Effects of the Tax Obligations Regulation Regime in customs matters

Through Law 27.743 (BO 8.07.2024), the National Government established fiscal measures, including the Exceptional Regime for the Regulation of Tax, Customs and Social Security Obligations (Title I), which was regulated by Decree No. 608 (BO 12.07.2024). 

In this regard, it is worth clarifying that the Federal Public Revenue Administration (AFIP) is the body empowered to dictate the necessary regulatory and complementary standards to carry out its execution. Therefore, although the aforementioned regime is in force, it will take effect once the respective regulations come into force.

Then Customs News reviews the topics of Law 27.743, the provisions of the Exceptional Regularization Regime of Tax, Customs and Social Security Obligations, the five benefits, the two clarifications and Decree No. 608/2024.

Topics of Law 27.743

• TITLE I: Exceptional Regularization Regime of Tax, Customs and Social Security Obligations (Arts. 1 to 17).
• TITLE II: Asset Regularization Regime (Arts. 18 to 44)
• TITLE III: Tax on Personal Property (Arts. 45 to 66)
• TITLE IV: Tax on the Transfer of Real Estate of Natural Persons and Undivided Estates (Articles 67) – Title VII (articles 7 to 18) of Law 23.905 is hereby repealed as of the publication of this law in the Official Gazette.
• TITLE V: Income Tax (Arts. 68 to 84)
• TITLE VI: Simplified Regime for Small Taxpayers (Arts. 85 to 97)
• TITLE VII: Tax Transparency Regime for Consumers (Arts. 98 to 101)
• TITLE VIII: Other Fiscal Measures (Arts. 102 to 104)

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Exceptional Regime for the Regularization of Customs Tax Obligations

protect

All obligations as of 31/03/2024 (inclusive).

Deadline for application

150 calendar days from the entry into force of the regulations that must be issued by the AFIP.

Status of obligations

a)In the course of administrative discussion.

b)Under review before the National Tax Court.

c)Under review by the Judiciary.

d)Faced with a tax criminal or economic criminal complaint.

e)Those created by the effect of Law 27.605

f)Those corresponding to subjects with the obligation to withhold and not having accredited to AFIP -once such obligation has expired- 

g) Payment facility plans for which the corresponding expiration has or has not occurred on that date.

h) Any tax obligation that is not expressly excluded in article 4 of this law.

i) Fines for violations provided for in Law 22.415 (Customs Code) and its amendments, which are not determined based on import or export taxes, except for the violation of minor smuggling.

Excluded

Article 4 of the law expressly establishes those obligations that are not covered by this regime. In terms of customs matters, the following can be mentioned: 

1.-Taxes and/or fines arising as a result of violations of article 488, Baggage Regime of the Customs Code, law 22.415 and its amendments;

2.- Interest -compensatory and/or punitive-, fines and other accessories related to the preceding concepts;

3.- Those declared bankrupt, for whom the continuity of the operation has not been arranged, in accordance with the provisions of laws 24.522 and its amendments or 25.284 and its amendments, while the effects of said declaration last;

4.- Those convicted - with a sentence confirmed in the second instance - for any of the crimes provided for in laws 22.415 (Customs Code) and its amendments, 23.771 and/or 24.769 and its amendments and/or in title IX of law 27.430 and its amendments (Tax Criminal Regime), prior to the date of entry into force of this regime;

5.- Legal entities in which, as appropriate, their partners, administrators, directors, trustees, members of the supervisory board, counselors or those who hold equivalent positions in them, have been convicted - with the conviction confirmed in the second instance - based on laws 22.415 (Customs Code) and its amendments, 23.771 and/or 24.769 and its amendments and/or title IX of law 27.430 and its amendments (Main Tax Regime).

Benefits  

1.Benefits of extinction of causes and/or complaints 

1.1. Customs/tax criminal cases:

• Suspension: Of ongoing tax, customs and social security criminal actions and the interruption of the course of the criminal prescription, even when the complaint has not been made. At any stage of the process and to the extent that there is no final judgment.

• Extinction: When the debt is fully cancelled - whether in cash or through a payment plan - as long as there is no final judgment.

• Clarification: Criminal action will also be extinguished by law with respect to those obligations that have been cancelled prior to the date of entry into force of this regime to the extent that there is no final judgment on said date, and the AFIP will be exempt from filing a criminal complaint when the main obligations have been cancelled prior to the date of entry into force of this regime.

1.2.Customs violations (fines determined by taxes)

With respect to customs violations -provided for in Law 22.415 (Customs Code)- they are extinguished against full payment -in cash or through a payment plan- of import or export taxes -excluding payments on account and/or collections whose collection is the responsibility of the customs service- if they are fines whose amount is determined based on such taxes. The record will not be registered. This will be applicable to the extent that there is no final judgment on the date of acceptance of the regime.

1.3. Customs violations (fines not determined based on import/export taxes)

Firstly, the minor smuggling offence is excluded; the cancellation of the minimum fine established for those offences will result in the extinction of the customs criminal action and the precedent will not be registered, as long as there is no final judgment on the date of acceptance of this regime.

Here it can be seen that paying the minimum fine extinguishes the fine and does not generate a criminal record. Although this is achieved in the case of customs infringements, this must always be done within the first 10 days of having been notified of the hearing. Here, the benefit of paying the minimum fine and not having a criminal record is extended -according to this regime- to the entire process at any stage.  

• Comments
  

1.-For these benefits, only the payment methods established in the regime are accepted.  

2.- The expiration of the payment plan implies the resumption of criminal action or enables filing a complaint, depending on the case. 

3.- The prescription period will begin to run again.

1.4. Formal violations

• Compliance with the obligation: The benefit of exemption from fines and other sanctions corresponding to formal infractions committed until March 31, 2024, inclusive, that are not final or paid, will operate when, prior to the date on which the deadline for compliance with this regime ends, the respective formal obligation has been or is fulfilled.
• Impossibility of compliance:When the formal duty violated is not, by its nature, capable of being fulfilled after the commission of the infraction, the sanction will be automatically waived, provided that the violation was committed prior to March 31, 2024, inclusive.
• Substantial obligation: Fines and other penalties corresponding to substantial obligations accrued up to and including March 31, 2024, shall be automatically waived, provided that they are not final and the principal obligation has been paid by that date. This penalty waiver benefit is not subject to compliance with any condition or requirement other than payment of the substantial obligation by March 31, 2024, inclusive, and that it is a fine or penalty that is not final or paid by that date.
• additional effects:

1. It will not be considered that there is a repetition of infractions when more than one infraction of the same nature has been committed, without there being a final resolution or conviction for any of them at the time of the new commission, and the taxpayer or responsible party adheres to this regime;

2. The exemption for the Federal Public Revenue Administration from initiating the corresponding administrative summary, with respect to the fines or sanctions that are waived if, on the date of entry into force of this regime, it has not been initiated.

3. The benefits established in this article are not applicable to the obligations and subjects identified in article 4 of this law, that is, those subjects excluded from this regime.

2. Benefits according to the payment method

In these cases -mentioned above- (responding to subsections a), b), c), d) and e) of the first paragraph of article 6°), one hundred percent (100%) of the fines applied will be forgiven. Said forgiveness will also apply to the case contemplated in the second paragraph of article 6° of this law. (Cf. Art. 7).

3. Benefits of entering the plan depending on the type of subject

In order to join the system through easy payment in installments, differences are established in percentages to be paid initially and then installments, depending on the subject.

4.Benefit of forgiveness of compensatory and/or punitive interest on tax obligations

• Fiscal obligations: All compensatory and/or punitive interest corresponding to tax obligations (including ordinary and/or extraordinary advances or payments on account) cancelled before March 31, 2024, inclusive, will be automatically forgiven. (This forgiveness benefit is not subject to compliance with any condition or requirement other than having made the payment of the tax obligation prior to the aforementioned date).
• Payment plans: This forgiveness includes compensatory and punitive interest that has been incorporated into payment facility plans related to ordinary and/or extraordinary advances or payments on account that have been duly cancelled before March 31, 2024, inclusive.
• Comments:

1. This forgiveness benefit also applies when ordinary and/or extraordinary advances or payments on account ceased or are no longer payable, respectively, by virtue of the submission of tax returns that have been formalized prior to the entry into force of this regime, or by the corrective tax returns that must be submitted by virtue of the regularization established in this title.

2. This type of benefit does not cover subjects excluded from this regime, as detailed in article 4 of the law.

5. Benefit of fee reduction and filing of the process

• Contract work: The fees that may be applicable, due to the ongoing tax procedure, whether before the National Tax Court, Administrative Litigation -Judicial Branch-, Tax Execution, corresponding to debts included in this regime, will be reduced by 50%, if the taxpayer's adherence to the regime is carried out within the first 90 calendar days from the date of entry into force of the regulations issued by the AFIP. 

• Process file: In the case of debts in judicial execution, with the adherence to the regime proven in the proceedings, the judicial resolution formalizing the submission to the tax claim being final and once the debt has been fully regularized in accordance with the provisions of this regime, the AFIP may request the judge to file the proceedings.

• Continuation of the process: If the application for membership is cancelled, or the rejection of the payment plan is declared due to failure to comply with the conditions set out in this title, the AFIP will continue with the actions aimed at collecting the debt in question, in accordance with current regulations. If the payment plan expires, it will initiate a new execution for the outstanding balance of the aforementioned plan.

clarifications 

1. Clarifications on the accession to the tax debt benefit 

• Not repeatable and not eligible for reimbursement:Amounts that, prior to March 31, 2024, inclusive, have been entered as compensatory and/or punitive interest and fines, as well as interest, for the obligations included in this regime are not subject to refund or repetition.
• Responsible for solidarity:Whether or not a claim for tax, customs (social security) obligations corresponding to the principal debtor has been made against them, as jointly liable parties, they may adhere to this regime. (In such a case and because it is an independent presentation from the one that could be made with respect to their own debt, the principal debtor must be identified and the obligation to present sworn declarations or liquidations determining the obligations to be regularized when they have not been presented by the principal debtor or the obligation to present corrective sworn declarations will not apply).

• Exchange rate:Adherence to this regime for customs tax obligations implies the novation of these obligations and their conversion to Argentine currency at the buyer exchange rate according to the quote of the Banco de la Nación Argentina on the day prior to the date of acceptance of the regime.

• Promotional regimes and benefits: The loss of benefits granted by promotional regimes that grant tax benefits may not be reinstated based on the taxpayer or responsible party's acceptance of this regime.

• Give up repeating: Adherence to this regime implies the waiver of initiating actions for reimbursement and/or recovery for regularized tax and customs obligations and social security resources, including non-forgiven compensatory and punitive interest. No actions for recovery may be initiated based on the provisions of this regime that have established forgiveness of tax, customs obligations or social security resources (their interest, payments on account, advances, etc.) in favor of the taxpayer himself or a third party.

2. Clarification on validity and application method

Law 27.743 establishes the following:

• Regulatory power: AFIP has the power to regulate this regime within 15 calendar days from its entry into force, and must issue the necessary complementary regulations.

• Validity and effects: All provisions of this document that correspond to Title I will come into force on the day following its publication, remembering that it was published in the BO on July 8, 2024. However, they will take effect once the regulations issued by the AFIP come into force.

• Regulations cannot restrict or limit: The regulations issued may not establish any restrictions or limitations of any kind for taxpayers or responsible parties for adhering to and accepting this regime. Any formal non-compliance by the taxpayer or responsible party may not be considered as a cause for loss of the benefits granted by this regime. Acceptance of this regime may not be considered as a negative indication of the taxpayer's or responsible party's qualification for the purposes of any registration by the AFIP.  

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Decree No. 608/2024

Regarding the regime, the regulatory decree provided the following: 

1. The cancellation of the obligations included within the framework of the provisions of the Regime of Title I of Law No. 27.743 will result in the extinction of the criminal action - to the extent that there is no final judgment on the date of cancellation - with respect to all participants, as well as persons charged with common tax crimes listed in articles 8, 9, 10, 11 and 15, subsection c), of the Tax Criminal Regime of Title IX of Law No. 27.430 and its amendments, if said charges are linked to tax obligations included or cancelled under this Regime, or that have been previously cancelled.
2. All payment facility plans included in the framework of article 6 of Law No. 27.743 will be subject to a financing rate calculated by AFIP, an autonomous entity within the scope of the Ministry of Economy, based on the rate set by Banco de la Nación Argentina for commercial discounts, which must be updated every calendar quarter until December 31, 2025. Thereafter, it will be updated every calendar semester.