As a part of the ongoing modernization of the Civil Code, Federal Law No 212-FZ “On the Introduction of Amendments to Parts One and Two of the Civil Code and Certain Legislative Acts of the Russian Federation” (the “Law”) was adopted on July 26, 2017.
The proposed amendments will come into force on June 1, 2018.
The Law is focused on reforming rules on financial transactions (in particular, loan agreements, settlement of accounts, conditional deposit (escrow) agreements, bank deposit and bank account agreements, factoring, letters of credit, transferal of rights and some others).
The amendments are introduced to Parts One and Two of the Civil Code, and to the following Federal Laws: “On Banks and Banking Activities,” “On Precious Metals and Precious Stones,” “On Mortgages (Charge of Immovable Property),” “On Insolvency (Bankruptcy),” and “On Enforcement Proceedings.”
The number of amendments is substantial. Below we discuss only some of the most significant of them. Continue reading
Category Archives: Blog
Kaspersky Lab challenges the U.S. Government ban on its products
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January 23, 2018
Bruce Marks gives an interview to RIA News on US government’s decision to ban the use of Kaspersky Lab products in federal agencies. He thinks that the Russian brand of security software doesn’t have any chances to appeal the decision. The president has a very strong position in the issues of the national security and there is a possibility that Kaspersky might be vulnerable to Russian government influence.
Significant Changes to the Russian Arbitration System is to Take Effect on September 1, 2016
Major changes to the domestic and international arbitration in Russia will come in effect on September 1, 2016. The changes were introduced by Federal Law No. 382-FZ “On Arbitration in the Russian Federation,” and Federal Law No. 409-FZ “On Amending Certain Legislative Acts of the Russian Federation and Considering Paragraph 3 Part 1 Article 6 of the Federal Law ‘On Self-Regulating Organizations’ as Having Lost Its Force Due to the Adoption of the Federal Law ‘On Arbitration in the Russian Federation’”.
The arbitration reform extends this list of disputes subject to jurisdiction of international commercial arbitration to include disputes where a substantial part of the obligations arising from the relationships between the parties is to be performed abroad, or where the subject matter of the dispute is most closely connected with a foreign state. It also extends the scope of disputes pertaining to international investment, which may be made subject to the international commercial arbitration.
The reform implements new rules for administration of arbitration process. Permanent arbitration institutions may only be created under the auspices of non-commercial organizations and are required to obtain a license from the Russian Government. A number of restrictions placed on Ad hoc arbitrations, including limitation on jurisdiction of ad hoc panels to hear corporate disputes and inability to gain assistance from the Russian courts in collecting evidence.
The new law aims to resolve unclarities as to which corporate disputes can be subject to arbitration. It also provides that arbitration agreements can be part of the Russian company’s charter binding on all shareholders.
Some provisions of the laws will be taking effect after September 1, 2016.
For more information please contact Maria Grechishkina (mgrechishkina@mslegal.com) at (215) 569-8901.
Banks and Insurance Companies Will Identify Foreign Clients
New reporting requirements to organizations involved in providing banking, financing and insurance service have been implemented. The requirement concerns monetary and other transactions involving property.
The organizations are required to collect information on foreign clients, including: registration numbers, main place of business, and information on beneficiaries and founders. The requirements will extend to аll foreign unincorporated entities, such as trusts and funds.
Federal Law dated December 30, 2015 N 424-ФЗ
Entered into force on January 10, 2016
Mass Media Outlets Which Failed to Report Foreign Financing will be Subject to Fine
Pursuant to the changes in the law “On Mass Media”, mass media outlets have to report foreign financing to the Russian government (RosComnadzor -Russian Committee on Supervision). Failure to provide the report entails penalty in the amount of double the amount of the financing received.
(A year ago a federal law restricted a possibility of foreign ownership in a Russian media to 20 per cent. The requirement came in effect as of January 1, 2016. The media owners have until Feb. 1, 2017 to comply with the new requirements by making the necessary structural changes).
Federal Law dated December 30, 2015 N 464-ФЗ
The changes came into force on January 10, 2016
Quota for Foreign Participation in Banking Organizations Limited to 50%
The Bank of Russia will decline to register and issue license to credit organizations when participation of the foreign capital in its charter capital exceeds 50%. As provided for in the law “On the Central Bank of the Russian Federation” (Bank of Russia)”, the regulator can impose additional requirements to credit organization with foreign investments as far as the reporting, the protocol for confirmation of nomination of the executives and the list of the permitted banking transactions.
Federal Law dated 12.2015 N 372-ФЗ
Came into force December 26, 2015
How to dismiss head of representative office of a foreign company in Russia
Marks & Sokolov attorneys obtained a civil judgment unveiling the grey area of Russian labor law in dispute between foreign company and the head of its Russian representative office
What the case involved: a foreign company having its representative office in Moscow, Russia, dismissed the head of its representative office under the rules stipulated by law for heads of companies. The head of representative office claimed such dismissal to be illegal.
Process and result: Marks & Sokolov attorneys represented the foreign company in court and successfully proved that Russian labor law rules for dismissing head of companies also apply to head of representative offices of foreign companies in Russia.
The judge of a district court of Moscow dismissed the claim in full. This judgment was upheld by Moscow city court.
Overview of Amendments to the Tax Code of the Russian Federation
On January 1, 2015 the law of the Russian Federation, No. 376-FZ of November 24, 2015 “On introduction of amendments into Parts One and Two of the Tax Code of the Russian Federation” (hereinafter, the “Law”) came into force. The Law is designed to prevent the abuse of “offshore” business structures and obligates Russian Federation tax residents to notify Russian tax authorities of foreign-registered companies they control and to pay taxes on those companies’ profits.
1. Terms and Definitions
1.1. The Law introduced new terms into the Tax Code of the Russian Federation (“Tax Code.”) These terms are: “foreign controlled company” (“FCC”), “controlling person”; and, “tax resident of the Russian Federation” (“Tax Resident”).
1.2. A FCC is a foreign company meeting both of the following conditions:
- the company is not a tax resident of the Russian Federation; and
- the company is controlled by legal entities and/or individuals that are Tax Residents.
A foreign structure which does not have the status of a legal entity is also deemed a FCC subject to taxation.
1.3. A foreign company that meets the criteria of a FCC, may consent to being considered a Tax Resident.
1.4. “Controlling persons” of a FCC includes:
- An individual or legal entity whose ownership of company share capital exceeds 50% for the year 2015. After January 1, 2016, the percentage is 25%; or
- An individual together with their spouses and children under 18 years, or a legal entity whose ownership of company share capital exceeds 10% if the share capital held by all Tax Residents, exceeds 50% of company share capital.
1.5. The following organizations are deemed Tax Residents:
1) Russian legal entities;
2) Foreign companies based upon international treaty; or
3) Foreign companies managed from the Russian Federation.
2. Notification To Tax Authorities
2.1. Taxpayers must notify tax authorities of:
- Their participation in a FCC if the share of their participation exceeds 10%;
- The establishment of foreign structures that do not possess the status of a legal entity, as well as of exercising control over such structures or of the actual right to receive profits obtained from such structures, including cases when the taxpayer acts as a founder of the structure or a person who has the right to receive distributions from the structure;
- FCCs for which they act as Controlling Persons.
2.2. Foreign organizations as well as foreign structures not having the status of a legal entity which have assets in the territory of the Russian Federation subject to Russian taxation must provide tax authorities with information regarding the participants in the foreign organization such as the founders, beneficiaries and managers.
3. Taxation Profit, Tax Rate
3.1. The FCC’s profits are treated as the Controlling Person’s profits based upon his percentage of shares in the FCC. The profits are included in the Controlling Person’s taxable base. FCC profits are taxable when they exceed RUR 50 million per year in 2015; RUR 30 million per year in 2016; and RUR 10 million per year after January 1, 2017.
3.2. A FCC’s profit is defined as the company’s gross revenue before taxation. The following types of revenue are considered:
- Dividends, received by the FCC;
- Revenue received as a result of distribution of profits or assets of organizations, other persons and organizations and other persons and their associations, including distribution in the course of liquidation thereof;
- Interest received from debt obligations of any sort, including profit-sharing bonds and bonds convertible into shares;
- Royalties;
- Revenue from the sale of shares and/or concession of rights with regard to a foreign organization that do not have the status of a legal entity in accordance with foreign law;
- Revenue from operations with financial instruments (derivatives);
- Revenue from the sale of real estate;
- Revenue from the lease or sublease of assets;
- Revenue from mutual funds, including paying off of such investment shares;
- Revenue from the performance of any consultancy, legal, accounting, auditing, engineering, advertising, marketing services, procession of information services and research and development services;
- Revenue from out-staffing services and other kinds of revenue alike to the above stated revenues.
3.3. An FCC’s profits are not taxable, if at least one of the following conditions is met:
- It is a non-profit organization that does not distribute profits between shareholders, participants, founders or other persons in accordance with personal law of the foreign company;
- It is established in accordance with laws of a participant of the Eurasian Economic Union;
- It is a resident of a state or territory with which the Russian Federation has an international treaty on taxation matters, excluding states or territories that do not ensure exchange of information for the purposes of taxation with the Russian Federation, and the effective rate of taxation of the profits of such foreign companies is not less than 75% of the average weighted profit tax rate. The effective tax rate is defined as the quotient of division of the sum of the amount of profit tax calculated by the foreign company and its subdivisions in accordance with personal law of the foreign company and the amount of profit tax withheld from the profit of such foreign company at the source of payment of such profit by the amount of profit of the foreign company.
- It is a resident of a state or territory with which Russian Federation has an international treaty on avoidance of double taxation, excluding states or territories that do not ensure the exchange of information for the purposes of taxation with the Russian Federation, and the share of revenue of such FCC is taken into account for the purpose of calculating its taxable profit does not exceed 20% of its gross revenue.
- It is a foreign structure that does not have the status of legal entity meeting all of the following conditions:
The founder of the structure does not have the right to receive assets of the structure in accordance with the personal law of the structure and its constitutive documents;
rights of the founder of such structure linked to his personal title in the structure cannot be transferred to another person after establishment of the structure in accordance with the personal law of the structure and its constitutive documents, excluding cases of inheritance or universal legal succession; and
The founder of such structure does not have the right to receive directly or indirectly any profit of the structure, distributable among its participants (shareholders, trustors etc).
- It is a bank or insurance company performing activities in accordance with its personal law on the basis of a license or another special permission for performance of banking or insurance activity, and it is permanently residing in a state or territory with which Russian Federation has an international treaty on taxation matters, excluding states or territories that do not ensure the exchange of information for the purposes of taxation with the Russian Federation;
- It is an issuer of publically offered bonds or an organization entitled to receive interests revenue due to be distributed on the publically offered bonds, or an organization – successor of rights and obligations under publically offered bonds issued by another foreign company, provided that the share of such profit within a financial year is not less than 90% of all profit of the organization within the financial year;
- It participates in carrying out of projects in accordance with agreements on product sharing, concession agreements, license agreements or service agreements or contracts or alike agreements on product sharing, provided that the share of such profit within a financial year is not less than 90% of all profit of the company within the financial year;
- It is an operator of a new sea deposits of raw hydrocarbons or an immediate shareholder or participant of an operator of a new sea deposit of raw hydrocarbons.
4. Responsibility For Violations Of The Law
4.1. The failure of a Controlling Person to provide tax authorities of the FCC’s financial statements and an auditor’s report with regard to the financial statement (if auditing of financial statements is compulsory in accordance with the personal law of the FCC) or knowingly providing false information, shall be punished with a fine of RUR 100,000 fine.
4.2. The illegal failure by a taxpayer or FCC to provide or to delay to provide to tax authorities information regarding the participants of the FCC shall be punished with a fine equal to 100% of due to be paid by the FCC regarding to asset belonging to it.
4.3. The failure to pay or make partial payment by the Controlling Person or taxpayer (either an individual or a legal entity) of the profit tax due or the failure to include the share of profit of a FCC into the Controlling Person’s taxable base shall be punishable by a fine equal to 20% of the amount of the profit tax due, but not less than RUR 100 000. This provision becomes effective in 2018).
4.4. The illegal failure to provide tax authorities with notice of FCC or providing inaccurate information by the Controlling Person shall be punished with a fine of RUR 100,000 for each FCC for information was not provided or inaccurate information was provided.
4.5. The illegal failure to provide tax authorities with a notice of participation in foreign organizations as prescribed by law; or providing notification of participation in foreign organizations containing inaccurate information, shall be punished with a fine of RUR 50,000 for each foreign organization with regard to which information was not provided or inaccurate information was provided.
4.6. Criminal responsibility for tax evasion committed through the failure to include profits of FCCs into the taxpayer’s taxable base shall not apply from 2015 through 2017, provided that the damage hereby caused to the budget of the Russian Federation is paid for in full.
Limited Purpose Use
The material in this outline is intended for general information purposes only. As such it is not intended to fit for any particular purpose. Before proceeding with any business or commercial decision or investment, you may obtain the advice of independent investment firms, financial, legal and tax advisors, should you wish to do so.
Key Amendments of the Russian Civil Code Provisions on Legal Entities
On September 1, 2014 significant amendments to the Russian Civil Code’s provisions for the creation, operation, reorganization and liquidation of legal entities came into force. Key amendments are briefly described below.
Forms and Systems of Legal Entities
All legal entities are either corporate (founders (participants) have membership rights) or unitary (founders are not participants or members). For-profit legal entities are either public or non-public, with corporate governance in the latter being more flexible. For example, the rights of participants in a non-public for-profit legal entity do not have to be proportionate to the number of shares held.
Legal entities may no longer be created as closed joint-stock companies. However existing closed joint stock companies are not required to be re-registered in another form before any changes to the charters are made.
Corporate Governance
New provisions for shareholder agreements (“korporativny dogovor”) have been introduced. Shareholder agreements for public legal entities shall be disclosed to the extent required by law. However, shareholder agreements in non-public legal entities may remain confidential, unless otherwise required by law.
Amendments also provide for certification of minutes of general shareholders meeting (and of LLC’s participants). Depending on the form of the commercial company, minutes should be certified by a notary, a corporate registrar or otherwise in certain cases.
Reorganization
The combination of different forms of reorganized corporations and reorganization of several legal entities at once is permitted and it is now possible to challenge court decisions for liquidation of a legal entity. Joint and several liability of persons having control over a legal entity’s decisions may now be imposed in the event of certain abuses in the course of reorganization.
Certain Additional Amendments Are:
– Payment of charter capital: When provided by law that charter capital may be paid after the time of registration, the participants of the legal entity shall be secondarily liable for legal the entity’s debt.
– Liquidation: Property of a legal entity discovered after liquidation may be distributed among its creditors.
– Further action against “sham” legal entities: Legal entities “dormant” for 12 month (not having filed accounting documents and not having conducted any operations on any of their bank accounts) shall be eliminated from the state register.
Business In Russia In Times of Crisis: Do You Know With Whom You Do Business? – Executive Orders 13660, 13661 and 13662 and Revocation of Export Licenses
Business In Russia In Times of Crisis: Do You Know With Whom You Do Business? – Executive Orders 13660, 13661 and 13662 and Revocation of Export Licenses
The President of the United States has issued a series of executive orders imposing sanctions on Russian government officials, members of the inner circle and the financial, energy and defense sectors of the Russian economy in order to pressure the Russian government to alter its policies toward Ukraine. Americans may not deal with sanctioned persons and must take measures to ensure compliance with U.S. law. The most recent sanctions include finance, energy, and defense sectoral sanctions impacting companies such as Gazprom, Lukoil, Rostec, Rosneft and Sberbank.
Any U.S. company doing or planning to do business with Russian companies should seek guidance regarding compliance with these Executive Orders which apply to U.S. companies, as well as foreign companies which they control, and all U.S. citizens. Marks & Sokolov can assist with compliance by providing:
- A review of contracts with Russian parties, including an examination of Russian contract parties and their beneficial owners;
- Determination whether the sanctions apply and prohibit contract performance;
- Advice regarding potential liability to contract parties and the US Department of the Treasury;
- Advice regarding notification of termination of contracts and the disposition of deposits;
- Advice about possible defenses against liability such as justified non-performance due to force majeure circumstances and regulatory prohibition.
The Executive Orders and their implementation are summarized below in chronological order:
Ukraine 13660: On March 6, 2014, President Obama issued Executive Order (“E.O. 13660”) declaring a national emergency and authorizing the imposition of sanctions upon individuals involved in: (a) undermining the democratic processes or institutions of Ukraine; (b) threatening the peace security, stability, sovereignty or territorial integrity of Ukraine; (c) misappropriating state assets of Ukraine; or (d) asserting government authority without authorization from Ukraine’s government.
This first round sanction authorized blocking property and interests in property of persons to be designated and added to the Treasury Department’s Office of Foreign Assets Control’s (“OFAC”) Specially Designated Nationals (“SDN”) List. Blocked property includes property, or interests in property, of any persons owned, controlled or acting for any SDN. OFAC considers a person controlled by an SDN if, among other factual scenarios, the SDN has a 50% or more ownership interest in the person. Such a person is blocked even if the person is not specifically listed on the SDN list. Blocking immediately imposes an across-the-board prohibition against transfers or dealings of any kind with regard to the property by “United States persons.” Blocked persons may not enter the United States.
Ukraine 13661: On March 16, 2014, President Obama issued Executive Order (“E.O. 13661”) blocking property of seven listed Russian government officials and authorizing OFAC to add to the SDN list, Russian government officials and any individual or entity that is owned or controlled by, or provided material or other support to, a senior Russian government official.
On March 17, 2014, pursuant to E.O. 13660, OFAC added four persons to the SDN list, including Crimean separatists and ousted Ukrainian President Viktor Yanukovych.
Ukraine 13662: On March 20, 2014, President Obama issued Executive Order (“E.O. 13662”) authorizing sanctions to target sectors of the Russian economy, such as financial services, energy, metals and mining, engineering, and defense and related materiel.
On March 20, 2014, pursuant to E.O. 13661, OFAC added to the SDN list, sixteen Russian government officials and members of the inner circle that support them. In addition, four persons plus Bank Rossiya were added to the SDN list for providing material support to Russian government officials.
On April 11, 2014, pursuant to E.O. 13660, OFAC added seven Crimean separatist leaders, a former Ukrainian official and a Crimea-based gas company to the SDN list. On April 28, 2014, pursuant to E.O. 13661, OFAC added to the SDN list, seven Russian government officials, including two key members of Russian leadership’s inner circle, plus seventeen entities because they are owned or controlled by persons whose property and interests in property are blocked pursuant to E.O. 13661.
On April 28, 2014, the U.S. Department of Commerce’s Bureau of Industry and Security announced expansion of export restrictions on items subject to Export Administration Regulations, and that it will deny pending applications for licenses to export or re-export any high technology items to Russia or occupied Crimea that contribute to Russia’s military capabilities. In addition, the Commerce Department is taking actions to revoke any existing export licenses which meet these conditions.
On June 20, 2014, OFAC added seven names to the SDN list. On July 16, 2014, five separatists and eleven entities including the Donetsk Peoples Republic were added to SDN list. In addition, under E.O. 13662, Directive 1 applying to the financial services sector, and Directive 2 applying to the energy sector, were issued prohibiting U.S. persons from transacting in, providing financing for, or otherwise dealing in new debt of longer than 90 days maturity or new equity with these entities. Gazprombank, Rosneft, Novatek and Vnesheconombank were added to the sectoral sanctions list (“SSIL”), but not the SDN list. On July 29, 2014, Bank of Moscow, Russian Agricultural Bank and VTB Bank were added to the SSIL.
On September 12, 2014, Sberbank was added to the SSIL and Directive 1 was amended lowering the debt threshold to 30 days. Directive 3, applying to the defence sector, with similar measures as Directive 1 was issued and defense concern Rostec added to the SSIL. Russian energy sectoral sanctions were expanded with Transneft, Lukoil, Gazprom and Surgutneftegas added to the SSIL (but not SDN list) and Directive 4 was issued prohibiting U.S. persons from exporting goods and services to these companies in support of deepwater, artic or shale projects with the potential to produce oil. In addition, the Russian defense concerns Almaz-Antey, Tikhomirov Scientific Research Institute, Kalinin Machine Plant, Mytishchinski Mashinostroitelny and Dolgoprudny Research Production Enterprise were added to the SDN list.
Marks & Sokolov, LLC has extensive experience representing multinational clients in the United States and Russia. For more information please contact, in the United States: Bruce Marks (marks@mslegal.com) or Thomas Sullivan (tsullivan@mslegal.com) at (215) 569-8901; or in Russia, Sergey Sokolov (ssokolov@mslegal.com) or Derek Bloom (dbloom@mslegal.com) at +7-495-626-0606.
Business In Russia In Times of Crisis: Executive Orders 13660, 13661 and 13662 – New Additions to SDN List [June 20, 2014]
On March 6, 2014, the President of the United States issued Executive Order (“E.O. 13660”) authorizing sanctions on individuals and entities responsible for Russian activities related to Ukraine. On June 20, 2014 the Office of Foreign Asset Control (“OFAC”) added to the SDN List, seven Ukraine separatists accused of stoking violence.
Marks & Sokolov attorneys provide advice on structuring contracts and protecting interests in the face of possible additional economic sanctions on Russia; and counsel companies interacting with sanctions targets. Any U.S. company doing or planning to do business with Russian companies should seek guidance regarding compliance with these Executive Orders which apply to U.S. companies, as well as foreign companies which they control, and all U.S. citizens. Marks & Sokolov attorneys can assist with compliance by providing:
– A review of contracts with Russian parties, including an examination of Russian contract parties and their beneficial owners;
– Determination whether the sanctions apply and prohibit contract performance;
– Advice regarding potential liability to contract parties and the US Department of the Treasury,
– Advice regarding notification of termination of contracts and the disposition of deposits;
– Advice about possible defenses against liability such as justified non-performance due to force majeure circumstances and regulatory prohibition.
Marks & Sokolov, LLC has extensive experience representing multinational clients in the United States and Russia. For more information please contact, in the United States: Bruce Marks (marks@mslegal.com) or Thomas Sullivan (tsullivan@mslegal.com) at (215) 569-8901; or in Russia, Sergey Sokolov (ssokolov@mslegal.com) or Derek Bloom (dbloom@mslegal.com) at +7-495-626-0606.
Trade Sanctions Enforcement Update: Western Oil Companies Go Long Expanding In Russia [ June 10, 2014 ]
June 10, 2014
In response to the situation in Ukraine, the President of the United States has issued Executive Orders 13660, 13661 and 13662 authorizing sanctions upon: (1) individuals undermining democratic processes, threatening peace and security and misappropriating state assets of Ukraine; (2) Russian government officials and members of the inner circle; and (3) sectors of the Russian economy. However despite U.S. efforts to isolate Russia, many major western oil companies are boldly moving ahead to expand investments in Russia now estimated to exceed $35 billion. Significant new deals are:
- ExxonMobil and Rosneft agreed to develop “tight oil” reserves in Western Siberia in an effort to replicate the U.S. shale boom using ExxonMobil’s technology currently used in unconventional oil and gas formations in North America
- ExxonMobil and Rosneft are moving forward with a $3.2 billion agreement to explore and develop Arctic oil reservoirs in the Laptev and Chukchi seas. These projects target the oil-rich Anisinsk-Novosibirsk and Ust-Oleneksk fields in the Laptev Sea shelf zone, as well as the North-Wrangel-2 and South-Chukchi shelf reservoirs.
- BP signed a $300 million preliminary agreement with Rosneft to study shale oil deposits in the Volga Valley and Ural Mountains.
- Total signed a deal with Lukoil to explore a 1,000 square mile block in western Siberia for shale oil.
- Shell has agreed with Gazprom to expand the Sakhalin-2 LNG plant which produces 10 million tonnes of LNG per year.
Marks & Sokolov attorneys provide advice on structuring contracts and protecting interests in the face of possible additional economic sanctions on Russia; and counsel companies interacting with sanctions targets. Any company, foreign or domestic, doing or planning to do business with entities or countries subject to U.S. trade sanctions – such as the Russian Federation – should seek guidance regarding compliance. Marks & Sokolov attorneys can assist with compliance by providing:
– A review of contracts, including an examination of parties and their beneficial owners;
– Determination whether the sanctions apply and prohibit contract performance;
– Advice regarding potential liability to contract parties;
– Advice regarding notification of termination of contracts and the disposition of deposits;
– Advice about possible defenses against liability such as justified non-performance due to force majeure circumstances and regulatory prohibition.
Marks & Sokolov, LLC has extensive experience representing multinational clients in the United States and Russia. For more information please contact, in the United States: Bruce Marks (marks@mslegal.com) or Thomas Sullivan (tsullivan@mslegal.com) at (215) 569-8901; or in Russia, Sergey Sokolov (ssokolov@mslegal.com) or Derek Bloom (dbloom@mslegal.com) at +7-495-626-0606.
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