In October 2023, the Russian Ministry of Finance published two updates at once on the conditions for obtaining permissions from the Government Commission for Control of Foreign Investments in the Russian Federation (hereinafter referred to as the “Government Commission”) to carry out transactions with shares of LLCs with the participation of persons from unfriendly countries included in the list, approved by the Order of the Government of the Russian Federation dated 05.03.2022 No. 430-р.

It concerns, first of all, the Extract from the minutes of the meeting of the sub-commission of the Government Commission dated 26.09.2023 No. 193/4, which states that now one of the conditions for obtaining permissions from the Government Commission to carry out such transactions is:

• the presence of an obligation to make a voluntary contribution to the federal budget in the amount of at least 15% of the market value of the relevant assets, indicated in a report on independent assessment of the market value of the assets.

Let us remind you that previously this condition sounded as follows[1]:

• the presence of an obligation to make a voluntary contribution to the federal budget within three months from the date of the transaction in the amount of:
• at least 10% of half of the market value of the relevant assets – if the assets are sold at a discount of less than 90% of the market value of the relevant assets, or
• at least 10% of the market value of the relevant assets – if the assets are sold at a discount of more than 90% of the market value of the relevant assets.

In addition, on 16.10.2023, the Application Form for granting permission to carry out (execute) a transaction (operation) or a group of transactions (operations) was updated. The application must now disclose the beneficial owners of all parties to the transaction, not just the applicant’s party.

The remaining conditions for obtaining permissions from the Government Commission to carry out transactions with shares of LLCs with the participation of persons from unfriendly countries can be found here.

We will be happy to answer your questions!

[1] Subclause 4 of clause 1 of the Extract from the resolution of the sub-commission of the Government Commission dated 07.07.2023 No. 171/5 is declared invalid.

Many companies, while in the process of restructuring, experience a phase of reduced activity – this phase is often called “hibernation mode”. Often the “hibernation” phase precedes the liquidation phase.

In this review, we have collected answers to the most frequently asked questions about “hibernation” mode.

What is a company’s “hibernation” mode?

“Hibernation” mode is not an official legal term and represents the transfer of a company into an inactive state (suspension of business activities) while maintaining the existence of a legal entity.

What is important to consider when putting the company into “hibernation” mode?

• the company is still required to submit tax returns (including zero reporting) and pay taxes;
• the company must still have a CEO;
• the company must still have a legal address;
• for a company in “hibernation” mode, in any case, it will be necessary to plan liquidity to pay current (minimum) payments, which means the company will in any case have a (minimum) turnover on the account: expenses for maintaining accounting and tax records, software, wages, rent.

Is documentation required for “hibernation” mode?

Documentation for “hibernation” mode is not required. However, in some cases, in order to approve the procedure, the participants may prepare a resolution to suspend the company’s activities. Such a resolution can be submitted to government bodies if requested, a local act (order) can be issued on its basis, etc.

Is it necessary to notify government authorities about the “hibernation” mode?

As a general rule, it is not necessary to send a notification to put a company into the “hibernation” mode.

However, when planning activities, it is important to take into account that the company must notify government authorities of other specified circumstances (if any).

So, for example, in the event of a reduction in staff when the company is put into the “hibernation” mode, the employment service must be notified 2 months in advance.

Is it necessary to notify counterparties about the “hibernation” mode?

As a general rule, it is not necessary to send any special notifications to counterparties.

However, if the company has existing open obligations, then it will be necessary to notify counterparties of the planned suspension or reduction in business activity. Please also note that the “hibernation” mode does not relieve the company from its obligations under agreements with counterparties and does not exclude the company’s liability for violation of such obligations.

And what to do with the personnel?

It must be remembered that the “hibernation” mode is not a reason for non-payment of wages or dismissal of employees.

In this regard, it will be necessary to resolve personnel issues with the employee.

For a limited period of time, under certain circumstances, the company may impose a formal business interruption, reduce staff, or otherwise terminate employment contracts. However, in any case, it will be necessary to plan this process carefully to avoid the risks of violating labor laws.

Earlier, we provided you with an overview of the current situation with the liquidation of LLCs in Russia.

In addition to the previous review, we would like to further draw your attention to this year’s innovation: a simplified liquidation procedure.

A simplified liquidation procedure is available for SMEs (for the latest information on the status of SMEs, see here and here) and allows you to reduce the time and cost of the liquidation procedure, as well as reduce possible risks of improper liquidation (for example, restrictions on participation and management in new companies within three years).

However, not all SMEs are eligible for simplified liquidation by default. To do this, the company must comply with a list of certain additional criteria.

What conditions must be met to be eligible for simplified liquidation?

1. All founders (members) of the company made a resolution to terminate activities unanimously.
2. The company is included in the unified register of small and medium enterprises (SMEs).
3. The company is not a VAT payer (it is on a simplified tax system) or is exempt fr om VAT.
4. The company does not have debts to creditors, including debts to employees and the state budget.
5. There are no marks in the Unified State Register of Legal Entities about the inaccuracy of data and about the initiation of bankruptcy proceedings.
6. The company has no real estate and vehicles in the property.
7. The organization is not in the process of liquidation, reorganization or in the process of forced exclusion from the Unified State Register of Legal Entities by decision of the Federal Tax Service.

How to implement simplified liquidation?
To start a simplified liquidation, you must submit an application to the tax service on form P19001. At the moment, the paper and electronic formats of this form have not yet been approved, at the current stage, you can familiarize yourself with the draft form.

In the application, the founders (members) of the company confirm that:

• All financial obligations to counterparties have been fulfilled.
• All payments due to dismissed employees have been made.
• No later than one business day before exclusion from the Unified State Register of Legal Entities, all taxes have been paid and final tax reporting has been provided.

The application can be submitted electronically (using an enhanced qualified electronic signature of each participant), directly to the tax service on paper (notarization of signatures will be required) or through a notary public.

What is the time lim it for simplified liquidation?
The tax service will check the application and within 5 business days will make a decision on the upcoming exclusion of the company from the Unified State Register of Legal Entities or refusal.

In case of a positive decision by the tax service, information about the upcoming exclusion of the company from the register will be published in the Unified State Register of Legal Entities and in the State Registration Bulletin.

Within 3 months from the date of publication in the bulletin, the creditors of the company will be able to send their objections, if any.

If there are no objections from creditors within 3 months, the liquidated company will be excluded from the register.

It is important to know:
The initial conditions for simplified liquidation must be met at the time of exclusion. If during this period the company accumulates debts or assets, or fails to submit reports, simplified liquidation will not take place.

On 27.03.2023 an extract from the minutes of the meeting of the sub-commission of the Government Commission for Control of Foreign Investment in the Russian Federation No. 143/4 dated 02.03.2023 (hereinafter the “Extract from the minutes No. 143/4”) was published on the official website of the Russian Ministry of Finance.

The aforementioned extract supplements the conditions for issuance of permissions for transactions with LLC shares, which were previously stated in the extract from the minutes of the meeting of the sub-commission of the Government Commission for Control of Foreign Investment in the Russian Federation No. 118/1 of 22.12.2022 (hereinafter the “Extract from the minutes No. 118/1”), about which we have written earlier.

In particular, now when the sub-commission of the Government Commission for Control of Foreign Investment in the Russian Federation (hereinafter the “Sub-Commission”) examines the possibility of issuance of a permission for transactions with LLC shares, the special attention will be paid to the following conditions of performance of such transactions:

• the obligation of the purchaser to make a voluntary contribution to the federal budget in the amount of at least 10% of half of the market value of the relevant assets as indicated in the asset assessment report;
• the obligation to make a voluntary contribution to the federal budget in the amount of at least 10% of the market value of the relevant assets specified in the asset assessment report, if the assets are sold at a discount of more than 90% of the market value of the relevant assets specified in the asset assessment report.

It is interesting to note that previously, in the Extract from the minutes No. 118/1, one of the conditions was the availability of an instalment payment for 1-2 years and/or an obligation to make a voluntary contribution to the federal budget of at least 10% of the amount of the transaction.

Thus, there was an alternative. Now it seems that the possibility of choosing an instalment payment instead of the obligation to make a voluntary contribution to the federal budget has been eliminated. We will closely follow the Sub-Commission’s practice in this regard and will wait for the further clarifications.

In addition, in the Extract from the minutes No. 143/4 the applicants are recommended to submit the expert opinions prepared by an expert or by experts from an appraiser’s self-regulatory organization together with the report on the assessment of the market value of assets. The purpose of this is to exclude the possibility of the arbitrary assessment of the market value of assets by appraisers.

We would like to remind you that on 22.02.2023 the List of appraisers (appraisal companies) recommended to appraise the market value of assets was published on the official website of the Russian Ministry of Finance.

We advise you to take the above information into account when drafting agreements on the sale and purchase of LLC shares and we will be happy to answer your questions!

On 12.07.2023 an extract fr om the decision of the sub-commission of the Government Commission for Control of Foreign Investment in the Russian Federation dated 07.07.2023 No. 171/5 was published on the official website of the Russian Ministry of Finance which:

• has updated the conditions for authorizing transactions with company shares and dividend payments;
• has declared the minutes of the meetings of the sub-commission dated 22.12.2022 No. 118/1 and dated 02.03.2023 No. 143/4, which we informed you about earlier, as invalid.

To be more specific, now the conditions for granting permissions by the Government Commission for transactions with company shares are as follows:

• a report on independent assessment of the market value of the assets carried out by an appraiser that works in private practice and is listed among the appraisers (appraisal organizations) that are recommended by the sub-commission, or by an appraiser who has concluded the employment agreement with a legal entity that is included in this list.
• an expert opinion prepared by an expert or by experts from an appraiser’s self-regulatory organization listed among the appraiser’s self-regulatory organizations that have been recommended by the sub-commission to prepare an expert opinion;
• sale of assets at a discount of at least 50% of the market value of the relevant assets as indicated in the assets assessment report;
• the obligation to make a voluntary contribution to the federal budget within three months from the date of the transaction in the amount of:
• at least 10% of half of the market value of the relevant assets – if the assets are sold at a discount of less than 90% of the market value of the relevant assets, or
• at least 10% of the market value of the relevant assets – if the assets are sold at a discount of more than 90% of the market value of the relevant assets.
• establishment of key performance indicators for purchasers and (or) the OOO acquired by them, which should provide for:
• preservation of the technological potential and the main type of economic activity of such OOO;
• preservation of jobs;
• discharge of contract obligations under agreements with other legal entities.
• buyback transaction at the market value on the date of exercise of such option, economic benefit to the holder of the asset who is a Russian resident, and restriction of the period of validity of the permission (generally, no longer than two years from the date of the primary transaction) – for a transaction that provides for the buyback transaction;
• settlement of the transaction:
• either using a C-type account (more details here);
• or in rubles within the banking system of the Russian Federation without transfer of money out of the Russian Federation;
• or by transfer of money to the vendor’s account in a foreign bank, but in case of installment payment.
• the applicant has any other permissions required for the transaction under Russian law, details of which are provided by the applicant (g., the approval of the Federal Antimonopoly Service of Russia).

When decisions are made on granting permissions for dividend payments to foreign creditors, the followings shall be taken into account:

• the amount of dividends to be paid is no higher than 50% of the amount of net profit for the previous year;
• the results of retrospective analysis of dividend payments for previous periods shall be taken into account;
• readiness of participants (shareholders) who are foreign creditors to continue commercial activities in the territory of the Russian Federation;
• accounting of the positions of federal executive authorities on the assessment of the importance of the organization’s activities and the influence of the organization’s activities on the technological and industrial independence of the Russian Federation and the social and economic development of the Russian Federation (constituent entities of the Russian Federation);
• applicant’s performance of its obligations to meet the key performance indicators that has been confirmed by the federal executive authorities;
• the opportunity for dividends to be paid on a quarterly basis, if the established key performance indicators are met.

We would like to draw your attention to the fact that the abovementioned conditions for dividend payments have been mitigated according to the extract from the minutes of the sub-commission of the Government Commission for Control of Foreign Investment in the Russian Federation dated 09.08.2023 No. 182/5 which was published on the official website of the Ministry of Finance of Russia on 23.08.2023.

In particular, residents may now be authorized to pay dividends to foreign creditors without meeting these conditions, as a rule, in cases wh ere after 01.04.2023 foreign creditors make investments in the Russian economy, including the expansion of production in the Russian Federation, development of new technologies, and in the amount not exceeding the amount of such investments.

Certain provisions of taxation agreements with unfriendly countries were suspended by the Decree of the President of the Russian Federation No. 585 dated 08.08.2023.
The Decree lists 38 DTTs and names the clauses of the treaties that are subject to suspension.
The Decree entered into force from the moment of its publication, thus, from August 8, 2023, certain provisions of the articles on the avoidance of double taxation will not apply. 

Among the main consequences for foreign subsidiaries:

• royalties from the Russian Federation to these countries will be subject to taxation at a rate of 20% instead of the previously applied preferential zero rate,
• tax on dividends will be 15% instead of the previously used rate of 5%-10%.

Moreover, non-resident legal entities and individuals may expect for an increase in the amount of taxes on income in the Russian Federation (for example, interest on deposits, bond coupons).

What else may be affected by the adoption of the Decree:

• Taxes under agreements for the provision of international transportation services
• Taxes under forwarding agreements
• Taxation from the sale of property/shares in the Russian Federation, etc.
• Taxation of the transfer of expenses of the head office to a permanent establishment, etc.

The adoption of the decree entails less impact for individuals in terms of employment – the provisions for income from employment are suspended, but the possibility of offsetting tax on income from employment of residents of the Russian Federation against Russian personal income tax remains, since rates on income abroad are often higher than Russian ones. There will also be no impact on the taxes of remote employees, personal income tax rates for them having been set at 13–15%, regardless of resident status.

At the same time, some of the provisions of the current treaties remain in force – Elimination of double taxation (possibility of offsetting taxes), cross-country exchange of information, mutual agreement procedures.

As a legal basis for the suspension, the Government of the Russian Federation refers to Article 60 of the Vienna Convention on the Law of Treaties.

The full repercussions for business have yet to be assessed – the Decree provides instructions for the Government to submit a draft of the relevant Federal Law to the Duma. Also, of course, more detailed explanations will be provided by relevant departments.

On August 11, the Ministry of Finance published the first clarifications in connection with the adoption of the Decree: when paying income in the form of interest to export credit agencies and banks located in unfriendly countries, tax agents have the right to continue not to calculate and not to withhold income tax at the source (provided that such foreign organizations (agencies) have the actual right to the income received).

The relevant amendments to the Tax Code of the Russian Federation are expected to be adopted during the autumn session of the State Duma in 2023.

The reaction of countries with DTTs to the suspension

To date, most countries whose international treaties with the Russian Federation have been unilaterally suspended refrain from official actions and comments. However, the business community expects a response that is likely to involve mirror measures.

Earlier we wrote that Denmark initiated the suspension of the agreement on its part, subsequently the corresponding note dated June 19, 2023 No. 27/23 was received by the Government of the Russian Federation, thus the application of the Convention shall be suspended from January 1, 2024.

The government of Japan regrets Russia’s decision to suspend tax treaties with a number of countries and on 09.08.2023 sent a protest through diplomatic channels with the demand to cancel the developments.

We are following the situation.