Andrey Slabko, lawyer
To carry out individual currency transactions individuals-residents of Belarus are required to obtain permission from the National Bank of the Republic of Belarus (hereinafter referred to as the National Bank).
To whom and What operations require permission from the National Bank?
Law of the Republic of Belarus dated July 22, 2003 N 226-Z “On Currency Regulation and Currency Control” requires resident individuals to obtain permission from the National Bank to conduct the following currency transactions:
1) acquisition of shares when creating a foreign joint-stock company, as well as a share in the authorized capital or a share in the property of a foreign company;
2)purchase from a non-resident of securities issued by non-residents. The permission of the National Bank is also required, for example, in the case of acquiring shares of foreign companies, when we are not talking about the distribution of shares when establishing a joint-stock company;
3) acquisition of ownership of real estate located outside of Belarus;
Property must be recognized as immovable under the legislation of Belarus, and not the state in whose territory it is located;
4) opening accounts in foreign banks;
This restriction does not apply to the time during which an individual resides (stays) abroad and has a residence permit, visa, temporary residence permit or other document confirming the fact of being legally outside Belarus. At the end of the period of residence (stay), the account must be closed, and the balance of the account transferred to the Republic of Belarus, or imported in compliance with customs rules. Or an individual can obtain permission from the National Bank to open an account.
5) accommodation Money in banks and other credit institutions of foreign countries;
6)issuance of loans for a period of more than 180 days;
7) transfer of funds under trust management of currency values.
Resident individuals do not have to obtain permission from the National Bank to conduct other currency transactions.
The permission of the National Bank is also not required for citizens of Belarus, foreign citizens and stateless persons with a residence permit, continuously residing (staying) outside the Republic of Belarus for more than one year, if the conduct of such operations is not related to their entrepreneurial activity on the territory of the Republic of Belarus.
What documents should I submit?
The list of documents is determined depending on the currency transaction for which permission is required.
For example, for opening a current account In a foreign bank you must submit:
- the applicant’s consent to submit documents, as well as other information about the operations being carried out within the framework of the permit issued by the National Bank;
- the purpose of opening an account, the planned mode of the account, as well as the location and name of the non-resident bank in which it is planned to open the account (to obtain permission to open an account);
For acquisition of a share in the authorized capital a foreign organization must submit:
1) a written request of any form, containing:
- economic justification the need to open an account in a foreign bank;
- the applicant’s consent to submit documents, as well as other information about the operations being carried out within the framework of the permit issued by the National Bank;
- assessment of the effectiveness of investing currency values;
2) a copy of an identity document (passport, residence permit);
3) a copy of the document formalizing the transaction for the acquisition of a share in the authorized capital;
4) a copy of an extract from the trade register from the country where the foreign organization is located, if this organization is already registered, or other equivalent evidence of legal status. In this case, the date of the statement should not exceed three months before the date of application to the National Bank;
5) copies of the constituent documents of the foreign organization on the basis of which it operates, and for a newly created organization - draft constituent documents.
For purchasing real estate abroad you need to prepare:
1) a written request in any form containing:
- economic justification for the need to carry out the requested operation;
- consent of an individual or subject of currency transactions to submit documents, as well as other information about ongoing operations within the framework of the permit issued by the National Bank;
- assessment of the effectiveness of investing currency values (when conducting a foreign exchange transaction related to the movement of capital);
2) a copy of an identification document (passport, residence permit).
3) a copy of the document documenting the relevant civil transaction;
4) copies of documents confirming the rights of a non-resident to the real estate acquired from him, and (or) agreements for the creation of shared construction projects.
Documents originating from other states must either be certified with an apostille, or legalized, or originate from states with which Belarus has entered into an agreement on legal assistance, and have an official seal.
Where to contact?
To obtain a permit, you must contact the National Bank at the address: Minsk, Nezavisimosti Ave., 20 (opening hours: Monday - Thursday 8:30 - 17:30; Friday 8:30 - 16:15).
How long should I wait?
The period for consideration of documents is 15 calendar days from the date of registration of the applicant’s written request with the National Bank. In case of requesting additional information, the period is increased by no more than 10 calendar days from the date of receipt of the requested information and documents by the National Bank.
Permission to open an account is valid for 1 year, which can be extended. The validity period of permits for other operations has not been established.
Do I need to pay for a permit?
Permissions from the National Bank to conduct foreign exchange transactions are issued without paying state duty or other fees.
We can advise you on obtaining a permit, as well as help in preparing the necessary documents.
Most Belarusians have enough accounts in Belarusian banks. But if you often travel to another country or earn some money abroad, having an account and a card linked to it in a foreign bank may be more convenient - this way you can avoid fees for withdrawing or transferring money. However, in order to get an account in a foreign bank, you need to obtain permission from the National Bank. Komsomolskaya Pravda has collected answers to naive questions about accounts abroad.
Can I open an account in a foreign bank if I live in another country?
In this case, there are no restrictions and permission from the National Bank is also not needed. The main thing is to prove, if necessary, that you have really been abroad for a long time. Such evidence may include a residence permit, temporary residence permit or long-term visa. If you come to Belarus to stay and then go abroad again, you do not need to do anything with the account. But if you return home for good, and your foreign bank account has not been closed, it will no longer be legal.
At the end of his stay abroad, an individual is obliged to close the account and transfer the balance of funds to Belarus, or import all foreign currency values received abroad into Belarus in compliance with customs rules, or obtain permission from the National Bank to open an account with a non-resident bank, - list the options in the main Department of Currency Regulation and Currency Control of the National Bank.
What if I just often travel abroad on a multiple-entry Schengen visa?
Experts explain that here the decisive factor will be not so much a visa (after all, you can never go anywhere on it at all), but proof of your continuous stay abroad. But at the same time, any visa can be: work, study, and ordinary tourist. It turns out that if you spend a lot of time in the same Europe, then you can open an account in a foreign bank for the duration of your stay abroad.
I don't live abroad, but I still want a foreign bank account. How do I get permission?
In this case, you need to contact the National Bank with a copy of your passport and a special application.
The application must contain your personal and contact details, passport details (series, number, by whom and when issued), as well as the justification for the need to open an account, the location and name of the non-resident bank in which it is supposed to be opened, - explain in the main department of foreign exchange regulation and currency control of the National Bank.
In addition to the application, you will also need any other documents that will help you prove that you actually need an account abroad. If, for example, you have relatives in Russia whom you regularly visit, and during these trips it would be convenient for you to use an account in a Russian bank and a card linked to it, you can try to submit information about these relatives and tickets from previous ones to the National Bank trips to them. However, there is still no clear scheme of actions or a specific list of required documents, and it is also impossible to predict the result. In each case, the National Bank will make a decision individually.
By the way, if you manage to get permission for an account abroad, keep in mind: the National Bank will send a copy of it to the tax authorities at the place of your registration.
Can Belarusians open accounts and cards in Russian banks?
We live in the Eurasian Economic Union, there is no border with Russia, you can study, work and work in Russia without any problems ... But we still cannot use Russian banks in the same way as Belarusian ones. The law says that you need to obtain permission from the National Bank if you want to open an account with a non-resident bank. That is, in any one that is not registered in Belarus.
How will I be punished if an illegal account abroad is discovered?
There are no clear rules for this case. For example, the main bank of the country will not look for you at all.
The issues of applying liability measures to individuals are not within the competence of the National Bank, - confirm in the main department of foreign exchange regulation and foreign exchange control of the National Bank.
But the tax authorities may be interested in your foreign accounts. True, how exactly you can find a Belarusian account in a foreign bank, the tax authorities do not recognize.
When establishing the fact of receiving income abroad, including those placed on accounts in foreign banks, the tax authorities may ask where the citizen gets this money from, the Ministry of Taxes and Duties explains. - In this case, the citizen will need to submit a declaration of income and property and indicate in it their sources of income. If, for example, funds received in the form of a salary or from close relatives were placed on such an account in a bank, then the tax authorities will not have claims against it. But if a citizen cannot explain the origin of this money, then he will have to pay income tax on this income in the amount of 13%.
BY THE WAY
To open an account abroad, all you need is a passport
In a foreign bank, you will not be asked if you have received permission from the National Bank to open an account abroad. However, this does not mean that Belarusians will be welcomed there with open arms.
For non-residents Russian Federation Each decision will be made individually. Most likely, you will have to additionally justify the need to open an account, - they said in one of the largest Russian banks.
The other bank, however, was not so categorical.
You need to come to the bank branch with a passport and choose any of the available service packages. There are no restrictions, - the contact center of another Russian bank reported.
In Lithuanian and Polish banks the situation is generally the same. Somewhere you can easily open an account with one passport, and somewhere you will be asked to bring proof that you live, work or study in their country. By the way, the conditions for opening an account in foreign banks are approximately the same as in Belarusian ones. Its maintenance will cost about 10 - 25 euros per year (in terms of), and upon opening, they may be asked to put an average amount of 100 to 500 euros on it. And don’t forget what it’s like to withdraw cash from a card foreign bank in Belarus they will take a commission. But you can pay in cafes, shops and the Internet without additional payments.
HAVE A QUESTION
Is it possible to get a loan from a foreign bank?
To borrow money from a foreign bank, permission from the National Bank is not required. So, if you find a bank where they agree to give a loan to a foreigner, you can safely apply to him for money. True, this is not easy to do even with neighbors. Komsomolskaya Pravda called several Russian banks, but in each of them Russian citizenship is a prerequisite for obtaining a loan. Only in one it was possible to find an offer for Belarusians, but at the same time it was very specific.
You can take a mortgage loan from us, but only if you receive a salary on the card of our bank, - they said in the contact center of one of the Russian banks.
Material prepared
using regulatory
legal acts according to the status
as of October 27, 2017
When making payments in foreign currency, resident legal entities must clearly understand in which cases these payments are allowed, and in which cases they will require permission from the National Bank of the Republic of Belarus (hereinafter referred to as the National Bank) to make them. Non-compliance with the norms of currency legislation entails the application of rather significant administrative sanctions to the violator. So, let's consider in which cases it is necessary to obtain permission from the National Bank to carry out a foreign exchange transaction, and in which cases payments in foreign currency are allowed.
Foreign exchange transactions requiring permission from the National Bank
Article 4 of the Law of the Republic of Belarus dated July 22, 2003 No. 226-Z “On Currency Regulation and Currency Control” (hereinafter referred to as the Law) defines a list of transactions that relate to currency transactions. It can be said that any use of foreign currency (transactions, imports, exports, bank transfers, etc.) is a foreign exchange transaction. Please note: foreign exchange transactions also include transactions between residents and non-residents involving the use of Belarusian rubles. This article of the Law establishes the classification of foreign exchange transactions carried out between residents and non-residents into current foreign exchange transactions and foreign exchange transactions related to the movement of capital. The Law includes current foreign exchange transactions as settlements within the framework of export-import transactions, rent (leasing), transfer and receipt of dividends and other investment income, as well as non-trade transactions (the list of non-trade transactions is established in Article 6 of the Law). The list of current currency transactions is currently closed, i.e. all of them are listed in Articles 5 and 6 of the Law. According to Article 7 of the Law, currency transactions related to the movement of capital are currency transactions carried out between residents and non-residents that are not classified as current.
The question may arise: why describe in such detail the classification of currency transactions given in the Law? The answer is as follows: this classification is directly related to conducting currency transactions without restrictions or with the permission of the National Bank. If a resident legal entity carries out a currency transaction with a non-resident legal entity, then it is necessary to analyze whether the currency transaction being performed falls under the concept of a current currency transaction. In other words, do we find the currency transaction being performed among the transactions listed in Article 5 or 6 of the Law. If we find it, then a current currency transaction is taking place. In the absence of a currency transaction being performed, in Articles 5 and 6 of the Law, a currency transaction related to the movement of capital takes place. In accordance with Article 10 of the Law, current currency transactions are carried out between residents and non-residents in the manner established by the legislative acts of the Republic of Belarus and (or) regulatory legal acts of the National Bank, without restrictions, unless otherwise established by the President of the Republic of Belarus. Clause 15 of the Rules for Conducting Currency Transactions, approved by Resolution of the Board of the National Bank of the Republic of Belarus dated April 30, 2004 No. 72 (hereinafter referred to as Rules No. 72), establishes that current currency transactions are carried out between residents and non-residents without restrictions. This means that if the currency transaction being performed is a current currency transaction, then general rule it is carried out without restrictions. However, it is necessary to keep in mind the Decree of the President of the Republic of Belarus dated May 12, 2009 No. 240 “On some issues in the field of currency regulation” (hereinafter referred to as Decree No. 240). Decree No. 240, in order to promptly regulate relations in the domestic foreign exchange market, ensure stability of the national currency exchange rate, and limit the outflow of capital from the country, granted the right to the National Bank to establish for legal entities and individual entrepreneurs who are residents of the Republic of Belarus in accordance with the Law, restrictions on the implementation of certain current foreign exchange transactions. Using the granted right, the National Bank, in clause 15 of Regulation No. 72, established that no permits (licenses) from the National Bank are required to conduct current foreign exchange operations, with the exception of foreign exchange operations involving the transfer of funds by a subject of foreign exchange operations - a resident (other than a bank) to a non-resident donation agreements (including in the form of donations), which are carried out on the basis of the permission of the National Bank.
If the performed currency transaction is a currency transaction related to the movement of capital, we again turn to the Law. In accordance with Art. 10 of the Law, residents carry out currency transactions related to the movement of capital, on the basis of permissions from the National Bank, unless otherwise established by the Law or the President of the Republic of Belarus. It is not required to obtain permission from the National Bank for legal entities - residents and individual entrepreneurs - residents of foreign exchange transactions related to the movement of capital, which are listed in Part 5 of Article 10 of the Law. In accordance with clause 17 of Rules No. 72, subjects of foreign exchange operations (except for banks) carry out foreign exchange operations related to the movement of capital:
- on the basis of permits from the National Bank - foreign exchange transactions specified in clause 18 of Regulation No. 72;
- without the permission of the National Bank - currency transactions specified in Article 10 of the Law;
- in a notification procedure - currency transactions specified in clause 20 of Rules No. 72 (in this procedure, currency transactions related to the movement of capital are carried out, not specified in clause 18 of Rules No. 72 and Article 10 of the Law).
So, we have come close to foreign exchange transactions related to the movement of capital, carried out on the basis of permits from the National Bank. In accordance with clause 18 of Rules No. 72, resident currency transactions entities (except banks) carry out, on the basis of permits from the National Bank to conduct currency transactions related to the movement of capital, currency transactions providing for:
- acquisition of shares when they are distributed among the founders, a share in the authorized capital or a share in the property of a non-resident, as well as making an additional contribution to the authorized capital of a non-resident in the event of its increase;
- acquisition from a non-resident of securities issued (issued) by non-residents, with the exception of the acquisition of shares when they are distributed among the founders;
- acquisition of ownership of property located outside the Republic of Belarus and classified under the legislation of the Republic of Belarus as real estate, including on the basis of agreements providing for the creation of shared construction projects;
- placement of funds in non-resident banks or transfer of funds to non-residents (except for non-resident banks) on trust management terms;
- providing loans;
- settlements of obligations arising from the subject of foreign exchange transactions - a resident (except for a bank), which is a surety, guarantor, to a non-resident on the basis of a suretyship, guarantee agreement concluded between them;
- obtaining credits and (or) loans in the presence of at least one of the following conditions: – the interest rate for using a credit and (or) loan exceeds the following levels: when conducting transactions in US dollars, euros - 14 percent per annum; when conducting transactions in other foreign currencies, Belarusian rubles – the refinancing rate of the relevant central (national) bank, increased by 5 percentage points, valid on the date of receipt of the credit and (or) loan by the subject of the foreign exchange transaction - a resident;
– the interest rate for using a credit and (or) loan in case of delay in repaying the credit and (or) loan (in the amount of an increase in the amount of interest due to the delay in repaying the credit and (or) loan) and the amount of the penalty (fine, penalty) in the aggregate exceed 0.01 percent for each day of delay (3.65 percent per annum). To calculate this level, if in the contract the amount of the penalty (fine, penalty) is expressed as a fixed amount, it is recalculated into a percentage;
– in an agreement between the subject of foreign exchange transactions - a resident (except for a bank) and a non-resident (except for a non-resident bank) along with interest rate for the use of a credit and (or) loan, an obligation has been established to make other additional payments (except for payments for the use of a credit and (or) loan in case of delay in repayment of the loan and (or) loan (in the amount of an increase in the amount of interest due to the delay in repayment of the loan and (or) ) loan), as well as payments for the payment of penalties (fine, penalty));
– the amount of the loan and (or) loan is used to pay the monetary obligations of the resident (borrower, borrower), bypassing his bank account;
– fulfillment of obligations to repay a loan and (or) loan is not carried out from the account of the borrower, borrower;
- the lender or lender is registered in a state (territory) that has a preferential tax regime and (or) does not provide for the disclosure and provision of information on financial transactions (offshore zones); - settlements of obligations incurred by a resident currency transaction entity (other than a bank) to a non-resident on the basis of an agreement providing for the transfer of debt or assignment of a right (claim), under the terms of which the resident currency transaction entity assumes the debt of a non-resident to another non-resident or makes a payment for a right (claim) assigned by a non-resident.
Thus, if a legal entity is a resident, and according to the terminology of Rules No. 72, a subject of foreign exchange transactions - a resident, after analyzing the current foreign exchange transaction, comes to the conclusion that there is a foreign exchange transaction related to the movement of capital, the next thing he must do is to analyze .18 of Regulations No. 72. If the currency operation being performed is contained in clause 18 of Regulations No. 72, then there is a currency operation related to the movement of capital, carried out on the basis of the permission of the National Bank.
The main document regulating the procedure for obtaining permission from the National Bank is the Instruction on the Procedure for Issuing Permits and Submitting Notifications Necessary for the Purposes of Currency Regulation, approved by Resolution of the Board of the National Bank of the Republic of Belarus dated August 26, 2015 No. 514 (hereinafter referred to as Instruction No. 514).
Instruction No. 514 regulates the procedure for issuing permits from the National Bank for resident individuals and resident legal entities to conduct foreign exchange transactions related to the movement of capital: documents that must be submitted to the National Bank to obtain a permit, the period for their consideration, grounds for refusal. Instruction No. 514 defines the procedure for issuing permits by the National Bank for the use of foreign currency in the territory of the Republic of Belarus, the procedure for issuing permits for residents to open accounts outside the Republic of Belarus, regulates the notification procedure for conducting foreign exchange transactions related to the movement of capital.
Clause 13 of Instruction No. 514 establishes that the National Bank issues permits for the conduct of the currency transaction in question until the moment the resident makes settlements with the non-resident on these currency transactions. The moment a resident makes settlements with a non-resident, based on clause 2 of Regulation No. 72, is the moment the payment is made through a bank to a non-resident. This means that a resident can obtain a loan from a non-resident, which requires the permission of the National Bank, in fact, without permission at the time of receipt. Nevertheless, before making a payment to a non-resident, that is, before repaying the loan and interest, in other words, before making settlements with a non-resident, permission from the National Bank must be obtained. At the same time, it is necessary to take into account the persuasive request of the National Bank, contained in the letter No. 31-14/12 dated January 11, 2010 “On the application of the norms of the Rules for Conducting Foreign Exchange Operations”, to apply for a permit until the non-resident fulfills its obligations to the resident (since the obligation to issue a permit to any applicant the National Bank does not, and may result in a refusal to issue a permit).
The permission of the National Bank will also be required for a resident legal entity for settlements in foreign currency on the territory of the Republic of Belarus:
- with a resident legal entity in cases not expressly permitted by the currency legislation;
– with an individual in cases not expressly permitted by the currency legislation.
The permission of the National Bank for a resident legal entity will be required when depositing cash foreign currency into the account and withdrawing it from the account of a resident legal entity in cases not provided for by the Instruction on the procedure for conducting currency transactions using cash foreign currency and cash Belarusian rubles, approved by a resolution of the Board of the National Bank Republic of Belarus dated January 17, 2007 No. 1.
A resident legal entity will need permission from the National Bank to purchase foreign currency on the domestic foreign exchange market if the purpose of the purchase does not correspond to any of the purposes specified in the Instructions on the procedure for carrying out foreign exchange transactions involving legal entities and individual entrepreneurs, approved by a resolution of the Board of the National Bank Republic of Belarus dated July 28, 2005 No. 112.
Within the framework of foreign trade agreements, it must be borne in mind that the permission of the National Bank will be required:
- to carry out settlements within the framework of a foreign trade agreement providing for the import of goods without their entry into the territory of the Republic of Belarus (Decree of the President of the Republic of Belarus dated March 27, 2008 No. 178 “On the procedure for conducting and monitoring foreign trade operations” (hereinafter referred to as Decree No. 178));
- to extend the deadline for completing foreign trade operations (Decree No. 178).
The bank as a currency control agent, based on clauses 6 and 8 of the Instruction on the procedure for registering a transaction and the performance by banks and non-bank financial institutions of the functions of currency control agents, approved by Resolution of the Board of the National Bank of the Republic of Belarus dated April 16, 2009 No. 46 (hereinafter referred to as Instruction No. 46), is obliged to monitor the submission of documents by clients on currency transactions and, in particular, the availability of permission from the National Bank to conduct a currency transaction related to the movement of capital (if the need to obtain a permit is provided for by currency legislation), and other permissions of the National Bank provided for by the Instructions No. 46. In the absence of these permits (if it is necessary to issue them), the bank is obliged to refuse to conduct a foreign exchange transaction.
Currency transactions carried out without the permission of the National Bank
In accordance with paragraph 2 of Art. 298 of the Civil Code of the Republic of Belarus (hereinafter referred to as the Civil Code), the use of foreign currency, as well as payment documents in foreign currency when making settlements on the territory of the Republic of Belarus for obligations, is allowed in cases, in the manner and under the conditions determined by law (a norm similar in meaning is duplicated in Art. 11 of the Banking Code of the Republic of Belarus).
The law establishes next rule in the field of currency regulation: everything that is not expressly permitted is prohibited. Thus, in accordance with Article 11 of the Law, it is prohibited to use foreign currency, securities in foreign currency and (or) payment documents in foreign currency when conducting foreign exchange transactions between residents, except for cases established by this Law and other acts of currency legislation.
The cases of using foreign currency between the subjects of foreign exchange transactions - residents are established:
1) In Article 11 of the Law: in relations between resident legal entities in the course of foreign exchange transactions, it is allowed to use foreign currency, securities in foreign currency in the following cases:
- attracting funds to the budget on a temporary basis, returning these funds and interest for using them in accordance with the law on the republican budget for the next financial year and decisions of the regional and Minsk City Councils of Deputies on the budget for the next financial year;
- making payments from the budget for the purposes determined by the law on the republican budget for the next financial year and decisions of the regional and Minsk City Councils of Deputies on the budget for the next financial year.
2) In Rules No. 72 in Chapter 5, which is called: “Use of foreign currency, securities in foreign currency and payment documents in foreign currency when conducting foreign exchange transactions between subjects of foreign exchange transactions - residents”. This chapter establishes 14 cases of using foreign currency permitted by the National Bank (based on the volume this material there is no way to quote them).
3) Permits of the National Bank. In accordance with subparagraph 25.15 of paragraph 25 of Regulation No. 72, resident legal entities are entitled to use foreign currency in settlements carried out between them on the basis of permissions from the National Bank.
3.1. Resident legal entities should take into account that the purchase and use of foreign currency for settlements under financial lease (leasing) agreements concluded between resident legal entities are generally prohibited. However, in this area of legal relations, it is necessary to take into account whole line legal norms contained in the resolutions of the Board and letters of the National Bank. We will not dwell on them in detail, we will only list which of them you need to pay attention to:
- subparagraph 25.2 of paragraph 25 of Rules No. 72 (banks have the right to use foreign currency in settlements among themselves under financial lease (leasing) agreements);
- Clause 2 of Resolution of the Board of the National Bank of the Republic of Belarus No. 138 dated August 25, 2009 “On Amendments and Additions to the Rules for Conducting Foreign Exchange Transactions”;
- letter of the National Bank of the Republic of Belarus dated 04.05.2012 No. 31-15/112 “Permission to conduct settlements in foreign currency”;
- Clause 2 of Resolution of the Board of the National Bank of the Republic of Belarus dated 11/18/2009 No. 186 “On Amendments and Additions to the Instruction on the Procedure for Performing Foreign Exchange Operations with the Participation of Legal Entities and Individual Entrepreneurs”;
- letter of the National Bank of the Republic of Belarus dated 21.06.2012 No. 31-12/164 “Permission to purchase foreign currency”;
- letter of the National Bank of the Republic of Belarus No. 31-12/165 dated June 21, 2012 “Permission to conduct foreign exchange transactions under financial lease (leasing) agreements”;
- letter of the National Bank of the Republic of Belarus dated December 9, 2013 No. 31-15/322 “On conducting foreign exchange transactions under financial lease (leasing) agreements”;
- letter of the National Bank of the Republic of Belarus dated 06.06.2013 No. 31-12/136 “Permission to conduct foreign exchange transactions under financial lease (leasing) agreements”;
- letter of the National Bank of the Republic of Belarus dated July 17, 2013 No. 31-15/177 “On foreign exchange transactions under financial lease (leasing) agreements”;
- letter of the National Bank of the Republic of Belarus dated December 30, 2013 No. 31-15/339 “Permission to conduct foreign exchange transactions under financial lease (leasing) agreements”;
- letter of the National Bank of the Republic of Belarus dated May 6, 2014 No. 31-15/177 “Permission to conduct foreign exchange transactions under financial lease (leasing) agreements.”
3.2. The National Bank, by letter No. 31-12/33 dated 03.02.2012 “Permission to Conduct Settlements in Foreign Currency”, allowed the use of foreign currency in settlements between resident insurance organizations, between resident insurance organizations and the Belarusian Bureau for Transport Insurance upon execution by them obligations to return the amounts of insurance compensation paid to the injured non-resident of the Republic of Belarus in foreign currency under the contracts of compulsory civil liability insurance of vehicle owners.
3.3. There are two more permits from the National Bank. One of them allows the use of foreign currency between the bank and clients (subjects of foreign exchange transactions - residents, individuals) in transactions involving the provision of services by the bank on its own behalf and at the expense of clients for the purchase, sale of bonds issued by residents, the nominal value of which is expressed in foreign currency. currency, and performed in the trading system of the JSC "Belarusian Currency and Stock Exchange" (letter of the National Bank of the Republic of Belarus dated April 28, 2014 No. foreign currency by wire transfer from outside the Republic of Belarus on a number of transactions, in particular between the subjects of foreign exchange transactions - residents and non-resident individuals (letter of the National Bank of the Republic of Belarus dated March 12, 2015 No. 31-12 / 273 "Permission for settlements in foreign currency" ).
4) In other cases established by acts of currency legislation. Such cases are, for example:
4.1. Decree of the President of the Republic of Belarus dated December 28, 2007 No. 681 “On Certain Issues of Trade in Petroleum Products”. In accordance with paragraph 3 of this Decree, the Belarusian Oil Company has the right to make settlements in foreign currency with legal entities - residents of the Republic of Belarus in accordance with the Law for petroleum products produced from oil produced in the territory of the Republic of Belarus.
4.2. The procedure for settlements between legal entities, individual entrepreneurs in the Republic of Belarus (hereinafter referred to as the Procedure), approved by Decree of the President of the Republic of Belarus dated June 29, 2000 No. 359. In accordance with clause 8 of the Procedure, it is allowed to make settlements between legal entities, their separate divisions, individual entrepreneurs - by residents of the Republic of Belarus in foreign currency for natural gas, oil, other hydrocarbon raw materials, oil products, coal, liquefied gas, electrical energy imported to the Republic of Belarus, as well as for oil products and liquefied gas produced (including at Belarusian enterprises from give-and-take raw materials) from oil and other hydrocarbon raw materials imported to the Republic of Belarus, for electrical and thermal energy produced using natural gas and fuel oil for potash fertilizers.
4.3. Decree of the President of the Republic of Belarus dated July 1, 2005 No. 300 “On the provision and use of gratuitous (sponsored) assistance”. In accordance with paragraph 1 of this Decree, legal entities and individual entrepreneurs of the Republic of Belarus have the right to provide organizations, individual entrepreneurs, other individuals of the Republic with gratuitous (sponsored) assistance in the form of cash, including in foreign currency, goods (property), works, services, property rights, including exclusive rights to objects of intellectual property, on the terms determined by this Decree.
Thus, in order to make a foreign exchange transaction with a resident legal entity, a resident legal entity must determine the possibility of using foreign currency between them. To do this, it is necessary to analyze Article 11 of the Law, Chapter 5 of Regulation No. 72, the current permits of the National Bank, as well as other acts of currency legislation. If among all of the above we do not find the analyzed currency transaction, then its conduct without a separate permission of the National Bank is prohibited.
Safarevich D.Z.,
lawyer
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Material provided by the National Center for Legal Information of the Republic of Belarus
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Publication “Financial Director” magazine October 2008
Partners, certified lawyers
Legal company DE JURE CONSULT
Valentina Zavadskaya and Elena Plavinskaya
When purchasing shares, a share in the authorized capital or a share in the property of a foreign organization, you must remember that in some cases it is necessary to obtain permission from the National Bank of the Republic of Belarus (hereinafter referred to as the National Bank) to conduct a foreign exchange transaction related to the movement of capital.
Thus, in accordance with Article 10 of the Law of the Republic of Belarus dated July 22, 2003 No. 226-Z “On Currency Regulation and Currency Control”, subparagraphs 18.1 and 18.2 of paragraph 18 of the Rules for Conducting Currency Transactions, approved by Resolution of the Board of the National Bank of the Republic of Belarus dated April 30, 2004 No. 72, the following currency transactions related to the movement of capital are carried out by residents of the Republic of Belarus on the basis of permits from the National Bank to conduct currency transactions:
- acquisition of shares when they are distributed among the founders, as well as a share in the authorized capital or a share in the property of a non-resident;
- acquisition from a non-resident of securities issued by non-residents, with the exception of the acquisition of shares when they are distributed among the founders.
Carrying out currency transactions without the permission of the National Bank entails administrative liability in accordance with Article 11.53 of the Code of the Republic of Belarus “On Administrative Offenses” dated April 21, 2003. No. 194-Z in the form of a fine from ten to fifteen basic units, i.e. from 350,000 to 525,000 Belarusian rubles.
It is important to know that the obligation to obtain permission from the National Bank when purchasing shares, a share in the authorized capital or a share in the property of a foreign organization does not always arise.
To avoid mistakes, consider the following cases.
It is possible to purchase shares or a share in the authorized capital of a foreign organization different ways, For example:
- creation (participation in) a new foreign organization;
- purchase of shares or a share in the authorized capital of a foreign organization;
- receiving shares or a share in the authorized capital of a foreign organization on another legal basis (donation, inheritance, etc.).
When creating a new foreign organization or making a contribution to the authorized capital of an already created foreign organization, permission from the National Bank is required if a resident of the Republic of Belarus makes funds (foreign currency, Belarusian ruble) as a contribution to the authorized capital of a non-resident.
Please note that permission from the National Bank must be obtained before the moment when a resident of the Republic of Belarus makes settlements with a non-resident on these currency transactions 1 . Therefore, if the legislation of a foreign state on whose territory a foreign organization is being created allows the formation of an authorized fund within a certain period after the state registration of such an organization and this is determined in its constituent documents, the permission of the National Bank can be obtained after the creation of the organization, but before making a monetary contribution to the authorized capital. fund.
The permission of the National Bank is not required if a resident of the Republic of Belarus contributes property or property rights as a contribution to the statutory fund, since in this case there is basically no currency transaction. Thus, according to Article 4 of the Law “On Currency Regulation and Currency Control”, currency transactions are transactions involving the use of foreign currency, securities in foreign currency, payment documents in foreign currency, as well as transactions between residents and non-residents, involving the use of Belarusian rubles, securities securities in Belarusian rubles. Consequently, the permission of the National Bank is not required if, for example, a Belarusian investor creates an organization in the territory of the Russian Federation and contributes property as a contribution to the statutory fund.
When buying shares or a stake in the authorized capital of a foreign organization from a non-resident, permission from the National Bank must be obtained, since this transaction involves the use of funds. When concluding a sale and purchase agreement, we recommend providing for such settlement terms so that a resident of the Republic of Belarus has the opportunity to obtain permission from the National Bank before making payments under the transaction. Since in this case, permission from the National Bank must be obtained before making payments. Thus, the fact of concluding an agreement for the purchase and sale of shares, a share in the authorized capital of a foreign organization, for which settlements have not yet been made, and making changes to the constituent documents of this organization related to a change in the composition of its participants, without obtaining permission from the National Bank is not a violation of the Belarusian currency legislation.
The basis for bringing to administrative responsibility for carrying out the specified currency transaction without the permission of the National Bank will arise only if the calculations for the acquisition of shares, shares in the authorized capital of a foreign organization are carried out without the permission of the National Bank.
Permission from the National Bank is not required if shares, a stake in the authorized capital of a foreign organization are acquired by a resident from a resident and settlements, respectively, are made in Belarusian rubles, since in this case there is no foreign exchange transaction in accordance with Article 4 of the Law "On Foreign Exchange Regulation and Foreign Exchange Control".
The permission of the National Bank is not required if shares, a share in the authorized capital are received by a resident of the Republic of Belarus as a result of donation, inheritance.
Thus, we recommend in a timely manner, that is, before making settlements with a non-resident for the acquisition of shares, a share in the authorized capital (shares) of a foreign organization, to obtain permission from the National Bank to conduct a currency transaction related to the movement of capital, if necessary.
The list of documents submitted for obtaining a permit from the National Bank, the terms and procedure for issuing a permit are established by the Instruction “On the procedure for issuing permits, certificates of registration for conducting foreign exchange transactions and opening accounts outside the Republic of Belarus, as well as submitting notifications to the bank when performing foreign exchange transactions related to with the movement of capital”, approved by the Resolution of the Board of the National Bank of the Republic of Belarus dated January 28, 2008 No. 15.
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* Resolution of the Board of the National Bank of the Republic of Belarus dated August 26, 2015 No. 515 "On Certain Issues of Conducting Foreign Exchange Operations".
** Rules for conducting foreign exchange transactions, approved by the Resolution of the Board of the National Bank of the Republic of Belarus dated April 30, 2004 No. 72 (hereinafter - Rules No. 72).
*** Instructions on the procedure for issuing permits for conducting foreign exchange transactions and opening accounts outside the Republic of Belarus, as well as submitting notifications to the bank when performing foreign exchange transactions related to the movement of capital, approved by Resolution of the Board of the National Bank of the Republic of Belarus dated January 28, 2008 No. 15 ( further - Instruction No. 15).
Who should be guided by the document and what does it regulate?
Instruction No. 15 extended its effect to legal entities, individual entrepreneurs and individuals. Instruction No. 514 extends its effect to subjects of foreign exchange transactions, notaries operating in notary offices, lawyers engaged in advocacy individually, individual entrepreneurs and individuals. Now these persons, along with the subjects of foreign exchange transactions, receive permits, and also submit notifications to the bank in the prescribed manner.
Instruction No. 15 determined the procedure for issuing permits and submitting notifications required for the purposes of currency regulation (hereinafter referred to as permission and notification, respectively). Instruction No. 514 clarifies that it does not regulate the issuance of permits for the extension of deadlines for the completion of foreign trade operations (the Instruction on the procedure for issuing permits for the extension of deadlines for the completion of foreign trade operations, approved by Resolution of the Board of the National Bank of the Republic of Belarus dated April 22, 2009 No. 52, is devoted to this issue).
Attention! Terminology has changed
If Instruction No. 15 used its own terminology, then Instruction No. 514 establishes that the term “applicant” means a subject of currency transactions or an individual who applied to the National Bank for obtaining a permit or for extending the validity period of a permit. The remaining terms used in Instruction No. 514 are used in the meanings specified in Art. 1 of the Law of the Republic of Belarus dated July 22, 2003 No. 226-Z “On Currency Regulation and Currency Control” and clause 2 of Rules No. 72.
Documents submitted to the National Bank
To obtain permits not related to the opening of accounts by residents, the applicant to the National Bank submits documents for all currency transactions in accordance with the list of documents for obtaining permission, approved by the commented resolution. This list is not exhaustive and may be expanded at the discretion of the National Bank.
For a number of foreign exchange transactions related to the movement of capital, an additional list of documents that must be submitted to the National Bank has been established.
To obtain permission to conduct a currency transaction involving the transfer of funds to a non-resident under gift agreements (including in the form of donations), follow clause 6 of Instruction No. 514.
If you need to obtain permission to open an account, which must be submitted to the National Bank by individuals and subjects of foreign exchange transactions, please refer to clause 7 of Instruction No. 514.
Review times have been reduced
The calculation of the deadlines established by Instruction No. 514 is carried out in the manner prescribed by the Civil Code of the Republic of Belarus.
The period for issuing a permit has been reduced from 15 working days to 15 calendar days. The deadline starts from the date of registration of the applicant’s written request with the National Bank. If additional information is requested, the period for issuing a permit (extending its validity period) or sending a written refusal to issue it should not exceed 10 calendar days from the date of receipt by the National Bank of all additionally requested information and documents.
Permissions must be obtained before settlements begin.
The issuance of permits is carried out by sending the applicant a written permit of any form. The permission form for opening an account is contained in Appendix 2 to Instruction No. 514.
Important! Permissions are issued before the applicant makes settlements on a currency transaction or before the implementation of another operation for which permission is sought.
What should you pay attention to? In the currency legislation of the Republic of Belarus, settlement means the fulfillment of a monetary obligation by making payments by bank transfer or in cash (clause 2 of Rules No. 72). Let’s look at what this means and what its practical significance is with an example.
Example. Permission must be obtained before repaying the loan
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* Decree of the President of the Republic of Belarus dated March 27, 2008 No. 178 “On the procedure for conducting and monitoring foreign trade operations.”
The National Bank issues such permission until a resident makes settlements with a non-resident for a given currency transaction. The moment a resident makes settlements with a non-resident is the moment a payment is made through a bank to a non-resident (clause 2 of Rules No. 72). This means that a resident can receive a loan from a non-resident, which requires permission from the National Bank, without actually permission at the time of receipt, but before making a payment to the non-resident, i.e. until the loan and interest are repaid. In other words, before making settlements with a non-resident, permission from the National Bank must be obtained.
In addition, take into account the convincing request of the National Bank, contained in letter No. 31-14/12 dated January 11, 2010, “On the application of the rules of the Rules for Conducting Currency Transactions,” that permission must be applied for before the non-resident fulfills his obligations to the resident.
Important! It is not permitted to transfer to third parties the rights (responsibilities) granted (assigned) to the applicant (to the applicant) on the basis of the issued permit.
Don't forget that the account can only be opened for 1 year
Permission to open an account is issued for a period of no more than 1 year. If it is necessary to extend the validity of the permit, you must contact the National Bank before the expiration of the issued permit.
Before the expiration date of the permit specified in the permit to open an account (in case of non-renewal of the permit or failure to receive another permit granting the right to open an account), the resident currency transaction entity is obliged to close the account. In addition, no later than 10 working days from the date of its closure, inform the National Bank about this in a free-form letter.
Termination of the permit is possible, suspension is not
Important! In Instruction No. 514 there are no grounds on which the permit may be suspended.
The new grounds for termination of a permit before the expiration of the validity period established therein are the following:
Changes in legislation regulating the procedure for carrying out currency and other transactions for which the appropriate permission has been issued;
Creating a threat of damage to the national security of the Republic of Belarus, its territorial integrity, political and economic stability (clause 17 of Instruction No. 514).
The National Bank will notify you in writing of the termination of the permit, indicating the date of termination of the permit.
The permit is terminated without sending a notice to the National Bank in the following cases:
Upon expiration of the period of validity of the permit for which it was issued;
In case of liquidation of a legal entity, termination of the activities of an individual entrepreneur, a notary operating in a notary office, a lawyer carrying out legal activities individually, or the death of an individual.
Submit the notification in a timely manner and in the form established by the Instructions № 514
Subjects of foreign exchange transactions - residents (except for banks), when conducting a foreign exchange transaction related to the movement of capital, for which a notification procedure has been established, must submit a notification to the bank in the form in accordance with Appendix 4 to Instruction No. 514. Such a notification is completed before settlements are made by subjects of foreign exchange transactions - residents for foreign exchange transactions. Notification of a foreign exchange transaction related to the movement of capital and providing for the receipt of funds into the accounts of resident foreign currency transactions entities must be submitted within 7 business days from the date of crediting funds to the accounts.
The notification may be submitted to the bank in the form of an electronic document in accordance with the legislation of the Republic of Belarus on electronic documents and electronic digital signatures.
