Doing Business in Ukraine
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Foreword We are pleased to present the first edition of the RSM APiK guide to Doing Business in Ukraine. It contains brief background information about Ukraine, including some recent events in the country’s history and an overview of current the economic situation. In this brochure we have tried to summarize the primary aspects of running business activity in Ukraine, starting with the entity type options to choose from, highlighting the specifics of their accounting and taxation systems, and through to entity winding up procedures. All the information is based on the regulatory and legal acts in effect as of June 2012. In over 21 years of independence Ukraine has made great leaps in establishing a goods and services market and developing relevant laws, regulations and standards to regulate it. It is not a secret that Ukraine is not an overtly easy country in terms of doing business; our legislative and regulatory systems continue to undergo development and clarification processes. However, Ukraine still has a great deal to offer to interest international business. There is a large presence of international business organizations that unite the international business community in Ukraine, such as the American and the British Chambers of Commerce, European Business Association and the Swiss Business Club. Ukraine has unlimited potential as a consumer and labour market; it is a great tourist destination; it is rich in fertile land and has favourable climate for agriculture; it has vast deposits of mineral resources. But the greatest asset Ukraine possesses is its people: highly qualified and educated specialists that are willing to work hard to see our country develop into the best place for work and pleasure. Welcome to Ukraine! Tatayana Bernatovych President of RSM APiK
Swallow’s Nest castle, Yalta Previous image: Fortress on the Dniester Estuary, near the town of Bilhorod-Dnistrovski, Odessa Cover image: Vydubychi Monastery, Kiev
Contents Foreword 1
General Information
5
2
Types of business entities with some applicable laws
18
3
National Bank of Ukraine currency control regulations
30
4
Taxation system in Ukraine
35
5
Taxation of non-residents in Ukraine: Permanent Establishment
52
6
International treaties on avoidance of double taxation
54
7
Withholding tax
55
8
Regulation on transfer pricing
58
9
Administration of Taxes
60
10 Audit and Accounting
64
11
70
About RSM APiK
12 About RSM International
75
Contacts
76
Orthodox church, Kiev
1
General Information
1.1 Country Profile •
Total area: 603,550 sq. km
•
Population: ~44,855 million
•
Capital: Kyiv
•
Principal cities: Kyiv (Kiev), Donetsk, Zaporizhzhya (Zaporozhye), Dnipropetrovs’k (Dnepropetrovsk), Kharkiv (Kharkov), Lviv (Lvov), Odesa (Odessa)
•
Official language: Ukrainian (although Russian is widely used in business communication)
•
Currency: Hryvnya (UAH)
•
Government type: republic
•
Membership: the United Nations, the International Monetary Fund (IMF), the World Bank, the European Bank for Reconstruction and Development (EBRD), the World Trade Organization (WTO), etc.
•
Time difference: GMT+2
1.2 Geography and Climate Ukraine is located in Eastern Europe at the boundaries of Europe and Asia. Ukraine is the second largest country in Europe, with an area of 603, 550 square kilometer. Ukraine is bordered by Russia in the east, the Black Sea in the south, Moldova, Romania, Hungary, Slovakia and Poland in the west, and Belarus in the north. Most regions of the country are low-lands, fertile plains and plateaus with two highland areas: the Crimea Mountains in the south (the highest peak is the Ramantkosh at 1,545m) and the Carpathian Mountains in the west (the highest point is the Hoverla at 2,061m). In the south, Ukraine is bordered by the Black Sea and the Azov Sea. The largest rivers are the Dnipro, Dnister, Danube, Desna and Pivdenyy (Southern) Booh. The climate in Ukraine is temperate continental in most regions of the country and Mediterranean on the southern Crimean cost. Winters vary from cool along the Black Sea to cold farther inland (average winter temperature is from -8 to-15C). Summers are warm across the greater part of the country and hot in the south (average temperature is from+18 to +25C, though can sometimes get over +35C). The country is rich in mineral resources: iron ore, coal, manganese, natural gas, oil, sulfur, graphite, titanium, magnesium, kaolin, nickel, mercury, timber and others.
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1.3 Population The population of Ukraine is about 44,855 million (July 2012 est.), which is 6.3% lower than reported in 2001. The urban population is made up 69% of total population in 2010, with 2,779 million people living in Kyiv. It is estimated that 77.8% of the population are Ukrainian and 17.3% are Russian. People from neighboring countries are represented in strong minorities, such as Belarusian, Moldovan, Crimean Tatar, Bulgarian, Hungarian, Romanian, Polish, Jewish and others. The majority of the population is a member of one of the branches of the Orthodox Church (about 84%). Around 10% are Catholic, while 4% are Muslim, represented by Tatar who mostly reside in the Crimea.
1.4 History Ukraine was the center of the first eastern Slavic state, Kyivan Rus, which during the 10th and 11th centuries was the largest and most powerful state in Europe. Weakened by internecine quarrels and Mongol invasions, Kyivan Rus was incorporated into the Grand Duchy of Lithuania, and eventually into the Polish-Lithuanian Commonwealth. The cultural and religious legacy of Kyivan Rus laid the foundation for Ukrainian nationalism in subsequent centuries. A new Ukrainian state, the Cossack Hetmanate, was established during the mid-17th century after an uprising against the Poles. Despite continuous Muscovite pressure, the Hetmanate managed to remain autonomous for well over 100 years. During the latter part of the 18th century, most Ukrainian ethnographic territory was absorbed by the Russian Empire. Following the collapse of czarist Russia in 1917, Ukraine was able to achieve a short-lived period of independence (1917-20), but soon became a part of the USSR. Final independence for Ukraine was achieved in 1991 with the dissolution of the USSR, when on 24 August Ukraine proclaimed its independence. Since then, the country has been supporting a position of democracy, freedom and development of the rule of law. The Ukrainian national emblem is a golden Trident (tryzoob), which dates back to Rjurik Dynasty, the governors of Kievan Rus.
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1.5 Political and legal environment Ukraine is a republic with a constitutional democracy form of government, headed by the President. The president is elected for a period of 5 years. The power is divided among executive, legislative and judicial branches. The legislative branch is a unicameral Supreme Council (Verkhovna Rada) of 450 seats. Supreme Council members are allocated on a proportional basis to those parties that gain 3% or more of the national electoral vote and serve five-year terms. The President designates a Prime Minister and regional governors. The Supreme Council can veto his decisions. The executive branch is the Cabinet of Ministers appointed by the President and approved by the Supreme Council. The judicial branch constitutes the Supreme Court and Constitutional Court. The Presidential Administration helps draft presidential edicts and provides policy support to the president. The country is subdivided into 24 regions (oblast), each with its own administrative center. The country also includes 2 municipalities with oblast status and the autonomous republic of Crimea.
1.6 Education and culture The educational system in Ukraine is divided into three levels: elementary, secondary and higher education. Educational institutions of all levels are represented by some public and some private schools and universities. Some universities have voluntary adopted Bologna Process. More information on useful sites in Section 1.12.
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1.7 Economic information and key figures Ukraine’s economic sectors are diverse, but in need of new capital and investments to compete with sectors in the West. Export and business restrictions have been significantly reduced following independence from the Soviet Union, with core export categories including ferrous and non-ferrous metals, steel products and steel structures; chemical products (including fertilizers; plastics and rubber); agricultural products and food (mainly grains, cereals; food processing and packaging). Ukraine’s dependence on energy supplies and the lack of significant structural reform have made the Ukrainian economy vulnerable to external shocks. Ukraine depends on imports to meet about three-fourths of its annual oil and natural gas requirements and 100% of its nuclear fuel needs. A drop in steel prices - Ukraine’s top export - and Ukraine’s exposure to the global financial crisis because of aggressive foreign borrowing lowered the GDP growth rate in 2008. Ukraine reached an agreement with the IMF for a USD 16.4 billion Stand-By Arrangement in November 2008 to deal with the economic crisis, but the program quickly stalled because little progress was made in implementing reforms. The economy contracted nearly 15% in 2009--one of the worst economic performances in the world. In April 2010, Ukraine negotiated a price discount on Russian gas imports in exchange for extending Russia’s lease on its naval base in Crimea. In August 2010, Ukraine reached a new agreement with the IMF for a USD 15.1 billion Stand-By Agreement to put the country on the path to fiscal sustainability, reform the gas sector, and shore up the country’s banking system. Economic growth resumed in 2010 and 2011, buoyed by exports. After initial disbursements, the IMF program stalled in early 2011 due to the lack of progress in implementing key gas sector reforms, namely gas tariff increases. Agriculture fell to 9.3% of the total GDP in 2011 compared with 14% in 1999. Industry, including mining, manufacturing and construction, continued to account for 34.7% in this period. Meanwhile, trade and other services grew from 51 to 56.1 percent. The labour force involved in the economy in 2011 was 22.09 million people with 15.8%; 18.5% and 65.7% in the agriculture, industry and services sectors, respectively.
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Description
2009
2010
2011
2012 est.
GDP, billion USD
300.2
312.7
324.4
340.6
GDP-real growth rate,%
-14.5
4.2
4.7
4.9
Gross fixed investment, %
-52.9
6.9
8.7
10,3
Total revenues, % to GDP
31.6
28.7
28.7
29.7
Total expenditures, % to GDP
33.7
33.2
33.7
32.5
Balance, % to GDP
-2.1
-4.5
-4.0
-2.9
Exports of goods and services, billion USD
54,253
66, 840
72, 655
82, 972
Imports of goods and services, billion USD
56,206
67, 897
75, 230
85, 912
Balance of foreign trade, billion USD
-1,953
-1,057
-2,575
-2,941
Public debt as percentage of GDP
n/a
42.3
44.8
n/a
Inflation rate,%
n/a
9.4
9
11.5
Unemployment rate,%
9.0
8,8
8.6*
8.6*
Exchange rate, average for period, UAH/USD
7.8
7.93
7.96
8-8.3
*Note: officially registered; large number of unregistered or underemployed workers. Source: Institute for Economics and Forecasting, Ukrainian National Academy of Sciences. Ukraine Country report: The forecast of main economic development indicators for Ukraine in 2010-2012, October 2010.
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1.8 Macroeconomic forecast for 2013-2015 Uncertainty about the possible development of the global financial market in the medium term creates considerable variation in economic growth indicators in Ukraine. Generally, it is assumed that the main leverage of economic growth is the expansion of investment demand with real investment rate growing at an average of 7.7%.Variations in experts’ forecasts are caused by the increasing risk of financial instability and unsustainable development in a number of risk countries of the euro zone. However, forecasters agree there will be a very high level of foreign capital inflow to Ukraine, with average value of foreign direct investment of USD 8.2 billion. At the same time, the experts forecast a rather modest growth of government consumption rate of 2.6%. In recent years, much experience has been gained on the implications of the Ukrainian economy functioning in a dynamic expansion of domestic consumer demand. According to analysts, in the medium term, both the state and economic entities will focus more attention on the updating of fixed assets, modernization of production, scientific and technological development and raising of their competitiveness. Experts also predict somewhat of an inflation downfall in the medium term: the average forecast for the consumer price index and producer price index (annual average) is 106.2% and 108.7%, respectively. There is no consensus observed in the medium term forecast of foreign trade development. Average forecast figures for the export of goods and services growth is 11.1% and 11.2%, respectively. Forecasts of average annual exchange rate against the U.S. dollar for the period from 2014 to 2015 range from 8 to 8.8 UAH / USD. In the public sector forecasters believe that, in the medium term, budget expenditures will exceed revenues (average value of the budget deficit will be 1.6% of GDP in the 2014-2015 year with a maximum of “minus” 2.2% of GDP). Source: Ministry of Economic Development and Trade of Ukraine – Ukraine: development prospects. Consensus forecast. Issue 29 (April 2012).
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1.9 Investment climate in Ukraine As of January 1, 2011 total foreign direct investment in Ukraine was USD 44.7 billion (per capita USD 926.7), showing 8.5% from the previous year. The growth of total foreign capital in the economy, including its revaluation, losses, exchange rate differences etc. in 2010, amounted to USD 4.66 billion. The growth of foreign capital was observed in enterprises engaged in financial activities at the amount of USD 2.6 billion; industry ,USD 0.8 billion; real estate transactions, leasing, engineering and services for entrepreneurs , USD 0.5 billion; trade, repair of motor vehicles, household goods and personal consumption , USD 0.4 billion. Leading countries-investors are Cyprus, Germany, the Netherlands, Russia, Austria, France and the United Kingdom. Among the main advantages of investing in Ukraine are the following: •
44 million consumers - one of the largest markets in Eastern Europe;
•
High scientific and educational potential - powerful network of universities and research centers;
•
A competitive skilled labour force - according to research company Brain Bench, Ukraine has the 4th place in the world in number of certified professionals in the field of hi-tech;
•
Strategic advantages of location - Ukraine is at the crossroads of trade routes EastWest and North-South;
•
Widely developed transport infrastructure; railways, ports in the Black Sea and the pan-European transport corridors;
Recently, Ukraine has seen a steady improvement of the legal business and investment environment by adopting a number of laws and establishing the State Agency of Ukraine for Investments and National Projects to facilitate the relationships of foreign investors with state bodies and local authorities. The advantages in legal environment include: •
Foreign investors on the territory of Ukraine enjoy national treatment for investment and other economic activity. Foreign investments in Ukraine shall not be nationalized;
•
In the event of termination of investment activity, a foreign investor has the right to recoup his investment. The investment can be recovered in-kind or in the currency of investment in the amount of the actual contribution without payment of duty, along with profits from those investments in monetary form or in goods;
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•
The State also guarantees to foreign investors an unimpeded and prompt remittance abroad of their profits and other sums in foreign currency obtained legally as a result of foreign investments.
•
In order to systematize the tax legislation, the Tax Code (TC) has been adopted. It is the first codified legislative act in Ukraine regulating taxation issues. The main innovations of the TC relating to investment activities are:
•
Promotion of Ukraine’s transition to innovation model of development, including through the phased reduction of corporate tax rate from 25 to 16 percent (23% in 2011 , 21% in 2012 ,19% in 2013, and 16% in 2014);
•
Temporary (until January, 1 2020) income tax exemption for producers of biofuels for electricity and thermal energy and profits from the extraction and use of gas (methane) of coal deposits;
•
10-years income tax exemption starting January 1, 2011 of hotel services for all categories of five, four and three stars hotels. This includes newly constructed or reconstructed hotels in which there is an overhaul or restoration of existing buildings and structures, as well as enterprises of light industry sectors (except for companies that produce raw materials for), and income from selling electricity produced from renewable energy sources, profit shipbuilding and aircraft industries;
•
Tax at 5% of income on deposits, interest or discount income from a personal savings (deposit) certificates, dividends and some other earnings related to investment activity is introduced;
•
Gradual reduction of the value added tax (VAT) to 17%;
•
Introduction of “automatic” refund of VAT to the “honest” payers of taxes and the single register of tax invoices and the implementation of the State’s responsibility for the late refund of value added tax for such payers.
Source: Permanent Representation of Ukraine to the Council of Europe –Investment Climate of Ukraine. www.mfa.gov.ua
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1.10 Stock market in Ukraine: the PFTS Stock Exchange The development of the stock market in Ukraine started in the mid 1990s with the adoption a the number of relevant laws and resolutions, such as the Law on Securities and Stock Market (1991), On State Commission on Securities and Stock Market (1995), On state regulation of securities market of Ukraine (1996), and others. There are number of stock exchanges operating in Ukraine, the dominating are PFTS (First Stock Trading System) Stock Exchange and Ukrainian Exchange. The PFTS Stock Exchange has been in operation since 1996 and currently is the largest marketplace and self-regulatory organization in Ukraine’s stock market. The PFTS Stock Exchange Trading System consists of “Quote-Driven” and “OrderDriven” markets. In addition, PFTS performs the auctions of the State Property Fund, companies accomplishing the initial public offerings (IPO) or companies selling their own assets in securities. For the eligible circulation on PFTS admitted stocks, government bonds, municipal bonds, corporate bonds, state treasury notes, savings certificates, investment certificates, these and other types of securities were issued in compliance with effective Ukrainian legislation. PFTS index remains the only index of Ukrainian stocks to be recognized and closely tracked by the international financial community. PFTS Stock Exchange is a member of International Association of CIS Exchanges and a correspondent member of the World Federation of Exchanges. More information on www.pfts.com Established in 2008, Ukrainian Exchange has become one of the fastest developing exchanges in the world. Now it offers trading in a wide array of financial instruments ranging from cash equities to futures and options. In 2009 Ukrainian Exchange launched UX Index, the first real time cash equities index in Ukraine. Now UX Index tracks the 15 most liquid and highly capitalized local shares and is widely recognized as the main benchmark for the Ukrainian securities market. Currently, Ukrainian Exchange offers trading on order-driven and quote-driven markets, repo market and the derivatives market. In 2011 Ukrainian Exchange launched trading in options contracts. More information on www.ux.ua.
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1.11 Visas, residence and work permits Resolution No. 567, recently adopted by the Cabinet of Ministers of Ukraine, introduced new rules for the issuance of Ukrainian visas and temporary residence permits. The amendments entered into force on 11 September 2011 and provide for only 3 types of visas: •
transit (type B);
•
short-term (type C); and
•
long-term (type D).
The transit visa (type B) is issued for one, two or multiple entries for up to 1 year and allows for a stay in the territory of Ukraine for up to 5 days during each transit. The short-term visa (type C) is issued for individuals who intend to stay in Ukraine for up to 90 days within 180 days from the date of first entry. This visa may be issued for one, two or multiple entries for the duration indicated in the application but not exceeding 5 years. The long-term visa (D) is issued to individuals entering Ukraine with the purpose staying for more than 90 days. Such visa is issued to individuals who are: •
studying in Ukraine;
•
working in Ukraine pursuant to a work permit;
•
working at a representative office of a foreign company or a foreign bank; diplomatic missions and international organisations; in religious organisations; representative office, departments or a branch of foreign NGOs; foreign correspondents or representatives of a foreign mass media; immigrating to Ukraine pursuant to an immigration permit and family members of all previous categories; and those participating in the Euro 2012 preparation.
D-visa now gives formal grounds to obtain a temporary residence permit which allows entering and staying in Ukraine for the period of residence permit validity (usually for a year). Foreign visitors from visa-exempt countries or C-visa holders can stay in Ukraine for up to 90 days (in aggregate) from the day of their first entry to the country within 180 day period without registration with local immigration authorities.
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Due to the existing quotas, in order to employ a foreign citizen, the employer in Ukraine should obtain the permit to hire a foreigner to occupy a certain position on the grounds of a convincing reason (i.e. lack of relevant expertise in the country (region) or no Ukrainians capable to perform such work, etc.). The package of documents is filed with the State Employment Centre of Ukraine. It takes 30 days for the work permit to be issued. It is usually valid for a year period and can be prolonged. A work permit is a legal basis for a foreign citizen to obtain a relevant type of visa, to get registration of a temporary residence location and to obtain a residence permit in due course. Foreign citizens working in Ukraine without proper work permits are subject to immediate deportation. The employer bears all expenses and is liable for a substantial penalty (more than USD 2,600 as of January 2012). More information on the website of the Ministry of Foreign Affairs: http://www.mfa.gov. ua/mfa/en/509.htm.
1.12 Other useful information and links •
Measurements: Metric system
•
Date notation: day/month/year
•
Numeral Separator: Comma for decimals and full stop for thousand.
Working hours State and public offices are opened from 9 am to 6 pm Monday through Friday, with a lunch hour from 1 pm as a rule. •
Stores and Shopping centers are open from 10 am to 8/10 pm 7 days a week; some can be closed on Sunday. Lunch is usually either from 1 to 2 pm or from 2 to 3 pm.
•
Food stores: many of them work 24 hours, 7 days a week; a few from 8 am to 8 pm
•
Cafes and restaurants are usually open from 10-12 am until the last customer leaves.
•
Banks are open to public from 9 am to 4 pm with a lunch hour from 1 to 2 pm and are closed on Saturday, Sunday.
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Holidays January 1 – New Year January 7 – Orthodox Christmas March 8 – International Women’s Day Easter Day –according to lunar calendar May 1 – originally the Day of International Solidarity of Workers May 9 – Victory Day (WWII) Trinity Day – according to lunar calendar June 28 – Constitution Day August 24 – Independence Day According to the Ukrainian law, in case an official holiday falls on a Saturday or Sunday, the following Monday will be day-off. Useful links http://www.ukraine.com - Ukraine.com provides information about “all things Ukraine”. http://www.uazone.net - UA Zone is a public, volunteer-driven project aimed at providing reliable information about Ukraine, Ukrainian culture and Ukrainian business. http://www.bizukraine.com - Online Ukrainian resources in English.
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2
Types of Business Entities with some applicable laws
Starting a business in Ukraine begins with the choice of the legal form of the future company, which shall be coherent with its business activity. It is illegal to run a company in Ukraine without its state registration. The Ukrainian legal framework provides for a number of forms of business entities to be opened in Ukraine. Foreign entities are entitled to pursue their activities in Ukraine through a variety of options offered by the legislation of Ukraine and the norms of international law. Among them are the opening of a foreign representative office without legal status, incorporation of a legal entity in Ukraine with 100% foreign capital and the participation of Ukrainian individuals and/or legal entities (residents). They not only differ in registration requirements, incorporation and maintenance costs, but also in the type of business activities each type of business entity can carry out. The Law of Ukraine foresees opening of the following forms of business entity: •
Representative office (this stands for a commonly known Branch office);
•
Limited Liability Company (LLC) (Tovarystvo), or a Ukrainian subsidiary;
•
Joint Stock Company
Unlike a representative office, an LLC has legal status. However, an LLC remains a dependent legal entity from the parent company. A representative office is a separate unit of a legal entity located off-site the parent’s location. A representative office performs all or part of the parent’s functions and is governed by provisions approved by the parent company. The head of a rep-office is designated by the parent legal entity and operates under the parent’s warrant. An LLC operates under the Charter which is approved by the parent company (legal entity).
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Applicable laws Incorporation and operation of the company in Ukraine are regulated by the following legal documents: the Civil Code and the Commercial Code of Ukraine, the Law on Business Associations, the Law on Joint Stock Companies, the Law on State Registration of Legal Entities and Individual Entrepreneurs and the number of other laws and resolutions of the government. Licensing The law of Ukraine is exhaustive of the list of activities subject to licensing, for example: •
banking and financial services;
•
stock market activity;
•
construction;
•
production and sale of ethanol, cognac/fruit spirits, alcohol beverages and tobacco;
•
production and sale of pharmaceuticals;
•
business activities in telecommunications, TV and radio broadcasting etc.
A license is obtained upon submission of a standard application form and a set of other required documents to a relevant licensing authority. Unless otherwise provided by the law, the decision is announced within 10 days after submission. Licensing is subject to a state duty. Licenses are valid within a term prescribed by the law for a particular type of license. Generally, it is at least 5 years. A license is obtained for each particular type of licensed activity and is terminated upon closure of a business or can be cancelled by the licensing authority as a result of violation of the licensing conditions. Carrying out a licensed activity without an appropriate license is subject to administrative sanctions.
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Accounting and Audit requirements Bookkeeping and tax accounting are mandatory for all types of businesses under the law of Ukraine. Bookkeeping is a compulsory type of accounting maintained by the legal entity. Financial, tax, statistical and other reporting information is based on bookkeeping data. For individual entrepreneurs, who use a simplified taxation system, there is a simplified form of accounting and reporting to tax and pension fund authorities. As a result, this type of business is the most appropriate for businesses not aimed at receiving super profits. Joint-stock companies are subject to annual audit of annual financial statements under the Law of Ukraine on Joint-Stock Companies. The auditor’s report can be required by the state registration authorities in some cases prescribed by the legislation, including: •
upon an entity liquidation;
•
upon a legal entity liquidation as a result of merger, acquisition or conversion, etc.
For more information see Section 10.
2.1 Representative offices A Representative office is not a separate legal entity but only represents the foreign company and acts on its behalf in accordance with the law of Ukraine. Depending on business objectives, it is possible to register commercial representative office and non-commercial (not-for-profit) representative office. A commercial representative office carries out commercial activity or provides services and earns income as a result of its activity. This requires rep. office registration for tax purposes. It is subject to normal corporate income tax and VAT. If the foreign company intends to limit its operation in Ukraine to representative functions, monitoring, collecting information or establishing contacts, etc., it can apply for a non- profit status. However, the law provides for the list of organizations eligible for non- profit status and the foreign entity shall either comply with the requirements listed or be able to justify any requirements it cannot comply with. The entity must not make a profit in accordance with Ukrainian law.
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Because of the double tax treaty in place between Ukraine and the foreign company’s tax jurisdiction, some of the rep. office profits may be tax exempt. Non-commercial rep. offices generally are not VAT payers. Rep. offices are subject to state registration in due course under the Law of Ukraine on State Registration of Legal Entities and Individual Entrepreneurs. Opening a rep. office requires the following steps: •
A documented decision of the parent entity’s management to create a rep. office (a branch), the approval of its location, name, assignment of its chief executive, approval of the rep. office governing provisions;
•
Filing the required documents with the state registrar.
Representative office shall normally be registered with the Ministry of Economic Development and Trade, the State Tax Authority, the State Statistics Authority, and with the pension and social security funds. The foreign bank shall register with the National Bank of Ukraine. In order to use its official stamp, the rep. office shall obtain a permit of the Ministry of Internal Affairs. Depending on the list of intended activities registration with other authorities can be required. As soon as registrations are completed the rep. office can open a bank account. The registration process usually takes up to three months after all necessary documents have been submitted. Preparation of documents takes a considerable time, as normally they require approval, notarization, translation and legalization.
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2.2 Limited liability company
Schonbrunn Palace, Vienna
Limited Liability Company (LLC) is the most wide-spread form of company incorporation in Ukraine. This is due to the following reasons: •
There are no specific law requirements regarding minimum company capital, so the participants can individually decide on its size and percentage (participatory interest) and specify this in the Charter;
•
There can be up to a hundred participants;
•
The Chartered capital is formed by the participants’ investments on a share basis (participants’ responsibility is defined by their shares);
•
Participants are entitled to transfer their shares to third parties and can voluntarily withdraw from the company with the proportionate share of company’s capital, or can be withdrawn by other participants upon failure to perform assigned duties;
•
LLC is managed by a governing body - the General meeting of the participants. It can be created on a collegial or sole basis and their votes are proportional to their interest in the Chartered capital. All the decisions are made through and documented by the General meetings’ minutes, provided there is the quorum;
•
The executive body of LLC is the Board of Directors, or a Director, and the audit committee. The LLC’s structure, authority and responsibilities are defined in the Charter. It also contains the company’s objectives, scope of activities, rules and regulations.
•
There are no statutory audit requirements unless under participants’ demand.
•
Incorporation of LLC provides for the following steps:
•
The General Meeting of participants is held to consider and approve a new Company incorporation, its name, address, chartered capital, the allocation of shares between the participants, wording of the Charter, and to appoint the executive body. The decision of the General Meeting of participants is recorded in the minutes of the General Meeting and is signed by all participants;
•
The required set of documents (according to the Law of Ukraine “On State Registration of Legal Entities and Individual entrepreneurs”) is filed with the state registrar;
•
The LLC’s stamp is obtained (no stamp permit is required);
•
LLC is registered with the State statistics and tax authority, and with pension fund;
•
LLC opens its bank accounts.
The law of Ukraine provides for the possibility to create LLC on the basis of a model Charter, which is developed and approved by the Cabinet of Ministers of Ukraine. In such case there are no requirements regarding the notarization of participants’ signatures, which significantly reduces the time and cost of LLC incorporation.
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2.3 Joint-stock company Joint-stock companies (JSC) in Ukraine are regulated by the Law of Ukraine On Joint Stock Companies. The special feature of JSC in Ukraine is that under the law they fall into two types: public and private JSC. The number of shareholders of a private joint stock company cannot exceed 100 shareholders and the shares can only be offered to the private JSC shareholders. The shareholders’ preemption rights shall be provided by the Charter. Unlike a private JSC, a public JSC shall be listed with a stock exchange in Ukraine and can make public and private offerings. Public JSC shares can be traded on a stock exchange market. The following entities are entitled to be founders of joint stock companies under the law: •
the state, represented by the body authorized to manage state property;
•
local community, represented by the body authorized to manage municipal property; and
•
individual and/or legal entity that decided on such company type incorporation.
A JSC (private or public) and its shares shall be registered with the State Securities and Stock Market Commission in Ukraine. Registration of JSC requires filing of the set of documents under the law of Ukraine. The application and registration procedure takes longer in comparison with other forms of legal entities. For more information see the Chart in Section 2.5.
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2.4 Private enterprise In comparison with the entity types above-legal entities defined by the legislation of Ukraine- a private enterprise is the least regulated in terms of regulatory and legal requirements that apply. By the definition given in the Commercial Code of Ukraine, a private enterprise is a legal entity that acts on the basis of private property of one or several individuals. The law of Ukraine does not provide any specific requirements on the minimum Chartered capital of the private enterprise, its corporate management structure or requirements to property. Therefore the owner (owners) applies regulations adopted for legal entities or act at their own discretion. For more information see the Chart in Section 2.5.
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2.5 Comparison of the most popular entity forms in Ukraine
Type of Entity
Private enterprise
Limited Liability Company (LLC)
Overall description
The company that operates on the basis of the individual or legal entity private ownership
The company that has Chartered capital proportionally divided between the shareholders. The size of the shares is set up by the Charter.
Minimum capital
No special requirements
No special requirements
Founders / shareholders
Owner /Owners
Founder /Participant Founders /Participants
Founder’s/ shareholder’s liability for the obligations of the entity
Owner of the legal entity or the owner of the property are not liable for legal entity’s liabilities; legal entity is not liable for the liabilities of the owner or the founder except for the cases stipulated by law or the legal entity foundation documents
Participants of LLC are not liable for the company’s liabilities and bear risk of losses as a result of LLC activity within their shares’ limits
Legal entity (yes/no)
Yes
Yes
Full accounting (yes/no)
Yes
Yes
Income tax
Income tax rates depend on the chosen taxation system (general or simplified)
Income tax rates depend on the chosen taxation system (general or simplified)
Taxation of income for founders/ shareholders
Dividends paid by legal entity-resident are 5% taxable at source;
Dividends paid by legal entity-resident are 5% taxable at source;
Dividends received by legal entity-non-resident from a resident are 15% taxable at source of payment (paid by a resident).
Dividends received by legal entity-non-resident from a resident are 15% taxable at source of payment (paid by a resident).
Dividends paid to individuals (regardless of residence) on securities or other corporate rights are 15% or 17% taxable (unless otherwise provided by the treaty, which provisions prevail for nonresidents individuals and legal entities).
Dividends paid to individuals (regardless of residence) on securities or other corporate rights are 15% or 17% taxable (unless otherwise provided by the treaty, which provisions prevail for nonresidents individuals and legal entities).
Form of transfer of profits to founders/ participants/ shareholders
Stipulated by the incorporating document (Charter)
Stipulated by the incorporating document (Charter)
Audit of financial statements
By owner’s demand
By founders’/ participants’ demand
Time required for registration
Up to 10 calendar days
Up to 10 calendar days
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Joint Stock Company (JSC)
Individual Entrepreneur
Legal entity with authorized capital divided into a number of shares of equal nominal value. The corporate rights for shares are confirmed by the securities.
An individual running own business at own risk, not a legal entity
1250 of minimum salaries, as effective on the date of JSC registration. As of June 2012 it is UAH 1,367,500.00
No special requirements
Shareholders
Individual Entrepreneur
JSC is independently liable for all its liabilities by JSC total assets. Shareholders are not liable for JSC liabilities and bear risk of losses as a result of JSC activity within the value of shares they possess
Individual Entrepreneur is liable for its business activity by all its property, except for the property that cannot be pledged under the law.
Yes
No
Yes
No
Income tax rates depend on the chosen taxation system (general or simplified)
Income tax rates depend on the chosen taxation system (general or simplified)
Dividends paid by legal entity-resident are 5% taxable at source;
-
Dividends received by legal entity-non-resident from a resident are 15% taxable at source of payment (paid by a resident). Dividends paid to individuals (regardless of residence) on securities or other corporate rights are 15% or 17% taxable (unless otherwise provided by the treaty, which provisions prevail for nonresidents individuals and legal entities). Stipulated by the incorporating document (Charter)
Yes
No
Preparation stage takes from 3 to 6 months; registration with authorities takes up to 10 calendar days
Up to 5 calendar days
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2.6 Other forms of business co-operation Currently there is no legal entity of a joint venture enterprise in Ukraine. A joint venture enterprise is formed by establishing a legal entity (LLC or JSC) with participation of various foreign entities. There is a possibility, though, to organize a joint venture based on a joint activity agreement without registering a legal entity. Such agreements set up provisions for relationship between the parties, changes or termination of their rights and liabilities, withdrawal procedures and actions in case of violation or damage.
2.7 Individual Entrepreneurship Recently enacted Tax Code of Ukraine defines a self-employed person as a taxpayerindividual entrepreneur that performs independent professional activity (runs own business), provided that such person is not employed within that business or independent professional activity. Jobs of independent professional activity include notaries, lawyers, artists, etc. Individuals wishing to run their own business are required to register with the state tax authority by their residence as a private entrepreneur and to get a registration certificate. In addition, such an individual is required to keep records of business accounts and submit a tax return every reporting year. Procedure of registration of private entrepreneurship of a foreign citizen or a stateless person is similar. However, a foreign nation or a stateless person registered in the state tax authority as a private entrepreneur is considered a resident of Ukraine and is taxed on worldwide income or other proceedings, which shall be appropriately stated in the annual tax return, along with income sources in Ukraine. The registration procedure of private a entrepreneur includes registration with the Unified State Register of Legal Entities and Individual Entrepreneurs, the State Tax Authorities and the Pension Fund. The main advantage of being a private entrepreneur in Ukraine is the ability to use a simplified taxation scheme. More details in Section 4.6.
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2.8 Procedure of closing business in Ukraine Closing a business in Ukraine has is carried out both on a voluntary and forced basis (as a result of court proceeding as anticipated by the law of Ukraine). Voluntary liquidation of a business in Ukraine, both for individual entrepreneurs and legal entities, foresees the following steps: •
Approving of a decision of closure (liquidation) in the form of an application to a tax authority for individuals, a decision of a higher managing body for a legal entity (in case of JSC, a decision of a General Meeting of the Shareholders; for LLC, a decision of a General Meeting of Participants; recorded in the respective minutes);
•
Submission of documents to the state registration authority.
Liquidation of individual entrepreneurs involves actions concerning seeking, acknowledgement and satisfying creditor’s requirements. After two months from the day when a notice of liquidation is published, a legal entity may address the state registration authority with documents to confirm the absence of liabilities to budgets and funds and other documents in order to make an appropriate record in the Unified State Register of Legal Entities and Individual Entrepreneurs about the closure (liquidation) of business. The closure of a business in Ukraine involves the following important intermediary stages: the inspection of a tax authority and social insurance fund to justify the absence of budget and funds liabilities. Generally, liquidation procedures take takes 3 to 6 months for private entrepreneurs and from 6 months to 1 year for a legal entity. The following elements may influence the timing of a business closure: (a) character of economic activity; (b) number of employees; (c) form of incorporation; (d) scope of business transactions etc. Forced liquidation as a result of a court proceeding is possible in a case of insolvency or if there is incompliance with legal and regulatory requirements set forth by the legislation of Ukraine (violation of registration procedures, failure to meet tax liabilities, etc.).
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2.9 Labour Code of Ukraine The Labour Code is the main set of laws that governs labour relationships between employers and employees. This regulatory and legal act defines the basic rights and duties of the employee and the employer; the procedure and grounds for the creation and termination of the employment; guarantees compensation, working hours and terms of vacation; the procedure of dispute resolution; etc. The Labour Code admits employment based on the labour agreements. However, terms and provisions of such an agreement shall provide for the minimum guaranteed by the Labour Code. Employment without formal registration of labour relationships is illegal.
2.10 Social security system One of the compulsory fees in Ukraine apart from taxes is a unified social contribution that applies to employers or employees of all companies incorporated in Ukraine, private entrepreneurs or employed under labour or civil agreements. For employees on salaries or wages, a social contribution is withheld at source at the rate of 3.6% of gross remuneration (2.6% for those employed under labour or civil agreements). Employers pay 36.7% - 49.7% of gross employee remuneration, depending on the accident risk level of the company’s sector of industry (34.7% for remuneration paid under labour or civil agreements). The respective monthly personalized reports are filed by the employers to the Pension Fund of Ukraine within 20 days following the reporting month. Private entrepreneurs are liable for monthly social contributions and report to the Pension Fund once a year. Violation and avoidance of social security obligations is severely penalized.
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2.11 Foreign director appointment The law requirement of having a work permit to work in Ukraine makes it legally impossible for a newly created Ukrainian company to start its operation under the lead of a foreign director (unless s/he has already been living and working in Ukraine). However, a foreign director can be hired by a Ukrainian company on the basis of written employment agreement (contract). The foreign director’s education, qualification and experience shall comply with the requirements set up by the applicable law. Upon the appointment, the foreign director shall register with the STA to obtain a Ukrainian personal Tax ID number. The process usually takes up to three weeks upon submission of a package of required documents. As a result, a foreign national becomes a taxpayer of Ukrainian taxes. More information on Ukrainian tax and taxation of worldwide income of non-residents who live and work in Ukraine is provided in Section 5.
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3 National Bank of Ukraine currency control regulations Germany According to the Decree of Cabinet of Ministers of Ukraine on the Currency Regulation System and Currency Control (1993), some currency transactions are subject individual and general licenses issued by the National Bank of Ukraine. General licenses are issued to commercial banks and other financial institutes of Ukraine, and to the national postal company for the whole period of currency regulations in effect. Individual licenses are issued to residents and non-residents to perform a one-time currency transaction for the period needed for the transaction to be accomplished. Transactions, which require an individual license include: i.
ii.
exporting and transferring foreign exchange assets through the Ukrainian border, except for: •
The transferring of foreign currency abroad by residents and non-residents of Ukraine, if that currency was brought by them into Ukraine on legal grounds;
•
payments made by residents in favor of non-residents relating to purchase of goods, services, intellectual property and other property rights apart from payments for foreign exchange assets and life insurance contracts;
•
transferring abroad interests and investment income in foreign currency;
•
transferring abroad previous foreign currency investment in case of the ceasing of investment activity etc.
granting and receiving foreign currency loans from residents if the amounts of these loans exceed established limits;
iii. the use of foreign currency on the territory of Ukraine as means of payment or pledge;
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iv. deposition of foreign exchange assets on foreign bank accounts and deposits, except for: •
the opening of foreign currency accounts by individual for the time of their staying abroad;
•
the opening of correspondent accounts by authorized banks;
v. making investments abroad, including the purchasing of securities. Foreign currency trade regulations Residents and non-residents of Ukraine must buy or sell foreign currency exclusively at the interbank currency exchange of Ukraine through authorized banks and other financial institutions licensed by the NBU for conducting foreign currency trade. Compulsory reporting of valuables located abroad Currency valuables and other residential property abroad are filed through compulsory reporting to the NBU, which sets up procedures and terms for the reporting filing. Settlements for import-export operations According to the Resolution of NBU on the Control Procedure Over Import-Export transactions (1999), goods imported by residents on supply delay terms require the permission of the Ministry of Economic Development and Trade if this delay exceeds a 180-day period following the date of the advance payment, The issuing of promissory notes or using a letter of credit settlements from the date of bank transfer to non-resident may also be used, Advance payments to foreign companies on future supply terms must be fulfilled within a 180-day period following the date of the advance payment. If goods or services are not received during this period, the company becomes subject to severe penalties, which may be avoided by extending the period of supply based on an individual permission granted by the Ministry of Economic Development and Trade. It is also required that residents credit their bank accounts with the amount of proceeds subject to debt recovery according to their contracts, within 180 days following the date of completion of a custom-clearance declaration for exported goods.
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Foreign currency transfer Any national and foreign currency transfer by the authorized banks and other financial institutions from a resident of Ukraine legal entity to non-residents is based on the following documents: •
a contract with the non-resident prepared according to current legislation of Ukraine or another document, which legally has the power of a contract;
•
documents which justify actually provided services, works or transferred intellectual property rights.
If the amount of such transaction exceeds EUR 100,000 (or its equivalent), it must be approved by the State Information and Analytic Center for Monitoring of External Commodity Markets, which identifies the compliance of corresponding contract prices to the market prices. In case of a written refusal, those operations are permitted only with the permission of the National Bank of Ukraine. The following transactions are exempt from these requirements: •
financial, tourist, transport and communicational service transactions by residents if they hold licenses (permits) of authorized bodies to run businesses in those areas of service;
•
transactions of residents, defined according to current procedures of corresponding international agreements, conducted according to those agreements;
•
transactions under an individual National Bank of Ukraine license;
•
payments to the International Bank for Reconstruction and Development by a borrower-resident, conducted as part of loan agreement performance, etc.
Foreign loan interest cap According to the NBU rules, residents (legal entities, private entrepreneurs and individuals – citizens of Ukraine) may receive loans from non-residents, including payback financial assistance in foreign currency in accordance with agreements and legal procedures on a non-cash basis. In order to receive financial assistance in foreign currency, a resident has to register a contract with the NBU.
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Resident borrowers (except for authorized banks of Ukraine) raise funds from nonresidents through authorized banks of Ukraine upon their approval to service these transactions. If the contract with the non-resident foresees borrowing funds through a money transfer to the resident borrower’s account, and abroad and/or debt repayment on such loan is conducted from the resident’s account abroad, than the resident borrower must, according to established procedures, receive an appropriate individual license. Contracts that foresee the repayment of debt liabilities in foreign currency by resident borrowers to non-residents are subject to compulsory registration with the NBU. Nonbank resident borrowers are provided with certificates of registration by the local departments of the NBU. Resident borrower is obliged to register an agreement before receiving a loan. Commercial loans, received by residents from non-residents and loans received by the state or provided by the state guarantees are not subject to registration with the NBU. The amount of loan interest payments including commissions, penalties and other payments, set up by the contract shall not exceed established by the NBU maximum interest rate on the contracts in effect on the date of submission of the registration documents to the NBU. Taking account of the value of international financial markets borrowings, NBU establishes the following maximum interest rates for 1 group by the Currency Classifier of Ukraine: •
for short-term loans (up to 1 year ) – no more than 9.8% per year ;
•
for middle-term loans (from 1 to 3 years) – no more than 10% per year; and
•
for long-term loans (over 3 years) – no more than 11% per year.
For the floating interest rate the maximum rate is a LIBOR rate for three-months USD deposits plus 750 basis points. Foreign borrowings in currencies of 2 and 3 groups of the Currency Classifier shall not exceed 20% per year.
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Olympiyskiy Stadium, Kyiv
4 Taxation system in Ukraine 4.1 Legal framework The tax legislation of Ukraine is regulated by the following documents: •
Constitution of Ukraine;
•
Tax Code of Ukraine;
•
Customs Code of Ukraine;
•
number of laws on customs regulations on import or export duties;
•
international treaties on avoidance of double taxation in effect as ratified by the Verkhovna Rada of Ukraine;
•
legal and regulatory documents adopted under and pursuant to the TC and other laws on customs regulation;
•
resolutions of the Verkhovna Rada of the Autonomous Republic of Crimea; and
•
resolutions of local authorities on local taxes and fees adopted under the rules established by the TC.
If an international treaty ratified by the Verkhovna Rada of Ukraine sets tax rules other than those provided by the TC, the rules introduced by the international treaty apply.
4.2 The Tax Code of Ukraine (TC) 2011 became a year of change for the system of taxation in Ukraine due to release of the new Tax Code of Ukraine that came into effect starting January 1, 2011. It introduced a lot of amendments (of positive and negative nature) in tax accounting rules and administration of taxes including corporate income tax (CIT) applicable to all enterprises subject to CIT; taxable income and expenses; tax accounting of assets in terms of tax amortization, etc. However, there are still cases of ambiguous wording and lack of clarifications that can cause disputes between taxpayers and tax authorities, so further amendments and clarifications are likely to be introduced in the near future.
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4.3 Types of taxes in Ukraine Ukraine has established the following state (national) and local taxes and fees. The state taxes and fees are established by the Tax Code and are mandatory throughout Ukraine. State taxes and fees include: •
Corporate income tax;
•
Personal income tax;
•
Value Added Tax;
•
Excise tax;
•
Tax for first registration of the vehicle;
•
Environmental tax;
•
Land tax;
•
Use of subsoil tax;
•
Customs Duty;
•
Pension Fund charges;
•
Rental fee for extraction of oil, gas and gas condensate in Ukraine;
•
Rental fee for transportation of oil and oil products by pipelines; transit pipeline transportation of natural gas and ammonia through Ukraine;
•
Fee for use of radio frequency resource of Ukraine;
•
Fee for special use of water;
•
Fee for special use of forest resources;
•
Fixed agricultural tax;
•
Fee for development of viticulture, horticulture and hop;
•
Fee as a surcharge to the current tariff for electricity and heat than electricity generated by qualified cogeneration facilities;
•
Duty as a supplement to the existing natural gas tariff for consumers of all forms of ownership.
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Local taxes and duties are laid down according to the list and within the limit rates prescribed by the TC, by the resolutions of local village and town councils and are obligatory in the respective communities. Local taxes and fees comprise: •
Tax on real estate other than land;
•
Tax on immovable property;
•
Fee for running certain types of business;
•
Parking fee;
•
Tourist tax.
4.4 Corporate Income Tax (CIT) The procedure of calculation and payment of corporate income tax (CIT) is set up in the provisions of Section III of the TC and is regulated by the number of acts adopted by the State Tax Administration of Ukraine (STA) on the development of provisions of the TC. CIT payers Pursuant to TC, CIT payers are legal entities-residents of Ukraine (Ukrainian and foreign entities incorporated in Ukraine through permanent establishment), including: •
those running business both in Ukraine and abroad;
•
not-for-profit institutions and organizations for income sourced from their noncore activities and/or income subject to CIT under this section;
•
separate units of entities-CIT payers, except for representative offices.
In accordance with TC, foreign entities – non-resident of Ukraine are subject to CIT only if: •
their income originates from Ukraine (activity performed in Ukraine or property located in Ukraine), except for institutions and organizations with diplomatic privileges or immunity under international treaties of Ukraine; and
•
Permanent Missions of non-residents that receive income from sources in Ukraine or perform agent (representative) and other functions in respect of such nonresidents or their founders.
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Tax Base Pursuant to TC, the tax base for tax purposes is the monetary representation of profit that is subject to taxation. By this it means income from core operational activity and other income for the reporting period as supported by appropriate source documents. However, TC foresees a separate list of 23 tax-exempt items of income which are excluded from taxable income for the purpose of tax base, such as: •
advance payments and VAT (excluding cases when seller is not a VAT payer);
•
direct investments or reinvestments in corporate rights;
•
loans and accommodations;
•
monetary funds of joint investment;
•
additional paid-in capital;
•
dividends;
•
property and funds transferred to broker (attorney or agent) under commission contract, consignment, etc.;
•
property and funds returned to the owner after entity liquidation or termination of joint operation;
•
international technical assistance; and others.
The costs taken into account for the tax base consist of expenses for core operational activity, as listed in the Charter, and other expenses. TC also provides for a detailed description of deductible expenses. Unless the expenses meet the described requirements, they are considered non-deductible. The list of non-deductible expenses includes the following: •
Fees for consulting, advertising, marketing and engineering services provided by non-residents with offshore status;
•
Royalty payments to:
•
Non-resident (if exceeds 4% of the previous year reporting revenue);
•
Offshore companies;
•
To non-beneficiary unless is entitled by the beneficiary;
•
Regarding intellectual property rights of residents of Ukraine, etc.
There is also a list of partly-deductible expenses. For example, expenses on petrol for cars are only 50% deductible.
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TC specifies the procedure for determining the date when the tax liability arises: •
income from the sale of goods is recognized at the date when the title of ownership of such goods is transferred to the buyer;
•
income from providing services and work is recognized at the date of Acceptance Protocol of service delivery (or another appropriate document), which confirms the execution of works or services.
CIT rate TC provides three types of CIT rates depending on the taxpayer business activity. •
the basic rate;
•
the tax rate for entities engaged in insurance activities;
•
the tax rate for income of non-residents and similar persons which is sourced from Ukraine.
TC sets up gradual reduction of basic tax rate, as following: •
January 1, 2012 through December 31, 2012 inclusive - 21%;
•
from 1 January 2013 to December 31, 2013 inclusive - 19%;
•
from 1 January 2014 on - 16%.
0% CIT rate applies to income received from life insurance contracts. Different CIT rates (0, 4, 6, 12, 15 and 20%) apply to Ukraine-sourced income of nonresidents and similar persons depending on the type of income that should meet the provided by TC description in detail. There are no progressive CIT rates in Ukraine.
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Tax holidays TC introduced a “tax holiday” for certain categories of taxpayers. In particular, this paragraph introduced 0% tax rate for the period of almost 5 years for taxpayers who are not engaged in certain activities (i.e. the “taboo” activities are foreign trade, real estate, wholesale trade and mediation in wholesale trade activity, law practices, accounting, engineering or corporate services). Incentive regimes are applied to the following industries: •
Agriculture
•
Publishers
•
Investment funds
•
Ship and aircraft-building
•
Producers of machinery for agriculture
•
Bio-fuel producers
•
Entities engaged in energy-saving projects, and others.
Tax holiday is applied if the amount of annual income does not exceed UAH 3 million (circa USD 375,000); an employee’ wage is not less than two minimum wages, and if other criteria of the company’s history are met. In the event of any inconsistency with these requirements, the taxpayer is subject to CIT for the period in which such failure occurred. In addition, if the company pays dividends, it is required to pay advance corporate tax and advance tax on dividends for the reporting tax period in which dividends are paid. These advance tax payments are available for offsetting by the company or can be carried forward, but not refunded. CIT assessment and reporting TC defines the procedure for CIT assessment. It is calculated by the taxpayer on a self-assessed and currently adjusted basis at the standard CIT rate for each reporting period. CIT is reported for the following tax periods: quarter (three months), half a year, three – quarters (none months), and a year. Generally the reporting tax period is January 1 - December 31 and begins on the first calendar day of the period and finishes on the last calendar day of the tax period, except for agricultural producers. Their annual tax period is from 1 July till June 30 of the following year.
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Financial district, Frankfurt CIT return: deadlines and penalties CIT return is completed with self-assessed data on cumulative basis and filed with the tax payer supervisory tax authority within the period prescribed by law. CIT return is the basis for payment of tax liability. Together with the appropriate tax return the taxpayer submits quarterly or annual financial statements (except for small businesses) under the prescribed procedure for filing tax returns. Quarterly CIT returns are filed within 40 days following the last calendar day of the reporting (tax) quarter. The annual CIT return is filed before February 9 of the following year. Tax liability specified in the filed CIT return is due within 10 calendar days following the last day of the relevant deadline of the respective CIT return. Legal entities, representative offices – CIT payers, individual CIT taxpayers and their legal or authorized representatives and tax agents – all take responsibility for failure to provide accurate and timely CIT return to supervisory authorities, and for inaccurate information provided therein. Failure or delay of filing is penalized by UAH 170 (~ USD 21) for each case of such failure or untimely filing. Repeated cases of violation during a year increase the penalty to UAH1020 (~ USD 128) for each such case.
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4.5 Personal Income Tax (PIT) Taxpayers of PIT and taxable income Both residents and non-residents of Ukraine are subject to Personal Income Tax. Residents of Ukraine are taxed in their worldwide income (this also applies to foreign nations with residency status), while non-residents are only taxed on income sourced from Ukraine. The taxable income includes salaries or remuneration for work or services provided or business activity performed in Ukraine and paid for either by Ukrainian or foreign company, together with any other benefits, compensations, reimbursement of expenses and other receipts originated from Ukraine. Law of Ukraine defines a tax resident by a number of criteria, apart from Ukrainian citizenship. These include: •
having a domicile in Ukraine;
•
having a permanent place of residence in Ukraine;
•
having center of vital interests in Ukraine; or
•
staying in Ukraine for the period of more than 183 days during a calendar year (tax year).
Obligatory registration and PIT rate All taxpayers in Ukraine are required to be registered with the State Registry of STA for Individual Tax Number (ID code). This number is essential for running any business in Ukraine (to register a company, open a bank account), as well as for renting apartments or to pay PIT tax. Private entrepreneurs and freelancers registered in Ukraine are also considered tax residents. However, for a non-resident (foreign nation) with no Ukraine-sourced income registration is not required unless voluntary chosen. Generally applied PIT rate is 15% or 17%. 15% applies to income not in excess of limit estimated annually on a 10 minimum salary basis (for 2012 it is UAH 10,730 (~ USD 1,341) per month). The excess income is subject to 17% tax rate.
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If not otherwise introduced by the international treaty, these rates also apply to interest and dividends from foreign banks (starting January 1, 2015) and companies, sales of real estate and movable property by a tax resident if sold abroad or by non-residents. Until December 31, 2014 PIT exempt are interest from Ukrainian and foreign banks and first sales of property by tax residents. Interest and dividends from Ukrainian banks (starting January 1, 2015) and companies, as well as repeated sales of property are 5% PIT taxable. Administration of PIT In general, personal income from salaries paid through payroll by the company in Ukraine is taxed at source and does not require any other reporting by an individual. All other income not taxed at source is subject to PIT on the basis of annual tax return. The obligation to complete an annual tax return and file it with the local tax authority rests with the individual and PIT is calculated on a self-assessment basis. The annual PIT return is due by 1 May of the following after a reporting year; the payment deadline for the assessed tax is July 31.
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4.6 Taxation of small businesses and private entrepreneurs Tax system in Ukraine provides for a simplified or unitary tax available for small businesses and individuals registered as private entrepreneurs. They are entitled to pay a fixed amount of tax depending on the qualifying category. Small business entities and individuals registered as private entrepreneurs can voluntary choose and register as unitary taxpayers according to the following groups: •
Group 1 includes private entrepreneurs engaged in selling goods or services to consumers, that do not employ personnel, with total income up to UAH 150,000 (~ USD 18,750) per year;
•
Group 2 includes private entrepreneurs engaged in selling goods or services to consumers and other private entrepreneurs (not legal entities), employ up to 10 people, with annual income not exceeding UAH 1,000,000 (~ USD 125,000).
Group 1 and 2 pay unified fixed tax depending on type of provided activity. •
Group 3 includes private entrepreneurs that employ up to 20 people and earn up to UAH 3,000,000 (~ USD 375,000) of income annually;
•
Group 4 includes legal entities employing up to 50 people with total income less than UAH 5,000,000 (~ USD 625,000) per year.
Groups 3 and 4 are subject to 5% single tax of their total annual income. A unitary tax system relives small businesses and private entrepreneurs from other taxes (PIT, VAT and others) unless voluntary chosen. Small entities registered as VAT taxpayers pay 3% simplified tax of their sales proceeds. Tax returns are filed quarterly and annually. The deadlines for filing and payment are similar to those of PIT. However, private entrepreneurs are required to pay a unified social contribution of 34.7% of the minimum salary (subject to annual approval and indexation by the government).
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4.7 Tax on goods and services (VAT) Taxpayers and scope of application In general VAT is levied on the supply of goods and services in the customs territory of Ukraine and on the importation of goods and services to the customs territory of Ukraine within the customs clearance of imports at a rate of 20%. Starting from January 1, 2014 VAT rate will be reduced to 17%. Export of goods (concomitant services) except for some cases stipulated by TC if their export is confirmed with an appropriate customs declaration executed in accordance with requirements of the customs legislation is taxed at 0% rate. Also 0% tax rate is applied to other designated types of supply, including some kinds of goods, services in the field of international transportation activity, etc. The TC establishes following registration requirements for the persons as VAT payers: •
Mandatory - in cases where the total amount of transactions of supply goods/ services subject to VAT taxation in accordance with TC, including those that involve using the local and global Internet accrued (paid) to this person during the last 12 calendar months exceed UAH 300,000 (before value added tax);
•
Voluntary - if a person that performs taxable transactions (who is not a taxpayer because the amount of taxable transactions is lower than the amount stipulated by TC and amounts of supply of goods/services to other VAT payers during the last twelve months constitute no less than 50 percent of total amount of supplied goods/services) finds it reasonable to register as a taxpayer on a voluntary basis; registration is based upon a person’s application. Apart from aforementioned, a person with statutory capital or assets exceeding UAH 300,000 also may be registered as a VAT payer irrespective of volume of taxable transactions and supplied goods/services to other VAT payers.
If persons that are not registered as VAT payers import goods into the customs territory of Ukraine in the amount subject to taxation in accordance with the legislation, they pay VAT during the customs clearance of goods without being registered as VAT payers.
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Place of performance in case of selling goods or providing services VAT charge depends on the place of supply of goods/services. According to TC the main definition a place of providing goods and services are: For goods: i.
the actual location of goods at the moment of supply (except for the case ii and iii below);
ii.
a place where goods are at the beginning of their transportation or sending in case that goods are transported or sent by a seller, a buyer, or the third party;
iii.
a place of assembly or installation in cases where goods are erected, assembled or installed (with testing or without it) by a seller or on its behalf.
For services: i.
the actual location where services related to movable property are provided (auxiliary services to transportation activities, services of examining and assessing movable property, repairs services and services of processing raw materials and other kinds of work and services related to movable property);
ii.
the actual location of real estate including construction in progress for the services related to real estate;
iii.
an actual place of providing services of arts, culture, education, science, sports, entertainment or similar services including services of organizers of activities in these areas and services provided to hold paid exhibitions, conferences, workshops and other similar events.
iv.
a place of providing intellectual property rights, creation of intellectual property objects by order and their use, including under licensing agreements, provision of advertising services, consulting, engineering, legal (including advocacy), accounting, audit, actuary as well as services of development, delivery and testing of software, data processing and consulting on informational technology and other services in this field, provision of information services, provision of
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personnel, telecommunication services, etc. shall be considered the place where a recipient of services is registered as business entity or (in absence) - the place of his permanent or principal residence. v.
a place of services provision shall be the place of registration of a supplier except for the transactions referred to in a)-d) of aforementioned list.
VAT liability is incurred on supply of goods/services on the date of funds remittance from the bank account of the buyer/customer to a VAT payer’s bank account as payment for goods/services to be delivered; or on the date of delivering of goods or the date of the issuing a document confirming the fact that services have been delivered (Acceptance protocol of service delivery – the legal document in Ukraine) depending on which of the dates occurs earlier. The VAT base for supply of goods/services is a negotiated (contract) price, which is not less than regular (market) price defined in accordance with TC, including state taxes and fees (excluding VAT). The VAT base for importing goods is a negotiated (contract) price, but not less than the customs value of goods specified under the Customs Code of Ukraine (market price), including duty and excise tax payable, excluding VAT, which included in the price of goods/services. The date of arising of tax liability when importing goods into the customs territory of Ukraine is the date of customs declaration for customs clearance. In case of export of goods the date of VAT liability is the date of execution of a customs declaration which testifies the fact of crossing the customs border of Ukraine and is prepared in accordance with requirements of the customs legislation. Tax deduction The amount of VAT liability of a registered VAT payer is offset by VAT paid by this taxpayer on purchases of goods and services (VAT input) to calculate the final VAT payable to (or refundable from) the budget. The input VAT amount in excess of the VAT liabilities may be used to offset VAT liabilities of subsequent tax periods or refunded in cash. In practice this process is quite complicated as it takes too long to obtain confirmation from STA for tax offsetting.
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According to TC the right to claim the tax amount as a VAT credit arises for the following transactions: •
purchasing or manufacturing goods (including their import into the customs territory of Ukraine) and services;
•
acquiring (building, construction, creation) of non-current assets, including their import into the customs territory of Ukraine;
•
receiving services provided by a non-resident on the customs territory of Ukraine and in case where place of provision of services is the customs territory of Ukraine;
•
bringing of non-current assets into the customs territory of Ukraine under contracts of operating or finance lease.
VAT payer‘s has the right to include the tax amounts in a tax credit on the earlier date of: the date of funds remittance from a VAT payer‘s bank account as a payment for goods/services; or the date of receiving goods/services confirmed by a tax invoice. If a person - an importer of goods, not registered as VAT payer, imports goods into the customs territory of Ukraine, such person shall pay tax at the time of customs clearance of goods without registering as taxpayer of this tax. In such case VAT credit does not arise. If the importer of goods is registered as VAT payer then tax paid will result in a VAT credit. For import of goods into the customs territory of Ukraine a taxpayer can recognize the VAT credit on the date of paying (accruing) a tax as a tax liability. The right to accrue VAT credit arises regardless of the commencement of the use of such goods/services for the taxable transactions within the scope of the taxpayer business activity during the reporting tax period; and whether the tax payer performed taxable transactions during the same reporting tax period.
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The tax amount paid (accrued) as a result of acquiring goods/services but not confirmed with tax documents; or documented incorrectly; or not confirmed by customs declarations (or other similar documents under TC requirements), is not treated as a tax credit. Tax invoices issued by VAT payer must be registered in the Unified Register of Tax Invoices if VAT amount in one tax invoice exceeds UAH 10,000. In case this rule is violated the buyer of goods/services is not permitted to claim VAT credit. If a taxpayer failed to include VAT in a tax credit based on a tax invoices received during the respective tax period, it shall retain the right to do so within 365 calendar days as of the date of the tax invoice issuance. Transactions that are not subject to taxation Transactions that are not subject to taxation include the following: •
issue and placement of securities;
•
property hand-over into custody (safekeeping), for lease other than financial lease;
•
property transferring as a pledge;
•
provision of services of cash collection, cash and payment services; raising, placement and payback of funds under loan, deposit and contribution, etc.
Tax-exempt transactions An extensive list of transactions are exempt from VAT, for example: •
supply of infant food products and baby goods according to the list, as approved by the Cabinet of Ministers of Ukraine;
•
provision of higher, secondary, vocational and pre-school education services at the educational institutions which hold licenses to provide these services, etc.
Other special rules There is a number of peculiarities of VAT base calculation in some cases, such as: using of goods/services in non-business activities, commissions sales, transfer of assets under finance lease, liquidation of assets, transactions with raw materials supplied by a customer, etc.
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Tax base is determined based on the actual costs of transactions but not lower than the regular price determined in accordance with TC when goods/services are delivered free of charge, under partial payment or under barter transactions; for payments in kind as a labor remuneration to taxpayer’s employees; when goods/ services are delivered within the limits of a taxpayer‘s balance for non-productive use; in cases when the supply of goods/services is provided to a person related to a supplier, a business entity not registered as a taxpayer or to individual; and in number of other cases. When the acquired and/or produced goods/services are only partially used in taxable transactions, tax amounts that a taxpayer has the right to claim as VAT credit include only the part of paid (accrued) tax that corresponds to the part of these goods/services used in taxable transactions. VAT Reporting According to TC, VAT reporting period is a calendar month and in some cases specified by TC - a calendar quarter. A tax return is submitted for the basic tax period within 20 calendar days from the last calendar day of the tax period. A VAT payer is obligated to pay the amount of tax liabilities specified on self-assessment basis in the tax return within 10 calendar days which follow the last day of the tax return to be submitted to STA. The form and procedure for completing a tax return is approved by Ministry of Finance of Ukraine. Starting from April 1, 2012 forms and procedures for completing tax returns were updated.
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St. Stephen’s Cathedral, Vienna
4.8.
Other significant taxes and duties
Excise tax Excise tax is payable on domestic sales and import of certain goods. Excisable goods include alcohol, tobacco, cars and motorcycles, petrol, fuel and diesel fuel. Excise duty rates are established in Euro or Ukrainian Hryvnia per unit or as a percentage of sales. Excise duty is deductible for CPT purposes. Tax for first registration of the vehicle Any legal entities and individual owners of vehicles registered in Ukraine are subject to this tax. The tax rates are established in Hryvnia and vary depending on the engine volume of the vehicle. Legal entities pay the tax on a quarterly basis for all vehicles registered by the legal entity as of January 1 of the current year. Environmental tax Any legal entities that discharge contaminants into air, water or disposes of waste are subject to tax for environmental pollution. The environmental tax rates depend on the type and toxicity of wastes. Land tax Any land owners or users are taxpayers of land tax. Land plots are divided by different categories and valuated accordingly by the state. The tax rates vary depending on this valuation and location of the land. The tax due is assessed once a year and paid by equal payments every month of the following year. Use of subsoil tax Use of subsoil tax is imposed on the companies working in mining of mineral resources in Ukraine, oil and gas in particular. The tax rate depends on the volume of production multiplied by the established coefficient. Use of subsoil tax rate for storage of extracted products is different. Use of subsoil tax is deductible for CIT purposes.
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Customs Duty Customs duty is due for import of goods and is payable during customs clearance procedures and is calculated on the basis of customs value of the imported goods, which includes the contractual value of the goods and all other actual expenses related to their importing. In Ukraine a customs duty rate is either fixed in Euro or is a percentage of the imported goods price as defined by the Customs Codifier of Goods by goods description. There are three types of import customs duty rates: full, privileged and preferential depending on the treaties signed between Ukraine and the country of goods origin. Pension Fund Charges Pension Fund of Ukraine charges special fees on a number of business activities. The fee rates vary depending on the type of operation and defined as a percentage of a transaction value. For example: •
mobile communication services are 7.5% chargeable;
•
transfer value of the car is 3% chargeable;
•
purchase of real estate by individuals or legal entities is 1% chargeable; etc.
Other state taxes are payable by companies in Ukraine engaged in the specific industry or business activity.
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5 Taxation of non-residents in Ukraine In general, non-resident business entities in Ukraine are treated under the following legal regimes: •
national regime, which means that the scope of rights and obligations applied to any non-resident business entity is at least similar to that applied to any resident. National regime applies to all non-resident business operations related to their investments and export-import operations in Ukraine;
•
most-favorable regime means that this non-resident business entity has wider scope of rights, preferences, tax and duty benefits it can and will use. Mostfavorable regime is provided to foreign economic enterprises of countries, Ukraine has relevant treaties with;
•
special regime applies to special (free) economic zones with different specializations. Such zones can have different economic targets. Their main objective is competitive recovery of national production, increase of currency inflow from goods and services export operations and from foreign investments.
TC introduced status of permanent establishment (PE) for foreign business entity. By this innovation a representative office incorporated in Ukraine is considered non-resident. TC sets up the criteria to be met in order to receive permanent establishment status, e.g.: •
providing services for more than six months (except for recruiting services, services of preparatory or auxiliary nature);
•
having appropriate authority entitled formally by a parent company;
•
having permanent location in Ukraine;
•
having a legal status.
CIT of PE is accounted on the similar to resident’s basis. Non-repayable parent structure financing is seen as income and is also 21 % taxable (19% in 2013 and 16% from 2014 on), similar to any other income. However, the financial assistance of owners that is repaid within one year is not taxable. Unlike residents, PE is likely unable to record negative income (losses) in Ukraine. At least the TC wording gives reasons to draw such conclusion. As before, non-resident income (interests, dividends, royalty, and “other income” – by open TC list) can be exempt under different international treaties for avoiding double taxation. But there is an attempt of the lawmakers to clear the ambiguity by setting up a new concept of non-residence in TC: so called concept of beneficiary owner, which cannot be a Ukrainian entity in order to have tax exemption. Therefore, any official agent or intermediary company, or the like lose the ability to apply such tax benefits. In general, the rules for income accrual are similar for residents and non-residents.
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6
International treaties on avoidance of double taxation
Ukraine maintains double tax treaties with more than 65 countries of the world. Some of them were entered into under USSR governance and are still binding in Ukraine. Under these treaties the reduced rates apply to dividends, interests and royalties on the following conditions: •
non-resident is a beneficial owner of the Ukraine-sourced income;
•
tax residency is appropriately proved to the respective tax authority.
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7
Witholding tax
Domestic withholding tax rate on dividends, interests and royalties for both nonresident individuals and companies is generally 15%. The list of withholding tax rates according to the double taxation treaties in effect are given in the chart below. Country
Effective from
Dividends, (%)
Interest, (%)
Royalties, (%)
Algeria
July 2004
5/15*
10
10
Armenia
Nov. 1996
5/15
10
0
Austria
May 1999
5/10
2/5
5
Azerbaijan
July 2000
10
10
10
Belarus
Jan. 1995
15
10
15
Belgium
Feb. 1999
5/15
2/10
0/10
Brazil
Apr. 2006
10/15
15
15
Bulgaria
Oct. 1997
5/15
10
10
Canada
Aug. 1996
5/15
10
10
China
Oct. 1996
5/10
10
10
Croatia
June 1999
5/10
10
10
Cyprus
Aug. 1983
0
0
0
Czech Republic
Apr. 1999
5/15
5
10
Denmark
Aug. 1996
5/15
0/10
0/10
Egypt
Feb. 2002
12
12
12
Estonia
Dec. 1996
5/15
10
10
Finland
Feb. 1998
5/15
5/10
5/10
France
Nov. 1999
5/15
2/10
5/10
Georgia
Apr.1999
5/10
10
10
Germany
Oct. 1996
5/10
2/5
0/5
Greece
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Country
Effective from
Dividends, (%)
Interest, (%)
Royalties, (%)
Hungary Iceland
Nov.2008
5/15
10
10
India
Oct. 2001
10/15
10
10
Indonesia
Nov. 1998
10/15
10
10
Iran
July 2001
10
10
10
Israel
Apr.2006
5/10/15
5/10
10
Italy
Feb.2003
5/15
10
7
Japan
Nov.1086
15
10
0/10
Jordan
Nov.2008
10/15
10
10
Kazakhstan
Apr.1997
5/15
10
10
Korea
March 2002
5/15
5
5
Kuwait
Feb.204
5
0
10
Kyrgyzstan
May 1999
5/15
10
10
Latvia
Nov. 1996
5/15
10
10
Lebanon
Sept.2003
5/15
10
10
Libya
Jan.2010
5/15
10
10
Lithuania
Dec.1997
5/15
10
10
Macedonia
Nov.1998
5/15
10
10
Malaysia
July 1988
15
15
10/15
Moldova
May 1996
5/15
10
10
Mongolia
March 2003
10
10
10
Morocco
March 2009
10
10
10
Netherlands
Nov.1996
0/5/15
2/10
0/10
Norway
Sept.1996
5/15
10
5/10
Pakistan
Sept. 2011
10/15
10
10
Poland
March 1994
5/15
10
10
Portugal
March 2002
10/15
10
10
Romania
Nov.1997
10/15
10
10/15
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Country Russia
Effective from
Dividends, (%)
Interest, (%)
Royalties, (%)
Aug.1999
5/15
10
10
Nov. 2001
5/10
10
10
Singapore
March 2010
5/15
10
7.5
Slovakia
Nov. 1996
10
10
10
Slovenia
March 2007
5/15
5
5/10
South Africa
Dec. 2004
5/15
10
10
Spain
Aug.1986
15
0
0/5
Sweden
June 1996
0/5/10
0/10
0/10
Switzerland
Feb.2002
5/15
0/10
0/10
Syria
May 2004
10
10
15
Tajikistan
June 2003
10
10
10
Thailand
Nov.2004
10/15
10/15
15
Turkey
Apr. 1998
10/15
10
10
Turkmenistan
Oct. 1999
10
10
10
United Arab Emirates
March 2004
5/15
3
0/10
United Kingdom
Aug. 1993
5/10
0
0
USA
June 2000
5/15
0
10
Uzbekistan
July 1995
10
10
10
Vietnam
Nov.1996
10
10
10
Serbia and Montenegro
*Slashed numbers refer to different ownership thresholds detailed in the treaties
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8
Regulation on transfer pricing
Transfer pricing mostly relates to pricing of goods and services between related parties, mostly intra-group transactions. The question of transfer pricing raises particular interest when it comes to cross border transaction considering the variations in income tax rates between countries and effect of avoidance of double taxation treaties where applicable. For many years companies operating in Ukraine had little or close to none experience with the transfer pricing provisions. Even though there was a hint of transfer pricing rules in the treaties on avoidance of double taxation between Ukraine and applicable countries, not much attention was dedicated by authorities to the matter. As a result, the freedom of no-transfer pricing regulations was enjoyed by many. The tax authorities have tried challenging low income/cost transactions on the grounds of lack of commercial substance, rather than established legislation base. TC presumes every transaction to be at arm’s length unless proved otherwise. The burden of proof still lies with the tax authorities, which has not changed since the previous law was in effect. However, the approach to determining the arm’s length price has been changed significantly. Commencing January 1, 2013a new section of TC comes into effect and lists 5 criteria which need to be applied when establishing the arm’s length price: •
comparable uncontrolled price;
•
resale price;
•
cost plus, profit;
•
split income;
•
net income.
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Palais de la Bourse, Bordeaux The arm’s length principle applies to: •
exchange of goods with no monetary consideration (barter);
•
transactions with related parties;
•
transactions with a non-taxpayer under general rules of TC (including non-residents
•
or taxpayers that are subject to a special tax regime or reduced tax rate);
•
other transactions specified by Ukrainian tax law.
The arm’s length principle is used to determine transaction value for both CIT and VAT purposes. TC requires only official sources of information to be used while establishing the arm’s length price; however it does not prescribe such sources leaving the decision up to the taxpayer. It is important to note that the leeway of 20% from the arm’s length price applies to the transaction price for both CIT and VAT. That is if the price of a transaction deviates from the arm’s length price by 20% no tax reassessment is allowed. The arm’s length price for the imported goods cannot be less that the customs value established on import. If a non-resident company decides to sell at a significant discount to a Ukrainian importer, the local importer would be liable to pay import duties and VAT on the imported goods based on the customs value rather than the contract price of the imported goods. Such treatment cuts short flexibility of promotional discounts and price reductions, and raises prices of imported goods for the end consumer in general.
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9
Administration of taxes
Tax return preparation and filing Tax returns are self-prepared by the taxpayers for the reporting period and are filed with the appropriate STA office of the taxpayer registration within the terms established by the TC and disregarding the scope of business activity during the reporting period. TC defines the form of the Tax return and the deadline for its filing. Tax return form shall contain all necessary information required and conform to the standards and content of the related taxes and fees. Deadlines to file tax returns for basic reporting (tax) periods are the following: •
for a calendar month - within 20 calendar days following the last calendar day of the reporting (tax) month;
•
for a calendar quarter or calendar half a year - within 40 calendar days following the last calendar day of the reporting (tax) quarter (half a year);
•
for a calendar year - within 60 calendar days following the last calendar day of the reporting (tax) year;
•
for a calendar year for personal income tax - May 1 of the year following the reporting year;
•
for a calendar year for personal income tax of entrepreneurs - within 40 calendar days following the last calendar day of the reporting (tax) year.
Tax returns of business entities are filed in electronic form, while individual taxpayers can choose from the following options, unless otherwise provided by the TC: in person by a taxpayer or by an authorized person; by registered mail; by e-mail in case of registration of electronic signatures of a taxpayer in accordance with the law.
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Settlements with budget Tax liability and/or penalties are self-assessed by a taxpayer and self-stated in a tax return or in an adjusted calculation, which are filed with the controlling authority within terms established by the TC. This amount of the liability and/or penalty is considered as reconciled. The responsibility to pay its tax liability, specified in the filed tax return, rests with the taxpayer within 10 calendar days following the last day of the relevant deadline for tax return filing. Late filings or underestimated tax liabilities result in severe penalties. Tax Audits The state tax authorities are entitled to conduct desk, documentary (scheduled or unscheduled, on-site or off-site) and the actual audits. Desk audits are conducted at the state tax authority on the basis of data specified in the tax return (calculations) of the taxpayer. Documentary audits can be scheduled and unscheduled. A documentary audit is carried out on the basis of tax return (calculations), financial, statistical and other reports, tax and accounting registers, and on the basis of other tax documents and tax information in possession of the STA, including the results of other taxpayers’ audits. The decision to perform a documentary audit is made by the head of the state tax authority. Frequency of the scheduled audit depends on the risk of a taxpayer business, defined as high, medium and small. Small risk businesses are generally audited every three years, medium risk businesses - every two years, high risk businesses – once a year. The audit of large entities shall not exceed 30 working days while for small businesses it lasts 10 working days, for other taxpayers it is 20 business days.
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By the decision of the head of a state tax authority the tax audit can be extended for less than 15 working days for large taxpayers; for less than5 working days for small businesses and for other taxpayers –for less than 10 working days. The results of tax audits (except for desk audits) are presented to the taxpayer in the form of a protocol or a certificate to be signed by officials of the state tax authority and taxpayers or their legal representatives (if any). In case of disagreement with the audit conclusions the taxpayer shall sign the audit protocol with the own comments that are filed with the signed copy of the Protocol or separately. Disagreements can be appealed by the taxpayer administratively or in the court. Appeals In case of disagreement appeals are filed by the taxpayer or his legal representatives together with the audit conclusions and the respective protocol within five working days since its receipt. The appeals are considered by the state tax authority within five working days following the day of their filing and the taxpayer is sent a response. The taxpayer (the Agent and / or representative) is entitled to participate in the procedure of appeal consideration. If the appeal is rejected or the taxpayer disagrees with the decision made at a lower tax authority level it is possible to appeal to a higher level tax authority. Appeals are responded within 20 working days since its filing by registered mail. Decision of the STA is definite and not subject to further administrative appeal, but may be appealed in court. During the period of administrative or court appeal the payment of tax liability, as well as any penalties are suspended until the court decision comes into effect. Interest and penalties are due only upon the taxpayer’s failure in the case. Late payments of tax due are penalized by 10% of underpaid tax for up to 30 day delay and by 20% for more than 30 day past-due payments.
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Tax debts and pledges In order to ensure that a taxpayer will settle its tax liabilities, the property of the taxpayer in debt is pledged in the amount of the respective tax debt. The right to execute tax pledge applies to any property in possession of the taxpayer (or funds available) in the following terms: •
for self-assessed tax liability – on the day that follows the tax liability due date;
•
for tax liability as determined by the supervisory body –on the date of arising of the respective tax debt.
The taxpayer can continue to use its property only upon the respective tax office permission. In some cases the taxpayer’s property can be arrested. Should the taxpayer be in need of the property disposal in order to recover its debt, it would have to ask for the tax authority permission to do so. In 60 days following taxpayer’s notification by the tax authority the pledged property (funds on bank accounts) may be seized.
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10 Audit and Accounting Accounting regulations and standards According to the Law on Accounting and Financial Reporting set forth in 2000, accounting is mandatory for all enterprises, including foreign business entities’ representative offices. Financial, tax, statistical and other reporting in money equivalent are based on bookkeeping records. Business entities which are permitted to use simplified income and cost accounting maintain their bookkeeping records and submit their financial statements to executive authorities or other users in a manner stipulated by law concerning simplified accounting and reporting issues. The organizing of accounting is in the competence of the entity owner(s) or other authorized body (chief executive officer, director) according to the law and statutory documents. Entities keep their bookkeeping records in Ukrainian Hryvnia. Accounting and financial reporting of an entity in Ukraine is regulated by the Ministry of Finance of Ukraine by approving national accounting regulations (standards) (hereinafter – NAS) and by other regulatory and legal acts concerning accounting and financial reporting. Accounting and financial reporting in banks is regulated by the NBU according to the Ukrainian law and International Standards of Financial Reporting. Responsibility for organizing of accounting and for recording of all business transactions in source documents, retaining of all processed documents, ledgers and statements within established terms but not less than for three years, rests with owner(s) or official who manages the company. There is a separate procedure established for accounting of financial and business activity of investor related to provision of goods (services) stipulated by agreement on output distribution.
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For bookkeeping purposes a business entity selects its organizational form from the following options: •
appointment of an accountant or creating an accounting department headed by a chief accountant;
•
outsourcing accounting services of an accountant – private entrepreneur or an audit firm on contractual basis;
•
keeping accounting by the owner or an entity executive capacity. This form of bookkeeping organization is not permitted for business entities that disclose their financial statements or for state institutions.
Reporting requirements Business entities are obliged to prepare financial statements based on the bookkeeping data. Financial statements of an entity (except for budget institutions, foreign business entities’ representative offices and small businesses recognized as such according to the law) comprise of the balance sheet, income statement, cash flow statement, statement of changes in equity and notes to financial statements. The reporting period for business entities’ financial statements is a year. Interim financial statements are prepared quarterly on cumulative basis from the beginning of a year and comprise of balance sheet and income statement. The balance sheet is prepared as of the closure of business at a quarter (year) end. The first reporting period for newly established business entity may be less than 12 months, but not more than 15 months. Public stock companies, enterprises – bond issuers, banks, trust companies, currency and stock exchanges, investment funds, investment companies, credit unions, nongovernment pension funds, insurance companies and other financial institutions are required to disclose their annual individual and consolidated financial statements by publishing them in the periodical press or by distributing in the form of separate printing editions. Enterprises are obliged to submit their quarterly and annual financial statements to their governing bodies, to their employees on request and to owners according to statute and the law.
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Adoption of IFRS in Ukraine According to the amendments made by the Cabinet of Ministers of Ukraine in December 2011 into the Regulation on Procedure of Financial Statements Preparation, International Standards of Financial Statements are applied in Ukraine starting from 2012 as follows: •
mandatory - by public stock companies, banks, insurance companies;
•
voluntary – by other entities (business entities except for budget institutions) where the expedience of IFRS implementing was recognized.
Legal entities which provide financial services, except for insurance and pension funds and non-government pension funds must apply IFRS starting from January 1, 2013, auxiliary to financial and insurance services – starting from January 1, 2014. It is worth admitting that historically, from beginning of their implementation, NAS were based on International Accounting Standards but due to lack of timely changes, absence of explanatory and application guidance there are significant issues to analyze and rely upon professional judgment to reconcile two sets of financial reporting in every separate case to ensure reporting under IFRS. Due to lack of proper qualified accountants, high quality training opportunities, and interpretive guidance made by authorized bodies available in Ukrainian language, the proficient audit and accountancy community realize the complexity of transition to IFRS and claim the Ministry of Finance and National Bank of Ukraine for strong support of that process. Audit obligations Auditing in Ukraine is regulated by the Law on Auditing (1993), which establishes rules for audit firms and auditors in individual practice, sets out the legal framework of Ukrainian Chamber of Auditors activity and regulates other issues. According to this law: •
audit in Ukraine must be conducted by independent audit firms and auditors;
•
audit can be voluntary, conducted by entities’ initiative, and mandatory (conducted in cases provisioned by law);
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Auditors and audit firms can provide other audit services, related to their professional activity (for instance, conducting and restoration of accounting, consultations on accounting and financial reporting, business assessment and due diligence and so on). By the law of Ukraine: •
Only those audit firms included into the Register of Audit Firms and Auditors are entitled to conduct audit activity;
•
Overall participation of founders – non-auditors in the equity capital cannot exceed 30%;
•
Only an auditor can be the chief executive of an audit firm.
•
Mandatory audit is required in the following cases:
•
confirmation of fairness and completeness of annual financial statements and consolidated financial statements of public joint-stock companies, entities – securities issuers, professional stock market agents, financial institutions and business entities, whose financial reporting, according to the law of Ukraine, is subject to public disclosure (except for institutions and organizations, fully maintained by the state funds);
•
examination of financial position of bank’s founders, foreign investments entities, public joint-stock companies, insurance and holding companies, joint investment institutions, trust companies and other financial intermediaries;
•
licensing security issuers for conduction of professional stock market activity.
Other cases of mandatory audit requirements are stipulated by the Law on Economic entities, the Law on Insurance, the Cabinet of Ministers Decree on Trust companies, the Law on Credit Unions, the Law on Securities and Stock Market, the Law on Output Distribution Agreements, the Law on Agricultural Cooperation, the Law on Foreign Investment Regime and the Law on Non-government Pension Funds and others. Voluntary audit is usually related to the owner’s or director’s willingness to examine the fairness and completeness of financial statements, the effectiveness of accounting systems, design of economic operations and other matters.
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Requirements to auditor of banks and financial institutions In accordance with the established procedures (2011) the audit of bank’s individual and consolidated financial statements and other information related to bank’s financial and business activity shall be performed by audit firms registered with the NBU Register of audit companies with permit to audit banks. Register contains list of auditors certified to conduct audit of banks. Audit of financial statements of financial institutions is permitted for auditors that are registered with a corresponding National Commission on Financial Services Register. Relevant laws and NBU resolutions According to the Law on Banking with amendments made in 2011, banks in Ukraine are required to prepare financial statements according to the NBU rules based on IFRS. It is worth noting that NBU rules are not exactly the same as IFRS due to objective reasons – scope limitation, in some cases –untimely changes and ambiguous interpretation, lack of explanatory information and absence of information about newly adopted standards. Apart from this, NBU rules normally support its function as a regulatory body. Historically, Ukrainian banks prepared two sets of financial statements: one was according to NAS and NBU rules and was submitted to the NBU, National Securities and Stock Market Commission, Guarantee Fund, Statistics and Tax authorities. Another set of financial statements was prepared according to IFRS under bank’s decision and submitted to the NBU. With enacting of the Resolution of NBU on Procedures of preparation and disclosure of financial statements by Ukrainian banks, since January 1, 2012 all Ukrainian banks are required to prepare annual individual/consolidated and interim financial statements under IFRS.
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According to this resolution the bank’s annual financial statements comprise of statement of financial position, statement of comprehensive income, statement of changes in equity, cash flow statement and notes. Interim financial statements of banks to be submitted to the NBU in electronic format consist of statement of financial position, statement of comprehensive income, and notes (dividends, contingent liabilities and separate performance indicators). Banks may prepare and submit to the NBU hard copy of full set of interim financial statements (similar to annual financial statements). Banks are obliged to submit an independent auditor’s report on their individual and consolidated financial statements to the NBU within 10 calendar days term upon their approval by General Shareholders Meeting, but not later than April 14 and April 24 of a year following the reporting year respectively. According to this resolution banks are required to make publicly available the interim financial statements no later than one month following the reporting period. Annual individual and consolidated financial statements together with auditor’s report as well as information on their significant shareholders is published in periodic press and/or distributed in the form of separate printing editions or via internet by April 30 of the year following the reporting year.
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About RSM APiK
The Audit firm RSM APiK was created in July 1993 as the firm APiK (Audit Services and Consulting). Since the beginning of its operation the firm’s specialists have provided audit services to more than 500 companies and 80 banks. It is one of the leading audit companies on the Ukrainian audit and consulting services market. Since September 2007 our organization has become a member of RSM International and was renamed as RSM APiK. One of the main priorities of the Audit firm RSM APiK areas of activity is the provision of various types of audit and related services to commercial banks. Since its establishment, the firm has developed cooperative relationships with over 80 Ukrainian and foreign banks. High professionalism of the firm’s employees and our contribution in the development of bank audit methodology has gained recognition in business circles, state institutions, and in the professional auditors’ community in Ukraine. In addition, AF RSM APiK has lengthy work experience with large joint-stock companies and state enterprises specializing in the most important industry sectors (fuel and energy complex, technical connection and telecommunication, manufacturing, insurance, agriculture, construction, not-for-profit organizations and funds, leasing and factoring companies, credit unions and others). Our services Audit Firm RSM APiK offers a wide range of high level audit and consulting services which are based on a thoroughly developed problem-solving technology and aimed at clients’ business development, quality improvement and enhancement of efficiency of business as a whole.
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Audit We offer the following high standard audit and assurance services to our clients: •
Audit of annual financial statements prepared under the National Accounting Provisions (Standards) (NAP(S));
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Audit of financial statements prepared under International Financial Reporting Standards (IFRS, GAAP);
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Audit of tax reporting (tax compliance);
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Expert analysis of accounts and their compliance with the law in effect (compliance audit).
Audit conducted by the firm’s professionals includes not only audit of financial transactions, but also profound analysis of the entity operation to get a clear view of specific areas of client’s business, internal control and inherited risks. We work independently but in close cooperation with our clients. Audit and assurance services are driven by the common RSM audit methodology, adopted by all RSM member firms to help the clients align with increasing requirement for information transparency and improve their control and management systems; and make reasonable well-balanced decisions. Management Consulting RSM APiK offers to solve any problems your business may face. We can provide accurate diagnostic strategy along with tailored recommendations; can assist in their full implementation and your staff training; and ensure continuous increase of your business efficiency. •
Analysis and diagnostic of management systems;
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Development of business-models on the basis of best business practices;
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Development of company-balanced operating ratios system with consideration of risks;
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Development and filing of business management system and corporate governance system under International and local standards;
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Audit of systems and business processes.
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Financial Consulting We can offer you the range of financial consulting services. The activities we perform are aimed at preparing for international investment ranking and for promotion of investment. They include: •
Assessment of business investment attraction;
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Investment planning (design of investment budgets);
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Optimization of sources and forms of raising funds;
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Financial management analysis and optimization, design of financial models.
Due diligence The main objective of Due diligence is to get a comprehensive understanding of actual financial position of company, including all risks that impact or could have an adverse impact on its operation. RSM APiK is a professional provider of financial Due Diligence. We have extensive expertise in performing analysis of the company’s financial operation and results engaging professional resources of our auditors and lawyers and involving international experience of experts from RSM network. IT Consulting With the purpose to achieve the best strategic business value from IT investments we offer the following IT Consulting services to our clients: •
Tendering support for IT-solutions and other capital investments;
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Expert examination on compliance of client’s accounting software product with the law in effect in terms of reporting (tax and accounting);
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Consulting support of IT-solutions efficiency with consideration of the client’s specific business;
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Our engagements help IT managers improve performance, manage risk, reduce costs, and exert more effective and efficient control over the IT organization;
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Consulting support of IT-solutions efficiency with consideration of the client’s specific business.
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Project Support Our firm offers the following services to involve our professionals into successful and effective project execution: •
Acting as independent directors within supervisory authority bodies;
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Working of consulting team within supervisory authority bodies for the period of project implementation;
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Consulting and couching for the period of project implementation;
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Organizing and outsourcing control of client’s project office.
Internal Audit The objective of the Internal Audit is to add value and improve an organization’s operations. It helps an organization accomplish its objectives by bringing a systematic, disciplined approach to evaluate and improve the effectiveness of risk management, control, and governance processes. Internal auditing is a catalyst for improving an organization’s effectiveness and efficiency by providing insight and recommendations based on analyses and assessments of data and business processes. We can offer the following Internal Audit services to our clients: •
Introduction of internal audit system (or the part of it), which meets international standards and law of Ukraine requirements;
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Consulting on internal audit system implementation and on related problem issues, either existing or anticipated;
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Outsourcing of internal audit for banks and enterprises.
Internal Audit Services are driven by a comprehensive, proven methodology executed by experienced professionals. Our Internal Audit Methodology is risk-based and can be readily tailored to an organization’s specific requirements and support both an outsourced and a co-sourced service model.
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Accounting Accompanying Services RSM APiK can offer a wide range of high-level accounting and reporting services to its clients, in compliance with both, Ukrainian GAAP and International standards, including: Accounting Accompanying Services: •
Adaptation of accounts to international reporting standards (IFRS, GAAP);
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Outsource accounting for the client (NAP(S), IFRS, GAAP) by acting as an accountant;
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Preparation of accounting policy (NAP(S), IFRS),set of accounts, filing system;
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Expert examination of documents and providing analytical certificates and reports on the accounting issues;
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Technical and legal support of accounts-related decisions;
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Design of balance sheet consolidation methods and other forms of internal reporting for entities with a number of ring-fence affiliates or subsidiaries;
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Tax returns for foreign representative offices, expats and local individuals and legal entities;
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Payroll accounting.
Accounting and Tax Consulting: •
Consulting on regulations and practice of Tax Code of Ukraine;
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Tax planning and tax optimization for entities;
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Tax returns preparation and assistance.
Our professionals are experienced in servicing private and state companies, including foreign- invested companies, and are capable to address the specific needs of the most demanding client. Enjoy doing your business with RSM APiK!
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About RSM International
RSM International is a worldwide network of independent accounting and consulting firms. RSM International and its member firms are separate and independent legal entities. RSM International does not itself provide accounting or consultancy services. All such services are provided by affiliate members practicing on their own account. RSM is represented by affiliate independent members in over 85 countries and brings together the talents of over 32,500 individuals in over 698 offices worldwide. The network’s total fee income of USD 3.9 billion places it amongst the top six international accounting organizations worldwide. Affiliate member firms are driven by a common vision of providing high quality professional services, both in their domestic markets and in serving the international professional service needs of their client base. RSM International is a member of the Forum of Firms. The objective of the Forum of Firms is to promote consistent and high quality standards of financial and auditing practices worldwide.
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13 Contact
Audit Firm RSM APiK LLC Audit | Tax | Consulting 37/19 Donetska Str., Kyiv, 03151, Ukraine T +38 (044) 244-76-62 | 501-59-34 F +38 (044) 501-59-34 E office@apik.com.ua W www.rsmapik.com.ua
Managing Partner Tatyana Bernatovych E tatyana.bernatovych@rsmapik.com.ua International Contact Partner Olga Panchenko E olga.panchenko@rsmapik.com.ua Audit & Tax Partner Olga Poldyaeva E olga.poldyaeva@rsmapik.com.ua International Project Manager Maryna Dubinina E maryna.dubinina@rsmapik.com.ua International Contact Olena Starush E olena.starush@rsmapik.com.ua
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Orthodox church, Kiev
RSM International Executive Office 11 Old Jewry London EC2R 8DU United Kingdom T: +44 (0)20 7601 1080 F: +44 (0)20 7601 1090 E: rsmcommunications@rsmi.com www.rsmi.com RSM is the brand used by a network of independent accounting and advisory firms each of which practices in its own right. The network is not itself a separate legal entity of any description in any jurisdiction. The network is administered by RSM International Limited, a company registered in England and Wales (company number 4040598) whose registered office is at 11 Old Jewry, London EC2R 8DU. The brand and trademark RSM and other intellectual property rights used by members of the network are owned by RSM International Association, an association governed by article 60 et seq of the Civil Code of Switzerland whose seat is in Zug. Š RSM International Association, 2012 80 | DOING BUSINESS IN UKRAINE