Azerbaijan’s Central Bank approves new rules on transfer of currency

One of the most important pieces of regulation that Azerbaijan’s Central Bank approves is the currency rules (the “Rules”) which define the procedure for, among other things, transferring of foreign currency outside Azerbaijan.

Among the new elements is the requirement that legal persons transfer foreign currency only through their bank accounts. Only physical persons may transfer foreign currency without opening of a bank account. The Rules set the maximum limit for such personal transfers, which must not exceed USD 1000 (or its equivalent in other currency) within any day, and USD 10,000 within a calendar year.

The Rules allow the transfer of a foreign currency outside Azerbaijan as follows:

(i) as payment for imported goods or services. The payer must provide a bank with certain documents, such as a contract and, in case of sale of goods, customs declaration evidencing import of the products. In case of advance payments, the payer must submit to a bank the relevant documents within 270 days from the date of the payment;

(ii) payments in connection with re-export;

(iii) transferring back advance payments for obligations under import agreements, which have not been performed;

(iv) transfer by local legal persons of funds to their representative, branch offices or subsidiaries or affiliate companies. In case of such transfers, the transferor (i.e., the legal person making the transfer) must disclose the purpose of the transfer;

(v) payment of interests, principal and other obligations under loans or similar instruments issued by foreign institutions;

(vi) payment of court, notarial and arbitration expenses, state duties, pensions, allowances etc;

(vii) payment of conference fees and fees for subscribing to publications, tuition fees and medical expenses,

(viii) payment of royalties, including franchise fees;

(ix) distribution of dividends;

(x) repatriation of foreign investment and transfer of revenues from foreign investments. In case of repatriation, a transferor must provide the transferring bank with evidence of foreign investment in Azerbaijan. In case of transfer revenues from foreign investment, the transferor must provide evidence that it has complied with its tax obligations, and if it benefits from any tax exemptions, the document evidencing such exemptions.

(xi) transfers in connection with (a) contribution of capital to a share of foreign entity, (b) purchase of securities and (c) investment in real estate outside Azerbaijan.

The Rules also allow for certain other transfers, such as transfer of foreign currency by physical persons to their relatives outside Azerbaijan.

While we have listed documentary requirements for some of the transfers or payments, nearly all them must have some documentary basis, such as agreement and/or invoice evidencing the purpose of such transfers or payments.

 

 

No tax jurisdiction on the shores of Caspian Sea – Alyat Free Trade Zone

On June 4, 2018 the Azerbaijani President signed into the law important piece of legislation – the Law On Alyat Economic ZoneThis is a unique law, at least as far as Azerbaijan’s legal system is concerned.  Under the law all businesses in the Zone are exempt from taxes and state duties (including import duties).  The administration of the Zone will be setting forth its own rules on, among other things, employment, migration as well as dispute resolution, which will include commercial arbitration.  The intention is to create a place with minimal government intervention and maximum flexibility and protection for businesses.  Read more blow for more information on what Alyat Free Zone has to offer.

Alyat Free Zone

The Free Zone is based off of the port located at the shores of Caspian Sea, just few miles away from Azerbaijan’s capital city – Baku.  Alyat’s proximity to Baku and the fact it is located at the Caspian Sea is meant to attract attention and foreign investment. More information can be obtained from this website: http://portofbaku.com/en/FTZ/

Economic Benefits

The new law provides for exemption from taxes and all government duties, which are applicable in the main territory of Azerbaijan. Therefore, companies operating in Alyat will be exempt from profit or income tax, VAT and other taxes, as well as customs duties upon import of their products into the Zone’s territory.  Apart from corporate taxes, the law also exempts companies and individuals from employment related taxes.  Consequently, Alyat is meant to become a no tax jurisdiction. 

Investor Protection

Article 24 of the law provides for protection of investor assets.  In particular, the law prohibits nationalization or confiscation of investor assets.  It allows for free exchange and transfer of foreign currencies.  Investors are free to transfer their profit or any funds from outside Alyat’s to a foreign country.

Dispute Resolution

Perhaps one of the key elements in the law is the part on dispute resolution in Alyat’s territory.  Under the law, there are two types of dispute resolution bodies: (i) Arbitration center and (ii) other dispute resolution agencies, which may be set up by Alyat’s administration.  All decisions issued by Alyat’s dispute resolution bodies must be executed not just in the Zone, but also in the entire territory of Azerbaijan.  Alyat’s administration is yet to adopt rules more specifically governing dispute resolution in its territory.

Setting Up Joint Ventures in Azerbaijan

Azerbaijani market is generally open for foreign businesses[1].  A foreign company wanting to enter Azerbaijani market does not have to partner with a local person.  If for business reasons the company needs to establish a joint venture, there are couple of options.  We assume that all or substantial of the business activity is carried out in the territory of Azerbaijan.

Registered (Equity) JV

Perhaps most popular and widely used, especially outside the oil and gas industry, form of a registered joint venture (JV) is a limited liability company (LLC).  Most privately held companies in Azerbaijan are established in the form of an LLC[2].   The partners join to set up an LLC in which each holds a certain shares.  LLCs must be registered with the Azerbaijani Ministry of Taxes.

When setting up a joint venture the parties need to carefully consider the terms of LLC’s charter.  Charter of an LLC is the LLC’s constitutional document, which regulates, among other things, governance in the LLC.  The charter must be registered with the Ministry of Taxes.  In addition to the charter, we typically recommend that partners enter into shareholders or similar agreements.  These agreements should govern matters, which for either practical or regulatory reasons, cannot be included in the LLC’s charter.

An LLC typically has 3 governing bodies: general meeting, supervisory council (or similar supervising authority) and executive body.  Having a supervisory council is not necessary – it is optional.  Under Azerbaijani law certain matters, e.g., liquidation or reorganization, distribution of dividends, approval of annual balance etc., fall within the exclusive authority of the general meeting.  Only the general meeting is authorized to decide these matters.  Outside this “exclusive authority” and few other requirements, there are no limitations on allocation of authorities among the LLC’s corporate bodies.  Partners in JV typically want to establish control mechanism to oversee JV’s executive body – i.e., director or general manager or similar officer.  For instance, an LLC’s charter may require that a transaction above certain value be approved by the general meeting or supervisory council.  Most of these mechanisms would be included in the LLC’s charter, although there are number of contractual mechanisms that should be in a shareholders or similar agreement.

In terms of allocation of cash flow rights, dividends must be distributed in proportion to share percentage in the LLC’s capital.  If, for instance, partner A has 30% and partner B has 70% in the capital of the LLC, dividends must be distributed in that proportion – i.e., 30/70%.  While most of the time JV partners are happy with this kind of arrangement, some, however, may want more flexibility in allocation of cash flow rights.  Shareholders or similar agreements may be helpful, however, additional tax obligations may arise from allocation of dividends not in proportion to shareholdings.

Exiting the JV is not particularly difficult.  A partner may either sell its shares in the JV or withdraw by demanding from the LLC value of its share.  While selling a share provides easier exit route, Azerbaijani law does not govern withdrawal in detail.

Contractual JV

JV partners may set up a contractual joint venture – they do not register a joint company, but instead sign agreement on joint operations.  The agreement must be detailed to govern, among other things, decision making, distribution of profits, allocation of costs and withdrawal.  Contractual joint ventures are widely used among companies engaged in oil and gas industries.

For practical reasons, even if the partners do not form a joint company, if they are engaged in day-to-day operations in Azerbaijan, they have to have some form of legal presence in Azerbaijan.  For instance, either one or both parties may register a branch office in Azerbaijan.

Azerbaijani law does not specifically provide for or govern contractual joint venture agreements.  Instead, these agreements would be governed by general contractual provisions of relevant laws, most importantly the Civil Code of Azerbaijan.  A local lawyer’s assistance is necessary in case of contractual joint ventures, as these agreements must not contradict mandatory requirements of Azerbaijani law.

One of the key issues in contractual JVs is the use of bank accounts.  It is important that parties decide how they would use bank accounts that would be used for receiving payments in connection with the joint business.  In Azerbaijan only the entities with registered legal presence may open bank accounts.  In other words, if a foreign company has not registered any office in Azerbaijan, it will not be able to open a bank account with any local bank.  In case of contractual joint venture parties may open a joint bank account.  Disposal of funds from such account can be done with consent of the JV partners.

Tax Matters

Generally income from business activities in Azerbaijan is subject to 20% of profit tax.  This tax is calculated from the net profit, which is the difference between income and deductible expenses and exclusions.  There is also value added tax at the rate of 18%.  The burden of VAT falls on an end-user of the product or service. 

Dividend distributions are subject to 10% of dividend withholding tax.

In case of registered JV (as discussed above) in addition to 20% of profit tax, there will also be 10% of tax on dividends, which the JV decides to distribute to its shareholders.  As a result, there is double taxation of income, which is finally distributed to the JV partner. The Azerbaijani Tax Code provides that (i) further distribution of dividends is not subject to dividend tax, and (ii) in case the receiver of dividends is the “factual owner” (essentially, beneficial owner), the dividends are not subject to any other tax – i.e., they are subject to profit tax in the hands of the person, who receives dividends.  It is not clear who is considered “beneficial owner” for the purposes of the second type of exemption.  This matter can be subject to dispute.

In case of contractual JV, the contractual JV fulfills its VAT payment obligations and partners pay taxes on the profit, which they receive from their joint business.  Therefore, there can be tax benefit in contractual JV depending on the circumstances.

Given Azerbaijani tax regulations are generally not clear on some of the key issues concerning JVs, it is always best to ask advice from the professional before making any final arrangements.

This material is not and is not meant to constitute a legal advice.  Each case is different.  You must seek professional advice on your particular case.      

[1] Some limitations maybe in regulated industries, such as banking and insurance

[2] For more information on forms of legal entities in Azerbaijan please see the material in the following link: http://remells.com/files/Investing_and_Business_In_Azerbaijan_2014.pdf

Azerbaijani President Approves Rules on Internal and External Indebtedness of State Owned Entities

On December 28, 2016 the Azerbaijani President approved the Rules On Internal and External Indebtedness of State Owned Entities (the “Rules”). They were published on December 29, 2016. The Rules contain two key concepts: (i) the Azerbaijani Cabinet of Ministers sets the upper limit debt that may be taken out state owned entities and (ii) the Ministry of Finance must consent to debt arrangements of state owned entities.

For the purposes of the Rules a “state owned entity” means any entity (i) in which the state owns, either directly or indirectly, 51% or more shares, (ii) non-commercial entities and public legal entities and (iii) legal persons, including non-commercial legal persons and public legal persons, in which the entities listed in (i)-(ii) above own 51% or more shares.  The term indebtedness is defined broadly and includes loans, guarantees, debt undertakings under securities and leasing transactions and other borrowings.

The Rules do not apply to those debt arrangement of state owned entities, which are secured by a government guarantee. This is governed under Presidential Decree No. 368, dated February 13, 2006.

State owned entities must submit to the Ministry of Finance their estimate and plans for taking debt anytime before June 1 of each calendar year. The Ministry of Finance must analyze the information and, with the concurrence of the Azerbaijani Ministry for Economy, submit to the Azerbaijani Cabinet of Ministers investment projects to be financed with debt.  Presumably the Ministry must also submit its proposal on the upper limit of total debt. By September 15 of a calendar year the Cabinet of Ministers must, with the concurrence of the Azerbaijani President, set the upper limit of debt that may be taken out by state owned entities during the next calendar year. It is not clear from the Rules whether the “upper limit” means upper limit for each state owned entity, or upper limit of debt proposed to be taken by all state entities.

Before entering into a debt arrangement a state owned entity must obtain consent of the Ministry of Finance for that debt arrangement. In order to obtain this consent, the relevant entity must submit to the Ministry a set of documents, such as information on the project to be financed with the debt, feasibility study, positive opinion of the Azerbaijani Ministry for Economy for investment projects, initial revenue and expenses report for the year in which the application is made, its audited financial statements. The Ministry of Finance must review the documents and provide its opinion within 30 days. The Ministry may request opinion of other government agencies, in which case the timeline for issue of opinion can be extended for around 10 days.

If the Ministry of Finance believes that the proposed debt arrangement overly burdens the state owned entity and puts it under risk of default, the Ministry may refuse its consent. There are other grounds on which the Ministry may refuse its consent, such as providing false information by the state owned entity wishing to obtain the consent. In all other cases, the Ministry must issue its consent.