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In brief

On 9 June 2022, Joint General Resolution No. 5205/2022 of the Federal Tax Authority and the National Mining Secretariat was published in the Official Gazette (“RG 5205“). Such resolution repeals Joint General Resolution 4428/2019 and sets the new regulatory framework applicable to subjects that have borne, in a fiscal year and in national jurisdiction, a total tax and/or tariff burden higher than what would have corresponded for being beneficiaries of the tax stability provided in Article 8 of the Mining Investment Law, and wish to request the refund or crediting of the amounts paid in excess according to the provisions of paragraph c) of Article 4° of Annex I of Decree No. 1,089 of 7 May 2003.


The main provisions of RG 5205 are as follows:

  1. Tax burden: The determination of the total tax burden in the national jurisdiction must be made separately for each project covered by the tax stability and for each fiscal year in which the income tax has expired. Likewise, each project must be identified, indicating its geographic and georeferenced location (town, department, province, etc.).

For the determination of the tax burden, the guidelines set forth in Section 8 of Law No. 24,196, as amended, and in Section 8 of Decree No. 2,686 of 28 December 1993, as amended, shall be considered.

  1. Request for credit or refund: In order to make the request for credit or refund, a single presentation must be made independently for each undertaking or project covered by the tax stability and for each fiscal year in which the income tax has expired. The filing must be made before the Undersecretariat of Mining Development in the manner and within the term it determines. The aforementioned request must contain the sworn statement form attached as an annex of RG 5205, which should include, among other information, the justification of the increase in the total tax burden; proof of such increase; a report issued by an independent public accountant issuing an opinion on the reasonableness, existence and legitimacy of the amount included in the request for credit or refund, etc.
  2. Procedure: In the event that the Undersecretariat of Mining Development considers that there was any omission, it will inform the submitter, granting a term of 10 days. If it has no observations, it will forward the administrative file to the Federal Tax Authority.

The Federal Tax Authority may require additional information or request the correction of omissions. The requests submitted will be subject to verification and inspection by the Federal Tax Authority. Once the verification and control is completed, the intervening public officer will issue a Resolution that shall include:

  • The date of notification of the commencement of the audit, as from which the request made by the taxpayer shall take effect
  • If applicable, the grounds that support the total or partial contestation of the requested amount
  • The amount authorized for crediting or refunding, broken down by each tax and period

The responsible parties may express, if applicable, their disagreement using the appeal procedure provided for in Section 74 of Decree No. 1,397/79, as amended.

  1. Credit or refund of the authorized amount: The authorized amount will be credited in the ‘Tax Account System’ of the Federal Tax Authority website.

For the use of the authorized amount, it will be a necessary condition that the taxpayer does not register noncompliances with respect to:

  • The obligation to enter and settle foreign currency in accordance with the provisions of Decree No. 609 of 1 September 2019, as amended
  • The obligation to file determinative and/or informative tax returns
  • The obligation to register and/or update data in the ‘Tax Registry of Mining Companies,’ provided for in Title I of General Resolution No. 3,692 (AFIP), as amended

5. Use of the authorized amount: Once the nonexistence of the referred noncompliances is verified, the taxpayer will be able to:

  • Cancel its tax obligations and those derived from its performance as a withholding and/or collection agent of tax obligations.
  • Request that the Federal Tax Authority cancel on its behalf the debts corresponding to social security liabilities.
  • Request its refund. The refund of the authorized amount may only be requested when (i) there are no liquid and enforceable debts before the Federal Tax Authority and (ii) a Uniform Bank Code (CBU) has been declared in the Register of Uniform Bank Codes, created by General Resolution No. 2,675 (AFIP), as amended.

6. Waiver of rights: It will be a necessary condition that the applicants unconditionally accept or, as the case may be, desist and waive all actions and rights, including that of reimbursement, in relation to the obligations subject to accreditation or refund, which will take effect as from the date of notification of the act that positively resolves on the merits of the respective application.

7. Additional regulations: The Secretariat of Mining and the Federal Tax Authority shall issue the necessary procedural rules for the effective implementation of the processing of the accreditation or refund requests within 45 administrative working days as from the effective date.

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Author

Martin Barreiro is experienced in various areas of tax law. He is a member of the Buenos Aires Bar Association, the American Chamber of Commerce in Argentina, the Tax Sub-Committee and the Argentine Association of Taxation Studies. His extensive list of publications include "New Argentine Social Security System" for the International Company and Commercial Law Review and "The S.R.L. in the tax planning of US investors in Argentina" for the Economic and Tax Journal.

Author

Adolfo Durañona is managing partner of Baker McKenzie’s Buenos Aires office since 2013. He has extensive experience working on corporate and commercial transactions for companies in the oil & gas, mining and natural resources industries. Adolfo has authored several reviews for various publications — including Sweet & Maxwell — usually involving Argentinean investments and mining. He is ranked in Chambers and Partners as a Tier 1 attorney for Argentina, Energy & Natural Resources: Mining.

Author

Juan Pablo Menna is a partner in the Tax Practice Group in Baker McKenzie, Buenos Aires. He is a member of the Buenos Aires Bar Association and the Argentine Association of Fiscal Studies, and was a professor in Austral University.

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