Companies that have earned more than $ 300 million are required to make their first extraordinary income tax advance in October.
The Federal Public Revenue Administration (AFIP) created, with General Resolution 5246, an extraordinary advance due to income tax (GI) for certain companies.
In the recitals, the rule recalls that at the beginning of the current year the world economy was affected by a general and extraordinary increase in international prices, especially goodsfood and energy, following the war in Eastern Europe – the war in Ukraine -.
The need is also stressed for the state to take an active rolegenerating tools that make it possible to reduce negative impacts, presumably to allocate them to progressive redistribution of income.
For all of the above, the AFIP has ruled Only for this time an extraordinary payment into the IRPEF account that must be paid by the subjects who, “… not only have been benefiteds for the effects described, but also manifest a high ability to pay (sic).
The subjects obliged to pay this extraordinary advance are i society of the country and the local branches of foreign companies, when they meet one of the following parameters:
1. The amount of the Determined Tax of the deed of notoriety corresponding to the financial year 2021 or 2022, depending on the case, is equal to or greater than to $ 100,000,000, or
2. The amount of the Tax Result that derives from the deed of notoriety referred to in the previous point, without applying the deduction of the tax losses of previous years pursuant to the aforementioned tax legislation, is equal to or more than $ 300,000,000.
As noted, the rule does not limit the extraordinary advance to companies that would have had extraordinary revenues due to the global context (goods, food or energy).
Anyone who meets the defined parameters will be bound. It may be the case of a company with an increase in its tax result due to the technique of inflation adjustmentn (as investments in fixed assets) and therefore exceeds $ 100 million, which has no planned exceptions.
For the purposes of applying the parameters indicated, it is necessary to consider the deed of notoriety for income taxes. corresponding to the financial year 2021, in the event that the closure of the financial year was made between the months of August and December 2021, both included. Taxpayers whose financial year ends between January and July 2022, both included, must consider the tax return deed corresponding to the financial year 2022.
The extraordinary advance will be computable in the financial year subsequent to the one taken on the basis of the calculation referred to in the previous paragraph: fiscal period 2022 or 2023, respectively.
Distortions of the norm
We have observed it there may be a distortion of the concept of “advance”. Note that the assumptions “Extraordinary income” have been verified during first half of the current year. Then, a company ending fiscal year in June 2022 will include these results in its financial statements and affidavit.
There are no reasons for an extraordinary advance on account of a subsequent year (2023) which will not have extraordinary income. If so, the AFIP collection claim will be orphan of justification.
The amount of the down payment will be determined as follows: Subjects with down payments determined in accordance with current legislation (RG 5211 and subsequent amendments) must pay 25% based on the calculation of the advances.
Subjects who have to pay advances according to RG 5211 (either because in the calculation basis there are losses from previous years or because the withholdings and / or perceptions exceed the determined tax) must pay 15% on the tax result of the base tax period without deducting said losses.
The difference between one and the other case it can be terrible.
AFIP’s decision to undoubtedly exclude losses from the calculation basis undermines the nature of the advances, what should respect the ability to pay of taxable persons. Advance payments in excess of what will be the tax of the following fiscal period are not allowed.
This being the case, consider the losses of previous years, even more those that will actually be deductedit is an obligation not to create a account dissociated from reality, which is ignored here. Ignoring the above, the National Treasury incurs a manifests arbitrariness.
voracity of harvest
There are two other measures in this general resolution that expose the voracity of harvest What motivates the rule? does not allow cancellation for compensation with balances in favor that a taxpayer may have for other taxes; This advance cannot be considered as a reduction in advances.
In other words, payment is supported and nothing but payment.
The inability to compensate is questionable. The AFIP is authorized by Law 11.683 on the Tax Procedure to make compensation ex officio, “… whatever the form or procedure in which they are constituted, with the debts or tax payables declared by it or determined by the Federal Administration … “. Decidedly, nothing authorizes the denial of compensation.
With regard to the above, we remind you that the Court of Cassation (CSJN) ordered in the case “Rettifiche Rivadavia” that AFIP proceed to the compensation of the taxpayer’s obligations despite its regulation did not foresee it.
The reduction of advances, when it is estimated that the tax to be paid with the expected calculation method will be higher than the tax obligation that is projected for the period against which they will be charged, responds to the nature of this institution and compliance with the ability to pay
The jurisprudence is undisputed according to which the duty of individuals to pay taxes corresponds to a correlative right of the Treasury to collect, “…law that finds its limit in the definitive configuration of the taxable event, or in the effective outsourcing of the taxable capacity “(” Deliveverers of Kerosene from Fiscal Oilfields of Córdoba c / General Tax Directorate “, CSJN, of 12/13/1984, Sentences: 306: 1970).
There is no doubt that this payment on account It has many irregularities. First, an anticipated income can result higher than taxes determined in the fiscal period against which it will be charged, which denotes a violation of the principle of legality and a patent damage to the effective taxable capacity.
Those who have balances in favor of other taxes, VAT refund credits for exports made or export refunds awaiting collection should – in principle – pay the extraordinary advance despite being a creditor of the same National Treasurythat doesn’t make any sense.
The failure to predict losses of previous years ignores the real ability to pay, which must be the guiding principle of all taxes.
Without too much effort, you notice that there are several defects in the norm commented, which allow access to justice to question a collection that a priori presents itself as illegal, unreasonable and arbitrary.
The first deadlines of this deposit will begin next October, Sufficient time to evaluate and implement an adequate procedural strategy (declaratory action, amparo, precautionary measure to avoid judicial collection).
A necessary reflection also has to do with the efficient and effective use of financial resources by the state. Taxes are always rising and the situation gets worse. Here too we see a transfer of wealth from the productive sector to the public sectorin the midst of a crisis in which it seems that the only one who should undertake to provide more resources and to finance public spending which is far from being transparent, efficient and effective in satisfying the needs of the population (education, security, justice, poverty, among others) is the private sector.
* César Litvin and Martín Caranta are part of Lisicki, Litvin y Asoc.
NEITHER
Cesare Litvin
Martin R. Caranta
Source: Clarin
