IMSS determines that the payment of the surplus from profit sharing and the payments made in different periods do form part of the base salary for contributions

Executive Summary

• On July 7, 2023, the IMSS published Resolution ACDO.AS2.HCT.260623/160.P.DIR, which contains Criterion number 02/2023/NV/SBC-LSS-27-IV.
• The Resolution determines that payments classified as profit sharing (PTU) made in terms other than those established by Law are part of the base salary for contributions.
• The Resolution entered into force the day after its publication.

On July 7, 2023, Agreement ACDO.AS2.HCT.260623/160.P.DIR, issued by the H. Technical Council of the Mexican Social Security Institute ("IMSS") in a regular session on June 26, 2023, was published in the Official Gazette of the Federation ("DOF"), by which Criterion number 02/2023/NV/SBC-LSS-27-IV is approved, which determines that payments qualified as profit-sharing (PTU) that are not made in accordance with the Law are part of the base salary for contribution, because they lose the nature of PTU and, therefore, are not excluded pursuant to article 27 of the Social Security Law.

In this regard, employers must: 

1. Integrate the amounts paid for PTU that exceed the legal limit of 3 months of salary or the average over the last 3 years, in terms of article 127, section VIII of the Federal Labor Law.
2.  Integrate into the base salary contributions the payments made for productivity bonuses or advances of PTU that could imply the payment of PTU outside the legal deadlines.

For the above reasons, it is considered that the following are carrying out an improper tax practice:

1. Anyone who excludes from the base salary contributions payments that exceed the maximum amount of PTU.
2. Anyone who pays PTU outside the period established in article 122 of the Federal Labor Law (before or after).
3. Anyone who excludes from the base salary contributions payments made for productivity bonuses or any other type.
4. Anyone who advises, counsels, provides services or participates in the implementation or execution of the aforementioned practices.
5. Any certified public accountant who issues a “clean and unqualified” compliance opinion in the social security report of employers who engage in any of the aforementioned conduct.

This Agreement, which enters into force on the day following its publication, can be consulted directly at the following link:  https://www.dof.gob.mx/nota_detalle.php?codigo=5694775&fecha=07/07/2023#gsc.tab=0