Meet BéndiksenLaw Colombia’s New Head of Tax

Seeking to provide a more complete and comprehensive service to our clients, we are proud to announce that our founding partner, Jaime G. Béndiksen, will head the Tax Practice area of ​​our Colombia office. Throughout his more than 50-year professional career, Mr. Béndiksen has accumulated extensive experience in the tax law area, advising a wide variety of clients in Colombia, Mexico and the U.S. which is why we are confident that his appointment will allow us to further strengthen and consolidate our office in Colombia. For this reason, we present his resume below:

Education

Mr. Béndiksen graduated in 1970 from Universidad Nacional Autónoma de México (Mexico City), receiving an LLB, also received a Masters in Comparative Jurisprudence (diploma) from New York University in 1974 and a JD from ICFES in Colombia in 1982.

Jurisdictions

Admitted to practice in Mexico and Colombia (South America).

Practice

Practiced with the law firm of Baker & McKenzie from 1970 through 2011, elected international partner in 1977.  With this firm he practiced from 1978 through 1992 in Colombia.

Founding partner of BéndiksenLaw.

Practice Areas

Mr. Béndiksen has over 50 years of experience in Mexican and Colombian tax law in general, with emphasis in tax treaties, competent authority proceedings, international tax planning, supply-chain restructuring, oil exploration, production and services, taxation of software, wealth management, mergers and acquisitions, permanent establishments, cross-border transactions, transfer pricing, employee stock plans and value-added tax.  In tax litigation he has secured landmark decisions on complex tax issues, overturning previous tax court positions.

Public Service

Advisor to the Colombian Tax Administration (DIAN) in 2000-2001 to introduce transfer pricing in Colombia, illustrating the DIAN on this area of tax law and its benefits of the system, drafting the first statutory provisions, drafting the bill submitted to Congress and persuading Congress of the benefits to Colombia in approving the system.

Expert Witness

Has acted as an expert witness on Mexican tax law for the US Internal Revenue Service (IRS).

Also acted as expert witness on Mexican tax law in a US arbitration proceeding between two US multinational entities.

Coordinating Counsel for Multinational Clients

Mr. Bendiksen has extensive experience serving as coordinating counsel for multinational clients, first as Head of the Tax Practice Group at Baker & McKenzie Mexico, and, since 2011, at BéndiksenLaw.

Publications

Writes widely on domestic and international tax topics.  Among many other publications, Mr. Béndiksen:

  • Wrote the Colombia/Mexico national reports for the International Fiscal Association Annual Congresses in Amsterdam (1988), Delhi (1997) Mumbai (2014).
  • Has published several pieces in the Colombian Tax Law Institute Magazine (Revista del Instituto Colombiano de Derecho Tributario).
  • Has written two reports for the Colombian Tax Law Institute (Instituto Colombiano de Derecho Tributario) Annual Tax Law Conferences. 
  • Co-authored the section on Mexico in CCH’s “International Transfer Pricing Laws”. 
  • Directed and co-authored CCH’s “Mexican Tax Guide”. 
  • Was the editor of “Practical Mexican Tax Strategies” published bi-monthly by World Tax Executives, Inc./Thomson Reuters. 
  • Co-authored the Mexico country profile for the Global Tax Guide, published by BNA International.
  • He is a correspondent in Mexico for Tax Notes International.

Presentations

Frequent speaker at local and international fora, on domestic and international tax matters, including:

  • American Bar Association.
  • Asociación Nacional de Industriales (ANDI).
  • Bloomberg BNA.
  • Bogota Chamber of Commerce.
  • Calgary Oil.
  • Canadian Tax Foundation.
  • Colombian Tax Law Institute (Instituto Colombiano de Derecho Tributario).
  • Council for International Tax Education.
  • D. C. Bar.
  • Executive Enterprises Institute.
  • International Fiscal Association, Annual Congresses of Amsterdam (1988), Delhi (1997), Uruguay (2012).
  • Petroleum Equipment Suppliers Association.
  • The Society of Trust and Estate Practitioners (STEP).
  • Tax Executives Institute.
  • Universidad de los Andes.

Recognitions

  • Consistently listed in the Guide to the World’s Leading Tax Advisers, published by Euromoney Publications of London. 
  • Ranked regularly as a leading advisor on Mexican tax matters in the annual poll of 1000 corporate tax directors conducted by International Tax Review.
  • Named as one of the top tax lawyers in Latin America by Latin Lawyer.
  • Recognized as a leading individual on cross-border structuring matters by International Tax Review. 
  • Recognized as “Tax Advisor of the Year” by “Defensa Fiscal”, a specialized Mexican tax publication, in 2005.
  • Recognized regularly by Chambers & Partners in its Global Guide as one of the best tax lawyers in Mexico, dubbing him as “a phenomenal tax lawyer, especially in consulting and litigation”, adding “He is a leader in the field and ‘highly skilled and responsive’ according to clients”.   
  • Regularly listed by Who’s Who Legal, published by Law Business Research, Ltd.
  • Listed yearly as a recommended lawyer by PLC Which Lawyer?
  • Regularly ranked as a Top Tax Lawyer in Mexico in Chambers Latin America Guide.
  • Chambers and Partners top 5% of lawyers globally.

Memberships

  • Member of the International Fiscal Association (IFA), where he was President of the Colombia chapter. 
  • Member of the Precedents and Legislation Committee of the International Fiscal Association (IFA), Mexico Branch.
  • Member of the Transfer Pricing Committee of the International Fiscal Association (IFA), Mexico Branch.
  • Honorary member of the Colombian Institute of Tax Law (Instituto Colombiano de Derecho Tributario) since 1992.

Languages

Spanish, English, Italian

In case you need legal counsel on tax matters, do not hesitate to contact us.

FAQ: Teleworking, Working from Home and Remote Work

Currently, the hiring of workers who carry out their functions through information and communication technologies (“ICT”) has become popular. For this reason, the Colombian Ministry of Labor has regulated the different types of distance work agreements so that both employers and workers know their rights and comply with their obligations. Here we tell you what these types are and answer the most frequently asked questions about them: 

1. What does each of these types of distance labor agreements consist of?

  • Work-from-Home: This is an occasional, temporary and exceptional authorization that employers grant workers to perform their duties from home due to extraordinary circumstances that are expected to be overcome in time. It does not imply a modification or affectation of workers’ rights and guarantees or to the labor conditions agreed upon at the beginning of the labor relationship. This authorization may be granted for a maximum of six (6) months, unless the circumstances that gave rise to the authorization to work from home persist, in which case it will remain in force until such circumstances disappear.
  • Teleworking: Workers perform their functions using information and communication technologies (“ICT”) as support, so their physical presence at a specific workplace is not required. This type of agreements authorize three (3) types of teleworkers:
    • Autonomous: when workers use their own home or somewhere other than the place of business, previously agreed upon with their employers, and sporadically go to the company’s place of business.
    • Mobile: When workers relie on the use of mobile technological devices, but do not have a fixed workplace and occasionally go to the company.
    • Supplementary: Depending on the need for the service, workers work either from their house or from the company’s place of business.

  • Remote work: It is a form of performance of labor contracts in which ICTs or other similar means are used. That is, employers and workers do not interact physically since all stages of the contract are performed virtually. However, exceptional situations may be agreed upon in which the physical presence of workers in the workplace is required.

2. So how are they different?

The main difference is that work from home is the authorization granted by employers to workers to carry out their functions from home due to an extraordinary situation. Thus, it is a temporary authorization, so that once this extraordinary situation is overcome, workers must return to their place of work. On the other hand, remote work is completely virtual and there is never physical contact between employers and workers except in special circumstances. Finally, teleworking involves the provision of the service through technological means, but with the possibility that workers occasionally go to the workplace according to the company’s needs.

3. Must they be in writing?

Yes. For the authorization to work from home, a written notice by employers of the authorization given to workers is sufficient. That is, modification of the initial agreement or entering into a new one, is not required. However, this written notice must include certain information such as the situation that allows this authorization to be granted, the term of duration, the functions that workers must perform, among others. In the case of teleworking and remote work, it is necessary that employment contracts clearly indicate the chosen type of modality along with all conditions, obligations and rights that the parties will have. Thus, in the event that the initially agreed upon modality of work is to be changed, the original employment contracts must be modified. 

4. Is the right to disconnect recognized in all three types of agreements?

Yes, employers have the obligation to recognize workers’ right to disconnect from work in order to guarantee respect of their free time and breaks, so that workers can fully enjoy these spaces and reconcile personal and family life with work.

5. What is the digital connectivity aid?

It is a change in the destination of the legally mandated “transportation aid” for those workers who are temporarily enabled to work from home, in order to facilitate access to the connectivity services they require to continue performing their work from their residences. Thus, workers who earn up to two (2) legal monthly minimum wages (SMLMV, by its Spanish acronym) and who are entitled to the payment of “transportation aid”, will receive this payment as a digital connectivity aid during the time they provide their services under the authorization to work from home (article 10, Law 2088 of 2021).

6. Is it mandatory to recognize the digital connectivity aid in all three modalities of distance work?

No, as mentioned above, this aid should only be recognized for workers who: (i) earn up to two (2) SMLMV, (ii) are entitled to “transportation aid”, and (iii) are carrying out their functions under the temporary and transitory modality of work from home.

However, in the case of teleworking, it is possible to establish, by mutual agreement, a compensatory aid for the costs of public services such as Internet, landline and mobile telephony and energy. That is, workers and employers may agree on the recognition of this compensatory aid and its amount, as it is not mandatory. Similarly, in the case of remote workers, the parties are also free to agree on the payment of compensatory assistance, as it too is not mandatory. However, in the event that the aid is agreed upon, the amount may not be less than the value that has been established for the “transportation aid”.

7. Is it necessary for employers to provide workers with work items and tools?

Although employers may provide equipment and work tools suitable for the performance of the contracted functions, it is also possible to agree to workers’ use of their own equipment and tools. Additionally, the parties may agree on a compensatory fee for the use of these tools owned by workers, but it is NOT mandatory.

8. Must any process be carried out before the workers’ compensation administrators?

Yes. For any of the modalities it is necessary to notify the workers’ compensation administrators (ARL, by its Spanish acronym) of the chosen modality, the place where workers will carry out their functions, working hours and the type of risk. Likewise, in case there is any modification in this information, the ARL must also be informed.

9. Must workers be ordered to submit to occupational medical examinations?

Yes. Employers must order occupational medical exams when workers start working in the company, when they leave the company, after a medical leave and also periodically during the employment relationship, to identify workers’ health conditions. These evaluations may be conducted via telemedicine.

10. Is it necessary to have any special regulations in the workplace policy regarding these modalities?

No, the implementation of these modalities does not require an addition or modification to the workplace policies.

11. Must the Ministry of Labor be notified?

Only in the case of teleworking, since employers must inform the Ministry of Labor of the number of teleworkers that the company has, for which a digital form that the Ministry has established must be filled out.

For more information you can consult our entries on teleworking, work from home and remote work or you can contact us.

Reduction of Weekly Working Hours in Colombia

Through Law 2101 of 2021, the gradual reduction of the weekly working day in Colombia was ordered. This reduction, however, does not decrease or negatively affect workers’ salary and / or acquired rights. Thus, the maximum duration of the ordinary weekly working hours was reduced by six (6), from forty-eight (48) hours per week to forty-two (42). This law allows the employer to implement this reduction in the weekly working hours automatically, that is, to reduce all six (6) hours immediately. However, the law also authorizes employers to implement this reduction gradually, as follows:

DateNumber of Hours to ReduceLegal Maximum Working Hours
As of July 16, 2023One (1) hour47 hours per week
As of July 16, 2024One (1) hour46 hours per week
As of July 16, 2025Two (2) hours44 hours per week
As of July 16, 2026Two (2) hours42 hours per week

According to the above, as of July 16 of the current year, it will be mandatory for employers to modify the duration of the weekly working hours of their workers so that it does not exceed a total of forty-seven (47) hours per week. These hours may be distributed in five (5) or six (6) days a week, according to what is mutually agreed between employers and workers, and in all cases one (1) day of rest per week must be guaranteed. However, Law 2101 establishes the following exceptions:

1. Tasks that imply a high risk to workers health in accordance with the provisions of Decree 2090 of 2003, may be subject to a different maximum weekly working hours if the government decides so. However, to date there is no special regulation in this regard, so at present they must be subject to the maximum ordinary weekly working hours of forty-two (42);

2. Adolescents over the age of fifteen (15) and under seventeen (17) years who have authorization to work, may only perform their work during a maximum daytime shift of six (6) hours a day and thirty hours (30) a week and until 6:00 p.m.;

3. Adolescents of seventeen (17) years of age may only work a maximum of eight (8) hours a day and forty (40) hours a week and until 8:00 p.m.;

4. In case of successive work shifts that allow the company to function without interruption every day of the week, the shifts may not exceed six (6) hours per day and thirty-six (36) hours per week;

5. In case of flexible daily shifts, the forty-two (42) hours may be distributed in a maximum of six (6) days a week, with a minimum of four (4) continuous hours and a maximum of nine (9) hours per day without any surcharge for supplementary work.

In case you have doubts about this matter, do not hesitate to contact us.