One of the great challenges that companies faced during 2021 was the implementation of the labor, tax and social security reform, in terms of subcontracting.
With the reform, many companies relocated their personnel, and they did so with the following actions:
- Employer substitution.
- Transfer of workers with recognition of their acquired rights.
- Restart of labor relations, rehiring employees in the corresponding companies.
According to an analysis published by Prosecutor’s Officethe aforementioned actions imply that the relocated workers had more than one employer during fiscal year 2021.
The analysis indicates that the foregoing raises doubts about the way in which the calculation of the annual Income Tax (ISR) of these workers should be handled and, where appropriate, the presentation of your annual declaration for the year 2021 in April 2022.
Calculation of the annual tax for workers
In the analysis of Prosecutor’s Office It is explained that in order to define how this situation should be handled, it is necessary to start the analysis from the point of view of the pattern. In this sense, he pointed out that article 97 of the Income Tax Law It establishes, as an employer obligation, to calculate the workers’ annual tax. This is colloquially called “annual adjustment”, and companies generally do it at the time of the bonus.
The same provision lists three cases in which the employer will not make the annual calculation. One of these is the following:
- When the worker has started the provision of services after January 1 of the year in question or has stopped providing services to the withholder before December 1 of the year for which the calculation is made.
The analysis indicates that the case lends itself to debate, because it could be thought that, in the cases in which an employer substitution was carried out, the worker did not really begin the provision of services after January 1, but rather that he or she had already been working , that a substitution was raised, but since his rights and seniority are maintained, the worker is not placed in this case. This would lead to the conclusion that the employer must calculate the annual adjustment for the worker.
However, Prosecutor’s Office points out that it is necessary to consider the following points:
Employer substitution
In this sense, it is necessary that, in the case of an employer substitution, what has happened is precisely that: a substitution of an employer. That is, as of January 1, 2021, the worker had an employer, and at the end of the year the worker has a different employer, even if the transition had taken place through an employer substitution and labor rights are preserved. In this case, then, the relationship with the new employer began at the beginning of the year.
In this order of ideas, we have that the current employer has workers who did not start providing services since January 1, placing themselves, consequently, in the case of exception to make the annual adjustment established in article 97 of the Income Tax Lawleading to the conclusion that the employer should not calculate the annual adjustment.
Transfer of workers and resumption of labor relations
In the case of the other modalities of transfer of workers that had not been made through an employer substitution, it is clearer that the employment relationship began after January 1, 2021, so the employers are located in the assumption of exception, and will not calculate the annual adjustment.
Prosecutor’s Office indicated that the employer’s exclusion from making the annual calculation of workers who were transferred through any mechanism or means is clear, and that, for that reason, they do not have a full year of service. It is feasible, then, to conclude that the employer is exempt from making the annual calculation to its workers.
Regarding the obligation that workers may have to present their annual declaration, the legislation gives rise to two interpretations with opposite results:
- On the one hand, it is possible to argue that there is no obligation to file the declaration, because the provision of services to more than one employer was not done simultaneously and,
- On the other hand, it can be concluded that it is enough that the benefit was made to two employers during the year, even if this did not occur at the same time.
The second interpretation is more in harmony with the mechanics of filing and paying taxes.
Therefore, Prosecutor’s Office considers that in the case in which the workers are obliged to present their annual declaration, it will be convenient to establish the appropriate means of communication to guide them and, if possible, provide them with facilities so that they receive the necessary support to fulfill this task that, for the common to people, it can be complex.
– With information from the Prosecutor’s Office.
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