Foreign investment: the importation of goods as capital contribution
Author: Irina Leonidovna Vakhterova,
partner of "Corporate Lawyers Group"
Investments play a crucial role in the maintenance and development of the economic potential of the state. The investment policy of the state depend on the political, economic and social transformations that have an impact on economic growth. In this connection one of the main tasks of the investment policy is the creation of an enabling environment conducive to the improvement of the investment activity and attraction of domestic and foreign investments for reconstruction of the enterprises. In other words, the main goal is to encourage business to invest in modernization and renewal of fixed assets.
This is an important attraction of foreign investments, the objects of which are newly developed and modernized fixed assets and current assets in all branches and spheres of the national economy. To achieve these goals, the Russian legislation provides for preferential tax regimes when importing foreign investors machines and equipment on the territory of the Russian Federation. The most widespread form of realization of the investment is the import of the foreign investor of the equipment as a contribution to Charter capital.
However, it should be noted that, in connection with the formation and functioning of the Customs Union and the formation of a Common economic space of the customs legislation has undergone significant changes. Entered into force the Customs code of the Customs Union (hereinafter - TC TC), the Federal law «On customs regulation in the Russian Federation», the Commission of the Customs Union adopted a number of decisions that significantly change the previously existing legislative acts. Naturally, in this context has changed and the provisions governing the procedure for granting privileges for the import of goods into the Charter capital. It should be noted that the privileges on payment of customs duties are foreseen by the legislation of the Russian Federation and the Customs Union, but there are a number of administrative barriers, which make the possibility of import of equipment to the Charter capital less attractive for foreign investors, and often completely meaningless.
Below we consider the conditions for granting such exemptions from the point of view of their practical application.
In accordance with article 74 of this code kinds of tariff privileges (privileges on payment of customs payments), the procedure and conditions of their provision are determined in accordance with this code and (or) international treaties of the member States of the customs Union.
Agreement on single customs-tariff regulation of 25.01.2008 year provided that the importation of goods to the common customs territory of the Customs Union may be applied tariff benefits in the form of exemption from payment of import customs duties or reduction of the rates of import customs the fee. This allowed the granting of tariff privileges in respect of goods imported as contribution of a foreign founder to the authorized (share) capital within the time limits established by constituent documents for forming the capital. In accordance with the Agreement the order of application of the exemption from payment of customs duties is established by the Commission of the Customs Union.
15.07.2011 the Commission of the Customs Union was adopted by decision № 728 «On the procedure of application of the exemption from payment of customs duties at import of certain categories of goods to the common customs territory of the Customs Union». The order provides that goods imported from third countries as a contribution a foreign founder to the authorized (share) capital (Fund) within the time limits established by constituent documents for forming the capital (Fund), shall be exempt from the payment of customs duties in the order and on conditions, stipulated by normative legal acts of the member state The customs Union.
The procedure and conditions for the granting of exemptions from payment of import customs duties is established by the Resolution of the Government of the Russian Federation of 23.07.1996 № 883 «on privileges for payment of import customs duty and value added tax in respect of goods, imported by foreign investors in as a contribution to the authorized (share) capital of enterprises with foreign investments».
In accordance with the decree of the goods imported as contribution of a foreign founder to the authorized capital shall be exempt from the payment of customs duties in case of simultaneous observance of the three conditions, namely, the goods:
- are not excisable;
- refer to the main production assets;
- imported during the period, established by constituent documents for forming the authorized (share) capital.
In order to gain exemption from payment of customs payments at import of the equipment of the person performing such import, you have to confirm the compliance of all the above listed conditions. For the first two conditions are not normally any questions, because already at the moment of import are obviously if excisable goods and whether they belong to the basic production assets.
With regard to conditions on the import of goods in the dates established for the formation of the Charter capital, it requires more detailed analysis. Consider the import of equipment to the Charter capital of a limited liability company.
According to article 14 of the Federal law «About societies with limited liability», the authorized capital of the organization, established in the form of a limited liability company consists of the nominal shares of the participants (founders) of the company. In accordance with article 15 of the law payment for shares is made a party by making a Deposit of the shares. The contribution may be made in the form of property, for example equipment. The amount of the authorized capital, the share of participants, the type and size of the contribution of each participant shall be determined in the constituent document of the company, which is the Charter of the company (from 1 July 2009, the articles of incorporation of the limited liability companies shall lose their force of the constituent documents).
On the basis of article 19 of the law of the General meeting of participants of the company may adopt a decision on increase in the authorized capital of the company at the expense of making additional contributions of the company. Such a decision should be determined by the total value of additional contributions, as well as set a single for all members of the society of the ratio between the value of the additional contribution of a participant in the company and the amount by increasing the nominal value of its share.
Additional contributions may be made by the company members within two months from the day the General meeting of participants of the resolution, if the company Charter or decision of a company participants ' General meeting does not establish other term.
No later than one month from the day of expiration of the term of registration additional contributions the General meeting of participants of the company shall adopt a decision on approval of the results of making additional contributions of the company and on amending the Charter of the company of the changes associated with the increase in the size of the authorized capital of the company.
Thus, changes in the Charter of the company, which is the only constituent document, made and registered after the actual additional contribution. In other words, when imported as a contribution to the Charter capital of any equipment, the person performing the import of such equipment may not submit the documents, confirming that the imported equipment is indeed a contribution to the authorized capital, as at the time of import lacks the founding document, which has passed the state registration and which has the power to third parties, including for the customs authority.
In connection with this, the customs authorities consider that the actual importation of goods, made in the form of an additional contribution to the Charter capital of the company, the legal grounds for granting exemptions from payment of customs duties, taxes is not available in the absence of at the moment of customs clearance the registered constituent documents of the company, containing the information on the results of the additional contribution paid by these things. In this case, as follows from the explanation of the customs authorities, the establishment of the registered constituent documents of the company the terms of import of the goods after the state registration of the results of their application as additional contributions to the authorized capital of the company is not stipulated.
It should be noted that there is a vast judicial practice related to appeals against the decisions of customs bodies about the refusal in granting exemptions from payment of customs duties on the above mentioned circumstances. In most cases, the courts recognize these faults are illegal and shall take a decision in favor of the participants of foreign economic activity.
Meanwhile, in practice, for the purposes of obtaining exemptions from payment of customs duties when importing goods into the Charter capital, use the following scheme. The company takes a decision on increase of the authorized capital and on the basis of this decision makes changes in the Statute of the so-called «intention to increase the authorized capital, in which is indicated through any kind of property and in what time-frame the authorized capital will be increased. Articles of Association of the relevant changes is submitted to the customs authorities at the stage of import of equipment. After the importation of the equipment and amending the articles of Association of the company changes, connected with the established an increase in the size of the authorized capital of the company, the new version of the Constitution also provided to customs authorities to confirm the status of the imported goods.
In accordance with the Decision of the Commission of the Customs Union of 15.07.2011 № 728, which was mentioned above, in the event of a foreign person from the composition of the founders (participants) of the organization that took tariff privilege in the form of exemption from payment of customs duties, as well as in the course of this organization of transactions involving transfer of the right of ownership on goods imported with exemption from customs duties, or upon the transfer of such goods for temporary use, the obligation to pay customs duties shall be executed in accordance with the customs legislation of the The customs Union.
Thus, presented in respect of the goods imported as a contribution to the authorized capital, the benefits associated with certain restrictions on use and (or) disposal.
In accordance with article 200 of this code, goods placed under the customs procedure of release for domestic consumption, in respect of which provided exemptions from payment of import customs duties and taxes associated with restrictions on use and (or) disposal of goods are considered to be conditionally released.
At that in accordance with article 137 of the Federal law «On customs regulation in the Russian Federation» (hereinafter - Law) the General order that the conditional release of goods require payment of maintenance of payment of customs payments.
Part 5 of this article are defined exceptions General order, namely, paragraph 2 of part 5 of the established that the guarantee of payment of customs duties and taxes shall be granted, except in the cases specified in part 6 of the same article, in respect of aircraft and vessels, imported by the organizations for the purpose of carrying out of economic activity, rendering of transport services in accordance with the customs procedure of temporary importation (admission) or imported in the authorized (share) capital of enterprises with foreign investments, as well as placed under the customs procedure for processing on customs territory in order to carry out repairs.
Thus, the Law stipulates that for the import of goods in the authorized capital is not required to make the payment of customs duties. However, you should refer to part 6 of article 137 of the Law to which the link is given in part 5 of this article, which sets absence of necessity of entering of payment of payments.
In accordance with part 6 of the customs bodies shall have the right to take a decision on the necessity of providing security for payment of customs duties and taxes in respect of the goods listed in paragraphs 1 - 4 of part 5 of this article, in the following cases:
1) if the declarant is engaged in foreign economic activity for less than one year;
2) if the declarant has outstanding requirements for the payment of customs payments in the specified data the requirements of the terms;
3) if the declarant in a period of one year prior to application to the customs body was brought to administrative responsibility on article 16.20 Code of the Russian Federation about administrative offences;
4) if the declarant has the non-executed judgments on cases of administrative violations in the field of customs Affairs;
5) in other cases when the customs authority has grounds to believe that the obligations assumed in front of him, will not be fulfilled.
In other words, the customs authority at its discretion, may take a decision on the necessity of ensuring the payment of customs duties when importing goods into the authorized capital, if the customs authority shall be grounds for believing that the obligations assumed in front of him, will not be fulfilled. The law does not set out the criteria on the basis of which customs has doubts may arise in the fact that the obligations will be met.
Also, it should be noted that up to the present time, in the part not contradicting the Law, the Order of the FCS of Russia from 12.07.2010 № 1315 «On the conditional release of the goods imported as a contribution to the Charter (share) capital of organizations», according to which the heads of customs should provide conditional release of goods, imported into the territory of the Russian Federation as a contribution of a foreign founder to the authorized (share) capital of organizations with the use of privileges on payment of import customs duties subject to payment of imputed import customs duty.
Thus, there is a high risk that the goods imported into the Charter capital of the customs authorities will demand to make the guarantee of payment of customs duties. It should be noted that, in practice, as security for payment of customs payments is applied cash Deposit (pledge). The term of return of the mortgage for ensuring the payment of customs duties in respect of goods imported into the Charter capital, the legislation is not installed. Based on the above, the statutory exemption for the payment of customs duties when importing goods into the Charter capital, may have no economic expediency.
With regard to the payment of the VAT when importing goods in the authorized capital, then the current Tax code of the Russian Federation (the " tax code " of Russia) is not installed any benefits. However, in accordance with article 150 of Russia, is not subject to taxation (tax exempt) shall be the importation to the territory of the Russian Federation and other territories under its jurisdiction of the production equipment (including components and spare parts thereof) whose analogs are not manufactured in the Russian Federation, under the list approved by the Government of the Russian Federation. Such a list is approved by the Decree of the Government of the Russian Federation dated 30.04.2009 № 372.
Thus, when deciding on the use of privileges on payment of customs payments at import of goods as a contribution to the authorized capital, it is necessary to thoroughly analyze the economic efficiency of the project. In particular, we recommend that you check the current rates of duties in respect of the goods imported as a contribution to the Charter capital. In respect of many of the categories of equipment currently provides for the 0% rate, in this regard, the use of concessions in respect of goods imported as a contribution to the Charter capital may be inappropriate.