Nueva Normativa Cambiaria | Comunicación BCRA “A” 7030.
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Banking & Financial Institutions Department report | New Foreign Exchange Regulations | BCRA Communication “A” 7030
Dear Sir or Madam,
We hereby inform you that, on May 28, 2020, the Argentine Central Bank (“BCRA” for its acronym in Spanish), issued Communication “A” 7030 (the “Communication”), which sets forth certain important measures regarding access to the foreign exchange market (“FX Market”).
Please find below our comments regarding the most important aspects of the Communication.
A. FREELY AVAILABLE FUNDS AND ACCESS TO THE FX MARKET.
The Communication sets forth as a new requirement for the access to the FX Market (with some minor exceptions) that financial institutions must request their clients to file an affidavit stating that:
(i) All of its foreign currency holdings in Argentina are deposited in local financial institutions. In other words, to access the FX Market a person will have to declare that they do not have foreign currency outside of the banking system (such as funds in a safe-deposit box). However, the Communication does not provide any detail regarding the funds that are deposited in investment accounts opened in stockbrokers or similar, considering that they are not “financial institutions”;
(ii) It does not have any “available foreign liquid assets”. The Communication defines this as, among others, “holdings of cash in foreign currency, availabilities in gold, on-demand deposits in foreign financial institutions and other investments that may allow immediate availability of foreign currency”.
However, exceptionally, in case the client has “foreign available liquid assets” on the same day it requests access to the FX Market, the financial institution may accept the required affidavit, provided that the client is able to provide sufficient evidence that these foreign assets were fully used during the same day to the performance payments that would have had access to the FX Market; and
(iii) It undertakes that it will transfer into Argentina and convert into Argentine Pesos in the FX Market within 5 business days, any funds received abroad arising from collections of (a) loans; (b) term deposits; or (c) sales of any type of assets (e.g. shares, securities, goods, etc.); in case such loans, deposits or assets were granted, constituted or acquired after May 28, 2020.
In consequence, pursuant to the Communication, Argentine residents are required to use their available foreign liquid assets prior to requesting access to the FX Market. It should also be noted that there is a modification in the concept of “freely available funds” (not legally defined), through the addition of new transactions whose collections have to be mandatorily settled into Argentine Pesos.
There are certain exceptions (which are very limited) to the fulfillment of these obligations.
B. PAYMENTS OF IMPORT OF GOODS AND COMMERCIAL INDEBTEDNESS.
The access to the FX Market is restricted, until June 30, for various concepts related to the payment of imports and the amortization of principal of debts originated in the import of goods.
Note that the Communication does not clearly define what is included in the concept of “debts originated in the import of goods” since the Communication does not reference the definition provided in the FX Regulatory Framework (established in Communication “A” 6844, as amended). It is possible that this concept will be clarified later by the BCRA.
Additionally, for the access to the FX Market, clients must submit an affidavit stating that “the total amount of payments associated with the import of goods made through the FX Market during 2020, including the payment that is being requested, does not exceed the amount for which the importer would have access to FX Market considering the imports of goods recorded on its behalf on the SEPAIMPO system, and that were made cleared by customs between January 1st, 2020, and the day prior to access to FX Market”.
The Communication also states that in the total amount of payments for import of goods associated with the imports described above, the payments for amortizations of lines of credit and/or commercial guarantees should also be included.
It should be noted that there are several doubts about the scope of the implications of this limitation. For example, it is not clear how the calculation should be made of the payments already performed vis-à-vis customs registries, among other issues.
There are some exceptions to this restriction, such as private companies under the control of the National State, entities in charge of providing critical medicines to patients when they make advance payments for this type of goods, and the payments of imports not yet cleared by customs when the total amount of payments pending customs clearance as of September 1, 2019, does not exceed the equivalent of US$ 250,000 (including the amount for which access to the FX Market is being requested).
C. OFFSHORE FINANCIAL INDEBTEDNESS WITH RELATED COUNTERPARTY.
It is established that, until June 30, it will be necessary to obtain BCRA prior approval in order to access to the FX Market for the cancellation of principal payments (not interest services) of offshore financial indebtedness when the lender is a related entity.
D. RESTRICTION PERIOD FOR TRANSACTIONS WITH SECURITIES.
On April 30, 2020, the BCRA issued Communication “A” 7001 and established a new requirement that is applicable to foreign exchange sale transactions (i.e. those corresponding to the “outflow of the foreign exchange market”).
Pursuant to said Communication, financial institutions shall require their clients to file an affidavit, by which they have to declare that they have not sold securities with settlement in foreign currency or transferred them to international depository agencies abroad during the last 30 calendar days, and will not engage on such activity in that day and within the following 30 calendar days. However, as per the Communication, the timeframe has been extended for 90 calendar days.
In consequence, clients will have to file an affidavit stating that they have not performed the above-mentioned securities transaction in the past 90 calendar days, and undertake not to do so for the next 90 calendar days.
This restriction is not applicable to (i) operations carried out by the financial institution themselves; (ii) cancellations of financing in foreign currency granted by local financial entities, including payments for consumption in foreign currency made by means of credit cards; and (iii) transfers abroad in name of natural persons which are beneficiaries of pensions paid by the local social security, as established by the regulations.
Do not hesitate to contact us should you require any further information on this matter.
Kind regards,
Pablo J. Torretta