MOVING CAPITAL IN AND OUT OF CUBA: FINANCIAL TRANSACTIONS, BANKING, MONEY TRANSFERS & TAX LAWS APPLICABLE TO DOING BUSINESS IN CUBA

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1 MOVING CAPITAL IN AND OUT OF CUBA: FINANCIAL TRANSACTIONS, BANKING, MONEY TRANSFERS & TAX LAWS APPLICABLE TO DOING BUSINESS IN CUBA Jennifer Correa Riera Fuerst Ittleman David & Joseph PL Although President Obama s December 2014 announcements have greatly changed the United States relationship with Cuba, the Cuba embargo remains in pla8ce. Most transactions between the United States or persons subject to the United States jurisdiction and Cuba continue to be prohibited and the Office of Foreign Assets Control (OFAC) continues to enforce the probations of the Cuban Assets Control Regulations (CACR). I. REGULATORS & BANKS IN CUBA TODAY ACCORDING TO THE CUBAN GOVERNMENT a. Banco Central de Cuba i. Banco Central de Cuba was created on May 28, 1997 as the bank of issue and central bank of Cuba. ii. The functions of Banco Central de Cuba were previously handled by Banco Nacional de Cuba. iii. Banco Central de Cuba was created by Law No iv. Banco Central de Cuba has the following objectives as discussed in its charter: 1. To issue the national currency and seek for its stability. 2. To contribute to the macroeconomic balance and orderly development of the economy. 3. To keep custody of the country s international reserves. 4. To propose and implement a monetary policy which allows to attain the economic goals established by the country. 5. To ensure normal internal and external payment operations. 6. To dictate mandatory regulations. 7. To exercise the functions related to the discipline and supervision of the financial institutions and representative offices authorized to establish themselves in the country and of any other entrusted to it by the laws. 1 1 Banco Central de Cuba, Commercial Banks, located at (last viewed October 5, 2015). 1

2 b. Banco Nacional de Cuba i. Banco Nacional de Cuba was created by Law No. 13 of December 23, 1948 as the central state bank. Banco Nacional de Cuba was created to have its own autonomy and independent legal status and assets. ii. On February 23, 1998, Decree-Law No. 181 was promulgated implementing the bank s structure, functions, and activities. iii. Banco Nacional de Cuba has the following objectives as discussed in its charter: 1. To issue bank guarantees of all kinds under previous evaluation of the economic-financial management of the requesting entity. 2. To issue, accept, discount, guarantee, and negotiate bills of exchange, promissory notes, checks, and other documents related to trade denominated in Cuba s national currency or foreign currency. 3. To fix interest rates in operations as established by Banco Central de Cuba. 4. To create or license official export credit insurance entities according to effective legislation. 5. To keep record and control, service and handle the foreign debt the Cuban Government and Banco Nacional de Cuba have contracted with foreign creditors to the date on which Decree-Law No. 172 of 1997 went into effect. 2 iv. Banco Nacional de Cuba does not engage in commercial transactions in actual practice. v. Banco Nacional de Cuba has offices in several cities including Beijing, China and Madrid, Spain. c. Banco de Crédito y Comercio i. Banco de Crédito y Comercio was created as a commercial bank under Agreement No of the Executive Committee of the Council of Ministers of November 12, ii. Banco de Crédito y Comercio holds a General License granted by Banco Central de Cuba under Resolution No. 1 of iii. According to the Cuban Government, Banco de Crédito y Comercio has a network of over 200 completely automated branches throughout the island of Cuba. 2 Id. 2

3 iv. Banco de Crédito y Comercio provides internet banking services to clients through Virtual BANDEC as discussed by the Cuban Government. d. Banco Popular de Ahorro i. Banco Popular de Ahorro is the most diversified Financial Institution operating in Cuba with branches throughout the island. ii. Banco Popular de Ahorro is primarily the savings bank for Cuban nationals and receives funds from the national budget (i.e. social security deposits). The bank also takes time deposits in Cuban pesos and foreign currencies. e. Banco Exterior de Cuba i. Banco Exterior de Cuba was founded in 1999 and is based in Havana, Cuba. ii. Banco Exterior de Cuba provides security processing and collection, letters of credit, foreign trade financing, and debt acquiring services. f. Banco Financiero Internacional, S.A. i. Banco Financiero Internacional, S.A. is a bank entity, inscribed as a jointstock company under Decree-Law No. 84 of October 13, ii. Banco Financiero Internacional, S.A. commenced operations on November 5, 1984 by means of a License issued to it on October 17, 1984 to engage in banking and empowering it to carry on commercial banking operations, mainly in convertible currency. iii. Banco Financiero Internacional, S.A. is the bank used mostly by foreign companies in Cuba and various joint ventures. The bank also accepts accounts for temporary foreign residents in Cuba. g. Banco Internacional de Comercio, S.A. i. Banco Internacional de Comercio, S.A. was created by Corporate Charter No. 49 of October 29, 1993 and modified by Deeds No. 123/1996, 112/1998, and 1805/2001. The bank started operating on January 3, 1994 and is a subsidiary of Grupo Nueva Banca, S.A. ii. Banco Internacional de Comercio, S.A. receives and grants time deposits, loans, purchases and sells hard currency, precious metals, and securities, issues letters of guarantee and documents related to international and domestic trade. The bank also offers accounting and documentary services. 3

4 iii. Stonegate Bank, based in Pompano Beach, Florida, signed a correspondent banking agreement with Banco Internacional de Comericio, S.A. on July 21, h. Banco Metropolitano, S.A. i. Banco Metropolitano, S.A. was set up in June 1996 as a joint stock company. ii. Banco Metropolitano, S.A. is the principal retail bank in Havana, Cuba. The main services provided by the bank are as follows: 1. Current and savings accounts in national currency and in freely convertible currency. 2. Certificates of deposits and fixed term deposit accounts in freely convertible currency. 3. Payment and sale of national and international traveler s checks and credit cards. 4. Automated teller machine service, 24 hours a day, in three of its offices. 5. Direct payment of domestic invoices of clients from their accounts. 6. Letters of credit, bill discount and collection, safe deposit box rentals, and other operations related to its clients permissible under the law. 3 iii. The main objective of the bank is to provide services to embassies and foreign entities in Cuba, as well as to their officials, employees, and to the population in general. i. Banco de Inversiones, S.A. i. Banco de Inversiones, S.A. was established on February 14, 1996 and is the only bank in Cuba licensed to develop the investment banking functions in Cuba. j. Banco Industrial de Venezuela Cuba, S.A. i. Banco Industrial de Venezuela Cuba, S.A. was established in 2005 and it appears to be the only foreign bank authorized to operate in Cuba. Although a foreign bank, it is listed as a Cuban bank. ii. The bank was established under an agreement signed with the late Venezuelan President Hugo Chavez to finance transactions between Cuba and Venezuela. 3 Id. 4

5 II. NON-BANK FINANCIAL INSTITUTIONS IN CUBA TODAY ACCORDING TO THE CUBAN GOVERNMENT a. Grupo Nueva Banca, S.A. i. Grupo Nueva Banca, S.A. is a holding company that owns banks, finance companies, and casas de cambio (Casas de Cambio, S.A. or CADECA). ii. Grupo Nueva Banca, S.A. was established in iii. Grupo Nueva Banca, S.A. is the principal shareholder of Banco Internacional de Comercio, S.A., Financiera Nacional, S.A., Compañía Fiduciaria, S.A., and InCreFin, S.A. iv. Grupo Nueva Banca, S.A. is also engaged in a joint venture with Sabadell Bank from Spain where Grupo Nueva Banca, S.A. holds 50% interest in Financiera Iberoamericana, S.A. b. Compañía Fiduciaria, S.A. c. RAFIN, S.A. d. FIMEL, S.A. e. Casas de Cambio, S.A. (CADECA) i. Grupo Nueva Banca, S.A. is the principal shareholder of Casas de Cambio, S.A. or CADECA. CADECA was created by Corporate Charter No of June 14, Banco Nacional de Cuba issued CADECA a License to effect its operations that was ratified by Banco Central de Cuba by means of Resolution No. 75/2011. ii. CADECA is authorized to do the following among other things: 1. Purchase feely convertible currency; 2. Sell convertible Cuban pesos; and 3. Change convertible Cuban pesos into different denominations. 4 f. Corporación Financiera Habana, S.A. g. Financiera Cimex, S.A. (FINCIMEX) h. Financiera Iberoamericana, S.A. i. Compañía Financiera, S.A. 4 Banco Central de Cuba, Non-Banking Financial Institutions, located at (last viewed October 5, 2015). 5

6 j. Corporación Financiera Azucarera, S.A. (ARCAZ) k. FINATUR, S.A. l. Gilmar Projects, S.A. m. Servicios de Pago RED, S.A. n. FINTUR, S.A. o. FINEXIN, S.A. III. CHANGES TO COMMERCIAL & FINANCIAL TRANSACTIONS a. Persons subject to United States jurisdiction are authorized to establish and maintain a physical presence in Cuba to engage in authorized transactions under the Cuban Assets Control Regulations or transactions exempt from the Cuban Assets Control Regulations if they fit in any of the following categories. Establishing a physical presence includes setting up an office, warehouse, or retail outlet. i. New bureaus; ii. Exporters of certain goods authorized for export or reexport pursuant to 31 CFR and ; iii. Entities providing mail or parcel transmission services; iv. Providers of telecommunications or internet based services; v. Entities organizing or conducting certain educational activities; vi. Religious organizations; and vii. Providers of carrier and certain travel services. 5 b. The persons discussed in Section III(a) above may employ Cuban nationals in Cuba as well as persons subject to the United States jurisdiction in Cuba. 6 c. United States owned or controlled entities in third party countries may provide goods or services (including financial services) to Cuban nationals located outside of Cuba, as long as the transaction does not involve a commercial exportation, directly or indirectly, of goods or services to or from Cuba. 7 d. Provision of Legal Services 5 United States Department of the Treasury, Frequently Asked Questions Related to Cuba, located at (last viewed October 5, 2015). 6 Id. 7 Id. See 31 CFR

7 i. The provision of certain legal services to or on behalf of Cuba or a Cuban national is authorized under 31 CFR , as long as the receipt of payment of professional fees and reimbursement of incurred expenses is authorized under the regulation. ii. 31 CFR permits persons subject to the United States jurisdiction to receive, and make payments for, certain legal services from Cuba or Cuban nationals, subject to certain conditions. e. Payment for Legal Services i. 31 CFR (d)(1) provides that the receipt of payment of professional fees and reimbursement of expenses incurred for the provision of authorized legal services to or on behalf of a prohibited official of the Cuban government or a prohibited member of the Cuban Communist Party must be specifically licensed or otherwise authorized. ii. 31 CFR (d)(2) provides that the receipt of payment of professional fees and reimbursement of expenses incurred for the provision of authorized legal services to or on behalf of Cuba or a Cuban national, other than prohibited officials of the Cuban government or prohibited members of the Cuban Communist Party, are authorized. iii. 31 CFR (e) discusses the requirements for receipt of payment of legal fees and expenses incurred for the provision of authorized legal services from funds originating outside of the United States. IV. CHANGES TO REMITTANCES & BANKING a. The dollar limit previously in place under 31 CFR (b) on generally licensed donative remittances sent to Cuban nationals, other than prohibited officials of the Cuban Government or prohibited members of the Cuban Communist Party, has been removed. b. The dollar limitation on certain authorized remittances that authorized travelers may carry to Cuba has been removed. 8 c. The limitation on the number of remittances a Cuban national permanently residing in Cuba and departing from the United States may carry has been removed. 9 d. 31 CFR states that persons subject to the United States jurisdiction are authorized to receive remittances in the United States from Cuban nationals, wherever located, provided that the remitter is not a prohibited official of the Cuban government or a prohibited member of the Cuban Communist Party. 8 See 31 CFR (c)(4)(i) 9 See 31 CFR (d)(2) 7

8 e. Pursuant to a general license, banking institutions, as discussed in 31 CFR , brokers or dealers in securities registered in the United States, and money transmitters registered in the United States are allowed to process authorized remittances to or from Cuba without having to acquire a particular license, subject to recordkeeping and reporting requirements discussed therein. 10 f. Under a general license pursuant to 31 CFR (h), OFAC authorizes the unblocking and return of blocked remittances, provided that they are authorized under the regulations. g. Under a general license pursuant to 31 CFR (e), OFAC authorizes the unblocking and return of previously blocked funds transfers that could have been rejected or processed pursuant to 31 CFR (d)(1) or (d)(2) (certain wire transfers), 31 CFR (b) (official business of the United States government, foreign governments, and certain intergovernmental organizations) or 31 CFR (b) (funds transfers for third-country official missions and certain intergovernmental organizations), if the transfers could be rejected or processed under the regulations. h. Depository institutions, as defined by 31 CFR , may maintain accounts for certain Cuban nationals who are present in the United States in a non-immigrant status and will no longer be required to block such accounts if not closed prior to the Cuban national s departure. 11 Cuban nationals with such accounts are limited to accessing the account while lawfully present in the United States. 12 i. Pursuant to a general license, persons subject to the United States jurisdiction who are traveling to Cuba pursuant to one of the 12 authorized categories of travel may open and maintain bank accounts to access funds while in Cuba for authorized transactions. 13 j. Depository institutions, as defined under 31 CFR , are permitted to open correspondent bank accounts at banks in Cuba. 14 i. Stonegate Bank, based in Pompano Beach, Florida, signed a correspondent banking agreement with Banco Internacional de Comericio, S.A. on July 21, Stonegate Bank is the first United States bank to engage in a correspondent banking relationship with a Cuban bank since the establishment of the embargo. 10 See 31 CFR (a)(3) 11 See 31 CFR Id. 13 U.S. Department of the Treasury, Frequently Asked Questions Related to Cuba, located at (last viewed October 5, 2015). 14 See 31 CFR (a) 8

9 k. Cuban banks are generally not licensed to open correspondent bank accounts at United States banks. l. An expanded general license authorizes additional remittances to Cuban nationals in connection with the administration of estates. m. Certain payments made using online payment platforms are permitted for authorized transactions. n. Funds transfers on behalf of official missions of the Cuban government in the United States are authorized pursuant to 31 CFR