How Does Positive Silence Apply to Tax Proceedings?

Law 27742 of Bases and Starting Points for the Freedom of the Argentine People modified article 10 of the Administrative Procedure Law 19549, establishing in paragraph b) that, when a rule requires an administrative authorization for individuals to carry out a certain conduct or action ruled by the Administration, if the term provided for resolution expires, its silence will be considered a positive response. In other words, the procedure will be considered approved if the Administration does not issue a resolution before the deadline. 

The purpose for implementing the positive silence is to promote a more agile public administration, reduce bureaucracy, and provide clarity to citizens regarding the time it may take to obtain the required authorization, certification, or registration.

Positive silence was implemented through Administrative Decision 836/24, which set the dates as of which the positive silence must be applied using the Online Procedures Platform (TAD) or whichever one used for these procedures. In the case of Central Public Administration offices (including deconcentrated agencies), the period starts on November 1, 2024. For decentralized agencies and procedures before the Argentine Tax Authority (ARCA), the period starts on December 1, 2024.

(A) The regulation of positive silence

Positive silence was regulated through Decrees 695/24 and 971/24, published in the Official Gazette on August 5, 2024, and November 1, 2024, respectively. Following Decree 695/24, the Regulation on Administrative Procedures (approved by Decree 1759) has been modified to include section 65 ter and quarter, which provide:

1. Platforms used by each agency (in the case of ARCA: Online Procedures Platform and Customs website) must indicate the necessary conditions to obtain the authorization, the application of the positive silence, and the term in which the positive silence occurs, clarifying that not fulfilling such requirements will not prevent claiming the effects of positive silence.

2. In case of non-compliance with the conditions established by the applicable regulations to obtain the authorizations, the intervening agency must request the applicant to submit the missing elements or data within 10 days. In that case, the period of time to issue a resolution will be suspended since the requirement is notified and until the applicant complies with the request.

3. The term will not be computed for the effects of positive silence if the authorization request was initiated before an incompetent authority or through the incorrect procedure.

4. Positive silence will occur once the term established by the specific regulation has elapsed. Otherwise, after the period of 60 days counted from the day it is ready to be resolved (according Title VIII, section 1 bis, subsection g of Administrative Procedure), as well as the conditions established in regulations or in the law for granting the administrative authorization have been complied.

5. Once the positive silence occurs, the interested party may request registering or issuing the corresponding certificate or authorization, which must be granted within 15 days.

6. The Decree establishes that in no case can the act of authorization imply exemptions or non-compliance of the conditions established by the regulations or the law. This will be supervised and audited by the competent authority.

Finally, Decree 971/24 approves a list of procedures to obtain the administrative authorizations ruled by the Central Public Administration that are exempted from the positive silence effect, as well as those procedures to which it does apply.

(B) Proceedings before ARCA included in the effects of positive silence

Among others, these include:

1. Requesting tax income reduction of advanced payments.
2. Requesting non-tax collection certificates of income tax, VAT, and social security.
3. Requesting compensation and amendment of payments.
4. Retroactively paying taxes and/or regimes.
5. Paying off payment plans or paying off payment plans early.
6. Requesting tax residence certificates.
7. Registering, paying, or replacing tax controllers.
8. Requesting tax ID number (CUIT) and natural or legal person ID number (CDI) in the case of those who do not have a CUIT.
9. Modifying the CUIT administrative status that is limited in certain cases: due to lack of registration in taxes and/or regimes, to failure to file a tax return, to lack of movements and employees in the tax return, to failure to comply with electronic control actions, among others.
10. Being incorporated to the Agricultural Information Systems (SISA) and validating of properties.
11. Accessing the Knowledge-Economy Promotional Regime.
12. Registering before the Customs Broker Registry and the Registry of Importers/Exporters.
13. Requesting Disposition of Customs Credits.
14. Registering in the Special Customs Registries of the customs transport agent, container operators, secure logistics operator, filing and digitalization service provider (PSAD), on-board supplier, proxies and dependents of customs brokers and customs transport agents, PSP/Couriers postal service provider, registry of lawyers acting as customs legal counsel, guarantors-entities issuing customs guarantees, registry of transport crew members (TRIP), and logistics operators of the “Exporta Simple” regime.

(C) Proceedings before ARCA exempted from the effects of the positive silence

The expressly excluded cases are:

1. Requesting a certificate for income tax exemption (general and simplified regime).
2. Requesting the authorization provided in section 1 sub-section b) of General Resolution 2513 for reorganizing companies and/or goodwill.
3. Requesting a sea waybill for exemption.
4. Modifying the administrative status of the CUIT in the case of subjects included in the base of unreliable taxpayers or characterized as unreliable subjects in social security matters.
5. Taxpayers’ registering, remaining, and exclusion from the Register of Tax Benefits on Tax on Credits and Debits in Bank Accounts.
6. Modifying production capacity in the Agricultural Information Systems (SISA).
7. Requesting registration or modifications in the Tax Registry of operators in the tobacco sector, and fiscal instruments for the control of cigarettes.
8. Applying for transfer, mortgage, or cessation in the case of vessels over 50 tons or yachts over 100 tons.

The Chief of Cabinet of Ministers can update both lists following a report from ARCA on the existence of new procedures.