Escribanía - 03/05 - Parte 3

Understanding Taxation on Property Transfers

Overview of Tax Categories

• The speaker emphasizes the importance of categorizing individuals for tax purposes, particularly regarding capital gains tax. They mention that Gabriela will provide a detailed explanation about gains throughout the year.

Capital Gains Tax Implications

• A discussion on how individuals are taxed based on their income sources, specifically mentioning a 3% withholding tax on capital gains from property transfers.

Identifying Habitual Buyers

• The concept of "habitualista" is introduced, referring to individuals whose primary source of income comes from buying and selling properties. This classification affects their tax obligations.

Criteria for Habitual Status

• To determine if someone is a habitual buyer, one must assess whether property trading is their main activity. Examples include professionals like dentists who occasionally buy land versus those who regularly engage in real estate transactions.

Unipersonal Exploitation and Taxation

• The term "explotación unipersonal" refers to an individual transferring property linked to their main business activity. For instance, a factory owner selling the building used for production would be subject to capital gains tax.

Tax Obligations for Non-Habitual Buyers

Scenarios Involving Lot Sales

• Two specific scenarios where non-habitual buyers may incur taxes: selling more than 50 lots within two years or when multiple lots arise from the same subdivision.

Additional Taxable Situations

• Other taxable situations include constructing under horizontal property laws for sale or selling properties received as payment within two years, which has implications under recent legislation.

The Role of Notaries in Tax Collection

Responsibilities in Property Transfers

• Notaries play a crucial role as agents of retention for national taxes during property transfers, needing to determine whether to apply ITI (Impuesto de Transferencia de Inmuebles) or capital gains tax based on specific criteria.

Decision-Making Process in Tax Analysis

• The speaker likens navigating taxation laws to choosing paths in an adventure book; they must analyze each case's specifics before determining applicable taxes and exemptions.

Defining Business Entities in Tax Law

Understanding 'Sujeto Empresa'

• The term "subject empresa" encompasses all entities liable for taxation that are not classified as individuals or indivisible estates. This includes trusts treated as business subjects under tax law.

Understanding Indivisible Successions and Tax Implications

The Nature of Indivisible Successions

• Indivisible successions do not confer legal acts, emphasizing the distinction between human persons and business entities in tax analysis.

• All commercial societies are classified as business entities; however, not all businesses qualify under this definition. Business entities encompass more than just legal persons.

Taxation of Business Entities

• According to the tax code, business entities include all non-human persons, such as indivisible successions, which are subject to income tax.

• When a transferor is a business entity, income analysis is straightforward; exceptions may arise due to exemptions or impossibilities regarding retention.

Human Persons and Tax Obligations

• The speaker emphasizes the necessity for personal analysis when dealing with human persons in taxation since many accountants lack clarity on these matters.

• If a human person acquired an asset after January 1, 2018, their transaction will be subject to different taxation rules compared to those who acquired it earlier.

Transfer Taxation Specificities

• Transactions involving human persons that were acquired onerously post-January 1, 2018, will incur specific taxes rather than general income tax.

• It’s crucial to determine when an asset was acquired to ascertain its tax implications accurately.

Retention Agents and Legal Obligations

• The speaker expresses relief at not being a withholding agent for certain transactions but acknowledges the need for proper documentation regarding payments made by clients.

• A standard rate of 15% applies to capital gains from sales after deducting documented expenses; however, there is confusion among colleagues about withholding obligations.

Clarifications on Withholding Responsibilities

• Many professionals unnecessarily include clauses in contracts stating they are not withholding agents for VAT due to fear stemming from past practices.

• The speaker suggests creating advisory minutes where clients acknowledge their understanding of applicable taxes without imposing unnecessary clauses in contracts.

Notary Functions and Protocol Acts

• Notaries act as withholding agents only during protocol acts where they certify transactions occurring in their presence.

• Distinction is made between protocol acts (where identity verification occurs through documentation and certification of signatures), versus extraprotocolares (where legality of documents is verified).

Understanding Legal Documentation and Tax Implications

The Role of Notaries in Document Verification

• The speaker emphasizes the importance of verifying documents, especially those in foreign languages, to ensure their legality and proper understanding.

• Notaries clarify that they are not tax agents or responsible for withholding taxes; their role is limited to certifying signatures on documents like sales contracts.

Importance of Proper Documentation

• It is crucial for sale agreements (boletos) to be properly stamped; failure to do so can lead to complications when executing or transferring ownership later.

• The speaker shares experiences with clients who faced issues due to improper certification by notaries, highlighting the need for thorough documentation practices.

Understanding Tax Obligations

• Notaries must communicate clearly about their non-retention status regarding taxes, emphasizing the necessity of written records (minutas) for clarity.

• There is a discussion on how tax obligations are often detailed at the end of legal documents, which can lead to misunderstandings if not properly addressed.

Analyzing Taxable Events

• The taxable event is defined as occurring upon the signing of a document or transfer of possession; this has implications for transactions made after January 1, 2018.

• A comprehensive analysis is required before determining tax liabilities based on acquisition dates and individual circumstances related to capital gains.

Distinguishing Between Habitual and Non-Habitual Transactions

• The distinction between habitual sellers and occasional sellers affects tax treatment; habitual sellers face different scrutiny under tax laws.

• Factors such as frequency of sales and intent behind property transactions play a critical role in determining an individual's tax classification.

Investigative Approach in Tax Matters

• Notaries must act as detectives in assessing client profiles and transaction histories to ensure compliance with tax regulations.

• Specific criteria help identify habitual sellers, including volume and timing of property sales within certain periods.

Client Relationships and Ethical Considerations

• Establishing trust with clients is essential; notaries should be aware of potential conflicts when dealing with habitual sellers or complex transactions.

• Ethical considerations arise when handling payments received as honorariums versus actual sales, necessitating clear communication about transaction nature.

Conclusion: Navigating Complex Legal Landscapes

• Understanding client profiles helps navigate legal complexities while ensuring compliance with taxation laws.

Welcome to the Most Beautiful Subject in the World

Introduction and Upcoming Session

• The speaker welcomes participants to what they describe as "the most beautiful subject in the world."

• They mention a scheduled meeting for the following Friday at 6:20 PM, indicating anticipation for this session.

• The speaker expresses concern about not having an audience, suggesting that their presentation may be less engaging without participants present.

• There is a light-hearted tone as they joke about managing without an audience, hinting at their enthusiasm despite potential challenges.