On December 17, 2015 the Argentine Central Bank (“BCRA”), through Communication “A” 5850 (“Communication 5850”) introduced significant changes into the foreign exchange regulatory framework in force in Argentina. The main topics covered by the new regulations are described herein:
Access to the Foreign Exchange Market (“FX Market”)
The requirement of previous BCRA’s authorization to purchase and transfer foreign currency in order to undertake the following transactions has been removed: real estate investments abroad, loans granted to non-Argentine residents, direct investment contributions of Argentine residents made abroad, portfolio investments abroad of Argentine residents, other investments abroad of Argentine residents, purchase for positions of foreign currency in Argentina and purchase of traveler checks. However, among other conditions, the aggregate amount that can be purchase under the aforementioned transactions shall not exceed of US$ 2,000,000 per month. Additionally, Communication 5850 eliminated the “Program of Consultations for Foreign Exchange Transactions” run by the Federal Tax Collection Agency (“AFIP”) pursuant to which the purchase of foreign currency for savings and travelling and tourism was so far required to be registered and authorized. Thus, Argentine residents are now authorized to purchase foreign currency without such AFIP’s authorization.
In other words, Communication 5850 virtually returns to the regulatory situation in force prior to the suspension of the rules allowing the access to the FX Market with savings purposes.
Outflow of foreign currency
Restrictions to the outflow of foreign currency for the following transactions have been repealed: payment of services rendered by non-Argentine residents, payment of reinsurance premiums, payment of interest on unpaid indebtedness, payment of real estate rentals and other rents to non-Argentine residents, and family assistance, among others. The repatriation of portfolio investments of non-Argentine residents without previous BCRA authorization is also permitted for as long as such investments were previously made through the FX Market. Note that some of these transactions had not previously been expressly prohibited and in certain cases, the restrictions were of a de facto nature.
Inflow and settlement of foreign currency
The requirement of mandatory inflow and settlement of funds resulting from foreign indebtedness transactions is no longer in effect. However, settlement of such funds through the FX Market shall be a necessary condition in order to access the FX Market afterwards to pay principal and interest. This is a very important amendment given that the lack of settlement of foreign currency resulting from foreign indebtedness will no longer be a punishable FX infraction and, in any case, it will only limit the ability of the Argentine resident to make payments through the FX Market, which shall be made without accessing the FX Market.
The minimum stay period of foreign indebtedness is also reduced from 365 to 120 calendar days as of the day when the funds entered into Argentina, without the possibility of cancelling the foreign indebtedness before such period.
Communication 5850 refers to an amendment introduced to Decree No. 616/05 related to the non-transferable and non-interest-bearing deposit (“encaje”), which has not been published so far. As soon as we receive information regarding such amendment, we will be publishing a complementary post.
Additionally, Communication “A” 4443 regarding export advances and pre-financings is no longer in force. Consequently, there is currently no regulatory regime applicable to this type of loans.
Imports
For the anticipated payment of imports, Communication 5850 extends the term to prove the entry registration of non-capitalized goods from 120 to 180 calendar days, as from the date of access to the FX Market. This new term shall apply to transactions with pending regularization that are not due as of today. The term of 365 calendar days for capital goods is kept.
The limitation of amounts for new transactions of imports of goods and services has been repealed. Nevertheless, Communication 5850 allows the access to the FX Market for the payment of debt arising out of existing imports of goods and/or services setting for such purpose a scheme that progressively increases the operated amount per importer or per client depending on if it refers to goods or services, respectively. In June, 2016 such limitations will no longer exist.
Financial entities
The maximum limit to the general exchange position is re-established in 15%. Such limit had been reduced to 5% last November. Additionally, Communication 5850 rules that financial entities may access the FX Market to cover their currency needs for the purchase and sale securities they own for purposes of the following transactions: (a) external financing documented as repos; (b) primary subscription of bonds issued by the National Government and the BCRA which are denominated and subscribed in foreign currency, and (c) transactions performed with bonds registered in self-regulated Argentine stock exchanges and securities markets, under certain conditions.
Tax regulations related to the access to the FX Market
Additionally, the AFIP issued General Resolution No. 3819, which is consistent with the measures taken by the BCRA and the Ministry of Economy, by means of which General Resolutions No. 3450 and 3583 were repealed. These two resolutions had set forth a regime for the advance payment (withholding) of income and personal assets taxes in cases of acquisition or hiring of assets and/or services (including transportation and tourism), as well as cash withdrawals and the purchase of foreign currency by Argentine residents.
The new General Resolution repealed these advance payment mechanism and only kept a limited regime of withholding on account of these taxes where services of transportation and tourism were paid in cash by the Argentine resident. Furthermore, the withholding rate was reduced to 5% of the paid amount.
Conclusions
The amendments appear as positively promising measures for the Argentine FX Market and, considered them jointly with other regulations issued today, it is expected that the Argentine authorities will continue issuing new regulations upon which TRSyM will keep you informed.