In this article, we will examine the reality of tax compliance in countries such as Argentina, Chile, Uruguay, Paraguay, Bolivia, Peru, Colombia, Ecuador, Central America, Mexico, and the United States, and the measures that have been adopted to address the issue.
Tax compliance is a critical issue in every country in the world. Taxes are a vital source of revenue for governments, and failure to comply with tax obligations can have serious consequences for both individuals and businesses. In recent years, many Latin American countries have implemented measures to improve tax compliance and reduce tax evasion.
In addition to being a fundamental element for the administration of any country, it is a fundamental legal and ethical requirement for any company because they have the responsibility to comply with their tax obligations and pay the corresponding taxes in each jurisdiction. Failure to comply with tax can have serious consequences for a business, including fines, penalties, litigation, and damage to its reputation. Lack of tax compliance can affect the financial stability and sustainability of any company.
In Argentina , tax compliance has been a critical issue for companies for decades. Tax evasion and non-compliance with tax obligations are persistent problems that negatively affect the country’s economy. However, in recent years, many Argentine companies have taken steps to improve their tax compliance and reduce the risk of non-compliance. One of the main measures that organizations have taken is the implementation of tax compliance management systems that make it possible to monitor and manage their tax obligations more effectively, and reduce the risk of errors and omissions.
Chile , for its part, has a complex tax system that requires a high level of compliance by companies. In addition, the Chilean tax administration is very active in identifying and sanctioning companies that do not comply with their tax obligations. Another important aspect of tax compliance in Chile is cooperation with tax authorities. Many companies have established closer relationships with the tax administration and have implemented measures to ensure transparency and accuracy in their tax returns.
In Uruguay , Paraguay and Bolivia , tax compliance is also a critical issue for companies. Although the tax systems of these countries may be less complex than those of Argentina and Chile, compliance with tax obligations is still essential for the proper functioning of companies. In recent years, greater emphasis has been placed on auditing and identifying companies that do not comply with their tax obligations.
The tax systems of Peru , Colombia and Ecuador are complex and the tax administrations are very active in the examination and sanction of companies that do not comply with their tax obligations. It is common for the three jurisdictions that companies that operate there must invest in training programs for their employees and in tax compliance management systems to guarantee compliance with their obligations and reduce the risk of sanctions and fines.
The state of tax compliance in Central America varies from country to country, but in general, tax compliance is a critical issue for companies in the region. The tax systems in Central America are complex and the tax administrations are very active in examination and penalization.
In countries like Costa Rica and Panama , companies are required to file tax returns and pay taxes on income, value added, and social security contributions. In addition, companies must comply with certain information and documentation requirements, and tax administrations have implemented measures to improve inspection and penalize companies that do not comply with their tax obligations. It is important to note that international tax information exchange agreements and cooperation between tax administrations from different countries are becoming more frequent in the region, increasing the need for rigorous tax compliance.
In Mexico , the Mexican Tax Administration (SAT) is known for being rigorous in the examination of companies and individuals, and has implemented various measures in recent years to improve tax compliance, such as electronic invoicing and electronic accounting. The implementation of the Federal Tax Code in 2020 and the new Asset Forfeiture Law have further strengthened the legal framework and sanction mechanisms in tax matters. Mexican companies must pay attention to their tax obligations and take steps to ensure compliance, reduce the risk of penalties and fines, and improve their business reputation.
On the other hand, in the United Statess, the Internal Revenue Service (IRS), the US tax agency, is very active in monitoring and sanctioning companies that do not comply with their tax obligations, especially with regard to federal and state taxes. Businesses must file tax returns and pay income, employment, property, sales, and other taxes, as well as meet certain reporting and documentation requirements, such as filing W-2 and 1099 forms The Foreign Account Tax Compliance Act (FATCA) and the Foreign Account Tax Compliance Act (FBAR) are important regulations that companies doing business abroad must be aware of. Local companies must meet their tax obligations,
Although the region has different realities in terms of the maturity in the incorporation of compliance programs within companies and commercial organizations, it is important to highlight that in most of the countries of the continent there is a common denominator that is governed by the interest of governments to increase efforts to control the tax activities of all sectors of the economy.
In the context of the discussion of the bill that systematizes economic crimes, the so-called Tax Compliance has gained relevance, aimed at compliance with the regulations on the matter, by taxpaying entities and the responsibilities derived from eventual irregularities. In this sense, the proposal contemplates the incorporation into the catalog of crimes of Law No. 20,393, which establishes the criminal liability of legal persons, the crimes prescribed and sanctioned by article 97 of the Tax Code.
Although in the local reality it is not possible to speak of a tax Compliance, companies, in general, have mechanisms to comply with the obligations imposed by the law and the Internal Revenue Service, in order to avoid sanctions derived from non-compliance with regulations. .
One of the obligations that is seen to be of great importance is the presentation of the Affidavit No. 1929 on Foreign Operations (DJ No. 1929), whose submission deadline expires on June 30 of this year. The following are required to comply with this declaration: (i) taxpayers domiciled or resident in Chile who make an investment or operations abroad, or who obtain income from abroad; and (ii) permanent establishments in Chile of foreign entities or non-resident persons who make an investment or operations abroad, or who are attributable to foreign income.
The consequences for non-compliance with this obligation derive from non-presentation, delay or errors in DJ No. 1929, due to the provisions established in Title II of the Tax Code, of infractions and sanctions.
In the case of delay or omission, the fines for non-compliance can reach 10% of the taxes resulting from the liquidation, if the delay is less than 5 months. If this term is exceeded, the fine increases by 2% for each month or fraction of a month of delay with a maximum limit of 30% of the taxes owed.
However, if the offense is based on a maliciously incomplete or false declaration, the fines can vary from 50% to 300% of the value of the evaded tax, in addition to custodial sentences ranging from 541 days to 5 years in prison. It is important to take into account that, in the latter case, both the taxpayer and his representatives and managers may be active subjects of the offense.
Compliance with these obligations, added to the forthcoming incorporation of these offenses into the law on criminal liability of legal entities, poses new challenges in terms of regulatory compliance. This forces companies to adopt new behaviors in their business behavior, raising compliance standards, based on the risks they face.
The fact that Law No. 20,393 includes new crimes in its catalog implies an opportunity to strengthen the fight against corruption. In this sense, it is important to be aware of the criteria adopted in terms of crime prevention models, since this will contribute to preventing and reducing the commission of crimes and fostering a culture of ethics and compliance in the business environment.
Due to this, it is crucial that companies implement adequate compliance mechanisms, which allow them to comply with their tax obligations, in order to prevent possible irregularities or non-compliance that could lead to sanctions and legal and reputational responsibilities.
Regulatory compliance and a proactive approach to tax compliance are essential to ensure the proper functioning of companies in the context of tax obligations and current legal regulations.
For more information on these issues, you can contact the albagli zaliasnik Compliance and Tax team:
Francesca Franzani | Compliance Group Director | ffranzani@az.cl
David Ancelovici | Tax Group Director | dancelovici@az.cl
Jaime Viveros | Associate | jviveros@az.cl
By Soledad García Fariña, Corporate Secretarial & Internal Audit of Tata Consultancy Services and Collaborator of Compliance Latam.
On a daily basis, we witness advances in technology. In the world, we are witnessing the advancement of the blockchain (1) and its applications, and the growth of artificial intelligence.
For its part, the sharing or collaborative economy widely enabled by modern technology has expanded to touch almost all aspects of society. Blockchain allows the management, governance and execution of associations and contracts between entities in an automated way and collaborative economies justify the conception of DAOs and promote their potential growth for the future. This represents a challenge for all stakeholders, since a practical and sustainable regulatory framework is required. It may be necessary for all legal systems to adapt, since specific rules regarding DAOs in the aforementioned subject and in money laundering rules are not clearly presented, this is no exception.
To begin, it is convenient initially to briefly define what DAOs are.
Decentralized autonomous organizations, for its acronym in English, are a new type of organization mounted on the aforementioned blockchain in which the agreements between the participants are these, the constitutive statutes themselves, social agreements or even any agreement between the participants does not stipulated in the constitutive documents, are written in Smart Contracts (2) recorded in a decentralized network, in this case, Ethereum. According to what is stated in the creation document of the first DAO (Jentzsch) “…for the first time, it allows the creation of organizations in which (1) the participants maintain direct control in real time of the funds contributed and (2) the rules of government are formalized, automated and applied using software. Specifically, a standard smart contract code has been written (Szabo [1997], Miller [1997]) that can be used to form a Decentralized Autonomous Organization (DAO) on the Ethereum blockchain.
DAOs can have any object as stated in Model Law 3, although initially, the first DAO was created as a non-profit.
Following Dewey, Amuial, Seoul, one of the reasons for establishing a DAO is anonymity (Dewey, Amuial, & Seul, 2016). However, the very anonymity that it implies for its members raises legal difficulties.
According to the Inter-American Development Bank’s Manual on Beneficial Ownership, anonymity allows many illegal activities, such as tax evasion, corruption, money laundering, and terrorist financing, to take place in secret and escaping enforcement authorities. of the law. From a tax perspective, knowing the identity of the natural persons behind a country’s legal entities and arrangements not only helps that country preserve the integrity of its own tax system, but also provides treaty partners with a means to better achieve their own fiscal objectives. The transparency of beneficial ownership of legal entities and arrangements it is also important in combating other financial crimes, such as corruption, money laundering, and terrorist financing. It allows the true owners of companies to disguise their activities or hide their assets or money trail using layers of legal structures spread across multiple jurisdictions. (Inter-American Development Bank)
To the extent that smart contracts (and thus DAOs) use a system based on blockchain technology, the parties certainly remain anonymous, or rather, are identified by pseudonyms. That is, the identification of the users of the block chain is done through the public key; a long randomly generated string of numbers. And although, with it, it is possible to obtain the user’s identity, the link is necessarily mediate. This makes it difficult to apply KYC rules for the prevention of money laundering and knowledge of the final beneficiary. The question arises, then, are the DAOs required under the regulations for the prevention of money laundering and financing of terrorism? Should the DAOs join the state efforts for fiscal transparency?
The obligatory answer is yes, however, what will be the mechanisms by which this objective will be achieved? An additional difficulty is that DAOs cannot be conventionally connected to an agent or jurisdiction. This is mainly due to the fact that its processes and procedures are predefined and determined carried out by existing code in cyberspace. Therefore, the question posed is difficult to answer and certainly requires adaptation by the tax regulations of each state, ideally, in a harmonious way between them.
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1 Blockchain, or chain of blocks, for its translation from English, is a type of distributed ledger
. A distributed ledger is a chronologically ordered expanded list of
cryptographically signed, irrevocable transactional records shared by all
participants in a network. Each record contains a timestamp and reference links to
previous transactions. (Gartner, 2018, p. 27).
2 Smart contracts (interchangeably) were first described
by attorney and technologist Nick Szabo in 1997. Szabo defines smart contracts as
contractual clauses embedded in hardware and software in such a way that breach of
contract is more expensive than its fulfillment and provides the example of the
vending machine. In smart contracts or smart contracts, on the one hand, the code says “if
X happens, do Y”. A smart contract takes that coding and combines it with the potential of
the blockchain, which has already been referenced, to interface with multiple financial systems,
asset registries, etc. and make such transfers or, in general, immutable operations,
traceable, non-reversible and not subject to verification by a single person (legal or physical) or
system due to the decentralized nature of blockchains.
3 The DAO is an association that can be used for commercial, mutual, social, environmental or political purposes, the nature of which will be specified in its statute.
Inter-American Development Bank. (nd). Manual on final beneficiaries. Retrieved from https://www.dian.gov.co/documents/intercambio_de_informacion_internacional/manual_sobre_beneficiario_efectivo_final_o_real.pdf
Coalition of automated legal applications. (nd). Model law for decentralized autonomous organizations (DAO). Retrieved from https://www.lextechinstitute.ch/wp-content/uploads/2021/06/DAO-Model-Law.pdf
Dewey, JN, Amuial, SS, & Seoul, JR (2016). The Blockchain: A Guide for Legal and Business Professionals. Thompson Reuters.
Gartner. (2018). Top 10 Strategic Technology Trends for 2019. Retrieved on August 6
2019, from https://www.gartner.com/smarterwithgartner/gartner-top-10-strategic-technology-trends-for-2019/
Jentzsch, C. (sf). Decentralized Autonomous Organization to Automate Governance Final Draft – Under Review. Retrieved from https://download.slock.it/public/DAO/WhitePaper.pdf
