English translation of the original article in Spanish. If there is any discrepancy, the Spanish version prevails.
Introduction
In this paper I intend to make some comments on the bill to amend the Criminal Tax Regime (RPT3), which to date has been passed by the Argentine Chamber of Deputies4.
Specifically, I will focus my analysis on the Legislature's adoption of the phrase “at the time of the offense” for quantifying, in units of the Minimum, Living and Adjustable Wage (Salario Mínimo Vital y Móvil, SMVM), the amounts that constitute tax offenses under the calculation mechanism set out in the bill.
The issue is highly topical, since the bill is in the midst of its parliamentary process and, should Congress ratify the wording proposed by the Chamber of Deputies, the following question arises:
for pending cases involving RPT offenses, should the value of the SMVM in force at the time the law is enacted be used, or its value in force “at the time of the offense”? Resolving this question one way or the other will allow local tax authorities and the Public Prosecutor's Office of each Province, through general guidelines for action, to optimize the use of their resources and to concentrate criminal prosecution only on cases that entail a significant impact on local public finances.
With the aim of inviting debate, after a brief description of the regulatory framework, I will describe the case law of the Supreme Court of Justice of the Nation (CSJN, Argentina's Supreme Court) in cases where it has had to analyze the feasibility of applying the principle of the more lenient criminal law to amendments of non-criminal rules, since the value of the SMVM chosen as the fixed unit of measure is set by the National Executive Branch; and in cases concerning the retroactive application of amendments to the RPT due to changes in fixed monetary thresholds.
Likewise, I will analyze the interpretation given by the various federal courts that have so far heard money laundering cases under Article 303 of the National Criminal Code (CPN), where the amendment introduced by Law 27,739, now in force for more than a year, adopts wording similar to that of the bill under discussion by treating the conduct as an offense “(…) provided that its value exceeds the sum of one hundred and fifty (150) minimum, living and adjustable wages at the time of the offenses (…)”.
Based on that case law, we will make some comments on whether the Legislature's criminal policy is sound or unsound, if what it seeks is to reduce unproductive criminal litigation through its insistence on the phrase “at the time of the offense” set out in the amendment bill.
On the application of the law over time
As I anticipated, before focusing on the specific analysis of the subject of this paper, I will briefly describe the regulatory regime in force in Argentina.
Since this is a matter inherent to substantive law, uniform throughout the territory of the Argentine nation (cf. Article 75(12) of the National Constitution), the rules on the temporal effect of laws are found in the National Civil and Commercial Code5.
Thus, under Article 7 of the CCyCN, the general rule is that, from their entry into force, laws apply to the consequences of existing legal relationships and situations; but, whether or not they are matters of public policy, laws have no retroactive effect, unless expressly provided otherwise.
The provision clarifies that retroactivity established by law may not impair rights protected by constitutional guarantees.
Spisso6 rightly points out that the principle of retroactivity of laws, at the national level, is merely statutory and therefore does not prevent the legislature from enacting laws that override it7.
The legislature's power to enact retroactive rules in criminal matters is not absolute and is limited by Article 18 of the National Constitution8, since no one may be convicted except under a law enacted prior to the act that gave rise to the proceedings.
On the principle of the more lenient criminal law
Although this principle could be inferred from the principle of reasonableness of laws (Articles 14, 28 and 33 of the CN, the National Constitution)9, it was not expressly provided for in the text of the Constitution until it was incorporated in the 1994 amendment, through the reference made by Article 75(22) of the CN to the American Convention on Human Rights and the International Covenant on Civil and Political Rights.
Thus, Article 9 of the American Convention on Human Rights reads:
“No one shall be convicted of any act or omission that did not constitute a criminal offense, under the applicable law, at the time it was committed. A heavier penalty shall not be imposed than the one that was applicable at the time the criminal offense was committed. If subsequent to the commission of the offense the law provides for the imposition of a lighter punishment, the guilty person shall benefit therefrom.” (underlining added)
For its part, Article 15.1 of the International Covenant on Civil and Political Rights provides:
“No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby.” (underlining added)
It should be noted that these provisions, whose wording is almost identical, while recognizing the possibility of retroactively applying the criminal law most favorable to the accused, refer expressly only to the “acts or omissions” defined as offenses at the time judgment is rendered and to changes in penalties; they therefore do not make entirely clear whether any amendment to the criminal or non-criminal rule that benefits the defendant, as occurs with amendments to monetary amounts, may be applied retroactively to a pending case.
The situation is different under the wording of Article 2 of the National Criminal Code10, since its text does expressly refer to the application, by operation of law, of any legal amendment more favorable to the accused, regardless of whether it relates to the acts defined as offenses or to the penalty prescribed for them.
The foregoing shows that the principle of the more lenient criminal law has broader statutory regulation in the National Criminal Code than it has in the constitutional text, so that, when the regulatory amendment does not refer to the penalty or to the wrongful act, that amendment must be analyzed in light of the principles of reasonableness, specialty and the hierarchy of norms (Article 31 of the CN) to determine whether it may benefit the defendant through its retroactive application. That is, it must first be determined whether the amendment occurs in the criminal rule proper or in the non-criminal rule11, and, in the latter case, whether it is made through a law or through a regulation of the Executive Branch. This is so because, if the rank of the rule establishing the amendment is higher than that of the rule that kept the defendant bound to the criminal proceedings, the amendment would become retroactively applicable by virtue of the principle of constitutional hierarchy of laws.
On the other hand, nor can it be concluded that any legal amendment makes the automatic application of the principle of the more lenient criminal law viable, since, as it is provided for in the general part of the CPN, Article 4 of that same code establishes that it shall apply to special regimes, such as the criminal tax law, where there is no express provision to the contrary12.
Bearing in mind the foregoing, we will now analyze the main federal case-law precedents.
Precedents on the application of the principle of the more lenient criminal law
The debate on the temporal effect of rules and the possibility of retroactively applying amendments to criminal or non-criminal rules in economic criminal matters under the principle of the more lenient criminal law is not new in our country, nor is it new strictly as regards criminal tax matters, since the various punitive regimes have been amended on numerous occasions at the national level by various laws.
In the field of Criminal Law there would seem to be no doubt whatsoever as to the application of Article 2 of the CPN to acts committed before a law is enacted. Damarco13 teaches that “….the principle of the more lenient criminal law is grounded in the principle of justice. If an act is decriminalized as an offense, it is not fair that a person serving a sentence for committing that act should have to serve the penalty as it was imposed. What is fair is that they be released immediately. This is so because, if society's assessment of the act changes, it is not fair to treat differently the person who committed the act before and those who commit it now. The same reasoning must be applied to the other cases of more lenient laws. Ultimately, the principle of justice requires that, in the same circumstances, legal treatment afford the same solution.”
Nevertheless, for a long time the federal courts debated whether that principle applies when the rule being amended is a decree of the executive branch or a Communication of the Central Bank of the Argentine Republic (BCRA), since these cannot be considered laws in the strict sense, as laws emanate solely from the Legislative Branch.
In that debate, the 1994 amendment to the National Constitution became highly relevant, after which many of the CSJN's case-law positions gradually changed, in particular with respect to the more lenient law, since the Supreme Court of Justice of the Nation changed its approach in the “Cristalux” ruling14, in which it draws an interesting distinction between temporary and non-temporary blank criminal laws, and abandoned the position it had held in “Ayerza”15, “Argenflora”16 and others, with interesting arguments.
In this sense, and based on what the Supreme Court of Justice of the Nation decided in the “Cristalux” ruling and subsequently held in “Docuprint”17, it can be stated that it would no longer matter so much to analyze whether we are dealing with amendments introduced by laws in the strict sense or amendments introduced by regulation in the case of blank criminal laws; rather, what must be analyzed is whether the amendment supplementing the blank criminal offense that is deemed more favorable entails a change in society's assessment of the act that affects the core of the criminal wrong.
As Spisso18 rightly points out, “On this issue a distinction must be drawn. If the amendment more favorable to the defendant entails merely a change of circumstances, that is, of a factual element, retroactive application is not appropriate. On the contrary, if the amendment results from a change in legal assessment, that is, from an axiological factor, the more favorable non-criminal rule applies retroactively.” Thus, even where we are dealing with blank criminal laws such as the criminal tax law, the criminal law itself would change and one could not speak of a more lenient criminal law in the strict sense, amendments to the non-criminal rule (regulatory rules, Decrees of the PEN (National Executive Branch) and Communications of the BCRA) that supplement the criminal offense, if they do not entail a mere change in time limits or amounts but instead reflect a change in society's assessment of the wrongful act that affects the substantive core of the criminal wrong, may be considered more lenient laws for purposes of applying this principle.
This line of case law is essential because it was recently ratified by the CSJN in the Vidal19 and Caravetta20 precedents, for tax and customs offenses respectively.
Units of measure instead of fixed amounts
As I anticipated at the beginning of this paper, on 8/20/25 the Argentine Chamber of Deputies passed a bill that introduces significant amendments to the Criminal Tax Regime.
The initiative, which now moves to the Senate for consideration, seeks to update the minimum amounts required to constitute tax offenses, adjusting them to current economic values.
The approved text, while aligned with the intent stated in the transmittal message of the bill originally submitted by the National Executive Branch (PEN)21, which sought “(…)to create a fairer and more efficient criminal tax system, focused on punishing in a proportionate and targeted manner those conducts that cause real harm to the public treasury and to the social security systems(…)” and “(…)to optimize the use of state resources by concentrating punitive power on cases of significant evasion and to reduce unproductive criminal litigation(…)”, departs from its original text.
The main change it proposes is the elimination of nominal amounts in pesos for tax offenses and their replacement with fixed units of measure.
In this regard, the adoption of the Minimum, Living and Adjustable Wage as the reference for updating seeks to have the thresholds for tax offenses updated automatically, preventing inflation from rendering them obsolete shortly after they are enacted.
With the current value of the SMVM, the new thresholds are set as follows.
Simple evasion will be an offense when the amount evaded exceeds 345 SMVM per tax and fiscal year, in the case of tax evasion; or 46 SMVM per month, in the case of social security contributions.
For aggravated evasion, the threshold is raised to 3,450 SMVM for tax evasion and to 230 SMVM for social security contributions, with specific aggravating circumstances in both cases such as the use of interposed companies, improper tax benefits or false invoices (in the latter case the amount remains at 345 SMVM).
The amendment also addresses the offense of fraudulent simulation of payment of obligations, setting a threshold of 115 SMVM per fiscal year for taxes, and of 23 SMVM per month for the offenses of misappropriation of taxes and of social security contributions, in line with the new updating scheme.
The adoption of fixed units is not new, since the last amendment to the Criminal Tax Regime already provided for updating based on fixed units called UVT (Tax Value Units)22, but it was never applied because the law provided that, before September 15, 2018, the PEN was to prepare and submit to the National Congress a bill establishing the number of UVT corresponding to each of the monetary parameters of the RPT, which never materialized.
Although the adoption of the SMVM as a fixed unit of measure would seem sound, if what is sought is to keep the quantitative thresholds for constituting a tax offense up to date in an inflationary economy, I consider that it raises certain doubts as to its effectiveness in optimizing the use of state resources by concentrating punitive power on cases of significant evasion, because the proposed rule also provides that those values must be calculated “at the time of the offense” per tax and fiscal year or per month, depending on whether the offenses are those set out in Titles I, I and III of this Criminal Tax Regime.
For pending cases involving RPT offenses, should the value of the SMVM in force at the time the law is enacted be used, or its value in force “at the time of the offense”?
This question gave rise to extensive debate when Law 27,73923 was enacted, which ultimately amended the offense of money laundering by changing the method for calculating the amount considered to constitute an offense for the conduct under Article 303 of the CPN24, which went from the fixed amount of 300,000 Argentine pesos (which had not been updated since 2011) to the sum equivalent to 150 SMVM. As early as when the bill was passed by the Argentine Chamber of Deputies, it was analyzed by the Observatory of Criminal Tax Law of the University of Buenos Aires (ODPT UBA), from which, for present purposes, two conclusions can be drawn25.
The first, in line with the CSJN case law already reviewed, is that amendments to the amounts, whether fixed or through units of measure in SMVM, are capable of being considered a more lenient criminal law.
The second is that the value of the SMVM for calculating the amount to be applied retroactively to pending money laundering cases is the value in force at the time the law is enacted.
On these bases, it could even be argued that the Legislature's attempt to establish a retroactive criminal offense is unconstitutional and that the calculation mechanism proposed by the rule, except in cases where its application places the accused in a more advantageous position, could only be applied to acts committed after its entry into force.
Once Law 27,739 was in force, some federal courts had the opportunity to rule on the issue and, faced with defense motions to that effect, although they accepted the application of the principle of the more lenient criminal law due to the changes in the amounts, they interpreted that the value of the SMVM to be applied to pending money laundering cases was the value in force at the time of the offenses, in line with the statutory text26.
Although to date there is no CSJN ruling on the aforementioned amendments to Article 303 of the CPN that could provide certainty as to which approach prevails, given that the bill to amend the RPT adopts a formula based on SMVM and mandates its application “at the time of the offense”, I consider it appropriate to offer the following reflections.
To date there is an almost uniform consensus in legal scholarship and case law that amendments to monetary amounts by law or through a reference to a resolution of the PEN (as in the case of the SMVM), whether they are considered an element of the offense or termed objective conditions of punishability, are capable of being considered a more lenient criminal law, and their retroactive application to pending cases is accepted.
On that basis, and given that the bill has been passed by only one chamber, it would be valuable for Congress (in this case, the Senate) to review the current wording of the rule in the bill to amend the RPT in light of the interpretation given to the identical text in money laundering matters, since it is highly likely that the same debates described above will be repeated in pending tax offense cases.
Indeed, if what is sought is to reduce unproductive criminal litigation and allocate state resources to prosecuting significant evasion, this criminal policy that the National Congress outlines, by incorporating case law that the CSJN has uniformly upheld for more than three decades, may also be reflected in general guidelines for action of the Public Prosecutor's Office of the relevant jurisdiction, so that the provinces and the Autonomous City of Buenos Aires can allocate their resources more efficiently in prosecuting tax crime and provide clear rules that afford greater legal certainty.
General information only. This is not professional advice on any particular case.