Because of imperfection of the legislation infringement of time-frames of return of currency proceeds under the external economic contracts becomes frequent inevitable.
Article 42 of Constitution of Ukraine says that everyone has the rights to the entrepreneurial business which has been not forbidden by the law. At realization of economic activities everyone is obliged to comply strictly with the Constitution of Ukraine and the laws of Ukraine, not to encroach on the rights and freedom, honour and dignity of other people (article 68 of Constitution of Ukraine). At the same time in practice there are situations when infringement of laws becomes inevitable for the different reasons.
Black and white
On of such situations is the infringement of time-frames of return of currency proceeds under the external economic contracts. Most the high incidence of such infringement when the resident (customer) and the non-resident (supplier) sign the external contract. The non-resident sends to the resident the goods and the resident cannot pay it. The advice specified in this article will not remove the responsibility at counterparts, but minimize negative consequences which are entailed with infringement of the order of foreign trade activities.
The first and main that businessmen are afraid of that all is to get in the so-called "black" list. However, now the order of the Cabinet of Ukraine № 103-p from December, 15th, 2012 the order of the State customs service of Ukraine "About measures on introduction of system of definition of brave parameters to subjects signs ("white" and "black" lists) at realization of the customs control and custom registration" №1485 from December, 17th , 2010. The order specified above is recognized breaking the rights of the legal entities. For this reasons even if on customs border to the businessman will threaten with entering of its activity into " the black list", it is necessary to refer to the fact already invalidity of such order.
The second and not less important is the surcharge per every day of delay at a rate of 0,3 % from the sum of not received proceeds (custom costs of outstood production) of a foreign currency counted in monetary unit of Ukraine by a rate of exchange of National bank of Ukraine (NBU) at date of occurrence of debts (a part of 1 article 4 of Law of Ukraine " About the procedure of calculations in a foreign currency"). To avoid its charge at infringement of foreign trade activities it is difficult enough, but it is possible in some cases.
There are some versions of succession of events.
Most often meeting script looks so. With objective not to break the conditions of the contract the resident accept the goods from the non-resident and hopes in the near future to find means for a payment. However, after intersection of customs borders all goods is located on a license warehouse. At this stage at the counterpart problems also begins. Fiscal bodies write out the decision on application of penal (financial) sanctions.
For protection of own position in such affairs the enterprise - resident is obliged to make the complaint to the decision on application of penal (financial) sanctions or to address with the administrative claim in court. The enterprise should prove that an instant of realization of export (import) article 1 of the Law of Ukraine "About foreign trade activities" is the moment of intersection by the goods of custom border of Ukraine. A concept "intersection by the goods of customs border of Ukraine" and "the miss through customs border of Ukraine" are not identical and are mandatory for the account at the solution to the problem of definition of a date of import.
If the surcharge to the enterprise-counterpart is added for more than six months from the date of infringement, it is necessary to prove that the surcharge is charged extremely within 6 months from the date of the offence has been revealed. Specified above proves to be true also judiciary practice: the regulation of the Superior administrative court of Ukraine on point № K-4917/08 from March, 22nd, 2011.
Also it is necessary to specify, that the territory of a custom license warehouse is custom territory of Ukraine. Consequently, at delivery of the goods on customs territory of Ukraine - the custom license warehouse within the limits of 90 days and availability of all cargo customs declarations of type IT 74, as well as international way-bills, the structure of an economic offence is absent. To similar conclusions the Superior administrative court of Ukraine in the decision from January, 31st, 2007 on business 3/122 has come also.
Following alternate solution of a problem for the enterprise is the contract about reduction of a duty. In case of the conclusion of such contract the property right to the goods passes to other counterpart, and there is no guarantee that fiscal bodies will not make a decision on application of penal sanctions.
The third mechanism is the contract of the guarantee on calculations in foreign trade activities. The guarantee under contracts on import does not contradict neither to the Civil code of Ukraine, nor the Law of Ukraine "About foreign trade activities". So, according to the sub item "a" item "4" of article 5 Decrees of the Cabinet of Ukraine "About system of currency regulation and the currency control" are not required license of NBU for currency payments for limits of Ukraine, in particular, in execution of obligations to non-residents on payment of the goods, works, services. The guarantor liquidates a debt for the debtor before the non-resident for the imported goods. Thus to the guarantor pass all the rights of the creditor, that is the seller.
It is possible to consider also a version with notes/ As, according to the letter of NBU No 13-124/1411 from August, 14 Th, 1988 concerning calculations between residents under the notes expressed in a foreign currency, the current legislation of Ukraine allows to apply notes at realization of calculations with non-residents for the put goods. The possibility on exhibiting in favour of the supplier of production is directly stipulated by the resident of the note by the article 2 of the Laws of Ukraine "About the procedure of calculations in a foreign currency". The resident can write out in favour of the non-resident on import operation only the promissory note.
And the last version - at availability of legal grounds the resident can address in the Ministry of economic progress and commerce of Ukraine with objective of reception of the conclusion about prolongation of time-frames of calculations on the external economic operations.
So, we shall sum up the aforesaid:
- for today "black lists" are cancelled;
- there are some versions of protections in disputes with fiscal bodies;
- the enterprise-infringer can make the complaint to the decision on application on penal (financial )sanctions or address with the administrative claim in court;
- the enterprise can conclude with other resident the contract about reduction of a duty. However, in case of the conclusion of such contract the property right of the goods passes to other counterpart;
- the enterprise-infringer can enter into a compact guarantees on calculations in foreign trade activities;
- the current legislation of Ukraine allows to apply notes at realization of residents of calculations with non-residents for the put goods.
Minaeva Victoriya - the partner of LC "Verum Lawyers", Kiev
"Legal Practice", №35 (923), September 1, 2015