In the Official Gazette of the Federation on December 10, 2020, the Agreement of the Technical Council of the Mexican Social Security Institute No. ACDO.A92.HOT.281124/436.P.DIR and its sole Annex, issued at its regular session on November 28, was published, by which a criterion was approved (Criterion No. 03/2024/NV/SBC-LSS-27-VIII), in order to guide employers or obligated subjects regarding the exclusions as members of the Base Salary of Contribution (SBO) of the surplus of 10% of the payments made for the concepts of attendance and punctuality awards.

Under published criterion, the assistance and punctuality benefits may only be exempted from being part of the Base Salary of Contribution, when they strictly comply with what is established in article 27, first paragraph, section VII and second paragraph of the Social Security Law.

That is, benefits labeled as attendance and punctuality may only be excluded from the SBC if the following is proven:

a) That the amount for attendance and punctuality bonuses does not exceed 10% of the SBC in terms of article 27, first paragraph, section VII of the Social Security Law;

b) That through attendance and punctuality controls the nature of these concepts is proven to the IMSS; and

c) That they are duly registered in the employer’s accounting.

In case the assumptions and the destination mentioned are not proven, the amounts of money given to the workers nominated as attendance and punctuality will update the hypothesis indicated by article 27, first paragraph, section VII, of the Social Security Law, so they must be integrated into the SBC.

In the opinion now published, it is specified that the Federal Courts have ruled in the same sense when issuing the Jurisprudential Thesis: P./j.86/98 (9th), under the heading: “INFONAVIT. RESTRICTIONS ON ATTENDANCE AND PUNCTUALITY AWARDS AND FOOD VOUCHERS SO THAT THEY ARE EXCLUDED FROM THE BASE SALARY OF CONTRIBUTIONS. THEY ARE NOT VIOLATORY OF ARTICLE 31, SECTION IV, OF THE CONSTITUTION (ARTICLE 27, SECTIONS VI AND VII, OF THE SOCIAL SECURITY LAW, TO WHICH ARTICLE 29 OF THE LAW OF THE NATIONAL HOUSING FUND INSTITUTE FOR WORKERS REFERS”.

The same criterion is complemented by considering that they carry out an improper fiscal practice in the area of social security:

1. Those who exclude from the base salary for contribution the payments for attendance and punctuality bonuses that exceed, each one, the maximum amount of 10% of the SBC, in terms of article 27, first paragraph, section VII, of the Social Security Law.
2. Those who exclude from the base salary for contribution the payments for attendance and punctuality bonuses that do not comply with the conditions for granting these bonuses, that is, that they grant them regularly and not conditioned to a specific behavior (such as perfect attendance or punctuality), or that are not duly recorded in the employer’s accounting.
3. Those who advise, counsel, provide services or participate in the implementation or execution of the above practices.
4. Certified public accountants who issue a “clean and unqualified” compliance opinion in the social security report of employers who use any of the aforementioned behaviors.

Finally, both the Technical Council Agreement and its Annex that includes the Criterion discussed here came into force the day after its publication in the Official Journal of the Federation; that is, on Wednesday, December 11 of this year.

The above implies that when these benefits are granted, there is an obligation for the company to have systems for controlling punctuality and attendance and that the awards in question are not granted indiscriminately or in a general manner, but only to those workers who have perfect punctuality and attendance.

Any questions or doubts regarding this bulletin should be directed to:

Alfonso González
agu@cmgdlaw.com