Recent criteria published by the Technical Council of the Mexican Social Security Institute, to prevent the avoidance of payment of Employee Participation in Company Profits (PTU), were issued for collection purposes; “they are not correct, but employers, however, are not required to comply with them”, specialists said.
Ricardo Martínez, partner at the D&MAbogados Firm, explained that the IMSS adopted the criteria that those employers that pay profits above the limit, which was approved with the labor reform on subcontracting, or those who give bonuses, must integrate them into the base salary used for the payment of social security dues, which “without a doubt modifies the payment of social security dues and this is not right, given that this measure is completely focused toward collection.”
He pointed out that it would appear that the IMSS did not take into consideration that “the first rule is that the employer must pay 10% of taxable income as PTU; that is its original obligation; and, thus, the IMSS has no reason to consider it as Base Salary, which involves many concepts, but has the payment of the PTU as an exception for the purposes of IMSS dues.”
In past days the IMSS informed that some irregular practices incurred by some employers to avoid paying employee profit sharing as required were detected and, therefore, new criteria were issued.
“The delivery of monetary amounts to workers, under the concept of employee participation in company profits (PTU), has been detected, and they are incorrectly excluded from the salary integration for the purposes of payment of social security dues”, it said.
However, the specialist in labor matters explained that, for many years, union organizations have reached agreements with employers, in their collective bargaining agreement, for an advance on the profit sharing payment, “and now it turns out that doing this is being at fault and that it has to be integrated into the base salary, but that is not possible.”
The IMSS argues that there are payments that are made in installments and in advance that, in any case, should be made on the fiscal year after the PTU is generated, as well as payments that exceed the maximum amount of Employee Profit Sharing defined by law and, therefore, urged employers not to conduct these practices.
At the time, Germán de la Garza de Vecci, a specialist in labor matters said that modifying the integration of the base salary with bonuses, whether productivity bonuses or bonuses for any other concept, should not be applicable, given that they are not always paid, “they are given in cases in which certain objectives are reached, or they are even provided for in some collective bargaining agreements, but this does not mean that they must be a part of the Base Salary for the Payment of Social Security Dues.”
For his part, Martínez Rojas explained that “if the employer pays a bonus instead of PTU, it is questionable; but the Institute’s criterion that refers to extraordinary bonuses is not right. The bonus is an extraordinary occurrence, it should not be considered as part of the salary because it is sporadic, the only ones that should be included are the ones that are permanent, not the sporadic ones.”
