The National Congress has just sanctioned Law 26,735 by which the Penal Tax Regime was modified (Law 24,769). The relevant aspects of the reform of the criminal tax regime lie in a) increasing the minimum amounts from which the criminal regime is applied; b) the regime is applied not only in relation to national taxes but also to the evasion of provincial taxes and those of the Autonomous City of Buenos Aires; c) the possibility of making the payment –one time only- to extinguish the action disappears and d) many hermeneutic doubts appear to fit the new regime with the previous one.

We offer a brief reference to the impact of the reform of the criminal tax regime:

1. SIMPLE EVASION.

The amount of the amount evaded is increased to $400,000 for each tax and for each year, even if it is an instantaneous tax or tax period of less than one year. The commission mode is maintained and consists of implementing misleading statements, malicious concealment or any other trick or deception, whether by action or omission, to totally or partially evade the payment of taxes. The substantial novelty is that evasion includes national, provincial and Autonomous City of Buenos Aires taxes.

2. AGGRAVATED EVASION: APPLIES TO APOCRYPHAL INVOICES.

The amount of evasion rises. The penalty, three years and six months to nine years in prison, which will be applied: (a) if the amount evaded exceeds $4,000,000; (b) if an intermediary person or persons had intervened to hide the identity of the true obliged subject and the amount evaded exceeds the sum of $800,000; (c) if exemptions, deductions, deferrals, releases, reductions or any other type of tax benefits are fraudulently used, and the amount evaded for such concept exceeds the sum of $800,000 and (d) the modality consisting of using, in totally or partially, invoices or any other equivalent document, ideologically or materially false. In the latter case, it refers to the minimum amount provided for simple evasion.

3. IMPROPER USE OF SUBSIDIES.

The reform of the criminal tax regime maintains the prison sentence of three years and six months to nine years and the same commissive modality of the obligor consisting of implementing misleading statements, malicious concealment or any other trick or deception, to take undue advantage of refunds, recoveries, refunds or any other national, provincial subsidy, or corresponding to the Autonomous City of Buenos Aires of a tax nature. The amount received must exceed the sum of $ 400,000 in an annual exercise. This modification incorporates national taxes, provincial taxes and those of the City of Buenos Aires.

4. FRAUDULENT OBTAINING OF TAX BENEFITS.

The prison sentence of one to six years is maintained and the same commissive modality, that is, the use of misleading statements, malicious concealment or any other trick or deception, whether by action or omission, obtains recognition, certification or authorization with the purpose of enjoying an exemption, relief, deferral, release, reduction, refund, recovery or tax refund. The novelty is that it no longer only refers to these effects on national taxes, but also provincial and the Autonomous City of Buenos Aires.

5. IMPROPER APPROPRIATION OF TAXES.

The prison sentence of two to six years is maintained with respect to the withholding or collection agent who does not deposit, totally or partially, within ten administrative business days after the payment term expires, the withheld or collected tax. The novelty is that it no longer only refers to these effects on national taxes, but also provincial and the Autonomous City of Buenos Aires and also that the amount not deposited must exceed the sum of $40,000 for each month.

6. SIMPLE EVASION OF SOCIAL SECURITY RESOURCES.

The prison sentence of two to six is maintained for the obligor who, through misleading statements, malicious concealment or any other ruse or deceit, whether by action or omission, partially or totally evades contributions or contributions or both together. The novelty lies in the fact that it no longer only refers to these effects on the national system, but also on the provincial ones and that of the Autonomous City of Buenos Aires. Likewise, the amount evaded exceeds the sum of eighty thousand pesos ($80,000) for each month.

7. AGGRAVATED EVASION OF SOCIAL SECURITY RESOURCES.

Because it refers to the criminal type of simple evasion, the novelty lies in the fact that it no longer only refers to these effects on the national system, but also on the provincial ones and that of the Autonomous City of Buenos Aires. The following are increased: (a) the amounts evaded to pesos $400,000, for each month and (b) if an interposed person or persons had intervened to hide the identity of the true obliged subject and the amount evaded exceeds the sum of $160,000.

8. IMPROPER APPROPRIATION OF SOCIAL SECURITY RESOURCES.

The prison sentence of two to six years is maintained for the employer who fails to deposit, totally or partially, within ten administrative working days of the expiration of the payment term, the amount of the contributions withheld from their dependents. The novelty is that the objective amounts of punishability are increased to $20,000 with respect to the amount and in the cases of the withholding agent or collection agent of social security resources that he does not deposit totally or partially, within ten business days. administrative fees after the payment term has expired, the amount withheld or received, as long as it exceeds $20,000 for each month. It involves the national system as well as the provincial ones and that of the Autonomous City of Buenos Aires.

9. FRAUDULENT TAX INSOLVENCY.

The prison sentence of two to six years is maintained for the obligor who, having become aware of the initiation of an administrative or judicial procedure aimed at the determination or collection of tax obligations or contributions and social security contributions, provokes or aggravates insolvency, own or others, frustrating in whole or in part the fulfillment of such obligations. The novelty lies in the fact that it refers to taxes or contributions and contributions not only from the Nation but also from the provinces and from the Autonomous City of Buenos Aires.

10. WILLFUL SIMULATION.

The prison sentence of two to six years is maintained in the same commissive modality: false registrations or receipts or any other trick or deception arranged to simulate the total or partial payment of tax obligations or social security resources or derived from the application pecuniary sanctions, whether their own obligations or those of third parties. The novelty lies in the fact that it refers to national, provincial and Autonomous City of Buenos Aires taxes.

11. WILLFUL ALTERATION OF RECORDS.

The prison sentence of two to six years is maintained for anyone who in any way steals, suppresses, conceals, adulterates, modifies or disables the records or documentary or computer media for the purpose of disguising the real fiscal situation of an obligor. The novelty lies in the fact that it no longer only refers to national taxes but also to provincial ones and those of the Autonomous City of Buenos Aires, related to tax obligations or social security resources.

The new regime incorporates art. 12 bis of Law 24,769 to punish with prison from one to four years, whoever modifies or adulterates computer systems or electronic equipment, supplied or approved by the national, provincial or Autonomous City Treasury of Buenos Aires, as long as said conduct is likely to cause harm and does not result in a more severely punished crime.

12. ACT INSTEAD OF ANOTHER.

The art. 14 of the regime, Law 24,769 provides that when the acts typified by the law are committed in the name, with the help or for the benefit of a person of ideal existence, a mere de facto association or an entity that despite not having the quality of a subject By law, the regulations attribute obligated status to him, the prison sentence will be applied to the directors, managers, trustees, members of the supervisory council, administrators, agents, representatives or authorized persons who have intervened in the punishable act, even when the act that would have served as a basis for the representation is ineffective.

In these cases, the reform of the criminal tax regime establishes that the following accessory sanctions will also be imposed on the entity, jointly or alternatively. These sanctions are:

1. Fine of two to ten times of the verified debt.
2. Total or partial suspension of activities, which in no case may exceed five years.
3. Suspension to participate in state contests or bids for public works or services or in any other activity linked to the State, which in no case may exceed five years.
4. Cancellation of legal status, when it had been created for the sole purpose of committing the crime, or those acts constitute the main activity of the entity.
5. Loss or suspension of any state benefits you may have.
6. Publication of an extract of the conviction at the expense of the person of ideal existence.

The new regime provides that to graduate these sanctions, the judges will take into account the breach of internal rules and procedures, the omission of vigilance over the activity of the authors and participants, the extent of the damage caused, the amount of money involved in the commission of the offence, the size, nature and economic capacity of the legal entity.

When it is essential to maintain the operational continuity of the entity or of a particular work or service, the sanctions provided for in subparagraphs 2 and 4 above shall not apply.

13. SPONTANEOUS REGULARIZATION.

The original regime contemplated the so-called “silver bullet”, that is, the possibility of extinguishing, for the only time, the criminal action when the liquidation was accepted and the amount claimed was paid, unconditionally – before formulating the tax request for elevation on trial- This benefit has been removed.

The new art. 16 of the law provides that the obligated subject who spontaneously regularizes his situation, complying with the evaded obligations, will be exempt from criminal liability provided that his presentation does not occur as a result of an inspection initiated, observation by the supervising department or complaint presented, which is directly or indirectly linked to it.

14. ADMINISTRATIVE AND CRIMINAL PROCEDURE.

Replaced art. 18 by another that empowers the AFIP DGI to formulate a complaint once the ex officio determination of the tax debt has been issued or the challenge of the minutes of determination of the debt of the social security resources has been resolved in administrative headquarters, even when they are found appealed the respective acts.

In those cases in which the administrative determination of the debt does not correspond, the pertinent complaint will be formulated immediately, once the administrative conviction of the presumed commission of the illicit act has been formed.

When the criminal complaint is filed by a third party, the judge will forward the information to the corresponding collection agency so that it can immediately begin the procedure for verifying and determining the debt. The collecting agency must issue the administrative act referred to in the first paragraph within a period of one hundred and twenty administrative business days, extendable at the well-founded request of said agency.

15. ELIMINATION OF THE FACULTY OF THE TREASURY NOT TO MAKE A CRIMINAL COMPLAINT.

The reform of the criminal tax system repeals the power provided for in art. 19 of the previous Criminal Tax Regime, which consisted in the fact that the AFIP DGI official was authorized not to file a criminal complaint in those cases in which the circumstances of the act clearly suggest that the punishable conduct has not been carried out.

16. NON-EXISTENCE OF PREJUDICE.

The formulation of the criminal complaint does not suspend or prevent the substantiation and resolution of the procedures aimed at the determination and execution of the tax debt or social security resources, nor that of the administrative, contentious-administrative or judicial resources that are interposed. against the resolutions passed on them.

The administrative authority will refrain from applying sanctions until the final sentence is handed down in criminal court. In this case, the provisions of article 74 of Law 11,683, text ordered in 1998 and its modifications, or analogous regulations of local jurisdictions, will not apply.

Once the criminal sentence is signed, the administrative authority will apply the corresponding sanctions, without altering the statements of facts contained in the judicial sentence.

17. COMPETENT COURTS.

In relation to national taxes, the competence for the application of the law is maintained in the Autonomous City of Buenos Aires, the national justice will be competent in tax criminal matters, maintaining the competence of the jurisdiction in economic criminal matters in cases that are in process before it. With regard to the remaining jurisdictions of the country, the federal justice will be competent.

In relation to provincial taxes and those of the City of Buenos Aires, the respective provincial judges or those of the Autonomous City of Buenos Aires will be competent.

18. INAPPLICABILITY OF THE PROBATION.

Added art. 76 bis of the Penal Code of the Nation, establishing that it is not appropriate to suspend the trial with respect to the illicit repressed by the Criminal Tax Regime. At this point, interpretive conflicts will arise regarding the application of the most benign criminal law and its application -or not- regarding procedural issues.

ALTAMIRANO & ASOCIADOS