In a previous comment, we highlighted that customs had been paying special attention to cases of over-invoicing in imports and under-invoicing in exports, which would have the purpose of obtaining dollars at an official exchange rate and liquidating less foreign currency than what would correspond ().
We also mentioned that the new economic plan announced by the Government included the denunciation of such events, even anticipating a future new amnesty for those who "rectify their position at Customs".
Thus, even though there is already a regime that could be applicable for this purpose (), it was recently reported that the new money laundering project called "Externalization of Argentine Savings" had been submitted to the House of Representatives, which allows declaring holdings and assets abroad with the payment of rates ranging from 5% to 20%.
It establishes that individuals, undivided estates and companies (subjects included in article 53 of the Income Tax Law) may access it in order to declare the holding of national and/or foreign currency in the country and/or abroad, financial assets, real estate, movable property and other assets in the country and/or abroad (including credits).
Furthermore, and as in similar regulations that were issued previously, it is provided that those who make said declaration and pay the special tax "They will enjoy the following benefits for the declared assets… b) They are released from civil, commercial, tax criminal, foreign exchange criminal, customs criminal action and administrative sanctions that may apply".
In this sense, following the current trend of tax collection as the axis of criminal policy (), through this project a new start is proposed in the administration-administered relationship that could function as a solution to all current customs complaints linked to exchange issues.
In this way, and as we have stated on other occasions, for the project to achieve the desired effect, it is essential that it also provides the peace of mind that there will be no subsequent surprises, as occurred in all previous regimes ().
For this reason, even though the rule is clear in relation to its application with respect to the facts that may constitute some type of customs crimes, as well as that its benefits cannot be distorted by restrictive legal interpretations (), its lack of precision regarding the issues that previously generated problems, undermines its success.
Thus, for example, the project does not clarify the scope of said "release", nor what the causal relationship should be between the asset or possession disclosed and the criminal action that would be released.
In order to prevent the same problems from recurring in the future, it would be advisable to at least include in its articles that: (i) The referred release is equivalent to the extinction of the criminal action by amnesty in the terms of section 2 of article 59 of the Penal Code; and (ii) that said release extends without any limit to all the referred crimes that have relationship, connection or link with the assets and holdings that are externalized.
Finally, it should not be forgotten that the determining cause of future acceptance of the possible regime (and its success) will be the trust placed in the State, not only in its future management capacity, but in the conduct of its implementing bodies in fulfilling the benefits offered there. The latter implies the commitment to a broad interpretation in favor of the administered of all those aspects omitted or unclear in its letter.
1. See the article “Possible risks of reporting purely foreign exchange issues as smuggling” published on August 12, 2022 in this same medium.
2. See the regime of Law 27.613, expanded by Law 27679 and currently in force, which establishes an externalization with a liberating effect with respect to customs criminal action.
3. See the position of Hernán De Llano raised in “An approach to Argentine criminal policy on economic crimes” published in Economic Criminal Law, Volume I, Ed. Marcial Pons, 2010, pp. 303 et seq.
4. See in particular all the jurisprudential discussions that took place in relation to the money laundering established by Title II of Law 27.260
5. For this purpose, the principles of in dubio pro reo and pro homine must be applied, as highlighted in the precedent of Chamber B of the Federal Court of Córdoba in Case No. FCB 22016146/2010/CFC1-CA3 of 11.6.2020, by which the admissibility of the extinction of the criminal action provided for in Law 27260 was admitted.
Lawyer. Specialist in Criminal Law from the Universidad Austral. Professor of Customs Criminal Law at various public and private universities. Author and contributor to books and articles on this specialty. Currently, he is a partner at the Durrieu Abogados law firm, in charge of the Customs Criminal Law Department.
