Tips_Legales

TIP LEGAL No. 47 – OUTSOURCING REFORM BILL 2021

On April 23, 2021, it was published in the Federal Official Gazette, the Reform Bill regarding the outsourcing or subcontracting of personnel, with the purpose of changing several labor, social security, and tax laws.

This reform will be in force as of April 24, 2021; and in the case of changes related to the tax laws, these will come into effect, as of August 1, 2021.

The most important changes in the applicable legislation are as follows:

FEDERAL LABOR LAW

The subcontracting of personnel or outsourcing which consists of an individual or legal entity providing their own employees for the benefit of another entity or company is now forbidden.

The provision of specialized services or the performing of specialized works which are not part of the corporate purpose nor the predominant economic activity of the beneficiary are allowed, provided that the contractor obtains the appropriate Register from the Ministry of Labor (Secretaría del Trabajo y Previsión Social or the STPS for its acronym in Spanish).

Also, the provision of specialized services or the performing of specialized complementary and shared works, between members of the same company group, will be allowed, provided that such services are not part of the corporate purpose nor the predominant economic activity of the beneficiary.

Said provision of specialized services or the performing of specialized works must be formalized into a written legal agreement.

For such purposes, companies as providers of “specialized services”, must request and obtain the applicable registration from the STPS, according to the rules to be issued within the next 30 days, following the entry into force of Reform, by the STPS.

Once the aforementioned rules are issued by the STPS, companies will have 90 calendar days for their registration, which will have the following characteristics:

It will be in effect for 3 years;
It will be public and will be available on the STPS Internet portal;
The STPS is obligated to resolve the registration request within 20 days of receiving such request.

Furthermore, the beneficiary company of the specialized services or specialized works that receives such services from a contractor that has not complied with its labor obligations will be considered jointly and severally liable with regard to the employees engaged in the performing of such services.

In the case of companies that transfer its employees to another company, they are not required to transfer their assets as well, provided that such transfer takes place within 90 calendar days from the entry into force of the Reform, and the labor rights of the employees that would have been generated from the beginning of the employment relationship are recognized by the substitute employer, including their seniority.

Moreover, companies that fail with the compliance of the aforementioned new obligations will be subject to the applicable fines or penalties.

Finally, regarding the obligation of the companies to pay statutory profit sharing to employees (PTU for its acronym in Spanish), a new procedure of sharing is established as follows:

(i) PTU payable will be limited to a maximum of 3 months of ordinary daily salary; or (ii) the average of the PTU received from the last 3 years; by applying the most favorable amount to the employee.

It is important to mention that the applicable procedure in order to determine PTU, as currently established in the Federal Labor Law, remains the same.

SOCIAL SECURITY LAW AND NATIONAL HOUSING FUND OBLIGATIONS

The contracting of specialized services or the performing of specialized works must be carried out in compliance with the same applicable requirements and conditions established by Labor Law.

Companies that provide specialized services or the performing of specialized works are required to file every four months information regarding the outsourcing agreement or contracts. no later than the 17th day of the months of January, May and September; and in the event that such information is not submitted or submitted after the deadline, the employer will be liable to the applicable penalties.

Individuals or legal entities that contract specialized services or the performing of specialized works with companies that fail to comply with their social security and housing fund obligations, will be jointly liable in connection with the employees who are engaged in the provision of said services.

The national employer’s registry by class, for entities that carry out the provision of services, which allowed the employer to have a different registry for each of the classes of work risks is eliminated; in which case, they will cancel such registry and request a new employer registration, within 90 calendar days from the entry into force of the Reform.

Furthermore, a new specific procedure must be applied by employers which provides services in order to calculate the new class of work risk, according to the new regulations, when the transfer of employees takes place, as earlier described.

TAX LAWS EFFECTS

Taxpayers will not be able to take the deduction for income tax purposes or input VAT for valued added tax purposes of the expenses made when the contractor carries out the provision of specialized services or the performing of specialized works which are part of the corporate purpose or the predominant economic activity of the beneficiary.

Accordingly, individual or legal entities, as recipients of services, where the contractor provides his own employees for the benefit of the contracting party or puts them at their disposal, may not take any deduction for income tax purposes or input VAT for valued added tax purposes.

The provision of specialized services or the performing of specialized works which are not part of the corporate purpose or the predominant economic activity of the beneficiary, provided that the appropriate registration has been obtained by the contractor from the STPS will not be considered as outsourcing; thus, expenses made thereof shall have the respective income tax and VAT effects.

In the case of services or complementary or shared works provided between companies of the same business group, such services will be regarded as “specialized”, provided that they are not part of the corporate purpose or the predominant economic activity of the company that receives them.

Legal entities or individuals who receive the provision of specialized services or the performing of specialized works, whose services are not part of the corporate purpose or the predominant economic activity of the beneficiary, will be jointly liable for the taxes that may have been incurred by the employees engaged in the provision of said services.

In addition to the imposition of the applicable of fines or penalties for noncompliance with the legal requirements earlier described, it will be considered as a qualified tax fraud felony, to use simulated schemes for the provision of specialized services or the performing of specialized works, as well as the forbidden outsourcing or subcontracting of personnel.

To be able to take the deduction for income tax purposes or input VAT for value added tax purposes of the expenses made in connection with the provision of specialized services or the performing of specialized works, taxpayers must verify that the contractor has obtained the registration granted by the STPS in addition to comply with specific requirements, such as collecting certain tax information and documentation from the latter.

The 6% VAT withholding obligation is eliminated regarding legal entities and individuals with business activities who subcontract personnel for the provision of outsourcing services.

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