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
As a result of the amendments to the Federal Labor Law published on April 23 of this year in the Official Gazette of the Federation, companies must make adjustments to comply with the new provisions and may only subcontract services or specialized works or the execution of specialized works that are not part of the corporate purpose of the company or that are not part of its main economic activity. The companies must be registered in the Public Registry of Contractors of Specialized Services or Specialized Works, for which purpose the provisions for the Registry of individuals or legal entities that provide specialized services, issued by the Ministry of Labor and Social Welfare, were published in the Official Gazette of the Federation this day.
Companies that provide specialized services will require authorization from the Ministry of Labor and Social Welfare, to be renewed every 3 years; in addition, they will be registered in a public registry.
Among some of the requirements or requisites that need to be added to the notice or the registration to the registry are:
1.- Commercial Name, and corporate name;
2.- Federal Taxpayers Registry;
3.- Federal Entity;
4.- Total number of workers;
5.- Specialized economic activity according to the catalog of activities for the classification in the companies in the insurance of labor risks, of the Mexican Institute of the Social Security;
6.- Activity or activities to be registered in the register, among others.
Companies must carry out an exhaustive review of their contracts with various suppliers and with the individual contracts of their workers, in order to comply with the new provisions of the labor reform, although we are talking about an elimination of outsourcing, we are talking about a regulation and limitation of outsourcing, i.e. that outsourcing is the exception and not the rule.
Companies will have three months to incorporate their outsourced workers as permanent employees. With the exception of those services or execution of specialized works, as long as the contractor is registered in the public registry.
Companies or employers that resort to the rendering of specialized services with a contractor that fails to comply with the obligations with its workers, will be jointly and severally liable for the workers involved.
In tax matters, payments for the subcontracting of personnel will not have tax effects of deduction or crediting. Likewise, irregularities will be prosecuted as a tax fraud crime, so companies should take this issue into account.
Génesis Moyeda Salazar
Gloria Ponce de León & Hernández
During the past month of April was approved for the Senator Chamber the creation of Padrón Nacional de Usuarios de Telefonía Móvil (PANAUT), which consists basically in a database with the information of the users of every telephone line across the country for exclusive use of the authorities.
The controversy reform to the Ley Federal de Telecomunicaciones y Radiodifusión was harshly criticized for individuals and law professionals because of the personal interpretation given by many that may result even unconstitutional in many different ways, mainly because the lack of guarantees to protect the personal data given and the grant of this personal data in hands of a third party involved.
In protection against this reform, the law foresees the Constitutional Trial, as a legal way to present the Authority the grievance caused by this reform.
The legal term to file the Constitutional Trial, counted from the day of the publication, expires on May 31st 2021. Also, in case the Trial were solved against there is an option to file a Review resource in order to the case to be studied by another authority and proceed with the definitive suspension of the facts that motivate the filling of the claim.
However, assuming that any particular acquires a telephone line after the day the term expires to file the Constitutional Trial mentioned before, the legal term to file a new one is 15 days counted from the day the line was acquired and it should be file before the competent authority.
From the other side, if any National Authority foresees that the mentioned reform results against our Constitution this may, by their own, file an Unconstitutional Action before the competent authority in order to expose their arguments and try to get declared against the Constitution.
Gloria Ponce de León & Hernández
Undoubtedly with the recently published labor reform, the terms outsourcing and insourcing have become part of the everyday vocabulary of both lawyers and workers, however, for the latter the terms are not always clear, so let’s start with the basics, what does each one mean?
Outsourcing is a way of working where companies outsource some of their activities through subcontracting. It is an anglicism that is divided into out “out” and source “source”, that is, external source. In this sense, it is the process by which companies outsource several of their activities through external companies that are responsible for providing resources for the specific area required.
Now, insourcing is one of the forms of labor outsourcing that involves “creating a company within the group of companies that absorbs all the payroll and invoices for that service. The problem with insourcing is that it was a simulation since it mocked the rights of the workers by disguising who the real employer was in the hiring process, which resulted in a problem when filing a lawsuit because they did not know who the employer was.
Thus, under this hiring scheme many companies managed their human capital and even continue to do so, which is now illegal and in violation of labor and tax regulations.
This is derived from the Decree published on April 23, 2021, which, among other things, expressly prohibits the subcontracting of personnel.
This initiative has an impact on the Federal Labor Law, the Social Security Law, the Law of the National Workers’ Housing Fund Institute, the Income Tax Law, the Value Added Tax Law, the Federal Tax Code, the Federal Law of Workers in the Service of the State and the Law Regulating Section XIII Bis of Section B of Article 123 of the Mexican Constitution.
Among the main aspects is expressly included:
- The prohibition of subcontracting personnel (Article 12 of the LFT).
- Complementary or shared services or works rendered between companies of the same business group will also be considered as specialized as long as they are not part of the corporate purpose or the main activity of the company that receives them.
With this reform, several doubts have arisen mainly to the employers that have been performing these outsourcing and insourcing activities, so, in case you have doubts about your rights as a worker or a labor restructuring for your company, do not hesitate to contact us and we will be glad to solve them.
Gloria Ponce de León & Hernández