The social security contribution is not charged on the constitutional one-third salary bonus and job permanence bonus of civil servants. The reason is that these sums have an indemnity quality and therefore do not compose the actual remuneration of workers for the rendered service, nor are they reflected on the special retirement they earn.
This conclusion, however, has not been consolidated in the Higher Courts. The Superior Court of Justice has a number of precedents, but the Federal Supreme Court, on the other hand, is still analyzing the subject under the General Repercussion procedure, and tends to view against the charge of this contribution.
This situation allows taxpayers to discuss in court the right of refund of amounts that were withheld from their salaries and allowances. For this reason, those interested in recovering said amounts may file lawsuits to recover taxes that were unduly collected, as explained below.
The social security contribution is subject to the National Tax Code system, which provides for the refund of payments made over the last 60 months, provided that they were made spontaneously, on account of the taxpayer being subject to a completely illegal and unconstitutional rule. Civil servants whose social security contribution on the one-third salary bonus and job permanence bonus was withheld are entitled to recover what they unduly paid and, likewise, prevent any new withholding from their salaries, as of the favorable decision rendered by the court.
It is of note that the Federal Supreme Court has applied the prospective effect system of their decisions to trials of disputes of substantial amounts and has indicated it will do so in this case, for obvious reasons.
With this technique, the Judiciary, after recognizing the illegality or unconstitutionality of the collection –despite preventing future occurrences, releasing the taxpayer– might not allow the refund of what has been unduly collected, unless the taxpayer has already resorted to the Judiciary, as has the Supreme Court also already affirmed.
In other words, on account of the economic, political, and social consequences of the decision, the five-year refund sought in actions filed after the publication of the appellate decision that determined the prospective effect can be dismissed.
Here is the reason for the mentioned term, since, as a precaution, in order for taxpayers to receive the refund, they must file the action before the publication of the Supreme Court’s decision on such matters.
Therefore, in view of the strong arguments and existing case law, it is advisable to file an action (an individual or a class action) in order to recover what was unduly charged –and had to be paid– on said revenues, further preventing the contribution from being required.
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