Beginning of currency control during export operations
The issues of exercising currency control on import and export operations of residents is regulated by the Law of Ukraine “On the Procedure for Settlements in Foreign Currency” dated September 23, 1994, No. 185/94-BP (hereinafter – Law No. 185), and the Law of Ukraine “On Foreign Economic Activity” dated 04.16.1991, No. 959-XII (hereinafter referred to as Law No. 959), by a resolution of the Cabinet of Ministers of Ukraine dated March 24, 1999, No. 136 “On the Approval of the Instructions on the Procedure for Exercising Control over Export and Import Operations” (hereinafter the “Instructions” No. 136).
In contrast to operations in respect of which there may be ambiguity in the interpretation of the terms and time of delivery and, accordingly, the date of completion of the currency control period and the removal by the authorized bank of such a control operation in relation to export operations, the legislative acts specifically set the start date for the currency term control.
Art. 1 of Law No. 185 stipulates that the proceeds of residents in foreign currency from exporting products must be credited to their foreign currency accounts with authorized banks at the due dates indicated in the contracts, but no later than 180 calendar days from the date of customs clearance (export customs clearance statement declarations) of such products. That is, the start of the deadline is precisely the date of registration of the corresponding export customs declaration. The same position is indicated in Instruction No. 136, clause 2.1 of which stipulates that the proceeds of residents must be credited to their bank accounts at the due dates indicated in the contracts, but no later than the deadline established by the legislation of Ukraine from the date of registration of the MD for products. Moreover, paragraph 2.2. Instructions No. 136 specify that the bank starts the countdown of the legally established settlement period from the next calendar day after the day the customs declaration is issued.
Responsibility for violation of the terms of currency settlements during the export of products established by Art. 1 of Law No. 185, provided for by Art. 4 of the same Law consists in the calculation of penalties for each day of delay in the amount of 0.3% of the amount of non-received revenue (value of under-delivered goods) in foreign currency, converted into the monetary unit of Ukraine at the exchange rate of the National Bank of Ukraine on the day the debt arises, but not must exceed the amount of unreached revenue (value of under-delivered goods).
Thus, an analysis of the above norms would provide a basis for an unambiguous conclusion about the start date of the reference period for currency control during export operations – this is the date of the export customs declaration.
Law No. 959 establishes the general principles for residents to carry out foreign economic activity, in particular the export of goods – the sale of goods by Ukrainian subjects of foreign economic activity to foreign economic entities (including those with non-cash payment) with or without export of these goods through the customs border of Ukraine, including re-export goods (paragraph 10 of article 1). Abs. 38 tbsp. 1 of Law No. 959, the moment of export (import) is determined – this is the moment the goods cross the customs border of Ukraine or transfer ownership of the specified goods are exported or imported, from seller to buyer.
It should be noted that according to the general theory of law, the provisions of Law No. 959 are general in regulating legal relations in the field of currency regulation and control, as well as settlements between residents and non-residents in foreign economic operations, while the provisions of Law No. 185 are special.
At the same time, the national courts, including the Supreme Court, which is the highest court in the judicial system of Ukraine, analyzing the situation of the above regulatory legal acts, came to the conclusion that the moment the export operation was completed, in particular the moment the goods were delivered for such an operation , for the application of Art. 1, 2, 4 of the Law of Ukraine “On the Procedure for Settlement in Foreign Currency”, is the moment of actual crossing of the customs border of Ukraine by exported goods, and therefore, from this date it must accept the starting point of the currency control period established by law. Such a position of the Supreme Court is given, in particular, in a decision of 02.27.2018.