Monday, September 26, 2016 6.02PM / Contributed by Marval O'Farrell & Mairal
Since December 17 2015, the newly elected authorities have implemented a series of measures to deregulate and implement progressively more flexible regulations regarding the foreign exchange controls which had been in place in Argentina since 2001. This update briefly summarises the new regulations.
Acquisition of foreign currency
The new regulations replaced the rules regarding Argentine residents' access to the foreign exchange market to purchase foreign currency for certain purposes.
At present, foreign currency can be acquired from the foreign exchange market by:
- Argentine residents;
- legal entities from the private sector incorporated in Argentina that are not authorised to trade in the foreign exchange market;
- patrimonies incorporated in Argentina; and
- local government agencies.
These parties can acquire foreign currency for:
- direct investments abroad (ie, real estate investments and any interest purchases or contributions to companies in which the local resident holds more than 10% of the capital stock);
- portfolio investments abroad; and
- the purchase of foreign currency bills and traveller's cheques.
The total amount of foreign currency that can be purchased for the abovementioned items has no monthly limit. The new regulations established a cap of $2,000,000 per calendar month, which was extended to $5,000,000 per calendar month. However, this was removed by Communique A 6037.
Import of goods, interest, dividends and non-financial assets
To eliminate bureaucratic requirements and reduce the operational costs for the parties involved, Communique A 6037 removes the obligation to justify each foreign exchange trade through the presentation of certain formerly required documents. At present, all foreign exchange trades carried out by authorised entities will be processed automatically. In lieu of providing supporting documentation, the client must file a sworn affidavit for each foreign exchange voucher, indicating the code which corresponds to the foreign exchange trade being carried out.
Further, the new regulations require a sworn affidavit stating that, where applicable, the following have been complied with:
- the foreign financial debt information regime established by Communique A 3602, as amended; and
- the direct investment information regime established by Communique A 4237.
Despite the relaxation of the regulations, specifically regarding payments of interest and dividends, from February 1 2013, Argentine residents must notify the Federal Tax Authority in advance of the payment of dividends abroad through the Advance Statement of Cross-Border Payments available on the tax authority's website.
Before the new regulations entered into force, when advance payments for goods were made, the nationalisation of the imported goods had to be demonstrated within a certain timeframe (from the date on which the advance payment was made through the foreign exchange market). The new regulations increased the timeframe for an importer to provide such evidence and subsequently removed the requirement to file it with the intervening bank. Although this requirement has been removed, it is unclear whether the existing sworn declaration that must be filed with the Federal Tax Authority in order to make advance payments remains in force. This declaration must be approved for an advance payment to go through.
Communique A 6037 removed the requirement for residents to transfer to Argentina and the foreign exchange market proceeds paid out under financial indebtedness incurred by a non-resident. Settlement of the funds in the foreign exchange market is not required, even if the Argentine resident intends to access the foreign exchange market eventually to purchase foreign currency in order to repay principal and interest under such financial indebtedness. However, any indebtedness transferred to Argentina and settled in the foreign exchange market must be agreed for a minimum term of 120 days (the minimum waiting period) from the date on which the funds are settled in the foreign exchange market – this is the minimum waiting period applicable irrespective of the fact that the indebtedness is cancelled with or without access to the foreign exchange market. Once the minimum waiting period has elapsed, any principal amounts can be repaid or voluntarily or mandatorily prepaid.
The minimum waiting period is not applicable to the issuance of debt securities negotiated within authorised securities markets.
In all cases, an affidavit stating that the financial debt information regime was duly complied with must be filed in order to access the foreign exchange market for the repayment of principal.
Further, the new regulations amended Section 4(c) of Decree-Law 616/05, which established a 30% mandatory deposit for the inflow of certain funds to Argentina through the foreign exchange market (the mandatory deposit). On December 16 2015 the Ministry of Economy and Public Finances issued Resolution 3/2015 (published in the Official Gazette on December 18 2015), which amended Decree-Law 616/2005. Pursuant to Resolution 3/2015, the mandatory deposit is reduced to 0%, therefore becoming effectively inapplicable.
Export of services and sale of non-financial non-produced assets
In accordance with Communique A 6003, in force since July 1 2016, all income collected in foreign currency by Argentine residents arising from the export of services, the sale of non-financial non-produced assets and the collection of insurance payments due to insurances policies of non-Argentine residents (except those for the international trade of goods, which must be regulated by the rules applicable to the collection of exports and payment of imports) must be transferred to Argentina – for their settlement for pesos in the foreign exchange market or deposit in a local bank account in foreign currency – within 365 calendar days from:
- the date of collection abroad or in Argentina, or
- the date of deposit of such funds in a foreign bank account.
Export of goods: extended term to repatriate proceeds
Before the new regulations came into force, the export proceeds had to be transferred and settled within the earlier of:
- 15 days from collection; or
- a specific term counted from the accomplished bill of lading, which depended on the tariff code under which the goods were classified pursuant to the Mercosur's Common Nomenclature.
With the enactment of the new regulations, the second timeframe now applies.
Further, Resolution 30/2016 of the Secretariat of Commerce dated March 11 2016, modified Resolution 269/2001 (as amended) and eased and extended the timeframe to repatriate export proceeds imposed on certain exporting companies in different industries. As a result, the more restrictive timeframe in force before the new regulations were introduced is no longer applicable, except when (or in cases in which) it is more beneficial to the exporter than the timeframe provided in the new regulations. Finally, Resolution 30/16 eliminated the timeframe of 30 consecutive days for the repatriation of export proceeds for related party transactions, which severely complicated this kind of intragroup transaction.
Advances and pre-export financings
Communique A 4443 and its ancillary rules, which regulated advance payments and pre-export financing, were repealed by the new regulations. Instead, Communique A 6037 established that the rules applicable to the repayment of foreign indebtedness also apply to the cancellation of advances and pre-export financing whenever they are not cancelled with export proceeds. In that regard, the date of origin of the debt must be when the foreign currency proceeds from the indebtedness are sold in the foreign exchange market (except in specific cases provided by law, in which case the indebtedness maintains a trade nature and must be cancelled as such).
Repatriation of direct and portfolio investments by non-Argentine residents
Communique A 6037 established that repatriation of direct investments by non-Argentine residents no longer requires the need to provide evidence of:
- the transfer of funds to Argentina through the foreign exchange market; or
- compliance with the previous minimum waiting period of 365 days from the date of transfer of the investment funds to the foreign exchange market.
However, in relation to portfolio investments, repatriation by non-Argentine residents through the foreign exchange market requires the provision of evidence to the intervening financial entity that:
- the investment funds were duly transferred through the foreign exchange and that the minimum waiting period of 120 days from the date of transfer; and
- the settlement of funds in the foreign exchange market has elapsed.
Conversely, the new regulations removed the monthly limit of $500,000 for the repatriation of portfolio investments of non-Argentine residents.
The new regulation established that transfers of foreign currency from abroad may be credited in a bank account opened by a local financial entity. The intervening entity and client must grant the corresponding purchase and sales vouchers with no real movement of funds from the client's peso account. The process involves:
- the granting of purchase of foreign currency vouchers;
- using the applicable transfer code; and
- the simultaneous sale of foreign currency vouchers using a specific code: "credit in foreign currency from the foreign transfers of funds".
If the funds transferred correspond to the collection of exports, export pre-financings or export advances, the applicable process would be "foreign currency transfers with settlement pending related to the export of goods".
Similarly, foreign currency funds deposited in local US dollar accounts can be transferred abroad through an arbitrage transaction implemented by the registration of a voucher for the purchase of foreign currency, and a voucher for the sale of foreign currency, using the applicable code to transfer the funds abroad.
For further information on this topic please contact Juan M Diehl Moreno or Nicolás Enrique Biggio at Marval, O'Farrell & Mairal by email (firstname.lastname@example.org email@example.com).