Mexico aims to improve public finances without raising tax rates

Mexico’s GDP growth has slowed in recent years, from 2.3% in 2017 to 2% in 2018, and it is estimated to reach 1.6% in 2019, lower than expected given the economic reforms implemented by former President Enrique Peña Nieto between 2012 and 2018. Although GDP is anticipated to expand by 1.9% in 2020, more needs to be done to create the conditions necessary for recovery.

Annual inflation has trended downwards since 2017, when it reached the highest level recorded since 2000. In 2018 it fell to 4.8% and is expected to drop to 3.4% in 2019 and 3% in 2020. The latter is the target rate set by the central bank, Banco de México (Banxico).

The Mexican peso depreciated in 2018 as a result of both domestic and international pressures. At the close of that year, however, the currency rose in value following an increase in Banxico’s benchmark rate during its final meeting of 2018 and the release of the 2019 economic package. In June 2019 the peso rebounded against the dollar despite volatility caused by the credit and financial situation of Petróleos Mexicanos, the state-owned oil company.

The public sector debt balance has continued to trend downwards, standing at 46.1% of GDP in 2018, down from 46.3% of GDP in 2017. One of the priorities of the current government’s National Development Plan, which runs from 2019 until 2024, is to foster macroeconomic stability by balancing public finances without raising tax rates or introducing new taxes.

Tax Environment & Trends

Despite the structural reforms introduced in 2013, and applicable from 2014 onwards, tax revenues have not reached the level needed to adequately finance public spending. Tax revenues represented 16.2% of GDP in 2017, while the average of all OECD member countries was 34.2% of GDP and the Latin American average was 22.4%.

According to the OECD, there is scope to raise the tax-to-GDP ratio by broadening the tax base, continuing to combat tax avoidance and evasion, and reinforcing federal and state-level tax administration. At the same time, additional value-added tax (VAT) revenue could be collected by broadening the scope of the standard rate.

Formalisation

The role of the informal sector in the Mexican economy remains substantial, representing 22.7% of GDP in 2017. Given the size and economic value of informal activities compared to the formal sector, with 56.5% versus 43.5% of workers, respectively, tax collection could increase from both the formalisation and tax registration of businesses that currently operate in the informal economy.

Tax Liabilities

In May 2019 the government issued a decree abolishing previous legislation relating to the forgiveness of tax liabilities. The new decree states that the executive branch will not issue any future measures that would waive tax debts, or make any large taxpayers or taxpayers with significant debts exempt from payment, subject to limited exemptions. The decree will be in place until December 31, 2024.

Non-Existent Transactions

The Tax Administration Service (Servicio de Administración Tributaria, SAT) announced in June 2019 that it intends to conduct audits of suppliers issuing tax invoices in situations where the supplier does not possess the relevant assets or have the adequate personnel, infrastructure or capacity to provide the goods or services being sold.

This is also applicable to individuals that receive invoices from taxpayers that are unable to demonstrate to the SAT that they have been given the goods or services outlined in the invoice. Criminal charges are possible if the taxpayer is unable to justify the existence of the transactions.

Business Incorporation

The most commonly used forms of business to incorporate a Mexican company are the variable capital limited liability stock corporation (sociedad anónima, SA) and the non-stock variable capital limited liability corporation (sociedad de responsibilidad limitada, SRL). For these kinds of companies, the liability of partners and/or shareholders is limited to the full payment of their capital contributions, and the company must be incorporated with a minimum of two partners or shareholders, which can be either corporations or individuals.

In an SRL, the capital is divided into equity participations; therefore, evidence of participation as a partner is not based on a stock certificate, and a participation may be transferred only with the approval of the other partner(s). In an SA, the capital stock is divided into shares evidenced by stock certificates, which can be freely transferred pursuant to requirements in company by-laws established by the shareholders. The management of an SRL or SA can be handled by one or more managers or directors, who need not be partners or shareholders of the company.

Business Taxation

The principal taxes affecting companies doing business in Mexico are federal corporate income tax, withholding tax, VAT and excise tax. Other taxes are levied at the state and municipal levels.

Resident Entities

Resident entities are taxed on worldwide income. Corporate tax is imposed on a company’s taxable income, which is defined as the difference between taxable revenue and expense, at a rate of 30%. Taxable revenue includes business/trading income, passive income and capital gains. Normal business expenses may be deducted in computing taxable income. Inflationary accounting for tax purposes is applicable to certain types of revenue and expenses.

Although not a tax, mandatory profit-sharing rules require an entity to distribute 10% of taxed profits to its employees no later than May of the year following the year in which the company generated the profits.

Allowable deductions: Business expenses are deductible if necessary for the taxpayer’s business operations and supported by relevant documentation including invoices. Certain items are non-deductible, such as goodwill; a percentage of fringe benefits provided to employees; entertainment expenses; and other expenses that are not strictly necessary for the business purposes of the company.

Dividends are not deductible by the distributing corporation or included in the gross income of the recipient, although they are included in the income base for calculating profit sharing.

Dividends: Dividends received by a Mexican resident company from another Mexican company are exempt from corporate tax. Dividends received from a foreign company are subject to corporate tax, but a credit for underlying corporate and withholding tax generally is available for any foreign tax paid.

If dividends from a Mexican company are not paid from an account holding previously taxed profits (cuenta de utilidad fiscal neta, CUFIN), the payer is required to determine and pay tax on a gross-up basis.

Capital gains: Mexican entities are not subject to special tax treatment on capital gains, and the use of capital losses is restricted in some cases.

Net operating losses: Losses may be carried forward for 10 years, subject to applicable inflation adjustments. The carryback of losses is not permitted.

The use of losses may be limited upon direct or indirect changes in ownership that imply a change in control of the entity when the revenue of the last three years is less than the loss carryforward adjusted by inflation in the year before the change in control, among other situations.

Foreign tax credit: Foreign tax paid may be credited against Mexican tax on the same profits, but the credit is limited to the amount of Mexican tax payable on the foreign income.

Tax integration regime: An optional tax integration regime has replaced the tax consolidation regime, which was abolished as of 2014. Under the tax integration regime, corporate groups may elect to calculate income tax on a consolidated basis. The regime allows one group company to offset losses against the profits of other companies in the group, and provides certain benefits such as deferral of payment for up to three years. For tax purposes, a group consists of a Mexican holding company and all Mexican subsidiaries in which the holding company holds directly or indirectly more than 80% of the voting shares.

Resident Individuals

Taxable income & rates: Mexican nationals are taxed on their worldwide income at progressive tax rates up to 35%. Income is taxed in some cases under a separate basket system, but in general, all income categories are aggregated to determine taxable income. Profits derived from the carrying on of a trade or profession by an individual typically are taxed in the same way as profits derived by a company.

Capital gains: Capital gains arising from the sale of publicly traded shares, including financial derivatives, are subject to a 10% tax on the gain.

Deductions & allowances: Subject to certain restrictions and caps – the lower of MXN187,000 ($9670) or 15% of taxable income – deductions are granted for medical expenses and medical insurance, retirement annuities and mortgage interest, among other reasons. However, certain expenses, including medical, dental and hospital costs, are deductible without restriction. Personal allowances are available to the taxpayer and their spouse, children and dependants.

Non-Resident Entities

Non-residents with a PE: A permanent establishment (PE) is any place in which business activities are carried on, in whole or in part, within Mexico. A PE includes branches, agencies, offices, factories, installations, mines, quarries, or any other place of exploration or extraction of natural resources. It also includes construction or installation projects, maintenance or assembly activities on real property or related supervisory activities, where such activities last for more than six months.

A PE or branch of a foreign company is taxed in the same way as a Mexican subsidiary on the net income attributable to the PE or branch in Mexico.

Non-residents without a PE: Non-resident entities that do not have a PE in Mexico are taxed on certain types of Mexican-source income. The Mexican payer generally must withhold tax on the gross payment to a non-resident entity or individual, although the withholding tax rate may be reduced under an applicable tax treaty. The withholding tax rates on gross income currently are as follows:

• Dividends: A company that distributes dividends to a non-resident must withhold a 10% tax, which is considered a final tax. For non-residents, the 10% rate may be reduced under an applicable tax treaty. A company’s CUFIN balances as of December 31, 2013 are not subject to withholding tax when distributed. The 10% tax may be reduced for dividends paid to individuals resident in Mexico if profits generated in 2014, 2015 and 2016 are reinvested and distributed as from 2017.

• Interest: Interest paid to a non-resident is subject to withholding tax at rates ranging from 4.9% (interest paid to a bank) to 35%, unless the rate is reduced under a tax treaty. A 40% rate applies where interest payments are made to a related party located in a tax haven.

• Royalties: Royalties paid to a non-resident are subject to a withholding tax of 35% (patents and trademarks) or 25% (other kinds of royalties), unless the rate is reduced under a tax treaty. A 40% rate applies where royalties are paid to a related party located in a tax haven. Income from the leasing of machinery and equipment generally is considered royalty income.

• Technical service fees: Fees paid for technical assistance are subject to a 25% withholding tax, unless the rate is reduced under a tax treaty.

• Other: There are certain circumstances under which withholding tax at various rates may apply to non-residents, such as payments relating to immovable property, salaries, fees, capital gains and others.

Non-Resident Individuals

Non-resident individuals are subject to taxation on income derived from Mexican sources. The Mexico-source income of a non-resident is subject to withholding tax on a gross basis, at the same withholding rates for payments (e.g., dividends, interest and royalties) to non-resident entities without a PE in Mexico. Non-residents on temporary assignment for firms or subsidiaries in Mexico are exempt from income tax on the first MXN125,900 ($6510) of employment income for a period of 12 months; they are taxed at 15% on income between MXN125,901 ($6510) and MXN1m ($51,700); and at 30% on income in excess of MXN1m ($51,700), with no deductions allowed. Non-resident individuals on temporary assignment that are paid by non-resident foreign firms are exempt from income tax if the employee spends less than 183 days (which need not be consecutive) in Mexico within a 12-month period. Otherwise, the employee will be subject to tax.

Anti-Avoidance Rules

Thin capitalisation: Interest payments made by a Mexican resident company on a loan from a non-resident related party are non-deductible for income tax purposes to the extent the debt-to-equity ratio of the payer company exceeds 3:1. Debts linked to strategic areas or for the generation of electricity are excluded from the thin capitalisation rules.

Transfer pricing: Mexico’s transfer pricing rules and methodologies apply to both cross-border and domestic transactions, and are in line with OECD guidelines and base erosion and profit shifting (BEPS) recommendations. Taxpayers must test the comparable uncontrolled price method before applying one of the other five transfer pricing methodologies permitted under the Mexican Income Tax Law. Contemporaneous documentation is required and Mexico has introduced the master file and country-by-country (CbC) reporting requirements as recommended under the BEPS project. Advance pricing agreements are available.

Controlled foreign companies: Income is attributed to Mexican tax residents, including resident foreigners, from “controlled” entities where over 20% of their income is passive income, broadly defined, that is taxed locally at a rate less than 75% of Mexico’s statutory rate.

BEPS

The Mexican government has contributed to the development of the OECD BEPS action plan and has actively participated in the work streams. Some of the steps taken by Mexico to implement the BEPS recommendations include the imposition of limitations on deductions for payments made in the form of interest, royalties and technical assistance fees, and to related parties in Mexico and abroad in situations involving hybrid mismatches; the introduction of conditions for the application of benefits under tax treaties for transactions between related parties; and the introduction of transfer pricing documentation requirements, including master and local file documentation and CbC reporting.

Tax Returns & Compliance

The tax year for both entities and individuals is the calendar year. An advance electronic signature certificate must be available and, for entities and for individuals carrying on a business activity, electronic accounting records must be maintained, and the general ledger must be submitted to the SAT on a monthly basis.

Entities

Filing requirements: Under the self-assessment regime, advance corporate tax is payable in 12 instalments. The annual tax return must be filed within the first three months of the following year (no extensions are available). VAT returns are due monthly, within the first 17 days of the following month. For imports, VAT is based on the Customs value, plus tariffs.

Information returns: Information returns must be filed detailing the following transactions: loans with non-residents, and transactions with business trusts and with related parties. Taxpayers deriving income from a jurisdiction with a preferential tax regime must file an annual information return each February, as must taxpayers deriving income from a jurisdiction on Mexico’s “black list” and those that conduct transactions through fiscally transparent foreign legal vehicles or entities.

Information return on tax positions: Information relating to the taxpayer’s tax positions must be filed by June 30 of each year for taxpayers with taxable income exceeding MXN791m ($40.9m), non-residents with a PE in Mexico, Mexican entities engaging in related party transactions, entities participating in the tax integration regime and state-owned entities.

Tax audit report: An optional tax audit report may be filed for taxpayers with more than 300 employees, gross income exceeding MXN122m ($6.3m) or assets exceeding MXN97m ($5m).

Reporting on transactions: Details on certain transactions, including financial transactions, transfer pricing adjustments, changes to the ownership structure, restructurings, reorganisations, among others, must be uploaded to the SAT website on a monthly basis.

Disclosure requirements: Transfer pricing documentation, including the master file, local file and CbC report, must be submitted by December 31 of the following fiscal year.

Individuals

Tax on employment income is withheld by the employer and remitted to the SAT. Income not subject to withholding is self-assessed; the individual must file a monthly tax return by the 17th day of the following month. An annual tax return must be filed in April of the following year; no extensions are available.

Tax Treaties

Mexico has 59 income tax treaties in effect, and has concluded a number of tax information exchange agreements. Mexico signed the OECD multilateral instrument on June 7, 2017. To obtain benefits under one of Mexico’s tax treaties, the beneficiary must produce a tax residence certificate, or a copy of its tax return filed in the treaty partner country for the most recent fiscal year. Any relevant conditions under the treaty also must be satisfied. The SAT may request proof that double taxation would arise in the absence of treaty benefits by requiring an affidavit signed by the taxpayer’s legal representative. VAT in Mexico is levied on the sale of goods, the use of goods, the provision of services and the import of goods and services. The standard VAT rate is 16%; VAT on imports is assessed on the Customs value of the import, plus import duty. A zero rate applies to exports and services used abroad if the services are contracted and paid for by a non-resident with a PE in Mexico, subject to certain conditions. The following goods and activities are tax exempt from VAT: land and residential buildings; books and newspapers; share transfers; used chattels; tickets and other documentation permitting participation in lotteries, raffles, games of chance and competitions; gold and silver pieces; national and foreign currency; and the sale of goods between non-residents or by a non-resident to a Mexican entity registered under an authorised programme to promote the export of goods. All entities that engage in taxable activities in Mexico must register for VAT.

Excise Tax

A special tax on production and services is levied on the sale of certain goods and the provision of certain services, including alcoholic beverages and tobacco, beverages containing sugar, food with a certain caloric density and fossil fuels other than natural gas. The tax levied on beverages containing sugar applies at a rate of MXN1 ($0.05) per litre, and an 8% tax is imposed on food with a caloric density of 275 kilocalories or more per 100 g.

In regards to the tax on the import and sale of fossil fuels other than natural gas, specific rates apply to certain types of fuel. The tax is payable through carbon credits, which are defined as those authorised under the Kyoto Protocol and supported by the UN within the UN Framework Convention on Climate Change.

A second environmental tax applies on the import and sale of pesticides at rates ranging from 6% to 9%, depending on the degree of toxicity.

Customs Duties & Free Trade Agreements

Customs duties must be paid on the import or export of goods, as follows:

• General import and export tax: Based on the tariff classification number of the goods;

• Customs processing fee: Paid for using the Customs facilities, personnel and systems, etc.; and

• Electronic pre-validation data: Approximately $12 per import document processed. Mexico has 11 free trade agreements with 46 countries and regions, 32 reciprocal investment promotion and protection agreements with 33 countries, and nine economic complementation and partial scope agreements. The main benefit under the trade agreements is the application of preferential rates on qualifying imports of goods.

The US is Mexico’s largest trading partner, owing to its geographical proximity. The new US-Mexico-Canada Agreement, which will replace the North American Free Trade Agreement, was ratified by the Mexican Senate in June 2019 and is still pending ratification by the US Congress and Canadian Parliament as of August 2019.

Tax Incentives

Maquiladoras: Maquiladoras are Mexican companies that process, transform, assemble or repair imported materials, parts and components into finished goods that are subsequently re-exported. Maquiladora companies typically are owned by a foreign corporation, often a US company since many maquiladoras are located near the US border, with whom the maquiladora contracts to produce semi-finished or finished goods for shipment to the foreign company. VAT at 16% and excise tax are payable on the temporary import of materials and machinery and equipment by maquiladoras, although a maquiladora is not required to pay VAT/excise tax on imports where it has obtained certification from the SAT. If a maquiladora does not obtain certification, the firm alternatively may use a bond issued by a financial institution to receive similar treatment. There are income tax benefits for maquiladoras, including an additional tax deduction equal to 47% of certain benefits provided to employees. Protection for the foreign principal company from exposure to the creation of a PE in Mexico is available if the maquiladora complies with certain requirements, such as special transfer pricing rules, safe harbour rules and obtaining an advance pricing agreement from the SAT.

Northern border region: In January 2019 the government introduced benefits for taxpayers in the northern border region. They will be granted a temporary income tax credit of up to one-third of their income tax liability for 2019-20 and a reduced VAT rate of 8%, subject to certain requirements.

Special economic zones: In 2016 a law was approved to regulate Mexico’s special economic zones (SEZs), creating the legal framework necessary to stimulate growth, facilitate the supply of basic services and attract investment to economically underdeveloped areas, particularly in the country’s southern states. However, in April 2019 President Andrés Manuel López Obrador announced that the SEZs will be closed, as they were of “no benefit” to the economy. The previous administration created seven SEZs: Lázaro Cárdenas, Puerto Chiapas, Coatzacoalcos, Progreso, Salina Cruz, Campeche and Tabasco.

Incentives and benefits for companies operating in an SEZ were set from a declaration issued by the executive branch. The benefits are temporary – although they must be provided for at least eight years – and the amount of tax relief or reductions is granted on a progressively decreasing scale. VAT benefits are offered for goods imported into, and services carried out in, SEZs.

Customs benefits include expedited procedures, deferral of Customs duties until goods are removed from an SEZ, and a measure allowing firms to opt for the lowest Customs tariff available based on the duty applicable to the goods after they have undergone manufacturing, production or repair processes in an SEZ.

Fibra E

Similar to real estate investment trusts, fidelicomisos de inversión y bienes raíces (FIBRAs) are financial instruments through which a trust can acquire and develop real estate assets in Mexico for the purpose of leasing them.

In 2016 the first investment trust in energy and infrastructure, known as FIBRA E, was introduced. FIBRA E aims to provide a stable vehicle for participants, i.e. investors, fund managers and the trust itself, in largescale energy and investment projects. The instrument enables them to benefit from a favourable tax regime, with the following incentives:

• Operating companies are considered “pass-through” entities for tax purposes – tax is paid at the level of each investor – and are exempt from making monthly provisional income tax payments;

• Dividends paid by operating companies to shareholders are not subject to certain provisions of the income tax law and can be paid free of Mexican dividend withholding tax;

• The sale of trust-issued securities placed by the FIBRA E on the Mexican stock market may be tax exempt for individuals and non-residents; and

• Formal obligations associated with having a PE in Mexico are eliminated for non-residents with regard to their equity holding in the trust. The FIBRA E is suitable for all types of company, both private companies and those with state participation, involved in projects that generate stable cash flows, such as transmission and distribution lines in the power industry.

Research & development: Taxpayers that engage in research and technological development will be granted a tax credit equal to 30% of expenses incurred and investments made in the fiscal year that are related to research or development of technology. The (non-taxable) credit may be applied against the income tax due in the year in which the credit is determined, with any excess available to be carried forwards for 10 years.

The credit applies only on the incremental expenses/ investments made in the year, as compared to the average expenses/investments in the previous three fiscal years. Certain requirements must be met to qualify for the credit. For example, an information return containing details of the expenses incurred must be submitted. The total amount of the tax credit to be distributed among all applicants is capped at MXN1.5bn ($77.6m) for each fiscal year, or MXN50m ($2.6m) per taxpayer. Other incentives are granted for national cinematographic and theatrical production, high performance sports and electric vehicle power feeders, as well as for FIBRAs.

Other Taxes

Oil production: Companies engaged in oil exploration and production are subject to a special tax regime set out in the Hydrocarbons Revenue Law. The legislation sets out the rights and responsibilities of the Mexican government and private companies with respect to contracts for the exploration and extraction of hydrocarbons, including applicable contributions and taxes. The law also establishes a framework for government/ private company participation and a tax regime for income derived from such activities. Mexican stateowned production entities and Mexican corporations may participate in public tenders individually, as joint ventures or as consortia.

There are four types of agreement that may be concluded by the government and Mexican stateowned companies or private parties: licensing agreements; production sharing contracts; profit sharing agreements; and services agreements. Assignments, as opposed to contracts, are exclusively granted to Mexican state-owned companies.

The most significant features of the hydrocarbons legislation are as follows:

• Each public bid for the blocks to be contracted for the exploration and extraction of hydrocarbons must comply with the fundamental principles in the Mexican constitution, the Hydrocarbons Law, the Hydrocarbons Revenue Law and the legal framework for the sector;

• Specific rates on the contractual price or operating revenue for the government take are derived from the contractual arrangements, due to significant differences in the risk and cost structure of areas/ blocks with similar structures, following the general principles in the Hydrocarbons Revenue Law;

• Exploration phase fees and royalties apply;

• The normal 10-year carry forward period for net operating losses is extended to 15 years for taxpayers that carry out activities in deepwater offshore wells;

• Special depreciation rates apply, to certain categories of an entity’s assets: 100% on assets used for exploration, secondary and enhanced recovery and maintenance; 25% on assets used for the development and exploitation of fields; and 10% on investments for storage and transportation, including pipelines and tanks, among others;

• A 0% VAT rate applies on hydrocarbons exploration and extraction activities to the extent the activities are carried out with the Mexican Oil Fund (the institution created to manage the resources obtained by the contracts and assignments granted); and

• In addition to the consideration paid by a contractor to the federal government, the contractor is required to pay the municipal and state governments a monthly tax for the exploration and extraction of hydrocarbons. The tax is used to pay for the environmental impact of the activities and is payable at MXN1500 ($78) per sq km during the exploration phase and MXN6000 ($310) per sq km during the extraction phase.

Taxation of mining income: A special mining right royalty of 7.5% is applied to the net profits derived by a concession holder from the sale or transfer of extraction activities. Profits for the purposes of the royalty are determined in a manner similar to the calculation of general taxable income. There are some exceptions; for example, interest and the annual inflation adjustments are not included in income and deductions are not available for investments in fixed assets, interest and the annual inflation adjustment. The mining royalty must be paid annually before the last business day of March of the year following the tax year. If a concession holder does not carry out exploration and exploitation activities for two continuous years within the first 11 years of its concession title, it is required to pay an additional charge equal to 50% of the maximum fee. The fee will be increased to 100% for continued inactivity after the 12th year. Payment of the additional mining duty is due 30 days after the end of the two-year period. Owners of mining concessions are also required to pay an additional 0.5% tax on gross income derived from the sale of gold, silver and platinum. The mining royalty is due annually by the last business day of March of the year following the tax year.

State & Local Taxes

Property tax: State and municipal authorities levy rates on the ownership of real property. Rates are deductible in calculating the corporate tax liability.

Real estate transfer tax: A rate between 2% and 5% applies to the transfer of real estate.

Payroll tax: Rates ranging from 1% to 3% of salaries (3% in Mexico City) apply on the payroll paid to employees.

Labour Environment

Profit sharing: Mandatory profit sharing rules require an entity to distribute 10% of taxed profits to its employees no later than May of the year following the year in which the profits were generated.

Social security contributions: The programmes under the social security system cover work-related accidents and illness; non-occupational diseases and paid maternity leave; old age and various death benefits; and unemployment insurance. The cost of the system is shared between employers, employees and the government.

Employers generally bear most of the cost, with their share being approximately 20% to 30% of payroll, and employees make their contributions based on salary, subject to a ceiling of 25 times the daily minimum wage of the region.

Pensions: Employers must contribute an amount equal to 2% of payroll to an employee retirement fund and 5% of the total payroll to a housing fund, which will be added to the retirement fund if not used for a housing credit, that together constitute a pension fund managed by private financial institutions. The normal retirement age is between 65 and 70.

Immigration: There are several types of immigration status in Mexico and visa requirements may apply to foreigners, depending on the length of time the individual will remain in the country and their income.

OBG would like to thank Deloitte México for its contribution to THE REPORT Mexico 2019.