New tax regulations applying to the mining sector

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The National Executive Branch has recently passed Decree No. 308/22 and the General Resolution No. 5205/22. These regulations apply to the export duties and the fiscal stability benefit policy applying to the mining sector.

  1. Decree No. 308/22. Export duties applying to new copper projects

The National Decree No. 308/22 published in the Official Gazette on June 14, 2022, establishes a progressive and optional policy on the export duties applying to new copper projects.

According to this policy, companies developing new copper projects can choose to either: (i) maintain the current fixed rate calculated at 4,5%, or (ii) adhere to a variable scheme whose rates could range from 0% to 8% depending on the international price of copper.

Besides, the Decree creates the “Optional Registry for Copper Exports” (Registro Optativo de Exportaciones), which reports to the Federal Mining Secretariat. Companies investing in new copper projects, in accordance with the terms and conditions set forth in the supplementary regulation, that adheres to the new variable policy should be registered within such registry. Once registered, companies will continue this scheme for a period of 30 years, counting as of the registration date.

  1. General Resolution 5205/22

The General Resolution 5205/2022, jointly issued by the Federal Tax Authority and the Federal Mining Secretariat (the “Resolution”), published in the Official Gazette on June 8, 2022, made some changes in the procedure governing the accreditation and/or refund of amounts resulting from the fiscal benefit established in the Mining Investment Law No. 24,196.

The Resolution provides that beneficiaries must submit a single application form to request credits or refunds, regardless of the number of the mining projects benefiting from the fiscal stability and concerning each expired fiscal year.

Such application form must be submitted before the Undersecretariat of Mining Development, which reports to the Federal Mining Secretariat, and must include the following documentation:

  • Evidence of the increase in the tax burden, providing a clear explanation of the reasons for such an increase.
  • A sworn statement declaring that the company has not benefited from any other fiscal policy and has not requested the approval, return or transfer of the amounts considered in application forms submitted under other law or fiscal regulations other than the Mining Investment Law No. 24,196.
  • Documentation proving the increase of the total tax burden in the national jurisdiction.
  • A report produced by an independent public accountant. This report must be produced in accordance with Section V of Technical Resolution No. 37 issued by the Argentine Federation of Professional Council in Economic Sciences (or “FACPCE” for its Spanish acronym). The independent public accountant’s signature must be certified by the professional council.

The professional council must also issue a decision regarding the existence, legality and reasonability of the amount requested for its accrediting or refund.

  • Any other relevant information and/or documentation that the taxpayer may consider appropriate.

If the Under secretariat of Mining accepts the application, it should grant an express approval and send the electronic file to the Federal Tax Authority (the “AFIP”) including all the information and/or documentation submitted by the beneficiary as well as the authenticated copy of the fiscal stability certificate issued in accordance with Section 10 of Law No. 24,196 as amended by the supplementary regulations.

The Federal Tax Authority will approve the request if beneficiaries:

  • Settle foreign currency according to the foreign exchange regulations (Decree 609 and its amendments).
  • Submit tax affidavits (material and informative filings) for the status of limitation period.
  • Keep the registration within the Tax Registry of Mining Companies (“Registro Fiscal de Empresas Mineras” for its Spanish acronym), including the entity updated information.

Once the refund has been approved by the Federal Tax Authority, the beneficiary may use the credit to:

  • Pay outstanding national tax debts, including those related to the entity’s duty to act as a withholding tax agent.
  • Pay social security contributions related to the obligations of the beneficiary as employer and the amounts withheld to the employees.
  • Request the refund of the amount resulting from this fiscal benefit.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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