By: Verónica Tadeo
We hereby bring to your attention:
That the Minister of Finance Alejandro Zelaya presented to the Legislative Assembly the Decree called “Special and Transitory Law that grants Facilities for the Voluntary Compliance of Tax and Customs Obligations” known as “Tax Amnesty 2022”, approved by the Legislative Assembly, in plenary session of August 24, 2022, through Legislative Decree No. 478, of the same day, published in the Official Gazette No. 157, Volume 436.
The effects of which shall become effective as of its material publication in the Official Gazette on August 25, 2022, as stated in the Orientation Guide to apply the Special and Transitory Law Granting Facilities for the Voluntary Compliance of Tax and Customs Obligations with references MH.UVI.DGII/006.005/2022; MH.UVI.DGA/006.02/2022 and MH.UVI.DGT/001.863/2022, dated August 25, 2022.
Which grants the opportunity to normalize the tax situation of those taxpayers who are not up to date with the Ministry of Finance, the effects of which will last until November 1, 2022.
Taxpayers may benefit under this law, among others, in the following cases:
I. Subjects obliged to pay taxes under the jurisdiction of the General Directorate of Internal Taxes (DGII):
Who have filed their tax returns without paying the tax liquidated therein; have not filed tax returns, without being obligated to pay taxes, or having omitted to file the return, whether or not the tax had been paid.
Those who have filed tax returns reflecting credit balances, in an amount higher than that which legally corresponds; and those who have filed original or amended returns liquidating the tax in an amount lower than that which legally corresponds to them.
Those who are in the audit phase or in the Hearing and Provision of Evidence stage of the informal tax assessment procedure, before the Tax Administration; or who are within the term to challenge the informal tax assessment.
That they are exercising their right of administrative challenge; administrative contentious action; or of Constitutional Protection, in process, in which case they must desist before the Court or pertinent instance and present proof of said petition, benefiting both the taxpayers who totally or partially desist.
That the debts are firm and liquid, in which case they may only benefit from the waiver of interest and surcharges; and when the debt is liquid, firm and enforceable, it may only benefit from the granting of payment in installments. When the taxpayer has a resolution of payment in installments, it will only be able to benefit from the Amnesty, for the installments pending payment at the date of entry into force of said Decree.
Who have not withheld or received amounts in respect of taxes or advances; who have made such withholdings or perceptions and did not pay the taxes or advances; or who have paid them in an amount lower than that which legally corresponds.
The aforementioned Tax Guide states that tax obligations or the filing of returns administered by the Directorate General of Internal Taxes may be covered by this Tax Amnesty 2022, with respect to:
a) Tax periods or fiscal years, whose dates or deadlines to liquidate or file the return, would have expired prior to August 24, 2022, for the case of annual returns, it will be until the fiscal year 2021.
b) In case of special taxation periods related to Income Tax, either as a consequence of death, extinction, definitive acceptance of heir or definitive withdrawal from the country that implies the termination of economic activities, those subjects whose special period would have expired on April 25, 2022 may be covered.
c) In the case of monthly VAT, Payment on Account and Specific Taxes, Advalorem and Special Contribution returns and their respective VAT Withholding Payment Orders to non domiciled taxpayers and Withholding Payment Orders for Imports of Services and their respective, those corresponding to previous tax periods and up to the tax period of July 2022 may be covered.
e) In the case of Real Estate Tax Returns, operations prior to and up to June 26, 2022 may be covered; operations levied with the Special Tax on the First Registration of Goods in the National Territory, prior to and up to August 18, 2022.
II. Subjects obliged to the payment of taxes under the competence of the General Customs Directorate (DGA):
Who have not presented merchandise declaration or those who have presented with omissions or inaccuracies in their information, and have not paid the Import Tariff Duties or other taxes, or those who have paid or liquidated the same in a lower amount than that which legally corresponds.
That have presented the declaration of merchandise and have not paid the Import Duties or other taxes, under benefits or nonexistent, undue or improper exemptions.
That have presented the declaration of merchandise with incorrect liquidation of the Import Duties or other taxes, and have paid or liquidated a lower amount than the one that corresponds legally.
That they have filed the declaration of goods with incorrect liquidation of Import Duties or other taxes, and have paid or liquidated an amount lower than that which corresponds legally.
That they are before an immediate verification, in the phase of inspection or in the stage of Hearing and Provision of Evidence, of the procedure of informal determination of customs taxes, prior to the notification of the respective resolution.
That they are exercising their right of administrative challenge; administrative contentious action; or Constitutional Protection, in which case they must desist partially or totally before the pertinent Court or instance.
That the debts are firm and liquid, in which case they will only be able to enjoy the payment in installments and when they have a resolution of payment in installments, for the installments pending payment at the date of entry into force of said Decree.
The aforementioned Tax Guide mentions that the benefits will be applicable to the returns or obligations that have already been filed or that the term for their compliance has expired as of August 24, 2022.
III. Taxpayers obliged to pay taxes, when the debts are settled and enforceable under the following conditions:
With debt remitted the General Directorate of Internal Taxes (DGII) and General Directorate of Customs (DGA) to the General Directorate of Treasury (DGT), so that it initiates the respective collection procedure.
With debts duly certified to the Attorney General’s Office of the Republic, even in the event that a judicial collection process has been initiated, as long as there is no final judgment, formally and materially notified by the respective Court.
The Tax Amnesty Law 2022 states that in the case of tax and customs liquidations that are not final, the payment of interest and surcharges will be waived, and the respective fines will not be imposed.
In those cases in which the debt is final and liquid, the payment of interest and surcharges will be waived. But when the debts are firm, liquid and due, only the benefit of payment in installments may be enjoyed.
In the case of penalties related to the advance payment, withholdings or perceptions and which have not been issued or which, if issued, are not final, the respective fines will not be imposed and interest and surcharges will be waived.
When a term is requested for the payment of tax obligations, the General Directorate of Treasury will grant up to a maximum of nine monthly installments, in consideration of the amount owed, which includes the first installment, by means of a resolution for payment in installments, in which it will be stipulated that ten percent (10%) of the debt must be paid as the first installment, on the same day the resolution authorizing the payment plan is issued and notified.
It is important to point out that the fines that benefit from the exoneration are the fines related to taxes, established in Art. 238 paragraphs a) to d) (Obligation to File a Tax Return); 246 and 247 (Obligation to Withhold, Collect and Pay on Account); 252 (Tax Fraud); 243 and 254 (Intentional and Non-Intentional Evasion). The rest of the fines will only enjoy the benefit of the Term Payment Resolution for up to nine months and with a first installment of 20% of the fine.
The Tax Amnesty also applies when the Attorney General’s Office of the Republic (FGR) has been notified for the alleged commission of the Tax Fraud Crime, or the respective criminal process has been initiated, as long as there is no final sentence.
For any additional information, please contact Dr. Diego Martín (dmartin@consortiumlegal.com), Mr. William Escobar (wescobar@consortiumlegal.com) and/or e-mail taxelsalvador@consortiumlegal.com.