Tag Archives: legal

UNITED STATES EXTRADITION TREATY WITH ARGENTINA – Lawyer – Attorney – Law Firm – Buenos Aires

UNITED STATES OF AMERICA BILATERAL EXTRADITION TREATIES:

EXTRADITION TREATY WITH ARGENTINA

TREATY DOC. 105-18

1997 U.S.T. LEXIS 94

June 10, 1997, Date-Signed

MESSAGE FROM THE PRESIDENT OF THE UNITED STATES TRANSMITTING EXTRADITION TREATY BETWEEN THE UNITED STATES OF AMERICA AND THE ARGENTINE REPUBLIC, SIGNED AT BUENOS AIRES ON JUNE 10, 1997

TEXT:

105TH CONGRESS

1st Session

SENATE

LETTER OF TRANSMITTAL

THE WHITE HOUSE, July 30, 1997.

To the Senate of the United States:

With a view to receiving the advice and consent of the Senate to ratification, I transmit herewith the Extradition Treaty between the United States of America and the Argentine Republic, signed at Buenos Aires on June 10, 1997. In addition, I transmit, for the information of the Senate, the report of the Department of State with respect to the Treaty. As the report states, the Treaty will not require implementing legislation.

The provisions in this Treaty follow generally the form and content of extradition treaties recently concluded by the United States. Upon entry into force, this Treaty would enhance cooperation between the law enforcement authorities of both countries, [*2] and thereby make a significant contribution to international law enforcement efforts. The Treaty would supersede the Extradition Treaty Between the United States of America and the Republic of Argentina signed at Washington on January 21, 1972.

I recommend that the Senate give early and favorable consideration to the Treaty and give its advice and consent to ratification.

WILLIAM J. CLINTON.

LETTER OF SUBMITTAL DEPARTMENT OF STATE, Washington, July 9, 1997.

The PRESIDENT,

The White House.

THE PRESIDENT: I have the honor to submit to you the Extradition Treaty between the United States of America and the Argentine Republic (the “Treaty”), signed at Buenos Aires on June 10, 1997. I recommend that the Treaty be transmitted to the Senate for its advice and consent to ratification. The Treaty follows closely the form and content of extradition treaties recently concluded by the United States. The Treaty represents part of a concerted effort by the Department of State and the Department of Justice to develop modern extradition relationships to enhance the ability of the United States to prosecute serious offenders, including, especially, narcotics traffickers and terrorists. [*3] The Treaty marks a significant step in bilateral cooperation between the United States anD Argentina. Upon entry into force, it would supersede the extradition treaty currently in force between the two countries, which was signed at Washington on January 21, 1972. That treaty has become outmoded and the new treaty will provide significant improvements. The Treaty can be implemented without new legislation.

Article 1 obligates each Party to extradite to the other, pursuant to the provisions of the Treaty, any person charged with or found guilty of an extraditable offense in the Requesting State.

Article 2(1) defines an extraditable offense as one punishable under the laws in both Parties by deprivation of liberty for a maximum period of more than one year, or by a more severe penalty. Use of such a “dual criminality” clause rather than a list of offenses covered by the Treaty obviates the need to renegotiate or supplement the Treaty as additional offenses become punishable under the laws of both Parties.

Article 2(2) defines an extraditable offense to include also an attempt or a conspiracy to commit, or the participation in the commission of, an extraditable offense. Additional flexibility [*4] is provided by Article 2(3), which provides that an offense shall be considered an extraditable offense: whether or not the laws in the Contracting States place the offense within the same category of offenses or describe the offense by the same terminology; or whether or not the offense is one for which United States federal law requires the showing of such matters as interstate transportation or use of the mails or of other facilities affecting interstate or foreign commerce, such matters being merely for the purpose of establishing jurisdiction in a United States federal court. With regard to offenses committed outside the territory of the Requesting State, Article 2(4) provides that an offense described in Article 2 shall be an extraditable offense if the offense has effects in the territory of the Requesting State, or if the laws in the Requested State provide for punishment of an offense committed outside its territory in similar circumstances. Article 3 provides that extradition and surrender shall not be refused on the ground that the person sought is a national of the Requested Party. Neither Party, in other words, may invoke nationality as a basis for denying an extradition. [*5] As is customary in extradition treaties, Article 4 incorporates a political offense exception to the obligation to extradite. Article 4(1) states generally that extradition shall not be granted for a political offense. Article 4(2) expressly excludes from the reach of the political offense exception several categories of offenses:

(a) an attack or willful crime against the physical integrity of the Head of State of one of the Parties, or of a member of the Head of State’s family; (b) an offense for which both Parties are obliged pursuant to a multilateral international agreement on genocide, acts of terrorism, illicit trafficking in narcotic drugs and psychotropic substances, or other crimes, to extradite the person sought or submit the case to their competent authorities for decision as to prosecution; and (c) a conspiracy or attempt to commit the offenses described above, or participation in the commission of such offenses.

Article 4(3) provides that extradition shall not be granted if the competent authority of the Requested State determines that the request was politically motivated.

Article 4(4) provides that the Requested State may refuse extradition for offenses under military [*6] law that are not offenses under ordinary criminal law (for example, desertion).

Article 5 bars extradition when the person sought has been convicted or acquitted in the Requested State for the same offense, but does not bar extradition if the competent authorities in the Requested State have declined to prosecute for the acts for which extradition has been requested. In addition, extradition cannot be refused on the ground that the authorities in the Requested State, after initiating criminal proceedings, have decided to discontinue them, so long as the Requested State’s laws regarding double jeopardy would permit the future reinstitution of such criminal proceedings.

Under Article 6, when an offense for which extradition is requested is punishable by death under the laws in the Requesting State and is not so punishable under laws in the Requested State, the Requested State may refuse extradition unless the Requesting State provides assurances that the death penalty will not be imposed or, if imposed, will not be carried out.

Article 7 provides that extradition shall not be denied on the ground that the prosecution or penalty would be barred under the statute of limitations in the [*7] Requested State.

Articles 8-10 address procedures governing the presentation and processing of extradition requests. Article 8 describes the documents that are required to support a request for extradition. Article 9 provides that all documents submitted by the Requesting State shall be translated into the language of the Requested State. Article 10 establishes the procedures under which documents submitted pursuant to Article 8 shall be received and admitted into evidence in the Requested State.

Article 11 sets forth procedures for the provisional arrest and detention of a person sought pending presentation of the formal request for extradition. Article 11(4) provides that if the Requested State’s executive authority has not received the request for extradition and supporting documentation within sixty days after the provisional arrest, the person may be discharged from custody. Article 11(5) provides explicitly that discharge from custody pursuant to Article 11(4) does not prejudice subsequent rearrest and extradition upon later delivery of the extradition request and supporting documents. Article 12 specifies the procedures governing the surrender and return of persons sought. [*8] The Requested State is required to notify promptly the Requesting State of its decision on extradition and, if the request is denied in whole or in part, to provide an explanation of the reasons for the denial of the request. If the request is granted, the Parties shall agree on the time and place for the surrender of the person sought. Such person must be removed from the territory of the Requested State within the time prescribed by the law of the Requested State, or within thirty days from the time of notification by the Requested State of its decision on the request for extradition, whichever is longer. Otherwise, that person may be discharged from custody, and the Requested State may refuse a subsequent extradition request from the Requesting State for that person for the same offense. This Article also provides that if assurances in connection with application of the death penalty are required pursuant to

Article 6, they shall be provided prior to the surrender of the person sought.

Article 13 concerns temporary and deferred surrender. If a person whose extradition is sought

is being prosecuted or is serving a sentence in the Requested State, that State may

temporarily surrender [*9] the person to the Requesting State solely for the purpose of

prosecution. Alternatively, the Requested State may postpone the extradition proceedings

until the domestic prosecution has been concluded and any sentence imposed has been

served.

Article 14 sets forth a non-exclusive list of factors to be considered by the Requested State in

determining to which State to surrender a person sought by more than one State.

Article 15 provides for the seizure and surrender to the Requesting State of property

connected with the offense for which extradition is granted, to the extent permitted under the

law of the Requested State. Such property may be surrendered even when extradition cannot

be effected due to the death, disappearance, or escape of the person sought. Surrender of

property may be deferred if it is needed as evidence in the Requested State and may be

conditioned upon satisfactory assurances that it will be returned. Article 15(3) imposes an

obligation to respect the rights of third Parties in affected property.

Article 16 sets forth the rule of speciality. It provides that a person extradited under the

Treaty may not be detained, tried, or punished in the Requesting State for [*10] an offense

other than that for which extradition has been granted. However, the Article sets forth a

number of exceptions, including the grant of a waiver by the competent authority of the

Requested State. Similarly, the Requesting State may not extradite the person to a third state

for an offense committed prior to the original surrender unless the surrendering State

consents. These restrictions do not apply if the extradited person leaves the Requesting State

after extradition and voluntarily returns to it or fails to leave the Requesting State within

twenty days of being free to do so.

Article 17 permits surrender to the Requesting State without further proceedings if the person

sought directly and expressly consents.

Article 18 governs the transit through the territory of one Party of a person being surrendered

to the other Party by a third State.

Article 19 contains provisions on representation and expenses that are similar to those found

in other modern extradition treaties. Specifically, the Requested State bears the expenses for

the legal representation of the Requesting State in any proceedings arising out of a request for

extradition. The Requesting State shall bear the expenses [*11] related to the translation of

documents and the transportation of the person surrendered. Article 19(3) clarifies that

neither Party shall make any pecuniary claim against the other Party related to the arrest,

detention, examination, custody, or surrender of persons sought under the Treaty.

Article 20 provides that, for the United States of America, the term “competent authority” as

used in the Treaty means the appropriate authorities of its executive branch.

Article 21 states that the Parties may consult with each other directly in connection with the

processing of individual cases and in furtherance of maintaining and improving the

procedures for the implementation of the Treaty.

Article 22, like the parallel provision in almost all recent United States extradition treaties,

states that the Treaty shall apply to offenses committed before as well as after the date the

Treaty enters into force.

Article 23 contains final clauses dealing with the Treaty’s ratification, entry into force and

termination. Paragraph 1 states that the Treaty shall be subject to ratification, and the

instruments of ratification shall be exchanged as soon as possible. Paragraph 2 states that the

Treaty shall [*12] enter into force the day after the date of the exchange of instruments of

ratification. Paragraph 3 provides that, upon entry into force of this Treaty, the Treaty on

Extradition Between the United States of America and the Republic of Argentina, signed at

Washington January 21, 1972, shall cease to be in force, with noted exceptions. Paragraph 4

provides that either Party may terminate the Treaty at any time by giving written notice

through the diplomatic channel to the other Party, and the termination shall be effective six

months after the date of such notice.

A Technical Analysis explaining in detail the provisions of the Treaty is being prepared by

the United States negotiating delegation and will be submitted separately to the Senate

Committee on Foreign Relations.

The Department of Justice joins the Department of State in favoring approval of this Treaty

by the Senate at the earliest possible date.

Respectfully submitted.

THOMAS R. PICKERING.

EXTRADITION TREATY BETWEEN THE UNITED STATES OF AMERICA AND THE

ARGENTINE REPUBLIC

The United States of America and the Argentine Republic (hereinafter also, “the Parties”),

Considering the Treaty on Extradition Between the United States [*13] of America and the

Republic of Argentina, signed at Washington January 21, 1972, Desiring to provide for more

effective cooperation between the two States in the suppression of crime, and for that

purpose, to conclude a new extradition treaty, Have agreed as follows:

Article 1

Obligation to Extradite

The Parties agree to extradite to each other, pursuant to the provisions of this Treaty, persons

whom the authorities in the Requesting State have charged with or found guilty of an

extraditable offense.

Article 2

Extraditable Offenses 1. An offense shall be an extraditable offense if it is punishable under

the laws in both Parties by deprivation of liberty for a maximum period of more than one year

or by a more severe penalty. When the request for extradition refers to a person found guilty

of such a crime who is sought for the service of a sentence, extradition shall be granted only

if the remainder of the sentence to be served is at least six months.

2. An offense shall also be an extraditable offense if it consists of:

(a) an attempt to commit any offense described in paragraph 1;

(b) a conspiracy as defined under the laws in the United States of America, or an illicit [*14]

association as defined under the laws in the Argentine Republic, to commit any offense

described in paragraph 1; or

(c) participation in the commission of any offense described in paragraph 1.

3. For the purposes of this Article, an offense shall be an extraditable offense:

(a) whether or not the laws in the Parties place the acts or omissions constituting the offense

within the same category of offense or denominate the offense by the same terminology; or

(b) whether or not the offense is one for which the federal laws of the United States of

America require the showing of such elements as interstate transportation, or use of the mails

or of other facilities affecting interstate or foreign commerce, such elements being for the

purpose of establishing jurisdiction in the federal courts of the United States of America.

4. In accordance with the provisions of this Treaty, extradition shall be granted for offenses

committed in whole or in part within the Requesting State’s territory, which, for the purposes

of this Article, includes all places subject to that State’s criminal jurisdiction. Extradition shall

also be granted for offenses committed outside the territory [*15] of the Requesting State if:

(a) the act or acts that constitute the offense have effects in the territory of the Requesting

State; or

(b) the laws in the Requested State provide for punishment of an offense committed outside

its territory in similar circumstances.

5. If extradition has been granted for an extraditable offense, it shall also be granted for any

other offense specified in the request even if the latter offense is punishable by deprivation of

liberty for one year or less, provided that all other requirements for extradition are met.

Article 3

Nationality

The extradition and surrender of the person sought shall not be refused on the ground that

such person is a national of the Requested Party.

Article 4

Political and Military Offenses

1. Extradition shall not be granted if the offense for which extradition is requested is a

political offense.

2. For the purposes of this Treaty, the following offenses shall not be considered to be

political offenses:

(a) an attack or willful crime against the physical integrity of the Head of State of one of the

Parties, or of a member of the Head of State’s family;

(b) an offense for which both Parties have the obligation, [*16] pursuant to a multilateral

international agreement on genocide, acts of terrorism, illicit traffic in narcotic drugs and

psychotropic substances, or other crimes, to extradite the person sought or to submit the case

to their competent authorities for decision as to prosecution;

(c) an attempt to commit any offense described in subparagraphs (a) and (b) above;

(d) a conspiracy as defined under the laws in the United States of America, or illicit

association as defined under the laws in the Argentine Republic, to commit an offense

described in subparagraphs (a) and (b) above; or

(e) participation in the commission of any offense described in subparagraphs (a) and (b)

above.

3. Notwithstanding the terms of paragraph 2 of this Article, extradition shall not be granted if

the competent authority of the Requested State determines that the request was politically

motivated.

4. The Requested State may refuse extradition for offenses under military law that are not

offenses under ordinary criminal law.

Article 5

Prior Prosecution

1. Extradition shall not be granted when the person sought has been convicted or acquitted in

the Requested State for the offense for which extradition [*17] is requested.

2. If both Parties have jurisdiction over the acts for which extradition has been requested,

extradition shall not be precluded by the fact that authorities in the Requested State have not

instituted criminal proceedings against the person sought for those acts. In addition,

extradition shall not be precluded by the fact that such criminal proceedings, although

instituted, have been discontinued, provided that the laws of the Requested State regarding

double jeopardy would permit the future reinstitution of such criminal proceedings.

Article 6

Death Penalty

When the offense for which extradition is requested is punishable by death under the laws in

the Requesting State, and the laws in the Requested State do not permit the death penalty for

that offense, surrender of the person sought may be refused unless the Requesting State

provides assurances that the death penalty shall not be imposed, or, if imposed, shall not be

executed.

Article 7

Lapse of Time

Extradition shall not be denied on the ground that the prosecution or the penalty would be

barred under the statute of limitations in the Requested State.

Article 8

Extradition Procedures and Required Documents

1. [*18] A request for extradition shall be made in writing and submitted through the

diplomatic channel.

2. A request for extradition shall be supported by:

(a) the most precise physical description possible of the person sought; any known

information regarding the person’s identity, nationality, and probable location; and, if

possible, a photograph and fingerprints of such person;

(b) a summary of the facts of the offense, and a brief explanation of the procedural history of

the case;

(c) the text of the law or laws describing the offense for which extradition is requested and

the applicable penalty;

(d) a statement that neither the prosecution nor the execution of the penalty is barred

according to the prescriptive laws in the Requesting State; and

(e) the documents, statements, or other types of information specified in either paragraph 3 or

4 of this Article, as applicable.

3. A request for extradition of a person who is sought for prosecution shall also be supported

by:

(a) a copy of the warrant of arrest issued by an appropriate authority;

(b) a copy of the charging document, if any, against the person sought; and

(c) such information as would justify the detention [*19] of the person if the offense had been

committed in the Requested State.

4. In addition to the requirements of paragraph 2, a request for the extradition of a person

who has been found guilty of or sentenced for the offense for which extradition is sought

shall also be supported by:

(a) a copy of the judgment of conviction or, if such copy is not available, a statement by a

judicial authority that the person has been found guilty;

(b) information establishing that the person sought is the person to whom the finding of guilt

refers; and

(c) a copy of the document setting forth the sentence imposed, if the person sought has been

sentenced, and a statement establishing the extent to which the sentence has been carried out.

Article 9

Translation

All documents submitted by the Requesting State pursuant to this Treaty shall be

accompanied by a translation into the language of the Requested State.

Article 10

Admissibility of Documents

The documents that accompany an extradition request, including appropriate translations,

shall be received and admitted as evidence in extradition proceedings if:

(a) the documents are certified or authenticated by the appropriate accredited [*20]

diplomatic or consular officer of the Requested State in the Requesting State; or

(b) the documents are certified or authenticated in any other manner accepted by the laws in

the Requested State.

Article 11

Provisional Arrest

1. In case of urgency, either of the Parties may request the provisional arrest of the person

sought. A request for provisional arrest may be transmitted by any written means through the

diplomatic channel or directly between the United States Department of Justice and the

Ministry of Foreign Relations, Foreign Trade, and Worship of the Argentine Republic.

2. The application for provisional arrest shall contain:

(a) a description of the person sought;

(b) the location of the person sought, if known;

(c) a brief statement of the facts of the case, including, if possible, the time and location of

the offense;

(d) a citation to the law or laws that set forth the offense;

(e) a statement of the existence of a warrant of arrest, or of a finding of guilt or judgment of

conviction, against the person sought;

(f) an explanation of the reasons for the urgency of the request; and

(g) a statement that a request for extradition of the person sought, [*21] with the appropriate

supporting documentation, will be presented.

3. The Requested State shall notify the Requesting State without delay of the disposition of

an application for provisional arrest.

4. A person who is detained pursuant to this Article may be discharged from custody upon

the expiration of sixty (60) calendar days from the date of such provisional arrest if the

executive authority of the Requested State has not received the request for extradition and the

supporting documents required in Article 8.

5. The fact that the person sought has been discharged from custody pursuant to paragraph 4

of this Article shall not be an obstacle to the rearrest and extradition of that person if an

extradition request is received at a later date.

Article 12

Decision on Extradition and Surrender of the Person Sought

1. The Requested State shall promptly notify the Requesting State of its decision on the

request for extradition.

2. If the request is denied in whole or in part, the Requested State shall provide an

explanation of the reasons for the denial. The Requested State shall provide copies of

pertinent judicial decisions upon request.

3. If assurances are required pursuant [*22] to Article 6 of this Treaty, they shall be provided

prior to the surrender of the person sought.

4. If extradition is granted, the Parties shall agree on the time and place for the surrender of

the person sought. If the person sought is not removed from the territory of the Requested

State within thirty (30) calendar days from the time of the notification described in paragraph

1 of this Article or within the time prescribed by the law of that State, whichever is longer,

that person may be discharged from custody, and the Requested State may refuse a

subsequent extradition request from the Requesting State for that person for the same offense.

Article 13

Temporary and Deferred Surrenders

1. If extradition is granted in the case of a person who is being proceeded against or is serving

a sentence in the Requested State, such State may temporarily surrender the person sought to

the Requesting State for the purpose of prosecution. The person so surrendered shall be kept

in custody in the Requesting State and shall be returned to the Requested State after the

conclusion of the proceedings against that person, or when his or her presence is no longer

required under the laws in the Requesting [*23] State. Temporary surrender shall be effected

in accordance with conditions to be determined by agreement of the Parties.

2. The Requested State may postpone the extradition proceedings against a person who is

being prosecuted or who is serving a sentence in that State. The postponement may continue

until the prosecution of the person sought has been concluded or until such person has served

any sentence imposed.

3. For the purposes of this Treaty, the postponement by the Requested State of the extradition

proceedings or of the surrender shall suspend the running of the statute of limitations in the

judicial proceedings in the Requesting State for the offense or offenses that gave rise to the

extradition request.

Article 14

Concurrent Requests

If one of the Parties receives requests from the other Party and from any other State or States

for the extradition of the same person, either for the same offense or for different offenses,

the competent authority of the Requested State shall determine to which State it will

surrender the person. In making its decision, the Requested State shall consider all relevant

factors, including but not limited to:

(a) whether or not the requests [*24] were made pursuant to treaty;

(b) the place where each offense was committed;

(c) the gravity of the offenses;

(d) the respective interests of the Requesting States;

(e) the possibility of further extradition between the Requesting States; and

(f) the chronological order in which the requests were received from the Requesting States.

Article 15

Seizure and Surrender of Property

1. To the extent permitted under its law, the Requested State may seize and surrender to the

Requesting State all articles, documents, and evidence connected with the offense in respect

of which extradition is granted. Such items may be surrendered even when the extradition

cannot be effected due to the death, disappearance, or escape of the person sought.

2. The Requested State may condition the surrender of the property upon satisfactory

assurances from the Requesting State that the property will be returned to the Requested State

as soon as practicable. The Requested State may also defer the surrender of such property if it

is needed as evidence in that State.

3. The rights of third parties in such property shall be duly respected.

Article 16

Rule of Speciality

1. A person extradited [*25] under this Treaty may not be detained, tried, or punished in the

Requesting State except for:

(a) the offense for which extradition was granted or a differently denominated or less serious

offense based on the same facts on which extradition was granted, provided such offense is

extraditable;

(b) an offense committed by that person after his or her surrender; or

(c) an offense for which the competent authority of the Requested State consents to the

person’s detention, trial, or punishment. For the purposes of this subparagraph:

(i) the Requested State may require the submission of the documents specified in Article 8;

and

(ii) the person extradited may be detained by the Requesting State for ninety (90) calendar

days, or for such longer period of time as the Requested State may authorize, while the

request for consent is being processed.

2. A person extradited under this Treaty may not be extradited to a third State for an offense

committed prior to his or her surrender unless the surrendering State consents.

3. Paragraphs 1 and 2 of this Article shall not prevent the detention, trial, or punishment of an

extradited person, or the extradition of that person to [*26] a third State, if that person:

(a) leaves the territory of the Requesting State after extradition and voluntarily returns to it;

or

(b) does not leave the territory of the Requesting State within twenty (20) calendar days of

the day on which that person is free to leave.

Article 17

Waiver of Extradition

1. If the person sought consents to surrender to the Requesting State, the Requested State may

surrender the person as expeditiously as possible without further proceedings.

2. Such consent shall be directly and expressly provided to the appropriate judicial authority

of the Requested State.

Article 18

Transit

1. Either Party may authorize transportation through its territory of a person surrendered to

the other Party by a third State. In cases of scheduled transit, such authorization shall be

requested by the Party to which the person is being extradited. A request for transit may be

transmitted through the diplomatic channel. Alternatively, such request may be transmitted

directly between the United States Department of Justice and the Ministry of Foreign Affairs,

Foreign Trade, and Worship of the Argentine Republic, or through the facilities of the

International Criminal [*27] Police Organization (INTERPOL). The request for transit shall

contain a description of the person being transported and a brief statement of the facts of the

case. A person in transit may be detained in custody during the period of transit.

2. No authorization is required if a Party is transporting a person surrendered to it by a third

State using air transportation and no landing is scheduled on the territory of the other Party. If

an unscheduled landing occurs on the territory of a Party, that Party may require from the

other Party the submission of a request for transit as provided in paragraph 1. If required, any

such request for transit shall be provided within ninety-six (96) hours of the unscheduled

landing. The Party in which the unscheduled landing occurred may detain the person to be

transported until the transit is effected.

Article 19

Representation and Expenses

1. The Requested State shall advise, assist, appear in court on behalf of, and represent the

interests of, the Requesting State in any proceedings related to a request for extradition. The

representative appointed by the Requested State shall be legally authorized to act in those

proceedings.

2. The Requesting [*28] State shall bear the expenses related to the translation of documents

and the transportation to that State of the person surrendered. The Requested State shall pay

all other expenses incurred in that State by reason of the extradition proceedings.

3. Neither Party shall make any pecuniary claim against the other Party related to the arrest,

detention, custody, examination, or surrender of persons sought under this Treaty.

Article 20

Competent Authority

For the United States of America, the term “competent authority,” as used in this Treaty,

means the appropriate authorities of its executive branch.

Article 21

Consultation

The Parties may consult with each other directly in connection with the processing of

individual cases and in furtherance of maintaining and improving procedures for the

implementation of this Treaty.

Article 22

Application

This Treaty shall apply to offenses committed before as well as after the date it enters into

force.

Article 23

Ratification, Entry into Force, and Termination

1. This Treaty shall be subject to ratification. The instruments of ratification shall be

exchanged as soon as possible.

2. This Treaty shall enter into force the day after the date [*29] of exchange of the

instruments of ratification.

3. Upon the entry into force of this Treaty, the Treaty on Extradition Between the United

States of America and the Republic of Argentina, signed at Washington January 21, 1972,

shall cease to be in force. Nevertheless, the prior Treaty shall apply to any extradition

proceedings in which the extradition documents have already been submitted to the courts of

the Requested State before this Treaty enters into force. Article 17 of this Treaty, however,

shall be applicable to such proceedings. Similarly, Article 16 of this Treaty shall apply to

persons found extraditable under the prior Treaty.

4. Either Party may terminate this Treaty by giving written notice to the other Party through

the diplomatic channel, and the termination shall be effective six months after the date of

such notice.

IN WITNESS WHEREOF, the undersigned, being duly authorized by their respective

Governments, have signed this Treaty.

DONE at Buenos Aires, in two originals, this 10th day of June, 1997, in the English and

Spanish languages, both texts being equally authentic.

FOR THE GOVERNMENT OF THE UNITED STATES OF AMERICA:

FOR THE GOVERNMENT OF THE ARGENTINE [*30] REPUBLIC:

The proven Buenos Aires – Argentina lawyer professionals at the Kier Joffe law firm have experience working with foreign clients involved in all kind of cases in Argentina. Buenos Aires Argentina attorney professionals are knowledgeable in almost all the practice areas of law, to service its international cases in Buenos Aires Argentina. International clients will have the confidence of knowing that the case is being handled by an experienced and knowledgeable Buenos Aires  lawyer in Argentina.

www.kierjoffe.com

 

New York taxi mogul retains Kier Joffe Attorneys at Law to buy a Plot of Land in La Dolfina Polo Ranch by Adolfo Cambiaso the best Polo Player in the World.

La Dolfina is Adolfo Cambiaso’s personal life project. It was conceived thinking in a concept of life quality, polo lifestyle and family, aiming to make it the premier polo destination in the world: Argentina.

The world’s best polo player was born in Cañuelas on 14 April 1975. He started playing at age 12 in La Martina, stay in his family is Vicente Casares. In 1988, at age 14, won the Desert Campaign Cup and the following year Renault Cup, reaching the six-goal handicap.His big year was 1994: he won the triple crown (Tortugas Open, Hurlingham Open and Argentine Open in Palermo) with Ellerstina and became the youngest player to reach 10-goal handicap. He was 19. He also holds the record of 16 goals in one game and the record of 67 goals in the championship in 1998.Since then he received numerous awards, including the Olimpia de Plata in 1997.In 2005 he founded his own team, La Dolfina, with Lucas Monteverde Mariano Aguerre and Bartolome Castagnola.Adolfito is married to model Mary Vazquez. They have two children Mia and Adolfo Jr., born in the midst of a party that Adolfito played in the Argentine Open Centaurs against Beaufort.It stands out not only as one of the best polo players in the world, but in its simplicity. “I am very simple and very relaxed. I do not mean more than enough. I am happy to be in a good team, with people like me. Playing with the guys who really enjoy themselves and live to be eighty, if I can. Having a family and have children, “he said when beginning his brilliant career”.

From the City of Buenos Aires the quickest and easiest way is to drivethe Avenida 9 de Julio direction opposite to river until AutopistaRiccheri (freeway). Hop onto this freeway and keep driving aprox 20 minutes (you will pass two tolls). When you see the sign that says Autopista Ezeiza Canuelas (205), take it and drive aprox 15 minutes (you will pass one toll). Then you will se a sign that says ALEJANDRO PETION.Take this direction left about 5 minutes (this street is called Calle Vissir). The road will end in a Country Club, you will see that entrance.That is road 205, that you will need to make a left about half a mile. The first available road (take it right), is the road that after a mile drives you to La Dolfina Polo Club. You will see the signs of the Club.The access to the Polo Ranch will be specified soon as the road is under construction. By now, the best way to get there is through La Dolfina Polo Club.

Argentina is the second larger country in South America after  Brazil. Located in the south of America,  is bounded by Chile, Bolivia, Paraguay, Brazil and Uruguay. Argentina is currently divided in 23 provinces and the Autonomous city of Buenos Aires.GeographyArgentina has a varied geography: subtropical forests and fast-flowing rivers to the northeast that give way to the Delta del Parana and to the Rio de la Plata. The premountain high plateau to the northwest has a mountain and desert weather, a central region with fertile pampas and the Patagonia. The Patagonia is located to the south and has huge extensions of prairies, high mountains, big lakes and woods. According to this, Argentina is divided in the following geographical areas: the pampas prairies, the Chaco prairies, the Mesopotamia, the Pampas Mountains, extra Andes Patagonia and oceanic Islands and Antarctica. The Andes region is divided into: north or northeast Andes, Andes from the Center or Cuyana and south Andes.In Argentina one can find all types of weather: though the major part of the country is located in the mild weather area of the South, most of the weather types can be found. Four of those types can be distinguished: subtropical, temperate, dry and cold, each with its corresponding variants.Kinds of weather and its main characteristics: Subtropical with no dry season (Northeast): Temperature is high, mild difference between winter and summer. Many precipitations during the whole year. Subtropical with dry season (North): Really hot during summer and warm during winter. Too many rains, mainly during the summer. Pampas temperate (covers the east pampas and south of the Mesopotamia). Temperature diminishes from the coast to the inside of the country. There is a lot of rain. Transition temperate (covers the west pampas): Summer is warmer and winter is colder due to lack of humidity. The amount of rain is not enough and it rains during the summer. Dry or mountain weather (covers the Puna and the central Andes): during winter it is very cold and during summer it is fresh. There is a wide difference in temperature between day and night. It scarcely rains, mainly in the summer, hence the atmosphere is extremely dry. Dry of the mountains (covers most of the area near the Pampas and pre Andes): Winters are cold and summers are warm. There is a wide difference in temperature between day and night. It scarcely rains, mainly in the summer. Dry cold (Patagonia): Temperatures are low and dry winds blow from the west. The few rains fall mainly in winter. There are a lot of snow precipitations in the south. Snow cold (Argentinean Antartida): Temperatures are below cero centigrade, winds are strong.Demographic SituationCurrently, Argentina’s population is of 36.000.000 approximately. 34% of the whole population is concentrated in the Autonomous city of Buenos Aires and the 19 areas around it (known as partidos, which belong to Buenos Aires). These areas are an extension of the federal district, known as Gran Buenos Aires. 2.960.000 people live in the city of Buenos Aires. It is visited by 7.000.000 people who come from the Gran Buenos Aires every day.Most of Argentina’s population is from Spanish and Italian origin. In general, it is noticeable the prevailing European origin.Argentina’s population growth rate has remained relatively constant since the middle of the 20th Century. It has just varied around 1.6% since 1947. Since then, the city of Buenos Aires has shown an important decrease due to the desire of the inhabitants to live outside the city.Whereas in Gran Buenos Aires there’s been an important increase of the population in the last 50 years and it has grown at an accumulative annual rate of 3.5%.The projections from the United Nations for the year 2025 show a decrease in the population growth rate estimated in 1.1% annually.TourismThe tourism flow during the year 2006there’s been an important increment in the number of tourists who visited Argentina, 15.3% respect to 2005, whereas it the number of people who travelled abroad didn’t change much (eventhough this period is characterized for being historically the most important for tourism).It is important to notice that the flow of tourism is not a phenomenon per sei but a refection of the growth that has been taking place since 2004, as can be seen in the graphic.The balance as regards tourism from 2006 is 37.2% than 2005 and 80% than 2004.European tourists remain the main segment in the IN tourism, 25.4%; followed by Brazil 18%, USA, Canada and the rest of America 15.7%per segment. Tourists from Chile 13%. The rest of the world 8.6% of tourists. Finally, the rest of the bounding countries 3.6%.As regards overnight stayings expenses per tourist, the higher average belongs to tourists from Chile, U$S 130. Though tourists from USA and Canada were the ones who spent more in 4 and 5 star hotels (U$S 230.70).The average stayings in the 1° quarter of 2008 was of 14.1 days, which surpassed the average of the same period the previous year which was 13.7 days. European tourists are the ones who stayed longer (22.9 days), influenced by those who stayed at friends or relatives, those surpassed the month.The average expenses per traveller in this period was U$S 1.062, similar to the previous year.The province of Buenos Aires is the most populated of Argentina, almost 14 millions of inhabitants according to the National Census of 2001. It is situated to the east, in the center to the country; among its borders we find the provinces of de Córdoba, La Pampa, Río Negro, Entre Ríos and Santa Fe, as well as the Autonomous City of Buenos Aires which capital is the city of La Plata.Demographically, the province is constitued by a great part of Gran Buenos Aires, with 9.270.661 of inhabitants; more than the rest of the country inhabitants which are 4.556.542.

Argentina’s origin is based in a big influence of European countries. It is very similar in the culture and architecture to France, Spain and Italy. After all the crisis, Argentina recovers and flourishes with all the glamour and beauty as this country can give. Argentina enjoys of one of the nicest weathers in the world. The Pampas is basically a flat huge province (Buenos Aires), that enjoys various rains and makes it a very profitable place. Grain and cattle are big business. A huge income, tied to an important culture, results in a very interesting country with history, sports, tourism and culture.

Stabling your horses in La Dolfina Polo Ranch has never been easier. Top designers will build barns for horses including groom accommodation, tack room, storehouse and sheds for your comfort and your horses’.Perfectly conceived exercise tracks, easy access and maneuvering spots, and all the facilities that a Polo Club must have, following the vast experience of La Dolfina Polo Club, the Polo Ranch is one of the most complete projects of premier polo.

If you are a polo enthusiast ,a horse and outdoor life lover, La Dolfina Polo Ranch is the place for you.  Located 45 minutes from Buenos Aires city, La Dolfina Polo Ranch is the most exclusive development in the polo world. It is situated where the best polo player in the world and history chose to live. La Dolfina Polo Ranch is neighbor with La Dolfina Polo Club, home of Cambiaso and center of polo on the area, where important exhibitions and tournaments are played during the Argentinean season.It is the opportunity for you to find your perfect place, with three spectacular kinds of plots for you to choose from: Plots with your private polo fields, plots overlooking a central lake and plots with a shared polo field. And all the facilities you can imagine including a polo stadium, a boutique hotel and a club house.

The proven Buenos Aires – Argentina lawyer professionals at the Kier Joffe law firm have experience working with foreign clients involved in all kind of cases in Argentina. Buenos Aires Argentina attorney professionals are knowledgeable in almost all the practice areas of law, to service its international cases in Buenos Aires Argentina. International clients will have the confidence of knowing that the case is being handled by an experienced and knowledgeable Buenos Aires  lawyer in Argentina.

www.kierjoffe.com

 

 

Overseas Judgments and the Australian Jurisdiction – Enforcement & Recovery of Debts

Dealings by Australian businesses with international clients, suppliers and developers are increasing at a rapid rate.

One result of that trend is the need to take into consideration the enforcement of claims brought against overseas-based companies or individuals. Regardless of where one’s business is based, the enforcement of claims brought against overseas-based parties can be difficult, lengthy, expensive and ultimately deeply unsatisfying.  Consideration of such issues, and of the steps that may be taken to improve the prospects of a successful recovery process, is highly recommended as a proactive measure to be taken when setting up dealings with international parties.

When seeking to enforce an Australian judgment in a foreign jurisdiction, the foreign jurisdiction’s laws on the enforceability of foreign judgments will govern the viability of the process. This article aims to provide a general background regarding the enforcement of Australian judgments in foreign jurisdictions, and the issues that typically arise.

 

Reciprocal Enforcement Arrangements

Australia is a party to reciprocal enforcement arrangements with many countries in respect of the enforcement of judgments obtained in Australian Courts. The Foreign Judgments Regulations (Cth) 1992, identifies those countries with which Australia reciprocal enforcement arrangements, including New Zealand, Germany, Japan and France. A notable exception is theUnited States, which situation persists despite the introduction of the Australia-United States Free Trade Agreement.

The terms of reciprocal enforcement arrangements differ from country to country. Reference must be had to the legislation of the relevant country in order to identify which Australian Courts (and, therefore, the judgments of those Courts) are recognised in that country, and to identify the applicable enforcement process.  A major benefit of there being an applicable reciprocal enforcement arrangement is the enforcing court will be unlikely to require that the merits of the Australian Court’s decision be re-visited.

Typically, when seeking to enforce an Australian judgment in a foreign jurisdiction with which Australia has a reciprocal enforcement arrangement, the judgment must:

• be final and conclusive – it is worth noting that in some foreign jurisdictions, even if an appeal of the Australian judgment is pending, the judgment may be viewed as ‘final and conclusive’ for purposes of seeking enforcement in those foreign jurisdictions.  Special rules may apply to default judgments;
• concern a matter regarding which the Australian Court held the jurisdiction to hear;
not conflict with local public policy in the jurisdiction in which enforcement of the judgment is sought – i.e. the terms of the Australian judgment, or the claim(s) determined by that judgment concern matters must not offend the public policy of the jurisdiction in which enforcement of the judgment is sought.  For example, judgments awarding exemplary damages are not recognised in some countries, and statutory interest attaching to Australian judgments may not be enforceable in countries that follow Sharia Law, which is often the case in Middle Eastern countries such as the United Arab Emirates;
– be a money judgment – i.e. the judgment cannot be an equitable order for an injunction or for specific performance;
– be made in respect of proceedings for which proper notice had been given – i.e. notice had been properly served on the overseas-based debtor pursuant to the procedural rules of the Australian Court that issued the judgment; and
– be given by a Court that is recognised as a court of sufficient standing by the foreign jurisdiction – i.e. whilst judgments given by the superior courts (e.g. the Supreme and Federal Courts) are generally recognised, reciprocal enforcement arrangements do not always provide that all Australian Courts will be recognised.

Access to the enforcement processes in a foreign jurisdiction is entirely dependant upon the laws of that country. Generally, a verified copy of the original Australian judgment, together with a translation of the judgment into the official language of the foreign country, should be provided to the applicable judicial body, together with:

– an affidavit setting out the particulars of the debt that is the subject of the Australian judgment and identifying the location of the overseas debtor; and
– written submissions confirming that the Australian judgment meets the substantive requirements of the relevant reciprocal enforcement agreement.

Non-Reciprocal Enforcement Arrangement Jurisdictions 

In foreign jurisdictions for which reciprocal enforcement arrangements are not in effect, generally the judicial authorities will not recognise Australian judgments as being the final determination on the merits of the claims raised in the Australian proceedings.  It is highly likely the merits of the Australian judgment will be re-examined by the judicial authorities of the foreign jurisdiction, potentially requiring a complete re-prosecution of the original claim.

In addition to any factual defences the overseas debtor might raise against the claim, the debtor may also be entitled to raise defences such as lack of jurisdiction, fraud, public policy considerations that are local to the foreign jurisdiction in which proceedings have been commenced, and denial of natural justice.

International Arbitration – an Alternative 

For cross-border commercial dealings, private arbitral proceedings are a commonly accepted alternative to the prosecution of claims through the court systems.  A prerequisite to taking a matter in dispute to arbitration is the parties’ agreement to accept arbitration.  Generally, the parties will make such an agreement when they enter into the contract that governs their commercial dealings.  Contracts that contain provisions to resolve disputes by arbitration typically set out the terms by which the rules governing the arbitration are selected, the body of law governing both the contract and the arbitral proceedings, the arbitral venue, the language in which the proceedings will be conducted, and perhaps most importantly, the parties’ agreement that arbitral awards will be binding on the parties and may be enforced in any courts that have jurisdiction over the party against which enforcement is sought.  That the parties did not agree at the time of contracting to accept arbitration does not preclude their later agreeing to do so, but this may lessen the likelihood of the parties agreeing to accept arbitration when a dispute arises.  Acceptance of arbitration as an alternative to pursuing claims through the courts is also becoming more common in purely domestic commercial dealings.

The election to resolve matters in dispute through arbitration proceedings often yields a number of benefits to the parties such as; the dispute may be heard by an industry specialist, the proceedings are frequently implemented much more quickly and then heard in less time, the avenues of appeal are limited, and the cost of arbitration often works out to be a fraction of the cost of proceedings conducted through the courts.

The Convention on the Recognition and Enforcement of Foreign Arbitral Award (“New York Convention”) and the UNCITRAL Model Law on International Commercial Arbitration (“UNCITRAL Model Law”)obligates courts from participating countries to recognise and enforce private arbitral awards made in a country that is a party to the New York Convention. At the time of writing, more than 140 countries are parties to the New York Convention. By contrast, there are only some 30 countries that have reciprocal enforcement arrangements with Australia.

The New York Convention identifies a range of grounds upon which a party against whom an arbitral award has been made, may seek to persuade a foreign court not to enforce the award.  These include; the party was subject to some incapacity, recognition and enforcement of the award is contrary to the public policy of the country in which enforcement is sought, or the award dealt with matters that fell outside the matters submitted for arbitration.

Given the wide acceptance of the New York Convention and its relatively straightforward operation, providing for resolution of disputes by arbitration in international commercial dealings is certainly worth considering, particularly where the counterparty is domiciled in a country, such as the United States, that does not have a reciprocal enforcement agreement with Australia.

Our top lawyers in Buenos Aires Argentina can advise parties both in respect of debt recovery and claims enforcement options available when dealing with a overseas-based parties as well as when negotiating appropriate terms of agreements to frame your commercial dealings with parties situated outside Australia.

The best Law firm, top Lawyers in Buenos Aires, Argentina, Attorneys, Advocates, Solicitors and Barristers.

The proven Buenos Aires – Argentina lawyer professionals at the Kier Joffe law firm have experience working with foreign clients involved in all kind of cases in Argentina. Buenos Aires Argentina attorney professionals are knowledgeable in almost all the practice areas of law, to service its international cases in Buenos Aires Argentina. International clients will have the confidence of knowing that the case is being handled by an experienced and knowledgeable Buenos Aires  lawyer in Argentina.

www.kierjoffe.com

Criminal Lawyer Buenos Aires – Argentina Attorney Law Firm

The proven Buenos Aires – Argentina criminal lawyer professionals at the Kier Joffe Law Offices law firm have experience working with foreign clients involved in a criminal claim in Argentina. Buenos Aires criminal attorney professionals are knowledgeable in all areas of general criminal law, including but not limited to burglary, homicide and forgery cases in Buenos Aires Argentina. International clients will have the confidence of knowing that the case is being handled by an experienced and knowledgeable Buenos Aires criminal lawyer.

Contact a Buenos Aires Criminal Attorney with Experience in Many Types of Criminal Acts:

• Burglary
• Capital Offense
• Criminal
• Criminal Fraud
• DUI/DWI
• Extortion
• Forgery
• Habeas Corpus
• Homicide
• Mail Fraud
• Manslaughter
• Parole and Probation
• Search and Seizure
• Sexual Assault
• Shoplifting
• Theft
• Traffic Violations
•Wiretapping

Argentina criminal law underlines the rules of law established by state and federal governments to set a standard of conduct for people to obey. Any action or failure to act in violation of a law commanding or forbidding it is classified a “crime”. A crime is defined as conduct that threatens, harms or endangers the safety of people and is split into four major sub-categories: fatal offenses, personal offenses, property offenses and participatory offenses.

Fatal offenses typically revolve around homicide and manslaughter, while personal offenses deal with instances of assault and battery, rape and sexual abuse. Property offenses in Argentina include breaking and entering, burglary and theft. Aiding in a criminal act would result in a participatory offense.

In Criminal Defense Law, the suit is initiated by the province or federal government through a prosecutor rather than being initiated by the victim. Plaintiffs in a civil law suit only need to show by a preponderance of the evidence that a defendant is liable (responsible) for the damages. But, the prosecutor in a criminal defense law case has to prove to the judge “beyond a reasonable doubt” that the defendant is guilty of the crime charged.

Kier Joffe Law Offices The Buenos Aires Criminal Lawyer Source

The Buenos Aires criminal lawyer professionals of Kier Joffe Law Offices law firm are distinguished by a history of successful criminal law claim recoveries and resolutions. If you or your family is involved in a dispute over criminal conduct, please call a Buenos Aires criminal attorney with the Kier Joffe Law Offices law firm in Argentina .

The proven Buenos Aires – Argentina lawyer professionals at the Kier Joffe law firm have experience working with foreign clients involved in all kind of cases in Argentina. Buenos Aires Argentina attorney professionals are knowledgeable in almost all the practice areas of law, to service its international cases in Buenos Aires Argentina. International clients will have the confidence of knowing that the case is being handled by an experienced and knowledgeable Buenos Aires  lawyer in Argentina.

www.kierjoffe.com

Wills, probate and inheritance in Argentina

Taxation

Tax year and payment dates

1. When does the official tax year start and finish in your jurisdiction and what are the tax payment dates/deadlines?

For income tax purposes, the official tax year for individuals starts on 1 January and ends on 31 December.

Domicile and residence

2. What concepts determine tax liability in your jurisdiction (for example, domicile and residence)? In what context(s) are they relevant and how do they impact on a taxpayer?

Domicile

For individuals, the domicile is the individual’s principal place of residence and business (Argentine Civil Code). When the principal place of residence differs from the principal place of business, the tax regulations provided that the domicile for tax purposes will be the principal place of business. For tax purposes, the domicile is relevant for receiving notices from the tax authority but is not used to determine tax liability.

Residence

Residence determines the manner in which an individual is taxed in Argentina. Whenever an individual, under the relevant rules of each tax (in particular, income tax and tax on personal assets), is deemed to be a resident of Argentina, the tax is levied on a worldwide basis (either on worldwide sourced income or the assets owned worldwide by the taxpayer) rather than on an exclusively Argentine basis. Resident individuals must file tax returns with the Argentine Tax Authority. Non-resident individuals are solely taxed on their Argentine-sourced income (through withholding) and on their Argentine-based assets.

Under Argentine income tax law, the following are considered Argentine residents for tax purposes:

– Argentinean individuals, whether native or naturalised, except for those that no longer hold a “permanent resident” status either because:

i. they became permanent residents of another country under that company’s immigration rules; or

ii. due to a continued residence abroad for a continuous period of 12 months. Short trips to Argentina are deemed not to interrupt the 12-month continuous residence period if they do not cumulatively exceed 90 days in a 12-month period.
Foreign individuals that have a permanent resident visa or individuals who have remained in Argentina for 12 months while holding temporary visas. If absences from Argentina do not cumulatively exceed 90 days in the 12-month period, the permanent residence period is deemed to be uninterrupted. However, foreigners who must remain in Argentina by reason of their employment for a period not exceeding five years (as well as their relatives) will not be considered to be Argentinean residents.

Under certain circumstances, individuals re-entering Argentina with the intention of residing permanently in Argentina will be considered to be Argentinean residents. This will even apply if they had previously lost their residence status in Argentina or if they acquired status as a permanent resident elsewhere.

Taxation on exit

3. Does your jurisdiction impose any tax when a person leaves (for example, an exit tax)? Are there any other consequences of leaving (particularly with regard to individuals domiciled in your jurisdiction)?

There are no exit taxes in Argentina. There are no other consequences of leaving, except that it is necessary to file a special tax return for the irregular period closing the date in which the individual leaves the country. Once an individual is no longer an Argentine resident, he:

– No longer has to pay income tax on a worldwide source basis and is only taxed, through withholding, on his Argentine-sourced income.
– Is no longer subject to personal assets tax on his worldwide assets but solely on his Argentine-based assets.

Citizenship does not necessarily determine tax liability. For example, an individual that resigns Argentinean citizenship but remains a resident of Argentina is still subject to tax in Argentina on his worldwide assets and income.

Temporary residents

4. Does your jurisdiction have any particular tax rules affecting temporary residents?

Foreigners who must remain in Argentina by reason of their employment for a period not exceeding five years (as well as their relatives) will not be considered to be Argentinean residents (see Question 2, Residence). Certain treaties to avoid double taxation also address the issue of temporary residents (see Question 14).

Taxes on the gains and income of foreign nationals

5. How are gains on real estate or other assets owned by a foreign national taxed? What are the relevant tax rates?

There is no capital gains tax on individuals in Argentina. Therefore, in principle, tax is not charged on the sale of real estate or other assets when the seller is a foreign individual.

However, if the foreign individual is usually engaged in buying and selling assets, he will be deemed an individual “enterprise” (which is not expressly defined in the Income Tax Law) and income tax is withheld on the total amount received by the seller on the sale of real estate at an effective rate of 17.5%. Alternatively, the foreign seller can file a special tax return with the tax authority to evidence the actual profit derived from the sale, and apply income tax at the rate of 35% on the net proceeds (see Question 6).

When the sale of real estate is not subject to income tax (whether made by an Argentine individual or a foreign individual), the seller is subject to a special tax on the transfer of real estate at the rate of 1.5% of the amount of sale.

Certain stamp taxes apply on the instrument (that is, public deed (escritura)) evidencing the sale. The buyer and seller customarily pay one-half each of those stamp taxes, which can be up to 4% of the sale price.

6. How is income received by a foreign national taxed? Is there a withholding tax? What are the income tax rates?

Generally, any income or profit obtained by foreign beneficiaries (as non-Argentine resident individuals are referred to under income tax regulations), which is deemed to be Argentine-sourced, is subject to withholding tax. Withholding tax does not apply on dividends paid by Argentine companies or to profits obtained from permanent establishments in Argentina.

For resident individuals, the income tax charged on a sliding scale that starts at 9% for individuals making up to ARS10,000, and goes up to 35% for individuals making more than ARS120,000. For any other taxpayer (including foreign beneficiaries) the rate of the tax is 35%.

To determine the tax liability of a foreign beneficiary, the Income Tax Law establishes a series of non-rebuttable presumptions of net income on the gross amounts paid, that varies depending on the kind of payment made by the local resident (who must act as withholding agent), including:

– 60% of the amounts paid for technical, engineering or consulting services that are not obtainable in Argentina and fulfil the requirements established by the Transfer of Technology Law (as the tax rate is 35% this amounts to an effective tax rate of 21% on the income).
– 80% of other amounts paid under the Transfer of Technology Law (effective rate: 28%).
– 35% of the royalties paid for the exploitation of copyright in Argentina (effective rate: 12.25%).

-100% in the case of interest. However, 43% (effective rate: 14%) is deemed to be the net income of Argentine source where the:

i. borrower is a financial institution;
ii. lender is a bank or financial institution located in a non-tax haven jurisdiction;
iii. interest relates to certain bonds that are registered in countries with which Argentina has concluded investment protection agreements.
– 40% of the amounts paid for renting movables goods in Argentina (effective rate: 14%).
– 60% of the amounts paid for renting real estate in Argentina (effective rate: 21%).

Finally, if the concept of the income is not expressly set out in the Income Tax Law, 90% is deemed net income of Argentine source (effective rate: 31.5%).

Argentina has entered into treaties to avoid double taxation with various countries (see Question 14).

Inheritance tax and lifetime gifts

7. What is the basis of the inheritance tax or gift tax regime (or alternative regime if relevant)?

There are no federal inheritance or gift taxes in Argentina. Only one jurisdiction (the province of Buenos Aires) has imposed an inheritance and gift tax on the amount received by the beneficiary. This tax is applicable as from January 2010, and is charged on assets:

– Located in the province (even if the owner is not domiciled there).
– Transferred to individuals or legal entities domiciled in the province.

The tax rate will depend on the amount received by the beneficiary and his relationship with the deceased.

8. What are the inheritance tax or gift tax rates (or alternative rates if relevant)?

Tax rates

Tax is payable on the amount received, at progressive rates from 4% to 21.92%.

Tax free allowance

There is a tax-free allowance of ARS50,000 on the aggregate of the lifetime gifts of an individual and the gifts at the time of death. This amount is increased to ARS200,000 when the receiving party is the spouse, child or parent of the transferor.

In addition, in relation to inheritance tax, the debts of the deceased existing at the time of his death, and funeral expenses, are deductible from the amount transferred to the beneficiary.

Exemptions

The following are exempt from inheritance or gift tax:

– Any transfers in favour of the national government, the provinces or the City of Buenos Aires or any municipality or any body of these institutions.
– Gifts to religious, public health, social assistance, cultural or public welfare institutions, provided those institutions comply with certain conditions.
– Transfer of art or other objects that have a historic, scientific or cultural value, as long as the deceased has transferred the property on the basis that the art or object is to be used for instruction or public exhibition purposes.
– Transfer of collections of books, newspapers, magazines or other periodic publications.

– Transfer on death of the household registered under the Family Household Protection Act (Law N° 14,934) when:

i. the transfer is made in favour of the spouse, descendants, ascendants or collateral relatives up to the third degree of relationship with the deceased;
ii. they lived with the deceased;
iii. the registration of the property under the Family Household Protection Act is maintained for at least five years after the death.

– Transfer on death of urban real estate that is used as the household, when the:

i. transfer is made in favour of the spouse, ascendants or descendants (including adopted children);
ii. property does not exceed a certain valuation, established by the province on an annual basis.

– Transfer on death of an enterprise when the:

i. aggregate gross income of the fiscal year before the year of death exceeds a certain figure established annually;
ii. transfer is made in favour of the spouse, ascendants or descendants (including adopted children);
iii. acquiring parties maintain the enterprise in activity for five-year period following the deceased’s death.

Techniques to reduce liability

The simplest way to avoid inheritance or gift tax liability is to avoid being domiciled in the province of Buenos Aires, and to own assets through a company domiciled outside of the province of Buenos Aires.

Other

Not applicable.

9. Does the inheritance tax or gift tax regime apply to foreign owners of real estate and other assets?

If the assets are located in the province of Buenos Aires, the tax applies even if the owner does not reside in Argentina.

10. Are there any other taxes on death or on lifetime gifts?

There are no other taxes on death or on lifetime gifts.

Taxes on buying real estate and other assets

11. Are there any other taxes that a foreign national must consider when buying real estate and other assets in your jurisdiction?

Purchase and gift taxes

The provinces impose stamp tax on the public deed required to transfer real property (see Question 5). The rate varies depending on the province, and ranges from 2% to 4% of the price paid for the property being transferred.

In addition, there is a special tax on the transfer of real estate that applies when the sale is not subject to income tax (that is, when the sale is made by an individual rather than an enterprise). The rate of the tax is 1.5% applicable of the price paid.

Wealth taxes

The Personal Assets Tax applies to foreign individuals holding property (whether real estate, movable property or intangible property) in Argentina. The rate of the tax is 1.25% and it is levied on an annual basis. When the owner of the real estate is a foreigner, there are certain methods of substitution that impose the obligation to pay the tax on the local resident that has the administration of the asset.

Other

Each of the provinces and the city of Buenos Aires (which has an autonomous status, as if it were a province) levy a tax on real estate. The tax is imposed on the fiscal valuation of the real estate and the rate varies depending on the valuation of the property.

12. What tax-advantageous real estate holding structures are available in your jurisdiction for non-resident individuals?

The simplest holding structure is to have a special purpose foreign company to own the real estate in Argentina. This company must be set up in a country that does not tax capital gains (or at least does not tax the capital gains stemming from the sale of equity instruments). There are no local rules that deem the sale of this special purpose company a sale of real estate in Argentina.

Taxes on overseas real estate and other assets

13. How are residents in your jurisdiction with real estate or other assets overseas taxed?

Local residents are taxed on their worldwide income; however, capital gains are not subject to tax, except when the individual usually trades in selling and buying real estate or assets (see Question 5).

International tax treaties

14. Is your jurisdiction a party to many double tax treaties with other jurisdictions?

Argentina has entered into double taxation treaties, although some have been recently cancelled or repealed (such as the ones entered into with Spain and Austria). Current treaties include treaties with: Australia, Belgium, Bolivia, Brazil, Canada, Denmark, Finland, France, Germany, Italy, The Netherlands, Norway, United Kingdom, Sweden and Switzerland.

Wills and estate administration

Governing law and formalities

15. Is it essential for an owner of assets in your jurisdiction to make a will in your jurisdiction? Does the will have to be governed by the laws of your jurisdiction?

It is not essential for an owner of assets in Argentina to make a will in Argentina. Where no will is present, forced heirship and intestacy rules apply (see Questions 24 to 29). In Argentina, it is not usual to have wills or testaments, except for certain wealthy individuals. There is no requirement for the will to be governed by the laws of Argentina, although the provisions of a foreign law are only applied where they do not violate Argentine public policy (for example, forced heirship rules).

16. What are the formalities for making a will in your jurisdiction? Do they vary depending on the nationality, residence and/or domicile of the testator?

The formalities for making a will in Argentina are the same, regardless of the nationality, residence and/or domicile of the testator.

There are three different ways in which wills can be made (Argentine Civil Code):

1. Handwritten testament (testamento ológrafo). This must be completely handwritten, signed and dated by the testator.
2. Public deed testament (testamento por acto public). This must be notarised by a public notary, with three witnesses that insert their signature in the public deed.
3. Closed testament (testamento cerrado). This does not have to be completely handwritten by the testator, although it must bear the testator’s signature. In addition:it must be given in a closed
i. envelope to a public notary in the presence of five witnesses;
ii. the testator must say aloud that the closed envelope contains his will.

Redirecting entitlements

17. What rules apply if beneficiaries redirect their entitlements?

Beneficiaries are not entitled to redirect their entitlements.

Validity of foreign wills and foreign grants of probate

18. To what extent are wills made in another jurisdiction recognised as valid/enforced in your jurisdiction? Does your jurisdiction recognise a foreign grant of probate (or its equivalent) or are further formalities required?

Validity of foreign wills

Wills made in a foreign jurisdiction are recognised as valid, as long as they comply with the law of the place in which the wills were made. Substantive provisions, however, must comply with Argentine law (in particular, forced heirship) to be enforceable in Argentina. The law will also enforce wills made by foreigners outside of Argentina if the will complies with the formalities of the place of residence of the testator, his country of nationality, or those of Argentina.

Validity of foreign grants of probate

As with foreign wills, foreign grants of probate will be recognised in Argentina if they comply either with Argentinean laws or the relevant foreign law (see above, Validity of foreign wills). No further formalities are required.

Death of foreign nationals

19. Are there any relevant practical estate administration issues if foreign nationals die in your jurisdiction?

The issues depend on whether the foreign national’s last domicile was in Argentina or not and whether he had any assets in Argentina. If he was domiciled in Argentina, Argentine rules apply and a court-based procedure (sucesión) must be followed. This also applies if he has assets in Argentina.

Administering the estate

20. Who is responsible for administering the estate and in whom does it initially vest?

Responsibility for administering

The court appoints an administrator of the estate (usually, the surviving spouse or an heir or a group of heirs) that has limited authority to carry on acts that are:

  • Necessary to preserve the estate.
  • Ordinary, considering the nature of the goods and assets that are being administered.

The administrator, in principle, has no authority to sell, mortgage, pledge or otherwise dispose of or encumber the goods and assets.

Vesting

A court procedure must be followed to finally declare the legitimate heirs of the deceased. When the court makes that declaration, the estate is deemed to have vested directly and immediately from the deceased to each of its heirs.

21. What is the procedure on death in your jurisdiction for tax and other purposes in relation to:
  • Establishing title and gathering in assets (including any particular considerations for non-resident executors)?
  • Paying taxes?
  • Distributing?

Establishing title and gathering in assets

Any and all heirs are entitled to establish title and gather in assets. However, everything must be done through the court procedure and with the control of the judge. There are no particular considerations for non-resident executors in this aspect, since court participation is mandatory. If a non-resident executor has been appointed, the court will probably require from him a local address for service of process.

Procedure for paying taxes

Until the court procedure is ended, the administrator is responsible for filing tax returns and paying taxes on behalf of the estate. Failure to do so could make the administrator jointly and severally liable for any unpaid taxes.

Distributing the estate

The court distributes the estate in the court procedure (see above, Establishing title and gathering in assets). The court decides how the distribution is to be made or grants authority to distribute the estate to the testator or the executor.

22. Are there any time limits/restrictions/valuation issues that are particularly relevant to an estate with an element in another jurisdiction?

In principle, there are no time limits, restrictions or valuation issues that are particularly relevant to an estate with an element in another jurisdiction.

When the estate involves elements in different jurisdictions, certain “offset” provisions of the Argentine Civil Code might be relevant, depending on the facts. Heirs of the deceased that reside in Argentina would be entitled to a larger portion of the assets that are located in Argentina if, due to the application of foreign law, they were deprived of assets located abroad (or a portion of those assets) that should have, under Argentine Law, been allocated to them under the forced heirship regime (see Question 24). Therefore, if a foreign resident dies leaving assets in both Argentina and in his home country, and through a will deprives an heir who resides in Argentina of his statutory reserved portion under Argentine Law, that heir is entitled to the additional portion of the Argentine assets, equal to the value ascribed to the deprived portion (see Question 24).

23. Is it possible for a beneficiary to challenge a will/the executors/the administrators?

A beneficiary is entitled to challenge the:

i. Will, when it affects the portion that Argentine Law mandatorily reserves for forced heirs.
ii. Executors, when their acts affect the portion that Argentine Law mandatorily reserves for forced heirs or when they depart from the instructions contained in the will.
iii. Administrators, when they perform their duties in excess of their authority or without fulfilling the “good businessman” standard.

Succession regimes

24. What is the succession regime in your jurisdiction (for example, is there a forced heirship regime)?

Argentina has a forced heirship regime that is deemed part of public policy. Any provisions of the parties (either by the deceased or the heirs) against it are invalid and of no force and effect. There are precedents in Argentine courts in which forced heirship claims have been admitted against trust assets.

Forced heirs (ascendants, descendants, spouses and others) cannot be deprived of a certain portion of the deceased’s estate (except where one of the few statutory causes for disinheritance are present and invoked by the decedent in the will). These portions are:

  • i. Children and their issue: four-fifths of the total assets of the deceased.
  • ii. Ascendants (where there are no children): two-thirds of the assets of the deceased.
  • iii. Spouse (where there are no ascendants or descendants): one-half of the assets of the deceased.

In relation to the intestacy rules, see Question 28.

Forced heirship regimes

25. What are the main characteristics of the forced heirship regime, if any, in your jurisdiction?

Avoiding the regime

There are no ways to avoid the regime and judges are reluctant to admit structures that defeat the forced heirship rules.

Assets received by beneficiaries in other jurisdictions

Assets received by beneficiaries in other jurisdictions are taken into account (see Question 22).

Mandatory or variable

Any agreement entered into between future beneficiaries during the deceased’s life is null and void. Argentine law forbids any agreement regarding the future estate.

Real estate or other assets owned by foreign nationals

26. Are real estate or other assets owned by a foreign national subject to your succession laws or the laws of the foreign national’s original country?

Title to real property located in Argentina may only be passed in accordance with Argentine law. It is unclear, however, if this applies solely to transfers between living persons or if it should also apply in the case of transfer by death. However, most Argentinean court decisions have held that it applies to both.

 

27. Do your courts apply the doctrine of renvoi in relation to succession to immovable property?

The Argentine courts may, where the case concerns immovable property located in Argentina, accept a reference back to their jurisdiction; however, this is a complex area of law.

Intestacy

28. What different succession rules, if any, apply to the intestate?

The intestacy succession rules depend on the surviving relatives.

i. There are surviving descendants but there is no surviving spouse. The children are entitled to the entire estate. If any of the children have predeceased but have surviving issue, the share that would have been allocated to that child goes to his or her issue per stirpes (in equal proportions).
ii. There is a surviving spouse and surviving descendants. One-half of the deceased’s “marital” property is distributed to the surviving spouse and the other half is transferred entirely to the children (in relation to marital property, see Question 37). The deceased’s “own” property is distributed in equal portions among all of the children and the surviving spouse.
iii. There are surviving ascendants but no surviving descendants or a surviving spouse. The whole estate passes to the surviving ascendants. In this case, the closer generations exclude the inheritance rights of the further generations (for example, the grandfather is excluded if the father survived).
iv. There is a surviving spouse and surviving ascendants but no descendants. The surviving spouse is entitled to one-half of the marital and one-half of the own property of the deceased. The other half goes to the ascendants.
v. There is a surviving spouse but no surviving ascendants or descendants. The surviving spouse is entitled to the whole estate.
 vi. There are no surviving ascendants or descendants, and there is not a surviving spouse. The collaterals (until the fourth degree of relationship) are entitled to the estate.

29. Is it possible for beneficiaries to challenge the adequacy of their provision under the intestacy rules?

It is not possible for beneficiaries to challenge the adequacy of their provision under the intestacy rules.

Trusts

30. Are trusts (or an alternative structure) recognised in your jurisdiction?

Type of trust and taxation

Law No. 24,441 (Trust Act), enacted in December 1994, established the regulation for trusts in Argentina. Trusts under the Trust Act depend on the concept of revocable property (dominio revocable) and have certain differences with the common law concept of trust.

Generally, the Trust Act considers two types of trusts, a financial trust and an ordinary trust. The difference between the two depends on the person acting as trustee. If it is a financial trust, the trustee must be a financial entity or a corporation specifically authorised by the Argentine Securities Commission to act as financial trustee.

Residence of trusts

In general terms, if the trust is set up under Argentine law, it is deemed a resident of Argentina for tax purposes.

 

31. Does your jurisdiction recognise trusts that are governed by another jurisdiction’s laws and are created for foreign persons?

Argentina recognises trusts that are governed by another jurisdiction’s laws and are created for foreign persons.

32. What are the tax consequences of trustees (for example, of an English trust) becoming resident in/leaving your jurisdiction?

If any foreign entity (including a trust) becomes resident in Argentina, it is subject to tax in the same manner as an Argentine corporation.

33. If your jurisdiction has its own trust law:

– Does the law provide specifically for the creation of non-charitable purpose trusts?
– Does the law restrict the perpetuity period within which gifts in trusts must vest, or the period during which income may be accumulated?
– Can the trust document restrict the beneficiaries’ rights to information about the trust?

Purpose trusts

The Trust Act does not include specific provisions regarding non-charitable purpose trusts. However, Argentine law distinguishes between an act that is gratuitous from an act which is made for a consideration that has certain legal effects such as, for example, a fraud of creditors, which may be relevant in the context of transfers to trusts.

Perpetuities and accumulations

A trust has a maximum term of 30 years from the date on which it was created. The restriction does not apply where the beneficiary is not capable, in which case the trust can extend until the incapacity ceases or the person with the incapacity dies. There are no regulations regarding the period within which income must be accumulated.

Beneficiaries’ rights to information

The Trust Act does not include any information rights in favour of the beneficiary that cannot be contractually restricted. However, the statute does prohibit any provision that would release the trustee from liability incurred due to the non-performance of his duties.

 

34. Does the law in your jurisdiction recognise claims against trust assets by the spouse/civil partner of a settlor or beneficiary on the dissolution of the marriage/partnership?

In relation to marital property, the spouse would not be entitled to claim against trust assets in the case of dissolution of the union (that is, divorce or death of one of the spouses). However, the spouse could, depending on the circumstances, be entitled to make a claim directly against the other spouse at the time of dissolution. When the trust was settled with own property, and the settlor dies, the forced heirship rights apply (see Question 24).

35. To what extent does the law of your jurisdiction allow trusts to be used to shelter assets from the creditors of a settlor or beneficiary?

Where a trust is used to shelter assets from the creditors of a settlor or beneficiary, fraudulent conveyance rules can be used under the Trust Act to invalidate the transaction.

Ownership and familial relationships

Co-ownership

36. What are the laws regarding co-ownership and how do they impact on taxes, succession and estate administration?

The Argentine Civil Code establishes the co-ownership rules (condominio). Those rules do not have any relevant impact on taxes, succession and estate administration, except in connection with the co-ownership rules applicable to the “marital” property, in which one of the spouses is responsible for filing the tax returns on that property. Generally, any co-owner has the right to require the dissolution of the co-ownership (even if it requires the sale of the good). There are few cases in which the right to dissolve the co-ownership does not apply.

Familial relationships

37. What matrimonial regimes in trust or succession law exist in your jurisdiction? Are the rights of cohabitees/civil partners in real estate or other assets protected by law?

Generally, the matrimonial regime in Argentina (which applies to all couples that married in Argentina, as long as their initial domicile was in Argentina) provides that all property (whether tangible or intangible) that was acquired by any of the spouses during the marriage is “marital property” (bienes gananciales). However, property that was received as a gift remains the own property of the spouse that received it. The marital property relates to the marriage “partnership” and, on dissolution, is distributed between the partners (spouses) by halves.

There are no relevant protections for cohabitees or civil partners (except for the case of same-sex civil unions, which were formalised by statute in 2010) (see Question 38).

38. Is there a form of recognised relationship for same-sex couples and how are they treated for tax and succession purposes?

Same-sex unions were legalised by statute in 2010. As this is a recent development, no case law exists. However, regulations passed under the statute establish that the tax and succession treatment must be the same granted to a heterosexual marriage.

39. How are the following terms defined in law:
  • Married?
  • Divorced?
  • Adopted?
  • Legitimate?
  • Civil partnership?

Married

Marriage is defined as a person that is united to another of the opposite sex, as husband or wife, in a consensual and contractual relationship recognised by law, and in which the consent is usually expressed in the presence of a public officer. There are certain “marital duties” that the spouses must comply with (such as fidelity, maintenance payments, and residing in the same house).

Divorced

A divorce is the final termination of a marital union. It is declared by a judge in a formal procedure, and it cancels the marital duties and dissolves the marital “partnership”.

Adopted

An adopted child is one that was taken into a family that is different to the one of its parents after a legal process was followed under the Argentine Adoption Act. The adopted child’s legal rights and obligations towards his natural parents are terminated and similar rights arise with the adoptive parents. Adopted children have the same legal status as children which are not adopted.

Legitimate

Formerly, a distinction was made between “legitimate” children (born from a married couple) and “natural” children (born with no marital union). Although the difference can still be found in certain sections of the Civil Code, legitimate, natural and adopted children have the same rights and status.

Civil partnership

Civil partnership is a legal union or contract, similar to a marriage, between two people of the same sex.

Minority

40. What rules apply during the period when an heir is a minor? Can a minor own assets and who can deal with those assets on the minor’s behalf?

Minors are represented, in general terms, by the surviving parent. If no parent survives, the court designates a representative (curador) to handle all the assets on the minor’s behalf. Disposition of assets usually requires court approval.

Capacity and power of attorney

41. What procedures apply when a person loses capacity? Does your jurisdiction recognise powers of attorney (or their equivalent) made under the law of other jurisdictions?

A court procedure is required to declare that a person has lost his capacity. The court appoints a curator to represent the incompetent person.

Generally, Argentina recognises powers of attorney made under the law of other jurisdictions. However, once a person is declared to have lost his capacity, under Argentine law any and all powers of attorney are terminated.

Proposals for reform

42. Are there any proposals to reform private client law in your jurisdiction?

Currently, a project to amend the Argentine Civil Code is being studied at the Congress. Although the project is complete, it is difficult to tell when (and if) it will be passed. However, although it does have effect on other areas of the civil law, it does not seem to affect significantly private client law.

The best Law firm, top Lawyers  in Buenos Aires, Argentina, Attorneys, Advocates, Solicitors and Barristers.

The proven Buenos Aires – Argentina lawyer professionals at the Kier Joffe law firm have experience working with foreign clients involved in all kind of cases in Argentina. Buenos Aires Argentina attorney professionals are knowledgeable in almost all the practice areas of law, to service its international cases in Buenos Aires Argentina. International clients will have the confidence of knowing that the case is being handled by an experienced and knowledgeable Buenos Aires  lawyer in Argentina.

www.kierjoffe.com