Since the beginning of 2018, monetary depreciation has taken place in our country's currency against the EUR and the Dollar. In order to prevent the possible loss of value in Turkish Lira in near future again, regulations regarding foreign exchange liabilities have been made. The most important regulation is the introduction of mandatory repatriation of export revenues back to Turkey. In addition to this, contractual obligations indexed to foreign currency between Turkish residents are prohibited to an extent.
Keywords: Foreign Exchange Liabilities Regulations, Foreign Exchange Liabilities, Export Costs, Customs and Foreign Trade.
In this study, the details of the recent regulations, their aims and their possible effects on the import and export operations of Turkey will be examined.
I. REGULATIONS MADE IN THE FRAMEWORK OF THE PROTECTION OF TURKISH LIRA
a. Communiqué on Export Prices numbered 2018-32/48
The first regulation regarding the foreign exchange liabilities is the Communiqué on the procedures and principles for the issuance of the export revenues' repatriation numbered 2018-32/48 published in the Official Gazette numbered 30525 dated 04/09/2018 ("Communiqué"). The most important innovation is the necessity of repatriation of the export revenues back to the country. The implementation period of the Communiqué is 6 months.
i) Time Period
This regulation implies that the costs relating to export transactions carried out by residents of Turkey need to be brought back to the country right after the payment, which is consequently transferred to the bank mediating without a delay, is made. The export revenues must be repatriated within 180 days of the actual export date. In addition to this, at least 80% of the exports revenues repatriated need to be sold to a bank.
ii) Exports in advance
In the event that the export price is received in advance without actual exportation, the necessity to carry out the export within 24 months is one of the issues regulated in the Communiqué.
Prepayments which are not fully refundable or whose exports cannot be carried out in the designated time will be subject to prefinancing provisions. In case of the extension of the export commitments, which are subject to prefinancing provisions within the framework of the provisions of the relevant legislation, the period of use shall also be deemed extended for the additional period of time provided that the buyer agrees.
Pre-financed export is, the loans, which exporters provide for themselves from the buyers abroad or foreign international financial institutions and shall be used via the banks in Turkey, to fund the export like sales, deliveries and activities with the relevant goods and service. Therefore, if the exports are not made within 24 months despite the export amounts collected in advance, it is considered that the cost will be considered as credit and evaluated accordingly.
iii) Specialized Exports
In accordance with Article 5 of Communiqué; different time periods are designated for the repatriation for specialized exports other than the general 180 days rule. They are stated as below;
- -365 days for exports that are made by the contractor companies doing business abroad,
- 180 days following the final sale of the exports revenues to be made through the consignment;
- 180 days following the end of the international fairs, exhibitions and weeks for the goods that has been sent to be sold at those events
If the goods exported ad interim are not returned within the period or within the additional period or if they are sold within this period, the sale export revenues shall be returned to the country within 90 days from the expiry date or the final sale date and shall be sold to a bank.
For the export transactions made by credit or leasing in accordance with the current export regime and leasing legislation, the export revenues must be sold to the banks within 90 days following the due date specified in leasing or rental agreement.
iv) Liability in Exports and Discount on Export Prices
Communiquê imposes duties regarding the repatriation of the export revenues not only for exporters but also for the banks. These scope of duties and responsibilities assumed for the Banks will be determined by Ministry of Treasury and Finance.
Banks have the power to examine and conclude the discount requests that has been made with respect to the export revenues such as; freight, insurance, commission, warehouse, custom, and factoring expenses, weight and quality discrepancies and capital movement costs, and invisible transaction expenses.
v) Account Closing, Notice and Additional Period
The institutions related to the granting of additional time for the closure of the account, notice and additional period are regulated in the Article 8 of Communiquê. Intermediary banks shall inform tax office or the tax office directorate in writing within five working days if the repatriation of the export goods is not actualized in the stated period.
Within the period of 10 working days following the notification of the relevant tax office or the tax office directorate, related tax office shall send a notice for 90 days to the parties in order them to close the accounts or notify a force majeure stated in Article 9 of Communiquê and/or a valid ground
vii) Force Majeure
According to the Communiqué, following conditions may be considered as a force majeure;
- The bankruptcy, declaration of concordato, permanent shutdown, the decision to postpone the bankruptcy about the company, the death of the owner of the firm,
- Strike, lockout and average,
- Closing of the accounts due to the decisions and transactions of the importer or importer country authorities' or the transactions of correspondent banks being impossible,
- Natural disaster, war and blockade,
- Loss, damage or destruction of goods,
- Filing a lawsuit or applying for arbitration,
The accounts can be closed by the banks via cancellation without the entire export revenue has repatriated, if;
There is a deficiency up to 10% of the exportation revenue when under the relevant declaration or form, while doing it is provided that such missing portion is equal to or less than USD 100,000,
The amount is between USD 100,000 and USD 200,000, relevant tax departments are authorized for the closure of those accounts (taking force majeure events stated above into account)
The missing amount is equal to or exceeds USD 200,000 requests for closure are required to be made to the Ministry.
Sanctions regarding the issues relating to the issuance of export revenues, is not mentioned in the Communiqué. However, when we consider that the legislation in question is based on the legislation regarding protection of the value of Turkish Lira, The Article 3 of Protection of the Value of Turkish Currency Law numbered1567 ("Law No:1567") can be applied to determine these sanctions. It is considered that the administrative fine, ranging from three thousand Turkish Liras to twenty five thousand Turkish Liras, shall be applied, which is the general sanction in the Article 3 of the Law No:1567.
b) Presidential Decree No. 85 dated 12/09/2018
In the Presidential Decision numbered 85 published at the Official Gazette dated 13.09.2018 and numbered 30534 amending the Decree No. 32 on the Protection of the Value of Turkish Currency, it is determined that residents of Turkey, except for some conditions as it is determined by the Ministry of Treasury and Finance, cannot determine to pay for securities, real estate purchases - all kinds of securities and real estate purchase, including car and financial leasing, rent and lease of all kinds of real estate, including leasing, business, construction and work contracts and other payment obligations arising from these agreements, in foreign currency or foreign currency indexed.
II. THE POTENTIAL IMPACTS OF THE REGULATIONS ON FOREIGN TRADE
Ministry of Treasury and Finance has prepared an informational presentation about the entry into force of the Communiqué and the questions that may arise for the implementation of the Communiqué. In this presentation, following subjects are clarified by the Ministry:
The amount of the exports incurred before the entry into force date of the Communiqué but not paid by the importer at the actual import date is not covered by the Communiqué. However in the presentation; it is stated that this situation is out of scope of the Communiqué.
Also, they are clarified that;
- Transit trade, custom invoice, shuttle trade, E-CCD (micro export) and service exports are not covered by the Communiqué.
- Selling the export revenues not only to the intermediary bank specified in the export declaration but also to any bank is possible.
Additionally, approval of the Ministry's Authority is required to allow the collection of export revenues which are designed to be paid as credit payment and the possibility the export revenues in foreign exchange currency other than the one stated in the customs declaration.
In conclusion, we have concluded that the termination of the free practice since 2008 in terms of bringing export revenues to the country is not desirable for exporters. These regulations brought work load for the parties of foreign trade and administration. Although the implementation period of the aforementioned Communiqué is foreseen as six months, in the short term, it is likely that the implementation will spread over a longer period depending on the course of the foreign currency bottleneck and economic conjuncture.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.