When the nullity of a tax credit for omission of payment of employer contributions is demanded, the workers must be called through their representative, since they have the character of interested third parties.
In recent days, the Semanario Judicial de la Federación published the thesis (II Region) 2o.1 A (11a. ) issued by the Second Collegiate Circuit Court of the Auxiliary Center of the Second Region, with residence in San Andres Cholula, Puebla, which analyzed a direct appeal in which a judgment of the Federal Court of Administrative Justice was challenged, whereby it recognized the validity of the tax credit determined by the Mexican Institute of Social Security (IMSS) for failure to pay employer contributions related to occupational risk insurance, The IMSS recognized the validity of the tax credit determined by the Mexican Social Security Institute (Instituto Mexicano de Seguro Social, IMSS) for the omission of payment of employer contributions related to occupational risk, illness and maternity, disability and life, day care and social benefits insurance, as well as retirement, unemployment at an advanced age and old age insurance; notwithstanding the fact that from the analysis of the records of the contentious administrative lawsuit it was noted that the workers, through their representative, were not summoned to the trial.
In that thesis it is noted that the Collegiate Court determined that when the nullity of a tax credit for failure to pay employer contributions is claimed in the administrative litigation, the workers, through their representative, must be called to trial, since they have the character of interested third parties; otherwise, constitutional protection must be granted in order to order the reinstatement of the proceeding and the correction of such irregularity, so that the procedural relationship is duly integrated.
In this way, the judges of the Collegiate Court determined that the workers have the character of interested third parties when the nullity of a tax credit is demanded due to the omission of payment of employer contributions, given that:
1) They have a recognized right in their favor, consisting of the payment by the employer of the omitted employer contributions.
2) It is incompatible with the plaintiff’s claim to obtain the nullity of the resolution recognizing such right.
3) They may be affected by the revocation of the challenged act, since in the event that the nullity is declared, they would be harmed, to the detriment of their fundamental right to social security provided in Article 123, paragraph A, section XXIX, of the Constitution.
Therefore, the magistrates concluded that, if the responsible Chamber omitted to call the workers through their representative, there was a violation of the essential formalities of the procedure that left them in a state of defenselessness and transcended the result of the ruling, given that the procedural legal relationship is not duly integrated and the legality of an administrative resolution that impacts their fundamental rights to social security is being elucidated, without granting them the right to a hearing provided in article 14 of the Constitution.
Derived from the above, the tax team of Vega, Guerrero & Asociados remains at your disposal to provide the corresponding support and advice for compliance with these provisions in tax matters.