Decree amending, adding and repealing various provisions of the Act on the Institute of the National Fund for Workers' Housing and the Federal Labour Act, on socially oriented housing

I. ORIGIN OF THE CONTINGENCY

We believe that the above-mentioned decree imposes obligations that could be updated as unconstitutional, and therefore susceptible, such reform may be controversial by Indirect Amparo Trial, achieving at first the suspension of such obligations, so as not to harm the complainant's legal sphere, as long as the unconstitutionality of the rule is not resolved, leaving the obligations provided for in the law as they were prior to the reform, so the deadline for disputing the decree through the amparo trial would expire on April 3, 2025.

Specifically, the decree adds a paragraph to article 29 of the INFONAVIT Act, which imposes new burdens on employers in cases where they were not covered by law.

Although article 29 of the INFONAVIT Act establishes the obligations of employers, in its specific section II, there is an obligation to:

1. Calculate contributions: Determine the amount corresponding to 5% of each worker's salary.
2. Make the payment of contributions: The payment of these contributions must be made in the receiving entities designated by the Institute, this in order for them to be credited to the housing sub-account of the individual accounts of the workers.
3. Provide worker information: When making the payment, employers must provide information relating to each worker in the manner and frequency established by the corresponding laws.
4. Ongoing employer responsibility: As long as the employment relationship exists, the employer must pay the contributions for each worker, until the corresponding notice of retirement is submitted.

However, in that decree, a penultimate paragraph was added to the said article, the following:

(...) The obligation to make the contributions referred to in section II above shall be suspended when salaries are not paid for absences under the terms of the Social Security Act, provided that appropriate notice is given to the Institute, in accordance with Article 31. In the case of disabilities issued by the Mexican Social Security Institute, the obligation to pay contributions will remain. When it comes to the obligation to make the discounts referred to in section III^[1] it will not be suspended for absences or incapacities in terms of the Social Security Act. (...)”

(Emphasis added)

The addition to Article 29 introduces changes in the obligations of employers with respect to contributions related to the institute, which can be summarized as:

1. Suspension of contributions due to unpaid absences: The obligation to make contributions of 5% to INFONAVIT is suspended when the worker does not receive a salary due to absences allowed by the Social Security Act. Whenever notified in accordance with Article 31^[2].

2. Continuity of contributions during disabilities: If the worker receives proof of disability from the IMSS, the employer has the obligation to continue making contributions to INFONAVIT.

3. Discounts for INFONAVIT credits during absences or disabilities: The employer has the obligation to make the corresponding discounts for housing loans granted to the worker, which are not suspended due to absences or disabilities. If the worker does not receive a salary for these reasons, the employer must continue to make the discounts and report them to INFONAVIT.

Broadly speaking, this reform implies that subscription payments must continue to be made to amortize the obligations contracted by workers to Infonavit, even if the employment relationship is suspended during absences and disabilities granted in accordance with the Social Security Act.

In other words, we believe that it generates a new tax burden not only in the payment but also in the payment, even if the employment relationship is suspended, which, in the event of non-compliance, could result in sanctions, and the possible determination of tax credits by the institute.

It is important to mention that INFONAVIT issued a letter, with which it practically intended to eliminate the provisions of the decree, but this letter or communication does not change the law and at any time the institute can leave the effect of the criteria that are uncertain in the above-mentioned letter and apply the law as drafted.

ACT OF THE INSTITUTE OF THE NATIONAL FUND FOR WORKERS' HOUSING:

https://www.diputados.gob.mx/LeyesBiblio/pdf/LIFNVT.pdf

PUBLICATION OF THE DECREE:

https://www.dof.gob.mx/nota_detalle.php?codigo=5749909&fecha=21/02/2025#gsc.tab=0

We hope that this information will be useful. For any questions or additional questions, you can contact our partner José Luis Lavín within lavin@glzabogados.com.

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[1] III. Make discounts to their workers on their salaries, in accordance with the provisions of articles 97 and 110 of the Federal Labor Law, which are used to pay subscriptions to cover loans granted by the Institute, as well as to report the amount of such discounts to the receiving entities acting on behalf and order of the Institute, in the manner and terms established by this Act and its regulatory provisions. The integration and calculation of the wage base for the purposes of discounts will be that contained in section II of this article.

In order for the Institute to be able to individualize such discounts, employers must provide it with information relating to each worker in the manner and frequency established for this purpose by this Act and its regulatory provisions;

[2] Article 31.- For the registration of employers and workers, the information determined in this Act and its corresponding regulatory provisions must be provided.

Los employers must give notice to the Institute of changes of address and of name or company name, increase or decrease of tax liabilities, suspension or resumption of activities, closure, merger, division, alienation and declaration of bankruptcy and suspension of payments. In addition, they shall inform the Institute of registrations, cancellations, changes in salaries, absences and disabilities and other data of workers, necessary for the Institute to comply with the obligations contained in this article. The Institute may agree with the Mexican Social Security Institute on terms and requirements to simplify and unify the processes described above.

The registration of employers and the registration of workers, as well as the other notices referred to in the previous paragraphs, must be submitted to the Institute within a period not exceeding five business days, counting from the date of the occurrence of the assumptions referred to in the previous paragraph.

Changes in the basic contribution salary and discounts will take effect from the date on which they occur.

The information referred to in this article may be provided in magnetic or telecommunication devices, in the terms indicated by the Institute.

The documents, data and reports that workers, employers and others provide to the Institute in compliance with the obligations imposed on them by this Law, will be strictly confidential and may not be communicated or disclosed in a nominative and individual manner, except in the case of judgments and procedures to which the Institute is a party and in the cases provided for by law.

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