Regulation of the IBC of self-employed workers

The obligation of self-employed workers to make Social Security contributions, as well as the rules that support such obligation, continue to be a subject of debate in the country. The above, understanding that the work carried out by the Ugpp, in the last five years, has led to incalculable penalties for omission, inaccuracy and delay in the payment of such contributions by this type of workers.

In this regard, it should be recalled that one of the most relevant changes in this matter occurred by virtue of the unconstitutionality lawsuit filed by the undersigned and María del Mar Arciniegas, against Article 135 of the National Development Plan 2014 - 2018, which was intended to help overcome the uncertainty surrounding the Basic Contribution Income (IBC) applicable to those who receive income without having signed a service contract, such as, for example, capital rentiers and self-employed workers.

As a result of this lawsuit, the Constitutional Court, by means of Ruling C-219 of May 22 of this year, declared that the accused regulation was not valid, not only because it violated the principle of Unity of Subject Matter, but also because the IBC of this type of workers, due to its permanent nature, must be included in an ordinary law that specifically regulates this issue.

As a consequence of its decision, the Court granted Congress two years to legislate and approve a law regulating the IBC of independent workers without a service contract. In view of this situation, the representative to the House of Representatives for Antioquia, Jhon Jairo Berrío López, took the initiative to file this past September 4, a bill whose main objectives, in addition to repealing Article 244 of Law 1955 of 2019 -current National Development Plan-, to regulate: (i) the IBC of self-employed workers for the payment of Social Security contributions, proposing that this corresponds to 40% calculated on the contributor's profit, and not on the total of their income, as it is currently regulated; (ii) the exclusion of income from occasional gains, sale of fixed assets, indemnifications, income from dividends and participations, leases, interests and financial yields, among others; (iii) modification of the sanctioning power of the Ugpp and the amount of such sanctions; and (iv) creation of new tax benefits in the course of the Ugpp's auditing processes or judicial instances, among others.

In addition to what is already included in the project, it is considered important to create a broad definition of who is considered to be an independent worker and when an income is considered to be effectively received. Likewise, the obligation of the Ugpp to create income presumption schemes for the different economic sectors of the country should be replicated, as it happened for the road freight transportation sector through Resolution 1400 of 2019.

Additionally, it is important that Congress recognizes the differences that exist between the different types of independent workers, as well as regulates that the minimum IBC of this group of contributors must be 1 Smmlv, as long as it corresponds to 40% of the profits obtained in the respective month.