On March 29, General Resolution No. 5339/2023 of the Federal Administration of Public Revenues (“the Resolution”) was published in the Official Gazette. The Resolution provides for the suspension of the certificates of exclusion of perceptions for the Income Tax (General Resolution No. 2281/2007) and Value Added Tax (“VAT”) perception regimes (General Resolution No. 2937/2010) applicable at the time of definitive imports of goods.
In principle, the aforementioned suspensions will imply that the National Customs Administration (“Aduana”), acting as collection agent, will apply income tax and VAT perceptions to all final imports made as from March 29, even when the taxpayer has an exclusion certificate in force for those regimes.
The only exceptions to the suspension provided for are:
- 1. Those subjects qualified as Micro and Small Companies and that have the “MiPyME” certificate issued in force.
- 2. Imports for consumption carried out on behalf of the National State.
- 3. Imports for consumption exempted by the General Budget Law of the National Administration for Fiscal Year 2023.
In addition to the application of the benefits due to the suspension, the Resolution establishes that:
- In the case of income tax deductions on account, such deductions may be computed at the time of filing the tax return corresponding to the tax period in which they were incurred.
- 2. In the case of Value Added Tax (VAT) perceptions, and until December 31, 2023, the perceptions suffered may only be computed in the VAT affidavit 9 months after the import dispatch in which they were suffered.
Practical consequences of the policy
As a result of the above, the first direct consequence is that the tax losses suffered as from March 2023 can only be used as from December 2023. That is to say that, for example, the use of VAT perceptions suffered during March 2023 can only be made in January 2024, when filing the tax return corresponding to the period December 2023.
The purpose of this measure is to generate a credit balance in VAT and/or Income Tax, while at the same time making it difficult and postponing its recovery. In this way, an additional financial cost and detriment to equity is generated, which indirectly has an impact on the import operation, through which the official exchange rate for the transfer of foreign currency can be accessed.
On the other hand, only those who have an exclusion certificate in force as of March 29, 2023 for Income Tax and/or VAT will be affected by the deferral. This derives in a clear arbitrary discrimination, aggravating the problem of credit balances precisely to a universe of taxpayers who were suffering from it.
Potential challenges to the Resolution
On the one hand, there is an excessive extension of a regime of collection and payment on account of taxes, in whose design it is not possible to aspire to obtain an anticipated collection greater than the expectation of the same tax to be accrued in the future.
As a legal mechanism to avoid this situation, generally the advance collection systems in force contemplate a mechanism to credit the generation of credit balances and request the exclusion of future collections, so as to immediately absorb the balances generated by a tax that will never be paid in whole or in part.
With this new Resolution, not only the possibility of obtaining the exclusion of the application of tax credits in order not to generate or increase the credit balance is suspended, but also the use of the tax credits suffered is deferred. This generates a clear financial detriment, since, in addition, the tax loss suffered and the credit balance generated are not updated in any way.
On the other hand, an unjustified and unreasonable discrimination is generated, since the delay for 10 months in the computation of VAT perceptions only affects those who at that date have an exclusion certificate, which was granted to them precisely for being in a situation of accumulated credit balance. For example, the perceptions suffered in the month of March 2023, as from the entry into force of the Resolution, may only be computed in the VAT affidavit for the period December 2023, to be filed in January 2024.
Finally, given the deficient legislative technique used, it should be interpreted that the suspension provided for VAT perceptions is only with respect to the possibility of requesting a new exclusion certificate for those who do not have it, or if they have it, it expires between March 29 and December 31, 2023.
Therefore, in the case of having one in force to date, this certificate should be perfectly valid so that no perceptions are applied during the validity of this measure. However, it is very likely that this is not the interpretation made by Customs, who is the collecting agent, and directly applies VAT perceptions on imports made since March 29, without any discrimination whatsoever.
Means of challenge
Given that the validity of the measure extends until December 31, 2023, any remedy attempted must produce immediate effects in order to be useful. That is why the best viable alternative is the urgent request for an injunction in court where the suspension of the effects and application of this new Resolution should be requested. However, it should be clarified that achieving a favorable measure of this nature is usually of an extremely exceptional nature, and the seriousness of the damage that the application of the Resolution will imply must be accredited.
