On January 1, 2015, Law No. 5493 entered into force, introducing amendments to the Tax Code of the Autonomous City of Buenos Aires (“TC”) concerning the Stamp Tax.
The amendments to the TC regarding the Stamp Tax included – until December 31, 2015 – the following: “The acts, contracts and transactions carried out by correspondence or telegraph, e-mail , either with electronic or digital signature are subject to the Stamp Tax [ … ] ” (bolding added for emphasis) . In this sense, the TC also provided that any of the following conditions must be verified: (i) the mail sent must have reproduced the offer, utterances or essential elements that determine the subject matter of the contract; (ii) the offer, budgets or requests must have been signed by the recipients.
With regard to the first condition, it is clear that, in accordance with the law, the mere creation of the document expressing the complete intention of the acceptor was taxable. Secondly, the law establishes that the stamp tax would be levied as long as the instrument was signed by their respective recipients.
In relation to this last aspect, although the TC expressly established that the stamp tax shall be imposed on acts, contracts and transactions carried out by email, there are certain acts performed by electronic means which have already been subject to the stamp tax. In this sense, Resolution No. 10/2009 of the Government Administration of Public Revenue ( ” AGIP ” ) provides that ” [ … ] The acts, contracts and transactions carried out through electronic correspondence shall be subject to the stamp tax , providing that the electronic signature or equivalent key is similar to the holographic signature [ … ] ” (bolding added for emphasis).
At first blush it seems that the TC introduced the provisions of AGIP´s Resolution, but actually both regulations differ. On the one hand, the TC did not distinguish between whether the instrument was signed digitally or electronically; on the other hand, under the Resolution only acts, contracts and transactions signed in a similar way to the holographic signature were subject to the stamp tax.
Pursuant to Law No. 25,506 on Digital Signature (the “Digital Signature Law”) the signature involves a key obtained through a mathematical procedure, using data exclusively held by the person who signs the document. This system ensures the inalterability of its content as well as the attribution of the signature to its author.
Moreover the Digital Signature Law defines the electronic signature as a set of electronic data which, logically linked with other data of similar nature, is used by the signatory as a means of identification, but without meeting the requirements for the digital signature.
Finally, Law No. 25,506 considers the digital signature as the only one which may be similar to the handwritten or holographic signature, disregarding the quality of the electronic signature. Thus, in accordance with the abovementioned law and local regulations regarding taxation, it was only feasible to apply the stamp tax to those acts, contracts and transactions that, having been agreed electronically, had only been signed digitally.
In addition, this conclusion was reinforced with the case “Grainco Pampa SA” in which, based on the principles of instrumentation and economic reality, the Argentine Supreme Court of Justice confirmed the requirement of self-sufficiency that the documents subject to the tax stamps have to meet in accordance with the Argentine Federal Revenue Sharing Law [Ley de Coparticipación Federal]. This meant that the instrument subject to the stamp tax must meet the essential elements of a legal title to allow the enforcement of the obligations contained therein.
Consequently, in accordance with the regulatory analysis made throughout this work and the arguments of the Supreme Court, only those acts, contracts and electronic transactions which have been digitally signed are subject to the Stamp Tax – provided that one of the abovementioned conditions are verified, each of which has not been amended by the new legislation.