ARGENTINA Law and Practice Contributed by: Juan McEwan and Agustín Lacoste, McEWAN
2.6 Transfer of Assets: Vehicle and Planning Mechanisms The only way to transfer assets to younger genera - tions tax-free is through lifetime gifts, to the extent that the gifted assets do not qualify as PBA situs assets and that the donee is not domiciled within PBA (in which case, the ITGB would apply). Gifts involving real property in favour of forced heirs are now a viable instrument as per the amendments to the CCCN intro - duced by Law 27.587. 2.7 Transfer of Assets: Digital Assets There are no specific provisions regarding how digital assets (such as email accounts and cryptocurrency) should be treated for succession purposes. 3. Trusts, Foundations and Similar Entities 3.1 Types of Trusts, Foundations or Similar Entities Under Argentine law, the applicable law is the law of the place where the trust has been settled, provided that Argentine public order is not infringed (mainly, the forced heirship rules). Revocable and Irrevocable Trusts Before the enactment of Law 27.430, Section 140 (b) of the ITL was the only reference to foreign trusts in local legislation. Law 27.430 establishes the cases in which a foreign trust should be considered transpar - ent for tax purposes. In this sense, fiscal transpar - ency applies to revocable trusts, so they are no longer useful for income tax planning purposes. However, as mentioned in 1.5 Taxation of Real Estate Owned by Non-Residents and Non-Citizens , it must be stressed that these structures will still be useful for estate plan - ning. With regard to irrevocable trusts, neither fiscal trans - parency nor anti-deferral rules will apply unless: • the settlor is also a beneficiary of the trust; or • the settlor has direct or indirect powers to decide how the assets comprising the trust fund should be invested.
personal assets ( bienes propios ). The management and disposal of shared property ( bienes gananciales ) falls to the spouse who acquired it. However, the other spouse’s consent must be obtained in order to trans - fer recordable assets, shares of stock or businesses (Section 470 of the CCCN). Conventions may be created (Section 446 of the CCCN) for the purpose of: • the designation and appraisal of the goods that each of the future spouses is bringing to the mar - riage; • the admission of debts; • donations made between each other; or • choosing an option considering the regimes con - templated in the CCCN. Section 448 of the CCCN provides that a convention must be executed by public deed ( escritura pública ) in order to be valid. For a convention to be effective towards third parties, the marriage certificate must include a note in the margin specifying the chosen regime. If the spouses decide to change the regime (which they can only do after being married for at least one year), the amendment must also be made by con - vention and by public deed. If creditors are affected by this change, they will have one year from the date that they became aware of the change in which to object to it. When a marriage is terminated (owing to death or divorce), the assets that qualify as shared/marital property are grouped together. After the applicable lia - bilities and claims of each spouse have been worked out, they are divided and distributed equally between the spouses (in the case of divorce) or between the heirs and the surviving spouse (in the case of death). 2.5 Transfer of Property The cost basis of any property being transferred (whether gifted or at death) must be maintained at the same cost assigned by the transferor in their income tax return – ie, the value in Argentine pesos at which they acquired that property. As mentioned in 1.3 Income Tax Planning , there are no special provisions in the ITL that provide a step-up in the value of assets to their fair market value.
22 CHAMBERS.COM
Powered by FlippingBook