The war is causing irreparable damage to our economy. The collapse of enterprises and the decline of purchasing power push businesses to look for new markets abroad. Unfortunately, there are still many legal restrictions that make it difficult for entrepreneurs to work in foreign markets. One of them is this limitation of settlement terms for export-import operations.
The logic of these restrictions is simple - the state does not want assets from Ukraine to flow abroad. However, unscrupulous businesses often find schemes to circumvent these restrictions, and conscientious entrepreneurs, on the contrary, often suffer from unreasonably charged fines for violation of settlement terms.
In this article, we will focus specifically on the implementation of import operations by Ukrainian enterprises that do not involve the import of goods into the territory of Ukraine.
Thus, the National Bank of Ukraine has set the maximum settlement terms for operations on the export and import of goods. In the operations of residents on the import of goods, their delivery must be carried out within the terms specified in the contracts, but no later than the established settlement deadline, which is calculated from the date of the advance payment.
To date, the maximum settlement period is 180 calendar days and applies to operations carried out from April 5, 2022. A period of 365 days is applied to operations carried out before April 5, 2022. The limitation on terms of settlement does not apply to operations on the import of goods, the amount of which is less than 400 thousand hryvnias equivalent at the official rate of the NBU on the date of the operation.
Violation of the specified terms entails the charging of a penalty in the amount of 0.3% from the value of the undelivered goods for each day of delay. The total amount of the charged penalty cannot exceed the value of the undelivered goods.
Banks supervise compliance with settlement deadlines for export-import operations. And tax authorities, even during martial law, can carry out unscheduled documentary checks if information is received about the payer's violation of currency legislation in terms of compliance with the deadlines for receipt of goods for import operations or revenue for export operations.
At the same time, import operations under foreign economic agreements are possible without importing the goods to the territory of Ukraine. This can be the purchase of equipment for further use abroad, for example, the purchase of server equipment and placement of the same equipment on technical resources located abroad. It can also be the resale of purchased imported products to a non-resident in the full amount of the purchase outside of Ukraine.
The current legislation does not prohibit the implementation of import operations without bringing the goods to the territory of Ukraine under foreign economic agreements during the period of martial law.
In such cases, when will the delivery be deemed to have been made in order to stop counting the deadlines?
Yes, usually the delivery is considered to be made at the moment of completion of customs clearance of the goods on the territory of Ukraine. In accordance with NBU Resolution No. 7, which regulates the procedure for currency supervision of banks on residents' compliance with settlement deadlines for export and import operations, the customs declaration is the basis for the bank to stop monitoring the client's import operation. However, what if the buyer does not need the goods to be delivered to Ukraine?
The Law of Ukraine "On Foreign Economic Activity" provides, that the moment of import is this is the moment when the goods cross the customs border of Ukraine or when ownership of the imported goods passes from the seller to the buyer.
The already mentioned Resolution of the Board of the National Bank of Ukraine No. 7 foresees several cases when the bank completes the implementation of currency supervision over residents' compliance with the settlement deadlines in the case of importing products without bringing them into the territory of Ukraine.
First - this is when a resident buyer does not plan to import goods (products, equipment), because he plans to sell them abroad to another non-resident in the full amount of the purchase. In this case, the bank completes currency supervision after crediting funds from the non-resident buyer to the resident's current account in the bank. And although it is not required by the instructions, we recommend providing the bank with documents confirming the sale of goods previously purchased under the relevant import contract.
An option is also possible, when in such a situation the resident himself transferred the funds from his own account opened abroad, since the calculations for the sale of products were made through the resident's "foreign" account. But in this case, it is necessary to provide documents from a foreign bank that confirm the crediting of funds from a non-resident buyer for products.
The second case for completion of currency supervision by the bank is this submission of documents confirming the resident's use of products outside of Ukraine on the basis of contracts (contracts, agreements), other forms of documents used in international practice and which can be considered a contract.
Such documents can be:
- a direct foreign economic supply contract, from the content of which it will be clear that the equipment will be used abroad. At the same time, the place of delivery must be outside Ukraine. The bank must submit documents confirming its execution to the contract;
– a document confirming the transfer of ownership to a resident buyer, for example, an act of acceptance and transfer;
- other contracts, agreements on the provision of services, etc., the content of which implies the use of products (equipment) that is the subject of an import operation, at a specific location abroad.
The volume and content of the documents to be provided to the bank depends on the specific situation, but they must prove the use of products by a resident outside of Ukraine.
At the same time, the Resolution of the NBU No. 18 dated 24.02.2022 "On the operation of the banking system during the period of martial law" prohibits banks from suspending currency supervision for compliance with the settlement deadlines for the export or import of goods on the basis of documents on the termination of obligations by crediting counterpart uniforms requirements Therefore, non-delivery of the goods due to the offsetting with the supplier for the import transaction is excluded.
Therefore, the supply of products by a non-resident seller does not always involve the goods crossing the customs border of Ukraine, the goods may remain outside the borders of Ukraine. At the same time, it is important to confirm the fact of the transfer of ownership of the products to the resident, which enables him to dispose of such products, the fact of the use of products outside of Ukraine on the basis of contracts (contracts, agreements), or the fact of the sale of imported goods to another non-resident in full outside of Ukraine and receiving money from him for such goods.
