On April 23, was published on the Federal Official Gazette (DOF) the reform of several laws, including the Federal Tax Code, the Income Tax Law and the Value Added Tax Law, derived of this reform, new restrictions and / or prohibitions, administrative and verification burdens are imposed on taxpayers who hire or provide specialized services or subcontract personnel, which would affect the deductibility of their expenses, and even have effects such as fines and penalties detailed as it follows.
- Tax Deductibility.
Payments or considerations made for the following assumptions will not have tax deduction or accreditation effects for purposes of VAT and ISR Law.
- Those carried out for the subcontracting of personnel to carry out activities related to both the corporate purpose and the predominant economic activity of the Employer.
- The services in which personnel are provided or made available to the Employer when the workers that the Contractor provides or places at the disposal of the Employer, have originally been workers of the latter and have been transferred to the Contractor, through any legal form.
Contractors that provide specialized services or the execution of specialized works shall be provide to the Contracting Party and the Tax Administration Service (SAT) no later than the last day of the month following the day in which the Contracting Party has made the payment for the service received and the tax has been transferred to it, the following information and, the Contractor will be obliged to collect the documentation within the indicated period, otherwise it shall present a complementary declaration in which reduces the amounts that would have accredited for said concept.
- Registration with the Ministry of Labor and Social Welfare.
- The tax receipts for the payment of wages of the workers with whom they have provided the service or executed the corresponding work.
- Receipt of payment issued by the banking institution for the declaration of the full amount of the tax withholdings made to said workers.
- The payment of the employer’s worker fees to the Mexican Institute of Social Security.
- Payment of contributions to the Institute of the National Housing Fund for Workers.
- Joint and several liability.
The Contracting Parties will have joint and several liability with the Contractors who update the following assumptions.
- The Contracting Parties who receive services or contract specialized service works or the execution of specialized works, for the contributions that would have been caused by the workers with whom the service is provided.
- Infractions, aggravating factors, fines and Criminal Offenses.
The following assumptions will be considered infractions:
- When the Contractor doesn´t comply with the obligation to provide the Contracting party with the information and documentation that proves the contributions that have been caused by the workers with whom the service is provided.
The fine for this infraction could range from $ 150,000.00 to $ 300,000.00 for each obligation to provide information not fulfilled.
The following assumptions will be considered as aggravating factors in the commission of an infration.
- Carry out the deduction or accreditation of those payments made for the subcontracting of personnel to carry out activities related to both the corporate purpose and the preponderant economic activity of the Contracting Party and, the services in which personnel are provided or made available to the Contracting Party when the workers that the Contractor provides or makes available to the Contracting Party, originally they have been workers of the Contracting Party and have been transferred to the Contractor, through any legal form.
The following assumptions will be considered as criminal offenses and will have the penalties indicated below.
- Anyone who uses simulated schemes for the provision of specialized services or the execution of specialized works commits the crime of tax fraud.
The amount of the contributions defrauded in the same fiscal year will be taken into account, even in the case of different contributions and various actions or omissions, the penalties to be considered are the following.
- With imprisonment from three months to two years, when the amount of the defrauded doesn´t exceed $ 1,932,330.00.
- With imprisonment from two years to five years when the amount of the fraud exceeds $ 1,932,330.00 but not $ 2,898,490.00.
- With prison from three years to nine years when the amount of the defrauded is greater than $ 2,898,490.00.
Lic. María Galaviz.
Gloria Ponce de León & Hernández