The review of enterprise practice
the PRACTICAL WORK
For months that minuli from the moment of an exit of last review of enterprise practice, there were many events which have fairly affected an enterprise climate of the country. And the government structure has changed, both a dollar exchange rate, and the customs duties on separate groups of the goods... Precipitancy of changes, certainly, has not allowed the Russian businessmen at once and properly to understand all event. For this reason the present review will be devoted that enterprise nou - hau which in new conditions remain actual and effective. For this reason in the review the concept " will be key; partnership “.
the Advance payment contra realisation
That - in overwhelming majority of cases - wants the Russian importer from the foreign supplier? Deliveries of the goods without an advance payment, that is on realisation. That - in even more overwhelming majority of cases - wanted foreign by the exporter from the Russian buyer? Advance payments.
both that, and another is easy for understanding. The foreigner does not want to risk the goods, so, money for territories where at any moment (it is that, at least, the ordinary opinion) can happen anything you like. The Russian businessman does not want to freeze for weeks, and even months of means on which turn he frequently and lives. And to risk too does not want: representation about the foreign businessman as about the person a priori the fair has already fairly faded.
it would Seem, typical antagonism. Nevertheless it is enough to walk on shops, and even simply to climb in own refrigerator, to be convinced of existence considerable commodity - a monetary turn between “ there “ and “ here “.
Struggle with antagonism on - to a miscellaneous, mainly partners simply gradually get used to each other, cultivate mutual trust. Certainly, the main thing - to secure itself during the first moment, at signing of the first contract. For the sake of justice it is necessary to add, as abroad the businessmen usually working among themselves without any advance payment, getting acquainted with any are new the partner though and kompatriotom, necessarily accept safety measures. So also to the Russian businessman irreproachably to take such measures. Here with what they, for example, can be.
partners, let it will be the Russian importer and foreign the exporter, conclude the contract on goods delivery to Russia. Inopartner wants guarantees: Or an advance payment, or without an advance payment, but on the security of something having real cost in his eyes, as a rule - the real estate belonging to the Russian firm abroad. Understand...
the Russian side is compelled to agree for an advance payment, but too demands guarantees. Behind these guarantees the foreign partner goes to foreign bank in which on its account there is a sum a little exceeding the sum of the concluded contract. Two bilateral contracts also consist: the exporter - bank and the importer - bank.
according to the first contract which form is defined by each bank at own discretion, the bank alienates the sum equal to the sum of the contract from the account of foreign firm. And if the foreign firm does not carry out the obligations in the term established by the contract or carries out them, but not in full, the aloof sum is transferred into account an affected party. The maintenance of the second contract similarly. The services usually estimate banks in 0,1 - 3 % of cost of the contract. The commission the seller pays. Unfortunately, this scheme does not allow the Russian businessman to avoid “ idle standings “ money, but, you see, adds to it confidence.
we will strike inobankom under the VAT...
Partnership with good western bank - a thing the extremely useful and from that point of view that as it is paradoxical, helps to leave from payment of quite Russian VAT.
last year it was rather simple to make it through any credit agreement: the credit by whoever it was given, at us was not subject to taxation of the VAT. And here from this year it is necessary to pay for all credits. Except the bank. Things are easy: as though the credit in the western bank to receive? The same as and in the previous case - it is exclusive through “ the tripartite alliance “ As to remain with the Russian client in private foreign banks do not want. Are right, perhaps.
so, your foreign partner puts in bank on the depot account all sum necessary for you (and, as a rule, to your foreign friend) the credit. Then the bank gives already to you, the Russian firm, a loan - through signing of the contract that the loan will be compensated at the expense of depot. (An involuntary pun.)
If with foreign companions the credit, unexpectedly, is necessary to you for the term of more than hundred eight-ten days (for what the special permission of the Central Bank which reception is represented business hlopotnym is required and superfluous), for the hundred eightieth day you have quite the right to enlist the credit in ustavnyj fund of yours, for example, with the joint venture partner. And again will appear are right: ustavnyj this fund again - taki is not assessed with the VAT.
... And to ours - on surtax
In the cares connected with an interdiction of trade for cash currency as if that which year in our country it is impossible to pay off with physical persons in foreign currency in general would be forgotten, that is, for example, to pay to citizens the currency salary. And as though anybody also does not pay. But many receive. So has carried not which employee of prestigious hotel, we name it simply Hotel.
Employees with an enviable constancy charge every month to bank in which as one is held by personal accounts, to buy for them at a stock exchange unlimited quantity “ greens “. That the bank also does, translating “ purchases “ into accounts of guarantors. Wolves are full, sheep are whole, the salary in dollars and even laws are not broken.
However, if Hotel translated into accounts of employees all considerable rouble salary also income from it it would be necessary to pay the corresponding. That is undesirable.
Whence, you ask, roubles on accounts, if not from the salary undertake? And here whence. We Hotel gives out to employees preferential or in general the interest-free credit, for example, for a year, with a certain monthly limit of the expense. These credits any way (would earn!) take place bank in the market under percent which are on sale for currency. (By the way, taxes too are not raised from percent on contributions.) Nobody touches the basic sum of the credit. That for the sake of the bank tries? The matter is that accounts of employees and the hotel are in the same bank. And even if the bank pays all profit under credits to its owners, without receiving thus anything, it in a prize. Charity for the sake of the big client.
and here results of this charity: the interdiction for calculations in currency with physical persons, and the main thing - " manages; are optimised “ surtax payments as officially employees get the minimum rouble wages which are not getting under the progressive taxation.
profits, a decrease
From resulted above an example already clearly that the abroad helps the domestic businessman strongly and on - to a miscellaneous. Help not only legal bodies, but also physical foreign physiognomies. In particular - to struggle with excessive profit, so, and the tax to it.
Is, we will put, the joint venture. On it foreigners - out of the list of staff work. Actually a salary in it pays inopartner the joint venture at home, that is abroad. Necessity logically follows from this fact periodic and at least partial compensation by the Russian side inopartnerskih expenses. In the course of this compensation inopartner exposes to the Russian side of an abacus. But here a trouble: for the account sum, according to tax inspection, the joint venture by all means it is necessary to pay the tax to wages fund excess. What to do?
in joint venture practice solve this problem two ways.
the first. The foreign and Russian parties conclude the contract on personnel granting in which the salary, and certain any way defined " makes a reservation not; the compensation rate “ for each concrete employee: how many on residing, fees, trips. Under such contract the foreign firm receives compensation, excess of a wages fund is not present, as there is no salary, and expenses of the Russian firm which can be very great, completely concern on the cost price. The taxable profit at the same time decreases.
the second. The high parties conclude the contract on granting of services in management which, according to the operating Russian legislation, also concern on the cost price.
oh is not present, not as. In such contract it is fixed, besides the compensation rate, “ the rate for services “ on occasion reaching 5 - 10 % from the sum, for example, the contract concluded by means of foreign advisers.
if to currency does not get hardness
In one of och - chen big and och - chen solid banks there was recently rather remarkable history. The lady as the reader has correctly guessed, " has come to bank; Pleasant in every respect “ also has asked to render it in general - that trifling service - to exchange available at it available $50 000 for the Portuguese escudos.
employees of cash desk of bank, people pleasant at least owing to the professional status, naturally have not refused to the lady. And that not to exchange any escudos for quite hard currency. Also have exchanged - at the rate something about these 220 escudos for one dollar. Thereby kindly having allowed the lady to earn suddenly rather remarkable sum - more ten thousand dollars.
it was However, found out a little later when someone from employees of cash desk, tomimyj doubts, has gone to group of currency dealers of bank and has asked, and what about it, that is concerning a dollar exchange rate to escudo in all other world, speaks REUTER? During this moment REUTER has said: “ Hardly it is more 170. “ In other words, for each dollar to the lady have given out on fifty escudo more than basically followed.
the Portuguese escudos - among a considerable quantity of others “ nedotverdyh “ currencies - are quoted the Central bank of Russia to dollar twice a week: on Tuesday and on Thursday. And the situation in the world currency markets changes and in all other days of week, and sometimes abruptly enough. Here also happens that the Portuguese currency quoted by the Central Bank on Thursday at a low course, till next Tuesday has strongly put on weight. On what the Central Bank and that has not noticed usually simply adding to tsentrobankovskim to quotations a small margin that och - chen big and och - chen solid bank has not had time to react.
it is possible to assume that - unlike this bank - suddenly felt need in the Portuguese money the lady in the world watched a situation. And for certain there and then, from a sin, has translated all bought escudos back in dollars. For what, considering a gain, and to Portugal it was possible to fly.
what - such BMW!? It “ Loren - Dietrich “ under the catalogue...
it is fast two months as new, much more serious rates of excises on imported foreign cars are entered into Russia. Also what? The Overall price level, at reduction of assortment some, perhaps, in capital salons has changed slightly. And all because autodealers are able to be on friendly terms.
the motor show Is engaged in sale of foreign cars. The owner of salon has, for example, in Germany the good partner which is the dealer one, and it is even better (for assortment!) The several companies - manufacturers. The German friend of the car at the dealer price (holiday factory buys a minus a discount reaching sometimes to 25 %). Using the transport, the partner sends the goods to the Russian motor show. But before it slightly corrects its cost (towards fall, it it is natural), having brought into the world the Divine new complete set of accounts.
the main thing in this updating - to know when to stop. As the domestic customs was equipped recently with automobile catalogues Schwacke, and it would seem, should reveal any understating of cost. But...
foreign motor-car manufacturers have a manner to let out at once the whole scale of cars of one serial model. These cars (for example, BMW 5 - j series) considerably differ from each other, including service degree (various additional devices, an interior of salon and etc.) And, accordingly, the price. Thus, the catalogue represents not only scale of cars, but also scale of the prices. Therefore in new accounts on all cars, irrespective of their equipment, inopartner specifies the price of the most simple complete set, moreover sometimes reduced percent on 25 - 30. (As practice shows, such is an understating maximum - in comparison with the catalogue price - after which the car already draws attention of customs officers.) To distinguish cheaper model from more expensive, without having opened the car, the trained eye cannot even. And it having appeared inside, hardly straight off you will define presence of the central lock or the wheel hydraulic booster. The same it is possible to tell and about salon. Magnificent by sight cars it is accepted to explain the low price the dealer discounts which sizes are a trade secret, and a special policy of firm - the manufacturer in countries of Eastern Europe. Operates.
delivered Volvo 940. The base price - $17 488. Under accounts passes for $14 000. After payment of taxes and excises cost increases to $30 000, sale price - to $35 000. It is quite comprehensible to these hot admirers “ Varangians “.
the Car “ without - the cart - dme - zdno, that is - is for nothing “
in general - that to use “ catalogue “ Dodge the private trader can also, is proud driving on territory of Russia at the wheel a brand new foreign car. But duties! It is possible, of course, that them not to pay, spend at all the payments of duties abroad defined by new rules six months. But it, certainly, not at everyone will turn out.
but if all duties are paid, services of such private trader, and in other classification - persons physical, can effectively use and legal bodies. Imports the physical person the car and makes out on it donative to firm, paying for it of 3 % of state duty percent, but completely avoiding the tax to registration. To general pleasure. This tax for automobile and lorries - 20 %.
Our services abroad - the goods
Trying to develop the Russian export, our state, in particular, has released firms - exporters of the goods and services from payment of the tax to the added cost. If is more exact, exporters of own production are released a priori, and the rest the paid VAT or is compensated by all from the budget, or enlisted in the account of the future payments. But here if with export of goods (as tangible substance) all is defined simply enough - has crossed customs border, means export, - that with services business is much more difficult. For clearing of the VAT it is necessary to be overcome still.
in world practice for an establishment of the fact of export of services two indicators are used: a site vygodopriobretatelja (service is considered exported if from it someone had benefit abroad) or a place of rendering of services. In the Russian legislation while how many - nibud an unambiguous answer on a question what to consider as export of services, no. Tax services of different levels have published many recommendations about it, but they (with one exception, about it more low) are not registered in the Ministry of Justice so, have no validity. Get out as you wish.
Get out. One telecommunication firm, for example, exposing accounts on fee of communication with abroad, until quite recently managed regularly to receive from the budget of means for VAT compensation. And here at the very end of last year there is registered in Ministry of Justice (that exception) a joint letter of the State Tax Service and the Ministry of Finance, unequivocally ordering to assess the VAT telecommunication services, “ beginning “ on sju the border party. Not pushchat!
In this situation protected from unpleasant unexpectedness those firms which have as much as possible substantiated the services, perhaps, can be considered. We will give an example.
the Firm earned on placing of advertising of the foreign companies on air of the Russian TV. Vygodopriobretateli - foreigners. It would Seem, export by export. It is possible not to worry. On the contrary, from a sin far away. The firm as much as possible underestimates the price for service in actually placing of advertising, but is proportional, that is is maximum, overestimates the price for absolutely material commercial made by it. On a roller the cargo customs declaration is made out, and at crossing of border by it export of services as if by magic turns to goods export. Even if there, abroad, this roller is necessary to nobody: formalities are observed.
the offshore comes back...
the National sign says: new taxes and excises, rouble exchange rate jumps - to an offshore. Correctness of this sign is confirmed once again woken up in the beginning of this year with interest of the Russian businessmen to use classical “ Triangles “: the seller and an offshore on the one hand borders, the buyer - with another. Well and as usual, the new coil of a spiral has appeared level above.
we will remind: through an offshore payment from the Russian importer to the foreign seller is usually registered. All necessary payments from customs cost (contract price) are paid. The scheme allows that is called, “ otkrenit “ fairly grown thin profit abroad - to the seller - to an offshore, as, as a rule, this same person.
now there is more and more popular other variant. An offshore - the seller imports into Russia the goods on realisation, and the importer in this scheme becomes the usual intermediary.
According to the legislation on the taxation of profit and incomes of foreign legal bodies (in our case - an offshore) if this person carries out activity not independently, and through the intermediary organisation activity of the intermediary organisation does not lead to permanent mission formation inojurlitsa so, its activity is not taxed. The intermediary working in steam and an offshore, having paid taxes of all with 2 - 5 % of the commission of the intermediary, all translate the rest abroad.
... Through the CIS
Special grace at present get “ offshore “ schemes in which, besides purely offshore party, the party SNGOVSKY participates also.
For example, it is created Ukrainian - the Cyprian joint venture in which more than 30 % of the capital are necessary on a share of firm from Kiev. The size of a share of inhabitants of Kiev is important, as in this situation the joint venture in Ukraine is not taxed at all. So, has possibility initially to put in the price of, let us assume, made joint venture of the goods, any profit.
already bearing in itself all profit the goods are imported into Russia. Where in the presence of the corresponding Ukrainian certificate of an origin to receive which, under the available data, simply and cheaply, it is not assessed on import the VAT, excises. Also is on sale on symbolical rouble more expensively.
Some people, looking at planes, feel in itself absolutely physiological misunderstanding: “ Well as? How this piece can fly? Yes, I understand, aerodynamics. Yes, I understand. Carrying power and draught. But... “
it is familiar? Then you by all means will understand desire of men of means, and also heads of well-founded enterprise and state structures zaimet in the full order the modern and graceful vehicle called “ by plane business - a class “. (Cars, besides, day by day rise in price.) At us in the country such planes let out. A yak - 40, for example. But eventually, after all and “ Aeroflot “ why - that Boeing buys.
in all other world of planes business - a class is a lot of and different: well-known American Cessna, French Falcon, British BAe. And it is not sophisticated that some Russian firms, having felt demand in the country, have addressed in search of the offer abroad. Well and there - that them have met, as usual: take - I do not want.
also took. And it is more than how practice shows, sold to the one who in trade in any difficult technique is called “ the final buyer “. (In particular so the pair of planes Golf - Stream has been bought.) Also he did not know, “ final “ that with the acquisition as a result to do. Therefore how to fly on “ an aerolimousine “ it appeared, it is impossible.
Whether forgot, whether specially “ missed “ sellers of these rather expensive toys one detail. To have possibility to fly by the plane of foreign manufacture in Russia, it, the plane, it is necessary here sertfitsirovat according to all rules of domestic civil aircraft. And has put this artful enough. As, however, practically any certification.
the only thing the representative while certificated in Russia foreign “ business aircraft “ is British BAe - 125, offered to sale by quite domestic company “ AVKOM “. And, by the way, certificated by it. The scheme of actions of firm was absolutely natural from the point of view of logic, but it has appeared original in relation to the developed practice of this business at us in the country: At first to define the possibilities on, we will tell so, the certification organisations then to certificate. And only after that to sell. Rounding off a plot, I will add that the experience of certification of planes turned out in the country business - a class includes weight of paper work, considerable expenditure of time for dialogue with experts and officials, and also some material inputs on the organisation of their acquaintance with a certification subject in places of its constant dwelling.
“ where here at you it is possible to lie down? “
Those who likes fruits of creativity of brothers - fantasts Strugatsky, for certain recognise in this phrase prislove one of their heroes - kosmodesantnika Gleb Gorbovsky. This question always was the first that strutters a space wolf, it having appeared after works and feats in an unfamiliar place. Extravagantly, but in general - that is clear.
the owner of firm “ Pine pine forest “ Sergey Dedkovsky Strugatsky reads since the childhood. Probably, children`s impressions which have been written down at any subcrustal level, more recently have prompted it rather extravagant, but appeared effective in its business an advertising course.
G - n Dedkovsky owns small joiner`s manufacture: doors, frames, kitchen and other furniture. During any moment, having adjusted relations with home producers, pardon, non-polluting mattresses, firm “ Plus D “ began to let out ones and a half - and double beds. Very pretty. But dispersing as - that is languid, possible, owing to general decrease in purchasing capacity.
Polutoraspalnye were on sale hardly better, even a newly-married couple preferred this size: possibly, because of a housing crisis. It having appeared in a stalemate, g - n Dedkovsky has ordered to the masters and has exposed in a show-window as the advertising sample a three-sleeping bed. Well that is so three-sleeping that at width it has appeared sensitively more than at length.
also what you would think? Not only that the advertising sample in itself has drawn attention to firm production not only that on its background and more expensive double beds seemed simply created for small-sized apartments, but also on three-sleeping orders fell down. No coments.
it is necessary to hope that the marketing policy “ the Pine pine forest “ in a combination to constant threat of strikes on TV - compilers and repeaters will promote improvement of a demographic situation in the country.
In this review we will tell ARBITRATION about case decisions on the largest privatisation disputes considered for last months by the Supreme Arbitration Court. Besides, we will describe realised by the State Property Committee and local administrations the mechanism of return to state ownership of the privatised party and Komsomol objects. Readers learn and about the arbitral awards accepted recently under claims of firms to Foreign trade and investment bank about return of currency from blocked accounts, and to the Central bank - about collecting of penal sanctions for untimely transfer of money for accounts of claimants. The quantity of such disputes has essentially increased recently, however only few enterprises manage to win these judicial lawsuits.
the newspaper “ News “ has defended a part of the redeemed building
eight-monthly hearing of business under the claim of Fund of federal property and publishing house " Has come to the end; News “ to the State Property Committee of Russia about a recognition illegal entering into the authorised capital of joint-stock company “ newspaper Edition ` News ` “ a many-storeyed building on street Tver, d. 18, to. 1. (The weekly journal wrote about this conflict on May, 31st, 1993). The publishing house demanded to return it this house as it tens years was on its balance. And the fund declared that as edition “ News “ was the limited liability company, GKI have not the right was to give to private enterprise “ for nothing “ (13 million rbl.) 8 - a floor building. However after change of a management of fund its new chairman Vladimir Sokolov has withdrawn the claim. The publishing house continued to insist on the requirements.
the court has taken out “ careful “ the decision - has considered that edition was privatised lawfully, as structural division of publishing house “ News “ but thus recognised orders of the State Property Committee regarding transfer of edition of the premises actually occupied with publishing house, void. The size of areas actually occupied with the claimant has not been specified by court - the board has considered that for its definition one of the parties has the right to make the separate property claim.
observers explain duration of litigation by search by board of the decision entered in frameworks of the law, but at the same time the least painful for the edition, not generating radical legal consequences. Recognising as partially void orders GKI, the court has left whole and safe having been tired joint-stock company in which challenged certificates of committee are realised. However, requirements about charter cancellation were shown only by fund, however and after it has withdrawn the claim, the court had a legitimate right to fall outside the limits the claim and to recognise as illegal having been tired in the same part, as committee orders. But it did not begin to do it. Through all text of the decision there passed the main thought: property suit at you, dear parties, still ahead.
Anyway, a court verdict - serious defeat of the State Property Committee to which should divide now a building between conflicting parties and to renew documents about aktsionirovanii editions.
“ an Astoria “ begins and loses
One more sensational dispute with the State Property Committee has been resolved past quarter by the Supreme Arbitration Court. As the claimant in dispute the Petersburg hotel " has acted; the Astoria “ which asked to recognise as void simultaneously order GKI about cancellation of its privatisation and the decision of the government on transfer of this five-stars hotel in the property of Petersburg.
in March, 1993 the vice-president of the State Property Committee Valentine Sychkin has published the order “ About creation of joint-stock company of open type ` the Astoria ` with the subsequent privatisation “. In it seven founders of joint-stock company, in which number - hotel collective " have been defined; the Astoria “ the Russian national commercial bank, the State Property Committee. In a month after the edition of the mentioned order vice-president GKI Peter Mostovoj has nullified it as in May, 1992 the government of Russia under Anatoly Sobchaka`s offer has transferred “ the Astoria “ in the property of Petersburg, and it aktsionirovanie became the competence of the city authorities. However, according to the claimant, g - n Sobchak has not wished to sell hotel to its collective, and has disposed to hold competition on management “ the Astoria “.
Both the first instance, and cassation board of court have refused the claim to hotel, recognising that the government, giving hotel to the city property, has not exceeded the powers. And GKI, according to court, has correctly cancelled an illegal decision about aktsionirovanii the claimant - now it can be accepted only the mayoralty of Petersburg and KUGI.
the Office of Public Prosecutor has returned defensive factory to the state
While committees on management of property work on the new, recently accepted Government program of privatisation, arbitration court continue to live “ yesterday “ Resolving disputes about conformity aktsionirovanija the enterprises to the State program for 1992 (it operated at the moment of acceptance of challenged privatisation decisions). The past months the court has considered claims of the assistant to the General public prosecutor Nikolay Shakleina, demanding to cancel privatisation of two factories (one of which has been subordinated by Roskomoboronpromu, and another - Minatomenergo) as their privatisation is ostensibly forbidden under the State program for 1992.
the first claim concerned the Volgograd defensive enterprise “ Spetsosnastka “. Its way to aktsionirovaniju is that: in July, 1991 the general director of production association “ Barricades “ (which included factory - the respondent) has issued the order on creation of the rent enterprise “ Spetsosnastka “. A month later the factory has concluded the lease contract of buildings and the property, providing the right of their repayment. This right has been realised at the disposal of vice-president GKI Peter Mostovogo about transformation is skilled - experimental factory “ Spetsosnastka “ in joint-stock company of open type.
the Office of Public Prosecutor proved in court that creation both the rent enterprise, and its assignee - joint-stock company was illegal. After all the right of establishment of the enterprise allocates only the proprietor of state property, to which director ON “ Barricades “ does not concern. According to Office of Public Prosecutor and Roskomoboronproma which have supported it, factory and association “ Barricades “ represent the uniform technological complex specialising on release of space vehicles, and therefore under the State program for 1992 its privatisation has been forbidden.
the court has completely agreed with arguments of Office of Public Prosecutor and has cancelled all orders about creation of the rent enterprise “ Spetsosnastka “ And the joint-stock company with the same name, and also cancelled their constituent documents and registration.
The second claim zamprokurora - about illegality of privatisation of factory “ the Beam “ - has been rejected by supervising board of court. And in this case the Office of Public Prosecutor proved that factory together with the scientific research institute with the same name enter into the association having mobilisation value, namely providing nuclear safety, manufacture of split materials and their application. However the court has established that this association (entered in confirmed GKI the list of the legal bodies falling under an interdiction for privatisation), it is created only on a paper. And specialisation of the factory allows it to become joint-stock company - for it in the State program “ forbidden “ the point is not present.
the Court does not order aktsionirovatsja to the academic enterprises
the Essential blank in the legislation has filled the arbitration court which has satisfied the claim about a recognition void aktsionirovanija of Birjulevsky experimental factory. This enterprise was a part NPO pishchekontsentratnoj of the industry which according to the decree of the president of Russia from January, 30th, 1992 is the property of the Russian academy of agricultural sciences. The mentioned decree had been gave to the academy property not one ten enterprises. Boris Yeltsin and with the enterprises of Academy of Sciences of Russia by which she does not allow to be privatised now has similarly arrived. And later the Supreme body the decision granted the property right to the subordinated enterprises to the Ministry of Agriculture and other departments of agrarian and industrial complex.
the paradox consists that many of these factories and institutes, considering their specialisation, are obliged aktsionirovatsja under State programs on 1992, and for 1993. As, for example, the Birjulevsky experimental factory which is letting out food concentrates. However decisions GKI and Mosoblimushchestva about its privatisation have been cancelled by the court which has recognised that the factory has not the right was to be transformed to joint-stock company without the agricultural academy consent. On one of meetings on arbitration practice of the judge have come to a conclusion that the enterprises were transferred to academies and agricultural departments nevertheless not in the property (their proprietor there was a state), and “ as though in full economic conducting “ that too grants to these departments the right not to let out them. According to court, the president and the Supreme body has the right were as an exception to define in the certificates a circle of the enterprises on which the privatisation State program do not extend, and judicial bodies cannot ignore these certificates.
third “ the Eaglet “ it is recognised by the federal property
Unprecedented process has started the State Property Committee with a hotel complex “ the Eaglet “ redeemed, according to the claimant, 26 employees from thousand collective of hotel and occupied basically under offices former Komsomol and party workers. GKI it asked court to recognise right the federal property on a part of this Komsomol object, more precisely, on 30,5 % of the areas of hotel. The requirements the claimant based on the examination data (spent by responsible persons of Ministry of Economics, State archive and Gosstroy), established, what exactly of 30,5 % from a total sum spent for erection “ the Eaglet “ are the state investments.
for respondents - joint-stock company and association “ a hotel Complex ` the Eaglet ` “ - statement of claim GKI did not become unexpectedness. They knew that in such a way the committee releases a place for the Central base of the children`s centres (engaged sending of schoolboys in Russian camp “ the Eaglet and “ Ocean “) Moved from hotel after long years of stay in it. And “ beat off “ a management “ the Eaglet “ from
claims of the claimant as follows: has presented to court a photocopy of the letter from the Ministry of Finance that documents on financing of building of hotel in archive is not revealed. Later this ministry has officially informed the claimant that the similar letter did not sign, and the facsimile of one of officials under its photocopy is counterfeit.
Being based on the examination data, the court has completely satisfied the claim. It is the first privatised Komsomol object in which the State Property Committee has isolated the share. The first, but it is probable, not last. However, possibly and that now documents on financing of party and Komsomol buildings will completely disappear from archives, and officials will receive million bribes for granting of inquiries that these documents “ have not remained “.
the administration of the Kostroma region which has submitted the claim about eviction from a building of the former garage obkoma the CPSU of co-operative society " has managed to win One more similar business in the Supreme Arbitration Court; the Veteran - 2 “. Obkom Communist Parties of RSFSR were presented by this garage to co-operative society some weeks prior to putsch of 1991 and Communist Party dissolution. The regional administration long searched and has found - taki in archive the document that a part of means for garage building (280 thousand rbl.) Has been allocated obkomu from the local budget. Probably, party body has enclosed in this object and own money, but the fact of its partial financing by the state court has considered conclusive. So, the judicial board recognised, obkom has not the right was to give someone garage without the permission of the second proprietor - country council of deputies. Besides, the Communist Party of RSFSR has not been registered when due hereunder (that is confirmed by the decision of the Constitutional court from November, 30th, 1992), and it obkom has not the right was to dispose of the CPSU property. The court has obliged co-operative society to release a premise of garage and to transfer its administrations.
we will notice, both described litigations lasted more half a year - judges did not hurry up to take out decisions, understanding that master legal “ a virgin soil “.
Banks have taken care of losses of payers
From privatisation and the receivership proceeding occupying a leading place in the arbitration statistics, we will pass to claims bank which number also remains stably high. The attention of experts was involved with two homogeneous claims considered in the past quarter in commercial banks - “ to the Native land “ and Bytbanku. Both banks, according to firms - claimants, have broken rules of bank operations, than have put to each of these firms losses on the sum more than 100 million rbl. However if Bytbanku has to pay on a judgement to an affected party - to a commercial society “ Inkomservis “ - 193,4 million rbl., bank “ the Native land “ in a similar situation has been relieved from by responsibility court (though such decision is represented to experts not indisputable).
For what Bytbank has been punished? In April, 1992 a society “ Inkomservis “ has concluded with firm “ the Fax - M “ The contract on delivery of cars also has directed it 193,4 million rbl. of an advance payment. The commercial society has been assured that transfers money for the settlement account “ the Fax - M “ in Bytbanke as it was specified in the contract between the parties. However it has appeared that in bank there is only a deposit “ the Fax - M “ on which the listed sum has got.
cars have not been put, and an advance payment “ Inkomservisa “ “ the Fax - M “ with the consent of Bytbanka has directed to other partners. “ Inkomservis “ has understood that him have deceived, and has decided to collect the money through court with Bytbanka. In court the claimant tried to prove that the bank was in collusion with “ the Fax - M “. This fact, in its opinion, confirms the letter of the bank guaranteeing payment under contracts “ the Fax - M “. “ Inkomservis “ convinced court that guarantees stand out bank only to owners of settlement accounts.
the Court recognised arguments of the claimant lawful and has collected with Bytbanka in advantage “ Inkomservisa “ 193,4 million rbl. According to court, bank has admitted a number of the rough infringements, allowed to make it responsible for transaction failure.
in - the first, the bank has enlisted money “ Inkomservisa “ on the deposit whereas, according to the contract on delivery of foreign cars, the advance payment should be directed on the settlement account “ the Fax - M “. As by order of the Central Bank of Russia from September, 22nd, 1991 on the deposit the means listed by the owner of the depositary account, instead of its counterpart can be enlisted only.
in - the second, the bank has resolved to the enterprise “ the Fax - M “ to direct to the partners money “ Inkomservisa “ though the mentioned order of the Central Bank it is forbidden to make from the depositary account payment to the third parties for the goods and services.
It has appeared deceived and the Krasnoyarsk trading house. It too has directed to bank of the seller - joint-stock company “ Ruteks Ltd. “ - an advance payment (117,5 million rbl.) But not for foreign cars, and for tushenku, and not on the deposit, and by exhibiting of the letter of credit to the seller. On conditions of the letter of credit, “ Ruteks “ should receive this money only after a presentation to bank “ the Native land “ (in it there is a settlement account of the seller) documents on shipment of the goods to the claimant. The bank did not begin to enlist the arrived means for special account #720 “ Letters of credit “ and at once has given them “ Ruteksu “.
the Director “ Ruteksa “ g - n Smiths has discounted 117,5 million rbl. and has disappeared. Therefore the decision of Krasnoyarsk arbitration court on collecting with “ Ruteksa “ in favour of the Krasnoyarsk trading house of 117,5 million rbl. of the basic debt and 52,7 million rbl. of losses (percent on the credit taken by the trading house for purchase tushenki) was obviously impracticable. The claimant needed to do nothing how to submit the claim to bank “ the Native land “ - About collecting from it losses and the penalty for wrong transfer of means (108,1 million rbl.) .
firm Requirements were considered absolutely lawful by the State Office of Public Prosecutor of Russia. However the arbitration court has rejected the claim. The board of court has not found infringements in bank actions “ the Native land “ given out “ Ruteksu “ cash of means from the letter of credit. The contract on delivery of products has been concluded by the claimant not with “ Ruteksom “ and with firm “ Ivkom - Jar “ though “ Ruteks “ also appeared in it as the seller. In turn, other contract - between “ Ivkom - Ardent “ and “ Ruteksom “ - provided 100 - a percentage advance payment for delivery tushenki. To execute this contract the bank also has given out “ Ruteksu “ money resources of the Krasnoyarsk trading house and, according to board, has arrived lawfully. However, to the board decision it has been enclosed “ a separate opinion “ Tatyana Istratovoj`s judges (specialising on the permission of bank disputes) which recognised that as the executive document for bank “ the Native land “ not mentioned contract, and avizo with a condition of the letter of credit containing in it (reception " was; Ruteksom “ money only after a presentation in bank of documents on shipment of the goods to the claimant), and “ the Native land “ should be responsible for its default.
according to experts, bank “ the Native land “ has rescued in this situation only a happy occurence. As a whole at the permission of similar disputes the court is inclined to make responsible for wrongful actions with means of deposits and letters of credit banks, in which these means have arrived.
owners of the frozen currency unsuccessfully have legal proceedings with veb
Claims of business concerns to Foreign trade and investment bank about return to firms of currency from the accounts blocked in January, 1992 under the decision of presidium VS, recently have ceased to be a rarity. Claimants were urged on to judicial lawsuits by the recent commission of the government of Russia to Foreign trade and investment bank to give out to owners of the frozen accounts of the bond of an internal state loan. They do not wish to receive these bonds, considering that their value considerably below the sum of their blocked currency. Especial indignation of claimants is caused by actions veb on freezing of currency means which have arrived into their accounts already in 1992 - 1993 (whereas under the mentioned decision currency use has been suspended only as of December, 31st, 1991).
For example, the Committee on an operational administration activity veb has blocked closed joint-stock company currency “ Orteks “ arrived into its account from January till April, 1992. “ Orteks “ has submitted the claim to Foreign trade and investment bank about return of these means ($699,2 thousand) . The bank, certainly, did not recognise claim requirements, having informed that the disputable sum has arrived into the account of joint-stock company from means of 1991. In particular, $375 thousand have been returned “ Orteksu “ under the letter of credit, open to it bank in December, 1991, and $56 thousand - are got at currency auction in December, 1991.
it is remarkable that the court board recognised correctness of the respondent and has rejected the claim (having collected from it, by the way, 86,4 million rbl. of the state duty). In the decision the court has informed that veb cannot be the respondent on this dispute at all as acts only in a role of the agent of the Russian Federation on service of an external debt and management of actives of the former USSR.
some firms make claims to veb not “ about return of means “ and about a recognition void payment documents on which basis the Foreign trade and investment bank makes write-off of money. So the co-operative society claim " has been formulated; Heart “ Which challenged write-off from its current currency account $1813,53 and their transfer into its blocked account. The disputable sum has been got by co-operative society at auction for tour payment to Austria.
however and in this case the Foreign trade and investment bank managed to prove legality of the actions. He has informed court that the Central bank in the information letter from February, 14th, 1992 has allowed to pay from the blocked account currency expenses on business trips under condition of their subsequent compensation at the expense of the means which have arrived into the dollar account of the client after January, 2nd, 1992. The respondent and has made: at first has given out “ to Heart “ on travelling and living expenses $3 thousand, and then on account of repayment of this sum has blocked the $1813,53 which have arrived on the current currency account of co-operative society.
However, the court did not begin to consider this dispute in essence, and has stopped manufacture on business, recognising that challenged by the claimant the memorial warrant and personal accounts veb testifying to write-off of currency, are not certificates of controls and cannot be appealed against in arbitration court. By the way, the arbitration does not accept to the appeal as “ certificates “ (with payment 1000 rbl. of the state duty) any payment documents by whoever they have been issued - Foreign trade and investment bank or, say, regional tax inspection.
another matter if the same action veb anticipates the official decision signed by one of heads of this bank. Then it can be nullified court under the interested party claim. For example, satisfaction of such claim the Federation of independent trade unions of Russia one month ago has achieved. Under its statement the court recognised void three decisions veb on renewal of the currency account of the liquidated foreign trade association “ Sojuzprofsport “ addressed to the International confederation of the sports organisations (MKSO) which as has found out court, has no relation to this account. Intervention veb in the property conflict of federation - the claimant and MKSO can expensively manage to it - the claimant has now all bases to claim through court from this bank the damages which have arisen owing to its wrongful order by trade-union currency.
how to collect the penalty from the Central Bank and commercial banks
For the last some months the Supreme Arbitration Court has changed or has completely cancelled about ten decisions of local arbitration (in particular, the Moscow arbitration court) under claims of firms about collecting from the Central Bank and its territorial upravleny penal sanctions for untimely transfer into the account of claimants of means due to them. Publishes two typical decisions of the Supreme Arbitration Court under similar claims, and as the comment to them - the explanations prepared by court on the basis of the analysis of own practice more low.
joint-stock company “ Economy. Progress. Cooperation “ because of RKTS the Central Bank within 5 months could not receive from the counterpart under the contract - associations “ Vanda “ - an advance payment of 1,25 million rbl. for fabric delivery. Eventually it has made the Central Bank the claim about collecting of the penalty for 158 days of delay of transfer of the sum into the account of the claimant.
the judicial board has rejected this claim. According to court, according to Position about penalties for infringement of rules of fulfilment of settlement operations (the Ministerial council confirmed by the decision from September, 16th, 1983, with the changes brought on June, 30th, 1988) the client have the right to collect the penalty at a rate of 0,5 % from out of time enlisted sum per every day of delay of its transfer, but only from that bank with which the client is in contractual relations (has in this bank the settlement or current account). And at firm “ Economy. Progress. Cooperation “ there was no contract with the Central Bank, and it has not the right was to collect from it penal sanctions. If the firm has submitted the claim to the commercial bank (after all the delayed money went to its address through it) such requirement too would be rejected as the fault of commercial bank in delay was not - it has enlisted to the claimant money at once after reception of necessary documents from RKTS the Central Bank.
In an explanation addressed to local arbitration, the court has noticed that to bank about penalty collecting the owner of the account on whom means have been out of time enlisted or from which they have been out of time written off can show the claim only. Presence of the written contract between bank and the owner of the account not necessarily - giving by the client of the statement for account opening is the offer to conclude such contract, and the allowing resolution of the head of bank - the consent to the contract conclusion.
besides the penalty, the owner of the account has the right to make to serving bank the claim about collecting of the losses caused by actions of last, but they are subject to compensation only in the part which have been not covered with penal sanctions (if other is not provided by the contract between bank and the client). The client should prove the losses documentary that no means always it is possible to make to claimants.
the Firm can sue directly to the Central Bank only in one case - when it has delayed transfer into its account of money for production which it has already put to the counterpart. Collecting in such cases of a fine (in the same sum, as the mentioned penalty) is provided by the decision of presidium VS and the government of Russia from May, 25th, 1992 “ About urgent measures on improvement of calculations in a national economy... “ since July, 1st, 1992. In a court explanation it is especially noticed that about collecting of a fine from the bank guilty of untimely transfer of means, the supplier or the seller under the purchase and sale contract have the right to show the claim only. If it is submitted by the borrower who at the wrong time has obtained the credit, or the buyer which advance payment for the goods too long went through RKTS such claim will be rejected.
as an example unsuccessful attempt redaktsionno - production co-operative " can serve; the Text “ To seize at the Central Bank a fine for untimely transfer into its account of money (480 thousand rbl.) Arrived from state farm “ Gazyrsky “ for a subscription to compositions of brothers Strugatsky. The supervising board of court recognised that money “ Gazyrsky “ were an advance payment for books and if means were translated as an advance payment, before goods delivery even the supplier has not the right to collect a fine from the bank guilty of delay of transfer to it of money resources. The similar measure of responsibility to bank and in case between the supplier and the buyer there were no contractual relations cannot be applied. And one more interdiction stipulated in an explanation of court: it is impossible to collect for the same infringement both sanctions - both the penalty, and a fine.
in the conclusion - about the decision of plenum of the Supreme Arbitration Court accepted in December, allowed to participate in quality of the parties in arbitration process to territorial administrations and branches of banks which are allocated by powers to operate on behalf of the last. As the chairman of the Supreme Arbitration Court Veniamin Jakovlev has informed at session of plenum, this decision basically concerns “ legal bodies - systems “ including the Central Bank which not in a condition to represent on litigations all territorial administrations. Thus, now Central Bank Central administrative boards in edges, areas and the city of Moscow, having from it corresponding commissions, can independently act as respondents in court.
ANDREY - GALIEV, EKATERINA - ZAPODINSKY, TATYANA - MUKHIN, VLADIMIR - RUDENKOS
Are used the materials given by firms Arthur Andersen and “ Rusaudit. Dornhof, Yevseyev and partners of GmbH “