The moratorium and money laundering rules participate in the legal nature of tax exemptions, to the extent that they help prevent taxes and/or their accessories from being fully collected by the Public Treasury.
All of them should naturally decant from the express purposes that constitute fundamental axes of economic policy in a given contextual framework.
They differ, however, in that the former are motivated by the tax rehabilitation of taxpayers in the face of a certain general situation, while the exemptions inherently carry a different valuation, linked to people, development activities and/or areas that deserve a certain special protection. .
A second difference is explained in the diverse temporal scope for which they are conceived. While the former project their effects towards past accrued legal tax obligations (ex tunc), the latter undermine or prevent the usual consequence of the configuration of a taxable event, that is, they truncate the birth of a tax obligation in the future (ex nunc). as a preconceived purpose by the legislator.
In the omnibus bill, the moratorium includes obligations due until November 30, 2023 and laundering, income and assets of Argentine source that tax residents would have obtained as of December 31, 2023.
Having generically explained their differences, it is pertinent to bring into consideration a nuclear criterion upheld by Fernando Sáinz de Bujanda in his “Legal Theory of Tax Exemption” (Treasury and Law, vol. III, Institute of Political Studies, Madrid, 1963, pp. . 417/418): “It is clear that, if the tax is to be distributed fairly, the tax exemption must be subject to that requirement. Contributory capacity and exemptions can, in fact, be considered, from a certain perspective, as complementary concepts.” Three pages later they demanded a handling “extraordinarily cautious” of such institutes that “can represent a serious injustice” As in “The equitable distribution of the tax burden cannot be sacrificed for the achievement of other goals, no matter how high and attractive they may be.
This observation seems particularly applicable to the moratorium and money laundering institutes provided for in the omnibus law sent by the Executive Branch to Congress, since its design shows an asymmetry that can pierce the tax collection powers of the Treasury and even lead to its involuntary definancing.
Because it essentially involves co-participating taxes collected by the Federal Public Revenue Administration, it would negatively impact the public coffers of all jurisdictions.
The regulations in question are located in “TITLE III – ECONOMIC REORGANIZATION CHAPTER I – ECONOMIC DEREGULATION”, within “CHAPTER V –
FISCAL MEASURES” and involve “Section I. Regime for Exceptional Regularization of Tax, Customs and Social Security Obligations” (contained between arts. 113 to 129) and “Section II. Regime for Regularization of Subject Assets achieved” (between arts. 130 to 165). This is what the moratorium (Section I) and money laundering (Section II) regimes were called.
The way in which the project was drafted makes the first very onerous compared to the second, which apparently would allow any pending case to be concluded (including tax criminal) for a very low relative cost and even without having to pay a cent to the Treasury. to the extent that the “laundered” capital does not currently exceed a tax base of US$100,000.
For greater explanatory clarity, I will describe a hypothetical example: an adjustment in taxes (VAT, profits or any of those covered in article 155, paragraph “c” of the project) of pesos 15,005,000 made for the fiscal period 2009 or 2010 that currently is under discussion before the National Tax Court, exceeds the threshold of punishability contained in article 2 of the criminal tax regime. Consequently, the taxpayer will surely also find himself facing, as a defendant accused of aggravated evasion, a case before the economic criminal jurisdiction that has a maximum expected penalty of 9 years in prison. The compensatory interest of the theoretical adjustment would currently exceed several times the sum of the evaded capital.
Given this scenario, the letter of the bill seems to allow two alternatives to the taxpayer.
The most economical one provided for by the moratorium -art. 118 subsection a) of Section I- would be the cancellation in a cash payment of the total capital plus 50% of the accrued interest and 50% of the professional fees (art. 121 omnibus law). It should be added that the accrued interest does not contain a limit in relation to the capital to be regularized (as provided for in articles 4 of Law 26476 or 55 of Law 27,260). It is worth saying that, in the example given, one should immediately join the regime and disburse an amount that could exceed 100 million pesos, in order to avoid the progress of the criminal case, higher interest, fines and other sanctions.
The second option could involve not pay a cent to the Treasury for any reason until the end of November 2024 If, as I previously warned, the sum of “laundered” capital contained in the sworn declaration provided for by article 135 does not exceed US$100,000 (see arts. 130, 141 and 145).
Thus it derives from a literal interpretation of sections a), b), c) and d) of art. 155 of the omnibus bill, in accordance with the doctrine issued by the Supreme Court on 07/02/2020 in re “Copparoni SA v. DGI s/direct appeal from an external body”, in which the cancellation of the claim was admitted tax by applying the CEDIN money laundering regime (law 26860) to a VAT adjustment originating from the use of apocryphal invoices. This doctrine was invoked to complete cases of economic criminal jurisdiction under the aforementioned legal regime and also subsequently, against money laundering regulated in Law 27,260. The opinion of the attorney before the Court specified: “Your Excellency has maintained that the first source of exegesis of the law is its letter and that when it is clear and does not require greater interpretive effort, it is only possible to apply it directly, regardless of considerations that exceed the circumstances of the case expressly contemplated by the norm. (Rulings: 320:61; 305 and 2145; 323:1625, among others).”.
The doctor Adrian Martin Tilve In his article published in the ““Criminal Law Magazine” (number 2021-1, pages 313 to 325) states that it was not an isolated case.
There it states that Chamber III of the Federal Court of Criminal Cassation justified the indiscriminate application of the money laundering and moratorium institutes of Law 27,260 in the face of any fiscal adjustment, in its resolution issued on 03/10/2020 for the case “Robles, Daniel Oscar and others s/Appeal of cassation” CPE 117/2014/1/CFCP1, among other cases (“Atkinson, Guillermo J. s/ appeal of cassation” CPE 990000274/2011/TO1/8/CFC2 of 9/5/2019 , CPE 1652/2014/24/2/CFC2 of 11/27/2017, etc.).
In order to avoid the denaturation of the legislated institute that results in an aim not pursued, such as the aforementioned definancing of the different public treasuries, the money laundering included in Section II of the project submitted to the National Congress should incorporate an anti-abuse clause in its Article 137 relating to the object of the regime (Assets achieved), must exclude the possibility of enjoying its benefits when its presentation is preceded by an initiated inspection, specific observation of the supervisory distribution, ex officio determination, debt slip or complaint filed, that is directly or indirectly linked to the object of “laundering”, leaving only the possibility of incorporating such amounts in the moratorium provided for by Section I of the same legal body.
The difference between both institutes could even be mitigated by imposing a cap on the interests of Section I that is related to a percentage of the capital to be regularized, as already contemplated in the aforementioned precepts of laws 26476 or 27260, in order to facilitate rehabilitation. tax of the taxpayer.
The urgency with which it is intended to liberalize certain aspects of the economy through the bill presented should not prevent the inclusion of a similar legislative formula in order to eliminate situations of manifest fiscal injustice such as the one exposed, since inconsistency and unpredictability are not assumed in the Legislator (Rulings: 310:195 and 1715; 312:1614; 321:793).
Otherwise, we could find ourselves facing the situation warned by Fernando Sáinz de Bujanda (op cit, page 439) sixty-one years ago: “…exemptions, when they operate as a stimulus for the success of a certain economic policy, must be produced in such a way that the tax principle of the ability to pay does not substantially break, that is, does not cease to operate as a basic guideline for the distribution of income. tax. Bankruptcy may occur if the volume of the exemptions, and the nature of the tax sectors to which they extend, are likely to cause, for certain groups of people, or for certain social sectors, a global tax burden that is not consistent with its wealth the proportion to which the system, as a whole, aspires. It is clear that in this way it will be the remaining social sectors that will pay, with a comparatively larger contribution, the exemption regime created in favor of those especially favored by the exemptions. And the injustice that is produced in this way can never be “justified” by other types of desires: injustice can never serve justice.”
*Emilio M. Ogñenovich is a lawyer specializing in tax law and specialist in complex economic crimes and money laundering.
by Emilio M. Ogñenovich
