Mining projects complying with the legal conditions required by Law No. 24,196 can enjoy the benefit of fiscal stability for a term of thirty years as of the date of submission of their feasibility study. This means that promoted companies cannot have their total tax burden increased, as determined at the time of the submission of their feasibility study and separately in each jurisdiction. In such event they will have the right to request the refund of any sum paid in excess, in accordance to the procedure to be regulated by AFIP (Section 4, paragraph c) of Annex to Decree No. 1089/2003). The referred regulation was pending up until the issuance of RGC 4428/2019.
The National Supreme Court of Justice (CSJN) has ruled that fiscal stability has been violated, when the promoted company can demonstrate: (i) an increase in the total tax burden; and (ii) the rejection to be refunded the sums paid in excess by the promoted company (CSJN, "Minera del Altiplano S.A.", 07/10/2012; "Procesadora de Boratos Argentinos S.A.", 11/19/2013).
Consequently, following the guidelines ruled by the CSJN and with the objective to render effective the Mining Investment Law's benefits (so that they can be reinvested by the companies in the exploration or expansion of their projects), RGC 4428/2019 sets forth the terms and conditions under which those companies that, in a given fiscal year, would have borne a total tax burden higher than the one that would have corresponded under the stability benefit, will be able to process the refund of the sums paid in excess.
The refund application must be filed before the SPM, and the AFIP will decide on its admissibility, and if so, determine: (a) the date from which the refund will be available; (b) if applicable, the grounds that support the total or partial withdrawal of the requested amounts; and (c) the authorized amount, which may be used, at the option of the promoted company, to: (i) offset tax obligations (including those as a result of acting as collection agents); (ii) pay off social security contribution debts; or (iii) obtain the refund. In the latter case (refund), the promoted company may not register liquid and enforceable debts, nor have breaches in the filing of tax returns for fiscal periods that have not reached their statute of limitation.
To request the refund of the sums paid in excess, companies must be registered in the Registry of the Mining Investment Law.
RGC 4428/2019 will be effective as of March 15, 2019.
