Bs. As., 31/1/80
VISTO the provisions of Act No. 22.016 and
It is appropriate to regulate certain provisions of the legal text in order to avoid interpretations on grounds other than those that motivated the rule.
That in that regard the provisions of article 5 of the Act are noteworthy, which prohibits the establishment of clauses of which the State directly or indirectly assumes taxes on the other contracting party.
That the aim is really to orderly channel the tax treatment of the different assumptions in order to guide the same towards general, coherent and stable solutions as they are for the end of beneficiaries of the foreign interest, royalties or international tax agreements.
That for these purposes, they should clearly be removed from the application of the rule, in cases where the corresponding legal provision has been made prior to the date of publication of the law.
That the prohibition set forth in article 5 of the Act does not include taxes that are transferable by their structure, such as the aggregate, internal and gross income tax, provided that the taxable matter is only the invoiced, corresponds to the object of the convention and the subject of law is the contracting party.
It should be added, in relation to article 6 of the Act, that the guiding principle of this operation is that the use of this operation does not ultimately result in a violation of the purpose pursued by the legal norm, becoming a structure lacking content.
That in the indicated sense they should be kept in mind for the application of the norm, the guidelines underlying their creation, namely:
That these are assumptions in which even when they extract, produce and/or trade in the market goods or provide services to third parties at a price, whether or not they are in concurrence generales under general conditions of the degree of economic socio development of the country, constitute activities that no one would reasonably accept to undertake or carry out them and provided that the State, on a subsidiary basis, must carry out them in view of their necessary nature.
These are activities that respond to the orientation of reserving by the State only the provision of those indivisible services and, exceptionally, develop, make or provide the State certain activities or services that review the character of a "proper" public service, that is, interpreting that concept in its restricted meaning.
That while it is appropriate to contemplate the cases of production, sales or import of war material intended for the defence and national security exclusively, this consideration cannot include those activities consisting of making real estate constructions, installations, housing, etc. although it is manifested that they are intended for national defence.
That in the case of partial exemption, the same may be determined only in the form provided for in Article 6 (i.e., with separate accounting to reflect the investments and results corresponding to the activity that is kept exempt by application of the minimum guidelines.
It is also appropriate to determine that the Ministry of Economy will be the competent authority to inform and elevate to the executive branch as appropriate, the respective decree projects.
THE PRESIDENT OF THE ARGENTINA NATION
RIGHT:Article 1 . For the purposes of the application of Act No. 22,016, companies and entities belonging to the national, provincial or municipal State referred to in article 1 shall also comply with the provisions of this decree. Art. 2o . For the purposes of article 4 of the Act, cases in respect of which, prior to the date of publication of the Act, the respective legal rule had been given by granting the benefits of article 11 of Act No. 15,273. Art. 3o . Please note that the provisions of Article 5 of the Act do not include taxes on aggregate, domestic and gross income, which have the other contracting party as a subject of law and provided that they directly relapse on the benefits covered by the contract and its taxable matter is constituted by the respective invoiced amounts.
Only in these cases is admitted the recognition of variations in the prices agreed upon after their fixation, which, on the other hand, will proceed, exclusively, to the extent of the exact incidence of the variation of those taxes.Art. 4o . Will not be deemed to have been achieved by the prohibition of article 5 of the law, joint members of the National State and other foreign states. Art. 5o . With regard to the provisions of article 6 of the law, the societies, agencies and entities that belong totally or partially to the national, provincial and municipal State covered by article 1 of the norm, shall make the respective petitions through the Ministry of Economy of the Nation, who shall submit them duly informed, accompanying, as appropriate, the corresponding draft decree. Art. 6th . Communicate, publish, give to the National Directorate of the Official Register and archvese.