The unconstitutionality of the IBC for independents

An action of unconstitutionality is currently pending before the Constitutional Court (file D-12345) against Article 135 of Law 1753 of 2015 "whereby the National Development Plan 2014-2018 is issued".

This public action, whose plaintiffs are María del Mar Arciniegas and the undersigned, has just received the endorsement of the Office of the Attorney General of the Nation, who also asks the Court to declare the unconstitutionality of said provision.

As it is known, through the law under attack, the Congress of the Republic established the contribution base income regime ("IBC") of the self-employed, establishing that those self-employed workers on their own account and the self-employed with a contract other than the provision of services who receive a monthly income higher than one SMLMV, will contribute monthly in arrears to the Integral Social Security System on a minimum contribution base income of 40% of the monthly value of their income, without including the value of VAT and after deducting the necessary expenses incurred, provided that they comply with the conditions of article 107 of the Tax Statute.

Likewise, when these self-employed persons receive income simultaneously from the execution of several activities or contracts, the corresponding contributions shall be made for each of the income received.

The charge of unconstitutionality consists in the fact that the aforementioned article, being an integral part of a Development Plan law, violates the principle of unity of matter enshrined in Article 158 of the Political Constitution, according to which "all bills must refer to the same subject matter and provisions or amendments that are not related to it shall be inadmissible".

Likewise, with respect to Article 339 of the Constitution (content of the Development Plan), it is considered that Article 135 of Law 1753/2015 "does not have an instrumental nature, nor is it directly related to the objectives established in the development plan" since "(...) there are no objectives, plans or strategies incorporated in the general part of the National Development Plan that can be related to the judged provision".

In its concept of rigor, the Public Ministry, prior to requesting the Court to declare the unconstitutionality of this norm, established that "(...) it is evident that the provision sub examine (article 135 of Law 1753/2015), as argued by the plaintiffs, intends to fill a normative void since it deals with regulating the IBC for self-employed independent workers (...) whose regulation was not provided for in article 18 of Law 1122/2017 which was limited to regulating the IBC of independent workers and contractors for the provision of services. (...) The Public Prosecutor's Office concludes that it is not an instrumental rule of budget execution to achieve the attainment of the pillars of the plan, given that the regulation of the IBC (...) does not constitute an instrument of good governance (...)".

It is of great importance that both professionals practicing or advising in areas related to this regulation (lawyers and accountants), as well as study centers whose purpose is to study this type of law, let the Constitutional Court know their position on the matter, since this is a unique opportunity to correct the regulatory system of social security in Colombia.