One by one the new clarifications on the Asset Regularization Regime

As a result, in the case of money laundering – except cash – the deductible acts as a non-taxable amount, so that, if the regularization is, for example, US$ 150,000, the special tax on US$ 50,000 will have to be paid, before applying the deductible of US$ 100,000.

However, the situation is different regarding cash deposits, since under Article 31 of the law, the exemption acts as a sort of minimum exemption.

Thus, a deposit of up to US$100,000 would not generate any tax, but in the case of a cash deposit for a larger amount, for example, US$120,000, the tax, if applicable, must be applied on that amount, as the exemption is not applicable.

Decree 773/2024 (BO 30/8/2024)

This decree establishes new clarifications regarding money laundering and the Special Regime for Income Tax on Personal Assets. On this occasion, we will only refer to money laundering.

It has been clarified that the laundering of real estate both in the country and abroad includes construction works, regardless of their degree of progress and their respective improvements.

This is an important change, since the legal regulations do not clarify the status of works carried out and declared for a lower valuation.

In this way, taxpayers who carry out work, for example, for family housing or recreation, can benefit from the tax exemption and declare the work carried out, or in progress.

The regulatory standard fails to consider the valuation of the same and the form of demonstration. From our point of view, the valuation should be at cost, proving by any means the work carried out and its valuation.

• Regularization of the taxpayer and his family group

Article 28 of the law, penultimate paragraph, establishes that in the case of regularization carried out by the taxpayer and by his family group (ancestors and descendants up to the first degree of consanguinity or affinity, spouses and cohabitants), all subjects who regularize may compute, proportionally, the US$ 100,000 deductible.

By regulation (Decree 608/24) this assumption is clarified and would apply when the taxpayer who regularizes take charge to any of the indicated relatives and they also adhere to the regime.

This means that each person who launders must determine the special tax separately, considering the US$ 100,000 deductible, as long as the deposit does not exceed that amount.

But in this sense, it must be clarified term in chargeprovided for by Decree 608/2024.

In this sense, Decree 773/2024 establishes that dependent relatives are understood to be those who are supported by the taxpayer who regularizes, totally or partially, from an economic point of view and to the extent that their total annual income does not exceed $451,000 (1).

Let’s take an example to clarify the issue. A taxpayer is going to make a tax return, as well as his wife and son.

The wife is not dependent on the husband, but he pays his wife’s prepaid pension (partial support), with the wife’s income being over $451,000.

In turn, the eldest son, aged 18, lives in the maternal home, does not work, has no income and is in the care of the father.

Since all three are going to whiten, all three must make the special tax determination separately.

The wife will take the total deductible of US$ 100,000 as long as her regularization does not exceed said amount.

This is because although she is partially supported by her husband, her income exceeds $451,000.

In turn, his son has to provide him with the US$ 100,000 deductible for being in the father’s care and having no income.

• Release of the consumed

Art. 34, subsection d) of Law 27743 establishes an important benefit for subjects who regularize assets they owned as of 12/31/2023, in addition to those they declare in the respective sworn declarations for the fiscal years ending up to 12/31/2023, inclusive.

In such case, they will enjoy such benefit for any property or holding that they had owned prior to 12/31/2023 and had not declared it.

In this regard, the regulations clarified that such release also extends to amounts consumed up to fiscal year 2023, inclusive.

However, it makes a legal citation error because it refers to art. 34, subsection c) of the law, which is not the rule on tax blocking, but rather the rule on the release of omitted taxes.

This error is now corrected by Article 3 of Decree 773/2024, which establishes that it was subsection d) and not c).

Therefore, any differences that may exist with respect to the amount consumed are released by applying the tax block, for which the requirements demanded by the legal norm must be fulfilled.

A special issue that arises is that of the obligations that are in a course of administrative, contentious-administrative or judicial discussion in the criminal tax, criminal exchange and customs areas, which until now were not contemplated by the legal norm.

The regulations now establish that such assumptions are included within the releases of crimes and omitted taxes (L, 34, b and c), provided that they are not final as of the effective date of the law and are linked to the assets, credits and holdings of the taxpayer as of 12/31/2023 that are regularized and to the extent of those assets, credits and holdings.

The decree also establishes that the expenses computed in the income tax, the tax on undocumented departures and the VAT tax credit, originating from apocryphal invoices considered as such by the AFIP, are not covered by the aforementioned release (crimes and omitted taxes).

This is clearly an excessive regulation, since the law says nothing in this regard and the regulations seek to curtail rights, without any legal basis.

The Court has stated that VAT adjustments of tax credits are appropriate to the extent that the legal norm does not exclude such a possibility in a reliable manner.

In this regard, it should be noted that Law 27,743 does not contain a provision to this effect, and so the decree that seeks to curtail such rights is illegitimate.

The Court has also stated that non-compliance with VAT, both in respect of tax debits and credits, is subject to regularization, since there are omissions in both cases.

This is why in this case, there is a clear regulatory excess (2), since there is a provision that ignores or unreasonably restricts rights that the regulated law grants or in any way subverts its spirit or purpose, thus contradicting the normative hierarchy.

Certified Public Accountant. Partner at Bertazza, Nicolini, Corti & Associates.

(1) Art. 30 inc. a) of the income tax law, in the fiscal period 2023.

(2) CSN Ruling 10/12/2023.