Escribanía - 10/05 - Parte 4

Introduction and Class Dynamics

Opening Remarks

• The session begins with greetings, establishing a friendly atmosphere among participants.

• Acknowledgment of attendance issues; the speaker recalls a previous conversation about remembering names, indicating a personal touch in interactions.

Class Participation

• Discussion on class attendance; the speaker checks if anyone is missing from the current session.

• Participants are encouraged to communicate through group messages for any updates or questions regarding class attendance.

Class Structure and Instructor Introduction

Online Learning Experience

• The instructor expresses fatigue with online classes, preferring in-person sessions due to their engaging nature.

Instructor's Background

• Introduction of Belén as the instructor; she clarifies her qualifications (lawyer and notary), emphasizing her role in teaching tax law.

Course Overview

• Belén outlines that she will be co-teaching with Gabriela, who has previously taught some students. She invites students to share their motivations for studying this field.

Student Engagement and Motivations

Sharing Experiences

• Students are prompted to discuss their reasons for pursuing this career path; one student mentions an interest in real estate law but seeks more comprehensive training.

Educational Background

• A student shares their diverse educational journey across various institutions, highlighting a passion for learning before settling on a specific focus area.

Course Content and Previous Lessons

Tax Law Insights

• The instructor references previous discussions on taxation where notaries play a crucial role as withholding agents, indicating practical applications of course content.

Technical Issues During Class

• There were technical difficulties during the last class that may have hindered some students' understanding of key topics discussed.

Classroom Environment and Future Interactions

Student Interaction Dynamics

• The instructor humorously addresses classroom dynamics, noting how some students engage more after initial hesitance.

Attendance Policies

Visit to the Office and Understanding Notarial Practices

Invitation to Visit the Office

• The speaker invites participants to visit their office, suggesting a group outing for a firsthand experience of notarial practices.

• They mention that while they are currently unable to show their office due to technical issues, they encourage future visits for educational purposes.

Educational Opportunities

• The speaker expresses willingness to host classes in their office, emphasizing the importance of visualizing organizational methods in notarial work.

• They propose using a tax class as an opportunity for students to visit and learn about practical aspects of notarial documentation.

Importance of Organization

• The speaker reflects on past experiences with a mentor who emphasized the need for neatness and organization in handling numerous documents.

• They highlight that being meticulous is crucial when dealing with various types of paperwork, from simple notes to formal protocols.

Practical Demonstrations

• A suggestion is made for combining social activities with learning by hosting classes followed by informal gatherings at the office.

• The speaker plans to discuss key topics thoroughly during sessions, ensuring clarity and addressing any questions from participants.

Role of Notaries

• The speaker reiterates that notaries serve as agents of retention and information, particularly concerning public acts like notarized documents.

• They explain that notaries witness two main types of acts: public (protocolar), where they certify events occurring in their presence, and private acts.

Certification Process

• Emphasis is placed on the significance of "dación de fe" (giving faith), which confirms the authenticity of actions witnessed by the notary.

• The speaker argues against excessive repetition of certification phrases within documents, advocating for concise affirmations at the end instead.

Legal Framework

• Discussion includes how notaries certify signatures or fingerprints without commenting on document content; they only verify identity and mental capacity.

• Reference is made to constitutional roots regarding public instruments and certifications outlined in civil law codes.

Understanding Protocolar and Extraprotocolar Acts

Introduction to Information Agents in WIF

• The speaker discusses the role of information agents within the context of WIF (Financial Intelligence Unit), emphasizing that they are not responsible for retention or information gathering unless involved in public acts like notarized documents.

Client Interaction and Document Requirements

• When a client expresses interest in purchasing a house, the speaker outlines the need for specific documentation, including prior deeds and tax records, to facilitate the transaction.

• The process involves analyzing various legal aspects, particularly focusing on tax implications through a methodical questioning approach akin to "choose your own adventure."

Distinction Between Protocolar and Extraprotocolar Acts

• A critical question arises: Is the act being performed protocolar (public deed) or extraprotocolar (private agreement)? This distinction influences subsequent actions regarding taxation.

• In cases where clients have partial funds available, an extraprotocolar document such as a purchase agreement is created to outline payment terms until full payment can be made.

Tax Implications of Extraprotocolar Acts

• If determined as an extraprotocolar act, there are no immediate tax obligations; thus, no retention or reporting is required by the agent.

• Historical context is provided about confusion surrounding WIF regulations from 2011 regarding protocolar versus extraprotocolar acts. Clarification was sought to ensure proper compliance without liability.

Responsibilities and Advisory Role

• While not acting as agents for tax retention or information reporting on private agreements, it remains essential for agents to advise clients on potential tax liabilities associated with these transactions.

Understanding Onerous Protocol Acts

Importance of Protocol Acts

• The speaker emphasizes the significance of protocol acts, stating that despite appearing simple, they are crucial for understanding legal transactions.

• Clarifies that these acts are not trivial; they require careful analysis to avoid complications in future dealings.

Characteristics of Onerous Acts

• Defines an onerous act as one that involves a reciprocal obligation or consideration, such as in sales or exchanges.

• Highlights examples of onerous acts: sales (compraventa), payment settlements (dación de pago), and exchanges (permuta), all requiring a counter-performance.

Tax Implications and Classifications

• Discusses how certain acts may be classified differently for tax purposes, particularly focusing on provincial taxes versus national obligations.

• Introduces the need to identify whether parties involved are natural persons or legal entities before proceeding with tax assessments.

Analyzing Transferents

• The speaker explains the importance of identifying the "transferent" in property transfers and distinguishes between different types of entities involved.

• Mentions that a "subject empresa" encompasses more than just corporations, including various business forms recognized by fiscal law.

Retention Agents and Tax Responsibilities

• Outlines the responsibilities of notaries as retention agents for taxes like income tax (ganancia) and ITI (Impuesto sobre la Transferencia de Inmuebles).

• Emphasizes that if the transferent is a business entity, analyzing their income becomes straightforward due to established guidelines.

Distinguishing Between Person Types

• If dealing with a natural person, specific criteria must be evaluated to determine their classification under income tax regulations.

• Notes that individuals who do not fit into predefined categories will require further examination regarding applicable taxes during transactions.

Final Considerations on Tax Analysis

• Stresses the necessity of thorough analysis when determining whether to apply ITI or other taxes based on individual circumstances.

Impuesto a la Transferencia de Muebles

Definición y Elementos Clave

• El impuesto a la transferencia de mueble (ITI) se aplica a la transferencia onerosa de inmuebles en Argentina, comenzando su vigencia el 1 de enero de 2018.

• Para que se configure el ITI, es necesario que el sujeto sea una persona humana y que el inmueble esté ubicado en Argentina; además, la transferencia debe ser onerosa.

Normativa y Regulaciones

• La ley relevante para el ITI es la Ley 23905, específicamente en su Título VII. Los escribanos deben seguir las directrices establecidas por la resolución general AFIP RG 2141 del 2006.

• La resolución general AFIP RG 2139 también es importante, pero se centra en ganancias; sin embargo, lo crucial aquí es la RG 2141.

Hecho Imponible

• El hecho imponible del ITI se configura cuando ocurre un acto protocolar como la firma de una escritura o un boleto de compra venta con entrega de posesión.

• La ley menciona que este hecho puede ser determinado por un boleto o documento equivalente junto con la entrega de posesión.

Agentes de Retención

• En caso de escritura, el escribano actúa como agente de retención; mientras que en un boleto o sesión, el comprador o cesionario asume este rol.

• Aunque los vendedores pueden autorretenerse, legalmente está estipulado que el escribano debe retener durante las escrituras.

Exenciones y Causales

• Al analizar si retener o no retener impuestos, se consideran exenciones aplicables según lo establecido en el artículo 10 de la ley.

Understanding Diplomatic Exemptions and Non-Retention in Property Transfers

Diplomatic Status and Tax Exemptions

• A diplomat with ambassadorial rank is exempt from certain tax retentions due to a reciprocity agreement with their home country.

• The speaker emphasizes the need to document that no retention will occur in the property transfer deed, as it falls under an exemption.

Conditions for Non-Retention

• The speaker discusses specific conditions that justify non-retention, such as prior possession transfer documented by a ticket or equivalent document.

• It is clarified that if a property transfer was previously executed via a ticket, the current deed does not constitute a new taxable event since the transaction remains unchanged.

Legal Framework and Documentation

• The importance of understanding how different taxes apply to property transfers is highlighted, particularly regarding national taxes on onerous transfers.

• Reference is made to legal articles outlining exemptions and non-retention causes, specifically mentioning resolution 2141.

Retention Procedures

• When retention has already been practiced, it's necessary to provide certified copies of proof of payment or retention for documentation purposes.

• The distinction between "payment" and "ingress" into the tax authority's account is emphasized; proper terminology must be used in legal documents.

Drafting Clauses for Deeds

• Suggestions are made for drafting clauses related to non-retention based on previous transactions where taxes were settled at an earlier stage.

Understanding Property Tax Exemptions

The Concept of Replacement Housing

• The discussion begins with the requirement that the property being sold must be the primary residence, as non-payment of taxes is linked to replacing a home.

• It is common for individuals to sell a larger family home and purchase a smaller apartment, regardless of price differences; the key factor is exercising the replacement option.

Client Consultation Process

• During initial meetings, questions are posed to determine if the seller (transferente) has constructed or modified their property under specific regulations.

• Clients often respond indifferently until they realize that tax implications can be mitigated by selling their home to buy another, which shifts their attitude positively.

Tax Certification Requirements

• To avoid tax retention, sellers must obtain a "no retention" certificate from AFIP (the Argentine tax authority), which can now be processed online.

• If this certificate isn't issued by the time of signing, agents are obligated to retain taxes regardless of personal connections or circumstances.

Implications of Not Complying with Tax Regulations

• Failure to present required certificates results in liability for unpaid taxes plus penalties; this situation is not uncommon among sellers.

• Sellers must declare their property as a primary residence on personal assets declarations for quicker certification processing.

Obligations Post-Certificate Issuance

• Once granted, sellers are obliged to purchase another residential property within one year; failure to do so incurs additional tax liabilities.

• It's crucial for clients to understand these obligations before proceeding with sales and certifications.

Certificate Details and Pricing Considerations

• The "no retention" certificate must include all transaction details; discrepancies in pricing between dollars and pesos should not exceed 30%.

• If there’s a significant difference in currency values at different times, renewal of the certificate may be necessary before closing.

Practical Challenges in Real Estate Transactions

• In practice, transactions may stall if sellers arrive without necessary certificates; this can lead to additional costs due to delays in obtaining new documentation.

Understanding Tax Retention and Replacement Options

Tax Retention Procedures

• The transferor must pay taxes if they choose not to sign or delay the process. If the transferor opts for a replacement option, they need to initiate the procedure.

• The retention must be submitted to the tax authority, with specific deadlines for documentation. The notary can proceed with writing up until a certain date without retaining funds initially.

Importance of Certificates

• A certificate of non-retention must be issued before or on the same day as the deed signing; otherwise, retention will occur regardless of intentions.

• If a transferor chooses to exercise their replacement option under Article 14, they may recover retained funds through subsequent procedures with AFIP (the Argentine tax authority).

Legal Obligations and Responsibilities

• It is crucial to document in the deed that the transferor intends to exercise their replacement option; failure to do so can result in loss of funds.

• There are instances where clients successfully reclaimed taxes after proving compliance with legal requirements regarding property transactions.

Challenges Faced by Transferors

• Transferors may face complications if they cannot provide proof of residence or ownership within specified timeframes, especially when dealing with properties under fiduciary agreements.

• Documentation such as possession records can help demonstrate legitimate claims even when formal deeds are unavailable due to construction delays.

Certificate Validity and Renewal Process

• Certificates have a validity period of 60 days; deeds must be executed within this timeframe. Renewals are possible online without needing physical presence.

• Changes in regulations post-pandemic have shifted many processes online, making it easier for clients but requiring awareness of new protocols.

Personal Reflections on Tax Law Education

• The speaker reflects on their long tenure in tax law and expresses nostalgia about changes over time while emphasizing ongoing learning experiences in taxation matters.

Discussion on Property Transfer Tax

Introduction to the Topic

• The speaker, Ana, discusses the complexities of property transfer tax and expresses enthusiasm for the topic despite it being late in the day.

• Emphasizes a desire to share knowledge about property transfer taxes, indicating that there are two main points to cover.

Key Concepts of Property Transfer Tax (ITI)

• Introduces ITI (Impuesto a la Transferencia de Inmuebles), explaining its significance in property transactions.

• Discusses scenarios involving human sellers and their obligations regarding tax payments based on acquisition dates.

Analysis of Seller's Situation

• Analyzes whether to retain tax from a seller who is not a diplomat and has sold property acquired before January 1, 2018.

• Highlights potential complications when properties are located outside Argentina, stressing the importance of jurisdiction in tax matters.

Examination of Exemptions and Retention

• Explains that if no exemptions apply, retention is necessary unless specific conditions are met.

• Mentions that if the seller did not sign any agreements or contracts prior to selling, they may not qualify for exemptions.

Practical Considerations in Transactions

• Discusses practical issues such as handling unexpected situations during transactions (e.g., health emergencies).

• Shares anecdotes about office pets distracting from work while emphasizing ongoing analysis related to ITI.

Final Thoughts on Retention Obligations

• Concludes that all necessary analyses have been conducted regarding ITI; thus, retention must occur unless proven otherwise.

Understanding Retention Agents in Legal Transactions

The Role of Notaries as Retention Agents

• The speaker discusses the misconception that notaries act as retention agents, clarifying that they do not actually retain funds from payments made during transactions.

• It is noted that under banking laws, cash payments over 1000 pesos are invalid unless conducted in front of a notary, allowing for certain transactions to still occur with cash.

Challenges with Payment Methods

• A scenario is presented where a seller pays via bank transfer, complicating the notary's ability to retain necessary taxes since there are no immediate funds available.

• The speaker emphasizes that the obligation to pay taxes does not disappear even if payment is made through bank transfers; it remains the seller's responsibility.

Documenting Impossibility of Retention

• Notaries must document any impossibility of retaining taxes when payments are made electronically and ensure sellers understand their self-retention obligations.

• The law requires clear documentation stating the impossibility of retention must be genuine and cannot be fabricated.

Practical Implications for Notaries

• If a seller refuses to provide cash for tax retention, the notary must navigate this by framing it within legal guidelines while ensuring compliance with tax obligations.

• Real-life experiences illustrate how sellers often bring cash for tax payments despite initial reluctance or complications regarding electronic transfers.

Tax Compliance and Transfer Scenarios

• The discussion includes references to specific regulations (dictamen 78 from 2008), highlighting complexities around tax retention based on various scenarios including exemptions and impossibilities.

• Notaries can only accept cash directly; if they do not have liquid funds available at the time of transaction, they must state this clearly in documentation.

Handling Transfers and Payments

• Clarification is provided on how clients should manage their finances to ensure sufficient liquidity for tax obligations during transactions.

• There’s an emphasis on understanding how retained amounts are processed through financial institutions after being transferred from clients.

Final Considerations on Payment Methods

• The speaker reassures that transferring funds from sellers does not raise concerns as long as proper procedures are followed regarding reporting to tax authorities (AFIP).

Understanding Real Estate Transactions and Tax Implications

Cash Transactions and Risks

• The speaker discusses a real estate transaction where the operation price is effectively zero, yet the seller must receive 2 million pesos after taxes. This highlights the complexities of cash transactions in real estate.

• Carrying large sums of money (2 to 3 million pesos) poses significant risks, emphasizing the need for secure transfer methods during transactions.

Taxation on Transfers

• The tax rate for property transfers is noted as 15 per thousand (1.5%), which applies to the sale price. Clarification is provided regarding who bears these costs during a transaction.

• The speaker explains that certain taxes, like income tax or gross income tax, are specifically levied on the transferor, indicating a division of financial responsibilities in real estate deals.

Negotiation Dynamics

• It’s common practice for sellers to lower property prices while shifting tax burdens onto buyers, complicating negotiations and financial planning.

• The speaker illustrates scenarios where payment arrangements can be complex; even if funds come from an unexpected source (like "Superman"), it remains crucial that all parties adhere to legal obligations regarding taxes.

Currency Conversion Challenges

• When dealing with properties priced in dollars, there are specific requirements for converting currency into pesos for taxation purposes. All taxes must be paid in local currency.

• The conversion process involves using official exchange rates published by banks, ensuring compliance with regulations when calculating owed taxes based on foreign currencies.

Timing and Exchange Rates

• It's essential to use the exchange rate from the last business day before signing a contract when converting foreign currency amounts into pesos for tax calculations.

• A detailed explanation follows about how fluctuations in exchange rates can impact final transaction values significantly if not calculated correctly at signing time.

Special Considerations for Foreign Residents

Tax Obligations for Residents and Non-Residents

Overview of Taxation on Personal Property Gains

• The discussion begins with the requirement for sworn declarations regarding personal property gains, regardless of whether taxes are owed. A certificate will indicate a retention rate of 1.5% or 15 per thousand of the sale price.

Tax Rates for Foreign Residents

• The tax rate remains consistent for foreign residents, who require a specific retention certificate when dealing with Argentine income.

Income Tax Responsibilities for Foreign Residents

• Foreign residents must pay taxes on all income generated in Argentina. If they have spent more than 90 days outside the country, they still owe taxes as non-residents.

Retention Agents in Rental Situations

• When renting properties from foreign residents, tenants (locatarios) are obligated to withhold income tax from rental payments, irrespective of the landlord's nationality.

Certificate Requirements and Challenges

• Obtaining the necessary retention certificate can be challenging as it requires proof that foreign residents have filed their personal property gain declarations and paid relevant taxes over at least five years.

Implications of Tax Compliance History

• The AFIP (Argentine Federal Administration of Public Revenue) verifies compliance history before issuing certificates. This may extend beyond five years if there has been any tax amnesty or regularization process.

Differences in Tax Rates Between Residents and Non-residents

• There is a distinction between national residents and foreign residents concerning tax rates; nationals pay a different rate compared to foreigners who are taxed at 35% on half their earnings.

Clarification on Valuation Basis

• The taxable base is determined by either the sale price or market value, whichever is higher. In cases where no market value exists, an evaluation certificate must be obtained from AFIP.

Common Misunderstandings Regarding Property Valuation

• It’s emphasized that many mistakenly calculate withholding based on appraised values rather than actual sale prices or market values which should be used according to regulations.

Evaluation Process Through AFIP

• To obtain an evaluation certificate from AFIP, two independent property valuations are required. These valuations must be conducted by licensed real estate agents to ensure credibility.

Final Remarks and Class Interaction

Encouragement for Questions

• The instructor encourages students to ask questions during class sessions to clarify complex topics related to taxation and compliance requirements.

Future Legislative Changes Consideration

• There is speculation about potential changes in legislation affecting taxation practices that could arise in May 2024; thus understanding current laws remains crucial even if future amendments occur.

Class Interaction and Attendance

Discussion on Class Participation

• The speaker addresses the class, humorously acknowledging the presence of an older teacher, encouraging students to smile for a photo that will be shared on social media.

• There is a mention of Claudia Gambacurta, indicating uncertainty about her attendance in the class and referencing a list maintained at the faculty.