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04 May 2012
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:
The limits on payments for imported services and exported services are as follows:
Services covered by this reporting obligation include:
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:
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:
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Esteban P Rópolo