Юридические документы о лизинге.
Проект документов о лизинге учрежден 01-10-1999 ; редакция от 01-11-2001.
Международная лизинговая энциклопедия.
The International Leasing Encyclopedia by Steven Gilyeart.
Энциклопедии не было в интернет последние полтора года, но это не означает, что ее нет вообще. я взял на себя смелость разместить на этом сайте всю подборку статей (собственно энциклопедию), с указанием адресов электронных почт авторов материалов и редактора. Материал на английском языке.
Legal and Regulatory Framework for Leasing in Russia During 1999 (Part 3) by Derek A. Bloom, Esq., Coudert Brothers, Moscow, [email protected]
Operating Independently or through a Joint Venture Wholly-owned subsidiaries and joint ventures are most commonly organized as joint stock companies or as limited liability companies in Russia. Captive leasing companies have been established as wholly-owned subsidiaries in Russia by global leasing companies and operate independently of any Russian partners. This approach offers the highest level of control to a foreign party desiring to provide lease financing in Russia. Completely independent operations also, realistically, impose some limitations as the Russian marketplace holds many traps for the unwary or under-prepared. A partner may have valuable hands-on experience, personnel and leverage over prospective customers. Also, joint venture partners may provide access to businesses that would otherwise not be immediately available as customers. However, good personnel working in a wholly-owned subsidiary finance company should also be able to develop many useful contacts and business opportunities. A wholly-owned leasing company owned also wholly-owns the "Russia risk" associated with its assets. Thus, a prudent approach to lease activity in Russia may involve a combination of strategies. Independent domestic operations may be appropriate in some instances, while cross-border leasing and joint ventures with other lessors will be appropriate in others. Some potential customers of a global vendor in Russia may prefer to borrow funds and purchase equipment, rather than to lease equipment. Thus, a lease company in Russia will not be the sole tool for foreign manufacturers financing sales of their equipment in Russia. It may be necessary to extend cash loans to borrowers to make a sale, to provide accounts receivable financing, to engage in factoring operations, or to accept promissory notes or barter transactions. A borrower could be the proposed customer itself, a Russian lease company, or a joint venture lease company formed with a Russian lease company. Each of these scenarios obviously raises different tax, licensing and general legal concerns.
Financing a Lease Company The Russian Federation Law on Currency Regulation and Currency Control allows several different means of financing a lease company. Large contributions to the charter capital of the company may be made free of import duty and VAT at the time a company is organized. Additional capital may be provided by means of a cross-border loan to a lease company. Such a loan would require a license from the Central Bank if its term would exceed 180 days. If a loan is received from an entity that is not a bank, the interest on that loan would presently be subject to VAT and not deductible by the borrower. Generally, these two problems, plus the desire to avoid obtaining a Central Bank license, force lease companies to be financed by means of ruble denominated loans received from foreign or domestic banks in Russia which hold a general banking license. Presently, no debt-to-equity limitations for lease companies exist in Russia. Accordingly, the emerging model has been for foreign leasing companies to form low-capitalized, highly leveraged lease companies, working in close cooperation with a bank in Russia holding a general banking license. Such a bank is authorized to receive rubles, convert them to dollars and repatriate them off-shore. In the future, debt-to-equity limitations may be imposed by the Tax Code, creating a limitation on the deductibility of interest expenses in certain circumstances.
Licensing Leasing Activity In addition to licensing concerns when capitalizing a Russian lease company, companies intending to engage in financial leasing in Russia are required to obtain a license from the Ministry of the Economy. The regulations on the Licensing of Leasing Activity were issued on February 26, 1996. A single leasing transaction makes a lessor a leasing company and requires that a license be obtained. A foreign applicant must pay a fee ranging from $1,000 to $5,000 for a license. A domestic company is supposed to pay a fee of less than $1,500, but in practice may have to pay the larger sum to "expedite" release of the necessary license. A lease license may be for a term of up to five years, but, in practice is for a term of 2 to 3 years. Foreign applicants can obtain a lease license in a matter of weeks. Licenses for domestic entities often take several months to acquire. Russian manufacturing enterprises as well as banks have formed numerous captive leasing companies. Reportedly, over 400 licenses have been issued by the Ministry of the Economy, although this multitude of domestic leasing companies appears not to have had a large impact in the marketplace. Numerous captive leasing companies are being formed to take advantage of the accelerated depreciation allowed to lease companies. Captive leasing companies are also being formed to better control the allocation of equipment to subsidiaries in large Russian conglomerates.
Licensing Cross-Border Lease Payments The Central Bank currently requires that a currency license be obtained for most cross-border leasing transactions. However, the Central Bank has announced an intention to release a new regulation in fall 1998 which would remove the licensing requirement for cross-border lease transactions, and replace it with a registration requirement. A cross-border lease transaction with a term longer than 180 days is viewed by the Central Bank as "a transaction connected with the movement of capital" within the meaning of the Currency Law and is not an excludable "current currency operation" for the provision of leasing services. In practice, lease payments are denominated in foreign currency, but payable in Rubles. Certain exceptions to the currency licensing requirement have been introduced for hard currency payments to pay for aircraft and sea and river vessels. Certain other exceptions exist for hard currency payments abroad to pay for equipment that has been delivered to Russia. This exception for payments for equipment delivered may not, however, apply to a cross-border lease exceeding 180 days.
Securitizing Lease Portfolio The legal questions facing certain successful leasing companies in Russia are evolving and becoming more complex. Prior to the fall 1998 economic crisis, certain domestic Russian leasing companies, including those financed by Russian banks and by municipal authorities had built up significant portfolios of lease assets. Several leasing companies and banks in Russia were exploring means of selling participating interests in, or securitizing, their loan and lease portfolios. The issuance of bonds backed by a pledge of lease receivables had been under discussion. In the West, leasing companies commonly finance themselves by direct issuances of stocks and bonds. Subject to feasibility following the 1998 economic crisis. Russian lease companies would like to follow this path, rather then remaining dependent on their parent banks. Russian banks which had, until recently, been able to issue commercial paper, stocks and bonds on the global market, had invested very little of the resources gained by such issuances in their subsidiary leasing companies.
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Updated 16 August 1999