The power to tax is a fundamental tool for the development of the economic and social policy that an administration intends to implement. The need for the State to have sufficient means and resources to fulfill its purposes has an essentially political nuance. Without these means, the State cannot exist or fulfill the purpose for which it exists. Certainly, like any sovereign power, it is not absolute and on the contrary is limited by fiscal freedom (1).
This tax power is inherent in the concept of sovereignty. The power to create tax burdens implies the power to choose the subjects and subjects, as well as to define the tax base. It also implies the power to implement special laws to deal with exceptional situations. This, of course, is within the framework of constitutional powers.
Within the framework of the Law on Palliative and Relevant Fiscal Measures (2), the Exceptional Regularization Regime of Tax, Customs and Social Security Obligations was created, with the purpose of achieving the voluntary payment of certain obligations whose application, collection and supervision are the responsibility of the AFIP.
The acceptance may be formulated from the entry into force of the regime with the AFIP regulations and up to one hundred and fifty calendar days from that date, inclusive.
In this regard, the possibility was established for taxpayers to join the regime, by paying in cash or in installments for certain obligations, due on or before March 31, 2024, inclusive, and for infractions committed up to that date.
In exchange for these payments, the scheme provides various benefits, which vary depending on the type of membership and the type of debt in force.
The advantages of joining the regime include the forgiveness of a percentage of the interest accrued at the date of joining, the payment of the tax obligation in installments and the release from payment of the fine and other penalties, provided that they are not final or paid at the date of joining.
Subsequently, the National Executive Branch regulated (3) the Law of Palliative and Relevant Fiscal Measures, and as far as these lines are concerned, the present regularization regime. Likewise, in use of delegated powers, the Federal Administration of Public Revenues (4) issued the pertinent and necessary regulatory and complementary provisions so that the administered parties can move forward with their adhesion.
The taxpayers and those responsible for the obligations whose application, collection and inspection are the responsibility of the AFIP are covered by the regime. They may join, provided that they have submitted the sworn declarations or liquidations determining the obligations to be regularized. They must declare in the web service (CBU Declaration) from which account the payments will be debited. They must also have an electronic tax address.
Under the regime, tax, customs and social security obligations due by March 31, 2024, inclusive, as well as fines and other final sanctions arising from violations committed up to that date, whether or not related to those obligations, as well as interest, may be regularized.
There are certain concepts that are specifically excluded from this regime. These are: a) contributions, b) ART quotas, c) contributions to the social security regime, d) simplified regime for small taxpayers, e) mandatory life insurance quotas, f) contributions from agricultural employees and rural workers, g) obligations derived from the baggage regime, h) obligations derived from an expired payment facility plan, i) advances and payments on account, j) interest and fines on the preceding concepts.
There are also expressly excluded subjects, such as administrators who are in any of the following situations: a) declared bankrupt, b) convicted of customs and tax crimes - with a conviction confirmed in the second instance -, c) convicted of common crimes related to non-compliance with a tax obligation - with a conviction in the second instance -, d) withholding and collection agents who have a final indictment and the case has been referred to oral trial for tax crimes.
There are different types of membership. In fact, the payment of the tax obligation may be made in cash or through a payment plan. The offsetting of debts and credits is not permitted. Even subjects who adhere to payment plans may later request - for a single time - the advance cancellation of the total balance of the debt, starting from the month in which the second installment is due.
Debts that are disputed, are under administrative discussion or are being appealed before the Tax Court or federal court may also be included in the regime. In these cases, it will be necessary to formulate a withdrawal of the action and rights, and also to digitally submit an adhesion form (F 408) which after receipt must be presented in the file.
In cases of disputes before the National Tax Court or in process before the Judicial Branch, the taxpayer shall be responsible for paying the fees corresponding to the tax attorney in charge of the case. The law clarifies that in cases where the adhesion is formalized within the first 90 days from the regulation, the fees will be reduced by 50%. However, it is clarified that fees will not apply in cases where the case is exclusively about the application of fines and compensatory interest that are forgiven according to this law. The fees may even be paid through a payment plan (maximum 12 installments).
In cases where the taxpayer subjects the debt to a payment facilitation regime, non-payment may result in the expiration of the plan by full right and without the need for prior notice by the AFIP, in accordance with the scheme determined by the administration in the regulations, for each plan contemplated.
In these cases, once the expiration has occurred and the taxpayer has been notified, the AFIP will be authorized to initiate the debt enforcement procedure.
The regulations have also contemplated the possibility of refinancing through this regime the payment facility plans presented until March 31, 2024.
Furthermore, the regulations have also contemplated the possibility of cancelling the membership and submitting a new application, a possibility that may be considered in cases where the citizen notices or detects an error in the first membership.
One of the great benefits of this regime is the forgiveness of part of the interest. In fact, the regime provides that, as long as the entire tax obligation is cancelled in the chosen payment plan, accrued interest is forgiven, in the different percentages established according to the date of adhesion to the regime. The percentage of forgiveness varies according to the opportunity of adhesion to the regime. The faster the debt is submitted to the regime, the greater the interest reduction. Likewise, the forgiveness of interest will also depend on the number of installments chosen to cancel the obligation.
Thus, if the payment option is cash or in 3 installments and the adhesion is made within the first 30 days of the regulation, 70% of the interest will be forgiven; if the same payment method is used but the adhesion is made between the 31st and 60th day of the regulation, 60% of the interest will be forgiven; the same payment method and the adhesion made between the 61st and 90th day of the regulation, 50% of the interest will be forgiven; and finally, the same payment method and the adhesion made from the 91st day of the regulation until the 150th day, 20% will be forgiven.
On the other hand, if instead of paying in cash or in 3 installments, a system of installments is chosen (36 to 84 depending on the nature of the taxpayer) and the adhesion is presented within 90 calendar days of the validity of the regulations, a 40% forgiveness of the interest occurs, while if the adhesion is implemented after day 91, the forgiveness will be 30%.
In short, the law and its regulations are clear in establishing different payment options, depending on the time of submission of the membership and the chosen installments.
Fines are also waived, in this case 100%, regardless of the opportunity to join or the chosen installment plan.
Regarding sanctions for formal non-compliance, the sanction will be waived, provided that the breached formal duty has been fulfilled prior to the expiration of the adhesion period. If the breached formal duty cannot be remedied, the waiver will also proceed ex officio, provided that the breach was committed before March 31, 2024, inclusive.
As regards substantial obligations, fines shall be automatically waived, provided that they are not final and the principal obligation has been settled before 31 March.
In customs matters, the regulations clarify that forgiveness will apply whenever the material violations have an associated tax obligation or involve amounts paid unduly as export incentives, as defined in arts. 954, section 1, paragraph a), 965, paragraph b) and c), 966 –when the benefit is a tax exemption, 970, 971 and 973 of the Customs Code.
It is noted that the regulations have worked out in detail the distinction between material and substantial customs obligations, as well as the delimitation of the infringements whose fines are forgiven. In this way, fewer controversies on this matter are anticipated than those generated by previous regularization regimes.
It was also established that adherence to the regime entails the suspension of ongoing tax, customs and social security criminal actions, as well as the interruption of the statute of limitations for criminal actions.
On the other hand, and in customs matters, by adhering to the regime, Customs will arrange for the lifting of any suspension measures for operations that may exist with respect to the delinquent taxpayer.
Finally, it should be noted that refusal to join the regime due to failure to comply with the established requirements will lead to the resumption or promotion of criminal actions, as well as the start of the calculation of the statute of limitations.
- BADENI, Gregorio, Treatise on Constitutional Law, Volume I, ed. La ley, 2nd ed., 2006, p. 926.
- Law 27.743 (B0 08/07/24).
- Decree 608 / 2024
- Res. Gral. AFIP 5525/2024.
Attorney (UCA), Partner at Petersen & Cotter Moine Law Firm.
Full Member of the Argentine Institute of Customs Studies (President 2010/2011). Active Member of the International Academy of Customs Law (Member of the Board of Directors 2015/2023). Active Member of the Argentine Association of Tax Studies. Member of the Customs Law Commission of the Council of the Center for Studies of Financial Law and Tax Law, of the Department of Business Economic Law of the Faculty of Law of the University of Buenos Aires. Member of the Scientific Committee of the Journal of the Colombian Institute of Tax Law.
Professor of customs law in the postgraduate courses in customs law at the University of Buenos Aires, where he is also the Vice President of the Customs Law Update; of the Catholic University of Argentina, of the Austral University and of the Di Tella University.
Author of the books “Customs Law and International Trade”, published in 2018 by Guía Práctica; “Customs Law”, published in 2014 in 3 volumes by Abeledo Perrot, winner of the 2014 Argentine Association of Tax Studies Award for the book of the year; “Customs Offenses”, published in 2011 and second edition in 2013 by Abeledo Perrot; and Coordinator and co-author of the books “Customs Law Studies”, published in 2007 by Lexis Nexis and “Customs Law Studies. 30 Years of the Customs Code”, published in 2012 by Abeledo Perrot. He was one of the updaters of the Annotated Customs Code, published in 3 volumes by Abeledo Perrot in 2012.
He has also participated in collective books published abroad and has published more than fifty articles related to customs law, published in various media (La Ley, El Derecho, Jurisprudencia, Revista de Derecho Fiscal, Revista de Estudios Aduaneros, Revista Tribunas, and La Nación newspaper).
