Eugenio Grageda is Senior Counsel in Holland & Knight's Mexico City office.

As noted in Part 1 of this series of Articles, new H.R. 1, informally known as the Tax Cuts and Jobs Act ("Tax Act"), has been the most important change to the US tax code in a generation. For companies across a variety of sectors the Tax Act has potential implications for both Mexican direct investment into the US and for US direct investment into Mexico. In this Part 2 we continue to address the Tax Act´s most important implications in a Mexico – US context.

  1. Mexican Corporations and Individuals with Businesses and Investments in the US  - Corporation v. Pass-through

A current bigger gap between the new 21% US corporate rate and the 37% rate on pass-through business income (assuming the 20% deduction on pass-through income is not applicable) might affect decisions on whether to run a business through a US pass-through entity or a US corporation. The best alternative will generally depend on the specific circumstances in any given case.  

A. Structure 1: Mexican Corporation or Individual Shareholder with US Subsidiary Corporation

The reduced corporate rate could at first glance incentivize operating in corporate form. However, a second level of tax exists when cash is distributed from a US corporation.

Besides the 21% corporate tax payable by US corporations, a US withholding tax of 30% (generally reduced to 0%, 5% or 10% as the case may be under the Mexico-US Tax Treaty) will apply when such income is distributed as dividends from such US corporation to Mexican shareholders.

This will result in a combined US federal income tax of up to 44.7%2 (21% + 30% (1-0.21)), assuming no reduced treaty rate is available, for Mexican corporate or individual shareholders with respect to a US corporation's income or gain that is distributed to them, as opposed to a 54.5% effective rate under the previous law.

Under this structure, a Mexican corporation should recognize the distributed amount as taxable income in Mexico and pay the corresponding tax at a rate of 30%. In case of Mexican individuals, they should also recognize the income and pay an additional definitive tax of 10% over the dividends received from the US corporation. 

The Mexican corporation will generally be able to obtain a foreign tax credit in Mexico for the income taxes paid by the US subsidiary and for the taxes withheld in the US upon a dividend distribution. On the flipside, a Mexican individual shareholder will not be able to credit in Mexico the taxes paid directly by the US subsidiary in the US. Only the taxes withheld in the US.

B. Structure 2: Mexican Corporation with a US Pass-Through entity or Direct Business in the US

Mexican corporations with a US trade or business or, with respect to beneficiaries of the US-Mexico Tax Treaty, a US permanent establishment ("USPE") or Mexican corporations with an interest in a pass-through entity, such as a partnership or a Limited Liability Company ("LLC")3 treated as such, doing business in the US, will be subject to a flat US federal corporate income tax of 21% on such US trade or business income, as opposed to the previous maximum 35% rate.

A Mexican corporation generating business income in the US through a USPE or a pass-through entity is also subject, at year end, to a US "branch profits tax" at a rate of 30% (generally reduced to 0%, 5% or 10% as the case may be under the Mexico-US Tax Treaty) applicable on the Mexican corporation´s after-tax US business income, irrespective of distributions. This will result in the same combined US federal income tax rate as in Structure 1 of 44.7%, assuming no treaty rate is available.

If instead, passive income, not effectively connected to a US trade or business, is generated in the US through a US pass-through entity, such entity will not be subject to tax in the US. But the Mexican corporate partner of the same will be subject to a 30% domestic withholding tax on gross US source passive income, reduced or eliminated under certain circumstances under the Mexico-US Tax treaty, and should also generally recognize this income on a current basis, irrespective of any actual distribution, paying income tax at the rate of 30% minus available foreign tax credits, if any.

C. Structure 3: Mexican Individual with a US Pass-through Entity or Direct Business in the US

Mexican individuals with a USPE or a pass-through entity generating business income will be subject to a US federal income tax at the new graduated tax rates with a maximum rate of 37%, instead of the previous maximum rate of 39.6%.

The additional deduction of up to 20% of "Qualified Business Income" derived by a Mexican individual through pass-through entities engaged in a "Qualified Trade or Business" would in effect reduce that maximum rate down to 29.6% (37% (100%-20%)). Yet, a Mexican individual will be restricted to fully apply such deduction in specific circumstances, e.g. if the business has no sufficient W-2 wages payable to employees or depreciable property, or if the business is not a "Qualified Trade or Business".

On the other hand, if the US pass-through entity earns US source passive income, not effectively connected with a US trade or business, there will be no tax liability in the US at the entity level, but the Mexican individual will be subject to a 30% withholding tax in the US on a gross basis, reduced under certain circumstances under the Mexico-US Tax treaty.

In Mexico, this income should be accumulated by the individual and subject to a tax at the relevant marginal tax rate of maximum 35%, minus available foreign tax credits, if any. In addition, a definitive tax of 10% would apply over the received distributions, except in certain cases where the Mexican CFC regime, would also be applicable.

B.      Investments in US Real Estate

Rental income from real property located in the US and the gain from its sale is subject to tax in the US regardless of the foreign investor's personal tax status. The method by which real property income will be taxed depends on whether the foreign person who owns the property is treated as engaged in a US trade or business or engaged in merely a passive activity.

A.Rental income

Rental income was left untouched by the Tax Act. If a Mexican invests in real property in the US, does not engage in substantial management in the US (including through agents) of such property, and obtains only rental income out of the same, a withholding tax of 30% (not reduced by the Mexico-US Tax Treaty) will be applicable to the gross receipt of the rents. A Mexican resident may elect to treat such passive rental income as effectively connected to a US trade or business, in which case no withholding but ordinary corporate and individual progressive rates would apply over a net basis, in addition to US branch profits tax for Mexico corporations. Under this election, mortgage interest, real property taxes, maintenance, repairs and depreciation may then be deducted in determining net taxable income, although the owner will have to file US tax returns.

B. Dispositions of US Real Estate Property

As under current law, Mexican individuals or corporations are not subject to US income tax upon the sale of stock in a US corporation unless the US corporation is sufficiently invested in real property such that it is treated as a "US Real Property Interest".

The disposition of a "US Real Property Interest" by a foreign person is subject to the Foreign Investment in Real Property Tax Act of 1980 ("FIRPTA") which includes US withholding on gross proceeds. A US Real Property Interest includes any real property in the US and generally stock of a US corporation whose value derives more than 50% from investments in US real property. US Real Property Interests held by partnerships are attributed proportionally to their partners.

Under FIRPTA, any gain or loss realized by a non-US resident from a direct or indirect disposition of real property, including gains derived from real estate investment funds, will be treated as if such gain were effectively connected to a US trade or business.

Mexican corporations are generally subject to the following taxes if a gain is derived, directly, from the sale of a US Real Property Interest or, indirectly, through a pass-through entity: (i) a US 21% federal corporate income tax over the gains (as opposed to a previous 35%), collected in advance through a 15% withholding by the purchaser on gross proceeds4, (ii) a US branch profits tax of 30% over the after-tax profits or dividend equivalent amount (reduced to 0%, 5% or 10% under the Mexico-US Tax Treaty) in cases other than sales of US corporations treated as US Real Property Interests, and (iii) to a 30% Mexican corporate tax on the gain realized subject to reduction by the foreign tax credits for the income taxes mentioned in (i) and (ii), under certain circumstances.

Mexican individuals, on the other hand, are generally subject to the following taxes if a gain is derived from a direct sale of a US Real Property Interest, or indirectly through a pass-through entity: (i) a US 37% or 29.6% (if the 20% partnership deduction applies) income tax over the gains, unless it is deemed as a long-term capital gain in which case a maximum 20% US income tax rate should apply, collected in advance through a 15% withholding5 applied by the purchaser over the gross amount of the price, and (ii) to a Mexican maximum marginal tax rate of 35% over the gain realized subject to reduction by the foreign tax credits for the income tax mentioned in (i) above, under certain circumstances. 

On the other hand, gains from dispositions of an interest in a partnership whether US or foreign, are also subject to the FIRPTA tax to the extent of US Real Property Interest owned by the partnership, and to a 15% withholding if 50% or more of the value of the gross assets consists of U.S. Real Property Interests and 90% or more of the value of the gross assets consists of US Real Property Interests plus cash. Even if the sale is not subject to FIRPTA withholding, the disposition may be subject to 10% withholding under new section 1446(f). See Section L. below.

There is no silver bullet that resolves all of the issues FIRPTA presents to Mexican investors. In many cases an approach may solve disclosure requirements but will not address their tax duties. In this respect, structures such as a leveraged blocker structure, a shared appreciation mortgage structure, foreign-trust-and-disregarded-subsidiary structure and foreign-blocker-with-incorporated-LLC-subsidiary structure should be analyzed under the light of the new rates and provisions applicable on interest deduction limitations.

C. Sale of a Mexican Subsidiary

The Tax Act does not provide for a specific tax exemption of gain realized from a sale of any foreign subsidiary.

However, gain from the sale of a CFC could be exempted from US taxation based on the implemented participation exemption under the Tax Act to the extent that the gain is treated as a dividend6. Such gains should be treated as dividend to the extent of the undistributed and untaxed earnings of the CFC under section 1248, which may be increased by a section 338 election on the part of a US buyer, under which the foreign target corporation would have been deemed to have sold the foreign target´s underlying assets, increasing the amount of ordinary "dividend" income in the hands of any US seller.

However, consideration must also be given to the amount of GILTI and Subpart F income that would be triggered upon such an election and deemed sale of assets. 

Although the gains from the sale of a Mexican subsidiary could be treated as dividends for US tax purposes, the transaction should still be treated as a sale of stock for Mexican tax purposes in which gains will be deemed as Mexican source income and generally subject to a 25% income tax in Mexico over the gross paid amount7, payable directly by the seller if both parties are non-Mexican.

If under the Tax Act such gain is characterized as a dividend exempt in the US under the participation exemption regime, then access to foreign tax credit in the US for the 25% tax paid in Mexico by the US seller could be compromised. Each sale of a Mexican target among US corporations has to be carefully studied to see if any US tax election is advantageous.

Now, under the Mexican Income Tax Law, a non-Mexican seller of a Mexican target can either pay tax over any Mexican source capital gain derived from the sale of the target at a rate of 25% applicable over the gross paid amount or, if the US seller so opts, at an alternative rate of 35% applicable over the net gains amount8 ("Net Election"). The Net Election, however, is only available to sellers not residents in countries with a "territorial tax system".

Until 2013, the Mexican Tax Law transitory provisions had a list citing the countries with a territorial system. Not anymore. Now, this determination will generally depend on how this regime is commonly understood under international tax principles.

Territorial taxation is the imposition of tax exclusively on domestic source income exempting any income arising outside the country irrespective of whether the income is derived by a resident or a nonresident. That is, the residence country relinquishes any tax jurisdiction over the income earned outside its borders. This way double taxation is eliminated by exempting the foreign source income from residence country tax.

Given the new participation exemption regime in the US, there may be space to argue that a US seller of a Mexican target will not be eligible to make a Net Election under Mexican Tax Law. However, the enacted participation exemption under the Tax Act should not be sufficient to render the Net Election unavailable to US sellers of Mexican targets.

Over the last three decades, most OECD countries have shifted towards territorial tax systems and away from residence-based or "worldwide" systems. However, no country in the OECD has a pure territorial tax system with no limits or restrictions.

Sometimes, the exemption of foreign source income is limited to certain types of income, most commonly active business income earned in foreign countries (e.g. Hong Kong, Denmark and France). Further, the exemption is sometimes restricted to income that has been subject to tax, or subject to a minimum rate of tax, by the foreign country. In other systems, foreign source income is included in income but only for the limited purpose of determining a taxpayer´s average tax rate as if the foreign income were taxable. Belgium, Finland, Germany, The Netherlands use this exemption with progression method. 

In fact, many countries with territorial systems like Australia, Canada, Japan, the UK do exercise residence based taxation over certain types of foreign-source income, such as passive income or income earned in certain low-tax foreign jurisdictions, such as in the US where US holders of foreign subsidiaries should continue to include Subpart F income and GILTI in the US tax base.

Even when the implementation of such regime in European countries has become the general rule, and now many OECD members offer some exemption or deduction for dividend income, as well as gain on the sale of foreign affiliate shares, there has not been any precedent in which the use of the Net Election by a foreign seller of these European countries has been controverted by the Mexican authorities. 

The limitation has been typically applied to more pure territorial systems such as those in countries like Bolivia, Costa Rica, Guatemala, Panama, Uruguay where no or no minor limits on its application exist.  

D. Sale of a Partnership Interest

In the pre-Tax Act era, the sale by a Mexican individual or corporation of an interest in a US partnership (including an LLC taxed as a partnership), was not subject to US federal income or withholding tax provided that the partnership did not hold a US Real Property Interest. The IRS has historically taken the position that dispositions of interests in partnerships engaged in a US trade or business give rise to effectively connected income, but the US Tax Court held contrary to the IRS position in 2017.

The Tax Act reverts such court decision in favor of the historical IRS position and provides that any gain recognized by a Mexican investor on the sale of an interest in a partnership with a US trade or business will be subject to US tax and to a branch profits tax, if the Mexican seller is a corporation. As of 2018, the Tax Act also requires the US buyer of such interest to withhold 10% of the seller´s realized amount as an advance tax payment of the Mexican seller.

E. Transfer of Property from a US Person to a Mexican Corporation

Prior to the Tax Act, in certain circumstances a transfer of property to a Mexican corporation for use by such Mexican corporation in the active conduct of a trade or business outside of the US was not a gain recognition event. Now, in all cases, there will be an imposition of US tax on built-in gains realized on property, including intangibles, transferred from the US to a Mexican corporation.

Regarding intangible property, such transfer gives rise to a deemed arm´s length royalty over the property´s useful life. The Tax Act specifies that goodwill, going concern value, and workforce in place shall be treated as  intangibles for this purpose.

As a result, transfers of assets by a US person to a Mexican corporation will be subject to this new burden. We expect this could have a significant impact over oil and gas companies that usually send resources like these into Mexican corporations.

F. Full Depreciation of Certain Qualified Property

In the US, as in Mexico, the cost of assets that produce benefits overtime to a taxpayer´s business (such as plants or equipment) is generally capitalized and recovered through depreciation or amortization allowances.

As a way to encourage business investment, the Tax Act provides for a full immediate depreciation for capital expenditures of "Qualified Property", generally tangible property with recovery period of 20 years and certain computer software, as opposed to the prior law immediate expensing of 50% with remaining basis recovery over several years depending on the property´s statutory useful life. This new rule applies not only to newly acquired property placed into service but also to used property acquired from unrelated parties other than in a non-recognition transaction9.

To maximize the benefits of this provision, certain structuring alternatives like recasting a stock sale as an asset acquisition for US tax purposes or a sale - leaseback transaction could be considered.

For example, if a US tax resident is selling a Mexican Subsidiary to a US purchaser, it could be desirable to recast the originally stock sale as an asset sale, since a 100% immediate expensing would be available to the purchaser in the US, so long as the underlying assets falls within the "Qualified Property" definition. Yet, this election must be treated with care since such an election may also cause net harm to a US seller due to giving rise to GILTI and/or Subpart F income.

Individuals will be even keener than corporations to opt for these actual or deemed asset acquisitions of Qualified Property as a result of materially higher tax rates applicable to them.

It might be attractive for Maquilas in Mexico that are owners of the machinery and equipment to sell such machinery and equipment to a US entity. By doing so the Maquila entity will turn into a pure service provider for the US entity and the latter could immediately expense its cost. Yet, in these scenarios it is likely that the US entity could end up creating a permanent establishment in Mexico. Generally, US entities are exempted of creating a permanent establishment as a result of the legal and economic relationship that they have with enterprises that carry out maquila operations in Mexico. However, this is true so long as such machinery and equipment have not been owned before by the enterprise performing the toll manufacturing operation in Mexico.   

Immediate expenses of the Qualified Property could lead to businesses borrowing money to immediately acquire assets that they can expense. Therefore, the Tax Act also established new limits to interest deductions.

G. Deductibility of Interest Payments

Multinational corporations have an incentive to lower their worldwide tax burden by taking out loans in high-tax countries, where they can take interest deductions, and lend from low-tax countries, where they can realize interest income at lower rates.

To address this, the Tax Act followed similar measures adopted by countries like Germany, Japan, Norway, United Kingdom and the European Anti-Tax Avoidance Directive. It replaces the prior "earnings stripping" interest deduction limitations, applicable only with respect to interest payments by US corporations to foreign affiliates whose debt-to-equity ratio exceeded 1.5 to 1, for a general cap on net business interest expenses10, whether paid to a related party or not.

Roughly put, the new cap of net business interest deductions will be equal to 30% of a taxpayer's annual "Adjusted Taxable Income" ("ATI") which resembles EBITDA (and EBIT after 2022). Any disallowed net business interest expense can be carried forward indefinitely.

Generally, ATI is taxable income excluding non-business income and loss, net operating losses and interest, and includes taxable income regardless of whether it is earned in the US or abroad. To that end, inclusions into taxable income by a 10% US shareholders of a CFC, foreign branch income and GILTI would increase US taxpayer´s ATI, but receipt of any dividends exempt under the new participation exemption would not.

This new limitation along with the new reduced US corporate tax rate may incentivize a US–Mexican multinational group to relocate its debt to the affiliates in Mexico, where interest deductions are more flexible, particularly since such affiliates will be subject to a tax rate higher than in the US.

Also, any additional deduction in Mexico, such as these interest deductions, should be appealing to US-Mexican groups because any tax ultimately paid in Mexico could turn into a tax non-creditable in the US under the participation exemption.

It is worth noticing that, among other exempt businesses11, this limitation will not affect the deduction of investment interest. Hence, interest paid or accrued by a US fund, if considered investment interest, should not be subject to the referred cap.

Given the potential tax increase in US companies with leverage, alternative financing structures that provide maximum current deductions, such as sale-leaseback transactions should be put into consideration.

Mexican corporations and individuals with US trade or business income will also be subject to the interest deduction limitation.

H. Recapture of Losses in Foreign Branches

It is common for US start-ups to adopt a branch form in the beginning of their operations abroad in order to recognize the losses generated in the business in those first years against US income and switch to a corporate form whenever their foreign businesses become profitable. The Tax Act strengthened recapture rules applicable to these US tax benefits, by making all branch losses recognized after 2017 subject to recapture upon the incorporation of a foreign branch.

Then, if a US corporation transfers substantially all of the assets of a Mexican branch to a Mexican corporation, generally, the US corporation would have to include in its gross income an amount equal to the losses incurred by the branch and previously recognized by the US corporation.

I. Carry of a General Partner

Mexican Pension Funds participating as limited partners in  foreign Limited Partnerships whose General Partner ("GP") is a US person, would have to take into account the new US tax rates when it comes to calculating the carried interest to which the GP would generally be entitled to receive before other partners under a contract.

Market standard provides that distributions should be made to cover the GP´s anticipated taxes using the highest combined maximum federal, state, and local individual tax rates to determine the amount of anticipated distributions. However, those provisions were drafted in an environment where the difference between individual and corporate rates in various jurisdictions was not especially significant. Now, the difference is greater. The top individual tax rate is 37%, the corporate rate is 21% and the deductibility of state and local taxes for individuals is significantly limited. This could result in greater overpayments to certain GPs holding their interest in corporate form. The traditional approach of using the highest combined individual rates to calculate the anticipated distributions to a GP might no longer render similar outcomes.


*This article only summarizes and provides a general overview of the matters presented. It does not represent a full analysis of the same and should not be relied upon as legal advice.

2 The Medicare surtax is not applicable to non-US tax residents.

3 A sole-proprietorship LLC or one treated as a partnership for US tax purposes.

4 The Mexican corporation will be entitled to recover any portion of the tax withheld that exceeds the actual tax liability under (i) above by filing a refund claim.

5  In case the property is used by the transferee as a personal residence, the withholding rate may be reduced to 10% under certain circumstances.

6 Section 1248 of the IRC recast gain as dividends to the extent of CFC foreign earnings and profits. 

7 Taxed on a net gain basis under the Mexico-US Tax Treaty.

8 Under certain circumstances such gain might be exempted under the Mexico-US Tax Treaty.

9 It does not apply to property currently used by the taxpayer.

10 Net Business interest expense is the business interest expense minus its business interest income. For this purpose, business interest expense means interest paid or accrued on indebtedness properly allocable to a trade or business. It does not includes investment interest.

11 This limitation does not apply to businesses with average gross revenue of less than USD$25 million and certain entities engaged in a real estate trade or business.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.