1. Introduction

On December 10th 2015, Mr. Mauricio Macri was sworn in as new President of the Argentine Republic putting and end to a populist twelve-year period in which the country had been run by Nestor and Cristina Kirchner.

The new administration has vowed and is committed to imprint a significant change in Argentina´s state policies, fueling the role of the private sector, opening up the economy, looking for and welcoming foreign investments through improving ties with the U.S. and many European nations, etc.

2. First measures

The new administration has already taken significant measures, setting up promising new foundations for the business environment in Argentina.

2.1. Foreign exchange market

The previous administration had enacted tight foreign exchange restrictions and controls affecting, among other issues, the purchase of foreign currencies and external assets, the inflows and outflows of funds and the imports and exports of goods and services.

The Central Bank of the Argentine Republic (Banco Central de la República Argentina or BCRA) has issued its Communication “A” 5850 (the CA5850) lifting the main restrictions and controls. Therefore, the situation is currently the following:

a. Purchase of foreign currencies and external assets

Pursuant to the CA5850, resident human persons, private legal persons incorporated in Argentina and not authorized to trade on the foreign exchange market, trusts set up in the country and local governments, may access to the foreign exchange market without requiring the prior approval of the BCRA or any other agency[1] for any of the following concepts: real estate investments abroad, loans granted to non-Argentine residents, Argentine residents’ contributions of direct investments abroad, portfolio investment of Argentine individuals abroad, certain other investments abroad of Argentine residents, portfolio investments of Argentine legal entities abroad, purchase of foreign currency bills to be held in Argentina (atesoramiento) and of traveler checks.

The foreign currency purchased for all the above-mentioned concepts cannot exceed the aggregate amount of USD 2,000,000 per calendar month in all the institutions authorized to trade in the foreign exchange market.

All transactions must be made through bank accounts, save for the purchase of foreign currency bills, up to USD 500 or less per calendar month, in which case the use of cash is admitted.

It is also allowed to access to the foreign exchange market for tourism and travel purposes, family assistance, rental or lease of real estate to non-Argentine residents, certain services when the beneficiary is a non-Argentine resident related to the client and the purchase of foreign currency notes by non-Argentine residents for any amount not exceeding USD 2,500 per calendar month.

b. Foreign financial indebtedness

Funds obtained from foreign financial indebtedness are not subject to any obligation to be transferred and sold in the local foreign exchange market. However, the transfer and sale of the funds in the local foreign exchange market will be a necessary condition in order for the debtor to repay principal or interest through purchasing the currency in the local foreign exchange market.

In the case the funds are transferred to Argentina, there is a minimum permanence period of 120 calendar days, within which the funds cannot be retransferred abroad. Anticipated payment is admitted as long as the said minimum permanence period is met.

There is an informative regime of foreign debts (BCRA Communication “A” 3602).

c. Company dividends

Provided that the company´s yearly financial statements have been passed by the partners’ meeting or resolution and said statements have been certified by external auditors, purchasing foreign currency to transfer dividends abroad has no cap in the case of non-resident shareholders or partners. Being the case of resident shareholders, the said calendar monthly cap of USD 2,000,000 applies.

d. Repatriation of capital of foreign direct investments

The BCRA, through Communication A 5861, has set forth that non-Argentine residents have access to the local foreign exchange market to repatriate their direct investments, without requiring prior approval from the Central Bank, as long as such investments have been transferred and sold in the local foreign exchange market as from December 17th 2015.

Being the cases of repatriation of funds for capital stock reduction or refund of irrevocable partner´s contribution, certain specific corporate information and documentation must be filed (subsections a) through g), section 1.13. of the BCRA´s Communication “A” 4662 as amended by Communication “A” 5649) and proof of the compliance with the information required by the direct investments reporting system (Sistema de Relevamiento de las Inversiones Directas en el Exterior y en el País pursuant to BCRA´S Communication “A” 4237) be rendered.

e. Non-Argentine Resident Portfolio Investments

Non-Argentine residents have free access to the local foreign exchange market to repatriate their portfolio investments, without requiring prior approval from the BCRA, as long as such investments have been transferred and sold in the local foreign exchange market as from December 17th 2015, and the 120 calendar days minimum permanence term be met. BCRA´s previous approval is required, if the investors are either domiciled or have residences in jurisdictions not included in the list of cooperating countries for tax transparency purposes (Decree Nº 589/2013).

2.2 Foreign commerce

Imports

Goods

Imports of goods as of December 17th 2015 can be paid through access to the local foreign exchange market without any limit[2].

The Federal Tax Authority (AFIP), issued Regulation 3823 creating the Integral Import Monitoring System (Sistema Integral de Monitoreo de Importaciones or SIMI by its acronym in Spanish).

The SIMI covers final imports and obliges importers to file electronically certain information[3] with the AFIP, prior to issuing the purchase order, production order or similar transaction document. The information included in the SIMI is available to all adhering agencies[4], which may object to the import within 10 business days, unless otherwise specified in the agreement between the AFIP and the relevant agency. In case no objection is raised, the SIMI will be deemed approved and the import will proceed. In case of objections, the importer must solve the objection directly with the relevant agency. The approved SIMI will have a 180 days expiration date from its filing.

Exemptions to the SIMI´s are few (e.g. samples, donations, imports by courier, etc.)[5].

Automatic and Non-Automatic Import Licenses

The Ministry of Production, through Resolution 5/2015, established a system of automatic (Licencia Automática de Importación or LAI) and non-automatic import licenses (Licencia No Automatica de Importación or LNA).

Resolution 5 established that importers of products of definite consumption destination included in the Mercosur Tariff Code must obtain a LAI prior to entering the product to Argentina. Certain products which are listed in Annex II to XVII of Resolution 5[6] will be subject to LNAs.

To obtain an LNA, importers must submit certain information (FOB value of the products, type and quantity, commercial brand, model, country of origin and of shipping, etc.) through the SIMI. Importers may be also required to submit additional information or documents. The Secretary of Trade is the application authority.

Import licenses will be valid for 90 calendar days, once approved by the SIMI.

Exceptions to the import licensing regime are: donation regime goods; sample regime goods; diplomatic exemption regime; import of products with duties and tax exemption; import of products from the Special Custom Zone (Tierra del Fuego, Antártida e Islas del Atlántico Sur); import of products by the General Secretary of Executive Branch (Secretaria General de la Presidencia de la Nación); etc.

Services

Access to the foreign exchange market for payments of services rendered as from December 17th 2015 may be also carried out without any limits. An advance affidavit statement is still in place and must be filed with the AFIP (Declaración Jurada de Autorización de Servicios ⎯ DJAS). DJASs must be filed for each service agreement, provided that the agreement is for an amount of US $100,000 or more per year or the installments are for the amount of US $10,000 or more per month.

Exports

Argentine residents are still required to transfer and sell on the foreign exchange market the foreign currency proceeds from exports of goods and services. However, withholding tax on exports have been eliminated or reduced, except for certain products, like soy and leather (Decree N° 133/2015 and Decree N° 166/2015).

A sworn statement for foreign sales (Declaraciones Juradas de Ventas al Exterior) has been established by joint resolutions of the Ministry of Agricultural Industry, Ministry of Treasury and Public Finances and Ministry of Productions (Resolutions N° 4/2015, 7/2015 and 7/2015) applicable for agricultural products.

Should you need more information on any of the topics covered, please, do not hesitate to contact us.

***

[1] The AFIP’s prior approval is no longer required for the purchase of foreign currency (Resolution 3821).

[2] In the case of payments of imports in advance of non-capital goods, the term to provide evidence of the nationalization of the goods is, as from December 17, 2015, 180 calendar days. For capital goods, the term is 365 calendar days (Third paragraph of point 4.2 (vi) of Communication “A” 5274 of the BCRA, amended by Communication “A” 5647)

[3] (Tax ID number (CUIT) from the importer and from the custom agent, if applicable; FOB value and correspondent currency; SIM custom tariff code/ AFIP code; Type and quantity of commercialized units; Products’ conditions; Country of origin; SIMI subscriber; Country of shipping).

[4] The adhering agencies are: Secretary of Trade (Secretaría de Comercio); Food, Drugs and Medical Technology Administration (Administración Nacional de Medicamentos, Alimentos y Tecnología Médica); Secretary of Drug Addiction Prevention and Fight against Drug Trafficking (Secretaría de Programación para la Prevención de la Drogadicción y la Lucha contra el Narcotráfico) and Grape Growing and Wine Production Institute (Instituto Nacional de Vitivinicultura).

[5] Re-import regime; Import or export regime to compensate shipping of fault goods; Donation regime; Samples regime; Diplomatic exemption regime; Import of goods with duties and tax exemption;Courier regime; Postal delivery regime.

[6] e.g.: textile, footwear, toys, domestic appliances, motorbikes, automobile parts, etc.

Author: Mario E. Castro Sammartino (Buenos Aires, Argentina)

Republished with permission by the Gabriela Noemi Smith Law Firm, PLLC

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