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Stemming from the recent reforms to the Federal Labor Law, Mexico's Department of Labor and Social Welfare ("STPS") will commence a campaign to regulate the annual visits made to employers for the purpose of verifying that operations comply with the guidelines on general labor, safety and hygiene conditions in the workplace. Such visits are known as "inspection visits" and are performed by federal or local labor inspectors, according to their jurisdiction based on the corporate purposes and activities of the company. Companies must allow this inspection to take place pursuant to the terms of Article 132 of the Federal Labor Law. Upon conducting their visits, labor inspectors must provide their official identification credentials issued by the STPS, for federal inspectors, or by the Department of Labor and Social Welfare, for local inspectors. The inspectors must prepare a report on the facts as a result of their inspection visit and on the results of their review of the documentation and facilities of the companies. If, as a result of such report, the authorities determine that a violation of any of the applicable legal provisions stemming from the labor law exists, the agency will proceed to impose a fine for each violation identified. In accordance with the new labor reforms mentioned above, such fines can range from between 50 and 5000 times the daily minimum salary applicable in the Federal District for each employee who is affected, which can significantly impact the finances of the company. Further, should the respective violation or violations persist, this could result in the total or partial closure of the company. Given all of this, in order for companies to be in compliance with applicable rules, it is necessary for companies to have proper documentation, including, without limitation: (i) receipts for payment of salaries, benefits, bonuses, commissions, Christmas bonuses, vacation, vacation bonuses, profit sharing distributions, etc.; (ii) timesheets or cards or any other type of work attendance verification and verification of overtime; (iii) individual employment agreements; (iv) outsourcing agreements with contractors, agents and service providers; (v) interior work regulations; (vi) documentation regarding employment of women; (vii) documentation regarding employment of minors; (viii) mixed commissions; (ix) documentation related to compliance with profit sharing distributions; (x) documentation relative to compliance with education, training and productivity; (xi) detailed documentation showing compliance with safety and hygiene matters and the corresponding official Mexican norms on labor; (xii) collective bargaining agreement and compliance with such; (xiii) compliance with the obligations for registration and payment before the Mexican Institute of Social Security ("IMSS"), the National Worker Housing Fund ("INFONAVIT") and the National Fund for Worker Consumption ("FONACOT"); (xiv) general seniority chart; and (xv) documents showing the company's promotion of cultural and athletic activities.
The various civil codes in Mexico establish two principal marital property systems: community property and separate property. In a few states, such as Jalisco and Sonora, a third regime known as the legal property (sociedad legal) system exists, which essentially consists of a broader community property system. When a spouse under a community property system purchases real property, there is a presumption that such real property is held as community property, and such is deemed to have been acquired by both spouses in equal shares, unless a legal exception applies. Consequently, the sale of such real property would require the consent of both spouses. Historically, this requirement has led to conflicts and legal uncertainty when title to real property is recorded in favor of only one spouse and such spouse sells to a third party without the other spouse's consent. In this case, the spouse who did not provide his/her consent could nullify such purchase and sale transaction, even if the deed contained no reference to the marital property regime or no reference is made as to such in the corresponding inscription before the Public Registry of Property. A principle exists in Mexican law which provides protection for good faith purchasers of real property. This means that a good faith purchaser who has acquired title to real property from a seller who is reflected as the record owner in the Public Registry of Property has protection against third party claims to such real property. Notwithstanding, various contradicting judicial interpretations concerning a spouse's right to contest his/her spousal rights to marital property (such as community property rights) existed that created a degree of uncertainty in this area. Some courts have held that a good faith purchaser prevails. By contrast, other courts have held that the spouse's marital rights to real property take precedence over those of the good faith purchaser, and have upheld such community or marital property rights, despite the fact that the other spouse is listed as the sole record owner of the property and that no registration is made as to their marital property regime with respect to the real property. In January 2013, Mexico's Supreme Court of Justice resolved this controversy and the contradictory legal rulings by holding that registration of community property in the Public Registry of Property is a necessary requirement in order to enforce such against third parties. This decision by the Supreme Court of Justice provides legal certainty to good faith purchasers of real estate.
On January 17, 2013, the Mexican Department of the Economy published in the Official Journal of the Federation guidelines governing privacy notices ("Guidelines") given in Mexico. As provided for under Mexican law, the privacy notice ("Privacy Notice") fulfills the requirements of the "information principle," one of the principles underlying protection of personal information, as protected and regulated by the Federal Personal Information Protection Act (Ley Federal de Protección de Datos Personales en Posesión de los Particulares) (the "Law"). The Guidelines published by the Department of the Economy aim to establish the content and scope of all formal Privacy Notices, in accordance with the terms of the Law and its regulations, and will be mandatory in Mexico for all private individuals and entities that handle personal information under the terms of the Law. The Guidelines include, among other provisions: i) the formal elements of the Privacy Notice; ii) the applicable time for providing the Privacy Notice; iii) a chapter distinguishing the different variations (complete, simplified and short forms) of Privacy Notices; and iv) the content of Privacy Notices. It is important to note that individuals or entities handling personal information should review the provisions of the Law, its regulations and the Guidelines with care in order to ensure compliance with the applicable obligations.
Mexico's annual Federal Fiscal Revenue Law (Ley de Ingresos de la Federación) and Federal Expense Budget (Presupuesto de Egresos de la Federación), by their nature, are the instruments that determine the guidelines for fiscal revenue (taxes that can be collected each fiscal year) and public spending. Nevertheless, in recent years, the Federal Fiscal Revenue Law has included other concepts and aspects, such as the tax regime applicable to Petróleos Mexicanos (PEMEX), rates applicable to surcharges for late tax payments and preferential tax treatment regimes. For fiscal year 2013, the Federal Fiscal Revenue Law includes a tax amnesty program for certain unpaid tax amounts that may or may not be pending resolution in administrative proceedings before Mexican tax authorities, including those currently pending and awaiting the issuance of a judgment by a competent court. This new program will remain in effect only until May 31, 2013 and is known as the "Get Current" ("Ponte al Corriente") program. Such program is clearly an effort by Mexico's new federal administration to clear up tax liabilities and to collect potential revenue with respect to tax liabilities that are outstanding and have not been paid by taxpayers. The program establishes that taxes and surcharges from fiscal years 2006 or before will receive 80% forgiveness or elimination, and a 100% reduction or elimination of surcharges and fines. In certain cases where taxpayers were also subject to audits by the Tax Administration Service (Servicio de Administración Tributaria) for fiscal years 2009, 2010 and 2011, and no adverse findings resulted with respect to the taxpayer's tax situation, the forgiveness or reduction of unpaid taxes for fiscal year 2006 and before will be 100% of the tax obligation. In the case of unpaid taxes for fiscal years 2007 through 2012, there is no forgiveness as to the amount of taxes due or surcharges; however, there is a 100% reduction as to surcharges and fines. For taxes due for fiscal year 2013, forgiveness will apply only to fines, up to 60%, as long as the taxes due are paid within a term of 30 days as of the respective notice of payment. A distinct feature of this forgiveness or reduction of taxes and fees procedure is that it can be done via Internet, since the percentage of elimination or reduction of tax liability is fixed, removing any exercise of discretion by tax authorities. Miscellaneous tax rules supplementing the instructions for the respective administrative proceeding have just been issued. Taxpayers must have a valid advanced electronic signature (FIEL) to participate. A noteworthy characteristic of this tax amnesty program is that prior to applying for a tax benefit, the taxpayer must withdraw all the defenses that have been filed and are pending resolution, whether such be administrative proceedings or tax lawsuits. When the tax authorities have granted the ability to make payments in installments for taxes due, the "Get Current" program will apply only as to the amounts pending payment. Tax obligations that have already been paid are not covered by this program and the taxpayer may not request a refund for payments already made. As a final point, tax obligations arising from criminal liability are also excluded by this program. As seen above, this is a clear program where the tax authorities have no discretion. This program should be well received, as it will serve to resolve tax controversies in all amounts given that its application is not limited to a certain amount of liability. With any luck, this program will be renewed prior to May 31, 2013.
