Social Security Resources Laws - Interpretation And Application - Updated Text Of The Rule

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

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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

See Background

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; (Section b) observed by art. 1 Decree No. 1515/2005 B.O. 9/12/2009)

(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 referred to in article 5 (b) is not applicable, individuals or companies that hire cooperatives will be jointly responsible for the obligations that, for the Unique Social Security System, have been accrued by the partners of such cooperatives during the periods covered by the respective procurement, up to the amount invoiced by the cooperative. . (Frase "In cases where the presumption indicated in Article 5 (b) is not applicable" noted by Article 2(2) of the Decree No. 1515/2005 B.O. 9/12/2009)

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 25.239, in respect of the benefits of the National Health Insurance System, established by Laws 23.660 and 23.661, and their respective amendments, shall be subject to the provisions of Article 42 (c) of the Annex to Law 24.977, its amendments and supplements )Régientes

In order to access the above-mentioned benefits, domestic workers must complete the contributions actually entered in accordance with article 3 of the above-mentioned special regime, to:

(a) A contribution of forty-six pesos with seventy-five cents ($46.75) con to the National Health Insurance System established by Laws 23.660 and 23.661 and their respective modifications y and, if applicable,

(b) An additional contribution of thirty-nine pesos ($ 39), to the taxpayer’s option for the National Social Works Regime established by Law 23.660 and its modifications cada, for the incorporation of each member of their primary family group.

Ten per cent (10 per cent) of the contributions referred to in subparagraphs (a) and (b) above shall be allocated to the Redeployment Solidarity Fund established by article 22 of Law 23,661 and its amendments.

Please provide the Ministries of Economics and Public Finance and Health, through joint resolution, with the mechanisms for adjusting the quotes set out in those paragraphs.

(Article replaced by Article 2 of the Act No. 26.565 B.O. 21/12/2009. Monitoring: from publication in the Official Gazette) (Note Infoleg: by art. 1st of the Joint Resolution No. 883 and 2293/2010 of the Ministry of Economy and Public Finance and Ministry of Health, respectively, B.O. 30/12/2010 determines the value of the contributions of the Special Social Security Regime for Employees of the Dometic Service provided for in this article, in the amount of SESENTA PESOS ($ 60) resulting from the calculation methodology provided by the SESENTA SUR PROVISIONS, based on the weighted average 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.

Background - Article 17, third paragraph, observed by art. 1 Decree No. 1515/2005 B.O. 9/12/2009; - Article 17,Note Infoleg: by art. 1 Decree No. 233/2006 B.O. 7/3/2006 states that the provisions of this article shall take effect from the monthly period of February 2006, inclusive.