Yacht clubs and an inappropriate claim from ARBA

In general terms, yacht clubs are constituted as non-profit associations, with legal status, created fundamentally for the practice of navigation by their members, for sporting or recreational purposes.

Logically, they are located on the coast of rivers, as is the case in the Province of Buenos Aires (PBA). Furthermore, given their nature and lack of profit motive, they are exempt from various taxes.

ARBA’s claim

In this context, a particular claim made by ARBA has been surprising, through which it demands and determines large debts in the concept of “occupation fee” regarding the use of the lands where the aforementioned clubs are located.

Although the concept required a priori would not have a tax nature, approaching a figure of administrative law, it has been granted to ARBA through art. 111 of Law 13,930 the power to demand it.

It is of utmost importance to define the tax nature or not of the fee, in order to know the applicable principles and also the procedural rules.

The basis of the claim and where the fee is regulated is Decree-Law No. 9533/80 as established in its art. 28 that: “The concession of use, or any other administrative modality that agrees on the possession of assets in the private domain of the State, will be governed by the following provisions: a) The possession will always be precarious and as a consequence the act may be revocable at any time by decision of the competent authority. b) The term of possession may not exceed five (5) years. c) The annual fee to which the holder will be obliged to pay will be established in the respective administrative act and may not be less than ten (10) percent of the current tax valuation in each of the concession years. Any illegitimate occupation, without prejudice to other actions that correspond to the State, is included in the provisions of this Law.”

In such a context, ARBA considers that the yacht clubs are in a situation of illegitimate occupation given that they are provincial lands.although this supposed irregularity does not really exist since The yacht clubs have entered into concession contracts through which they pay the coastal municipalities the corresponding fee.taking into consideration that the ownership of the lands and competence for collecting the same is vested in the municipalities.

This power of the municipalities arises from provisions in current regulations, Decree-Law 9297/79, Decree 1980/77 and even Decree-Law No. 9533/80, making a correct interpretation of this.

This entire regulatory plexus denotes the ownership of the domain by the municipalities and the power to collect the fee for the latter, which in turn arises from the corresponding registration in the Real Estate Registry.

This is accentuated by the provincial law 15,106 itself, which transferred all powers in the matter to the Municipality of San Fernando, denoting municipal jurisdiction over the issue..

ARBA’s misguided demand is extremely worrying for a civil association, taking into consideration that the value of the fee is set in relation to a percentage of the tax valuation, which can yield very important sums, even more so considering that the claim is accompanied by a threat of eviction, although certainly quite impracticable.

The defenses of the administrator

In this context, the Buenos Aires yacht clubs are faced with a difficult situation, since simultaneously both the municipalities and ARBA demand payment of the same debt and for the same concept, even though many of the clubs have a concession contract with the respective municipalities or for decades they have been paying them the corresponding fee.

Thus, given the illegitimacy of the claim, legal actions have been initiated by the clubs, and in several cases generating favorable results. For example, a precautionary measure has been granted so that ARBA refrains from initiating legal actions aimed at collecting the claimed fee and eviction. (1)

There are also important precedents where the clubs initiated actions, questioning the procedure carried out by ARBA to claim the fee, since the treasury does not comply with current regulations and demands the debt directly without respecting the rights and guarantees of the administrator (2). , with the yacht clubs obtaining favorable rulings.

Conclusions

In our opinion, the PBA’s collecting agency – ARBA – abruptly demands a fee that it is not entitled to receive, a situation that generates inappropriate debts, and in its case, difficult to face for a non-profit civil association, even more so. when the claimed debt has already been paid to the corresponding municipal state, in accordance with a contract duly entered into with it.

Although, fortunately, there are judicial precedents that put a stop to ARBA’s exclusive and excessive collection efforts, the actions of said organization generate concern and demand a prompt response to conduct that can be criticized for its manifest illegality.

Lawyer (UNLP) specialized in Tax Law (Universidad Austral). Specialist in International Taxation (University of Santiago de Compostela – Spain), owner of the Maltz y Asociados Firm – Tax Lawyers.

(**)Public Accountant (UBA), specialized in Tax Law (Universidad Austral), Postgraduate in Tax Law (University of Salamanca – Spain), Undergraduate and postgraduate teacher at different universities in the country, director of the Department. Tax&Legal Business Advisor SRL.

(1) Administrative Litigation Court 1 of San Isidro, “CLUB NAUTICO ALBATROS C/ ARBA S/ AUTONOMOUS OR ADVANCED PRECAUTIONARY MEASURE – OTHER TRIAL” case 69830.