Social Security Resources Laws - Interpretation And Application - Full Text Of The Norm

Original Language Title: RECURSOS DE LA SEGURIDAD SOCIAL LEYES - INTERPRETACION Y APLICACION - Texto completo de la norma

Subscribe to a Global-Regulation Premium Membership Today!

Key Benefits:

Subscribe Now for only USD$40 per month.
image inicio sitio infoleg MInisterio de Justicia y Derechos Humanos
RESOURCES OF SOCIAL SECURITY Law 26.063 Interpretation and application of laws on social security resources. Disposition of social security resources. Recruiting cooperatives. Solidarity. Information agents, retention and perception of social security resources. Sanctions. Judicial appeals for debt determinations of such remedies. Special social security system for domestic workers. Treatment in the profit tax. General provisions. Posted: November 9, 2005 Partially promulgated: December 6, 2005

The Senate and Chamber of Deputies

of the Argentine Nation gathered in Congress,

etc.

Law:

PART I

OF THE PRINCIPLE OF INTERPRETATION AND IMPLEMENTATION OF LEYES IN MATERIA OF SOCIAL SECURITY RESOURCES

ARTICLE 1 For the purposes of the application, collection and control of the resources of Social Security, for the interpretation of applicable laws and the determination of the existence and quantification of the obligation to enter the contributions and contributions, the provisions of articles 1 and 2 of Law No. 11.683, text ordered in 1998 and its amendments shall apply.

PART II

OFFICE OF THE RESOURCES OF SOCIAL SECURITY. PRESUNISHMENT

ARTICLE 2 The determination of the contributions and contributions of the Social Security is made by an affidavit of the employer or responsible, in accordance with article 11 of Act No. 11.683, which was ordained in 1998 and its amendments, retaining the effects of the obligations arising from article 13 of the Act, both articles applicable to the matter under article 21 of Decree 507 of 24 March 1993, ratified by Act No. 24.447.

Without prejudice to the foregoing, when such affidavits have not been submitted or those submitted for failure to represent the established reality, the Federal Public Income Administration, an auto-archic entity within the Ministry of Economy and Production, shall proceed to determine ex officio and to liquidate the contributions and contributions omitted, be in direct form, with a certain knowledge of such obligations, whether by estimation, if the known elements only permit such contributions.

The determination of office shall be carried out through the procedure laid down by Act No. 18,820 and its regulatory and supplementary rules.

Article 3 Where the Federal Public Income Administration lacks the necessary elements to establish the existence and quantification of the contributions and contributions of the Social Security, due to the lack of supply of the same or because the contributions provided are insufficient or invalid, it may make an ex officio estimate, which shall be based on the facts and circumstances and/or on proven and coincidental indications that, because of their linkage or connection with the respective generating laws,

All presumptions established by this law shall operate only in the event of a lack of direct evidence and shall always be safe from the evidence to the contrary.

ARTICLE 4 In the area of Social Security, it shall be presumed, except evidence to the contrary, that the personal benefit done through a job is performed under a contract of employment agreed upon, whether expressly or tacitly, by the parties. ARTICLE 5o For the purposes of the preceding article, it may be assumed as a general presumption that:

(a) The employee ' s date of entry is prior to the employer ' s alleged date of entry, when the employer has not complied with the proper registration of the discharge of the employment relationship in the terms set out in the legal and regulatory rules. In such a case, the presumption must be based on evidence or evidence, precise and consistent to infer the start date of the employment relationship;

(b) Work cooperative partners are employed in relation to dependency, who use their services to achieve the main objective of their own activity;

(c) The number of workers declared or the amount of the taxable remuneration provided by the employer is insufficient, when such statements are not commensurate with the reality of the activity carried out and this circumstance is not faithfully justified.

For this purpose, the Federal Public Income Administration may make the determination based on indices that it may obtain, such as the consumption of gas, electricity or other public services, the acquisition of raw materials or containers, the amount of the transport services used, the value of the total of the assets of its own or foreign or of some part thereof, the type of work carried out, the surface exploited and the level of tecnification, and, in general operation,

The indications listed in the preceding paragraph of this subparagraph are merely declarative and their employment shall be carried out in a reasonable and uniform manner, and applied by projecting data from the same employer from prior periods or from third parties, when it is substantiated that they develop a similar activity;

(d) In the case of workers under the Labour Contract Act No. 20,744, Collective Labour Conventions, parity, awards, statutes or grouped under other regulations issued by the entity regulating the employment relationship, remuneration is established by the Convention or the corresponding regulations, proportionate to the number of hours or days worked, in accordance with the activity or specialty performed.

ARTICLE 6 For the purposes of this Title, the determination of the contributions and contributions of the Social Security made by the Federal Public Income Administration on the basis of the estimates and indexes specified or other technically acceptable, is legally appropriate, without prejudice to the right of the employer or responsible to prove otherwise in the process of challenge provided for in Article 11 and in accordance with Law No. 18,820 and Article 11 of Law No. 21.86.

In such cases, preventive embargoes or general property inhibitions may not be blocked until there is a firm decision at administrative headquarters.

None of the presumptions set forth in this Act may be taken into account by judges in criminal matters for the purpose of determining the existence of a crime.

ARTICLE 7 When the circumstances of the case make it impossible to identify the employed workers, exceptionally the Federal Public Income Administration will be able to implement the overall determination of the total omitted contributions.

The parcialtotal or partial incomes que that occur in respect of the debt thus determined, may only be charged by the employer in the account of employers' contributions, at the time of presenting the original originales or rectificative originales determinations in which the workers involved in the determination are identified.

PART III

CONTRATATION OF WORKING COOPERATIES. SOLIDARITY

ARTICLE 8 In cases where the presumption set out in article 5 (b) is not applicable, the natural persons or companies engaged in cooperatives shall be jointly responsible for the obligations which, for the Unique Social Security System, have been accrued by the partners of such cooperatives for the periods covered by the respective procurement, up to the amount invoiced by the cooperative.

The provisions of the preceding paragraph shall be applicable only in cases where the benefit made by the respective cooperative corresponds with an activity that generates tax gains of any category in the terms of the Law on Tax on Gains, a text ordered by decree 649/97, and/or rents of any kind in favour of the work giver.

PART IV

INFORMATION, RETENTION AND PERCEPTION AGENTS OF SOCIAL SECURITY RESOURCES. SANCTIONS

Article 9 Failure to comply with the requirements of the Federal Public Income Administration to submit the soriginal or rectificative jura information affidavits provided for in the employer ' s own or responsible information regimes, or third party information, in respect of the Social Security resources, shall be sanctioned with the fines provided for in article 39 of Act No. 11.683, which was ordained in 1998 and its amendments. ARTICLE 10. Persons obliged to act as agents of retention or perception in the regimes established for the entry of obligations under the Unique Social Security System .excluding employers for the obligation to retain and enter the contributions of their dependent workers . shall be liable to the penalties set out in articles 45 and 48 of Law No. 11.683, ordained text in 1998 and its modifications, when they incur the conducts in the aforementioned articles. ARTICLE 11. The fines indicated in the two preceding articles shall be applied in accordance with the procedure in force in the Federal Public Income Administration for the imposition of the penalties provided for in Acts Nos. 17.250 and its amendments and 22,161, for violations committed by employers and self-employed persons, relating to social security resources. ARTICLE 12. The challenge of those who are obliged against the infringements of the fines referred to in articles 9 and 10 shall be dealt with by the procedure provided for in article 11 and in accordance with Act No. 18,820 and article 11 of Act No. 21.864, as amended by Act No. 23,659 and, where appropriate, article 39 bis of Decree-Law No. 1285 of 4 February 1958, as amended by Act No. 24,659. ARTICLE 13. Replace article 9 of Act No. 24,769 and its amendments with the following:

Article 9: The employer shall be repressed with imprisonment of two (2) to six (6) years, which shall not deposit in whole or in part, within ten (10) administrative working days of the end of the term of entry, the amount of the contributions retained to his dependents, provided that the amount not entered exceeds the sum of ten thousand pesos ($ 10,000) for each month.

Identical sanction will have the agent of retention or perception of the resources of Social Security that does not deposit in whole or in part, within ten (10) administrative working days of the end of the income period, the amount retained or perceived, provided that the amount not entered exceeds the sum of pesos ten thousand ($ 10,000) for each month.

The Federal Public Income Administration shall, through the relevant technical and informative means and/or in the relevant applicants, provide the possibility of payment separately and independently of the other employer ' s contributions, the contributions retained by the employer to its dependents and the retentions or perceptions of the agents obliged with respect to the resources of the Social Security.

PART V

OF THE JUDICIAL IMPLEMENTATION OF DEUDATIVE DETERMINATIONS OF SOCIAL SECURITY RESOURCES

ARTICLE 14. Replace article 9 of Act No. 23.473, as amended by Act No. 24.463, with the following:

Article 9 (c) and (d) of article 39 bis of the Decree-Law No. 1285/58 must be presented with a lawyer and an expression of grievances before the same administrative body that dictated the measure and within thirty (30) days of notifying whether the applicant is domiciled in the Autonomous City of Buenos Aires or the forty-five (45) days if he is domiciled inside the country.

PART VI

OF THE SPECIAL REGIME OF SOCIAL SECURITY FOR THE EMPLETS OF THE DOMESTIC SERVICE. WORKING IN THE IMPEST OF GANANCIES

ARTICLE 15. The Special Social Security Regime for Domestic Service Employees established by Title XVIII of Law No. 25,239 is mandatory for those who provide service within the domestic life and who do not matter for the work giver profit or economic benefit, in the terms provided for in the aforementioned rule, whether such subjects fit as employees in relation to dependency . in accordance with the terms of Staff Regulations No. ARTICLE 16. For the purpose of determining the Tax on Livestocks, persons of visible existence and indivisous successions, both residents of the country, who review the character of work-offers in relation to domestic service personnel, may deduce from the gross tax gain of Argentinean source of the fiscal year, whatever the source of profit, the total amount paid in the fiscal period:

(a) Domestic workers for contracting for services rendered;

(b) To cancel the employer ' s contributions set out in article 3 of the Special Social Security Regime for Domestic Service Employees, adopted by article 21 of Act No. 25,239.

The deduction provided for in this article shall be of general deduction and shall be charged in accordance with the procedure set out in article 31 (b) of the regulation of the law of the said tax for the compensation of breaches of the exercise.

Please note that the amount equivalent to that of the annual non-imposable gain, as defined in article 23 (a) of the levying law, is deducted by the above-mentioned concepts.

All the provisions of this article shall apply to the rules established by the law of the said tax and its regulation.

PART VII

GENERAL PROVISIONS

ARTICLE 17. The Special Social Security Regime for Domestic Service Employees, established by Title XVIII of Law No. 25,239, in respect of the benefits of the National Health Insurance System, established by Laws Nos. 23,660 and 23,661, shall be subject to the provisions of article 43 (d) and (e) of the Annex to Act No. 24,977, its amendments and supplements, which are replaced by Act No. 25,865.

In order to access the above-mentioned benefits, domestic workers must complete the difference between contributions actually entered in accordance with article 3 of the above-mentioned special regime and the quotations provided for in article 40 (b) and (c) of the Annex to Law No. 24,977, its amendments and supplements, as replaced by Law No. 25,865.

For the assumption that the worker wishes to enter the social work system of his or her children and the absence of the spouse ' s social work, the differences referred to in the preceding paragraph shall be supported by the labour giver.

The provisions of this article shall take effect from the date on which the national executive branch is established, within a period not exceeding the ninety (90) days of promulgation of this law.

ARTICLE 18. Replace the article following article 65 of Law 11.683, which was ordered in 1998 and amended by the following:

Article...: The course of the limitation of the actions and powers of the Fisco shall be suspended by one hundred and twenty (120) days to determine and require the payment of the taxes governed by this law and to apply and enforce the fines, from the date of notification of the hearing of the procedure of determination of office or of the instruction of the corresponding summary, when it comes to the corresponding fiscal periods of prescribing and such one hundred and eighty days are reported.

ARTICLE 19. The legal and regulatory provisions relating to the Social Security resources shall remain in full force, insofar as they are not contradicted or opposed to those contained in this Act. ARTICLE 20. Contact the Executive.

IN THE SESSION OF THE ARGENTINE CONGRESS, IN GOOD AIRES, TO THE NEW DIAS OF THE MONTH OF NOVEMBER OF THE YEAR DOS MIL CINCO.

_

EDUARDO O. CHANGE. A. GUINLE. . Eduardo D. Rollano. . Juan Estrada.

RESOURCES OF SOCIAL SECURITY Decree No. 1515/2005

Bs. As., 6/12/2005

VISTO the Bill registered under No. 26.063, sanctioned by the HONORABLE CONGRESS OF NATION on 9 November 2005, and

CONSIDERING:

The purpose of the draft Law is to establish new standards to reduce morosity and evasion in the collection of social security resources.

That, in that order, a general principle is established for the interpretation and application of the laws relating to the resources of Social Security and for the determination of such resources by ex officio, consecration of various presumptions in order to the stated end.

That, in addition, standards are determined with respect to the agents of information, retention and perception of the persons concerned.

That the rule also deals with the judicial appeal of debt determinations and deals with the Special Social Security Regime for Domestic Service Employees.

That the same legal norm contemplates various aspects related to the cooperatives of work, without bearing in mind that they are non-commercial entities based on an associative relationship based on a plurilateral organizational contract concluded by the associate cooperatives who concur as owners of the common company to personally carry out their contribution of work.

That, by virtue of such consideration, its link does not correspond to a contract of work, so that the presumption set out in article 5 (b) of the Bill registered under No. 26.063, is not compatible with the letter and spirit of the Cooperatives Act No. 20.337, which characterizes them as entities founded on self-effort and mutual assistance to organize and produce goods and services for the general public,

Accordingly, it is appropriate to observe article 5 (b) and the reference to article 8 (b) of the Bill registered under article 26,063.

Article 17 states that the Special Social Security Regime for Domestic Service Employees, in respect of the benefits of the National Health Insurance System, established by Laws No. 23.660 and No. 23.661, shall be subject to the provisions of Article 43 (c) and (d) of the Annex to Law No. 24.977 and its Simplified Amendments for Small.

Article 17 also provides that, in order to access the benefits of the National Health Insurance System, domestic workers shall complete the difference between the contributions actually entered and the contributions provided for in article 40 (b) and (c) of Act No. 24,977 and its amendments.

In addition, the rule states that for the assumption that the worker wishes to enter the social work system to his children and in the absence of the social work of the spouse, the differences mentioned will be supported by the work giver.

That the wording of the third paragraph of article 17 produces an inverse selection against married domestic workers and/or children, since their recruitment becomes more onerous for the job giver, which affects the freedom of work and contract guaranteed in the National Constitution.

That, on the other hand, such a provision would modify the prevailing criterion established for the contribution of the Unified Social Security Contribution (CUSS), whose imposition on employers and workers does not vary in order to the family burdens of the latter.

That, in turn, we should not lose sight of the fact that in most cases we are faced with real service locations, without having in their respect a social security background that imposes such a burden on the owner.

That, therefore, it is necessary to observe the third paragraph of article 17 of the Bill registered under No. 26.063.

That this measure does not alter the spirit or unity of the draft Law sanctioned by the HONORABLE CONGRESS OF NATION.

That the NATIONAL EXECUTIVE POWER is entitled to dictate the present pursuant to article 80 of the NATIONAL CONSTITUTION.

Therefore,

THE PRESIDENT OF THE ARGENTINA NATION IN GENERAL AGREEMENT OF MINISTERS

RIGHT:

Article 1 . Note article 5 (b) of the Bill registered under No. 26.063. Art. 2o ". Note in the first paragraph of Article 8 of the Bill registered under No. 26.063 the phrase: "In cases where the presumption indicated in Article 5 (b) is not applicable." Art. 3o . Note the third paragraph of Article 17 of the Bill registered under No. 26.063. Art. 4o . With the salvedades set out in the previous articles, please fill in, promute and tengase by National Law the Bill registered under No. 26.063. Art. 5o Note the HONORABLE CONGRESS OF NATION. Art. 6th . Communicate, publish, give to the NATIONAL DIRECTION of the OFFICIAL REGISTRATION and archvese. . KIRCHNER. . Alberto A. Fernández. . Juan C. Nadalich. Aníbal D. Fernández. . Felisa J. Miceli. . Daniel F. Filmus. . Ginés M. González García. . Nilda C. Garré. . Carlos A. Tomada. . Jorge E. Taiana. . Alberto J. B. Iribarne.