Efficient Operation national economy in the system of world economic relations requires the Russian Federation to develop its own monetary policy.

At its essence, monetary policy is a set of certain principles, directions and activities determined by the state in the field of international currency relations.

Currency control is a mechanism for administrative supervision by the state over compliance with rules and regulations currency regulation.

Currency control was used to protect financial independence and stability monetary system, strengthening the exchange rate national currency, mobilization of foreign exchange resources.

In order to strengthen foreign exchange regulation by the state, combat the illegal “flight” of capital abroad, and prevent the concealment of funds from taxation, the state has established certain restrictions on residents’ transactions in foreign currency.

In particular, foreign currency received by resident enterprises (organizations), including from the export of goods (works, services) for foreign currency, is subject to mandatory crediting to their accounts in authorized banks, unless otherwise established by the Central Bank of the Russian Federation.

Control over the receipt of foreign currency from the export of goods is carried out through the mechanism established by the joint Instruction of the Federal Customs Service of the Russian Federation and the Bank of Russia "On the procedure for implementing foreign exchange control over the receipt of foreign currency earnings from the export of goods into the Russian Federation."

A special feature of this mechanism is that the technology for monitoring the receipt of foreign exchange earnings from the export of goods is based on the organization of information exchange between customs authorities that carry out clearance of goods and authorized banks that provide settlement services to Russian exporters.

Two documents have been introduced specifically to implement the technology of currency control over the receipt of proceeds from the export of goods: a transaction passport (TS) and an account card (AC).

When organizing control over the receipt of foreign exchange earnings from the export of goods, the activities of customs authorities are carried out in several stages.

First stage (preliminary control). At this stage, control is provided for the correctness of the design of the PS, the reliability of the data contained in them; monitoring the compliance of the transaction with current legislation; generation and submission of consolidated reporting forms to the Federal Customs Service.

Second stage (information and analytical control).

It provides for checking the accuracy of information received from customs authorities; formation of the main exchange document of currency control (CC) and sending it to the authorized banks conducting settlements for the transaction; receiving and processing management documents issued by the bank; comparison and analysis of information from customs authorities on the export of goods and authorized banks on the actual crediting of foreign currency funds to the exporter’s transit account; identifying potential violators of the established procedure for the receipt of foreign exchange earnings and bringing information to the customs authorities in whose coverage area exporters are registered.

At the third stage (final control), a targeted check of the exporter is carried out regarding possible non-receipt of foreign currency earnings; sanctions established by the Labor Code of the Russian Federation are applied.

The use of this control technology allows:

exercise control over the compliance of each currency transaction related to settlements with the actions of the exporter for the supply of goods;

get the opportunity to assess the real volumes of non-repatriation and shortfalls in foreign exchange earnings;

streamline the requirements for payment terms fixed when concluding foreign trade agreements;

create automated system prompt exchange and processing of information from customs authorities and banks.

The need to introduce foreign exchange control over the receipt of proceeds from the import of goods is due to significant foreign exchange losses of the state associated with transfers of foreign currency funds abroad and unconfirmed deliveries of imported goods.

The technology of currency control over the validity of payments in foreign currency for imported goods provides for the formation of an import transaction passport (ID), an account card (UKi), as well as a payment card (CP).

This currency control technology is based on the information exchange of the listed documents between the customs and banking systems. Barter transactions are not mediated by currency transactions. However, the volume of barter transactions is assessed in terms of value (currency).

The balance and equivalence of exports and imports in barter transactions are also determined in currency. Therefore, exchange controls also apply to barter transactions. A feature of the technology for monitoring barter transactions is the formation of a barter transaction passport (PSB).

Currency control is a form of state (administrative) coercion used to encourage residents and non-residents to comply with established rules for committing foreign exchange transactions, prevention, suppression of currency offenses and punishment of offenders.

Forms of currency control from the point of view of the method of ensuring the execution of the established order and legal consequences can be:

a) preventive measures;

b) preventive measures;

c) measures of responsibility.

Preventive measures are of a preventive, precautionary nature, apply to all economic entities and are not related to specific offenses.

TO preventive measures relate:

Registration by residents of a transaction passport in order to ensure accounting and reporting on foreign exchange transactions and foreign exchange control;

The obligation of residents to have supporting documents for currency transactions;

The obligation of business entities to submit supporting documents in accordance with the procedure established by the Government of the Russian Federation and the Central Bank of the Russian Federation;

The duty of currency control agents to monitor compliance with currency legislation;

Preliminary registration of accounts and transactions for the export, transfer of currency and securities, providing for the obligation of the business entity to submit the necessary documents, and the currency control agent to check the compliance of the documents with the law and make a decision on the case - to issue a registration document or to refuse to issue it with reason;

Notification of the opening of resident accounts in foreign banks and reporting on the flow of funds.

Preventive measures are aimed at forcing the cessation of illegal actions and creating conditions for bringing the perpetrators to justice. The Law on Currency Regulation and Currency Control No. 173-FZ provides for the following preventive measures:

Issuance by currency control authorities of orders obliging business entities to eliminate identified violations of currency legislation and acts of currency regulation authorities (Part 2 of Article 23);

Refusal by authorized banks to their clients to carry out foreign exchange transactions, as well as to open an account in case of failure to provide the required documents or submission of false documents (Part 5 of Article 23).

A significant part of the preventive measures are implemented by currency control authorities and agents in the process of checking compliance with currency legislation. At the verification stage, the norms of the law on currency control and the Code of Administrative Offenses of the Russian Federation are closely combined.

Responsibility measures for violations of currency regulation are applied based on the results of inspections carried out, in the manner established by the Code of Administrative Offenses of the Russian Federation. An administrative fine as a type of administrative punishment is applied for currency offenses (Article 15.25 of the Code of Administrative Offenses of the Russian Federation) by currency control authorities. If the person held accountable has not paid the fine within thirty days, in accordance with Art. 32.2 of the Code of Administrative Offenses of the Russian Federation, the official who made the decision sends the relevant materials to the bailiff to collect the amount of the administrative fine.

The basic principles of currency regulation and currency control in the Russian Federation are:

1) priority of economic measures in implementation public policy in the field of currency regulation;

2) exclusion of unjustified interference by the state and its bodies in foreign exchange transactions of residents and non-residents;

3) unity of foreign and domestic monetary policy Russian Federation;

4) unity of the system of currency regulation and currency control;

5) provision by the state of protection of rights and economic interests residents and non-residents when carrying out currency transactions.

5.2. Changes in the currency legislation of the Russian Federation

The currency legislation of the Russian Federation consists of Federal Law dated December 10, 2003 No. 173-FZ “On Currency Regulation and Currency Control” (hereinafter referred to as Law No. 173-FZ) and federal laws adopted in accordance with it (acts of currency legislation of the Russian Federation). Currency regulatory authorities have the right to issue regulatory legal acts on currency regulation issues only in cases provided for by Law No. 173-FZ. At the same time, acts of currency legislation of the Russian Federation and acts of currency regulation authorities are subject to official publication.

Unpublished acts of currency legislation of the Russian Federation and acts of currency regulation authorities are not applied (except for those that contain information related to state secrets). All irremovable doubts, contradictions and ambiguities in acts of currency legislation of the Russian Federation, acts of currency regulation bodies and acts of currency control bodies are interpreted in favor of residents and non-residents.

Previously, the procedure for carrying out currency transactions in the Russian Federation was regulated by the Law of the Russian Federation of October 9, 1992 No. 3615-1 “On Currency Regulation and Currency Control” (hereinafter referred to as Law No. 3615-1). With the entry into force of Law No. 173-FZ on June 18, 2004, significant changes occurred in the currency legislation of the Russian Federation.

New law on currency control is aimed at ensuring the implementation of a unified state currency policy, as well as the stability of the Russian currency and the stability of the internal foreign exchange market Russia.

Law No. 173-FZ introduced certain changes to the existing concepts (definitions) of currency regulation and currency control. So, for example, the currency of the Russian Federation is defined in the Law as banknotes in the form of banknotes and coins of the Bank of Russia, in circulation as legal means of cash payment on the territory of the Russian Federation, as well as funds in bank accounts and bank deposits, while Previously, the currency of the Russian Federation was defined, among other things, as funds in rubles in accounts in banks and other credit institutions in the Russian Federation, as well as in banks and other credit institutions outside the Russian Federation in the presence of an appropriate agreement concluded by the Government of the Russian Federation and the Bank of Russia with the authorities of a foreign state on the use of Russian currency as legal tender in the territory of the relevant state.

In Law No. 3615-1, the object of currency regulation was securities, denominated in the currency of the Russian Federation, which included documents (checks, bills and other payment documents), equity securities, options and other debt obligations denominated in the currency of the Russian Federation. Now securities are divided into internal and external securities.

Excluded from the category of currency values precious metals and natural gems. Currently, foreign currency values ​​include foreign currency and foreign securities.

The law provides new definitions of residents and non-residents, and introduces new concepts of “special account” and “currency exchanges”.

Residents – these are legal entities (organizations) created in accordance with the legislation of the Russian Federation, as well as their branches, representative offices and other divisions located outside the territory of the Russian Federation. Residents also include individual entrepreneurs, legally equivalent to legal entities-organizations, as well as individuals - citizens of the Russian Federation.

Non-residents - these are legal entities and organizations created in accordance with the legislation of foreign states and located outside the territory of the Russian Federation, their branches, representative offices and other divisions located on the territory of the Russian Federation, as well as individuals - citizens of the Russian Federation, recognized as permanent residents of a foreign state in accordance with its legislation

In accordance with Law No. 3615-1, resident individuals included persons with permanent residence in the Russian Federation, including those temporarily located outside the Russian Federation. The new Law divides resident individuals into two groups, which include:

1) individuals who are citizens of the Russian Federation, with the exception of citizens of the Russian Federation recognized as permanent residents of a foreign state in accordance with the legislation of that state;

2) foreign citizens and stateless persons permanently residing in the Russian Federation on the basis of a residence permit.

As before, the following are recognized as residents:

Legal entities created in accordance with the legislation of the Russian Federation, as well as their branches, representative offices and other divisions located outside the territory of the Russian Federation;

Diplomatic missions, consular offices of the Russian Federation and other official missions of the Russian Federation located outside the territory of the Russian Federation, as well as permanent missions of the Russian Federation at interstate or intergovernmental organizations.

According to Law No. 173-FZ, the Russian Federation, constituent entities of the Russian Federation and municipalities are included in the composition of residents, and enterprises and organizations that are not legal entities, created in accordance with the legislation of the Russian Federation, with a location in the Russian Federation are removed from the concept of “resident”. The list of persons classified as non-residents is now open and also includes other persons not indicated as residents.

5.3. Currency regulation and currency control authorities

In accordance with Chapter 2 “Currency Regulation” of Law No. 173-FZ, the currency regulation authorities in the Russian Federation are the Bank of Russia and the Government of the Russian Federation (previously the Bank of Russia was the main currency regulation body in the Russian Federation).

If the procedure for carrying out currency transactions, the procedure for using accounts (including establishing the requirement to use a special account) are not established by the currency regulatory authorities in accordance with this Law, currency transactions are carried out, accounts are opened and transactions on the accounts are carried out without restrictions.

Currency control in the Russian Federation is carried out by the Government of the Russian Federation, bodies and agents of currency control, which are defined in Article 22 of the Law.

Central Bank of Russia - currency control authority. It is responsible for monitoring the implementation of foreign exchange transactions by credit institutions, as well as currency exchanges. Authorized banks reporting to the Central Bank of the Russian Federation are currency control agents. Banking system is the central element of currency control.

Federal Service for Financial and Budgetary Supervision (under the jurisdiction of the Ministry of Finance of the Russian Federation) is a federal executive body authorized by the Government. The Federal Service carries out the functions of a currency control body directly and through its territorial bodies.

To main functions Federal service financial and budgetary supervision in the field of exchange control include:

Monitoring the compliance of activities carried out in the Russian Federation by residents and non-residents (except for credit institutions and currency exchanges) foreign exchange transactions with the legislation of Russia, the conditions of licenses and permits, as well as their compliance with the requirements of acts of currency regulation authorities and foreign exchange control;

Organization of checks of completeness and correctness of accounting and reporting on currency transactions.

Customs authorities also act as exchange control agents. Authorized banks, as currency control agents, transmit information to the customs authorities to perform the functions of currency control agents in the amount and manner established by the Central Bank of the Russian Federation.

Exchange control agents the new currency law called professional participants the securities market, including register holders (registrars) reporting to the Federal Securities Market Commission. Thus, the number of non-governmental organizations performing public legal functions in relation to other legal entities and individuals.

The rights of currency control authorities and agents have not changed significantly with the adoption of the new Currency Law.

Currency control authorities, within their competence, have the right to:

Issue orders to eliminate identified violations;

Apply penalties for currency offenses.

Currency control agents have the right to receive from residents and non-residents documents (the list of which is established by the Law) related to the conduct of a specific currency transaction, opening and maintaining accounts. The documents presented by business entities must be valid, executed in Russian (have a certified translation), in the original or in the form of a duly certified copy.

Currency control agents have the right to require the submission of only certain documents directly related to the currency transaction being conducted; there is no such restriction in relation to currency control authorities. However, business entities are required to submit only the documents specified in the list to both inspectors.

For the first time, the new Law limits the period for submitting documents at the request of currency controllers. It cannot be less than seven working days.

At the same time, the Law does not regulate the procedure for conducting inspections of compliance with currency legislation. The types of inspections, timing and frequency of their conduct, documents, appeal procedures, and so on are not specified. In the absence of such a procedure, inspectors retain the possibility of both arbitrarily determining the scope of the inspection and abusing their official powers.

5.4. Rights and obligations of residents and non-residents

When implementing currency control, residents and non-residents carrying out currency transactions in the Russian Federation are obliged to:

Provide relevant documents and information to currency control authorities and agents;

Keep records in the prescribed manner and draw up reports on the currency transactions they carry out, ensuring the safety of the relevant documents and materials for at least three years from the date of the relevant currency transaction, but not earlier than the date of execution of the contract;

Comply with the instructions of the currency control authorities to eliminate identified violations of acts of currency legislation of the Russian Federation and acts of currency regulation authorities.

Residents and non-residents who violated the provisions of acts of currency legislation of the Russian Federation and acts of currency regulation authorities bear responsibility in accordance with the legislation of the Russian Federation. Thus, Article 193 of the Criminal Code of the Russian Federation stipulates that failure to return a large amount (if the amount of funds in foreign currency exceeds five million rubles) from abroad by the head of the organization of funds in foreign currency, subject, in accordance with the legislation of the Russian Federation, to mandatory transfer to accounts in an authorized bank RF, is punishable by imprisonment for a term of up to three years.

In addition to criminal liability, administrative liability is provided for violation of currency legislation. Article 15.25 of the Code of Administrative Offenses of the Russian Federation establishes liability for:

For carrying out illegal currency transactions, that is, carrying out currency transactions prohibited by the currency legislation of the Russian Federation, violating the established procedure for opening accounts (deposits) in banks located outside the territory of the Russian Federation;

For failure to fulfill the obligation to sell part of the foreign currency earnings, as well as violation of the established procedure for the mandatory sale of part of the foreign currency earnings;

For failure by a resident to fulfill within the established time limit the obligation to receive foreign currency or the currency of the Russian Federation into their bank accounts in authorized banks;

For failure by a resident to fulfill within the established time limit the obligation to return to the Russian Federation funds paid to non-residents for goods not imported into the customs territory of the Russian Federation (not received in the customs territory of the Russian Federation), work not performed, services not provided, or for information or results of intellectual activity not transferred, including exclusive rights to them;

For failure to comply with the established procedure or deadlines for submitting accounting and reporting forms for currency transactions, violation of the established procedure for using a special account and (or) reservation, violation of the established uniform rules for issuing transaction passports or violation of the established storage periods for accounting and reporting documents or transaction passports;

For violation of the established procedure for importing and sending into the Russian Federation and exporting and sending from the Russian Federation the currency of the Russian Federation and domestic securities in documentary form.

In addition to the duties, Article 24 of the Law also provides for the rights of residents and non-residents; in particular, they have the right:

Familiarize yourself with inspection reports carried out by currency control authorities and agents;

Appeal decisions and actions (inaction) of currency control authorities and agents and their officials according to established order;

To compensate for real damage caused by unlawful actions (inaction) of currency control authorities and agents and their officials.

The new currency law provides for greater protection of the rights of subjects of currency transactions, defining the boundaries of their responsibilities to regulatory authorities.

Residents and non-residents are obliged to:

Submit documents and information to authorities and agents, but only within the list provided for in Art. 23 Laws;

Keep records and prepare reports on their currency transactions. (At the same time, the storage period for documents and materials has been reduced by the new Currency law from five to three years old);

Comply with the instructions of currency control authorities to eliminate identified violations.

5.5. Currency operations

Article 1 of Law No. 173-FZ provides a fairly broad definition of the concept of “currency transactions”. So, in accordance with paragraph 9 of Art. 1 of this Law Foreign exchange transactions include:

The acquisition by a resident from a resident and the alienation by a resident in favor of a resident of currency assets on a legal basis, as well as the use by residents of currency assets as a means of payment;

Acquisition by a resident from a non-resident or by a non-resident from a resident and alienation by a resident in favor of a non-resident or by a non-resident in favor of a resident of currency values, the currency of the Russian Federation and domestic securities on a legal basis, as well as the use of currency values, currency of the Russian Federation and domestic securities as a means of payment;

The acquisition by a non-resident from a non-resident and the alienation by a non-resident in favor of a non-resident of currency values, the currency of the Russian Federation and domestic securities on a legal basis, as well as the use of currency values, the currency of the Russian Federation and domestic securities as a means of payment;

Transfer of foreign currency, currency of the Russian Federation, domestic and foreign securities from an account opened abroad to the account of the same person opened in the territory of the Russian Federation, and from an account opened in the territory of the Russian Federation to the account of the same person opened abroad;

Transfer by a non-resident of Russian currency, domestic and foreign securities from one account opened in the territory of the Russian Federation to another account opened in the territory of the Russian Federation;

Import into the customs territory of the Russian Federation and export from the customs territory of the Russian Federation of currency valuables, Russian currency and domestic securities.

An innovation is the classification of transfers by a non-resident of the currency of the Russian Federation, domestic and foreign securities from one account in the territory of the Russian Federation to another account in the territory of the Russian Federation as foreign exchange transactions.

Previously, foreign exchange transactions were divided into current foreign exchange transactions, carried out without restrictions, and foreign exchange transactions related to the movement of capital, which were carried out in the manner prescribed by the Central Bank of the Russian Federation. The concept of “current currency transactions” was excluded from Law No. 173-FZ, and currently, in accordance with the provisions of Art. 26 of the Law, the Central Bank of the Russian Federation stopped regulating foreign exchange transactions of capital movements.

If in Law No. 3615-1, in order to carry out most transactions related to the movement of capital, a person intending to carry out such transactions had to obtain permission from the Central Bank of the Russian Federation, then under the new Law, currency regulatory authorities are prohibited from establishing a requirement for residents and non-residents to obtain individual permits.

Article 6 of the currently valid version of Law No. 173-FZ provides that currency transactions between residents and non-residents are carried out without restrictions, with the exception of currency transactions provided for in Art. 11 of the Law under consideration.

Moreover, such restrictions are non-discriminatory in nature and are canceled by currency regulation authorities as the circumstances that led to their establishment are eliminated.

From January 1, 2007, residents are required to notify the tax authorities at the place of their registration about the opening (closing) of all accounts opened by residents in banks outside the territory of the Russian Federation, no later than one month from the date of conclusion (termination) of the agreement on opening an account (deposit) with the bank located outside the territory of the Russian Federation, in a form approved by the federal executive body authorized for control and supervision in the field of taxes and fees.

Law No. 173-FZ prohibits foreign exchange transactions between residents. There is a special ban on the use of funds in accounts opened by residents in banks outside the territory of the Russian Federation for settlements between residents. The exceptions are:

1) payment transactions wages employees of diplomatic missions, consular offices of the Russian Federation and other official missions of the Russian Federation located outside the territory of the Russian Federation;

2) operations for paying wages to employees of the representative office legal entity– a resident located outside the territory of the Russian Federation;

3) transactions for payment and (or) reimbursement of expenses associated with the secondment of the employees specified above to the territory of the country of location and beyond, with the exception of the territory of the Russian Federation;

4) other operations specified by law.

At the same time, the Law contains a list of foreign exchange transactions, the implementation of which between residents is permitted as an exception (clause 1 of Article 9 of the Law). These include:

1) transactions related to settlements in duty-free shops, as well as settlements when selling goods and providing services to passengers en route Vehicle during international transport;

2) transactions between commission agents (agents, attorneys) and principals (principals, principals) when commission agents (agents, attorneys) provide services related to the conclusion and execution of agreements with non-residents on the transfer of goods, performance of work, provision of services, transfer of information and results of intellectual activity, including exclusive rights to them;

3) operations under contracts of transport expedition, transportation and charter (charter) when the forwarder, carrier and charterer provide services related to the transportation of cargo exported from the Russian Federation or imported into the Russian Federation, transit transportation of cargo across the territory of the Russian Federation, as well as under insurance contracts specified cargo;

4) transactions with external securities carried out through trade organizers on the securities market of the Russian Federation, subject to the registration of rights to such securities in depositories created in accordance with the legislation of the Russian Federation;

5) transactions with external securities, subject to the registration of rights to such securities in depositories created in accordance with the legislation of the Russian Federation, and settlements in the currency of the Russian Federation;

6) operations related to the implementation of mandatory payments (taxes, fees and other payments) in federal budget, budget of a constituent entity of the Russian Federation, local budget in foreign currency in accordance with the legislation of the Russian Federation;

7) transactions related to payments on external securities (including mortgages), with the exception of bills of exchange;

8) transactions for payment and (or) reimbursement of expenses of an individual related to business trip outside the territory of the Russian Federation, as well as operations when repaying an unspent advance issued in connection with a business trip;

9) operations related to settlements and transfers in the execution of budgets budget system the Russian Federation in accordance with the budget legislation of the Russian Federation;

10) operations involving payments and transfers for the activities of diplomatic missions, consular offices of the Russian Federation and other official representative offices of the Russian Federation located outside the territory of the Russian Federation, as well as permanent missions of the Russian Federation at interstate or intergovernmental organizations;

11) transfers by an individual resident from the Russian Federation in favor of other individual residents to their accounts opened in banks located outside the territory of the Russian Federation in amounts not exceeding during one business day through one authorized bank an amount equal to the equivalent of 5,000 US dollars at the official rate established by the Central Bank of the Russian Federation on the date of debiting funds from the account of a resident individual.

12) transfers by a resident individual to the Russian Federation from accounts opened in banks located outside the territory of the Russian Federation in favor of other resident individuals to their accounts in authorized banks;

13) transactions for payment and (or) reimbursement of expenses associated with business trips outside the territory of the Russian Federation of employees whose permanent work is carried out on the road or has a traveling nature;

14) operations provided for by the provisions of the Law, performed by trustees;

15) operations related to settlements between transport organizations and individuals located outside the territory of the Russian Federation, as well as branches, representative offices and other divisions of legal entities, under contracts for the carriage of passengers;

16) transfers by resident individuals from their accounts opened with authorized banks in favor of other resident individuals who are their spouses or close relatives to the accounts of these individuals opened with authorized banks or in banks located outside the territory of the Russian Federation .

Resident legal entities may, without restrictions, carry out foreign exchange transactions with funds credited to foreign accounts, with the exception of foreign exchange transactions between residents.

Resident individuals have the right, without restrictions, to carry out currency transactions using these funds that are not related to the transfer of property and the provision of services on the territory of the Russian Federation.

Settlements between resident individuals can be made using funds credited to foreign accounts opened in accordance with the Law when carrying out the following currency transactions:

Transfer of currency values ​​as a gift to the Russian Federation, a constituent entity of the Russian Federation or an entity;

Giving currency valuables to a spouse or close relatives;

Bequeathing currency values ​​or receiving them by right of inheritance;

Acquisition and alienation of single banknotes and coins for collecting purposes.

Resident individuals can make transfers from and to the Russian Federation without opening bank accounts in accordance with the procedure established by the Bank of Russia, which may only provide for limiting the amount of bank and postal transfers.

Non-residents have the right, without restrictions, to make transfers of foreign currency between themselves from accounts (deposits) in foreign banks to bank accounts (in bank deposits) in authorized banks and vice versa - from accounts (from bank deposits) in authorized banks to accounts (in deposits) in foreign banks.

Foreign exchange transactions between non-residents on the territory of the Russian Federation in rubles are carried out through bank accounts (bank deposits) opened on the territory of the Russian Federation.

5.6. Purchase and sale of currency

Issues of the sale of foreign currency earnings are currently regulated by Instruction of the Central Bank of the Russian Federation dated March 30, 2004 No. 111-I “On the mandatory sale of part of foreign currency earnings in the domestic foreign exchange market of the Russian Federation,” according to which authorized banks open to residents (legal entities and individuals - individual entrepreneurs) on the basis of a bank account agreement, current foreign currency accounts and, in connection with this, simultaneously transit foreign currency accounts when carrying out the mandatory sale of part of the foreign currency proceeds.

All foreign currency receipts in favor of the resident are credited in full to the transit currency account by the authorized bank, with the exceptions provided for by the said Instructions.

According to this Instruction, a mandatory sale of part of the foreign exchange earnings of residents is carried out. However, in accordance with the Directive of the Central Bank of March 29, 2006 No. 1676-U, from May 7, 2006, the mandatory sale of part of the foreign currency earnings of residents is carried out in the amount of 0% of the amount of foreign currency earnings. The standard for the mandatory sale of part of foreign currency earnings has been reduced to zero in the context of implementing measures to achieve full convertibility of the currency of the Russian Federation, since at present there are no economic preconditions that made necessary requirement on the mandatory sale of part of foreign currency earnings.

From December 27, 2004 to May 6, 2006, the mandatory sale of part of the foreign currency earnings of residents was carried out in the amount of 10% of the amount of foreign currency earnings (in earlier periods of time, the amount of foreign currency earnings subject to mandatory sale reached 25–75%).

The instruction establishes that the mandatory sale of part of a resident’s foreign currency earnings is carried out only by order of the latter no later than seven working days from the date of its receipt in the resident’s bank account in an authorized bank. In this order, the resident has the right to instruct the authorized bank to sell foreign currency in an amount exceeding 10 percent of the mandatory sale of part of the foreign currency proceeds.

Simultaneously with the order, the resident submits to the authorized bank a certificate identifying the amount of incoming foreign currency specified in the notification by type of foreign exchange transactions.

5.7. Transaction passport

Currency control materials in the event of a currency transaction are recognized as a selection of documents compiled for the purpose of accounting for currency transactions - a dossier on the transaction passport. Transaction passport - a dossier opened in an authorized bank (territorial institution of the Central Bank of the Russian Federation), containing information (including from a foreign exchange contract between a resident and a non-resident), as well as supporting documents necessary to ensure accounting and reporting on foreign exchange transactions and the implementation of foreign exchange control. The transaction passport is issued before the currency transaction is carried out.

The export transaction passport, in particular, records the data of the contract, changes and additions to it, as well as the facts of shipments and payments for the exported goods. The transaction passport, submitted to the transaction passport bank by a resident legal entity, is drawn up in two copies, signed by two persons with the right of first and second signature, or one person with the right of first signature (if there are no persons in the state of the legal entity - resident, whose responsibilities include maintaining accounting), declared in a card with samples of signatures and seal imprints, with the attachment of a seal imprint of the resident legal entity.

If the transaction passport is drawn up correctly, the bank's responsible person signs copies of the transaction passport and certifies them with the bank's seal. One copy of the transaction passport is placed in the transaction passport file, and the second copy is returned to the exporter.

Recently, there have been changes in the legislation regulating the issuance of transaction passports. These changes are reflected in the Regulations of the Central Bank of the Russian Federation dated June 1, 2004 No. 258-P “On the procedure for residents to submit to authorized banks supporting documents and information related to the conduct of foreign exchange transactions with non-residents in foreign trade transactions, and the exercise by authorized banks of control over the conduct of foreign exchange transactions ", as well as in the Instruction of the Central Bank of the Russian Federation dated June 15, 2004 No. 117-I "On the procedure for the submission by residents and non-residents of documents and information to authorized banks when carrying out currency transactions, the procedure for authorized banks to record currency transactions and the preparation of transaction passports."

The Instructions define currency transactions for which transaction passports must be issued. These include currency transactions between a resident and a non-resident, consisting of settlements and transfers through resident accounts opened in authorized banks, as well as through accounts in a non-resident bank in cases established by acts of currency legislation of the Russian Federation or acts of currency regulatory authorities, or in other cases based on permits issued by the Bank of Russia:

For goods exported (exported) from the customs territory of the Russian Federation or imported (imported) into the customs territory of the Russian Federation, as well as work performed, services provided, transmitted information and results of intellectual activity, including exclusive rights to them, under a foreign trade agreement concluded between a resident (legal entity and individual – individual entrepreneur) and non-resident;

When residents provide loans in foreign currency and in the currency of the Russian Federation to non-residents, as well as when residents receive loans and borrowings in foreign currency and in the currency of the Russian Federation from non-residents loan agreement.

The Instructions also provide an exhaustive list of operations for which a transaction passport is not required. These include foreign exchange transactions carried out under a contract or loan agreement concluded:

Between non-residents and resident individuals who are not individual entrepreneurs, when the specified residents carry out currency transactions under a contract;

Between a non-resident and credit institution– resident;

Between a non-resident and a federal executive body specially authorized by the Government of the Russian Federation to carry out currency transactions;

Between a non-resident and a resident, if the total amount of the contract (loan agreement) does not exceed the equivalent of 5,000 US dollars at the foreign exchange rate to the ruble established by the Bank of Russia on the date of conclusion of the contract (loan agreement), taking into account the changes and additions made. If the contract does not contain information about its amount, then the execution of a transaction passport is mandatory.

The question remains unresolved as to whether a transaction passport should be drawn up when concluding loan agreements, that is, whether loan agreements relate to the concept of “loan agreements” given in Instruction No. 117-I. In practice, banks are required to issue transaction passports when concluding loan agreements.

Central Bank of the Russian Federation in Information letter dated December 31, 2004 No. 30 clarified that transaction passports must be drawn up under insurance (reinsurance) agreements and rental (leasing) agreements movable property and vehicles (if the leased object is imported (exported) into the Russian Federation (from the Russian Federation), as well as under those contracts where the foreign party is the Russian representative office (branch) of a foreign company. If the contract does not indicate the transaction amount, the transaction passport is issued in that if the resident assumes that the transaction amount will exceed 5,000 US dollars (in equivalent).

In contrast to the previously existing procedure, which provided for different forms of transaction passport for export and import operations, currently a single form of transaction passport is used for processing export and import foreign exchange transactions. This form is given in Appendix 4 to Instruction No. 117-I. A separate form of transaction passport has been established for processing the receipt or issuance of a credit (loan) by a Russian organization.

The instructions provide a list of documents that a resident must submit to the transaction passport bank for registration of the latter. Submission of documents is carried out within the period agreed with the bank of the transaction passport, no later than the implementation of the first currency transaction under the contract (loan agreement) or other fulfillment of obligations under the contract (loan agreement). After submitting the transaction passport and all necessary documents The bank is checking them. The period for such verification is now limited to three working days (clause 3.10 of Instruction No. 117-I).

The bank may refuse to sign the transaction passport. This happens in cases where:

The data of the foreign trade contract (loan agreement) does not correspond to the data specified in the transaction passport;

The transaction passport was drawn up in violation of established requirements.

Wherein maximum term The bank's return of submitted documents is also three business days following the date of their submission to the bank.

Sometimes cases arise when changes or additions are made to a contract during its execution. If such changes or additions affect the information contained in the issued transaction passport, it is subject to re-issuance.

To re-issue a transaction passport, the following documents are submitted to the bank:

Two copies of the transaction passport, reissued taking into account changes made to the contract (loan agreement), or changes in other information specified in the issued transaction passport;

Documents confirming changes and additions to the contract (loan agreement);

Other documents specified in clause 4 of Art. 23 of Law No. 173-FZ, necessary for re-issuing the transaction passport;

Permission from currency control authorities to carry out currency transactions under a contract (loan agreement) through accounts opened with a non-resident bank, in cases where such permission is required.

Transaction passport number assigned upon its initial design by the bank, is transferred to the reissued transaction passport and remains unchanged until the transaction passport and the file on the transaction passport are closed at the bank.

Instruction No. 117-I also defines cases when the bank closes the transaction passport. It happens:

When a resident submits a written application to the bank to close the transaction passport in connection with the transfer of a contract (loan agreement) from the bank to settlement service to another authorized bank;

When a resident submits a written application to the bank to close the transaction passport in connection with the fulfillment by the parties of all obligations under the contract, i.e. in the case of the supply of goods (work, services) and receipt of proceeds for them, or in connection with their termination on the grounds provided for legislation of the Russian Federation. In this case, documents are submitted to the bank confirming the termination of obligations under the contract (loan agreement) on other grounds;

After 180 calendar days following the date of completion of fulfillment of obligations under the contract (loan agreement) indicated in the transaction passport;

In other cases.

An application for closing a transaction passport must be drawn up in accordance with the requirements established by clauses 4.1–4.3 of Instruction No. 117-I, which provide for the procedure for transferring a contract to another authorized bank.

Having issued a transaction passport and having completed a currency transaction, residents must submit to the bank supporting documents related to the currency transaction. Such documents are drawn up in accordance with Regulation No. 258-P.

It is necessary to submit documents confirming the fact of export (import) of goods, works, services, for example, a customs declaration, to the authorized bank.

In addition to the supporting documents themselves, the resident is also required to submit a certificate of supporting documents in two copies. In this case, the certificate must be issued in accordance with the requirements established in Appendix 1 to Regulation No. 258-P.

The deadline for submitting such documents and certificates is up to 15 calendar days after the end of the month of export of goods (work, services) or up to 45 calendar days after the end of the month of import of goods. In this case, specific deadlines for submitting supporting documents are set by the bank (previously, the deadline for submitting a customs declaration was 15 days from the date of the decision to release the goods).

When carrying out foreign exchange transactions under a contract through accounts opened in foreign bank, a certificate of settlements through accounts abroad is submitted in two copies, as well as copies of bank statements confirming the implementation of currency transactions specified in the certificate under the contract.

The deadline for submitting the above supporting documents is 45 calendar days following the month of carrying out foreign exchange transactions under the contract through accounts opened with a foreign bank.

If a foreign trade contract provides for the transfer of Russian rubles from a non-resident to the account Russian organization at the bank, two copies of a certificate of receipt of Russian currency are submitted to the bank, identifying the funds received for the reporting month using transaction passports.

The certificate of receipt of Russian rubles indicates the code of the type of currency transaction and the date of its crediting to the account, data on the amount of payment (in rubles and in currency units of the contract price), as well as the transaction passport number.

The certificate must be filled out in accordance with the form established in Appendix 2 to Regulation No. 258-P.

The deadline for submitting the above certificate is 15 calendar days following the month of carrying out the specified operations under the contract.

The period for such verification should not exceed 7 working days following the date of submission of the certificates.

If the certificates are drawn up and filled out correctly, both copies are signed by the responsible person of the bank and certified with a seal.

One of the copies is placed by the bank in the transaction passport file, and the second copy of the certificates and originals of supporting documents are returned to the resident no later than 7 working days following the date of their submission to the bank.

It should be taken into account that in addition to the above documents, the bank has the right to request from the resident and place in the file on the passport transactions and other documents or copies thereof.

In some cases, the bank returns the submitted documents to the resident. This happens if:

The certificates submitted by the resident are filled out and (or) executed in violation of the requirements established by Regulation No. 258-P;

The information specified in the certificates does not correspond to the information contained in the documents submitted by the resident, on the basis of which the certificates were completed;

The documents on the basis of which the certificates were filled out were not submitted, or not all documents were submitted, or they were executed in an improper manner.

The return period is 7 working days following the date of submission of documents to the bank.

In this case, the organization must resubmit the same documents, but filled out properly. In this case, the documents must be submitted within a period not exceeding 3 working days from the date of their receipt from the bank.

By Regulation No. 258-P, the Central Bank of the Russian Federation allowed the submission of certificates not only on paper, but also in in electronic format.

If certificates are submitted on paper, they must be properly certified in a manner similar to the certification of the transaction passport.

And in the case of a resident submitting certificates to the bank in electronic form, a procedure for recognizing an analogue of a handwritten signature is established between the bank and the resident, and the procedure and conditions for its use are also determined.

5.8. Features of currency control when exporting goods to the Republic of Belarus

With the entry into force of Instruction of the Central Bank of the Russian Federation dated June 15, 2004 No. 117-I, Russian exporters had a question: is it necessary to issue a transaction passport to make payments with a non-resident from Belarus in Russian currency for exported goods?

Customs control and customs clearance of goods exported from the Russian Federation on the border of Russia and Belarus, when confirming the origin of the goods from Russia, is not carried out (Decree of the President of the Russian Federation of May 25, 1995 No. 525 “On the abolition of customs control on the border of the Russian Federation with the Republic of Belarus”, clause 1 of the Decree of the Government of the Russian Federation of June 23, 1995 No. 583, clause 2 of the Directive of the State Customs Committee of Russia of November 28, 1996 No. 01–14/1310).

Since June 18, 2004, the procedure for issuing a transaction passport when carrying out currency transactions between residents and non-residents is defined in Section II of Instruction No. 117-I. The above procedure applies, among others, to currency transactions between a resident and a non-resident, consisting of settlements and transfers through resident accounts opened with authorized banks for goods exported from the customs territory of the Russian Federation, as well as work performed, services provided, under a foreign trade agreement ( contract) concluded between a resident and a non-resident (subclause 3.1.1 of Instruction No. 117-I).

The customs territory of the Russian Federation is the entire territory of the Russian Federation (clause 1, article 2 of the Customs Code of the Russian Federation). The limits of the customs territory of the Russian Federation are the customs border, which coincides with State border RF (Clause 4, 5 Article 2 of the Customs Code of the Russian Federation).

There is a point of view that transaction passports may not be issued when carrying out currency transactions related to settlements between residents and non-residents for goods exported from the customs territory of Russia to the territory of the Republic of Belarus. This point of view is based on the fact that the Decision of the Supreme Council of the Union of Belarus and Russia dated April 28, 1999 No. 2 “On the completion of the formation of a single customs space” recorded the creation of a customs space of the Union of Belarus and Russia, in which customs control and customs clearance are not applied , collection of duties, and other restrictive regulatory measures in mutual trade in relation to civil goods originating from these territories.

However, firstly, in all of the above regulatory legal acts of the Russian Federation on currency control, we are not talking about the customs space of the Union of Russia and Belarus and not about the single customs territory of the Union of Belarus and Russia, but specifically about the customs territory of the Russian Federation.

Secondly, the process of forming a single customs territory of Russia and Belarus is currently not completed, and there is also no international act that would record the establishment of a single customs territory of Russia and Belarus (clause 4 of article 2 of the Agreement of January 6, 1995 “On customs union between the Russian Federation and the Republic of Belarus", Treaty on the creation of the Union State of December 8, 1999, clause 6 of the Action Program of Russia and Belarus for the implementation of the provisions of the Treaty on the creation of the Union State, Resolution of the Presidium of the Armed Forces of the Russian Federation dated July 4, 2000 No. 53pv-2000, Decision of the Supreme Court of the Russian Federation of December 7, 2000 No. GKPI 99-881).

Therefore, the export of goods from the territory of the Russian Federation to Belarus in any case is an export from the customs territory of the Russian Federation. Consequently, currency transactions related to settlements between residents and non-residents for goods exported from the customs territory of the Russian Federation to the territory of the Republic of Belarus are subject to the requirements of Instruction No. 117-I, including in terms of issuing transaction passports, since the need to issue a transaction passport , according to Instruction No. 117-I, is due to the very export of goods from the customs territory of the Russian Federation.

5.9. Value added tax on export of goods

According to sub. 1 clause 1 art. 164 of the Tax Code of the Russian Federation, when selling goods for export, a VAT rate of 0% is applied.

Necessary conditions for applying the zero VAT rate when exporting goods are:

Actual export of goods outside the customs territory of the Russian Federation;

Submission to the tax authorities of documents provided for in Article 165 of the Tax Code of the Russian Federation.

IN tax legislation there is no definition of the concept of “export” (clause 1 of article 11 of the Tax Code of the Russian Federation), therefore you should refer to regulations other branches of legislation in which it is contained. In accordance with Art. 165 of the Customs Code of the Russian Federation, export means the removal of goods outside the customs territory of the Russian Federation without the obligation to import them into this territory. Thus, the main feature of an export operation is the fact of export of goods outside the territory of the Russian Federation.

For the justified application of the zero VAT rate, it is necessary that the buyer of exported goods be a foreign person (subclause 1, clause 1, article 165 of the Tax Code of the Russian Federation).

Example. A Russian exporting company entered into a contract with a Russian customer company for the manufacture and supply of products to Finland.

In this case, the supply agreement was concluded between two enterprises that are Russian legal entities. Therefore, despite the fact that the products are supplied outside the territory of the Russian Federation, the exporting enterprise does not have the right to apply a zero VAT rate.

The zero VAT rate can be applied only by the owner of the exported goods. In this case, it does not matter whether this person the manufacturer of these goods or they were purchased by him for further resale.

If goods exempt from VAT are sold for export in accordance with Art. 149 of the Tax Code of the Russian Federation, then the zero VAT rate does not apply. This is explained by the fact that the application of any VAT rate (0, 10 or 18%) can only apply to those goods that are, in principle, subject to VAT. And in Art. 149 of the Tax Code of the Russian Federation lists transactions that are not subject to VAT at any rate. Therefore, a taxpayer who exports such goods does not have the right to a refund of “input” VAT. The amounts of “input” VAT in this case are taken into account in the cost of the corresponding goods (works, services) on the basis of subclause. 1 item 2 art. 170 Tax Code of the Russian Federation.

When selling goods for export, the following procedure applies to confirm the legality of applying the 0% rate.

Regardless accounting policy taxpayer, accepted by him for the purposes of calculating VAT (for shipment or for payment), the moment of determination tax base when performing export operations, the last day of the month in which the collection is collected is recognized full package documents provided for in Art. 165 of the Tax Code of the Russian Federation (clause 9 of Article 167 of the Tax Code of the Russian Federation).

The period for collecting all necessary documents is 180 days, counting from the date of registration by regional customs authorities of a cargo customs declaration (CCD) for the export of goods in the customs regime of export or transit (declaration for the export of supplies in the customs regime of movement of supplies). During this time, the taxpayer does not take into account for tax purposes the transactions he has performed for the sale of goods (works, services), regardless of the accounting policy established by him.

Having collected all the documents confirming the right to apply a 0% rate in relation to a specific transaction for the sale of goods (works, services), the taxpayer submits them to the tax authorities along with a Declaration at a 0% rate, in which they are declared to deduct the amount of “input” VAT, related to this operation.

If, after 180 days from the date of placing the goods under the customs export regime, the taxpayer has not submitted the documents provided for in Art. 165 of the Tax Code of the Russian Federation, these transactions are subject to VAT at rates of 10 and 18%, respectively (clause 9 of Article 165 of the Tax Code of the Russian Federation). In this case, the moment of determining the tax base for the purposes of calculating VAT is the day of shipment (transfer) of goods (work, services) (clause 9 of Article 167 of the Tax Code of the Russian Federation).

This means that a taxpayer who has not documented the fact of export within 180 days from the date of registration of the declaration is obliged not only to charge VAT on the cost of goods shipped (work performed, services rendered), but also to pay a penalty in the generally established manner for the amount of the identified arrears (if it will be identified) for the period from the date of shipment of goods (performance of work, provision of services) to the date of repayment of the arrears.

In this case, the VAT return is submitted by the taxpayer for that taxable period, on which the day of shipment of goods falls.

To confirm the validity of applying the zero rate in relation to exported goods, the taxpayer submits to the tax authorities the documents specified in Art. 165 Tax Code of the Russian Federation.

The terms of an export contract for payment for goods may provide for various forms of settlements between counterparties. Thus, if the contract provides for settlement in cash, then in order to confirm the validity of the application of the zero VAT rate, the taxpayer must submit to the tax authorities a bank statement (copy of the statement) confirming that the taxpayer has deposited the received amounts into his account in Russian bank, as well as copies of cash receipt orders confirming the actual receipt of proceeds from a foreign buyer (subclause 3, clause 2, article 165 of the Tax Code of the Russian Federation).

The terms of the export contract may stipulate that payment for the cost of exported goods (work, services) is carried out in periodic payments or the delivery of goods is carried out in separate batches. This condition may be provided directly in the contract or in an additional agreement to it.

The terms of the export contract may also provide that payment for the exported goods is not made by the buyer himself - foreign person, but by a third party specified by him.

In this case, the parties to the contract should either include this condition directly in the contract or enshrine it in an additional agreement to it. Otherwise, if the proceeds are received not from the buyer, but from a third party, the justification for applying the zero VAT rate, the taxpayer will most likely have to prove to a higher tax authority or in an arbitration court, if the tax authorities, along with a bank statement, are not presented with an agreement of authorization for payment for the specified goods, concluded between a foreign person and the organization (third party) that made (made) the payment.

When delivering goods for export, a situation may arise when, at the request of the buyer, the goods are sent by the exporter to a third party. At the same time, in the customs declaration in the column “Recipient” it is not the buyer named in the contract that is indicated, but a third party - the actual recipient of the goods. In no case can this serve as an obstacle to confirming the fact of real exports. In this situation, the exporting taxpayer may apply for the application of a 0% rate in the generally established manner (see paragraph 9 of the Review of the results of consideration of complaints against decisions of tax authorities, actions (inaction) of officials for the first quarter of 2002 - Letter of the Department of the Ministry of Taxes of Russia for the city Moscow dated April 15, 2002 No. 11–15/17062).

The Tax Code of the Russian Federation gives the tax authorities the right, within three months from the moment the taxpayer submits the Declaration at the 0% rate and the documents provided for in Article 165 of the Tax Code of the Russian Federation, to verify the validity of the application of the 0% rate and tax deductions. During the audit, the tax authority has the right to request from the taxpayer any documents confirming the validity of the application of tax deductions declared in the Declaration at a rate of 0%.

If, after three months from the date of submission to the tax authority of the Declaration at a rate of 0% and the documents provided for in Art. 165 of the Tax Code of the Russian Federation, the tax authority did not make any decision, the taxpayer has the right to judicial procedure oblige the tax authority to make a decision on refunding the VAT amount.

From January 1, 2005, the procedure for paying VAT when trading with Belarus has changed. If previously the “country of origin” principle was applied, now the “country of destination” principle will apply. When exporting goods to Belarus, the VAT rates in force in the Russian Federation were previously applied (10% or 18%). From January 1, 2005, a zero VAT rate is applied (with some exceptions) (clause 2 of the Intergovernmental Agreement of September 15, 2004), and when importing goods, indirect taxes will be levied in the country of the importer (buyer), with the exception of a number of cases (Article .3 Agreements).

The procedure for collecting indirect taxes is formalized in a separate protocol, until the entry into force of which the norms of the national legislation of the states of the Parties apply (Article 5 of the Agreement).

The application form for the import of goods was approved by Letter of the Federal Tax Service of the Russian Federation dated December 29, 2004 No. SAE-8-26/307. Order of the Ministry of Finance of the Russian Federation dated January 20, 2005 No. 3n approved the Procedure for affixing tax authorities marks on invoices and on applications for the import of goods and payment of indirect taxes.

We reviewed the list of currency control authorities and agents, as well as the scope of their rights when implementing currency control. In this material we will talk about currency control over export-import transactions.

Which transactions are subject to currency control?

Currency control is carried out in connection with currency transactions, opening and maintaining accounts.

What relates to foreign exchange transactions is indicated in clause 9, part 1, art. 1 of the Federal Law of December 10, 2003 No. 173-FZ. In relation to export-import transactions, the main share of foreign exchange transactions consists of the transactions listed in subparagraph b, clause 9, part 1, art. 1 of the Federal Law of December 10, 2003 No. 173-FZ.

These include the alienation by a resident in favor of a non-resident or by a non-resident in favor of a resident of currency values, the currency of the Russian Federation and domestic securities, as well as their use as a means of payment. Let us recall that currency values ​​are foreign currency and foreign securities (clause 5, part 1, article 1 of the Federal Law of December 10, 2003 No. 173-FZ).

The functions of a currency control agent in a bank in terms of export-import operations include requesting and receiving from its clients documents and information that are related to currency transactions, opening and maintaining accounts (Clause 3, Part 1, Article 23 of the Federal Law dated December 10, 2003 No. 173-FZ).

Control of currency transactions

Authorized banks, as currency control agents, have the right to request and receive from residents and non-residents a certain list of documents (copies thereof) that were related to foreign exchange transactions, opening and maintaining accounts (Part 4 of Article 23 of the Federal Law of December 10, 2003 No. 173- Federal Law).

The documents on the basis of which currency control of import transactions, as well as transactions related to exports, are carried out, in particular, are the following:

• documents certifying the status of a legal entity - for non-residents, a document on state registration legal entity - for residents;
• documents certifying the rights of non-residents to conduct currency transactions and open accounts (deposits);
• documents (draft documents) that are the basis for conducting currency transactions (including contracts, additions and amendments to them, powers of attorney, extracts from the minutes of the general meeting);
• documents confirming the fact of transfer of goods (performance of work, provision of services);
• bank control statements, Bank statements;
• documents confirming currency transactions;
• customs declarations, documents confirming the import into the Russian Federation and export from the Russian Federation of goods;
• transaction passports.

Bank currency control is a nightmare for any respectable importer deceived by a foreign supplier. Losses incurred as a result of paying for goods not received risk being multiplied by a fine for illegal withdrawal of funds abroad. Lawyers of the Union "Central Siberian Chamber of Commerce and Industry" explain what to do in order not to be subject to a fine when implementing currency control over the execution of an international contract.

From point of view state power, the main problems that force us to take strict foreign exchange control measures include:

• concluding fictitious foreign economic agreements in order to transfer funds without carrying out any movement of goods;
• non-return to the Russian Federation of foreign currency earnings received from export transactions;
• creation of “schemes” for the withdrawal of funds abroad, to foreign jurisdictions.

Foreign exchange earnings are subject to mandatory repatriation (i.e., “return to homeland”). The fine for the repatriation of foreign currency earnings made late or in other violation, as well as for its non-return, is provided for in Art. 15.25 of the Code of the Russian Federation on Administrative Offences. In cases where the amount of unreturned money is more than 9 million rubles, the guilty person may be brought to criminal liability under Art. 193 of the Criminal Code of the Russian Federation.

The bank is a currency control agent that has the right to report an offense to law enforcement agencies if it suspects you of illegally withdrawing money abroad. To avoid a fine (the amount of which ranges from ¾ to 1 of the full amount sent to the counterparty) and administrative prosecution, it is necessary to take a number of measures.

If your counterparty does not deliver the paid goods within the period established by the contract and does not return the funds, we recommend that you immediately send the counterparty a claim for failure to fulfill obligations under the contract. This document will testify to your innocence, coupled with other measures to return the money.

1. Provider gives explanations about the reasons for the delay deliveries and invites you to postpone the fulfillment of obligations under the contract. In this case, your next step is to conclude the appropriate additional agreement to the contract with a change in delivery time goods and bank notification.
2. Provider “disappeared” and there is no hope for delivery of the goods you paid for . In this case it is necessary go to court (in accordance with the terms of the international contract) with a claim against the supplier and, again, notify the bank about this.

If the second situation arises, difficulties may arise. When concluding a contract, the Russian side (importer) does not always show due diligence and proposes to include in the contract more acceptable terms for the consideration of disputes. As a rule, international contracts provide for the provision of filing a lawsuit at the location of the supplier and the applicable law is the law of the supplier’s country.

In view of the above, we recommend that entrepreneurs take care of the possibilities for resolving disagreements in advance, even at the stage of agreeing on the terms of the contract. The most favorable option is to provide in the document the possibility of filing a claim in court at the location of the plaintiff and, accordingly, conducting legal proceedings in the language of the plaintiff. Otherwise, during the trial, the bank will not be able to make claims against you: you have shown that the “loss” of money was unintentional and you are not inactive in the current situation. This is important, since the law “On Currency Regulation and Currency Control” places the obligation to take measures to return money directly on participants in civil transactions carrying out foreign trade transactions. At the same time, residents of the Russian Federation are obliged to provide:

1. Receiving the provided international treaty money from a non-resident counterparty for services, work or goods that such counterparty received. Funds must be transferred to the resident’s bank account in a Russian bank.
2. Return to Russia of money that was previously transferred by a resident to his counterparty, who is a non-resident, for services, goods, works specified in the relevant agreement, if the counterparty did not fulfill its obligations, that is, did not import goods into the Russian Federation, did not provide services in the Russian Federation, did not perform work that should have been done in accordance with the terms of the concluded contract.

Important!

The new version of the law, which comes into force on May 14, 2018, establishes an obligation, in order to fulfill the requirement for the repatriation of foreign currency and the currency of the Russian Federation in agreements (contracts) concluded between residents and non-residents when carrying out foreign trade activities, to indicate the deadlines for the parties to fulfill their obligations under the agreements ( contracts).

I am just planning to enter into an agreement with a foreign supplier. What should you pay attention to?

It makes sense to divide the payment into “before” and “after” delivery, but not everyone has this opportunity. In some countries, goods do not undergo customs clearance until 100% prepayment has been confirmed. Therefore, it is simply not possible to avoid all risks. In this case, the algorithm of actions is as follows:

1. Check the counterparty for reliability.
2. Draw up a contract in two languages.
3. Provide in the contract the terms of legal proceedings: which court to apply to, in what language, etc.
4. Specify the deadlines for fulfilling obligations in the contract.
5. Provide in the concluded agreement for sanctions against the counterparty for delay in delivery of goods (penalty, fine, etc.).

These measures will indicate a desire to take reasonable and sufficient measures to encourage the counterparty to fulfill its obligations.

Assistance in drawing up all the above documents can be obtained from the Central Siberian Chamber of Commerce and Industry. In addition, in some cases, you can apply to the Chamber of Commerce and Industry for a certificate confirming the impossibility of repatriation due to the introduction of restrictive measures by a foreign state. In this case, the organization may also be found not guilty of non-return of foreign currency earnings (see letter of the Ministry of Finance of Russia dated August 12, 2015 No. 07-05-08/46382).

Innovations in currency legislation.

On March 1, 2018, a new Bank of Russia Instruction “On the procedure for residents and non-residents to submit supporting documents and information to authorized banks when carrying out currency transactions, on uniform forms of accounting and reporting on currency transactions, the procedure and timing for their submission” came into force.

A summary of what has changed:

• transaction passports were cancelled;
• international contracts are registered with the bank and assigned unique numbers (for contracts with obligations in the amount of 3 million rubles for imports and 6 million rubles for exports);
• registration is carried out by banks within one day;
• the bank has no right to refuse to register the contract;
• the certificate of currency transactions as a form of accounting is abolished, but the requirement to provide documents that are the basis for conducting currency transactions remains;
• Residents entering into agreements with obligations amounting to less than 200 thousand rubles are not required to provide documents related to currency transactions - only information about the type of transaction code to the authorized bank.

Currently, foreign economic transactions between business entities are widespread.
Export - export of goods, works, services, results of intellectual activity, including exclusive rights to them, from the customs territory of the Russian Federation abroad without the obligation to re-import. The fact of export is recorded at the moment the goods cross the customs border of the Russian Federation, the provision of services and rights to the results of intellectual activity. The export of goods is considered to be certain commercial transactions without exporting goods from the customs territory of the Russian Federation abroad, in particular when a foreign person purchases goods from a Russian person and transfers them to another Russian person for processing and subsequent export of the processed goods abroad.
There are two main modes for conducting cash settlements in foreign currency when executing foreign trade transactions. Current and specially named foreign exchange transactions related to the movement of capital are carried out by residents without restrictions. Other foreign exchange transactions related to the movement of capital are carried out in the manner established by the Bank of Russia. Transfers to and from the Russian Federation of foreign currency for making settlements without deferred payment for the export of goods (work, services, results of intellectual activity), as well as for making settlements related to the lending of export-import transactions for a period of no more than 90 days, are current currency transactions and are carried out without any restrictions. Thus, Russian residents can export services freely, without obtaining any permits or creating obstacles from government agencies. The only condition is to receive payment for services within a period not exceeding 90 days from the date of their provision - although in practice this is not always met.
After exporting the goods, the exporter is obliged to credit the proceeds to his ruble or foreign currency accounts in the bank that signed the transaction passport under the relevant contract, unless otherwise permitted by the Bank of Russia.
Transaction passport - a currency control document containing information necessary for the implementation of currency control from a contract (agreement, agreement) between a resident and a non-resident, providing for the export of goods from the territory of the Russian Federation and their payment in foreign currency or the currency of the Russian Federation. It is drawn up in an authorized bank or its branch by the resident on whose behalf the contract was concluded. For each contract concluded by the exporter, one transaction passport is issued, signed by one bank where the exporter’s account is opened, to which the proceeds for the goods exported under this contract should be received from the non-resident. The transaction passport is issued in two copies.
The exporter, along with the completed and signed transaction passport, submits to the bank the original and a copy of the contract on the basis of which it was drawn up. If the terms of the contract provide for the provision of a deferred payment to the foreign party for a period exceeding 90 calendar days, the exporter submits to the bank a copy of the relevant permit obtained in the prescribed manner.
The first copy of the transaction passport is returned to the exporter along with the original contract.
The second copy serves as the basis for the bank to create a dossier in which it is placed along with other documents received by the Bank in connection with operations carried out under the contract.
Dossier - a selection of documents generated for each transaction passport to control the receipt of proceeds for exported goods, i.e. funds in foreign currency or the currency of the Russian Federation transferred or to be transferred in favor of the exporter by a non-resident as payment for goods exported under the contract. The dossier is compiled by an authorized bank or its branch, in which the exporter’s account is opened, to which the proceeds should be received. From the moment the transaction passport is signed, the bank accepts this contract for settlement services and acts as a currency control agent for the receipt of proceeds.
The exporter has the right, without additional permission, to pay a penalty (fine, penalty) on the basis of a contract in favor of a non-resident in case of failure to fulfill the terms of the contract regarding the quality, quantity and timing of delivery of goods, as well as make transfers in cases where the goods at the time when the risks were borne by the Russian side were destroyed, irretrievably lost due to an accident or action force majeure, shortages that occurred due to natural wear and tear or loss under normal conditions of transportation and storage, or goods were out of the control of the Russian side due to unlawful actions of bodies or officials of a foreign state. In this case, payments must be made from the exporter’s bank account. If the resident fails to receive (untimely receipt) the proceeds under the contract, the decision to hold the exporter liable or to release him from liability is made by the customs authorities in the prescribed manner.
The bank’s refusal to sign the transaction passport is possible in the following cases:
discrepancy between the data contained in the contract and the information specified in the transaction passport;
non-compliance of foreign exchange transactions provided for in the contract with the requirements of legislative and other regulations of the Russian Federation;
registration of a transaction passport in violation of established requirements;
absence of conditions in the contract providing for receipt of proceeds to the exporter’s bank account;
submission to the bank of a contract drawn up in a foreign language, in the absence of its translation into Russian;
failure by the exporter to submit to the bank a copy of the permit obtained in the prescribed manner. If refused, the bank returns the submitted documents to the exporter.
The exporter is obliged, simultaneously with the submission of the cargo customs declaration, to submit to the customs authority carrying out customs clearance of exported goods a photocopy of the original transaction passport stored with him.
Customs authorities check the compliance of the information contained in the photocopy of the transaction passport submitted by the exporter with the information stated in the cargo customs declaration, the terms of the contract and information from other documents at their disposal, as well as the compliance of the bank seal imprint on the photocopy of the transaction passport with the sample seal imprint contained in card of samples of bank seal impressions used for currency control purposes. The exporter, within 15 calendar days from the date of the decision to release the goods, submits to the bank a completed photocopy of the cargo customs declaration, which is used by the bank to generate a statement and is placed in the dossier.
When funds (foreign currency or currency of the Russian Federation) are received into the exporter’s account from a non-resident, the bank notifies the exporter about this no later than the next business day in the manner established by the bank. When funds under a contract are received by the bank, the exporter, no later than 7 calendar days following the date of crediting of funds to his ruble or transit currency account, is obliged in the manner established by the bank, provide to the latter information about the details of the transaction passport (number and date) for which the funds were received, about the type of payment received, about the distribution of the amount of proceeds received. Information about the receipt (transfer) of funds under the contract must be reflected by the bank in the statement on the first business day following the day the information is received from the exporter. The bank is obliged to ensure registration and accounting of all incoming and outgoing documents in accordance with internal rules of office work. All of the above actions do not apply to:
transactions for the export of goods from the Russian Federation, for which there is no provision for settlements for these goods in foreign currencies or in the currency of the Russian Federation (barter transactions, gratuitous supplies, including humanitarian aid, etc.);
transactions that do not provide for the transfer of ownership of goods exported from the customs territory of the Russian Federation (including under rental agreements, leasing agreements (except for cases of acquisition by a non-resident of the leased item, leasing at the residual value), etc.);
export of works, services and results of intellectual activity.
If the owner of the goods has a commission agreement ( agency agreement) with a foreign trade intermediary (commission agent; agent acting on his own behalf) - a resident of the Russian Federation, providing for the export of goods at the expense of its owner (committent, principal), but on behalf of the commission agent (agent), the transaction passport is signed by the commission agent (agent), who in In this case, he is the exporter and is responsible for the timely receipt of proceeds in full to his account in the authorized bank. For customs clearance of goods, copies of the transaction passport certified by the commission agent (agent) in the prescribed manner are used.
Foreign trade barter transactions are understood as transactions made during foreign trade activities that involve the exchange of goods, works, services, and results of intellectual activity of equivalent value. Barter transactions do not include transactions that involve the use of cash or other means of payment in their implementation.
Barter transactions are carried out in simple written form by concluding a bilateral exchange agreement, which must meet the following requirements: the agreement must have a date and number; it is drawn up in the form of one document; the contract must define the nomenclature, quantity, quality, price of goods for each product item, terms and conditions for the export and import of goods; list of works, services, results of intellectual activity, their cost, deadlines for completing the work, the moment of provision of services and rights to the results of intellectual activity; a list of documents submitted to a Russian person to confirm the completion of work, provision of services and rights to the results of intellectual activity; procedure for satisfying claims in case of non-fulfillment or improper execution parties to the terms of the contract. Russian persons who have concluded or on whose behalf barter transactions have been concluded are obliged to carry out current currency transactions within the time limits established by the legislation of the Russian Federation, calculated from the date of release of exported goods by the customs authorities of the Russian Federation or from the moment of performance of work, provision of services and rights to the results of intellectual activity , ensure the import into the customs territory of the Russian Federation of equivalent in value goods, works, services, results of intellectual activity with confirmation of the fact of import by the relevant documents.
Exceeding the specified deadlines and the fulfillment by a foreign person of a counter-obligation in a manner that does not involve the importation into the customs territory of the Russian Federation of goods, works, services, results of intellectual activity, are allowed only subject to obtaining a permit issued by the Ministry of Foreign Affairs economic ties Russian Federation.
Export of goods, works, services, results of intellectual activity can be carried out only after issuing a barter transaction passport. If the terms of the contract establishing the exchange of goods, works, services, results of intellectual activity are changed to conditions providing for settlements in cash or other means of payment, Russian entities are obliged to ensure the return of these funds in an amount equivalent to the value of the exported goods, works, services, results of intellectual activity to their accounts in authorized banks in compliance with the requirements of currency regulation and currency control.
The concept of “service” implies entrepreneurial activity aimed at meeting the needs of other persons, with the exception of activities carried out on the basis of labor relations. In relation to a service as an activity, the result of which does not have a material embodiment, export outside the customs territory of the Russian Federation is possible if the service is provided on the territory of the Russian Federation, but its beneficial properties (economic results) are used outside this territory. This will already be the export of services. In the case of provision and use of a service on the territory of the Russian Federation, there is no sign of export outside the customs territory of the Russian Federation, and therefore, export of the service. In international commercial cooperation, a service is bought and sold on the same basis as a regular product.
Export of services is their removal from the customs territory of the Russian Federation without the obligation to re-import. The fact of export is recorded at the time of provision of services, but when exporting goods, it is determined by the moment the goods cross the customs border.
The export of a service from the customs territory of the Russian Federation is established by virtue of the very fact of the transfer of a service by a resident to a non-resident and does not require additional confirmation of this circumstance by documents emanating from the competent state bodies. If a resident Russian participant in foreign trade activities provides services in favor of a foreign non-resident participant in foreign trade activities, and therefore the latter’s needs are satisfied, then export occurs. The service is transferred from a person under the jurisdiction of Russia to another person whose civil legal capacity is determined by the law of a foreign state. The rule that a non-resident has no obligation to re-import services is observed. The service provided cannot be returned.
Fulfillment of obligations to provide services is irreversible. Satisfaction of the needs of a non-resident occurs when the service is received by him and can be used for his own benefit. Moreover, what is important is not where the results of services are applied, but whose needs for services were satisfied. For some types of services, it is generally impossible to determine where, by whom and when their results will be used. Since the legislator connects the fact of export only with the moment of provision of the service and the fact of its provision by a resident to a non-resident, it has no legal significance where the services were actually provided, in which country their beneficial properties were used, or an act on the fulfillment of obligations was drawn up. These circumstances do not qualify the export of services and should not be taken into account by the courts when considering specific cases.

More on the topic Question 16. Export. Foreign exchange controls on exports:

1. Topic 17. Financial and legal basis of currency regulation in the Russian Federation
2. Contents of the process of regulation of the national foreign exchange market
3. 6.3. STATE REGULATION OF FINANCES OF ECONOMIC ENTITIES IN THE FIELD OF FOREIGN ECONOMIC ACTIVITIES
4. The current state of regulation of currency relations in the Republic of Kazakhstan
5. Monetary policy, foreign exchange legislation and exchange control

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