In turn, art. 13 of the Rite Law determines that said sworn declaration is subject to administrative verification and makes the declarant responsible for the lien based or resulting thereon, the amount of which cannot be reduced by subsequent declarations.except in cases of calculation errors made in the declaration itself.
At that point lies the core of the issue, to determine the extent of the calculation error.
This, because if such an error exists, the taxpayer may rectify his sworn declaration in less, without obligation to pay the balance determined in the original DJ.
But, otherwise, the taxpayer is forced to enter the balance of the DJ and then initiate a repetition action, with a long process that will end in court.
As the doctrine (1) has said, calculation error not only refers to inaccuracies or mistakes made in an arithmetic operation, but it also refers to any other mistake, which does not imply the review of the legal cause of the obligation nor does there exist a difference about the elements that must be taken into account to fix its amount, since otherwise the scaffolding of repetition to fix these errors.
This is because when the Treasury clings to the figure originally declared, knowing that it does not respect the effective measure of the taxable event, it is privileging the act of presentation of the respective declaration to the detriment of the elements that make up the basis for calculating the tax. tax, which means granting said act the force of birth of the obligation, which is not compatible with our positive tax law (2).
Along these lines, Opinion 22/82 (3) determined that the use of incorrectly used or erroneously established values or figures for inventory or revaluation can be assimilated to “simple calculation errors” provided that the absence of any premeditated intention is evident. give rise to a situation of undue favor.
In turn, Opinion No. 14/93 (4) maintains this criterion by stating that the cases of incorrect application of an aliquot or an update coefficient or the incorrect classification of a figure in the body itself would be comparable to calculation errors. of an affidavit.
Thus, in tax matters, the importance of searching for the material truth of the facts is known, to such an extent that the Court (5) has indicated that the search for the material truth of the verified situation constitutes a true guiding principle of administrative activity and that the Treasury is not only obliged to collect but also to determine the exact amount of the tax obligation.
A recent case law
A recent case (6) allows us to reanalyze the issue.
The taxpayer presents her original sworn declaration for contributions and Social Security contributions and then a first corrective DJ and a second corrective one.
From them a balance arises in favor of the AFIP, with the taxpayer then basing it on a calculation error due to having incorrectly recorded the salaries of three employees, for which he provides their salary receipts as proof.
It also offers expert evidence, from which it appears that the first corrective DJ does not correspond to the previous or subsequent statements, concluding that the amount that should be deposited was that of the original DJ and the second corrective one.
For its part, the AFIP emphasizes that RG 3093/2011 be applied, considering that the error committed in the DJ is not a calculation one and, therefore, it is not appropriate for its amount to be reduced by a subsequent declaration.
In turn, the a quo categorizes such a situation as a calculation error, which enables the correction of the amount without having to go through a long administrative process, since when comparing the DJ and the employees’ salary receipts it was possible to corroborate that in the First rectification, when a factual error occurred due to incorrect entry of the amounts, the calculation error was generated.
Thus, the Chamber interpreted that it was in the presence of what is known in doctrine as a material or factual error, which is characterized by being sustainable, manifest and indisputable, implying its evidence alone, without the need for further reasoning and externalizing itself. prima facie by its mere contemplation.
In this way, the Chamber confirms the ruling appealed by the Treasury, as it gave rise to the claim filed by the taxpayer, in the same line as a previous jurisprudence (7), where in a similar case, the existence of error is determined of calculation produced at the time of determining the tax base, proceeding to apply the exception case of art. 13 of Law 11683.
These antecedents are of particular value in professional practice, by avoiding a long and painful administrative and judicial process.
Public accountant. Tributary. Partner of the Bertazza, Nicolini, Corti y Asoc studio.
(1) Diez, Fernando and Ruetti, Germán “Tax Procedure Law 11683, Commented”, Chap. III, Ed. La Ley, Bs. As., 2016.
(2) D’Agostino.
(3) DGI of 3/23/1982.
(4) DAL.
(5) “La Biznaga SA” Rulings 310: 714 of 3/31/1987.
(6) “Natural Fish SA” CF Mar del Plata on 8/30/2024.
(7) “Toledo, Gustavo” Expte. 34814/2017 of 6/17/2021.
Source: Ambito
