Cтатья посвящена вопросам, связанным с электронными расчетами. Автор подробно анализирует правовую природу электронных денег, а также купли-продажи электронных денег и перспективы развития электронных расчетов в Украине. Особое внимание уделяется доступности расчетов с использованием электронных денег в действующем правовом поле Украины, причем предлагаются решения практических проблем, которые возникают при таких расчетах.
| Electronic money existed and was used in Ukraine without the necessary regulatory framework for quite a long time. The first attempt by the National Bank of Ukraine (the NBU) to regulate the area of electronic money was made in 2008. Despite a slight progress of regulation since 2008, it remains underdeveloped primarily due to a rather restrictive NBU approach reflected in the existing normative acts, lack of a special law governing the activity of domestic and foreign electronic money systems in Ukraine, and absence of the required provisions in Ukrainian legislation on bookkeeping and taxation of electronic money payments received by goods and services vendors. |
As of today the legislative framework governing the issuance and circulation of electronic money consists of: (i) the On Payment Systems and Money Transfer in Ukraine Act of Ukraine No.2346-111 of 5 April 2003, as amended (the Payment Systems Act), (ii) the NBU Regulation No.481 as of 4 November 2010 On Amendments to Certain Legislative Acts of the NBU in respect of Regulation on Issuance and Circulation of Electronic Money (the E-Money Regulation), and (iii) the NBU Regulation On Performance of Transactions Utilizing Special Payment Instruments No.223 as of 30 April 2010.
The legal nature of e-money WebMoney
Each user of the electronic money system WebMoney concludes with a Guarantor the “contract of assignment of claims and accounting”. Individuals do this by making an offer on the site, and the legal entities and entrepreneurs — in writing, penning the contract signed and sealed. According to the “Assignment Agreement”, WMU are account units of money holder of claims against a debtor— bank.
According to Article 512 of the Civil Code of Ukraine, it may be assigned to another person (the new creditor), including money from their sale (Clause 3 of Article 656 of the Civil Code of Ukraine). According to the “Contract concessions” the Guarantor shall:
– sell (assign) to user system of WebMoney, when he wishes to buy them (to make input);
– Conversely, redeem for cash with the user when such proposal is made to the Guarantor (to produce output).
Transfer of rights requirements of the Guarantor to the user or back is accompanied by movement on the WMU purses. Thus, WMU themselves are not money, a payment instrument, financial asset or commodity, and are a means of accounting. WMU exist in the form of electronic records in a WebMoney database system and reflect the accounts receivable, which occurs in the “real world”.
Conclusion of an Assignment Agreement in writing between the Guarantor and the company/employer is required in case when the company/entrepreneur plans to buy WMU (of the claim) in the Guarantor’s bank account or sell WMU (of the claim) of the Guarantor to your bank account.
Sale purchase of WMU
According to Para 196.1.5. Article 196 of the Tax Code, purchases or sales of receivables for money is not subject to VAT. According to Para 153.5. Article 153 of the Tax Code, if the proceeds of the second creditor of cession of the debtor exceed the costs incurred for the acquisition of rights of claim, the resulting income is included in the income of the second lender.
Single taxpayers can freely and without restriction enter (buy) and output through WMU Guarantor under “contract of assignment”.
– Input-output WMU is not forbidden by Article 291.6 of the Tax Code of Ukraine, since the input (purchase of receivables) and output (sales of receivables) are done for money.
– To make WMU input sufficient on the 2nd group of single taxpayers according to Article 291.4 of the Tax Code:
– WMU Input — the acquisition of rights to demand a legal entity for the money. The description of the groups of the single tax (including the 2nd group) does not contain any requirements as to who single taxpayer can buy anything for money, and who cannot. A single taxpayer can purchase goods and services from individuals, businesses, legal entities without restriction and without regard to the group and what it is.
– Output of WMU — the sale of receivables to legal entities for the money. Based on the definition of the 2nd group (see above Article 291.4 of the Tax Code), single taxpayers who are in the 2nd group, may sell goods without any restrictions on counterparties (as can only provide services to another single taxpayer).
– Why is the right to demand — a commodity? According to Article 655 of the Civil Code of Ukraine, on the sales contract, one party sells the other side of the property (goods). Article 656 of the Civil Code provides what relates to property (goods): the actual goods, property rights and claims. Thus, claims — is a product of the claim therefore can be sold to a single taxpayer for 2nd Group of the Parties to legal entities for money (according to Article 291.4 of the Tax Code).
– The book of income withdrawal WMU should be treated as “sale of claims”, the date of preparation of the report with the Guarantor.
– For output WMU (sale of receivables, trade rights requirements), we recommend the following codes KVED 2010: 47.91, 47.99, 46.90.
In the same way, a single taxpayer can freely buy and sell WMU (of the claim).
– This operation does not affect Article 291.6 of the Tax Code.
– Is located on the 2nd or 3rd group of the single tax.
– Recommended codes KVED 2010: 47.91, 47.99, 46.90.
In getting goods/services for WMU, the client makes an exchange of available products/ services, while a reflection of this transition system WebMon-ey WMU are moving from their purse to the purse of the merchant. The Guarantor is not a party to this transaction and acts as an agent or attorney. Such a transaction can be an executed contract between the merchant and the customer, including in the form of an offer on the site, and confirmed by relevant primary accounting documents, which are issued in the same way as a normal purchase of goods/services for money. Accumulated as a result of such sales trader or Guarantor may sell at any time and in any amount, according to the “Assignment Agreement” give money to the bank account of the company.
Admission WMU single taxpayer
According to Article 291.6 of the Tax Code of Ukraine, a single taxpayer cannot be accepted for payment for their goods/services in nothing but cash and noncash.
When you sell the accumulated WMU on the “contract of assignment”, then sell the right to claim for money, and the bank transfer comes from the Guarantor to the appointment “for the right to claim”. This may indicate the origin of claims as a means of payment for goods/services company/ employer and cause conflicts with Article 291.6 of the Tax Code.
Possible solutions:
– A single taxpayer can work with our pocketbooks and bring WMU to “negotiate concessions”, but I must assume that his activities in WebMoney — WMU is not welcome to the price, and the “withdrawal” WM (sale of debt). To do this, you must register the relevant activities (KVED recommended codes 47.91, 47.99, 46.90).
Entrepreneurs may be in the 2nd or 3rd group. In the book of income should be reported on the receipt of non-cash UAH bill (sale of receivables Guarantor) recorded “sale of claims” and dated the date of preparation of the report to the Company of the Guarantor.
– If you want to receive WMU made to a bank account, and the forecast volume WebMoney – payments are large enough, you can select a connection option “without purse, with the contract”.
In this case, the appointment to which bank wire goes to your account, you “bought” themselves (set in the contract) and, therefore, the purpose of the transfer may be tailored to your activities. This removes the possible questions about barter and “non-monetary” form of payment.
– Continuing to work with your own wallet in the WebMoney system, if necessary, make the exchange WMU (of claims) on the money, you can do it without a warranty, and a form of “targeted payment” by posting on your company’s account/WMU businessman with wallet.
In this case, the appointment to which a bank wire goes to your account, you “bought” themselves, and therefore, the purpose of the transaction may be tailored to your activities. This removes the possible questions about barter and “non-monetary” form of payment.
All of this does not apply to purchases of WMU for “contract of assignment”. When you purchase your WMU tax system does not matter, because it does not affect Article 291.6 of the Tax Code.
Prospects for development of e-money sector in Ukraine
Although a part of the Ukrainian e-money sector has already been occupied by international payment systems established by foreign companies, there is still a significant niche in this market, which has large-scale potential for development. Apparently, simplification of Ukrainian legislation in this area and bringing it into line with the equivalent EU regulations could substantially speed up this process. In particular, adoption of a separate law governing e-money payments, including those performed via Mobile Devices, would be an enormous step forward. Moreover, extension of the circle of electronic money issuers by enabling not only banks but other companies, meeting the criteria as to minimum capital requirements, IT-systems and business reputation, to issue electronic money, as well as allowing the use of e-money in all areas of settlements between legal entities, private persons and the state, would create a vast number of opportunities for the development of this sector.
Автор:
Viktor M. DOVHAN
Источник:
The Ukrainian Journal of Business Law. – 2013. – № 7-8. – Р. 32 – 33.