Issue #
April 2013

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Recent Case Decision - Requirements for the Operation of Supplemental Laws

April 10, 2013

Recently, the Second Chamber of Mexico's Supreme Court of Justice (Suprema Corte de Justicia de la Nación or SCJN) approved judicial decision number 2a. /J. 34/2013 (10a.) under the heading, "Supplementary Laws. Requirements for Their Operation." In such case decision, the Second Chamber of the SCJN held that the use of supplementary laws may be proper to satisfy an omission in the law or to interpret its provisions and integrate such with other rules or general rules of principles contained in other laws. Based on the forgoing, the court held that in order for such a supplementary law to apply, the following is necessary: (i) that the law serving to supplement another law expressly establishes such possibility, indicating the law or norms that may be applied to such on a supplementary basis, or that a law establishes the supplementary application, fully or partially, to other laws; (ii) that the law being supplemented does not contemplate the legal concept or situations to which the supplementary law will apply or, if such are contemplated, the law being supplemented does not develop such or regulates such in a deficient manner; (iii) that the omission or legislative gap makes necessary the supplementary application of the law in order to resolve a pending legal issue, without addressing other legal issues that lawmakers did not intend to establish in the law being supplemented; (iv) that the applicable norms being applied on a supplementary basis would not run contrary to the underlying law such is supplementing, and only as long as such is consistent with its principle and the basis that specifically govern the issue in question. The above case decision is currently pending publication in the Weekly Federal Court Gazette.

Employee Participation in Profit Sharing Payments (PTU)

April 10, 2013

All Mexican employers, whether individuals or entities, are required to calculate and pay mandatory profit sharing payments to employees within 60 days following the filing of their annual Mexican tax return, so PTU payments are due on May 30, 2013 for entities and June 30, 2013 for individuals . The obligation for employers to make such payments is based on the legal provisions in Section IX of Article 123 of the Political Constitution of the United Mexican States, which establishes that employees shall have the right to participate in their employer's profits in the amount of 10% of such employer's taxable income. As such, the following types of employees have the right to receive profit sharing payments: a).- permanent employees hired to carry out normal, long-term work for an employer, without regard to the number of days worked during the January 1 through December 31, 2012 fiscal year; b).- eventual permanent employees who have worked for an employer fewer than 60 days, whether continuously or sporadically, during the fiscal year referred to above; c).- former employees who have the right to claim profit sharing payments, when such rights have not lapsed.Mexico's Federal Labor Lay (Ley Federal del Trabajo), which serves as a supplementary regulation to Constitutional Article 123 above, establishes that certain businesses and organizations are exempt from the obligation to make profit sharing payments to employees, including, among others: (a) newly created businesses, during the first year of operation; (b) newly created businesses dedicated to manufacture a new product, during the first two years of operation; (c) newly-created mining and extraction industries, during the exploration period; and (d) private charitable organizations recognized by Mexican law as such, which with their own assets carry out humanitarian activities, without receiving any profit and without individually designating their beneficiaries.The legal provisions cited above also establish that some taxpayers are not eligible to receive profit sharing payments, including the following: (a) directors, administrators and general managers of a business; (b) individuals who are owners or co-owners of a business; (c) professional technicians, artisans and others who provide services through independent service arrangements; and (d) new, eventual permanent, employees who have worked fewer than 60 days during the employer's fiscal year.In order to be able to determine the profit sharing payments to be paid to employees, both the employer and its employees are required to designate representatives to serve on a Mixed Commission, which is responsible for calculating the employer's annual profit sharing payment. The Mixed Commission is in charge of calculating each individual's profit sharing payment, which is to say it is responsible for dividing the whole profit sharing payment among the individual employees. When the Mixed Commission has determined the amount to be paid as a result of the employer's profits, such amount is divided into two parts, with the first part being the same for all employees, taking into consideration the number of days worked during 2012, without regard to the individual salary; and the second amount being paid in proportion to the amount of salary received by each employee during the year, which is to say such payment depends on the salary received by each worker. Once this procedure has been completed, results of the profit sharing payment are published by the Mixed Commission at least 15 days prior to payment, which publication must be located in a visible place at the employer's place of business (normally, such publication is made through the Human Resources Department). It is important to clarify that the Federal Labor Law, which establishes the right of employees to participate in profit sharing payments, in no way implies any right whatsoever for employees to participate in the management or administration of the employer. Finally, amounts of unclaimed employee profit sharing payments in the current year are added to the employee profit sharing amounts that will be distributed in the following year.