Financial institutions and any other entity that, even without being categorized as a financial institution, performs some type of financial activity, including any entity categorized as a financial institution subject to regulation, according to the applicable national provisions corresponding to the automatic exchange of information, must provide the Tax Administration with information on their clients that is foreseeably relevant for tax purposes, for the implementation of international instruments that contemplate the exchange of information in tax matters, whether by request, automatic, or spontaneous.
Information required to comply with an international instrument that contemplates the exchange of information in tax matters, in any of its modalities, shall be considered foreseeably relevant for tax purposes.
For such purposes, the Tax Administration is authorized to transfer the financial information obtained to the jurisdictions with which it has valid international instruments that contemplate the exchange of information in tax matters, in any of its modalities.
The entities referred to in this article must, within a period not exceeding ten business days, comply with all individualized requests for information made by the Tax Administration by virtue of an international agreement. Such requests shall be signed by the Director General of Taxation.
For the purpose of implementing the automatic exchange of information, the Tax Administration shall establish, by general resolution, the time and manner in which the cited entities shall provide the information corresponding to the annual report and the types of internal procedures for compliance control and supply of information that financial institutions must execute prior to preparing the annual report.
For the execution of the powers contained in this article, the judicial authorization procedure contained in Article 106 ter of this Code shall not be required, nor the authorization established in Article 615 of the Commerce Code (Código de Comercio).
For purposes of complying with the provisions of this article, the Tax Administration shall have the power to supervise, verify, and monitor, through the execution of annual actions, the entities subject to reporting, in the application of internal procedures for control, compliance, and delivery of information, as well as adherence to the standard related to the type of information to be reported.
Such annual actions shall be carried out based on objective selection criteria previously defined by the Tax Administration, which must be designed in accordance with the risk plans it prepares for these purposes, with the objective of evaluating and diagnosing, through the use of technical processes, the risk of irregular behavior or non-compliance in the application of internal procedures for control, compliance, and delivery of information, as well as adherence to the standard related to the type of information to be reported.
The Tax Administration must publish annually the objective selection criteria, as well as the risk criteria taken into account for such purposes.
In this regard, the Tax Administration shall issue reports with recommendations that must be implemented by the financial institutions subject to reporting, no later than three months following the date on which the report becomes final.
In the event of any of the following breaches: 1) failure to supply information; 2) non-application of internal procedures for control, compliance, and delivery of information, as well as the standard related to the type of information to be reported, due diligence procedures (procedimientos de debida diligencia), including failure to obtain self-certifications (autocertificaciones) for new accounts; and 3) failure to implement the recommendations from the supervision and monitoring reports within three months following the date on which the report issued by the Tax Administration becomes final, a penalty shall be applied equivalent to a proportional pecuniary fine of two percent (2%) of the gross income figure of the offending party in the income tax period prior to the one in which the infraction occurred, with a minimum of three base salaries and a maximum of one hundred base salaries. If the obligated party remedies its breach within eight business days following the expiration of the period granted by the Administration, the pecuniary fine established in this paragraph shall be reduced by seventy-five percent (75%). In the event that the amount of gross income is unknown, a penalty of ten base salaries shall be imposed.
The penalty provided for in the preceding paragraph shall be graduated depending on the percentage represented by the records not submitted relative to those that should have been reported.
If the unreported records represent a percentage greater than ten percent (10%), twenty-five percent (25%), fifty percent (50%), or seventy-five percent (75%) of the records that should have been reported, the Tax Administration may dimension the penalty applicable to the cases provided for in the preceding paragraph, establishing a proportional pecuniary fine of twenty-five percent (25%), fifty percent (50%), seventy-five percent (75%), or one hundred percent (100%), respectively, of the penalty that would have corresponded. In the event that the amount of gross income is unknown, a penalty equivalent to a pecuniary fine of ten base salaries shall be imposed.
Payment of the pecuniary penalties does not exempt the entities subject to reporting from the obligation to provide or correct the pending information or to apply the recommendations issued by the Tax Administration.
If errors are found in the information provided, the penalty shall be one percent (1%) of the base salary for each incorrect record, understood as a record being the information of tax significance concerning a natural person or legal entity or other entities without legal personality. In this case, the penalty imposed may not exceed the fine that corresponds pursuant to the two preceding paragraphs. The Tax Administration is empowered not to apply the mentioned penalties when in the presence of an event considered a fortuitous event or force majeure, duly demonstrated.
All information collected by the entities shall be handled confidentially, as stipulated in Article 117 of Law 4755, Tax Code of Norms and Procedures, of May 3, 1971.
Likewise, the information collected may not be used for purposes other than compliance with the provisions of this article.
(Thus added by Article 1 of Law No. 9296 of May 18, 2015)
(Thus amended by the sole article of Law No. 10488 of May 6, 2024)