The Federal Public Revenue Administration (AFIP) recently issued general resolution no. 5.248 (16.08.22), through which the business community is obliged having to enter a extraordinary deposit income tax.

For whom is reached, this measure will certainly alter the normal course of business due to its impactamong other things, not least in the working capital of companies, it forces us to rethink the corporate decisions already taken, and in some cases to resort to sources of financing to try to comply with the provisions of this regulation, in a premature and unexpected form.

Even if he is condemned to pay it in three installments to try to mitigate its harmful effect (see: for the closures of this end of the year the respective deadlines will operate in the months of October, November and December), the reality is that there are very profound questions to see no other purpose than the one that motivates the dictation, what is a collection need which, while understanding it, goes beyond the Agency’s sphere of competence, falling into an unacceptable arbitrary.

The provision is based on mere expectations of extraordinary revenues following the public policies adopted in the context of the Covid-19 Pandemic and the war in Eastern Europe, which in the end would have ended up benefiting some sectors of the economy.

It is a question of finding – technically – a cause that justifies the dictation of the administrative act, but based on a deceptive syllogistic reasoning, since it is evident that the legal consequences may not be verified in the facts, leaving everything in a mere plane of unverifiable hypotheses . Like thisthe motivation -what about the reasons of the administrative act that justify the cause- lose all reason for beingdistorting those essential legal requirements that justify it. Then, as mentioned, it falls within the concept of arbitrariness, which is unacceptable in this context.

If what the Administration estimates is that there could be a greater tax capacity at the head of some taxpayers, The issue should have been approached differently. In fact, if the obligation to be created were based on the obligation to deposit this extraordinary advance when a projection of the results in compliance with the requirements occurs, even if it can still be criticized for the variation of the rules of the game One day after the otherthe cause of the obligation could find legal significancewithin what is acceptable within the discretion of the Agency.

But this was not the case and it is repugnant to the legal system to issue a provision of this nature which, of general application, thus undermines subjective rights, in a manner disrespectful of the guarantees of the companies.

Secondly, the resolution itself reduces any possibility of recording this advance with balances freely available to taxpayerswhich implies not only an unacceptable restriction on the right of the compensation institution when there are mutual credits and debts between debtor and creditor, but also, a clear violation of property rights, falling within the concept of collection (unjust and violent collection). The availability that the taxpayer has of his own money is reduced, with the clear aggravating effects that this has in an inflationary context that deteriorates the value of the currency and violates equity.

It is known that the advances system imposed by Afip for some time requires the payment of one hundred percent of the tax before the act of ascertaining the final obligation must be presented, on the sole basis of certainty that the Agency can legitimately assume – without resorting to the ex officio determination procedure -, which is that declared by the taxpayer in the previous year, given the self-determination – prevailing declaration system on the subject (Law 11.683).

AFIP: extraordinary payment of personal income tax

Request an additional and advance payment of a sum that exceeds the certain limit on the basis of mere conjectures that do not even admit the possibility of proving the opposite (however: it is expressly forbidden that this deposit can be considered within a possible request for a reduction in advances) , it is clear and simple to have replaced the function of a formal law of Congress, violating the constitutional principle of legality that cannot be imposed on us without a law that establishes it.

It should also be noted that by mere conjecture and without respecting the principle of fiscal capacity -limitation in tax matters-, it falls into the simplism that a state body through a mere administrative resolution decides to innovate in the creation of a tax through a presumption (which does not admit evidence contrarie -iuris et de iure-), for which, given the existence of certain facts, it is possible to project a hypothetical and generalized effect (presumed benefit), creating the same and unique reality (supposed) for all administered indiscriminately. In other words, even if it is a question of masking, a fiscal fiction is used without a law that guarantees it, giving rise to the creation of a legal truth that dispenses with the true connection between facts and their necessary inference. Nothing could be more disrespectful than the principle of legal certainty and the conditions of legitimacy of the administrative act, for which there is only room for a clear repudiation of the same.

On another plane, beyond the strictly juridical, the error of the provision you plan other no less important consequences. It is clear that by inflicting another blow to the private sector its potential resilience in economic activity is damaged, motivating divestment and further complicating the possibility of reducing the high unemployment rate recorded in the country, for which it is expected that even the sectors with fewer resources will be recipients of the negative effects of this measure.

Consequently, it is necessary to proclaim the necessary reflection that at this point must prevail, so as not to stubbornly continue on a dead-end road, which does not stop suggesting another stage with very serious consequences and insured litigation, that nothing is good. for the country as a whole and for the treasury-taxpayer relationship in particular.

YN