Exchange control regulations
As part of its aggressive policy to maintain its trade surplus, the Argentine government has recently introduced a new system imposing limits on payments for imported services. This system is similar in scope and operation to that in place for imports and is separately administered by the tax authority and the Central Bank (each using its own set of regulations).
The authority's General Resolution 3276/2012, as amended by General Resolution 3307/2012, sets out an notification regime on agreements dealing with the provision of cross-border services (both the import and export of services by local parties). This new notification regime came into force on April 1 2012.
The notification regime covers:
- payments made by Argentine residents in consideration for services rendered by foreign providers (ie, imported services); and
- payments made by foreign residents in consideration for services rendered by Argentine providers (ie, exported services).
The limits on payments for imported services and exported services are as follows:
- $100,000 for lump-sum payments; or
- $10,000 for each instalment for payments in instalments. Agreements involving payments below this amount are not subject to the regime. For long-term agreements for the periodic supply of services (eg, the monthly or weekly supply of services), the limit applies to all payments to be made for such agreement. Agreements of indeterminate amounts must always be informed to the tax authority.
Services covered by this reporting obligation include:
- royalty payments of any kind (including royalties paid for the use of patents and trademarks, copyright, know-how and technical assistance);
- payments for IT and other services; and
- payments for any type of professional and technical services.
The notification must be delivered as a sworn statement via the tax authority's webpage. The Annex to General Resolution 3276 lists the information that must be provided by the payor at the time of filing. Furthermore, General Resolution 3307 states that parties must file a digital version of the agreement that gave rise to such payments (ie, in PDF format). If the parties executed no agreement, then invoices or equivalent documents must be filed instead.
General Resolution 3276 envisages that other governmental agencies may adhere to this notification system, and will be able to comment or make observations on the information submitted. In addition, all aspects that are not specifically regulated by the resolution must be regulated by General Resolutions 3252, 3255 and 3256 (ie, the import resolutions), which regulate the advance import affidavit system.
The import resolutions establish a licensing system for all types of product definitively imported into Argentina as from February 1 2012. This licensing system functions as follows:
- Importers must file an advance import affidavit before the definitive import of any type of goods. The affidavit will be analysed by the tax authorities and by any other relevant government agency; only once approval has been granted may the import be carried out (for further details please see "Argentina keeps restricting imports").
- The agencies that have adhered to the system have a 72-hour period (from the date on which the affidavit is filed by the importer) to make any comments. This period may be extended by up to 10 calendar days in "those cases in which the specific activities of the agency in charge so requests", as expressly stated in General Resolution 3252. If the above periods elapse without comment being made, the import operation may continue. Otherwise, comments should be dealt with by the importer with the agency that raised them (for further details please see "Argentina's foreign trade paralysis continues").
- The affidavit will be valid for 180 days as from the date of issuance, which may be extended.
The affidavit system has been in place for more than two months. Based on anecdotal evidence, around 40% to 60% of all imports have been investigated by the Commerce Secretariat (although the pace of approvals appears to have accelerated in the past couple of weeks). The process for dealing with these investigations has not yet been regulated, giving rise to complaints by affected importers regarding significant delays and a lack of transparency in the process as a whole.
If the situation in place for affidavits is replicated by the notification regime set forth in General Resolution 3276 - and, in particular, if the Commerce Secretariat were to adhere to the system (as it does to the licensing system set out in the import resolutions) - significant delays in the approval process for royalty payments may be expected. General Resolution 3276, as well as the import resolutions, could therefore become an efficient way for the Argentine government to hinder the import of services into Argentina (and, especially, their subsequent payment).
At present, it is not possible to enter notifications on the export of services on the authority's website; only notifications on the import of services may be submitted. The export of services therefore will continue to go unreported until the website has been updated to include such information.
The Central Bank's Communication A 5295, dated March 9 2012, amended Communication A 5264 of March 1 2012. As a result of this change, access to the local foreign exchange market by local entities for the payment of professional and/or technical services, royalties, trademarks and/or technology transfer-related services, among other things, to foreign directly or indirectly related companies, or to legal entities set up or domiciled in a nil or low tax jurisdiction (or to any bank account in such jurisdictions), require prior authorisation by the Central Bank where such payments exceed $100,000 a year.
Moreover, pursuant to the aforementioned regulations, the transferor must be in full compliance with all mandatory registration requirements - not only those related to the Central Bank (ie, compliance in relation to reporting obligations set forth by Central Bank Communications A 3602 and 4237 dealing with the registration of foreign debts), but also those related to the agreement based on which access to the local foreign exchange market is requested.
As regards the previous authorisation requirement, on March 27 2012 the Central Bank issued Communication B 10321 setting forth several samples of the filings to be made by local residents to the Central Bank requesting authorisation for cross-border payments to be made to their foreign affiliates. Such samples refer to the minimum information to be provided to the Central Bank at the time of the request for authorisation.
When making any future payments for services to any foreign company, Argentine companies must comply with the tax and banking regulations detailed above. In principle, they must comply with the notification regime set forth by General Resolution 3276, as well as filing all documentation that may be required to prove that previous authorisation from the Central Bank is not required.
However, even if such documentation is filed, authorisation may not be granted due to:
- the risk of observations under General Resolution 3276, as explained; and
- according to anecdotal evidence, the fact that the Central Bank has been imposing de facto restraints on the payments of services abroad, preventing commercial banks from processing such payments, even in cases where no authorisation is required.
For further information on this topic please contact Esteban P Rópolo at Baker & McKenzie SC by telephone (+54 11 4310 2200), fax (+54 11 4310 2299) or email ([email protected]).