English translation of the original article in Spanish. If there is any discrepancy, the Spanish version prevails.
Introduction
In this chapter I intend to offer some reflections on the recently enacted “tax innocence law” and its impact on the prevention of money laundering, terrorist financing and the financing of the proliferation of weapons of mass destruction (hereinafter, ML/TF/PF).
The issue is highly topical, since the aforementioned law introduces several reforms to the current criminal tax regime and puts forward, or at least so announces the official website of the Federal Revenue and Customs Control Agency (ARCA), a “(…) paradigm shift in the relationship between the State and citizens, seeking to restore a framework of reasonableness and predictability that puts an end to the unjustified criminal and administrative prosecution that citizens have historically faced.”2 .
Whether or not it entails a paradigm shift with respect to our current regulatory system, it is important to note that the new legislation—as several government officials have publicly stated—aims to encourage the use of undeclared cash, so we must analyze whether or not the tax innocence law entails a change to the resolutions of the Financial Information Unit (UIF) that establish limits, controls or thresholds linked to the use of cash and other transactions with an equivalent effect (such as deposits, withdrawals or currency exchanges), aimed at ML/TF/PF prevention.
For this task we will introduce the non-specialist reader to what the crime of money laundering consists of and to some doctrinal and case-law debates concerning the treatment of a tax offense as a predicate of the crime of money laundering.
Next, we will review the most relevant amendments introduced by Law 27,799 and how they relate to the rules in force on ML/TF/PF prevention.
Finally, we will distinguish the functions comprised by operational financial intelligence from those of strategic intelligence; this, on the one hand, to determine whether the tax innocence law actually entails a paradigm shift with respect to the system in force and what the role of the financial intelligence agency is within that system; and, on the other, to determine whether it provides any certainty or legal security for those who intend to use “the dollars under the mattress” and introduce them into the economic circuit.
On the crime of money laundering with tax offenses as predicates in Argentina
As anticipated, it is pertinent to make some introductory clarifications regarding money laundering and tax crimes.
It must be borne in mind that we are dealing with economic criminal law structured on the basis of blank criminal provisions, where we will constantly have to refer to non-criminal regulations (tax and customs laws and the ARCA resolutions that implement them) to define the normative elements of tax offenses, but it is not for that reason any less governed by the same rules and principles applicable to the interpretation and adjudication of the other crimes in our legal system.
In the words of José María Sferco, although it is a criminal law subject to “particularisms,” one must not lose sight of the fact that in criminal tax matters “without a taxable event there is no punishable event,” and that the presumption of innocence can only be displaced by a conviction and does not require a law declaring it so in tax matters in order to become operative.
When we speak of money laundering, we refer to the process through which assets of criminal origin are integrated into the legal or formal economic system with the appearance of having been obtained lawfully.
In Argentina, in the wording we know today, the criminal offense was introduced into our legal system in 2011, in response to the need to adapt our domestic legislation to the international standards arising from Recommendation No. 3 of the Financial Action Task Force (FATF)3. Thus, in order to comply with the regulatory standards proposed by that international body, Law No. 26,6834 eliminated the offense of money laundering as a special form of concealment5 included within the criminal offenses against the public administration, and included it as an autonomous crime within Title XIII of the National Criminal Code, which establishes the crimes against the economic and financial order, introducing Article 3036.
This reform entailed a substantial change in relation to this criminal offense because it addressed two highly controversial issues.
First, it opted for a criminal offense with a broad formula that admits the possibility that any crime may be considered a predicate offense for the purposes of configuring a money laundering scheme.
Likewise, it set aside the distinction between dirty money and black money made by some countries; the former being understood as money deriving directly from unlawful activities, and the latter as money deriving from a lawful asset-generating activity which, because it has not been disclosed to the State’s tax authorities, becomes black money or assets. On this basis, some authors such as Vicente Oscar Diaz maintained that only dirty money could be the object of a money laundering scheme, since so-called black money did not cease to be of lawful origin merely because it had not been disclosed to the tax authorities.
This was not the position followed by the courts in Argentina7 nor by its legislation, since tax crime is provided for as one of the possible predicate offenses of money laundering in our legal system8.
Second, it allows the money laundering offense to be applied autonomously, that is, without requiring a prior conviction for the predicate offense, it being sufficient simply to prove the unlawful origin of the assets.
This was another controversial issue, because there were those who maintained that the term “predicate crime” necessarily required a conviction in respect of it, which posed a practical problem for the application of the offense, a circumstance that was overcome by the wording of Article 303 of the National Criminal Code, which uses the term “assets deriving from a criminal offense.”
On another note, it was also asserted that the conduct constituting money laundering entailed double punishment for the same act, since it was already punished under the criminal offense of the predicate crime, being nothing more than the outward manifestation of acts belonging to the stages of completion or exhaustion of the iter criminis of the latter9.
In this regard, we consider that this criminal offense cannot be used to punish the enjoyment of the proceeds of the predicate offense, which already carry the penalty provided for that crime; rather, what is sanctioned by the money laundering offense is the conduct of whoever, in any manner—that is, through conduct different from that provided for in the predicate crime—reflects a scheme or artifice that gives an appearance of lawfulness to assets of unlawful origin.
As can be seen, on the basis of the approach we have taken to the criminal offense of money laundering, we can state that: (i) since the possibility is admitted that any criminal offense may be a predicate of the crime of money laundering, the crimes of the criminal tax regime may constitute predicate offenses of the crime under Article 303 of the CPN (National Criminal Code); and (ii) it is not indispensable to obtain a conviction for the tax offense in order to investigate or charge the crime of money laundering, since it is sufficient to prove that the assets that are the object of the laundering scheme derive from the tax offense.
Having made this approach, we will proceed to survey the main amendments that the tax innocence law introduces into our legal system and how it relates to pending criminal proceedings investigating the laundering of assets deriving from tax offenses and, likewise, how these reforms relate to the rules that make up the core of the ML/TF/PF prevention system as regards the use of cash.
Relevant aspects of the tax innocence law linked to ML/TF/PF prevention
On December 26, 2025, the National Congress enacted Law 27,79910. This law introduced important changes to the criminal tax regime, to the national tax procedure law and to the national Civil and Commercial Code, but I will not proceed to analyze the strictly tax implications of the law, which have been well developed in a work by Álvarez Echague11; rather, I will limit myself to dealing exclusively with the aspects linked to the ML/TF/PF prevention system. The first of the relevant aspects is the increase in the amounts that make up the objective conditions of punishability provided for the crimes of the criminal tax regime.
The first ten articles of Law 27,799 reflect this, using the method of raising the monetary thresholds to fixed amounts, which is not new with respect to this type of crime and whose practical consequences we have had the opportunity to discuss in another contribution, to which I refer since it exceeds the scope of the present one12.
Thus, for example, the threshold for simple evasion is raised from $1,500,000 to $100,000,000 per tax and annual fiscal year, while evasion aggravated by amount goes from $15,000,000 to $1,000,000,000; a similar situation occurs with the rest of the crimes of the criminal tax regime.
Although Article 43 of Law 27,799 establishes a mechanism for updating these amounts13, in light of the line of case law consolidated by our National Supreme Court of Justice regarding the application of the principle of the more lenient criminal law in the face of variations in monetary amounts14, I consider that—in order to avoid the disputes in the courts that will very probably arise regarding the interpretation of the text of the new law15—it would have been preferable to adopt a criterion based on units of measurement such as the minimum living and mobile wage (SMVM) or a similar one, consistent with that of Law 27,739, which amended the crime of money laundering under Article 303 of the National Criminal Code (CPN)16.
The second of the relevant aspects is given by Article 19 of Law 27,799, which prohibits the tax authorities from filing criminal complaints for tax crimes: a) when the tax adjustment is due to differences of criteria linked to the interpretation of the rules or to technical-accounting aspects of the assessment, or to the application of presumptions, without there being other evidence conducive to proving the alleged unlawful act; b) when the taxpayer and/or responsible party has disclosed, in a reasoned and duly justified manner, the interpretive and/or technical-accounting assessment criterion used to determine the tax obligation, by means of a formal filing with the tax collection agency, prior to or simultaneously with the filing of the respective tax return, provided that the criterion invoked is not a means aimed at distorting the taxable base; and c) when the taxpayers and/or responsible parties file the original and/or amended tax returns before there is a notice of commencement of an audit in relation to the tax and fiscal period to which those tax returns refer. Lastly and thirdly, Chapter III of Law 27,799 establishes the Simplified Tax Return Regime (RDJS) which, although it is only applicable to individuals and undivided estates resident in Argentina that meet certain conditions17.
ARCA General Resolution 5820/2026 regulates the tax innocence law and establishes that adherence to the RDJS must be made and ratified annually, with requirements in addition to those provided for in the law18, since the law does not impose the requirement of not having a CUIT (Taxpayer Identification Number) with limited administrative status19 or of not being in the database of unreliable taxpayers2021.
For those who adhere, Article 40 of Law 27,799 establishes a presumption, admitting no proof to the contrary, of the accuracy of the income tax and value added tax returns filed for periods not barred by the statute of limitations.
This rule is not absolute and gives way if the tax authorities detect a significant discrepancy22 between the information declared and the information available in their systems or provided by third parties23. For the purposes of assessing whether or not there is a significant discrepancy, with respect to income tax and value added tax, the presumptions based on unjustified increases in net worth may not be used24, nor may the amounts that taxpayers have brought under the Asset Regularization Regime established in Title II of Law 27,743 be taken into account.
In this regard, we share the opinion of Álvarez Echague25 when he points out that “(…) It is evident that we are not dealing with a traditional tax amnesty (blanqueo), since it contains no amnesty, and it is offered going forward, for the future, resembling an invitation to live with undeclared income, precisely because no one will analyze what has been consumed, unless significant discrepancies are verified. Moreover, this indirect amnesty or quasi-amnesty does not reach monotributistas (simplified-regime taxpayers), employees, or those registered for income tax who do not adhere to the simplified regime.(…)"
From a reading of the three aspects of the reform outlined above, we can begin to point out some preliminary conclusions.
It can be observed that, given that tax crimes are admitted as possible predicates of a money laundering scheme, the increase in the monetary amounts provided for as an objective condition of punishability will mean that, in many pending cases investigating money laundering with a tax predicate offense whose amount does not exceed the new objective condition of punishability, by application of the principle of the more lenient criminal law, what was previously considered a crime will become a tax infraction.
The logical consequence of this is that the laundering scheme should be atypical in light of Article 303 of the CPN, since, although only proof of the unlawful origin of the assets is required (that is, a conviction for the crime is not required), the offense does not cover the laundering of assets deriving from a minor infraction. Nevertheless, it remains to be seen what the federal courts think in this regard, since the prosecution of money laundering has been allowed to continue in cases where the criminal action for the tax offense identified as the predicate of the scheme had been extinguished by an amnesty law26.
Even so, the message is clear: the criminal policy of the National Congress aims for resources to be devoted to the prosecution of cases of greater economic magnitude, even in money laundering matters.
Let us recall that the legal interest protected by the crime of money laundering in Argentina is considered multi-offensive, primarily comprising the socioeconomic order, and in this sense it has been held27 that “(…) the criminalization of money laundering is justified by invoking the harm that the inflow of capital deriving from crime would cause to the economic and financial system (national and international)”.
Recently, along these lines, the case law recalled that “the crime of money laundering seeks to close all money circuits in order to prevent the exploitation of crime. It is the means by which criminal activity can be curbed by tracing the funds that are unlawfully raised through criminal action…” (Cf. CFCP [Federal Criminal Court of Cassation], Chamber IV, case file CFP 3017/2013/TO4/31/CFC92 “GOFF DAVILA, Maximiliano y otros s/recurso de casación”; of 12/15/2025).
In that same ruling, it was added that “the fraudulent use of the financial system to channel the proceeds of unlawful activities or even of lawful activities for terrorist purposes poses evident risks to the integrity, proper functioning, reputation and stability of the financial system…” and it was emphasized that “(t)he crime of money laundering is a crime aimed at protecting the proper formation of estates. The Civil Code regulates and lays down rules for the formation of estates, and the criminal provision threatens punishment when that formation is based on a criminal act and this concurrence is known, and exploited, by the perpetrator. The criminal offense presents a plurality of actions with a single purpose, that of concealing the unlawful and criminal origin of the assets…”.
In turn, and along the same lines, the limits imposed on the tax authorities by Article 19 of Law 27,799 regarding the possibility of filing a criminal complaint for tax crimes indicate that the Legislature intends that disputes originating in divergences of technical tax criteria or in the application of presumptions designed to determine a tax debt should not be aired in the criminal courts—disputes which, in recent years, had been transposed into the criminal sphere without passing through the filter of the principles governing that branch of law, turning the criminal tax regime into a mere revenue-collection tool and, therefore, unconstitutional. Finally, as regards the RDJS and its implementing regulations, we observe that the reforms reflect a relaxation of tax controls for resident individuals and undivided estates that adhere to the regime, but this does not entail any repeal of the controls in force in ML/TF/PF prevention regarding the use of cash which, as we will see in the next section, have their origin in the application of the risk-based approach and not in a tax purpose.
The intelligence function and the controls linked to the use of cash
Since 2000, Argentina has been a member of the Financial Action Task Force (FATF), an international body that issues a series of recommendations aimed at strengthening the international ML/TF/PF prevention system. Although the 40 FATF Recommendations28 are not legally binding, the body monitors and evaluates their implementation by the various States and draws up lists (black and grey) with serious economic consequences for those included in them; therefore, for States wishing to integrate their economies into the Western international community, compliance with and implementation of these recommendations is of obvious importance.
FATF Recommendation 129, the foundation of the system, requires countries to identify, assess and understand their money laundering and terrorist financing (ML/TF) risks in order to apply a "Risk-Based Approach" (RBA).
This entails allocating mitigation resources in proportion to the risks identified, requiring enhanced measures for higher risks and permitting simplified measures for lower ones.
Indeed, the Guidance prepared by that body stipulates that “(b)y adopting a risk-based approach, competent authorities and financial institutions are able to ensure that measures to prevent or mitigate money laundering and terrorist financing are commensurate with the risks identified. This will allow resources to be allocated in the most efficient ways. The principle is that resources should be directed in accordance with priorities so that the greatest risks receive the highest attention…” (cf. FATF, GUIDANCE ON THE RISK-BASED APPROACH TO COMBATING MONEY LAUNDERING AND TERRORIST FINANCING).
Understanding this is fundamental when analyzing the resolutions in force in our country that establish controls linked to the use of cash by certain activities or persons specifically designated for that purpose.
These activities or persons are listed in Article 20 of Law 25,246 and bear the public duty of self-assessing and identifying the ML/TF/PF risks of their activity and establishing adequate measures to mitigate those risks when dealing with their clients (Article 21 of Law 25,246).
Although it is not the only State body involved in the ML/TF/PF prevention system, the central role in the regulation, supervision and monitoring of these activities lies with the Financial Information Unit (UIF), a body which, although not under the umbrella of the intelligence law30, is in charge of strategic, financial and operational intelligence functions in our country31. Financial intelligence consists of the collection, analysis and dissemination of financial information to detect ML/TF/PF patterns, typologies and risks and to produce useful knowledge, not judicial evidence. It is a preventive function, not a repressive one.
Indeed, the interpretive note to FATF Recommendation 29 recognizes that “…(t)he UIF’s analysis should add value to the information received and held by the UIF. While all the information should be considered, the analysis may focus either on each single disclosure received or on appropriately selected information, depending on the type and volume of the disclosures received, and on the expected use after dissemination…” and adds that “…(t)he UIF should be able to disseminate, spontaneously and upon request, information and the results of its analysis to relevant competent authorities. Dedicated, secure and protected channels should be used for the dissemination…”. To this end, the UIF relies on the information it receives within the country (from obliged persons—Suspicious Transaction Reports, Monthly/Annual Systematic Reports, Cash Transaction Reports, Reports on purchase/sale of foreign currency with cash—, asset and personal information from public and private registries, among others) and from international cooperation (EGMONT secure network32, GAFILAT Asset Recovery Network33, among others), in order to prepare intelligence reports, develop typologies, issue alerts or disseminations to obliged persons and, also, to share it with other financial intelligence units where appropriate. This is information that has no formal evidentiary value, does not seek to establish crimes or to charge persons, but rather serves to define prevention policies.
Unlike this function, strategic intelligence is the global and forward-looking assessment of the country’s ML/TF/PF risk. Where are the greatest systemic risks? Which sectors are most vulnerable? Which typologies are emerging? For this purpose, the country prepares and uses the National Risk Assessment (ENR), sectoral assessments (non-profit organizations [OSFL], accountants, etc.), and the National ML/TF/PF Strategy. The inputs of this function are the results of financial intelligence (intelligence reports, typologies, among others), judicial statistics (pending cases for certain crimes, numbers of convictions, assets recovered, etc.), and international information obtained through cooperation (FATF, GAFILAT).
On the basis of strategic intelligence, the UIF prepares its risk matrix, develops public policies aimed at ML/TF/PF prevention, defines regulatory thresholds and assigns priorities in its supervision plan. Individual cases are not analyzed; it analyzes systems, geographic areas, trends, typologies.
To the two aforementioned functions, which define the main role of the UIF within the prevention system, must be added operational intelligence, a secondary function consisting of the concrete application of intelligence as support for investigations in specific cases pending before the Public Prosecutor’s Office or the Federal Courts34. This function also encompasses international cooperation in investigations conducted by financial intelligence agencies of other countries and specific court orders35.
Through strategic intelligence, priorities for allocating resources are defined, risks are identified and thresholds are established. Financial intelligence analyzes transactions and patterns, and operational intelligence applies it to concrete cases (Cf. Interpretive Note to FATF Recommendation 29)..
The controls and thresholds in force for financial institutions and designated non-financial businesses and professions (APNFD) that relate to the use of cash are not part of the operational intelligence function and, therefore, it is a mistake to think of using that information for evidentiary purposes for tax purposes.
It is here that a distinction must be drawn between the controls that arise as a consequence of the application of the risk-based approach and that are inherent to the UIF regulations aimed at complying with the FATF recommendations, and those established for revenue-collection or tax purposes, which may well be relaxed by the tax innocence law—and its implementing regulations—without modifying the ML/TF/PF prevention system.
Let us recall that the CSJN (Argentina’s National Supreme Court of Justice)36, when ruling on the constitutional validity of the reporting obligation of notaries, has held that “(…) regarding the scope of application of such provisions, they fall within the framework of a money laundering prevention system, in which it is, by definition, impossible for the authority to foresee in advance all the cases of suspicion linked to operations that naturally elude State oversight. Said regulations respond to the phenomenon of transnational crime, addressed by the international instruments signed by our country that were detailed by the Attorney General in her opinion, many of which expressly refer to "unusual or suspicious transactions (Article 14(1)(a) of the United Nations Convention against Corruption, approved by Law 26,097; Article 4(1)(a) of the Inter-American Convention against Terrorism, Law 26,023; Article 7(1)(a) of the United Nations Convention against Transnational Organized Crime, Law 25,632; Article 18(1)(b) of the International Convention for the Suppression of the Financing of Terrorism, Law 26,024), It is in that context that the obligation imposed by Law 25,246 to report the suspicious transactions defined therein and specified by UIF Resolution 21/2011 must be read, whose Article 19 sets out a list of sixteen hypotheses that serve to delimit that concept with the clarity necessary for notaries public to act accordingly.(…)”
As we can see, the controls established by the UIF do not have a revenue-collection purpose, so we will proceed to analyze in detail the main UIF resolutions in force that establish controls linked to the use of cash and other transactions with an equivalent effect (such as deposits, withdrawals or currency exchanges), in order to see whether the tax innocence law has actually entailed a paradigm shift that modifies the ML/TF/PF prevention system.
Law 27,799 has as its immediate antecedents a series of decrees and ARCA general resolutions that have been establishing the simplification and deregulation of all procedures related to investment and the acquisition of assets, namely: ARCA General Resolutions 5696/202537, 5697/202538, 5698/202539 and 5699/202540.
Notwithstanding this, several UIF resolutions establish reporting obligations which, although they are not “prohibitions on the use of cash” per se, function as indirect controls by requiring information above certain monetary thresholds.
With its direct antecedent in Decree (PEN) 353/202541, the main rule that updates and sets thresholds for cash transactions and other controls applicable to various obliged persons (banks, exchange houses, notaries, motor vehicle and real estate registries) is UIF Resolution No. 78/2025.
For financial and foreign exchange entities there is UIF Resolution No. 14/2023, which regulates obligations regarding the control of cash and other transactions, and establishes general rules for identifying, monitoring and reporting cash deposits, including the requirements for identifying persons and the manner of recording high-value cash transactions. It also defines the obligation to submit the Cash Transaction Report (RTE) and the RTEOC (reports on purchase/sale of foreign currency with cash).
• It establishes that Obliged Persons must carry out enhanced monitoring of cash deposits equal to or greater than 40 SMVM (Minimum, Living and Mobile Wages42) and identify the person carrying out the transaction.
• It introduces the High-Value Cash Transaction Report (RTE) for any delivery or receipt of cash in amounts equal to or greater than 40 SMVM.
• It applies similar requirements to the purchase/sale of foreign currency in cash. Cash Transaction Report in Foreign Exchange Operations (RTEOC) from 40 SMVM.
Above these amounts, banks are obliged to identify, monitor and report cash transactions. The client’s profile, frequency and economic consistency are analyzed; this does not imply that they presume the evasion of tax obligations, since the focus is based on the ML/TF/PF risks inherent to each activity.
As regards the obliged persons in the financial sector, it is important to note that ARCA General Resolution 5820/2026, which regulates the tax innocence law, establishes in its Article 6 that adherence to the RDJS may be consulted by third parties and by financial entities through a query on the tax authority’s website43, which constitutes an additional measure to assess the client’s profile when the client is a resident individual.
For transactions involving real estate (UIF Resolution No. 70/2011), motor vehicles (UIF Resolution No. 127/2012) and notaries (UIF Resolution No. 242/2023), UIF Resolution No. 78/2025 provides:
• For transfers of title to real estate in cash, it raises the threshold for reporting to the UIF to 750 SMVM.
• It modifies thresholds relating to motor vehicle transactions and client profiling (a profile must be drawn up for annual transactions greater than or equal to 115 million pesos, and reports must be filed for vehicle purchases greater than or equal to 50 million pesos).
For Notaries (UIF Resolution No. 242/2023) and Real Property Registries (UIF Resolution No. 41/2011), the use of cash in high-value real estate transactions remains reportable in the systematic reports; indeed, it may constitute a risk indicator, but what is sought is that—in the face of that circumstance—the origin of the funds be justified without inquiring into compliance with the tax obligations that generated them, since their role is preventive and not inquisitorial. Only if the origin of the funds is not justified does the transaction that might have remained unusual become a suspicious transaction that obliges the obliged person to file a ROS (suspicious transaction report).
a) Monthly systematic report for transfers of title to real estate in cash. Real estate transactions in cash for amounts greater than or equal to 750 SMVM must be reported systematically44.
b) Specific activities (Registration of real estate purchases and sales). For specific activities and ML/TF risk analysis, 700 SMVM is considered as the parameter45.
In practice, the transfer of title in cash for amounts greater than or equal to 750 SMVM is the main operational threshold for reporting (and for assessing the origin of funds) when notaries or real estate registries are involved, but it would seem that the implicit requirement of “hard tax evidence” regarding the origin of the funds is reduced, and greater weight is given to the sworn statement of the grantor, the asset consistency of the transaction, and the particular risk analysis.
Indeed, the notary must document reasonableness, not certify absolute lawfulness, which is consistent with the risk-based approach imposed by the ML/TF/PF prevention rules.
The situation for financial entities is similar, but it is likely that, in a case where someone seeks to deposit “dollars under the mattress” or undeclared cash that cannot be linked to a lawful activity because it lacks tax justification or any other indicator of economic reasonableness, the bank will simply choose not to open the account or not to demand its closure with the issuance of the corresponding ROS, but not for a tax reason but rather because of the lack of economic consistency and the ML/TF/PF risks that this represents.
Conclusions
I consider that the amendments introduced by the tax innocence law do not entail any paradigm shift in the ML/TF/PF system.
Law 27,799 limits the use of tax presumptions and other tools designed for revenue collection so that the criminal tax law is not used as a tool to pressure taxpayers, and it requires a higher evidentiary standard for initiating a criminal case for tax crimes; this fosters an effective and efficient criminal system that gives substance to its founding principles, such as ultima ratio and exceptionality, but in no way does it modify the risk-based ML/TF/PF preventive system.
A transaction does not become fiscally innocent because a law says so, since the presumption of innocence is a concept linked to criminal law which, in our country, has constitutional roots, and can only be displaced by a final conviction handed down by a competent Court established by law prior to the act considered wrongful.
A transaction may be fiscally “innocent,” if one wishes to call it that, and still be reportable to the UIF, since the obligations imposed on obliged persons by the ML/TF/PF prevention system have their origin in the risk-based approach.
The UIF does not directly prohibit the use of cash, nor does it set an absolute legal limit on cash purchases or sales for private individuals. The thresholds for reporting, identification and enhanced monitoring, which serve as control and traceability mechanisms for cash and equivalent transactions. What the UIF does do is establish controls, the obligation to identify the client and to report when these amounts are exceeded or when faced with an unusual transaction, that is, one that breaks with the client’s transactional profile.
What the tax innocence law and its related regulations do set out to do is take away from the State tools (above all, the information regimes) that facilitate the cross-checking of data aimed at verifying and auditing the taxable events carried out by taxpayers who may or may not have previously evaded tax obligations relating to the cash they intend to bring into the economic circuit, but it in no way exempts them from the legal consequences that derive from that circumstance being detected by the tax authorities through other means.
As we have pointed out, the tax innocence law is not accompanied by an amnesty (neither for tax crimes nor for crimes under the foreign exchange criminal regime) and therefore offers no guarantees regarding the interpretation that the actors of the system (federal Prosecutors and Courts, ARCA, the BCRA [Central Bank of the Argentine Republic], etc.) may make upon the detection of undeclared cash—which may give rise to a money laundering case with tax predicates—in a scenario where case law has mostly ruled in favor of the survival of the criminal action for money laundering in cases linked to tax offenses, even when the predicate offense had been amnestied46.
That said, I believe that this law is an opportunity to change the prevailing paradigms regarding the relationship between Regulators and regulated persons. It is desirable that this relationship allow for a deeper application of the aforementioned risk-based approach criterion, and that low-risk transactions carried out by citizens with lawful economic activity not be hindered by rigid and abstract control schemes.
It is impossible not to recall that the aforementioned GUIDANCE ON THE RISK-BASED APPROACH TO COMBATING MONEY LAUNDERING AND TERRORIST FINANCING emphasizes that “(a)uthorities have a responsibility to establish an environment in which financial institutions need not fear regulatory sanctions where they have acted responsibly and implemented adequate internal systems and controls…”.
This paradigm shift demands that there be no permanent cloak of suspicion over the citizen who has a lawful source of income and who, in the context of constant instability and change faced in Argentina, has not always made transparent the income generated by such conduct. The criminal policy that Congress expresses through Law 27,799 would seem to be clear in that regard.
To that end, the main change that can be expected is one that has a real impact on the organizational culture of the various oversight bodies of the National Public Administration.
General information only. This is not professional advice on any particular case.