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Зона особого контроля - Наталья Ульянова для Kyiv post


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С 1 января 2017 года в Украине вступают в силу положения плана #BEPS по борьбе с налоговыми злоупотреблениями, разработанные Организацией экономического сотрудничества и развития (ОЭСР).
А это значит, что мировые налоговые тренды приходят в украинское законодательство. Как это отразиться на ведении бизнеса? Насколько положения плана BEPS повлияют на взаимодействие украинских компаний с банками?
Ответы на эти и другие вопросы вы найдете в авторской статье Natalya Ulyanova специально для

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Зона особого контроля - Наталья Ульянова для Kyiv post

  1. 1. Ukrainian banking crisis by Lstimated assets of i|solvert ba1(s, $ the numbers u iu' 2414 :N" 5 ?416 The number of insolvent banks has risen to 86 in the last three years, leaving Ukraine with less than 100 banks..(Sources: Na- iional Bank of Ukraine, Deposit Guarantee Fund) fund steps in as a temporary administrator, the evidence is tlpical- ly gone. Following pressure from the International Monetary Fund, changes to legislation in 2015 gave the fund more freedom to file cMI lawsuits. However, Olenchyk said that the amendments were minor and did not address key problems, such as alleviating the fund's respon- sibility to prove the bank shareholders' guilt. Furthermore, from September 2015, new fees were introduced that would see the fund charged up to 1.5 percent of the claimed amount for every civil lawsuit it filed. A fund spokesperson told the Kyiv Post the money for the court charges would be taken from the liquidated bank assets, which is used to satisfy claims of creditors of the banks. oienchyk said the fund tried to address the issue with the Ministry of Finance but it fell on deaf ears. He said the fund was however open to assistance and advice on filing civil lawsuits. Furthermore, he said the fund was going to be working with in- ternational companies to assist them with insolvent bank proiects. Daria Kaleniuk, executive director at the Anti-Corruption Action Centre, said civil claims were the only feasible solution for Ukraine considering there is no will to pursue criminal cases. "I think civil cases, especially targeting beneflcial owners inter- nationally and their assets intemationally, this is the way moving forward. Even if we hire private flrms and they can work for a possi- ble percentage ofrecovery... ifwe identify 100 percent but recover 40 or 60, it's already more than zero," she said. She said it was also important to address the issues in the law, which were hindering the Deposit Guarantee Fund from pursuing further civil claims. "There should be no fees in the percentage ofthe possible claim ...for the Deposit Guarantee Fund to start the civil claim," she said. "The law also says that first you have to calculate the amount of debt and amount of remaining assets to be sold, but first we have to wait for the assets to be sold, which could be years. It postpones the moment when the action could be started significantly." r IKYIV POST LEGAL QUARTERLY] fO4l2016 23 BUSINESS ADVIsER AdvertLsement Special Control Area The fight against capital outflows is an Natalya Ulyanova inevitabte process with more and more Managing paftnelt countries, whose governments are go- ICF Legal Service ing along the road of de-offshorisation of their domestic economies, getting in- votved. The so called Base Erosion and Profit ShiftingAction Ptan (BEPS) initiated by the Organisation for Economic Co-operation and Devetopment (OECD) and aimed at suppressing taxation base erosion a nd profit shifti ng is one of such toots. Currently, there are atready over 20 countries, with the overwhetming majority of them being members ofthe European Union, which have amended their national legistation to adopt the BEPS Action Ptan. Besides, about 30 countries have signed multilateral treaties to exchange tax and financiaI information. Ukraine will begin implementing the provisions of the BEPS Action Plan in 2017 as wett. What is meant here is the fight against abusive taxation practices, which in- votves apptication of speciaI tax regulations and tax conventions, the disclosure of schemes which businesses use to ease the tax burden, as wetI as the efficient a pplica- tion of double tax treaties. Though these are onty the basic requirements, the fact of joining the BEPS Action Ptan suggests by itseLf that the world tax trends are entering Ukrainian [egislation. Witl it affect Ukrainian businesses? Of course, it wilt. And along with the review of the approaches to structuring their operations and choosing partners, companies witl have to rebuild their interactions with banks. But the reason is not only that the reliabitity ofthe Ukrainian banki ng system has been in the risk zone for severaI recent years and one shoutd apply speciat care to choose financial institutions. In their turn, banks are strengthening monitoring of customers' activities. lt is not least because since Juty 1, 2014, banks have had to meet the requirements of the Foreign Account Tax Comptiance Act (FATCA), which was adopted in the USA. The act obliges att financiaI institutions to automaticatly disclose information about ac- counts ofAmerican taxpayers and companies incorporated outside the USA' And the fines for non-compliance with the FATCA requirements are applied against banks re- gardless of their jurisdiction. l4oreover, it is since 2013 that the Common Reporting Standard (CRS) devetoped as the OECD initiative has been implemented, which suggests annuatautomatic ex- change of information between governments. Banks reporting both individuals' and companies' accounts are also covered by this exchange. As a result. Ukrainian comDanies face problems with their cross-border transac- tions, as banks see them as having signs of "suspicious transactions", block them pending ctarification, and demand extended documentaryjustifications. lt is espe- cialty related to payments in dotlars. Another atarming trend is tightening conditions of foreign currency payments in Eu ropean ban ks which, u ntiI q uite recentty, authorised tra nsactions without any mis- givings, sometimes even not requesting a futl package oftransactionaL documents. Currently, corresPondent banks refuse to sort out numerous susPicious transac- tions oftheir customers and become subjecG ofthe regulator's fines. Therefore, all payments, both incoming and outgoing, are checked by banks' internal monitoring functions. lt can often result in freezing or even closing an account. l4oreover, when working with banks, not everything may depend on a customer only. For examole. there are certain nuances when we sDeak of a transaction between a Ukrai- nian and a foreign bank. The National Bank of Uknine issued the list offoreign banks (including European ones), "whose operations may be associated with conducting risky operations". But after receiving this [ist, a lot of Ukrainian banks perceived it as a guide to action and started blocking transactions, without even labouring their points Therefore, businesses have to take their own control over the situation. First, they should think over the proper cash flow scheme. In order to do this, you should be aware of peculiarities oftransactions with your current bank and the bank where your partner's account is opened. Second, you should prepare all documents before the transaction; otherwise it witl take a lot of time to collect documents to confirm the transaction, and the account witl be btocked during atl this time. Third, it is very imPoftant to estabtish communication with the bank. Fourth, you shoutd probably consider risk hedge. As a matter of fact, it is atways oPtimal for a customer to go to the bank with the support of a quatified partner who wiLl not only help to choose a financial institution, but will also conduct successful negotiations with the bank at atl stages, prepare all the documents and provide minimisation of risk duringthe transactional process. Afterall, bankswould rather abandon a customer and their profit, as transparency plays a great role there. Therefore, the knowtedge of hidden agendas and the ability to evade them are the guar- antees that your business wiLL be successful. ICF Legal Service 1 0 Muzeyniy lane, 1 st floor, office 1 01 -1 03 Kyiv 01001, Ukraine;,