César Litvin, socio del estudio Lisicki Litvin, analizó para Prensa Económica el tema y afirmó que: Quienes no declararon bien las cuentas están expuestos a que el Fisco determine un incremento patrimonial no justificado por el capital originado en cada depósito, más las ganancias percibidas y el impuesto sobre los bienes personales.
La AFIP recibió información sustraída por un empleado infiel (H. Falciani) que trabajaba en la entidad bancaria, en el área de informática en Zurich y ahora tiene pedido de captura por la justicia Suiza.
El mecanismo empleado por el Organismo Fiscal consistió en solicitar oficialmente esta información a través del Convenio de Doble Imposición con Francia que prevé el intercambio de información. Destaquemos que actualmente H. Falciani, quien tiene en sus manos datos de 130.000 clientes, está contratado por el gobierno galo.
Según datos oficiales, la información recibida por la AFIP de Falciani –vía Francia- alcanza a 4.040 titulares de cuentas en el HSBC de Suiza.
Aquellos contribuyentes que tengan las cuentas bien declaradas no tendrán problema alguno, en cambio para los sujetos que omitieron incluir los saldos y las rentas de esas cuentas, estarán expuestos a que el Fisco determine un incremento patrimonial no justificado por el Capital originado en cada depósito, más las ganancias percibidas y el Impuesto sobre los Bienes Personales.
¿ES LEGAL O NO?
La pregunta clave es si la AFIP tiene facultades legales para iniciar un procedimiento de determinación de deuda fiscal, sustentada en una prueba ilegítima, obtenida en su origen (Suiza) a través de la comisión de dos delitos (robo y violación del secreto financiero).
Desde nuestro criterio, la prueba fue obtenida a través de un acto ilícito “fruto del árbol envenenado”, que no puede ser subsanado y, por eso, dicha información está contaminada en su origen. En España, reciente jurisprudencia rechazó ese fundamento sustentado en el cumplimiento de la obligación de denunciar un delito, situación que en la Argentina no existe.
Varios argumentos sostienen nuestro criterio. En primer lugar el Convenio entre Argentina y Francia no es automático, por lo tanto impide la “excursión de pesca”. Por otra parte, el alcance del intercambio de información se limita a los impuestos comprendidos en el Convenio entre Francia y Argentina. En tercer lugar, la documentación recibida no se encuentra legalizada ni traducida y por último la información recibida no guarda el secreto requerido de las actuaciones.
¿Y EL SECRETO FISCAL?
Conceder valor probatorio a las pruebas mal habidas es contradictorio con el debido proceso, compromete la administración de justicia al constituirla en beneficiaria del hecho ilícito, con lo cual conlleva a la fulminación de nulidad de la determinación.
Por otra parte, llama la atención como se vulnera reiteradamente el secreto fiscal (protegido por normas legales), suministrando listados y nombres que atentan contra el bien jurídico que se intenta proteger: la CONFIANZA, valor esencial para asegurar tranquilidad, dado que el organismo fiscal, hoy en día, tienen datos sobre gran parte de la intimidad económica de un contribuyente.
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