Tax Disputes Comparative Guide

1 Legal framework

1.1 Which laws govern taxation and tax disputes in your jurisdiction?

Argentina is a federal republic with three levels of government that can exercise taxing powers:

• the federal government;
• the provinces and the city of Buenos Aires; and
• the municipalities.

However, there are certain regulations for coordinating and harmonising taxation among these levels, such as:

• the Tax Distribution Law;
• the Multilateral Agreement; and
• several tax consensuses and agreements.

At the federal level, taxation is governed by laws for each tax. The most important are:

• the Income Tax Law;
• the Value Added Tax Law;
• the Personal Assets Tax Law;
• the Law on Tax on Credits and Debits in Bank Accounts, and its regulatory Decree 380/2001; and
• the Law on Tax for an Inclusive and Solidary Argentina.

Tax disputes at the federal level are governed by statutes including:

• the Tax Procedural Law;
• the Administrative Procedure Law; and
• the Civil and Commercial Procedural Code.

At the provincial level and in the city of Buenos Aires, taxes and procedural rules are established in the tax codes that each of them issues. The different rates, minimum amounts and other matters are established usually on a yearly basis through a specific tax law.

At the municipal level, taxes and procedural rules are established through ordinances, while minimum amounts and other matters are usually established on a yearly basis through a specific ordinance.

Finally, there are several regulations – especially at the federal and provincial levels – granting tax authorities the possibility to collect upfront payments that exceed the final burden of the tax. Taxpayers have challenged these upfront payments in many cases.

1.2 Do any other regional, national or supranational rules or regulations have relevance in this regard?

Further to those outlined in question 1.1, certain administrative bodies composed of members of the provinces and of the city of Buenos Aires have competence to rule on disputes regarding the coordination and harmonisation of tax resources. Those administrative bodies are:

• the Arbitral Commission of the Multilateral Agreement; and
• the Federal Commission of Taxes.

Each has its own procedural regulations.

1.3 Which authorities are responsible for enforcing the tax laws? What is their general approach to enforcement?

The Federal Tax Authority (AFIP) is in charge of auditing taxpayers and determining any difference arising from the taxes they declared through an ex officio procedure, which can conclude with a resolution that replaces or amends the taxpayer's tax return.

Under certain circumstances, AFIP can:

• disregard the ex officio procedure and require taxpayers to pay certain amounts wrongly offset or under certain promotional regimes; and
• require taxpayers to make payments in advance (through upfront payments or withholding regimes).

If AFIP's requirements are not complied with, AFIP can file an enforcement proceeding.

AFIP cannot enforce taxes and interests determined ex officio until an authority has ruled on the administrative appeals it files. Fines cannot be enforced until the matter is res judicata.

The tax authorities of local jurisdictions have similar enforcement powers; but in general, local rules provide for the prior payment of taxes, interest and sometimes fines as a requirement for challenging an administrative resolution.

All tax authorities are entitled by law to:

• hold administrators of entities for the payment of taxes jointly and severally liable; and
• file for injunctions before the courts against taxpayers to guarantee the payment of taxes and interest.

The tax authorities, especially at the federal level, have several information and mandatory disclosure regimes that taxpayers and/or third parties must comply with.

Fines cannot be updated considering prices inflation. Then, the more time that elapses, the lower the real value of such fines falls.

1.4 To what extent do the tax authorities cooperate with (a) other national authorities and (b) their international counterparts in enforcing the tax laws? Does this vary depending on the applicable tax?

Cooperation between authorities at the same or different levels of government is common. Audits of one tax authority often rely on information exchanged with other tax authorities or other administrative bodies or courts. There is also a link between many tax returns and registrations submitted before different levels of government.

AFIP can be appointed to conduct an audit on behalf of other administrative bodies. It has, for example, audited compliance with the conditions for:

• obtaining certain benefits granted to mitigate the impact of the COVID-19 pandemic; and
• qualifying for and ensuring continued eligibility under promotional regimes.

Argentina has signed agreements to exchange tax information with 29 jurisdictions. It has also signed the following multilateral agreements:

• the Organisation for Economic Co-operation and Development's (OECD) Convention on Mutual Administrative Assistance in Tax Matters;
• the OECD's Multilateral Agreement between Competent Authorities for the Exchange of Country-by-Country Reports; and
• the OECD's Multilateral Agreement between Competent Authorities for the Automatic Exchange of Information about Financial Accounts.

In recent years, AFIP has conducted audits relying on information obtained by request under many of these agreements, especially in relation to income tax and personal assets tax. It has also received requests for information from counterparts in other countries.

In certain cases, where AFIP obtains information through these agreements, it submits generic notifications to the taxpayer stating that it has received certain information and requesting the taxpayer to amend its tax return. Thereafter, depending on the facts of the case, it can open an audit.

2 Tax investigations

2.1 How do the tax authorities monitor compliance with the tax laws? Does this vary depending on the individual taxpayer or the applicable tax?

The tax authorities monitor compliance by auditing taxpayers. The mechanism through which the taxpayers to be audited are selected is not publicly available. Moreover, the tax authorities initiate audits in response to:

• information obtained from other audits;
• inconsistencies in the analysis of data obtained from taxpayers and third parties within the framework of information regimes; and
• mechanisms for allocating levels of risk based on different circumstances regulated through certain resolutions.

There are no substantial differences in audits of individuals or legal entities, at least as far as the publicly available information suggests.

2.2 What typically triggers a tax investigation in your jurisdiction?

Please see question 2.1.

2.3 What is the limitation period for commencing a tax investigation in your jurisdiction?

The Tax Procedural Law establishes the statute of limitations for federal taxes. There is no deadline for commencing or concluding a tax investigation, but the Federal Tax Authority's (AFIP) powers to determine and enforce taxes are barred after five years, counted from 1 January of the year following that in which the tax return was filed. For non-registered taxpayers, the deadline is 10 years. Thus, if the tax return in question was due in 2023, the five-year deadline starts to run on 1 January 2024 and ends on 31 December 2028.

However, the limitation period may be suspended or interrupted in certain cases – for example, where:

• the authority requests the payment;
• the authority files an enforcement proceeding;
• certain amnesty laws apply; or
• appeals are filed before the National Tax Court.

The statute of limitations that applies in local jurisdictions is similar, although other elements (eg, suspension, interruption, counting) are regulated differently. Section 75(12) of the Argentine Constitution establishes that only the federal government can regulate general laws. It has been discussed for several years now whether:

• local jurisdictions can regulate the statute of limitations differently from what is provided at the federal level; or
• federal laws should prevail.

The Supreme Court has ruled in favour of federal laws. However, following certain amendments made to these laws in 2015, the outcome of the discussion is still unclear.

2.4 How does a tax investigation typically unfold in your jurisdiction?

First, AFIP must notify the taxpayer through an intervention order, which details:

• the taxes and periods to be audited; and
• the public officers conducting the investigation.

During the audit, public officers request information from taxpayers and/or third parties. The audit closes with a report in which the public officer:

• proposes a broader audit;
• proposes an adjustment of taxes; or
• closes the audit without adjustments.

If there is an adjustment, the public officer must serve the taxpayer with notice of a preliminary assessment. The taxpayer can accept or reject the notice.

If the taxpayer rejects the notice, AFIP may, ex officio, open a procedure through which it serves a resolution in which it explains the findings of the investigation and grants the taxpayer 15 working days (extendable for another 15 days) to present its defence and offer evidence.

The ex officio proceeding closes with an administrative resolution:

• deciding on the arguments and evidence that the taxpayer has filed; and
• dismissing or confirming the adjustment proposed in the investigation.

If the adjustment is confirmed, the administrative resolution amends the tax return. The taxpayer can file an appeal within 15 working days before AFIP or before the National Tax Court. Most taxpayers prefer to appeal before the National Tax Court, as it grants them access to the scrutiny of an independent administrative court that specialises exclusively in tax and customs matters.

In local jurisdictions, the investigation procedures are similar, but there are certain changes to the appeals process and the actions that taxpayers can file.

2.5 What is the typical timeframe for the investigation?

There is no specific timeframe for conducting an investigation. However, on average, it takes two years.

2.6 What powers do the tax authorities have in conducting their investigation, in relation to (a) the taxpayer itself, (b) its employees and (c) third parties?

In conducting investigations, the tax authorities have broad powers – for example, to:

• subpoena the taxpayer or third parties requesting information regarding income, circumstances and operations related to the taxable event of the different taxes, as well as supporting documents;
• review taxpayers' and third parties' books and working papers regarding operations and circumstances relating to the taxable event;
• require law enforcement to:
• • summon taxpayers and third parties to answer any inquiries; or
  • carry out search warrants;
• request a search warrant from the courts;
• order the preventive closure of establishments if the competent public official verifies certain breaches; and
• order other preventive measures against tax evasion. In this regard, AFIP may preventively block taxpayers from issuing invoices and/or using their tax identification codes, among other measures.

The Tax Procedural Law grants AFIP the power to determine unpaid taxes based on presumptions if the taxpayer does not file the information or documents requested. In most cases, the taxpayer can prove the contrary. Examples of such presumptions include the following:

• Differences in inventories imply taxable income/sales for income tax/value-added tax (VAT) and other taxes;
• Bank wire transfers exceeding the sales and/or income declared in the tax period imply taxable income/sales for income tax/VAT and other taxes; and
• Funds coming from nil or zero taxation – regardless of their nature, cause or the type of operation from which they originated – are considered an unjustified increase in assets and imply taxable sales/income for income tax/VAT and other taxes.

2.7 On what grounds, if any, can taxpayers refuse to disclose commercial information during the investigation?

Taxpayers cannot refuse to disclose commercial information that relates to the taxable event or taxable basis, and thus to the investigation. However, taxpayers can refuse to disclose information if:

• the grounds for requesting that information are unreasonable; and
• the tax authorities do not have a tax-related interest for obtaining it.

On the other hand, all approved double tax treaties that Argentina has signed (ie, with Germany, Australia, Belgium, Bolivia, Brazil, Canada, Chile, Denmark, the United Arab Emirates, Spain, Finland, France, Italy, Mexico, Norway, Netherlands, Qatar, the United Kingdom, Russia, Sweden and Switzerland) provide that contracting parties are not obliged to share information revealing a commercial secret.

2.8 Can the taxpayer object to or challenge the tax investigation? Are any other avenues available for resolving the matter?

Requests and resolutions issued during an audit cannot be appealed. If the tax authorities order unreasonable measures or request information that is unrelated to the investigation, the taxpayer can file an amparo (action of relief).

Once AFIP has issued its final resolution, the taxpayer can file:

• a reconsideration appeal before AFIP itself; or
• an appeal before the National Tax Court.

A reconsideration appeal involves requesting a new judgment from the same tax authority, which very seldom modifies the opinion. If the reconsideration appeal is dismissed, the taxpayer can file an action before the courts but must first pay the tax (plus interest).

In an appeal before the National Tax Court, an independent administrative court that specialises in tax matters reviews the case without the taxpayer first having to pay the tax. If the National Tax Court's ruling is adverse to the taxpayer, the taxpayer must pay the tax and interest or bear the enforcement of the debt. The ruling may be further appealed before the Contentious Administrative Court.

In certain cases, AFIP can disregard the ex officio procedure and request the taxpayer to pay the difference. These requests can be appealed before AFIP without suspensive effect, so the taxpayer usually requests an injunction to prevent enforcement of the payment.

Under certain circumstances, taxpayers opt to file a motion of unconstitutionality directly before the courts to obtain a ruling:

• clarifying the scope of a regime; or
• declaring the unconstitutionality of a law.

In local jurisdictions, investigation procedures are similar, but certain aspects of appeals and actions differ.

2.9 What actions can the tax authorities take if the taxpayer does not cooperate in the investigation?

The tax authorities can:

• request assistance from law enforcement; and
• apply fines if a taxpayer refuses to be audited. However, these fines are very low (around $125 at the current exchange rate).

2.10 Can the tax authorities exercise discretion in their treatment of the taxpayer in exceptional circumstances (eg, insolvency)?

No. Any tax treatment, amnesty law, payment in instalments regime or similar must be general and cannot be directed to a specific taxpayer. Moreover, as a general principle, the tax authorities are not allowed to enter into agreements with individuals.

Broadly speaking, the tax authorities establish favourable tax treatments or instalment regimes for certain activities or for a group of taxpayers under certain circumstances. For example, in case of insolvency, AFIP establishes specific regimes to pay the taxes in several instalments.

2.11 Do tax authorities have any leeway to settle in the course of tax investigations?

No. However, since the Tax Procedural Law was amended, before commencing an ex officio procedure, AFIP can enable an instance for the parties to reach a final voluntary agreement.

To access this instance:

• the agreement must analyse the facts and the correct application of the law to the case;
• the agreement must evaluate data, elements or other relevant tax obligation features; and
• the agreement must be necessary because the case involves situations requiring a conciliatory solution due to their nature, novelty or complexity.

The matter will be resolved by a collegiate conciliation body comprised of:

• professionals involved in the process of the dispute;
• AFIP's highest legal and technical officials; and
• the internal controller's authorities especially designated for this.

This body will issue a detailed report recommending or rejecting a conciliatory solution. It may also request guarantees to grant the tax debt. The federal administrator must approve the agreement. If the taxpayer rejects the solution, the original tax assessment procedure will continue.

Once an agreement has been reached, AFIP cannot ignore the facts analysed in it or challenge them in another jurisdiction.

These agreements do not constitute case law and cannot be entered into when AFIP is pursuing a criminal prosecution.

Although this regime is set out in the Procedural Tax Law, it has not yet been regulated and the collegiate conciliation body has not yet been created. Thus, this regime is not yet applicable.

2.12 If the investigation concludes that taxes are overdue, what powers do the tax authorities have to collect them? Does this vary depending on the applicable tax?

AFIP can file an enforcement proceeding when:

• it dismisses the application of the ex officio procedure and submits a payment request that the taxpayer has not yet complied with;
• a taxpayer does not challenge the ex officio resolution; or
• an appeal filed by the taxpayer against the ex officio resolution is dismissed.

Regarding the provinces, the city of Buenos Aires and the municipalities, the tax authorities can file a tax enforcement proceeding once the ex officio procedure has closed and all administrative appeals have been rejected. In certain jurisdictions, local tax codes allow the tax authorities to enforce payment of the debt even where the administrative appeals have not been resolved. Moreover, in certain jurisdictions, even where tax codes do not grant such authorisation, the tax authorities file enforcement proceedings without following – partially or totally – the ex officio proceedings. In these cases, it is crucial to file alternative actions to suspend the tax authorities' power to enforce the payment.

2.13 On what grounds are penalties imposed and how are these calculated?

The Tax Procedural Law and the criminal tax regime establish the main penalties.

Fines can be classified into those for:

• breach of 'formal' duties (eg, non-compliance with filing tax returns or information regimes; failure to respond to requests of the tax authorities); and
• non-payment of taxes.

Fines for breaching formal duties are established in fixed – and generally low – amounts.

Not paying taxes or not acting as a withholding agent can result in fines of 100% of the unpaid tax or not withheld. These fines can increase to 200% if the taxpayer fails to pay the same tax more than once.

If a tax authority considers that a taxpayer committed fraud, it can impose an evasion fine ranging from 200% to 600% of the evaded tax. This fine is different from any penalty applicable under the criminal tax regime.

The criminal tax regime set out in Law 27430 establishes tax and social security crimes which are punishable by imprisonment if committed by natural persons. If a company commits the evasion, directors and other officers who participated in it will be criminally liable.

Legal entities will also be subject to other penalties, such as total or partial suspension of activities or cancellation of legal personality, where the company was created merely to commit a crime.

While the fines set out in the Tax Procedural Law apply only to breaches related to federal taxes, the crimes in the criminal tax regime apply to breaches of taxes collected at the federal and local levels.

2.14 On what grounds is interest levied and how is this calculated?

At the federal level, the Tax Procedural Law entitles the Ministry of Economy to establish the interest rate applicable to taxes owed to the tax authorities. Currently, the applicable interest rate is set in Resolution 3/2024 of the Ministry of Economy. This interest accrues as of the deadline for paying the tax.

The interest applicable to reimbursement actions that taxpayers file is also set in Resolution 3/2024. This interest accrues as of the date on which the taxpayer requested the reimbursement.

Similar rates apply at the level of the provinces, the city of Buenos Aires and the municipalities – although generally with:

• a higher rate for debts in favour of the tax authorities; and
• a lower rate for debts in favour of taxpayers.

2.15 What defences are typically available to the taxpayer?

Taxpayers can raise procedural and substantial defences. The most common are:

• nullity due to a lack of grounds for the challenged resolution;
• the expiry of the statute of limitations; or
• in case of taxes at a local level, non-publication of the corresponding tax law in the Official Gazette, which leads to the annulment of any tax claim.

The Argentine Constitution provides for several tax principles – such as property, prohibition of confiscation, capacity to pay taxes and equality – that must be analysed when filing defences.

The usual defence against claims of the provinces, the city of Buenos Aires and the municipalities is that such levels of government are exercising tax powers or other powers that have been delegated to the National Congress. For example, in recent years, the Argentine Supreme Court declared the unconstitutionality of laws of different provinces that implicitly regulated commerce (a power reserved to the National Congress) by establishing lower tax rates for taxpayers domiciled within their territories.

Other common defences include invoking non-compliance with:

• the Tax Distribution Law;
• an applicable multilateral agreement; or
• a tax consensus celebrated to coordinate and harmonise tax legislation in exchange for distributing between the different levels of government the tax revenues collected by the federal state. Provinces and the city of Buenos Aires often do not comply with these compromises, in which case a common defence is to request the courts to declare the inadmissibility of the claims filed by these levels of government.

2.16 Can the results of the tax investigation have criminal implications for the taxpayer? Does this vary depending on the individual taxpayer?

Further to question 2.12, the most common crimes that the tax authorities prosecute are tax evasion and aggravated tax evasion. The criminal tax regime establishes a penalty of two to six years' imprisonment for anyone that must pay taxes (at the federal or local level) and – through fraudulent tax returns, malicious concealment or any other means – evades such payment, provided that the amount of the evasion exceeds ARS 1.5 million for each tax and for each fiscal year.

The penalty increases to three years and six months to nine years' imprisonment in case of aggravated evasion. Aggravated evasion occurs where, for example:

• the evaded amount exceeds ARS 15 million; or
• the evader relies on non-cooperative jurisdictions, shell companies or intermediaries to obscure its identity and the evaded amount exceeds ARS 2 million.

Nevertheless, the criminal tax regime provides that for simple or aggravated evasion (among other crimes), a criminal action may be extinguished by paying the amounts owed. This method of extinguishing the criminal action does not apply to all claims – for example, it does not apply to the misappropriation of taxes and social security resources.

2.17 If the tax investigation has criminal implications for the taxpayer, are the answers to any of the above questions different?

The fact that a tax investigation has criminal implications has two main consequences:

• AFIP will be unable to impose fines until there has been a final ruling in the criminal case; and
• Once a criminal court has issued a final ruling on the conduct of the taxpayer or other responsible party, the tax authorities, the Federal Tax Court and other courts with jurisdiction in tax matters must rule on the corresponding tax matter without altering the declaration of facts in the criminal court's final ruling. In other words, if the criminal court considers that the taxpayer did not commit a tax crime, the tax authorities cannot impose a fine for tax evasion.

3 Voluntary disclosure and amnesties

3.1 Are any voluntary disclosure or amnesty programmes applicable in your jurisdiction? Does this vary depending on the applicable tax?

Yes – from time to time, the National Congress issues voluntary disclosure and amnesty regimes; and a project in this regard is currently under discussion in Congress. The conditions and benefits of these regimes vary depending on each law.

The most recent regime for voluntary disclosure was issued in June 2016 through Law 27260. Taxpayers that opted for this regime disclosed assets that had been registered or deposited under the name of their spouse, certain relatives or even third parties. Under the regime, taxpayers had to fully disclose their assets; partial declarations were not allowed.

The voluntary disclosure regime involved the application of a special tax at a rate which varied between 0% and 15%, depending on the value of the asset. However, the disclosure was exempt from this special tax in certain cases.

The latest tax amnesty was issued through Law 27541 and provided for a total exemption from fines and a partial exemption from interest if a taxpayer paid the principal of the debt. However, many taxpayers did not choose this regime because the conditions were too burdensome – for example, the repatriation of assets.

The provinces and the city of Buenos Aires often issue amnesty regimes too.

On July 2024, it was published a law setting forth a voluntary disclosure and a tax amnesty regime.

4 Forum for tax disputes

4.1 In what forum(s) are tax disputes heard in your jurisdiction? Is there any choice of forum available?

At the federal level, the choice of forum is limited. Disputes can be raised before the Federal Tax Court and then appealed before the courts of appeal in administrative matters. If a case is instead brought directly before a first-instance court, it can be appealed before a court of appeal without going through the National Tax Court.

The choice of forum is a key aspect of the procedural strategy. In major disputes challenging an ex officio assessment of AFIP, taxpayers opt to appeal before the National Tax Court, since an appeal before a first-instance court requires payment of the sum that AFIP has determined.

The choice of forum is more important where the dispute originates from a reimbursement action. In this case, it is necessary to consider certain aspects of each particular case – the most important of which include:

• whether a declaration of the unconstitutionality of a law is necessary;
• preparation of the reports of expert witnesses; and
• the possibility for the court to review the facts and evidence.

In some cases, it is possible to file a motion of unconstitutionality before the first-instance court. This option might be advisable where:

• the taxpayer needs to clarify the scope of its tax position; or
• a declaration of the unconstitutionality of a law is sought.

At the local level, tax disputes are heard by the courts of such jurisdictions. In difficult cases, taxpayers try to prove that the dispute involves a clash between local and federal powers and the dispute can thus also be brought before the federal courts.

4.2 Who is the fact finder in a tax dispute? Does this change based on venue?

Except in criminal prosecutions brought before the criminal courts, the fact finders in a dispute are the parties. In a procedure before the National Tax Court, the ex officio principle applies; however, the parties have a duty to render all evidence. In a procedure before the Contentious Administrative Court, which hears certain reimbursement actions and appeals against National Tax Court rulings, the dispositive principle applies and thus the parties are responsible for driving the proceedings forward.

5 Filing a tax dispute

5.1 What is the limitation period for filing a tax dispute in your jurisdiction?

The Tax Procedural Law establishes the statute of limitations for federal taxes. The powers of the federal tax authorities to determine and enforce taxes are barred after five years, counted as from 1 January of the year following that in which the tax return was filed. For non-registered taxpayers, the term is 10 years. Thus, if the tax return in question was due in 2023, the five-year deadline starts to run on 1 January 2024 and ends on 31 December 2028.

For reimbursement actions filed by taxpayers, the limitation period is five years, counted as from 1 January of the year after the tax was paid.

The Tax Procedural Law lists several reasons for the interruption or suspension of the statute of limitations. With regard to the statutes of limitations applied in the provinces, the city of Buenos Aires and the municipalities, please see question 2.4.

5.2 What are the formal requirements for filing a tax dispute?

The formal requirements vary across jurisdictions. However, the filing must be signed by an attorney with a public bar association licence. Each province has its own public bar association and the attorney must hold a licence from the bar association of the jurisdiction in which the dispute will be decided.

Almost all jurisdictions have established that complaints can be filed remotely. Therefore, a digital or electronic signature is needed.

Appeals to the National Tax Court can be signed by an accountant instead of an attorney. However, in practice, these writs are mostly signed by attorneys.

5.3 What are the procedural and substantive requirements for filing a tax dispute?

The complaint of a tax dispute must:

• be filed in writing; and
• include:
• • the name and address of the plaintiff;
  • the name and address of the defendant;
  • the object of the dispute;
  • the facts on which the dispute is grounded;
  • a brief account of the rules and laws invoked;
  • a final request for the court, in clear and positive terms; and
  • the amount claimed, except where it is not possible for the plaintiff to determine this when filing the complaint.

When filing a request for reimbursement of indirect taxes (eg, value-added tax; excise taxes) paid in excess, Section 81 of the Tax Procedural Law requires taxpayers to prove that the tax was not shifted to third parties (typically consumers). The purpose of this provision is to avoid the illicit enrichment of taxpayers. Some local laws include similar provisions for turnover tax. Where there is no actual law on the matter, Supreme Court case law has oscillated between considering this request applicable and not.

In other jurisdictions, it is necessary to pay the specified tax, interest and/or fines before filing the complaint.

5.4 Is there any possibility for collective proceedings (eg, involving several taxpayers or multiple tax assessments)?

Collective proceedings are admissible and will depend on the nature of the discussion. The Supreme Court has admitted collective proceedings in cases filed by certain associations on behalf of their associates (most commonly, associations of financial entities).

Moreover, the Supreme Court has held that where a specific tax affects consumers or users, the declaratory judgment is valid even if it is not the plaintiff that must pay the tax. Therefore, in such cases, an association can file a case in order to protect its members from the damage that the taxation would otherwise cause. For example, in one case a company passed on some of its own taxes to consumers, so a consumer association filed a lawsuit against that company on behalf of all consumers.

However, in other cases, the Supreme Court has ruled that certain inconsistencies demonstrated that the first-instance court should not have admitted the collective proceedings. Indeed, the Supreme Court has considered that where the rights are completely individual instead of collective, each taxpayer must file its own lawsuit and render its own evidence demonstrating the harm.

In our opinion, collective proceedings may be an adequate option for matters involving a question of law, but they involve several complexities where individual evidence must be rendered.

5.5 Must the sum in contention be paid into court before a tax dispute is filed?

At the federal level, the sum in contention must be paid only if the taxpayer files a reconsideration appeal with AFIP against an ex officio resolution of ADIP and the appeal is rejected. Moreover, in social security matters, any discussion brought before the courts requires prior payment or its substitution for an insurance policy, if certain conditions are met.

At the provincial and municipal levels, the general principle is that prior payment is needed to file a case before the courts. The prior payment generally includes principal and interest; but some jurisdictions also include fines.

5.6 Has the filing of a tax dispute any effect on the payment of tax or the collection possibilities for the authorities?

This depends on the jurisdiction. At the federal level, appeals filed against an ex officio resolution have suspensive effect. Thus, the tax authorities cannot force taxpayers to pay the debt and the taxpayer is not obliged to pay it.

Where the tax authorities are allowed to disregard the ex officio procedure – for example, because they consider that the positive balance in a tax return is incorrect – appeals filed against a request for payment do not have suspensive effect. The tax authorities can thus file an enforcement action. In these cases, taxpayers usually request an injunction.

At the provincial and municipal levels, the effect of appeals varies depending on the jurisdiction but they generally have suspensive effect.

5.7 If the tax dispute is decided in favour of the authorities, is late interest due if the tax has not been settled? If the tax dispute is decided in favour of the taxpayer and the tax had already been settled, is interest due by the state?

Yes, in both cases interest is due.

6 Disclosure and privilege

6.1 What rules apply to disclosure in your jurisdiction? Do any exceptions apply?

What determines the applicable rules of evidence are:

• the rules of each jurisdiction; and
• the type of proceedings against the taxpayer.

Argentina has no discovery rules. Thus, it is the law enforcement authorities that compel the production of evidence; and interested parties can produce complementary evidence (eg, experts' reports).

In civil law proceedings, parties and other stakeholders can usually produce evidence, unless confidentiality is expressly imposed. This might be the case, for instance, in proceedings involving family issues or minors.

In criminal law proceedings, the production of evidence is often confidential and evidence is withheld from the parties (including private prosecutors) during the investigative stage. However, during the trial stage, evidence is generally not subject to confidentiality and is thus accessible to the general public.

In tax proceedings not involving a criminal prosecution, if the proceedings are before the tax authorities or the National Tax Court, the production of evidence is not public. However, it is public where cases are brought before the courts; although parties can request the courts to limit access to specific lawsuits.

6.2 What rules on third-party disclosure apply in your jurisdiction?

Anyone that has access to confidential information with a commercial value cannot disclose it if it was obtained in the course of business or during an employment relationship with the owner of the information, unless there is a cause that justifies disclosure (eg, a court order). This is stated in Law 24766.

Further, in Argentina, local procedural regulations establish certain exceptions under which specific individuals (eg, relatives of the parties, lawyers, physicians) may refuse to do or refrain from doing actions such as testifying in specific cases established by law.

Privilege rules must also be considered when analysing disclosure requests and obligations.

6.3 What rules on privilege apply in your jurisdiction?

In Argentina, the protection of attorney-client privilege has constitutional status: it derives from Sections 18 and 19 of the Constitution. Violations of attorney-client privilege may result in criminal penalties under Section 156 of the Criminal Code.

Attorney-client privilege generally seeks to protect communications and information exchanged in private in order to obtain legal advice.

Attorneys may provide legal advice if they:

• have a law degree from a university that is authorised by the competent authority;
• are admitted to practise law in the relevant jurisdiction; and
• are not affected by incompatibilities or impediments – for example, being:
• • a highly ranked public official;
  • subject to disciplinary sanctions; or
  • convicted of a crime.

Specific additional requirements in the relevant law applicable to the individual attorney must also be complied with.

If the legal requirements are fulfilled, communications and information protected by attorney-client privilege may be withheld from third parties – and even from the courts.

A client that holds attorney-client privilege may, in principle, waive it, because the protection seeks to safeguard the client's privacy and confidentiality. In Argentina, there is currently no specific regulation regarding the waiver of privilege.

Notwithstanding the above, there is limited case law on attorney-client privilege in Argentina, as this kind of protection is seldom raised or discussed before the courts. This means that there are several aspects and situations in which attorney-client privilege apply that are common in Anglo-Saxon countries but have not yet been addressed by the Argentine courts.

Privilege may also apply to other liberal professionals, but such protection is generally not as robust as attorney-client privilege.

7 Evidence

7.1 What types of evidence are permissible in tax disputes in your jurisdiction? Is expert evidence accepted?

The evidence permissible in tax disputes is the same evidence that is permissible in civil litigation – that is:

• confessional evidence;
• reports of third parties;
• witnesses;
• documents;
• expert reports; and
• judicial recognition, if necessary.

Expert evidence is not only accepted but almost essential. An expert accountant's report is one of the most common types of evidence in tax litigation in Argentina.

7.2 What is the applicable standard of proof?

Administrative resolutions issued by the administration (including the tax authorities) bear a presumption of legitimacy. For example, Section 12 of the Administrative Law states this as a principle and implies that it is not possible to argue that an administrative resolution derives from the unjustified or abusive behaviour of the tax authorities.

This presumption does not impede discussions on or reversal of an administrative resolution. However, this will require relevant arguments from the taxpayer involving a concrete, precise and detailed analysis of the elements and evidence that could result in reversal of the resolution.

That said, the Civil and Commercial Procedural Code – which applies as a complement to the Tax Procedural Law – states that judges must evaluate the evidence:

• following the principles of 'good judgement' or 'reasoned judgement'; and
• according to the rules of logic and experience.

7.3 On whom does the burden of proof rest?

The burden of proof rests with the party that asserts the disputed fact or a law that the court is not obliged to know. Each party must prove the facts in the law or laws on which it grounds its action, defence or preliminary defences.

If a foreign law cited by a party is not proven, the court can investigate it and apply it to the dispute.

However, the courts admit the application of the theory of the 'dynamic burden of proof', according to which this burden rests with the party that is in the best position to produce the evidence. For example, if a taxpayer argues that a municipal fee to pay a public service should not be charged because the municipality did not provide the service, the municipality is in a better position to prove that the service was indeed provided than the taxpayer is to prove that it was not. The burden of proof thus shifts to the municipality, even though it is the taxpayer that has brought the disputed fact.

8 Proceedings

8.1 Are tax proceedings in your jurisdiction public or private? If the former, are any options available to the parties to keep the proceedings or related information confidential?

At the administrative level, proceedings are private and only the taxpayer and its legal representative or attorney can access them. Criminal lawsuits and actions before the federal courts are also private. On the other hand, lawsuits before the courts in administrative matters are public. However, sometimes the parties can request the courts that a case not be made publicly available.

8.2 How do the proceedings unfold in your jurisdiction?

Proceedings involve the following stages:

• complaint and reply;
• evidence stage;
• pleading stage;
• first-instance ruling;
• appeal stage;
• court of appeal proceedings;
• court of appeal ruling;
• extraordinary appeal stage (petition for a writ of certiorari);
• ruling on the admissibility of the extraordinary appeal; and
• final judgment of the Supreme Court.

8.3 What is the typical timeframe for proceedings?

The timeframes vary depending on factors such as:

• the jurisdiction;
• the intervening court chamber; and
• the type of matter.

Generally, proceedings take between two and five years if the case is before the Federal Tax Court or a first-instance court in administrative matters. If the case is before a court of appeal, on average it takes between two and three years; and if it is before the Supreme Court, on average it takes between two and six years.

Starting at the provincial and municipal levels, a dispute usually takes around 10 to 12 years to reach the Supreme Court.

8.4 Are settlements possible between the taxpayer and the tax authorities once judicial proceedings have been opened?

No. Generally, taxpayers are not allowed to enter into agreements with the tax authorities.

8.5 Do the courts in your jurisdiction have full power to review facts and legal questions?

Yes. However, there are some limitations in certain cases:

• The Federal Tax Court and other administrative courts cannot declare a law unconstitutional unless the Supreme Court has already declared this.
• The courts in administrative matters cannot review the interpretation of facts and evidence by the Federal Tax Court, except in case of arbitrariness.
• The Supreme Court can only analyse a case brought before it if:
• • the ruling is final (ie, one that implies a final decision on the matter);
  • this final ruling was issued by the highest court of the corresponding jurisdiction; and
  • either:
  • • the case involves a federal matter;
    • the case is arbitrary; and/or
    • the case bears institutional gravity.

9 Remedies

9.1 What remedies are available in tax disputes in your jurisdiction?

The usual remedies include:

• a motion for reconsideration, under which revocation of the decision is sought before the same court that issued it. This remedy applies to rulings other than the final judgment of the case.; and
• a motion for clarification, under which clarification is requested from the court that issued the ruling on an obscure aspect of it or any other element that is not clear to the parties. This motion cannot modify substantial aspects of the ruling.

9.2 What factors will the court consider in deciding on the appropriate remedies?

There is little controversy as to which of the two remedies outlined in question 9.1 will apply.

10 Appeals

10.1 Can the decision of the court be appealed? If so, on what grounds and what is the process?

Rulings of the Federal Tax Court or the first-instance courts can be appealed before the corresponding courts of appeal. Rulings of the provincial courts of appeal can be appealed:

• before the highest court of that province; and
• subsequently, before the Supreme Court.

At the federal level, the ruling of a court of appeal can be appealed before the Supreme Court.

In ordinary appeals – that is, those filed before courts other than the higher courts of the provinces or the Supreme Court – the courts will decide within the scope allowed by the applicable regulation. Further, in appeals, parties must include a concrete and reasonable appreciation of the mistakes that they consider were included in the judgment under appeal to clearly demonstrate why this judgment was wrong. If an ordinary appeal does not comply with this condition, the court will formally dismiss it.

There are additional requirements for extraordinary appeals before the provincial supreme courts or the Argentine Supreme Court. The general principle is that only final rulings can be appealed (and thus, a ruling in an injunction or on matters of jurisdiction cannot be appealed before these courts). In several jurisdictions, there are different types of extraordinary appeals (appeal for nullity, for unconstitutionality and for inapplicability of the law). Only one kind of extraordinary appeal can be filed before the Supreme Court, but it can be grounded on several causes (federal cause, arbitrariness and/or institutional gravity).

11 Costs, fees and funding

11.1 What costs and fees are incurred in tax disputes in your jurisdiction? Can the winning party recover its costs?

This varies according to the Civil and Commercial Procedural Code of each jurisdiction. The general principle is that court fees (ie, court tax and attorney fees) are imposed on the losing party. However, the court can issue a ruling stating, with grounds, that the fees should be paid by all parties (usually 50:50) where the matter was complex and there were no precedents.

The costs vary depending on the jurisdiction, as they are determined by the provinces, the city of Buenos Aires and the federal state.

At the federal level, a taxpayer filing a lawsuit before a court must pay a court tax of between 3% and 4% of the amount in dispute.

11.2 Are contingency fees and similar arrangements permitted in your jurisdiction?

Yes.

11.3 Is third-party funding permitted in your jurisdiction?

Third-party funding is not usual in tax matters. However, the applicable laws do not prohibit it, so it is admissible. Nonetheless, in all cases, the party must guarantee that it will pay the court fees, regardless of any claim it might have against the funder.

12 International tax disputes

12.1 What is your jurisdiction's position on the resolution of international tax disputes (eg, advance pricing agreements, mutual agreement procedures, arbitrations)?

Argentina has implemented the Organisation for Economic Co-operation and Development's minimum standards of Action 14 regarding the mutual agreement procedure (MAP): Stage 3 has been reviewed and recommendations for it have been received. Argentina introduced advance pricing agreements (APAs) and the MAP into domestic law in December 2017.

With regard to the MAP, the competent authority is the Ministry of Treasury, which delegates this function to the secretary of public revenue. In practice, the International Tax Relation Directorate – a department within the National Tax Directorate – performs these functions. The procedure can be initiated by any Argentinian resident or non-resident if the corresponding double tax treaty allows it. The deadline for filing this requirement will be:

• that specified in the corresponding double tax treaty; or
• otherwise, within three years of notification of the act that has caused or may cause the taxation.

With regard to APAs, although the Tax Procedural Law regulates them expressly, additional regulation by the Federal Tax Authority is still pending.

12.2 Has your jurisdiction implemented the Organisation for Economic Co-operation and Development (OECD) minimum standards with respect to international tax dispute resolution or is it a party to other agreements in this respect?

Yes, Argentina has implemented the OECD minimum standards of Action 14 regarding the MAP: Stage 3 has been reviewed and recommendations for it have been received.

12.3 Does your jurisdiction's position differ significantly from Article 25 of the OECD Model Tax Convention (including commentary)? If so, in what respects?

No. Of the 21 double tax treaties that Argentina has entered into, 18 include a provision equivalent to Article 25(3) of the OECD Model Tax Convention, which requires the competent authority to endeavour to resolve, by mutual agreement, any difficulties or doubts arising from the interpretation or application of the treaty. Of the remaining three treaties, one does not include the word 'interpretation', while another is missing both the words 'doubts' and 'interpretation'. The last treaty does not include an MAP provision at all.

12.4 How do domestic and international tax dispute resolution mechanisms interplay in your jurisdiction?

There is little experience of the interplay between these mechanisms, as very few cases (most of which involve the application of transfer pricing) require the application of the MAP. Although these cases are not publicly available, Argentina has reported to the OECD that only six cases were initiated in 2016-2017.

13 Trends and predictions

13.1 How would you describe the current tax dispute landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?

The tax disputes landscape in Argentina is very complex and has been for several decades. Several studies reveal that Argentina has the highest taxes of all countries in the world. At the same time, the country has high public expenditure and has faced high inflation and currency devaluation for several years. This has an impact on taxation that is not completely recognised for tax purposes.

Moreover, although there are several agreements between the federal government and local jurisdictions on the coordination or harmonisation of taxes, such agreements are repeatedly breached, which leads to situations of double taxation.

In recent years, the National Congress has introduced several new taxes, including:

• the solidarity tax;
• the extraordinary contribution for mitigating the effects of the COVID-19 pandemic; and
• a rate increase in personal assets tax for assets abroad.

In addition, the Federal Tax Authority has issued several resolutions creating upfront payments that exceed taxpayers' obligations.

Currently, following the change in government that took place in December 2023, tax issues remain high on the agenda. The executive branch submitted to Congress a bill which:

• sets out tax provisions, including amendments to:
• • personal assets tax;
  • excise tax;
  • customs duties; and
  • solidarity tax; and
• establishes disclosure and amnesty regimes.

In this complex context, tax litigation is crucial, as this is the only way in which taxpayers can obtain an injunction to prevent the effects of laws and obtain a final ruling that allows them to pay taxes in accordance with the principles and rights recognised in the Constitution.

14 Tips and traps

14.1 What would be your recommendations to parties facing a tax dispute in your jurisdiction and what potential pitfalls would you highlight?

In Argentina, the strategy for challenging a tax assessment must be determined from the outset. Many taxpayers only begin to analyse a matter deeply once they have the opportunity to produce evidence; but by then, it is probably too late to choose the optimal strategy. An early assessment of the strategy has the following advantages:

• It facilitates a determination of whether an alternative proceeding is available to obtain an injunction or a quicker, fairer judgment (eg, a motion for unconstitutionality).
• It allows meetings to take place with public officers to provide technical explanations. Sometimes officers are deciding several cases at the same time and a clear explanation might persuade them to revise their criteria, at least partially.
• If there is a requirement for prior payment, given that the interest that the tax authorities are required to pay is considerably lower than the rate of inflation, it may seem as though the matter has already been lost. Early analysis allows for an investigation of whether it might be possible to obtain an exemption from the prior payment requirement – for example, through an insurance policy.
• It allows for the mitigation of criminal risks, considering that the thresholds for applying the criminal tax regime are very low and thus any dispute in Argentina could potentially trigger a criminal prosecution.

The most significant pitfall is that litigation in Argentina takes time (several years). Sometimes, by the time a final ruling is obtained, it no longer serves its purpose. For this reason, filing requests for injunctions early on is crucial, because the effects of these injunctions – if granted – prevents enforcement by the tax authorities until a final ruling is res judicata.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.