Currency control during the implementation of an export project: minimizing risks

What it is?

Repatriation of foreign exchange earnings is the return by a resident of foreign exchange earnings that he received as a result of concluding a foreign economic transaction. It should be noted that the legislator obliges to do this in relation to both foreign and national currencies. Repatriation is very important in maintaining the volume of material wealth in the state.

Its essence is that economic agents participating in international trade relations should not leave the proceeds received in the country of the counterparty.

If material goods in the form of, for example, goods have left their native country, then the financial resources paid for them should also come here. The basic rules governing the procedure for repatriation of foreign and foreign exchange earnings are reflected in Article 19 of the Federal Law of the Russian Federation “On Currency Regulation and Currency Control”.

Repatriation must be carried out when two types of legal relations arise:

1. They constitute relationships in which, under certain agreements, residents transfer goods, information, exclusive intellectual property rights to non-residents, and also provide services.
2. Relationships in which obligations are not fulfilled properly. These are cases when a resident paid a non-resident foreign currency for goods, works, services, results of intellectual property and exclusive rights to them specified in the agreement, and the foreign counterparty did not fulfill its obligation to import these goods into the territory of the Russian Federation. This block of relationships is very important, as it is often a means of fraud.

Important! The legislator deliberately included them in the law in order to exclude the deliberate export of currency from the country.

How to calculate 180 days for receipt of foreign currency earnings?

“As can be seen from the case materials, in the period from 06/16/2003 to 07/10/2003, foreign currency earnings from the export of goods (calcined electrode coke) under GTD N 10218010/260303/0000328 were transferred to the account in the authorized bank of the company. The goods were exported on the basis of contract No. 160E-2-2003 dated February 19, 2003, concluded by the company with TEMIRBOL LLP (Kazakhstan). The goods were shipped by the company during the period from 03/18/2003 to 03/31/2003.

The customs issued a resolution dated September 09, 2003, by which the company was found guilty of committing an administrative offense under Part 2 of Article 16.17 of the Code of Administrative Offenses of the Russian Federation. The company was given an administrative penalty of 10,000 rubles. fine

In accordance with Part 1 of Article 5 of the Law of the Russian Federation “On Currency Regulation and Currency Control,” foreign exchange earnings from the export of goods (works, services) are subject to mandatory crediting to accounts in authorized banks on the territory of the Russian Federation.

The transfer of foreign currency earnings by exporters to accounts in authorized banks is a condition of the customs regime for export. In this case, the exporter is obliged not only to credit the received foreign currency earnings to an account in an authorized bank, but also, as security for crediting the proceeds, to take all necessary measures for its timely receipt from the buyer of the exported goods.

Violation of the established procedure for fulfilling the requirements of the customs regime for export on crediting foreign currency proceeds from the export of goods to accounts in authorized banks, as well as failure to take the necessary measures for its timely receipt, are violations of the customs regime for export and form an administrative offense provided for in Part 2 of Article 16.17 of the Code of Administrative Offenses of the Russian Federation .

At the same time, according to Part 1 of Article 2.1 of the Code of Administrative Offenses of the Russian Federation, an administrative offense is recognized as an unlawful, guilty action (inaction) of a legal entity for which administrative liability is established by the said Code or the laws of the constituent entities of the Russian Federation on administrative offenses.

In accordance with part 2 of this norm, a legal entity is found guilty of committing an administrative offense if it is established that it had the opportunity to comply with the rules and regulations, for violation of which the said Code or the laws of a constituent entity of the Russian Federation provides for administrative liability, but this person was not all measures within his power have been taken to comply with them.

At the same time, according to Part 4 of Article 210 of the Arbitration Procedural Code of the Russian Federation in cases of challenging decisions of administrative bodies on bringing to administrative liability, the burden of proving the circumstances that served as the basis for bringing to administrative liability rests with the administrative body that made the contested decision.

Satisfying the company's application, the court of first instance reasonably indicated that the customs had not proven the event of an administrative offense. This conclusion of the court was made due to the fact that during the proceedings on the case of an administrative offense, the customs did not investigate the issue of the date the goods actually crossed the customs border of the Russian Federation. In this case, the court rightfully proceeded from the provisions of Article 1 of the Law of the Russian Federation “On Currency Regulation and Currency Control”, according to which the period for receipt of foreign currency earnings is calculated from the date the exported goods actually cross the customs border of the Russian Federation. Consequently, when assessing the exporter’s compliance with the requirements of the customs regime for export, the date of actual export of goods, and not the date of shipment, has legal significance.

In addition, the court of first instance rightly pointed out that the contested customs resolution did not determine the duration of the violation of the deadline for the company to credit foreign currency earnings from the export of goods, and the company took measures to ensure the timely receipt of foreign currency earnings

(before the deadline for the receipt of foreign currency earnings, claims work was carried out, which led to its actual crediting). Since the contested customs resolution does not give a proper assessment of these circumstances that are important for the correct resolution of the issue of the administrative liability of the company, the applicant’s guilt in committing an offense and the event of the offense cannot be considered proven.

Thus, the arguments of the complaint about the presence of guilt in the company’s actions and the event of an administrative offense, provided for in Part 2 of Article 16.17 of the Code of Administrative Offenses of the Russian Federation, are aimed at re-evaluating the evidence in the case. Such a re-evaluation is unacceptable in a cassation court due to the provisions of Article 286 of the Arbitration Procedural Code of the Russian Federation in cases where the court of first or appellate instance, assessing the relevant evidence, correctly applied the rules of procedural law.

The conclusions of the courts about the violation of Articles 28.2, 28.5 of the Code of Administrative Offenses of the Russian Federation by the customs in connection with the administrative body’s failure to comply with the deadline for initiating a case on an administrative offense and the improper status of the representative of the society who was present when drawing up the protocol were made without taking into account the actual procedural consequences of such violations for the society as a person involved in administrative responsibility. Consequently, these conclusions cannot be considered justified. However, their groundlessness did not lead to the adoption of an incorrect decision in the case.

How is it happening?

There are three parties involved in this process. Resident, non-resident and resident bank.

1. Having concluded a foreign economic agreement, an economic agent must notify the authorized bank about:
   the deadline after which the resident’s current account will receive money from the foreign counterparty in accordance with the conditions specified in the agreement;
2. the deadline after which the non-resident will transfer goods, perform work, or provide services.
3. Next, you need to issue a transaction passport at the bank. The procedure for its registration is established by Instruction No. 138-I dated June 4, 2012, approved by the Central Bank of the Russian Federation.
4. After receipt of foreign currency earnings to the resident’s account, he must bring the corresponding certificate to the authorized bank to remove control of this transaction. The deadline for providing this certificate varies depending on the type of currency transaction. They are also set out in the above-mentioned Instructions.
5. If the counterparty has not fulfilled its repatriation obligations, the resident must ensure that insurance payments for the repatriation risk under the insurance contract are credited to his bank account. Only in this case will the repatriation obligations be considered fulfilled by the resident.
6. The obligation to repatriate may pass to another person (factor) if the right to demand the fulfillment of obligations under the concluded agreement is assigned to him.
   Attention! When funds are received into the factor’s account from abroad, he is obliged to notify the person who assigned him the right of claim within 5 working days.

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Transfer of funds from transit to current currency posting account

» The difference that arises is called the financial result from the purchase of currency. If the official exchange rate is less than the purchase rate, then in accounting the resulting difference is reflected as part of operating expenses.

(D91/2 K57 - negative difference). If the official exchange rate is higher than the purchase rate, then the difference is reflected in operating income (D57 K91/1 - positive difference). In particular, from:

1. on what date is ownership of the goods transferred or when the work (services) are considered accepted by the customer (on the date of shipment, the date of signing the act, the date of payment, the date of registration of the customs declaration, etc.);

1. Does the contract provide for prepayment?

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If ownership

1C: Accounting 8.2 - Sale of currency (without using account 57 “Transfers in transit”)

February 24, 2021 According to the Chart of Accounts and the Instructions for its application, account 52 “Currency accounts” is intended to summarize information on the availability and movement of foreign currency in foreign currency accounts opened in authorized banks in Russia or in banks outside of Russia.

At the time of payment for foreign goods, the supplier must recalculate the currency at the rate of the Central Bank of the Russian Federation on the date of payment: If the rate on the date of payment to the supplier is higher than that of the Central Bank of the Russian Federation on the date of crediting the currency to the account.

Analytical accounting for account 52 “Currency accounts” is maintained for each account that is opened for storing funds in foreign currency. To keep records of transactions with foreign currency, an organization has the right to use account 57 “Transfers in transit”, but if the debit of rubles from the account, their sale and crediting of currency occur on the same day, then account 57 need not be used.

In this case, the transfer of rubles for the purchase of currency is recorded in the accounting entry: Dt 76 - Kt 51, and the receipt of the purchased currency to the current account: Dt 52 - Kt 76.

Accounting for foreign exchange transactions is regulated by PBU 3/2006. Accounting entries for

When is it not required?

It is a general rule to return proceeds to your home country. However, there are exceptions to every rule. So, residents may not credit national and foreign currency earnings if the earnings:

1. Credited to the account of a resident legal entity in a foreign bank to fulfill its obligations under credit or debt obligations to government agents of other countries, as well as residents of OECD or FATF member states for a period of more than two years.
2. Associated with the resident’s expenses for the construction of structures in a foreign country, but only for the duration of construction.
3. Received from holding exhibitions, sports, cultural and other events outside the Russian Federation, and is used to cover the costs of holding them, but for the period of these events.
4. It is a mutual offset for the obligations of agents in the fishing and transport industries, for reinsurance obligations, for obligations in the gas industry, including those related to gas transit.
5. Credited to transport organizations in their foreign accounts, but only for the purposes of performing their functions outside the Russian Federation.

Accounting Features

For transactions in foreign currency, banks issue 2 accounts to clients: current and transit. All transactions are displayed on account 52 in rubles, since the value of the currency changes regularly.

Features of using account 52:

• Recalculation of funds is carried out at the rate established by the Central Bank in relation to a specific currency.
• The exchange rate difference is recorded in the period to which the date of implementation of obligations or the date of reporting is related.
• To prepare reports on transactions in foreign currency, fixed amounts are recalculated in rubles.

Exchange differences may arise during the recalculation process. They are recorded as non-operating income or expenses.

In what time frame should it be completed?

According to paragraph 1 of Article 19 of the Federal Law of the Russian Federation “On Currency Regulation and Currency Control,” repatriation must be carried out within the time limits established by foreign economic contracts. The legislator has established such a streamlined norm due to the fact that each contractual relationship is individual.

For some, payment is made in a lump sum, for others in installments (for example, quarterly). For some, payment is made upon delivery of the product, for others only by advance payment. Thus, when concluding a foreign economic agreement, pay special attention to the clauses on repatriation, in order to be able to comply with the requirements of the current legislation in this part.

Liability and fines

The following liability is established for failure to comply with the requirements of currency legislation in the field of repatriation.

The institution of repatriation of foreign exchange earnings plays a big role in the financial processes of the state. On the one hand, it ensures the retention of material wealth in the state, on the other hand, it provides the homeland with foreign currency. There is an opinion that this obligation limits the freedom of economic agents entering into civil agreements.

However, the state first of all needs to think about the welfare of the state.