Understanding the PAIS Tax in Argentina

The “Tax for an Inclusive and Solidary Argentina” (commonly known as the “PAIS Tax”) is a cost disguised as a levy that residents of the country must pay when engaging in foreign currency transactions.  However, despite its name, it is not a conventional tax.  Conceptually, it operates as a surcharge on foreign exchange transactions, which results in a higher exchange rate for purchases made in pesos.

The PAIS Tax was enacted nationwide during former President Alberto Fernandez’s administration through Law 27541 and regulated by Executive Order 99/219.  Effective on December 23, 2019, in the context of an economic emergency, the PAIS Tax was enforced for “five fiscal periods as of the effective date indicated in Law 27541.” [1]

The duration term established for the application of the PAIS Tax is currently under discussion, as it could be interpreted either as having lapsed in late 2023 (resulting in its continued application without any legal basis) or as extending until December 22, 2024, as argued by the National Tax Authority.

Via a Resolution dated December 6, 2023, the National Tax Authority extended the PAIS Tax through December 22, 2024.

This extension was founded on the National Tax Authority’s interpretation that views the PAIS tax as an “instant” obligation, the enforcement of which does not require the passage of an entire fiscal year.

Moreover, the National Tax Authority cited several sections of the Law, notably Sections 11, 27, 31, 46 and 47, arguing that “five fiscal periods” refers to annual periods/cycles, although Section 35 fails to express this clearly.

Under this interpretation, the National Tax Authority also cited Article 6 of the Civil and Commercial Code, aligning tax periods with calendar years/equating tax periods to calendar years.

In addition, the National Tax Authority noted that the Executive Branch allocated revenues from the PAIS Tax to the National Administration Budget for 2024, suggesting the tax’s validity throughout this year.

The vague wording of Law 27541 raises many questions among taxpayers.  Its ambiguity serves as a clear example of an “obscure law” that proves difficult to understand for those who must be compliant.

“Fiscal Period” is the time range used to calculate tax obligations [2]. The period may refer to years, quarters, months, or other customizable time frames. Essentially, it serves as a unit or system of time measurement for taxation.

Although the National Tax Authority asserts that the PAIS Tax extends until December 22, 2024, citing Sections 11, subsection C; 27; 31; 46 and 47 of the Law, these sections define the fiscal period annually, running from January 1 through December 31. Indeed, Subsection C of Section 11 reads: “Fiscal Periods 2018, 2019 (…) Fiscal Periods 2016 and 2017 (…) Fiscal Periods 2014 and 2015 (…) Fiscal Period 2013 and previous periods (…).”

The National Tax Authority further supports its interpretation with Section 6 of the Civil and Commercial Code, which establishes that tax obligations shall be calculated in calendar years.

“Five Fiscal Periods” are not precisely the same as five calendar years. The error lies in equating tax periods (which run from January 1 to December 31 of each year) to the time frames established in civil and commercial law (calendar time frames). According to the sections cited by the National Tax Authority, annual fiscal periods span from January 1 to December 31.

The Law became effective upon its publication in the Official Gazette on December 23, 2019. Consequently, its first fiscal period would have concluded at the end of 2019. As result, the PAIS Tax would have covered the fiscal periods from 2019 to 2023, thereby expiring on December 31, 2023.

We acknowledge that, upon addressing the issue, the National Tax Authority observed a contradiction in the Law and endeavored to rectify it.

However, it is worth recalling that, as mandated by the Constitution, legislative powers are exclusively granted to the Legislative Branch.   Respecting the division of powers inherent in the republican system adopted in our country is imperative.

If the lawmakers intended to extend the PAIS Tax throughout the fiscal period of 2024, they should have employed explicit language stating, “five subsequent fiscal periods,” as provided for in Section 27 of the Law.  The vague wording of the Law may allow misuse by the Tax Authority in extending the lawmakers’ intent beyond the parameters established in the Law itself.  Such extension would constitute a misapplication of the Law.

Prolonging the effective term of a tax beyond the timeframe established under the Law would constitute a violation of legal principles.  Such action by the Tax Authority would imply a serious infringement of taxpayers’ rights.

In response to this situation, taxpayers may file a petition for declaratory judgment, seeking the court to determine the validity of the Law.  This petition may include a request for an injunction to cease the obligation to pay the PAIS Tax until the court issues a final judgment.

Additionally, taxpayers may pursue an action to recover the PAIS Tax paid during fiscal period 2024.

There is no denying that this matter is highly controversial. Any taxpayer taking this battle to justice could encounter several challenges in securing a favorable ruling, as the PAIS Tax represents a substantial portion of public revenue. With this in mind, and notwithstanding any legal analysis, the judges will not disregard the macroeconomic impact of a ruling against the PAIS Tax in 2024.

Although the PAIS Tax should be considered expired, as long as the spread between the official and market exchange rates persists, we have serious doubts about whether the Judicial Branch intends to discontinue this mechanism to control the Central Bank’s reserves.

[1] “SOCIAL SOLIDARITY AND PRODUCTIVE REACTIVATION LAW WITHIN THE FRAMEWORK OF THE PUBLIC EMERGENCY.” Law No. 27541 of 2019. Section 35.
[2] “Petrobras Argentina SA v. GCBA et al in re Challenge to Administrative Resolutions re Appeal Granted,” HIGHER COURT OF JUSTICE OF THE CITY OF BUENOS AIRES. RULING DATED MAY 14, 2020.