“CARFACIL V” Financial Trust for AR$ 73,307,248
Deal counsel in the placement and issuance in Argentina of trust securities for AR$73,307,248 issued under the “CARFACIL V” Financial Trust, whereby TMF Trust Company (Argentina) S.A., as trustee under the private financial trust “FINANCIAL TRUST CARFAUTO” acted as trustor, Banco de Valores S.A. acted as trustee, organizer and replacement servicer and Ralf S.A. acted as credit administrator and paying agent. Banco de Valores S.A., INTL CIBSA S.A., Macro Securities S.A. and Industrial Valores S.A. acted as placement agents.
Celulosa Argentina S.A.’s reopening of Class 10 Notes tender offer and issuance of U$S 3,067,488 additional Class 13 Notes
Counsel in Celulosa Argentina S.A.’s reopening of Class 10 Notes tender offer and issuance of Additional Class 13 Notes for U$S 3,067,488 under the Global Program of Notes for an amount of up to U$S 280,000,000, solely payable through the tender of Class 10 Notes. Puente Hnos. S.A. and Banco de Servicios y Transacciones S.A. acted as placement agents of the Additional Class 13 Notes.
Impact on Tax Matters of the Social Solidarity and Productive Reactivation Act
Below please find a brief summary of the principal tax aspects of the law No. 27,541, enacted by the Senate last Saturday, December 21, 2019, known as “Social Solidarity and Productive Reactivation Act”, as it arises from the promulgation made through Decree No. 58/2019 (with a partial veto related to aspects not addressed herein) and its publication in the supplement of the Official Gazette dated December 23, 2019:
1.- Tax regularization regime: The law establishes a tax regularization regime for debts resulting from tax, customs and social security matters accrued as of November 30, 2019 (inclusive), or from infringements committed as of the same date, and only applicable to Micro, Small and Medium Companies. The law foresees the extinction of criminal actions, the waiver of penalties arising from formal or substantial infringements, and the waiver of compensatory or punitive interests in different proportions depending on the circumstances of the case, among other benefits. The concepts incorporated into the tax regularization regime may be cancelled through offset against certain credits existing against the tax authority, cash payment (in which case a 15% reduction over the consolidated debt would be awarded) or payment plans of up to 120 installments depending on the circumstances of the case. The term to perform the incorporation into the tax regularization regime elapses on April 30, 2020 (inclusive).
2.- Employer social security contributions: The rate of the employer social security contributions corresponding to the subsystems arising from Laws No. 19,032 (Social Security National Institute for the Retired), No. 24,013 (National Employment Fund), No. 24,241 (Argentine Integrated Social Security System) and No. 24,714 (Family Allowances) is established on 20.40% for the employers of the private sector whose principal activity qualifies under the “services” or “commerce” categories and to the extent their total annual sales exceed the limits for qualifying as a “Medium Company – Second Category”, and on 18% for the rest of the employers of the private sector. The law awards the possibility to compute a given percentage of the referred employer social security contributions as a tax credit against VAT, and further establishes a monthly non-taxable minimum threshold over each workers’ salary of AR$ 7,003.68 (with particularities on certain cases) and an additional monthly discount of AR$ 10,000 over the total taxable base for those employers with a payroll including no more than 25 employees.
3.- Personal Assets Tax: The progressive rate scale ranging between 0.25% and 0.75% applicable to Argentine individuals and undivided estates is replaced by a new one ranging between 0.50% and 1.25% and with effects as of the 2019 tax period. In addition, the Executive Power is authorized to establish higher differential rates of up to 2.50% to levy assets located abroad, as well as to reduce them in case of repatriation of the product of the sale of financial assets located abroad. The rates applicable to substitute taxpayers for the holding of shares or participations in the equity of companies ruled under Law No. 19,550 and for the administration or disposition of assets belonging to foreign aliens are increased from 0.25% to 0.50% with effects as of the 2019 tax period. Furthermore, the law establishes that with effects as of the same tax period the subject of the personal assets tax will be ruled by the residence criteria on the terms foreseen in the income tax law, hence disregarding the previously applicable domicile criteria.
4.- Income tax: The reduction to 25% of the corporate income tax rate applicable to the subjects comprised within subsections a) and b) of section 73 of the income tax law (text 2019) as well as the increase to 13% of the rate applicable to dividend distributions foreseen in the second paragraph of subsection b) of section 73 of the income tax law (text 2019) and in section 97 of the same act, is suspended up to the financial years starting as from January 1, 2021. The so called “cedular tax” applicable on the Argentine sourced net income obtained by Argentine individuals and undivided estates over interests arising from term deposits (“depósitos a plazo”) made in institutions subject to the financial entities regime, public securities (“títulos públicos”), tradable securities (“obligaciones negociables”), stakes in common investment funds (“cuotapartes en fondos comunes de inversión”) and debt securities (“títulos de deuda”) of financial trusts, is abrogated as of the 2020 tax period. Furthermore, an exemption is established over interests arising from deposits in saving accounts (“cajas de ahorro”), special saving accounts (“cuentas especiales de ahorro”), term deposits (“depósitos a plazo fijo”) in Argentine pesos, and third party deposits or other forms of gathering funds from the public as determined by the Argentine Central Bank, in all cases to the extent they are made in institutions subject to the financial entities regime, whilst interests arising from deposits subject to clauses of adjustment are excluded from the exemption. The law further re-establishes the exemptions foreseen in section 36 bis of Law No. 23,576, in subsection b) of section 25 of Law No. 24,083 and in subsection b) of section 83 of Law No. 24,441. Finally, exemptions are also established as from tax period 2020 over (i) income obtained by Argentine individuals and undivided estates from the disposition of the assets foreseen in section 98 of the income tax law (text 2019) but not comprised within the first paragraph of subsection u) of section 26 of the referred norm (text 2019), and to the extent they are listed in exchange markets authorized by the CNV, and (ii) income obtained by foreign beneficiaries on the assets not comprised in the fourth paragraph of subsection u) of section 26 of the income tax law (text 2019), to the extent they do not reside in non-cooperative jurisdictions or the invested amounts do not come from non cooperative jurisdictions. Argentine individuals and undivided estates will not be subject to the so-called “cedular tax” over interests corresponding to the 2019 tax period arising from public securities (“títulos publicos”) and tradable securities (“obligaciones negociables”) to the extent they choose to affect such interests to the computable cost of the security from which they arise.
5.- The new PAIS Tax: A new levy denominated as the PAIS tax (Spanish acronym for the phrase “For an Inclusive and Supportive Argentina”) is created for a term of 5 tax periods computed as from the moment in which the law comes into force. The PAIS tax levies (a) the purchase of foreign currency made by Argentine residents for saving purposes or without other specific purpose, (b) foreign currency exchanges made by financial entities on account of the purchaser aimed at paying the acquisition of assets or services made abroad (or of services rendered in Argentina by non-resident parties) that are cancelled through the use of credit, debit or purchase cards, (c) the purchase of services rendered abroad made through Argentine travel or tourism agencies, and (d) the purchase of land, air or aquatic passenger transport services with foreign destination, to the extent that access to the MULC (Spanish acronym for the “Sole and Free Foreign Exchange Market”) is needed for cancelling the transaction. The rate of the PAIS tax is established on 30%, that will apply on the total value of the transaction in the cases foreseen in points (a) to (c) above, and over the value of the transaction net of taxes and government fees in the cases foreseen in point (d) above. The tax applies over Argentine residents that make any of the transactions foreseen in points (a) to (d) above, whilst those entities specifically indicated as such shall act as perception and liquidation agents.
6.- Tax on debits and credits: The tax rate applicable over debits arising from any form of cash extraction is duplicated. The referred increment does not apply on accounts belonging to individuals or entities qualifying as Micro or Small Companies.
7.- Internal taxes: The internal taxes regime applicable over the assets comprised in section 38 of Law No. 24,674 (including different type of vehicles, motorcycles, etc.) is modified through the establishment of new limits for exemptions and new taxable basis, as well as through the incorporation of new value categories and incremented tax rates depending on the case.
For more information, do not hesitate to contact Gastón A. Miani, Ana Do Nizza or Juan Pablo Baumann Aubone.
Province of Chubut’s Series XLI Treasury Notes class 1 and class 2 Issuance for AR$ 1,830,010,000
Legal counsel to Banco del Chubut S.A., as arranger, placement and financial agent, in the issuance of Province of Chubut’s Series XLI Treasury Notes class 1 and class 2 under the Province of Chubut’s Treasury Notes Issuance Programme. Class 1 was issued for AR$ 1,717,000,000 variable rate equivalents to Badlar plus 17%, due 2020. Class 2 was issued for AR$ 113,010,000 fixed rate equivalents to 48% annual nominal, due 2020.
The transaction settled on December 20, 2019 and the payments due under the Treasury Notes Series XLI are secured by certain rights of the Province of Chubut to receive amounts under the federal tax co-participation regime.
Update in Annual Sales Limits in Order to Be Considered as Small and Medium Size Company
On December 10th, 2019, the Secretaría de Emprendedores y de la Pequeña y Mediana Empresa issued Resolution No. 563/2019 (the “Resolution”) in order to update the annual sales amounts applicable in order to qualify as small and medium size company.
Please find bellow the updated annual sales limits (expressed in Argentine Pesos), listed for each activity/sector:
| Category | Activities/Sector | ||||
| Construction | Services | Commerce | Industry and Mining | Agricultural | |
| Micro | 15,230,000 | 8,500,000 | 29,740,000 | 26,540,000 | 12,890,000 |
| Small | 90,310,000 | 50,950,000 | 178,860,000 | 190,410,000 | 48,480,000 |
| Medium size tier 1 | 503,880,000 | 425,170,000 | 1,502,750,000 | 1,190,330,000 | 345,430,000 |
| Medium size tier 2 | 755,740,000 | 607,210,000 | 2,146,810,000 | 1,739,590,000 | 547,890,000 |
Finally, please note that the Resolution has become effective today.
For more information, do not hesitate to contact Juan Pablo Bove, Federico Otero, Julián Razumny, Agustín Griffi, Pablo Tarantino, or to corporate@trsym.com.
Legal advice in the exchange of Albanesi Group companies's Notes
Counsel to Generación Mediterránea S.A. in the issuance of its Class X Notes for U$S 28,148,340 under the Global Program of Notes for an amount of up to U$S 100,000,000, and in the co-issuance of Generación Mediterránea S.A. and Central Térmica Roca S.A. of their Class III Notes for U$S 25,730,782 under the Global Program of Notes for an amount of up to U$S 300,000,000. Class X and Class III Notes were issued in exchange of Class VI Notes issued by Generación Mediterránea due February 2020 and Class I Notes co-issued by Generación Mediterránea y Central Térmica Roca due October 2020, respectively. Class X Notes and Class III Notes are guaranteed by Albanesi S.A.
SBS Trading S.A., Balanz Capital Valores S.A.U. and Banco de Servicios y Transacciones S.A. acted as arrangers and placement agents of the Class X Notes and Class III Notes.
Celulosa Argentina S.A.’s U$S 60,034,015 Class 13 notes
Counsel in Celulosa Argentina S.A.’s issuance of Class 13 Notes for U$S 60,034,015 under the Global Program of Notes for an amount of up to U$S 280,000,000, solely payable through the tender of Class 10 Notes. Puente Hnos. S.A. and Banco de Servicios y Transacciones S.A. acted as placement agents of the Class 13 Notes.
News in the Midstream Sector: Rules for Natural Gas Storage
On November 7th, 2019, Resolution No. 722/2019 issued by the National Gas Regulation Entity (in Spanish, Ente Nacional Regulador del Gas and hereinafter, the “Resolution” and “ENARGAS”, as applicable), has been published in the Official Gazette, which approved the rules for natural gas storage (the “Rules”).
The Resolution has been issued within the framework of: (i) Law No. 24,076 (which contains the main rules for natural gas midstream and downstream), and (ii) its regulatory Decree No. 1,738/1998 (the “Regulatory Decree”), which foresee natural gas storage companies as agents of the natural gas industry.
The key takeaways of the Rules are singled out below:
- Scope
The Rules establish the conditions, procedures and requirements that must be complied with by companies willing to own and operate natural gas storage facilities, as well as the requirements that must be met in order to register such facilities under the natural gas storage registry.
Natural gas storage is defined by the Rules in the following terms: “the activity intended to store natural gas in underground or ground level facilities, during a certain period of time, including delivery, storage and further withdrawn, and when applicable, its liquefaction and regasification” and further states that all ancillary activities are comprised therein.
Storage facilities comprised by the Rules are: (i) LNG storage tanks, (ii) CNG and/or in bulk CNG loading and unloading facilities, (iii) LNG regasification and/or liquefaction terminals, (iv) LNG storage “peak shaving” facilities, (v) regasification or liquefaction mobile equipment, (vi) LNG transportation tanks, (vii) underground natural gas storage facilities, and (viii) CNG tanks.
Further, facilities outlined above are also subject to safety regulations and controls that ENARGAS may issue from time to time and must also be operated pursuant to NAG Codes (i.e. applicable local technical codes) and regulations passed by the ENARGAS regarding natural gas storage.
The following facilities are expressly left out from the Rules: (a) facilities aiming to use gas as a fuel for automobile transportation; (b) fuel stations with CNG and/or LNG storage; (c) methane tankers focused on water transportation used to import and export LNG from and towards a storage, regasification or liquefaction facility; (d) hydrocarbon production equipment which run with LNG as fuel, as well as other upstream activities.
The Rules indicate that such facilities must be operated pursuant to the rules, codes and best industry practices, until the ENARGAS issues specific regulation addressing those facilities.
- Authorized entities
Companies may carry out natural gas activities insofar a prior authorization issued by the ENARGAS is in place. Such authorization must be issued by the ENARGAS no later than forty-five (45) business days as of the date on which the application is submitted, thereof.
Companies that currently operate natural gas storage facilities are granted with a sixty (60) business day-term in order to begin the registration procedure.
The Rules allow gas transportation and distribution companies to act as natural gas storage agents, whether by their own or throughout a third party or by an affiliate. A separate balance sheet and accounting procedure is required for that end.
Finally, the Rules allow applicants to comply with the requirements set forth therein by way of a Technical Operator (legal entity with experience on administration, management operation and maintenance of natural gas storage facilities, of no less than 5 years).
A Technical Operation Agreement must be entered by and between the applicant and the Technical Operation.
- Types of facilities under the Rules
In order to determine the relevant technical requirements for each specific registration, the following categories are established in the Rules:
(i) Large LNG storage: facilities equaling or exceeding 15.000 m3.
(ii) Micro/small LNG storage: facilities of less than 15.000 m3.
(iii) CNG in bulk: facilities which load or unload CNG in bulk or mobile equipment.
(iv) Underground reservoirs: (a) depleted gas reservoirs; (b) salt caverns; (c) water aquifers, and (c) coal bed methane.
- Penalty regime
The Regime foresees a penalty regime raging penalties to revocation of the authorization, prior notice and defense by the natural gas storage agent.
**
At TRSyM we are available to provide clarifications or further information of any matter addressed above. For further information, please do not hesitate to contact either Nicolás Eliaschev or Javier Constanzó.
Argentina's Anti-Corruption Office Published a Guide for the Implementation of Compliance Programs in Small and Medium Enterprises
On November 12, 2019, through Resolution 36/2019, the Anti-Corruption Office (OA) published the Supplementary Guide for the implementation of Compliance Programs in Small and Medium Enterprises ("PyMEs" for its Spanish translation).
The aforementioned resolution adds to the guidelines published by the OA in 2018 for the design, implementation and evaluation of Compliance Programs within the framework established by the Corporate Criminal Liability Law No. 27,401.
This Complementary Guide for the implementation of Compliance Programs aims to provide practical tools and instruments that can be applied by PyMEs, considering the specific characteristics of their activities. This is a joint work with the Secretariat of Entrepreneurs and PyMEs of the Production and Labor Ministry.
It is especially important since, from the effective date of Law 27,401, legal persons, including small and medium-sized companies, are responsible for certain crimes related to corruption in which they may have intervened, or that are committed in the name, interest or benefit of the company. That same law promotes that legal entities implement Compliance Programs, as a condition to participate in certain contracts with the National Government, or as a parameter of graduation of an eventual penalty. The existence of a Compliance Program is also an element that, under certain conditions, can lead to the exemption of the criminal sanction.
The OA received and incorporated contributions from compliance experts, stakeholders and the general public, through the public consultation platform of the Ministry of Modernization Government.
The Complementary Guide for PyMEs can be checked on the OA's website.
For further information, do not hesitate to contact Eugenia Pracchia and/or María Emilia Cargnel.
Argentine Securities Commission Issues Resolution on Digitalization of Corporate and Accounting Books
On October 25th, the Argentine Securities Commission (“CNV”) issued General Resolution No. 813/2019 (“GR CNV 813/19”), which authorizes certain companies subject to CNV´s regulatory compliance (issuers of debt and shares publicly offered) to keep all of their corporate and accounting books digitally; a possibility that already existed but only for the Registry of Attendance to Shareholders’ Meetings book.
GR CNV 813/19 was issued following the guidelines of Law No. 27,444 (Simplification and De-Bureaucratization for the Productive Development of the Nation) and establishes the requirements to request such authorization, including the need to digitally sign corporate and accounting books, for which company signatories need to obtain a digital certificate issued by a licensed certifier.
In order to avoid problems with the digital signature verification software, companies must choose between the following alternatives:
- hire an online verification and signature verification service with a licensed certifying authority; or
- develop the signature verification and time stamp software and have an external auditor's opinion regarding its correct operation.
Furthermore, companies must keep support documentation of their accounting operations and their management. In case of entrusting the deposit of such documentation to third parties, they must state in a note to their financial statements the place where it is stored, and identify the subject in charge of the deposit and its address.
RG CNV 813/19 entered into force last Monday, October 28th.
For further information, do not hesitate to contact Juan Pablo Bove, Federico Otero, Julián Razumny, Pablo Tarantino, and/or Agustín Griffi.