VOLUME 2002
January 30, 2002
Number 2 & 3
Foreign Tax Law
Bi-Weekly Bulletin
SOCIAL SECURITY REFORM
FOREIGN TAX LAW INC
PO BOX 2189
ORMOND BEACH FL
32175-2189
DISCLAIMER: Though every effort has been made to present the
legal texts and information accurately, due to the nature and scope of the material,
we cannot be liable for errors, omissions or other problems in the texts. The
material offered herein is not a substitute for competent legal assistance by
a licensed attorney of the jurisdiction in question.
MEXICO
SOCIAL SECURITY REFORM
A Decree to reform the Social Security Law was published on December 20, 2001.
Highlights of the amendments are given below. Article numbers refer to the Social
Security Law.
Article 5A.
(Added by Law of Dec. 15, 2001) For the purposes of this Law, the following
shall be understood:
I. Law: the Social Security Law;
II. Code: The Fiscal Code of the Federation;
III. Institute: The Mexican Institute of Social Security;
IV. Employers or employer: the individual or legal person who is in that position in terms of the Federal Labor Law;
V. Workers or worker: the individual that the Federal Labor Law defines as such;
VI. Permanent worker: anyone who is in an employment relationship for an indefinite time.
VII. Contingent worker: anyone who is in an employment relationship to complete a limited work or for a limited time in the terms of the Federal Labor Law;
VIII. Obligated subject or subjects: Those stipulated in articles 12, 13, 229, 230, 241 and 250A, of the Law, when they have the obligation to withhold the worker/employer quotas of social security or to make the payment thereof;
IX. Subject or subjects of insurance: those stipulated in articles 12, 13, 241 and 250A of the Law;
X. Jointly liable party or parties: for the purposes of social security contributions are those defined as such by article 26 of the Code and those provided in this Law;
XI. Insured party or parties: the worker or subject of insurance recorded with the Institute, in the terms of the Law;
XII. Beneficiaries: the spouse of the insured or pensioner and in default thereof, the male or female concubine, as the case may be, as well as the ancestors and descendants of the insured or pensioner as stipulated in the Law;
XIII. Eligible party or parties (derechohabientes): the insured, the pensioner and the beneficiaries of both, who in the terms of the Law have an enforceable right to receive the benefits of the Institute;
XIV. Pensioner or pensioners: the insured who by resolution of the Institute has been granted a pension for: total permanent disability; partial permanent disability greater than 50% or, if applicable, partial permanent incapacity between 25 and 50%; invalidity; dismissal in advanced age and old age, as well as the beneficiaries thereof when by resolution of the Institute they have been granted a widow’s pension, orphan’s pension or ancestor’s pension;
XV. Worker/employer quotas or quotas: social security contributions established in the Law payable by the employer, worker and obligated subjects;
XVI. Schedule or schedules of determination: the magnetic, digital, electronic, optical, or magnetic optical media or media of any other nature, or else the printed document, on which the employer or obligated subject determines the amount of the quotas to pay to the Institute, which may be issued and delivered by the Institute itself;
XVII. Assessment schedule or schedules: the magnetic, digital, electronic media or media of any other nature, or else the printed document, by means of which the Institute, in the exercise of its faculties as an autonomous fiscal organization, determines the net amount of fiscal credits due to it as provided in the Law,
XVIII. Salary or salaries: the consideration that the Federal Labor Law defines as such. For the purposes of this Law, the salary base of contribution shall be composed of the cash payments per day, bonuses, receipts, food, premiums, commissions, benefits in kind and any other amount or benefit that is delivered to the worker for his labor, with exception of the concepts provided in article 27 of the Law.
Article 8.
(Amended by Law of Dec. 15, 2001) In order for the eligible parties to receive
or to continue enjoying the benefits that this Law grants, they must comply
with the requirements set forth herein and in its regulations.
For that purpose the Institute shall issue an identification document to all eligible parties to the end of which they may exercise the rights that Law confers upon them, as the case may be.
Article 9.
(Amended by Law of Dec. 15, 2001) The fiscal provisions of this Law that assess
obligations to individuals and those that stipulate exceptions to them, as well
as those that set the infractions and sanctions, are subject to strict enforcement.
It is considered that the rules that refer to subject, object, base of contribution
and rate establish obligations.
In default of the rule expressed in this Law, the provisions of the Federal Labor Law, the Code or of ordinary law, in that order, shall apply supplementally, when their application is not contrary to the proper nature of the system of social security that this Law establishes.
The Institute must be subject to Title Three A of the Federal Law of Administrative Procedure for purposes of the provisions herein, with the exceptions that the cited law indicates, and those corresponding to the steps and procedures directly related to the rendering of preventive, diagnostic and rehabilitative medical services and to hospital treatment and management.
Article 12.
(Amended by Law of Dec. 15, 2001) The following subjects shall be covered under
the compulsory regime:
I. Persons who in accordance with articles 20 and 21 of the Federal Labor Law, render a remunerated subordinate employed service, permanently or contingently, to others, whether individuals or legal entities or economic units without legal personality, regardless of how the employment relationship was established or whatever the legal personality or economic nature of the employer, even if the latter, by virtue of some special Law, is exempt from the payment of contributions.
II. Members of cooperative societies, and
III. Persons determined by the Federal Executive by the respective Decree, under the terms and conditions stipulated by this Law and the corresponding regulations.
Article 15.
(Amended by Law of Dec. 15, 2001) The employers are obligated to:
I. Enroll their employees with the Institute, giving notice within no more than five working days of registrations and cancellations, modifications in wages and all other information, in accordance with the provisions of this Law and its regulations;
II. Keep records, such as payrolls for salaries and wages, in which the number of days worked and the wages received by their workers, as well as other information required by this Law and its regulations, are always entered. It is required that these records be kept for five years from their date of compilation;
III. Determine the worker-employer quotas they are responsible for and pay that amount to the Institute;
IV. Provide to the Institute the necessary information to establish the existence, nature and extent of their obligations stipulated by this Law and the relevant regulations;
V. Allow the domiciliary inspections and visits that the Institute carries out, which shall be subject to the provisions of this Law, of the Code and of the respective regulations;
VI. Regarding employers engaged permanently or sporadically in the business of construction, they must issue and submit to each worker written proof of the number of days worked and the wages received, weekly or fortnightly, in accordance with the established pay periods, which, if applicable, may be exhibited by the workers to accredit their rights.
In addition, they must pay the worker-employer quotas, even if it is not possible to determine the worker or workers to whom they should apply due to noncompliance by the employer to the obligations set forth in the preceding items, in which case the amount shall be applied towards the General Financial and Actuarial Reserve to which article 280, item IV of this Law refers, without prejudice that the corresponding deferred benefits shall be granted to those workers that prove their rights, the deferred benefits that correspond to them shall be granted;
VII. Comply with the obligations that Chapter VI, Title II of this Law imposes, in connection with insurance for retirement, cessation of employment due to advanced age and old age;
VIII. Comply with all other provisions of this Law and its regulations, and
IX. Issue and submit, regarding urban or rural contingent workers, written proof of the days worked, in accordance with the provisions set forth in the respective regulations.
The provisions contained in items I, II, III and VI are not applicable in the cases of construction, improvement or repair of buildings, when the work is carried out personally by the owner or by community cooperation, this fact being duly proven under the terms of the corresponding regulation.
The information to which items I, II, III and IV refer, must be furnished to the Institute in a printed document or on magnetic, digital, electronic, optical, magnetic optical media or media of any other nature, pursuant to the provisions of this Law and its regulations.
Article 15A.
(Added by Law of Dec. 15, 2001) When a labor intermediary participates in the
contracting of workers for an employer, for the purpose of their execution of
labor or rendering service thereto, whatsoever shall be the relationship that
the employer and intermediaries assume, both shall be jointly and severally
liable between themselves and in relation to the worker, in respect of the compliance
of the obligations contained in this Law.
Enterprises established that render services to others, to execute the latter with their own resources sufficient to comply with the obligations that derive from relations with their workers, in the terms of articles 12, 13, 14 and 15 of the Federal Labor Law, shall be considered employers, not intermediaries.
For the purposes of this article, the Federal Government shall in no case be considered as a labor intermediary.
Article 15B.
(Added by Law of Dec. 15, 2001) The persons who are not included in the provision
established in the penultimate paragraph of article 15 of this Law, who carry
out their residential housing improvements, re-modeling, or else, the construction
of their own residential house and those that sporadically carry out improvements
or re-modeling of any kind, may conclude an agreement to pay the worker/employer
quotas that they shall owe in installments from the time they enlist the workers
for which they are obligated thereto, individualizing the worker’s account.
Article 16.
(Amended by Law of Dec. 15, 2001, effective January 2003*) Employers who in
accordance with the regulation, employ an annual average of 300 or more workers
in the immediately preceding fiscal year, are obligated to report the compliance
of their obligations before the Institute through an authorized public accountant,
in the terms that are stipulated in the regulation that the Federal Executive
shall issue for the purpose.
Employers who are not involved in the provision of the preceding paragraph may choose to report their contributions to the Institute through an authorized public accountant, in the terms of the stipulated regulation.
Employers who file a report shall not be subject to a domiciliary visit for the fiscal years reported, unless:
I. The report has been filed with an abstention of opinion, a negative opinion or with reservations on aspects that, in the judgment of the public accountant would affect essential elements of the report, or
II. Chargeable differences are determined derived from the internal review of the report, and they are not clarified and, if applicable, paid.
Article 17.
(Amended by Law of Dec. 15, 2001) Upon giving the notices referred to in item
I of Article 15 of this Law, the employer may express in writing the reasons
on which he bases any exception to or doubt about his obligations, without being
released from payment of the corresponding assessments. The Institute, within
a period of forty-five working days, shall notify the employer about its ruling
and, if appropriate, shall proceed to give release to the employer, the worker
or to both, as well as to make the corresponding reimbursement.
The information that employers furnish for their registration may be analyzed by the Institute for the purpose of verifying the existence of compliance with the provisions and requirements established in this Law. If the Institute determines that the provisions in article 12, item I of this Law are not given, it shall notify the presumed employer, who shall represent his rights within a period of five working days and, if it does not invalidate those situations, the Institute shall proceed to give release to the presumed employer, the presumed worker or both.
In the preceding case, the Institute shall apply the amounts paid to recover its administrative and operational expenses, the rights of the presumed worker to claim, if applicable, the amounts that have been deposited in the individual account opened in his name, in the terms of this Law, remaining intact.
Article 19.
(Amended by Law of Dec. 15, 2001) For the purposes of this Law, cooperative
societies shall pay the quota corresponding to employers, and each one of the
members to which item II of article 12 of this Law shall cover their quotas
as workers.
Article 22.
(Amended by Law of Dec. 15, 2001) The documents, data and reports that the workers,
employers and other persons furnish to the Institute in compliance with the
obligations imposed on them by this Law, shall be strictly confidential and
may not be communicated or released in any nominative and individual form.
The provision of the preceding paragraph shall not be applied:
I. In the case of judgments and proceedings in which the Institute takes part;
II. In the case of conventions of collaboration with the Federation, states or municipalities or their respective public administrations, for the inter-exchange of information related with the fulfillment of their objectives, with restrictions agreed upon in the conventions in which a clause of confidentiality and of no broadcasting of the information inter-exchanged is invariably included;
III. In the case of request by the Secretary of Audit and Administrative Development, the Internal Auditor in the Institute, the federal tax authorities, social security institutions and the Public Federal Minister, in exercise of their duties, and
IV. In the cases provided by law.
The Institute may conclude collaboration conventions with the public or private sectors for the interchange of statistical information related to the fulfillment of their objectives, with the restriction to which the first paragraph of this article refers and those agreed upon in the conventions themselves.
The information derived from retirement, dismissal due to advanced age and old age shall be furnished directly, as the case may be, by the administrators of retirement funds, as well as by the enterprises that process information of the Retirement Savings System. This information shall be subject, in the matter of confidentiality, to the general provisions issued by the National Commission of the Retirement Savings System, in terms of the corresponding law.
Article 27.
(Amended by Law of Dec. 15, 2001) For the purposes of this Law, the following
concepts, given their nature, shall be excluded as components of the wage base
of contribution:
I. The instruments of work such as tools, clothes and other similar items;
II. Savings, when made up of weekly, fortnightly or monthly deposits of equal amounts by the worker and the company; if the savings are constituted in a different manner or if the worker can make withdrawals more than twice a year, it shall be considered as part of wage earnings; neither shall the amounts given by the employer towards labor union social purposes be taken into account;
III. The additional contributions that the employer agrees to grant to his workers as assessments for the insurance for retirement, cessation of employment due to advanced age and old age;
IV. The quotas to be covered by the employer in the terms of this Law, the contributions to the Institute of the National Housing for Workers Fund and the payments for profit sharing with the company;
V. Room and board when not provided free of charge to the workers; these benefits are understood as not free of charge when each one of them represents, as a minimum, twenty percent of the general daily minimum wage effective in the Federal District;
VI. Food provisions or cash for their purchase, provided the amount does not surpass forty percent of the general daily minimum wage effective in the Federal District;
VII. The bonuses for attendance and punctuality, provided the amount of each one of these concepts does not surpass ten percent of the wage base of contribution;
VIII. The amounts contributed toward social purposes, considering as such those given to constitute funds for some pension plan established by the employer or derived from a collective contract. The pension plans shall be only those that meet the requirements established by the National Commission of the System of Savings for Retirement, and
IX. Overtime within the limits stipulated in the Federal Labor Law.
In order for the concepts mentioned in this precept to be excluded as components of the wage base of contribution, they must be duly entered in the accounting books of the employer.
In the concepts provided in items VI, VII and IX when the amount of these benefits exceed the percentage established, only those exceeding the wage base of contribution shall be included.
Article 28A.
(Added by Law of Dec. 15, 2001) The contribution base for the obligated subjects
stipulated in item II of article 12 of this Law, shall be the total of receipts
received for the contribution of their personal labor, applying the provisions
established in articles 28, 29, 30, 32, so far as applicable, and other applicable
provisions of this Law.
Article 30.
(Amended by Law of Dec. 15, 2001) In order to determine the daily wage base
of contribution, the following shall hold:
I. When the worker regularly receives periodic compensation in an amount previously known in addition to the fixed wage components, these shall be added to the mentioned fixed components;
II. If, because of the nature of the work, the wage is composed of variable components that cannot be previously known, they shall be added to the total income received during the immediately preceding two months and the total shall be divided by the number of days of wages earned in that period. In the case of a newly enrolled worker, the probable wage that corresponds to such period shall be used, and
III. In the cases in which the wage of the worker is composed of fixed and variable components, it shall be considered mixed, for which, for the purposes of the contribution, the average of the variable components obtained under the terms set forth in the preceding fraction shall be added to the fixed components.
Article 31.
(Amended by Law of Dec. 15, 2001) When because of absences of the worker from
his job wages are not paid, but the employment relationship continues, the monthly
contribution shall be subject to the following rules:
I. If the absences of the worker are for periods of less than eight consecutive or nonconsecutive days, only the contribution for the insurance for illness and maternity for such periods shall be paid. In these cases, the employers must file the corresponding explanation, indicating that the assessments are omitted because of absenteeism and that they shall prove lack of payment of the corresponding wages by exhibiting the corresponding payrolls for salaries and wages. To this effect, the number of days of each month shall be determined by subtracting from the total days contained in the assessment period under consideration, the number of absences without payment of wages that correspond to the same period.
If the worker's absences are for periods of eight or more consecutive days, the employer shall be released from the payment of the worker-employer assessments, provided it is lawful under the terms of Article 37;
II. In the cases of fractions II and III of Article 30, the same rules as in the preceding fraction shall be followed;
III. In the case of workers' absences that fall under fraction III of Article 29, whatever the nature of the received wage, the regulation shall determine whatever is lawful in accordance with the criterion founded on the preceding bases, and
IV. Concerning absences justified by medical incapacity for work issued by the Institute, it shall not be mandatory to pay the worker-employer assessments, except in regard to the area of retirement.
Article 34.
(Amended by Law of Dec. 15, 2001) When the insured worker works for only one
employer and the stipulated wage is modified, the following shall hold:
I. In the cases set forth in fraction I of Article 30, the employer shall be obligated to file with the Institute the notice of modification of the daily wage base of contribution within a maximum period of five working days, counted from the day following the date on which the wage was changed;
II. In the cases set forth in fraction II of Article 30, the employers shall be obligated to give notice to the Institute, within the first five working days of the months of January, March, May, July, September and November, of the modifications in the average wage paid in the preceding bi-monthly period, and
III. In the cases set forth in fraction III of Article 30, if the fixed components of the wage are modified, the employer must give notice of the modification within five working days following the date on which the wage changed. If at the end of the respective bi-monthly period there was a modification of the variable components that compose the wage, the employer shall give notice of the modification to the Institute in the terms of item II above.
The daily wage shall be determined by dividing the total amount of the variable income received during the preceding month by the number of paid days and then adding the figure that results to the fixed components of the daily wage.
In all the cases set forth in this article, if the modification takes place because of a revision of the collective contract, the Institute shall be given notice within thirty calendar days following its conclusion.
Cooperative societies must file the notices of modification of the base collections of contributions of their members, in accordance with the provisions established in this article.
Article 39.
(Amended by Law of Dec. 15, 2001) The worker-employer assessments shall be made
by monthly installment payments, and the employer is obligated to determine
their amounts on the printed formats or using the computer program authorized
by the Institute. Likewise, the employer must file the schedules of determination
of assessments of the month in question with the Institute, and make the respective
payment no later than the seventeenth day of the immediately following month.
The obligation to determine the assessments must be fulfilled even if the corresponding payment is not made within the period stipulated in the preceding paragraph.
The constitutive capital becomes definitive at the moment of its notification and must be paid to the Institute within the terms and periods provided in this Law.
Article 39A.
(Added by Law of Dec. 15, 2001) Without prejudice to the provisions of the first
paragraph of the preceding article, the Institute, in support to the employers,
may deliver a proposal of a determination schedule, drawn up with the data concerning
the movements of affiliated parties communicated to the Institute by the employers
themselves and, if applicable, by their workers in the terms of this Law.
The proposal to which the preceding paragraph refers may be delivered by the Institute on a printed document, or else, following a written request of the employer or his legal representative, on magnetic, digital, electronic media or media of any other nature.
In the case of employers who receive the proposal through magnetic, digital, electronic, optical, magnetic optical media or media of any other nature, and who choose to use it to comply with their fiscal obligation, they must invariably, for purposes of payment, use the computer program previously authorized by the Institute, to which article 39 refers.
When the employers choose to use the proposal on a printed document to fulfill the fiscal obligation charged to them, it shall be sufficient that they file it and make the payment thereof in the office authorized by the Institute, within the period stipulated in article 39 of this Law.
If the employers decide to modify the data contained in the proposals delivered, they must follow the provisions of this Law and its regulations and enter in the printed document or in the file of the payment that the authorized program generated, attaching all the items necessary for the exact determination of the quotas, pursuant to the procedure stipulated in the corresponding regulation.
The fact that the employer does not receive the proposal of the schedule of determination issued by the Institute shall not exempt him from complying with the obligation to determine and pay the quotas, neither shall it free him from the legal consequences derived from non-compliance with the stated obligations.
Article 39B.
(Added by Law of Dec. 15, 2001) The schedules of determination filed with the
Institute by the employer shall have the nature of a binding act.
Article 39C.
(Added by Law of Dec. 15, 2001) If the employer or obligated subject does not
cover the amount of the worker/employer quotas in time or does so incorrectly,
the Institute may determine them presumptively and establish a net amount for
them, based on the accounting data or supported by the facts that are known
for the purpose of verification faculties that it possesses as a fiscal authority
or else through the files or documents furnished by other fiscal authorities.
This determination must consider both the balances due the Institute as well
as those that might be due to the employer due to errors in what the latter
has entered.
In cases in which errors or omissions derived from partial non-compliance in the payment of the quotas are detected upon audit of the schedules of determination paid by the employers, the Institute shall proceed in the same manner.
The schedules of assessment that the Institute draws up must be paid by the employers within the 15 working days following the date of their notification, in the terms of the Code.
In the case in which the employer or obligated subject voluntarily chooses to regularize his fiscal situation, pursuant to the regularization programs that shall be established where applicable, the Institute may furnish him, upon a prior written request, the corresponding issue either in printed form or else through magnetic, digital, electronic, optical, magnetic optical media or media of any other nature.
Article 39D.
(Added by Law of Dec. 15, 2001) In respect to the assessment schedules issued
by the Institute in the case of the second paragraph of the preceding article,
the employer may, within the five working days following the date on which the
notification was made, draw up clarifications before the office that corresponds
to its employer register, which must be duly supported and may only deal with
arithmetic errors, typographical errors, notices of affiliation filed previously
by the employer with the Institute, certificates of incapacity issued thereby
or de facto situations that do not imply a legal controversy.
The administrative clarification shall in no case suspend or interrupt the period established to make the payment up to the recognized sum. The Institute shall allot 20 working days to resolve the administrative clarification that the employer files. If this period passes without the clarification being resolved, the period of working days stipulated in the preceding sentence shall be suspended.
The Institute may accept the duly supported clarifications that the employer files outside of the period stipulated in this article, provided that, in respect to the said schedule, the guarantee granted is not found pending in a current procedure, an appeal of dissent has been filed or any other method of defense, or if such has been filed, dismissal has been mediated.
Article 40.
(Amended by Law of Dec. 15, 2001) Employers shall be notified personally of
assessment schedules issued by the Institute for quotas, constitutive capital,
updating, surcharges or fines, in the terms established in the Code. The Institute
may choose, upon request of the employer, to make the notifications through
magnetic, digital, electronic, optical, magnetic optical media or media of any
other nature in the terms of the Code, in which case, in substitution of the
autographed signature, electronic identification methods shall be employed,
and they shall produce the same effects as the autographically signed notification
and, consequently, shall have the same evidentiary value as the applicable legal
dispositions grant to the latter.
For the purpose of notifications of the assessment schedule by electronic transmission, the employers and obligated subjects must furnish their electronic address to the office that corresponds to their employer register in writing through a legal representative, as well as any modification of their electronic address. Additionally, they must remit an electronic acknowledgment of receipt that will authorize the date and hour of the notification, in default thereof, it shall be understood that the notification was made on the day on which the Institute sent it.
Such notifications shall become effective on the working day following that on which they were made.
Article 40A.
(Added by Law of Dec. 15, 2001) When the assessments or the constitutive capital
are not paid within the period of time stipulated in the corresponding provisions,
the employer shall pay, starting from the date on which the credits come due,
the corresponding adjustment and past-due charges under the terms of the Code,
without prejudice to any lawful sanctions.
Article 40B.
(Added by Law of Dec. 15, 2001) The following methods of payment shall be accepted:
cash money, certified or cashier’s checks, as well as electronic transfers
of funds and credit or debit cards issued by credit institutions, in the terms
of the corresponding regulation. Payment may also be made by means of credit
notes that the Institute issues for the refund of amounts paid without legal
justification, which shall be received only in the offices that the Institute
authorizes.
The employer may apply the credit notes issued by the Institute within the five years following their issue or apply for their monetization on the due date of that period, provided and when he owes no debts to the Institute. In this latter case, he must file the application for monetization, attaching the original credit note, before the corresponding office, in order that the payment thereof might be processed.
Once the stipulated period has elapsed without the employer applying the credit note or applying for its monetization, within the 15 days following the referred period, the amount thereof shall prescribe in favor of the Institute. The credit notes shall not be accepted as methods of payment in the case of credits for quotas or their legal accessories of retirement insurance, dismissal due to advanced age and old age.
Likewise, the Institute may accept upon request of its providers and contractors who have liquid demand accounts for settling their charge, that they apply the corresponding resources against the debts that they might have for worker/employer quotas, in accordance with the dispositions that the Technical Council shall issue for the purpose.
Article 40C.
(Added by Law of Dec. 15, 2001) The Institute, at the request of the employers,
may allow an extension for the payment of the credits derived from the assessments,
adjustments, constitutive, past-due charges and fines. During the allowed extension,
past-due charges shall be assessed on the unpaid adjusted balance under the
terms set forth in the Code.
In no case shall the extension be authorized for the payment of the assessments that the employers have withheld from the workers, in the terms of this Law, which the employers must pay to the Institute within the legal term established.
The procedure of applications to which this article refers shall be carried out in the terms and with the requirements established in the respective regulation.
Article 40D.
(Added by Law of Dec. 15, 2001) In the case of assessments of retirement insurance,
dismissal due to advanced age and old age, which are not paid on time, only
a period for the deferred payment for complete periods owed may be authorized,
without remission of accessory charges.
Deferred payments that the employers make on the basis of an agreement shall be applied to the individual accounts of the workers proportionally to the base contribution wages that serve for the determination of the agreed assessments.
The deferred payment of the assessments of retirement insurance, dismissal due to advanced age and old age, shall also incur the accessory charges to which the preceding article refers, the adjusted assessments and surcharges being deposited in the individual account of the worker.
The Institute must inform the National Commission of the System of Savings for Retirement of all the extensions that involve assessments for the insurance for retirement, cessation of employment due to advanced age and old age. Without prejudice from this, the employers must furnish a copy of the extensions that involve assessments for the insurance for retirement, cessation of employment due to advanced age and old age to the National Commission of the System of Savings for Retirement, as well as to the financial entities that by means of general regulation this Commission determines.
Article 40E.
(Added by Law of Dec. 15, 2001) The Technical Council of the Institute by the
vote of at least three-quarters of its members, may authorize, exceptionally
after application of the employer, the installment payment or deferred payment
of assessments charged to him, that are generated up to the six periods after
the date of his application, when he complies with the following requirements:
I. Not being indebted in the last two fiscal years prior to the date of the application;
II. That differences in the payment of assessments have not been determined and notified within the last two fiscal years, or else that they have been clarified or, as the case may be, paid;
III. To cover at least 10% of the issue of the respective period applied for;
IV. That the period applied for the payment does not exceed 12 months, as from the last period to which the corresponding application refers. The percentage exceeding that stipulated in the preceding item must be paid at the end of the period indicated in the application;
V. To demonstrate to the satisfaction of the Institute the exceptional economic reasons for his not being able to comply with his obligations, and
VI. To guarantee the fiscal interest in terms of the Code.
During the period of extension authorized for the payment, surcharges shall not be collected, only the updating adjustment and financing expenses shall be incurred, in the terms of the Code.
An employer may not benefit from this type of authorization in the year following that in which he has received one of them, as from the last period of the payment period granted.
All the resolutions benefiting the employers that are issued on the basis of the provisions in this article shall be made generally known through the methods by which the Institute uses to broadcast the themes that it considers to be of general interest.
The provisions in this article shall only be applicable to the assessments charged to the employer. The assessments that correspond to retirement insurance, dismissal due to advanced age and old age, as well as those withheld from the workers must be covered in the terms and conditions that this Law establishes.
Article 40F.
(Added by Law of Dec. 15, 2001) In no case may the Institute free the patrons
from the payment of the worker/employer assessments. Neither may it pardon,
partially or totally, the adjustment of the assessments or the corresponding
surcharges.
Article 72.
(Amended by Law of Dec. 15, 2001) For the purposes of determining the premiums
to be paid for insurance for occupational risks, the companies must calculate
their premiums by multiplying the index of losses in the company by a premium
factor, and adding 0.005 to the product. The resulting figure shall be the premium
to be applied to the wages of contribution, according to the following formula:
Premium = [(S/365)+V * (I + D)] * (F/N) + M
Where:
V = 28 years, which is the average duration of an individual's productive life who has not been a victim of a fatal accident or suffered a total permanent incapacity.
F = 2.3, which is the premium factor.
N = Average number of workers exposed to the risk.
S = Total number of subsidized days because of temporary incapacity.
I = The sum of the percentages of partial or total permanent incapacities, divided by 100.
D = Number of deaths.
M = 0.005, which is the minimum risk premium.
Upon enrollment for the first time with the Institute or upon a change of business operation, the companies shall pay the average premium within the class that corresponds to them according to the regulation. Once the premium for the company to pay has been assessed, subsequent increases or decreases to this shall be made in accordance with the first paragraph of this article.
Worker accidents that occur on the way to or from the workplace shall not be taken into consideration for the determination of the index of losses in the company.
Employers whose workplaces are under an administrative and security system in the work authorized by the Secretary of Labor and Social Welfare, shall apply a premium factor (F) of 2.2.
Enterprises with less than 10 workers may choose to file the corresponding annual declaration or pay the average premium that corresponds to them pursuant to the regulation, in accordance with article 73 of this Law.
(Editor’s Note: The Nineteenth Transitory Article of the Law of Dec. 15, 2001 provides the following:
“For the purposes of the first paragraph of article 72 of the Law, enterprises must calculate their premiums of the Insurance for Labor Risks corresponding to the fiscal years of 2002 and 2003, by multiplying the losses of the enterprise by a premium factor in accordance with the formula indicated in that article and adding the following to the product: for fiscal year 2002, 0.0031, for fiscal year 2003, 0.0038; and for fiscal year 2004, 0.0044.
In the same manner those enterprises shall apply the premium factor called F in the formula stipulated in the following terms for the cited fiscal years. For fiscal year 2002, F=2.7 and for fiscal year 2003, F=2.5 and as from fiscal year 2004, F=2.3, as indicated in that article.
The Minister of Labor and Social Welfare must carry out all the procedures of registration and authorization that the Federal Law of Administrative Procedure demands in respect to the accreditation of systems of administration and safety in the work to which the penultimate paragraph of article 72 of this Law refers, in a period no greater than 60 working days from December 16, 2001.”)
Article 74.
(Amended by Law of Dec. 15, 2001) The companies shall have the obligation of
reviewing their index of losses annually, in accordance with the period and
within the period of time that the regulation stipulates, in order to determine
whether they should remain under the same or a higher or lower premium.
The premium, in accordance with which the companies are paying their assessments, may be modified, by decreasing or increasing it by a proportion no greater than 1% with respect to that of the immediately preceding year, taking into consideration the occupational risks terminated during the period of time set forth by the respective regulation, regardless of the date on which they occurred, and the documental evidence of the establishment of programs or actions to prevent occupational accidents and illness. These modifications may not exceed the limits set for the minimum and the maximum premium, which shall be 0.5% and fifteen percent of the wages base of contribution, respectively.
The index of losses shall be set in accordance with the regulation on this subject.
Article 88.
(Amended by Law of Dec. 15, 2001) The employer is liable for damages and losses
that may occur to the insured worker, to his family beneficiaries or to the
Institute when, because of noncompliance with the obligation to enroll him or
to give notice of the effective wages or their modification, the benefits in
cash and kind of the insurance for illness and maternity could not be granted,
or when the subsidy to which they are entitled is decreased in its amount.
The Institute shall stand in for the rights of eligible parties and shall grant the benefits mentioned in the preceding paragraph. In this case, the employer shall pay to the Institute the amount of the essential capital. Such amount shall be deductible from the amount of worker-employer assessments omitted until that date and that correspond to the insurance for illness and maternity of the corresponding worker.
The determination of the essential capital shall not proceed when the Institute grants the eligible parties benefits in cash or in kind to which they have a right, provided and when the notices of hiring or dismissal of the insured workers and those concerning wage modifications have been delivered to the Institute within the periods stipulated in articles 15, item I and 34 of this Law.
Article 89.
(Amended by Law of Dec. 15, 2001) The Institute shall render the services for
which it is commended in any of the following ways:
I. Directly, through its own personnel and facilities;
II. Indirectly, by virtue of agreements with other public or private entities, in order for them to become the service providers in the area of illness and maternity and to furnish benefits in kind and the subsidies in the area of occupational risks, always under the oversight and responsibility of the Institute. The agreements shall indicate the period of time of their effectiveness, the scope of the subrogated service, the payments that must be made, the forms of payments and the reasons and procedures for termination, as well as all other pertinent conditions; and
III. In addition, it may enter into agreements with those who are providers of medical and hospital services, with the possibility of agreeing, in the case of employers under obligation to provide insurance, to reimburse a portion of the worker-employer assessment in proportion to the nature and quantity of the corresponding services. In these agreements, when applicable, the payment of subsidies through a system of refunds shall be stipulated. These agreements may not be entered into without the prior consent of the workers or of their representative organization.
IV. By means of conventions of cooperation and collaboration with health institutions and organizations of the federal, state and municipal public sectors, in terms that permit the optimum utilization of the installed capacity of all the institutions and organizations. In the same manner, the Institute may give service in its installations to the people attended by those institutions and organizations, in accordance with their availability and without prejudice to their financial capacity.
In any event, the persons, companies or entities referred to in this article, shall be obligated to provide to the Institute the reports and medical or administrative statistics that it requires of them, and to subject themselves to the instructions, technical standards, inspections and oversight prescribed by the Institute, under the terms of the regulations that are issued with respect to medical services.
Article 109.
(Amended by Law of Dec. 15, 2001) The insured worker who loses a paying job,
but who has covered at least eight weekly consecutive contributions immediately
before such loss, shall keep during the eight weeks following his dismissal
the right to receive only the medical, maternal, surgical, pharmaceutical and
hospital care that is necessary. His beneficiaries shall enjoy the same right.
The Federal Executive may request the Technical Council to extend the period during which the rights to which the preceding paragraph refer may be kept, when in his judgment the economic and labor conditions of the country so require it, and shall determine the specific conditions in which the conservation of the corresponding rights shall operate for the purpose, as well as the requirements necessary for granting it and the period of extension that shall be determined in each case. In this case the Federal Government shall provide opportune and sufficient resources necessary to the Institute for financing the additional costs that such measure represents. The Institute must keep accounting records for this purpose separate from its ordinary operations.
For said purposes, the resources that the Federal Government determines must be expressly considered in the corresponding Budget of State Expenses of the Federation.
Workers on strike shall receive medical benefits while the strike persists.
SEVENTH SECTION. RECORD OF HEALTH ACTIVITIES
FOR ELIGIBLE PARTIES
(Added by Law of Dec. 15, 2001)
Article 111A.
(Added by Law of Dec. 15, 2001) In order to carry out the registrations, annotations
and certifications relative to the health care of eligible parties, the Institute
may utilize written, electronic, magnetic, optical or magnetic optical means
to make up a single electronic clinical file for each eligible party, in the
medical units or in any other installation that the Institute shall determine.
The electronic clinical file shall be composed of the history of the care that the eligible party has received, the services rendered from outside consultation, urgent care, hospitalization, auxiliary diagnostics and treatment.
The certification that the Institute issues in terms of the applicable dispositions through the competent administrative unit, based on the information that is reported in the electronic file to which this article refers, shall have full legal effects for civil, administrative and judicial purposes.
A confidential and non-transferable personal identification code shall be assigned to the personnel authorized to manage the information contained in the electronic clinical file, which combined with the registration number of the worker, shall be recognized as an electronic signature of the records made in the clinical file, that for legal purposes shall have the same validity as an autographed signature.
The data and records shown in the electronic clinical file to which this article refers shall be confidential and the revelation thereof to third parties outside the Institute without express authorization of the authorities of the Institute and of the eligible party or of whoever has the legal faculty to decide for him, or without a legally justifiable cause, shall be penalized in terms of the federal criminal legislation as a revelation of secrets, regardless of the payment of the indemnity that corresponds where applicable.
A record must be left of the consultations that are made of such files, on the file itself of the person who consulted them, the date of the consultation and the justification thereof.
(Editor’s Note: By virtue of the Twenty-Second Transitory Article of Law of Dec. 15, 2001, this article shall enter into force once a new Regulation of Medical Attention is issued or the one in force is amended for the purposes of this Law, for which Official Mexican Standard of the Clinical File NOM. 168-SSA-1998 published in the Diario Oficial of the Federation of September 30, 1999 shall be taken into consideration or that shall be applicable to the theme regulated in this article, as the case may be.)
Article 137.
(Amended by Law of Dec. 15, 2001) If there is no widow, widower, orphans or
male or female concubine who are entitled to a pension, the latter shall be
granted to each one of the ascendants that depended economically on the deceased
insured worker or pensioner for disability, in an amount equivalent to twenty
percent of the pension that the insured worker was enjoying at the moment of
his death, or of the one that would have corresponded to him in the case of
a realized disability condition.
Article 149.
(Amended by Law of Dec. 15, 2001) The employer is liable for the losses and
damages that are caused to the worker or to his family beneficiaries when, for
failure to comply with the obligation of enrolling him or of giving notice of
his actual wage or changes to it, the benefits consigned in this chapter could
not be granted or were diminished in their amount.
The Institute shall stand in for his rights and shall grant the benefits that correspond to him. In this case, the employer is obliged to pay the Institute the corresponding essential capital.
Article 171.
(Amended by Law of Dec. 15, 2001) The insured worker, whose accumulated resources
in his individual account are insufficient to contract a life annuity or a scheduled
retirement that ensures him the enjoyment of a guaranteed pension and the acquisition
of survivors insurance for his beneficiaries, in the percentages of Chapter
V of this Title, shall receive from the Federal Government a complementary contribution
sufficient for the payment of the corresponding pensions, which shall be granted
under the following terms:
I. A widow’s or widower’s pension shall be equal to 90% of that which the deceased pensioner received;
II. A half orphan’s (where the father or mother is deceased) pension shall be equal to 20% of the pensions that the deceased pensioner had received. A full orphan’s pension (where both father and mother are deceased) shall be equal to 30% of the same base.
If at the initiation of the orphan’s pension the orphan had a father or mother and later he or she became deceased, the orphan’s pension shall be increased from 20% to 30% of the stipulated base, as from the date of the death of the parent, and
III. If no beneficiaries exist with a right to a pension pursuant to the provisions of items I and II above, a pension shall be granted to each one of the ascendants who were economically dependent upon the deceased pensioner, in an amount equal to 20% of the pension that the insured had received at the time of death.
In these cases, the administrator of retirement funds shall continue administrating the individual account of the pensioner and shall make withdrawals charged to the accumulated balance for the payment of the guaranteed pension, in the terms that the National Commission of the Retirement Savings System shall determine.
Article 172A.
(Added by Law of Dec. 15, 2001) Upon the death of a pensioner by reason of dismissal
due to advanced age or old age who received a guaranteed pension, the Institute
must contract a life annuity that shall cover the corresponding pension pursuant
to the provisions in items I to III of article 171 of this Law, on behalf of
the beneficiaries with the insurer that they choose.
For the purpose of the preceding, the Institute must inform the administrator of retirement funds that shall be paying the pension, of the death, if applicable, and the following shall be observed:
I. The administrator of retirement funds must deliver the resources that were in the individual account of the deceased pensioner to the Institute, which resources shall be designated for the payment of the essential amount of the life annuity of the beneficiaries;
II. The Federal Government, through the Institute, must contribute any shortages for the payment of the essential amount of the aforementioned life annuity.
Article 173.
(Amended by Law of Dec. 15, 2001) The Institute shall suspend payments of the
guaranteed pension when the pensioner goes back to a job subject to the compulsory
regime.
The pensioner for cessation of employment due to advanced age or old age that enjoys a guaranteed pension may not receive another of same nature.
The pension corresponding to the beneficiaries of the deceased pensioner shall be delivered to them even if they are receiving another pension of any nature.
Article 180.
(Amended by Law of Dec. 15, 2001) The employer must inform the workers, bimonthly,
of the contributions made on their behalf, without prejudice that such information
shall be delivered to the unions or, as the case may be, to any other organization
representative of the insured workers.
Article 183.
(Amended by Law of Dec. 15, 2001) The expenses that the system for the issuing,
collection and control of the contributions to the individual accounts of the
workers generates shall be paid to the Institute by the Retirement Funds Administrators,
for each distribution of resources, under the terms of that which is provided
in the administrative dispositions derived from the Retirement Savings Systems
Law.
Article 201.
(Amended by Law of Dec. 15, 2001) Nursery services cover the risk of not being
able to furnish day care to infant children of a working woman, a working widower
or divorced man or a man who has been granted custody of his children by a court,
by means of granting the benefits established in this Chapter.
This benefit may be extended to insured parties who by a court decision exercise patria potestad and custody of a minor, provided and when their entitlement thereto before the Institute is effective and they cannot furnish the attention and care to the minor.
Nursery service shall be furnished in the morning and evening shifts, so that the child of a worker whose workday is in the evening might have access to any of those shifts.
Article 205.
(Amended by Law of Dec. 15, 2001) The insured parties to which this Section
refers shall have a right to the service from the time the worker is registered
with the Institute, and when they are de-listed from the obligatory system they
shall retain the right to benefits from this insurance for the four months subsequent
to that de-registration.
Article 210.
The institutional social benefits shall be provided by means of programs for:
I. The promotion of good health by disseminating the necessary knowledge through direct courses, health, culture and athletic conferences and campaigns, and by means of mass communication;
II. Hygiene, mother and infant, sanitation and first aid education; prevention of sickness and accidents;
III. Improvement of the quality of life through strategies that insure healthful customs and life styles, that furnish gender equity, develop creativity and individual potentialities and strengthen the family and social cohesion;
IV. Impetus and development of cultural and athletic, recreational and physical culture activities, and in general all those activities that promote a better use of free time;
V. Promotion of the regularization of the marital status;
VI. Courses for technical training and acquisition of work skills in order to attain the participation of the people in the labor market, improve achievement of the level of income of those who are capable and to contribute to the satisfaction of the necessities of the productive plant. Such courses may be susceptible to official validation;
VII. Vacation centers;
VIII. Improvement of home life through an adequate use of economic resources, better practices of living together and,
IX. Establishment and administration of funeral homes, as well as other similar services.
Article 210A.
(Added by Law of Dec. 15, 2001) The Institute may offer its athletic, social,
cultural, recreational and vacation installations to the population in general,
whether or not in cooperation with institutions of the public or social sectors,
establishing in all cases recovery of the corresponding costs, to the effect
of generating resources to help finance its operation and maintenance and to
collaborate with society in general in the promotion of that type of activities.
The Congress of the Union and the Federal Executive shall be notified of the
amount and destination of the resources that shall be obtained pursuant to the
provision in this paragraph through the Secretary of Finance and Public Credit.
Entitled parties shall have preferential conditions in the payment of the recovery fees stipulated, in the terms that the Institute shall establish.
Article 216A.
(Added by Law of Dec. 15, 2001) The Institute must attend to the people who
are not entitled parties in the following cases:
I. In situations of national, regional or local emergency or, in case of disasters, natural or otherwise;
II. In the case of vaccination campaigns or campaigns for the attention to or promotion of health, and
III. In aid to programs to combat poverty and marginal poverty, when so required by the Federal Executive.
For the purposes of item I, the Federal Executive, through the Secretary of Finance and Public Credit shall provide the financial resources corresponding to the Institute in accordance with the applicable provisions.
For the situations mentioned in item II, the Secretary of Finance and Public Credit shall provide the financial resources necessary to cover the expenses incurred by the Institute, pursuant to the budget estimates and in the terms of the provisions that the Federal Executive shall issue for the purpose.
In the case of programs to which item III refers, the rules applicable to federal subsidies shall be used.
In all cases the Institute shall keep specific accounting records separate from the general accounting records.
Article 218.
(Amended by Law of Dec. 15, 2001) The insured worker with a minimum of fifty-two
weekly contributions recognized in the compulsory regime in the last five years,
once withdrawn therefrom, is entitled to continue voluntarily in it; he may
continue in the joint insurance for disability and life, as well as that for
retirement, cessation of employment due to advanced age and old age, duly remaining
enrolled at the last wage he was paid at the moment of withdrawal or a higher
one. The insured worker shall pay the assessments that correspond to him in
monthly payments in advance and shall contribute in the following manner:
a) With respect to the insurance for retirement, cessation of employment due to advanced age and old age, the insured worker shall pay, with reference to the first area, the entire assessment, and with respect to the other two areas he shall pay the amount of the worker-employer assessment, with the State paying the portion that according to this Law corresponds to it, including the social contribution, and
b) Concerning the insurance for disability and life, the insured worker shall pay the worker-employer assessments and the State shall pay the portion that corresponds to it according to the percentages set forth in this Law.
Additionally, the insured party must pay the assessments that would correspond to the employer and to the worker, stipulated in the second paragraph of article 25 of this Law.
Article 219.
(Amended by Law of Dec. 15, 2001) The right stipulated in the preceding article
shall be lost if it is not exercised by applying for it in writing within a
period of five years starting from the date of withdrawal.
Article 220.
(Amended by Law of Dec. 15, 2001) The voluntary continuation in the compulsory
regime ends by:
I. Express declaration signed by the insured worker;
II. Failure to pay the assessments for two months, and
III. Being enrolled again in the compulsory regime, under the terms of Article 12 of this Law.
The insured may apply in writing for reinstatement into the compulsory regime of social security through voluntary continuation when his withdrawal had been caused by failure to pay the assessments of two consecutive months. The application must be drawn up within the 12 months following the date on which he was withdrawn from voluntary continuation.
Article 232.
(Amended by Law of Dec. 15, 2001) For the affiliation of persons that provide
their services to official agencies or entities of the Federal Public Administration,
the prior approval of the Ministry of Finance must be received.
In the case of agencies or entities of the state or municipal public administrations, the authorization of the corresponding local congress or town council must be received when their participation in the federal receipts that correspond to the state or municipality in question is granted as a guarantee for the compliance with the obligations of such persons.
Article 233.
(Amended by Law of Dec. 15, 2001) Worker/employer assessments that are generated
for the purpose of the affiliation of the workers of agencies and entities in
service to the public state or municipal administrations may be paid by charging
the subsidies, transfers or apportionment from the federal budget that corresponds
to the states and municipalities, in the terms of the applicable provisions.
Article 237.
(Amended by Law of Dec. 15, 2001) The salaried, temporary and permanent workers
in farming activities, are included in Article 12, fraction I of this Law, and
they shall have access to the social security under the terms and forms that
the this Law stipulates, pursuant to the procedures that the corresponding regulations
establish for the purpose.
Article 241.
(Amended by Law of Dec. 15, 2001) The subjects covered by family health insurance
are those indicated in Article 84 of this Law, and they shall be subject to
the requirements thereunder.
Article 242.
(Amended by Law of Dec. 15, 2001) All the subjects that voluntarily join the
family health-care insurance, including the families to which the preceding
article refers and any additional family member shall pay the corresponding
annual assessment established, being classified by the age group to which they
belong. The assessments shall be calculated in accordance with the following
table, which shall be updated in February of each year in accordance with the
increment in the National Consumer Price Index of the preceding calendar year.
Age of family member in completed years
Total assessment in national currency per member of the stipulated age group
0 to 19
889.
20 to 39
1,039.
40 to 59
1,553.
60 or over
2,337.
The State shall contribute in accordance with the provisions in fraction III of Article 106 of this Law per family, regardless of the size of the family.
(Editor’s Note: In accordance with the Twenty-Third Transitory Article of the Law of Dec. 15, 2001, the annual increase to which this article refers shall commence to be applied as from February 1, 2003.)
Article 250A.
(Added by Law of Dec. 15, 2001) The Institute, with the prior agreement of its
Technical Council, may grant life insurance coverage and other coverage, exclusively
on behalf of the persons, groups or nucleus of low-income people, that the Federal
Government shall determine, as subjects of social solidarity with the sums insured,
under conditions that the Federal Government shall establish.
Likewise, the Institute, with the prior agreement of its Technical Council, may utilize its infrastructure and services, upon requirement of the Federal Government, in aid to programs to combat marginalization and poverty considered in the Expenditure Budget of the Federation. For purposes of this article, the Federal Government shall provide the financial resources necessary in an opportune manner, charged to the corresponding program and entry to pay for the services that are entrusted thereto.
Article 250B.
(Added by Law of Dec. 15, 2001) For the purposes of the preceding article, the
Federal Government must grant the subsidies and transfers that correspond to
the amount of the premiums relative to such insurance and other coverage.
Article 291.
(Amended by Law of Dec. 15, 2001) The administrative procedure of enforcement
for the collection of the credits to which article 287 of this Law refers, which
have not been paid opportunely to the Institute, shall be applied thereby, subject
to the standards of the Code and other applicable dispositions, through its
administrative units empowered for the purpose.
The disposal of the assets that the Institute is adjudicated for the purpose of the application of the administrative procedure of enforcement, shall be carried out by public auction or by direct adjudication, under the terms and conditions that the respective regulation shall stipulate, which shall be published in the Diario Oficial of the Federation.
In the case of fixed or variable income securities, they will be disposed of pursuant to the limits that the Technical Council issues for the purpose.
The amount obtained with respect to insurance for retirement, cessation of employment due to advanced age and old age, according to the provisions of this article, shall be made available to the Retirement Funds Administrator that carries the individual account of the corresponding worker, at the latest ten working days after the date of its effective collection. Failure to do so shall cause penalty charges and adjustments enforced by the Institute or the Ministry of Finance, as appropriate, and which shall accrue to the worker under the terms set forth in the Code.
Article 294.
(Amended by Law of Dec. 15, 2001) When the employers and other obligated subjects,
as well as the insured workers or their beneficiaries consider any final decision
as disputable, they may file an appeal for dissent, in the form and terms that
the regulation sets forth, or else proceed in the terms of the following article.
Every ruling, decision, or assessment made by the Institute that is not appealed pursuant to the pertinent regulations shall be deemed to have been accepted by the claimant.
Article 295.
(Amended by Law of Dec. 15, 2001) The disputes between the insured workers or
their beneficiaries and the Institute over the benefits that this Law grants,
must be taken to the Federal Conciliation and Arbitration Board, while disputes
between the Institute and employers or other liable parties shall be taken to
the Federal Court of Fiscal and Administrative Justice.
Article 296.
(Amended by Law of Dec. 15, 2001) Eligible parties may interpose an administrative
complaint before the Institute, which shall have the purpose of taking cognizance
of the dissatisfaction on the part of the users due to acts or omissions by
institutional personnel in connection with the provision of medical services,
provided it does not constitute a final disputable act through the appeal for
dissent.
The complaint administrative procedure must be exhausted prior to submission of any administrative procedure, appeal or legal proceeding to another entity or authority.
Resolution of complaints shall be made in the terms established in the corresponding instructions.
Article 303.
(Amended by Law of Dec. 15, 2001) The public servants of the Institute shall
be obligated to observe in the fulfillment of their obligations, the principles
of responsibility, professional ethics, excellence, honesty, loyalty, impartiality,
efficiency and quality in the rendering of the services and in the attention
to the eligible parties, and shall be subject to the civil or criminal liabilities
that they may incur as providers of a public service.
Article 303A.
(Added by Law of Dec. 15, 2001) Noncompliance with the administrative obligations
that correspond to each particular case shall be sanctioned under the terms
set forth in the Federal Law of Responsibilities of Public Employees, except
for those that fall under Article 5 of the said ordinance.
Article 304.
(Amended by Law of Dec. 15, 2001) When employers and other obligated subjects
carry out acts or omissions that implicate the noncompliance of the fiscal payments
that Article 287 stipulates, they shall be sanctioned with a fine equivalent
to 40-100% of the corresponding omitted payment.
Article 304A.
(Added by Law of Dec. 15, 2001) The following acts or omissions of the employer
or obligated subject are violations to this Law and to its regulations:
I. Not registering with the Institute, or doing so outside the period established in the Law;
II. Not registering their workers with the Institute or being untimely in doing so;
III. Not informing the Institute of modifications to the base contribution wage of their workers, or being untimely in doing so;
IV. Not determining or being untimely in determining the worker-employer contributions chargeable to them legally;
V. Not informing the worker or the union of the contributions made to the individual retirement, severance in advanced age and old age insurance;
VI. Filing affiliation notices, forms, affiliation vouchers, records of works or schedules of determination of worker-employer contributions with false data to the Institute, except data that by its nature are not under their responsibility;
VII. Not keeping the payroll records or lists in the terms stipulated in the Law and the Regulation for the Payment of Social Security Contributions;
VIII. Not delivering a weekly or fortnightly voucher of days worked to workers, if obligated to do so;
IX. Not furnishing, when the Institute so requires, the items necessary to determine the existence, nature and quantity of its obligations or to do so with altered or false documentation;
X. To obstruct or impede domiciliary inspections or visits, whether himself or through a person interposed, as well as the administrative procedure of enforcement ordered by the Institute;
XI. Not cooperating with the Institute in the terms of article 83 of the Law, in the carrying on of studies and investigations to determine causal factors and preventive measures of labor risks, in furnishing data and reports that permit the drawing up of statistics of occurrences, and in distributing, in the area of their enterprises, the standards on prevention of labor accidents;
XII. Not to give notice to the Institute of labor accidents, to hide their occurrence in the installations or outside thereof in the carrying out of their activities, or not keeping the records of labor accidents or not keeping them up to date;
XIII. Not to preserve the documents that are being inspected during a domiciliary visit or the personal property in which they are deposited as a consequence of their assurance;
XIV. To alter, detach or destroy, himself or through an intermediary, the documents, seals or marks placed by the visitors of the Institute for the purpose of assuring the accounting records, in the systems, books, records and other documents that are included therein, as well as in the equipment, furniture or offices in which such accounting records are deposited and that may have been left in deposit as a consequence of the assurance derived from a domiciliary visit;
XV. To not file the obligatory annual review of their damages and the determination of the labor accident premium or to do so in an untimely manner or with false or incomplete data, in relation to the period or periods stipulated in the corresponding regulation. A fine shall not be imposed on employers for not filing the forms for the determination of the aforementioned insurance premium when it shall be the same as for the preceding fiscal year;
XVI. To not give notice to the Institute or to do so in an untimely manner of the change of address of an enterprise or establishment, when found in any of the cases stipulated in the respective regulation;
XVII. To not withhold the contributions chargeable to their workers when they should legally do so, or having withheld them, to not pay them to the Institute;
XIX. To omit to file the report by an authorized public accountant or to file it in an untimely manner when said option has been made in the terms of article 16 of this Law;
XX. To not comply, or to comply in an untimely manner, with the obligation of receiving a judgment by an authorized public accountant on their contributions to the Institute, and
XXI. To notify in an untimely manner, to do so with false or incomplete data or else, to omit to notify the Institute in the terms of the respective regulation, of the address of each one of the works or phase of work that employers who are sporadically or permanently engaged in the construction industry are carrying out.
Article 304B.
(Added by Law of Dec. 15, 2001) The violations stipulated in the preceding article
shall be penalized considering the gravity, particular conditions of the violator
and, if applicable, repetition, in the following manner:
I. Those provided in items IV, V, VII, VIII, XI, XVI and XIX, a fine equivalent to the amount of 20-75 time the general daily minimum wage in force in the Federal District;
II. Those provided in items III, X, XIII and XVIII, a fine equivalent to the amount of 20 to 125 time the general daily minimum wage in force in the Federal District;
III. Those provided in items VI, IX and XV, a fine equivalent to the amount of 20 to 210 time the general daily minimum wage in force in the Federal District, and
IV. Those provided in items I, II, XII, XIV, XVII, XX and XXI, a fine equivalent to the amount of 20 to 350 times the general daily minimum wage in force in the Federal District.
Article 304C.
(Added by Law of Dec. 15, 2001) Fines shall not be imposed when the employer
obligations are fulfilled voluntarily outside of the periods stipulated by the
Law or when a violation has been incurred in the case of force majeure or fortuitous
event. It shall be considered that the compliance is not voluntary in the following
cases:
I. The omission is discovered by the Institute;
II. The omission has been corrected by the employer after the Institute had notified him of an order for a domiciliary visit, or has made a requirement or any other step has been taken thereby, tending to the verification of the compliance of his obligations in the matter of social security, and
III. The omission has been corrected by the employer after 15 days following the filing of the report by an authorized public accountant with the Institute, in respect of acts or omissions in which he had been involved and that were observed in the report.
Article 304D.
(Added by Law of Dec. 15, 2001) The Institute may allow the fines imposed for
violation to the provisions of this Law and its regulations be without effects,
when in its judgment, it is authorized that no violation was incurred with only
the document exhibition by the interested parties.
Request for the fines to be without effects in the terms of this article shall not constitute an instance and the decisions that the Institute hand downs in this regard may not be challenged by the means of defense that this Law establishes.
The request shall give cause for the suspension of the administrative procedure of enforcement, if such is requested and the interest of the Institute is guaranteed.
Only fines that have remained firm shall proceed, provided that a related administrative act shall not be a matter of challenge.
CHAPTER III. OFFENSES
(Editor’s Note: By virtue of the Fifth Transitory Article of the Law of
Dec. 15, 2001, the provisions in this Chapter shall enter into force within
180 calendar days as from the entry into force of the Law of Dec. 15, 2001)
Article 305.
(Amended by Law of Dec. 15, 2001) In order to proceed criminally for the offenses
in this Chapter, it shall be necessary that the Institute previously draw up
a complaint, regardless of the state of the administrative procedure, that had
been initiated if applicable.
Article 306.
(Added by Law of Dec. 15, 2001) In the offenses provided in this Chapter in
which the loss or damage or undue benefit is quantifiable, the Institute shall
make the corresponding valuation in the complaint itself.
In the offenses to which this Chapter refers, the judicial authority shall not impose a pecuniary penalty.
Article 307.
(Added by Law of Dec. 15, 2001) Employers or their representatives and other
obligated subjects who totally or partially omit the payment of the worker-employer
contributions or obtain an undue benefit at loss to the Institute or to the
workers through use of deception or exploitation of errors, commit the crime
of fraud against the social security systems.
The total or partial omission of the payment of worker-employer contributions to which the preceding paragraph refers shall include, without distinction, the installment or final payments of the worker-employer contributions or essential capital in the terms of the applicable dispositions.
Article 308.
(Added by Law of Dec. 15, 2001) The crime of fraud against the social security
systems shall be penalized with the following penalties:
I. With prison of three months to two years when the amount defrauded does not exceed 13,000 daily minimum wages in force in the Federal District;
II. With prison of two to five years when the amount defrauded exceeds 13,000 daily minimum wages in force in the Federal District, but not over 19,000 daily minimum wages in force in the Federal District, or
III. With prison of five to nine years, when the amount defrauded is over 19,000 daily minimum wages in force in the Federal District.
When the amount defrauded cannot be identified, the penalty shall be that which is established in item I of this article.
Article 309.
(Added by Law of Dec. 15, 2001) The crime of fraud against the social security
systems shall be qualified, when the employers or their representatives and
other obligated subjects knowingly omit the payment of the workers’ contributions
withheld from the workers in the terms and conditions established in this Law.
When the crime is qualified, the corresponding penalty shall be increased by one half.
Article 310.
(Added by Law of Dec. 15, 2001) It shall be penalized with the same penalties
as the crime of fraud against the social security systems when anyone knowingly:
I. Alters computer programs authorized by the Institute;
II. Manifests false data to obtain a refund of worker-employer contributions from the Institute, that do not correspond to him;
III. Benefits without right to a subsidy or tax incentive, or
IV. Simulates one or more acts or contracts obtaining an undue benefit with loss to the Institute.
Article 311.
(Added by Law of Dec. 15, 2001) A penalty of three months to three years in
prison shall be imposed on employers or their representatives and other obligated
subjects who:
I. Do not draw up registration notices or furnish false data to the Institute evading the payment or reducing the amount of the worker-employer contributions, to the loss of the Institute or to the workers, in a percentage of 25% or more of the fiscal obligation, or
II. Obtain an undue benefit and do not communicate to the Institute the suspension or end of activities to the Institute; closure; change of firm name; modification of salary; activity; address; employer substitution; merger or any other circumstance that affects their registration with the Institute and furnish to the Institute false information in respect of their obligations, in the terms of this Law.
Article 312.
(Added by Law of Dec. 15, 2001) A penalty of one to six years in prison shall
be imposed on a depository or supervisor designated by the Institute who takes
for himself or another, from the asset deposited, from its proceeds or from
the guarantees that have been constituted from any fiscal credit, if the value
of that which is taken doe not exceed 900 daily minimum wages in force in the
Federal District; when it exceeds that figure, the penalty shall be from four
to nine years in prison.
The same penalty, in accordance with the value of such assets, shall be applied to a depository that hides them or does not place them at the disposal of the Institute.
Article 313.
(Added by Law of Dec. 15, 2001) A penalty of three months to three years in
prison shall be imposed on employers or their representatives and obligated
subjects who:
I. Record their accounting and tax transactions in two or more books or in two or more accounting systems or in two or more different media with different contents, and
II. Totally or partially hide, alter or destroy the systems and accounting records or any other medium, as well as the documentation relative to the respective entries, that pursuant to this Law they are obligated to keep.
Article 314.
(Added by Law of Dec. 15, 2001) Obtaining, as well as sponsoring the obtainment
of the insurances, benefits and services that this Law establishes, without
being entitled thereto, through any deception or exploitation of an error, whether
by virtue of simulation, substitution of persons or any other act, shall be
considered as fraud and shall be penalized as such in the terms of the Federal
Penal Code.
Article 315.
(Added by Law of Dec. 15, 2001) A penalty of one to six years of prison shall
be imposed on public servants who order or make domiciliary visits or attach
property without a written mandate from a competent fiscal authority.
Article 316.
(Added by Law of Dec. 15, 2001) A public servant who threatens in any manner
an employer or any other obligated subject, with drawing up a complaint to the
Public Ministry, either himself or by means of the office to which he has been
appointed, in order that penal action might be brought for the possible commission
of the offenses provided in this Chapter, shall be penalized by prison from
one to five years.
Article 317.
(Added by Law of Dec. 15, 2001) If a public servant, in carrying out his duties,
commits or participates in any manner in the commission of an offence provided
in this Chapter, the applicable penalty for the offence that results shall be
increased from three months to three years of prison.
Article 318.
(Added by Law of Dec. 15, 2001) A complaint shall not be drawn up if whoever
had omitted the partial or total payment of any worker-employer contribution
or obtained an undue benefit, voluntarily pay it with its surcharges and up-dating
for inflation before the authority of the Institute discovers the omission,
the loss or the undue benefit by means of requirement, order of a visit or any
other step notified thereby, tending to the verification of the compliance with
its obligations in the matter of worker-employer contributions.
Article 319.
(Added by Law of Dec. 15, 2001) The criminal action in the offences provided
in this Chapter shall prescribe in three years as from the day on which the
Institute has knowledge of the offence and of the probable liable party; and
if it does not have knowledge, in five years, that shall be computed as from
the date of the commission of the offense.