– Giving boost to public and quasi–public structures in the course of privatization on the basis of such a method of privatization as contribution with state–owned assets into open–end joint–stock companies’ authorized capital;
– New owners and managers restricting attraction of private resources, narrowing the “horizon of planning”, indirect use of budget funds and state–owned banks’ capital, including the funds earmarked in the course of implementation of anti–crisis measures4;
– Competition between government agencies with respect to different approaches to privatization and broader conditions for a “shadow” fight of interests.
1 We reference, first and foremost, to the most disputable and ambiguous novelty that appeared in the Act on privatization in May 2010. It enables the RF Government to make respective decisions with regard to federal property in pursuance of creation of conditions for attraction of investments, encouragement of the stock market’s development, as well as the economy’s modernization and technological advancement beyond the framework of the “standard” procedures set forth by the Act on privatization 2 This may rest upon the aforementioned provision the framework of whose effect appears unconstrained, due to a very broad formulation. We can so far just assume a possibility for direct sales of state–owned stakes to already existing shareholders in these or those companies.
3 In the event of discontinuation of the state’s participation in large companies’ (including infrastructural ones) capital, the lack of the legislative regulation of their operational peculiarities will be inevitably replaced by government representatives’ interference in economic decisions, while the companies themselves will be perceived of as being in need for an undisputable government’s relief and continuous guardianship.
4 A fairly serious matter is the format of participation in privatization of corporations and banks that have become recipients of the government anti–crisis financial relief. In this context, there inevitably arises the question about the target nature of use of those funds, which, as it can be easily assumed, might spark a serious negative resonance in the society with all quite predictable consequences that might affect Russia’s business image, the socio–political backdrop and investment climate in the country, like the 1990s privatization processes did.
THE NEW PRIVATIZATION POLICY TWIST It is the absence of long–term and transparent rules of the game in the interaction between the government and businesses that will form the most significant hurdle to a successful implementation of the structural approach. Meanwhile, the “budgetary” approach appears more balanced in terms of the short run benefits and risks. Emergence of real prerequisites for solidification of the structural focus of privatization is possible only in the medium term, given substantial progress in shaping the institutional environment has been secured. This requires development and implementation of a set of measures that embrace a broader spectrum of issues, including corporate governance, regulation of foreign investment in the backbone sectors, limiting the public sector’s expansion on the basis of corporations subject to retaining under the government’s ownership, improvement of the quality of regulation of operations of economic agents of all property forms in the frame of specific sectors, if so provided for by the law with regard to respective spheres of activity.
Meanwhile, one needs to acknowledge a poor transparency of processes of shaping the public policy in the privatization sphere. As far as individual large companies are concerned, the interdepartmental struggle was, and still is, underway with regard to timelines and magnitude of their privatization. Notwithstanding the articulated principle of openness of privatization at all the stages, the discussion processes on the list of large corporations scheduled for privatization and means of their privatization have remained loosely transparent, while the government does not care to sufficiently and/or often officially reinforce decisions made in this regard.
Meanwhile, due attention is not paid to analysis of appropriateness of privatization, comparable economic and allocation–wise efficacy of the public and private sectors. This engenders additional risks in the case of privatization of large corporations that enjoy a power sufficient to dictate the situation on the market and boost own yields by abusing their position. For the sake of lowering the risks of latent lobbying of various decisions, it is critical to ensure a greater openness of the ministries and agencies’ stance on these matters, while ultimate decisions should be reinforced in a fairly detailed and public manner.
Alongside a vigorous push for processes of privatization of public property, it is critical to continue undertaking consistent efforts on improvement of corporate governance in companies with government participation. There exists a persistent need for further engagement of independent directors in processes of managing corporations with state participation, articulation of requirements to such directors, identification of strategic objectives and main target operational benchmarks for key public corporations, and a substantial normative promotion of such a means of privatization as sales of stock by results of trust.
RUSSIAN ECONOMY: TRENDS AND PERSPECTIVES EU EXPERIENCE IN MUTUAL ASSISTANCE IN THE RECOVERY OF TAX CLAIMS E.Velikova In 2010, a new EU Directive was adopted concerning mutual assistance in claims enforcement in respect of taxes, duties and other measures. This directive specifies the number of effective and newly introduced supplementary provisions on mutual assistance between EU member states tax arrears enforced collection, in particular the execution of requests for information and recovery of tax claims. These changes are appropriate for inclusion in the relevant international agreements of the Russian Federation, especially with Kazakhstan and Belarus due to the closer cooperation of these countries not only within the CIS, but also the integration of such entities in the Customs Union (CU) and the Common Economic Space (CES).
Enforced collection of tax arrears from foreign legal entities, as well as the execution of requests for recovery of tax arrears, coming from abroad, with respect to Russian taxpayers is significantly difficult in Russia.
In the first place, according to the Federal Tax Service, this is due to the lack of specific implementation mechanisms of interaction on the subject between the competent authorities of the Russian Federation and foreign countries. In the EU over the past few years there observed a significant increase in the amounts levied on the tax requirements of foreign authorities, the mechanism for enforcement is continuously developing, which makes the experience of the EU, a strategic economic partner of Russia, useful for the RF in improving the mechanism for tax arrears collection enforcement from foreign debtors.
EU member countries provide mutual assistance in collection enforcement in regard to a wide range of taxes, fees and charges, and the scope of collections is constantly increasing. In 2007, there was collected almost 5 times more in taxes than in 2003, and in 2008 that amount was already more than 6 times1. The first legislative initiative in enforced collection became EES Council Directive 76/308 of March 15, 1976, related to the mutual assistance between the countries in enforced collection of customs duties and certain kinds of agricultural levies2. Later on, the list of taxes, fees and charges in respect of which mutual assistance was provided in collection enforcement was significantly extended. Directive of 15 March 1976 has been expanded by the introduction of Articles of the VAT (EU Council Directive 79/10713 of December 6, 1979), Articles on Excise Taxes (Council Directive 92/108/EES4 of December 14, 1992), Articles on direct taxes and taxes on insurance premiums (Council Directive 2001/44/EC5 of June 15, 2001).
Council Directive 76/308 / EEC on 15 March 1976 and its supplementary acts have been codified by Council Directive 2008/55/EU6 of May 26, 2008 In accordance with the Directive, mutual assistance is provided on a wide range of taxes, levies and duties. In particular, the Directive applies to the following taxes: VAT, excise duties on tobacco, alcohol, mineral fuels, taxes on income and capital, taxes on insurance premiums.
To date, another Directive is adopted, Council Directive 2010/24/EU of March 16, 2010, which aims to improve the provision of the Directive with regard to the practice of mutual assistance between the two countries to of enforce collection of taxes, fees and other measures. Its entry into force is expected in 2013.
We are going to consider certain provisions of Council Directive 2008/55/EU and Council Directive 2010/24/EU that can be used in the improvement of mechanisms for cooperation on tax claims 1 http://ec.europa.eu/taxation_customs/resources/documents/common/whats_new/com(2009)451_en.pdf 2 http://eur-lex.europa.eu/LexUriServ/LexUriServ.douri=CELEX:31976L0308:EN:HTML 3 http://eur-lex.europa.eu/LexUriServ/LexUriServ.douri=CELEX:31979L1071:EN:HTML 4 http://eur-lex.europa.eu/LexUriServ/LexUriServ.douri=CELEX:31992L0108:EN:HTML 5 http://eur-lex.europa.eu/LexUriServ/LexUriServ.douri=CELEX:32001L0044:EN:HTML 6 http://eur-lex.europa.eu/Notice.doval=471986:cs&lang=en&list=471986:cs,&pos=1&page=1&nbl=1&pgs=10& hwords=&checktexte=checkbox&visu=#texte EU EXPERIENCE IN MUTUAL ASSISTANCE IN THE RECOVERY OF TAX CLAIMS recovery between the competent authorities of the Russian Federation and foreign countries. Most interesting are the new provisions of Council Directive 2010/24/EU and introduced clarifications and supplements to the provisions of currently effective Directive.
In the currently effective Directive, there is a provision that prior recourse to collect the tax claims to competent authorities of the requested country, the competent authority of the requesting country should apply all the possible domestic procedures in the country.
In the new document this situation was clarified and documented in the following form: before seeking assistance in the recovery of claims with the competent authorities of the requested country, the competent authority of the requesting country should apply all possible domestic procedures in its the country, except for the cases when:
– it is obvious that there are no ways to recover claims in the requesting country, or procedures are not expected to lead to a recovery in full and the requesting authority has information confirming the existence of assets of the person located in the requested country;
– Application of such procedures in the requesting country will lead to disproportionate difficulties.
This clarification is appropriate to be included in the relevant international agreements of the Russian Federation, primarily with Kazakhstan and Belarus due to the closer cooperation of these countries not only within the CIS, but also in the integration of such entities as the Customs Union (CU) and the Common Economic Space (CES). In the future, perhaps the extension of the provision for interaction with other members states of CIS.
It was stated in the Directive of 2008, that the competent authorities of the requesting country, after consultation with the requesting party may, in case legal regulations or administrative provisions allow to provide deferral (time) to the debtors or to offer payment of a part with a possible interest charges. This provision was changed: in the new Directive, competent authorities of the requesting country can independently provide debtors time to pay the debt by installments or with a possible interest charges.
Provision stating that the competent authority of the requested country is not obliged to provide assistance in the recovery requirements, if the recovery of claims, given the situation that the debtor will create serious economic or social difficulties in the requested country, except in a situation where the laws, regulations or administrative provisions of the requested country allow such requirements at the national level, was left unchanged. In our opinion, this provision is particularly relevant and should be entered into the relevant international agreements, as the majority of the countries have not completely recovered from the global financial crisis.
Competent authority of the requested country is not obliged to provide assistance in tax claims recovery, in respect of which the date of the claim filing in the requesting country before signing the request for assistance in collecting the requirements occurred more than 5 years ago. However, if the claim or the document authorizing the enforced collection in the requesting country was disputed, the 5-year term starts from the moment when it is decided in the requesting country that the query or document cannot be further litigated. The provision of the 5-year term was completed in the new Directive: in cases where the claim or document authorizing the enforced collection in the requesting country is disputed, the competent authority of the requested country is not obliged to provide assistance in claims enforcement, for which the date of the claim filing in the requesting country exceeds than 10 years.
Directive 2010/24/EU of March 16, 2010 is effective for all taxes and duties imposed on behalf of and directly by the EU member states or their administrative and regional offices, including local ones, or introduced on behalf of the EU.