The importance of MYPES in Peru

OMC abogados -  For Peru, Micro and Small Enterprises (MYPES) play an important role in the country’s economic activity, since they currently represent a large percentage of the Peruvian Gross Domestic Product (GDP). As an economic unit it can be constituted by a natural or legal person (company), whose purpose is to develop economic activities, such as the commercialization of goods, their production or the providing of services.
These companies are regulated in Peru by the Law N°28015, Law for the Promotion and Formalization of Micro and Small Companies, which establishes the total number of employees for each one of them, being from one (1) to ten (10) employees in the case of a micro company and from one (1) to fifty (50) employees for the small one; since they do not need many employees to provide their services, in the last years, they are one of the most used models by the people who wish to formalize or carry out any economic activity.

Therefore, according to the article number 4 of the aforementioned Law, the Peruvian State is in charge of promoting a favorable environment for the creation, formalization, development and competitiveness of the MYPES, through the National, Regional and Local Governments.

During the years in which the Law N°28015, has been in force, variations have been made in order to encourage more people or companies to opt for formalization, being approved the last legislative proposal in February of this year, by the Commission of Production, which would declare MYPES in emergency for a period of three years. This measure is a consequence of the losses in working capital and market that these companies have suffered during the pandemic, so this proposal will promote financing and liquidity, as well as promote productive development during and after the end of the State of Emergency, caused by COVID-19.

This legislative proposal seeks to make the formalization of MYPES, regarding registration and other procedures before entities of the Goverment, free of charge. Currently, the costs for registration are approximately S/.100 soles.

In addition, it will provide an amnesty for MYPES to regularize the payment of labor and social security obligations, regarding contributions to the Office of Previsional Normalization (ONP) and the Social Health Insurance (EsSalud), such amnesty includes the suspension of the payment of interest, fines or other administrative sanctions generated by the ONP, EsSalud and the Ministry of Labor. A special labor regime and a Social Pension System will also be created, where inspections will have a preventive nature. It is important to point out that labor fines currently range between S/.1 058 and S/.35 190 soles.

Likewise, if approved in the Plenary session of the Congress, this legislative proposal will establish a special tax regime, which will have a single monotribute tax, as well as the implementation of a simplified and automated annual tax declaration, in addition to the exemption from keeping accounting books, being the National Superintendence of Customs and Tax Administration (SUNAT) in charge of implementing a system that is in line with this.

Regarding the labor regime, the text also states that for MYPES, compliance with legal regulations regarding salaries and social benefits must be guaranteed, as well as the right to form unions, and regulate the rights and contracts celebrated since the entry into force of the law, specifying that previously celebrated contracts will continue under the same terms and conditions.

The employees of the MYPES will have a vacation period of 15 days for each year of full service, it is also proposed that the employees of the micro companies will be affiliated to the semi-contributory regime of EsSalud and employees of the small companies will be "regular affiliates".

On the other hand, a compulsory Social Pension System will be created for employees of micro-companies who are up to 40 of age and are included in the regulation. For workers over 40 of age, will be optional to be in this system. The monthly contribution will be 4% of the minimum living wage.

The approved proposal also contemplates the creation of a special labor regime, which would contemplate the protection of employees against unjustified dismissal, the right to a complementary risk work insurance and life insurance (both would be covered by the employer), collective rights, profit sharing and to receive a Compensation for Time for Service equivalent to 15 daily remunerations per year, besides two annual bonuses, each one equivalent to half a remuneration.

Regarding inspections, the administrative entities in charge of this matter are the SUANT (National Superintendence of Customs and Tax Administration), which must apply preventive measures for micro companies that commit a tax infraction for the first time, and the SUNAFIL (Superintendence of national Labor Control) who will be the one to apply the educational measures in case of labor infraction.

The aforementioned programs are intended to reduce infractions and the imposition of sanctions that such companies may receive.

For example, a MYPES of 10 workers that incurs in a minor labor infraction such as not delivering the pay slips on time, with this legislative proposal would not have to pay the fine of S/.1,012 soles, but rather, since it is the first time, SUNAFIL would only remind them of the term in which they must deliver the pay slips.

Regarding the labor regime, the text also states that MYPES must guarantee compliance with legal regulations regarding salaries and social benefits of workers, as well as the right to form unions, and regulate the rights and contracts celebrated since the entry into force of the law, specifying that previously celebrated contracts will continue under the same terms and conditions.

Workers of MYPES will have a vacation period of 15 days for each year of full service. It is also proposed that workers of micro companies will be affiliated to the semi-contributory regime of EsSalud and employees of small companies will be "regular affiliates".

On the other hand, a mandatory Social Pension System will be created for workers of micro-companies who are up to 40 years of age and are included in the regulation. For workers over 40 years of age, it will be optional to be in this system. The monthly contribution will be 4% of the minimum living wage (RMV).

The approved proposal also includes the creation of a special labor regime, which would contemplate the protection of workers against unjustified dismissal, the right to have a complementary risk work insurance and also a life insurance (both would be paid by the employer), collective rights, participation in the distribution of profits and to receive a Compensation for Time of Services (CTS) equivalent to 15 daily remunerations per year, besides two annual bonuses, each one equivalent to half a remuneration.

Regarding inspections, the entities in charge of this task are SUNAT (National Superintendence of Customs and Administration), which must apply preventive measures for micro-companies that commit a tax violation for the first time, and SUNAFIL (National Superintendence of Labor Inspection), which will apply educational measures in the case of a labor violation.

The purpose of these programs is to reduce infractions and the imposition of sanctions that such companies may receive.

For example, a MYPES of 10 workers that incurs in a minor labor infraction such as not delivering the pay slips on time, with this legislative proposal would not have to pay the fine of S/.1,012 soles, but rather, since it is the first time, SUNAFIL would only remind them of the term in which they must deliver the pay slips.

Finally, MYPES provide employment to almost 80% of the population, so it is important that they have a special regime as stated in the legislative proposal, thus increasing the number of them in the Peruvian territory, which would imply an increase in economic activities, thus generating a higher income for the Peruvians who depend on them.

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