Taxation on the difference
between cost and selling price of a real estate property in Mexico
by Lic. J.
Beaulne LL.B
Introduction:
For a long time a lot of persons did
things the way they thought it should or could be done so as to benefit
personally. With time the legislator changed laws and by-laws so as to make
it more difficult for one to defraud the government and also to make it
equal for all the citizens. This is what happened in the area of taxation on
the profit obtained by selling a real estate property. As any where else in
the world in Mexico there is a correct legal way of doing things and an
incorrect and not legal way of doing things and this is what we will
illustrate in this article by categorizing the real estate properties the
Rights that one holds and the taxes. Having established that we will
illustrate who is responsible regarding the payment of the taxes when the
law dictates imposition and the consequences if the law is not respected.
Categories of real estate
properties
There are four categories of real estate
property, commercial, industrial, rustic and residential. Once the
type is identified we know which legislation we must consider regarding
taxation on the difference between the cost and the selling price of a real
estate property. From these four categories we can now spilt
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alienate
verb alienated, alienating
1. …
2. …
3. law:
To transfer ownership of (property) to
another person.
Thus we now know that we can apply this
to a sale of Rights or Session of Rights on a real estate property. When one
“sells” a property which has a FTD contract one actually does a Session of
Rights and not a sale.
We must now look at article 14 of the
CÓDIGO FISCAL DE LA FEDERACIÓN (Fiscal Code of the Federation) which says:
WILL BE CONSIDERED ALIENATION OF GOODS:
1. ALL
TRANSMISSION OF PROPERTY, WITH EXCEPTION TO THE ALINEATION WITH RESERVE OF
OWNERSHIP OF THE GOOD ALINIEATED WITH EXCEPTION TO THE ACTS OF FUSION OR
FISSION TO WHICH IT IS REFERED AT ARTICLE 14-A.
In other words no IVA shall be applied to
real estate property designated or used as a residence.
The third tax is called acquisition tax and
it is imposed by the State government.
This tax is to be paid by the buyer at
time of purchase and it is the responsibility of the “Notario Público”
(contract lawyer) to retain said tax and remit the amount to the government
based on the divulged selling price which is called the “valor de la
operación” by said professionals.
The third tax that can be applied
depending of various factors. It is called “Capital Gain Tax” by
foreigners but its definition is more as a tax imposed on the profit
obtained between the purchase price and the divulged selling price. In
other word it is called “Income tax”.
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them so that the first two are both “commercial real estate property”, the
rustic as a property without any construction and residential as a real
estate property with a building which is used as a residence or domicile. In
other word we now have only three types of real estate property: Commercial,
rustic and dwelling.
Categories of Rights on a real
estate property.
Under the legal system we find two
categories of Rights. One is the “Personal Right” which is attached to the
person and the other is “Real Right” which is attached to the property.
Example a mortgage is a Right which is attached to the property; in other
words it follows the property compare to the Right one has when he is a
beneficiary of a Fideicomiso Translativo de Dominio contract (FTD
contract).
Categories of taxation to be
considered and responsibilities to pay.
There are four different taxes that
can be levied on real estate property. The first one is the property tax
called “predial” which is imposed by the municipality. This tax is to be
paid annually; in the event that the tax is not paid as the law stipulates
one will pay at time of selling back taxes and interests. Municipalities
provide incentives such as discount for the ones who pay the “predial” in
the early months of the year.
The
second tax is commonly called IVA. This tax is not imposed at the alienation
time and must not be applied to any purchases related to a real estate
property that falls in the residence category as per the dispositions of the
law:
LEY DEL
IMPUESTO AL VALOR AGREGADO ( LAW OF TAXES ON AGGREGATED VALUE):
ARTICLE 9
WILL NOT PAY THE TAX IN THE ALINEATION
OF THE FOLLOWING GOODS:
I.-THE GROUND.
II.-CONSTRUCTIONS ATTACHED TO THE
GROUND, DESIGNATED OR USED AS A DWELLING. WHEN ONLY PART OF THE
CONSTRUCTIONS IS USED OR IS DESIGNATED AS DWELLING, TAX WILL NOT BE IMPOSED
ON THE SAID PART ONLY ON THE PART OF THE CONSTRUCTIONS NOT DESIGNATED AS THE
DWELLING. HOTELS ARE NOT INCLUDED IN THIS FRACTION.
When reading legislation one has to
know the meaning of words and the intention of the legislator. At this
point one word that we must analyse it the word “Alienation” which is found
in every law to be considered and this we do by first looking at a
definition in a dictionary:
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Application of the “capital gain tax”.
a) Commercial real estate property.
Once a property is registered at the
“CATASTRO” office (land registry office) as being commercial (with or
without building) there will be a tax imposed which will be in relation with
the profit made when calculating the price paid at purchase and the amount
paid by the buyer when it is sold.
b) Rustic real estate property.
A real estate property which has no
building (lot) and is registered at “Catastro” as a non commercial property
will be taxed.
c) Residential real estate property.
When a property is been used as a
dwelling the person who is alienating his Rights is not to be taxed because
he is making a profit.
This is in accordance with the dispositions of the LEY DEL
IMPUESTO SOBRE LA RENTA (Income tax law):
First of all article 1. tells us that everyone has to pay
income tax:
Article
1.
The
physical and moral persons, are obligated to pay the tax on income in the
following cases:
I- The
residents of Mexico, in respect to all their income whatever is the
provenance....
Continue to Page 2>>
LIC. JAQUES-EDOUARD BEAULNE, LL.B.
Abogado / Attorney at Law / Avocat
In Mexico.
Ced. Prof # 0086
Law Professor
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