What foreign exchange transactions can residents perform? Features of currency transactions between residents and non-residents of the Russian Federation

The main regulatory legal act regulating foreign exchange transactions between residents and non-residents is Law N 173-FZ “On Currency Regulation and Currency Control”.

In particular, residents are citizens of the Russian Federation; foreign citizens permanently residing in Russia on the basis of a residence permit; as well as organizations created in accordance with the legislation of the Russian Federation, with the exception of foreign companies registered in accordance with the Federal Law “On International Companies” (subparagraph 6, paragraph 1, article 1 of the Law of December 10, 2003 N 173-FZ).

Non-residents are foreign citizens and foreign organizations permanently registered and located in another country (subparagraph 7, paragraph 1, article 1 of the Law of December 10, 2003 N 173-FZ).

Read more about the differences between a resident and a non-resident in a separate section.

Foreign exchange transactions between residents and non-residents

Foreign exchange transactions between residents and non-residents are carried out without restrictions, but subject to certain requirements, namely: foreign currency and foreign currency checks can be purchased (sold) only in authorized banks and only with documents drawn up in accordance with the instructions of the Central Bank of the Russian Federation (Article 6, Article 11 of the Law of December 10, 2003 N 173-FZ).

The procedure for residents and non-residents to submit supporting documents and information to authorized banks when conducting foreign exchange transactions is defined in the Central Bank Instruction No. 181-I dated August 16, 2017.

Currency transactions between residents

Currency transactions between residents are prohibited, except for the cases provided for in Art. 9 of the Law of December 10, 2003 N 173-FZ.

In particular, transactions in foreign currency between residents are allowed when making payments in dutyfree, when making payments to an employee on a business trip outside of Russia, when purchasing (selling) foreign currency by individuals in authorized banks.

Today, currency transactions have become quite common in the Russian Federation. However, this topic contains enough nuances and pitfalls that can not only derail an important deal, but also entail liability under the law.

Who are currency residents?

Currency residents can be called a circle of people who, during the course of a year, have visited the territory of the Russian Federation at least once after a long stay abroad. The latter include:

citizens of the Russian Federation;
persons who have a residence permit in Russia, as well as citizens of another country or persons without citizenship;
legal entities organized in accordance with the laws of the Russian Federation;
separate divisions of the above legal entities that are located in other countries;
embassy, consulates, as well as other representative bodies of the Russian Federation located in foreign countries.

Features and rights of currency residents

Foreign exchange residents have the right to make deposits in foreign currency into their bank accounts. If a resident is involved in the securities market and is a participant in it, the latter can open a special account - a brokerage account.

A resident individual has the right to transfer funds during transactions involving foreign currency by bank transfer through Russian banking institutions. The following cases are exceptions:

donating valuables in foreign currencies to close relatives;
receiving an inheritance in the form of foreign currency or by transferring them through a will;
receipt and transfer through Russian banking institutions of a sum of money limited by law;
foreign currency exchange through Russian banks;
payment of fees for the purchase of duty-free goods, as well as international transportation;
transfer and receipt through a non-resident of a limited amount of funds in foreign currency equivalent to Russian territory.

Separately, it is worth highlighting the rights of resident legal entities who are allowed to:

receiving and transferring foreign currency from their bank deposits in the manner prescribed by law;
the same actions related to the transfer of currency from banks located in another country;
carrying out mutual settlements with non-resident individuals of the Russian Federation in cash for the provision of services related to transportation on the territory of the Russian Federation, as well as as a result of transactions involving retail trade.

Who are foreign currency non-residents?

The legislation of the Russian Federation characterizes a foreign exchange non-resident with the following characteristics:

Russian citizens who have been permanently residing outside the Russian Federation for more than a year, including on the basis of a residence permit issued by foreign countries;
citizens of the Russian Federation who stay in the territory of another country for more than 365 days and have a work or study visa valid for at least 1 year;
institutions that are not legal entities and organized according to the laws of other countries;
international organizations, including their branches in the Russian Federation;
other persons whom Russian legislation does not classify as residents.

Important! It is customary for regulatory authorities to consider foreign currency non-residents to be persons who have been in another country for more than a year and then, having visited Russia, automatically become residents.

Features and rights of currency non-residents

A foreign currency non-resident is considered to be a person who has not been in the territory of the Russian Federation for 365 consecutive days. These persons have the following rights:

open accounts in Russian banks, both in the currencies of other countries and in the national currency of Russia;
make transfers to banking institutions of the Russian Federation from your foreign accounts, both in foreign currency and in Russian rubles;
make transfers of funds from foreign bank accounts to banks of the Russian Federation.

What is exchange control?

Due to the fact that currency transactions carry a fairly comprehensive set of instructions and rules, they are subject to careful control by the relevant authorities.

The following bodies of the Russian Federation are vested with the authority to exercise control over the legality of currency transactions:

Central Bank of the Russian Federation;
Federal executive authorities of the Russian Federation authorized to exercise this control;
Exchange control agents. In turn, the latter can act as Russian banks specially authorized to carry out regulatory activities, or as professional participants in the securities market;
Corporation of state significance "Bank for Development and Foreign Economic Affairs".

These bodies carry out the following activities aimed at compliance with the norms of the current currency legislation of the Russian Federation:

carrying out a legal assessment of the activities of credit and non-credit organizations;
exercising supervision over the legality of the activities of residents and non-residents as part of the latter’s foreign exchange transactions;
coordination activities and ensuring interaction between subordinate executive authorities that exercise control over the implementation of currency legislation;
monitoring, analysis and transfer of necessary information to higher federal authorities.

Within the framework of the legislation, the above bodies have the right to carry out the following actions:

carry out checks on the legality of the actions of residents and non-residents in terms of compliance with currency legislation, as well as the completeness of the accounting data provided by the latter;
request documents related to the implementation of currency transactions, as well as statements regarding the opening and maintenance of bank deposits;
issue orders that reflect the essence of the identified violations and the requirements for their elimination;
apply measures, in particular, bringing to justice persons who committed violations identified during the inspection to the extent required by law.

Transactions between residents

Russian legislation provides for a number of transactions that currency residents can carry out among themselves. Namely the operations:

carried out with duty-free retail outlets, as well as related to trading activities with passengers of vehicles during the last international flights;
related to the conclusion and execution of agreements concluded with non-residents on the transfer of goods and information, including on intellectual property rights, and the performance of work between commission agents and principals;
regarding the conclusion and execution of contracts for transport expedition, transportation and freight services related to the import and export of cargo from Russia;
related to external securities (these documents must have rights in depositories);
which include payment of travel allowances, as well as reimbursement of advance payments that were not spent during a business trip outside the Russian Federation;
related to the execution of the budgets of the Russian Federation, in terms of transfers and settlements of currencies of other countries;
regarding mutual transfers of funds by resident individuals in the currency of a foreign state from the Russian Federation, provided that the amount of the specified transaction does not exceed five thousand US dollars in one transaction day through one bank;
related to the mutual transfer of foreign currency by resident individuals to the territory of Russia through foreign banks;
related to the payment of expenses during trips outside Russia to persons whose work involves traveling or is carried out during a certain route;
which are related to monetary settlements between companies engaged in transport transportation and their clients - individuals located outside the Russian Federation;
related to money transfers of foreign currency between resident individuals who are related to each other;
involving settlements and other actions with the currency of a foreign state related to the remuneration of employees of diplomatic and consular institutions of the Russian Federation, international companies and its branches, as well as other representative offices, executive bodies of the Russian Federation located in other countries;
related to clearing settlements;
involving payment of labor to resident individuals carrying out their labor activities on the basis of an employment contract with an enterprise located on the territory of a foreign state.

Transactions between residents and non-residents

Russian laws are quite loyal to currency transactions carried out between residents and non-residents, and practically do not limit them. The only exception is transactions, the implementation of which may entail a decrease in the foreign exchange reserves of the Russian Federation.

Until 2007, there were significantly more restrictions on this issue, but today all prohibitions are limited to Art. 11 of the Law.

The article stipulates that the purchase or sale of foreign currency, as well as checks, can only be made through specially authorized banking institutions of the Russian Federation.

In addition, the Central Bank of the Russian Federation has established a fairly large number of requirements for credit institutions when conducting operations related to the purchase or sale of foreign currencies and checks.

Important! It is not allowed to identify individuals when they purchase or sell foreign currency or checks with a foreign denomination. This procedure is possible only at the personal request of the specified individual.

Transactions between non-residents

Current legislation allows non-residents to carry out the following transactions among themselves:

transfers of funds in foreign and Russian currencies from Russian banks to banking institutions located in the territory of other states;
currency transfers passing through foreign banks to banks located in Russia. Operations related to Russian currency are carried out according to the same principle;
transfers of currencies from other countries and the Russian Federation on the territory of Russia, without opening a bank account. Non-residents can both send and receive these money transfers;
related to the sale of securities in Russia, only if the transaction complies with the norms of Russian antimonopoly legislation.

What is repatriation and its features?

In a broad sense, repatriation can be understood as a set of government regulation measures aimed at minimizing the outflow of financial resources from the country and provides two options:

Residents who are participants in transactions of an international nature, when carrying out export activities, must ensure and control the receipt in their accounts of funds paid by foreign partners for these transactions. Profit from international contracts can be in both Russian and foreign currency.
Residents who are participants in international contracts, when carrying out import activities, must verify the compliance of the funds contributed for the goods received with its value. If payment for goods exceeds the actual cost of the product, the excess amount will need to be returned to the Russian budget.

In what cases are foreign exchange transactions between residents prohibited?

Current Russian legislation generally prohibits residents from conducting transactions with foreign currency. This position is regulated by Article 9 of the Law. The only opportunity to perform any actions related to foreign currency is a set of exceptions established by the same article of the law.

Are there any restrictions on transactions between residents and banks?

The norms of the current legislation of the Russian Federation do not provide for restrictions that relate to the interaction of banking institutions and currency residents, with the exception of certain cases, such as:

relationships related to bank loans;
operations related to depositing or withdrawing money in banking institutions;
purchasing bills of exchange from the bank, as well as receiving payments on them;
purchase or sale of foreign currencies and checks with foreign denominations;
payment of bank commission;
obtaining guarantees from a banking institution.

Residents are not limited to the type of currency with which they pay using accounts previously opened with banking institutions. The law also provides for the possibility of conversion operations according to the rate previously agreed with the bank.

Is a foreign currency loan possible between residents?

When concluding a foreign currency loan transaction, one party undertakes to provide the other party with an agreed amount of funds in the currency of another state, subject to the return of the specified amount within a fixed period. These loans can be provided either “at interest” or free of charge.

The law prohibits the provision of foreign currency loans to residents of the Russian Federation. But there are still exceptions. For example, a currency resident can only obtain a specified loan if it is issued by the relevant financial institution in the form of a loan through the necessary agreement. Thus, a loan taken from a banking institution will not contradict the law.

Conclusion

Russian legislation has taken a rather scrupulous approach to the issue of regulating relationships related to currency transactions. But at the same time, with due observance of all specified norms and rules, residents and non-residents do not have to fear for the safety and legality of their actions with foreign currency.

From this video you will learn how a non-resident can become a tax resident of the Russian Federation:

Attention!

Due to changes in the legislation of the Russian Federation, the information in the article may be out of date! Our lawyer is ready to advise you free of charge - write your question in the form below:

Clients - non-residents of the Russian Federation make transfers in foreign currency without restrictions.

Requirements for residents of the Russian Federation

Transfers by residents of the Russian Federation in foreign currency, as well as transfers in Russian rubles with the participation of non-residents of the Russian Federation, are subject to exchange control.

In accordance with currency legislation:

transfers by a resident of the Russian Federation when making a payment in favor of a non-resident of the Russian Federation both in rubles and in foreign currency are carried out without restrictions;
transfers in foreign currency between residents of the Russian Federation are prohibited, with the exception of the operations listed in Article 9, Part 6 of Art. 12, parts 3 art. 14 of the Federal Law of December 10, 2003 No. 173-FZ “On Currency Regulation and Currency Control,” including between close relatives ().
transfers by a resident of the Russian Federation from the Russian Federation in favor of other resident individuals to their accounts opened in banks located outside the territory of the Russian Federation cannot exceed 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 individual’s account - a resident of the Russian Federation on one transaction day.

When drawing up a payment document, the absence in the “payment purpose” field of information that allows one to determine the economic meaning of a currency transaction, and/or documents and information, as well as references to these documents in the payment document, is grounds for refusal to carry out a currency transaction. When making a transfer for a third party, in the “Purpose of payment” field, in addition to other information, the full name of the person for whom the transfer is being made must be indicated.

The requirement to provide supporting documents applies to currency transactions related to transfers:

in favor of legal entities - non-residents of the Russian Federation for an amount equal to or exceeding in ruble equivalent 600,000 rubles on the date of payment;
When making settlements with non-residents of the Russian Federation - legal entities for an amount equal to or exceeding 600,000 rubles in ruble equivalent on the date of payment, it is necessary to provide documents justifying the transfer. Such documents may be:
agreements (contracts);
invoices (bills, invoices, etc.);
correspondence with the payer by e-mail or on paper;
other documents provided for in Article 23 of Federal Law No. 173-FZ, on the basis of which the currency transaction is carried out.
in favor of individuals - non-residents of the Russian Federation in an amount exceeding the equivalent of 5,000 US dollars at the Bank of Russia exchange rate on the date of payment;
When making settlements with non-residents of the Russian Federation - individuals for an amount exceeding the equivalent of 5,000 US dollars on the date of payment, it is necessary to provide information on confirmation of the currency and accounting status of the recipient (non-resident of the Russian Federation) of the funds and the content of the transaction. Information can be provided in any form, including indicated in the “payment purpose” field of the submitted payment document (for example, “Financial assistance to a non-resident of the Russian Federation”).
in favor of individuals - residents of the Russian Federation, who are spouses or close relatives of the client, to the accounts of these persons opened in banks located on the territory of the Russian Federation - regardless of the amount of the transfer;
For a list of required documents, see the next paragraph.

in favor of individuals - residents of the Russian Federation, who are spouses or close relatives of the client, to the accounts of these persons opened in banks located outside the territory of the Russian Federation, if the transfer amount exceeds the equivalent of 5,000 US dollars at the Bank of Russia exchange rate on the date of payment;
When making payments between spouses or close relatives (relatives in a direct ascending and descending line - parents and children, grandparents and grandchildren), full and half (having a common father or mother) brothers and sisters, adoptive parents and adopted children, the following documents can be provided: confirming relationship:
certificates issued by civil registry authorities (marriage, birth, etc.);
court decisions;
identity documents containing records of children and spouses;
other documents provided for by the legislation of the Russian Federation.
Directive of the Bank of Russia dated July 20, 2007 No. 1868-U “On the provision by resident individuals to authorized banks of documents related to certain currency transactions”

According to Art. 6 of the Law on Currency Regulation, currency transactions between residents and non-residents are carried out without restrictions, with the exception of those provided for in Art. 7, 8 and 11 of this Law of foreign exchange transactions, in respect of which restrictions are established in order to prevent a significant reduction in gold and foreign exchange reserves, sharp fluctuations in the exchange rate of the Russian currency, as well as to maintain the stability of the balance of payments of the Russian Federation. These restrictions are non-discriminatory in nature and are canceled by currency regulatory authorities as the circumstances that led to their establishment are eliminated.

Contained in Art. 6 of the Law on Currency Regulation, the conditions for introducing currency restrictions on transactions between residents and non-residents actually establish a presumption of the inappropriateness of state (administrative) regulation of currency transactions. This means that any administrative intervention by the state, in particular the establishment of the restrictions in question, in relation to citizens and legal entities in the possession, use and disposal of currency values must be justified, justified, and at the time of intervention all available economic measures have already been used to regulate certain public relations in this area. Moreover, as soon as the circumstances that led to the introduction of currency restrictions are eliminated, the latter must be immediately lifted. In this aspect, the provisions of Russian currency legislation correspond to Section. 3(b) art. VII of the Charter of the International Monetary Fund, which provides that each member state of the IMF has “the power... after consultation with the IMF, to temporarily impose restrictions on the freedom of exchange of scarce currencies... The State will have full jurisdiction to determine the nature of such restrictions, but they should not be more restricted than necessary... and will be relaxed or abolished as soon as possible."

Currently, when applying Art. 6 of the Law on Currency Regulation, it should be taken into account that Art. 7 of this Law lost force on July 1, 2006, Art. 8 – from January 1, 2007, parts 3–6 art. 11, which established currency restrictions - from July 1, 2006.

Let us recall that before January 1, 2007, the currency legislation of the Russian Federation provided for two types of restrictions on currency transactions between residents and non-residents:

1) requirement to use a special account;
2) reservation requirement.

Despite what is established in Art. 6 of the Law on Currency Regulation is a general rule; currency legislation contains certain restrictions imposed on currency transactions between residents and non-residents. In particular:

– part 2 art. 14, a ban is imposed on resident legal entities carrying out currency transactions bypassing accounts in authorized banks, with the exception of a limited list of transactions specified in Part 2 of Art. 14;
– part 3 of Art. 14, a ban is imposed on resident individuals carrying out currency transactions bypassing accounts in authorized banks, with the exception of a limited list of transactions specified in parts 3 and 4 of Art. 14;
– parts 5 and 6 art. 12 restrictions are imposed on the implementation by residents of foreign exchange transactions through accounts opened in banks outside the territory of the Russian Federation;
– Article 19 establishes the requirement for the repatriation of foreign currency and the currency of the Russian Federation to residents’ accounts opened with authorized banks when carrying out foreign trade activities.

Settlements when carrying out currency transactions between residents and non-residents in connection with different legal regulations for the procedure for their implementation are divided into three groups:

1) payments through bank accounts;
2) payments without opening an account;
3) cash payments.

The Russian Federation guarantees the unity of the economic space, the free movement of goods, services and financial resources, and freedom of economic activity (Part 1 of Article 8 of the Constitution). These constitutional provisions do not prevent the legislator from establishing (taking into account the public legal nature of currency regulation in order to ensure the implementation of a unified state currency policy, the stability of the national currency and the stability of the internal currency market of the Russian Federation) special rules for participants in foreign economic activity aimed at the timely entry into the territory of the Russian Federation of foreign currency currency under foreign trade agreements, providing for appropriate liability for their failure to fulfill them.

One of these rules is the requirement for the repatriation of part of foreign exchange earnings, established by a special chapter “Repatriation by residents of foreign currency and the currency of the Russian Federation and the mandatory sale of part of foreign exchange earnings” of the Law on Currency Regulation.

Attention should be paid to the concept of revenue that is subject to the obligation to repatriate. Such revenue is receipts in favor of residents under foreign trade agreements for goods transferred to non-residents, work performed for them, services provided to them, information and results of intellectual activity transferred to them, including exclusive rights to them (Clause 3 of Article 21 of the Law on Currency Regulation ). Thus, the obligation to repatriate does not apply to those receipts in favor of a resident from abroad, the basis for which is not a foreign trade contract. An example of such income can be dividends due to a resident from participation in foreign companies, since the legal fact from which the resident’s right to receive dividends arises is not a foreign trade agreement, but the resident’s participation in the authorized capital of a foreign legal entity.

There is no interpretation of the term “repatriation” in the Law in question, but its meaning is determined by the content of the articles of the said chapter: we are talking about the obligation of residents, when carrying out foreign economic activities, to credit to their bank accounts in authorized banks foreign currency and the currency of the Russian Federation due to them under agreements with non-residents, and also ensure the return to the Russian Federation of funds transferred to non-residents in the event of their failure to fulfill their obligations under the agreement.

Thus, this term denotes the legal obligation of residents, the content of which is to return foreign currency funds to Russia, namely:

– the obligation of residents, when carrying out foreign trade activities, to ensure that non-residents receive foreign currency or Russian currency due to them in accordance with the terms of contracts into their bank accounts in authorized banks;
– the obligation of residents when carrying out foreign trade activities to ensure the return to Russia of funds paid by residents to non-residents in the event of non-residents’ failure to fulfill the terms of the agreement (non-delivery of goods, failure to perform work, etc.).

The content of the resident’s repatriation obligation comes down precisely to ensuring the receipt of currency under a foreign trade contract. This requirement concerns currency only and is not intended to ensure the return of goods not paid for by a non-resident. In other words, in accordance with currency legislation, a resident must either receive payment under a foreign trade contract for transferred goods, results of intellectual activity, information, work performed or services provided in favor of a non-resident (receive payment under an export contract), or receive currency from a non-resident in case of non-fulfillment the latter of his obligations under the foreign trade contract (return the advance payment under the import contract). Moreover, we are talking about any currency, i.e. both about foreign currency and about the currency of the Russian Federation.

The reserve mechanism is as follows: the subject of the reserve deposits an amount into an account with an authorized bank, which is then re-reserved in a similar manner to the Bank of Russia. This condition is provided by the legislator in order to minimize the risks of participants in foreign economic relations in the event of license revocation or liquidation of a credit organization.

In general, the reserve scheme is copied from the procedure for the formation and deposit of the Mandatory Reserve Fund of Credit Institutions established by the Bank of Russia.

The provisions of the currency legislation on the repatriation of part of the foreign currency earnings were the subject of consideration by the Constitutional Court of the Russian Federation, which recognized them as consistent with the Constitution (see the rulings of the Constitutional Court of the Russian Federation dated April 2, 2009 No. 486-0-0 “On the refusal to accept for consideration the complaint of the closed joint-stock company “Orleks” “for violation of constitutional rights and freedoms by paragraph 1 of part 1 of article 19 of the Federal Law “On Currency Regulation and Currency Control” and part 4 of article 15.25 of the Code of Administrative Offenses of the Russian Federation"; dated May 19, 2009 No. 572-0-0 "On refusal to acceptance for consideration of the complaint of the open joint-stock company “Contactor” about the violation of constitutional rights and freedoms by paragraph 1 of part 1 of article 19 of the Federal Law “On Currency Regulation and Currency Control” and part 4 of article 15.25 of the Code of the Russian Federation on Administrative Offenses").

The repatriation requirement should create an effective mechanism for the flow of foreign exchange into the country, but not a restriction on the use of foreign exchange by residents abroad. The requirement for repatriation from the point of view of the concept of the state exercising monetary (monetary) sovereignty, or more precisely, the obligation to ensure the stable functioning of the legal tender (national currency) created by it, is intended to provide the national economy with international liquidity, primarily with the funds of foreign states (foreign currency), with which there are the most active foreign economic relations.

Speaking about reserves, it should be noted that a number of states, in particular Chile, have experience in using this measure of currency regulation as a means of strengthening their monetary policy. However, as world practice shows, it is effective only in cases where strict banking regulation and supervision of possible risks are established. The need to maintain the requirement for the repatriation of foreign currency earnings in the foreign exchange legislation of the Russian Federation is justified by the fact that it is the main instrument for the redistribution of foreign currency funds in the domestic foreign exchange market and a guaranteed source of their acquisition for all participants in foreign economic activity. In conditions of insufficient stability and reliability of the Russian banking system, residents, having received the right not to repatriate foreign exchange earnings, will strive to place the foreign currency they receive in accounts in foreign banks, which will lead to a decrease in the international assets of the Russian banking system and will negatively affect its liquidity. Exemption of residents from the obligation to repatriate foreign currency earnings can only be established by law.

Thus, the Bank of Russia defines the ultimate goal of reserves as reducing market liquidity, a means of combating inflation and preventing the outflow of capital from the country.

The Law on Currency Regulation contains a closed list of cases when residents have the right not to credit foreign currency and the currency of the Russian Federation to accounts in authorized banks: 1) when crediting foreign currency earnings to the accounts of legal entities - residents or third parties in banks outside the territory of the Russian Federation - for the purpose of fulfillment of obligations of resident legal entities under credit agreements and loan agreements with non-resident organizations that are agents of foreign governments, as well as under credit agreements and loan agreements concluded with residents of OECD or FATF member states for a period of more than two years;

2) when customers (non-residents) pay local expenses of residents related to the construction by residents of objects on the territories of foreign states - for the construction period, after which the remaining funds are subject to transfer to residents’ accounts opened with authorized banks;
3) when using foreign currency received by residents from holding exhibitions, sports, cultural and other similar events outside the territory of the Russian Federation, to cover the costs of their holding - for the period of these events;
4) when offsetting counterclaims for obligations between residents and non-residents engaged in fishing outside the territory of the Russian Federation who provide services to said residents outside the territory of the Russian Federation under agency contracts (agreements) concluded with them, as well as between transport organizations - residents and non-residents who provide outside the territory of the Russian Federation, services to specified residents under contracts (agreements) concluded with them, as well as when offsetting counterclaims for obligations between transport organizations - residents and non-residents in the event that settlements are carried out through specialized settlement organizations created by international organizations in the field of international transport , whose members are such resident transport organizations. For example, to apply this rule on the offset of counterclaims, it is necessary that the resident and non-resident are transport organizations or that both of them carry out fishing outside the customs territory of the Russian Federation. The offset must be carried out in compliance with the conditions of Art. 410–412 Civil Code. In particular, the requirements must be homogeneous, not only in terms of the subject of the requirements, but also in terms of the reasons for their occurrence. For example, a requirement for an advance payment cannot be offset against a requirement for payment for services already provided (information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 29, 2001 No. 65 “Review of the practice of resolving disputes related to the termination of obligations by offsetting counter-similar claims”);
5) when offsetting counterclaims for obligations arising from reinsurance contracts or contracts for the provision of services related to the conclusion and execution of reinsurance contracts, between a non-resident and a resident who are insurance organizations or insurance brokers;
6) when crediting foreign currency earnings to the accounts of transport organizations - residents in banks outside the territory of the Russian Federation - in order to pay the expenses incurred by such transport organizations outside the territory of the Russian Federation related to the payment of air navigation, airport, port taxes and other mandatory fees on the territories of foreign states , expenses associated with servicing aircraft, river, sea vessels and other vehicles of such transport organizations and their passengers located outside the territory of the Russian Federation, as well as expenses for ensuring the activities of branches, representative offices and other divisions of such transport organizations located outside the territory of the Russian Federation.

Foreign currency credited in accordance with paragraphs 1 and 3 of Part 2 of Art. 19 of the Law on Currency Regulation to the accounts of residents or third parties in banks outside the territory of the Russian Federation, must be used for the purpose of fulfilling by residents their obligations provided for, respectively, clauses 1 and 3 of Part 2 of Art. 19 of the Law on Currency Regulation, or transferred to resident accounts opened in authorized banks.

Based on the analysis of currency legislation, the following basic principles of reservation can be identified: firstly, reservations are always made in rubles; secondly, it is always interest-free; thirdly, any reservation requires immediate re-reservation in the Bank of Russia (thus, there is a complete withdrawal of liquidity from authorized banks); fourthly, it is always finite in duration (at the end of the period, the amount of the reservation is returned regardless of whether the counterparty has fulfilled its obligations).

Reservation is an interest-free monetary requirement, i.e. Residents and non-residents must deposit a certain amount of reserve in an interest-free deposit with an authorized bank. The currency of the Russian Federation (on the basis of clause 1 of Article 140 of the Civil Code, only legal tender on the territory of the Russian Federation - the ruble) is deposited as a reservation, subject to unconditional return in the event of proper fulfillment by the counterparty of contractual obligations or upon expiration of the reservation period. In addition, the reserve amount cannot be withdrawn by the authorized bank even as a penalty applied to the client.

Thus, the legal meaning of repatriation is that if a Russian organization transfers currency to a foreign company, it must receive goods, work or services from it for the transferred amount or return the money. If a domestic company exports goods, works or services, then it is obliged to ensure full payment for them.

Control over compliance by Russian residents with these rules is carried out by currency control agents - authorized banks and customs authorities.

The obligation of residents of the Russian Federation to credit proceeds to accounts with authorized banks is established in relation to contracts related to their foreign trade activities. The definition of the concept of foreign trade activity is contained in the Law on the Fundamentals of Regulation of Foreign Trade Activity (Parts 4, 7, 28, Article 2). According to Part 2 of Art. 1 of the Law on Currency Regulation, institutions, concepts and terms of various branches of Russian legislation are applied in the meaning in which they are used in these branches of legislation, unless otherwise provided by this Law.

The Law on the Fundamentals of Foreign Trade Regulation establishes that foreign trade activity is the activity of carrying out transactions in the field of foreign trade in goods (import and export of goods), services, information and intellectual property.

Foreign trade includes the import and export of goods, the transfer of exclusive and non-exclusive rights to intellectual property by a Russian person to a foreign person and vice versa.

Let us note that in the Law on the Fundamentals of Regulation of Foreign Trade, a Russian person is understood to be:

– a legal entity created in accordance with the legislation of the Russian Federation;
– an individual who has a permanent or primary place of residence in the territory of the Russian Federation. A Russian individual must be a citizen of the Russian Federation or have the right of permanent residence in it, or be registered as an individual entrepreneur in accordance with Russian legislation.

All other persons are considered foreign.

Foreign trade in services is the provision of services (performance of work), including production, distribution, marketing, delivery of services (work) and carried out in the ways specified in Art. 33 of the Law on the Fundamentals of Regulation of Foreign Trade. Such methods, in particular, include the provision of services (performance of work) on the territory of the Russian Federation to a foreign customer or on the territory of a foreign state to a Russian customer of services.

From the analysis of Art. 2, 33 of the said Law it follows that foreign trade contracts do not include a contract for the supply of goods concluded between a resident of the Russian Federation and a non-resident, if there is no import or export of goods. At the same time, an agreement for the provision of services (performance of work) concluded between a Russian and a foreign person is considered foreign trade even if the services are provided on the territory of the Russian Federation.

Thus, to qualify a transaction as a foreign trade transaction, the determining factor is the fact that the goods being sold (supplied) cross the customs border of the Russian Federation, i.e. export and (or) import of goods. If the contract does not provide for crossing the customs border and the goods are “consumed” by a non-resident on the territory of the Russian Federation, the requirement for the resident to repatriate the proceeds under such an agreement or return the advance for undelivered goods, in accordance with Part 1 of Art. 19 of the Law on Currency Regulation, not applicable.

Foreign trade agreements are also contracts, the total amount of which exceeds the equivalent of 5 thousand US dollars at the exchange rate of foreign currencies to the ruble established by the Bank of Russia on the date of conclusion, for the performance of work, provision of services, transfer of information and results of intellectual activity (including exclusive rights on them). A resident of the Russian Federation, when concluding an agreement for the provision of services (performance of work), transfer of information and results of intellectual activity with an accredited and separate division of a foreign legal entity located on the territory of the Russian Federation, even when making payments under the agreement in rubles, becomes a participant in legal relations falling under the currency regulation and control.

As an analysis of the practice of arbitration courts shows, the conclusion of a contract for an amount less than 5 thousand US dollars and the failure to issue a transaction passport do not affect the fact that currency transactions should be carried out only using bank accounts (see the resolution of the Federal Arbitration Court of the Volga District dated December 4, 2007 in case No. A65-16713/2007; resolution of the Federal Arbitration Court of the East Siberian District dated January 19, 2007 in case No. A74-2860/06).

According to Art. 39 of the Law on the Fundamentals of Foreign Trade Regulation, foreign trade in goods, services and intellectual property may be limited by measures of currency regulation or currency control in accordance with the Articles of the Agreement of the International Monetary Fund and the legislation of the Russian Federation.

In accordance with Part 1 of Art. 19 of the Law on Currency Regulation, when carrying out foreign economic activities, residents are obliged, within the time limits provided for by foreign economic agreements, to ensure that proceeds from these agreements are received into their accounts in authorized banks.

The payment terms of export contracts, depending on the commercial interests of the parties involved, may provide for the use of various forms of international payments: bank transfer (advance payment or payment after delivery of goods), documentary collection or documentary letter of credit.

Thus, the obligation to repatriate proceeds is established for residents of the Russian Federation under contracts for the export of goods, which stipulate a condition for the export of goods from the customs territory of the Russian Federation to the territory of a foreign state.

The legislator provides for a situation when, during the reserve period, the bank into which the reserve amount was deposited is liquidated or reorganized, as well as its license to carry out banking operations is revoked. In this case, the Bank of Russia, in order to ensure the return of the reservation amount, carries out, before the expiration of the reservation period, operations with the placed reservation amount necessary for the transfer from the account of the specified authorized bank to the account of another authorized bank, indicated by the person who deposited the reservation amount.

In accordance with Part 1 of Art. 20 of the Law on Currency Regulation, when carrying out currency transactions between residents and non-residents, it is necessary to issue a transaction passport. The procedure for issuing a transaction passport is defined in Section. II instructions No. 138-I.

A transaction passport is issued by residents of the Russian Federation (legal entities or individuals - individual entrepreneurs), if the total amount of the contract exceeds the equivalent of 5 thousand US dollars. If the total amount of the contract does not exceed the equivalent of 5 thousand US dollars, taking into account the contributions made in a contract of amendments and additions, a transaction passport is not drawn up. This amount is converted into rubles at the rate established by the Bank of Russia on the date of conclusion of the contract.

The resident is obliged to issue a transaction passport no later than the first currency transaction under the contract or other fulfillment of obligations under it. For example, work under a foreign economic contract was completed before payment was made. In such a situation, the last date for issuing a transaction passport is considered to be the day of signing the certificate of completion of work. In the event that the terms of the export agreement provide for settlements in the form of a letter of credit, authorized banks, in order to avoid such cases, recommend that resident exporters draw up a transaction passport before the date of the letter of credit being advised by the foreign issuing bank in favor of the beneficiary (exporter) through a Russian authorized bank.

For each export agreement, one transaction passport is issued in one authorized bank, where a resident of the Russian Federation - the exporter - has banking services. If a resident of the Russian Federation credits foreign exchange earnings for the export of goods under a contract to his account opened with a foreign bank in cases permitted by law (for example, in accordance with the provisions of Part 2 of Article 19 of the Law on Currency Regulation), a transaction passport is issued at the territorial office Bank of Russia at the place of state registration of the resident. In this case, the territorial branch of the Bank of Russia performs the functions of a transaction passport bank. When foreign currency proceeds are partially credited to an account in an authorized bank, and partially credited to an account in a foreign bank, the transaction passport bank is the authorized bank, to which the proceeds for the export of goods are partially credited.

The resident is required to submit sheet 2 of the transaction passport, drawn up under agreements under which goods are exported from the customs territory of the Russian Federation (export) or goods are imported into the customs territory of the Russian Federation (import). Section 6 of sheet 2 of the transaction passport is filled out by the resident by including information on the terms and procedure for settlements provided for in the agreement. An export agreement specifies the period from the date of release of goods by customs authorities for export to the date of crediting funds from a non-resident to the exporter’s bank account (payment upon export of goods, including deferred payment) or records the case of a non-resident providing a commercial loan to a resident in the form of advance payment for goods ( payment before the date of actual export of the goods, i.e. advance payment). The timing of receipt of revenue can be fixed in calendar days, if such calculation is possible according to the terms of the agreement, and are calculated by the resident independently based on the terms of the agreement. Sheet 2 is submitted by the resident only according to the transaction passport, drawn up on the basis of contracts related to the export-import of goods, and is signed by the resident in the same way as sheet 1 of the transaction passport (signature of the resident’s authorized person), and is also certified by the resident’s seal (if any). Sheet 2 of the transaction passport is not signed by the authorized bank. At the same time, taking into account that the said document is an integral part of the transaction passport, the bank has the right to refuse the resident to sign the transaction passport if the data contained in the contract does not correspond to the data specified in sheet 2 of the transaction passport.

If a foreign trade contract contains conditions providing for both the export of goods from the customs territory of the Russian Federation and the import of goods into the customs territory of the Russian Federation, the resident must issue one transaction passport in one authorized bank. At the same time, he independently determines his status as a party to the contract (exporter or importer), based on which he enters the contract type code.

The accounting of foreign exchange transactions on the transaction passport for the export of goods is carried out by the bank in the bank control statement on transaction passports on the basis of the information indicated by the resident in the certificate of foreign exchange transactions.

The procedure for residents to submit documents and information to authorized banks related to conducting currency transactions with non-residents in foreign trade transactions, and for authorized banks to exercise control over currency transactions is established by Regulation No. 258-P. In particular, documents (in the form of copies certified by the resident in the manner agreed with the bank) confirming the export of goods from the customs territory of the Russian Federation are presented by the resident with a certificate of supporting documents. In accordance with clause 2.4 of these Regulations, the resident submits to the bank documents confirming the export of goods from the customs territory of the Russian Federation, with a certificate of supporting documents, within a period not exceeding 15 calendar days after the end of the month during which the goods were exported from the customs territory under the contract. territory of the Russian Federation.

As documents confirming the export of goods from the customs territory of the Russian Federation, documents containing the necessary information about the export of goods from the customs territory of the Russian Federation can be used, for example, a cargo customs declaration with a customs mark on the date of actual export of the goods or a cargo customs declaration with the date indicated in the stamp " Release is permitted." If there is a border customs mark in the cargo customs declaration about the date of actual export of goods, the resident has the right to put in the certificate of supporting documents the date of actual export of goods based on the above confirmation from border customs. If there is no specified mark in the cargo customs declaration on the date of actual export of goods, the date stamped “Release permitted” may be indicated as the date of export of goods.

In the case of carrying out currency transactions under an export agreement in Russian currency, the resident, along with supporting documents, submits to the bank a certificate of receipt of Russian currency within a period not exceeding 15 calendar days following the month during which currency transactions were carried out under the contract.

When carrying out certain currency transactions within the framework of an export agreement through his accounts abroad, the resident submits to the authorized bank a certificate of settlements through accounts abroad within a period not exceeding 45 calendar days following the month during which the resident’s transactions were carried out through accounts abroad .

When filling out the transaction passport, the resident is required to indicate the date of fulfillment of all obligations under the export contract (in the absence of such a provision in the contract, the resident independently calculates this date based on the terms of the contract). Also, in the transaction passport, the resident enters information about the terms and procedure for payments for the export of goods provided for in the contract (in the absence of the specified conditions in the contract, information is not entered).

In the case of carrying out currency transactions under an export agreement in Russian currency, the resident, along with supporting documents, submits to the authorized bank a certificate of receipt of Russian currency within a period not exceeding 15 calendar days following the month during which currency transactions were carried out under the contract.

When carrying out individual currency transactions within the framework of an export agreement through his accounts abroad, the resident submits to the bank a certificate of settlements through accounts abroad within a period not exceeding 45 calendar days following the month during which the resident’s transactions were carried out through accounts abroad.

When filling out the transaction passport, the resident is required to indicate the date of fulfillment of all obligations under the export contract (in the absence of such a provision in the contract, the resident independently calculates this date based on the terms of the contract). In addition to the above data, the resident enters information about the terms and procedure for payments provided for in the contract (in the absence of the specified conditions in the contract, information is not entered).

If documents are not submitted to the bank within the time period specified by law, the received currency will remain in the transit account and the resident will not be able to use it until he has completed the necessary documents. In addition, the authorized bank is obliged to report this violation to the Bank of Russia (Part 9 of Article 23 of the Law on Currency Regulation).

Responsibility of a resident for failure to fulfill within the established time limit the obligation to receive into their bank accounts in authorized banks foreign currency or the currency of the Russian Federation due for goods transferred to non-residents, services, work, information or results of intellectual activity performed for non-residents, including exclusive rights to them, provided for in Part 4 of Art. 15.25 Code of Administrative Offences.

If for some reason it is impossible to receive the revenue due under the terms of the contract for the delivered goods within the contract period, the resident must draw up with the non-resident an addition to the contract to extend the period for receipt of the due revenue. Of course, this does not mean that the counterparty may not fulfill its contractual obligations at all, because any contract has a start and end date, and unless otherwise agreed by the parties, the end date of the contract will also be considered the repatriation period. The addendum must be signed on a date preceding the deadline for receipt of revenue established in the main agreement. After signing the addendum, the exporter needs to reissue the transaction passport due to a change in the deadline for fulfilling obligations under the contract and the deadline for receiving proceeds. It must be taken into account that the Code of Administrative Offenses contains the responsibility of the resident for failure to receive proceeds within the contract period. Thus, even if it is actually credited to the exporter in violation of the contractual period, the exporter’s liability formally arises.

If there is a condition in the foreign trade agreement on the attribution of bank expenses and commissions to the account of the resident-exporter, the crediting of proceeds in his favor in a smaller amount minus such commissions and expenses will not constitute a violation of the currency legislation of the Russian Federation.

For each operation related to the execution of a foreign trade agreement, the resident must report to the bank in which the transaction passport was issued.

Currency transactions between residents and non-residents are carried out without restrictions, with the exception of currency transactions provided for in Art. 7, 8 and 11 of the federal law, in respect of which restrictions are established in order to prevent a significant reduction in gold and foreign exchange reserves, sharp fluctuations in the Russian Federation, as well as to maintain the stability of the balance of payments of the Russian Federation. These restrictions are non-discriminatory in nature and are canceled by currency regulatory authorities as the circumstances that led to their establishment are eliminated.

Currency transactions between residents

1. Currency transactions between residents are prohibited, with the exception of:

operations related to settlements in duty-free shops, as well as settlements when selling goods and providing services to passengers along the route of vehicles during international transport;
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 intellectual property results activities, including exclusive rights to them;
operations under contracts of transport expedition, transportation and chartering (charter) when the forwarder, carrier and charterer provide services related to the transportation of cargo exported from or imported into the Russian Federation, transit transportation of cargo through the territory of the Russian Federation, as well as under insurance contracts for said cargo ;
operations with external securities issued on behalf of the Russian Federation, 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;
transactions of legal entities 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;
operations related to the implementation of mandatory payments (taxes, fees and other payments) to the federal budget, the budget of a constituent entity of the Russian Federation, the local budget in foreign currency in accordance with the legislation of the Russian Federation.

2. Currency transactions on transactions between authorized banks, carried out by them on their own behalf and at their own expense, are carried out in the manner established by the Central Bank of the Russian Federation. 3. Foreign exchange transactions between residents and authorized banks related to:

receipt and repayment of loans and borrowings, payment of interest and penalties under relevant agreements;
depositing residents' funds into bank accounts (bank deposits) (on demand and for a certain period) and receiving residents' funds from bank accounts (bank deposits) (on demand and for a certain period);
, as well as with the fulfillment by residents of obligations under surety and pledge agreements;
the acquisition by residents of authorized banks of bills of exchange issued by these or other authorized banks, presenting them for payment, receiving payment on them, including by way of recourse, collecting penalties on them, as well as the alienation by residents of these bills of exchange to authorized banks in the manner established Federal Law No. 48-FZ of March 11, 1997 “On bills of exchange and promissory notes”;
purchase and sale by individuals of cash and non-cash foreign currency and checks (including traveler's checks), the nominal value of which is indicated in foreign currency, for the currency of the Russian Federation and foreign currency, as well as with the exchange, replacement of banknotes of a foreign state (group of foreign states ), acceptance for sending for collection to banks outside the territory of the Russian Federation of cash foreign currency and checks (including traveler's checks), the nominal value of which is indicated in foreign currency, not for the purpose of carrying out business activities by individuals;
payment of commission fees to authorized banks;
other currency transactions classified as banking operations in accordance with the legislation of the Russian Federation.

Currency transactions between non-residents

1. Non-residents have the right, without restrictions, to carry out among themselves transfers of foreign currency from accounts (from deposits) in banks outside the territory of the Russian Federation to bank accounts (to bank deposits) in authorized banks or bank accounts (bank deposits) in authorized banks to accounts (in deposits) in banks outside the territory of the Russian Federation or in authorized banks.

2. Non-residents have the right to carry out currency transactions with domestic securities among themselves on the territory of the Russian Federation, taking into account the requirements established by the antimonopoly legislation of the Russian Federation and the legislation of the Russian Federation on the securities market, in the manner established by the Central Bank of the Russian Federation, which may provide for a requirement to use a special account when performing the specified currency transactions.

3. Foreign exchange transactions between non-residents on the territory of the Russian Federation in the currency of the Russian Federation are carried out through bank accounts (bank deposits) opened on the territory of the Russian Federation in the manner prescribed by Art. 13 of the federal law.

Rights and obligations of residents when carrying out foreign exchange transactions

1 . Residents have the right, without restrictions, to open bank accounts (bank deposits) in foreign currency in authorized banks, unless otherwise established by this federal law.

2 . Unless otherwise provided by this federal law, settlements when carrying out currency transactions are made by resident legal entities through bank accounts in authorized banks, the procedure for opening and maintaining which is established by the Central Bank of the Russian Federation.

Settlements when carrying out currency transactions can be made by resident legal entities through accounts opened in accordance with Art. 12 of the federal law in banks outside the territory of the Russian Federation, at the expense of funds credited to these accounts in accordance with this federal law.

3 . Settlements when carrying out currency transactions are made by resident individuals through bank accounts in authorized banks, the procedure for opening and maintaining which is established by the Central Bank of the Russian Federation, with the exception of the following currency transactions carried out in accordance with this federal law:

transfer by a resident individual of currency assets as a gift to the Russian Federation, a constituent entity of the Russian Federation and (or) a municipal entity;
donating currency values to a spouse and close relatives;
bequeathing currency values or receiving them by right of inheritance;
acquisition and alienation by a resident individual for the purpose of collecting single banknotes and coins;
transfer by a resident individual from the Russian Federation and to the Russian Federation without opening bank accounts, carried out in accordance with the procedure established by the Central Bank of the Russian Federation, which may only provide for a limitation on the amount of the transfer, as well as a postal transfer;
purchase from an authorized bank or sale to an authorized bank by an individual resident of cash foreign currency, exchange, replacement of banknotes of a foreign state (group of foreign states), as well as acceptance of cash foreign currency for collection to banks outside the territory of the Russian Federation.

4 . Settlements when carrying out currency transactions can be made by resident individuals through accounts opened in accordance with Art. 12 of the federal law in banks outside the territory of the Russian Federation, at the expense of funds credited to these accounts in accordance with this federal law.

5 . Write-off and (or) crediting of funds, domestic and foreign securities from a special account and to a special account of a resident are carried out in a manner that may provide, if established by the Central Bank of the Russian Federation, only:

establishing a requirement for the resident to reserve an amount not exceeding the equivalent of 100% of the amount of funds and (or) the value of securities debited from the resident’s special account for a period of no more than 60 calendar days before the day of the currency transaction;
establishing a requirement for the resident to reserve an amount not exceeding the equivalent of 20% of the amount of funds and (or) the value of securities credited to the resident’s special account for a period of no more than a year.

6 . The Russian Federation cannot simultaneously establish, in relation to one type of currency transactions, the requirements provided for in paragraphs 1 and 2 of Part 5 of Art. 14 of the federal law.

7 . Residents can make payments through their bank accounts in any foreign currency with, if necessary, carrying out a conversion operation at the rate agreed upon with the authorized bank, regardless of the foreign currency in which the bank account was opened.

8 . Professional participants in the securities market open special brokerage accounts with authorized banks to account for non-resident funds.

Authorized banks, which are professional participants in the securities market, independently open and maintain special brokerage accounts to account for the funds of their non-resident clients.

The procedure for opening and maintaining special brokerage accounts for accounting for funds of non-residents is established by the Central Bank of the Russian Federation and may provide for the establishment of a requirement for mandatory full or partial maintenance by the authorized banks in which these accounts are opened, the balance of funds in the correspondent account with the Central Bank of the Russian Federation, equal to the total balance of funds in special brokerage accounts.