This article describes certain aspects that Mexican families should consider when planning their estate if there are members moving or living abroad
This topic will focus on the issues that 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.
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.
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.
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.
1A “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.