Escribanía - 06/06 - Parte 4

Name: Escribanía - 06/06 - Parte 4
Uploaded: 2025-06-17T12:37:48.000Z
Duration: 3 h 6 min 40 s

Third-Party Intervention Regime in Notarial Practice

Introduction to Third-Party Involvement

The session begins with a note about the presence of third parties in notarial deeds, specifically mentioning a delay due to a phone call.

Overview of AFIP General Resolution 3285

The discussion introduces AFIP General Resolution 3285 of 2012, which applies when a representative of a foreign resident is involved in a deed.

Notaries are required to demand proof of the representation code from attorneys representing foreign residents. This code is issued by Arca upon registration.

Importance and Implications of Representation Code

If an attorney fails to provide proof of the representation code, the deed can still be granted as it operates under an informative regime without inhibitions on asset disposal.

Obligations Under the Third-Party Regime

Notaries must file monthly affidavits until the last day of the month following reported transactions involving foreign representatives.

To prepare these sworn statements, notaries need to download SIAP and Sicore applications from Arca's website for filing.

Filing Process and Requirements

Sworn statements are submitted online through Arca’s platform using registered credentials.

New notaries do not need to file monthly declarations until they have their first deed involving a foreign resident's representative.

Reporting Procedures and Disengagement from Regime

Once engaged in reporting, all deeds involving foreign representatives must be reported regardless of transaction type (sale, donation, etc.).

If four consecutive monthly sworn declarations show no activity (no deeds), notaries can disengage from this reporting requirement until another relevant deed occurs.

Continuous Reporting Considerations

After submitting their first reportable case, if there are subsequent months with no activity, they may stop filing until new transactions arise.

Some notaries choose to continue reporting even without movement to avoid confusion regarding when to re-engage with the system.

Third-Party Intervention and Information Regimes

Overview of Third-Party Intervention Regime

The third-party intervention regime allows for transactions to be reported without penalties if sworn statements are submitted without movement. This is particularly relevant for foreign residents.

Changes Effective June 1, 2025

As of June 1, 2025, the City Tax was repealed, affecting how transactions involving foreign residents are reported. Transactions previously reported by the City will now be exempt from third-party reporting if a representative of a foreign resident is involved.

Reporting Requirements Post-City Tax Repeal

With the repeal of the City Tax, all transactions involving a representative of a foreign resident must now be reported through third parties. This expands the universe of reportable transactions significantly.

Registration of Transfer of Company Shares

An information system exists for registering transfers of company shares that does not require downloading an application; it can be completed directly on the FIP website within ten business days after granting the deed. This applies only when share transfers occur via public deed.

Obligations for Reporting Share Transfers

All parties involved in a share transfer (notary, seller, buyer, and company) are required to report this transfer within ten business days if it is executed by public deed. Failure to do so may lead to compliance issues under General Resolution AFIP 4697/2020.

Clarifications on Documentation and Compliance

Importance of Representation Code

A question arises regarding whether proof of representation code needs to be documented if not provided during the transaction process; it should be noted that there’s no requirement under resolution 3285/2012 to record this in the deed itself.

Handling Missing Documentation

If requested documentation is not provided by a third party during a transaction, it should simply be noted separately rather than included in the official deed documentation as per existing regulations. This helps maintain clarity and avoids overloading legal documents with unnecessary details.

This structured summary captures key insights from the transcript while providing timestamps for easy reference back to specific discussions or points made during the session.

Understanding Withholding Rates and Currency Conversion in Real Estate Transactions

Key Insights on Document Handling and Withholding Rates

The resolution lacks a systematic method for notifying Arca if documents are not provided, suggesting that representatives should sign a record of non-provision.

A 3% withholding rate applies to the total amount below the tax appraisal, with variations across provinces regarding market prices versus tax assessments.

Clarifications on Payment Methods and Tax Implications

Profits are never withheld below the tax valuation; withholding is based on the total price regardless of payment installments.

If payments are made in a non-legal tender currency (e.g., dollars), conversion must occur at Banco Nación Argentina's selling exchange rate from the previous business day.

Detailed Steps for Currency Conversion During Transactions

Resolution 2139 of 2006 specifies that amounts in non-legal tender must be converted into pesos prior to payment, focusing on payment rather than possession or deed.

Each installment paid before the deed must be converted to pesos using the specified exchange rate, requiring careful tracking of each transaction.

Finalizing Payments and Future Installments

At the time of writing, all previous payments need conversion to pesos at Banco Nación Argentina's selling exchange rate before adding them up.

For future installments due after the deed signing, they will also need conversion based on the exchange rate prior to that date since future rates cannot be predicted.

Engagement and Learning Dynamics Among Participants

The instructor checks for understanding among participants, emphasizing collaborative learning through group discussions about assignments.

Understanding Practical Work in Kinesiology Classes

The Importance of Practical Application

The speaker emphasizes the challenge of retaining theoretical knowledge, noting that students often forget a significant portion of what they learn until they practice it.

A previous teacher highlighted that students might only remember 20% of the material learned in class, underscoring the necessity for practical application to reinforce learning.

The instructor encourages collaborative practical work among students, allowing them to break down questions and answers together for deeper understanding.

Students are invited to organize themselves into groups for discussions on practical exercises, which can enhance their preparation for exams by ensuring concepts are well understood.

The instructor expresses flexibility regarding how practical work is conducted—whether in class or through group discussions outside class.

Structure and Expectations of Practical Work

Students have the autonomy to choose how they wish to approach their practical assignments, whether individually or collectively during class time.

Additional classes with another instructor (Belén) will focus on different practical exercises, providing further opportunities for hands-on learning.

Tax Withholding Regulations

Understanding Withholding Requirements

National residents face a 3% withholding tax on total transaction prices; if the price is not in legal tender, it must be converted at the current exchange rate prior to payment.

Situations may arise where there aren't sufficient funds available at the time of a deed's execution to fulfill withholding obligations due to partial payments made over time.

Impossibility of Withholding

If funds are insufficient for withholding during a transaction, this creates an "impossibility of withholding," which is treated as a factual issue rather than normative one.

In cases where no funds are available at deed execution but were included in budget estimates, it's crucial to document any inability to withhold due to lack of liquid assets.

Self-Withholding Obligations

Transferors taxed under income tax laws must self-withhold when necessary; however, those executing transactions do not need to verify compliance with these self-withholding requirements.

Article 8 from AFIP General Resolution 2139 outlines scenarios where withholding isn't feasible due to unavailable funds.

Special Considerations in Real Estate Exchanges

Income Tax Implications

For real estate exchanges involving parties subject to income tax, specific treatment applies under Article 15 of General Resolution 2139 from 2006.

Understanding Cash Integration in Property Exchanges

The Concept of Cash Integration

Cash integration occurs only when there is a cash portion involved in property exchanges. This means that withholding tax applies specifically to the cash component of the transaction.

Example Scenario

In an example, if Daniela and I exchange properties valued at 800,000 pesos and 600,000 pesos respectively, with an additional cash transfer of 200,000 pesos from Daniela to me, both parties are subject to income tax due to regular property sales.

Withholding Tax Responsibilities

The question arises: who should withhold the tax? It is determined that withholding applies only on the cash payment amount (200,000 pesos), not on the total value of exchanged properties.

The party responsible for withholding is the one making the cash payment—in this case, Daniela—because she has the available funds.

Clarifying Misconceptions

A common misconception is that withholding should occur from both parties; however, it should only be applied to the recipient of cash. Thus, I am liable for withholding since I am receiving money.

It's emphasized that integration pertains to the recipient rather than the payer. Therefore, even though both parties realize gains from their transactions, only one party's cash receipt triggers withholding.

Situations Without Cash Payment

If a situation arises where a recipient does not pay income tax but another party does (and no cash changes hands), no withholding occurs because there’s no liquidity available for such action.

This principle extends further: if someone pays but doesn’t collect any cash themselves (thus having no liquidity), they also do not have self-withholding obligations despite being taxed for income.

Filing Tax Returns Post Transaction

When filing sworn statements after such transactions involving property exchanges and received cash amounts (e.g., 200,000 pesos), it's crucial to declare total values based on what was transferred—not just what was received in cash.

Tax Obligations for Foreign Residents in Argentina

Overview of Tax Filing Requirements

Foreign residents in Argentina are not required to file a tax return, either personally or through a representative.

The Income Tax Law mandates a "single and definitive payment withholding" for foreign residents, meaning they pay taxes all at once at a rate of 35%.

Calculation of Taxable Profit

The net taxable profit for foreign residents is predetermined by the law, unlike national residents who can deduct costs and personal expenses.

For real estate transactions involving foreign companies, the net taxable gain is set at 50% of the sale price.

Withholding Process and Documentation

A representative must obtain a "certificate of withholding of profits" from ARCA (the Argentine tax authority), which calculates the withholding based on provided documentation.

It’s essential to follow ARCA's calculations as they issue the income withholding certificate; however, verifying these figures is advisable.

Currency Conversion Considerations

If the transaction price is in a non-local currency, it must be converted to pesos using the selling exchange rate from Banco Nacional Argentina prior to processing.

This conversion process ensures that any fluctuations in exchange rates are accounted for before finalizing payments.

Updating Withholding Calculations

In cases where there are delays between obtaining certificates and actual transactions, recalculating with updated exchange rates may be necessary due to market volatility.

The calculation involves converting prices into pesos based on previous day’s exchange rates and applying the 35% withholding on half of that amount.

Documentation for Accurate Reporting

Understanding Tax Calculations for Foreign Residents

Presumptions in Tax Calculations

Arca explains that the selling price is calculated by subtracting acquisition and maintenance costs, leading to a net profit on which a 35% tax applies.

The attorney's contribution affects the calculation; if no documentation is provided, Arca defaults to calculating 35% of half the sale price.

The choice between two presumptions depends on the situation; older properties may benefit from default assumptions rather than actual calculations.

Situational Analysis for Tax Benefits

For properties acquired long ago, sticking with the presumption can yield a larger taxable margin compared to calculating based on purchase value.

If a property was purchased recently at a price close to its selling price, it’s beneficial for attorneys to gather documentation of acquisition and maintenance costs.

Documentation Requirements

The decision on which presumption to apply hinges on what documentation the attorney provides; clarity is essential for accurate tax application.

A question arises regarding what constitutes maintenance costs necessary for determining taxable amounts.

Example Scenarios

An example illustrates two scenarios: one where no documentation leads to a simple calculation of 35% of half the sale price versus another where detailed expenses are documented.

Maintenance expenses must be properly documented; they include repairs but exclude other fees like real estate taxes.

Comparative Outcomes

In an example with specific numbers, when using documented costs (purchase and maintenance), the taxable amount becomes significantly lower than using presumptive calculations.

Depending on whether purchase prices vary significantly, different presumptions can lead to varying tax obligations.

Transitioning to Provincial Taxes

Introduction to Provincial Taxation

After discussing national taxation aspects, attention shifts towards provincial taxes and their implications for gross income reporting.

Understanding Gross Income Taxation

Withholding Agents and Gross Income Tax in Santa Fe

Overview of Withholding Agents

The speaker addresses the audience, identifying them as withholding agents responsible for gross income tax and provincial tax. They emphasize that formal documentation is a recurring theme in their discussions.

The focus will initially be on Santa Fe, with plans to cover other jurisdictions if time permits. Common issues across different areas will be highlighted.

Legal Framework for Withholding Agents

In Santa Fe, withholding agents are specifically designated for the transfer of real estate under Resolution 15 of 1997 and its amendments by the Provincial Tax Administration (API).

The speaker notes that while there are similarities between gross income tax and profit tax regulations, they will clarify distinctions relevant to Santa Fe.

Company Subjects Under Tax Code

Company subjects are defined within Article 175 of the Tax Code of Santa Fe, which includes legal entities like corporations and sole proprietorships.

Notably, assets with specific purposes such as trusts or mutual funds are not classified as company subjects in this jurisdiction; they are treated similarly to ordinary individuals.

Non-Corporate Entities and Their Tax Obligations

Article 177 applies to individuals or entities not categorized as corporate subjects. This includes human beings who do not engage in habitual exploitation or trusts.

Non-corporate entities must still comply with gross income tax obligations when transferring real estate, particularly outlined in Article 177.

Specific Cases of Real Estate Transfer

The first case discussed involves subdivisions: selling more than ten lots from a property triggers gross income tax obligations. This differs from national regulations where the threshold is fifty lots.

Any sales exceeding ten lots within two years from the first sale also incur taxes, regardless of how those lots were acquired (purchased, donated, etc.).

Responsibilities of Notaries

Notaries play a crucial role in monitoring transactions involving subdivisions. If they oversee sales beyond ten lots within two years from an initial sale, they must ensure compliance with gross income tax requirements.

Understanding Tax Implications in Property Transactions

Overview of Notary Responsibilities

Notaries must verify if the transferor has sold more than 10 lots within a two-year period, including the current transaction. This is crucial for compliance with regulations.

Construction in PH and Taxation

The sale of properties constructed in PH (Propiedad Horizontal) is taxed based on gross income, regardless of whether the builder is an individual or a trust. This differs from national regulations which may not specify this taxation clearly.

There’s a significant interpretation issue regarding when construction is recorded for tax purposes; it can be recorded even after 20 years if the property was built in PH, leading to potential unfair taxation scenarios.

Taxable Events and Identity Requirement

For a taxable event to occur, there must be identity between the builder and seller; heirs who sell inherited properties do not incur taxes unless they were also builders. This emphasizes the importance of chronological continuity between construction and sale for tax liability.

The current interpretation by API (Agencia de Recaudación de la Provincia de Santa Fe) leads to situations where long-term residents selling their homes face taxation that seems unreasonable compared to those who sell shortly after building.

Legislative Challenges

Changes to these interpretations require legislative modifications or judicial declarations, which are often cumbersome processes that delay necessary reforms in tax law related to property sales in PH. Until then, sellers will continue facing gross income taxes upon sale regardless of prior occupancy or use as family property.

Sale Definitions Under Provincial Law

In Santa Fe's Tax Code, "sale" encompasses various forms of property transfer beyond traditional sales—this includes exchanges and corporate contributions—highlighting that any onerous transfer triggers tax implications under article 188 of the code. Understanding this broad definition is essential for compliance during transactions.

Sales Within Two Years: Key Considerations

A critical point discussed is that sales occurring within two years of acquisition are subject to taxation; this applies broadly beyond just onerous acquisitions, capturing many types of transfers unless explicitly classified as gifts under tax law. This highlights the need for careful consideration when planning real estate transactions within this timeframe.

Understanding Property Sales and Tax Implications

Percentage Share and Condominium Situations

Discusses the concept of a percentage share in property sales, potentially measured in pH units, with implications for retention at the time of sale.

Highlights that multiple condominiums may exist within a single unit, necessitating an assessment of each condominium's situation before proceeding.

Trust Awards and Sale Timing

Clarifies that when a trust is awarded, the sale by the successful bidder must occur within two years to be recorded as gross income. This applies specifically to properties awarded through deed possession.

Raises questions about how to determine percentages when larger pieces of land are subdivided into lots, emphasizing that sales made within two years will be taxed as gross income.

Tax Liability on Property Sales

Explains that if more than 10 lots from a subdivision are sold within two years, it triggers tax liability only once for gross income reporting purposes. The focus is on whether the seller has crossed this threshold.

Notes that sales occurring after receiving property through gifts or inheritance are exempt from this two-year rule regarding taxability on gross income. This exemption aims to differentiate between intentional market transactions and those resulting from inheritances or donations.

Intent to Market and Legislative Goals

Discusses legislative intent behind recording transactions: targeting individuals who buy properties with the intention of reselling them within two years, which serves as a measure of intent to market. Exemptions apply for inherited or donated properties due to lack of personal acquisition will.

Provides examples illustrating how acquisitions not based on personal will (like donations) do not fall under the same tax obligations as regular purchases intended for resale within two years. This distinction is crucial for understanding tax liabilities related to property transfers received without direct purchase intentions.

Case Study: Hidden Mandate and Tax Disclosure

Shares an anecdote about a past case involving hidden mandates where one party had acquired property but was required to transfer it back due to legal obligations; highlights complexities in determining taxable events based on ownership perceptions versus actual transactions made under duress or obligation rather than voluntary exchange.

Understanding Property Liquidation in Divorce Settlements

Changes in Legal Opinions Regarding Marital Assets

The discussion highlights a reversal of old opinions regarding the sale of foreclosed properties post-divorce, which has been accepted since mid-2020.

Previously, if a property was awarded to an individual (Gabriela) during divorce proceedings, selling it within two years would result in gross income taxation.

The argument is made that the property received is not from another subject but rather from a community property regime, thus challenging previous tax implications.

New Criteria for Tax Implications

Prior rulings treated marital assets as if they were part of a commercial entity; however, this perspective changed in mid-2020 to reflect more accurately the nature of marital partnerships.

Under current criteria, if Gabriela sells the awarded property after two years from when it was acquired during marriage, she will not be taxed on gross income.

Understanding Timeframes for Property Transactions

The two-year timeframe for taxation is counted from either the acquisition date or deed date to the sale date or possession delivery date—whichever comes first.

An example illustrates that even with a title dated January 2024, prior possession documentation must be considered to determine if more than two years have passed before selling.

Importance of Documentation

If there’s no documented proof of possession prior to the deed's issuance, then only the deed's date counts towards determining tax implications.

A ticket indicating delivery of possession can serve as valid documentation and should be used to establish timelines effectively.

Final Considerations on Property Sales and Taxation

It’s emphasized that all transactions must be properly documented; mere verbal agreements or stories are insufficient for legal purposes.

Understanding Stamp Duties and Tax Regulations

The Importance of Stamp Duties

Stamp duties are critical in transactions, particularly in Santa Fe, where penalties for late payment can be significant.

Late payment of stamp duties does not guarantee a specific date for the transaction; timely payment is essential to establish a clear timeline.

In private instruments, the deadline for stamp duty payments is 15 calendar days in Santa Fe.

Practical Applications and Organizational Strategies

Discussion on organizing practical classes related to gross income and profits, emphasizing the importance of hands-on experience.

Introduction of a draft law aimed at reforming the criminal tax regime, highlighting its potential impact on legal practices.

Key Changes in Criminal Tax Law

The proposed reforms could increase fines significantly, with estimates suggesting an exponential rise by 100 million.

New provisions may allow for multiple opportunities to settle criminal actions by paying determined amounts plus additional fees.

Presumption of Innocence vs. Guilt

A shift towards presuming fiscal innocence is being discussed; however, current laws do not classify individuals as offenders solely based on accusations.

Recent resolutions indicate changes in thresholds for reporting requirements under anti-money laundering regulations.

Regulatory Changes and Their Implications

Future public notaries will no longer need to define clients' tax profiles or verify lawful origins of funds due to new regulatory approaches.

There’s a movement towards reducing pressure on taxpayers while ensuring robust regulatory frameworks are established to protect against future government changes.

Simplification of Tax Regimes

The system aims to simplify compliance processes; however, penalties for non-compliance will be severe.

API Resolution and Tax Code Discussion

Overview of API Resolution 15 of 1997

The speaker references API Resolution 15 of 1997, emphasizing the importance of ensuring it is the most updated version available. They mention obtaining this information from Thomson Router.

Article 22 is highlighted as particularly relevant, focusing on its application for scribes. The speaker confirms that this article is included in the summaries shared with the group.

Updates and Modifications

The speaker plans to provide a comprehensive summary reflecting all recent modifications at both WiF and ARCA levels, ensuring that participants have access to current information.

There’s a discussion about organizing practical exercises in class, indicating a collaborative approach to learning where students can engage with real-world applications of the material discussed.

Practical Applications in Class

The speaker expresses willingness to send no less than ten practical cases with their resolutions for review, suggesting an interactive classroom environment where students can ask questions and discuss outcomes.