DECREE 376 OF 2021
In compliance with the ruling of Judgment C-258 of 2020, which repeals Decree 558 of 2020 of April 15, 2020, the Ministry of Labor issued Decree 376 of 2021 on April 9, 2021, which establishes and regulates the payment of contributions to the General Pension System for the periods corresponding to the months of April and May 2020.
- Obligated parties and periods. Decree 376 of 2021 establishes that those obligated to make the payment of contributions to the General Pension System for the months of April and May 2020 are employers and workers, both dependent and independent. In the case of dependent workers, the payment will be divided between the employer, who is responsible for 75% of the contribution, and the dependent worker, who is responsible for the remaining 25%. For independent workers, they must assume the payment of 100% of the contribution. The payment may be made in months without becoming partial payments, that is, the payment of the contribution per worker must be made in full for each month.
The deadline to make the payment of these contributions is 36 months from June 1, 2021; consequently, payments made after the expiration of this period will generate default interest under Article 23 of Law 100 of 1993. - Labor obligations. The employer is authorized to deduct from the worker's salary without the worker's authorization; however, the employer has the obligation to inform the worker. In the event of termination of employment during the validity of this decree, the employer may make the deduction from the settlement of the employment contract equivalent to the 25% corresponding to the worker. When the worker has been terminated from employment, the employer must make the payment of the contributions for the months of April and May, only with the 75% corresponding to the employer.
Now, the worker who was terminated from the company may make the payment of 100% of the outstanding contributions for the months of April and May and seek reimbursement from the company, in order to recover the 75% of the contribution corresponding to the employer, or may make only the payment of the 25% corresponding to the worker, with the Pension Fund being responsible for assuming or recovering the 75% corresponding to the employer. - Pensioners and pre-pensioners. In the case of individuals who were pensioned under Decree 558 of 2020, the Pension Fund will recognize the weeks of the months of April and May 2020 in their entirety, and this will not be grounds for suspension of the already recognized right.
For individuals who are currently processing the pension recognition or are about to meet the requirements for it, the weeks contributed corresponding to the months of April and May will not be counted for the eight (8) weeks corresponding to this period until the full percentage payment to the General Pension System is made; such payments must be made before meeting all the requirements to access pension recognition. - Tax benefits. Once the outstanding payment to the General Pension System for the months of April and May 2020 is made, the amount paid may be deducted from the income tax and complementary tax of the taxable year in which the payment is made; however, the other requirements demanded in tax matters must be met.
- Suggestions: Make the payment on a priority basis to individuals who are about to meet the requirements to access economic benefits for old age or who are processing the application for such right. Make the payments of the contributions referred to individuals who are close to the expiration of the employment contract and make the payroll deduction. Make the payment of such contributions by groups of individuals in such a way that the payment of the period to be contributed is made in full and not partially.
Author: Nathaly Muñoz P. – Consulting Attorney