Commerce

Capital Controls in Argentina: Relevant Updates on Payments of Imports of Goods

Pursuant to Communication "A" 6818 dated October 28, 2019, the Argentine Central Bank updated the foreign exchange regulations applicable to payments of imports and other purchases of goods. The new regulatory framework introduces relevant improvements, such us the regulation of import financings, which until now were not specifically contemplated in the regulation, and the reimplementation of the SEPAIMPO, a monitoring regime of payments of imports.

Below are the key takeaways of the new regime:

1. General Provisions

The general rule is that Argentine importers may access to the local foreign exchange market to make payments of imports of goods and other purchases of goods, subject to certain conditions provided in the regulation (for further detail, see points 3 and 4 below). The payment includes any concept that is part of the purchase condition registered in the invoice issued by the foreign supplier.

Payments of imports of goods are divided in two types: (i) payments of imports that have customs clearance and (ii) payments of imports with customs clearance pending. In both cases, the access to the foreign exchange market includes the payment of commercial debt incurred to finance such imports of goods, including, among others: (a) financing provided by the foreign supplier, (b) financing provided by a foreign export credit agency, and (c) financing provided by a local or foreign financial entity where disbursements are used, net of costs and expenses, to pay to the foreign supplier directly.

The regulation of import financing is a positive aspect of the new regime. Until now, the foreign exchange regulations did not distinguish between financial indebtedness and commercial indebtedness, and the direct application of the disbursement to pay the exporter was not allowed. From now on, disbursements of import financings may be used to pay to the foreign supplier directly, and the requirement to repatriate and convert the loan to Pesos will not be applicable, as it occurs with financial indebtedness.

2. Tracking System of Payments of Imports (“SEPAIMPO”)

The SEPAIMPO is a system implemented by the Argentine Central Bank to track the payments of imports, as well as to monitor the nationalization of the goods associated with advance payments of imports. For each import, the importer shall appoint a financial institution as monitoring entity. The monitoring entity shall verify the conditions to make payments and track the nationalization of the goods associated with an advance payment.

3. Payments of Imports with Customs Clearance

The importers may purchase foreign currency in the local exchange market for the payment of imports with customs clearance registered in the SEPAIMPO, as long as the monitoring entity verifies the following requirements, among others:

1. Proof of customs clearance, copy of the invoice, copy of the shipping document, and verifies that the beneficiary of the payment is the foreign supplier or the financial institution or export credit agency that financed the purchase.
2. The sale of foreign currency is made against debit to a local account of the importer.
3. The payment is not made before the due date of the obligation. Prepayments require prior approval by the Argentine Central Bank.

4. Payment of Imports with Customs Clearance Pending

4.1. Advance Payments

The monitoring entity may grant access to the foreign exchange market for advance payments, provided that the following requirements are met, among others:

1. Receives documentation to determine the existence of the purchase and the requirement of advance payment prior to the date of delivery of the goods.
2. The beneficiary of the payment is the foreign supplier.
3. The sale of foreign currency is made against debit to a local account of the importer.
4. Receives an affidavit from the client in which it undertakes to obtain customs clearance of the goods within 90 calendar days from the date of payment, or to repatriate and convert the payment to Pesos within such period. Prior Argentine Central Bank approval shall be obtained for advance payments to affiliates or if longer periods are required.
5. The amount to be paid is reasonable.
6. The client has not defaulted previous advance payments.

4.2. Payment at Sight against Shipping Documents

The monitoring entity may grant access to the foreign exchange market for payments at sight, provided that the following requirements are met, among others:

1. Receives copy of the invoice.
2. Receives copy of the shipping documents.
3. Receives documentation setting forth the obligation to pay at sight against the presentation of shipping documentation.
4. The beneficiary of the payment is the foreign supplier, the foreign financial entity or the official credit agency that financed the advance payment to the exporter.
5. The sale of foreign currency is made against debit to a local account of the importer.
6. Receives an affidavit from the client in which it undertakes to obtain customs clearance of the goods within 90 calendar days from the date of payment, or to repatriate and convert the funds to Pesos within such period.

For more information, do not hesitate to contact Marcelo R. Tavarone, Federico Salim, Julieta De Ruggiero or Francisco Molina Portela.

by trsym

Capital Controls: Important Updates on Export Regime

Pursuant to Communication “A” 6788, dated September 19^th, 2019, the Argentine Central Bank (the “BCRA”, per its acronym in Spanish) updated -again- the capital control regime imposed almost three weeks ago. In this case, the new regulation reformulates the deadlines for the settlement (repatriation and conversion to Argentine Pesos) of proceeds from the export of goods, provides for extensions and exceptions of the deadlines, and establishes a tracking regime of export transactions by financial institutions, among other updates. It is expected that the BCRA will issue further regulations in the near future.

Please find below a summary of the main amendments made by Communication “A” 6788:

1. General Provisions

1.1. Settlement Obligation

The regulation provides for new settlement deadlines of 15, 30, 60 or 180 calendar days from shipment, up to the invoiced amount, depending on the type of good. The deadline for settlement of proceeds from exports between affiliates was extended to 60 calendar days, except a shorter deadline applies as a result of the type of good. Moreover, transactions conducted under the “EXPORTA SIMPLE” regime shall be settled within 365 calendar days from shipment.

Regardless of the new deadlines, the BCRA maintained the obligation to settle export proceeds within 5 business days from the date of collection. In addition, exporters shall select a financial institution to track each export transaction.

1.2. Exports Formalized Before September 2, 2019

The BCRA maintained the deadline of 5 business days from the date of collection for the settlement of proceeds from exports of goods formalized before the reinstitution of the capital controls.

1.3. Extension of Settlement Deadline

The new regulation establishes that the tracking bank may grant extensions to the settlement deadlines under certain circumstances, such as: (i) when the country of destination has a minimum settlement period which is longer than the deadline, the longer period shall apply; and (ii) when the transaction was prefinanced, the settlement deadline may be extended up to the maturity of the export loan.

1.4. Payment Delays by Importer

An important amendment is that an export transaction may be marked by the tracking bank as “nonperforming due to payment delay” when it has been verified that the delay on the settlement obligation of export proceeds was due to a delay on the payment by the importer, as a result of: (i) capital controls in the importer’s country; (ii) foreign importer insolvency; and (iii) debtors default.

Except for the case of capital controls in the importer’s country, export transactions may not be marked as “nonperforming due to payment delay” when exporter and importer belong to the same corporate group. Once the importer was able to make the payment, the exporter or the export credit insurance company, as the case may be, shall settle the proceeds within 5 business days from the date of collection.

1.5. Allocation of Settlements to Export Transactions

The BCRA clarified that the following settlements may be allocated to export transactions: (i) proceeds of exports; (ii) self-settlements made by the exporter; (iii) settlements made through payment processing companies; and (iv) settlements made through the Sistema de Monedas Locales.

1.6. Export Advances, Pre-export Loans and Post-export Loans

The obligation to settle new export advances, pre-export loans and post-export loans is maintained. Export financings by foreign entities shall be settled within 5 business days from the disbursement date, while export financings to foreign importers by local financial institutions shall be settled on the disbursement date. Payments of exports of goods may be allocated to repay principal, interest and costs and expenses of export financings. Also, exporters may apply the proceeds of export advances to the cancelation of local and/or foreign pre-export loans.

2. Tracking Regime of Export of Goods

2.1. Scope of the Regime

The BCRA established a monitoring regime to track the settlement of proceeds of exports of goods formalized as from September 2, 2019, except for export transactions exempted from the tracking regime (diplomatic, samples, promotional material, baggage, deficiencies, assistance and rescue, brokers, organ donation and other special regimes). The fact that an export is exempted of tracking does not mean that the proceeds of such exports are exempted from the obligation to settle the proceeds.

2.2. Tracking Entity

The exporter shall select a financial institution to track each export transaction through the SECOEXPO system provided by BCRA. The tracking entity must determine the amount and deadline to settle the export proceeds and shall register in the system the amounts allocated to each transaction.

2.3. Compliance Certificate

The tracking entity shall issue a compliance certificate for each export transaction whose settlement allocations fulfilled the required amount within the relevant deadline. The compliance certificate shall be required by the tax authority to release export promotional payments.

2.4. Non-Performing Transactions

When the exporter does not comply with the obligation to settle export proceeds within the relevant deadline, the tracking entity shall report the nonperforming transaction through the SECOEXPO system.

2.5. Admitted Allocations

The tracking entity may consider the settlement obligation as totally or partially fulfilled in the following cases and amounts: (i) concepts included in FOB value that are no part of the agreed sale condition; (ii) banking expenses associated to collections procedures; (iii) exports that by their nature are not able to generate a proceeds (EXPONOTITONEROSO or EXPOSINVALORCOM); (iv) rejected merchandise in destination or reimported; (v) missing goods, losses and deficiencies; (vi) wrecked merchandise; (vii) discounts and expenses fees payable abroad; (viii) expenses related with the placement of the goods abroad; (ix) penalties for exporter´s delay in the delivery of the goods; (x) tax withholdings in the country of destination; among others.

3. Tracking Regime of Export Financings

The BCRA also implemented a tracking regime of export financings. The following financings are covered by this regime: (i) all settlements performed as of 02.09.19 corresponding to advance payments, pre-export loans and other financings for which the allocation of export proceeds are allowed; (ii) pre-export loans and financings of exports pending on 31.08.19 provided or guaranteed by domestic financial institutions; (iii) export advances and pre-export loans from abroad pending on 31.08.19, whether or not settled through the foreign exchange market and for which the exporter requests its allocation to exports formalized as of 02.09.19; (iv) financial indebtedness instrumented before August 31, 2019, which conditions foresee the earmarking of export proceeds and for which the exporter requests its allocation to export transactions formalized as of 02.09.19.

In the case of financings provided by domestic financial institutions, the tracking regime will be in charge of the financial institution that provided the financing. Otherwise, the tracking regime will be initially in charge of the entity that performed the settlement of the financing in the local exchange market. The exporter may subsequently change the tracking entity.

The tracking entity shall register each allocation of export proceeds and shall be responsible for the issuance of the allocation certificates that enables the allocation of export proceeds to export transactions.

For further information, please do not hesitate to contact Marcelo R. Tavarone, Federico Salim, Julieta De Ruggiero or Francisco Molina Portela.

by trsym

Argentina Reinstitutes Capital Controls: Key Points

Please find below a summary of the main foreign exchange restrictions imposed by the Argentine Central Bank on September 1, 2019:

1. Export of Goods

1.01. General. Proceeds from exports shall be settled (repatriated and converted to Argentine Pesos) through the Argentine foreign exchange market (the “FX Market”), subject to the below.

1.02. Exports as of September 2, 2019. Proceeds from exports of goods corresponding to customs declarations dated as of September 2, 2019 shall be settled through the FX Market within the following time frames: (i) 15 calendar days from the shipment date, in case of export transactions with affiliates or exports of commodities; and (ii) 180 calendar days from the shipment date, for any other transaction. In all cases, any payment shall be settled within 5 business days from the date of collection.

1.03. Exports before September 2, 2019. Proceeds from exports of goods corresponding to customs declarations dated before September 2, 2019 and not yet collected shall be settled within 5 business days of the date of collection.

1.04. Export Financing. Advances and export financing loans shall be settled within 5 business days of the disbursement date. Payments of exports of goods may be allocated to repay trade financings, without prior approval, in the following cases: (i) export loans and financings provided or guaranteed by domestic financial institutions; (ii) export loans, export advances and financings settled through the Argentine foreign exchange market and duly registered with the central bank under the External Assets and Liabilities Reporting Regime of the central bank (Relevamiento de Activos y Pasivos Externos); and (iii) financial indebtedness instrumented before August 31, 2019, which terms provide for the earmarking of export proceeds.

2. Export of Services

2.01. Proceeds from exports of services shall be settled through the FX Market within 5 business days from the date of collection.

3. Import of Goods and Services

3.01. General. Argentine importers may access the FX Market, without prior approval, for the payment of imports of goods and services, subject to the below.

3.02. Imports of Goods with Affiliates. Prior central bank´s approval is required to access the FX Market for the payment of imports of goods to affiliates in excess of US$ 2 million per month.

3.03. Import of Services with Affiliates. Prior central bank´s approval is required to access the FX Market for the payment of imports of services with affiliates, except for credit card issuers for tourism and travel expenses.

3.04. Prepayment of Imports. Prior central bank´s approval is required to access the FX Market for the prepayment of imports of goods and services.

3.05. Import Advances. Importers may access the FX Market for the payment of import advances, provided that the payment is made to the supplier. Customs clearance shall be obtained within the following 180 days.

3.06. Registration. In all cases, the import debt shall be registered with the central bank under the External Assets and Liabilities Reporting Regime (Relevamiento de Activos y Pasivos Externos).

4. Formation of External Assets 

4.01. Companies and others. Companies, local governments, mutual funds, trusts and other pools of assets residing in Argentina shall require prior central bank´s approval to access the FX Market for: (i) offshore deposits, (ii) other external investments; (iii) debt instruments with affiliates, (iv) investments in real estate located offshore, (v) other foreign direct investments, (vi) purchase of debt securities, (vii) loans to persons residing offshore, (viii) travel checks and notes, (ix) transactions of clearing houses, (x) notes related to transactions between Argentine residents, (xi) transfers from/to a foreign country between Argentine residents, and (xii) posting of collateral on derivatives transactions.

4.02. Individuals. Individuals residing in Argentina may purchase up to US$10,000 per month, without prior central bank´s approval, for the same concepts listed in the previous paragraph.

4.03. Non-residents. Non-residents shall require prior central bank´s approval to access the FX Market in excess of US$ 1,000 per month, exception made for: (i) official export credit agencies; (ii) diplomatic and consular delegations for official expenses, (iii) representatives of courts, special missions, commissions or bilateral bodies established under treaties or international agreements, in which Argentina is a party thereto, for official expenses.

4.04. Swaps and Arbitrages. Swaps and arbitrages shall be permitted to the extent the client would be allowed to access the FX Market for the same amount should the transaction had been settled in Pesos.

5. External Financial Indebtedness

5.01. Funds disbursed as of September 1st, 2019 under financing agreements entered into between an Argentine resident and creditors residing offshore shall be settled through the FX Market (there is no specific deadline). Access to the FX Market for the repayment of such loan shall be subject to compliance with such settlement obligation.

5.02. Prior central bank´s approval shall be required to access the FX Market to prepay external financial indebtedness earlier than three (3) business days to the payment date.

5.03. In all cases, the external financial indebtedness shall have been registered with the central bank under the External Assets and Liabilities Reporting Regime (Relevamiento de Activos y Pasivos Externos).

6. External Indebtedness between Residents

6.01. Residents shall not have access to the FX Market to repay financial indebtedness among residents, except for debt agreements instrumented by public deed or registered in public registries before August 30, 2019.

7. Dividends

7.01. Prior central bank´s approval shall be required to access the FX Market to pay dividends and profits offshore.

8. Limitations Applicable to Exchange Agencies

8.01. The central bank suspended the authorization of new exchange agencies (financial institutions and other authorized agencies) that files for authorization as of September 1, 2019.

8.02. Exchange agencies shall not perform blue chip swaps or make payments to their local suppliers with their foreign currency net position.

8.03. Exchange agencies shall not increase their foreign currency holdings, without the central bank´s prior approval, in excess of the greater of: (a) their average holdings in August 2019, and (b) their stock on August 31st, 2019.

8.04. Foreign exchange transactions shall be instrumented in handwritten or electronic sworn affidavits in which the client shall represent and warrant the compliance with the capital controls regime.

The breach of the foreign exchange restrictions imposed by the central bank shall be subject to criminal liability under the Foreign Exchange Criminal Regime (Law No. 19,359).

For further information, please do not hesitate to contact Marcelo R. Tavarone, Federico Salim, Julieta De Ruggiero, Matías Otero or Francisco Molina Portela.

by trsym