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 5)
by Derek A. Bloom, Esq., Coudert Brothers, Moscow, [email protected]
Leasing Law On October 29, 1998 President Yeltsin signed the new Federal Law on Leasing. Certain provisions of the new Federal Law on Leasing conflict with several other provisions of Russian tax, currency, customs, and civil procedural law, and the Civil Code, and will give rise to several new questions. The possibility that Russia would adopt a lease law had been under discussion since the spring of 1996. In June 1996 committees in the State Duma first began review of a draft law. The development of this draft law followed the March 1, 1996 entry into force of Part Two of the Civil Code containing provisions governing rental in general (Articles 606 - 670) and financial leasing in particular (Articles 665 - 670). From the beginning, the draft lease law was the work product of a small group of persons affiliated with leasing company subsidiaries of certain Russian commercial banks. The draft law went through many versions and was vetoed by President Yeltsin in August 1998, only to be resuscitated in the State Duma again in September 1998. Following is a history of events concerning the draft lease law during 1998 (through September). In March 1998, the International Finance Corporation ("IFC") issued a lengthy analytical report ("IFC Report") on the legal and regulatory framework for financial leasing in Russia. The IFC Report, written after lengthy study and significant expense, responded to a request in September 1997 from Boris Nemtsov, then the First Deputy Prime Minister of the Government of the Russian Federation. The IFC Report contained several criticisms of the draft leasing law as well as a description of the fundamental elements of a successful financial leasing law. The IFC's comments were based on the input of various international leasing experts, as well as the IFC's own experience in stimulating the growth of lease financing in various nations . The drafters of the lease law pending in the Duma rejected and did not use any IFC recommendations. On April 11, 1998, the Government of the Russian Federation issued a lengthy letter (No. 1866-p5) (the "April Letter") recommending a veto of the draft lease law. The letter included a lengthy list of certain legal issues and drafting problems present in the draft law. Despite criticism of the draft law by the Government in April, proponents of the law nonetheless advanced the same criticized version of the law through approval by the State Duma and the Council of the Federation on July 15 and July 17, respectively; however, the President then vetoed this draft lease law on August 2, 1998. A Statement from the President's Press Service on August 2, 1998 concerning the veto (No. 1998-08-02-003) instructed the Duma to not undertake any more work on preparing a new draft lease law. The Statement indicated that Yeltsin vetoed the draft lease law because: (1) leasing does not constitute an independent subject for legal regulation, meaning that all the points addressed in the draft law should be addressed in other federal laws which bear upon tax, customs, contractual and civil procedural issues, (2) several provisions of the draft law were inconsistent with existing provisions of the Civil Code, (3) existing provisions of the Civil Code provide a sufficient basis for leasing contracts, and (4) the Unidroit Convention on International Financial Leasing applies to certain cross-border lease transactions. The vetoed draft lease law, nonetheless, came back to life as a consequence of subsequent political events in Russia. The vetoed lease law was originally submitted to the State Duma by several deputies, including Communist Party member Yu. D. Maslyukov. Following the removal of the Kiryenko government in late August, a political compromise led to Mr. Maslyukov being appointed as First Deputy Prime Minister under Prime Minister Yevgeni Primakov. Thereafter, a slightly revised version of the draft lease law was again submitted to, and approved by, the State Duma on September 11, 1998, and as noted, was ultimately signed by the President on October 29. A comparison of the current draft lease law with the vetoed version of the law reveals that the changes which were made were cosmetic responses to some of the criticisms made in the April Letter recommending a veto of this law. The new lease law does not attempt to reconcile many of its substantive provisions with existing provisions of the Civil Code, Civil Procedural Code, Tax Law, Customs Law, Joint Stock Company Law, and Bankruptcy Law. The draft law contemplates that changes to all of these laws shall be made by regulations approved by the Government, rather than by amendments to these laws. The will give rise to a number of new interpretive legal problems due to conflicts between its provisions and provisions of other Federal Laws. There will likely be a prolonged period of legal ambiguity before the provisions of the draft lease law may be implemented in practice, during which time a lack of clarity regarding the law of leasing transactions may exist. The resulting perception of increased legal risk arising out of this poorly-drafted law may frustrate the government's objective of attracting significant new foreign capital to Russia to finance leasing transactions.
Draft Tax Code Part One of a new Tax Code came into effect in Russia as of January 1, 1999. Part One contains only organizational and procedural points, and does not alter the description of the taxation of lease transactions set forth above. It is not clear whether or when Part Two of the new Tax Code may be enacted. When it is enacted, Part Two of the new Tax Code will likely alter existing tax laws in a manner adverse to the interests of leasing companies in Russia. The Tax Code would do away with the existing special depreciation regime for leased assets, discussed above, under which a leasing company may depreciate leased assets at a rate three times faster then normal amortization of a class of assets. The Tax Code would also allow the full deductibility of interest paid on credits, no longer requiring that the credits must be received only from banking institutions. The Tax Code would impose some debt/equity ratio limitations on the financing of leasing companies. The Tax Code would treat leased assets the same as assets financed in any other manner for the purposes of depreciation. Draft provisions of the Code classify all types of property into one of six groups. The third group includes items classified as "working and power-producing machines and equipment" and "measuring and controlling instruments and devices." The fourth group includes "computers and office equipment." The fifth group includes "transportation resources." These groups are not precisely defined. The Code sets forth a standard monthly rate of depreciation for each group of assets. The third group depreciates at the rate of 2% per month, the fourth at the rate of 4% per month, and the fifth at the rate of 3.5% per month. No accelerated depreciation for leased assets would exist, unlike present law. Slightly faster rates of depreciation for small enterprises and other special circumstances would be available, and rates of depreciation for property entered on to balance sheets prior to enactment of the new Tax Code appear to be preserved. However, rules regarding grandfathering existing rates of depreciation and reference to the special regime for leasing appear to be eliminated. With regard to the deductibility of interest, the Code provides that the following expense shall be included in allowed expenses for the production and sale of goods, work and services: "interest paid on credits received for purposes directly associated with production, acquisition, and/or realization of goods, work, and services; and interest accrued on securities and other obligations. These changes allowing the full deductibility of interest expenses and the same depreciation treatment for leased or purchased assets may seem unremarkable to American taxpayers where these rules are the norm. But these two alterations to the existing tax regime will remove two comparative advantages for lease financing, as compared to loan financing.
Conclusion Leasing should prove to be a growing, flexible and promising means of financing the acquisition of many types of equipment needed by Russian industry and entrepreneurs. Foreign leasing companies should have certain compelling advantages over their Russian competitors due to their experience with such transactions and access to relatively inexpensive sources of capital. Russian leasing companies would welcome joint lease/sub-lease transactions in which they would assume responsibility for all activities in Russia, and provide guarantees of lease repayments to a foreign partner. Alternatively, a foreign leasing company that desires to capitalize upon the opportunity to develop a larger scale business in Russia of its own in coming years should set up a wholly-owned, or jointly-owned leasing company in Russia.
Updated 9 September 1999