Tax Amnesty Does Not Include Tax Conspiracy

Chamber IV of the Federal Criminal Cassation Court overturned the dismissal of the Helacor SA’s directors. It nullified the termination of criminal proceedings and allowed the case to proceed to oral trial on the charge of tax conspiracy.

The ruling overturned the decision of Federal Oral Court 2 of the Province of Cordoba, which had retroactively applied the Asset Regularization Regime in Law 27743 and its regulatory decree.

By majority, Judges Gustavo Hornos and Javier Carbajo held that the offense of unlawful tax conspiracy is not covered by the benefits of the tax regularization regime, as it is a complex offense with no clearly-defined patrimonial content, and goes beyond mere tax evasion. The Court emphasized that tax conspiracy is not linked to specific tax obligations that can be fully identified and settled, an essential requirement for criminal action to be extinguished under the tax amnesty framework.

In this case, the defendants had deposited USD 2,000,000 under Law 26860 for “undeclared sales,” but the Court found that such partial acknowledgment did not cover the broader conduct of having set up a criminal organization with an open-ended scope.

Judge Diego Barroetaveña dissented, reasoning that if the law did not explicitly exclude conspiracy, the offense should be considered included within the scope of the voluntary disclosure regime. He based his arguments on a purposive interpretation of the statute, aligned with its goals of increasing tax revenue and promoting social peace.

Through this ruling, the Federal Criminal Cassation Court restricted the reach of regularization mechanisms, holding that they cannot neutralize autonomous criminal offenses whose legal wrongfulness exceed that of purely patrimonial violations.