On 24 August 2021, the Colombian central bank published a draft for comments of a new regulation that seeks to modify the external regulatory circular on payment gateways. The draft aims to include the participation of payment service providers – the payment gateways – in foreign trade operations and to simplify their information and reporting obligations.
It seems that one of the purposes of the regulation is to facilitate and alleviate existing foreign exchange charges in the import and export of goods that are being paid for with credit cards, debit cards or through electronic transfers.
First, the draft would eliminate the outdated principle of "coincidence". Under the current international foreign exchange regime in Colombia, payments for imports can, in theory, be made only to the seller of the goods, its assignee or collector agent (if the collector agent is a Colombian resident, payment must be made in a foreign account; if it is a non-resident, payment must be made in a local bank account).
The new regulation would enable the individuals and entities that are listed as importers or exporters in the minimum required information that must be provided to the Colombian central bank (ie, the payment service providers) to be different from those listed in the customs documents.
Second, the foreign exchange regime currently facilitates the reporting and channelling of import and export funds of lower value when making payments by credit card. The draft extends this flexibility to payments made by debit card or by electronic transfers through payment gateways. Resident payment gateways are authorised to directly channel the currency paid or received in imports or exports of goods whose value is less than $10,000 (or its equivalent in other currencies) or that are carried out under the modality of postal traffic and urgent shipments (regulated in articles 253 and 254 of Decree 1165 of 2019). Likewise, the draft enables payment service providers to present the exchange declarations of the operations they channel, provided that certain requirements are fulfilled.
The draft establishes that if the payment for exports is made through a non-resident payment gateway, the exporter must provide the Colombian central bank, through an exchange intermediary institution, with the minimum required information for each foreign exchange operation.
The other thing that can be noted from the draft is that the regulator seems to be trying to force non-resident payment gateways to provide information to the Colombian central bank on a monthly basis. It is hoped that this extraterritorial scope will be corrected in the final version of the draft.
For further information on this topic please contact Monica Cubillos at Baker McKenzie by telephone (+57 1 634 1500) or email ([email protected]). The Baker McKenzie website can be accessed at www.bakermckenzie.com.