On December 28, 2011 Law No. 26,735 (hereinafter, the “Law”) was published in the Official Gazette which amends the Criminal Tax Law No. 26,735.
In the first place, the Law amends the minimum amounts that determine the commission of a tax crime. The amounts are multiplied fourfold (Sections 1, 2, 3, 6, and 8 of the Criminal Tax Law), except in the cases of illegal appropriation of social security resources.
Thus, the Criminal Tax Regime provides that the person who by misrepresentations, malicious concealments, trickery or deceit evades the payment of taxes to the Treasury, provided that the amount evaded exceeds the sum of four thousand pesos ($400,000) for each tax and for each fiscal year, shall be punished with two (2) to six (6) years of prison.
The penalty shall be of three (3) years and six (6) months to nine (9) years of prison in the following cases:
(i) When the amount evaded exceeds four million pesos ($4,000,000);
(ii) If someone intervened to hide the identity of the taxpayer, or if the taxpayer fraudulently used exceptions and allowances, and in both cases the amount evaded exceeds eight hundred thousand pesos ($800,000);
(iii) If there was total or partial use of ideological or materially false documents;
This last assumption is a new aggravating incorporated by the Law.
In addition, the withholding agent that does not deposit the amount perceived within ten (10) business days after the payment due date, provided that the amount does not exceed forty thousand pesos ($40,000) per month, shall be punished with two (2) to six (6) years of prison.
The person who evades the payment of contributions to the social security system, provided that the evaded amount exceeds eighty thousand pesos ($80,000) per month, shall be also punished with imprisonment of two (2) to six (6) years.
The penalty shall be of three (3) years and six (6) months to nine (9) years of prison, in the following cases:
(i) The evaded amount exceeds four hundred thousand pesos ($400,000) per month;
(ii) If someone intervened to hide the identity of the taxpayer and the evaded amount exceeds one hundred sixty thousand pesos ($160,000).
In cases of illegal appropriation of social security resources, the employer or the perception agent who does not deposit the amount perceived within ten (10) business days after the payment due date, provided that the amount exceeds twenty thousand pesos ($20,000), shall be punished with imprisonment of two (2) to six (6) years.
The Law includes among the taxed covered by the Tax Criminal Regime the provincial taxes and the taxes of the City of Buenos Aires.
Additionally, the Law introduces a new crime: the modification or adulteration of computing systems or any electronic equipment provided or approved by the federal, provincial, or the City of Buenos Aires Tax Authorities.
When the crimes were carried out with the intervention of an ideal person, or to their benefit, the following sanctions may be also imposed:
(i) Fine of two (2) to ten (10) times the debt;
(ii) Total or partial suspension of activities, suspension to engage in any activity connected with the State, in both cases the penalty shall not exceed five (5) years;
(iii) Cancelation of the personality if it had been created to commit the offense.
(iv) Loss or suspension of state benefits.
(v) Publication of the corresponding part of the sentence at the expense of the legal person.
Those who spontaneously regularize their situation in compliance with their tax obligations shall be relieved of the criminal responsibility, provided that this not occur as a result of an inspection, observation or complaint made by the competent authority.
In relation to national taxes, in tax criminal matters of the City of Buenos Aires, the national justice in economic criminal matters shall be competent, whereas that the jurisdiction shall be maintained in cases that are in process. In the rest of the provinces, the federal justice shall be competent.
The Law eliminates the possibility of the suspension of trial (“probation”) for crimes under the scope of the Law, which permitted to avoid a sentence in exchange of the performance of community service.
The Law came into force on January 5, 2012.
