REPUBLIC ACT No. 6426 - Foreign Currency Deposit Act

REPUBLIC ACT No. 6426

AN ACT INSTITUTING A FOREIGN CURRENCY DEPOSIT SYSTEM IN THE PHILIPPINES, AND FOR OTHER PURPOSES.

Section 1. Title.– This act shall be known as the "Foreign Currency Deposit Act of the Philippines."

Section 2. Authority to deposit foreign currencies. – Any person, natural or juridical, may, in accordance with the provisions of this Act, deposit with such Philippine banks in good standing, as may, upon application, be designated by the Central Bank for the purpose, foreign currencies which are acceptable as part of the international reserve, except those which are required by the Central Bank to be surrendered in accordance with the provisions of Republic Act Numbered two hundred sixty-five (Now Rep. Act No. 7653).

Section 3. Authority of banks to accept foreign currency deposits. – The banks designated by the Central Bank under Section two hereof shall have the authority:

(1) To accept deposits and to accept foreign currencies in trust Provided, That numbered accounts for recording and servicing of said deposits shall be allowed;

(2) To issue certificates to evidence such deposits;

(3) To discount said certificates;

(4) To accept said deposits as collateral for loans subject to such rules and regulations as may be promulgated by the Central Bank from time to time; and

(5) To pay interest in foreign currency on such deposits.

Section 4. Foreign currency cover requirements. – Except as the Monetary Board may otherwise prescribe or allow, the depository banks shall maintain at all times a one hundred percent foreign currency cover for their liabilities, of which cover at least fifteen percent shall be in the form of foreign currency deposit with the Central Bank, and the balance in the form of foreign currency loans or securities, which loans or securities shall be of short term maturities and readily marketable. Such foreign currency loans may include loans to domestic enterprises which are export-oriented or registered with the Board of Investments, subject to the limitations to be prescribed by the Monetary Board on such loans. Except as the Monetary Board may otherwise prescribe or allow, the foreign currency cover shall be in the same currency as that of the corresponding foreign currency deposit liability. The Central Bank may pay interest on the foreign currency deposit, and if requested shall exchange the foreign currency notes and coins into foreign currency instruments drawn on its depository banks. (As amended by PD No. 1453, June 11, 1978.)

Depository banks which, on account of networth, resources, past performance, or other pertinent criteria, have been qualified by the Monetary Board to function under an expanded foreign currency deposit system, shall be exempt from the requirements in the preceding paragraph of maintaining fifteen percent (15%) of the cover in the form of foreign currency deposit with the Central Bank. Subject to prior Central Bank approval when required by Central Bank regulations, said depository banks may extend foreign currency loans to any domestic enterprise, without the limitations prescribed in the preceding paragraph regarding maturity and marketability, and such loans shall be eligible for purposes of the 100% foreign currency cover prescribed in the preceding paragraph. (As added by PD No. 1035.)

Section 5. Withdrawability and transferability of deposits. – There shall be no restriction on the withdrawal by the depositor of his deposit or on the transferability of the same abroad except those arising from the contract between the depositor and the bank.

Section 6. Tax exemption. – All foreign currency deposits made under this Act, as amended by PD No. 1035, as well as foreign currency deposits authorized under PD No. 1034, including interest and all other income or earnings of such deposits, are hereby exempted from any and all taxes whatsoever irrespective of whether or not these deposits are made by residents or nonresidents so long as the deposits are eligible or allowed under aforementioned laws and, in the case of nonresidents, irrespective of whether or not they are engaged in trade or business in the Philippines. (As amended by PD No. 1246, prom. Nov. 21, 1977.)

Section 7. Rules and regulations. – The Monetary Board of the Central Bank shall promulgate such rules and regulations as may be necessary to carry out the provisions of this Act which shall take effect after the publications in the Official Gazette and in a newspaper of national circulation for at least once a week for three consecutive weeks. In case the Central Bank promulgates new rules and regulations decreasing the rights of depositors, rules and regulations at the time the deposit was made shall govern.

Section 8. Secrecy of foreign currency deposits. – All foreign currency deposits authorized under this Act, as amended by PD No. 1035, as well as foreign currency deposits authorized under PD No. 1034, are hereby declared as and considered of an absolutely confidential nature and, except upon the written permission of the depositor, in no instance shall foreign currency deposits be examined, inquired or looked into by any person, government official, bureau or office whether judicial or administrative or legislative, or any other entity whether public or private; Provided, however, That said foreign currency deposits shall be exempt from attachment, garnishment, or any other order or process of any court, legislative body, government agency or any administrative body whatsoever. (As amended by PD No. 1035, and further amended by PD No. 1246, prom. Nov. 21, 1977.)

Section 9. Deposit insurance coverage. – The deposits under this Act shall be insured under the provisions of Republic Act No. 3591, as amended (Philippine Deposit Insurance Corporation), as well as its implementing rules and regulations: Provided, That insurance payment shall be in the same currency in which the insured deposits are denominated.

Section 10. Penal provisions. – Any willful violation of this Act or any regulation duly promulgated by the Monetary Board pursuant hereto shall subject the offender upon conviction to an imprisonment of not less than one year nor more than five years or a fine of not less than five thousand pesos nor more than twenty-five thousand pesos, or both such fine and imprisonment at the discretion of the court.

Section 11. Separability clause. – The provisions of this Act are hereby declared to be separable and in the event one or more of such provisions are held unconstitutional, the validity of other provisions shall not be affected thereby.

Section 12. Repealing clause. – All acts, executive orders, rules and regulations, or parts thereof, which are inconsistent with any provisions of this Act are hereby repealed, amended or modified accordingly, without prejudice, however, to deposits made thereunder.

Section 12-A. Amendatory enactments and regulations. – In the event a new enactment or regulation is issued decreasing the rights hereunder granted, such new enactment or regulation shall not apply to foreign currency deposits already made or existing at the time of issuance of such new enactment or regulation, but such new enactment or regulation shall apply only to foreign currency deposits made after its issuance. (As added by PD No. 1246, prom. Nov. 21, 1977.)

Section 13. Effectivity. – This Act shall take effect upon its approval.

Approved, April 4, 1974

 

 

 

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Published 20 May 2019, The Daily Tribune

In my previous column, I cited the rule against unauthorized disclosure, examination or inquiry into Philippine currency bank deposits under Republic Act 1405. I also explained that the prohibition is not absolute. It admits of various exceptions, carved out by statute and jurisprudence. Another law governs secrecy of foreign currency deposits. The rule ordaining their confidentiality is even more stringent, with fewer exceptions compared to RA 1405.

The most significant distinction is that while Philippine currency bank deposits may be examined or disclosed if there is a relevant court order, foreign currency deposits are exempt from court order and administrative process. In fact, they are exempt from execution, attachment and garnishment. Injunction will not lie to enjoin bank withdrawals of such deposits. Creditors cannot satisfy their claim then from the foreign currency bank deposits of their debtor. In simple words, the unpaid creditors, no matter how meritorious the claim may be, cannot seize the monies of their debtor if they are in foreign currency bank deposits. The purpose of RA 6426 is to encourage foreign currency deposits in order to beef up the country’s international reserves. The intent may be laudable but the stringent rule favoring these kind of deposits may be abused. Debtors who are anticipating adverse court decision can simply convert their deposits into foreign currency and instantaneously render them beyond the reach of judgment creditors.

In one case, a debtor obtained a foreign currency loan from a bank to invest in the purchase of a satellite. The loan was further secured by a bond issued by a reputable insurer. The loan was not paid. The lender called on the loan and ran after the surety which raised as defense that the loan proceeds were not used for the purpose specified in the surety agreement. Since there was misrepresentation, the surety contended that it could not be held liable on the bond. In support of its defense, the surety asked for a court subpoena to be able to inquire into the whereabouts of the loan proceeds. The Court held that this is not possible given the statute that exempts foreign currency deposits from any court order. (GSIS vs Court of Appeals, GR 189206, June 8, 2011)

In another case though, the Supreme Court allowed the garnishment of the foreign currency deposits of a foreign transient to satisfy a civil liability arising from his criminal offense. ( He raped a 10 year old minor but was able to abscond). In disregarding the rigid construction of RA 6426, the Court pronounced that the law could not be invoked to condone a wrongdoing or used for any purpose inconsistent with the salutary intent of the law. (Salvacion vs Central Bank of the Philippines 278 SCRA 27) The High Court likewise refused a trustee from invoking RA 6426 after he diverted the beneficial owner’s deposits to his own account, declaring that only the owner of the deposits can benefit from the protective mantle of RA 6426 (Van Twest vs Court of Appeals, 230 SCRA 42)

By law, notwithstanding RA 1405 and 6426, the Anti Money Laundering Council may also inquire into funds and deposits if there is a probable cause they relate to unlawful activities under the Anti- Money Laundering law (AMLA). Stated otherwise, the rule against unauthorized disclosure, examination and garnishment of deposits does not apply when it comes to AMLA violation.

After comparing the laws covering ₱ and $, I hasten to add that a revisit of RA 1405 cannot be complete without a corresponding review of RA 6426. Regardless of any possible amendment though, it should be stressed that laws cannot be used or applied in any manner contrary to their intent, rationale and purpose.

For comments and questions, please send an email to cabdo@divinalaw.com.