Dear clients & friends,
On April 23, 2021, a Decree which amends certain provisions of the Federal Labor Law, the Federal Tax Code, the Income Tax Law, the Value Added Tax Law, the Social Security Law, the National Employees’ Housing Fund Institute Law and the Federal Law of the Employees of the State, which regulates Section B) of Article 123 of the Mexican Constitution, was published in the Official Gazette of the Federation. The Decree amends the outsourcing regime in Mexico.
In this regard, please find below a summary of the main amendments derived from the abovementioned Decree regarding the tax and labor regime applicable to outsourcing in Mexico. outsourcing en México.
1.Federal labor law
I.1. Outsourcing of personnel
In principle, the outsourcing of personnel is forbidden. In this sense, it is considered as outsourcing of personnel when an individual or a legal entity provides or makes available self-employed individuals for the benefit of another individual or legal entity.
I.2. Specialization
Notwithstanding the above, the figure of outsourcing is allowed only for specialized services, considering as such those which are not part of the corporate purpose or principal activity of the company.
The above, is also applicable to the activities rendered between companies of the same business group.
The subcontracting of specialized services or the execution of specialized works shall be formalized by means of a written contract stating the object of the services to be provided or the works to be executed, as well as the approximate number of workers that will participate in the performance of such contract (Articles 12, 13, and 14, Federal Labor Law).
I.3. Registry in the Ministry of Labor and Social Welfare
Individuals or legal entities that provide outsourcing services must be registered before the Ministry of Labor and Social Welfare.
In order to obtain the above registration, they must prove that they are up to date with their tax and social security obligations. This registry must be renewed every three years (Article 15, Federal Labor Law).
I.4. Employee’s profit sharing
In Mexico, employers are obligated to share their profits with their employees in an yearly basis.
In this regard, the amendment to the Federal Labor Law provides that an employee’s profit sharing shall be limited to the greater of the following amounts: (i) three months of the employee’s salary, or (ii) the average of the amounts received by the employee as profit sharing during the last three years (Article 127, Federal Labor Law).
I.5. Penalties
In the event that an individual or a company that provides outsourcing services is not enrolled in the Registry abovementioned, then the latter will be subject to a fine.
The fine is also applicable to the individual or company benefiting from the servicesnprovided (Article 1004-C, Federal Labor Law).
II. Federal Tax Code
II.1. Deduction and tax effects
Payments made to carry out activities related to the corporate purpose or principal activity of a company through outsourcing will not be deductible or creditable for tax purposes.
Only the subcontracting of specialized services or the execution of specialized works could be deductible or creditable, if the outsourcing company rendering these services is enrolled in the Registry described in Article 15 of the Federal Labor Law (Article 15-D, Federal Tax Code).
II.2. Joint and several liability
Any legal entities or individuals receiving outsourcing services shall be jointly liable for any contributions or taxes that must be paid by the outsourcing services provider as a result of the labor relationship among the latter and its employees through which the specialized services are provided (Article 26, Federal Tax Code).
II.3. Penalties Penalties
The use of simulated schemes related to outsourcing services will be deemed as tax fraud, which, in turn, constitutes a criminal offense in Mexico (Article 108, Federal Tax Code).
III. Income Tax Law
III.1. Deduction of outsourcing services outsourcing
In order for the subcontracted specialized services to be deductible, the contracting party must verify that the entity or individual that will provide these services is enrolled in the Registry described in Article 15 of the Federal Labor Law.
In order for the subcontracted specialized services to be deductible, the contracting party must verify that the entity or individual that will provide these services is enrolled in the Registry described in Article 15 of the Federal Labor Law.
The subcontracted company is obliged to provide the information and documentation described in the previous paragraph.
Payments made to carry out activities related to the corporate purpose or principal activity of a company through outsourcing will not be deductible for income tax purposes as aforementioned (Articles 27 and 28, Income Tax Law).
IV. Value Added Tax Law
IV.1. Credit of value added tax
The value added tax (“VAT”) paid to carry out activities related to the corporate purpose or principal activity of a company through outsourcing will not be creditable for value added tax purposes.
In order for the VAT to be creditable, the contracting party must verify that the entity or individual providing the services is enrolled in the Registry described in Article 15 of the Federal Labor Law.
In addition, the contracting party must obtain from the outsourcing company a copy of the VAT return and of the tax payments made during the period under which the outsourcing company rendered the services (Articles 4 and 5, Value Added Tax Law).
V. Social Security Law
IV.1. Credit of value added tax
The value added tax (“VAT”) paid to carry out activities related to the corporate purpose or principal activity of a company through outsourcing will not be creditable for value added tax purposes. In order for the VAT to be creditable, the contracting party must verify that the entity or individual providing the services is enrolled in the Registry described in Article 15 of the Federal Labor Law. In addition, the contracting party must obtain from the outsourcing company a copy of the VAT return and of the tax payments made during the period under which the outsourcing company rendered the services (Articles 4 and 5, Value Added Tax Law).
VI. National Employees’ Housing Fund Institute Law
VI.1. Joint and several liability
In case of employer’s substitution, the previous employer shall be jointly liable with the new employer for a period of 3 months. Once the period of 3 months is due, all liabilities shall pass to the new employer.
VI.2. Transparency in contracts
The individuals or legal entities that outsource services under the regime for specialized services (services that are not part of the company’s corporate purpose) must provide their contracts in a fourth period basis to the National Employees’ Housing Fund Institute (INFONAVIT).
VII. Federal Law of the Employees of the State, which regulates Section B) of Article 123 of the Mexican Constitution
The subcontracting of personnel is forbidden for the workers of the state as well. In this regard, only the subcontracting of specialized services or the execution of specialized works will be permitted.
The contractor must be registered before the Ministry of Labor and Social Welfare.
Sincerely,
Kavanagh Gorozpe
This is a preliminary analysis for informational purposes only and it is not a legal opinion. The opinions and considerations set forth herein may vary from the opinion or criteria of any governmental authority, court, and/or third party..
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4In general terms, the Federal Law of Workers in the Service of the State mentions, among others, the workers of the Powers of the Union, the Government of Mexico City, the National Housing Institute, the National Lottery, the National Banking Commission and the National Securities Commission.