Argentina

The most common for-profit organizational types used in Argentina are the corporation (“sociedad anónima”) and the limited liability company (“sociedad de responsabilidad limitada”), which are well understood and traditional in nature. In many ways, they are similar but subject to review of the corresponding local tax advisors,  t in some countries the limited liability company can be considered as a pass-through entity for tax purposes, therefore it may be advantageous for foreign Enterprises to incorporate such type of entity in Argentina.

a. Enterprises that seek financing from investors and will have multiple owners tend to form public corporations or corporations. It is certainly possible to work with limited liability companies, but they cannot have more than 50 (fifty) members, so it is less standard.

b. Since  Social Enterprises (or “BIC Enterprises”, as they are known locally) are not specifically regulated, those for-profit companies that have specific social or environmental aims or purposes can be incorporated under any of the organizational forms provided by Argentine legislation. The organizational form more commonly used is the corporation. There are several public corporations that have included the principles that inspire BIC Enterprises in their corporate governance codes.

Other considerations are permitted only to the extent they do not detract from shareholder value. However, the provision of the values and principles of the BIC Enterprises in the corporate governance codes and/or in the contracts or by-laws, may give some flexibility to the directors and/or managers in the decision-making process.

No. Although as of the year 2016 several draft bills which provided for a particular regulation for companies of interest and collective benefit (i.e., those companies that integrate the creation of economic, social and environmental value) were filed for approval, none of those draft bills managed to become a national law.

Even in the absence of a national law, at the beginning of 2019, the CNV  published the “Guidelines for the issuance of social negotiable securities, green and sustainable”. These guidelines are intended to promote the development of this type of instrument in the Argentine capital markets. In these cases, the proceeds of the issuance must be used to finance or refinance projects or activities with green and/or social purposes (and their related expenses, such as research and development). All designated projects must provide clear environmental and/or social benefits and be duly detailed in the issuance prospectus. The use of funds must be properly described in the issuance prospectus and in the report generated by the independent external reviewer.

Yes, Social Enterprises are permitted to be formed and operated as Nonprofits (associations, foundations and civil entities), provided that the company’s purpose is eligible to be incorporated as a Nonprofit.

a. Social Enterprises are not given any special treatment by virtue of being a Nonprofit.

b. Social Enterprises that are organized as Nonprofits may enjoy the same tax benefits as other Nonprofits (to the extent they obtain the relevant tax exemption certificate) and have the same burdens and restrictions.

c. Yes, simple associations in Argentina are private law legal entities that can be formed by means of a private instrument, only with a notary’s signature certification. Their registration with the PRC is voluntary and they can also be managed without an auditing body if they have no more than twenty associates. From a tax perspective, this type of entity may also qualify as Nonprofits and, if they comply with formal and substantial requirements, may obtain the tax exemption certificate.

d. It is very common for Social Enterprises to form as Nonprofits.

Yes, there are cooperatives in Argentina.

Cooperatives are entities that were formed by their members with their own effort and mutual help in order to organize and provide services. Some of their main characteristics are the following:

1. Having a variable capital.
2. Granting one vote to each of their associates regardless of their number of social contributions.
3. Fostering cooperative education.
4. Providing services to associates and non-associates.

In Argentina, cooperatives are commonly used for the provision of public services. In fact, the State can associate to cooperatives and agree on their participation in the administration and audit of their activities as long as these agreements do not limit the cooperatives’ autonomy.

From a tax perspective, this type of entity may also obtain the tax exemption certificate.

 Please, see point 4 above.

There is no meaningful case law.

Not for enterprises generally, but companies that are admitted to the public offering regime must comply with an annual filing report on corporate governance, environmental and social issues.

No.

No.

No, there are not any major investor classes required to look at ESG issues when making investment decisions in Argentina. Some major investor classes are required by their own rules to invest in certain types of assets such as ESG compliant companies, small and medium-sized enterprises (“SME”), etc.

a. Not applicable.

b. Yes, it is permitted for major investors to consider such factors. These requirements shall be included in the major investors’ rules of investment and in the case of investors regulated by the CNV, such rules must be approved by the CNV.

Apart from profit motivation, investors tend to consider the development of sustainable ESG businesses and SMEs. Moreover, over the last few years, investors also considered sustainable financing opportunities. In that sense, the CNV passed a regulation for the issuance of green bonds and Bolsas y Mercados Argentinos S.A., Argentina’s most relevant market, created a special panel for green bonds. Since its approval, there have been four issuances of green and social bonds (Banco de la Ciudad de Buenos Aires, CP Manque SAU, CP Los Olivos SAU and Plaza Logistica SRL). The proceeds of these bonds were used for the construction of wind farms, green constructions and to generate employment. No major investor classes are required to look at ESG issues. Many are pushing for increased focus on factors other than the profit motive.

C. That said, there are a number of private funds and large institutional investors that do consider ESG issues when making their investment decisions, and there has been a rise in impact funds that use ESG factors as part of an investment assessment process.

Social Enterprises formed as Nonprofits receive more charitable investments. The for-profit corporate organizational forms tend to receive traditional investment.

Not relevant.

There is no special government funding specifically available to Social Enterprises as such. However, there are a number of loans, tax reductions and tax compensations depending on the industry, especially for small for-profit businesses. For example, the Ministry of Productive Development has several programs to promote national industries.  (https://www.argentina.gob.ar/produccion/medidas-desarrollo-industrial)

Yes. In Argentina, it is not relevant if they are formed as a social enterprise. What is relevant is the use of proceeds of the funds the enterprise received from the public market. As mentioned above, over the last few years, some companies issued green and social bonds. Please see the answer to question II.1. for more information.

Publicly traded enterprises (excluding SMEs) must file annual reports on the company’s compliance with ESG recommended actions included in the CNV rules. These companies must explain whether they comply with these actions or not; if they choose not to, they must explain how they comply with the principles included in the CNV regulations.

Even though there were some issuances of impact bonds in Argentina, at present they are not relevant in terms of volume.

No. Foreign investments are governed by Law No. 21,382. As a general principle, foreign investing has the same status and the same rights that the law grants to local investors.

Yes, crowdfunding was implemented in Argentina by Law No. 27,349 (the “Law”) with the intention to promote financing to entrepreneurs. Investors can participate in a crowdfunding project by investing in: (i) shares of a Corporation or a Simplified Corporation (sociedad anónima simplificada or “SAS”); (ii) loans convertible into shares of a Corporations or a Simplified Corporation; and (iii) certificates of participation in a trust.

The Law excludes from the crowdfunding system projects with charity purposes, donations, direct sales of goods and services or loans that cannot be converted into SA or SAS shares.

The crowdfunding platform must be registered within the CNV. The platform will have reporting obligations and certain rules of conduct and internal organization must be complied with.

There are tax exemptions available for Nonprofits generally, but there are no tax exemptions that are uniquely available for Social Enterprises structured using a for-profit organizational form.

Nonprofits (whether or not Social Enterprise) have two key tax benefits:

1. possibility of obtaining the tax exemption certification, in which case they will enjoy the following benefits: (a) Not being subject to Income Tax; (b) Not being subject to withholding and/or collecting tax regimes regarding Income Tax and Value Added Tax (“VAT”); and (c) Reduction of applicable tax rates and/or exemption from the tax on credits and debits in bank accounts; and
2. in addition, Nonprofits that carry out certain purposes (such as social assistance activities, educational activities under given conditions) may obtain a special authorization that allows donors to deduct donations made to such Nonprofits, as long as they are made in compliance with relevant regulations and up to the limit of 5% of their net income made in the corresponding fiscal year.

No.

No.

No.

No. However, Resolution No. 937/2020 of the National Council for Scientific and Technical Research (“CONICET” for its Spanish acronym) passed the regulatory frameworks applicable to Technology Based Companies (“TBCs”). TBCs are those companies whose main advantage is their capacity to research, develop and transfer technology, and that commercialize knowledge-intensive products and/or services. The purpose of the TBC framework is to regulate how CONICET may transfer its knowledge and technology to the productive and social areas in order to contribute to the development of the country. For that reason, TBCs may use knowledge and/or technology developed by CONICET and include CONICET’s agents as shareholders.

There are several benefits available for small businesses, including: tax reductions, tax compensations, loans, export reliefs and extended periods of time to pay debts to the government. (https://pymes.afip.gob.ar/estiloAFIP/pymes/ayuda/beneficios.asp)

The government also provides professional advice and counseling programs to help small businesses grow.

Furthermore, and due to the COVID-19 outbreak, the government has provided additional benefits to small businesses. These include:

1. Additional loans and tax reductions.
2. Companies providing electricity, gas and running water were prohibited from suspending or cutting their service to small businesses.
3. Freezing of Lease prices.

(https://www.argentina.gob.ar/produccion/medidas-pymes-covid)

No. However, according to article 4.11 of the Guidelines for the issuance of social, green and sustainable negotiable securities in Argentina, the issuer of these types of negotiable securities must annually provide up to date information regarding the use of the funds obtained. This information may be provided through an Impact Report which should include: (i) a brief description of the projects and the amount of money disbursed, (ii) qualitative performance indicators and, where feasible, quantitative performance metrics of the impact of the projects and the disclosure of the methodology and (iii) the underlying assumptions used to prepare the performance indicators and metrics.

No. However, the CNV is the authority for the application and authorization of the public offering of negotiable securities throughout Argentina, including the “social, green and sustainable negotiable securities.”

No.

Time and costs vary from jurisdiction to jurisdiction. In accordance with the regulations of the City of Buenos Aires, if no observations to the incorporation documents are provided by the Public Registry of Commerce, the incorporation of companies under the “urgent” procedure may take 5 business days as of its filing and includes the registration before the Tax Authority (“CUIT”). In the event the filling is not done under the “urgent” procedure, in regular conditions,  the incorporation may take between 10 and 15 business days. Under the current circumstances related to the COVID 19 pandemic, the Registry is working on limited hours and staffing basis, and therefore the process is significantly slower. Other registrations and requirements may be deemed necessary depending on the characteristics of the enterprise.  

For the issuance of green, social and sustainable bonds or financial trusts, the issuer must provide certainty on the credibility of the bond to investors. Therefore, external reviews must be performed, which can be carried through: (i) second party opinions, (ii) independent verifications, (iii) certification of a qualified third party, or (iv) rating agencies. The markets define the validity of the external reviews.

The reviewers can be selected from the Climate Bond Initiative’s approved list of reviewers or from other recognized national or international sources.

Startups can easily form and flourish in Argentina. There are a number of Enterprise forms available to choose from, there are relatively few reporting requirements for private for-profit businesses and incorporation processes are, in normal conditions, relatively fast and cheap.

Please, see point 3 above.

Under our corporate law, the general principle is that directors and officers must use their powers in the best interests of the company and shareholders, and may be liable vis-à-vis the company and its shareholders if they fail to do so. While they are not prevented from considering other interests, such as the environment or the larger community, it would be better if our corporate law expressly provided clear guidelines and rules to allow directors and officers to do so without breaching their duties.

According to Transparency International’s Corruption Perception Index, the perception of corruption in Argentina is high. There are specific legal frameworks penalizing bribery, money laundering, fraud and other corrupt conduct. In some cases, compliance programs are required (e.g. companies subject to AML regulations, entities entering into large contracts with the Federal Government). In other cases, effective compliance programs are rewarded with penalty reductions. Therefore, companies are encouraged to (i) evaluate and be mindful of applicable regulations regarding fraud and corruption, and (ii) establish compliance programs that effectively help to prevent, detect and remediatee wrongful conduct related to fraud and corruption. Also, from the point of view of corporate governance, a key element for companies is to be knowledgeable of these regulations and train their officers and employees to ensure compliance.

Providing tax benefits to Social Enterprises utilizing for-profit Enterprise forms (for instance, reduction of applicable income tax rate, the possibility of obtaining tax credit bonds to cancel general tax obligations; etc.).

Revising rules governing fiduciary duties of corporations and investment managers to enable or require them to consider factors other than financial return.

Implementing a uniform set of standards for ESG policies and reporting of public companies would make it easier for investors and consumers to compare and assess which enterprises are in fact promoting and implementing ESG initiatives, which would drive companies to perform better.

Standardize the identification of products and services provided by BIC Enterprises, in such a way that they are easily recognizable by the consumer public that values this type of entrepreneurship.

Please, see point 7 above.