Les ajustements préparés par le Trésor pour l'invariabilité fiscale

The Ministry of Finance is preparing several adjustments to implement the new tax stability regime for investors, which will take effect on January 1, 2027. This regime is part of the core of the recent major tax reform approved by the government, and it is expected to be promulgated during the first fortnight of September. The new tax stability statute applies to both local and foreign investors, dividing investment periods into three tiers based on the amount invested. Investments ranging from $50 million to less than $100 million will have a 10-year stability period, while those from $100 million to under $350 million will enjoy 15 years of stability. Investments equal to or exceeding $350 million will receive a 20-year stability period. During the implementation of the investment, the existing VAT and customs regimes applicable to capital goods will remain in place. In the mining sector, the new statute provides enhanced protection compared to the current Mining Royalty, introduces specific mining taxes, and imposes more burdensome patents. Additionally, investors must pay an additional 1.5 percentage points on the First Category Income Tax. However, before the new regime can come into force, the Ministry of Finance must make a series of adjustments and modifications, including legal ones. One of the first necessary changes stems from a ruling by the Constitutional Court regarding the tax stability regime. The original text included the phrase “among others,” allowing for flexibility in defining eligible sectors. However, the court ruled this phrase unconstitutional, limiting eligibility to sectors explicitly listed in the law. This decision has raised concerns among experts, particularly former director of the Internal Revenue Service (SII) and partner at ESYF Abogados, Ricardo Escobar. He argues that the removal of “among others” restricts the availability of the special regime to only the sectors explicitly mentioned, mining, industry, forestry, energy, infrastructure, telecommunications, and research, development, medical, or scientific projects. As such, investments in agriculture, retail, banking, and other sectors not listed would be excluded. Escobar suggests that to include new sectors, a legal change is required to remove the explicit listing. According to sources within Hacienda, the ministry plans to expand the list of eligible sectors through a legal amendment. They aim to identify which areas are crucial for Chile’s economic strategy and ensure the revised list does not face constitutional challenges again. These modifications are likely to be incorporated into an economic regulation or the public sector adjustment law. Administratively, the ministry intends to require all foreign investment contracts to be written and potentially signed electronically, as determined by a regulation issued by the ministry. Those contracts must be executed, according to the draft regulations, with clear terms and conditions to ensure compliance with the new tax stability framework. The ministry is currently finalizing these administrative guidelines, which will form part of the broader regulatory package supporting the implementation of the new tax regime.