Among international treaties as sources of IFP, one should first of all single out multilateral and bilateral international treaties.
Multilateral international treaties are concluded by a group of countries, and thus a universal international legal regime of relations is created for persons who have the corresponding state affiliation.
For many years, various international organizations have been actively working on the preparation and adoption of multilateral international agreements. Among such organizations, mention should be made of the Hague Conference on Private International Law, UNCITRAL, UNIDROIT, UNCTAD and a number of others. They have developed dozens of the most important multilateral international agreements in various areas of the GIF. The most important of them are the UNIDROIT Convention on International Financial Leasing (signed in Ottawa on May 28, 1988) and the UNIDROIT Convention on International Factoring (signed in Ottawa on May 28, 1988).
The number of multilateral international treaties should also include agreements that, although not of an interstate nature, are concluded by special entities (banks, insurance companies, stock exchanges, investment funds, etc.) of international financial relations, TNCs and professional international associations.
Bilateral international treaties are mainly channels for the implementation of international cooperation on issues of lending, taxes, financial assistance, development, encouragement and protection of private investment. For example, agreements on the encouragement and mutual protection of investments have been concluded between Russia and Albania, Argentina, Belgium, Greece, Denmark, Egypt, Italy, Luxembourg and a number of other states.
Under such agreements, the contracting parties undertake to encourage investors of the other party to invest in their territory. The Parties guarantee, in accordance with their legislation, full and unconditional legal protection for investors’ investments, undertake to provide such investments with a fair and equitable treatment that excludes the use of discriminatory measures that could impede the management and disposal of investments.
There are also mixed sources of MFP. These include contracts concluded between the state, on the one hand, and private individuals of another state, on the other.
These agreements play a significant role in the international financing of investments and banking activities. When characterizing international treaties, one should also take into account their difference in legal force. In accordance with paragraph 2 of Art. 3 of Federal Law No. 318-FE of December 1, 2007 “On International Treaties of the Russian Federation”, international treaties of the Russian Federation are divided into interstate (concluded on behalf of the Russian Federation), intergovernmental (concluded on behalf of the Government of the Russian Federation) and interdepartmental (concluded on behalf of federal executive bodies ). The highest legal force among international treaties have treaties concluded on behalf of the Russian Federation and ratified by the State Duma of the Federal Assembly of the Russian Federation.
For Russia, the international treaties to which the Russian Federation is a party as the successor state of the USSR have retained their effect.
15. General trends in the improvement of financial legislation.
– A significant expansion of the General Part of Financial Law by referring to it the general provisions on budgets, incomes, expenses, taxes and other payments, credit, insurance, the monetary system and financial and procedural rules.
· In the General Part, the institution of financial and legal responsibility should be linked to the issues of protecting the legitimate rights and interests of subjects of financial law and the legal organization of financial control.
The construction of the Special Part of Financial Law can be carried out in 2 directions in accordance with the organization of the financial system:
o Division of institutions by levels of finance (federal, regional and local), where each of the institutions regulates its budget, extra-budgetary decentralized financial funds, their income and expenses, relations with economic entities in terms of attracted and borrowed funds.
o To build the institutions of the Special Part in accordance with the institutions of the financial system, that is, to single out the institution of the budget system, the institution of extra-budgetary funds and the institution of decentralized finance.
16. The main directions of reforming the budget legislation.
Improving the legal regulation of the budget process.
The main innovation of the budget legislation of the coming period will be the preparation of a new version of the Budget Code, which should sum up the results of the budget reforms carried out, consolidate into a single system numerous adopted federal laws and developed bills on amendments to the Budget Code.
The budget, as the main instrument of the state’s economic policy, is designed to intensify structural changes in the economy in the coming years.23 At present, the fundamental prerequisites for the restructuring of the Russian economy are being formed. On the one hand, there is a redistribution of national income from the population to the corporate sector, which creates a financial base for potential investment. On the other hand, the adjustment of the exchange rate and the subsequent movement in the price level is partly helping to correct some of the accumulated structural distortions by moving financial and labor resources to tradable sectors, where the return on invested capital has risen markedly.
Based on the principles of a responsible budget policy and taking into account the provisions of budget legislation, it is proposed to reduce the total volume of federal budget expenditures compared to the parameters approved in the 24th previous budget cycle, only by the amount of conditionally approved expenditures in 2016 and conditionally approved expenditures exceeding 2.5% of the total volume. expenditures in 2017 and calculate the amount of expenditures for 2018 according to the “budget rules”.
At the same time, limiting the growth rate of expenditures in nominal terms when applying the approaches provided for by the legislation of the Russian Federation to the indexation of basic social benefits (pensions, benefits, wages) is difficult to implement in the context of a one-time inflation jump in late 2014 – early 2015. Maintaining the current indexation mechanism will require an additional reduction in “unprotected” federal budget expenditure items, which may lead to negative socio-economic consequences (for example, the need to increase the burden on employers by raising insurance premium rates). Moreover, the current indexation mechanism creates the risks of strengthening structural imbalances in the economy: displacement of savings and investments by current consumption, private demand by the state.
The current legislation of the Russian Federation provides for indexation of the insurance pension and a fixed25 payment to it from February 1 to the actual consumer price index and from April 1 based on the cost of one pension coefficient (in 2015 by 11.4%, in 2016 by 11.9% , in 2017 by 7.0%, in 2018 by 8.4%).
In addition, in 2016, it is proposed to carry out additional indexation of benefits and social payments, taking into account the actual increase in consumer prices for 2015 in accordance with Federal Law No. 68-FZ of April 6, 2015
Also in 2016, it is proposed to abandon the indexation of wages for civil servants and military personnel, and the issue of indexation in 2017-2018 for this category should be considered in subsequent budget cycles at the expense and within the limits of conditionally approved expenses.
A separate contribution to ensuring fiscal sustainability should be made by the draft budget forecast 28 of the Russian Federation for the period up to 2030, which is being developed for the first time in 2015. This document should be aimed at maintaining the stability of the functioning of the country’s budgetary system with a balanced distribution of budgetary resources to meet the current needs of the economy and the social sphere in budgetary funds and solve the problems of their development. This implies the formation of the necessary financial reserves, risk management mechanisms, and the determination of maximum spending ceilings for government programs. A similar requirement of the Budget Code for the development of long-term budget forecasts applies to the constituent entities of the Russian Federation. Thus, an integrated approach to managing budgetary sustainability involves pursuing a coordinated policy to maintain a balanced budget of the budgetary system of the Russian Federation in the long term, increasing the ability of the state budget to cope with temporary macroeconomic fluctuations (medium-term budgetary stability, sufficient budget safety margin), expanding the boundaries of budgetary maneuver ( increased flexibility in the cost structure). In addition, in order to maintain a balance in the budgets of the constituent entities of the Russian Federation and local budgets, the use of measures aimed at limiting the deficits of their budgets and the level of debt will continue.
Measures to ensure the balance of the federal budget include reducing the dependence of the budgets of state off-budget funds of the Russian Federation on transfers from the federal budget.
The main tasks of the coming years to improve the efficiency of budget expenditures are: to increase the efficiency and effectiveness of the existing tools for program-target management and budgeting; creating conditions for improving the quality of public services; improving the efficiency of public procurement procedures, including through the introduction of treasury support; improvement of procedures for preliminary and subsequent control, including clarification of the procedure and content of enforcement measures for violations in the financial and budgetary sphere; ensuring broad involvement of citizens in the procedures for discussing and making specific budget decisions, public control of their effectiveness and efficiency. Only a systematic approach to improving the efficiency of budget expenditures will make it possible to fulfill the instruction of the President of the Russian Federation on the implementation of the Address of the President of the Russian Federation to the Federal Assembly of the Russian Federation dated December 4, 2014 and to ensure the reduction in 2015-2017 of federal budget expenditures annually by at least 5% in real in terms of reducing inefficient costs. State programs should become the main instrument that is designed to ensure an increase in the effectiveness and efficiency of budget expenditures, focus on achieving the goals of state policy.
17. The main directions of reforming the tax legislation.
Territories of priority development in the Far East
Special conditions for doing business for new enterprises will be created in the territories of advanced socio-economic development (hereinafter referred to as the ASEZ), including 5-year vacations for corporate income tax, MET (except for oil and gas), land tax, tax on property of organizations . Such a regime will be applied not only in the regions of the Far East, but also in the Irkutsk region, the Republic of Tyva, the Krasnoyarsk Territory, the Republic of Khakassia, the Crimea and Sevastopol. The criteria for selecting investment projects within the framework of the ASEZ, the nature and amount of benefits for the payment of employers’ insurance premiums will be determined in the legislation on the ASEZ and on state social insurance.
The fight against tax evasion and deoffshorization
The Ministry of Finance indicated that as part of these initiatives, it is planned to introduce the concept of tax residency of legal entities and CFC rules into tax legislation, strengthen the exchange of information between countries and put up barriers to tax-free real estate sales in the Russian Federation.
Improving the investment climate
q Remove barriers to export development
q Simplification of LLC registration procedures (except for credit, insurance and other financial organizations)
q Creation of an international financial center
q Simplification of tax administration
Small business is not forgotten either. The subjects of the Russian Federation are invited to grant the right to establish tax holidays (with some restrictions) for newly registered individual entrepreneurs who have switched to a simplified taxation system and a patent taxation system and operate in the industrial, social and scientific fields. Also, self-employed citizens will be able to use the patent system of taxation.
Excise rates on tobacco products (pipe, smoking and other tobacco, cigarillos, bidis, kretek) are expected to be indexed by 10%, and the document states the need to harmonize rates on tobacco products with the member states of the Customs Union. Excise rates for motor fuel will be determined taking into account a set of factors. From 2017, the excise rate on gasoline will depend on its environmental class (5th or lower). It is also proposed to exempt from excise duty the sale of bioethanol (denatured ethyl alcohol) used in the production of biofuels.
Taxation of users of natural resources
It is planned to further adjust the system of “tax holidays” in the production of hydrocarbons:
q extension of “holidays” for the extraction of natural gas and gas condensate on the Gydan Peninsula (on terms similar to existing benefits for the extraction of minerals on the Yamal Peninsula);
q extension of “holidays” for new oil fields in the Nenets Autonomous Okrug and on the Yamal Peninsula.
Work will continue on the implementation of the “tax maneuver” in the oil and gas industry: reducing export customs duties on oil and oil products with a corresponding increase in the severance tax on oil. It is planned to conduct a large-scale revision of the procedure for taxation of the extraction of solid minerals, including:
q evaluate the feasibility of establishing specific MET rates for other types of solid minerals, other than coal, in relation to world prices;
q evaluate the effect of previously introduced tax incentives, as well as the need to introduce additional tax incentives;
q reconsider the procedure for determining the MET tax base for the extraction of precious metals, multicomponent complex ores, precious stones and semiprecious raw materials;
q to consider the option of transferring the powers to regional authorities to set MET rates and assess the tax base for common types of minerals.
Consolidated groups of taxpayers
It is planned to oblige a member of the CGT to disclose information about the tax base that would have formed for him if he were not a member of the CGT. In addition, it is planned to revise the accounting for losses of CGT participants. The Ministry of Finance sees two options for changing the rules. In the first option, the total profit is first distributed without taking into account the losses of individual participants, and then the profit of individual subjects of the Russian Federation, where there were unprofitable participants, is reduced by their losses (with the possibility of transferring them to the future). With this option, the burden on the entire CGT may increase (if losses are not fully offset). In the second option, when distributing profits between the constituent entities of the Russian Federation, the cost of fixed assets and the number of employees of unprofitable participants are ignored. Note that one of the incentives for the creation of CGTs is to offset the losses of some participants against the profits of other participants. Removing the first incentive can drastically affect the attractiveness of this regime. There are no plans to make the CGT regime available to a wider list of taxpayers by the Ministry of Finance.
Taxation in Crimea and Sevastopol
It is assumed that the Republic of Crimea and the city of federal significance Sevastopol will be included in the list of subjects of the Russian Federation on the territory of which regional investment projects are being implemented (we covered in detail the issues of regional investment projects in our bulletins No. 36 for October and No. 20 for June 2013). The creation of a gambling zone in Crimea is not discussed in the document of the Ministry of Finance.
The Ministry of Finance cited data on budget losses due to tax incentives. According to the data given by the Ministry of Finance on page 15 of the document, the main “culprits” of the shortfall in budget revenues were the depreciation bonus, property tax benefits for infrastructure facilities (main pipelines, power lines, railways), the use of reducing coefficients for the mineral extraction tax, the transfer of losses of past years into the future, reduced regional tax rates, application of a 0% dividend rate. The Ministry of Finance proposes to completely abandon the establishment of new benefits, as well as to cancel a number of existing ones.
Instead of the current tax on property of individuals, it is proposed to introduce a tax on real estate of individuals from 2020 (subjects of the Russian Federation can force such a replacement as early as 2015). Real estate will be taxed based on the cadastral value (now property tax is calculated from the total inventory value multiplied by the deflator coefficient). It is important that objects of unfinished construction will also be taxed. The tax rate will be equal to the corporate property tax rate (specific rates will be set by the subjects of the Russian Federation). For those taxpayers for whom the increase in the tax burden will be significant, a gradual increase will be provided for over 5 years using coefficients (as an example of a significant increase in the burden, the Ministry of Finance indicated an increase of more than 1,000 rubles per year for an object).
Taxation when selling apartments
A fundamentally different approach to the exemption of income of individuals from the sale of residential real estate is proposed, based on whether the housing being sold is the only one:
q full exemption of income, regardless of the tenure, if this property is the only residential property owned by the taxpayer;
q if an individual owns more than one such object at the time of the sale, then it will be possible to release the proceeds from the sale only if:
§ income from the sale of the object does not exceed 5 million rubles, or a garden house with a living area of up to 50 sq.m. And
§ the period of ownership of the object is at least 3 years (subjects of the Russian Federation will be able to increase this period up to 10 years). In relation to other property, the current taxation procedure will be preserved. In general, the proposed changes may reduce the attractiveness of buying residential property as an investment object.
18. Main directions of reforming the insurance legislation.
The main goal of this strategy is to comprehensively promote the development of the insurance industry – its transformation into a strategically important sector of the Russian economy, providing:
- increasing the economic stability of society;
- increasing the social security of citizens and reducing social tension in society through effective insurance protection of the property interests of citizens and business entities;
- attracting investment resources to the country’s economy.
Achieving this goal is possible by solving the following tasks:
- creation of conditions that ensure the development of voluntary types of insurance, mutual insurance, microinsurance, which contribute to increasing fair competition and increasing investment attractiveness;
- ensuring a balance of interests between the subjects of the insurance business and policyholders (beneficiaries), developing measures to improve the quality of services provided by insurers in order to protect the rights of consumers of insurance services, increasing their responsibility in choosing and organizing methods of insurance protection and fulfilling the terms of insurance contracts, reducing the prerequisites for disputes between insurers and consumers of their services, the creation of an institution of insurance ombudsman;
- expanding the scope of activities of participants and subjects of the insurance business while providing guarantees for the protection of the rights of consumers of their services;
- increasing the stability, reliability of the infrastructure of the insurance market, the efficiency and effectiveness of its activities;
- ensuring the effective use of budgetary funds for insurance;
- formation of an international financial center in Russia.
The main conditions that allow achieving the set goal and objectives are:
- increasing the level of economic and social development of the country;
- effective regulatory and legal regulation of the insurance industry, improvement of state insurance supervision, the judicial system and the system of enforcement of court decisions;
- increasing the social responsibility of business for the fulfillment of its obligations.
The main directions of development of insurance activities in the Russian Federation for the period up to 2020.
To achieve the goals and objectives set by this strategy, it is necessary to take a number of measures in the following main areas:
Improving the regulation of compulsory insurance
Stimulating the development of voluntary insurance
Expansion of the scope of activities of subjects of the insurance business
Development of insurance market infrastructure
Optimization of the risk management system at the expense of budgetary funds
Development of the agricultural insurance system
Increasing the efficiency of forms and methods of state control and supervision over the subjects of the insurance business and ensuring their financial stability.
Systematization of forms and methods of state insurance supervision and sanctions applied by the insurance supervision body
Improving the requirements for financial stability and solvency of insurers
Improving the quality of information disclosed by subjects of the insurance business
Protecting the rights of consumers of insurance services, improving the insurance culture, popularizing insurance
Strengthening the role of the Russian insurance market at the international level
19. The main directions of reforming banking legislation.
The role of the bank is expressed in the fact that it provides, firstly, the concentration of free capital and resources necessary to maintain the continuity of the acceleration of production; secondly, streamlining the rationalization of cash flow. Realizing the public purpose, banks through monetary monetary instruments have a significant impact on the state of the economy and finance, production and circulation of goods .
The first priority in the development of the banking system is the training of personnel with higher qualifications, banking culture, business vision, and organizational skills. Bankers who believe too early in professional strength need a serious study of banking.
The second priority should be recognized as the formation of legislative support for banking activities. The lack of rules of the game is obvious. A striking example of this is the law on guaranteeing citizens’ deposits in a bank. Next in line should be a law on credit, which should deal with the improvement of credit in Russia, restoring its productive qualities and reducing inflationary consequences for the economy .
The third priority can be called the formation of the banking sector as a system, a branch of the national economy. Today, it lacks entire blocks: there are no institutions of small credit, credit cooperation, development banks, banking infrastructure, information, full methodological, scientific, and personnel support, without which not a single branch of the modern economy can do.
The fourth priority we consider is the need to correct the existing ideas about the relationship of the bank with production, the clients for whom they work on the market. The financial and banking structures have no other way to survive than to turn towards the real economy. A vivid confirmation of this is the state of the banking system in the post-crisis period. It is the banks that have invested an unreasonably large amount of borrowed funds, incl. investors in speculative instruments, and at the same time did not conduct an analysis of credit risks and liquidity in pursuit of super-profits, suffered a serious fiasco.
The central bank is in favor of increasing the role of money in the economy. In reality, there is an increase in the importance in modern Russia of barter, quasi-money, significant cash flows that go past banks. Related to this is the problem of inflation and the search for a point of equilibrium in the money market . The global task of economic policy, its most important monetary segment, is to stimulate the growth of consumer demand and ensure sustainable GDP growth on this basis. It can be stated that in recent years there has been a serious evolution in setting monetary policy goals – from a frontal attack on inflation to a constructive approach in stimulating consumer demand, GDP growth, providing employment and increasing household incomes.
A big problem for banks is the problem of creditworthiness of enterprises. There are organizations that need funds, but not all of them have a good reputation. Sometimes it is difficult to find a company that has a reputation as a reliable payer. Added to this is the inefficiency of the legal system for protecting the rights of lenders, i.e. banks. Therefore, when allocating loans, banks take into account that there are no legally established effective methods for repaying loans in case of bad faith of the borrower. In this regard, to ensure the reliability of investments, banks need to solve a number of problems. The first is the consolidation of investment guarantees at the legislative level. This does not mean that the state assumes financial responsibility for investing in industry. First of all, this implies the development of such a legal framework in which the state or a private investor, individual or legal entity would find at the legislative level detailed rules for protecting interests against fraud and risk insurance rules. The contractual and legal part of relations should be spelled out in detail, forms of investment insurance should be developed, and judicial protection should become publicly available, effective, and less corrupt. It is clear that the budget cannot bear the costs of creating such a system, but this is not necessary. In many countries, the investment guarantee institution has its own sources of income, and the judicial system pays for itself through various fees.
20. The main directions of reforming the currency legislation.
The bill provides for the following changes.
1. First of all, the Ministry of Finance of Russia considers it necessary to return the former concept of a resident in relation to Russian citizens.
It should be recalled that earlier the Law on Currency Regulation was amended 3 according to which Russian citizens were recognized as residents, with the exception of citizens of the Russian Federation permanently residing in a foreign state for at least one year, including those with a residence permit issued by an authorized state body of the relevant foreign state, or temporarily staying in a foreign state for at least one year on the basis of a work or study visa with a validity of at least one year or on the basis of a combination of such visas with a total validity of at least one year.
This provision has received ambiguous interpretation in practice. In particular, disputes among specialists were raised by the question of whether the one-year period of residence (stay) abroad will be interrupted if a citizen of the Russian Federation arrives in Russia for at least one day. If we follow the approach supported by Rosfinnadzor specialists, according to which the interruption of the one-year period will take place, then any citizen of the Russian Federation who lives abroad but has visited Russia, from the moment he crosses the Russian border, again becomes a resident with all the restrictions of currency legislation applicable to him.
As a result, the goal of introducing this change was not achieved – to allow citizens of the Russian Federation living and working abroad to receive wages in foreign currency from Russian organizations to their foreign accounts. Such an opportunity for these citizens should have been granted the status of a non-resident.
The Ministry of Finance of Russia proposes to state the relevant provision of the Law on Currency Regulation (subparagraph “a”, paragraph 6, part 1, article 1) in its original version. According to this norm, those citizens of the Russian Federation who are recognized as permanent residents in a foreign state under the laws of this state are not residents.
2. The draft law also expressly permits the payment by Russian organizations of salaries and other similar payments in foreign currency to resident individuals working outside the territory of the Russian Federation. Previously, the list of transactions, the funds for which can be credited to foreign accounts of residents 4 , has already been significantly expanded. But despite this, citizens of the Russian Federation living and working in another state still cannot receive payments in foreign currency from Russian employers to their foreign accounts, since, as a general rule, transactions in foreign currency between residents are prohibited, and payments under employment contracts , named in the list of permitted cases of crediting funds to foreign accounts of residents, refer only to agreements concluded with non-residents. As noted above, the change in the concept of a resident, introduced into the Law on Currency Regulation to recognize such citizens of the Russian Federation as non-residents, did not achieve its goal.
In order to make such payments possible, the bill introduces an addition to part 1 of Article 9 of the Law on Currency Regulation, which establishes exceptions to the prohibition on foreign exchange transactions between residents. In addition, amendments are proposed to parts 5 and 6.1 of Article 12 of the said Law, according to which resident individuals will be able to receive the appropriate amounts to their accounts in foreign banks, and Russian organizations – to make these payments from their foreign accounts (deposits), provided that funds are credited to them in accordance with the Russian currency legislation.
3. Finally, the draft law eliminates a gap in the Law on Currency Regulation by allowing the payment of wages to employees who are residents of foreign branches of Russian legal entities through the foreign accounts of these branches. Today, such an opportunity is provided only for foreign representative offices of Russian organizations (clause 2, part 6.1, article 12 of the Law on Currency Regulation).
Probably, in the near future we should expect the bill to be submitted to the State Duma.
21. The role of international law in the regulation of financial and legal relations in Russia.
The norms of international financial law are created by states as the main subjects in the process of cooperation in the financial sector in accordance with their internal and external needs through coordination of interests, coordination of wills and achievement of a mutually acceptable compromise. National financial law is derived from the sole will of the state, which has full power within its own territory and jurisdiction. When considering the relationship between the norms of national and international financial law of states, it is inappropriate to limit ourselves to clarifying the pre-eminence of the norms of international law over the norms of national financial law, or vice versa. The solution to the question of the relationship between international and national law lies in identifying the real links between them in the process of forming the norms of international law, on the one hand, and in the process of applying the norms of international and national law, on the other. International law is a special system of law, fundamentally different from domestic law. Such differences between international law and domestic law, determined by “differences between the international system and domestic systems” <1>, consist primarily in the object of international legal regulation, subjects of international law, the process of creating norms of international law.
The regulatory function of financial law (national) is implemented at the level of international financial and legal regulation as a result of the adoption of international treaties of the Russian Federation, which simultaneously refer to the sources of national and international financial law. The will of the Russian Federation as a sovereign state is necessary for their recognition as part of the Russian legal system and harmonization of financial and legal norms. The financial legislation establishes the priority of the provisions of international treaties of the Russian Federation. The Budget Code defines the interaction between budget legislation and international law. In his Art. 4 it is determined that if an international treaty of the Russian Federation establishes other rules than those provided for by the budgetary legislation of the Russian Federation, the rules of the international treaty are applied. An international treaty of the Russian Federation applies directly to budgetary legal relations, with the exception of cases where it follows from an international treaty that their application requires the issuance of domestic acts. Similar rules regarding the priority of an international treaty in relation to currency legislation are defined by Art. 4 of the Federal Law “On currency regulation and currency control”. The Tax Code establishes that if an international treaty of the Russian Federation containing provisions relating to taxation and fees establishes other rules and norms than those provided for by the Tax Code and regulatory legal acts on taxes and (or) fees adopted in accordance with it, then the rules and norms of international treaties of the Russian Federation (Article 7 of the Tax Code).
ORGANIZED SECURITIES MARKET
22. Legislation regulating relations in the sphere of the securities market.
The basis – the highest level of the system of legal norms – is the Constitution of the Russian Federation, which has the highest legal force and has direct effect on the entire territory of the Russian Federation.