Tax corrections or reform and system?

Brief historical review

The 1890 crisis caused changes. The nation advances over the provinces. The Internal Tax Law is sanctioned in 1894.

The 1929 international crisis had an impact on Argentina, even here it was aggravated by the institutional breakdown of 1930. This crisis will cause another tax advance of the nation; In 1932, the Tax on revenues was sanctioned, then sales tax, and federal co -participation is outlined.

The deepest tax reform was sanctioned in 1973; supplanting numerous taxes (revenues for profits; sales by VAT; the impositions on capitals) (1). The provinces repealed the tax on lucrative activities, however, it was quickly replaced. (2)

The VAT in 1986, typical of the need for income began a process whose characteristics are: a) the generalization of VAT to the services (Law 23871, BO 31-10-1990); b) In 1990 the primary sector was taxed, whose exemption was motivated to be an exporter, showing one of the reality deficiencies; c) The increase in 21 % aliquots in 1995, motive, the “tequila effect”.

In 1988, Law 23,548 was sanctioned, Federal Co -Partying Regime, currently in force, two years later, the Tax Criminal Regime, Law 23,771.

The successive crises caused impositions such as the “Debit and Banking Credit Tax” that taxes financial flows, and not imponible economic facts. This rule admitted, at the beginning, to be payment on account (3), something that would attenuate irrationality, but the restrictions maintained that effect, today it presents limitations.

The crisis of the year 2002 meant applying notorious agricultural export aliquots, and other goods. Soy is the grain with the greatest aliquot. (4)

Tax creation is incessant, (“country” tax, high -end cars, among others). The provinces and municipalities by: a) Degradation of federal co -participation; b) bad district administrations; They are additional sources of tax charges and the cause of the “triple imposition”, a topic not properly discussed by the CSJN. This concept usually causes confiscatory, because, the three state levels perceive about the contributory capacity of the person without any coordination.

Collection measures, without systemic order

These mentions show that they only had an end, raise, regardless of the effects on the economy and/or the contributory capacity of people. These changes granted instability to the system, causing its systemic degradation, making it an anarchic normative cluster.

These characteristics lead to ask why this cluster of norms is inappropriate? Why do government efforts venture into this degradation? Among the causes can be mentioned:

a) The degradation of the system for ignoring constitutional orders (article 75 subsection 1 and 2 CN, among others), because only the nation and the provinces are endowed with tax powers; and both must ensure the municipality of their functionality (article 5 and 123 CN) because this is the proximity to the inhabitants; Financial autonomy is admitted for incurring management spending and the perception of certain fees for services provided;

b) Recurrent crises caused reforms with the sole purpose of obtaining more fiscal income, causing a notable depredation of private resources; without justipreciating the incidence of the resulting amount;

c) The Nation was attributed through different laws and reforms of existing ones, appropriation of co -participible provincial funds, one of the causes of the creation of taxes by province and municipality;

d) The lack of respect for the law and institutions are two reasons for system degradation;

e) The municipalities deformed the rates by becoming true taxes.

The big question

These assessments lead to the title of the note and ask yourself why corrections or reforms?

Corrections: The content of the tax laws presents concepts that merit modifying, for lacking reasonability and/or reality. Some examples allow you to appreciate this guideline:

• Article 43 Law IG establishes the power of the Treasury to challenge expenses if no retention is practiceda situation that, although, was admitted by the CSJN (5); This criterion denatures the idea of ​​retention, because it would force all taxpayers, to be, in turn, retention agent;
• The persistence of taxing with the IG the income from retirement and pension (Article 82 subsection c), when the CSJN (6) decreed its inadmissibility, more, when it has no origin in any factor of production;
• The export of grains taxed by VAT is equivocalmore when 80 % of production is exported; And, he also created a control and return scheme that, in certain circumstances of agricultural prices, does not cover the tax costs of control, in addition to the inequities and environments it causes.

These, like so many others, are possible, and would improve the functionality of the tax scheme.

Reform: The experience indicates that, in the last 60 years, Argentina lacked steps sustained by these policies, simply, simple measures were applied that, although, caused improvements, were ephemeral and, at the same time, reiterated new crises. Experience indicates it. Argentina holds, before a tax system a cluster of anarchic norms and the purpose of the reforms was collection.

Tax laws, to achieve adequate change, demand, certain conditions, among others:

• Justipreciation of Argentine reality;
• Reasonable evaluation of tax transactions;
• The design of an economic status policybecause it grants the so -called country profile; Thus, one can choose to privilege consumption, as happened in recent decades; the industry; the agriculture industry; the agro export industry; the export industrial primary; inter alia; Example: If consumption prevails, consumption taxes will prevail; Meanwhile, if the profile prevails export, VAT should have another design;
• The economic state policy must be in the long term, because it will do to the predictability of investment and legal certainty;
• The characteristics of these policies must be based on political and social consensus; the conception called “sustainable and sustained humanistic economic development”; respect for the law; and respect for institutions.

Therefore, thinking about a tax reform without a state policy is to lack the reference, because taxes are abbreviated in economic facts, and this particularity is decisive for the design of tax regulations; That is, the state policy works as a reference for that design, the current anarchy of material tax regulations is not accidental.

Consequently, in the light of the historical experience, to achieve an adequate tax reform that converts the current tax anarchy into a tax system, an economic status policy must be designed, according to the premises cited before; which, as a whole, will enable legal certainty, and will allow conceptual sustainability and temporal sustainability; To the contrary, it will be to repeat the story.

Public Accountant Master in Law, U Austral, 2023; Doctorate in Austral U, 2024; founding partner of the study Gerardo Vega and children; Mail: [email protected]

(1) Law 20,629 included two taxes: a) to the capital of companies; b) The net worth of human people. In 1976, they were separated, in 1990, asset tax replaced the capital tax of the companies (Law 23,760) in force until June 1995; and assets was replaced by personal property tax.

(2) Province of Buenos Aires sanctions a tax on patents on lucrative activities, but the following year replenishes gross income.

(3) Law 25413 (BO 03-26-2001), Article 4 “Emported to the National Executive Power to provide that the tax provided in this Law, partial or total form, constitutes a payment on account, constitutes a payment on account of account of Taxes at added value, and the earnings of the account holder, or where appropriate, of the monotax regime ”. Then it was modified, according to article 5, Law 25,453 (BO 31-07-2001, and it was possible that the payment on account could be available to all taxes, including contributions on the salary payroll

(4) year 2002 rises to 23.5 %; Year 2007: 35 %; Year 2008, according to resolution 125, happily not applied reached 45 %, the rejection of this resolution meant 35 %. The 2016-August 2018 period was reduced to 26 %, plus the crisis of that time the Aliquota arrived in September 2018 to 30 %, and from that year, according to different modifications it ranged between 30 %and 33 %.

(5) “San Juan SA (TF 29.974-I) C/ DGI (Profit Tax)”, CSJN, 10-27-2015, Falles t. 306, p. 2013

(6) “García, María Isabel c. AFIP s/ merely declarative action of unconstitutionality ”, CSJN, 03-26-2019