The Federal Court of Mendoza upheld a ruling in favor of a taxpayer who decided not to pay the new tax on large fortunes because he had obtained a change of tax residence to Uruguay before the implementation of this tax. If the Administración Federal de Ingresos Públicos – AFIP (Federal Administration of Public Revenues) appeals again, the Supreme Court will decide, reported Infobae.
The mentioned court decided in its decision to ratify the order and “to decree a precautionary measure not to innovate in favor of the taxpayer Darío Javier Rosenzvit and his substitute responsible, Vicente Arusa under the terms of article 15 of law 26584”.
It also established “to order the AFIP to refrain from intimidating, executing, determining and/or administratively or judicially demanding the non-payment of the wealth tax, apply fines, embargoes or any other indirect measure”. The injunction was granted for a term of six months, although it may be extended.
The magistrates expressed that “it is appropriate to reject the appeal filed by the AFIP”, indicating that the taxpayer, who should have paid $13,011,816.24, had not been able to prove his change of residence. “Mr. Rosenzvit, as plaintiff, files a declaratory action of certainty and requests a precautionary measure not to innovate”, it was indicated, against the Ministry of Economy and the AFIP.
In his presentation, the plaintiff stated that he was able to prove the requirement of “verisimilitude of the right” due to the generation of a “double taxation”, given the Agreement to avoid it that was signed between Argentina and Uruguay. They explained in the ruling that:
- “The plaintiff obtained a National Identity Card from the neighboring country, issued on 08/05/2020”.
- “The plaintiff obtained a certificate of residence whose registration dates from 15/05/2020 (proof of residency certificate issued by the Public Security Management System of Uruguay)”.
- “The plaintiff obtained a Tax Residency Certificate issued by the General Tax Directorate of Uruguay, issued on 27/08/2020”.
This document states that “the person individualized herein has been a tax resident in the Oriental Republic of Uruguay by virtue of the domestic legislation of said contracting state and has been subject to taxation, for the period from 01/01/2020 to 12/31/2020”. It should be recalled that the Senate passed this bill into law in December 2020, and then the corresponding regulatory rules were issued.
The magistrates understood that, without considering the substantive issues that cannot be covered by a precautionary measure, there is a danger of “delay” that requires the issuance of this measure in view of the processes usually displayed by the AFIP to enforce compliance with the law.
Finally, tax expert CésarLitvin reported in Infobae that “this is a taxpayer who filed the cancellation with AFIP before the entry into force of the Solidarity Contribution, questions the tax and requests a precautionary measure, together with the Declaratory Action, granted in the first instance”.
“The decision of the Federal Court of Mendoza does not accept AFIP’s appeal against the injunction granted in the first instance in the Federal Court of San Juan (of Leopoldo Rago Gallo), since it considers that the requirement of verisimilitude of the right due to the interpretative collision of rules that may affect constitutional guarantees has been duly accredited”, said Litvin.
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Source: Infobae 10/08/21