Customs Law: amendments to the “DJAIs”
The Federal Public Revenue Administration (Administración Federal de Ingresos Públicos or “AFIP”) unveiled a mechanism to amend the Advanced Affidavits for Imports (Declaraciones Juradas Anticipadas de Importación or “DJAIs”).
This new procedure, named as Amendment to the Advanced Affidavits for Imports (Rectificación Jurada Anticipada de Importación, or “RJAI”) was created, regulated and implemented through the External User Instructions Manual (Manual de Procedimiento de Usuario Externo) which is published in AFIPs website.
The first thing that draws attention is that AFIP is modifying general application rules (AFIP’s General Resolution Nº 3252 and Nº 3255) by means of an instructions manual published in its website. This instructions does not have any binding legal force to customs operators. However, by impacting in the Customs Information System, it will not be possible to operate without complying with such instructions. Thus, AFIP created a new source of law: “the website instructions”.
Major modifications incorporated with the RJAI are:
- The request for any DJAI extension can only be made through a RJAI. Extensions may be requested only once. This is one of the most criticized aspects of this new sub-regime, since AFIP’s General Resolution Nº 3255 does not set any limits to the requests for extensions.
- The registration of the RJAI requires the AFIP officers to review the affidavit in order to give their authorization. Thus, it may happen that following an authorized DJAI extension, the RJAI may be observed (possibly without any legal arguments).
- Except for the importer’s CUIT, all the information fields of a completed DJAI may be amended RJAI.
A DJAI may not be amended when:
- It has been used for a different import, in whole or in part. This may cause serious inconveniences in the Staggered Shipping Regulations (Régimen de Envíos Escalonados) and in the Import of Assets for Turn-key Projects Regulations (Régimen de Importación de Bienes Integrantes de Plantas Llave en Mano), among others, because in the event a DJAI is used partially for a different import, it will be impossible for the affiant to make an extension request, which prior to this new RJAI system, it was able to make without problems.
- It is the subject of any injunction.
- The affiant has purchased foreign currency, and attempts not to declare such fact in the amendment.
- The affiant has purchased foreign currency, and attempts to amend the FOB amount by inserting a lower value than the purchased foreign currency.
We consider that the RJAIs, far from providing any operational solutions for those who operate in foreign trade, will add more conflict to the ongoing questioned DJAIs.
According to what has been informed by the Center for Customs Dispatchers, some of their associates already have had problems in registering the new RJAIs.
Contact: Gastón Miani gaston.miani@trsym.com (+5411) 5272 1759
“SICOM Créditos VI” Financial Trust for AR$ 28 million
Deal counsel in the issuance and placement in Argentina of trust securities for AR$ 28,000,000 issued under the “SICOM Créditos VI” Financial Trust, in which Sicom S.A. acted as trustor, Banco de Servicios y Transacciones S.A acted as trustee, issuer, arranger, structuring and placement agent, and Global Equity S.A. acted as placement agent. (2014)
Generación Frías’s AR$120 million Class I Notes Issuance and U$S 12 million Commercial Financing
Legal counsel to Generación Frías S.A., an Albanesi Group company located in Argentina, for the Issuance of Class I Notes for AR$ 120 million under the U$S 50 million Global Notes Programme and to Albanesi S.A. and R.G. Albanesi S.A as guarantors. Banco de Servicios y Transacciones S.A. y SBS Trading S.A. (ex SBS Sociedad de Bolsa S.A.) acted as arrangers and placement agents; Banco Macro S.A. acted as arranger and Macro Securities SA. participated as placement agent. In addition, PW Power Systems Inc. granted a partial financing of the unit purchase price for US$ 12 million for a period of four years. The financings were granted for the (i) sale, storage, installation, operation and maintenance of the job site to be located at Frías, Santiago del Estero and (ii) acquisition of one FT4000™ SwiftPac® 60 DF 60 MW. (2014)
Integración Eléctrica Sur Argentina S.A.´s AR$ 125,000,000 Class I Notes Issuance
Deal counsel in the issuance of Integración Eléctrica Sur Argentina S.A.´s AR$ 125,000,000 Class I Short-Term Notes under its U$S 50,000,000 Global Short-Term Notes Programme.
Nación Bursátil S.A. and Puente Inversiones y Servicios S.A. acted as arrangers and placement agents.
“Bancor Personales III” Financial Trust for AR$ 49,950,000
Deal counsel in the issuance and placement in Argentina of trust securities for AR$ 49.950.000 issued under the “Bancor Personales III” Financial Trust, in which Banco de la Provincia de Córdoba S.A. acted as arranger, trustor, collection, administration and custody agent and placement agent, Deutsche Bank S.A. acted as financial trustee and successor collection, administration and custody agent, Banco de Servicios y Transacciones S.A. acted as co-arranger y co-placement agent and Puente Inversiones y Servicios S.A. acted as co-placement agent. (2014)
“BeST Consumer Finance Serie XXXIV” Financial Trust for AR$ 113,000,000
Deal counsel in the issuance and placement in Argentina of trust securities for AR $ 113,000,000 issued under the “BeST Consumer Finance Serie XXXIV” Financial Trust, in which Banco de Servicios y Transacciones S.A acted as arranger, trustor, servicer and custodian, and TMF Trust Company (Argentina) S.A acted as trustee.
Generación Independencia’s AR$ 35 million Series II Notes Issuance
Legal counsel to Generación Independencia S.A., as issuer of its AR$ 35,000,000 Series II Notes under the $ 50,000,000 Global Notes Programme. Banco Macro S.A. acted as arranger and Macro Securities S.A. acted as placement agent. (2014)
AR$ 30 million syndicated loan granted to Credinea S.A.
Legal counsel to Banco de Servicios y Transacciones S.A., Banco Comafi S.A., Nuevo Banco de Santa Fe S.A. and Banco del Neuquén S.A., as lenders in a sindicated financial loan granted to Credinea S.A. for an aggregate of AR$ 30,000,000. (2014)
'Credimas Serie 21' Financial Trust for AR$ 80 million
Deal counsel in the issuance and placement in Argentina of trust securities for AR $80,000,000 issued under the 'Credimas Serie 20' Financial Trust, in which Banco Supervielle S.A. acted as arranger and placement agent, TMF Trust Company (Argentina) S.A. acted as financial trustee and Credimas S.A. acted as servicing and custody agent (2014).
Law 26,894. Debt Restructuring.
On June 26, 2014, the Argentine government had transferred USD 539 million to the Bank of the New York Mellon (“BoNY”), trustee under the Trust Indenture 2005-2010 (the “Trust Indenture”) in order to make interest payments under the bonds issued on its 2005 and 2010 debt exchanges (the “Debt Restructuring”). However, on demand of certain holdout creditors, N.Y. Southern District Judge T. Griesa declared this payment illegal and ordered the BoNY to freeze the bank deposit and not to pay to the bondholders.
In response to Judge T. Griesa´s order, Argentina’s Executive Branch sent a bill to the Congress that was passed on September 10, 2014 and was enacted on September 11, 2014 under No. 26,984 (“Law 26,894”). Main aspects of this law follow:
i. The Debt Restructuring is declared of public interest, as well as the payment in "fair, equitable, legal and sustainable conditions" to 100% of the holders of Argentine bonds; and, therefore, the implementation of contracts concluded in the framework of the debt restructuring mandated by decrees 563/2010 and 1735/2004, in order to preserve the collection by the bondholders concerned.
ii. Law 26,894 authorizes the Ministry of Economy and Public Finance (“MECON”) to take all necessary measures to remove BoNY as trustee and appoint in its replacement Nación Fideicomisos S.A. (“NFSA”), notwithstanding bondholders right to appoint a new and different trustee.
iii. Law 26,894 creates the “Law No. 26,984 Fund - Sovereign Debt Payment Law”, an account opened by NFSA with the Argentine Central Bank (“BCRA”) to hold in trust the funds necessary to pay the bonds under the Trust Indenture.
iv. Authorizes the MECON to pay, on the corresponding due dates, the bonds under the Trust Indenture using NFSA´s account held with the BCRA. The corresponding funds for payments will be distributed through the new entities to be appointed by the MECON or the bondholders under the Trust Indenture, being those funds free disposable funds for the bondholders.
v. In case the bondholders, individually or collectively, request Argentina to change the governing law and jurisdiction of the bonds, the MECON will be authorized to:
v.a. Implement an exchange for new bonds, governed by Argentine law and subject to Argentine jurisdiction, with identical financial terms and conditions and with the same face value of the restructured bonds.
v.b. Implement an exchange for new bonds, governed by France law and jurisdiction, with identical financial terms and conditions and with the same face value of the restructured bonds, provided, however that Argentina will not waive its immunity for the execution of judgments arising out of the jurisdictional extension in favour of the French Courts in connection with certain public property, BCRA reserves or property involved in diplomatic missions, among other.
vi. Authorizes the MECON to implement an exchange for bondholders who did not accept the Debt Restructuring. For this purpose, the act authorizes the use of the account “Law No 26,984 Fund - Sovereign Debt Payment Law” to deposit, in the corresponding due dates, in favour of such bondholders, the funds equivalent to those that should be paid under the bonds to be issued in the future, in exchange of the old bonds not exchanged in the Debt Restructuring.
vii. Law 26,894 creates a Joint Congress Committee on Research of the Origin and Monitoring of the Management and Payment of the National Foreign Debt, which will investigate and determine the origin, evolution and current status of argentine foreign debt since March 24, 1976, to date, and the monitoring and management of payments made thereunder.
viii. Law 26,894 is declared of public interest.
ix. The funds created by the Law 26,894 and NFSA are exempt, in their operations as trustee of the Trust Indenture, of all taxes and existing or future national contributions.
x. Law 26,894 contains no express provisions regarding banking secrecy.
The Executive Branch, through the MECON, will have to issue rules to regulate in more detail the provisions of Law 26,894. We will keep you informed of any such rules and new developments regarding this matter.