Tax regularization, amnesty or risk of money laundering?

Decree 31-2024, which contains the law for the primary and livestock sector, also establishes regularization and amnesty for taxpayers, according to the analysis of tax experts. However, there are two criteria: in one it is considered that this benefit will be only for the new regimes created in that same law, and in the other it is considered that it is of general application for all taxpayers.

Meanwhile, the Superintendence of Tax Administration (SAT) issued its criteria that it covers only the new regimes, but explains various conditions.

In article 21, of Decree 31-2024 that contains the Law for the Integration of the Primary and Agricultural Productive Sector and that enters into force on April 9, a regularization and an amnesty are established, according to tax experts.

This article will allow the extemporaneous presentation or rectification of declarations of unstalled income, whether bankrupt or not, and although it is not necessary to justify them, a patrimonial affidavit can be made.

For this, the “non -extendable” period of 180 days from the entry into force of the Regulations of this Law is established, and that 5% of tax on what was declared must be paid.

The decree establishes that the regulation must be prepared by the Ministry of Finance and issued four months after the publication of the law, that is, it should be ready on April 9 too.

At the discretion of the Oscar Chile Monroy auditor of the MGI Chile Monroy and associates firm, it is a regularization and fiscal amnesty for taxpayers in general based on the way in which the article was written in question.

Ricardo Barrientos, executive director of the Central American Institute for Fiscal Studies (ICEFI), said they interpret that it applies to the new simplified regimes. At the end of the wording, it is established that said article “applies only for taxpayers registered in the regimes or special tax modality established in this law.”

These are called the Special Product Production and Marketing Regime one includes the agricultural sector and crafts, and the other to the livestock, hydrobiological and beekeeping sector. In both cases that allocate their product to supermarkets, cantonal markets, municipal and collection centers. Although it also modifies the small taxpayer regime, and there the SAT also has its own criteria.

Lends itself to several interpretations

Chile Monroy comments that in article 21 it is established that taxpayers who had omitted their tax declaration, that is, have not submitted them, or that they would like to rectify it, may make the extemporaneous presentation or rectification of their statements and make the corresponding payment, process that must be done within 180 days from the entry into force of the regulation of this law, he explained.

Also that the taxpayer who has unplaced income, bankrupt or not can submit an affidavit before the SAT without justifying the origin, the auditor refers.

Based on this, taxpayers will be able to say, “I have so many hundreds, thousands or millions of quetzales, whether you have it in cash or in the bank, which paying 5% ends the fiscal risk and legalizes all those amounts, declare it without any justification,” he added.

In addition, the auditor considers that the writing of that article is ambiguous, so it interprets that this regularization applies to all taxpayers, either from the primary, livestock, small taxpayer or normal taxpayer of other regimes.

Consider that derived from how the writing was the controversy and struggle of whoever wants to use that article when it is already in force, since by ambiguity it lends itself to several interpretations.

“From the validity of the Regulation of the Law, the period of 180 days will be open to take advantage of that ease of legalizing unrelated income,” he said.

Amnesty to a possible money laundering

Barrientos indicates that the content of article 21 of the aforementioned law is not only a regularization but an amnesty for new regimes, which considers that it is an unfair treatment for taxpayers who over the years have paid their tax obligations, and now that advantage will be given for those who did not.

ICEFI considers that it is an unfair and violates the principles of equality.

In addition, Barrientos said, “it is a huge and huge ease for money laundering, why the SAT against the presentation of an affidavit can certify the legality of the origin of the resources, there they are passing over the powers of the Special Verification Intendance, of the Superintendence of Banks.”

“We alarm that a drug trafficker or someone who belongs to an organized crime structure could be associated with a livestock farm, agricultural or sectors benefited by law, saying that he has omitted income per millions, only pays 5% and everything is legalized, that is called money laundering, it is dangerous,” in addition that many people or taxpayers who have their businesses can fall into an illicit association.

“The writing of the article is poor and admits discretion in interpretation, can be manipulated and used for money laundering,” he insisted.

SAT criteria: regularization applies to the two new regimes

Asked about the collection mayor Érick Echeverría, explained the criteria of the SAT, indicating that the observance of the Tax Administration is clear according to the approved legal framework.

Based on this, the reading and interpretation of the SAT is that this is a mechanism that makes available the legislator in the case of the regimes referred to in Decree 31-2024, the official said.

He adds that in order to qualify for regularization, the legislator established in the law that the registration process of taxpayers who apply in this case must be met, and entails complying with the registration requirements, the issuance of opinions of the entity, which accredits them as producers, and in the specific case of some companies they must comply with reports related to shareholders, the particular case of compliance with the legislation of labor. IGSS among other requirements.

“Then, we understand that the registration process must be met so that these taxpayers can opt for that regularization alternative,” said the mayor.

For the small taxpayer, a regime that is modified in this same law, the official explained that they are different situations than new regimes. The SAT sees it as a separate provision since in this case only the change in the maximum limit of income is made to be able to be as a small taxpayer based on specific changes in the Value Added Tax Law (VAT), so it is considered that in that case there is no direct link with the rest of the law, he added.

This is because although it is the same decree this modified the VAT law, it created the two simplified regimes, and additionally the legislator included the article related to regularization, Echeverría said.

And, he explained that, for this, article 21 establishes those who can opt for that regularization, and articles 3 and 4 establish the requirements they must meet, and that they refer only to the two new regimes, the mayor mentioned.

What are the articles

Article 21

Article 21, refers to regularization, with the extemporaneous presentation or rectification of statements:

• It establishes the “non -extendable” period of 180 days from the entry into force of the Regulation of this Law so that the taxpayer or responsible who has omitted his statement or wants to rectify it is regularized.
• You may make the extemporaneous presentation or rectification of your statements, and the corresponding payment.
• Patrimonial sworn declaration to justify income without documents: the persons who have omitted declare income, bankrupt or not, obtained before the validity of this law for which they do not have documentation to justify the origin of these, nor allow them to make the correct determination of the tax obligation, they must submit a sworn statement with information related to the date of their presentation.
• Tax: They will be paid 5% of non -declared income tax or inventories that you want to register for the start of their accounting.
• It grants amnesty: this measure will extinguish in favor of those who carry out the tax obligations for which the payment was carried out and thereby will be considered in the manner, time and form established by law; as well as justify the origin of banking resources or not, that they are related to the unst declared income or inventories that you want to register for incorporation into the provisions of this decree.
• Payment Agreement: The Tax Administration may grant taxpayers facilities in the payment of the tax, in accordance with the provisions of Decree 6-91 contained in the Tax Code, up to a maximum of eighteen (18) months.
• Who applies: This article applies only to taxpayers registered in any of the regimes or special tax modality established in this law.

Articles 3 and 4

They establish the requirements for taxpayers to register in the new regimes of the primary (agricultural and crafts sector) and livestock sector.

It is indicated in these articles that individual and legal persons, who want to take advantage of the benefits of this law, must be authorized and registered by the SAT, after the opinion of the Ministry of Agriculture (Maga) that qualifies them as producers, marketers and intermediaries of products of said regimes.

To obtain this authorization by the SAT, they must meet these requirements

• Documentation that accredits the property, use, usufruct, lease, rights of possession or other real right over the real estate and the extension where the product is cultivated or where it is raised.
• Detail of the estimated amount of annual production, considering the extension of the land, type of product and other factors that affect the amount of product, which must be expressed in the same unit of measure in which its production invoices; Said report must be signed by the authorized accountant, taxpayer or legal representative.
• Fiscal solvency or proof of being up to date in the fulfillment of its tax obligations.
• Report on the estimated amount of production for the period recorded or updated, considering the extension of the land, type of product and other factors that affect the amount of product to be produced, which must be expressed in the same unit of measure as its production invoices; The report must be signed by the authorized accountant, taxpayer or legal representative.
• Salary book and form reported to the IGSS of its workers.
• Registration of proprietary shareholders according to the nominative actions by the contributing company, in case of legal entity.
• When these requirements are met, the SAT will proceed to issue the resolution authorizing the registration.
• If the SAT determines inconsistencies in the information contained in the application, it will notify the producer of the audience for a period of 5 days to pronounce and present the discharge tests; Exhausted the term of the hearing and does not subdane what is indicated by the entity, the application will be denied.
• If the SAT determines that the producer recorded false data or contrary to the contents in the affidavit, he will file the complaint with competent authority and proceed unilaterally to deny or revoke the authorization.