City of Buenos Aires, 05/08/2024
Having seen file EX-2023-45742450-APN-DNIP#MEC, and
CONSIDERING:
That Ledesma Sociedad Anónima Agrícola Industrial (CUIT No. 30-50125030-5) was declared a beneficiary of the Non-Industrial Promotion Regime provided for in article 36 in fine of law 24,764 and decree 494 of May 30, 1997, through annex II of decree 1491 of December 30, 1997 and resolution 1352 of October 16, 1998 of the former Ministry of Economy and Public Works and Services.
That the object of his project consisted of the planting of two hundred and forty hectares (240 ha) of orange trees with irrigation and fertilization in an establishment located in the Ledesma Department, Province of Jujuy, granting him the franchises provided for in article 11 of law 22.021 and its amendments.
That said project would be carried out through a total committed investment of one million two hundred seventy-two thousand three hundred pesos ($1,272,300), and must have a minimum staff of ten (10) permanent people and twenty-two (22) temporary people, numbers that should rise to twenty-four (24) and thirty-six (36), respectively, from the start-up, which should be reported before December 31, 2004.
That on April 20, 1999, within the scope of the former Ministry of Economy and Public Works and Services, the certificate of commencement of investment execution No. 31 was issued to the firm Ledesma SAAI, in accordance with the terms of articles 5 and 6 of resolution 325 of March 13, 1998 and articles 1 and 2 of resolution 164 of February 10, 1999, both of the former Ministry of Economy and Public Works and Services.
That the Federal Public Revenue Administration (AFIP), an autonomous entity then within the former Ministry of Finance, currently within the Ministry of Economy, carried out an audit of the promoted company, which was analyzed by the National Directorate of Promotional Incentives of the Undersecretariat of Public Revenue of the Secretariat of Finance of the Ministry of Economy, concluding that the firm had incurred in non-compliance related to the items of permanent and temporary staff -periods 2012 to 2014- and production -periods 2012 to 2014-.
That, consequently, on September 5, 2023, the head of the Undersecretariat of Public Revenue of the Ministry of Economy ordered the summary proceedings against Ledesma Sociedad Anónima Agrícola Industrial, within the framework of the provisions of resolution 221 of August 15, 2003 of the former Ministry of Economy and Production, for the alleged non-compliance detected in the project approved by Annex II of Decree 1491/97 and Resolution 1352/98 of the former Ministry of Economy and Public Works and Services.
That the Summary Investigation initiated the procedure for the application of sanctions approved by resolution 221/03 of the former Ministry of Economy and Production.
That in accordance with the provisions of article 8 of the annex of resolution 221/03 of the former Ministry of Economy and Production, Ledesma SAAI was given notice of the summary prepared, at which time he was granted a period of ten (10) administrative business days to present the facts and rights that would support his defense and offer the evidence that he intended to use.
That, when presenting the discharge, the company’s representative indicated, in relation to the staffing, the different ways through which the committed workforce can be increased, which in her opinion complied with the criteria established by the National Tax Directorate – Memorandum No. 78/07 – and which the National Directorate of Promotional Incentives adopts, with respect to the purpose pursued by the promotion regime.
In this regard, the company stated that it decided to reassign temporary staff to the fruit business to the new project, given that their experience was essential for the completion of the project, and at the same time new staff was incorporated into the fruit business in general; adding that the rules governing the promoted project do not refer to employing new labor, but rather to incorporating it into the project, which is why it considered that there has been no breach of its promotional obligation.
Regarding the committed production, he stated that, although he reported certain production levels that the project could reach, the obligations finally approved did not include a minimum production commitment, understanding for this reason that neither decree 1491/97 nor resolution 1352/98 of the former Ministry of Economy and Public Works and Services refer to the variable production, also indicating that his commitment referred to developing an economic activity in the Province in fruit, specifically citrus, and he fulfilled this obligation.
That, subsequently, the Summary Investigation complied with the provisions of articles 9 and 13 of the annex of resolution 221/03 of the former Ministry of Economy and Production to then analyze the alleged non-compliances imputed.
That, in relation to the charge referring to permanent and temporary staff, the Summary Investigation recalled that in the final report issued in the summary investigation that culminated with decree 736 of August 8, 2018, it ruled on what was alleged by Ledesma SAAI regarding the scope of the personnel obligation provided for by the promotional regime.
That, on that occasion, it indicated that by virtue of the criteria set forth by the National Tax Directorate in its memorandum No. 78/07, which was shared by the National Directorate of Promotional Incentives and the General Directorate of Legal Affairs of this Ministerial Portfolio, the examination of the obligation regarding the personnel involved would be carried out under the parameters indicated therein, which was again shared by the aforementioned National Directorate in the summary investigation in progress, which is why the Summary Instruction indicated that it is appropriate to once again carry out the analysis of the variable under study under such criteria.
That, in light of this, and by virtue of the documentation in the proceedings, the aforementioned Instruction shared the terms of the National Directorate of Promotional Incentives, regarding the fact that Ledesma SAAI failed to comply with permanent and temporary staff in the period 2012 to 2014, both included.
That, with regard to the variable annual production in the period 2012 to 2014, the Summary Instruction recalled that resolution 1352/98 of the former Ministry of Economy and Public Works and Services established as the object of the project the planting of two hundred and forty hectares (240 ha) of orange trees with irrigation and fertilization, with the annual production volumes detailed in the projected table, which is included in the proceedings by which the aforementioned act was processed.
That, in such order, the competent technical area indicated that, from the aforementioned projected table, it is clear that the committed annual production would be sixty tons per hectare (60 Tn/ha) starting from year ten (10) of the project (corresponding to calendar year 2011), which corresponds to a total of fourteen thousand four hundred tons per year (14,400 Tn/year) in two hundred and forty hectares (240 ha) of oranges.
That, the Summary Instruction recalled that article 11 of resolution 1352/98 of the former Ministry of Economy and Public Works and Services, established that the rights and obligations established in the aforementioned resolution, will be governed by the regulations indicated therein as well as by the actions by which the submitted project was processed.
That, likewise, after indicating that the National Treasury Attorney’s Office has said that “Administrative actions must be considered in their entirety, they are part of the procedure and are interdependent and connected to each other” (conf. Opinions 191:25; 207:155), the Summary Instruction stated that the projective table with the production volumes presented by Ledesma SAAI is an integral part of the promoted project.
That, consequently, and by virtue of the documentation in the proceedings, which was analyzed by the competent technical area, the Summary Investigation understood that the firm did not comply with the commitment assumed in the annual production committed in the years 2012 to 2014, both inclusive.
That, by virtue of this, the Instruction considered that it was appropriate to proceed in accordance with the provisions of articles 15 and 17, both where applicable, of law 22,021 and its amendments.
That, in accordance with the above, the National Directorate of Promotional Incentives, an area with specific jurisdiction in the matter, issued a statement regarding the graduation of the sanctions proposed by the Summary Instruction, indicating that, although the effective configuration of the material infractions leads to the application of the sanctions contemplated in the aforementioned articles, given that through decree 736/18 the firm was completely void of the promotional benefits granted, it would only be appropriate at this stage to enforce the relevant fine sanction.
That, consequently, and in accordance with the limits provided for in the applicable regulations, it indicated that, in order of magnitude of the verified infractions, the firm would be subject to a fine equivalent to eight point five percent (8.5%) of the total amount of the project investment for the verified non-formal non-compliances, in accordance with the provisions of the aforementioned article 17 of law 22.021 and its amendments.
That the permanent legal service of the Ministry of Economy has taken the intervention that is its responsibility.
That this measure is issued in use of the powers contemplated in article 16 of law 22.021 and its amendments and article 10 of decree 494/97.
Thus,
THE MINISTER OF ECONOMY
RESOLVES:
ARTICLE 1.- Ledesma Sociedad Anónima Agrícola Industrial (CUIT No. 30-50125030-5), declared a beneficiary of the Non-Industrial Promotion Regime by Annex II of Decree 1491 of December 30, 1997 and Resolution 1352 of October 16, 1998 of the former Ministry of Economy and Public Works and Services, is hereby ordered to pay a fine of one hundred and eight thousand one hundred and forty-five pesos and fifty cents ($ 108,145.50), as provided for in Article 17 of Law 22,021 and its amendments.
ARTICLE 2.- The payment of the fine must be made within ten (10) business days counted from the day following the notification of this resolution, and must be made at the General Administration Directorate of the Undersecretariat of Administration and Patrimonial Normalization of the Legal and Administrative Secretariat of the Ministry of Economy. The mere expiration of the established term will produce default by law without the need for any request or interpellation by the Treasury, in accordance with article 18 of the annex to resolution 221 of August 15, 2003 of the former Ministry of Economy and Production.
ARTICLE 3.- This measure shall serve as sufficient executive title for the collection of the sum established in article 1 of this resolution, through the corresponding fiscal execution procedure established in the Civil and Commercial Procedural Code of the Nation, in accordance with article 18 of the annex to resolution 221/03 of the former Ministry of Economy and Production.
ARTICLE 4.- Let the General Tax Directorate dependent on the Federal Public Revenue Administration (AFIP), an autonomous entity acting within the scope of the Ministry of Economy, and the Government of the Province of Jujuy be informed of the resolution of this measure.
ARTICLE 5.- Notify Ledesma SAAI of the issuance of this resolution, informing it that the reconsideration appeal provided for in article 84 and following of the Administrative Procedures Regulations is admissible against this act. Decree 1759/72 – TO 2017, which must be filed within twenty (20) days from the day following notification.
ARTICLE 6.- Communicate, publish, give to the National Directorate of the Official Registry and archive.
Luis Andres Caputo
e. 07/08/2024 N° 51138/24 v. 07/08/2024
