Reduction in the Terms for the Transfer into Argentina of Foreign Exchange Proceeds from Exports

By Juan M. Diehl Moreno and Roberto E. Silva (Jr)

Resolution No. 142/2012 of the Ministry of Economy and Public Finance, published in the Official Gazette on April 25, 2012 (“Resolution 142”), amended Resolution No. 269/01 of the National Secretary of Industry and Commerce (“NSIC”), as amended, which provided the term for the transfer into the financial system of foreign exchange proceeds from export transaction.

Following Resolution 142, the Argentine Central Bank (the “Central Bank”), through Communication “A” 5300, effective as from April 27, 2012, also introduced certain changes related to the term to transfer into Argentina of foreign exchange proceeds obtained from the payment of exports, among other changes.

1) Resolution No. 142/2012

a) Reduction of terms

Effective as of April 26, 2012, Resolution 142 reduced the terms stated in Resolution No. 269/2001 of the NSIC for the transfer of foreign exchange proceeds from export operations into the Local Foreign Exchange Market (“Mercado Único y Libre de Cambio” or “MULC”), affecting approximately 800 tariff codes.

Resolution 142 stated that exporters must transfer foreign exchange into the MULC within 15, 90 or 360 consecutive days (from the shipment), according to the tariff code in which the goods are classified under the Common Nomenclature of the Mercosur (Nomenclatura Común del Mercosur). These new terms were fixed according to the tariff code of the goods and were included in Appendix I of Resolution 142.

Regarding exports of precious metals (which include gold, silver and platinum, unwrought, semi-manufactured or in powder) and ores, Resolution 142 set a 15 consecutive day term, from the shipment of the goods, to transfer foreign exchange proceeds into the MULC. Also, Resolution 142 set a maximum term of 90 consecutive days to transfer foreign exchange proceeds from transactions related to base metals (iron, copper, nickel, aluminum, lead, zinc and tin, among others).

As a result, the new regulation obliges the exporters to accelerate the liquidation of their sales, having to enter foreign exchange into the country in a shorter term.

b) Transactions between related companies

On the other hand, Resolution 142 introduced one change to the terms that does not follow the ones included in the Appendix I (which depend on the tariff code of a specific good). In this regard, it provided that foreign exchange proceeds from transactions between related companies (disregarding their tariff code) shall be transferred into the MULC within 15 consecutive days from the shipment date. On May 2, without Resolution 142 delegating such powers, AFIP included within the customs service’s software (Sistema Informático María) the option for the customs officer to state whether there is connection, for which it used the concept of connection provided by General Resolution AFIP No. 1122 Appendix III.

c) Extension of the term. Evaluation Unit

Notwithstanding the reductions in term, the regulation grants exporters the possibility of requesting an extension of the terms, taking into consideration the nature and particular features of each transaction.

The request for an extension of the period will be analyzed by the Evaluation Unit (integrated by different representatives of Secretaries of the Ministry of Economy), who shall issue a report per request.

2. Communication “A” 5300 of the Central Bank

Effective as from April 27, 2012, Communication “A” 5300 of the Central Bank sets forth 15 working days to transfer and liquidate the export proceeds into the MULC. The term starts as of the collection abroad, that is, the day that the exporter receives the funds. According to the new regulation, the same term shall be applicable to the payments of anticipated payments and loans of export pre-financings.

However, Communication “A” 5300 afterwards clarifies that the expiry date for the liquidation of foreign exchange proceeds from exports shall be the shorter between: (i) the 15-day term mentioned in the previous paragraph; or (ii) the corresponding term considering the type of good, according to the general applicable regulations.

For example, if, under Resolution 142, the exporter of a certain product has 90 consecutive days since the shipment date to transfer the foreign exchange proceeds from exports into the MULC, but receives the payment of the export on day 40, then the 50 remaining days to liquidate the foreign exchange will not be available, because the process will have to be done within the following 15 working days. And vice versa, if the payment is received on day 80, the exporter shall liquidate such funds within the following 10 consecutive days (observing the 90-day limit); therefore, will not count on the 15-working-day term from the payment date to do so.

Following the aforementioned novelties, the new Communication revoked (regarding shipments with official consumption –embarques con oficialización a consumo- date as from April 27, 2012) the additional 120-working-day term for the liquidation of foreign exchange proceeds from exports, which were added to the terms established depending on the type of exported good. This revocation also affected the additional 180-working days in the event of transactions that were not paid by the buyer and foreign exchange transferred proceeded from the liquidation of the payment of an exportation credit insurance.

Secondly, the new Communication replaces paragraph 1 of Communication “A” 4860 by including the payments of pre-financings of exports in foreign accounts to the obligation to transfer such funds to correspondent accounts held in local financial entities within 10 working days as from the payment date of the funds abroad.

In addition, as transitory provisions, Communication “A” 5300 established, among other provisions, that:

a) The payments of exports, advance payments and pre-financing of exports that are held in correspondent accounts by April 26, 2012 –“by this date [of the Communication]”- shall be transferred into the MULC within 15 working days since such date; and

b) The loans of pre-financings of exports paid out by April 26, 2012 –“by this date [of the Communication]”- and with pending transfer to correspondent accounts in local financial institutions shall be: (i) transferred to a correspondent account held on a local financial institution within a 10-working -day term since April 26, 2012; and (ii) liquidated in the MULC within a 15-days-term since April 26, 2012.

Last but not least, Communication “A” 5300 provided that Argentine Pesos proceeding from the liquidation of the foreign exchange proceeds (from the export of goods), advance payments and loans of pre-financings of exports shall be held in a sight account under the client’s name in a local financial entity.