On December 23, 2016, the US ambassadors and Alberto Abad signed an agreement for the exchange of tax information on request.
1. Introduction
For the past few years, Argentina has been an active participant in the progress of exchange of international tax information.
More than seventeen agreements have been signed by Argentina from 2010 to date, although, depending on the State, their scope may be broader or narrower.
There are two types of information exchange: a) automatic exchange and b) upon request.
Regarding the automatic exchange of information, the United States implemented the "Foreign Account Tax Compliance Act" ("FATCA"), by which it obtains information from financial institutions and other entities about nationals from their country around the world. The information is obtained periodically without any investigation by the United States Treasury.
The Organization for Economic Cooperation and Development ("OECD") has developed a multilateral automatic exchange of information agreement between several countries, and Argentina is one of them.
However, Argentina and the United States had not signed a bilateral information exchange under the FATCA as well as an agreement on request.
This situation was reversed on December 23, 2016, when both countries signed the exchange of information agreement ("Exchange"), the first in this area. The main aspects are described below.
2. The Exchange
a. General Aspects
The main object of the Exchange is the information that is foreseeably relevant for the determination, assessment and collection of taxes, the recovery and enforcement of tax claims, as well as the investigation or prosecution of tax matters.
The information to be exchanged must comprehend all federal taxes in the case of the United States, and all national taxes administered by the Federal Administration of Public Revenue in the case of Argentina, including any identical or substantially similar taxes that are imposed in either one or the other Contracting States, after the date of signature of this agreement. Notwithstanding, the competent authorities of the Contracting States must notify each other of any significant changes that have been made in their taxation laws that may influence the Exchange.
The Exchange must initially be ''upon request''. Despite that fact, the information must be provided without regard to whether the requested party needs such information for its own tax purposes or whether the conduct being investigated would constitute a crime under the laws of such party.
The information to be exchanged must include:
- Information held by banks, other financial institutions, and any person acting in an agency or fiduciary capacity including nominee and trustee; and
- Information regarding the ownership of companies, partnerships, trust, foundations, and other entities, including ownership information on all such settlors, trustees, and beneficiaries, and in the case of foundations, information on founders, members of the foundation council and beneficiaries. The only exception is the listed companies.
We understand that the agreement includes several important aspects and allows for a diverse range of information to be obtained, whereby the local tax office could achieve an efficient control over the tax payments for the assets being held abroad. It may also become an efficient way of obtaining significant evidence for administrative proceedings. .
On the other hand, and particularly when trying to avoid "fishing expeditions", compliance guidelines are designed for the exchange of information, regardless of which party is the requested party, with clear instructions to provide the information with the greatest degree of specificity possible. Among those, the following stand out:
- The identity of the person or ascertainable group or category of persons under examination or investigation;
- The period of time with respect to which information is requested;
- The matter under the applicant party's tax law with respect to the information is sought;
- Grounds for believing that the information requested is foreseeably relevant to tax administration or enforcement of the applicant party with respect to the corresponding person or group or category of persons requested;
- Grounds for believing that the information requested is held by the requested party or is in the possession or control of a person within the jurisdiction of the requested party;
- A statement that the applicant party has pursued all means available in their own territory to obtain the information, except those that would give rise to disproportionate difficulties.
b. Entry into force
Considering the current context in Argentina where the Tax Amnesty Regime is in force (see Argentina Has Released a New Tax Amnesty Regime) an important aspect is the entry into force of the Exchange.
Section 14 of the Agreement provides that the entry into force must be one month from the date of receipt of Argentina's written notification to the United States that Argentina has completed its internal procedures.
The requirements may be formulated as of the entry into force of the Agreement. However, these requirements must be about information regarding taxable periods beginning on January 1 of the calendar year following the year in which this Agreement enters into force.
This means that if the United States receives the notification from Argentina during the last days of 2016, the date this Agreement would enter into force is January 2017, so the taxable period from which information could be exchanged would be 2018.
The date this Agreement enters into force is important not only for the taxpayers, but also for the bank entities and registration agents, who must allow for sufficient time to adapt and prepare the procedures to enact the agreement.
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.
