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.
Following Your Vendor To Canada
by Jonathan Fleisher, Grasset|Fleisher*, Toronto, [email protected]
*Grasset|Fleisher is a boutique Canadian law firm focusing on the commercial finance industry.
With the advent of increased globalization new challenges are being placed on commercial finance companies that utilize vendor programs. Vendors are increasingly making it a condition of doing business that the finance company fund international transactions. The challenge for companies that are less international in scope is to meet this requirement. Typically, a U.S. vendor's first foray into international markets is Canada. The reasons for this are a long trading history, geographic proximity and common cultural backgrounds. Generally, global finance companies such as GE Capital and Newcourt Credit Group are able to follow the vendors to Canada and other international jurisdictions by utilizing their international structure in funding transactions. Smaller or less internationally oriented finance companies must either refer international transactions to other sources or lose the transaction entirely. Either of these actions may harm the vendor relationship and have long term negative consequences.
Withholding Tax The most significant barrier for a U.S. commercial finance company funding Canadian-based transactions is withholding tax. Generally speaking, a Canadian borrower or lessee is required to withhold a portion of the rental or interest payment, depending on the structure of the deal, and remit this withheld amount to appropriate government agencies. While the U.S. commercial finance company may be able to claim against this withheld amount, it presents cash flow problems. Further, if the commercial finance company securitized its portfolio, this could make it non-fundable. One method of resolving this concern is to have the Canadian based borrower "gross up" the rental or interest payment to ensure the amount actually paid to the U.S. finance company was equal to the pre-withholding tax rental payment due. The problem with this structure is that it causes the cost of funds to be significantly higher. This tends to make the U.S. finance company non-competitive.
Tax Treaty A recent change to the Canadian/U.S. Tax Treaty may provide welcome relief. If a vendor of equipment sells the equipment to a Canadian purchaser for payments over time, then the interest paid, does not attract withholding tax. Under the old rules of the Tax Treaty, if this finance paper were assigned to the finance company, withholding tax would be payable. Under the new rules, withholding tax is not payable. Accordingly, if the vendor relationship with the Canadian purchaser is akin to a conditional sales contract then a structure can be developed which would attract no withholding tax. This should allow U.S. finance companies to fund Canadian transactions. There are other exceptions under the Canadian/U.S. Tax Treaty and the Canadian Income Tax Act which provide for no withholding tax. It should be noted that these exemptions are based on the type of equipment or on the repayment schedule. Typically, for vendor relationships these exemptions are of little value.
OTHER CANADIAN ISSUES Perfecting the Security interest In most Canadian provinces, it is very easy to register a security interest. The process follows that which is utilized in UCC filings. In fact, most Canadian provinces provide for electronic registration which does not require the debtor's signature. Similarly, a purchase money security interest can also be obtained as long as the appropriate rules are followed. Registration Requirements Generally speaking, provided that the commercial finance company does not have a permanent establishment in Canada, there is no requirement for registration nor is it subject to Canadian tax. The determination of whether a company has a permanent establishment is a factual determination and is made on a case by case basis. If a commercial finance company establishes a sales agency in Canada and has offices in Canada, then it is at risk of being seen to have a permanent establishment. If the commercial finance subsidiary is owned by a bank then this may have an even more deleterious effect. Offices should not be established in Canada without a thorough legal review.
Documentation Generally speaking, standard form U.S. documentation will have to be modified to be enforceable in Canada. The modifications tend to be minor in scope and rarely have an impact on future securitizations or fundings. There are concerns, for instance, in how interest is calculated (it must be expressed as an annualized as opposed to a monthly rate). As global trade increases, the need to follow vendors will expand. In order to be competitive, a commercial finance corporation must be able to assist its clients in their expansion.
Updated 1 June 1999