Money laundering is a process in which different economic, financial and commercial transactions are carried out with the purpose of having the appearance of legality to illicit resources, it should be noted that resources of illicit origin are all those generated by some type of crime .
The financing of terrorism, for this part, consists of seeking resources, whether legal or not, to facilitate the development of terrorist actions.
In Mexico, the one who regulates the prevention of money laundering in general is the LFPIORPI Federal Law for the Prevention and Identification of Operations with Resources of Illicit Origin; We bear in mind that the Prevention of Money Laundering (PLD) is not a tax issue, despite the fact that registrations and notices are presented on the platform of the Tax Administration Service (SAT), among others. The SAT is the supervisor of the LFPIORPI.
Among the particularities that emerge from the LFPIORPI is that there are obligated subjects and vulnerable activities.
Vulnerable activities are economic activities that due to their nature and characteristics may be a possibility for the entry of money obtained from illicit sources.
An obligated subject is one who, by law or regulation, must comply with a special compliance regime to help the authorities fight crimes such as money laundering, corruption, and terrorist financing.
The information provided by the obliged subjects is the basis for strengthening efforts to identify, analyze, supervise and prevent money laundering and the financing of terrorism.
Although there is no official figure of what money laundering represents in Mexico, according to various researches and official reports, it can be concluded that around 50,000 million dollars are laundered each year in the country (INACIPE), which is why it is very important that we know, if our professions or activities are established as obligated subjects or vulnerable activities, and if we are part of them, to know the obligations that we contract to avoid a legal problem and contribute to the prevention of money laundering.
Javier Estrada Vega
Gloria Ponce de León & Hernandez
On January 11, 2021, the Decree amending Article 311 was published in the Official Gazette of the Federation and adding Chapter XII Bis of the Federal Labor Law, on Teleworking, the above with the purpose to regulate this modality under which workers may work from their home or in a place freely chosen by them.
The relevant points of these reforms are the following:
1.- Regarding Telework, the following definitions are established:
- Telework: it is defined as a form of subordinate labor organization that consists of the performance of tasks in places other than the employer’s establishment, so that the physical presence of the worker is not necessary in the workplace and instead they are used Information and communication technologies for contact between the worker and the employer.
- Worker under the Teleworking modality: will be the person who provides their personal, paid and subordinate services in a place other than the workplace, and who uses information or communication technologies.
- Information and communication technologies: will be the set of services, infrastructure, networks, software, computer applications and devices that are intended to facilitate the functions in the work centers, as well as all those technological components that allow creating, modifying, store, protect and retrieve information related to its functions.
- These provisions will govern those labor relations that are developed at the worker’s home or at the home chosen by him, in more than 40% of the time.
- Telework will not be considered that which is carried out occasionally or sporadically.
- The conditions under which Telework will be carried out must be established in a contract. Both the worker and the employer must keep a copy of the contract.
- If there is a collective bargaining agreement, the Teleworking modality must be part of it and a free copy must be delivered to the worker.
If the employer does not have a collective bargaining agreement, teleworking must be included in the internal work regulations, as well as establishing contact mechanisms between workers who are working under this modality.
- Special obligations are generated for both the employer and the worker who is working under the Telework modality: Special obligations of the employer:
- Provide, install and take care of the maintenance of the necessary equipment for Telework.
- Assume the costs derived from Telework (payment for telecommunication services and proportional part of electricity).
- Implement information security mechanisms
- Respect the right of the worker to disconnect at the end of the working day.
Special obligations of the worker:
- Care and conservation of the equipment and materials received from the employer.
- Report the costs derived from Telework on the use of telecommunications services and electricity consumption.
- Attend data and information protection policies and mechanisms implemented by the employer.
- It is established as a special power of the Labor Inspectors to validate the due fulfillment of the special obligations of both employers and workers.
It is important to mention that although this Decree came into force on January 12, 2021, the Federal Executive Power will have a period of 18 months (counted from the aforementioned date) to publish an Official Mexican Standard in which they are regulated Obligations regarding health and safety for Teleworking.
Gloria Ponce de León & Hernández
The minimum wage in Mexico of $123.22 pesos established for the year 2020, increased an inflationary percentage of 6% and an Independent Recovery Amount (IRM) of $10.46 pesos. This increase is in addition to those granted in 2019 of 16% and in 2020 of 20% that have allowed the recovery of purchasing power to continue and the National Commission of Minimum Wages (CONASAMI) used again the MIR factor (which was used for the first time in December 2016) to recover the purchasing power of workers that receive a general minimum wage to reach the welfare line suggested by the National Council for the Evaluation of Social Development Policy (CONEVAL).
The discussion on the relationship between trade and labor in the World Trade Organization (WTO) achieved important advances within the Free Trade Agreements since express obligations are established in minimum wages with their own reference without referring exclusively to international commitments under the International Labor Organization (ILO).
Likewise, in the negotiations for the treaty between Mexico, the United States of America, and Canada (T-MEC), the minimum wage was also one of the issues mentioned since it was one of the major concerns within the labor standards intended to be increased in Mexico.
However, one of the disadvantages to this increase in the minimum wage is the aforementioned “Lighthouse Effect,” which is described as “the transfer of increases in the minimum wage over the rest of the salary distribution, especially over the income of the workers, whose salary is the above-said indicator.”
This implies that if the minimum wage is increased, other wages and prices will also rise. According to the Bank of Mexico, this new salary distribution may induce companies to raise their products’ prices due to increased labor costs and the indirect increase in prices of immediate goods and services.
According to the Economic Commission for Latin America and the Caribbean (ECLAC), if both wage and price growth are realized, there would be no benefit for workers, but rather the opposite, there would be other disadvantages.
However, companies can take different paths to reduce inflation on wages, such as reducing operating expenses, advertising to fill vacancies, and training expenses, among others. Job loss could be a possible scenario since a higher minimum wage could lead companies to hire fewer workers.
ECLAC provided a solution to avoid adverse results in the economy, which consists of making “modest” increases to destabilize local and personal economies.
This issue is of vital importance to the ILO, which mentions that following the effects of the minimum wage “is a key element of any system based on factual data,” since it not only has repercussions on the pockets of those who receive this amount but on a myriad of economic and social variables of the entity.
In 1970, the ILO, during its general conference, granted certain criteria to determine the level of minimum wages, which are:
- The needs of workers and their families.
- The general level of wages in the country.
- The cost of living and its variations.
- Social security benefits.
- The relative standard of living of other social groups.
- Economic factors, including the requirements of economic development, productivity, and the desirability of achieving and maintaining a high employment level.
Currently, the country’s minimum wage is $141.70 pesos per day, while for the Northern Border Free Zone, it is $213.39 pesos per day.
Lic. Génesis Moyeda Salazar
Gloria Ponce de León & Hernández
On December 29th, 2020, the Miscellaneous Tax Resolution (“RMF”) 2021 was published in the Official Gazette of the Federation (“DOF”), which entered into force on January 1st, 2021, and will be in force until December 31st, 2021.
Most of the regulations published in the 2020 Miscellaneous Tax Resolution continue in force. However, some other regulations have been amended, and others repealed. Additionally, 53 (fifty-three) transitory articles have been published.
– In the Reportable Schemes regulations, there was nothing new, nor the publication of a transitory article that could extend the due dates of the delivery by the tax advisor of the certificates to the taxpayer of the non-reportable schemes that generate tax benefits in Mexico and the presentation of the reportable schemes corresponding to the fiscal year 2020.
– Neither the publication of another transitory article for reportable schemes that have to be disclosed by the taxpayer, designed, marketed, organized, implemented, or administered from the year 2020, or prior to said year when any of its tax effects affect the fiscal years from 2020.
– On the other hand, the Northern Border Region Tax Incentive Decree regulation, published in the DOF on December 31, 2018, was eliminated.
– Regarding said Decree, it is expected, according to the announcement of the Federal Executive, the publication of the following decrees:
o Extension of the validity of the Decree of Fiscal Incentives in the Northern Border.
o Fiscal Incentives in the Southern Border.
o IEPS stimuli for gasoline in the Southern Border.
o Tariff benefits in the Chetumal Free Zone.
– The regulation of the option of making payments on account per period or exercise of tax debts is highlighted, which stipulates that taxpayers who opt for this facility must request in accordance with what is indicated in the procedure sheet 305-CFF “Request of capture line for payments on account, by period or exercise of certain credits,” stating the number of the resolution, as well as the amount of the payment to be made.
If the request is accepted, the tax authority will issue a response accompanying the FCF (capture line).
You can consult the Tax Miscellany 2021 in the DOF at the following link for more information http://www.dof.gob.mx/nota_detalle.php?codigo=5609047&fecha=29/12/2020.
If you have any questions or comments, contact us. The GPH team will provide you with the support you require, helping you understand the tax provisions published by the SAT.
Lic. Tamara Martínez
Gloria Ponce de León & Hernández
The Federal Labor Law, as amended in 2012, considers home office is work performed at a distance using information and communication technologies; however, it did not specify whether a home office is a modality other than teleworking, nor did it establish the particular elements or general conditions under which teleworking must be performed, or the rights and obligations of both teleworkers and bosses.
Due to the global pandemic caused by the Covid-19 virus, two bills to reform the Federal Labor Law were presented in the Chamber of Deputies of the Congress of the Union, to regulate the figure of teleworking with clearer principles and rules. The first of them was presented by Representative Ricardo Flores Suárez, of the PAN, on June 28, 2020; the second was by Representative Manuel de Jesús Baldenebro Arredondo Encuentro Social on August 26, 2020.
The draft decree defines telework as the mode of distance work organization in which it uses information technology and communication for the performance of the activities required by an employer.
It also establishes that teleworking’s general conditions must be made in writing and specify, in addition to the requirements outlined in Article 25 of the Federal Labor Law, the nature, salary, quality, and quantity of teleworking. The draft decree imposes new special obligations on employers, such as the following: to previously register in the Registry of Teleworking Employers, which will depend on the General Directorate of Labor Inspection of the Ministry of Labor and Social Welfare, to deliver a copy of the contract to the Teleworking Inspection, to keep a teleworker’s record book in which they will record the data of the teleworker, to provide the necessary equipment to the teleworker to carry out his work and to provide the labor inspectors and any other authority with the reports they request.
The draft decree imposes on the teleworker the following new special obligations: to take special care and conservation of the information and communication technology equipment, to perform the work with the agreed quality, to receive and deliver the telework on the agreed days and hours, and to compensate the employer for the loss or deterioration that the information technology equipment suffers due to his fault in terms of article 110, section I of the Federal Labor Law.
As to the rights of teleworkers, the draft decree establishes that teleworkers’ salaries may not be less than those paid for similar jobs to regular workers in the company or establishment. Additionally, teleworkers will enjoy the labor law’s minimum benefits and will be entitled to social security and maternity, paternity, and adoption leave.
The draft decree intends to regulate in a general way the figure of teleworking, it does not specify other aspects that are fundamental such as the rights of the teleworker to return to the face-to-face activity, to disconnection, and his/her privacy; the limits to the working day and, if applicable, the calculation of the extraordinary time that the teleworker may work at home; the expenses generated by the telework, the use of the confidential information of the bosses and the accidents that may be caused at the teleworker’s home.
On the other hand, the reform project presented by the parliamentary group of Encuentro Social, is much more protectionist of the rights of teleworkers by establishing more rights for them, and for the first time, regulating the right to disconnect from the Internet.
Also, this initiative establishes that the bosses will also have the right to agree on the modality of face-to-face work or telework, which means that it will be necessary for both parties by mutual consent and voluntarily agree that the teleworker will work under the modality of telework, having the latter the right to return at any time to work in the workplace. The result is an innovative reform project that proposes that teleworking can be: total when it is done all the time in a different place from the work center and the rest of the time in person for a determined time or work schedule and for a greater cause when the employer requires the teleworker to work under this modality after his established workday and schedule; however, it does not define or specify what the causes of force majeure would be.
It is of vital importance that the Congress of the Union retakes as soon as possible the analysis of both reform decree projects to regulate the figure of teleworking, and in its case, propose a regulation that fits the reality we are living in. Manuals or internal policies must be elaborated. Each company regulates its services under this modality, hand in hand with the guidelines and norms issued by the federal government.
Lic. Génesis Moyeda Salazar
Gloria Ponce de León & Hernández
The pandemic that has caused millions of deaths and other economic and health consequences, governments have had to review and readjust their measures, guidelines, regulations, and have seen the need to create or modify laws to be able to be implemented or readjusted to situations like the one we are experiencing today. In the case of Nuevo Leon and our current civil legislation, there was an opportunity to modify certain its articles, since before October 2, 2020, no assumptions of such, as the one we are experiencing, were foreseen in terms of leasing or other commercial contracts that could be held and have not been able to proceed due to this same situation.
It is important to mention that said legislation had not foreseen to date any case partially or totally similar to what we are experiencing today globally and there was no need to establish or formalize this issue. Likewise, our priority as GPH is and will always be to keep all citizens and especially the firm’s clients informed, so that they have useful information when making decisions and legal projects. The modified articles of the Civil Code for the State of Nuevo León were article 2005 and article 2326.
Article 2005 only contemplated the fortuitous event (Acts of God) and force majeure was added to what said article said to be as follows: ” No one is obliged to fortuitous events(Acts of God) or force majeure, except when they have given cause or contributed to it, when they have expressly accepted that responsibility, or when the law imposes it on them”.
On the subject of leasing, article 2326 was modified, in which a second paragraph was added to the article in question in order to state as follows: “If the use of the thing is only partially prevented, the tenant may request a partial reduction of the rent, in the opinion of experts, unless the parties choose to terminate the contract, if the impediment lasts for the time set in the previous article”.
The tenants of real estate in which commercial activities are carried out and that are disturbed in the enjoyment of them as a result of the application of the emergency declaration of civil or sanitary protection issued by the competent authority, in which the cessation is ordered of the commercial operations of commercial line that is applicable, they may be entitled to a reduction of the rent during the time that the emergency declaration lasts and the prohibition of the opening of their businesses on the territorial district in which the property is located in terms of the agreement between the lessor and lessee or in the absence of an agreement, whatever the competent authority defines“.
Therefore, it can be deduced that each tenant who, due to a case of force majeure issued or declared by a competent authority, will have the right to a reduction of the amount given each month in consideration for the lease if his business were closed or operations ceased during this particular time.
These reforms were published on October 4, 2020 and entered into force on October 5 of this year as a result of the health emergency that is currently being experienced worldwide. Taking into account the above, it is advisable to apply said assumptions in the lease contracts that will be signed or their amending agreements to have a formality from the signatories regarding the steps to follow in the event of said assumption.
Gloria Ponce de León & Hernández