On April 24, the decree was published in the Official Gazette of the Federation (DOF), which considered the disappearance of the generalized outsourcing and only the specialized one will be allowed. The decree came into force as of its publication with the exception of the reforms made to the Federal Tax Code (CFF), the Income Tax Law, the VAT Law, which will come into force on August 1, 2021. The publication considered modifications to a total of 8 laws listed below:
This reform contemplates that “outsourcing” can only be implemented in specialized services, which are not part of the corporate purpose or preponderant activity of the beneficiary company of those services, as long as the service provider is registered in a registry that will be implemented by the Ministry of Labor and Social Welfare. Like the distribution of profits, workers will have a maximum limit of three months of the worker’s salary or the average of the participation received in the last three years.
Among the main points contemplated by the reform, the following are particularly relevant:
- PROHIBITION of the subcontracting of personnel, including by insourcing schemes.
- AUTHORIZATION to subcontract specialized services and works that are not part of its corporate purpose or predominant economic activity.
- EXCEPTION for specialized outsourcing services to be provided between companies of the same group, as long as these services are not part of the corporate purpose or the predominant activity of the company that receives them.
- TRANSITION. The companies that provide outsourcing services and those that hire them will have a maximum time of three months (90 calendar days) after the reform has been published, for the provider companies to dispose of the personnel hired under the outsourcing and Contracting clients transfer subcontracted personnel to their payrolls, carrying out employer substitution to fully recognize the staff’s seniority period.
- THE PERSONNEL CONTRACTING AGENCIES may only carry out personnel selection, recruitment and training activities, and may no longer be employers of the placed personnel.
- REGISTRATION, Once the reform is published, the authorities must publish those who provide the subcontracting service must register and form part of a STPS registry; the registration will be renewed every three years. The agency will have thirty days after the reform is published to issue the corresponding rules.
- SOLIDARITY EMPLOYEE reaffirms that companies that subcontract services or works will be jointly liable for non-compliance with the direct employer.
- STPS NOTICE. Those who provide outsourcing services must communicate quarterly, within the first 15 days of the months of January, April, July and October, the contracts entered into in the quarter in question. Object; period of validity; List of workers that will be made available to the beneficiary of the contracted services or jobs, name, CURP, social security number and base contribution salary, as well as name and federal taxpayer registry of the beneficiary of the services for each of the contracts, as well as a simple copy of the authorization issued by the Ministry of Labor and Social Welfare for the provision of specialized services or the execution of specialized works.
- FINES. Companies that do not allow the inspection will be fined $ 22,405.00 to $ 448,100.00; those who carry out subcontracting without being registered in the registry, will apply a fine of $ 179,240.00 and up to $ 4’481,000.00; and those who do not submit quarterly reports or do so out of time will be subject to a fine ranging from $ 44,810.00 to $ 179,240.00.
- DISTRIBUTION OF PROFITS: The distribution of profits will have as a maximum limit the equivalent of three months of salary or the average received in the last three years, whichever is higher.
Regarding additional reforms to the Federal Labor Law, please find a summary of the most relevant aspects:
Within the Social Security Law, it was determined that the natural or legal person that provides specialized services or executes specialized works must provide quarterly no later than the 17th day of the months of January, May September, the information of the contracts celebrated in the four-month period in question, which includes:
- The period of validity
- List of workers or other subjects who will provide specialized services or execute specialized works in favor of the beneficiary:
- Indicating your name, CURP, social security number and contribution base salary, as well as the name and federal taxpayer registry of the beneficiary of the services for each of the contracts.
A fine equivalent to the amount of 500 to 2000 times the value of the unit of measurement and updating will be imposed.
The period of joint and several liability to which the substituted employer and the substitute employer are subject is reduced from two years to three months, in the case of employer replacement.
Like the IMSS, the natural or legal person that provides specialized services or executes specialized works must provide INFONAVIT every four months, no later than January 17, May and September, the service contracts and various information about them. , such as the amounts of the contributions and amortizations, information on the workers, determination of the contribution base salary, and a simple copy of the registry issued by the STPS.
Within a period of 60 calendar days from the entry into force of the aforementioned reforms, INFONAVIT must issue the rules that establish the procedures to comply with the indicated requirements and dates of submission to it.
Both the IMSS and the INFONAVIT will have the power to inform the Ministry of Labor and Social Welfare about the non-compliance that the employers comment on.
An article was incorporated that rejects the deduction or accreditation of expenses related to the subcontracting of personnel, when activities related to both the corporate purpose and the predominant economic activity of the contractor are carried out. Neither will tax deduction or credit effects be given to the services in which personnel are provided or made available to the contractor, when:
- Personnel had been transferred from the contractor to the contractor
- The services cover preponderant activities of the contractor.
The deduction and the respective accreditation of expenditures related to the outsourcing of specialized services will be allowed when:
- They are not part of the corporate purpose or preponderant activity of the contractor
- The contractor is registered with the STPS; and (c) the requirements set forth in the LISR and LIVA are met.
In terms of joint and several liability, the contractor of personnel subcontracting services is included as jointly liable for the contributions made by the workers with whom the service has been provided.
When the contractor does not comply with the obligation to deliver to a contractor the information and documentation referred to in the Value Added Tax Law, fines are established from $ 150,000.00 to $ 300,000.00.
In the case of the provision of specialized services or the execution of specialized works, the contractor must verify, when making the payment of the consideration for the service received, that the contractor has the registry of specialized service provider referred to in the legislation. labor
Likewise, it must have various information from the contractor related to the workers to whom the services have been provided, including:
- Copy of the corresponding payroll tax receipts.
- Payment receipt issued by the banking institution for the declaration of the tax withholdings made to said workers
- Payment of worker-employer fees to the Mexican Institute of Social Security, as well as payment of contributions to the Institute of the National Housing Fund for Workers.
The obligation to withhold the value added tax (VAT) in subcontracting, incorporated in 2020, for an amount equivalent to 6% of the value of the consideration actually paid, applicable to taxpayers who receive services through which staff are made, is repealed. available to the contractor.
The VAT that is transferred with respect to payments made for non-specialized subcontracting will not be creditable.
Likewise, for the provenance of the accreditation, the contractor must obtain from the contractor a simple copy of the authorization in force before the STPS, as well as the declaration of the monthly payment of VAT, the acknowledgment of receipt of the payment corresponding to the period in which the contractor made the payment of the consideration and of the VAT that was transferred to him. If the contractor does not obtain the aforementioned documentation from the contractor no later than the last day of the following month, he must present a supplementary declaration in which he reduces the amounts that he has credited for said concept.