Discriminatory inheritance and gift tax regime for non-residents in Spain?

Under Spanish regulations, mortis causa transfers and inter vivos gifts are subject to inheritance and gift tax (“IGT”). Spanish resident individuals are subject to IGT on their worldwide assets acquired, while non-residents are subject to this tax exclusively on their assets in Spain or rights that may be exercised in Spain.

What you need to know about inheritance and gift taxes in Spain

The taxable base of the recipients (heirs, legatees and donees) is the net value of the assets received. Burdens and encumbrances imposed directly on the assets, which effectively reduce their value or capital (such as pensions and annuities), duly documented debts (mortgages, pledges, local taxes) and specific expenditures (including medical costs and burial expenses) would be deductible.

IGT in Spain is regulated by the state and the autonomous regions. Act 22/2009 establishes the mechanism to determine whether state or autonomous region legislation applies in each case. Generally, the legislation of autonomous regions is more favorable to the taxpayer, as it usually establishes a higher allowance applicable to close relatives.

In relation to mortis causa transfers, the applicable law will be the law of the autonomous region where the deceased had his habitual residence at the time of death. If the deceased was not a tax resident in Spain, state legislation would apply.

While there are few tax reductions under state regulations, autonomous regions usually have high allowances. For example, in the autonomous region of Madrid, there is a 99% allowance on mortis causa transfers between parents and children. Thus, if the deceased had his habitual residence in Madrid, tax-resident heirs would only pay IGT of 1%, while non-resident heirs would pay the full amount of IGT for the same assets received.

Regarding inter vivos gifts, the applicable legislation depends on the beneficiary’s tax residence. If the donee is a resident in Spain, the legislation of the autonomous region where the donee has his habitual residence [For this purpose, anti-fraud provisions consider that donees’ tax residence is where they had their habitual residence in Spain for most of the time within a five-year period.] will prevail. However, a specific rule applies if the assets transferred consist of real estate located in Spain. In this case, the applicable law would be that of the autonomous region where the real estate is located, but if the real estate is located abroad, Spanish state law would apply. Likewise, if the donee is not a resident in Spain, state law would apply (regardless of the nature of the Spanish assets or rights donated).

Tax rates

Under Spanish state law (applicable when the deceased is a non-resident or when the heirs or beneficiaries are non-residents in Spain), the applicable tax rates for determining the final tax liability for IGT are progressive, ranging from 7.65% to 34% (in cases where the taxable base exceeds €797,555.08).https://www.cuatrecasas.com/en/global/

Possible Tax consequences for emigrating Mexican families

This topic will focus on the issues that emigrating Mexican families may face as a result of having members with dual or even multiple nationalities, such as United States or Spanish nationality, or from changing tax residency.

Emigrating Mexican Families

The closeness of Mexico to the United States, as well as the Spanish origin of many Mexicans, makes it each day more often to see Mexican families having members with double or even more nationalities. This has some advantages but also a downside especially when we are talking about taxes and estate planning.

It is a common practice for Mexican families to move to the United States to give birth to their children so these can have United States citizenship, regardless of the fact that they live all their lives in Mexico and are also Mexican nationals.

In the case of Spain, the nationality policy of Spain allows the decedents of Spanish emigrants to Mexico to obtain Spanish citizenship even if the person requesting this nationality has never been to Spain and regardless of the fact that his/her Spanish relative died many years ago.

Tax Issues with emigrating

Regarding the United States, tax laws require its citizens to file tax returns in that country regardless of their tax residency (in this case, in Mexico). However this is not known by most Mexicans also having United States citizenship, thus they may face problems at some point in time if for some reason the United States Internal Revenue Service decides to request the tax returns that have never been filed.

FATCA makes this situation even more complex, since now United States citizenship might also expose Mexicans with this to suffer the effects of FATCA (i.e. withholdings from banks, deeper Know Your Client controls, sharing of information with the United States authorities or even a refusal to open bank accounts in the United States), even though they are also Mexican nationals.

Change of Tax Residency

Other adverse effects can also arise in Mexico if Mexican children move from Mexico to another country leaving his/her family in Mexico. These effects are mainly triggered as a result of changing the state of residency rather than as a consequence of dual nationality. Conversely if a foreign resident becomes Mexican tax resident no step up on his/her assets basis occurs but the original tax cost is considered for taxation purposes.

Mexican tax law follows a tax residency criterion, which means that residents in Mexico are taxed on a worldwide basis regardless of nationality. There are strict tie-breaking rules in Mexican domestic tax legislation that allows the tax authorities and taxpayers to know whether they are tax residents in Mexico or not.

The main criterion to be considered as a Mexican resident for tax purposes is the case of individuals having a dwelling in Mexico. If an individual also has a dwelling in another country he/she is considered a Mexican resident if he/she has his/her center of vital interests in Mexico. This is so, when for instance more than 50% of his/her total income during the year is obtained in Mexico or when his/her center of professional activities is located in Mexico.

If a Mexican individual moves its dwelling abroad, as a general rule he/she are no longer taxpayers in Mexico thus are not subject to fulfill tax obligations. However if the individual moves to a country that has no a treaty for information exchange in force with Mexico (“TIE”), and in that jurisdiction is entitled to apply a preferential tax regime (régimen fiscal preferente)[1] the tax residency will remain in Mexico for that year and the following three years, provided that a tax notice of change of residency is properly filed.[2]

It is important to mention that there is no an “exit tax” for individuals moving abroad, thus wealthy individuals are entitled to change its tax residency to a country with a more favorable tax regime with no tax implications, provided that the appropriate conditions are met. In these cases, before moving abroad it is important to determine the type of assets that the individual has, since in some cases foreign residents are subject to higher taxes than Mexican residents at the disposal of certain assets, such as real estate located in Mexico.

Estate Tax

If a member of a family (child) moves his/her tax residency abroad, that circumstance must be considered for the estate planning of the parent, since the tax circumstances may suffer a dramatic change.

Although Mexico does not have a particular estate or inheritance tax, the Income Tax Law (“ITL”) taxes any income obtained by foreign residents from a source of wealth located in Mexico, even as a result of inheritance. For example, if a foreign resident (regardless if he/she has Mexican nationality) inherit shares of a Mexican company or a property located in Mexico, the income obtained by the foreign resident (considering the fair market value of the assets at that time) is taxed in Mexico at a 25% rate without allowing for deductions.

Notwithstanding the above, in the case of Mexican residents (regardless if they are nationals or citizens of another country), the ITL exempts the income derived as a result of inheritance, provided that such income is declared on the annual tax return. However, this exemption is not available to foreign residents (including a Mexican national who has moved his/her tax residence abroad).

Nevertheless, in the case of foreign residents, the ITL does not tax all income, but only certain specific items, such as income derived from the sale of shares, real estate and securities that represent the ownership of real estate. Therefore, the inheritance of cash, movable property (i.e. cars), jewelry, and goods different from the above mentioned are not taxed in Mexico regardless of the fact that they are located in Mexico. In the case of shares, real estate, and securities, these are taxed at 25% of the gross, without allowing any deduction.

Considering the burden of income tax in this regard, there are estate planning opportunities for parents looking to leave these types of assets to their children living abroad, such as a gift of property during the lifetime, directly or even through trusts, and the granting of bare title while keeping the right to use.

[1]A “preferential tax regime” is deemed to exist if the income obtained by the individual is not subject to tax in the other country or the tax to be paid is less than 75% of the tax that should be triggered and paid in Mexico.

[2] If no tax notice is filed, the tax residency could remain in Mexico indefinitely. https://basham.com.mx/en

How to best structure Mexican family estate planning?

This article describes certain good ways to structure the estate of a Mexican family.

There are several ways available under Mexican law to organize family estate planning. A family head wishing to distribute the family wealth is able to choose the tool that best suits his or her needs during the life time and even to organize the manner in which personal assets and real estate should be transferred upon death. Moreover, and provided the appropriate usage and/or combination of the alternatives listed below are followed, real estate and personal assets could be organized in the best interests of the family and its members.

Organising Mexican Family Estate Planning

Gifts: In Mexico, this is a contract whereby some or all current assets are transferred without consideration. It can be effective from the date of execution, or it can be conditional upon the fulfillment of future events, and generally speaking, it can only be annulled in specific cases set forth in the law. Gifts of real estate and other goods (including cash) exceeding $400 dollars (roughly) must be formalized before a notary public. As for tax effects, donations among close relatives (parents, children and grandparents) are not subject to tax regardless of the amount and tax residency (certain formal requirements have to be fulfilled).
Usufruct: This gives the right to use and enjoy someone else´s real estate or shares in a company. It includes the right to give the use of any proceeds from the property to an individual or a group of individuals, simultaneously or successively. It can be granted by contract or by will and for a fixed period of time or during one´s lifetime. It is effective from when it is granted or it may be conditional as well. In some cases, donors keep for themselves the usufruct for life in order to use the property despite the fact that legal title has been transferred. As for the tax effects, granting a usufruct over real estate or over shares is considered as a transfer of property and thus it is taxed unless the usufruct is granted by a gift among close relatives (as previously defined). A usufruct of real estate has a positive tax impact in some circumstances, such as for purposes of the real estate transfer tax in some states in Mexico and the Federal District, in which the consolidation of the property (when the usufruct is extinguished and the property is fully acquired) would not lead to the payment of further taxes.
Life annuity: By means of this, the obligor agrees to periodically pay a pension during the life of one or more specific persons in exchange for either the payment of a sum of money or the transfer of personal or real property whose title is forthwith transferred to the obligor. It can be granted during a lifetime and by will. As for the tax effects, a life annuity has the advantage of not being taxed in the recipient hands if received as alimony.
Homestead (also known as a family estate): This is intended to provide economic protection to the family. A dwelling occupied by its owner and his or her family is exempt by law from seizure or attachment for debt. Title is transferred to the members of the family who must use it for living in. Under Mexican law a homestead can only be created over assets of a certain value and once it is created, no other homestead can be established. As for the tax effects, a homestead has no tax effects unless the real estate in question is effectively transferred to a relative and even in that case, a tax exemption (as a gift among close relatives) may apply.
Fideicomiso (in civil law this is similar to a Trust): Under a fideicomiso, the settlor (fideicomitente) transfers certain assets to a fiduciary or trustee (in Mexico only banks or financial institutions are authorized to act as trustees) to be used or managed for a particular lawful purpose for the benefit of one or more beneficiaries (fideicomisarios). Title is transferred to the trustee who must act according to the instructions of the settlor and even of the beneficiaries. As for the tax effects, the transfer of property to a fideicomiso have no tax effects unless it is irrevocable. Generally, fideicomisos constituted for estate planning purposes are revocable, thus no tax effect is triggered initially. A testamentary trust can be constituted by will. Also, it is possible to use foreign Trust for estate planning purposes, which are commonly used for asset protection and confidentiality.
Will (also known as testament): By a will a person establishes the way his or her assets are to be distributed upon death and appoints the individual in charge of managing them until transfer to beneficiaries. In general terms, the testator is entitled to distribute his or her assets as a whole (in which case the beneficiaries are called heirs), by way of specific gifts (in which case the beneficiaries are called legatees or devisees), or using both (heirs and legatees or devisees). Either way, the testator appoints those who will receive the personal and real property as well as proportions and is allowed to establish conditions to be met by the beneficiaries as well as encumbrances and charges over assets. Mexico follows the testamentary freedom doctrine and thus there is no requirement that a testator must leave his or her estate or a portion of it in any particular way. A will can be revoked by its author or substituted by a new testament and can be made regardless of the family situation that may prevail after death. However, exceptions to its validity are clearly stated by law and must be observed in order to minimize the risk of its being challenging. As for the tax effects, property is transferred tax free among Mexican tax residents provided that certain formal requirements are met (i.e. filing a tax return) but foreign residents for tax purposes [[As a general rule, Mexican citizens who change their dwelling in Mexico to abroad are no longer considered as residents in Mexico for tax purposes. Conversely, foreigners moving their dwelling from abroad into Mexico become tax residents for tax purposes.] (even if they are Mexican citizens) are subject to tax of 25% on the gross amount.
International wills: Although Mexico has not made any international treaty regarding wills granted outside of Mexico (international wills), such documents would be effective in Mexico whenever granted in accordance with the law of the country where it is made. Consistently, Mexican domestic legislation recognizes legal situations created in another country if valid under the law in force therein. Furthermore, civil and procedural laws provide specific rules for foreign documents to be enforced in Mexico and several conventions related to international assistance in legal proceedings are currently in use. As for tax effects, international wills are taken into account for purposes of the tax exemption on inheritance by Mexican residents for tax purposes.

A family head wishing to leave his business to certain family member(s) can use or combine the aforementioned tools to achieve that purpose. Thus the shares of the company can be included in his will, may also be given as a gift during lifetime, grant the usufruct over the economic rights of the shares (right to receive only dividends) or even transfer the shares to a Trust or Fideicomiso for its management and disposition upon death. Usually Fideicomisos for controlling shares (Fideicomisos de control accionario) are used by families for keeping the control of the shares within the family and set up rules for its disposal. https://basham.com.mx/en

What are the benefits of making a specific bequest under Polish law?

The main advantages of the specific bequest institution are: (1) its simplicity, (2) the complete and immediate implementation of the will of the testator (upon opening of the inheritance), (3) the possibility for the testator to decide that a specified person shall acquire the concrete object of the legacy.

The specific bequest

Three years ago, an institution of specific bequest (also called the vindication legacy) was introduced in the Polish legal system. The specific bequest enables a disposition of concrete assets in the case of death. It is an institution of inheritance law.

Until the introduction of the vindication legacy, it was only the ordinary legacy that was provided for by law. In contrast to the specific bequest, by the ordinary legacy, the testator may, by his testamentary disposition, impose upon an heir the obligation to effect a definite material performance for the benefit of a specified person. In practice, under the ordinary legacy it is only a commitment that is established between the heir and the legatee of execution of the legacy, which means that the legatee has only a claim for performance of such legacy.

The vindication legacy constitutes the right on the part of the legatee to demand releasing to him or her the object of the legacy directly from the inheritance, not from the heir. At the time of opening of the inheritance, i.e. upon the death of the testator, the specific bequest transfers the ownership of goods or a subject of rights ex lege to the legatee, while the ordinary legacy constitutes a source of obligational legal relationship between the person obliged to perform the ordinary legacy and the ordinary legatee. The legatee does not have to be an heir. However, their liability under the inheritance debts may be similar at some points.

The great value of the specific bequest is its simplicity. The testator has to include a specific provision in the testament. However, the testament must be drawn up in the form of a notarial deed. The testator just has to indicate a specific person (specific persons) and provide that they shall acquire the concrete object of legacy upon opening of the inheritance. Specific bequest creates an opportunity for the testator to dispose his or her assets in the manner of his/her discretion, which is not guaranteed on the basis of the ordinary legacy. Therefore, by specific bequest, the testator may dispose such assets as:

(A) goods precisely designated as to their identity (e.g. real estate or a car, etc. with precisely indicated characteristics);
(B) transferrable property rights (e.g. a claim for payment of an amount of money from a particular entity or shares in a limited liability company);
(C) an enterprise or agricultural farm, or
(D) may establish for the legatee’s benefit some rights in real estate (usufruct and servitude).

The vindication legacy allows to freely dispose aforementioned assets of the testator and ensures direct obtaining of the rights to the assets on the part of the legatee. Immediate implementation of the will of the testator is associated with the fact, that the legatee obtains the rights to the assets immediately upon the death of the testator.

Below, we present some interesting practical items of a specific bequest.

It was noticed in the literature that the monies (specific amount) may not be an object of specific bequest, because for that purpose, an ordinary legacy was established. Nevertheless, it should be pointed out that there are some circumstances in which an amount of money may be included in the specific bequest, when it is ‘concretized’. This applies for example to: money stored in a safe or a safety box; de-materialized money saved in bank accounts (as receivables towards the bank); cash which is deposited on the designated bank account at the time of opening of the inheritance.

The testator may also include a share in the ownership of things in the specific bequest, designated as to their identity, as well as a share in other transferrable joint right to such things.

It was confirmed by the Polish Supreme Court, that specific bequest may transfer the right to an item indicated in the items A-D listed above, belonging to the joint property of the spouses remaining in statutory joint property regime.

As to the shares in the limited liability company – a specific bequest may include them, but it must be remembered that the articles of association may limit or exclude joining the company by the heirs of the deceased partner, which should also refer to the legatees.

The specific bequest concerning an enterprise will cover all of the components, which belonged to the enterprise at the time of opening of the inheritance, because then the bequest becomes effective. This means that from the date of making a will with a specific bequest changes may occur in the components of an enterprise which should be referred to the time of opening of the inheritance. There are no obstacles to identification of the most important components of the enterprise in the testament with specific bequest.

However, due to possible changes in those components, the will of the testator in this regard cannot be decisive as to the components of the enterprise existing at the time of opening of the inheritance, and only those components may be subjected to the specific bequest (existing at the time of the opening of the inheritance).

In case of both usufruct and servitude, a specific bequest is constitutive, which means that it leads to the creation of a new right which did not exist before. This kind of a specific bequest item is very limited due to the nature of those two rights, the creation and ability of disposition of which are restricted.

As far as foreigners are concerned, a specific bequest may be established for their benefit to a thing or a right which may qualify for the specific bequest. However, if the object of the specific bequest is a thing or a right the foreigners’ acquisition of which is limited by the relevant provisions of law (obtaining real estate or shares in the commercial company, being an owner or perpetual usufruct of real estate [an equivalent of a leasehold in the English law]), a foreigner – vindication legatee, if not being a statutory heir, contrary to the basic principle of this type of bequest, will not acquire ex lege an object of legacy at the moment of opening of inheritance.

On the same basis as an heir, within two years of opening of the inheritance, the foreigner will have to file with the Minister of Internal Affairs a request for permission to acquire such a right. If such authorization is not obtained or an application is not filed, the bequest will be ineffective and the object of it will be subject to inheritance according to general principles.

The vindication legatee does not have to accept a specific bequest. He or she may make a statement on the acceptance of the specific bequest. Such a statement may be made before a court or before a notary public within 6 months following the date at which the legatee learned about the title under which he or she was designated for specific bequest. A statement concerning the acceptance of the specific bequest may not be charged with a condition or reservation concerning a time limit.

Theoretically, the vindication legatee has three options regarding the content of the declaration of acceptance of the bequest: he or she may accept the bequest either without the limitation of the liability for debts (simple acceptance), or with the limitation of such liability (acceptance with the benefit of inventory), or he or she may reject the specific bequest. In fact, however, only two of them will apply to the specific bequest – the acceptance or the rejection.

Nevertheless, the vindication legatees bear liability for inherited debts. Following the distribution of the inheritance, the heirs and the persons for whose benefit vindication legacies were made bear liability for inherited debts pro rata to the value received by them.

Moreover, the liability for inherited debts on the part of a person for whose benefit a vindication legacy was made is limited to the value of the object of vindication legacy taking into account the condition thereof and at the prices applicable upon opening of the inheritance. This solution is similar to the acceptance of the inheritance with the benefit of inventory (liability for the inherited debts only up to the value of the assets of the estate as established in the inventory).

In order to check inherited debts, the legatees may apply to the court for preparation of an inventory. The legatee may also apply for confirmation by the court of the acquisition of the specific bequest or for a deed of drawing up a certificate of succession by a notary public.

Generally, the specific bequest is a simple way to dispose some assets, where the testator wants some specified persons to acquire specific items or rights. Such bequests transfer the rights to specified item directly to the legatee. Therefore, the legatee acquires rights to it upon the death of the testator and he/ she does not have to request transfer of it from the heirs. Nonetheless, this also creates liability for inherited debts, so the beneficiary of specific bequest needs to consider whether to accept such legacy or to reject it. https://irglobal.com/article/important-information-dr-janusz-fiszer/

Example of a Family Covenant – Part 2 of 2

Part 2 of Example of a Family Covenant

Suggested format of a family covenant with different clauses, as may be relevant, part 2 of 2, clausues 8-16.

9. Ownership and transfer of Company shares

Review (and amend if necessary) ownership structure with regards to various share types:

Decide whether the family members that hold a management share can appoint themselves and/or anyone on their behalf to the board of directors

Set the value of shares held by the founders, in the event of their death or incapacity.
Formulate the terms and procedures to be applied in the event that a shareholder wishes to sell his shares.
Refer to cases in which: shares are inherited (e.g. living spouse receives same compensation as the deceased but loses management and/or decision taking right).
transfer of shares following divorce.
transfer of shares to a family member.

10. Employment of family members

(Define who may take part in the management and control of the business and who may not, and under what conditions a family member who does not have ownership or managerial positions, can be employed by the company).

The parties to this covenant wish to qualify their children to work in the company and/or in its subsidiaries.
Every family member is allowed to work in the company for a certain period and (define period and salary).
(Define procedure for the acceptance of a family member for full time employment by the company, e.g., confirmation of the board of directors).
The salary of a family member must be confirmed by the board of directors following the recommendation of the direct superior of the said family member. The salary has to be in line with the average working wage, and will subject to the recommendation of the direct superior of the said family member.
Insofar as the Company shall need to employ service providers that are not in the main field of business of the Company (lawyers, accountants, computer persons etc.) preference shall be afforded to the employment of service providers from within the family, subject of course to their suitability to the position and the required service. Without derogating from that set out above, it is hereby agreed that every person from the family that shall desire to provide services to any of the Companies shall be required to present his candidacy for the provision of said services before the board of directors of the Company during the process for the selection of a service provider in which process other persons that are not members of the family are entitled to participate.

11. Company expenses

As a rule, the CEO of the Company shall ensure that all of the managers of the Company shall not impose expenses that are not incurred for purposes of the business on the Company resources.
Matters which cannot be agreed, or that constitute an inherited conflict of interest will be decided by the board of directors.

Consider adding a general policy as to ownership of vehicles, business trips, studies and education and vacation to the Family Covenant.

12. Withdrawals from Company / subsidiaries

The company will keep a register of the withdrawals of each family member.
A shareholder that withdraws funds from the Company must report on such withdrawal to the Company bookkeeper by the end of the month in which the withdrawal took place.
Settlement of all withdrawals will take place once annually. (Decide whether such settlement shall include all withdrawals, withdrawals and purchases made out of Company/ies account/s and also whether such settlement includes all expenses or if living expenses, for example, are excluded).
The salary of each shareholder and the maximum sum of withdrawals will be decided by the board of directors annually, at the beginning of each year. (The said amounts will be decided while taking into consideration the family desires to live at a high standard of living as well as the financial situation of the Company, based on its performance in the previous year.).
(Set a date for an initial settlement of accounts, in which all the assets of each shareholder will be evaluated, including past withdrawals and the value of real estate and financial assets; decide when and how a shareholder can withdraw and access funds following the said settlement).

13. Incorporation of holding companies

Consider replacing direct ownership with holding companies, one for each family; set out ownership structure and terms for transfer of ownership.

14. Family council

Consider the constitution of a family council, include details about:

Council Composition.
Topics to be discussed at the council and/or under the council responsibility, e.g., philanthropy, family inheritance, irregular finance of a family member, family-community relations.
Frequency of meetings.
Membership in council.
Quorum required for decision taking
Representation of an absent council member.
Presence of non-family members in council meetings.

15. Incorporation of family investment company/ies

Consider incorporating one investment company that will hold all family investments that are not part of the core business and that are not private assets of any of the family members:

Define the ownership structure and management of the investment company.
Decide how investments are reviewed, accepted and executed.

Amendment and updating the Covenant:

Define a certain time in which the covenant cannot be amended or changed.
Define the quorum required for accepting a proposed amendment.
This covenant may be amended upon the initiative of any party to the covenant, provided such change was discussed in the presence of all parties.

In witness for the acceptance of the principles described above, we convened in * and signed this Family Covenant on this * day of *(month), 201*. https://rosak-law.com/

____________________

Signature

Click here for part 1 of this article

Avi Abramovich

Rosak Law

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