Question about proof of US residence

[French jurist]

The 181 days rule applies in many countries and, if that's helpful to your research, you should know too that the Administrative Jurisprudency in a specific country may alter this rule.

For instance, the +181 days rule applies in France and, considering only the written laws, anyone living outside of France more than 181 days a year could claim being non resident in France.

But the French Administrative Courts have also decided that people living 181 days or less in France would still be considered as residents considering criterias like : economic/family ties and such.

Of course this applies only to France but I wouldn't be surprised if the Argentinean jurisprudency had similar decisions (many similarities between both systems).

 

[Thejohnatvu]

I'd say that it's quite likely that they won't accept it. Bear in mind that I'm not a tax lawyer or an accountant and I'm neither an Argentine nor US citizen but I see it like this:

You have been resident in Argentina for more than 180 days per year which makes you liable for tax in Argentina on your world-wide assets throughout those years. Forget entry and exit stamps or multiple passports: I think we established some time ago that the computer records of entry and exits of aliens are referenced by name and date of birth, so these will be available to AFIP.

Many informal residents wriggle through the tax obligations because there's little to pin them down but the selling of property is an opportunity for the authorities to catch up. As well as the above, they will have the opportunity to determine whether you have correctly paid all the annual property charges and taxes and take the opportunity to satisfy themselves that there are no outstanding motoring fines, court charges and judgements against you. The good news is that, if in the United States you are declaring your income and assets, by providing evidence of the taxes you have paid in Argentina, I believe that you may set them off against the same taxes you owe in the USA.

In the absence of records, tax-gatherers tend to assume worst-case scenarios and tax accordingly. The Brits do it and tax one on 'notional income' - what they consider one ought to have earned from that asset - and it's fairly well known that in Argentina the records of the state-owned utilities will be used to determine when a property was occupied and tax notional rental income accordingly.

If you have detailed and scrupulous evidence to cover all of your activities then you can decide for yourself whether hiring an Argentine tax specialist will be cost-effective for you: if your records are somewhat wooly or worse still, non-existent then you probably need a tax specialist on your side.

Thanks for the post. I guess i didn't make clear that I am doing this step so that I WILL BE ABLE TO PAY MY TAXES. Which, by the way, they have a special 'rental tax' for foreigners only. I am not trying to get out of any taxes. I already have a certified copy (after probably 30 total hours at immigration) of all my entries and exits. I have an argentine accountant who has facilitated many expats sell their place.

My situation is unique bc I am neither a resident here nor am I an expat that owns a place here, but is in the states often (where he can probably get a notary public to declare he is a resident). So I am kind of a man without a residency.

 

[steveinbsas]

If you're spending 7-9 months a year outside of the USA, congratulations, you're not a resident of the USA!

In order to qualify for the non resident foreign income tax exemption a US citizen has to be out of the USA for 11 months of the year. Hopefully, Thejohnatvu has been filing with the IRS while living the permatourist life in and out of Argentina the past six or seven years. This is the first time I've heard of AFIP asking for a certificate of residency from the US when a non Argentine resident was selling property.

In the past AFIP has charged non residents with taxes on "assumed" rental income if the utility bills did not drop to near zero when they were not in the country, but I never heard of a non resident (aka permatourist) or even a temporary resident being required to pay income tax in Argentina on foreign income, even though I was told by an Argentine accountant that we're "legally responsible" to pay if we live in Argentina more than 180 days of the year, regardless of resident status. Recently, migraciones started requiring foreigners to live "in country" at least 180 days per year for renewal of their temporary residency visas. I think that has ominous tax implications.

If that's what AFIP is after now they may also charge interest (usually 2% per month on unpaid taxes). It may be possible for the OP to ammend his US returns for the past five years to deduct Argentine taxes (about to be) paid if that actually happens. From the IRS point of view he is not a "tax resident" of Argentina, yet from AFIP's point of view he probably is.

I don't think the US and Argentina have a tax treaty (to avoid double taxation). I hope it doesn't happen but if AFIP wants income taxes (and interest for the past five years) it could end up costing an awful lot of money (depending on the OP's declared income in the US). Hopefully, AFIP will just accept the IRS form 6166 and not go after any additional (income) tax.

 

[steveinbsas]

My situation is unique bc I am neither a resident here nor am I an expat that owns a place here, but is in the states often (where he can probably get a notary public to declare he is a resident). So I am kind of a man without a residency.

If you are selling your apartment (as indicated in your first post) what does "nor am I an expat that owns a place here" mean?

Don't notary publics simply "authenticate" signatures? I don't think they have any power to "certify" residecny.

 

[Thejohnatvu]

If you are selling your apartment (as indicated in your first post) what does "nor am I an expat that owns a place here" mean?

Don't notary publics simply "authenticate" signatures? I don't think they have any power to "certify" residecny.

I meant, an exat who is selling his place, but still primarily lives in the US.

Concerning your previous post. They are not trying to hit me up for income, just taxes on my apartment (which I will gladly pay). I can add you to a long list of ppl who have never heard of such demand. The IRS form 6166 SHOULD work, but the up to 45 day wait period puts me at risk of the deal falling through.

 

[steveinbsas]

The IRS form 6166 SHOULD work, but the up to 45 day wait period puts me at risk of the deal falling through.

Perhaps you (or your accountant) can print this form and take it to AFIP and ask if this is what they want. If not, ask them to show you an example of exactly what they will accept.

What is the 45 day wait period? Is this the time between the boleto and the escriura or is it the time now required by AFIP for approval?

A couple years ago it took at least 60 days for AFIP to approve a sale by a non resident. I know one expat who waited over 90 days for approval and almost lost the sale. Has AFIP recently become more efficient?

Does your boleto stipulate that you must pay the buyer double his deposit if you can't complete the transaction as agreed (on time)? If so, that would be something to deal with well in advance of the deadline.

 

[Thejohnatvu]

The 45 day wait period is a high-end estimate for the time it takes for the IRS to process the form, for it to be apostillized and for it be fedexed to me here. THEN I would be able to start the AFIP process. My accountant just thought of another possible alternative, so hopefully we can avoid this scenario.

Apparently it takes only 2-4 weeks to clear it with the AFIP (if you have everything together), so I guess the process has been streamlined a bit.

You're right, the boleto usually allows 60 days. If the escritura hasn't been signed by then, you have to give the buyer back her 30% plus an additional 30%. My imobilliaria knew of all the BS expats have to go through, so we put a 90 day clause in.

 

[steveinbsas]

Th. My imobilliaria knew of all the BS expats have to go through, so we put a 90 day clause in.

Whew!!