TAX. Data Application on Subcontracting Labor – Consultation of information from January to August 2018 and fulfillment obligations notice of 2017 July 2, 2018
On April 30, 2018, was published on the Official Gazette of the Federation, the First Amendment Resolution of the Miscellaneous Tax Resolution (“MTR”) of the 2018, which contains the rules that establish the existence and use of a data application through the Tax Administration Service (“TAS”) website, in order that the contracting party can consult the authorized information by the contractor in connection with labor subcontracting activities in substitution of the obligation to obtain documentation referred in articles 27, section V of the Income Tax Law (“IT”) and 5, section II of the Law of Value Added Tax (“VAT”) for purposes to deduct the expenses for IT and credit the corresponding VAT.
Due the last anticipated version of the Second Amendment Resolution of the MTR of the 2018 published on the TAS website, there is enough time for such purposes, since it foresees that as of the last day of September 2018 the contracting party could consult through the data application the information authorized by the contractor related with labor subcontracting activities of January to August of 2018.
In addition, no later than September 30, 2018 the contracting parties must have to file the fulfillment obligations notice for the tax year 2017, announced on the TAS website on last February 7.
Legal uncertainty has been caused in order to define when we are in presence of a provision of independent services, a labor intermediation, or a labor subcontracting, in which case the aforementioned provisions must be observed.
The aforementioned, because through the tax audits carried out by the TAS, on multiple occasions the authority has considered that the agreements for provision of services that require workers or employees of the contractor to effectively provide the services to the contracting party, are not provision of services, re-characterizing the legal relationship between both parties and, therefore, causing a tax contingency to the contracting party.
Even, the Mexican Institute of Social Security has required to the contracting parties in this type of services, the payment of employer-employee fees that left or should have paid the contractors.
It is essential to review and analyze the contracting scheme for provision of services implemented with its several contractors (i.e. suppliers), in order to establish a diagnosis and the necessary recommendations to continue operating such scheme, paying special attention and emphasis on tax issues because the potential contingencies that may be generated.
If you have any questions regarding the foregoing, please do not hesitate to contact us.
Mexico City, July 2, 2018