Global Forum on Transparency and Exchange of Information GLOBAL FORUM ON TRANSPARENCY AND EXCHANGE for Tax Purposes OF INFORMATION FOR TAX PURPOSES PEER REVIEWS, COMBINED: PHASE 1 + PHASE 2 ARGENTINA The Global Forum on Transparency and Exchange of Information for Tax Purposes is the Peer Review Report multilateral framework within which work in the area of tax transparency and exchange of information is carried out by over 100 jurisdictions which participate in the work of the Global Combined: Phase 1 + Phase 2 Forum on an equal footing. The Global Forum is charged with in-depth monitoring and peer review of the implementation of the standards of transparency and exchange of information for tax purposes. These standards are primarily refl ected in the 2002 OECD Model Agreement on Exchange of Information on Tax Matters and its commentary, and in Article 26 of the OECD Model Tax Convention on Income and on Capital and its commentary as updated in 2004, which has been incorporated in the UN Model Tax Convention. ARGENTINA The standards provide for international exchange on request of foreseeably relevant information for the administration or enforcement of the domestic tax laws of a requesting party. “Fishing expeditions” are not authorised, but all foreseeably relevant information must be provided, including bank information and information held by fi duciaries, regardless of the existence of a domestic tax interest or the application of a dual criminality standard. All members of the Global Forum, as well as jurisdictions identifi ed by the Global Forum as relevant to its work, are being reviewed. This process is undertaken in two phases. Phase 1 Pe e reviews assess the quality of a jurisdiction’s legal and regulatory framework for the exchange r R of information, while Phase 2 reviews look at the practical implementation of that framework. ev Some Global Forum members are undergoing combined – Phase 1 plus Phase 2 – reviews. iew The ultimate goal is to help jurisdictions to effectively implement the international standards R e p of transparency and exchange of information for tax purposes. o r All review reports are published once approved by the Global Forum and they thus represent t Co m agreed Global Forum reports. b in For more information on the work of the Global Forum on Transparency and Exchange of ed Information for Tax Purposes, and for copies of the published review reports, please visit Ph a www.oecd.org/tax/transparency and www.eoi-tax.org. s e 1 + P h a Please cite this publication as: se 2 OECD (2012), Global Forum on Transparency and Exchange of Information for Tax Purposes Peer A Reviews: Argentina 2012: Combined: Phase 1 + Phase 2, OECD Publishing. R G http://dx.doi.org/10.1787/9789264181946-en E N This work is published on the OECD iLibrary, which gathers all OECD books, periodicals and statistical TIN databases. Visit www.oecd-ilibrary.org, and do not hesitate to contact us for more information. A ISBN 978-92-64-18193-9 -:HSTCQE=V]V^X^: 23 2012 37 1 P 232012371cov.indd 1 10-Oct-2012 4:51:28 PM Global Forum on Transparency and Exchange of Information for Tax Purposes Peer Reviews: Argentina 2012 COMBINED: PHASE 1 + PHASE 2 October 2012 (reflecting the legal and regulatory framework as at June 2012) This work is published on the responsibility of the Secretary-General of the OECD. The opinions expressed and arguments employed herein do not necessarily reflect the official views of the OECD or of the governments of its member countries or those of the Global Forum on Transparency and Exchange of Information for Tax Purposes. This document and any map included herein are without prejudice to the status of or sovereignty over any territory, to the delimitation of international frontiers and boundaries and to the name of any territory, city or area. Please cite this publication as: OECD (2012), Global Forum on Transparency and Exchange of Information for Tax Purposes Peer Reviews: Argentina 2012: Combined: Phase 1 + Phase 2, OECD Publishing. http://dx.doi.org/10.1787/9789264181946-en ISBN 978-92-64-18193-9 (print) ISBN 978-92-64-18194-6 (PDF) Series: Global Forum on Transparency and Exchange of Information for Tax Purposes Peer Reviews ISSN 2219-4681 (print) ISSN 2219-469X (online) Corrigenda to OECD publications may be found on line at: www.oecd.org/publishing/corrigenda. © OECD 2012 You can copy, download or print OECD content for your own use, and you can include excerpts from OECD publications, databases and multimedia products in your own documents, presentations, blogs, websites and teaching materials, provided that suitable acknowledgement of OECD as source and copyright owner is given. All requests for public or commercial use and translation rights should be submitted to [email protected] Requests for permission to photocopy portions of this material for public or commercial use shall be addressed directly to the Copyright Clearance Center (CCC) at [email protected] or the Centre français d’exploitation du droit de copie (CFC) at [email protected]. 3 TABLE OF CONTENTS – Table of Contents About the Global Forum. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Executive Summary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Information and methodology used for the peer review of Argentina. . . . . . . . . . 9 Overview of Argentina. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Recent developments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Compliance with the Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17 A. Availability of Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17 Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17 A.1. Ownership and identity information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18 A.2. Accounting records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 A.3. Banking information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 B. Access to Information. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 B.1. Competent Authority’s ability to obtain and provide information. . . . . . . . 44 B.2. Notification requirements and rights and safeguards. . . . . . . . . . . . . . . . . . 52 C. Exchanging Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 C.1. Exchange of information mechanisms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 C.2. Exchange of information mechanisms with all relevant partners . . . . . . . . 66 C.3. Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 C.4. Rights and safeguards of taxpayers and third parties. . . . . . . . . . . . . . . . . . 73 C.5. Timeliness of responses to requests for information . . . . . . . . . . . . . . . . . . 74 PEER REVIEW REPORT – COMBINED PHASE1 AND PHASE 2 REPORT – ARGENTINA © OECD 2012 4 – TABLE OF CONTENTS Summary of Determinations and Factors Underlying Recommendations. . . . 83 Annex 1: Jurisdiction’s Response totheSupplementaryReport . . . . . . . . . . . 89 Annex 2: List of Exchange of Information Mechanisms . . . . . . . . . . . . . . . . . . 90 Annex 3: List of Laws, Regulations and Other Relevant Material. . . . . . . . . . 95 Annex 4: Persons Interviewed During the On-Site Visit. . . . . . . . . . . . . . . . . . 96 Annex 5: Flow Diagram of the Process of Management Applicable to Incoming Requests. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97 PEER REVIEW REPORT – COMBINED PHASE1 AND PHASE 2 REPORT – ARGENTINA © OECD 2012 5 ABOUT THE GLOBAL FORUM – About the Global Forum The Global Forum on Transparency and Exchange of Information for Tax Purposes is the multilateral framework within which work in the area of tax transparency and exchange of information is carried out by over 100 jurisdic- tions, which participate in the Global Forum on an equal footing. The Global Forum is charged with in-depth monitoring and peer review of the implementation of the international standards of transparency and exchange of information for tax purposes. These standards are primarily reflected in the 2002 OECD Model Agreement on Exchange of Information on Tax Matters and its commentary, and in Article26 of the OECD Model Tax Convention on Income and on Capital and its commentary as updated in 2004. The standards have also been incorporated into the UN Model Tax Convention. The standards provide for international exchange on request of foreseeably relevant information for the administration or enforcement of the domestic tax laws of a requesting party. Fishing expeditions are not authorised but all fore- seeably relevant information must be provided, including bank information and information held by fiduciaries, regardless of the existence of a domestic tax interest or the application of a dual criminality standard. All members of the Global Forum, as well as jurisdictions identified by the Global Forum as relevant to its work, are being reviewed. This process is undertaken in two phases. Phase1 reviews assess the quality of a jurisdiction’s legal and regulatory framework for the exchange of information, while Phase2 reviews look at the practical implementation of that framework. Some Global Forum members are undergoing combined – Phase1 and Phase2 – reviews. The Global Forum has also put in place a process for supplementary reports to follow- up on recommendations, as well as for the ongoing monitoring of jurisdictions following the conclusion of a review. The ultimate goal is to help jurisdictions to effectively implement the international standards of transparency and exchange of information for tax purposes. All review reports are published once adopted by the Global Forum. For more information on the work of the Global Forum on Transparency and Exchange of Information for Tax Purposes, and for copies of the published review reports, please refer to www.oecd.org/tax/transparency and www.eoi-tax.org. PEER REVIEW REPORT – COMBINED PHASE1 AND PHASE 2 REPORT – ARGENTINA © OECD 2012 7 EXECUTIVE SUMMARY – Executive Summary 1. This report summarises the legal and regulatory framework for transparency and exchange of information in Argentina as well as the practi- cal implementation of that framework. The international standard, which is set out in the Global Forum’s Terms of Reference to Monitor and Review Progress Towards Transparency and Exchange of Information, is concerned with the availability of relevant information within a jurisdiction, the compe- tent authority’s ability to gain access to that information, and in turn, whether that information can be effectively exchanged in a timely manner with its exchange of information partners. 2. The Argentine Republic is the second largest country of South America, with a population of 40.6million and an economy driven by its export-oriented agriculture. 3. The legal and regulatory framework for the availability of informa- tion in Argentina is in place. All information about the owners and other stakeholders of relevant entities or arrangements is available at any time through the tax administration, as a result of a well developed systematic information gathering system. In 2012 the tax administration strengthened existing measures that ensured the reporting of identity information related to domestic trust-like fideicomisos to the tax administration, and introduced similar reporting obligations for any foreign trust with a resident trustee. Companies, like all other commercial entities, must keep their accounting documents and underlying documentation for at least ten years. Banks and other financial institutions are subject to know-your-customer obligations and must keep information about transactions carried out by their customers for 10years (PartA of the report). 4. The Argentinean authorities make use of their broad powers avail- able for domestic taxation purposes in order to exchange information. The Argentinean tax administration can access accounting and banking information and data on the ownership of legal entities, pursuant to the Tax Procedure Law. PEER REVIEW REPORT – COMBINED PHASE1 AND PHASE 2 REPORT – ARGENTINA © OECD 2012 8 – EXECUTIVE SUMMARY 5. Argentina has a network of agreements for exchange of informa- tion in tax matters with 52 partner jurisdictions pursuant to double tax conventions (DTC), tax information exchange agreements (TIEA) and the Multilateral Convention on Mutual Administrative Assistance in Tax Matters (the Multilateral Convention). Only half of these are in force, but Argentina ratified the Multilateral Convention on 30 May 2012 and has indicated that the ratification instrument will be deposited shortly in order to bring the Convention into force in respect of Argentina. Argentina continues to expand its network of exchange of information instruments, with negotiations underway with additional jurisdictions. However, Argentina has recently ter- minated its DTCs with Chile and Spain, two of its main EOI partners, with effect from 1January 2013. This entails a de facto termination of the accom- panying inter-institutional TIEAs with the respective EOI partners. Whilst Argentina and Spain will be able to exchange information for tax purposes under the Multilateral Convention once it enters into force in both jurisdic- tions, there will be no EOI mechanism between Argentina and Chile from 2013. Accordingly, element C.2 is found to be “in place, but certain aspects of the legal implementation of the element need improvement”. 6. The authority in charge of exchanging information for tax purposes is located within the Federal Administration of Public Revenue. The organisa- tion of the exchange process and the resources devoted to this activity were completely revamped in 2010 and important progress in the handling of requests received from partner jurisdictions has been pursued since 2011. In particular, response times have started to decrease and further improvements are expected with the development of new IT tools and internal guidelines. Local tax auditors in charge of gathering the information that is not already contained in the central tax database of Argentina are also increasingly aware of the importance of EOI, which should further improve the response times of Argentina. 7. It remains that Argentina does not receive a large number of requests: 21 for the period 2009-2011 (on 273 persons), from seven treaty partners, mainly Brazil, Chile and Spain. Argentina globally sends more requests than it receives and the number of outgoing requests has been increasing over the last two years. 8. Ultimately, several EOI partners of Argentina praised the quality of its co-operation since the restructuring of its EOI system. Argentina should monitor the functioning of the new EOI Division and internal procedures for answering EOI requests as practice develops, and improve them as necessary. PEER REVIEW REPORT – COMBINED PHASE1 AND PHASE 2 REPORT – ARGENTINA © OECD 2012