In case violation of requirements of organization’s standards and regulations by a member of selfregulating organization is discovered, the results of revision are submitted to the body responsible for consideration of cases on application of disciplinary measures to the members of organization (clause 9 of the Law).
The body responsible for consideration of cases on application of disciplinary measures to the members of organization has a right to: make decision on elimination of violation discovered; give warning; impose a fine; recommend the constantly operating collective management body to expel the person from the organization; make decision on taking other measures, established by internal documents of the organization.
The decisions of the body responsible for consideration of cases on application of disciplinary measures to the members of organization, excluding the decision to recommend expulsion of the person from the organization can be appealed to the constantly operating collective management body of the organization. The decision of the constantly operating collective management body of a self-regulating organization to expel the person from the members of the organization can be appealed in the court.
Monetary funds raised by self-regulating organization as a result of fine levy are to be paid to its compensatory fund (clause 10 of the Law).
2. “ON MAKING CHANGES TO THE FEDERAL LAW “ON RETIREMENT PRNSION IN THE RUSSIAN FEDERATION” from 01.12.2007 No 312-ÔÇ Comes into effect on 1 January 2008, excluding some statements, coming into effect on other dates.
The law established increased sum of the basic retirement old-age pension rate and basic disability pension rate for the citizens, who have worked in the regions of the Far North no less than 15 calendar years and in the territories of the same status no less than 20 years and have necessary insurance length of service (and 20 years for men and women, correspondingly). Thus, for instance, the basic rate of the old-age retirement pension will be equal to RUR 2340 per month, basic rate of disability pension for people with 3rd extent of work ability limitation – to RUR 4680 per month.
Increased sum of the basic retirement old-age and disability pensions will be paid to the category of citizens mentioned above independent of place of citizen’s residence.
It is also mentioned that for the purposes of establishment of the basic rates of both the pensions each year of service in the territories to which the same status as to the regions of Far North has been granted is considered as 9 months of work in the regions of Far North.
Besides, a number of changes concerns the rise of introduced increased sums of basic retirement old-age and disability pension rates from 1 August 2008 for the category of citizens mentioned.
3. “ON MAKING CHANGES TO THE FEDERAL LAW “ON INVESTMENT FUNDS” AND SOME LEGISLATIVE ACTS OF THE USSIAN FEDERATION” from 06.12.2007 No 334-ÔÇ Comes into effect in 10 days after official promulgation, excluding statements, for which other dates for coming into effect are established.
Changes and addenda introduced by the Law concern legal regulation of the activity of the joint-stock investment funds, management companies, special depositaries, non-governmental pension funds and other subjects of investment activity.
The main part of the changes is connected with the introduction of the institute of a qualified investor.
Federal law from 22.04.1996 No 39-ÔÇ “On securities market” is supplemented with the clause, containing open list of the persons that can be regarded as qualified investors. For instance, the following are referred to as qualified investors:
1) brokers, dealers and managers;
2) credit organizations;
3) joint-stock investment funds;
4) management companies of investment funds, unit investment funds and non-governmental pension funds;
5) insurance organizations;
6) non-governmental pension funds;
7) Bank of Russia;
8) government corporation “Bank for development and foreign economic activity” (Vnesheconombank);
9) agency on deposit insurance;
10) international financial organizations, including World Bank, International Monetary Fund, European Central Bank, European Investment Bank, European Bank for Reconstruction and Development;
11) other persons defined as qualified investors by federal laws.
Conditions, procedure and consequences of referring of natural persons and legal entities to qualified investors have been established.
Federal Law from 29.11.2001 No 156-ÔÇ “On investment funds” has been supplemented with the norms on introduction of the statement, according to which fund’s stocks, investment units are envisaged for qualified investors, to the charter of the joint-stock investment fund, to the rules of trust management of closed and interval unit investment fund.
Besides, the changes concern the licensing procedure of joint-stock investment funds, management companies, special depositaries, non-governmental pension funds’ activity.
For instance, the following kinds of activity are excluded from the list of activities, whose licensing is carried out in concordance with Federal law from 08.08.2001 No 128-ÔÇ “On licensing of some kinds of activities”: activity of investment funds, activity on management of investment funds, unit investment funds and non-governmental pension funds, activity of special depositaries of investment funds, unit investment funds and non-governmental pension funds; activity of non-governmental pension funds for pension provision and pension insurance.
Detailed rules for licensing of the kinds of activity mentioned are established in the Federal Laws from 29.11.2001 No 156-ÔÇ “On investment funds” and from 07.05.1998 No 75-ÔÇ “On non-governmental pension funds”.
Clause 1012 “Contract for property rust management” of part 2 Civil Code of the Russian Federation is supplemented with the statement that the special features of trust management are established by the law.
Changes and addenda are made to other federal laws and a number of transitional statutes is envisaged that enable to bring regulated kinds of activities in concordance with new standards.
Review of Regulatory Documents Concerning Taxation over November-December 1. According to the Federal Law No 315-ÔÇ from 1 December 2007 “On self-regulating organizations” a new type of organizations whose taxation is not regarded separately in the Tax Code of the Russian Federation is introduced.
These organizations have the following specific features that will influence taxation. According to paragraph 3 clause 3 and clause 13 of the Federal Law it is envisaged that additional property accountability of each member of a self-regulating organization to consumers is secured by introduction of insurance requirement and compensatory fund formation as regards to the members of this organization.
Insurance is provided by creation of personal and collective insurance system for self-regulating organization. Compensatory fund is formed by membership fees and earnings from compensatory fund investment and placement.
The terms used by the Federal Law as regards to the insurance “formation of personal and collective insurance system” with a particular insurance sum mentioned are not quite clear. The fact is that it is not mentioned in the text of the Federal Law “On self-regulating organizations” if the organization is to obtain license to carry out insurance activity or not. In case it is, insurers should be mentioned in the special Law “On organization of insurance business in the Russian Federation” (earlier – “On insurance”), which regulates the rules of insurance service rendering. Besides, insurance activity is subject to licensing. If this is the case, the rules of insurers’ incomes and expenditures formation will apply to self-regulating organizations, including deductions to insurance reserves. If not, then it is not clear why the insurance sum is specified in the text of the Federal Law. Insurance sum is paid by the insurer according to the insurance contract in case of insured event taking place.
From the legal point of view the issue of compensatory fund status and resources of payments in it (whether they are membership fees for current expenditures or they are paid from their own profit after taxes deduction) is not clear. Payments from compensatory fund formed by membership fees are envisaged to be distributed for the benefit of the member that has not fulfilled his liabilities to product consumers. Such payments if not stated otherwise in the text of the Tax Code of the Russian Federation are to be included in the taxation base for profit tax of the person, whose liabilities are paid for by self-regulating organization (since it practically takes the responsibility to compensate for losses claimed by the consumer).
2. According to the Federal Law No 286-ÔÇ from 29 November 2007 “On reciprocal insurance” the creation of reciprocal insurance companies is envisaged. These are non-commercial organizations acting on the basis of licenses (clause 5 paragraph 5). The sources of company’s assets formation (clause 17) are: 1) admission fee; 2) insurance premium (insurance contribution); 3) additional premium; 4) voluntary contribution and other property premiums and contributions; 5) earnings from investment and placement of tempo rarily spare funds of insurance reserves and other funds; 6) loans; 7) contributions to compensate for expenditures connected with company’s activity envisaged by charter; 8) other incomings not prohibited by the legislation of the Russian Federation. According to clause 20 of the Federal Law reciprocal insurance company is allowed to form insurance reserves. As to taxation the sources of admission fee, insurance premium etc. financing by the members of reciprocal insurance companies – whether they belong to current expenditures or are to be paid from the profit after taxation of the members of reciprocal insurance company – are unclear. The point is that fees (contributions) to charter (statutory) capital (fund) according to the Tax Code of the Russian Federation are made from the profit after taxation, while insurance premiums are subject to be referred to current expenditures of the insurers. This, as well as other issues connected with taxation of reciprocal insurance company members as well as the company itself, has not been regarded in the Tax Code of the Russian Federation yet.
3. According to the letter of the Ministry of Finance of the Russian Federation from 26 November No 03-05-06-01/136 the issue on the position of the Tax Code of the Russian Federation as regards to taxation with enterprises assets tax of the assets that make up a unit investment fund.
Ministry of Finance of the Russian Federation clarifies that according to the Federal Law from 24.07.No 216-ÔÇ the changes to clause 378 of the Code are made that come into effect on 1 January 2008, according to which the property that composes unit investment fund, trusted to assets management, purchased within the framework of the contract for assets management is not subject to taxation for founders of assets management.
As to the organization which is a trust manager of a unit investment fund this organization is considered as a tax-payer only as regard to assets that are its property kept on books and recognized as a taxation object in accordance with paragraph 1 clause 374 of the Code. Thus, the consequence of explanation by the Ministry of Finance is that in case assets are transferred to assets management they are exempted from enterprises assets tax.
3. According to the Federal Law from 6 December 2006 No 333-ÔÇ in connection with changes in the Federal Law “On fishing and preservation of water biological resources” amendments are made to the Tax Code of the Russian Federation. For organizations and individual entrepreneurs that sell and (or) process caught (fished up) water biological resources delivered in the territory of the Russian Federation rates of charges are established at the level of 10% of those envisaged by the Tax Code of the Russian Federation (paragraphs 4 and 5 of clause 333.3) of the general rates of charges for biological resources.
4. According to the letter by the Ministry of Finance of the Russian Federation from 27 November No 03-03-06/1/826 the issue on the procedure of fiscal accounting of expenditures for computer programs purchase is elucidated.
Expenditures for computer programs purchase are included in the list of other expenditures connected with production and (or) sale, calculation method being applied according to the following procedure:
- if according to the conditions of the contract for unexceptional rights purchase there is a period for computer programs use set, expenditures, applying to several accounting periods, are taken into account while calculating taxation base evenly throughout these periods;
- if the period of computer programs use cannot be defined from the contract for unexceptional rights purchase then such expenditures should be distributed taking into account the principle of the even recognition of expenditures.
5. According to the letter by the Ministry of Finance of the Russian Federation from 27 November No 03-03-06/1/825 the issue on procedure of accounting for taxation purposes of expenditures in the form of compensation of property tax by investment contract.
For instance the Ministry of Finance clarifies that any expenditures on condition that they were made while conducting activity aimed at profit receive are recognized as subject to deduction while formation of tax base.
According to paragraph 1 clause 8 of the Code the tax is referred to as a compulsory, non-repayable payment, levied on organizations and natural persons in the form of alienation of monetary funds, owned by them by the right of property, economic or day-to-day management in order to finance operation of government and (or) municipal formations.
Thus, the sum of the tax for property, paid by a third party and compensated to this party by the tax-payer in concordance with the conditions of investment contract is not expenditure of business entrepreneurial activity conduction and, consequently, does not decrease taxation base of property tax.