Include in the Federal Law of April 5, 2013 N 44-FZ "On contract system in the field of procurement of goods, works, services to meet state and municipal needs" (Collection of Legislation Russian Federation, 2013, N 14, art. 1652; No. 27, art. 3480; No. 52, art. 6961; 2014, N 23, art. 2925; No. 30, art. 4225; No. 48, Art. 6637; No. 49, Art. 6925; 2015, N 1, art. 11, 51, 72; No. 10, Art. 1418; No. 14, Art. 2022; Official Internet portal legal information(www.pravo.gov.ru), June 30, 2015, N 00012015063000082; July 1, 2015, N 0001201507010036) the following changes:
1) Paragraph 4 of Article 3 after the words "origin of capital" shall be supplemented with the words ", except legal entity, the place of registration of which is the state or territory included in the approved in accordance with subparagraph 1 of paragraph 3 of Article 284 tax code of the Russian Federation, a list of states and territories providing preferential tax regime taxation and (or) not providing for the disclosure and provision of information when conducting financial transactions (offshore zones) in relation to legal entities (hereinafter referred to as an offshore company),";
2) in Article 14:
a) in Part 4, the words "a ban, restrictions have been established" shall be replaced by the words "a ban has been established";
b) add part 6 of the following content:
"6. Regulatory legal acts provided for by parts 3 and 4 of this article and establishing restrictions, conditions for the admission of goods originating from foreign states, works, services, respectively, performed, provided by foreign persons, for the purposes of procurement, cases may be determined in which the customer in the performance of the contract, is not entitled to allow the replacement of goods or the country (countries) of origin of goods in accordance with paragraph 7 of Article 95 of this federal law.";
3) in Article 31:
a) Part 1 shall be supplemented with paragraph 10 of the following content:
"10) the procurement participant is not an offshore company.";
b) part 8 shall be stated in the following wording:
"8. The Procurement Commission shall verify the compliance of procurement participants with the requirements specified in paragraph 1, paragraph 10 (except for cases of electronic auction, request for quotations and pre-selection) of part 1 and part 1.1 (if there is such a requirement) of this article, and with respect to certain types procurement of goods, works, services to the requirements established in accordance with parts 2 and 2.1 of this article, if such requirements are established by the Government of the Russian Federation. The procurement commission has the right to check the compliance of procurement participants with the requirements specified in clauses 3-5, 7-9 of part 1 of this article, as well as during an electronic auction, request for quotations and preliminary selection with the requirement specified in clause 10 of part 1 of this article. The Procurement Commission is not entitled to impose on the procurement participants the obligation to confirm compliance with the specified requirements, except in cases where the specified requirements are established by the Government of the Russian Federation in accordance with Parts 2 and 2.1 of this Article.";
d) add part 8.2 with the following content:
"8.2. The customer checks the compliance of the participant in the request for quotations, with whom the contract is concluded, with the requirement specified in paragraph 10 of part 1 of this article, when concluding the contract.";
4) in part 15 of Article 34 the words "40 and 41" shall be replaced by the words "40, 41, 44 and 45";
(see text in previous edition)
6) Article 73 shall be supplemented with part 3.1 of the following content:
"3.1. A participant in the request for quotations that submitted an application for participation in the request for quotations is considered to have provided the customer with information on its compliance with the requirement specified in clause 10 of part 1 of Article 31 of this Federal Law.";
7) Part 11 of Article 78 after the words "signed contract" shall be supplemented with the words "and an extract from the unified state register of legal entities or a notarized copy of such an extract (for a legal entity), which were received not earlier than six months before the date of placement in the unified information system notice of the request for quotations, duly certified translation into Russian of documents on state registration of a legal entity in accordance with the legislation of the relevant state (for foreign person)";
8) Article 80 shall be supplemented with part 5.1 of the following content:
"5.1. A participant in the preliminary selection who has submitted an application for participation in the preliminary selection is considered to have provided the customer with information on its compliance with the requirement specified in clause 10 of part 1 of Article 31 of this Federal Law.";
9) in Article 93:
a) in part 1:
Supplement paragraph 44 with the following content:
"44) purchase by state and municipal libraries, organizations that carry out educational activities, state and municipal scientific organizations of services for granting the right to access information contained in documentary, documentographic, abstract, full-text foreign databases and specialized databases of international science citation indices from the operators of these databases included in the list approved by the Government of the Russian Federation; ";
Supplement paragraph 45 with the following content:
"45) the purchase by state and municipal libraries, organizations engaged in educational activities, state and municipal scientific organizations of services for granting the right to access information contained in documentary, documentographic, abstract, full-text foreign databases and specialized databases of international scientific citation indices from national libraries and federal libraries with a scientific specialization, while the price of such a contract concluded with sole supplier(contractor, executor), is determined in accordance with the procedure established by the Government of the Russian Federation.";
July news: On July 13, 2015, the President of the Russian Federation signed Federal Law No. 227-FZ dated July 13, 2015 “On Amendments to the Federal Law “On the Contract System for Procuring Goods, Works, and Services for State and Municipal Needs”. The said Federal Law No. 227-FZ dated July 13, 2015 comes into force August 13, 2015.
This Law was prepared in pursuance of subparagraph 31 of paragraph 1 of the list of instructions of the President of the Russian Federation dated December 27, 2013 No. Pr-3086 on the implementation of the Message of the President of the Russian Federation to the Federal Assembly of the Russian Federation dated December 12, 2013 and provides for the establishment of a ban on the procurement of goods, works, services to meet state and municipal needs from suppliers (contractors, performers) that are offshore companies.
So, since the introduction of amendments to Law No. 44-FZ procurement participant can be any legal entity, regardless of its organizational and legal form, form of ownership, location and place of origin of capital, with the exception of a legal entity whose place of registration is a state or territory included in the list of states and territories approved in accordance with subparagraph 1 of paragraph 3 of Article 284 of the Tax Code of the Russian Federation that provide a preferential tax regime for taxation and (or) do not provide for the disclosure and provision of information when conducting financial transactions (offshore zones) in relation to legal entities (hereinafter referred to as the offshore company), or any natural person, including those registered as individual entrepreneur.
Thus, this law introduces a ban on participation in procurement of legal entities registered in an offshore zone. The states or territories belonging to such zones are included in the list approved in accordance with subparagraph 1 of paragraph 3 of Article 284 of the Tax Code of the Russian Federation. The above list was approved by the Order of the Ministry of Finance of Russia dated November 13, 2007 No. 108n (as amended on October 2, 2014) "On approval of the List of states and territories that provide a preferential tax regime for taxation and (or) do not provide for the disclosure and provision of information when conducting financial transactions ( offshore zones). This list of offshore companies includes, for example, Bermuda, the Principality of Liechtenstein, the United Arab Emirates, the Seychelles and others. Previously excluded from the list (not offshore): the Republic of Cyprus (since 01/01/2013) and the Republic of Malta (since 01/01/2015).
In addition, from the date of entry into force of these changes, the operator of the electronic site will be obliged to terminate the accreditation of offshore companies, as well as blocking Money submitted by such a participant as security for an application for participation in an electronic auction. Therefore, from the moment the law enters into force (August 13, 2015), offshore companies will not be able to participate in electronic auctions, even if the notice of its holding is posted before this date.
The obligation to check whether the procurement participant is an offshore company rests with the procurement commission. The Procurement Commission is not entitled to impose on the procurement participants the obligation to confirm compliance with the specified requirements, except in cases where the specified requirements are established by the Government of the Russian Federation.
At the same time, the issue of admitting offshore companies to non-electronic procurement (for example, a tender), notifications (documentation) of which were posted before August 13, remains unresolved.
Earlier in the draft law (No. 694992-6), the legislator indicated that amended provisions of Law No. 44-FZapply to relationships related to the procurement of goods, works, services to meet state or municipal needs, notices on the implementation of which are posted in a single information system or prior to the commissioning of the said system on the official website of the Russian Federation in the information and telecommunications network "Internet" to post information on placing orders for the supply of goods, performance of work, provision of services or invitations to participate in which are sent after the date of entry into force of this Federal Law.
Apparently, the legislator, before the entry into force of Law No. 227-FZ, must eliminate this gap in order to properly apply and interpret the innovations.
In conclusion, I would like to note that Law No. 227-FZ is aimed more at supporting domestic producers and stimulating import substitution, as well as at implementing the tasks of deoffshorization of the Russian economy, in particular, on “closing offshore companies access to government contracts and contracts of structures with state participation”, as President of Russia Vladimir Putin spoke in his message to the Federal Assembly.
Klimova Olga - Leading Legal Counsel of Alta Via
In modern market conditions, concepts such as offshore zones and offshore companies have become quite stable. In the media, you can see a lot of ads that offer services for registering a company in a tax-free territory or opening an account in some major bank in the world.
Definition
Offshore companies are legal entities registered in a jurisdiction where there is no currency control and preferential taxation is applied. These organizations do not operate in the territory where they are registered. The owners of such firms are non-residents of the country. Such organizations arise in those countries whose legislation completely or partially exempts enterprises that do not do business in the territory of registration from taxation. It should be noted that benefits are valid only for work outside the country where the company is registered. To conduct a full-fledged business in any other state, it is necessary to conclude an appropriate agreement. This avoids
Offshore companies: 44 FZ
On August 13, 2015, Law No. 227 entered into force. It introduced a number of amendments to the regulatory act regulating procurement for the provision of municipal and state needs. From this moment, customers in the documentation set mandatory requirement to the participants that they do not act as offshore companies. This provision, however, does not apply to requests for quotations, electronic auctions and pre-selection. In the first and last cases, control over the implementation of amendments to the Law is carried out at the conclusion of the contract. With an electronic auction, the platform operator will refuse to register if offshore companies submit an application. 44 of the Federal Law in all other cases obliges the commission of the customer to establish the nature of the registration of the participant. However, it does not have the right to require the organization submitting the application to confirm the fact that it is not an offshore company.
Specificity
According to the provisions international law, offshore companies are independent organizations that carry out their activities under the laws of the countries in which they are registered. Today there are about 60 states in the world, regulations which provide preferential taxation. Enterprises registered in such countries can open unlimited accounts in any major banks. In fact, the activities of such organizations are not accountable to anyone. In almost all "tax-free" countries, the annual reporting consists in the transfer of a fixed fee.
Purpose
There are several reasons why businessmen open offshore companies. It:
- Safe. Suppose an entrepreneur has some funds in stock that he wants to put in a safe place. At the same time, he would like to have immediate access to them, freely dispose of his money and move it around the world. In addition, a businessman seeks to get away from political instability in his country, to ease his burden of taxation. To solve all these problems, you need to find a bank in a reliable state. But to open a private account in a foreign financial organization he will not be able to, because this requires a license from the Russian Federation. In addition, there is a possibility of disclosure of his data. In particular, in the payment documents in the field "Recipient" his name will be indicated or the credit card will indicate the presence of an account abroad. However, the legislation does not prohibit opening an enterprise in one's own name and registering it in a "tax-free country". The businessman will be a director and manage the company's account. And no one will know that he is the owner.
- Business member. When conducting, it is necessary to optimize taxes, speed up the simplification of document flow, and also protect yourself from fiscal services. Offshore companies are a business model that allows you to get rid of many problems. Such organizations act as intermediaries between the local enterprise and the buyer (seller) in the conduct of foreign economic activity.
- Market Participant valuable papers. In this case, the offshore company opens a special account in a domestic bank and works with
- OS sale. When importing, for example, a line for bottling drinks, you can not pay VAT and customs duty. When opening an offshore company, fixed assets are contributed as an authorized fund. It is also possible to lease equipment for a domestic enterprise, transfer interest on it abroad, and include payments in expenses.
Domestic practice
Russian offshore companies are of particular value. It lies in the fact that it becomes possible to legally freely move capital. In a difficult situation that can destroy entire sectors of the economy, it is the offshore scheme that allows you to achieve high profit in business. The need to create such an organization arises, as a rule, among those entrepreneurs who receive good income and want it to stay that way and not change in the event of market instability or government intervention. It should be said that the use of offshore companies is widespread throughout the world. However, the goals of creating such organizations are different. As for Russia, here entrepreneurs, as mentioned above, are trying to protect their capital from taxes, inefficient unfavorable investment situation in the country and high risks. This is the main motivation for exporting money masses abroad and concealing the fact of owning an object on the territory of the state.
How to check if a company is offshore?
This can be done in two ways: on your own or seek help from specialists. How to confirm that the company is not offshore, yourself? For this you need:
- Examine all published information about the company of interest.
- Send inquiries to various government agencies.
However, this process will take quite a long time. In addition, there are absolutely no guarantees that all requests will be answered, and some facts can be found out only if you have the right connections.
Help firms
As for specialists, many of those who offer such assistance have been searching for information for a long time. This means that they have the necessary connections, experience and knowledge. These companies may provide information about:
- The size of the authorized capital of the company of interest.
- Profitability.
- Reliability.
- liquidity.
- Accounting balance sheet.
- Relationships with other companies.
- Guide.
- Activity history and so on.
Conclusion
The reliability of the information, of course, will depend directly on the performer himself. But, as practice shows, in 90% of cases the information provided by such specialized firms is worth believing. It should be said that an independent search for information, as a rule, leads to nothing or interested party receives only superficial, non-essential information. In order not to waste time, it is better to pay specialists who will provide answers to all questions.
When providing 2 parts by email. the winner submitted a declaration of compliance of the participant with the requirements of part 1 of article 31 of 44-FZ, which does NOT contain the following points: 7.1) a procurement participant is a legal entity that has not been held administratively liable for committing an administrative offense under Article 19.28 of the Code of the Russian Federation on administrative offenses; 10) the procurement participant is not an offshore company. Should we reject this participant?
Answer
Konstantin Edelev, expert of the State Order System
From August 14, 2019, the procedure for calculating fines under 44-FZ was changed: the requirement for a fixed amount was removed, and the penalty for SMP and SONO was reduced. In the article you will find all the current rules. Working with a penalty will be simplified by examples of wording and judicial practice.
Based on the literal interpretation of the provisions of paragraph 7.1 of Part 1 of Art. 31 of Law No. 44-FZ, this requirement applies only to legal entities. Accordingly, individuals or individuals without the formation of a legal entity do not need to declare information on compliance with the requirements for procurement participants, which are provided for in paragraph 7.1 of Part 1 of Art. 31 of Law No. 44-FZ.
At the same time, if the procurement participant is a legal entity and when declaring its compliance with the requirements established by paragraphs 3 - 9 of part 1 of Article 31 of Law No. 44-FZ, it is not indicated that it complies with paragraph 7.1 of part 1 of Art. 31 of Law No. 44-FZ, then an application for participation in an electronic auction is recognized as not meeting the requirements established by the documentation for such an auction on the basis of clause 1, part 6, art. 69 of Law No. 44-FZ.
The participant of the electronic auction does not need to declare that he is not an offshore company. However, if the customer becomes aware that the participant is an offshore company, the commission has the right to remove him from the auction at any time. This is stated in part 9 of article 31 of Law No. 44-FZ.
Should the auction participant in the second part of the application provide a declaration that it is not an offshore company?
No, it shouldn't. However, if the customer becomes aware that the participant is an offshore company, the commission has the right to remove him from the auction at any time. This is stated in part 9 of article 31 of Law No. 44-FZ.
The ban on participation in procurement by offshore companies is established by clause 10 of part 1 of Article 31 of Law No. 44-FZ.
Participant of the electronic auction - offshore company
According to paragraph 6, part 5, Art. 63 of the Federal Law of April 5, 2013 No. 44-FZ "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs" (hereinafter - Law No. 44-FZ), the notice of an electronic auction establishes requirements, presented to the participants of such an auction, and an exhaustive list of documents that must be submitted by the participants of such an auction in accordance with clause 1, part 1, part 2 and part 2.1 (if there are such requirements) of Art. 31 of Law No. 44-FZ, as well as the requirement for participants in such an auction in accordance with Part 1.1 (if there is such a requirement) Art. 31 of Law No. 44-FZ.
In accordance with paragraph 10 of part 1 of Art. 31 of Law No. 44-FZ, the notice establishes the requirement that the procurement participant is not an offshore company.
In turn, in accordance with paragraph 2 of part 5 of Art. 66 of Law No. 44-FZ, the second part of the application for participation in an electronic auction must contain documents confirming the compliance of a participant in such an auction with the requirements established by clause 1, part 1, part 2, and part 2.1 of Art. 31 (if there are such requirements) of Law No. 44-FZ, or copies of these documents, as well as a declaration of compliance of a participant in such an auction with the requirements established by paragraphs. 3 - 9 h. 1 tbsp. 31 of Law No. 44-FZ.
That is, the participant of the electronic auction does not declare that he is not an offshore company.
Also in accordance with Part 8 of Art. 31 of Law No. 44-FZ, the auction commission is not obliged, but only has the right to check the participant of the electronic auction for compliance with the requirement established in accordance with paragraph 10 of part 1 of Art. 31 of Law No. 44-FZ, since such an obligation lies with the operator of the electronic site (part 8.1 of article 31 of Law No. 44-FZ).
But since the auction commission has the right to check the participant of the electronic auction for compliance with the requirement established in accordance with paragraph 10 of part 1 of Art. 31 of Law No. 44-FZ, then we inform you how to do this.
According to paragraph 1 of Art. 1 of Law No. 227-FZ, an offshore company is a legal entity whose place of registration is the state or territory included in the one approved in accordance with paragraphs. 1 p. 3 art. 284 of the Tax Code of the Russian Federation, a list of states and territories that provide a preferential tax regime for taxation and (or) do not provide for the disclosure and provision of information when conducting financial transactions (offshore zones) in relation to legal entities.
According to paragraphs. 1 p. 3 art. 284 of the Tax Code of the Russian Federation, the following tax rates apply to the tax base determined by income received in the form of dividends:
- 0 percent - on income received Russian organizations in the form of dividends, provided that on the date of the decision on the payment of dividends, the organization receiving dividends for at least 365 calendar days continuously owns at least 50% of the contribution (shares) in the authorized (share) capital (fund) of the organization paying dividends or depositary receipts giving the right to receive dividends, in an amount corresponding to at least 50% of the total amount of dividends paid by the organization .
In this case, if the organization paying dividends is foreign, the tax rate established by this subparagraph shall be applied to organizations whose state of permanent location is not included in the list of states and territories approved by the Ministry of Finance of the Russian Federation that provide a preferential tax regime for taxation and (or) do not provide for disclosure and provision of information in the course of financial transactions (offshore zones).
So the list of states and territories that provide a preferential tax regime for taxation and (or) do not provide for the disclosure and provision of information when conducting financial transactions (offshore zones) (hereinafter referred to as the List) was approved by order of the Ministry of Finance of Russia dated November 13, 2007 No. 108n.
So the List includes, for example, the following offshore zones:
- Anguilla;
- Principality of Andorra;
- Antigua and Barbuda;
- Aruba;
- Commonwealth of the Bahamas;
- Kingdom of Bahrain;
- Belize;
- Bermuda, etc.
The auction commission considers the second parts of applications for participation in an electronic auction and documents sent to the customer by the operator of the electronic site in accordance with Part 19 of Art. 68 of Law No. 44-FZ, in terms of their compliance with the requirements established by the documentation for such an auction (part 1 of article 69 of Law No. 44-FZ).
According to part 19 of Art. 68 of Law No. 44-FZ within one hour after posting on electronic platform the protocol specified in Part 18 of Art. 68 of Law No. 44-FZ, the operator of the electronic site is obliged to send to the customer the specified protocol and the second parts of applications for participation in such an auction, submitted by its participants, proposals for the contract price of which, when ranked in accordance with Part 18 of Art. 68 of Law No. 44-FZ received the first ten serial numbers, or if less than ten of its participants took part in such an auction, the second parts of applications for participation in such an auction filed by its participants, as well as the documents of these participants, provided for in paragraphs. 2 - 6 and 8 hours 2 tbsp. 61 of Law No. 44-FZ and contained on the date and time of the deadline for filing applications for participation in such an auction in the register of its participants who have received accreditation on the electronic site. During this period, the operator of the electronic site is also obliged to send appropriate notifications to these participants.
According to paragraph 4 of part 2 of Art. 62 of Law No. 44-FZ, in the register of participants in an electronic auction accredited on an electronic site, for each participant in such an auction, a copy of an extract from the unified state register of legal entities (for a legal entity), a copy of an extract from the unified state register of individual entrepreneurs (for individual entrepreneur) received no earlier than six months before the date of the participant of such an auction with an application for accreditation, copies of documents proving the identity of the participant of such an auction (for other individual), a duly certified translation into Russian of documents on state registration of a legal entity or individual as an individual entrepreneur in accordance with the legislation of the relevant foreign state (for a foreign person).
That is, the auction commission may, in order to check a participant in an electronic auction for compliance with the requirement established under clause 10, part 1, art. 31 of Law No. 44-FZ, use, for example, a properly certified translation into Russian of documents on state registration of a legal entity in accordance with the legislation of the relevant foreign state, after checking in these documents the place of registration of the legal entity.
When concluding a contract, the customer is not obliged (he has the right) to check whether the winner of the electronic auction is an offshore company, then he can also do this, like the auction commission, and if at the stage of concluding the contract the customer establishes the fact that the winner of the electronic auction - offshore company, then in accordance with Part 9 of Art. 31 of Law No. 44-FZ, he must refuse to conclude a contract.