Текст книги "Правовая поддержка иностранных инвестиций в России"
Автор книги: авторов Коллектив
Жанры:
Ценные бумаги, инвестиции
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Текущая страница: 9 (всего у книги 17 страниц)
Одна из обязанностей работодателя, а также и иного лица, принимающего в России иностранного гражданина, – представление документов, необходимых для его регистрации по месту пребывания (подп. 3 ч. 8 ст. 18 Федерального закона «О правовом положении иностранных граждан в Российской Федерации»). Работодатель (или иное лицо, пригласившее иностранного гражданина) обязан также обеспечить регистрацию иностранного гражданина, оформить документы на право его пребывания, проживания, передвижения, изменения места жительства в РФ и т. д.
За нарушение этих обязанностей должностное лицо работодателя, обеспечивающее обслуживание иностранных граждан или выполняющее обязанности, связанные с соблюдением условий их пребывания в России, установленного порядка их регистрации, оформления документов на право пребывания в РФ, может быть привлечено к административной ответственности, которая предусматривает наложение административного штрафа в размере от 25 до 100 МРОТ (ч. 1 ст. 18.9 КоАП РФ).
Отметим некоторые практические аспекты, связанные с получением разрешения на привлечение иностранных граждан.
Разрешением на привлечение иностранных граждан устанавливаются квоты на привлечение работодателями определенного числа иностранных граждан в целом и по группам профессий.
Въезд на территорию России для трудовой деятельности происходит на основании трудовых виз. Поскольку их количество по странам определяется ежегодными квотами, утверждаемыми Правительством РФ, то и разрешение на привлечение работодателем иностранных граждан определяет количество иностранных граждан не только по группам профессий, но и по странам.
Иными словами, если работодателем было получено разрешение на привлечение двух инженеров из Великобритании, он не сможет по полученному разрешению при необходимости привлечь вместо граждан Великобритании граждан Германии.
Если в течение года работодатель решит прекратить трудовые отношения с иностранным работником, например, по причине непрохождения им испытания при приеме на работу, для найма иностранного работника по той же специальности и из той же страны ему придется заново получать разрешение.
Поэтому целесообразно при получении заключения органов занятости на привлечение иностранных работников изначально указывать большее количество работников, чем необходимо в настоящее время. На практике получение заключения Федеральной государственной службы занятости и подготовка всего пакета документов для подачи в Федеральную миграционную службу занимают около двух-трех месяцев.
За это время потребность в иностранных работниках, как правило, увеличивается. Если же количество необходимых работников останется неизменным, работодатель вправе оформить разрешение на привлечение того количества работников, которое ему необходимо.
К сожалению, какой-либо механизм, позволяющий более гибко регулировать вопросы, связанные с получением заключений о целесообразности привлечения иностранных сотрудников, действующим законодательством не предусмотрен.
ForEwOrd
One of the key factors for economic growth consists of investment coming into the country’s economy from abroad. Such investment is helping Russia consolidate its position on international markets, gain increased access to advanced technologies and create new jobs. Legal support for foreign investment is a major and important topic on which professional lawyers and economists need to focus, together with everyone else interested in the country’s economic future.
This collection of articles is devoted precisely to this subject. In Section 1, we decided to include articles giving an overview of the stages that actually make up the investment process in Russia and how long each of these stages might take. These materials are of immediate applied significance and may be of interest to readers who are dealing with the practical tasks involved in planning investment projects.
Concentrated in Section 2 are articles focusing on certain specific and quite important aspects of the given subject. This Section covers problems the lawyers of Pepeliaev, Goltsblat & Partners who wrote the articles have themselves had to resolve. In particular, of primary significance on the launching of any project is the question of acquiring (leasing) a land plot and documenting the transaction. Another subject of major importance, as a result of the growth in the number of transactions associated with Mergers & Acquisitions, is that of preliminary legal checks performed when a company is purchased – Due Diligence.
A special place belongs to the articles on various aspects of taxation of activities connected with foreign investment.
In our opinion, the articles covering engagement of foreign citizens to work in the Russian Federation, customs concessions, price formation and legal regulation of the activities of an investor that finds itself in a dominant position on the Russian market might be of considerable interest to the reader.
As noted above, the content of the articles reflects the many years of practical experience gained by the law firm Pepeliaev, Goltsblat & Partners. It should be noted that the structure of the services we offer is moving increasingly towards legal support for major investment projects, whether they involve construction of a factory or purchase of a business. More and more foreign companies are launching and expanding production in Russia. One new and very promising legal services sphere consists of M&A transactions (mergers and acquisitions). Pepeliaev, Goltsblat & Partners offers a full range of the necessary services – from creation of a corporate structure and resolving problems associated with financing operations to closing the deal. Support for construction of major industrial production facilities in Russia is in great demand. Such support is of considerable scope, including selection and completion of other legal formalities regarding the land plot, the construction contract and assistance to the client in commissioning the facility. We have accumulated rich and diverse experience in this sphere and we would like to share it.
We hope that the material provided in our collection of articles will be of interest to a broad readership.
A. Goltsblat, JD, Managing Partner Pepeliaev, Goltsblat & Partners
Section I
Planning the stages of an investment project
А. Goltsblat, Managing Partner Pepeliaev, Goltsblat & Partners
Implementing an Investment Project in Russia
Investment Project StagesLet us examine the stages in an investment project for constructing/reconstructing production facilities in the Moscow Region, with a preliminary project plan serving as an example (see the table below).
Thus, implementation of the investment project plan takes from 20 to 30 months.
Profit-making organisations can lease sites for construction purposes subject to prior consent for the location of the facilities to be constructed. No prior consent is required if a facility is located in a city, town or rural community in accordance with town-planning documentation on land development and the rules for land use and development.
Sites may only be acquired for construction purposes without prior consent for the location of the facilities to be constructed by tender or auction. If only one tender application is filed, a site may be leased out without a tender being held, provided an announcement is published well in advance concerning the availability of sites offered for such lease.
Restrictions on land ownership by foreign entitiesThe Russian legislation provides a special regulatory framework for land ownership by foreign individuals, foreign legal entities and stateless persons. They are subject to a number of restrictions.
Rights to land must be paid for by such parties and under no circumstances may these rights be transferred to them free of charge. (clause 5, art. 28 of the Russian Land Code) (unlike Russian partnerships of homeowners and individuals, who may, in certain cases, acquire such rights gratuitously).
Foreign legal entities, foreign individuals and stateless persons are not allowed to own land in border areas (the list of which must be set up by a decree of the Russian President) and in other areas designated by federal law (art. 15 of the Russian Land Code).
Agricultural land may be allocated to such parties and to Russian companies with a foreign ownership interest of more than 50 % only under a lease.
Corporate law aspects of investment projectsImplementation of an investment project normally requires some kind of corporate structure and registration of a Russian legal entity.
If a foreign legal entity creates a wholly-owned company in Russia either directly or through a group of entities, the most acceptable legal form for such a company is a limited liability company (OOO). This form makes it possible to increase the capital quite promptly (while with a closed joint-stock company (ZAO), the issue of shares must be registered and the issuer will incur the liability to pay securities trading tax in the event of any additional issue, with the exception of the initial one, at the time when the company is established). It is significantly easier to administer an OOO than a ZAO. There is no “supervisory” body, such as the Federal Commission for the Securities Market, for the activities of an OOO (with the exception of cases when an OOO takes a decision to issue bonds), as there is for a ZAO.
When establishing a joint venture, the choice of form may depend on the proposed ownership interest of a particular investor and also on the discretionary provisions of the legislation concerning decision-taking procedures to be included in the constituent documents. Another argument in favour of an OOO is the possibility of any of its participants seceding from the company at any time. In this case, the actual value of the participant’s ownership interest must be paid to the participant within the first six months of the year following that in which the application for secession is filed. The actual value of the ownership interest is determined as of the end of the financial year in which the secession application is submitted.
In addition to the choice of legal form, establishment of branches and representative offices is of great importance. The regional authorities might insist that a new legal entity be set up in the region where the investment project is being implemented, while the investor already has a legal entity in another region. In the opinion of the former, this would increase the tax revenues of the region, which is not, in fact, true.
From a tax perspective, since a holding company is not allowed to make consolidated tax payments, it is more advantageous to open a branch. It is also possible to open a representative office or a detached subdivision. A branch, however, ensures more efficient customs clearance in this region and does not affect regional tax revenues.
Customs and tax benefits on investmentsThe Russian legislation offers virtually no significant tax benefits on investments. Even those offered previously have now been suspended. Investment allowances may be obtained only from the authorities of constituent entities of the Russian Federation and local governments.
Goods imported by foreign investors as a contribution to the authorised capital of companies with foreign participation are exempt from import duties, provided these goods:
• are not excisable;
• are categorised as fixed assets;
• are imported within the time limits prescribed the company’s constituent documents for building up its authorised capital.
The list of excisable goods can be found in Part Two of the Russian Tax Code.
The goods must be classed as fixed assts. When tools and equipment are categorised as non-current (fixed) assets, the service life criterion is applied. The value criterion is not applied here, so it does not matter how the foreign investor evaluates the goods imported as an authorised capital contribution.
The goods must be imported within the time limits prescribed by the constituent documents for building up authorised capital. Tariff benefits are granted only if the goods have been declared as being imported as a foreign investor’s contribution to the authorised capital of an organisation with foreign participation prior to expiry of the deadline for building up authorised capital, as set by the constituent documents or the Russian legislation.
A benefit may be granted in the form of an exemption from customs duties or a refund (off-set) of customs duties paid previously. Everything depends on the list of imported equipment. If it is known, an exemption will be granted. Under certain circumstances, however, this procedure might prove difficult, since a classification decision by the State Customs Committee of the Russian Federation is required.
Under art. 150 of the Russian Tax Code, manufacturing equipment, its components and spare parts imported into Russia as an authorised capital contribution are exempt from VAT.
V. Mozharowski, Partner Pepeliaev, Goltsblat & Partners
Investment in construction: participants and the key stages
Construction remains one of the leading branches of the Russian economy. Investment in the construction business indubitably constitutes a major factor promoting economic growth. I believe it would be a good idea to consider the legal aspect of what might be called the subjective composition of investment in construction. This basically means the fundamental concepts and legal framework on which someone intending to invest considerable funds in construction should rely. The success of the entire investment project depends on how clearly the investor perceives the distribution of funds right at the design stage of a real estate facility.
So let us consider the legal position of the participants in construction of real estate facilities using the example of the Moscow Region.
Relations involved in the designing, construction and commissioning of real estate facilities are currently regulated by several regulatory and legal acts that are often mutually contradictory. In particular, this applies to the new Town-Planning Code of the Russian Federation, the Federal Law of 25 February 1999 “On Investment Activities in the Russian Federation Implemented in the Form of Capital Investment”, the law on licensing and regulatory and legal acts of the Moscow Region.
Analysis of the legislation helps identify the following main areas of the design and construction process with respect to real estate facilities:
The developer (investor) is an individual or a legal entity that provides for the construction, reconstruction and repair of construction facilities, as well as performance of engineering surveys and elaboration of design documentation for construction, reconstruction or repairs, on a land plot belonging to it. The developer (investor), as a rule, becomes the owner of the real estate facility once it is completed;
The customer (construction manager) is a legal entity (or individual entrepreneur) that, under a contract with the developer (investor), provides for the design and construction of a real estate facility. There are two reasons explaining the need for participation by the customer (construction manager):
the customer (construction manager), in contrast to the developer (investor), possesses professional skills and meets the requirements imposed by the legislation;
to perform the functions of the customer (construction manager), a construction licence is required, while the developer (investor) does not usually possess such a licence.
The contract between the developer (investor) and the customer (construction manager) envisages the latter assuming obligations to obtain and register benchmark data for designing the construction facility, to draw up the initial permission documentation for construction, to conclude a construction contract and so on.
The contract may also envisage various forms of control by the developer (investor) over the activities of the customer (construction manager). In particular, the developer (investor) is entitled to engage a third party (engineer) to control and supervise fulfilment by the customer (construction manager) of its contractual obligations. In addition, the engineer may also fulfil the function of monitoring the activities of the general contractor (corresponding terms should be included in the contract between the customer (construction manager) and the general contractor);
The design engineer is a legal entity (or individual entrepreneur) that, under a contract with the developer (investor) or the customer (construction manager), develops the project for a real estate facility. The design engineer must have a licence to design buildings and structures.
The design engineer has the right to engage other entities (subcontractors) to perform individual jobs envisaged by the contract to perform the design work (such as engineering surveys).
On agreement with the developer (investor) or the customer (construction manager), the design engineer has the right to exercise field supervision over construction of a real estate facility;
The general contractor is a legal entity (or individual entrepreneur) that, under a contract with the customer (construction manager), carries out the construction of the real estate facility. The general contractor requires a licence to construct buildings and structures.
The general contractor has the right to engage other persons (subcontractors) to perform individual jobs envisaged by the contract to carry out the construction work.
Key stages in investment in construction
The material offered to the reader is presented in consideration of the specific rules and regulations of the Moscow Region. In general, however, the set of stages presented, consisting of drawing up the pre-design and design documents, construction and start-up of a real estate facility, is a universal one and may be implemented in any constituent entity of the Russian Federation.
Preparation of initial permission documentsInitial permission documents (IPD) are prepared in order to determine whether it is possible, in principle, to locate a construction facility on the land plot. The specific IPD depend on the existence or absence of approved town-planning documentation. As a rule, the results of this stage are:
• a town-planning opinion, to which a location plan of the facility on a scale of 1: 10 000 and a location plan of the facility on a scale of 1: 2000, with planning restrictions, the boundaries of the land plot and the design proposals for development of territories adjacent to the plot should be attached.
• a draft resolution of the head of the relevant district agreeing to location of the facility and permitting the performance of design and surveying work.
Legal basis: section 3 TSN PPS-99 МО “Rules for pre-design and design preparation for construction in the Moscow Region”.
Sanitary and epidemiological opinion on observance of sanitary rules and regulations in selecting a land plot for construction of a facilityThe provision of land plots for construction of facilities is permitted given a sanitary and epidemiological opinion from the state sanitary and epidemiological inspectorates to the effect that such facilities comply with the sanitary regulations.
Legal basis: article 12 of Federal Law No. 52-FZ of 30 March 1999 “On the Sanitary and Epidemiological Welfare of the Population”; Resolutions of the Chief Sanitary Inspector of the RF No. 88 of 30 April 2003; No. 34 of 8 April 2003; No. 38 of 10 April 2003.
State Environmental Examination of the facility’s locationIn accordance with the legislation, places where buildings, structures and other facilities are to be located are selected in observance of the requirements of the legislation, given a positive state environmental examination opinion. State Environmental Examination of the proposed location of a facility is performed by an expert examination commission, set up by the Federal Service for environmental, technical and nuclear supervision (its territorial authority). The customer for the examination is recognised as the entity planning to construct the facility on the given land plot.
In order for an expert examination to be carried out, the following must be submitted to the given authority:
• materials of the environmental impact assessment (EIA)[35]35
Submitted in both hard copy and electronic form.
[Закрыть];
• discussion of construction of the facility at public hearings (with local residents and public organisations). The requirement to inform the population about the holding of an assessment of a planned construction project is, under the law, the responsibility of the customer for the expert examination. It should be remembered that the relevant announcement should be placed in the official publications of both the state authorities of the given constituent entity of the Russian Federation and the local government. The announcement should also contain information about the time and place the public hearings are to be held. It is the customer for the expert examination and the local government that are responsible for organising the public hearings;
• documents on preliminary agreement of the location of the facility:
– certificate of land plot selection;
– draft boundaries of the land plot (situation plan);
– report by the water supply authorities (if the facility is to be located in a water-protection or sanitary zone, etc.);
– report by the regional sanitary inspectorate on the choice of land plot;
– statement of vegetation inspection and tally sheet (drawn up by local environmental officials or representatives of the forest services);
– conclusion of FGUP Geotsentr on the absence of minerals under the land plot;
– conclusion of the local architecture and town-planning authority;
– certificate on absence of cultural values on the land plot from the Ministry of Culture (regional Department of Culture);
– report of the environmental analysis service (prepared on the basis of the listed documents).
Legal basis: clause 2, article 35 of Federal Law No. 7-FZ of 10 January 2002 “On Environmental Protection”; Federal Law No. 174-FZ of 23 November 1995 “On Environmental Examination”, Regulation on assessment of the impact of a planned economic or other activity on the environment in the Russian Federation (Appendix to Order of State Environmental Committee of Russia (Goskomekologia) No. 372 of 16 May 2000).
