Sale of real estate shares by non-Mexican residents
Santiago Llano and Eric Palacios of Ritch Mueller explain why non-Mexican residents should analyse whether Mexican source income exists when transferring participation in a non-Mexican resident entity that owns directly or indirectly immovable property in Mexico.
According to the Mexican Income Tax Law (MITL), the transfer of shares by foreign residents triggers Mexican source income when more than 50% of their accounting value derives directly or indirectly from immovable property located in Mexico. These types of shares are commonly referred to as ‘real estate shares’.
This implies that from a domestic tax perspective, whenever a non-Mexican entity transfers shares issued by another non-Mexican resident which, in turn, holds assets or participation in a Mexican resident company, two concepts have to be taken into account to determine if there is taxation in Mexico: (i) the value of the shares that are being transferred; and (ii) the value of the immovable property located in Mexico.
Although in principle these calculations may seem simple to compute, there have been many doubts from a practical perspective that have led to different interpretations.
As it relates to the accounting value of the shares, neither the MITL nor any other legal provisions provide with a definition of such concept; nevertheless, pursuant to the Mexican Financial Reporting Standards, the accounting value could be interpreted as the value at which a right or obligation is recorded under accounting records (i.e., the ‘book value’). Accordingly, the book value of an entity is the stockholders' equity, which is computed by subtracting total liabilities from total assets.
Article 13 of the Model Tax Convention on Income and on Capital of the Organisation for Economic Cooperation and Development (OECD Model Convention) does not make reference to the accounting value of the shares, but only to ‘the value’ of such goods. The same applies with Mexican double taxation treaties. This may lead to different interpretations regarding the value that should be used (i.e., the accounting value or the market value, both of which may vary considerably from one to another).
Additionally, the fact that the shares being transferred are not issued by a Mexican resident, the accounting principles applicable under the issuer’s jurisdiction may differ from the Mexican Financial Reporting Standards.
If the entity that is being transferred holds the Mexican assets directly, no distortion should exist as both the shares’ and immovable property’s accounting value would be registered under the same accounting principles.
Conversely, if the entity that is being sold holds shares or participation in a Mexican company, distortions may exist as the latter may be registering the immovable property under different accounting principles. The shares’ value of the company that is being transferred (as registered by the transferor) may not reflect the value of the immovable property in Mexico consistently.
In addition, if the entity that is being transferred directly or the Mexican entity indirectly has debt, the immovable property value could exceed the accounting value of the shares. To clarify this scenario, commentaries on Article 13 of the OECD Model Convention provide that the computation will be normally done by dividing the immovable property’s value (numerator) by the value of all assets owned by the entity (denominator) without taking into account debts or other liabilities.
As it relates to the ‘immovable property’s value’, the Mexican tax laws are silent; however, under the OECD Model Convention and its commentaries it could be interpreted that the ‘book value’ shall be applicable, as opposed to the fair market value or the actual value of the transaction.
If an entity that is being transferred holds a participation in different entities that are resident in different foreign countries, the determination of the immovable property’s value could be even more complex due to differences in domestic provisions (e.g. differences in depreciation rates).
In addition to the doubts that exist about the correct approach to determine these values, categorising an asset as immovable property is also a common issue that many taxpayers face on these types of transactions.
Under the OECD Model Convention, ‘immovable property’ has the meaning which it has under the law of the contracting state in which the property in question is situated. From a Mexican legal perspective, immovable assets are, among others, land and constructions attached to it; docks and constructions that, even when floating, are intended to remain at a fixed point of a river, lake or coast; as well as everything that is attached to an immovable asset in a way that it cannot be separated without deterioration (i.e., gas pipeline).
In terms of the MITL regulations, examples of assets that are considered to be ‘attached’ to the land, are houses, buildings, industrial and electrical plants, warehouses, highways, bridges, railways or dams.
In order to avoid some risks of possible conflicts between domestic law and a tax treaty, the OECD Model Convention also clarifies that the term ‘immovable property’ shall, in any case, include property accessory to immovable property, livestock and equipment used in agriculture and forestry, rights to which the provisions of general law respecting landed property apply and usufruct of immovable property and rights to variable or fixed payments as consideration for the working of, or the right to work, mineral deposits, sources and other natural resources.
At the time of writing, there are no court precedents or guidance from Mexican or international tax authorities to clarify these issues. Thus, when transferring participation in a non-Mexican resident entity that owns directly or indirectly immovable property in Mexico, non-Mexican tax residents have to be careful in their analysis as to whether Mexican source income exists and have evidence on the computations and position taken.