Executive Summary:
- On March 22, 2024, the agreement issued by the H. Technical Council of the Mexican Social Security Institute approving criterion 01/2024/NV/SBC-LSS-27-I was published in the Official Gazette of the Federation, which is related to the correct integration of the base salary for contributions in accordance with the Social Security Law (LSS), specifically in relation to benefits derived from teleworking in accordance with the Federal Labor Law (LFT).
- Under this criterion, those who advise, counsel, provide services or participate in the implementation of practices such as providing employees with cash amounts, via payroll or by any other means, pretending that it is beneficial with respect to teleworking, are considered to be carrying out an improper tax practice.
On March 22, 2024, the agreement issued by the H. Technical Council of the Mexican Social Security Institute in an ordinary session held on February 27, 2024, was published in the Official Gazette of the Federation, by which criterion 01/2024/NV/SBC-LSS-27-I was approved, which is related to the correct integration of the base contribution salary in accordance with the Social Security Law (LSS), specifically in relation to benefits derived from teleworking in accordance with the Federal Labor Law (LFT).
Article 27 of the LSS establishes that work instruments such as tools, clothing and similar items, given their nature, are excluded from the integration of the contribution base salary (SBC).
The criteria adopted by the IMSS establishes that these concepts are similar to the teleworking benefits mentioned in sections I and III of numeral 330-E of the LFT - providing, installing and maintaining the equipment necessary for teleworking, such as computer equipment, ergonomic chairs, printers, and assuming the costs of telecommunications services and the proportional part of electricity - and, consequently, they should not be part of the integration of the SBC.
However, it is emphasized that these are part of the expenses that the employer has to make when offering the appropriate means for the provision of work, so the relevant information must be stipulated in a contract, indicating the description and amount to be paid for said concepts.
On the other hand, it is highlighted that excluding from the SBC the benefits related to teleworking derived from the employer's obligations will be valid when the employment relationships actually derive from teleworking, since if another form of subordinate work organization is proven, it would be considered a simulation.
Finally, it was established that under this new criterion it will be considered that an improper tax practice is being carried out in the area of social security:
- Anyone who gives workers amounts in cash, via payroll or by any other means, pretending that these are benefits related to teleworking derived from employer obligations consisting of providing, installing and maintaining the equipment necessary for teleworking, as well as assuming the costs corresponding to the payment of telecommunications services and the proportional part of electricity, regardless of the name used in the accounting records, with the purpose of excluding them as part of the SBC and thus avoiding the payment of social security contributions for remuneration paid to workers.
- Anyone who advises, counsels, provides services or participates in the implementation or execution of the practices indicated.
- The certified public accountant who issues a “clean and unqualified” compliance opinion in the social security report of employers who resort to any of the aforementioned conduct.
Link to the publication: https://www.dof.gob.mx/nota_detalle.php?codigo=5721189&fecha=22/03/2024#gsc.tab=0
