In brief
The criteria used by the Tax Authority (AFIP) to calculate financial economic capacity (CEF) is inconsistent with the amount of documentation and information taxpayers are required to provide. This suggests an arbitrary decrease in the criteria used.
This situation has turned the CEF system into an import restriction, which is clearly discriminatory and prohibited in the light of international commitments.
Through General Resolution 4294, published in the Official Gazette on 14 August 2018, the AFIP approved the System of Financial Economic Capacity (“CEF System“) as a control instrument for tax, customs and social security.
The CEF System calculates a monthly assessment of taxpayers’ financial-economic capacity, which represents their capacity to carry out acts with tax consequences, such as foreign trade operations. This calculation takes into consideration affidavits of taxes, mortgages, purchase or sale of real estate or vehicles, salaries, bank debts, among others. In addition, the resolution allows the affected taxpayer to dispute the calculation.
A few months later, through Joint General Resolution No. 4364, the AFIP and the Secretary of Commerce began to require compliance with the parameters imposed by the CEF System in order to obtain an import license (SIMI). It also became a requirement to make payments of services abroad through the SIMPES (payment of services abroad authorization) System.
However, we have noticed that the parameters used to calculate the CEF do not agree with the documentation and information provided to the AFIP for its calculation. This suggests that there was an arbitrary decrease in the criteria used. This is hindering imports as SIMIs cannot be processed because they do not comply with the parameters.
This situation has caused arbitrary, discriminatory and prohibited import restrictions in the system.
Although the CEF is not presented as a license, we understand that in practice it may act as a type of license and be used as such. For this reason, although the resolution does not require it, taxpayers should file a dispute within the 30 days period imposed by the World Trade Organization Agreement on Procedures for Import Licensing.
Otherwise, importers may have to challenge the CEF System in court.
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