ANTINOMIA NORMATIVA RESPECTO A LA PARTICIPACIÓN DE UTILIDADES DE LOS TRABAJADORES EN ECUADOR

Abstract

Employee profit sharing is a legal right and benefit regulated in its labor aspects by Article 108 of the Código del Trabajo, which in its second paragraph clearly states that such participation "shall not be considered as personal income and is not subject to any type of tax." However, these types of exemptions, in accordance with the provisions of the first paragraph of Article 9 of the Ley de Régimen Tributario Interno, are "exclusively" regulated in said article of the same legal body, as expressly stated when it cites: "For the purposes of determining and settling income tax, the following income is exclusively exempt." Employee profit sharing is a type of employee income that is not listed among the exemptions in Article 9 mentioned above, which affects legal certainty and the right of workers to not have this income, which is expressly exempt in labor matters, diminished. This regulatory discrepancy is exacerbated and complicated when it cannot be resolved by applying the principle of hierarchical norms when interpreting both legal provisions, given that they are of the same level and because it is debatable whether, under the principle of specialty, the tax law or the labor law, where the effects and harm occur should be applied. This makes the present work indispensable. It will analyze the regulatory discrepancy, the necessary correct interpretation, and the interpretive exercise from a rights violation perspective. Through strict application of the principle of “in dubio pro operario”, we will conclude that profit sharing should be exempt from any tax, in direct contradiction with the various circulars and rulings issued by the Servicio de Rentas Internas for revenue collection purposes.