The third paragraph of article 21 of Decree 608/2024(1) regulating the Money Laundering of Law 27,743, includes within the releases provided for in paragraphs b) and c) of article 34 of the law, those obligations that are in the process of administrative, contentious-administrative or judicial discussion in the tax criminal, foreign exchange criminal and customs areas, provided that they are not final on the date of entry into force of that legal norm and are linked to the assets, credits and holdings of the taxpayer as of December 31, 2023 that are regularized, and to the extent of those assets, credits and holdings.
And then, in the fourth paragraph, it specifies that the expenses computed in the income tax, the tax on undocumented exits and the VAT tax credit, which come from invoices that the AFIP considers apocryphal, are not covered by this exemption.
This restriction would exceed the legal framework and affect fundamental principles such as legality, reasonableness, legal certainty and the right to property.
Without legal prohibition
According to the legal text, it would be possible to externalize cash and regularize situations of apocryphal invoices in contentious proceedings provided that an absolute simulation is verified, that is, in those cases where there have been no economic transactions.
Article 34 of Law 27,743 establishes (relevant part): “The subjects that adhere to this Asset Regularization Regime will enjoy the following benefits to the extent of the assets declared: …. c) They are exempt from the payment of taxes that have been omitted to be entered and that originate from the assets declared in this regime, as well as the respective accessory obligations, in accordance with the following provisions: 1. Income taxes, Tax on undocumented exits (in accordance with article 40 of the Income Tax Law, consolidated text in 2019 and its amendments), … 2. …. Value Added Tax that may be applied to the operations that originated the funds with which the regularized asset was acquired or to the cash funds that are regularized….”
It is important to note that the law does not contemplate restrictions for this type of regularization and it does not emerge from the parliamentary debate that this was the intention of the legislator.
When the legislator wanted to prohibit the regularization of situations of apocryphal invoices in a money laundering regime, he did so: Law 27,260 (Fiscal Sincerity of the Macri Government) established that the release of the expense computed in the income tax or the VAT tax credit, coming from invoices considered apocryphal by the AFIP (2), was not included.
Therefore, one cannot presume the inconsistency or lack of foresight of the legislator(3) and limit what the law does not restrict.
Jurisprudence of the Court
Our Supreme Court ruled in “Copparoni SA” (4), on the regularization of foreign currency holdings under Law 26,860, where the AFIP held that the payment of VAT was not released by the computation of non-existent tax credits, even though the law did not include such a limitation.
Referring to the Opinion of the Tax Attorney, the SCJN resolved, among other issues, that: 1) The inconsistency or lack of foresight of the legislator cannot be presumed; 2) The legislator could have excluded the release of the tax credit in the case of apocryphal invoices, as it did in Law 26,860; 3) The release of VAT benefits both the omitted tax debit and the tax credit derived from fictitious purchases.
Later, the SCJN reiterated this position in “Sigma SA” (5) linked to the 2008 Money Laundering contemplated in Law 26,476.
Consequently, taxpayers seeking to regularize situations of apocryphal invoices in dispute would have two options: launder the cash and continue with the discussion, which has solid legal grounds, or take advantage of the current moratorium to regularize the taxes associated with said invoices..
A separate topic
One aspect that still requires further analysis is what happens in the case of situations linked to apocryphal invoices that are not currently in contentious proceedings.
From a technical point of view, counterfeit invoices that have not yet been detected are not covered by the third paragraph of article 21 of Decree 608/2024. Therefore, they are not covered by the fourth paragraph, which is the one that establishes the limitation that gives rise to this article.
This could be interpreted as an absence of restrictions on releasing the expense computed in the income tax, the tax on undocumented exits, and the VAT tax credit from invoices that the AFIP has not yet considered apocryphal.
Public accountant. Tributary.
(1) After the modification introduced by Decree 773/2024 (BO 08/30/2024)
(2) Art. 46, first paragraph, subsection c) point 1 and point 2.
(3) SCJN, Rulings: 315:1922; 322:2189 and 329:4007; among others.
(4) Copparoni SA, SCJN, 02/07/2020
(5) Sigma SA, CSJN, 10/28/2021
Source: Ambito
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