Settlements for non-critical import goods (+ template agreement on assignment of the right to claim)

In order to ensure the reliability and stability of the functioning of the banking system during the period of martial law, the National Bank of Ukraine adopted a resolution "On the operation of the banking system during the period of martial law" dated February 24, 2022 No. 18. The adoption of this resolution had a significant impact on foreign economic settlements.

So, according to paragraph 2 of the said resolution, banks continue to work subject to the restrictions defined by this resolution. Banks are prohibited from carrying out transactions that violate the restrictions defined by this regulation, or facilitate or facilitate their avoidance.

According to paragraph 12 of the resolution "On the operation of the banking system during the introduction of martial law" dated February 24, 2022 No. 18, authorized institutions are prohibited from trading in foreign exchange values (including operations on behalf of clients), except for cases:

1) sales of foreign currency by clients in cash/non-cash form to banks, as well as in cash to non-banking financial institutions and the postal operator;

1-1) purchases of banking metals by clients with physical delivery in branches, branches of banks located in territories under the threat of occupation by the aggressor state / occupying state (if there are bank metals in the cash desk of the branch / branch of the bank). The decision to carry out such operations is made by the head of the bank and can be delegated to the head of the bank's branch / branch;

1-2) purchases by clients - individuals of foreign currency in cash. Authorized institutions carry out transactions for the sale of foreign currency to customers in cash within the amount of the excess of the total volume of purchases of foreign currency in cash over the volume of its sales in all foreign currencies, calculated starting from April 13, 2022 and during subsequent business / working days. The amount of the excess of the total volume of purchases of foreign currency in cash over the volume of its sales is calculated in dollar terms, which is calculated on the basis of the official hryvnia exchange rate against foreign currencies established by the National Bank of Ukraine as of the date of such calculation;

1-3) sales by individual clients to banks of banking metals with/without physical delivery;

2) trade in currency values carried out by banks with other banks on swap terms, foreign financial institutions, the National Bank of Ukraine, international financial organizations, of which Ukraine is a member, and international financial organizations, under agreements with which Ukraine has undertaken to ensure the legal regime provided other international financial organizations (hereinafter referred to as IFIs);

3) implementation of foreign exchange transactions for the exchange of foreign currency within Group 1 of the Classifier of Foreign Currencies and Banking Metals, approved by the Resolution of the Board of the National Bank of Ukraine dated February 4, 1998 No. 34 (as amended by the Resolution of the Board of the National Bank of Ukraine dated April 19, 2016 No. 269) with changes (hereinafter referred to as the Classifier), between banks (non-cash foreign currency), banks on behalf of clients (cash and non-cash foreign currency);

4) purchases of foreign currency for the purpose of carrying out foreign exchange transactions specified in paragraph 14 of this resolution (except for the cases specified in subparagraphs 2-3 and 9 of paragraph 14 of this resolution). Such cases of purchase of foreign currency are not subject to the requirements of clause 54 of section V of the Regulation on protection measures and determining the procedure for carrying out certain transactions in foreign currency, approved by the Resolution of the Board of the National Bank of Ukraine dated January 02, 2019 No. 5 (as amended) (hereinafter - Regulation No. 5) ;

5) purchases by the bank of foreign currency from another bank at the rate determined in accordance with the requirements of paragraph two/three of clause 12-1 of this resolution, solely for its further sale to the client for the purpose of carrying out foreign exchange transactions specified in clause 14 of this resolution;

6) implementation by the bank of transactions on the terms of "swap" with resident customers:

• for the purchase and sale of foreign currency, if the first part of the transaction provides for the purchase by the bank from the client of foreign currency;
• for the exchange of foreign currency within the 1st group of the Classifier;

6-1) carrying out by the bank of operations on a swap basis with a foreign depositary bank having a securities account with the National Bank of Ukraine for the purchase and sale of foreign currency, if the first part of the transaction provides for the sale of foreign currency by the bank to a foreign depositary bank, which has a securities account with the National Bank of Ukraine;

7) purchases by clients of foreign currency on a forward basis under forward contracts concluded before February 23, 2022 (inclusive). The purchased currency must be used subject to the requirements of paragraph 14 of this resolution and paragraph 44 of Section IV of Regulation No. 5;

8) purchases of foreign currency to ensure compensation payments during a long-term business trip and ensure the activities of employees of the offices of military attachés and offices of representatives of the Ministry of Defense of Ukraine at foreign diplomatic institutions of Ukraine;

9) purchases of foreign currency by the Financial Department of the General Staff of the Armed Forces of Ukraine to ensure the activities of the Armed Forces of Ukraine;

10) sale of commemorative and investment coins of Ukraine, souvenirs in branches, branches of banks, if there is a threat to the life and health of employees and customers;

11) purchases by the state aviation enterprise of foreign currency for the implementation of operating expenses for the provision, organization and performance of lettered aviation flights by aircraft;

12) the purchase of foreign currency by a resident to cover a letter of credit opened by the issuing bank in favor of a non-resident under the operation specified in subparagraph 2 of paragraph 14 of this resolution.

13) purchases of foreign currency by the Security Service of Ukraine, units of the Central Directorate and regional bodies of the Security Service of Ukraine to ensure counterintelligence, operational-search activities and covert investigative (detective) actions aimed at identifying and disclosing criminal offenses.

At the same time, in accordance with paragraph 14 of the Decree "On the operation of the banking system during the introduction of martial law" dated February 24, 2022 No. 18, authorized institutions are prohibited from carrying out cross-border transfer of currency values from Ukraine / transfer of funds to correspondent accounts of non-resident banks opened in resident banks, including transfers carried out on behalf of clients, except for cases when:

1) own operations of banks (including settlements with international payment systems), with the exception of transfers of funds for the purpose of providing loans to non-residents by banks (except for loans to foreign financial institutions). Settlements under documentary and standby letters of credit/guarantees/counter-guarantees opened (confirmed, provided) from February 24, 2022 are prohibited, except when such settlements are carried out for the purpose of conducting operations of bank customers specified in subparagraphs 2-6 of paragraph 1 , and / or in order to ensure the fulfillment of obligations under contracts for the export of goods. Borrowing banks transfer funds for their own operations to repay their loans, loans under agreements with non-residents, subject to the restrictions established in paragraph 19-2 of this resolution;

2) import transactions of residents for the purchase of critical import goods according to the list approved by the Cabinet of Ministers of Ukraine, provided that the delivery of goods for such transactions is / is carried out after February 23, 2021;

2-1) currency transactions of residents to fulfill obligations secured by a state guarantee;

2-2) transfer of funds in order to fulfill the obligations of a resident to a non-resident under a contract for the sale of goods concluded between them, provided that such a transfer is carried out at the expense of funds received under a loan (loan) from an MFI or under a sub-loan from the state, for the financing of which the state has attracted a loan (loan) from MFIs;

2-3) operations to return to a non-resident a prepayment (advance payment) received by a resident to his current account in a bank in Ukraine after February 23, 2022 under a contract for the sale of goods concluded with a non-resident, in connection with the non-fulfillment by the resident of obligations under this agreement;

3) foreign exchange operations of MFIs, including representative offices of MFIs, as well as foreign exchange operations of residents and non-residents for the transfer of funds in foreign / national currency for the purpose of settlements with the MFI or with its representative office;

4) currency transactions by residents and non-residents for mobilization and other activities (needs) determined by the laws of Ukraine governing relations in the field of ensuring national security and defense;

5) operations to pay the costs of treatment in medical institutions of a foreign state, pay the costs of transporting patients, pay the costs associated with the death of citizens abroad (transportation and burial costs), including operations to make insurance payments (insurance compensation) under contracts insurance of persons traveling abroad to the accounts of assisting non-resident companies;

5-1) transactions for the transfer of funds for education to the accounts of educational institutions of a foreign state;

5-2) transactions for the transfer of funds for the payment of alimony;

6) on the basis of separate permits (decisions) of the National Bank of Ukraine, adopted on the basis of applications from the Cabinet of Ministers of Ukraine, ministries, the National Security and Defense Council of Ukraine, the Security Service of Ukraine, signed by the head of a state body or a person acting as such, and which specifies:

• name of the legal entity;
• rationale, grounds for conducting each operation, taking into account the importance of its implementation by this legal entity during martial law;
• transaction amount;
• counterparty of the operation;
• the name of the bank through which such an operation will be carried out.

In order to consider the issue of issuing a separate permit (decision) to the National Bank of Ukraine by means of e-mail, the servicing bank of the legal entity specified in the application shall also submit a notification (letter) with information on the ultimate beneficial owners of such a legal entity, received by the servicing bank as a result of the implementation of proper verification of such a client in accordance with the requirements of the legislation of Ukraine;

7) transfers in favor of diplomatic missions, consular offices of Ukraine abroad for their maintenance and performance of representative functions, as well as transfers in favor of employees of the offices of military attachés and offices of representatives of the Ministry of Defense of Ukraine at foreign diplomatic institutions of Ukraine;

8) settlements (payment for the cost of goods, works and services) abroad using electronic means of payment (with the exception of settlements carried out using the merchant category code - 6211) or the use of electronic means of payment abroad to receive cash;

9) for an amount in the equivalent of up to UAH 100,000 inclusive for a calendar month from all accounts of an individual - a bank client opened in foreign currency, transfers to accounts of individuals using the details of electronic means of payment of the payer and recipient (p2p transfers) and settlements, with using electronic means of payment to pay for transactions with assets that are directly converted (exchanged) into cash and, in accordance with the rules and / or other internal documents of international payment systems, are referred to as quasi-cash transactions. Such operations, in particular, but not exclusively, include: the purchase of cryptocurrency, the replenishment of electronic wallets, the purchase of gift certificates, transfers in favor of betting companies, the payment of traveller's checks. Merchant category codes that may be used for such transactions are, in particular, but not exclusively, the following: 4829; 6012; 6050; 6051; 6534; 6539; 6540; 7800; 7801; 7802; 7995;

9-1) for an amount in the equivalent of up to UAH 100,000 inclusive for a calendar month from all accounts of an individual - a client of a bank opened in national currency, transfers to accounts of individuals using the details of electronic means of payment of the payer and recipient (p2p transfers), initiated through the bank's remote service system or the bank's payment application;

10) settlements of the national postal operator, non-banking financial institutions that are direct participants in international card payment systems, for obligations to these payment systems;

11) transfers in favor of representative offices and branches abroad of legal entities, in the authorized capital of which the state directly or indirectly owns a share of 100 percent, according to the cost estimate or work program and budget, subject to the restrictions established in paragraph 17 of this resolution;

12) transactions for the transfer of foreign currency, initiated in order to promote the improvement of the defense capability of Ukraine by an individual who is not a business entity, for goods contained in the List of Critical Import Goods, approved by Resolution of the Cabinet of Ministers of Ukraine dated February 24, 2022 No. 153 (as amended) , with the following codes according to UKTVED: 8507, 6211 43 90 00, 6506 10 80 00, 61-62, 6403-6405, 3926, 6217, 9005 10 00 00, 9005 80 00 00, 8802 20 00 00, 8802 30 00 00, 9404 30 00 00, 3926 90 92 90, 30, if the amount of such operation/operations for a calendar month in the equivalent is less than 400,000 hryvnias (at the official hryvnia exchange rate, the date of the operation);

13) transfer abroad of foreign currency for the payment of pensions in accordance with the legislation of Ukraine and international treaties of Ukraine, taking into account the restrictions established in paragraph 17 of this resolution;

14) settlements of significant operators of payment infrastructure services with non-residents to ensure the performance of functions in international card payment systems;

15) transfer by the Deposit Guarantee Fund of individuals of funds in order to ensure the performance of its functions defined by the legislation of Ukraine;

16) transactions for payment of insurance payments (insurance premiums, insurance premiums) or insurance payments (insurance indemnities) under reinsurance agreements to foreign nuclear pools (or authorized persons on behalf of such pools) carried out by an authorized insurer on behalf of members of the "Nuclear Insurance Pool" association;

17) transactions for payment by the Motor (transport) insurance bureau of Ukraine of insurance payments (insurance premiums, insurance premiums) under reinsurance agreements, operations for payment of insurance payments (insurance indemnities) or claims for compensation of such payments by the Motor (transport) insurance bureau of Ukraine under contracts of international "Green Card" insurance;

18) transactions for payment of insurance payments (insurance premiums, insurance premiums) or insurance payments (insurance indemnities) under reinsurance agreements concluded with non-resident reinsurers regarding the transfer of civil aviation risks in accordance with the Air Code of Ukraine, subject to confirmation from the State Aviation Service of Ukraine that the aircraft in question continue to operate in open air, have valid airworthiness certificates and a valid aircraft operator's certificate;

19) transactions for payment of insurance payments (insurance premiums, insurance premiums) under reinsurance agreements concluded with non-resident reinsurers, which provide for compensation for damage associated with the operation, restoration, damage, destruction and / or loss of property of telecommunications networks and telecommunications infrastructure in the territory Ukraine, including those caused as a result of the war;

20) transfers by non-resident individuals of foreign currency purchased with funds received in the event of the death of a serviceman, in accordance with the Resolution of the Cabinet of Ministers of Ukraine dated February 28, 2022 No. period of martial law" (with amendments);

21) transfer to a foreign investor/non-resident of funds received in connection with the payment of redemption/payment of income on bonds of the internal state loan of Ukraine carried out after April 01, 2023 in accordance with the terms of their placement (issue).

22) transfer by the Central Securities Depository of funds to its account opened with a foreign depository bank in order to pay for the services of this foreign depository bank.

Consequently, until the end of martial law, enterprises do not have the opportunity to pay for import operations of non-critical imports. In fact, the debts of Ukrainian enterprises for the import of non-critical imports are accumulating. An alternative to the classical settlement can be the enrollment of counter homogeneous claims, the assignment of the right to claim (replacement of the party to the obligation) or the forgiveness of the debt.

Offset of counter homogeneous claims.

According to Art. 601 of the Civil Code of Ukraine, the obligation is terminated by crediting of counter homogeneous claims, the deadline for which has come, as well as claims, the deadline for which has not been established or is determined by the moment the claim is presented.

In this case, the importer, as well as the Ukrainian enterprise, have receivables and payables to each other.

Regarding the claims that may be subject to enrollment, the Supreme Court has repeatedly emphasized. Thus, in a number of court decisions, the courts adhere to a consistent position on the conditions that must be met by claims that may be subject to enrollment, in particular, they must: 1) be counter (the creditor under one obligation is a debtor under another, and the debtor under the first obligation is creditor on the second); 2) be homogeneous (claims to transfer things of the same kind can be credited, and therefore crediting as a method of termination is usually applied to obligations to transfer generic things, including money). The rule on homogeneity of claims extends to the legal nature, but does not concern the grounds for the emergence of such a claim. Therefore, it is allowed to enroll homogeneous claims arising from different grounds (different contracts, etc.); 3) the deadline for fulfilling such requirements has come, is not established or is determined by the moment of filing the claim (decree of 12/29/2021 in case No. 826/17678/15; decision of 01/31/2020 in case No. . in case No. 911/483/18; decision dated November 21, 2018 in case No. 755/9929/15-c).

Compensation of homogeneous counterclaims may also take place after the replacement of the party to the obligation. For example, in case of assignment of the right of claim. In this case, the importer relinquishes the right of claim to another non-resident who has receivables to the Ukrainian enterprise and who, in turn, becomes a creditor under a foreign economic contract, under which it was not possible to make a settlement.

You can conveniently and quickly draw up an agreement on the assignment of the right to claim in our document constructor on the InstaDoc website.

Forgiveness of debt.

The obligation is terminated as a result of the release (forgiveness of the debt) by the creditor of the debtor from his obligations, if this does not violate the rights of third parties with respect to the property of the creditor (Article 605 of the Civil Code of the Ukraine).

At the same time, it should be noted that such accounts payable may be unpaid and not be considered uncollectible (be past due) for another three years, since according to:

- Clause 5 of the Law of Ukraine "On amendments to certain legislative acts of Ukraine aimed at providing additional social and economic guarantees in connection with the spread of coronavirus disease (COVID-19)", during the quarantine period established by the Cabinet of Ministers of Ukraine in order to prevent the spread of coronavirus diseases (COVID-19), the periods specified in Articles 257, 258, 362, 559, 681, 728, 786, 1293 of this Code continue for the duration of such quarantine.

- Clause 19 of the Law of Ukraine "On Amendments to the Tax Code of Ukraine and other legislative acts of Ukraine regarding the operation of norms for the period of martial law", during the period of martial law, state of emergency in Ukraine, the periods specified in Articles 257-259, 362, 559, 681 , 728, 786, 1293 of this Code are extended for the period of its validity.

It should be noted that by order of the Ministry of Finance of Ukraine "On the approval of generalizing tax consultations on certain issues of taxation with corporate income tax, personal income tax" No. 400, a number of generalizing tax consultations were approved. In particular, the Generalized Tax Advice on the need to apply to the court to recognize the debt as uncollectible in accordance with subparagraph "a" of subparagraph 14.1.11 of paragraph 14.1 of Article 14 of the Tax Code of Ukraine, in accordance with which, subparagraph 14.1.11 of paragraph 14. of the Code) is determined, that a bad debt is a debt that corresponds to one of the signs listed in subparagraph. In particular, according to subparagraph "a" of subparagraph 14.1.11 of paragraph 14.1 of Article 14 of the Code, bad debts are understood to be debts on obligations for which the limitation period has expired. Subparagraph "a" of subparagraph 14.1.11 of paragraph 14.1 of Article 14 of the Code does not establish any additional conditions for recognizing debt on obligations for which the limitation period has expired as uncollectible. This provision of the Code does not provide for the need for the taxpayer-creditor to take any measures to collect debts, in particular through a court proceeding, declaring the debtor bankrupt, etc. So, the exceptional and sufficient criterion for recognizing the debt as uncollectible in accordance with subparagraph "a" of subparagraph 14.1.11 of paragraph 14.1 of Article 14 of the Code is the limitation period for obligations on such debt has expired, regardless of whether the creditor applied to the court to collect it. Thus, if the debt corresponds to the characteristic specified in subparagraph "a" of subparagraph 14.1.11 of paragraph 14.1 of Article 14 of the Code, taxpayers should not check the compliance of such debt with other signs provided for in subparagraph 14.1.11 of paragraph 14.1.

As is known, the Resolution of the Cabinet of Ministers of Ukraine "On Amendments to Certain Acts of the Cabinet of Ministers of Ukraine on prevention of the spread in Ukraine of acute respiratory disease COVID-19 caused by SARS-CoV-2 coronavirus", quarantine was extended until 31.08.2022, and in accordance with the Decree of the President of Ukraine "On the extension of martial law in Ukraine" dated 2022 No. 341/2022, martial law, valid until 08/23/2022.