Federal Labor Law
Prohibition of subcontracting
The subcontracting of personnel that consists of a natural or legal person providing or making available their own workers for the benefit of another is prohibited.
Notwithstanding the foregoing, the subcontracting of:
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Specialized services
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Execution of specialized works, or,
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Complementary or shared services or works provided between companies of the same business group, as long as said services are not part of the corporate purpose or the preponderant economic activity of the company that receives them.
For these purposes, a business group is defined as the group of legal entities organized under schemes of direct or indirect participation of the social capital, in which the same company maintains control of said legal entities.
Requirements to formalize the subcontracting
The subcontracting must:
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1) Be formalized by means of a written contract indicating the purpose of the services to be provided or the works to be carried out and,
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2) indicate the approximate number of workers who will participate. moral people.
Registration to provide subcontracted services
Individuals or legal entities that provide subcontracting services must have a registration that must be renewed every three years and prove to the Ministry of Labor and Social Welfare (“STPS”) that they are up to date with their tax and social security obligations. The people who obtain the registration will be registered in a register that must be public and available on an Internet portal.
PTU limitations
The determination of the Employees' Profit Sharing will be subject to the rules currently indicated in article 127 of the LFT, however, its amount 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, whichever is more favorable to the worker.
Joint liability
The physical or moral person that subcontracts the provision of specialized services or the execution of specialized works with a contractor that fails to comply with the obligations derived from the relations with its workers, will be jointly and severally liable in relation to the workers used for said contracts.
Fines for those who subcontract personnel
Those people who subcontract personnel, as well as natural or legal persons who provide subcontracting services without having the aforementioned registration, will be fined from 2,000 to 50,000 times the Measurement and Update Unit (UMA), without prejudice of the other responsibilities that may arise in accordance with the applicable legislation. Likewise, the employer who does not allow the inspection and surveillance that the labor authorities order will be subject to a fine of 250 to 5,000 times the UMA.
IMSS Law
Definitions
The definition of contracting specialized services or the execution of specialized works will be that stipulated in the LFT.
joint liability
The physical or legal person who hires the provision of services or execution of specialized works will be jointly and severally responsible with those contractors who fail to comply with their obligations in terms of social security, among which are the registration of workers in the IMSS, payment of quotas worker - employers, withholdings, reports, among others.
Contractor obligations
Those contractors that provide specialized services must provide the competent authorities with information on each contract entered into on a quarterly basis, with respect to:
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The parties to the contract, including information on the contracting party.
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Object and period of validity of the contract.
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List of workers or other subjects of insurance that will be made available to the contracting party and their personal data, as well as the RFC of the beneficiary of the services.
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Simple copy of the registration issued by the STPS for the provision of services or execution of works.
The amount of the sanction for not presenting the aforementioned information, or for presenting it outside the established legal term, will be from 500 to 2000 times the value of the UMA.
INFONAVIT Law
Joint Liability
In the event of employer substitution, the substituted employer will be jointly and severally liable with the new one with respect to the obligations derived from this Law, born before the date of the substitution, up to a term of three months, concluded which all the responsibilities will be attributable to the new employer.
There will also be joint and several liability of the physical or moral person who hires the provision of services or execution of specialized works with contractors who fail to comply with their obligations under the INFONAVIT Law.
Contractor obligations
Individuals or legal entities registered to carry out the provision of specialized services or the execution of specialized works that are not part of the corporate purpose or the economic activity of the beneficiary thereof, must provide the following information on the contracts every four months celebrated:
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General data
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Service contracts
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The amounts of contributions and amortizations
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Worker Information
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Determination of the contribution base salary
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Simple copy of the registration issued by the STPS.
Income Tax Law-ISR
Requirements to deduct expenses
It will be a requirement to deduct expenses for specialized services or the execution of specialized works, that the contractor obtain from the contractor a copy of the corresponding registration before the STPS, as well as obtain from the contractor a copy of the tax receipts for payment of salaries, bank receipt of the full payment of ISR withholdings, as well as the payment of quotas to the IMSS and contributions to INFONAVIT.
The contractor will be obliged to deliver to the contracting party the aforementioned vouchers and information.
Non-deductibility of subcontracting expenses
Payments made in relation to subcontracting services are not deductible or in those cases where the workers that the contractor makes available to the contracting party, originally have been workers of the latter and have been transferred to the contractor through any legal figure, or when the workers made available by the contractor cover the main activities of the contractor.
VAT law
Elimination of personnel subcontracting figure
The 16% VAT withholding derived from personnel subcontracting services will not be applicable. VAT accreditation in personnel subcontracting.
The VAT paid for outsourcing services cannot be credited or when it corresponds to non-deductible services for ISR purposes.
The VAT paid for outsourcing services cannot be credited or when it corresponds to non-deductible services for ISR purposes.
Requirements for the VAT accreditation
In addition to the requirement that the VAT has been expressly transferred to the taxpayer and that it is recorded separately in the tax receipts, in order for the VAT transferred by contractors of specialized services or specialized works to be creditable, the following must be obtained:
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Verify that the contractor is registered in the STPS register.
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The VAT declaration and the acknowledgment of receipt of the payment corresponding to the period in which the contracting party made the payment of the consideration and the VAT that was transferred.
In the event that the contracting party does not collect from the contractor the documentation to which he is obliged no later than the last day of the month following the one in which the consideration for the services received has been paid, he must present a complementary declaration in which the amounts that he would have credited decrease for that concept.
Federation fiscal Code
Joint Liability
The legal entities or natural persons who receive specialized services or hire specialized works are jointly and severally responsible for the contributions that would have been caused by the workers with whom the service is provided.
Aggravating factor in the commission of tax offenses
It is considered an aggravating circumstance in the commission of tax offenses the deduction or accreditation, in violation of the provisions of the Income Tax Law and the VAT Law in relation to subcontracting services or in those cases where the workers that the contractor makes available to the contracting party, have originally been workers of the latter and have been transferred to the contractor, or when the workers made available by the contractor cover all of the main activities of the contracting party.
Fines for non-compliance
It is considered that an infraction is committed when the contractor does not comply with the obligation to deliver to a contractor the information and documentation required in the ISR and VAT laws, in which case the fine will be from $150,000 MNX to $300,000 MNX for each obligation to deliver unfulfilled information.
Crime of qualified tax fraud
It is considered a crime of qualified tax fraud to use simulated schemes for the provision of specialized services or the execution of specialized works, or subcontracting personnel.
Matters to consider
Given the complexity of the issues that are modified, it is necessary to carry out various modifications to the corporate structures, evaluate the classification of the services received by the different providers, as well as the services provided by the taxpayer in order to have the Documentation that allows the authorities to demonstrate adequate compliance with tax, labor and social security obligations.
Although the modifications are at the Federal level, it will also be necessary to take into account the effects that it will have at the state and municipal level due to the payroll tax that will be caused at the level of the new employer that has hired the workers.
Comply in a timely manner with the obligations derived from the Labor Subcontracting Reform and avoid Joint Liability, fines and Sanctions.
Schedule a meeting with the experts.
Although the modifications are at the Federal level, it will also be necessary to take into account the effects that it will have at the state and municipal level due to the payroll tax that will be caused at the level of the new employer that has hired the workers.
Comply in a timely manner with the obligations derived from the Labor Subcontracting Reform and avoid Joint Liability, fines and Sanctions.
Schedule a meeting with the experts.