In August 2016, the Guatemalan Congress approved decree
37-2016 (Ley para el Fortalecimiento de la Transparencia
Fiscal y la Gobernanza de la Superintendencia de
Administración Tributaria). Through this decree,
Congress seeks to reform the organisational structure of the
Superintendency of Tax Administration (SAT). This reform will
include incorporating mechanisms that contribute to the
achievement of SAT's objectives, and in particular, providing
the financial resources necessary for the State to comply with
its constitutional obligations.
As of February 23 2017, the decree reforms the principle of
confidentiality of financial transactions contained in the law
of banks and financial groups. Before the reform, the Monetary
Board, the Bank of Guatemala and the Superintendency of Banks
had access to information on all banking operations, and
therefore financial institutions were exempt from maintaining
the confidentiality of client operations as regards those
public institutions. The reform now adds the SAT to the list of
public authorities that can receive this information. However,
none of these entities can make public the data obtained
without advance judicial authorisation.
Furthermore, the SAT, following the newly created
corresponding procedure, may request and receive this
confidential information from banking operators without having
previously made a criminal complaint regarding the individual
whose information it requires.
This newly created procedure has generated unrest among
taxpayers and financial institutions due to its unusual nature.
Using the new procedure, the SAT may request, via a court
created specifically for this purpose, information on any
taxpayer's financial operations. The procedure has generated
two main concerns: 1) the SAT must justify the request by
citing a reasonable doubt as regards the taxpayer's fiscal
information; however, reasonable doubt as such, is not a
defined or common term under Guatemalan law; and, 2) The
taxpayer may not be informed that the SAT has requested the
information from the corresponding financial institutions.
The fact that taxpayers are not to be informed could
generate doubts from a constitutional point of view, since the
taxpayer could be said to be defenceless in the face of actions
that could be excessive or unjustified.
It will be interesting to see how the procedure works in
practice and the effects it will have on the relationship
between taxpayers, financial institutions and the corresponding
Diego Alejos Rivera
||Diego Alejos Rivera