By Resolution 5711/2025, the Customs Collection and Control Agency (ARCA has established a payment facility regime for tax, customs, and social security obligations. It provides that taxpayers and those responsible for regularizing tax, customs, and social security obligations due up to and including April 30, 2025, without implying a total or partial reduction of compensatory and/or punitive interest or the release of relevant penalties, may agree to pay in accordance with the plans established for such purposes.
Expressly in its article 1, when stating the tax obligations, it establishes that, "This regime will cover in all cases overdue obligations and fines applied up to and including April 30, 2025."
This is where the position of this regime contrasts with the interpretation of the term "due obligations," in this case as of April 30, 2025. Noting that Customs, for other regimes such as the in-kind regime, has considered that the requirement for this type of payment agreement is only possible when, before the deadline, there is a liquid debt due. It is noted that the date of the taxable event should not be confused with the enforceability of the tax obligation. Whereas, although the taxable event, that is, the export or import for consumption of the goods involved, could have occurred on an earlier date, it is considered that, pursuant to the provisions of Article 786 of the Customs Code, the difference in taxes is not enforceable from that moment on, but rather after the tax assessment is notified to the debtor, guarantor, or person responsible for the tax obligation. Therefore, its enforceability only occurs when the 10-day period from its notification expires, pursuant to the provisions of arts. 793, 1053 and 1058 of the CA. Consequently, it has been estimated that, if it only occurred after the deadline, it is not an obligation liable to adhere to the regime. (1)
If this interpretation were applied to the payment facility regime recently established by General Resolution 5711, we believe that the legal nature of the tax would be affected. It should be noted that in tax matters, given the nature of tax obligations, the principle of confidentiality or legality governs (Rulings: 312:912). To this must be added that the principle of legality requires that a formal law define the event considered taxable and that constitutes the subsequent cause of the tax obligation (Rulings: 329:59), including the definition of its essential elements (Rulings: 347:579).
From this, in tax terms, when "obligation" is mentioned, it always refers to the requirement that arises from a conduct that is expressly determined by the legislator, such as the fact that requires its payment, and no other significance can be inferred from lower-ranking and/or regulatory norms.
It should be noted that General Resolution 5711, which authorizes the payment of taxes, in this case customs taxes, does not refer to "enforceability." Instead, it refers to "obligations," which are enforceable based on the occurrence of a fact imposed by law. Therefore, when a regulation refers to tax obligations, it affects the event that gave rise to them. If a due date is established to refer to a specific issue to be applied, it is always related to the fact identified by law to give substance to said obligation, without prejudice to the deadline that may be established in accordance with any supplementary settlements that may result subsequently. In all cases, whether original or supplementary, tax settlements respond to the same obligation corresponding to the event that arose on a given date, which does not change over time.
The eventual reference made by General Resolution 5711 to "due" on a specific date, in this case April 30, 2025, cannot have any interpretation other than that which resides by legal nature in the element that gives rise to the subsequent cause of the tax obligation, and as we have already pointed out, refers to the taxable event. Therefore, its enforceability is nascent with such conduct; consequently, if this occurs before the imposed limiting date, it enables entry into the regime contemplated by this tax obligation cancellation plan. Contrary to this, a different meaning would be given to the obligation, which violates the principle of legality in tax matters and the prohibition of interpreting tax regulations to impose or limit obligations beyond what is provided by the legislator.
On this particular issue, the Court held that any analogical extension, even through regulations, of the assumptions expressly provided for in the law is in conflict with the constitutional principle of legality of the tax (Judgments: 316:2329; 326:3168). Likewise, that by application of the principle of reserve of law it is not possible to accept the analogy in the interpretation of the material tax regulations to extend the right or impose obligations beyond what is provided by the legislator, since the predictability of the rules in this matter is of the essence of this principle (Judgments: 312:912; 316:2329; 329:1568; 346:1015).
Thus, if the law establishes a special payment regime, referring to "obligations" and adding the time frame of "due," these cannot be viewed in a manner inconsistent with the tax concept of fiscal obligations. Even less so, they cannot deviate from the framework prescribed by law on fiscal obligations, where the legislator has stipulated that from the moment they arise as a result of a taxable event, the taxpayer is obligated to pay them, whether through original or supplementary assessments. Consequently, the temporality of each of the effects that constitute the fiscal obligation corresponds to the taxable event and not to any other time period. This would be confusing "enforceability" with "tax obligation."
🟦Tax obligation and payment of what is due
While the customs service, within its supervisory authority, may not only exercise control prior to the release of goods, but also after such an act occurs, in any case, customs must structure its control in accordance with the taxable event, the taxable moment, and the taxable base.
Thus, if customs conducts ex-post inspections and detects discrepancies that give rise to any applicable supplementary or additional assessments, this is based on a specific event that requires the corresponding payment of a tax, which must be applicable at the taxable moment of the transaction, and not at the time of the audit.
This determines that the payment obligation component arising from such complementary settlement arises from the fact that requires its payment, which arises from the action of importing for consumption or exporting for consumption, and for this purpose, one must resort to the taxable moment, which will be what will determine whether such a requirement, based on the discrepancy of the customs service, should have been cancelled.
In this sense, the obligation arises from a previously established taxable event and based on what is in force at the time of the taxable event. This is entirely different from the payment requirement, which may arise as a result of the review carried out by the customs service. Therefore, in the face of this control, it may be noted that the tax obligation arising from the taxable event does not meet the condition of payment of the amount due for it to be considered canceled. However, this does not mean that such a payment notice may correspond to a tax obligation arising from ex post customs inspection. Given that the tax obligation does not originate from such a tax determination, but rather is inherent to the action that requires payment, that is, from the taxable event that has already arisen, but for which payment of the amount due has not been observed, it will therefore be the importer or exporter's duty to proceed with its cancellation.
Otherwise, any ex post customs discrepancy would be considered a new act, giving rise to a tax burden, and from such customs determination a new tax obligation would arise, which is completely contrary to what the law teaches.
It should be recalled here that Article 792 of the CA provides that, Payment does not extinguish the customs tax obligation when its amount is less than the amount due. Evidently, the law establishes that any payment made at the time of a definitive import or definitive export does not imply that the obligations arising from such conduct, identified by the legislator to impose a tax, have been extinguished.
This is linked to the possibility that the customs service may carry out checks to determine whether a correct payment has been made, that is, whether the amount owed has been paid, or whether a recalculation is required to fulfill the correct tax obligation.
In line with the above, Customs' position is that in these cases, obligations due before the deadline established by the regime are not entered into the account—the Customs opinion refers to Law 27.743—because the debt is not liquid and payable, which would occur for the Customs Service only with the notification. Regarding the new regime imposed by General Resolution ARCA 5711, it would be necessary, following this criterion, to have liquid and payable debt before April 30, 2025. We consider that such a position contradicts the principles of legality and confidentiality in tax matters, distorting the tax concept of obligation and promoting an interpretation aligned with enforceability, which is precisely not what the law expresses.
🟦Regulatory background and jurisprudence
In recent years there have been regulatory frameworks that have imposed different payment plan schemes, among which we can indicate the one referred to in Law 27.541 (2), Law 27.562 (3), Law 27.743.(4)
In all these cases, they have referred to "obligations due" within a specific time period, but under no circumstances has there been any opposition, either from Customs or the Court, to the consideration of those obligations that arise at the time of the event generating the imposition of the tax, that is, the taxable event, whether regular or irregular, even when at the time of the taxable event the supplementary liquidation has not been drawn up or requested.
Although various issues have been debated, such as the scope of this regime for attempted smuggling (5), or whether the effects of the extinction of customs criminal cases provided for by this type of regimes can be applied to all customs offences, there have been no disagreements regarding whether those unliquidated or notified overdue obligations can be paid through the payment facilitation regime, when the taxable events have occurred prior to the due date provided for in each of these regimes. (with the exception of the aforementioned opinion in this note).
This is in contrast to the aforementioned ruling, which is a position that contradicts the position taken by the customs service during the various payment facilitation schemes, which have used the same legal text to refer to overdue tax "obligations."
🟦Conclusion
Deviating from this legal framework, as we have mentioned, at least from our position, is contrary to the principles of legality that govern tax matters and prevents the effectiveness of the spirit of the rule, which precisely favors the settlement of those debts arising from a taxable event, whether regular or irregular, in advance of a predetermined date, in this case April 30, 2025 (See General Resolution 5711).
This places taxpayers in a situation of legal uncertainty and, in practice, prevents them from exercising their right to defense, which is clearly limited by the peremptory deadline established by the regime for applying this scheme to tax obligations, which must be implemented before December 30, 2025, inclusive. After this deadline, the right automatically expires.
Criteria within the customs administration must be aligned with a sense of uniformity and consistency with legal precepts. Otherwise, it would be infringing on a power that is foreign to the customs service by conceiving a tax obligation as potentially arising beyond the taxable event, solely by force of a supplementary assessment. If this position is accepted, Article 793 of the Customs Code, which limits the interpretation of tax legislation adopted after the original payment date and modifies the general interpretation, in force until then, pursuant to which said payment was made, would be invalid.
Finally, it is clear that if the State implements payment plans to meet tax obligations, its focus is on fulfilling its goal of providing support, ensuring that taxpayers agree to the payments without question and promoting tax collection, freeing the administration from the channels of discussion, which ultimately generate greater costs and time.
Furthermore, these same regimes, as a requirement for payment, impose on the taxpayer the obligation to expressly waive the repetition of these amounts in the future. This requirement demonstrates that restricting these types of payment incentive channels conflicts with the interests of the State, whose objective is not only to collect taxes but also to relieve the administration of administrative processes that, ultimately, have a detrimental impact on the administration itself.
1. Legal Opinion – IF-2024-03777530-AFIP-DEASAD#SDGASJ – s/ Law 27.743. DCTO. 302/2021 (Nov. 2024): “It is appropriate to consider that the date of the taxable event should not be confused with the enforceability of the tax obligation. Although the taxable event (the export for consumption of the merchandise involved) could have taken place in 2021 as indicated, pursuant to the provisions of art. 786 of the CA, there is no enforceability of the difference in taxes from that moment but after the tax assessment is notified to the debtor, guarantor or person responsible for the tax obligation. Indeed, its enforceability only occurs upon expiration of the 10-day period from its notification pursuant to the provisions of arts. 793, 1053 and 1058 of the CA. If this only occurred after 31/3/2024, it is not an obligation liable to adhere to the regime of Law 27.743. For all the reasons stated above, the tax liability for the tax assessment is not enforceable. Given the above, this legal service understands that it is not possible for the exporter to adhere to the aforementioned regularization regime.”
2. Law 27.743, Article 8 - Taxpayers and those responsible for taxes and social security resources whose application, collection and inspection are in charge of the Federal Administration of Public Revenues, who are classified and registered as Micro, Small or Medium Enterprises, according to the terms of Article 2 of Law 24.467 and its amendments and other complementary regulations, may be eligible, for obligations due as of November 30, 2019 inclusive, or infractions related to said obligations, to the regularization regime for tax debts and social security resources and forgiveness of interest, fines and other sanctions established by this Chapter. To this end, they must prove their registration with the MiPyME Certificate, valid at the time of submission to the regime approved by this law, as established by the Secretariat of Entrepreneurs and Small and Medium Enterprises of the current Ministry of Productive Development. Non-profit civil entities may also apply to the same regime.
3. Law 27.562: Article 8 - Taxpayers and those responsible for taxes and social security resources whose application, collection and inspection are the responsibility of the Federal Administration of Public Revenues, an autonomous entity within the scope of the Ministry of Economy, may avail themselves, for obligations due as of July 31, 2020 inclusive or infractions related to said obligations, of the regime of regularization of tax debts and social security resources and forgiveness of interest, fines and other sanctions established in this chapter.
4. Law 27.743: Article 2 - Taxpayers and those responsible for tax and customs obligations and social security resources whose application, collection and inspection are the responsibility of the Federal Administration of Public Revenues, may apply for obligations due as of March 31, 2024, inclusive, and for violations committed up to that date, whether or not related to those obligations.
5. Report of the Subdirectorate General of Customs Legal Technology - Formerly AFIP - "The taxable event for import duties and their improvement", issued on June 11.06.2020, XNUMX.
The author is a lawyer and member of the Institute of Customs Law and International Trade of the Argentine Association of Constitutional Justice.
