Contributed By McEwan, Roberts, Dominguez, Carassai
The Argentine tax regime is present at the three levels of government: federal, provincial and municipal. The most relevant taxes at federal level levied on individuals are income tax and personal assets tax, although there are other taxes that, though normally irrelevant, may have an impact in the event of wealth structuring.
Individuals residing in Argentina are subject to personal income tax (Ganancias Personas Físicas) on worldwide income. Briefly, the following will be deemed Argentine residents:
The applicable tax rate amounts to no more than 35%, and certain deductions are permitted. A tax credit will also be permitted with respect to a similar tax paid abroad.
In December 2017, Law 27,430 was enacted, which introduced significant changes which affect the tax aspects for individuals and families, with respect to the taxability of financial investments, but mainly through the incorporation of new controlled foreign corporation (CFC) rules. Thus, new rules of fiscal transparency have been established. The transparency will apply to those vehicles where the owner has control, and the same do not have due substance, or 50% or more of their income comes from passive income. On the other hand, the Law eliminates income tax exemptions for financial investments, capital gains being taxed at a rate of 15%, and as regards dividends and interest, the applicable rate shall be a progressive rate whose maximum shall be 35%. The Law also imposes a 15% tax rate on income derived from the transfer of real estate except real estate for dwelling purposes. This tax applies to transfers of real estate, to the extent that the real estate is acquired on or after 1 January 2018. In this sense, the Law repeals the prior tax on the transfer of real estate ("ITI" for its acronym in Spanish – tax rate 1.5% applicable on sale price) for such cases in which the 15% tax becomes applicable.
Argentine residents are subject to a tax that is assessed on all of the individual’s property (personal assets tax) located in Argentina and abroad as of 31 December each year. Law 27,260 (enacted in July 2016) introduced the following changes:
This tax is also applicable to non-residents under the Substitute Taxpayer Regime (Responsable Sustituto) and, in this case, it is assessed on property located in Argentina. Law 27,260 also introduced changes in the tax rate, such that non-resident individuals would be subject to a fixed rate of: (i) 0.75% for the 2016 tax period; (ii) 0.50% for the 2017 tax period; and (iii) 0.25% for the 2018 tax period and subsequent periods. A tax credit will be permitted with respect to a similar tax paid abroad.
Expatriates residing in Argentina on work assignments for a period not exceeding five years are considered to be domiciled in Argentina, but they are taxed only on personal assets located in Argentina.
In Argentina, and for the moment, there is neither federal gift nor inheritance/estate tax. A gift tax/estate tax (Impuesto a la Transmisión Gratuita de Bienes) is applicable within the provinces of Buenos Aires and Entre Ríos. Even though the Buenos Aires province is the most populous jurisdiction in Argentina, accounting for approximately one-third of Argentina’s total population, there are another 22 provincial jurisdictions in which no similar tax has so far been levied. However, it cannot be ruled out that the federal government will not introduce similar taxes in the future. In any case, the federal government must achieve first that both Buenos Aires and Entre Ríos repeal the local law which establishes the gift tax.
Gift taxis assessed on any increase in an individual’s wealth due to the receipt of a gratuitous transfer of assets from acts including inheritances, legacies and gifts. According to the law, the following are deemed to be taxpayers:
The tax-free allowance and the tax rates have both been modified on 2018 as follows:
The Tax Codes of the two relevant provinces establish subjective and objective exemptions.
As we mentioned last year, Law 27,260 introduced staggered modifications in the non-taxable minimum amounts and rates of personal assets tax. Since then and taking into consideration the current struggle of the Executive Branch to reduce the fiscal deficit, there have been rumours that in the near future the Executive Branch may send a bill to the Congress to establish an inheritance/estate tax at a federal level.
This has aroused concern among high net worth individuals, particularly because they may have entered into the Tax Amnesty Regime (Law 27,260) under which they have declared the possession of national or foreign currency and other property located in the country and/or abroad.
As a consequence, consultations on tax and estate planning have increased considerably.
As mentioned above, Argentina enacted an integral tax reform through Law 27,430 (published on the Official Gazette on 29 December 2017), which became effective as from 1 January 2018.
The Law introduced changes affecting taxation of both residents and non-residents. It introduced relevant changes to income tax (both at corporate and natural persons level), value-added tax (VAT), tax procedural law, criminal tax law and tax on the transfer of real estate, including also an optional special asset revaluation regime for income tax purposes.
Briefly, the following are the most relevant issues:
Corporate Income Tax and Withholding Tax on Dividend Distribution
The current 35% corporate income tax rate has been reduced to 30% (for 2018 and 2019), and will be reduced to 25% (from 2020 onwards). A withholding tax on dividends paid by an Argentine entity either to a resident individual or a non-resident will be imposed at a rate of 7% for 2018 and 2019, increasing to 13% as from 2020.
Special Regime: Revaluation of Assets for Corporate Income Tax Purposes
The tax reform introduces a “revaluation of assets regime for tax purposes”. This special regimeintends to amend the distortions which Argentina's last decade of endemic inflation occasioned in the taxpayer’s tax financial statements, mainly for corporate income tax.
Tax on Transfer of Real Estate
The 1.5% tax on the transfer of real estate ("ITI" for its acronym in Spanish) has been abrogated. Instead, a 15% tax on the capital gain realised from the sale of real estate will apply (only applicable on second/further homes).
Tax on Indirect Transfer by Non-Residents of Argentine-Located Assets
The sale or transfer by non-residents of shares or other participations in foreign entities when at least 30% of their value derives from assets located in Argentina will be taxable at a rate of 15% calculated on the actual net gain or a presumed net gain equal to 90% of the sale price of the proportional value that corresponds to the Argentine assets.
However, indirect transfers will not be taxable as long as it can be proved that the transfer took place within the same economic group, in accordance with requirements to be established by additional regulations.
It must be stressed that the tax will only apply to participations in foreign entities acquired after the entry into force of the tax reform.
Taxation of Financial Investments
The sale of Argentine sovereign bonds and negotiable obligations issued by Argentine entities, among others, will be taxable as follows:
The sale of shares listed on the Argentine stock exchange remains exempted.
The Law maintains the 15% capital gains tax rate (calculated on the actual net gain or a presumed net gain equal to 90% of the sale price) on the disposal of shares or securities by non-residents. However, the Law establishes an exemption for foreign beneficiaries on the sale of shares that are publicly traded in stock exchanges under the supervision of the Argentine Securities and Exchange Commission("CNV" for its acronym in Spanish).
The Law also establishes an exemption for interest income and capital gains on the sale of public bonds, negotiable obligations and share certificates issued abroad which represent shares issued by Argentine companies (ADR for example).
These exemptions will apply as long as the foreign beneficiaries do not reside in and the funds do not arise from "non-cooperative" jurisdictions.
It must be noted that income from LEBACs (notes issued by the Argentine Central Bank) are not covered by the exemption and consequently subjected to a 5% tax.
Fiscal Transparency Anti-Deferral Rules for Resident Taxpayers (CFC Rules)
Fiscal transparency rules are to apply to Argentine companies or individuals that hold shares or interest ownership in foreign companies located in non-cooperative or LONT (low or nil tax) jurisdictions, modifying the moment of recognition of foreign source income by resident taxpayers. In this way, the income shall be recognised as earned by an Argentine resident as if the foreign entity does not exist to the extent certain conditions are met (control through ownership, lack of “substance”, passive income representing more than 50% of gross income, etc).
Besides this, the Law includes unclear regulations for foreign trusts, private foundations and other international vehicles. Notwithstanding the foregoing, there are already certain structures which will be no longer useful for tax planning purposes due to the fact that fiscal transparency and anti-deferral rules will fully apply. This is the case for revocable trusts, which before the tax reform were an interesting alternative that served both estate and – indirectly – income tax planning and were neutral for personal assets tax purposes. However, it must be stressed that these structures will still be useful for estate planning.
It is expected that the regulatory decree will clarify many of these issues. However, the above-mentioned decree is expected to be issued no sooner than August 2018.
Practically all high net worth Argentine families have entered into the Tax Amnesty (Law 27,260) under which they declared the possession of national or foreign currency and other property located in the country and abroad. Proof of this is that the official figure reached USD116.8 billion, the second most successful behind Indonesia which reached USD350 billion.
As we mentioned last year, the creation by Law 27,260 of a reporting regime applicable to taxpayers who own more than 50% (or act as directors, managers or similar positions) in foreign companies, trusts, foundations and other entities that obtain more than 50% of their income from passive sourceswithin a given calendar year, anticipated that income tax deferralthrough foreign vehicles was surely going to be addressed in an upcoming tax reform. This finally happened with the enactment of Law 27,430 with the reaches mentioned in 1.3 Recent Developments or Forthcoming Regulatory Changes (mainly, fiscal transparency and anti-deferral rules and taxation of financial investments).
Therefore, the impact of income tax will for sure substantially increase in the forthcoming fiscal years (2017, but mainly in 2018 when the impact of the changes introduced by the recent tax reform will be felt). In this sense, as soon as high net worth individuals file their relevant tax returns, they will become aware of the new tax burden they are exposed to and will seek tax planning alternatives to ease this burden. The fact is that under the new rules which were incorporated in the tax reform (fiscal transparency and anti-deferral rules) there are only a few useful surviving structures.
It is in this context that we believe that those who were once reluctant to consider certain structures (i.e. irrevocable, discretionary foreign Trusts) will finally change their minds and move forward towards their implementation weighing up all the prosof these types of structures, namely:
Argentina's tax procedure law (Law 11,683) has the economic reality principle as a general anti-avoidance rule. This means that the Federal Tax Authority ("AFIP" for its acronym in Spanish) can look to the actual economic transaction and disregard the legal form and structure used by the taxpayer.
Besides, and as mentioned in 1.3 Recent Developments or Forthcoming Regulatory Changes, the Executive Branch is preparing a bill which contemplates an integral tax reform. We believe that many of the actual topics being discussed at the OECD will be contemplated, many of them related to and addressed towards ending abuses and loopholes in tax laws (income tax deferral, base erosion and profit shifting, etc).
Argentina has a forced heirship (public order) regime. The forced heirship portion refers to a portion of the estate that is reserved for certain heirs by law (that is, the forced heirs). This allows for descendants, ascendants and the surviving spouse to have a reserved portion in the deceased estate which cannot be deprived either by will or by any free inter vivos act (gifts) (Section 2444, Civil and Commercial Code (CCC)).
The CCC modified the reserved portions as follows:
These portions are calculated taking into account the sum of the liquid value of the estate at the time of the decedent's death and the gifts provided for each of the forced heirs at the time the gift was made.
The CCC introduces the concept of improvement. This allows the decedent to reduce the reserved portion in order to exclusively improve it for disabled heirs, whether they are descendants or ascendants (first part of Section 2448). Section 48 of the CCC establishes that a disabled person is someone who suffers from a mental or physical disorder, either permanent or prolonged, who, in relation to his or her age and social environment entails considerable disadvantages for his or her family, social, educational or professional integration.
Since the forced heirship regime is a public order regime, any provisions or structures used by the parties which conflict with the portions under the regime may be challenged under a legal action (collation bonorum).There have been precedents in Argentine courts in which forced heirship claims have been admitted against trust assets when the legitimate portion of one of them was infringed.
A forced heir can be deprived of his legitimate portion if the decedent invokes in his will one of the statutory causes for disinheritance established in the Civil and Commercial Code (for example, the decedent invokes in his will that he was the victim of violence by his son). The onus probandi of the invoked disinheritance cause is in charge of the other heirs.
Under the CCC future spouses have now the possibility of opting, by entering into marriage conventions (the "Conventions"), between a shared/marital property regime or a separate property regime.
Section 463 of the CCC establishes that in the event that no convention is made or the convention does not set forth any provision regarding the property regime, the traditional shared/marital property regime will be applied.
Conventions may be created for the purpose of (Section 446, CCC):
Section 448 of the CCC provides that in order for the Conventions to be valid, they must be executed by public deed (escritura pública). In order for the Conventions to be effective towards third parties, the marriage certificate must include a note in the margin specifying the regime chosen.
In the event that the spouses decide to change the regime, the amendment must also be made by Convention and by a public deed, for which the spouses must have been married for at least one year. In the event that there are creditors affected by this change, they will have one year to object, as from the date they became aware of the change.
When a marriage is terminated (due to death or divorce), the assets that qualify as shared/marital property are grouped together and, after the applicable liabilities and claims of each spouse have been worked out, divided and distributed equally between the spouses.
Traditionally, families used to make inheritance advances (gifts) to their successor in order to avoid court succession proceedings. With respect to tax matters, there were benefits in the use of certain double tax treaties (DTTs), such as those made with Austria and Chile, which permitted, through the use of simple structures, the exemption of the property that was subject to personal assets taxas well as the exemption of income taxwith respect to the income generated by it. When both DTTs were denounced, different tax and estate planning structures emerged as alternatives for high net worth individuals and families.
Therefore, the tax impact of maintaining the assets in the individual estate led to a gradual change of trendin this respect, and wealthy families became more prone to plan through foreign fiduciary structures, supplementing them with holding companies, which allows them not only to keep their financial holdings but also the assets that belong to the family business. Argentina recognises foreign trusts. Under Argentine law, the applicable law is the law of the place where the trust has been settled, providing that Argentine public order is not infringed (mainly, the forced heirship rules).
Until the enactment of Law 27,430, Section 140 b) Income Tax Law was the only reference to foreign trusts in local legislation. Law 27,430 establishes the cases in which a foreign trust should be considered transparent for fiscal purposes.
In this sense, fiscal transparency will apply to revocable trusts, so they will be no longer useful for income tax planning purposes. However and as mentioned before, it must be stressed that these structures will still be useful for estate planning.
Concerning irrevocable trusts, neither fiscal transparency nor anti-deferral rules will apply unless either of the following situations pertains: (i) the settlor is also a beneficiary of the trust; or (ii) the settlor keeps direct or indirectpowers to decide investments of the assets comprising the Trust Fund. Therefore, if structured correctly, revenues derived from the assets held in trust would not be subject to tax in the jurisdiction of the trustee, and the trustee becoming the legal owner of the assets will allow that neither personal assets tax nor income tax will be levied on the settlor for such assets and their revenues. Furthermore, planning through a trust structure could be of use too if an inheritance taxeventually passes through Congress. As mentioned above, the efficiency of any structure will depend upon the terms of this upcoming law.
Hence, the use of an irrevocable trust, notwithstanding that the transfer in trust that must be made by the settlor to a third party (trustee) generally generates resistance in individuals in countries such as Argentina (relevant cultural factor), may give rise to benefits concerning both taxes and successions.
We believe there will be an increase in the implementation of irrevocable fiduciary structures for the following reasons:
Argentine law provides legal remedies for a forced heir to make a claim in the event that the forced share that should be allocated to him has been adversely affected. In this sense, the affected party could file a collatio bonorum claim regarding the Trust Fund.
This interpretation was extended by the courts in a unique and unprecedented case in Argentina where the collatio bonorum was discussed in the case of a trust created under the laws of the United Kingdom. In the case, the two daughters from the first marriage of the decedent and the surviving divorced spouse filed a complaint against the other heirs – the children from a third marriage of the decedent – with respect to the collatio bonorum of the real estate located in London and received by them as beneficiaries of a trust created in the United Kingdom by their deceased father. The court resolved, regarding the collatio bonorum, that a trust created with a view to gratuitously benefiting a forced heir of the settlor might be deemed a gift to the heirs made before the death of the decedent, and so goes into the accounting of the estate, because its content and significance exceed that permitted under inheritance law.
Regarding matters of private international law, the court established that, even though the trust was governed by UK law, the succession was subject to Argentine law because that was the last address of the decedent. As a general principle in succession matters, the Argentine legal system provides that succession proceedings will be governed by the laws of the country in which the decedent’s address is located, as seen in the aforementioned case, where the decedent’s address prevailed over the law governing the trust.
Furthermore, if the settlor received funds from the trust then any party with a legitimate interest could pursue a sham trust claim in order for the irrevocable trust to be declared void ab initio. As a consequence those assets would be treated as if they had never left the settlor's estate. A sham trust is the term used to refer to a trust that was set up with intentions other than those expressed in the deed, and where the trustees had no intention of acting on the terms of the trust.
Unlike many other nations, obtaining citizenship in Argentina is relatively straightforward. The first step is to obtain a visa, which will allow someone to live in the country for one year on a temporary residence permit. When the year has expired, the visa can be extended for an additional year. At the end of the second year, the visa can be extended again for another year. At the end of the third year, they can extend the visa again and receive permanent residency. At this point they will be legally entitled to reside in Argentina permanently. Two years after receiving permanent residency, they may apply for citizenship.
Also, the children of an Argentine father or mother (regardless of whether native or by option) who were born abroad have the right to acquire Argentine nationality no matter their age, even when the Argentine father or mother has passed away.
Those who cannot apply for Argentine nationality are family members of Argentine citizens (such as the spouse, grandchildren or siblings), despite some of them having the right to reside in Argentina.
It is not a requirement to give up (renounce) another nationality to acquire Argentine nationality by choice. However, losing the foreign nationality will be a matter for the foreign country in question.
In general terms, minors are represented by the surviving parent. If no parent survives, the court designates a legal representative (curador) to handle all the assets on the minor's behalf. Disposition of assets usually requires court approval. A minor can inherit and own assets through his or her legal representative.
Since the enactment of Law 23,264 and pursuant to the American Convention on Human Rights (Convención Americana sobre Derechos Humanos), Argentine law does not make a distinction between legitimate and illegitimate children (children born out of wedlock). As a consequence they have the same rights to inherit or be included in a class of beneficiaries.
An adopted child is one who is taken into a family that is different from the one of its parents, after a legal process is followed under the CCC. Sections 594 to 637 of the CCC distinguish between simple, full and integrative adoption.
The distinction has a direct impact on the intestate inheritance rights of the adopted children, as follows:
Argentine law recognises marriage between same-sex couples, so the same marital property regime applies in such cases. This has no special effect on the testator's will, due to the fact that they have the same inheritance rights as any other spouses in a marriage. "Marriage" is defined as a person being united to another of the same or opposite sex, in a consensual and contractual relationship recognised by law, the consent to which is usually expressed in the presence of a public officer. Argentine law also recognises a civil partnership, which is a legal union or contract similar to a marriage between two people of the same sex.
The CCC recognises certain rights of domestic partnersprovided they have been together for at least two years. Through the means of "cohabitation agreements" (Pacto de Convivencia) domestic partners are able to regulate different aspects of their life together, such as economic aspects and other responsibilities. It also provides protection for the family home and, in case of death of one partner, the survivor is granted the right of free housing in the home they shared, for a period of two years.
Under Section 524 of the CCC, a domestic partner who suffers a glaring imbalance in his or her economic situation (as a result of the end of the cohabitation) may claim before court an economic compensation.
The surviving domestic partner has no inheritance rights over the estate of the decedent.
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