Acisition of Real Estate by a Non-Resident
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1 IBA REAL ESTATE COMMITTEE REAL ESTATE IN A NUTSHELL: MEXICO OWNERSHIP/RESTRICTIONS ON OWNERSHIP BY NON-RESIDENTS Name: LUIS MORENO, GERARDO CARRILLO Law Firm and City/Country: HAYNES & BOONE, S.C., MEXICO CITY, MEXICO Address: LUIS.MORENO@HAYNESBOONE.COM GERARDO.CARRILLO@HAYNESBOONE.COM 1. Is local authority s permission generally mandated for non-residents to acquire real estate? If so, please outline the general requirements in order to obtain permission. As general principle Mexican Constitution establishes a restricted zone in which non- Mexicans cannot acquire directly real estate. This restricted zone includes all of Baja California and all other land located within 100 kilometers (approximately 60 miles) from Mexico s international borders or 50 kilometers (approximately 30 miles) from its coastline. Foreign individuals and entities are permitted to acquire real estate located outside the restricted zone, provided that they adhere to the following conditions: (i) they previously file an application with the Department of Foreign Affairs evidencing their acceptance of the Calvo Clause (a Calvo Clause, provides that the foreign individuals or entities agree to be subject to Mexican laws and not invoke their own country s laws in connection with the Mexican corporation or trust under penalty of forfeiting their property to the Mexican government) as specified in Section 1 of Article 27 of the Constitution ( Article 27 ); (ii) they obtain the respective permit from the Department of Foreign Affairs ( Secretaría de Relaciones Exteriores ). The referenced permit will be deemed to have been granted if not expressly denied by notice published in the Daily Official Gazette ( Diario Official ). This notice must be published within the following five business days after the filing date of the corresponding application. However, if there are diplomatic relations between Mexico and the country of the foreign investor, only a notice of such acquisition to the Department of Foreign Affairs containing the Calvo clause has to be filed. If the acquisition is made by a Mexican company with foreign investment, no permission is needed if the real estate is located out of the restricted zone. Nevertheless, if the real estate is located within the restricted zone, it can only be acquired for non-residential purposes and subject to a notice that has to be filed to the Department of Foreign Affairs. 2. If the local authority s permission is mandated, please briefly outline the following: 2.1. What is the triggering event related to filing of application and what is the deadline for filing? The authorization is a requirement in order to formalize the acquisition. In case that there are no diplomatic relations between Mexico and the country of the foreign investor, such - 1 -
2 authorization has to be made prior to the acquisition and without the achievement of such requirement the acquisition could be null and void. In case there are diplomatic relations between such country and Mexico, all what is needed is to file the respective notice before the Department of Foreign Affairs at the time of the acquisition. If the acquisition is made by a Mexican corporation with foreign investment, notice in such regard has to be filed within the following 60 business days after the acquisition By whom and to which authority/authorities the application must be made? Application must be made by buyer, or its legal representative, and it shall be submitted to the Department of Foreign Affairs What documents must be attached to the application? The executed application must be filed in original and two copies, duly filled out in typing machine, indicating the name of the person that will acquire the real estate, nationality, migratory status and number of migratory document, domicile to receive notices, authorized persons to receive the authorization or resolution, as well as, the description and location of the real estate to be acquired. The application shall be filed along with the following documents and information: a) Description of the form of acquisition and percentage of the real estate to be acquired, in case of co-ownership; b) Evidence of the satisfactory migratory status of buyer, required to carry out the respective acquisition; c) In case of legal entities, evidence of their legal existence through documentation duly legalized or apostilled, as the case may be, and translated to Spanish by a certified translator; d) An exhibit which contains the description of the surface, metes, and boundaries of the real estate, as well as the adjoining properties to such real estate; e) If the application is filed by buyer s legal representative, the respective power of attorney that contains the authority to execute the Calvo clause. f) Pay the amount of: (i) $4, Mexican pesos if the acquisition of real estate located out of the restricted zone is made by a foreign investor and there are diplomatic relations between countries; (ii) $4,855 Mexican pesos if the acquisition of real estate is made by a foreign investor and there are no diplomatic relations between countries and; (iii) $ Mexican pesos if the acquisition is made by a Mexican company with foreign investment (if the respective notice is filed on a timely basis or $4, 955 Mexican pesos if it is extemporarily filed) What are the deadlines for authority/authorities to resolve on the application and what is the typical timeframe for resolving the application? Authority shall resolve each application within the next 2 (two) business days after it is filed. However, if a foreign entity or individual wishes to acquire real estate located within an area partially located inside a restricted zone, the Department of Foreign Affairs shall determine if such property is located in the restricted zone or not within the next 30 (thirty) business days after the filing of the respective application Is there a right of appeal against the authority s decision and if so, who is entitled to appeal and whether the appeal has a suspense effect? - 2 -
3 The resolutions of the Department of Foreign Affairs can be appealed through an administrative procedure before the Administrative and Tax Mexican Federal Court. The buyer as the affected party or its representative could be entitled to appeal such resolution What circumstances are likely to lead to negative decision of the authority in the practice? The misfiling of the documents required to be attached to the application or even filing the application in an incorrect way What are the consequences if the filing is not made or if the filing is late? In case of an acquisition by a foreign individual or entity, the operation can not be duly formalized without the required authorization and in case the acquisition is made by a Mexican company with foreign investment and the filing is not filed on time, the amount of fees that need to be paid are increased (as mentioned in answer 2.3. f. above). 3. Are there any specific restrictions or requirements imposed with respect to acquisition of real estates by a local company in which a non-resident holds an interest? As mentioned on answer number 1 above, if the acquisition is made by a Mexican company with foreign investment no permission is needed if the real estate is located out of the restricted zone. Nevertheless, if the real estate is located within the restricted zone, it can only be acquired for non-residential purposes and subject to a notice that has to be filed to the Department of Foreign Affairs within the following 60 working days to the acquisition of the real estate. 4. Does change of control in a local company affect its ownership of real estate if the control is acquired by a non-resident? As mentioned above, Mexican companies with foreign investment shall provide a notice to the Department of Foreign Affairs if the real estate is located in the restricted zone. Such notices shall be carried out notwithstanding the percentage of participation of the foreign investment in such company. All Mexican companies with foreign investment, no matter the percentage of participation, shall be registered in the National Registry of Foreign Investment (Registro Nacional de Inversiones Extranjeras), so the change of control and/or changes in the capital stock of such company do not affect the ownership of real estate. 5. Are there any types of real estates which solely by virtue of their quality (e.g. agricultural land) cannot be acquired by a non-resident or by a local company in which non-resident holds an interest? Yes, as stated in answer 1, above, real estate located within the restricted zone cannot be acquired by foreign investors and if it is acquired by a Mexican company with foreign investment, it can only be acquired for non-residential purposes. Also, foreign and Mexican individuals may acquire land for agrarian, livestock and forestry purposes subject to the restrictions and requirements mentioned in Article Is there any type of foreign exchange regulation that might affect a non-resident acquiring real estate? According to the Mexican Monetary Law, obligations can be agreed in other currencies but may only be enforced in Mexican pesos, unless it is carried out through a wire - 3 -
4 transfer from a foreign country through the Bank of Mexico, or any Credit Institution, and any such obligations can be paid in such foreign currency. 7. Is there any type of regulation concerning the lending of money to finance acquisition of real estate? Are the rules different between residents and non residents? There is no particular regulation regarding the financing of real estate acquisitions. 8. What (if any) reporting requirements apply to the acquisition of real estate by a non-resident or by a local company in which a non-resident holds an interest? Other than those stated in answers 1 and 9 there are no special reporting requirements that apply to the acquisition of real estate by a foreigner or by a local company in which a foreigner holds an interest. 9. Are there any specific taxes, stamp duties, fees or charges of any kind levied solely when (i) a non-resident acquires real estate; or (ii) a non-resident acquires an interest in a local company owning real estate; or (ii) a local company in which non-resident holds an interest acquires real estate? No, there are no specific taxes, stamp duties, fees or charges of any kind levied solely to non-mexican residents that engage in any of the above mentioned activities. The foregoing in the understanding that non-mexican residents would be subject to the same taxes imposed to Mexican residents. As a consequence thereof, we will comment on the relevant tax consequences which could derive for the non-mexican residents that acquires real estate directly, through a company or that acquires shares from a an entity that holds real estate. We will do these both from an acquirer and seller perspective: (I) A NON-MEXICAN RESIDENT DIRECTLY ACQUIRES REAL ESTATE Within restricted zone Non-Mexican entities and/or non Mexican individuals may not directly acquire real estate within this zone (For determinate the restrictive zone, please refer to the answer number 1). Out of the restricted zone. Mexican Income Tax (ISR per its acronym in Spanish) a) Acquirer. Upon acquisition, the Acquirer must pay local transfer tax (ISABI 1 by its acronym in Spanish) which depending on the location of the property, including the notary fees could range from 4 to 6% of the total value of the property. In any case, the Acquirer must consider the aforementioned payments (i.e. ISABI and notary fees) as acquisition cost for any future direct alienation of the land. b) Seller. Source of wealth is to be deemed in Mexican territory when the real estate is located in Mexico. In this situation, upon the alienation of real estate, the Seller would be subject to ISR, which would determined by applying a 25% rate to the aggregate amount of the transaction, with no deductions allowed. Notwithstanding the above, the taxpayer may elect to apply a 28% rate to the profit obtained as a result of the transaction. The foregoing provided the following conditions are met: 1 Consider the ISABI as a Sales Tax on the property charged by the municipality where the property is located to acquire the land or the land and constructions
5 That the Seller is not a resident of a tax haven (that is, that its revenues are not subject to a tax regime deemed preferred in accordance with the Mexican Income Tax Law or MITL) or resides in a country in which has a system of territorial tax governs in accordance with the list provided for by the Mexican tax authorities; and A representative in Mexico is appointed no later than the date of the relative return is due, that is 15 days after the transaction takes place. For this purposes, the gain on the transaction is obtained by subtracting the acquisition cost from the price received for the land which was sold (United States concept sales price less adjusted basis). The price paid as consideration for the land, plus additional related expenses (ISABI, notary fees, etc.), and any and all improvements made on the property shall be deemed as acquisition cost (adjusted basis). Therefore, any investment made shall be considered to determine the real cost of the property and determine a real gain on its alienation. Mexican Business Tax (IETU per its acronym in Spanish) Not applicable as non-mexican tax residents (except if they have permanent establishment in Mexico, in which case they would be taxed as a Mexican resident) are not subject to IETU. Value Added Tax (VAT) VAT is a Federal tax which is arises out of acts or activities carried on in Mexican territory 2 and may me conceived as United States Sales tax, but on a federal level. In this regard the Value Added Tax Law (VATL) provides that compensation received for certain acts or activities, including the alienation of goods, is subject to the 15% 3 general tax rate. VAT is determined on a cash flow basis. When there is an alienation of real estate an allocation of the purchase price between land and construction must be made since only the portion of the price of constructions will be subject to tax. Please note that the relative allocation of the price shall be made based on the appraisal prepared for official tax purposes 4. The tax treatment for VAT purposes for the alienation / acquisition of constructions may be summarized as follows: a) Acquirer. The equivalent to 15% of the purchase price of the constructions will be delivered to the Seller for purposes of VAT. Such VAT may used to off-set any payable VAT the entity has (in case it has other commercial activities) or a refund may be requested. b) Seller: The Seller is the taxpayer for the VAT, however the tax at the rate of 15% shall be transferred to the Acquirer. In case the Seller holds any creditable VAT only the difference will need to be delivered to the Mexican tax authorities. (II) A NON-MEXICAN RESIDENT ACQUIRES AN INTEREST IN A LOCAL COMPANY OWNING REAL ESTATE Mexican Income Tax 2 As defined by the Value Added Tax Law 3 VAT in the border zone is of 10%. 4 Residences are exempt for VAT purposes; however we are not considering this possibility as this could trigger a change of the tax residency of the individual under Article 9 of the Federal Tax Code
6 a) Acquirer. The price paid for the shares/participations shall be considered as cost for the entity in case of their future alienations. Please note that no ISABI and/or notary fees will be triggered because of the transaction, as it does not need to be carried out with a Mexican notary public. b) Seller. The Seller would be subject to ISR, which would determined by applying a 25% rate to the aggregate amount of the transaction, with no deductions allowed. Notwithstanding the above, the taxpayer may elect to apply a 28% rate to the profit obtained as a result of the transaction. The foregoing provided the following conditions are met: That the Seller is not a resident of a tax haven (that is, that its revenues are not subject to a tax regime deemed preferred in accordance with the Mexican Income Tax Law or MITL) or resides in a country in which has a system of territorial tax governs in accordance with the list provided for by the Mexican tax authorities; and A representative in Mexico is appointed no later than the date of the relative return is due, that is 15 days after the transaction takes place. Note: It is important to point out that in case the shares/participations are acquired, such situation would not affect in any way the acquisition cost the land (or real estate) had for the relative entity. As a consequence thereof, any direct alienation of the property by such entity would not take into account the consideration paid as price for its shares/participations. IETU and VAT The transaction would be exempt from IETU and/or VAT. (III) A LOCAL COMPANY IN WHICH NON-MEXICAN RESIDENTS HOLDS AN INTEREST ACQUIRES REAL ESTATE Mexican Income Tax (ISR per its acronym in Spanish) c) Acquirer. The Acquirer must pay ISABI which depending on the location of the property, including the notary fees could range from 4 to 6% of the total value of the property. In any case, the Acquirer must consider the aforementioned payments (i.e. ISABI and notary fees) as acquisition cost, and thus part of the adjusted basis in the land for any future direct alienation of the land. d) Seller. The Seller is obliged to pay ISR, which shall be calculated by applying a 28% rate to the gain of the transaction. The gain on the transaction is obtained by subtracting the acquisition cost from the price received for the land which was sold (United States concept sales price less adjusted basis). The price paid as consideration for the land, plus additional related expenses (ISABI, notary fees, etc.), and any and all improvements made on the property shall be deemed as acquisition cost (adjusted basis). Therefore, any investment made shall be considered to determine the real cost of the property and determine a real gain on its alienation. The cost of the improvements made may be supported by the invoice or by an official appraisal. Mexican Business Tax (IETU per its acronym in Spanish) As of 2008, the IETU came into effect. This tax is very similar to income tax, as it is borne on income, however, deductions are very different and it is computed on a cash flow basis
7 The ISR and IETU are complementary taxes, and the taxpayer must always calculate both and pay, at least, the IETU. In case the ISR is higher than the IETU, after paying the IETU, a credit for the amount of the IETU paid is applied against the ISR, which results in the taxpayer paying only the excess ISR. In any situation, IETU and ISR are equally creditable against the United States income tax. Based on the foregoing, whenever a Mexican entity sells real estate, the income obtained therein will be subject to the IETU at a rate of 16.5% 5. Such income will be reduced by certain deductions and against the determined tax certain credits may be taken, as established under the relative law. Please note that because this tax came into effect as of the first day of January, 2008, and, as mentioned works on a cash flow basis, it results in different types of legal issues, one primary issue is that acquisitions made prior to the first of January, 2008 are not deductible, and even though certain credit may be taken in accordance with the transitory provisions of the relative law (up to 50%), an adverse economic impact is to be expected for such taxpayers. Value Added Tax (VAT) VAT is a Federal tax which is arises out of acts or activities carried on in Mexican territory 6 and may me conceived as United States Sales tax, but on a federal level. In this regard the VATL provides that compensation received for certain acts or activities, including the alienation of goods, is subject to the 15% 7 general tax rate. VAT is determined on a cash flow basis. When there is an alienation of real estate an allocation of the purchase price between land and construction must be made since only the portion of the price of constructions will be subject to tax. Please note that the relative allocation of the price shall be made based on the appraisal prepared for official tax purposes. The tax treatment for VAT purposes for the alienation / acquisition of constructions may be summarized as follows: c) Acquirer. The equivalent to 15% of the purchase price of the constructions will be delivered to the Seller for purposes of VAT. Such VAT may used to off-set any payable VAT the entity has (in case it has other commercial activities) or a refund may be requested. d) Seller: The Seller is the taxpayer for the VAT, however the tax at the rate of 15% shall be transferred to the Acquirer. In case the Seller holds any creditable VAT only the difference will need to be delivered to the Mexican tax authorities. Please note that many investors with this type of structures consider to alienate the shares/participations in the entities instead of the real estate. In this case that also triggers a number of tax effects which would need to be analyzed carefully. It is important to note that Mexico has executed more than 30 tax treaties with other countries and is in the process of concluding several other conventions. In some cases, the tax treaties contain provisions which need to be evaluated in order to determine the effects for the non-mexican resident for Mexican tax purposes The tax rate applicable for year 2009 will be 17% and for 2010 and following years 17.5% As defined by the Value Added Tax Law VAT in the border zone is of 10%
8 10. Are there any other issues of relevance that may affect acquisition of ownership by non-residents? It is common practice to acquire land within the restricted-zone by foreign entities and individuals (and, if acquired for residential purposes, by Mexican corporations with foreign participation) through the establishment of a 50-year renewable trust (fideicomiso), which requires approval from the Department of Foreign Affairs and with a Mexican financial institution acting as trustee. The Mexican financial institution will purchase the property and seek the permit to do so from the Department of Foreign Affairs. Decisions regarding permits must be issued within 5 (five) working days following the filing date of the corresponding applications with the competent central administrative unit, or within 30 working days with the corresponding local authority, otherwise, approval is deemed to have been granted. Under a Mexican trust, the foreign investor obtains all rights of use and enjoyment of the property without actually acquiring title. Use includes the right to develop, lease and sell the property. No such restrictions exist for residential property in the interior of the country. Also, time-share contracts ( tiempos compartidos ) are required to be registered pursuant to federal standards known as Normas Oficiales Mexicanas, which are enforceable throughout Mexico. A time-share purchase is not considered to be an investment in real estate but rather an investment in the time-share operating company. A trust is not required
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