The passive subjects shall enjoy exemption from the tax on assets in case of non-existence or insufficiency of income, when such a situation is caused by any of the following events:
- i)That a state of emergency has been declared, by means of an executive decree, in the zone where the company is located.
The declaration of a state of emergency shall only be applicable in circumstances of "war," "internal commotion," and "public calamity," which must be understood within the strictest definition of force majeure or, at most, a fortuitous event, that is, events originating from nature, such as earthquakes or floods, or from human action, such as riots, invasions, and war, events that are surprising and unforeseeable, or although foreseeable, are unavoidable.
To demonstrate the concurrence of this cause, the National Emergency Commission must send the Ministry of Finance a detailed list of the zones affected by the emergency. If the passive subject's company is located within the affected zones, according to a certification from the Commission, the latter must only demonstrate the causal link between the non-existence or insufficiency of income and the emergency situation.
- ii)That the holder of the asset cannot exploit it in an activity carried out at usual market prices, because there is a law of public order that directly prevents it.
To demonstrate the concurrence of this cause, the existence of a law establishing price controls or profit margin controls for certain activities shall not be sufficient; rather, the passive subject must demonstrate, for the period in question, that the regulation caused the non-existence or insufficiency of income.
- iii)That exceptional economic conditions arise, declared by decree of the Executive Branch, which generally affect a specific sector of economic activity.
An exceptional economic condition shall be understood as the existence of exogenous factors to the activity that cause the non-existence or insufficiency of income in companies representing at least eighty percent (80%) of the total production of the sector of economic activity. For the definition of the concept "sector of economic activity," the definitions established in the three-digit economic activity groups of the Uniform International Industrial Code shall be used.
A requirement for the issuance of a decree declaring an "exceptional economic condition" in a sector of economic activity shall be the demonstration, by the affected sector, that the three conditions established in the preceding paragraph have occurred, that is, that there are exogenous factors, that it affects the companies representing eighty percent (80%) of the total production of the sector, and that the non-existence or insufficiency of income has occurred. The Ministry of Finance, jointly with the Minister responsible for the affected sector, shall define the mechanisms through which such demonstration shall be made. For this purpose, it may request the collaboration of public, state, and non-state entities representing the sector.
Likewise, the participation of the Minister of Finance in its issuance shall be a requirement for the validity of said decree.
Also in this case, the passive subject must demonstrate the causal link between the exogenous factor in question and its non-existence or insufficiency of income.
For the purposes of this article, the non-existence of income shall be understood as the operating loss declared for income tax purposes, that is, the deficit determined for the purposes of computing the tax established by the arithmetic difference resulting from subtracting deductible costs and expenses in the fiscal period from the taxable income, with the same limitations established in the last paragraph of Article 16 of these Regulations. Insufficiency of income shall be understood to occur when the gross income for the period decreases, in real terms, at a rate equal to or greater than sixty percent (60%) of the gross income declared for income tax purposes, in the fiscal period prior to the one in which the decree was issued.
In any of the exemption cases established in this article, the burden of proof corresponds to the taxpayers.