National Report Mexico - Notarius International

Notarius International 3-4/2005 J. A. Márquez González, National Report Mexico 215
ment for a court order for their protocolisation and confining
the need for such an act only to cases in which the
documents in question do not contain an apostille or a
consular certificate. Furthermore, a trend appears to be
starting whereby the notary himself can carry out the protocolisation
if he knows the language (or any other dulyidentified
person, who need not be an official expert).
Naturally, the final purpose appears to be to harmonise
these matters at national level with the international treaties
and conventions that Mexico has signed.
7. Tax Law
7.1. Transfers of immovable property
The notary is responsible for the payment of the taxes
deriving from the operation in question in accordance
with the provisions contained in the Ley del Impuesto
Sobre la Renta (Income Tax Law) and articles 14 and 14-
A of the Código Fiscal de la Federación (Federal Tax
Code).
The income is the total amount of the consideration obtained
precisely from alienation. If there is no consideration,
that amount will be established at an appraisal value.
Exceptions to this rule on income from alienation
consist of the hypotheses of transfer of property mortis
causa, donation or merger of companies and alienation of
certain credit instruments that have given rise to interest.
The complexity of the procedure for calculating the
annual tax depends on the transaction in question. However,
it may be said, in brief, that the deductions provided in
article 148 of the same law must be applied. These deductions
relate to the updating of the acquisition cost, which
will never be less than 10% of the total amount of the
transaction. Investments in constructions, improvements
and extensions and even notarial costs, taxes, fees and appraisals,
commissions and agency fees can also be added.
When these deductions have been applied, the resulting
difference is referred to as the profit. Nevertheless, this
profit must then be divided by the number of years between
the beginning and the end of the transaction, in
other words the acquisition date and the actual date of alienation,
which period must not exceed twenty years.
The notary makes provisional payments for the alienation
of immovable property in accordance with a pre-established
tariff that is the result of dividing the profit by
the number of years between the acquisition and the alienation.
The result is multiplied by the number of years.
The notary has a term of fifteen days from the date of
the signature in which to make this provisional payment,
always under his liability.
7.2. Income from acquisition of assets
This income is provided in article 155 of the Income
Tax Law. Deductions may also be made in this case, in
accordance with the provisions contained in article 156,
but it should be made clear that the provisional payment
amounts to 20% of the income received. The notary also
has a term of fifteen days in which to make this provisional
payment, always under his liability.
7.3. Value Added Tax (IVA)
This payment derives from transactions considered to
constitute alienation (articles 14 and 14-A of the Federal
Tax Code).
Exceptions consist of transfers of property due to decease
and donations. The tax is also not payable when only
the land or constructions intended for housing are alienated,
except in the case of hotels (article 9 of the Value
Added Tax Law).
The code considers that the moment of alienation must
be considered to be the moment when the considerations
are actually collected. From that point onwards, there is a
term of fifteen days in which to pay the tax. This tax is
calculated by applying a rate of 15% to those values and
is payable by the taxpayer, who transfers it to each separate
person acquiring the assets or enjoyment of the assets
or the services.
7.4. Transfer of ownership
Locally, the tax known as transfer of ownership is
payable for all acts in which the ownership of immovable
property is transferred, including due to decease and contribution
to companies, transfer of real rights, awards,
positive prescriptions, exchanges, trusts, division of coownership
and dissolution of property held jointly by
spouses – on the surplus part.
For calculation of this tax, an appraisal value issued by
a qualified expert is taken as a base. The tariff varies in
each federal state of the Republic, but ranges from 0.50%
to 2% of that value. The term for payment of the tax may
also vary, but the longest term is thirty days. The notary
assumes joint and several liability with the taxpayer for
the calculation and payment of the obligation.
7.5. Entry of documents at the registry
Finally, fees derive from the entry of documents at the
Public Land Registry, provided that they contain acts
relating to immovable property or real rights. The tariffs
normally vary considerably from state to state, according
to whether the rates are fixed or whether they are established
as a percentage or in terms of minimum salaries.
Minimum and maximum tariffs may also be established.
7.6. Tax on successions and donations
In this case, no special taxes are payable and it is therefore
necessary to resort to the general rule established in
the above paragraphs. We should clarify that donations
between spouses or between family members in a straight
line of descent – with some exceptions – and, in general,
all other donations are exempt from payment of Income
Tax, with a maximum limit being established relating to
the total value thus received in one year (article 109, section
XIX of the Income Tax Law).
8. Bibliography
For a bibliopraphy see page 199.