Ongoing inspections regarding the moratorium of Law 27,743

Main aspects of the measure

Taxpayers and those responsible for tax and customs obligations and social security resources due on March 31, 2024, inclusive, and for infractions committed up to said date related or not to those obligations, can join it. The law entrusted the AFIP with issuing the complementary regulations that were necessary for the purposes of its application, and the collector did so, although partially.

Basically, the moratorium allows taxpayers and responsible parties to pay taxes through cash payment and/or payment facility plans, while offering different benefits depending on the type of adhesion and the type of debt they register.

The fact of remission of a percentage of the compensatory and/or punitive interest accrued to that date, or of its entirety when these have their origin in previously canceled tax obligations, as well as the release of fines and other sanctions as long as they are not firm or paid.

No less important is the fact that the total cancellation of the debt under the conditions provided for in the regime produces the extinction of the criminal action, to the extent that there is no final judgment on the date of cancellation.. The same effect will occur when each defendant cancels the debt that is payable individually (according to the criminal charge made), under the conditions provided for in this regime.

The law also provides for the full extinction of criminal action, with respect to those obligations that have been canceled prior to the date of entry into force of the law.

Regime, to the extent that there is no final ruling as of that date. Likewise, the AFIP is exempt from filing a criminal complaint when the main obligations have been canceled prior to the date of entry into force of this regime.

In the case of social security obligations and resources, the regime contemplates that the total cancellation – in cash or through a payment facility plan – of the contributions and contributions will produce the extinction of the criminal action without prejudice to the contributions and contributions destined to the National System of Social Works are not regularized.

Audited taxpayers

Within the universe of taxpayers who can still adhere to this moratorium, whose expiration will operate on 12/13/24, there are those who have AFIP/ARCA inspections in progress, whether they had begun before the validity of the regime, or during its course, cases in which, as a consequence of the inspection and for the most varied reasons, undeclared obligations may arise, or partially declared at the time.

It is known that, generally, when an audit breaks out, its final result appears uncertain. And even though said procedure is nourished by the work of the organization and the contribution of what is required of the auditee for such purposes, its duration is not a variable governed by the taxpayer, except in the case in which he acts with bad faith when reporting or providing what the inspector requires, with the intention of maliciously prolonging the extension of the procedure.

The truth is that, as 12/13/24 approaches, many taxpayers who have been loyally accompanying the work of the inspection in whatever it has required, will find that they do not yet know the tax claim, but they do They warn that the possibility of entering the moratorium is close to ending.

In this case, a series of questions arise regarding the right of such inspected taxpayers, unless it is assumed that the collection agency has not issued a rule that addresses this issue..

However, the CSJN has maintained that, when a legal norm is dictated, the obligation of the corresponding bodies arises to apply it to the factual assumptions covered by it, provided that the descriptions of such assumptions are sufficiently specific to enable its immediate application. , without the essential need for the dictation of other norms of equal or lower hierarchy. (1)

The lack of an express rule that regulates the situation we are describing could imply that our case described has no place; However, it is also true that the nature of the rule that the AFIP/ARCA had to dictate in this regard, due to its very complementary nature, could not have distorted the mechanism provided for in the Law, nor could it frustrate or undermine the right that it could have. having given birth to the taxpayer. Words from the Court.

That is, the AFIP could not have issued a regulation that altered the right of taxpayers to obtain the cancellation of their debts arising under the supervision through the moratorium, if they met the requirements provided for by Law 27,743 and its regulations.

To maintain the opposite would be equivalent to saying that it is the AFIP – and not the Law – that effectively enforced the right to take advantage of the moratorium, or that compliance with the order given by the law and the corresponding enjoyment of the rights by It was granted was subject to the will of a lower body of the public administration. This is what our highest Court has understood.

Final words

In summary, it is our opinion that every taxpayer who, under the validity of Law No. 27,743:

1) satisfies the substantial conditions that it requires for acceptance of the moratorium regimethere is no cause (subjective or objective) that, according to the aforementioned law, excludes it from it; and

2) comply with all the formal requirements and precautions required by the AFIP regulationsexcept the one that would mark the limit of the period for effective acceptance of the moratorium, will have the right to, As long as the adjustment of the inspection has not been made known to you, it is accepted that a (digital) presentation sent to the collection agency informing it of your willingness to adhere to the regime recognizes you as the holder of an acquired right even if by virtue of the inspection it has been exceeded. the term of the regime.

It is not about granting these taxpayers an acquired right to maintain a law or regulation, or to its unalterability, nor about restoring a regulatory regime that is no longer in force, but simply to accommodate in it those who an inspection surprised.

Public accountant. Tributary.

(1) Rulings: 315:1492, considering 20; “Ekmekdjian, Miguel Angel c/ Sofovich, Gerardo and others.”