According to the Federal Law “On Currency Regulation and Currency Control”, the concept of currency transactions includes:

a) acquisition by a resident from a resident and alienation by a resident in favor of a resident of currency values ​​on legal grounds, as well as the use of currency values ​​as a means of payment;

b) acquisition by a resident from a non-resident or by a non-resident from a resident and alienation by a resident in favor of a non-resident or by a non-resident in favor of a resident of currency values, the currency of the Russian Federation and domestic securities on legal grounds, as well as the use of currency values, the currency of the Russian Federation and domestic securities as means of payment;

c) acquisition by a non-resident from a non-resident and alienation by a non-resident in favor of a non-resident of currency values, the currency of the Russian Federation and domestic securities on legal grounds, as well as the use of currency values, the currency of the Russian Federation and domestic securities as a means of payment;

d) import into the customs territory of the Russian Federation and export from the customs territory of the Russian Federation of currency valuables, the currency of the Russian Federation and domestic securities;

e) transfer of foreign currency, currency of the Russian Federation, internal and external securities from an account opened outside the territory of the Russian Federation to an account of the same person opened in the territory of the Russian Federation, and from an account opened in the territory of the Russian Federation to the account of that the same person, open outside the territory of the Russian Federation;

f) transfer by a non-resident of the currency of the Russian Federation, internal and external securities from an account (from an account section) opened on the territory of the Russian Federation to an account (account section) of the same person opened on the territory of the Russian Federation.

Currency transactions can be carried out by subjects of currency relations, which are divided into two categories: residents and non-residents.

Residents include:

Individuals who are citizens of the Russian Federation, with the exception of citizens of the Russian Federation who are recognized as permanent residents of a foreign state in accordance with the legislation of that state;

Permanently residing in the Russian Federation on the basis of a residence permit provided for by the legislation of the Russian Federation, foreign citizens and stateless persons;

Legal entities established in accordance with the legislation of the Russian Federation;

Branches, representative offices and other subdivisions of residents established in accordance with the legislation of the Russian Federation located outside the territory of the Russian Federation;

Diplomatic missions, consular offices of the Russian Federation and other official representations of the Russian Federation located outside the territory of the Russian Federation, as well as permanent missions of the Russian Federation at interstate or intergovernmental organizations;

The Russian Federation, constituent entities of the Russian Federation, municipalities that act in relations regulated by the Federal Law “On Currency Regulation and Currency Control” and other federal laws and other regulatory legal acts adopted in accordance with it.

Non-residents include:

a) individuals who are not residents in accordance with the Federal Law “On currency regulation and currency control”;

b) legal entities established in accordance with the legislation of foreign states and located outside;

c) organizations that are not legal entities, created in accordance with the legislation of foreign states and located outside the territory of the Russian Federation;

d) diplomatic missions accredited in the Russian Federation, consular offices of foreign states and permanent representations of these states at interstate and intergovernmental organizations;

e) interstate and intergovernmental organizations, their branches and permanent representations in the Russian Federation;

f) branches, permanent representative offices and other separate or independent structural subdivisions of non-residents located on the territory of the Russian Federation, specified in clauses “b” and “c” of this definition;

g) other persons who are not residents in accordance with the Federal Law “On Currency Regulation and Currency Control”.

For residents and non-residents, there is a different procedure for opening and maintaining accounts in foreign currency, which is regulated by the Central Bank of the Russian Federation within the framework of currency regulation. In the system of currency regulation, the concepts of “resident” and “non-resident” are defined by entities that carry out transactions with national and foreign currencies.

According to the legislation of the Russian Federation, currency transactions should be carried out only through “authorized banks” - credit institutions established in accordance with the legislation of the Russian Federation (Federal Law of December 23, 2003 N 177-FZ (as amended on July 11, 2011) "On insurance of deposits of individuals persons in banks of the Russian Federation") and having the right, on the basis of a license of the Central Bank of the Russian Federation, to carry out banking operations with funds in foreign currency, as well as branches of credit institutions operating in the Russian Federation in accordance with licenses of the Central Bank of the Russian Federation, established in accordance with the legislation of foreign states, having the right to carry out banking operations with funds in foreign currency.

The license issued by the Central Bank of the Russian Federation specifies the operations that are allowed to be carried out by a commercial bank in foreign currency.

Control over the performance by commercial banks of the operations specified in the foreign exchange license is carried out by the Central Bank of the Russian Federation.

It is necessary to consider some types of foreign exchange transactions carried out on the territory of the Russian Federation.

Maintaining foreign currency accounts of the clientele extends to foreign currency accounts of residents, as well as foreign currency and ruble accounts of non-residents. This operation is simple and does not fundamentally differ from maintaining current accounts in rubles. Its peculiarity lies in the performance by the bank (in relation to it) of the functions of currency control.

Non-trading transactions in foreign currency are customer service transactions that are not related to the settlement of exports and imports of goods and services of the bank's customers. These operations are:

Purchase and sale of cash foreign currency by individuals;

Cash servicing of customer accounts;

Purchase and sale of traveler's checks and other payment documents;

Issuance of cash foreign currency by credit cards;

Collection of cash foreign currency and payment documents in foreign currency.

Operations on international settlements are connected with the settlement of exports and imports of goods and services of legal entities - clients of the bank. International settlements are carried out mainly in the form of a letter of credit, collection and transfer. A necessary condition for the bank to conduct international settlements is the establishment of correspondent relations with foreign banks, which is formalized by a special agreement, which is an agreement on the procedure and conditions for conducting banking operations. To carry out operations on international settlements, two types of correspondent relations can be established: “correspondent without an account” and “correspondent with an account”.

A conversion operation is a purchase / sale (exchange) of the currency of one country for the currency of another country at the current rate.

Deposit operations in foreign currency are associated with the attraction of funds to deposits and bank deposits on behalf of individuals and legal entities - bank customers, who are charged a certain percentage for this.

Conversion and deposit operations in international money markets require highly qualified personnel and modern technical equipment, such as Reuters Dealing and SWIFT systems.

Credit operations with foreign currency -- one of the most complex and risky types of banking operations. Currency funds within the Russian Federation are attracted from clients or other Russian and foreign banks. These funds are placed by banks on the Russian and international interbank market or on credit accounts of clients.

The Instruction of the Central Bank of the Russian Federation of June 15, 2004 No. 117-I establishes the procedure for residents and non-residents to submit documents and information to authorized banks when carrying out foreign exchange transactions, the procedure for accounting for foreign exchange transactions and the procedure for residents in authorized banks to issue a transaction passport when carrying out foreign exchange transactions.

Thus, in this chapter, the author conducted a comprehensive analysis of foreign exchange transactions carried out in the Russian Federation, analyzed the legal basis for the implementation of foreign exchange transactions under the current legislation, and also, in the course of his research, identified the main problems in the legislative regulation of foreign exchange transactions, which will be more specifically analyzed in the next chapter.

Currency transactions (lat. operatio - action) are actions to organize and manage monetary relations arising from the movement of currency and securities in foreign currency.

Foreign exchange operations are carried out by banks that have the status of an authorized bank. An authorized bank is a bank that has received a license from the Central Bank of the Russian Federation for the right to conduct foreign exchange transactions.

Legal entities and individuals engaged in operations with foreign currency are divided into residents (lat. residens (resi - dentis) - sitting, staying) and non-residents.

In accordance with the Law of the Russian Federation of December 9, 1992 No. 3615-1 “On currency regulation and currency control”, residents include:

1. Individuals who have a permanent place of residence in the Russian Federation, including those temporarily located outside the Russian Federation.

2. Legal entities established in accordance with the legislation of the Russian Federation, located in the Russian Federation.

3. Enterprises and organizations that are not legal entities, established in accordance with the legislation of the Russian Federation, located in the Russian Federation.

4. Diplomatic and other official representations of the Russian Federation located outside the Russian Federation.

5. Branches and representative offices of residents located outside the Russian Federation, specified in clauses 2 and 3.

Non-residents are:

1. Individuals who have a permanent place of residence outside the Russian Federation, including those temporarily located in the Russian Federation.

2. Legal entities established in accordance with the laws of foreign states, located outside the Russian Federation.

3. Enterprises and organizations that are not legal entities, created in accordance with the legislation of foreign states, located outside the Russian Federation.

4. Foreign diplomatic and other official representations located in the Russian Federation, as well as international organizations, their branches and representative offices.

5. Branches and representative offices of non-residents located in the Russian Federation, specified in clauses 2 and 3.

Currency transactions can be associated with both cash payments (settlements, transfers, etc.) and with the movement of capital (leasing, credit, etc.). Capital is put into circulation and generating income from this turnover. The movement of foreign exchange capital means an investor's investment of currency in objects of entrepreneurial activity in order to make a profit.

Foreign exchange transactions include:

♦ transactions related to the transfer of ownership and other rights to currency values, including transactions related to the use of foreign currency as a means of payment and payment documents in foreign currency;

♦ import and shipment to the Russian Federation, as well as export and shipment from the Russian Federation of currency valuables;

♦ implementation of international money transfers.

Operations with foreign currency and securities in foreign currency can be divided into two groups:

1. Current foreign exchange transactions.

2. Currency transactions associated with the movement of capital.

Current foreign exchange transactions include:

A) currency transfers to and from the Russian Federation for settlements without deferred payment for the export and import of goods (works, services), as well as for settlements related to crediting export-import operations for a period of not more than 180 days;

B) obtaining and providing financial loans for a period not exceeding 180 days;

C) transfers to and from the Russian Federation of interest, dividends and other income on deposits, investments, loans and other transactions related to the movement of capital;

D) non-commodity transfers to and from the Russian Federation, including transfers of wages, pensions, alimony, inheritance, and other similar transactions.

Currency transactions related to the movement of capital include:

A) direct investments, i.e. investments in the authorized capital of an enterprise in order to generate income and obtain rights to participate in the management of an enterprise;

B) portfolio investment, i.e., the acquisition of securities;

C) transfers in payment of the right of ownership to buildings, structures and other property, including land and its subsoil, attributable under the legislation of the country of its location to real estate, as well as other rights to real estate;

D) granting and receiving a deferred payment for a period of more than 180 days for the export and import of goods (works, services);

E) provision and receipt of financial loans for a period of more than 180 days;

E) all other foreign exchange transactions that are not current foreign exchange transactions.

Current currency transactions are carried out without restrictions.

The Bank of Russia regulates current operations in two ways:

1. By limiting the use of such forms of payment as checks, bills of exchange, as well as by requiring the provision of guarantees in the form of an advance payment or prepayment.

2. Strict control over compliance with the time period for transactions of 180 days. In case of delay on current operations of a period of 180 days, penalties are applied.

When importing goods, the starting date of the transaction is the date of shipment. The date of shipment (loading on board, dispatch or acceptance for carriage) is the date of the transport document or the date on the stamp certifying acceptance for carriage, or the date of the mark of loading on board, whichever is later. At the same time, it should be taken into account that in case of issuance of several transport documents (from different dates and / or from different ports of shipment) when goods are shipped on the same vessel on the same voyage, the date of shipment is considered to be the date of the last transport document.

When exporting goods, the starting date of the transaction is the date of customs clearance of each individual shipment. In this case, the period is taken into account for each individual shipment.

The moment of fulfillment of the obligation under the transaction is the day of receipt of foreign currency funds to the exporter's account.

Currency transactions related to the movement of capital are carried out in accordance with instructions, letters and other regulations and operational documents of the Bank of Russia.

The Central Bank of the Russian Federation, by Letter No. 93-P dated October 14, 1999, approved the Regulation “On the Procedure for Conducting Certain Currency Transactions”, according to which residents carry out such transactions exclusively in rubles as:

♦ return to a non-resident of a credit (loan) previously granted to a resident by a non-resident in rubles;

♦ return to the non-resident of the advance payment (prepayment) previously paid under the transaction to the resident by the non-resident in rubles;

♦ return to a non-resident of funds from common property under a simple partnership agreement (joint activity agreement), one of the participants of which is a resident, if the contribution under the simple partnership agreement (joint activity agreement) was made by a non-resident in rubles;

♦ return to a non-resident from trust management of funds transferred by a non-resident to trust management of a resident in rubles;

♦ payment to a non-resident of interest, penalties, commissions and other payments stipulated by the terms of the above transactions.

The above operations in rubles are carried out by non-residents through ruble accounts opened for non-residents by authorized banks.

Non-residents carry out the following currency operations exclusively in foreign currency:

♦ return to a resident of a credit (loan) previously provided to a non-resident by a resident in foreign currency;

♦ return to the resident of the advance payment (prepayment) previously paid under the transaction to the non-resident by the resident in foreign currency;

♦ return to a resident of funds from common property under a simple partnership agreement (joint activity agreement), one of the participants of which is a non-resident, if the contribution under the simple partnership agreement (joint activity agreement) was made by a resident in foreign currency;

♦ return to the resident from the trust management of funds transferred by the resident to the trust management of the non-resident in foreign currency;

♦ payment to the resident of interest, penalties, commissions and other payments stipulated by the terms of the above transactions.

The main body of currency regulation in the Russian Federation is the Bank of Russia, which:

♦ determines the scope and procedure for the circulation of foreign currency and securities in foreign currency in the Russian Federation;

♦ issues normative acts for execution by residents and non-residents;

♦ conducts all types of currency transactions;

♦ establishes all the rules for residents and non-residents to conduct currency transactions, and for non-residents - transactions with the ruble and securities in rubles;

♦ establishes the procedure for the mandatory transfer, importation and transfer to the Russian Federation of currency and securities in foreign currency belonging to residents, as well as the cases and conditions for residents to open foreign currency accounts in banks outside the Russian Federation;

♦ establishes general rules for issuing licenses to banks and credit organizations for foreign exchange operations and issues licenses;

♦ establishes uniform forms of accounting, reporting, documentation and statistics of foreign exchange transactions, including by authorized banks, as well as the procedure and terms for their submission;

♦ prepares and publishes statistics on foreign exchange transactions in the Russian Federation in accordance with accepted international standards.

Authorized banks reporting to the Bank of Russia perform the functions of a currency control agent.

The main areas of currency control are:

1. Determination of the compliance of the currency transactions carried out with the current legislation and the availability of the necessary licenses and permits for them.

2. Checking the fulfillment by residents of obligations in foreign currency to the state, as well as obligations to sell foreign currency on the domestic foreign exchange market of Russia

3. Checking the validity of payments in foreign currency.

4. Checking the completeness and objectivity of accounting and reporting on foreign exchange transactions, as well as on transactions of non-residents in rubles (ie, in the currency of the Russian Federation).

Of fundamental importance is the legislative differentiation of foreign exchange operations into two main types:

current currency transactions;

currency transactions associated with the movement of capital.

Current foreign exchange transactions are:

  • a) transfers to the Russian Federation and from the Russian Federation of foreign currency for settlements without deferred payment for the export and import of goods, works and services, as well as for settlements related to crediting export-import transactions for a period not exceeding 180 days;
  • b) obtaining and granting financial loans for a period not exceeding 180 days;
  • c) transfers to the Russian Federation and from the Russian Federation of interest, dividends and other income on deposits, loans and other transactions related to the movement of capital;

r) non-commercial transfers to and from the Russian Federation, including transfers of wages, pensions, alimony, inheritance, and other similar transactions.

Currency transactions related to the movement of capital:

  • a) direct investment, i.e. investments in the authorized capital of the enterprise in order to generate income and obtain rights to participate in the management of the enterprise;
  • b) portfolio investment, i.e. purchase of securities;
  • c) transfers in payment of the right of ownership to buildings, structures and other property, including land and its subsoil, attributable under the legislation of the country of its location to real estate, as well as other rights to real estate;

r) granting and receiving a deferred payment for a period of more than 180 days for the export and import of goods, works and services;

  • e) provision and receipt of financial loans for a period of more than 180 days;
  • f) all other currency transactions that are not current currency transactions.

The division of foreign exchange operations into two types is a tribute to their influence on economic processes.

Current operations are aimed at servicing export-import trade operations (payment for them, including obtaining loans for these purposes), as well as ensuring the movement of foreign exchange funds of citizens working or living abroad (pensions, transfers, etc.).

Currency transactions associated with the movement of capital, as the name implies, means the investment of Russian capital in a foreign economy, as well as the import of foreign capital into the country. Both processes can have negative consequences for the domestic economy (both in the form of capital outflow and in the form of establishing foreign control over various areas of the national economy).

As a consequence, residents carry out current currency transactions without restrictions, and transactions of the second type are subject to fairly strict control by the state, represented by its relevant authorities.

The Law on Currency Regulation and Currency Control defines the concept of "authorized banks", which means banks and other credit institutions that have received licenses from the Central Bank of the Russian Federation to conduct foreign exchange transactions. Licenses to conduct foreign exchange transactions are issued to commercial banks and other credit institutions, as a rule, one year after the start of their work. The purchase and sale of foreign currency in the Russian Federation is carried out only through authorized banks. Foreign currency purchase and sale transactions can be carried out both directly between authorized banks and through currency exchanges.

Foreign currency purchase and sale transactions concluded in violation of these norms are invalid.

currency restrictions. Currency restrictions mean legislative or administrative prohibition, limitation or regulation of operations of residents and non-residents with currency and other currency values. Currency restrictions contribute to the redistribution of currency values ​​in favor of the state or large entrepreneurs. The introduction of currency restrictions can be dictated by both economic and political motives. On the whole, the minimization of state intervention in foreign exchange relations, the development of economic freedom always means a reduction in foreign exchange restrictions.

The legislation of foreign countries knows many varieties of currency restrictions, which include, for example:

centralization of foreign exchange transactions in central banks;

licensing of foreign exchange transactions;

full or partial blocking of foreign currency accounts;

mandatory sale of foreign exchange earnings of exporters in whole or in part to the central or authorized banks;

restrictions on the convertibility of currencies, etc.

Currency restrictions can be applied both to current foreign exchange transactions and to transactions related to the movement of capital.

Legislative restrictions on operations with currency values ​​are one of the forms of the monetary policy of the Russian Federation. One of the objects of currency restrictions is the currency rights of enterprises and the population.

Thus, the activities of exporting enterprises were regulated in the 1990s with the help of export licenses, as well as export-import tariffs. Export licenses are seen as a means of deterring the export of raw materials and fuel from the country. And import tariffs - as a means to reduce the competition of foreign goods against goods produced by domestic industry.

One of the foreign exchange restrictions is the mandatory sale of a part of export foreign exchange earnings in the domestic market.

In the process of carrying out the movement of capital and loans, Russian enterprises have the right to buy securities and receive loans abroad only with the permission of the Central Bank of the Russian Federation.

With regard to individuals, the currency restriction is a ban on the export, import and transfer abroad by Russian citizens of cash national currency in excess of 100 million rubles. The export of foreign currency in excess of 500 US dollars is allowed if there is a certificate from an authorized bank.

One of the important currency restrictions is the official prohibition of the circulation and use of foreign currencies as a means of payment. Since January 1993, the sale of goods, works and services to citizens in the territory of Russia for foreign currency is allowed only to shops licensed by the Central Bank, which determines the list of goods and services sold. This measure is aimed at combating the "dollarization" of the economy.

As a certain easing of foreign exchange restrictions, one can name the right granted to citizens to open foreign currency accounts in banks, as well as to sell and buy foreign currency at exchange offices of authorized banks. Foreign firms and citizens (non-residents) are allowed to open accounts in rubles in Russian banks, which is a form of admission of non-residents to the domestic foreign exchange market of Russia.

In the process of developing the foreign exchange market in the country, a search began for optimal options for distributing foreign exchange earnings from foreign economic operations between the state and specific enterprises that own export products. The form of such distribution was the legislative establishment of the mandatory sale of a part of foreign exchange export earnings in the domestic foreign exchange market.

In subsequent years, a number of legal acts were adopted that introduced significant changes in the regulation of the issue under consideration. To date, the main legal act on this issue is

Instruction of the Central Bank of June 29, 1992 N 7 "On the procedure for the mandatory sale by enterprises, associations, organizations of a part of foreign exchange earnings through authorized banks and operations in the domestic foreign exchange market of the Russian Federation" (approved by order of the Central Bank of June 29, 1992 N 02- 104 A) (as amended and supplemented on September 15, December 31, 1992, June 28, 1993, April 5, June 21, July 29, 1994, June 16, 26, 1995, July 17, 1997 ., September 11, December 7, 31, 1998, January 13, June 18, 1999).

Let's note the most important points of the specified legal act:

  • 1. Enterprises, regardless of their form of ownership, including enterprises with the participation of foreign investments, carry out the mandatory sale of 50 per cent of foreign exchange earnings from the export of goods (works, services) on the domestic foreign exchange market of the Russian Federation.
  • 2. Sale is carried out through authorized banks at the market rate of the ruble.
  • 3. In the event of a mandatory sale, enterprises may sell foreign currency through authorized banks on the interbank currency exchanges, as well as, in agreement with the Foreign Operations Department of the Bank of Russia, to the Foreign Exchange Reserve of the Bank of Russia.
  • 4. The instruction contains a list of foreign currency receipts from non-residents that are not subject to mandatory sale. It includes, in particular:

receipts as contributions to the authorized capital, as well as income received from participation in the capital;

receipts in the form of attracted loans, deposits, deposits, as well as amounts received in repayment of loans (deposits, deposits), including accrued interest;

receipts in the form of donations for charitable purposes;

other receipts.

5. A procedure has been established for the mandatory sale by enterprises of a part of export earnings. It can be presented in the following, somewhat simplified form.

All receipts of enterprises in foreign currency shall be credited to their foreign currency accounts in authorized banks in the Russian Federation, unless otherwise permitted by the Central Bank of the Russian Federation.

Each enterprise opens two parallel accounts in an authorized bank:

transit currency account for crediting the full amount of receipts in foreign currency;

a current currency account to account for the funds remaining at the disposal of the enterprise after the mandatory sale of export earnings.

Thus, all foreign exchange earnings of the enterprise are credited to the transit foreign exchange account. On behalf of the enterprise, 50 percent of foreign exchange earnings are sold on the domestic foreign exchange market, and the remaining funds are transferred to the second - the enterprise's current currency account. Hence the name of the first account - transit.

As a result of the implementation of the considered Decree, the supply of foreign currency in the Russian foreign exchange market increases, and foreign exchange reserves of the Bank of Russia are formed. At the same time, 50 percent of export earnings remain at the disposal of enterprises and go to the formation of their foreign exchange funds. It should be noted that some legal acts establish benefits for the mandatory sale of a part of export earnings or even completely exempt from it. So, by Decree of the President of the Russian Federation of June 27, 1994 NW of the Russian Federation. 1994. No. 10. Art. 1114. Federal institutions and organizations of culture and art, cinematography, archival services, circus enterprises and organizations are exempted from the mandatory sale of a part of foreign exchange earnings.

For violation of the procedure for crediting foreign exchange earnings, business entities are subject to a fine imposed by the State Tax Service of the Russian Federation in the amount of the entire hidden proceeds in foreign currency or the ruble equivalent of the amount of the fine. According to the Letter of the State Tax Service of the Russian Federation dated August 27, 1993 "On the application of penalties for violation of the procedure for crediting foreign exchange earnings to accounts in authorized banks of the Russian Federation", hidden revenue should be understood as revenue not credited to accounts in authorized banks, regardless of its reflection in the accounting accounting for an economic entity, unless otherwise permitted by the Central Bank of the Russian Federation. Opening violations of currency transactions is possible in the process of exercising currency control.

» Types of foreign exchange transactions and the general procedure for their execution

A. S. Selivanovsky

Types of currency transactions and the general procedure for their performance

Basic concepts

Article 140 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation) establishes that the legal tender, which is obligatory for acceptance at face value throughout the territory of the Russian Federation, is the ruble. The cases, procedure and conditions for the use of foreign currency on the territory of the Russian Federation are determined by law or in the manner prescribed by it. In Art. 141 of the Civil Code of the Russian Federation states that the types of property recognized as currency values ​​and the procedure for making transactions with it are determined by the law on currency regulation and currency control.

Consider the general rules for the implementation of foreign exchange transactions by residents.

Law of the Russian Federation No. 3615-1 dated 09.10.92 “On Currency Regulation and Currency Control” (hereinafter Law) distinguishes between two concepts: “foreign currency” and “currency values”.

The Law refers to the concept of "foreign currency":

a) banknotes in the form of banknotes, treasury bills, coins that are in circulation and are legal tender in the relevant foreign state or group of states, as well as banknotes withdrawn or withdrawn from circulation, but subject to exchange;

b) funds on accounts in monetary units of foreign states and international monetary or accounting units.

under the term " currency values» Law understands:

a) foreign currency;

b) securities in foreign currency - payment documents (checks, bills of exchange, letters of credit and others), stock values ​​(shares, bonds) and other debt obligations denominated in foreign currency;

c) precious metals - gold, silver, platinum and platinum group metals (palladium, iridium, rhodium, ruthenium and osmium) in any form and condition, with the exception of jewelry and other household products, as well as scrap of such products;

d) natural precious stones - diamonds, rubies, emeralds, sapphires and alexandrites in raw and processed form, as well as pearls, with the exception of jewelry and other household products made from these stones and scrap of such products.

The law refers to foreign exchange transactions:

a) transactions related to the transfer of ownership and other rights to currency values, including transactions related to the use of foreign currency as a means of payment and payment documents in foreign currency;

b) import and transfer to the Russian Federation, as well as export and transfer from the Russian Federation of currency valuables;

c) making international money transfers;

d) settlements between residents and non-residents in the currency of the Russian Federation.

The law, in addition to the right of ownership, uses the term " other rights to currency values, but does not reveal it. Let's consider some possible "other rights" that can be used as a criterion for classifying a transaction as a foreign exchange transaction.

Currently, there are different opinions of experts on the issue of classifying a particular transaction as “other rights to currency values”. Most often, the following “other rights” are distinguished: the right to possess, the right to use, the right to dispose, the right to demand the transfer (receipt) of currency values.

Transactions on the transfer of ownership of currency values ​​can be attributed to currency transactions (for example, the transfer of gold bars for storage or for trust management).

The task of classifying transactions for the transfer of the right to use or dispose of currency values ​​to currency transactions looks more complicated.

Difficult questions arise during the qualification of transactions, the object of which is the right to claim for the transfer (receipt) of currency values. Unfortunately, at present there is no clear position of the Bank of Russia on this issue.

On the one hand, clause 1.14 of the Regulation on changing the procedure for conducting certain types of foreign exchange transactions in the Russian Federation, approved by Order No. 39 of the Central Bank of the Russian Federation dated April 24, 1996 (hereinafter Regulation No. 39), defines transactions for the transfer of rights of claim from a resident to an authorized bank as a foreign exchange an operation carried out without the permission (license) of the Bank of Russia.

On the other hand, in the Generalization of the practice of applying Bank of Russia regulations on currency regulation issues "Other Issues on the Application of Currency Legislation", published on May 26, 2000, the Bank of Russia explained that:

« By its nature, a transaction of assignment of a claim denominated in a foreign currency is not a foreign exchange transaction.. Foreign currency transactions will be settlements in foreign currency under this transaction.

Unless otherwise established by the regulations of the Bank of Russia, obtaining permission from the Bank of Russia to carry out such a currency transaction is necessary for the fulfillment of a monetary obligation in favor of the person to whom the claim is assigned, provided that such payments are made in foreign currency.”

It is impossible not to take into account the position of the Supreme Arbitration Court of the Russian Federation (hereinafter referred to as the Supreme Arbitration Court of the Russian Federation) on this issue. In the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated May 31, 2000 No. 52 "Overview of the practice of resolving disputes by arbitration courts related to the application of legislation on currency regulation and currency control", one case is cited related to the qualification of an agreement (transaction) regarding the fulfillment of obligations in foreign currency as currency transaction. The crux of the matter was that the resident A concluded with a resident B an agreement under which a resident B undertook to make a payment in foreign currency to a non-resident for a resident A. The currency control authority fined the resident A for a capital currency transaction performed without a license from the Bank of Russia. Considering this case, the Supreme Arbitration Court of the Russian Federation pointed out that “The imposition of the performance of an obligation in foreign currency on a third party provides the third party with the appropriate powers, but does not create an obligation for the latter to perform the performance against his will and is not identical with the performance of the obligation in foreign currency. Such an assignment does not oblige its addressee to act in violation of the law even if it is contained in a civil law contract. In the above example, a foreign exchange transaction is a transfer of foreign currency to a non-resident by a third party, and not an agreement between the latter and the contract holder. A foreign exchange operation performed by a third party required obtaining permission from the Bank of Russia for the following reasons. In the case under consideration, it is a violation of currency legislation that a resident third party, without the latter obtaining permission from the Bank of Russia, makes settlements in foreign currency under an external economic contract providing for the import of goods into the Russian Federation, concluded by another resident with a non-resident.

Thus, at present it is not clear whether transactions with currency values, under the terms of which the ownership of currency values ​​does not transfer, are classified as foreign exchange transactions.

Currency transactions can be divided into the following groups:

  1. operations with foreign currency and securities in foreign currency;
  2. operations with precious metals, precious stones, pearls;
  3. transactions related to settlements in the currency of the Russian Federation between residents and non-residents.

The law subdivides the first group of foreign exchange operations into current operations and foreign exchange operations associated with the movement of capital (hereinafter capital operations). With respect to the second and third groups of operations, such a division is not applicable, and the Law establishes special rules for the implementation of such operations.

The qualification of a currency transaction is an important task, since the incorrect assignment of a transaction to any group entails the application of sanctions by the currency control authorities. Judicial and arbitration practice shows that most disputes related to the application of currency legislation arise over the definition of a currency transaction as a current or capital transaction and come down to the application of liability to a person for a capital transaction without the appropriate permission of the Bank of Russia.

Current operations

The law provides a closed (exhaustive) list of current operations:

a) transfers to the Russian Federation and from the Russian Federation of foreign currency for settlements without deferred payment for the export and import of goods (works, services, results of intellectual activity), as well as for settlements related to crediting export-import operations for a period not exceeding 90 days;

b) obtaining and granting financial loans for a period not exceeding 180 days;

c) transfers to the Russian Federation and from the Russian Federation of interest, dividends and other income on deposits, investments, loans and other transactions related to the movement of capital;

d) non-commercial transfers to and from the Russian Federation, including transfers of wages, pensions, alimony, inheritance, and other similar transactions.

Let's take a closer look at each type of current operations.

Export or import operations with payment up to 90 days. The condition for classifying payments on foreign trade activities as current foreign exchange transactions is the absence of conditions for deferring payment for exports and imports of goods (works, services, results of intellectual activity) for a period exceeding 90 days (Before December 30, 1998, this period was 180 days).

Credit operations with a term of up to 180 days . The law refers to current operations the receipt and provision of financial loans for a period not exceeding 180 days. This definition was introduced in 1992 and has not changed since then. However, the lack of a definition of “financial credit” in the Law for a long time complicated the application of this provision.

Chapter 42 of the second part of the Civil Code of the Russian Federation, which entered into force on March 1, 1996, draws a clear line between a loan agreement and a credit agreement. In this regard, there was an ambiguity in the classification of operations to attract (provide) loans from residents and non-residents.

This problem was resolved in the Generalization of the Practice of Applying Bank of Russia Regulations on Currency Regulation Issues "Other Issues on the Application of Currency Legislation", published on August 10, 2000. The Bank of Russia clarified that:

“Since financial credits and loans by their nature have a single economic nature, residents (legal entities and individuals) have the right, without restrictions, to provide loans in foreign currency to residents and non-residents (legal entities and individuals) for a period of not more than 180 days, and also receive loans from residents and non-residents (legal entities and individuals) in foreign currency for a period not exceeding 180 days. In this case, payments must be made in a non-cash manner.

Thus, for the purposes of currency legislation, the concept of "financial credit" includes both credits and loans.

Upon receipt of a loan, the calculation of the specified period is carried out from the date of crediting funds in foreign currency to a foreign currency account until the date of debiting funds sent in the form of a loan (loan) repayment. Similarly, the term is calculated when providing a loan (loan).

Getting income from investments . The law classifies as current operations transfers to and from the Russian Federation of interest, dividends and other income on deposits, investments, loans and other transactions related to the movement of capital.

It should be noted that the condition for classifying money transfers to and from the Russian Federation as interest, dividends and other income on deposits, investments, loans and other capital transactions as current operations is the fact of a previously performed capital transaction. Otherwise, a foreign exchange transaction for the transfer of interest, dividends and other investment income should be qualified as a capital transaction.

Non-trading operations. The law classifies as current transactions non-commercial transfers to and from the Russian Federation, including transfers of wages, pensions, alimony, inheritance, and other similar transactions.

The concept of “non-commercial transfers” is defined by listing possible cases: transfers of wages, alimony, inheritance, while the Law leaves this list open. In this regard, questions arise about the criteria for classifying certain operations as non-trading.

The Bank of Russia expressed its position on this issue in the clarification of the Department of Currency Regulation and Currency Control of the Bank of Russia, published on August 19, 1997 in the Bulletin of the Bank of Russia:

“An exhaustive list of non-trading operations is not established by the current legislation. Non-trading transactions include currency transactions, which are specified in subparagraph "d" of paragraph 9 of Article 1 of the Law of the Russian Federation "On currency regulation and currency control". In addition, lists of non-trade transactions are contained in intergovernmental agreements on non-trade payments concluded by the Russian Federation with a number of foreign states.

It should also be noted that some types of foreign exchange transactions of a non-trading nature, carried out without the permission of the Bank of Russia, are singled out by the Bank of Russia in Regulation No 39:

  • payment of entrance and membership fees in favor of international (governmental and non-governmental) organizations;
  • payment for participation in international symposiums, conferences, other international meetings, as well as international exhibitions, fairs, sports competitions, other cultural events held on the territory of foreign states;
  • non-cash crediting by residents who are not commercial organizations to their foreign currency accounts opened with authorized banks of foreign currency received from non-residents as voluntary and gratuitous donations; transfers by residents from the Russian Federation of foreign currency in favor of non-residents in payment for education and treatment of individuals;
  • transfers by residents from the Russian Federation of pensions, alimony, state benefits, additional payments and compensations, amounts paid on the basis of sentences, decisions and rulings of judicial and other competent authorities, inheritance amounts and amounts received from the sale of hereditary property, as well as payments for reimbursement of court expenses, arbitration, notarial and other administrative bodies (including payment of taxes, fees, duties and other obligatory payments for the performance by these bodies of their functions) in accordance with the legislation of foreign states, etc.

    • Capital operations

    Unlike current operations, the Law lists operations related to the movement of capital in the following open list:

    a) direct investments, that is, investments in the authorized capital of an enterprise in order to generate income and obtain rights to participate in the management of an enterprise;

    b) portfolio investment, that is, the purchase of securities;

    c) transfers in payment of the right of ownership to buildings, structures and other property, including land and its subsoil, attributable under the legislation of the country of its location to real estate, as well as other rights to real estate;

    d) granting and receiving a deferred payment for a period of more than 90 days for the export and import of goods (works, services, results of intellectual activity);

    e) provision and receipt of financial loans for a period of more than 180 days;

    f) all other currency transactions that are not current currency transactions.

    The principle of such qualification: all foreign exchange transactions that do not fall into the category of current transactions are recognized by the Law as capital transactions.

    Let us dwell in more detail on two types of capital transactions, which the Law singles out separately in this list.

    Direct investments . By direct investment, the Law understands investments in the authorized capital of an enterprise for the purpose of generating income and obtaining rights to participate in the management of an enterprise. It should be noted that this rule applies both to investments in the authorized capital of non-resident enterprises and to investments in the authorized capital of Russian legal entities. Unfortunately, the Law vaguely formulates and does not disclose the concept of "investment in authorized capital". As a result, this rule can be interpreted in different ways.

    A “broad” interpretation is possible, according to which any acquisition of rights to participate in the management of a legal entity is a capital transaction. In accordance with the “narrow” interpretation of this provision, a capital operation is only the transfer of funds in foreign currency to pay for the authorized capital of a legal entity in order to generate income and, at the same time, obtain rights to participate in the management of this legal entity.

    In our opinion, when solving this problem, one should be based on the concepts of "currency transaction" and "currency values" defined by the Law. To classify foreign exchange transactions as related to “investment in authorized capital”, it is advisable to consider only transactions related to the transfer of ownership and other rights to foreign exchange values, as well as international money transfers. Capital operations in this case will be:

  • payment in foreign currency as payment for the authorized capital of a legal entity during the initial issue;
  • making payment for participation in the capital of a non-resident legal entity by depositing currency values ​​(securities in foreign currency or precious metals or stones);
  • acquisition of the right of ownership (and/or other rights) to securities of a legal entity, certifying participation in the authorized capital and denominated in foreign currency, in the secondary market.

    • Operations for the acquisition of real estate. The law includes transfers in payment for the right of ownership and other rights to real estate (buildings, structures and other property, including land and its subsoil, which, according to the legislation of the country of its location, to real estate) are among such operations. Due to the lack of a clear definition of the scope of the Law and the concept of other rights to real estate, disputes often arise not only about the qualification of a particular currency transaction, but also about the legality of applying the Law. Here are two situations that clearly demonstrate the imperfection of the current legislation.

    Situation one. An individual - a resident travels outside the Russian Federation and transports a certain amount of funds in foreign currency, in compliance with Russian legislation. During the period of stay abroad, this person concludes an agreement on the acquisition of a house outside the Russian Federation and pays for real estate in cash in foreign currency. In this case, there is no transfer that serves as a criterion for classifying the operation as a capital one.

    Situation two. A resident individual, subject to the current Russian legislation, travels outside the Russian Federation to a resort. This person books a hotel room and makes a corresponding transfer to pay for the room. It is obvious that a hotel room, being a room, refers to real estate, and this person enters into an agreement on the lease of real estate. This operation, according to the letter of the Law, should be considered as capital, therefore, for its implementation it is necessary to obtain a permit (license) from the Bank of Russia, which in this situation looks absurd.

    It should be noted that the concept of "real estate" is regulated by the legislation of each independent state. Therefore, conflicts arise in the legal qualification of transfers in payment for such objects as current or capital foreign exchange transactions.

    The procedure for the implementation of foreign exchange transactions by residents

    The peculiarity of foreign exchange transactions is that they must be carried out not only in compliance with civil law, but also within the strictly defined framework of foreign exchange legislation, i.e. taking into account the prohibitions and restrictions established by law, the purpose of which is to ensure the economic security of the state, the stability of its monetary system as one of the foundations of social relations.

    The law in Article 6 established the following general rules:

    • current operations are carried out by residents without restrictions, i.e. obtaining a special permit (license) from the Bank of Russia;
    • capital transactions are carried out by residents in the manner established by the Bank of Russia.

    At present, the Bank of Russia has established three procedures (orders) for the implementation of capital operations:

  1. Operations listed in the legislation (for example, in the Federal Law "On Leasing", Bank of Russia regulations, for example, in Regulation No 39, are carried out without obtaining permission from the Bank of Russia). Let's call this order "unlicensed";
  • Operations are carried out in a registration procedure (for example, obtaining loans from non-residents for a period of more than 180 days). Let's call this order "mixed";
  • The remaining operations are carried out only in a permissive manner, i.e. such transactions are possible only after the resident receives a personal permission from the Bank of Russia to carry out a specific transaction. Let's call this order "licensed".

    • The difference between current operations and unlicensed capital operations lies in the fact that the Bank of Russia, within its competence, has the right to change the procedure for their conduct, including the introduction of a licensing procedure, while the procedure for carrying out current operations is determined by the Law. At the same time, it should be noted that the Bank of Russia has broad powers and is able to establish strict rules for conducting current operations. An example is the instruction dated 04.10.2000 No 01-11/28644, 91-I, jointly with the State Customs Committee of the Russian Federation, "On the procedure for exercising currency control over the validity of payment by residents for imported goods" (hereinafter Instruction No 91-I).

    It should be noted that for some groups of organizations, special rules have been established for conducting capital transactions (authorized banks, insurance companies, individuals).

    It should also be borne in mind that the ruble is the legal tender in the Russian Federation, and the use of foreign currency is possible only in cases specified by law or in the manner prescribed by it. Therefore, some current transactions carried out on the territory of the Russian Federation must be carried out on the basis of a permit (license) from the Bank of Russia, unless otherwise established by it.

    Currency legislation establishes the procedure for the implementation of currency transactions by residents. At the same time, all transactions performed by residents must be carried out through authorized banks, which, in turn, are obliged to perform the functions of currency control agents for these transactions.

    Legal entities carry out all currency transactions on the basis of concluded agreements (contracts, agreements). In accordance with the current legislation, transactions concluded by legal entities must be made in writing. The written form of the transaction is considered to be observed both when drawing up a single document (for example, a contract), and in some other cases, for example, when exchanging letters, from which it follows that the parties have reached an agreement on all the essential terms of the contract.

    By Letter No. 300 dated July 15, 1996, the Bank of Russia brought to the attention of authorized banks “Recommendations on Minimum Requirements for Mandatory Details and the Form of Foreign Trade Contracts”. Authorized banks were instructed to familiarize their clients with this document - participants in foreign trade activities and recommend that they be guided by it when concluding export-import transactions.


    A similar position was expressed in Letter No. 12-1-0-3/6369 of the Bank of Russia dated February 1, 1996.

    Accounting No. 4, 2001

    Currency transactions can be considered as a combination of the following elements:

    a) transactions related to the transfer of ownership and other rights to currency values, including those related to the use of foreign currency and payment documents in foreign currency as a means of payment;

    b) import and transfer to the Russian Federation, as well as export and transfer from the Russian Federation of currency valuables;

    c) making international money transfers. Legislation relating to currency regulation and

    currency control, establishes that transactions with foreign currency and securities in foreign currency are divided into current foreign exchange transactions and foreign exchange transactions associated with the movement of capital.

    Under current foreign exchange transactions are understood:

    a) transfers to the Russian Federation and from the Russian Federation of foreign currency for settlements without deferred payment for the export and import of goods, works and services, as well as for settlements related to crediting export-import transactions for a period not exceeding 180 days;

    b) obtaining and granting financial loans for a period not exceeding 180 days;

    c) transfers to the Russian Federation and from the Russian Federation of interest, dividends and other income on deposits, investments, loans and other transactions related to the movement of capital;

    d) non-commercial transfers to and from the Russian Federation, including transfers of wages, pensions, alimony, inheritance, and other similar transactions.

    Under the currency transactions associated with the movement of capital are understood:

    a) direct investments, i.e. investments in the authorized capital of an enterprise in order to generate income and obtain rights to participate in the management of an enterprise;

    b) portfolio investment, i.e., the acquisition of securities;

    c) transfers in payment of the right of ownership to buildings, structures and other property, including land and its subsoil, attributable under the legislation of the country of its location to real estate, as well as other rights to real estate;

    d) granting and receiving a deferred payment for a period of more than 180 days for the export and import of goods, works and services;

    e) provision and receipt of financial loans for a period of more than 180 days;

    f) all other currency transactions that are not current currency transactions.

    There is a rule according to which settlements between residents are carried out in the currency of the Russian Federation.

    Export and shipment from the Russian Federation, the currency of the Russian Federation and other securities denominated in the currency of the Russian Federation, as well as import And translation to the Russian Federation, the currency of the Russian Federation and securities denominated in the currency of the Russian Federation are carried out by residents and non-

    residents in the manner established by the Central Bank of Russia jointly with the Ministry of Finance of the Russian Federation and the State Customs Committee of Russia.

    The current legislation establishes the following procedure for the implementation of current currency transactions by residents:

    current currency transactions are carried out without restrictions;

    currency transactions related to the movement of capital are carried out in accordance with the procedure established by the Central Bank of the Russian Federation;

    residents have the right to transfer, import and forward currency values ​​to the Russian Federation without restrictions, subject to customs regulations;

    the procedure for the mandatory transfer, importation and transfer to the Russian Federation of foreign currency and securities in foreign currency owned by residents is established by the Central Bank of the Russian Federation;

    residents have the right to sell foreign currency for the currency of the Russian Federation on the domestic foreign exchange market of Russia in the manner prescribed by the current currency legislation;

    the procedure for the formation of state foreign exchange reserves is established by the highest representative body of Russia. The procedure for the mandatory sale by residents of foreign currency receipts in the domestic foreign exchange market of Russia is established by the President of the Russian Federation with subsequent submission of information to the highest representative body of Russia;

    resident individuals have the right to transfer, export and send from the Russian Federation previously transferred, imported or sent to the Russian Federation currency values ​​subject to customs rules within the limits specified in the declaration or other document confirming their transfer, import or transfer to the Russian Federation;

    the procedure for the export and transfer of currency valuables from the Russian Federation is established by the Central Bank of the Russian Federation jointly with the State Customs Committee of Russia.

    Non-residents have the right:

    have accounts in foreign currency and in the currency of the Russian Federation in authorized banks. The procedure for opening and maintaining an authorization

    Financial Law of Russia. Special part

    banks of accounts of non-residents in foreign currency and in the currency of the Russian Federation are established by the Central Bank of the Russian Federation;

    without restrictions to transfer, import and send currency values ​​to the Russian Federation, subject to customs regulations;

    sell and buy foreign currency for the currency of the Russian Federation in the manner established by the Central Bank of the Russian Federation;

    freely transfer, export and send from the Russian Federation currency values ​​subject to customs rules, if these currency values ​​were previously transferred, imported or sent to the Russian Federation or acquired in the Russian Federation on the grounds specified by the Law on Currency Regulation, and in other cases in accordance with the legislation of the Russian Federation;

    transfer, export and forward from the Russian Federation currency values, except for the cases specified in the law, in the manner established by the Central Bank of the Russian Federation together with the State Customs Committee of Russia.

    Foreign investors, after paying the relevant taxes and fees, are guaranteed the unhindered transfer abroad of payments in connection with their investments, if these payments are received in foreign currency.

    The procedure for selling goods (works, services) to citizens in Russia for foreign currency is established by the Central Bank of the Russian Federation.

    In order to strengthen control over foreign exchange transactions, from January 1, 1994, the Central Bank of the Russian Federation prohibited the sale of goods (works, services) to citizens in Russia for cash foreign currency. At the same time, all settlements between authorized enterprises and citizens for the goods (works, services) sold by the latter on the territory of the Russian Federation can be carried out in rubles and foreign currency in all forms accepted in international practice (including payment by credit and debit cards), with the exception of cash settlements foreign currency.

    To carry out official foreign exchange transactions, commercial banks have the right to open specialized exchange offices. Such points are opened only at the location of a commercial bank throughout the territory under the jurisdiction of the relevant Main Territory.

    Chapter 26

    rhetorical management of the Bank of Russia. The exchange office performs the following operations:

    purchase and sale of cash foreign currency for cash rubles;

    purchase and sale of payment documents in foreign currency for cash rubles, as well as sale and payment of payment documents in foreign currency for cash foreign currency;

    acceptance for sending for collection of cash foreign currency and payment documents in foreign currency;

    acceptance for examination of banknotes of foreign states and payment documents in foreign currency, the authenticity of which is in doubt;

    issuance of cash foreign currency by credit and debit cards, as well as acceptance of cash foreign currency for crediting to accounts of individuals in banks, for settlements with credit and debit cards;

    exchange (conversion) of cash foreign currency of one foreign state for cash foreign currency of another foreign state;

    exchange of banknotes of a foreign state for banknotes of the same foreign state.

    § 4. Currency control

    Currency control is the control of the state over the observance of currency legislation in the implementation of foreign exchange transactions.

    According to the currency legislation purpose of currency control is the observance of currency legislation in the implementation of foreign exchange transactions.

    Currency control is a kind of financial control, so it has all the common features of financial control. At the same time, it has some specific features. Its main directions are: a) determining the compliance of ongoing foreign exchange transactions with the current legislation and the availability of the necessary licenses and permits for them; b) verification of compliance by residents with the obligation

    ___„„..ne/”t civ-ID

    liabilities in foreign currency to the state, as well as obligations to sell foreign currency on the domestic foreign exchange market of Russia; c) checking the validity of payments in foreign currency; d) checking the completeness and objectivity of accounting and reporting on foreign exchange transactions.

    Currency control is carried out by the Government of the Russian Federation, bodies and agents of currency control.

    The currency control bodies are the Central Bank of the Russian Federation and federal executive bodies authorized by the Government of the Russian Federation.

    Currency control agents are authorized banks reporting to the Central Bank of the Russian Federation, as well as professional participants in the securities market that are not authorized banks, including register holders (registrars) reporting to the federal executive body for the securities market, and territorial bodies of federal executive bodies , which are currency control bodies.

    The Federal Law "On Currency Regulation and Currency Control" establishes the rights and obligations of bodies and agents of currency control and their officials. Bodies and agents of currency control have the following general powers:

    carry out inspections of compliance by residents and non-residents with acts of the currency legislation of the Russian Federation and acts of currency regulation bodies;

    to check the completeness and reliability of accounting and reporting on foreign exchange transactions of residents and non-residents;

    request and receive documents and information related to the conduct of foreign exchange transactions, the opening and maintenance of accounts.

    Exclusively currency control bodies and their officials, within their competence, have the right to:

    issue orders to eliminate revealed violations of acts of the currency legislation of the Russian Federation and acts of currency regulation bodies;

    apply the measures of responsibility established by the legislation of the Russian Federation for violation of acts of currency legislation and acts of currency regulation bodies.

    Chapter 26. Legal bases of currency regulation 681

    For the purpose of exercising currency control, currency control agents, within their competence, have the right to request and receive from residents and non-residents documents related to the conduct of currency transactions, the opening and maintenance of accounts. Legislation prohibits currency control agents from requiring audited entities to provide documents that are not directly related to the ongoing currency transaction.

    Foreign exchange control Government of the Russian Federation is implemented through the activities of the Department of International Cooperation, whose main functions are currency regulation and currency control over transactions and operations with currency and currency values.

    Currency control is carried out customs authorities. All customs authorities carry out the functions of currency control within their competence. According to the Labor Code of the Russian Federation, the State Customs Committee of Russia is a currency control body. Other customs authorities are agents of currency control, accountable to the State Customs Committee of Russia. In order to implement currency control, special subdivisions are created in the structure of the State Customs Committee of Russia: a) in the State Customs Committee of Russia - the Office of Foreign Exchange Control; b) in regional customs departments - departments of currency control or departments of customs value control and currency control; c) in customs - departments of customs clearance and customs control, or departments of currency control, or departments of customs value control and currency control; d) at customs posts - departments of customs clearance and customs control.

    The competence of the customs authorities in the field of currency control is established by the Labor Code of the Russian Federation, according to which these authorities carry out currency control of two types: 1) actual - control over the movement of various objects of currency control across the customs border by persons; 2) documentary - control over currency transactions related to the movement of goods and vehicles across the customs border. The customs authorities exercise currency control over the movement of persons across the customs border of the Russian Federation, with the exception of the perimeters of free

    Financial Law of Russia. Special part

    Chapter 26

    customs zones and free warehouses, the currency of the Russian Federation, securities in the currency of the Russian Federation, currency valuables, as well as control over the correctness of currency transactions related to the movement of goods and vehicles across the Russian border.

    The legal basis for the powers of the customs authorities in the field of currency control have significant specifics, consisting in a combination of customs and currency legislation, as well as its detailing by subordinate regulatory legal acts adopted by the State Customs Committee of Russia independently or jointly with other currency control authorities.

    The customs legislation establishes procedures for conducting and forms of exercising currency control by customs authorities. When exercising currency control over compliance with the current rules for transactions and operations with currency and currency values, the customs authorities apply such forms as checking documents and information necessary for customs purposes; customs inspection (examination of goods and vehicles, personal inspection as an exceptional form of control); accounting of goods and vehicles; oral questioning of individuals and officials; verification of the accounting and reporting system; inspection of the territories and premises of temporary storage warehouses, customs warehouses, free warehouses, free customs zones and duty-free shops and other places where goods and vehicles subject to customs control may be located, or activities are carried out, control over which is entrusted to customs authorities.

    Currency legislation contains norms that apply to all currency control bodies and determine the objects of currency control.

    The ratio of customs and currency legislation must also be taken into account when qualifying offenses identified by customs authorities in the course of exercising currency control. The Labor Code of the Russian Federation establishes a rule on the basis of which, if customs authorities detect violations of currency legislation during the implementation of currency control, which are also violations of customs rules, the acts of the guilty subjects are qualified in accordance with the norms of the Code of Administrative Offenses of the Russian Federation, establishing the answer

    responsibility for violation of customs rules. All other illegal acts, the objects of encroachments of which are currency or currency values, form the composition of currency offenses, and the persons guilty of their commission are held accountable on the basis of Art. 25 of the Federal Law "On currency regulation and currency control".

    Ministry of Finance of the Russian Federation performs the functions of a currency control body assigned to it through the Currency Control Department. The Currency Control Department of the Russian Ministry of Finance is the legal successor of the previously existing Federal Service of Russia for Currency and Export Control 1 and operates on the basis of the Regulations approved by Order No. 120-P of the Russian Ministry of Finance dated November 28, 2002.

    The main objectives of the Department of Currency Control are: improvement of the legal framework and organizational system of currency control; coordinating the activities of bodies and agents of currency control, as well as law enforcement, regulatory and other federal executive bodies in the field of organizing and conducting currency control; exercising, within its competence, control over the observance by residents and non-residents of the currency legislation of the Russian Federation.

    In accordance with the assigned tasks, the Currency Control Department performs extensive functions, the main of which are: control over the fulfillment by residents of obligations in foreign currency to the state, as well as obligations to sell foreign currency in the domestic foreign exchange market of the Russian Federation; control over the completeness of the receipt by the Russian Federation of funds in foreign currency for foreign economic operations; issuing permits to residents to carry out foreign exchange transactions and licensing foreign exchange activities of residents; organizing and conducting audits of the completeness and objectivity of accounting and reporting on foreign exchange transactions, as well as on non-recurring transactions

    1 See: Decrees of the President of the Russian Federation of September 24, 1993 No. 1444 “On the Federal Service of Russia for Currency and Export Control” // SAP RF. 1993. No. 39. Art. 3605; dated August 9, 2000 No. 1476 “On recognizing as invalid some acts of the President of the RSFSR and the President of the Russian Federation on issues of federal executive bodies” // СЗ RF. 2000. No. 33. Art. 3353.

    Financial Law of Russia. Special part

    residents in the currency of the Russian Federation; organizing and exercising control over the use of loans in foreign currency provided to the Russian Federation and constituent entities of the Russian Federation on the basis of international treaties and agreements.

    The Department of Currency Control of the Ministry of Finance of Russia participates in international negotiations with the aim of concluding international treaties and agreements on the organization and implementation of currency control and combating the financing of terrorism.

    Based on the results of inspections of compliance by residents and non-residents with the currency legislation of the Russian Federation, the Currency Control Department prepares materials for submission to the relevant administrative, tax and law enforcement authorities, as well as to the relevant other currency control authorities, and assists them within its competence. Based on the results of generalization and analysis of the practice of currency control, including in foreign countries, the department develops proposals for the development and improvement of the currency legislation of the Russian Federation.

    Ministry of the Russian Federation for Taxes and Duties provides currency control: foreign trade transactions, the objects of which do not have a material form (works, services and intellectual property); the validity of settlements and payments by residents and non-residents in foreign currency within the customs territory of the Russian Federation; the completeness of the receipt of foreign exchange earnings from the export of works, services and intellectual activity to the Russian Federation.

    In accordance with the currency legislation, the Central Bank of the Russian Federation, as a body of currency regulation, has a rule-making function, i.e., it issues regulations that are binding in Russia for all residents and non-residents (clause 2, article 9).

    The Central Bank of the Russian Federation issues instructions, regulations and guidelines for certain areas of currency control. The objects of legal regulation of the Bank of Russia in the field of currency control are: the mandatory sale of foreign exchange earnings in the domestic foreign exchange market of Russia; organization and circulation of foreign currency in the Russian Federation; issue of securities in foreign currency on the territory of the Russian Federation

    regulation 685

    walkie-talkies, in particular government securities; payment of mandatory payments to the state in foreign currency; movement of Russian and foreign currency and currency values ​​across the border of the Russian Federation.

    Important in the implementation of currency control are main territorial departments of the Bank of Russia, who exercise control over compliance by authorized enterprises with the procedure established by the Central Bank of the Russian Federation for the sale of goods (works, services) to citizens on the territory of the Russian Federation for foreign currency and, based on the results of the inspections, send them to the Main Directorate for Foreign Exchange Regulation and Foreign Exchange Control of the Bank of Russia, as well as to local executive bodies authorities and territorial law enforcement agencies information about detected violations and measures taken. In the event that an authorized enterprise violates the current legislation, the main territorial department of the Bank of Russia makes a decision to cancel the permit issued to it (with a written notification of this to the authorized enterprise, authorized banks, maintaining foreign currency accounts of the corresponding enterprise, as well as the local executive authority). The authorized bank, upon receipt from the main territorial department of the Bank of Russia of a notice of cancellation of the permit, shall cease crediting to the current currency account of this enterprise of funds from the sale of goods (works, services) to citizens on the territory of the Russian Federation, which were transferred in favor of the enterprise after the date of cancellation of the latter's permit.

    In addition, the main territorial departments of the Bank of Russia are required to perform the following actions:

    check that enterprises selling goods (works, services) for foreign currency in the territory under their jurisdiction to citizens have the appropriate permission from the Bank of Russia;

    suspend the operations of enterprises on accounts in authorized banks in the event that officials of foreign exchange control bodies and agents fail to provide permission from the Bank of Russia to sell goods (works, services) to citizens in the territory of the Russian Federation for foreign currency;

    Financial Law of Russia. Special part

    submit claims to the court, arbitration court to invalidate transactions and illegal actions for the sale of goods (works, services) to citizens for foreign currency on the territory of the Russian Federation without permission from the Bank of Russia, as well as to recover everything received from invalid transactions and unreasonably acquired as a result of illegal actions to the state revenue;

    upon repeated recognition by a court or arbitration court of the above transactions as invalid and actions illegal, collect without acceptance fines in foreign currency in the amount of five times the amount unreasonably received as a result of invalid transactions and illegal actions to the state revenue. In the absence or insufficiency of funds in the foreign currency accounts of the enterprise V without acceptance, an amount in rubles is debited from his current account (within the balance of funds on it or from subsequent receipts in case of insufficient funds on the account), equivalent to the entire amount in foreign currency subject to direct debiting, or the missing part of it (with conversion into rubles at the Bank of Russia on the date of debiting funds from the current account);

    send statements about the implementation by a legal entity of activities without a proper permit (license) to the prosecutor's office or other bodies authorized to file claims for the liquidation of a legal entity;

    send materials of inspections of the activities of enterprises for the sale of goods (works, services) to citizens on the territory of the Russian Federation for foreign currency, during which facts of violations of the law were established, to local law enforcement agencies with a request to initiate criminal proceedings in accordance with the legislation of the Russian Federation;

    collect in an indisputable manner fines from authorized banks that make settlements (payments) in violation of the provisions of the law or credit foreign exchange earnings to the accounts of enterprises that sell goods (work, services) to citizens on the territory of the Russian Federation for foreign currency without the appropriate permission of the Bank of Russia, and also send to the Department for the Regulation of

    Chapter 26 regulation 687

    activity of banks of the Central Bank of the Russian Federation information on the said authorized banks;

    to collect in an unaccented manner fines from authorized enterprises in the amount of amounts that were not taken into account, were taken into account improperly, or for which documentation and information were not provided in the prescribed manner.

    take other measures provided by the current legislation.

    The creation of an effective financial and legal mechanism for currency control is a necessary condition for ensuring state economic interests. The mechanism of foreign exchange control over export and import transactions also makes it possible to record them and identify violations of foreign exchange legislation committed in the process of executing foreign economic transactions. At the same time, the financial and legal mechanism of currency control should not infringe on the rights of controlled entities. For these purposes, the currency legislation establishes that residents and non-residents carrying out currency transactions in the Russian Federation have the right: a) to get acquainted with the acts of inspections carried out by bodies and agents of currency control; b) appeal against decisions and actions (inaction) of bodies and agents of currency control and their officials in administrative and judicial proceedings; c) for compensation in accordance with the procedure established by law for real damage caused by unlawful actions (inaction) of bodies and agents of currency control and their officials.

    When carrying out foreign exchange transactions in the territory of the Russian Federation, residents and non-residents are obliged to: a) submit documents and information related to the conduct of foreign exchange transactions, opening and maintaining accounts to foreign exchange control bodies and agents; b) keep records and draw up reports on their foreign exchange transactions in accordance with the established procedure, ensuring the safety of the relevant Documents and materials for at least three years from the date of the relevant foreign exchange transaction, but not earlier

    Financial Law of Russia. Special part

    term of the contract; c) comply with the instructions of the currency control bodies to eliminate the identified violations of the acts of the currency legislation and acts of the currency regulation bodies.

    The implementation of control measures in any area of ​​financial activity, and especially in foreign exchange, should be based on adequate legislation. The imperfection of currency legislation, miscalculations and lack of experience in the work of regulatory and law enforcement agencies are used for criminal purposes through transactions that damage the economic security of the state.

    The current legislation in Russia regulating currency control was created in the 1980s-1990s, characterized by a number of negative processes in public financial activities. The period of formation of currency legislation coincided with the reduction of state reserves in foreign currency, the presence of a significant external debt, the outflow of capital abroad, and the depreciation of the national currency. These negative aspects had a corresponding impact on the monetary policy of the state and its legal design.

    As world experience shows, only countries with strong economic and financial potential can cope with serious financial problems without establishing strict currency control over the international movement of payments and capital 1 . Despite the growing trend in the world towards the abolition of currency restrictions, the current state of the economy and finances of Russia, largely undermined by the uncontrolled export of national resources, does not currently allow the state to completely abandon the use of currency regulation and control measures by the state.

    One of the most important tasks of the ongoing control measures should be the timely detection, suppression and prevention of violations of the currency regulation rules established by law, designed to ensure the stability of the national currency of the Russian Federation.

    Cm.: Ekbe V.F. International currency law M., 1997. S. 29

    Chapter 26. Legal bases of currency regulation 689

    Russia's integration into the international economic system requires a compromise between the need to liberalize the rules for foreign exchange transactions and the need to maintain an optimal balance of payments structure, maintain the national currency rate, and create a state foreign exchange reserve.

    Russia, being a participant in international economic cooperation, joins collective measures to combat the legalization (laundering) of money and other property acquired illegally.

    List of abbreviations

    Arbitration Procedure Code of the Russian Federation

    BC RF - Budget Code of the Russian Federation BNA RF - Bulletin of normative acts of federal executive authorities

    Air Force of the RSFSR - Bulletin of the Supreme Soviet of the RSFSR VdK RF - Water Code of the Russian Federation Bulletin of the RSFSR

    Vedomosti RF - Vedomosti of the Congress of People's Deputies of the Russian Federation and the Supreme Soviet of the Russian Federation

    VKS RF - Bulletin of the Constitutional Court of the Russian Federation

    Civil Code of the Russian Federation - Civil Code of the Russian Federation Code of Administrative Offenses of the Russian Federation - Code of Administrative Offenses of the Russian Federation

    KTM RF - Merchant Shipping Code of the Russian Federation

    LC RF - Forest Code of the Russian Federation Tax Code of the Russian Federation - Tax Code of the Russian Federation SAP RF - Collection of Acts of the President of the Russian Federation and the Government of the Russian Federation

    SZ RF - Collection of Legislation of the Russian Federation

    Labor Code of the Russian Federation - Customs Code of the Russian Federation TRK RF - Labor Code of the Russian Federation Criminal Code of the Russian Federation - Criminal Code of the Russian Federation Criminal Procedure Code of the Russian Federation

    Krokhina Yulia Alexandrovna- Doctor of Law, Professor. She was born in 1973. In 1994 she graduated from the Saratov State Academy of Law, in 1997 she defended her Ph.D., and in 2001 - a doctoral dissertation (they were published as monographs).

    Head of the Department of Administrative and Financial Law of the Russian Law Academy of the Ministry of Justice of the Russian Federation. He combines scientific and pedagogical activity with practical work, being a judge of the arbitration court at the Russian Law Academy of the Ministry of Justice of the Russian Federation, as well as an expert on legal issues of the Chamber of Tax Consultants of Russia.

    Yu. A. Krokhina is the author of more than a hundred scientific papers, including "The city as a subject of financial law" (monograph) (Saratov, 2000); "Budgetary Law and Russian Federalism" (monograph) (M., 2001); "Tax law of Russia" (Textbook for universities. M., 2003)