The ARCA, the regulation of positive silence and legal certainty

As of November 1, 2024, the regulation of the so-called “positive silence” (1) in relations between individuals and the National Public Administration applies in our country as Decree 971/2024 has been published in the Official Gazette.

Through the aforementioned Decree, the National Executive Branch approved the list of administrative procedures that are excluded from this positive silence in its Annex I and, in turn, also approved another list of administrative procedures where silence in favor of the interested individual, in accordance with its Annex II.

It is worth noting that, although the aforementioned Decree is dated October 31, 2024, the procedures linked to the Customs Collection and Control Agency (ARCA), which recently replaced the Federal Administration of Public Revenues (AFIP), continue to use the AFIP denomination in the Annex lists.

Application and effects

In practice, “positive silence” means that when a citizen, taxpayer or any human or legal person intends to obtain the recognition of some right or similar by the National Public Administration, if the legal period elapses according to each specific procedure, the considers that this request was granted.

On the contrary, if “positive silence” does not apply, it is interpreted that this request requires a specific resolution and, therefore, since a resolution has not been issued, there is a rejection of that request by the Administration.

In turn, it is established that if the special regulations do not set a specific period, that period may never exceed sixty days, thus establishing silence against the individual (2).

In the tax field

In national tax matters, in the face of the administrative procedures expressly listed in Annex II of Decree 971/2024 (pages 19 to 22), the silence of the ARCA (former AFIP) upon expiration of the procedural deadlines set to resolve the express request for a taxpayer or responsible, This means that this right was recognized in the absence of a resolution of rejection or denial by the tax agency.

In this matter, the so-called “positive silence” does not apply to certain procedures linked to the ARCA (formerly AFIP), which are detailed in Annex I (page 46), namely: a) Authorization. Reorganization of companies – Goodwill (Income tax); b) Fiscal Registry of Tobacco Sector Operators and fiscal control instruments for cigarettes; c) Modification of the Administrative Status of the CUIT. Subjects included in the “Base of Untrustworthy Taxpayers” or characterized as “Unreliable Subject in Social Security Matters”; d) Simplified Agricultural Information System (SISA). Productive Capacity Modification; e) Request for consignment letters by exception; f) Certificate of Exemption from Income Tax General Regime (AFIP General Resolution No. 2681/2009); g) Certificate of Exemption from the Simplified Regime Income Tax (AFIP General Resolution No. 2681/2009); h) Taxes, Debits and Credits and other operations (RG AFIP No. 3900). Registration, permanence and exclusion of taxpayers included in the “Registry”; i) Form 2140 – Free Pension Debt – Boats of more than 50 tons or Yachts of more than 100 tons.

Once again, in the face of so much regulation expressed in a lower hierarchy standard, it is evident that legal certainty is not a characteristic of the Argentine tax system.

However, from a practical perspective, it will be necessary to evaluate each administrative procedure to which positive silence applies to formalize the relevant presentations through the Remote Procedures (“TAD”) platform, compute the current deadlines and their expiration to, immediately, manage the procedures linked to the records and/or other aspects so that the right has formal recognition for the individual (3).

Conclusion

In summary, the “positive silence” in national tax matters constitutes a procedural advance in favor of the taxpayer’s right who, strictly speaking, will obtain legal certainty in each specific case.

Tax lawyer

(1) This decree regulates art. 10 paragraph b) of the National Law of Administrative Procedures No. 19,549 within the framework of the Law of Bases and Starting Points for the Freedom of Argentines No. 27,742, of the Regulation of Administrative Procedures (Decree 1759/72, text ordered in 2017 and its amendment -Decree No. 695 of August 2, 2024) and the Administrative Decision No. 836 of August 23, 2024.

(2) Art. 10 subsection a, Law 19,549.

(3) Art. 65 quater – Decree 1759/72, to 2017. Thus, the interested party is in a position to process the registration, issuance of the corresponding certificate or authorization, which will be granted within a period of no more than FIFTEEN (15). days.