The procedure for conducting currency transactions in the Russian Federation. Rules for conducting foreign exchange transactions. Currency restrictions and the formation of foreign exchange reserves Types of foreign exchange transactions

According to the Federal Law “On Currency Regulation and Currency Control,” the concept of currency transactions includes:

a) the acquisition by a resident from a resident and the alienation by a resident in favor of a resident of currency assets on a legal basis, as well as the use of currency assets as a means of payment;

b) the acquisition by a resident from a non-resident or by a non-resident from a resident and the alienation by a resident in favor of a non-resident or by a non-resident in favor of a resident of currency valuables, the currency of the Russian Federation and domestic securities on a legal basis, as well as the use of currency valuables, the currency of the Russian Federation and domestic securities as means of payment;

c) the acquisition by a non-resident from a non-resident and the alienation by a non-resident in favor of a non-resident of currency values, the currency of the Russian Federation and domestic securities on a legal basis, as well as the use of currency values, the currency of the Russian Federation and domestic securities as a means of payment;

d) import into the customs territory of the Russian Federation and export from the customs territory of the Russian Federation of currency values, currency of the Russian Federation and domestic securities;

e) transfer of foreign currency, currency of the Russian Federation, domestic and foreign securities from an account opened outside the territory of the Russian Federation to the account of the same person opened on the territory of the Russian Federation, and from an account opened on the territory of the Russian Federation to that account the same person opened outside the territory of the Russian Federation;

f) transfer by a non-resident of the currency of the Russian Federation, domestic and foreign securities from an account (from a section of an account) opened on the territory of the Russian Federation to an account (section of an account) of the same person opened on the territory of the Russian Federation.

Foreign exchange transactions can be carried out by subjects of foreign exchange relations, which are divided into two categories: residents and non-residents.

Residents include:

Individuals who are citizens of the Russian Federation, with the exception of citizens of the Russian Federation recognized as permanent residents of a foreign state in accordance with the legislation of that state;

Foreign citizens and stateless persons permanently residing in the Russian Federation on the basis of a residence permit provided for by the legislation of the Russian Federation;

Legal entities created in accordance with the legislation of the Russian Federation;

Branches, representative offices and other divisions of residents located outside the territory of the Russian Federation, created in accordance with the legislation of the Russian Federation;

Diplomatic missions, consular offices of the Russian Federation and other official missions of the Russian Federation located outside the territory of the Russian Federation, as well as permanent missions of the Russian Federation at interstate or intergovernmental organizations;

The Russian Federation, constituent entities of the Russian Federation, municipalities that act in relations regulated by the Federal Law “On Currency Regulation and Currency Control” and other federal laws and other legal acts adopted in accordance with it.

Non-residents include:

a) individuals who are not residents in accordance with the Federal Law “On Currency Regulation and Currency Control”;

b) legal entities created in accordance with the laws of foreign states and located outside;

c) organizations that are not legal entities, created in accordance with the laws of foreign states and located outside the territory of the Russian Federation;

d) diplomatic missions, consular offices of foreign states accredited in the Russian Federation and permanent missions of these states to interstate and intergovernmental organizations;

e) interstate and intergovernmental organizations, their branches and permanent missions in the Russian Federation;

f) branches, permanent representative offices and other separate or independent structural divisions of non-residents specified in clauses “b” and “c” of this definition located on the territory of the Russian Federation;

g) other persons who are not residents in accordance with the Federal Law “On Currency Regulation and Currency Control”.

For residents and non-residents, there are different procedures for opening and maintaining accounts in foreign currency, which is regulated by the Central Bank of the Russian Federation as part of currency regulation. In the system of currency regulation, the concepts of “resident” and “non-resident” define entities carrying out transactions with national and foreign currency.

According to the legislation of the Russian Federation, currency transactions should be carried out only through “authorized banks” - credit organizations created in accordance with the legislation of the Russian Federation (Federal Law dated December 23, 2003 N 177-FZ (as amended on July 11, 2011) “On insurance of deposits of individuals persons in banks of the Russian Federation") and having the right, on the basis of a license from the Central Bank of the Russian Federation, to carry out banking operations with funds in foreign currency, as well as branches of credit organizations operating on the territory of the Russian Federation in accordance with licenses of the Central Bank of the Russian Federation, created in accordance with the legislation of foreign states, having the right to carry out banking operations with funds in foreign currency.

The license issued by the Central Bank of the Russian Federation specifies the operations that a commercial bank is allowed to carry out in foreign currency.

Control over the implementation by commercial banks of the operations specified in the currency license is carried out by the Central Bank of the Russian Federation.

It is necessary to consider some types of foreign exchange transactions carried out on the territory of the Russian Federation.

Maintaining foreign currency accounts of clients extends to foreign currency accounts of residents, as well as foreign currency and ruble accounts of non-residents. This operation is simple and does not differ fundamentally from maintaining current accounts in rubles. Its peculiarity lies in the performance by the bank (in relation to it) of currency control functions.

Non-trading transactions in foreign currency are customer service operations not related to settlements for the export and import of goods and services of bank clients. Such operations are:

Purchase and sale of cash foreign currency by individuals;

Cash service for customer accounts;

Purchase and sale of traveler's checks and other payment documents;

Issuance of cash foreign currency by credit cards;

Collection of cash foreign currency and payment documents in foreign currency.

International settlement operations are associated with settlements for the export and import of goods and services of legal entities - bank clients. International payments are carried out mainly in the form of letters of credit, collection and transfer. A necessary condition for a bank to carry out international settlements is the establishment of correspondent relations with foreign banks, which is formalized by a special agreement, which is an agreement on the procedure and conditions for conducting banking operations. To carry out international settlement operations, two types of correspondent relationships can be established: “correspondent without an account” and “correspondent with an account.”

A conversion operation is the purchase/sale (exchange) of the currency of one country for the currency of another country at the current exchange rate.

Deposit operations in foreign currency are associated with the attraction of funds into bank deposits on behalf of individuals and legal entities - bank clients, who are charged a certain percentage for this.

Conversion and deposit operations in international money markets require highly qualified personnel and modern technical equipment, such as Reuters Dealing and SWIFT systems.

Credit transactions with foreign currency are one of the most complex and risky types of banking operations. Foreign currency funds within the Russian Federation are raised from clients or other Russian and foreign banks. These funds are placed by banks on the Russian and international interbank market or on customer credit accounts.

Instruction of the Central Bank of the Russian Federation dated June 15, 2004 No. 117-I establishes the procedure for residents and non-residents to submit documents and information to authorized banks when carrying out foreign exchange transactions, the procedure for recording foreign exchange transactions and the procedure for residents to issue a transaction passport in authorized banks when carrying out foreign exchange transactions.

Thus, in this chapter, the author conducted a comprehensive analysis of foreign exchange transactions carried out in the Russian Federation, analyzed the legal basis for the implementation of foreign exchange transactions under current legislation, and also, in the course of his research, identified the main problems in the legislative regulation of foreign exchange transactions, which will be analyzed more specifically in the next chapter.

The peculiarity of currency transactions is that they must be carried out not only in compliance with civil legislation, but also within the strictly defined framework of currency legislation, i.e. taking into account the prohibitions and restrictions established by law, the purpose of which is to ensure the economic security of the state and the stability of its monetary system as one of the foundations of social relations.

In accordance with current legislation, several procedures for conducting transactions with currency values ​​in the Russian Federation should be distinguished:

transactions with foreign currency and securities in foreign currency, falling under the criteria of a current currency transaction, carried out without obtaining licenses and permits;

transactions with foreign currency and securities in foreign currency that do not fall under the criteria of the current currency transaction, carried out without obtaining licenses and permits in accordance with the regulations of the Central Bank of the Russian Federation;

transactions with foreign currency and securities in foreign currency that do not fall under the criteria of a current currency transaction, carried out in accordance with the permitting procedure established by the Central Bank of the Russian Federation;

transactions with precious metals, natural precious stones, and pearls, carried out in the manner established by the Government of the Russian Federation.

The law established the following general rules :

Current operations are carried out by residents without restrictions, i.e. obtaining a special permit (license) from the Bank of Russia;

Capital transactions are carried out by residents in the manner established by the Bank of Russia.

Current foreign exchange transactions are carried out by residents without restrictions. Foreign exchange transactions related to the movement of capital are carried out by residents in the manner established by the Central Bank of the Russian Federation. In Article 9 of the Law on Currency Regulation, the competence of the Central Bank as the main body of currency regulation is defined as follows:
"The Central Bank of the Russian Federation, within the framework of the law:
a) determines the scope and procedure for circulation of foreign currency and securities in foreign currency in the Russian Federation;
b) issues regulations that are mandatory for execution in the Russian Federation by residents and non-residents;
c) conducts all types of foreign exchange transactions;
d) establishes the rules for residents and non-residents in the Russian Federation to conduct transactions with foreign currency and securities in foreign currency, as well as the rules for non-residents in the Russian Federation to conduct transactions with the currency of the Russian Federation and securities in the currency of the Russian Federation;
e) establishes the procedure for the mandatory transfer, import and transfer into the Russian Federation of foreign currency and securities in foreign currency owned by residents, as well as the cases and conditions for residents to open accounts in foreign currency in banks outside the Russian Federation;
f) establishes general rules for issuing licenses to banks and other credit institutions to carry out currency transactions and issues such licenses;
g) establishes uniform forms of accounting, reporting, documentation and statistics of currency transactions, including by authorized banks, as well as the procedure and deadlines for their submission;
h) prepares and publishes statistics on foreign exchange transactions of the Russian Federation according to accepted international standards;
i) performs other functions provided for by law."

Currency legislation establishes the procedure for carrying out currency transactions by residents. Moreover, all transactions performed by residents must be carried out through authorized banks, which, in turn, are required to perform the functions of currency control agents over the performance of these transactions.

Legal entities carry out all currency transactions on the basis of concluded agreements (contracts, agreements). In accordance with current legislation, transactions concluded by legal entities must be made in writing. The written form of the transaction is considered to be observed both when drawing up a single document (for example, an agreement), and in some other cases, for example, when exchanging letters, from which it follows that the parties have reached an agreement on all essential terms of the agreement.

Banks conduct a wide range of operations and transactions in the foreign exchange market: they service foreign currency accounts of clients (residents and non-residents), issue foreign currency loans, enter into transactions for the purchase and sale of currency on the interbank market, as well as with other legal entities, and are agents of state foreign exchange control.

The principles of carrying out currency transactions in the Russian Federation, the powers and functions of currency regulation and currency control bodies, the rights and obligations of legal entities and individuals in relation to the possession, use and disposal of currency values, liability for violations of currency legislation is currently regulated by the Law of the Russian Federation “On Currency Regulation and currency control" dated December 10, 2003 No. 173-FZ. .

The Bank of Russia is the main currency regulation body in the Russian Federation. It determines the scope and procedure for the circulation of foreign currency and securities in foreign currency in Russia, conducts all types of foreign exchange transactions, establishes the rules for residents and non-residents to conduct transactions with foreign currency and securities in foreign currency, as well as the rules for non-residents to conduct currency transactions in Russia Russian Federation and securities in Russian currency.

Banks conducting foreign exchange transactions, in order to reduce currency risks, must comply with the limit of the open currency position (OCP), i.e., maintain at a certain level the gap between the amounts of their claims and obligations in currency.

1) Features of the “spot” operation

The basis for spot transactions, which have an exceptional impact on the currency position, are correspondent relationships between banks. Spot foreign exchange transactions account for approximately 90% of all foreign exchange transactions. The main goals of their implementation are:

b meeting the needs of bank clients in foreign currency;

b transfer of funds from one currency to another;

carrying out speculative operations.

Banks use spot transactions to maintain minimum required working balances with foreign banks in Nostro accounts to reduce surpluses in one currency and cover requirements for another currency. With this, banks regulate their foreign exchange position in order to avoid the formation of uncovered account balances.

Conducting foreign exchange transactions and minimizing risks requires certain preparation (see table 1).

Table 1 - Stages of foreign exchange transactions

In spot transactions, the day on which settlement of a particular currency transaction is completed is called the “value date” and is used as protection against risk. International payments cannot be made on a Sunday, holiday or non-working day. That is, payments must be made on a working day in both countries. In Russian banks, the open currency position is determined separately for each foreign currency (see Table 2).

Table 2 - Determination of currency position

In order to limit the currency risk of authorized banks of the Central Bank of the Russian Federation, the following limits of open currency positions are established:

b as of the end of each operating day, the total value of all long (short) open currency positions should not exceed 30% of the authorized bank’s own funds (capital);

b as of the end of each operating day, long (short) open currency positions in certain foreign currencies and Russian rubles should not exceed 15% of the authorized bank’s own funds (capital).

Authorized banks with branches independently set sublimits for open currency positions of the head bank and branches.

• 1) Current foreign exchange transactions (see Appendix 2).
• 2) Currency transactions related to the movement of capital (see Appendix 2).

The ability to distinguish between currency transactions, classify them, and knowledge of the principles and methods of their implementation are an integral part of knowledge for activities in the foreign exchange market, but without the legal framework for conducting foreign exchange transactions in the Russian Federation, which will be discussed in the next chapter, it will be difficult to competently and rationally organize and conduct foreign exchange transactions.

» Types of currency transactions and the general procedure for their implementation

A. S. Selivanovsky

Types of currency transactions and the general procedure for their implementation

Basic Concepts

Article 140 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation) establishes that the legal tender, obligatory for acceptance at face value throughout the Russian Federation, is the ruble. The cases, procedure and conditions for the use of foreign currency on the territory of the Russian Federation are determined by law or in the manner prescribed by it. In Art. 141 of the Civil Code of the Russian Federation states that the types of property recognized as currency values ​​and the procedure for transactions with it are determined by the law on currency regulation and currency control.

Let's consider the general rules for carrying out foreign exchange transactions by residents.

Law of the Russian Federation dated 09.10.92 No. 3615-1 “On Currency Regulation and Currency Control” (hereinafter Law) distinguishes between two concepts: “foreign currency” and “currency values”.

The Law refers to the concept of “foreign currency”:

a) banknotes in the form of banknotes, treasury notes, coins that are in circulation and are legal tender in the relevant foreign state or group of states, as well as banknotes withdrawn or withdrawn from circulation, but subject to exchange;

b) funds in accounts in monetary units of foreign states and international monetary or settlement units.

Under the term " currency values"The law understands:

a) foreign currency;

b) securities in foreign currency - payment documents (checks, bills, letters of credit and others), stock values ​​(stocks, bonds) and other debt obligations denominated in foreign currency;

c) precious metals - gold, silver, platinum and platinum group metals (palladium, iridium, rhodium, ruthenium and osmium) in any form and condition, with the exception of jewelry and other household products, as well as scrap of such products;

d) natural precious stones - diamonds, rubies, emeralds, sapphires and alexandrites in raw and processed form, as well as pearls, with the exception of jewelry and other household products made from these stones and scrap of such products.

The law refers to foreign exchange transactions:

a) operations related to the transfer of ownership and other rights to currency values, including operations related to the use of foreign currency and payment documents in foreign currency as a means of payment;

b) import and shipment to the Russian Federation, as well as export and shipment from the Russian Federation of currency values;

c) implementation of international money transfers;

d) settlements between residents and non-residents in the currency of the Russian Federation.

The law, in addition to property rights, uses the term “ other rights to currency values”, but does not reveal it. Let's consider some possible “other rights” that can be used as a criterion for classifying a transaction as a foreign exchange transaction.

At present, various opinions of specialists are expressed on the issue of classifying a particular transaction as “other rights to currency values.” Most often, the following “other rights” are distinguished: the right of ownership, the right of use, the right of disposal, the right to demand the transfer (receipt) of currency values.

Transactions involving the transfer of ownership of currency values ​​can be classified as foreign exchange transactions (for example, the transfer of gold bars for storage or trust management).

The task of classifying transactions involving the transfer of the right to use or disposal of currency assets as foreign exchange transactions appears more difficult.

Difficult questions arise when qualifying transactions the object of which is the right to claim the transfer (receipt) of currency values. Unfortunately, at present there is no clear position of the Bank of Russia on this issue.

On the one hand, clause 1.14 of the Regulations on changing the procedure for carrying out certain types of foreign exchange transactions in the Russian Federation, approved by Order of the Central Bank of the Russian Federation dated April 24, 1996 No. 39 (hereinafter Regulation No. 39), defines transactions for the transfer of rights of claim from a resident to an authorized bank as foreign exchange operation carried out without permission (license) of the Bank of Russia.

On the other hand, in a Generalization of the practice of applying Bank of Russia regulations on currency regulation “Other issues on the application of currency legislation,” published on May 26, 2000, the Bank of Russia explained that:

« By its nature, the transaction of assignment of a claim denominated in foreign currency is not a foreign exchange transaction. A currency transaction will be settlements in foreign currency for this transaction.

Unless otherwise established by regulations of the Bank of Russia, obtaining permission from the Bank of Russia to carry out such a currency transaction is necessary to fulfill a monetary obligation in favor of the person to whom the claim is assigned, provided that such payments are made in foreign currency.”

It is impossible not to take into account the position of the Supreme Arbitration Court of the Russian Federation (hereinafter referred to as the Supreme Arbitration Court of the Russian Federation) on this issue. The information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated May 31, 2000 No. 52 “Review of the practice of resolving disputes by arbitration courts related to the application of legislation on currency regulation and currency control” contains one case related to the qualification of an agreement (transaction) regarding the fulfillment of obligations in foreign currency as currency transaction. The essence of the matter was that the resident A concluded with the resident B agreement, according to which the resident B undertakes to make a payment in foreign currency to a non-resident for a resident A. The currency control authority fined the resident A for carrying out a capital foreign exchange transaction performed without a license from the Bank of Russia. Considering this case, the Supreme Arbitration Court of the Russian Federation indicated that “assigning the fulfillment of an obligation in foreign currency to a third party provides the third party with appropriate powers, but does not create an obligation for the latter to perform it against his will and is not identical to the fulfillment of an obligation in foreign currency. Such an assignment does not oblige its addressee to act in violation of the law even in the case where it is contained in a civil contract. In the above example, a foreign exchange transaction is a transfer of foreign currency to a non-resident by a third party, and not an agreement between the latter and the contract holder. A foreign exchange transaction carried out by a third party required obtaining permission from the Bank of Russia on the following grounds. In the case under consideration, a violation of currency legislation is the implementation by a third party - a resident, without obtaining the latter’s permission from the Bank of Russia, of settlements in foreign currency under a foreign economic contract providing for the import of goods into the Russian Federation, concluded by another resident with a non-resident.”

Thus, it is currently unclear whether transactions with foreign currency values, under the terms of which the ownership of foreign currency values ​​does not transfer, are considered foreign exchange transactions.

Currency transactions can be divided into the following groups:

1. transactions with foreign currency and securities in foreign currency;
2. operations with precious metals, precious stones, pearls;
3. operations related to settlements in Russian currency between residents and non-residents.

The Law divides the first group of foreign exchange operations into current operations and foreign exchange operations related to the movement of capital (hereinafter referred to as capital operations). In relation to the second and third groups of operations, such a division is not applicable, and the Law establishes special rules for the implementation of such operations.

Qualifying a currency transaction is an important task, since incorrect classification of a transaction into any group entails the application of sanctions by currency control authorities. As evidenced by judicial and arbitration practice, most disputes related to the application of currency legislation arise over the definition of a currency transaction as current or capital and boil down to the application of liability to a person for carrying out a capital transaction without the appropriate permission of the Bank of Russia.

Current Operations

The law provides a closed (exhaustive) list of current operations:

a) transfers to and from the Russian Federation of foreign currency for making settlements without deferred payment for the export and import of goods (work, services, results of intellectual activity), as well as for making settlements related to lending for export-import operations for a period of no more than 90 days;

b) obtaining and providing financial loans for a period of no more than 180 days;

c) transfers to and from the Russian Federation of interest, dividends and other income on deposits, investments, loans and other operations related to the movement of capital;

d) non-trade transfers to and from the Russian Federation, including transfers of wages, pensions, alimony, inheritance, as well as other similar transactions.

Let's take a closer look at each type of current operations.

Export or import operations with payment up to 90 days. The condition for classifying payments for foreign trade activities as current foreign exchange transactions is the absence of conditions for deferring payment for the export and import of goods (work, services, results of intellectual activity) for a period exceeding 90 days (Before December 30, 1998, this period was 180 days).

Credit transactions with a period of up to 180 days . The law classifies the receipt and provision of financial loans for a period of no more than 180 days as current operations. This definition was introduced in 1992 and has not been changed since then. However, the absence of a definition of “financial loan” in the Law complicated the application of this provision for a long time.

Chapter 42 of Part Two of the Civil Code of the Russian Federation, which came into force on March 1, 1996, draws a clear boundary between a loan agreement and a credit agreement. In this regard, ambiguity arose in the classification of operations to attract (provide) loans from residents and non-residents.

This problem was resolved in the “Generalization of the practice of applying regulations of the Bank of Russia on issues of currency regulation “Other issues on the application of currency legislation”, published on August 10, 2000. The Bank of Russia explained that:

“Since financial credits and borrowings by their essence have a single economic nature, residents (legal entities and individuals) have the right, without restrictions, to provide loans in foreign currency to residents and non-residents (legal entities and individuals) for a period of no more than 180 days, as well as receive loans from residents and non-residents (legal entities and individuals) in foreign currency for a period of no more than 180 days. In this case, payments must be made non-cash.”

Thus, for the purposes of foreign exchange legislation, the concept of “financial credit” includes both credits and borrowings.

When receiving a loan, the calculation of the specified period is carried out from the date of crediting funds in foreign currency to a foreign currency account until the date of writing off the funds sent in the form of repayment of the loan (loan). The term for granting a credit (loan) is calculated in the same way.

Receiving income from investments . The law classifies as current transactions transfers to and from the Russian Federation of interest, dividends and other income on deposits, investments, loans and other operations related to the movement of capital.

It should be noted that the condition for classifying transfers to and from the Russian Federation of funds as interest, dividends and other income on deposits, investments, loans and other capital transactions as current operations is the fact of a previously completed capital transaction. Otherwise, the foreign exchange transaction for the transfer of interest, dividends and other investment income must qualify as a capital transaction.

Non-trading transactions. The law classifies non-trade transfers to and from the Russian Federation as current transactions, including transfers of wages, pensions, alimony, inheritance, and other similar transactions.

The concept of “non-trade transfers” is defined by listing possible cases: transfers of wages, alimony, inheritance, while the Law leaves this list open. In this regard, questions arise about the criteria for classifying certain operations as non-trading.

The Bank of Russia expressed its position on this issue in an explanation from the Department of Currency Regulation and Currency Control of the Bank of Russia, published on August 19, 1997 in the Bulletin of the Bank of Russia:

“The current legislation does not establish an exhaustive list of non-trading operations. Non-trading transactions include foreign exchange transactions, which are specified in subparagraph “d” of paragraph 9 of Article 1 of the Law of the Russian Federation “On Currency Regulation and Currency Control”. In addition, lists of non-trade transactions are contained in intergovernmental agreements on non-trade payments concluded by the Russian Federation with a number of foreign states.”

It should also be noted that some types of non-trading foreign exchange transactions carried out without the permission of the Bank of Russia are highlighted by the Bank of Russia in Regulation No. 39:

• payment of entrance and membership fees in favor of international (governmental and non-governmental) organizations;
• payment for participation in international symposiums, conferences, other international meetings, as well as international exhibitions, fairs, sports competitions, and other cultural events held in foreign countries;
• non-cash transfer by residents who are not commercial organizations to their foreign currency accounts opened in authorized banks of foreign currency received from non-residents as voluntary and gratuitous donations; transfers of foreign currency by residents from the Russian Federation in favor of non-residents to pay for education and treatment of individuals;
• transfers by residents from the Russian Federation of pensions, alimony, state benefits, additional payments and compensations, amounts paid on the basis of sentences, decisions and determinations of judicial and other competent bodies, inherited amounts and amounts received from the sale of inherited property, as well as payments for reimbursement of legal expenses, arbitration, notary and other administrative bodies (including payment of taxes, fees, duties and other obligatory payments for the performance of their functions by these bodies) in accordance with the legislation of foreign states, etc.

Capital transactions

In contrast to current operations, the Law lists operations related to the movement of capital in the following open list:

a) direct investments, that is, investments in the authorized capital of an enterprise in order to generate income and obtain rights to participate in the management of the enterprise;

b) portfolio investments, that is, the acquisition of securities;

c) transfers in payment for ownership of buildings, structures and other property, including land and its subsoil, classified as real estate under the legislation of the country of its location, as well as other rights to real estate;

d) provision and receipt of deferred payment for a period of more than 90 days for the export and import of goods (work, services, results of intellectual activity);

e) provision and receipt of financial loans for a period of more than 180 days;

f) all other currency transactions that are not current currency transactions.

The principle of this qualification: all foreign exchange transactions that do not fall into the category of current transactions are recognized by law as capital transactions.

Let us dwell in more detail on two types of capital operations, which the Law identifies separately in this list.

Direct investments . By direct investment, the Law understands investments in the authorized capital of an enterprise in order to generate income and obtain rights to participate in the management of the enterprise. It should be noted that this rule applies both when investing in the authorized capital of non-resident enterprises and when investing in the authorized capital of Russian legal entities. Unfortunately, the Law does not clearly formulate and does not explain the concept of “investment in authorized capital”. In this regard, this norm can be interpreted differently.

A “broad” interpretation is possible, according to which any acquisition of rights to participate in the management of a legal entity is a capital transaction. In accordance with the “narrow” interpretation of this rule, a capital transaction is only a transfer of funds in foreign currency to pay for the authorized capital of a legal entity in order to generate income and, at the same time, obtain the rights to participate in the management of this legal entity.

In our opinion, when solving this problem, one should be based on the concepts of “currency operation” and “currency values” defined by the Law. To classify foreign exchange transactions as related to “investment in authorized capital,” it is advisable to consider only transactions related to the transfer of ownership and other rights to currency values, as well as international money transfers. Capital operations in this case will be:

• payment in foreign currency to pay for the authorized capital of a legal entity during the primary issue;
• making payment for participation in the capital of a non-resident legal entity by depositing currency values ​​(securities in foreign currency or precious metals or stones);
• acquisition of ownership (and/or other rights) to securities of a legal entity certifying participation in the authorized capital and denominated in foreign currency on the secondary market.

Operations for the acquisition of real estate. The law includes transfers in payment for ownership and other rights to real estate (buildings, structures and other property, including land and its subsoil, classified as real estate under the legislation of the country of its location). Due to the lack of a clear definition of the scope of the Law and the concept of “other rights to real estate”, disputes often arise not only about the qualification of a particular currency transaction, but also about the legality of application of the Law. Here are two situations that clearly demonstrate the imperfection of the current legislation.

Situation one. A resident individual travels abroad of the Russian Federation and transports a certain amount of funds in foreign currency, in compliance with Russian legislation. During his stay abroad, this person enters into an agreement to purchase a house outside the Russian Federation and pays for the property in cash in foreign currency. In this case, there is no transfer that serves as a criterion for classifying the operation as capital.

Situation two. A resident individual, subject to current Russian legislation, travels abroad to a resort. This person books a hotel room and makes the appropriate transfer to pay for the room. Obviously, a hotel room, being a premises, belongs to real estate, and this person enters into a real estate lease agreement. This operation, according to the letter of the Law, should be considered as capital; therefore, to carry it out, it is necessary to obtain permission (license) from the Bank of Russia, which in this situation seems absurd.

It should be noted that the concept of “real estate” is regulated by the legislation of each independent state. Therefore, conflicts arise in the legal qualification of transfers in payment for such objects as current or capital foreign exchange transactions.

The procedure for carrying out currency transactions by residents

The peculiarity of currency transactions is that they must be carried out not only in compliance with civil legislation, but also within the strictly defined framework of currency legislation, i.e. taking into account the prohibitions and restrictions established by law, the purpose of which is to ensure the economic security of the state and the stability of its monetary system as one of the foundations of social relations.

The law in Article 6 established the following general rules:

• current operations are carried out by residents without restrictions, i.e. obtaining a special permit (license) from the Bank of Russia;
• capital operations are carried out by residents in the manner established by the Bank of Russia.

Currently, the Bank of Russia has established three procedures (orders) for carrying out capital operations:

1. Operations listed in the legislation (for example, in the Federal Law “On Leasing”, regulations of the Bank of Russia, for example, in Regulation No. 39, are carried out without obtaining permission from the Bank of Russia). Let's call this order "unlicensed";

The difference between current operations and unlicensed capital operations is that the Bank of Russia, within its competence, has the right to change the procedure for their conduct, including introducing a licensing procedure, while the procedure for carrying out current operations is determined by the Law. It should be noted that the Bank of Russia has broad powers and is able to establish strict rules for conducting current operations. An example is the joint instruction with the State Customs Committee of the Russian Federation dated October 4, 2000 No. 01-11/28644, 91-I “On the procedure for implementing currency control over the validity of payments by residents for imported goods” (hereinafter Instruction No. 91-I).

It should be noted that for some groups of organizations special rules have been established for conducting capital transactions (authorized banks, insurance organizations, individuals).

It is also necessary to take into account that on the territory of the Russian Federation the legal means of payment is the ruble, and the use of foreign currency is possible only in cases determined by law or in the manner established by it. Therefore, some current operations carried out on the territory of the Russian Federation must be carried out on the basis of a permit (license) from the Bank of Russia, unless otherwise established by it.

Currency legislation establishes the procedure for carrying out currency transactions by residents. Moreover, all transactions performed by residents must be carried out through authorized banks, which, in turn, are required to perform the functions of currency control agents over the performance of these transactions.

Legal entities carry out all currency transactions on the basis of concluded agreements (contracts, agreements). In accordance with current legislation, transactions concluded by legal entities must be made in writing. The written form of the transaction is considered to be observed both when drawing up a single document (for example, an agreement), and in some other cases, for example, when exchanging letters, from which it follows that the parties have reached an agreement on all essential terms of the agreement.

By letter dated July 15, 1996 No. 300, the Bank of Russia brought to the attention of authorized banks “Recommendations on the minimum requirements for mandatory details and the form of foreign trade contracts.” Authorized banks were instructed to familiarize their clients - participants in foreign trade activities - with this document and recommend that they be guided by it when concluding export-import transactions.

Accounting No. 4, 2001

Documents for payments

Obligation to submit documents for making payments

Clause 2.1 of Central Bank Instruction No. 138-I:

2.1. When carrying out operations related to the crediting of foreign currency to a transit currency account or the debiting of foreign currency from a current account in foreign currency, the resident submits to the authorized bank (branch of the authorized bank) (hereinafter referred to as the authorized bank, with the exception of a direct indication of the branch of the authorized bank) simultaneously the following documents:

certificate of currency transactions;

documents related to the conduct of currency transactions specified in the certificate of currency transactions.

However, in accordance with clause 1.6 of Central Bank Instruction No. 138-I, these provisions do not apply to foreign exchange transactions carried out by resident individuals who are not individual entrepreneurs and are not engaged in private practice.

List of documents for conducting currency transactions

Part 4 of Article 23 of Federal Law No. 173 of December 10, 2003 “On Currency Regulation and Currency Control”:

4. In order to implement currency control, currency control agents, within their competence, have the right to request and receive from residents and non-residents the following documents (copies of documents) related to conducting currency transactions, opening and maintaining accounts:

1) documents proving the identity of an individual;

2) a document on state registration of an individual as an individual entrepreneur;

3) documents certifying the status of a legal entity - for non-residents, a document on state registration of a legal entity - for residents;

4) certificate of registration with the tax authority;

5) documents certifying the rights of persons to real estate;

6) documents certifying the rights of non-residents to carry out currency transactions and open accounts (deposits), drawn up and issued by the authorities of the country of residence (place of registration) of the non-resident, if the receipt by the non-resident of such a document is provided for by the legislation of the foreign state;

These requirements are provided for in Part 5 of Article 23 of the Federal Law of December 10, 2003 No. 173-FZ “On Currency Regulation and Currency Control”:

5. Currency control agents have the right to demand the submission of only those documents that are directly related to the currency transaction being conducted.

All documents must be valid on the day of presentation to currency control agents. At the request of the currency control agent, duly certified translations into Russian of documents executed in whole or in any part in a foreign language are provided. Documents emanating from government bodies of foreign countries confirming the status of non-resident legal entities must be legalized in the prescribed manner. Foreign official documents may be presented without their legalization in cases provided for by an international treaty of the Russian Federation.

Documents are submitted to currency control agents in the original or in the form of a duly certified copy. If only part of the document is relevant to conducting a currency transaction or opening an account, a certified extract from it can be submitted.

Authorized banks refuse to carry out a foreign exchange transaction if a person fails to provide the documents required on the basis of Part 4 of this article and this part, or if they submit false documents.

(as amended by Federal Law No. 90-FZ dated July 18, 2005)

Original documents are accepted by currency control agents for review and returned to the persons who submitted them. In this case, copies certified by the currency control agent are placed in the currency control materials.

Clause 1.3 of Central Bank Instruction No. 138-I:

The procedure for preparing (certifying) copies of documents related to currency transactions may be agreed upon by the authorized bank with the resident.

Deadlines for submitting documents

Clause 2.3 of Central Bank Instruction No. 138-I:

2.3. A certificate of currency transactions and documents related to the conduct of currency transactions specified therein are submitted by the resident to the authorized bank within the following deadlines (except for the cases established by paragraphs 2.5 - 2.9 of these Instructions):

when crediting foreign currency to a transit currency account - no later than 15 business days after the date of its crediting specified in the notification of the authorized bank about its crediting to the transit currency account;

when writing off foreign currency from a current account in foreign currency - simultaneously with an order to transfer foreign currency.

Retention period for documents by residents

Clause 2 of Part 2 of Article 24 of the Federal Law of December 10, 2003 No. 173-FZ “On Currency Regulation and Currency Control”:

2. Residents and non-residents carrying out currency transactions in the Russian Federation are obliged to:

2) keep records in the prescribed manner and draw up reports on the currency transactions they carry out, ensuring the safety of the relevant documents and materials for at least three years from the date of the relevant currency transaction, but not earlier than the date of execution of the contract;

"6. Failure to comply with the established procedure for submitting accounting and reporting forms for currency transactions, the procedure for submitting reports on the movement of funds on accounts (deposits) in banks outside the territory of the Russian Federation and (or) supporting bank documents, violation of the established procedure for submitting supporting documents and information when carrying out currency transactions , violation of the established rules for issuing transaction passports or violation of the established storage periods for accounting and reporting documents on currency transactions, supporting documents and information when carrying out currency transactions or transaction passports, failure to notify within the prescribed period by the financial agent (factor) - a resident to whom the monetary claim was assigned (in including as a result of a subsequent assignment), a resident who, in accordance with the terms of a foreign trade agreement (contract) with a non-resident, is a person transferring goods to this non-resident, performing work for him, providing him with services or transferring to him information or results of intellectual activity, including exclusive rights to them, on the fulfillment (non-fulfillment) by a non-resident of obligations stipulated by the specified foreign trade agreement (contract), or on the subsequent assignment of a monetary claim under the specified foreign trade agreement (contract) with the attachment of relevant documents -

(as amended by Federal Laws dated November 16, 2011 No. 311-FZ, dated June 28, 2013 No. 134-FZ, dated June 29, 2015 No. 181-FZ, dated November 28, 2015 No. 350-FZ)

entail the imposition of an administrative fine on citizens in the amount of two thousand to three thousand rubles; for officials in the amount of four thousand to five thousand rubles; for legal entities - from forty thousand to fifty thousand rubles.

(as amended by Federal Laws No. 116-FZ dated June 22, 2007, No. 350-FZ dated November 28, 2015)

6.1. Violation of the established deadlines for submitting accounting and reporting forms for currency transactions, supporting documents and information when carrying out currency transactions or deadlines for submitting reports on the movement of funds on accounts (deposits) in banks outside the territory of the Russian Federation and (or) supporting bank documents for no more than ten days -

entails a warning or the imposition of an administrative fine on citizens in the amount of three hundred to five hundred rubles; for officials in the amount of five hundred to one thousand rubles; for legal entities - from five thousand to fifteen thousand rubles.

(Part 6.1 introduced by Federal Law dated November 16, 2011 No. 311-FZ)

6.2. Violation of the established deadlines for submitting accounting and reporting forms for currency transactions, supporting documents and information when carrying out currency transactions or deadlines for submitting reports on the movement of funds on accounts (deposits) in banks outside the territory of the Russian Federation and (or) supporting bank documents for more than ten , but not more than thirty days -

(as amended by Federal Laws No. 134-FZ dated June 28, 2013, No. 350-FZ dated November 28, 2015)

shall entail the imposition of an administrative fine on citizens in the amount of one thousand to one thousand five hundred rubles; for officials in the amount of two thousand to three thousand rubles; for legal entities - from twenty thousand to thirty thousand rubles.

(as amended by Federal Law No. 350-FZ dated November 28, 2015)

(Part 6.2 introduced by Federal Law dated November 16, 2011 No. 311-FZ)

6.3. Violation of the established deadlines for submitting accounting and reporting forms for currency transactions, supporting documents and information when carrying out currency transactions or deadlines for submitting reports on the movement of funds on accounts (deposits) in banks outside the territory of the Russian Federation and (or) supporting bank documents for more than thirty days -

(as amended by Federal Laws No. 134-FZ dated June 28, 2013, No. 350-FZ dated November 28, 2015)

shall entail the imposition of an administrative fine on citizens in the amount of two thousand five hundred rubles to three thousand rubles; for officials in the amount of four thousand to five thousand rubles; for legal entities - from forty thousand to fifty thousand rubles.

(as amended by Federal Law No. 350-FZ dated November 28, 2015)

(Part 6.3 introduced by Federal Law dated November 16, 2011 No. 311-FZ).”

6.4. Repeated commission of an administrative offense provided for in Part 6 of this article, with the exception of cases of repeated commission of an administrative offense expressed in non-compliance with the established procedure for submitting reports on the flow of funds on accounts (deposits) in banks outside the territory of the Russian Federation and (or) supporting bank documents -

(as amended by Federal Law No. 350-FZ dated November 28, 2015)

entails the imposition of an administrative fine on citizens in the amount of ten thousand rubles; for officials in the amount of twelve thousand to fifteen thousand rubles; for legal entities - from one hundred twenty thousand to one hundred fifty thousand rubles.