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May 31, 2012
Lack of Repatriation of Proceeds of Exports
The Customs service pledges additional difficulties to exporters that do not repatriate the proceeds of their sales.
In recent months, the Government has been proactive in limiting the flow of currency out of the country, on the understanding that this helps to maintain the balance of payments.
Complementing this policy, the Customs service issued two instructions that allow us to foresee additional difficulties for exporters breaching the obligation to repatriate the proceeds of their sales.
1. Initiation of summary proceedings on the grounds of an alleged inaccurate declaration
The first instruction (i.e. number 2 of the year 2012), sets forth that the Customs service will initiate summary proceedings under Section 954, paragraph c) of the Customs Code to exporters that do not repatriate the proceeds of their sales. This summary proceeding applies whenever an importer or exporter makes an inaccurate declaration to the Customs service.
The instruction says that the service will “impute and condemn” exporters. This wording leads us to think that the Customs service will not be eager to take into consideration the defenses of the exporters.
But the most important observation is that the lack of repatriation of proceeds must not be framed as an inaccurate declaration; not even when the exporter had indeed received the payment.
The declaration that the exporter has to make when filing the export transaction includes the tariff code, the price and other items of the relevant goods. Such declaration does not become “inaccurate” because of a subsequent event (i.e. not repatriating the proceeds.). The obligation to repatriate the proceeds is set forth in foreign exchange rules, not in customs’ laws and/or regulations.
We can predict that the Customs service will try to apply fines on exporters ranging between one (1) and five (5) times the un-repatriated amounts.
2. General blockade of payments of exports’ incentives
In the second instruction (i.e. number 7 of the year 2012), the Customs service instructs that any exporter that has breached the obligation to repatriate the proceeds of their sales will not receive any export incentive.
The repatriation of proceeds is a condition precedent to the payment of the benefits of the relevant sale. But the Instruction goes far beyond this rule, since it sets forth a total blockade of the benefits of the entirety of the export sales.
The Customs authority is aiming to implement an electronic blockade based on the tax ID number (i.e. CUIT) of the exporter and the system implemented by the Central Bank to control any breach to the foreign exchange rules.