Private Wealth 2022 Comparisons

Mexico has both federal and state taxes which may affect individuals, estates, trusts, and foundations.

Federal and State Taxation

State or local taxes concerns mostly real property acquisition transactions, and property and payroll taxes; these taxes, including their rates and exemptions, vary from state to state for each of the 32 that exist in the country. The transaction cost of the tax on real estate acquisitions and the required notarial and registration fees range between 8% and 10% of the value of the property; these costs are charged to the acquirer and should always be considered.

On the federal level, the main taxes which may be of concern are income tax (IT) and value added tax (VAT).

VAT applies on most transfers of property at the general rate of 16% and usually becomes a cost to be considered in asset acquisitions or disposals; real estate property is only taxable on the value of constructions (not the land) and only if those constructions are destined to a use different from dwelling.

Mexican IT includes all type of income, including capital gains, gifts and successions-derived income.

Estate and Gift Taxes

There are no specific estate or gift taxes; estates as such are not considered taxpayers. IT applies on income received by Mexican resident individuals through a succession or a result of a gift up to a rate of 35% unless an exemption is available.

Non-resident taxpayers may also be taxed on income received through succession or gifts. Income will be taxed when obtained in kind, and only in the case of shares of stock of Mexican resident entities or real estate property located within the country; the tax is payable at a rate of 25% on the gross amount of the income (ie, the value of the shares or property).

Income from Inheritance

Mexico has a general exemption of IT on inheritance income for Mexican tax-resident individuals, as long as the recipient of the income obtains it following a proper inheritance procedure (either in Mexico or abroad); this income is fully tax-exempt, regardless of its amount, or the existence (or lack of it) of a relationship with the deceased.

If the estate includes shares of stock of Mexican companies or real estate located in Mexico, the tax exemption does not apply to any heir who is not a resident of Mexico, and therefore is subject to the 25% tax.

Income from Gifts (Donations)

Gifts are generally taxed as income in the hands of resident individuals, up to the 35% rate (it is a progressive rate), when the amount exceeds the equivalent of approximately USD5,000 per annum.

There is a total tax exemption regardless of the amount donated, in case of gifts between spouses and gifts between ascendants and descendants.

This tax exemption is also applicable when the recipient of the gift is a non-resident, if that person is either spouse or relative (ie, ascendant or descendant) of the person making the gift.

There are no specific procedures used as income tax planning mechanisms for Mexican residents.

In case of the change of tax residence from Mexico to another jurisdiction, as long as the person is not moving to a tax haven jurisdiction (one in which there is no IT, or in which the applicable IT is less than 75% of the Mexican IT) the person will not have to file the annual tax return corresponding to the year in which the change of residence was made. In fact, the filing is not permitted to these persons.

Considering that in some cases the IT is only payable at the time of filing of the annual tax return (in April of the following year), no Mexican IT would be paid on certain items of income received during the last year of tax residence in Mexico; if the jurisdiction to which the change is being made does not tax income received before January 1st of the first year in which the person becomes a resident, the result could be of no taxation in either jurisdiction.

If the person is moving to a tax haven jurisdiction, the law establishes that the change of tax residence will only be deemed to occur five years after the change was actually made.

Non-residents and Non-citizens

In Mexico, citizenship is not a factor to define the taxation system to which a person is subject to. Both citizens and non-citizens of Mexico are treated equally for federal tax purposes.

The difference is made depending on whether a person is or is not a resident for tax purposes in the country. Mexican citizenship only carries the presumption of a person being also a resident for tax purposes in Mexico but is not absolute and admits Mexican citizens being non-residents for tax purposes.

Non-citizens Owning Real Estate in Mexico

While mining activities and the acquisition of land for that purpose have specific restrictions for non-Mexicans, non-citizens are generally allowed to own real estate property in Mexico, except in the so called “restricted zones”. The restricted zones are those located within one hundred kilometres (approx. 62 miles) of the borders and fifty kilometres (approx. 31 miles) from the beach.

Non-citizens usually acquire real estate in coastal areas where popular resorts are located through fideicomisos (the Mexican equivalent of a trust) in which the Mexican fiduciary is the owner of the real estate, and the non-citizen is a beneficiary of the use of the property. For tax purposes these fideicomisos are transparent and the beneficiaries are deemed owners of the property, so they must recognise rental income, if any, and gains from sales.

Rental Income of Non-residents

Income from real estate located in Mexico obtained by non-residents for tax purposes in Mexico is taxable at the rate of 25% on the gross amount received. Payment of IT on this type of income is to be withheld, if paid by a resident for tax purposes in Mexico, or directly paid by the non-resident to the tax authorities if income is paid by another non-resident.

In cases of real estate property held though a fideicomiso, the fiduciary will be obligated to collect and pay the tax.

Mexico has more than 55 international treaties in force to prevent double taxation; most of those establish preferential treatments for income derived, among other sources, from real estate property located within Mexico.

Timesharing Agreements

The Mexican IT law establishes a tax for those non-residents who obtain income from real estate located in Mexico through timesharing activities, including the granting of the right to use or enjoy a property, provide lodging services or even the selling of timeshare units or memberships.

The tax is calculated by applying the 25% rate on the gross amount of income obtained, the tax to be withheld, if paid by a resident for tax purposes in Mexico, or directly paid by the non-resident to the tax authorities if the income is paid by another non-resident.

If the non-resident appoints a representative in Mexico for tax purposes, the tax may be calculated at the 35% rate on the actual gain obtained by the non-resident from the timesharing activities. There are specific rules as to the calculation of the taxable gain, and the resulting tax shall be paid by the appointed representative.

Gains from Sales by Non-residents

Non-residents selling real estate property in Mexico (including the sales made through a fideicomiso) are obligated to pay IT on the sale-related income.

The tax is calculated by applying the 25% rate on the gross amount of the sales price, the tax to be withheld, if paid by a resident for tax purposes in Mexico, or directly paid by the non-resident to the tax authorities if the sales price is paid by another non-resident.

If the non-resident appoints a representative in Mexico for tax purposes, the tax may be calculated at the 35% rate on the actual gain obtained by the non-resident from the sale. There are specific rules as to the calculation of the taxable gain, and the resulting tax shall be paid by the appointed representative.

Income from Acquisition of Real Estate Property

When a non-resident acquires real estate property located in Mexico at a price which is 10% (or more) smaller than an appraisal made by the tax authorities, the non-resident is obligated to pay IT at the rate of 25% on the amount of the difference between the purchase price and the appraisal.

The acquisition for free (ie a gift or donation) is also taxable at the rate of 25% as a general rule. The tax exemption described in 1.2 Exemptions applies when the non-resident recipient of the gift is either spouse or relative (ie, ascendant or descendant) of the person making the gift.

Modifications to Tax Laws

Tax laws in Mexico require a specific very formalistic procedure to be modified, repealed, or adopted. Any proposal must be filed by the executive branch or a member of Congress before the Chamber of Representatives; if the proposal is approved it has to go to the Senate for further approval and publication is made afterwards by the executive branch.

Modifications to tax laws (and to laws in general) cannot be retroactive as a matter of constitutional law. Article 14 of the Mexican Constitution expressly prohibits the retroactive effects of laws, except if a benefit is obtained by it.

Mexico has a long-standing tradition to make yearly review of its tax laws when the annual federal budget is being prepared. Usually, the changes relate to formal requirements, new sanctions, and anti-avoidance provisions trying to prevent further tax evasion.

Since the adoption of an international policy reaching out to conclude double taxation treaties, the substantial provisions have remained stable.

In addition, the treaty network helps to ensure permanence of tax provisions.

Taxation of Inheritance and Gift Income

There is however a relevant change being discussed, consisting of the elimination of the tax exemptions on inheritance and gifts described in 1.2 Exemptions. This proposed change is still in a planning stage and no formal proposal has been presented to Congress; there have been several proposals in this same line (we have been able to identify at least six) which were not approved by Congress.

The possibility of this exemption repeal is high since the currently governing party (MORENA), which is behind this proposal, has a majority in both federal Congress chambers.

Mexico is extremely active in the fight against abuses/loopholes in the tax laws; it openly promotes international exchanges of information for tax purposes and is willing to use, under its own rules, the information received from other tax authorities in the world.

Mexico exchanges information automatically (FATCA and CRS) but is also active in the request of information for purposes of audits being conducted.

High net worth individuals and families have been the target of recent years’ exchanges of information, which the Mexican tax authorities use to question investment structures held in other countries, usually with a tax deferral/saving purposes.

In recent cases, the Mexican authorities have classified the use of investment structures held in other countries (such as split trust/share or unite trust structures) as sham (simulated) transactions and have initiated criminal actions against taxpayers.

General Anti-Avoidance Rule (GAAR)

Mexico has enacted several provisions to fight tax avoidance; besides the fight to prevent tax fraud (a clearly illegal activity) Mexico introduced a General Anti-Avoidance Rule (GAAR) under which the tax authorities are empowered to recharacterise acts or agreements if not motivated by a valid business purpose. A new Article 5-A was added to the Federal Tax Code to implement these provisions.

Common Reporting Standard (CRS)

Mexico has openly adopted and subscribed to the Common Reporting Standard (CRS) following the guidelines established by the OECD, adding to Mexican domestic laws the required provisions to implement the collection, exchange, and processing of tax-related information.

Mexico is currently exchanging information with more than 60 countries on a yearly basis (this is a personal estimate based on different commentaries made by public officers; no official information is available as to this number).

Foreign Account Tax Compliance Act (FATCA)

Mexico was one of the first countries to accept and implement FATCA; this was made based upon the international treaty entered into with the United States for the exchange of information in 1989.

The first year in which information was effectively exchanged was 2015, when as informed by the revenue authorities, more than 110,000 bank registries of Mexican nationals were sent to the Mexican authorities.

Convention on Mutual Administrative Assistance in Tax Matters

Mexico is a signatory of this convention since 2011, which combined with the treaties for the exchange of information, gives the Mexican authorities access to exchange of information with more than 100 countries around the world.

International Treaties for the Exchange of Information on Tax Matters

Mexico has 14 specific international treaties for the exchange of information on tax matters. The first was entered into with the United States in 1989. Mexico follows the OECD model for the adoption of this type of international treaty.

Mexican patriarchs (and matriarchs as well) are not usually prone to give up control of the assets of a family to younger generations; this provokes many conflicts both during the old age of the current leaders and throughout the succession process.

Mexican successions tend to be (if not very fine-tuned and planned) a discussion more concerning the control of the estate during and after the probate, than about safekeeping the assets and keeping them productive.

Many family enterprises and businesses have been lost during the succession process of the family; sour experiences have motivated many universities and other think-tanks to establish courses and true graduate studies programs regarding the succession in Latin families in general, and Mexican in particular.

In the face or a potential tax on inheritance and gifts (please see 1.5 Stability of the Estate and Transfer Tax Laws) different planning strategies have been designed to allow the productive assets to be transferred to the younger generations while benefiting from the existing tax exemptions, but without losing control over the assets and keeping direct access to the yields or benefits generated by those assets. 

The intricate current network of exchange of information treaties, new and improved GAARs (both domestic and international), the numerous leaks and private information robberies (such as the case in Panama with Mossack Fonseca) and a quite extended social movement demanding higher taxes for wealthy families have complicated enormously the international planning activity.

Mexico is not the exception; the tax authorities are looking into the effective taxation of members of a family in different jurisdictions and if the taxation level is not “enough”, the domestic authorities then believe they should be entitled to collect more until their “fair share” of taxes is completed. This, regardless of the law and its strict application.

When dealing with international planning for a Mexican family one should be aware of the distinct risk of becoming jointly accused of wrongdoing if the authorities don’t like the result of the strategy, even if it completely legal and well executed.

Under current law, tax advisers, lawyers, accountants, and bankers may find themselves in the middle of an accusation of tax evasion and organised crime. Penalties are severe and, worst of all, if so accused, the procedure will be followed by the defendants without the right to be out of jail in the meantime.

Mexico has no forced heirship laws.

Under Mexican law, any person is absolutely free to decide who the heirs of his or her estate will be. That being said, there are some exceptions worth noticing:

    • Minors have the right to alimony at least until they reach 18 years of age; and,

    • Older parents of the deceased have the same right to alimony that the minor descendants have.

In a recent judgment, the Supreme Court of Justice of Mexico has ruled that, if one of the partners in a couple (not even married) would have had the right to a 50% split of assets in case of a divorce, there is no reason to not follow the same logic and have the surviving partner entitled to 50% of the estate. This ruling was decided and made public, but the details of the ruling are not available yet, so there are a lot of questions still unanswered.

Therefore, when planning for a Mexican family it is important to properly structure the marital economic agreement to prevent unexpected, undesired and expensive results.

Marital Property Regimes

Under Mexican law, there are two different regimes to be chosen by the parties to a marriage:

    • Separated assets

    • Conjugal partnership (community property)

The election of which one will be applicable to a particular couple has to be made at the time the marriage is formalised. If no express election is made, a community property regime will be applied.

Separated Assets

In case the couple decides to adopt this regime, each spouse will remain sole owner of the assets acquired by her or him and only on the assets not specifically or conceptually identified a community property regime will be deemed to exist.

There is however a rule included in many civil codes in Mexico (it is a local matter, therefore, each of the 32 states has its own civil rules) which establishes that, in case of divorce, if one of the spouses did only housework while the other was the one generating the income required for the living of the family, notwithstanding the fact that the working spouse may be the nominal owner of all the assets (house, investments, cars, et cetera), the judge will split the assets 50% to each one. This rule only applies in this marital property regime.

Community Property

This, today, is the less common regime used; while understandable for a lack of knowledge, it is absurd, particularly with high net worth family members.

This community property regime (or conjugal partnership as the law calls it) allow the spouses, at any time during the marriage, to establish which assets belong to each one, which assets to be acquired in the future will not be commonly owned (it could be goods acquired though inheritance from a family member, or donated by the parents to one of them) and how to dissolve the partnership in case of divorce, in other words, a true prenuptial agreement.

This is particularly useful when the assets of the family include shares of stock of family businesses that the family wants to keep among direct descendants and not political family members, or similar situations involving specific real estate properties or cash gifts to one or the other.

In recent years more and more of these arrangements for marital property are being executed, but it keeps being a minority.

Renegotiation of Marital Property Regime

Something that sounds difficult, and in practice may be really difficult, is the change of marital property regime through a renegotiation sometime after the wedding without the intention of ending it.

It is however possible to change, one or more times, the rules concerning the marital property regime if the spouses, in mutual agreement, decide to do so.

In some States, there is the need to have a judge involved to sanction and approve the change, while in others it is enough to execute the agreement to change before a notary public.

In both cases, the result will be recorded in the civil registry of the State.

This renegotiation becomes useful when a succession planning is being executed in the lifetime of the parents, when the children are old enough to be married, in order to ensure that certain assets will be kept within blood line descendants.

Asset Disposition under the Different Property Regimes

Persons married under a community property regime do need to have their spouse's consent to dispose of an asset, renounce a right or give away property.

The same is true for goods commonly owned in a separation of assets regime.

It is common practice to include recitals from parties to contracts clearly stating their marital status and liberty to dispose of assets.

Cost Basis of Transferred Property for Proper Consideration

Under Mexican law, the tax basis or cost basis of an asset which has been subject to a transfer for a fair market value consideration will have, in the hands of the purchaser, a cost basis equal to the purchase price.

Cost Basis of Transferred Property for Free

In the case of transfers for free, the resulting tax basis will depend upon the transfer having been taxable for the acquirer of the asset or not:

    • If the transfer was a taxable event for the acquirer of the asset, the new tax basis will be equal to the tax paid as a consequence of the transaction.

    • In cases of transfers for free which are not taxable for the acquirer of the asset, such as in the case of a gift between spouses or ascendants and descendants or in the case of inheritance, there are specific rules for shares of stock and real estate property which both establish that the cost basis of the acquired asset will be inherited from the donor or the deceased.

    • In the case of transfers for free which are not taxable for the acquirer, of assets different from shares of stock or real estate property, there is no expressly stated rule, thus the assets so acquired should be treated as having as cost basis their fair market value at the time of the transfer.

Under the currently applicable rules and tax exemptions (please see 1.2 Exemptions) most transfers to younger generations may be executed tax-free, either through donations from the parents or inheritance.

That being said, the problem which is usually present in the case of donations is that the parents find it hard to relinquish control over the assets and loss of income from revenue-generating assets.

Therefore, a series of planning techniques have been developed, including the donations of monetary assets with a deferred delivery or the reshaping of companies to allow for reclassification of series of shares which may allow the transfer of the bulk of the shares while the parents keep the voting control and receive most of the dividends. 

There are no special rules for digital assets. The general rules previously explained are also applicable.

Fideicomiso (Mexican Trust)

In Mexico there is a widely used instrument for tax and estate planning purposes called a “fideicomiso” which is essentially a trust, only governed by a set of different rules.

Under the tax rules, a fideicomiso is transparent and the beneficiaries are deemed owners of the underlying assets, therefore subject to tax consequences for any redemption, sale, or transfer of the assets, and for any income derived therefrom.

Foundations

Foundations and similar concepts are not succession tools but rather a limited type of entities used for charitable purposes, severely limited as to what you can do through them. One thing that you cannot do is transfer wealth to be later enjoyed by someone else; any assets contributed to a foundation have to remain there for the sole charitable purpose for which the foundation was created.

Trusts

Non-Mexican trusts are generally recognised by Mexican law; and not always so by Mexican tax officials. As a general principle of international private law, non-Mexican legal constructions or agreements will be recognised except when doing so would be against Mexican public order principles. 

Mexican fideicomisos are not trusts; this conclusion was reached by the First Chamber of the Supreme Court of Justice in Mexico many years ago. Therefore, trusts are not subject to the Mexican fideicomiso tax rules.

Until 2019 trusts, either when being treated as transparent by the jurisdiction of formation or when used by Mexican residents in a structure generating income subject to a preferential tax regime (ie, one in which there is no IT or the IT of the jurisdiction is less than 75% of the Mexican IT), trusts were disregarded and the income attributable to the Mexican investor.

In 2020 a new set of rules were added to the IT Law which deal with trusts and other transparent forms of investments for tax purposes regardless of the use or of the tax treatment of the jurisdiction of formation; in essence the rules say:

    • If a Mexican tax resident derives income through a trust, the trust will be disregarded, and the Mexican resident will be liable for tax on the income received.

    • If a trust obtains income from a Mexican source, it will be deemed a separate non-transparent entity, subject to tax under Mexican law.

This dual treatment which applies simultaneously is schizophrenic, to say the least, and generates a lot of problems when Mexican residents who are beneficiaries of foreign trusts invest in Mexico through them.

Under these new rules there are two separated and different taxpayers receiving the same item of income at the same time; who pays the tax?

Fiduciaries and Beneficiaries

Under Mexican law, only financial institutions may be fiduciaries for fideicomisos, thus there are no rules in Mexican law for individuals acting as fiduciaries of trusts, either in Mexico or abroad.

If a Mexican resident acts as a fiduciary of a foreign trust the consequences would have to be determined considering the rights and obligations assumed under the agreement through which that person became a fiduciary.

If a resident in Mexico acts both as a fiduciary and a beneficiary, under current rules in Mexico, that person would be subject to IT for all income attributable as beneficiary and, depending on the actual agreement or deed, additional consequences may come from his/her acting as fiduciary.

Control over Non-Mexican Investment Structures

Under a tax reform which came into force in 2020 the notion of “control” was fundamentally changed

Up to that moment, if a non-Mexican investment structure was organised in such a way that the Mexican beneficiary of the structure did not have the authority to determine the moment in which earnings or profits generated in the structure would be distributed, a lack of control exception was applicable and the structure was respected (and not disregarded); in these cases, the Mexican beneficiary would only be obligated to report and recognise taxable income when a distribution occurred.

Under the new rules it is almost impossible to claim a lack of control exception (that still exists, though); under the new rules, the concept of control is mixed and replaced with the content of a rule to determine ultimate beneficiary owners.

Therefore, any person deemed UBO of a structure will become obligated to report the structure and assume the income generated therein and will not be able to claim a lack of control exception even if the trust is 100% discretional.

In Mexico there are no structures with a specific qualification as the best method for asset protection planning.

Fideicomisos are the most popular (by far) as a tool for asset protection planning, estate planning and general matters concerning successions for assets located within Mexico.

Regarding assets located in other jurisdictions, trusts are undoubtedly the preferred method of protection used by Mexican investors.

In Mexico the most common way to pass wealth and control from generation to generation is through wills, since Mexican families tend to keep the older generation in charge until the last possible minute.

In recent years this has started to change, and parents are passing the assets to their children allowing at least a partial transfer of control of the family wealth.

One popular way to do it is through usufruct arrangements, where title to the asset is transferred to the children, but the right to use and benefit from the asset remain with the parent or parents. This arrangement although widely used in connection with shares of stock presents concerning features since: (i) it is not a regulated agreement, thus the effects are limited to what is actually contained in the agreement or deed through which it is created, and (ii) the IT Law in Mexico attributes dividend income to the owner of the share (the title holder) and not to the owner of the usufruct (who receives the dividends) generating controversies with tax authorities (no clear precedents from Mexican courts exist in this matter).

There are other more innovative techniques being developed in recent years since the threat of a tax on inheritances seems imminent. 

Mexican law allows for fair market values to be adjusted by reflecting different conditions such as lack of marketability or control due to a partial transfer of an interest in an entity.

It must be noted that, for tax purposes, a valuation shall be performed by any of the following persons:

    • The National Institute for the Management and Appraisal of National Goods (a governmental agency)

    • Credit institutions (ie, banks)

    • Public brokers (corredores públicos) duly registered before the Ministry of Economy

    • Companies specialised in purchase and sale of merchandise or public auctions

Wealth disputes are usually nasty and harmful for family members, where the only ones who really benefit from them are the lawyers; the ones occurring in Mexico are not an exception to this rule.

Over the years, wealth disputes take the form of civil, and even criminal, litigation between siblings; alternative ways of dispute resolution are recognised by law and their use is notably being increased. 

Recently a mediation institute has been formed by recognised lawyers which is working to present a valid alternative for dispute resolution, and so far the results are encouraging.

In wealth disputes, sometimes damages are inflicted on one of the parties; the aggrieved party needs to file a formal civil lawsuit to try and recover these damages.

Under Mexican civil law, damages must be demonstrated in order for a judge to impose an indemnification, which in some cases is hard to prove; punitive damages are only a recent occurrence, and most judges will not even hear of them.

Under Mexican law there can only exist corporate fiduciaries.

Mexican law expressly establishes that fiduciaries must be authorised institutions, thus there is no possibility for an individual to act as such.

Fiduciaries are subject by law to a large number of obligations and controls.

In Mexico fiduciaries are rarely held liable for the occurrences within the trust or the losses incurred. This is mostly due to the fact that under current law and practice, fiduciaries only act under specific instructions of the technical committee of the trust.

Technical committees are formed by persons not related to the fiduciary, named by the settlor, who act independently from the fiduciary.

As long as the fiduciary acts within the scope of the instructions legally given, there will be no liability deriving from the execution of those instructions, except if the fiduciary knowingly acts against the best interest of the assets and generates losses for which it may be held liable.

There have been a couple of public cases in courts in which a fiduciary has been found liable for losses suffered by a beneficiary even when acting under strict instructions of a technical committee; these cases are still pending or ruling in higher courts and there is not a clear precedent on the matter yet.

Depending on the purpose of a fideicomiso, regulations may exist to limit exposure encouraging fiduciaries to invest prudently.

In any event, the final decisions are always in the hand of technical committees, acting independently from the fiduciary and thus limiting its liability.

Fiduciaries, however, are responsible for acting always within legal parameters, as good patres familias and not against the purpose of the fideicomiso.

Fiduciaries invest in the way technical committees instruct them to do so, and will have no saying in it, unless the instruction is deemed illegal or contrary to the purpose of the trust.

Mexico has a specific set of requisites in order to be able to establish residency or to gain citizenship.

Residency

A person can come into the country as a tourist and stay here for determined periods of time, and buy or rent a house without a problem.

If a person wants to establish a permanent residency in the country, they have to be authorised to do it demonstrating a valid reason to stay in the country and a lawful way of living.

If authorised, a person will be granted the character of immigrant for a year, and after five years of renewing this character, the person becomes an immigrant and will be treated for almost all legal purposes as a national.

Citizenship

There are basically three ways to become a Mexican citizen:

    • Being the children of one or two Mexican parents, or being born in Mexico

    • Being a foreign national, when marrying a Mexican citizen and requesting the granting of citizenship

    • By becoming first, a lawful resident, and then requesting citizenship.

The procedures to obtain citizenship are not simple and usually not very efficient. Time and patience are essential to achieve it. 

If a non-citizen wants to become a Mexican national in an expeditious manner, the only way is to marry a Mexican national and request the granting of citizenship. In this case, it is basically automatic.

In Mexico there are no special planning mechanisms for minor or adults with disabilities; regular structures are used and the way to cope with the issue is through proper drafting and structuring for the matter.

Guardians and tutors may be appointed or named through a will or in an inter-vivos act; it only requires the act to be executed and formalised before a notary public.

If the person needing a guardian or tutor is not a minor and has no one in charge of him or her, then a procedure shall be followed before a judge, who will appoint the guardian.

In Mexico, other than private sector efforts through not-for-profit entities, there is no work being done to help families prepare financially for longer lives.

Children born out of wedlock and posthumously conceived children are treated as ordinary children as long as they are recognised by one or the two parents; there is no legal difference. In any event some cases may become a matter of evidence.

Adopted children only establish a family link with the person adopting them; if a couple wants to adopt they may both do so as long as they are married or in a formal non-traditional marriage relationship (concubinato).

There are no rules concerning surrogate children; the practice is to adopt the children after they are born, with all the complications it may create. It is common for Mexican wealthy couples having problems to conceive, to enter into surrogate mother arrangements in the United States.

Mexico recognises same-sex marriages.

That being said, not all the States expressly provide for same-sex marriage, but if validly executed in one State it will be recognised nationwide.

Unfortunately, charitable giving is not encouraged in Mexico. Organised civil society entities are traditionally viewed as a political risk and potential enemies of the government.

Having a Catholic majority, Mexico has a long-standing tradition of charity through the church and some Catholic organisations.

Authorized Charities

Philanthropic activities may be carried out through authorised charities, these charities (donatarias autorizadas) are not subject to payment of IT on their income and the donations received by them are deductible for IT purposes for the person making the contribution (the deduction allows only up to 7% of the taxable income of a person or the taxable profit of a legal entity).

Charities are strictly regulated, subject to a large number of formal obligations, considered as a money laundering risk and heavily audited.

If a charity fails, as an example, to limit its administrative expenses to 5% or less of its income, the penalty is to lose its authorisation to accept deductible donations, and taxes will be imposed on its income.

Authorised charities are usually formed in one of two ways:

    • As non-commercial interest entities (asociaciones civiles), or

    • As foundations (instituciones de beneficiencia) regulated under State laws for public charities

The regulation of both for tax purposes is essentially the same; in the case of Foundations, there are additional obligations to comply with vis-à-vis the State agencies.