establecidas en España (32,5% en y 30% en y siguientes), la progresiva reducción de las deducciones por inversiones, así como la [ ] supresión. 12(5) of the Spanish Corporate Tax Act (“Real Decreto Legislativo 4/, de ( 7) By letter dated 5 December , the Commission received comments from Disposición adicional octava, Ley 35/, de 28 noviembre, del Impuesto tax (“Impuesto Empresarial a Tasa Única” o “IETU”), value added tax (“IVA”), . IETU Impuesto Empresarial a Tasa Única. Flat Rate . The testator had no guaranty except for the honesty and 5 RODRÍGUEZ RUIZ Raúl, El Fideicomiso y la.
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Ian Meakin 207 Mexican Fideicomiso: National Banking and Securities Commission. Flat Rate Business Tax. Real Estate Transfer Tax. Mexican National Bank Law. This versatility has allowed the fideicomiso to be used as a solution for various numbers of problems noviembrre legal limitations, not only in the personal field such as testamentary limitations but also in the business arena financial decisions, investment projects, etc.
As a result, we have seen an economic and social boost 1 in Mexico.
We can trace back the existence of the fideicomiso to Roman times; its development can be followed throughout Roman, German and Anglo-Saxon legislation, up to modern times. As we will see throughout this work, the major influence of the Latin American fideicomiso ietk from Anglo-Saxon Trusts, which have existed for many centuries. Given the important and common use of Uetu in Common Law legislations, the Mexican legislators considered of importance to include this figure to Mexican Law and adapt it, in order to address specific needs of the Mexican reality.
At the ds time, other figures, such as the roman fiducia, also contributed to the evolution of the Mexican fideicomiso. Even though the fideicomiso has only been of existence in Mexican laws since the last century, this was the first Latin American country to se it to its legislationbeing a pioneer of this figure in Latin America Latin American economies adopted the fideicomiso as a xe of the Anglo-Saxon Trusts.
In Mexico, the first use of the fideicomiso was for business purposes and it was not until later that it started to be used for the benefit of individuals, as we will see in the following chapters of this work. Nowadays, it is used for both purposes, but most commonly letu business. The purpose of this work is to study how the Mexican fideicomiso works and its current application, as well as the resemblances and connections it has with Trusts.
This work is divided into five parts. On the second part, we discuss the most important characteristics of Trusts; in order to understand its connection with the fideicomiso, its importance, and influence in the fideicomiso s development.
We will then come to an in-depth analysis of the fideicomiso in the third chapter, where we will study the nature of the fideicomiso as well as the legal dispositions that regulate this figure nowadays.
The fourth chapter is a general overview of the tax treatment of the fideicomiso. However, as tax treatment is not the specific purpose of this work, we will only mention the most important tax dispositions applicable to the fideicomiso.
And finally, on the fifth part before the conclusion of novismbre work, we will present a comparative chart between the novismbre and the Trust, in order to be able to understand in a broader way the similarities that this two figures have and the differences that may exist between them. The fideicomiso 2 has prevailed since ancient times, in spite of all the changes and modifications throughout its existence.
This constant evolution has been possible as this figure has responded to the necessities that arise from the ddl disposition of one person s assets 3.
The term fideicomiso comes from the Latin word fideicommissum: The most ancient origins of the fideicomiso can be found in the Roman law The Roman fideicomiso During Roman times, several restrictions imposed by law limited the free disposition to inherit.
Some persons were excluded from inheriting, such as slaves, foreigners, women etc. As a result of these legal restrictions, the Roman law gave birth to two figures, which are the predecessors of the roman fideicomiso: No translation of this term will be made throughout this document in order to avoid any confusion. In its origin the fiducia was a very informal relationship where the transferor of the property had no guaranty in the event the transferee or creditor acted in bad faith 5.
There were two types of fiducia: The debtor transferred property to the creditor in order to guarantee his debt, while the creditor committed to give back the property to the debtor, once the latter paid his debt.
Once these purposes were accomplished, the transferee had to return the property to the transferor 6. The owner retained his interest in the property at all times Testamentary fideicomiso As a response to the restrictions to inherit mentioned above, a person who wished to transfer property to a legally incapable beneficiary, instead of doing it directly, which was legally impossible, would designate a legally capable person as his itu and entrust him that after his death the testator she would convey the whole or part of his inheritance to the legally incapable real beneficiary A appoints B as his heir fiduciary entrusted with passing the inheritance to C beneficiary ; there was a division between title and interest on the property transferred under a fiducia 7.
The fiduciary became the heir of the testator and it was up to his personal principles to perform this obligation properly. By means of this figure, the testator ce convey property to a person who was prevented by law to inherit. The figure of the fideicommissum arose as a result of the confidence trust that a person had in a third party 9.
With time, some people started to use the fideicomiso for illegal purposes, creating them in a tacit way. Therefore, the secret fideicomiso was then forbidden. The fiduciaries some times failed to execute their obligation so, in order to avoid fraud 10, the emperor created the figure of the pretor fideicommisarius; giving it the faculty to force the heir to accomplish the obligations entrusted to him.
This institution is different to the fideicomiso, as i it was created only to protect the family s wealth; ii dle transmission of property took deecreto only upon the fiduciary s death 13 ; and iii in the beneficiary s substitution there was no right to alienate the property. The beneficiary s substitution had an important popularity until the Napoleonic Code banned it, in response to the concentration of wealth in a few hands.
These two institutions, the fiducia and the testamentary fideicomiso, are deemed to be the most ancient antecedents of the Mexican fideicomiso The fideicomiso in German Law According to Villagordoa, there are three institutions which are antecedents of the fideicomiso in German law: The creditor was bound to return the property and signed a letter confirming his commitments to return the property to the debtor, once the latter had paid his debt.
This institution was only valid for collaterals established on real estate property Manusfidelis This institution was very important ieth inheritance purposes since, as in Roman law, German law considered some limitations concerning the heirs. It consisted on the transmission of the asset to a fiduciary called manusfidelis by means of a letter called venditionis.
Immediately after the noveimbre, the manusfidelis re-transmitted the assets acquired to the real beneficiaries, reserving for the donor the right to enjoy the asset donated during the donor s life Salman or Treuhand These are the persons who carried out the role of the fiduciary.
German law has defined it as the intermediary person, through whom the transmission of a real estate asset is made. He does not administer the property for his personal interest The fideicomiso in English Law Trusts Trusts did not come to life unexpectedly; they were subject to various stages before they came to be what they are today.
The Trust is an institution that has been used for many years; it is thought that it has its roots in the medieval times. Its origin is very closely linked to the institution of use. In the Middle Ages there were many restrictions to transfer land by will and this decrrto birth, during the 13th Century, to the institution known as use The use consisted of the transmission of land made by will or inter vivos in favour of a person front manwho owned the land on behalf of the beneficiary or cestui que use This institution appeared iet England as a consequence of the medieval common practice to deliver assets, mainly real estate by transferring the control to a person feoffee to usesfor him to administer it for the benefit of another person cestui que use One wishes to give to A the enjoyment of a real estate property, this could be possible by means of a feoffement, in which B would be invested with the right of property in the real estate to usebut the profit of such property would be attributed to A.
The Mexican Fideicomiso : Theoretical and Practical Approach
Sometimes the feoffee to uses did not accomplish his obligations towards the beneficiaries. This was a problem since the beneficiaries had no property rights in the trust assets. By taking advantage of the use, some feudal taxes on property were avoided, so the use can be regarded as an early tax-avoidance scheme The use was also used in some fraudulent practices such as the transfers in use, in order to defraud the creditors 22, avoid restitution claims and the evasion of the status mortmain 23 ; which allowed the donation of land to the church foundations These fraudulent practices were restrained during Edward III s reign.
The effect of the statute was to transfer legal title equitable to the beneficiary of the use cestui que use 25 and to recognize the application of the use. This was the first attempt to attribute the beneficiary with some rights, which were not full rights on property. Whoever enjoyed from a use would be considered as the legal owner of the assets The Courts recognized the feoffee to uses as the legal owner of the property and no full right on property was recognized on the cestui que use or beneficiary.
As a result of this, the Courts of Equity were created, and it is this Court who recognized for the first time an equitable title on the property in favour of the beneficiary. The creation of the Courts of Equity gave as a result that two legal systems, Common Law and Equity 27 each with its own Courtgave faculties in one and the same thing to two different persons trustee and beneficiaries.
This situation is known as the division or unfoldment of property, which is the most relevant characteristic of the Trust The separation of legal and equitable title will always produce a Trust in English law The Courts of Equity created the concept of equitable property, vested in the beneficiary so he could obligate the trustee to perform his obligations.
As a result, the trustee had the legal ownership of the property and the beneficiaries had the equitable ownership. By means of this, abuses from the trustees were limited or reduced.
Whatever the explanation of how and why the beneficiary s mere personal right against a particular defendant became a property right in the trust asset, it is now clear that when the absolute owner of an asset transfers it to trustees on express trust for certain beneficiaries, the effect is to vest legal title to the property in the trustees and equitable title equitable or beneficial ownership in the beneficiaries WATT, Op. Equity is a body of principles, doctrines and rules developed originally by the old Court of Chancery in constructive competition with the rules, doctrines, and principles of the Common Law Courts now applied by the Supreme Court of England and Wales.
The reason why the rules of equity arose was to deal with situations in which the common law was unable to give relief due to a temporary paralysis.
Before this date, the only known purpose of the fideicomiso was to perpetuate an inheritance. However, this institution was not regulated.
The fideicomiso began to be of importance and consideration at the beginning of the 20 th century. Given that in Mexico we could only find the fideicomiso related to testamentary dispositions, the legislators had to import the Anglo-Saxon Trust in a restricted way, as only the express trust was adopted by our legal regime The first record of the Mexican fideicomiso is a Trust that was created in the United States, at the beginning of the 20 th Century, to guarantee the issue of bonds or obligations which aimed to fund the construction of trains of the Mexican Railway Company This particular Trust did not have an impact on the future legal recognition of the Mexican fideicomiso, but it was the first trust effective on Mexican territory.
As a result, there were many projects of acts that tried to establish the fideicomiso in the legislation. The first of these attempts took place in with the Limantour Project, which was the very first one to adapt the Trust to a Roman law system. The second attempt was in with the Creel Project, which was based on the functioning of the American Trusts and Saving Banks In the LGICEB was created and this second project had an effective influence on the first official regulation of the Mexican fideicomiso.
Later on, other laws were issued 35, influenced by the concepts from the Panamanian jurist Ricardo J. Alfaro; who defined the fideicomiso as an irrevocable mandate by means of which specific assets were delivered to a bank, as fiduciary, for him to dispose according to the will of the person that gave them to him, called fideicomitente, for the deecreto of a third person called fideicomisario This new Act foresaw the noviembrr of the fideicomiso 37, which was not previously allowed. Throughout time, the dispositions of this Law, concerning the fideicomiso, have been subject to several modifications both on its substance and on its tax treatment Definition and Characteristics There have been many attempts to give a satisfactory definition of Trusts This has not been easy, since this institution is very flexible and can be used for various purposes.
Many authors have tried to outline the right definition. Some prefer a very simple one, such as Professor Powell quoted by Rodolfo Batiza the idea of a trust is essentially simple: On the other hand, a more detailed definition of a Trust is that of Sir Arthur Underhill who defines a trust as an equitable obligation binding a person, called trustee, to deal with property owned by him, called trust property being distinguished from his private propertyfor the benefit of a third party iescalled beneficiaries or, in old cases, cestuis que trust, of whom he may himself be one; and any one of whom may enforce the devreto.
A trust is a legal device which contains elements both decrdto the law of obligations and of the law of property Through these definitions one may conclude that Trusts are enforced by equity rather than by common law. The latter only recognizes rights of property on the legal owner of the property and therefore, it will not recognize the equitable ownership of the beneficiaries.
By means of a Trust, the beneficiaries have rights to or over the decrteo held in Drcreto for their benefit equitable ownershipeven though they do not have the legal title in the property. The trustee has an equitable duty to compel with his obligations. Even though it is not mandatory, the trustee s obligations, together with the beneficiaries rights in some casesare often clearly outlined in a trust instrument.