This article was first published in Argentine Business Law Watch1
This edition of Argentine Business Law Watch borrows from the soccer vernacular to report on an opinion recently issued by the Procuración del Tesoro de la Nación. This opinion, contrary to the position taken by the tax authorities, determined that profits from sales of closed corporation stock are not subject to capital gains tax. Already paid the tax? Find out below what you and your clients can do to recover the tax paid.
Until 2001, investors in Argentine companies could buy and sell their holdings without paying any tax on capital gain. In 2001, the Argentine government, acting legislatively and by executive decree, modified the rules to tax gains on sales of stock in closed corporations.2 As a result, Argentina began taxing gains realized by Argentine residents and corporate shareholders domiciled in tax havens. For these persons, the applicable capital gain rate was fixed at 35% for short-term (less than one year) gains and 15% for long-term gains. Investors in publicly-traded Argentine companies were not affected and stock sales of these companies remain exempt from capital gains tax.
In January 2002 the Argentine Congress repealed the statute creating the tax, though it did not specify an intent to repeal the tax itself. This led to diverging interpretations among taxpayers, practitioners and the authorities, as to whether the tax continued to apply. The government turned to the Procuración del Tesoro de la Nación (the Office of the Attorney General on Fiscal Matters) for an advisory opinion to clarify. In Opinion 351/2003 (July 3, 2002) the Attorney General concluded that gains from stock sales were not subject to capital gains tax.
The opinion determined that the tax was eliminated upon repeal of the enabling statute— hence effective as of the 2002 fiscal year. Although the opinion is non-binding, the tax authority should adhere to its conclusions. Nonetheless, the government is unlikely to expressly recognize credit for taxes paid and even less likely to issue refunds to those who paid the tax in 2002. As a result, we are advising several clients in administrative claims to obtain credit against current and future income.
The Attorney General’s opinion clarified the government’s position on a controversial issue that has generated substantial uncertainty. Just as importantly, the demonstrable check and balance on government taxing power strengthens trust in a legal system that has suffered a widening credibility gap in recent years.
- "Argentine Business Law Watch" is a periodic news service provided free of charge to clients and friends of Negri, Teijeiro & Incera. To read past editions of "Argentine Business Law Watch", visit our website at www.negri.com.ar.
- Law No. 25,414 (March 2001) and Decree No. 493/01 (April 2001).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.