VAT: beneficiary SMEs must return credits if they do not meet conditions

The Tax Reform provides for a VAT tax credit return scheme for capital goods, but with conditions for its application that may lead to having to refund the amount to the AFIP after 5 years, with interest and a 100% fine.

The VAT Law allows the calculation of the tax credit of capital goods in the same fiscal period of the acquisition, construction, manufacture, processing and / or definitive importation.

When this generates a balance in favor that remains immobilized for a long time, it can discourage investments, explained Sebastián M. Domínguez, of SDC Tax Advisors.

To solve this, the Tax Reform includes a VAT refund regime for investments in fixed assets.

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In addition, by 2018, and while the Executive Branch has already advanced that it will delay the regulation of the tax reform in everything that does not mean greater collection for the AFIP, the SME law gives this group of companies the possibility of opting for another mechanism to apply faster the capital asset tax credit, which consists of a bond to pay other taxes.

The bond can be requested for investments made until December 31 next for an amount equivalent to the tax credit of productive investments either in capital goods or infrastructure works.

However, there is a limit for bond applications, with an annual tax quota of $ 5,000 million.

The bond is non-transferable, so it cannot be transferred to third parties and obtain money for it.

Once the deadline for the presentation of the sworn declaration of the Income Tax can be requested, to the extent that the tax credits are within the balance in favor of the first paragraph of the VAT affidavit.

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While the VAT refund regime of the Tax Reform contemplates the return in pesos, the SME law is a bonus to cancel other taxes only for 10 years and cannot be transferred, that is, it will depend on the tax planning of the taxpayer .

The regime of return of the tax reform is permanent and has no limits as to the amount to be returned. The SME law ends with investments as of December 31 and has a limit of $ 5000 million; that is, it depends on the amounts requested by all SMEs.

To request the return according to the tax reform, only 6 months must pass, for the SME bond, you must wait for the expiration of Earnings, so it can be longer than 6 months, depending on when the investment was made.

But, on the other hand, the VAT Law return regime establishes that the amounts returned should be refunded if they do not apply, while the SME law does not establish any refund, Antonio listed, adding that the regulation should be expected of the reform to see if in the return of the VAT Law, the refund is with more or less interests and penalties.

That is, each one has its pros and cons during 2018, while as of 2019 only the return regime would remain.

On the other hand, the law establishes that the VAT refund may be requested for tax credits whose right to compute is generated as of January 1, 2018, as long as the requirements and conditions are met.

This implies that, although the procedure to be followed is not yet regulated, taxpayers may already be accumulating balances in favor of investments in fixed assets and would be in a position to request the return as of July 2018, according to each particular case, Antonio said.

The reform establishes that if 60 fiscal periods (5 years) have elapsed, counted from the immediately following the return, the amounts received would not have been applied to the reason for which it was created, the taxpayer must return the surplus not applied in the form and deadlines provided by the regulations, with the corresponding interest, Antonio recalled.

If the interest were normal 3% for compensation, the refund at 5 years would have to add 180%.

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On the other hand, the restitution will also proceed if, before the aforementioned period, the final cessation of activities, dissolution or business reorganization took place.

Regarding the wording of this provision, the law does not contemplate the update of the amount returned and neither when they correspond nor what interest accrues. So you have to wait for the regulation.

In addition, a fine of up to 100% of the amounts obtained in return that have not had the corresponding application is contemplated.


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