Property of a foreign investor or commercial organization. The face of a foreign investor in Russian real estate is changing

Over the past few years, Western investment funds have been leaving the Russian real estate market - against the backdrop of a recession in the economy and sanctions, the risks are increasing, follows from the JLL report. As an example, she cites the Finnish Sponda, which back in 2013 announced its intention to sell Russian projects. This year, the situation reached its peak: the Austrian Immofinanz closed a deal to sell five Moscow shopping centers with an area of ​​over 500,000 sq. m. m. The American fund Heitman is curtailing its activities in Russia: it is completing the sale of the only asset here - the office tower of the Metropolis complex near the station. metro station "Voikovskaya" in Moscow. Atrium European Real Estate, whose papers are traded on the stock exchanges of Vienna and Amsterdam, put up for sale the entire Russian portfolio of seven Park House shopping malls in Moscow and the regions. Who comes instead?

In 2017 alone, investors from Asia spent over $20 billion buying real estate in Europe and the US, according to JLL. They did not bypass Russia either. The Chinese Fosun Group, together with the Russian Avica Management Company, bought the famous Voentorg on Vozdvizhenka, and the Arab Mubadala Development, together with Russian fund direct investment - 84,000 sq. m of warehouses in "PNK Park - Bekasovo" in the Moscow region "PNK Tolmachevo" in Novosibirsk. The Chinese Vanke Group continues negotiations on the purchase of up to 51% in one of the largest owners of Moscow offices - O1 Properties.

Asian and Middle Eastern funds, unlike European ones, have so far been less represented on the Russian real estate market, and their interest has been limited to one-time acquisitions, notes Olesya Dzyuba, head of the JLL department. The situation was aggravated by the crisis of 2014, when the real estate market stopped, adds Svetlana Kara, managing partner of Capital Global Partners: investors were interested in a yield of 30% more than the market could offer.

Now their interest is so great that for the last two years, JLL has held every second meeting with companies from Asia and the Middle East, Dzyuba notes. If in 2015 Western capital accounted for over 95% of $540 million of foreign investments, then almost 30% of the $700 million invested was Asian and Middle Eastern money, calculated Irina Ushakova from CBRE. Funds from Asia and the Middle East began to look closely at Russian assets as many years ago, Kara recalls, but transactions did not happen en masse due to long approvals. For them Russian market unconventional - it took time to study and search for objects, the partner confirms Colliers International Stanislav Bibik.

Now you can buy high-quality or even trophy assets at a very attractive price, and their capitalization will definitely grow in the medium term, Kara says. The value of Russian assets is low, Dzyuba confirms. In addition, according to her, Chinese investors are trying to diversify their investments against the backdrop of a slowdown in China's economy and a weakening yuan. In addition, against the backdrop of sanctions, Russia itself is actively cooperating with the countries of Asia and the Middle East in many areas, she concludes. Therefore, for example, Fosun is not limited to the real estate market: now the company's priorities are projects in the field of infrastructure, logistics, healthcare, Agriculture, food production, etc., lists the executive director of Fosun Russia, Tanya Ann Ternavskaya. These investments will definitely be more significant, she notes.

Traditionally, to attract foreign investment and improve the investment climate, the provision of guarantees and benefits to investors is used.

The Federal Law "On foreign investment in Russian Federation» No. 160-FZ of July 9, 1999 benefits for foreign investors are otherwise referred to as exemptions of a stimulating nature (clause 2, article 4). It also provides that benefits for foreign investors can be established in the interests of the socio-economic development of the Russian Federation.

Under the provision of benefits, in this case, it is advisable to understand the more favorable conditions (regime) established by the authorities of the Russian Federation for the implementation of any action (or type of activity) for the subject (category of subjects) against the usual conditions for the implementation of actions for other similar subjects. The proclamation of guarantees must be a form of acceptance by the state, through the appropriate authorities, of obligations to the subject (in our case, the subject of investment activity).

The meaning of the adoption of the Law "On Foreign Investments" is to determine the basic guarantees of the rights of foreign investors to investments, incomes and profits received from them, as well as to determine the conditions entrepreneurial activity foreign investors in the territory of the Russian Federation.

For foreign investors in Russia, the Law "On Foreign Investments" No. 160-FZ establishes the following basic guarantees:

1. Guarantees of legal protection of foreign investors on the territory of the Russian Federation. (Art. 5);

2. Guarantees for the use by a foreign investor of various forms of investment in the territory of the Russian Federation (Article 6);

3. Guarantees for the transfer of rights and obligations of a foreign investor to another person (Article 7);

4. Guarantees of compensation in case of nationalization and requisition of property of a foreign investor or commercial organization with foreign investments (Article 8);

5. Guarantees against unfavorable changes for a foreign investor and a commercial organization with foreign investments in the legislation of the Russian Federation (Article 9);

6. Guarantees to ensure the proper resolution of a dispute that arose in connection with the implementation of investments and entrepreneurial activities in the territory of the Russian Federation by a foreign investor (Article 10);

7. Guarantees for the use in the territory of the Russian Federation and the transfer outside the Russian Federation of income, profits and other legally received amounts of money (Article 11);

8. Guarantees of the right of a foreign investor to unhindered export of property and information outside the Russian Federation in documentary form or in the form of an entry on electronic media, which were originally imported into the territory of the Russian Federation as a foreign investment (Article 12);

9. Guarantees of the right of a foreign investor to purchase valuable papers(Art. 13);

10. Guarantees for the participation of a foreign investor in privatization (Article 14);

11. Guarantees for granting a foreign investor the right to land, other Natural resources, buildings, structures and other immovable property (Article 15).

This list is not exhaustive. According to Art. 17 of the Law "On Foreign Investments", subjects of the Russian Federation and bodies local government within their competence, they can provide benefits and guarantees to a foreign investor, provide financing and provide other forms of support for an investment project carried out by a foreign investor at the expense of the budgets of the constituent entities of the Russian Federation and local budgets as well as extrabudgetary funds.

Article 6 of the Law "On Foreign Investments" proclaims that a foreign investor on the territory of the Russian Federation has the right to make investments in any form not prohibited by the legislation of the Russian Federation. Such a ban may be nationwide, i.e. for residents and non-residents, or a ban in the form of a restrictive exemption for foreign investors established by federal law of the Russian Federation. The described guarantee was proclaimed in Russia for the first time, and it can be called a novelty, however, the proclamation of another would be contrary to the principles laid down in the Constitution of the Russian Federation (Article 30) and the Civil Code of the Russian Federation (Article 2).

Thus, any investment by a foreign investor in the activities of commercial organizations on the territory of the Russian Federation is unconditionally lawful, unless it is covered by a special restrictive exemption provided for by federal law for such a foreign investor, or such an investment is not subject to a nationwide ban under the legislation of the Russian Federation. Resistance or refusal state registration or prior authorization such investments by state bodies, local self-government bodies are appealed in the prescribed manner.

Currently present current law"On Foreign Investments" a guarantee of ensuring proper consideration of a dispute that arose in connection with the implementation of investments and entrepreneurial activities in the territory of the Russian Federation by a foreign investor existed earlier, being formulated as the possibility of applying to Russian courts And arbitration courts(Article 9 of the Law on Foreign Investments in the RSFSR).

Judicial protection is characterized by the fact that the dispute of a foreign investor arising in connection with the implementation of investments and entrepreneurial activities in the territory of the Russian Federation is resolved in accordance with international treaties of the Russian Federation and federal laws in court.

Paragraph 2 of Art. 5 of the Law "On Foreign Investments" establishes: a foreign investor has the right to compensation for losses caused to him as a result of illegal activities(inaction) of state bodies, local self-government bodies or officials of these bodies, in accordance with the civil legislation of the Russian Federation. Officials traditionally subjected to administrative or, in extreme cases, criminal liability.

Article 13 of the Law "On Foreign Investments" proclaims a guarantee of the right of a foreign investor to purchase shares and other securities of Russian commercial organizations and government securities. This guarantee is a logical continuation of a more general guarantee that a foreign investor will use various forms of investment in Russia (Article 6 of the Law "On Foreign Investments"). The acquisition of Russian securities by foreign investors is carried out in accordance with the legislation of the Russian Federation "on the securities market".

In the Law on Foreign Investments, the guarantee of the participation of a foreign investor in privatization is formulated very vaguely. This norm can be called completely referential, although it is unlikely that a guarantee can consist only of references. For example, it is indicated that a foreign investor "may participate in the privatization of objects of state and municipal property." It is “may”, not “right”. That is, no clarity - may participate, or may not participate. Further, a reference is made to the legislation of the Russian Federation on privatization. Thus, it is impossible to state with a sufficient degree of certainty that foreign investors in the Russian Federation are guaranteed the right to participate in privatization.

As soon as the conditions and procedure for the participation of a foreign investor in the privatization of objects of state and municipal property are established Russian legislation on privatization, it can be assumed that the regime for foreign investors to carry out “privatization activities” is largely different from the regime for the normal business activities of a foreign investor in Russia.

It is known that states primarily protect the rights of their citizens, so it is logical to proclaim the same guarantees for foreign investors as for domestic investors. However, if a guarantee is proclaimed for a foreign investor that domestic investors do not have, then such a guarantee should be considered as a benefit.

So to the benefits, in our opinion, as mentioned earlier, can be attributed, provided for in Art. 9 of the Law "On Foreign Investments", a guarantee against adverse changes for a foreign investor and a commercial organization with foreign investments of the legislation of the Russian Federation. More simply, it is referred to in the literature as a “stabilization” or “grandfather” clause and provides for a non-increase for the subject of the amount of tax and other similar deductions for certain period after the start of the implementation of the investment project, even if, according to the law, these deductions increase. The period of stability of the amount of deductions is equal in the Russian Federation to the payback period of an investment project, but is limited to seven years. Thus, the investor knows that even if tomorrow, after the start of investments in the Russian economy, the state introduces “predatory” taxes, he will at least be able to return his own.

Russian investors can count on such a guarantee only in the case of investment activities in the Russian Federation, carried out in the form capital investments(Clause 2, Article 15 of the Law "On investments in the form of capital investments").

The stabilization clause in the Russian Federation applies to:

Import customs duties (with the exception of customs duties caused by the application of measures to protect the economic interests of the Russian Federation in the course of foreign trade in goods);

Federal taxes (excluding excises, value added tax on goods produced in Russia);

Contributions to government off-budget funds(excluding contributions to Pension Fund RF);

You can use the stabilization clause:

Foreign investors implementing a priority investment project (subject to intended use goods imported into the territory of the Russian Federation for the implementation of a priority investment project);

Commercial organizations with foreign investments implementing a priority investment project;

Commercial organizations with foreign investments, where the share of a foreign investor in the authorized (share) capital exceeds 25%.

In addition, as noted above, the stabilization clause is valid for investors (including Russian ones) implementing priority investment projects related to investment activity in the form of capital investments.

Another guarantee that makes the regime of foreign investment more favorable is the guarantee of the right of a foreign investor to unimpeded export of previously imported property and information outside Russia (Article 12 of the Law "On Foreign Investments"). It provides for the non-application of quotas, licensing and other measures of non-tariff regulation of foreign trade activities when a foreign investor exports from Russia property and information in documentary form or in the form of a record on electronic media that were originally imported into Russia as a foreign investment. At the same time, non-application of tariff regulation measures in this situation is not guaranteed.

The foreign investor will have to pay the export customs tariff (customs duty).

In addition to the right to export their property and information, a foreign investor is guaranteed the unimpeded transfer of money abroad (Article 11 of the Law "On Foreign Investments"). The terms of such a transfer consist in the obligatory preliminary payment of all taxes and fees provided for by the legislation of the Russian Federation on income and profit from investments. In this field, a foreign investor either freely uses funds on the territory of the Russian Federation, including for reinvestment, or transfers them abroad. The same article of the Law states that the transfer must be made in foreign currency.

Finally, the Law "On Foreign Investments" provides that privileges for the payment of customs duties are provided to foreign investors and commercial organizations with foreign investments in the implementation of a priority investment project by them in accordance with the legislation of the Russian Federation and the legislation of the Russian Federation on taxes and fees (Article 16 of the Law "On foreign investment).

The law introduces the concept of "priority investment project". This is an investment project in which the total volume of foreign investment is at least 1 billion rubles, or an investment project in which the minimum share (contribution) of foreign investors in the authorized (share) capital of a commercial organization with foreign investments is at least 100 million rubles, included in the list approved by the Government of the Russian Federation. During the implementation of such a project, until it pays off, no changes in the legislation of the Russian Federation that worsen the tax and customs regime of the enterprise's activities will be in effect. It has been established that the activities of foreign investors and their use of the profits received from investments can be limited in comparison with Russian entrepreneurs only by federal laws to the extent necessary to protect the foundations of the constitutional order, morality, health, rights and legitimate interests other persons, ensuring the defense of the country and the security of the state. A branch of a foreign legal entity established in the territory of the Russian Federation performs part of the functions or all functions, including the functions of a representative office, on behalf of the foreign legal entity that created it, provided that the goals of creation and the activities of the parent organization are of a commercial nature and the parent organization bears direct property liability for accepted by it in connection with the conduct of the said activities on the territory of the Russian Federation. Subsidiaries and dependent companies of a commercial organization with foreign investments do not enjoy legal protection, guarantees and benefits established by this Federal Law when they carry out entrepreneurial activities in the territory of the Russian Federation. It is also established that if a foreign state or a state body authorized by it makes a payment in favor of a foreign investor under a guarantee (insurance contract) provided to a foreign investor in respect of investments made by him in the territory of the Russian Federation, and to this foreign state or authorized by him government agency the rights (claims are assigned) of a foreign investor to the said investments are transferred, then in the Russian Federation such a transfer of rights (assignment of a claim) is recognized as lawful. It is established that a foreign investor, after paying Russian taxes and dues shall have the right to free use of income and profits in the territory of the Russian Federation for reinvestment or for other legal purposes and to the unhindered transfer outside the Russian Federation of income, profits and other legally received monetary amounts in foreign currency in connection with previous investments made by him. The creation and liquidation of a commercial organization with foreign investment is carried out on the terms and in the manner prescribed by Civil Code RF. Legal entities, which are commercial organizations with foreign investments, are subject to state registration with the justice authorities. The law comes into force on the day of its official publication.

One of options sale of residential buildings (apartments) is the conclusion of contracts equity participation in construction (investment) between the developer and the investor company, which subsequently assigns its rights under the contract individuals. However, with such a model for the sale of real estate, the investor company is faced with the need to pay VAT on its profits, i.e. the difference between the price of the assignment of the right of claim to an individual, and the amount paid under the investment agreement (clause 2, article 155 of the Tax Code of the Russian Federation).

Consider tax implications situations where such an Investor is foreign company, acquiring the rights of claim at an early stage of construction at a price close to the cost price.

A foreign company enters into a construction investment agreement with a Russian developer and transfers funds to him. The investment funds transferred to the developer essentially cover only its construction costs and include a very small remuneration for the developer, however, they help to continue construction and start “selling” other apartments at a higher price. The business purpose of cooperation is obvious.

In practice, such a foreign investor also assigns its rights under the contract to individuals through Russian agents or a real estate agency closer to the end of construction. The difference between the amount of the initial investment and the price of the concession is the profit of the foreign investor.

The peculiarity is that such a foreign investor does not have an obligation to pay VAT and income tax in the Russian Federation. Let's figure it out in order.

Implementation foreign organization property rights, including residential buildings, are subject to VAT in Russia in two cases:

  • The activity of a foreign company leads to the formation of a permanent establishment in the Russian Federation;
  • Although a foreign company does not have a permanent representative office in Russia, the place of realization of property rights is the Russian Federation.

However, the activities of a foreign investor to receive income from the assignment of rights of claim under investment (share participation) agreements will not lead to the formation of a permanent establishment in the Russian Federation, if he does not conclude such transactions through any (branch) in Russia, or a resident agent RF, acting on behalf of and in the interests of a foreign investor (clauses 2, 9, article 306 of the Tax Code of the Russian Federation), except in cases of realizing property rights through a special agent whose main activity is real estate transactions.

Thus, a foreign investor must conclude all transactions through a real estate agency.

A useful tool for financing the Group of Companies can be not only a loan that is used everywhere, but also a factoring agreement. For more information about financing a business with the participation of a foreign company, see this link in our tax book

Second important aspect connected with the determination of the place of realization of rights under the investment agreement for the purpose of calculating VAT.

Note that in tax code The Russian Federation contains only rules for determining the place of sale of works and services (Article 148 of the Tax Code of the Russian Federation), but there are no provisions explaining how to determine the place of sale of property rights when the seller is a foreign company.

According to the Ministry of Finance of the Russian Federation, the assignment of claims for the purposes of VAT taxation should be considered a service, which means that the rules enshrined in Art. 148 of the Tax Code of the Russian Federation (1). It is difficult to agree with this point of view, since the transfer of property rights is an independent object of VAT on a par with the sale of goods, works, services in accordance with paragraphs. 1 p. 1 art. 146 of the Tax Code of the Russian Federation.

(1) letter of the Ministry of Finance of the Russian Federation dated June 18, 2012 No. 03-07-08/154

But even if the assignment of the right of claim by a foreign organization to a Russian company is recognized as a service, following the explanations of the Ministry of Finance, the place of sale of such a service is not the territory of the Russian Federation and, therefore, it is not subject to VAT based on following provisions:

  • assignment of the right to claim services (works) directly listed in Art. 148 of the Tax Code of the Russian Federation, does not apply;
  • place of sale not specified in Art. 148 of the Tax Code of the Russian Federation, services are determined by the place of activity of the organization providing such services;
  • The territory of the Russian Federation is not recognized as the place of the organization's activities if it is not registered in Russia (Clause 2, Article 148 of the Tax Code of the Russian Federation).

This position is confirmed by the letters of the Ministry of Finance of October 17, 2013 No. 03-07-15 / 43359, of June 18, 2012 No. 03-07-08 / 154, of May 19, 2010 No. 03-07-08 / 152 and of June 26 .08 No. 03-07-08/154. Moreover, in the letter of the Ministry of Finance of the Russian Federation dated 10/17/2013, among other operations for the transfer of property rights, the transfer of rights to shared construction objects is directly mentioned, carried out by a foreign organization that is not registered with the tax authorities and does not have a permanent representative office in Russia.

In other words, the Ministry of Finance of Russia does not classify the assignment of property rights under investment agreements (equity participation in construction) to services directly related to real estate and specified in paragraphs. 1 p. 1 art. 148 of the Tax Code of the Russian Federation, the place of sale of which for the purpose of calculating VAT is the Russian Federation. As a result, the risk that tax authorities consider such a concession a service directly related to real estate in Russia, and charge additional VAT, which is very insignificant.

With regard to income tax, income from agreements for the assignment of rights of claim under an investment agreement by a foreign investor to the final buyer is not subject to income tax in the Russian Federation on the basis of paragraph 2 of Art. 309 of the Tax Code of the Russian Federation, provided that the activity of a foreign investor does not form a permanent establishment in the Russian Federation.

An important point in relation to income tax is that a foreign investor, under an assignment agreement, transfers to buyers precisely the property rights to future real estate objects. Such an operation should be distinguished from the sale of goods located in Russia. real estate, which in turn is subject to income tax in the Russian Federation on the basis of paragraph 6 of Art. 309 of the Tax Code of the Russian Federation and Art. 6 international agreements for the avoidance of double taxation. Until the construction of real estate objects is completed and the developer receives permission to put the objects into operation, the objects under construction cannot be called real estate in accordance with Urban Planning Code RF and paragraph 2 of Art. 2 of the Federal Law "On participation in shared construction". Therefore, the rules providing for the taxation of income from the sale of real estate in the Russian Federation are not applicable to this situation.

The Russian real estate agency, in turn, receives remuneration for its services in finding buyers, which is subject to taxation in the Russian Federation.

Thus, cooperation with a foreign investor at the initial stages of construction allows the developer to get the necessary impetus for construction, and for a foreign investor - in a fairly understandable way to invest and receive income with their taxation only in their country of residence.

  • 1. The property of a foreign investor or a commercial organization with foreign investments is not subject to compulsory seizure, including nationalization, requisition, except in cases and on the grounds established by federal law or an international treaty of the Russian Federation.
  • 2. In case of requisition, a foreign investor or a commercial organization with foreign investments shall be paid the cost of the requisitioned property. Upon termination of the circumstances in connection with which the requisition was made, a foreign investor or a commercial organization with foreign investments has the right to demand in judicial order the return of the preserved property, but at the same time they are obliged to return the amount of compensation received by them, taking into account losses from the decrease in the value of the property.

In the event of nationalization, a foreign investor or a commercial organization with foreign investments shall be compensated for the value of the nationalized property and other losses. Disputes on compensation for losses shall be resolved in the manner provided for in Article 10 of this Federal Law.

A guarantee against adverse changes for a foreign investor and a commercial organization with foreign investments in the legislation of the Russian Federation

1. In the event that new federal laws and other regulatory legal acts of the Russian Federation, changing the amount of import customs duties (with the exception of customs duties caused by the application of measures to protect the economic interests of the Russian Federation in the implementation of foreign trade in goods in accordance with the legislation of the Russian Federation), federal taxes(with the exception of excises, value added tax on goods produced in the territory of the Russian Federation) and contributions to state non-budgetary funds (with the exception of contributions to the Pension Fund of the Russian Federation), or amendments are made to the current federal laws and other regulatory legal acts of the Russian Federation and additions that lead to an increase in the total tax burden on the activities of a foreign investor and a commercial organization with foreign investment in the implementation of priority investment projects or establish a regime of prohibitions and restrictions on foreign investment in the Russian Federation in comparison with the total tax burden and the regime that were in force in accordance with federal laws and other regulatory legal acts of the Russian Federation on the day the financing of the priority investment project began at the expense of foreign investment, then such new federal laws and other regulatory legal acts of the Russian Federation, as well as amendments and additions made to the existing federal laws and other regulatory legal acts of the Russian Federation shall not apply within the time periods specified in paragraph 2 of this article in relation to a foreign investor and a commercial organization with foreign investments implementing priority investment projects at the expense of foreign investments, provided that the goods imported to the customs territory of the Russian Federation by a foreign investor and a commercial organization with foreign investments are used designated purpose for the implementation of priority investment projects.

The provisions of the first paragraph of this paragraph shall apply to a commercial organization with foreign investments, if the share, shares (contribution) of foreign investors in the authorized (share) capital of such an organization is more than 25 percent, as well as to a commercial organization with foreign investments implementing a priority investment project, regardless from the share, shares (contribution) of foreign investors in the authorized (share) capital of such an organization.

  • 2. The stability for a foreign investor implementing an investment project of the conditions and regime specified in paragraph 1 of this article is guaranteed during the payback period of the investment project, but not more than seven years from the date of the start of financing of the said project at the expense of foreign investments. Differentiation of the payback periods of investment projects, depending on their types, is determined in the manner established by the Government of the Russian Federation.
  • 3. In exceptional cases, when a foreign investor and a commercial organization with foreign investment implements priority investment projects in the field of production or the creation of transport or other infrastructure with a total volume of foreign investment of at least 1 billion rubles (at least the equivalent amount in foreign currency at the exchange rate Central Bank of the Russian Federation on the date of entry into force of this Federal Law), the payback period of which exceeds seven years, the Government of the Russian Federation shall take a decision to extend the validity of the conditions and regime specified in paragraph 1 of this article for the said foreign investor and commercial organization with foreign investments.
  • 4. The provisions of paragraph 1 of this article do not apply to changes and additions that are made to the legislative acts of the Russian Federation, or new federal laws and other regulatory legal acts of the Russian Federation adopted in order to protect the foundations of the constitutional order, morality, health, rights and legitimate interests of others. persons, ensuring the defense of the country and the security of the state.
  • 5. Government of the Russian Federation:

establishes criteria for assessing changes in the conditions for the collection of import customs duties, federal taxes and contributions to state non-budgetary funds, the regime of prohibitions and restrictions on foreign investment in the territory of the Russian Federation, which are unfavorable for a foreign investor and a commercial organization with foreign investments;

approves the procedure for registration of priority investment projects by the federal executive body specified in Article 24 of this Federal Law;

exercises control over the fulfillment by a foreign investor and a commercial organization with foreign investments of their obligations to implement priority investment projects within the time limits specified in paragraphs 2 and 3 of this article.

In the event that a foreign investor and a commercial organization with foreign investments fail to fulfill the obligations specified in part one of this paragraph, they are deprived of the benefits granted to them in accordance with this article. Sum Money, not paid as a result of the provision of these benefits, is subject to return in the manner prescribed by the legislation of the Russian Federation.