bill), your original “forma migratoria vigente“, your “comprabante de pago de derechos por recepcion, examen y esudio de las solicitud, si las caracteristica del extranjero es la de turistica … $491.00” for expats who have just entered Mexico on a tourist visa.
~ ~ ~ ~ Bring “El pago de derechos correspondiente al otorgamiento de la nueva caracteristica por adquirir debera realizarse al momento de tramitar la expedicion de la forma migratoria. Comprabante de pago de derechos. Actividades No Lucrativas: $1.294.00, con fundamento en el Articulo 8, fraccion II, B) de la LFD”
~ ~ ~ ~ and: “Las cartas deberan estar bien especificadas que su salario lo recibira en Estados Unidos.”

The supervisor said they would gladly issue an “No Inmigrante Visitante Otros – No Lucrativa” – “FM3” – visa/permit to a foreigner who met these requirements.
Considering various aspects of common taxes owed, consider the Capital Gains taxes owed when you sell a property. The key Mexican statute addressing these issues is Article 109. XV. of La Ley del Impuesto Sobre la Renta (ISR).

Clear as mud… ?

and how does this past advice jibe with the current Residente Temporal status? Since Residente Temporal effectively acts like the old FM3, then we suspect that the new Temporal status will work as described above by the INM supervisor…?

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Capital Gains Tax Rules for Taxes Owed on Properties Sold by Foreigners:
Much advice on the internet implies that if you got an FM3 or FM2 in the past, then you can automatically save on a future Capital Gains taxes when you sell your property. This advice may have worked before Feb. 2010, but the rules changed, dramatically raising the bar of requirements for foreigners to qualify for the new 5 year Primary Residency requirement for an exemption to Capital Gains taxes.

The key Mexican statute addressing these issues is Article 109. XV. of La Ley del Impuesto Sobre la Renta (ISR).

The point about qualifying for the Homeowner’s Exemption may be particularly salient when you choose to apply for Residente Permanente vs Residente Temporal. Residente Permanente status may help with qualifying for the homeowner’s exemption due to having Mexico as your Primary Residence, allowing you to pay no gains taxes on property sales.

First, the previous advice to get an old FM3 applied broadly only to properties handled by very liberal Notarios*.

The tax calculation & tax status-determination of property sales by foreigners is a murky and dense area in Mexican tax law. It is reported that many/most notarios across Mexico believe that foreigners with FM3’s did not qualify for the Mexican Residents Primary Residence home-owners capital gains tax exemption**. Sidelight: Foreign sellers typically pay about 25%** capital gains taxes on the gain vs. 5% for Mexican sellers.

Further, does getting a Residente Permanente residence card now qualify you for the homeowners exemption when you sell the property later?

*Since each Notario is financially liable for choices they make for each client, many Mexican Notarios were not willing to approve foreigners with FM3’s nor for even some FM2’s for the 5 year Primary Residence home-owners exemption.
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**Addressing the property sale capital gains tax (ISR) thing:
ISR Tax Law has 3 major options on property gains taxes:

1. No tax owed on sales of primary residence sold after 5 years by residents of Mexico (Primary residence exemption). or
2. 25% of the Gross Sales amount. or
3. 28% capital gains tax on the net profit reduced by various reductions***.

Item 1 (exempt from Capital Gains taxes) Notes:
To qualify for the 5 year Primary Residence exemption, you have to meet some other requirements:
– * – Mexico has to be your “fiscal residence” & the “main center of your professional activities”, etc. for 5 years.
– * – In attempting to qualify as a Resident for tax purposes, you must have 5 years of CFE or JAPAY bills in your name.
– * – The property cannot be used for income generating purposes within the 5 year residency period.
– * – Some Notarios are accepting foreigners who have FM2′s and many are requiring that the foreigner have applied to become naturalized citizens of Mexico (because Notarios stick-out-their-necks, they can add requirements that are not spelled-out in the law/regs).
– * – It is best to be sure your Notario agrees that you meet the requirements, and that he is willing to approve your application for the primary residency exemption, before you plan to try this.

Item 3 Notes:
***Capital gains reductions include a 3% per year inflationary credit that reduces the property’s basis every year (10 years of ownership = 30% reduction, but I understand that there is a 5% floor of minimum taxes or minimum 20% Basis of the original listed sale price).

Basis Calculation for 28% on net profits capital gain calculation:
Income/Selling Price – Cost – Deductions = Capital Gain
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***Here are a few of the Mexican tax laws arcane factors in determining the amounts of Capital Gains taxes under Item 3:

* Raw land is taxed differently than improved properties;
* The tax exemption is only on the buildings and the land covered by the buildings;
* Corporations are treated differently than private owners;
* Properties valued under roughly $500,000 USD are treated differently than properties over $500,000 USD (actually using a $1,500,000 peso “UDI”) – sort of a luxury tax;
* There is a 3% per year inflation adjustment on the basis, but you only qualify if you paid the 2% Acquisition Tax at the time of sale (this can give a net 30% tax savings at the time of the sale);
* The 2% Acquisition Tax is an allowed deduction;
* The construction’s costs (building’s basis values) depreciate 3% a year and can not exceed 20% of the initial cost, while the resulting cost (basis) will be adjusted up for inflation;
* The improvements that imply deductible investments will be subject to the same depreciation treatment, and must be count with its respective documental support (Facturas in seller’s name) – no wonder businesses give you the option for Facturas…
* Maintenance is not a deductible expense;

* If the expat has held an FM-2 for the past five years, they can apply for Mexican nationality, and then ask their bank to convert the FTD contract to an “escritura”, thus acquiring Real Rights on the property which will enable them to claim the Primary Residency’s capital gain exemption at the time of the sale.
* Yada, yada, yada…

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Because Mexican tax law is so dense and arcane and parts of it change roughly every 2 years, when buying or selling property in Mexico, it really is best to consult with a good tax lawyer and a Notario to find out how things work in your state or locality under current laws.

Tax law is a specialty area within the law, an area where Notarios are not the experts, so, taxes on property sales is one spot where you likely need both a Notario and a separate tax lawyer (abogado).

Finally, it is also worth noting that the tax is actually not a capital gains tax, but just a tax, and the taxable value is based on the purchase price shown on the bill of sale: When many Mexican sellers list a low price on the bill of sale – with cash payments on the side to make up the balance – they have shifted future capital gains taxes to the new owner.

Clear as mud???
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Now, Let’s go on to Other Common Tax Issues faced by foreigners in Mexico:

CONTINUING …. UNDER CONSTRUCTION

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.

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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.

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

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