Reflection on its obligatory nature and convenience
Abstract: When this figure of review of the contributions paid by the affiliated employers was born, a very interesting package of benefits was offered to those who voluntarily or obligatorily accepted to make a voluntary or obligatory assessment. With the passage of time, the benefits have been reduced, and although complementary benefits are eventually issued, there has been no return to such packages. Today there are still some advantages, which for particular cases of businesses in sensitive situations before the IMSS can be found in the opinion by turning it into an element of analysis and prevention, if not even a strategy for a defense of positions.
Before the beginning of this administration, the institute operated with a risk model that had significant areas of opportunity. I) The performance of auditing and collection activities without proper planning1
Development
It appears that the Institute has received many more affiliated employees each month than those who leave. This represents a larger number of beneficiaries every day, with the consequent cost of care. This only refers to medical care, hospital care and subsidies, because there are also other problems, such as those related to the cost of pensions for all the employees who have reached the requirements to request their "retirement". Then, what happens with the resources that must be obtained. The cost for the employers is very high in relation to the salaries they pay. In fact, there are many employers who, precisely because they do not have the additional resources that this entails, do not expand their base of hired employees and others, it must be admitted, although they affiliate workers, do not register them with the real data of their hiring, falsifying the dates of entry, the amounts and ways of paying the considerations, and other data, which directly affect the calculation of the quotas.
However, all employers may be subject to revisions in different modalities, which normally involve the determination of differences by the authority, and in addition to the determined quotas, are added with updates (amount of inflation in the omitted quota) and surcharges (financial cost of late payment), and finally, a fine, for having incurred in any infraction or offense, in accordance with the laws of the matter.
There aretwo types of opinions on compliance with obligations 2:
- Employers obligated by the number of employees they had during the year
- Employers who choose to carry out the opinion, without being obligated to do so.
- Patterns induced by a home visit3 or an invitation for an opinion by the Institute.
Compulsory patterns
The average number of employees required to file a report is 300 or more for each month of the fiscal year (this is an average, adding all the employees in the 12 months, dividing by 12). In all cases, the totality of the employer's records must be reported.
Who carries out the opinion
The opinion must be performed by a Certified Public Accountant, authorized and registered with the Institute. These accountants, once registered, must comply annually with certain requirements to maintain their registration.
Notice period for voluntary opinion
Currently, Article 75 of the Regulation on Affiliation, Collection and Auditing provides the option for the employer who is not obligated to file a tax return having a home visit order or inspection request, may also file a notice that he/she chooses to file a tax return, and this notice is not subject to dates as in the case of the two previous cases.
When a voluntary opinion is appropriate
When the employer wishes to know whether its payroll and quota determination processes comply with the necessary control requirements to avoid omissions, errors or the commission of tax offenses. Likewise, when you want to check if the criteria for the qualification of the payment concepts are correctly classified according to law, as to whether or not they form the basis for the calculation of social security contributions. Finally, when a company is in the process of review by the authority and wishes to know its true strength or position, before the determination of differences that the authority may qualify, or has already qualified, there is no better position than to have the opinion prepared 100% of the calculations and above all, the verification of the bases, concepts, and supporting documentation of each item to be accepted or rejected by the client before the authority.
Deadline for notification of mandatory reports
In the case of Employers obliged to file a tax return, the term to file the tax return notice is the first four months of the fiscal year.
Timing of payment of differences
In the event that the auditor determines differences, these must be paid before the tax return is filed with its accessories (art. 126 of the Regulations), or the request for payment in installments, as indicated later in this note, must be attached.
Advantages
No visits
Among the advantages is the one indicated in art. 16 of the IMSS Law and 173 of the RMARF, which indicates that they will not be subject to home visits for the fiscal year(s) audited, that is to say, that the authority will not enter into the review if the notice of opinion has been accepted for the fiscal year to be reviewed. This advantage is effective when the opinion is not of "Abstention of opinion" or "negative opinion", or with "qualifications that in the opinion of the auditor, fall on essential elements of the opinion", or that derived from the internal review of the opinion, differences are determined and these were not clarified and, if applicable, paid.
Payments in up to 12 installments with guarantee
Another advantage is the one indicated in article 149 of the same regulation, which states that it will be possible to pay the assessments determined in the opinion as well as their accessories, in up to twelve monthly installments, if in the request, the written guarantee of the tax interest is attached. This request will be resolved within 45 days thereafter, and once it is favorably resolved, there will be 10 days to document the guarantee. If such request deals with contested credits, it is important that the Employer withdraws its means of defense (Art. 142 of the Regulations) and attaches a copy of the resolution to its dismissal letter. Unfortunately, according to the Regulations, this authorization is not applicable under any circumstances to credits derived from Retirement, Unemployment at an Advanced Age and Old Age Insurance; constitutive capitals, documented surcharges, home visits and in general, resolutions derived from any means of defense exercised by the employer.
Non-issuance of variance statements
An additional advantage is that you will not be issued a "confronta y glosa" (comparison and glossing), which compares workers, bases, days contributed and determines differences by month and two-month period, provided that the tax return has already been completed and filed, the correction notices have been filed and the difference fees have been paid.
Non-imposition of fines
Finally, among the advantages for audited companies is the one indicated in Article 304-C of the IMSS Law, which states that fines will not be imposed when payments are made spontaneously and the payment of differences derived from the audit report, paid within the first 15 days after the presentation of the same, is elevated to the figure of spontaneous payment. This figure does not apply to those who were reviewed by the Institute and subsequently ruled.
Why get a Kreston CSM opinion
We start from an evaluation board of the base salary concepts, as well as other criteria applied by the company, its documents and other elements to give our opinion about the way in which its fees have been calculated, and the determination of possible differences, but, before starting the work, so that there are no surprises and the client knows what he will receive in exchange for our service. Our report will help you to evaluate your legal options against the conclusions of the authorities, when these are adverse to the company.
Even in the case of having initiated the filing of means of defense, it is important to know the elements that the auditors will find, since there are several instances of defense, which may begin, extrajudicially, with negotiation, and from there, go through the appeal and even the contentious-administrative trial.
At Kreston CSM we are at your service to meet your Social Security Contribution Assessment needs.
[1] Art. 16 LIMSS states the obligation to report to obligated employers.
[2] Art. 159 Regulation of Affiliation, Classification of Companies, Collection and Auditing (RACERF).
[3] LIMSS section XXVIII and art. 159 of the RACERF.
[4] Document Ingresos y Aseguramiento en el IMSS, Instituto Mexicano del Seguro Social, http://www.imss.gob.mx/sites/all/statics/pdf/informes/20142015/06-Cap02.pdf
Author: Enrique Pastor E. Partner Kreston CSM epastor@kcsm.mx
