How to conduct foreign trade activities, pass currency control and not pay fines: changes for 2021

Issues of currency control and related fines for violations are a pressing issue for legal entities. Failure to provide certificates and other documents, late payments - all this leads to one form or another of sanctions. Let's look at the legislative basis of the problem and a number of nuances - such as the statute of limitations and appealing the imposed punishment.

Types of violations of currency legislation and liability

All violations related to the scope of currency control are divided into the following areas

, How:

1. Failure to comply with established deadlines for submitting reporting documents. First of all, this includes certificates.
2. Submitting incorrect or outright false information. This happens both intentionally and by mistake.
3. Incorrect completion of paperwork. This means entering incomplete data or data containing irrelevant information.
4. Failure to comply with the time frame for transferring currency to the account. The specificity also lies in the fact that the businessman will be forced to pay a fine in any case - even if the delay occurred due to the foreign partner’s late payment of invoices.
5. Ignoring the obligation to return to the Russian Federation the money that was paid by non-residents.

Within the framework of the topic, of course, the issue of liability for violating the procedure for working with currency transactions is of interest. In this case we are talking about responsibility

:

• administrative (implies penalties);
• civil law (leads to the cancellation of the transaction);
• criminal (fraught with punishment up to imprisonment).

Who in Russia deals with penalties for violations of the Civil Code? Leading government agencies

that organize monitoring of all transactions carried out between Russian and foreign financial institutions are:

• Central Bank of the Russian Federation;
• The Federal Tax Service;
• Federal Customs Service.

Note 1.

As for sanctions, in most cases it is the tax office that applies them. Customs fines for violations committed during customs operations.

The Ministry of Finance launched the liberalization of foreign exchange controls: what participants in foreign trade activities need to know

WHAT IS CURRENCY CONSULTING AND WHY IS IT NECESSARY

The importer, according to currency legislation, is obliged to repatriate , that is, return to his bank account the currency paid as an advance for goods not delivered or services not provided. If the advance payment is not returned, the Russian importer will be subject to a fine.

Exporters, in turn, have the risk of not receiving export proceeds, which also leads to fines.

The Russian Ministry of Finance has taken a number of measures aimed at easing foreign exchange controls. The conditions for the occurrence and measures of administrative and criminal liability for violation of Russian currency legislation in the event of failure to fulfill the obligation of residents to repatriate funds under agreements with non-residents are changing.

In June, the Ministry of Finance presented a draft law on the gradual abolition of repatriation. It is planned that in the future currency control will replace control over questionable transactions, and risks will be assessed. In the meantime, from January 1, 2021, it will be possible not to return up to 10% of revenue, from 2022 - up to 30% and then increasing. It is planned that complete abolition will occur by 2025.

The Ministry of Finance supports non-commodity exporters, but the Central Bank proposes a more radical approach - to cancel repatriation for everyone. At the same time, the Central Bank is taking the initiative to enshrine in law the concept of a dubious currency transaction, so that it remains possible to prevent transactions in the shadow economy.

The regularity of changes in currency legislation requires constant monitoring and careful study. Often, in order to understand them and apply them in time in practice, you need a high-quality interpretation from specialists and the necessary explanations, or, more precisely, currency consulting. The foreign trade consulting service at Ak Bars Bank is absolutely free. Experienced ABB specialists will analyze your contract for compliance with currency legislation, help protect your interests and reduce risks, tell you how not to violate deadlines, quickly pass currency control and avoid fines.

To improve the skills of clients' employees involved in foreign trade activities, Ak Bars Bank specialists conduct seminars on the application of currency legislation of the Russian Federation . The next online seminar will take place on October 8 at 11:00. Experts will discuss significant changes in currency legislation in 2021, innovations in customs regulation and their impact on the activities of foreign trade participants, exclusive opportunities for the Chamber of Commerce and Industry for entering foreign markets. Registration of participants - follow the link.

Differentiation of fines for violations of the repatriation procedure by residents has been established, and the fines have been reduced.

The amount of the fine for violating the repatriation deadline now depends on the currency of the obligations, the type of foreign trade contract and the status of the resident himself. The amount of the fine from the amount of funds not credited to bank accounts in authorized banks within the prescribed period will be determined as follows (Part 4, Part 4.2 of Article 15.25 of the Code of Administrative Offenses of the Russian Federation as amended by Law 218-FZ):

• from 3% to 10% of the amount, if the foreign trade agreement specifies the amount of obligations in the currency of the Russian Federation and provides for payment in the same currency;
• from 5% to 30%, if a foreign trade agreement (contract) has been concluded with a non-resident, providing for payment in foreign currency;
• from 5% to 30%, if a loan agreement is concluded with a non-resident;
• from 3% to 5%, if the resident who committed the violation is included in the list of professional participants in foreign economic activity.

Photo: BUSINESS Online

Previously, the fine for similar violations ranged from 75% to 100%

Liability is provided for the failure by a resident to fulfill within the established time limit the obligation to fulfill or terminate obligations under a foreign trade agreement (contract) concluded between a resident and a non-resident, which is subject to the requirements of the currency legislation of the Russian Federation in the form of a fine:

• in the amount of 5% to 30% of the amount of funds due to a resident from a non-resident;
• for officials - from 20 thousand to 30 thousand rubles (Part 4.3 of Article 15.25 of the Code of Administrative Offenses of the Russian Federation as amended by Law 218-FZ).

The fines for violating the deadline for repatriation of funds paid for goods not imported into the Russian Federation, work not performed, services not provided, or for information or results of intellectual activity not transferred, including exclusive rights to them, have been differentiated and reduced. The fine will be:

• from 3% to 10% of the amount of funds not returned within the prescribed period to the Russian Federation, paid to a non-resident under the terms of a foreign trade agreement (contract), the amount of obligations under which is determined in the currency of the Russian Federation and the terms of which provide for payment in the same currency;
• from 5% to 30% of the same amount if the contract is in foreign currency;
• from 3% to 5%, if the resident who committed the violation is included in the list of professional participants in foreign economic activity.

For significant violations, the amount of the fine remains the same. If the amount of untimely credited funds within one year exceeds 100 million rubles, then the amount of the fine is determined as before - from 75% to 100%.

Administrative liability for violation of the deadline for the resident to submit to the authorized bank forms of accounting and reporting on currency transactions, supporting documents and information when carrying out currency transactions is provided only for a delay of 90 days or more, the amount of the fine will be:

• for officials - from 4 thousand to 5 thousand rubles;
• for legal entities - from 40 thousand to 50 thousand rubles.

Cases of exemption from administrative liability for violation of the procedure for conducting currency transactions have been established:

• for violation of the repatriation period, if the contract amount is equal to or does not exceed 200 thousand rubles (or the equivalent of this amount in foreign currency);
• if the payments were made bypassing accounts in authorized banks, but within 45 days the resident credited them to a deposit or account in a Russian bank;

An additional period has been introduced, after which it is possible to apply liability for violation of currency legislation . Administrative liability for violation of the repatriation deadline applies only after 45 days after the end of the period established for fulfilling the relevant obligation, in case of failure to fulfill it - within the specified time.

“ currency calendar” service as part of the “Ak Bars Business Drive” and “Ak Bars Business Online” systems will help you comply with all deadlines and requirements of currency control, and quickly prepare documents without errors. The calendar event is generated automatically based on the currency control documents submitted by clients; when clicking on the link, the client is provided with the documents and prompts as complete as possible by the bank.

To register an export contract , provide the bank with general information about your contract, include data on the currency and amount, deadlines for fulfilling obligations, the date of completion of the contract and details of the foreign counterparty. Within 15 working days after registration, do not forget to submit the contract to the bank.

To register an import contract, you must provide the contract itself to the bank.

The contract will be registered within one business day, assigning it a unique number and opening a bank control sheet for it.

Inform the bank about all changes to the contract by sending the appropriate documentation. If the counterparty's details have changed, a simple statement is sufficient. If you want to deregister your contract, write a statement accompanied by documents explaining this step;

If you wish, you can change the financial institution serving you by transferring the contract and its unique number to the new bank.

Ak Bars Bank helps its clients pass currency control based on changes in currency legislation.

The simple and convenient interface of the Ak Bars Business Drive allows you to maintain a dossier on foreign exchange contracts. All information on the transaction is available in one place. You can download the originals from the dossier or create a new document pre-filled with data from the contract.

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Fines

To better understand the essence of the issue, you need to delve into some basics, and then compare the violations themselves.

General information

Penalties in connection with delays and other types of penalties are described in Article 15.25 of the Code of Administrative Offenses of the Russian Federation

. Its content determines that fines are issued to legal entities for failure to comply with deadlines for submitting documentation for the implementation of currency control, as well as for its incorrect execution and storage.

Particular attention is paid to late provision of:

• reporting on the movement of foreign currency;
• transaction passports;
• information on changes in connection with foreign accounts of Russian residents;
• other supporting documents and information about the authenticity of the transaction.

Note 2.

Violation of the deadlines for both payment for goods and delivery also threatens the application of penalties. For enterprises this is an amount from 40,000 to 1,000,000 rubles. Implementation of illegal transactions with foreign currency or transactions that ignore special bank accounts is fraught with a fine for the full amount of the transaction.

Table

We have presented all the most significant sanctions for violating currency controls below. The information provided applies to legal entities.

Table 1. Fines for violating the VC.

In general, this state of affairs remains the same as of 2019.

Results

The list of violations that may result in prosecution is given in Art. 15.25 Code of Administrative Offenses of the Russian Federation. Carrying out illegal currency transactions entails bringing the violator to administrative or criminal liability. The list of sanctions includes fines and even imprisonment.

What is important to know when working with currency, read in the section “Currency Transactions”.
You can find more complete information on the topic in ConsultantPlus. Free trial access to the system for 2 days.

Criminal penalties for non-compliance with exchange controls

Responsibility for misconduct within the framework of currency legislation can be by no means only administrative. Criminal penalties are also applied.

Example 1.

Article 193 of the Criminal Code of the Russian Federation – “Evasion of obligations to repatriate funds in foreign currency or the currency of the Russian Federation” – promises large fines and even imprisonment. The title of the article itself speaks about the reason for the responsibility.

In cases where a resident was supposed to receive a certain amount, which subsequently did not reach the current account, the court makes a verdict based on the amount of missing funds.

Table 2. Criminal consequences.

Example 2.

Article 193.1 – “Conducting currency transactions to transfer funds in foreign currency or the currency of the Russian Federation to the accounts of non-residents using forged documents” – provides for a fine of 200,000 - 500,000 rubles. or imprisonment for up to three years for providing knowingly incorrect data when transferring money. If we are talking about a crime committed by a group of persons, a large amount or the use of a shell company, the time spent in prison increases to 10 years, and the fine – up to 1,000,000 rubles.

Types of currency violations

Illegal currency transactions may include the following:

• acquisition or sale of foreign currency or checks denominated in foreign currency without the participation of authorized banks;
• conducting foreign exchange transactions in foreign currency not through accounts opened with authorized banks, or bypassing foreign accounts, in cases not provided for by federal currency legislation;
• carrying out operations not provided for by currency legislation with the participation of funds credited to foreign accounts.

Find out what types of currency transactions exist in the article “Currency transactions: concept, types, classifications”.

In addition, currency violations include:

• failure to submit or submit in violation of deadlines information on the opening/closing of foreign accounts of residents who are engaged in business;
• failure to submit reports (or violation of deadlines for submitting them) on currency transactions;
• untimely crediting by residents of funds to accounts in authorized banks from transactions made with non-residents;
• untimely return to Russian territory of funds received from a non-resident for a transaction not completed in the Russian Federation.

Limitation of actions

If a company commits violations in connection with currency legislation, the risk of prosecution for a businessman remains for two years.

.

At the moment, this period is relevant for any violations taken into account in Article 15.25 of the “Code of the Russian Federation on Administrative Offenses” dated December 30, 2001 No. 195-FZ. The article itself bears the appropriate title – “Violation of the currency legislation of the Russian Federation and acts of currency regulation authorities.”

Note 3.

Before 2021, the statute of limitations was reduced by one year. The decision to increase the period was due to the low speed of document flow between the Federal Tax Service, the Federal Customs Service and banking institutions. Because of this circumstance, many legal entities managed to avoid fines by appealing to the expiration of the statute of limitations. Now such an outcome has become rare.

What is the statute of limitations for currency control authorities to be held liable?

The statute of limitations for bringing to justice for violation of currency legislation in 2019-2020 is 2 years. This time period was set in 2021; until now it did not exceed 1 year.

The increase was required for the reason that documents from customs authorities or banks about violations of the law were often received by Rosfinnadzor, and after its abolition - by the Federal Tax Service after the period during which violators could be held accountable had expired.

The specified two-year statute of limitations applies to prosecution for all currency violations specified in Art. 15.25 Code of Administrative Offenses of the Russian Federation. For example, this provision will affect the lack of transfer to the resident’s account of foreign exchange earnings for goods sold, and untimely reporting for conducting a foreign exchange transaction, etc.

How to challenge a fine - is it possible?

There is almost always a chance of success in appealing the very fact of applying a fine or its amount through the courts. There are two ways to go:

• appealing to the insignificance of the violation;
• indication of mitigating factors.

First option

works if a penalty is applied for factual errors made, for example, in the preparation of documents (certificates). If the deadlines are not met, it will not be possible to justify the insignificance - even if the delay is only a couple of days.

If we talk about the second option

, here everything is somewhat more complicated. What can be interpreted by the court as mitigating circumstances? This is first of all:

• impeccable reputation of the organization;
• difficult financial situation;
• the fact that the error was corrected after the expiration of the established period, but before the fine was issued;
• etc.

These points can influence the court decision regarding the fine amount, but they will not completely eliminate liability.

Challenging fines in court

Judicial practice shows that it is impossible to completely cancel fines assessed for currency offenses. However, the law provides for a number of conditions in connection with which the amount of sanctions may be reduced.

In particular, mistakes made or incorrectly filled out reporting forms or certificates may be considered a minor offense, which entails a reduction in the amount of the fine. But with a violation of deadlines, it will no longer be possible to refer to insignificance - even a delay of 1 day is already considered a serious violation.

To reduce fines, you can refer to the good reputation of the company or individual entrepreneur, a difficult financial situation (confirmed by reporting) - all of this is recognized as mitigating circumstances and serves as a basis for reducing the amount of sanctions.

Latest legislative changes

All recent changes in the field of currency regulation were implemented in the period from 2021 to 2021. Moreover, most of them occurred precisely in the 18th year.

Today it is no secret who in the state is responsible for ensuring currency control. The financial transactions of both residents and non-residents are monitored by the tax and customs services, the Central Bank and VC agents (i.e. banking companies).

All the new realities of currency control have been introduced in the country since 2018. In previous years, legislation in this area imposed particularly strict requirements on legal entities, and more precisely, on management staff. The reason is that high-ranking officials not only determine the procedure for companies to conduct foreign economic business, but also spend most of their time abroad.

Note 4.

Since 01.2018, the currency status of a resident of the Russian Federation has undergone changes. For Russian citizens who live most of the time in another state (more than 183 days a year), a regime of benefits has been established - with modernized rights regarding the management of current accounts.

Changes regarding penalties and amounts collected

reflected in the Federal Law of September 29, 2021 No. 325-FZ “On Amendments to Parts One and Two of the Tax Code of the Russian Federation.” This act determined a number of adjustments in connection with foreign exchange control laws.

Example 3.

Penalties for legal entities for illegal transactions using foreign currency and payments made bypassing currency control agents are now not calculated based on the payment amount, but are fixed in specific figures - from 20,000 to 30,000 rubles. Those legal entities that repeatedly fail to return the money paid by non-residents on account of goods and services not provided on time will be under the threat of being suspended from their activities for 6 months - 3 years.

Changes in legislation

News in Russia in 2021 hardly affected currency regulation. It's no secret who exercises currency control today. In 2021, the operations of residents and non-residents are monitored by the Federal Tax Service, the Federal Customs Service and currency control agents (banks).

Everything new in foreign exchange regulation comes into effect in 2018. Currency legislation in the Russian Federation in 2021 strictly applied to legal entities, and in particular to their managers, who not only conduct foreign economic business, but also spend most of their time abroad. Already in January, the status of a currency resident has changed. For citizens of the Russian Federation who primarily live abroad (more than 183 days a year), a preferential regime is established with expanded rights to manage foreign currency accounts.

As for changes in the amount of fines in 2021, the already approved Federal Law N 325-FZ comes into force on May 18, 2018. It introduces several minor amendments to the laws mentioned above.

For example, a fine for a legal entity. persons for illegal currency transactions and payments that bypass currency control agents will not be calculated from the payment amount, but will be 20,000 - 30,000 rubles. Legal entities that repeatedly fail to return on time the funds paid to non-residents for goods or services not provided will face disqualification from six months to three years.

Responsibility measures

Most often, the penalties imposed on a person who has committed illegal transactions with foreign currency are applied in accordance with the Code of Administrative Offences.
In this case, a person may be held liable in the amount of up to 1 amount of the amount of the illegal transaction with currency. Such penalties may include:

1. Citizens.
2. Officials.
3. Legal entities.

As for the Criminal Code of the Russian Federation, the subject of liability here is most often an official. Namely: the special subject is the head of the organization.

Depending on the severity of such a crime, the amount of responsibility for the committed criminal act also varies.