Legal Regulation of Incorporation and Activity of Commercial Organizations with participation of foreign investors in Belarus
As of February 2023
Incorporation of Commercial Organizations
Types of commercial organizations
Incorporation and operation of organizations is carried out on the basis of the following legislative acts: Civil Code of Belarus dated 07.12.1998 with further changes and amendments (hereinafter - the “Civil Code”), Law of Belarus “On Companies” with further changes and amendments, Regulations on State Registration of Economic Entities approved by the Decree of the President of Belarus of 16.01.2009 No. 1 with further changes and amendments.
Foreign investors are empowered to incorporate commercial organizations with any amount of foreign investment and in any legal forms stipulated by the Belarusian legislation, namely in the form of:
- unitary enterprise (UE),
- limited liability company (LLC),
- additional liability companies (ALC),
- joint-stock companies (JSC) - closed joint-stock company (CJSC) or open joint-stock company (OJSC).
It is worth noting such legal form as UE. This is a special form of legal entity which inherent in the Belarusian legislation. In contrast to other forms of legal entities (hereinafter referred to collectively and in particular the “Company”) UE is not an owner of assets on its balance sheet. All assets UE is owned by its founder and belong to UE by virtue of the right of commercial management.
Except for UE, all commercial organizations may be incorporated by either a sole founder or several founders.
The state registration of commercial organizations
A commercial organization acquires the rights of legal entity from the date of its state registration.
From 01.02.2009, an application procedure of the state registration is established (excluding registration of banks and non-bank credit and financial organizations). The state registration is carried out on the day of submitting the necessary documents. Certificate of the state registration is issued not later than the working day following the day of submitting the documents for the state registration.
As a general rule, the regional executive committees and Minsk City Executive Committee are the bodies that carry out the state registration of commercial organizations. Organizations such as banks, non-bank credit and financial organizations, insurance companies and insurance brokers, commercial organizations in free economic zones or on the territory of the Chinese-Belarusian industrial park “Industrial Park “Great Stone” are to be registered in a specially authorized state bodies and organizations.
Specific Features of Participation of Legal Entities and Individuals in Companies
Belarusian shareholders of a Company may be both non-state entities and state legal entities.
To incorporate a Company, state unitary enterprise must obtain the decision (approval) of the Ministry, state committee or any other state agency depending under whose control it operates. Moreover, depending on the value and kind of property to be contributed to the charter capital of the Company by the state enterprise, subordination of such state enterprise, coordination of the contribution by other state authorities may be required. Thus, where state enterprise intends to contribute buildings or other objects of non-completed construction to the charter capital as its contribution, it must obtain the approval of the relevant state agency and the State Committee on Property or Council of Ministers of Belarus (for republican property) or approval of the respective local agency (for municipal property).
When dealing with the state enterprise as the partner of a Company, it is necessary to consider the possibility of its further privatization. However, there are no legal restrictions for the participation of state enterprises in a Company in connection with the process of their privatization.
Belarusian shareholders of the Company may be represented by both legal entities and individuals. It should be noted that, according to Belarusian legislation, officials employed in the bodies of state administration, executive committees of the Soviets of deputies, public prosecutor’s offices and courts, as well as heads, deputy heads and main specialists of the state enterprises, organizations and institutions are not allowed to carry out business activities, including participation in a Companies.
Foreign investors may be represented by individuals, stateless persons not permanently residing in Belarus, citizens of Belarus permanently residing outside Belarus, foreign and international legal entities engaged in the investment in the territory of Belarus.
Limitations in investment and participation in the commercial organizations
It is forbidden to invest in activities prohibited by the Belarusian legislation. Restrictions on investments may be established on the basis of legislative acts in the interests of national security (including environmental, historical and cultural heritage), public order, and protection of morality, health, rights and freedoms of others.
The legislation of Belarus also establishes restrictions for participation in the commercial organization in relation to certain individuals and entities.
For example, the founder of a commercial organization cannot be an individual who on the date of state registration:
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is the owner of the property (shareholder), director of a commercial organization that is in the process of liquidation, but the process of liquidation has not been completed;
- is the owner of property (shareholder), director of a commercial organization that is in a state of economic insolvency (bankruptcy);
- is the owner of property (shareholder), director of a commercial organization which was recognized as insolvent (bankrupt) and from the date of its exclusion from Unified State Register of legal entities and individual entrepreneurs (hereinafter - USR) less than one year has passed;
- is the owner of property (shareholder) of a legal entity, or individual entrepreneur taht was excluded from the USR less than 3 years ago with debts release;
- has unfulfilled court rulings on collection of funds and (or) foreclosure of other property;
- has executive inscription on collection from individuals, including individual entrepreneurs, taxes, dues (duties) and penalties, arrears of compulsory insurance contributions and penalties to the budget of the state non-budgetary fund for social protection of the population of Belarus;
- has unexpunged or unexpired convictions for crimes against property and business crimes.
Liability of the Parties for obligations of commercial organization
Liability of the shareholders for obligations of the commercial organization depends on the form of the Company (unitary enterprise, limited liability company, additional liability company, Joint Stock Company).
At the same time, the Civil Code establishes a case when shareholders of commercial organizations are liable regardless of the form of the Company. So, if the economic insolvency (bankruptcy) of the organization is caused by the guilty (deliberate) actions of the founders (shareholders), the owner of the property of the organization or other persons, including the head of the organization, entitled to issue compulsory orders or commit other actions determining organization’s activity, all persons mentioned above will bear subsidiary liability for the obligations of the company in the event if there are no enough company’s assets.
Charter capital of commercial organization
The minimum size of charter capital of a commercial organization depends on the legal form:
- for OJSC - about 5 000 euros (400 basic units, that is 14 800 Belarusian rubles);
- for CJSC - about 1 300 euros (100 basic units, that is 3 700 Belarusian rubles);
- for the LLC, ALC and UE - the minimum amount is not set and to be determined by the charter.
Charter capital of commercial organizations is declared in Belarusian rubles and is to be formed within 1 year from the date of the state registration of the organization unless the less term is stipulated by the charter.
While contributng to charter capital of commercial organizations in foreign currency following the established procedure, it will be re-calculated at the official rate of the Belarusian ruble to the respective foreign currency set by the National Bank on the date of the actual contribution.
Contributions to the charter capital of commercial organizations can be made in monetary and/or non-monetary form.
Non-monetary contributions of founders (shareholders) of a commercial organization are subject to obligatory estimation, conducted in accordance with the Edict of the President of Belarus No. 615 dated 13.10.2006 “On Evaluation Activity of Belarus” as well as to examination of internal assessment reliability, conducted in accordance with the procedure, stipulated by the Council of Ministers of Belarus (Regulation No. 173 dated 10.02.2011).
In the case of an independent estimationof the value of non-monetary contribution in charter capital of commercial organization, examination of the reliability of this estimationis not carried out.
As a general rule, the property imported by a shareholder for the formation of charter capital of a commercial organization does not exempt from customs duty and is subject to VAT. However, upon certain conditions a privileged import of certain goods is possible with the release from the payment of import custom duties (for example, if a commercial organization is located in medium-sized, small urban settlements, rural areas).
Currency regulation in the Republic of Belarus
The main legal act in the area of foreign currency regulation is the Law of Belarus "On Foreign Currency Regulation and Foreign Currency Control" dated 22.07.2003.
Currency regulation treats all commercial organizations registered in Belarus as residents of Belarus.
The general rule for the residents is that all contracts, transactions and settlements between residents should be made in Belarusian rubles. Settlements between residents in other currencies are allowed in a strictly defined number of cases.
According Article 13 of the above Law, all wire transactions between legal entities-residents and legal entities - nonresidents can be conducted both in foreign currency and in Belarusian rubles without restrictions. Therefore, if the clients of the commercial organization are residents, settlements will be carried out in Belarusian rubles. If the clients are legal entities - nonresidents, settlements will be carried out mainly in foreign currency though use of Belarusian rubles is allowed as well.
Foreign Currency Account of the commercial organizations
Organization registered in Belarus has the right to open accounts in Belarusian rubles and foreign currency in banks of Belarus and foreign banks.
Purchase of Currency
Residents of the Republic of Belarus could buy foreign currency through the authorized banks at the auctions of the Interbank Currency Exchange (ICE) or in the off-exchange market.
Remittance of Profit
Law "On Investments" guarantees the foreign investor a right to freely forward the income received as a result of investment activity in Belarus outside of the country upon making all necessary tax and other obligatory payments set forth by the Belarusian legislation. Dividends received by foreign investors from participation in a Belarusian organizations are subject to 15% tax on profit of foreign organization or 13% income tax rate of foreign individual unless otherwise is established by international agreements. The tax is withheld from the source of dividend payment.
Taxation
The Tax Code of Belarus (special part) provides the following tax rates that are subject to payment by organizations with foreign investments and the following objects of taxation:
- Value-added Tax (VAT)
The object of levying are overturns of realization of goods (jobs, services) and personal property rights on the territory of Belarus, and goods imported on the customs territory of Belarus.
The rate of the tax is 20%, in some cases – 0%; 10% or 25%.
- Profit Tax
The objects of levying are recognized as gross profit, as well as dividends and similar income accrued by Belarusian organizations.
The rate is 20% (may be increased by the Council of Deputies up to 20%), in some cases – 10%; 25%.
The rate for dividends and similar income is 12%, in some cases – 6% or 0%.
- Excise Tax
Excises are levied on spirits; alcohol products; inedible spirit containing substances, produced with usage of ethyl spirits from all kind of raw materials, beer and beer cocktails, beverages made on the basis of beer (beer drinks), low-alcohol products with volume of ethyl spirits from 1,2 to 7 % (low-alcoholic natural beverages, other low-alcoholic beverages); tobacco; petrol; diesel fuel and diesel fuel with methyl esters of fatty acids; marine fuels; liquefied hydrocarbon gas and natural gas fuel compressed that are used as automotive fuel; motor oils, including oils (liquids), intended for flushing (cleaning of deposits) of oil systems of internal combustion engines; ciders; alcohol-containing food products in the form of solutions, emulsions, suspensions produced using ethanol,liquids for electronic smoking systems, electronic smoking systems, tobacco consumption systems; non-tobacco nicotine-containing products; oil.
The rates may be stated:
- in absolute amount on the measurement unit of excised goods (fixed (specified) rate);
- in percents from the value of excised goods or customs value of excised goods, increased by levied amounts of customs duties (interest (ad valorem) rate).
- Land Payments
Land payments are charged annually in the form of land tax or lease payments. The rates of lease payments, seized instead of land payments are defined by the Edict of the President of Belarus dated 12.05.2020 No.160 “On Lease Payments for Land Plots in Public Domain”.
Payers of land tax are organizations that own land plots on the right of private property, permanent or temporary use.
- Real Estate Tax
The tax rate is 1% per year. The tax is charged on the cost of buildings and constructions, that are the property or in possession of the commercial organization.
- Compulsory Payments Charged on the Wage Fund of commercial organizations
According to the Law of Belarus “On Compulsory Insurance Contributions to the Budget of the State Extra-Budgetary Fund for Social Protection of Population of Belarus”, state insurance contributions to the Social Safety Fund are 34%.
Guarantees to Foreign Investors
Guarantees of the transfer of funds of foreign investors
According to the Law “On investments”, after the payment of the established taxes, dues (duties) and other obligatory payments to the budget, the foreign investors are guaranteed free transfer of profit (income) and other legally obtained funds related to the investments , as well as payments made for the benefit of foreign investors and related to the implementation of investments, including:
- Funds received by foreign investors after partial or complete termination of the investment in Belarus, including funds received by foreign investors as a result of the alienation of investments, and formed as a result of investment property and other objects of civil rights;
- Funds owed to the payment of salaries to foreign citizens and stateless persons engaged in labor activities under an employment contract;
- Funds owed to foreign investors in accordance with a court order.
Guarantees from Forced Alienation
The State guarantees protection of investments in accordance with the legislation of Belarus.
Foreign investments cannot be nationalized, requisitioned, removed, seized, compulsory acquired without compensation or taken or be subject to other actions, equivalent for their consequences. Nationalization and requisition are possible only upon timely and full compensation of the value of the investment property being nationalized or requisitioned and other damages caused by nationalization and requisition.
Compensation of the nationalized or requisitioned investment property is paid out to the investor at the choice of the foreign investor in the Belarusian rubles or in foreign currency in the state specified by foreign investor, if such a transfer does not conflict with the international obligations of Belarus.
The amount of compensation for the nationalized or requisitioned investment property can be appealed by the investor in court.
We will be happy to provide any further information or assistance should you are interested in the above procedures. Please contact VMP corporate practice team partner Svetlana Dashuk (svetlana.dashuk@vmp.by) or senior associate Veronica Perepelitsa (veronica.perepelica@vmp.by).
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