TAX. Mexican Social Security Institute – Administrative Facilities Labor Subcontracting September 10, 2018
On September 5, 2018, was published on the Official Gazette of the Federation, the ruling ACDO.SA2.HCT.290818/225.P.DIR (the “Ruling”) issued by the Technical Committee of the Mexican Institute of Social Security ( “MISS”) in which establishes that the employer or obligor (contractor) and the beneficiary of the works or services (contracting party) that use the data application contained in the Tax Administration Service (“TAS”) website, and carry out the procedure contained in the corresponding general rules, will have fulfilled the obligation stated in article 15 A, fifth paragraph of the Social Security Law (“SSL”).
Article 15 A, fifth paragraph of the SSL establishes that the contractors (contractor and contracting party) must communicate to the MISS within the first 15 days of the months of January, April, July and October, several information in connection to the Contracts and Agreements celebrated in the quarter in question.
It is necessary to point out that the first paragraph of the aforementioned article 15 A of the SSL, states that when hiring workers for an employer in order to perform works or provide services for him, a labor intermediary participates, both will be jointly and severally liable with each other and with the workers, regarding with the social security obligations.
Remember that the general rules published by the TAS specify that the contracting party can use the data application to consult the information authorized by the contractor in connection with labor subcontracting activities and if obtain the acknowledgment of receipt without inconsistencies, they will not have any contingency for Income Tax and Value Added Tax purposes.
We considered that the Ruling confuses the legal institutions of labor intermediation and labor subcontracting, and therefore the respective obligations and consequences of such institutions.
In labor subcontracting the contractor performs the works or provides services with his workers and must comply the requirements and conditions set forth in article 15-A of the Federal Labor Law, otherwise the contracting party will be considered the employer of the workers.
On the other hand, in labor intermediation the contractor intervenes to hire workers for the contracting party, with the purpose of executing works or rendering services for the latter and, at all times, both will be jointly and severally liable, that is, they will be considered workers’ employers.
This Ruling aggravates the legal uncertainty that exists in order to define when we are in the presence of a provision of independent services, a labor intermediation, or a labor subcontracting, because the tax obligations and their consequences are different in all cases.
We considered that 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, with special attention and emphasis on tax issues because the potential contingencies that may be generated.
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Mexico City, September 10, 2018