01.05.2015 — The governmental bodies’ clarifications can now be reviewed
The Constitutional Court of the Russian Federation in Judgment No. 6-P issued on 31 March 2015 has allowed challenging the Federal Tax Service’s acts that clarify the legislation and effectively impose additional obligations on the taxpayer.
As regards the content of the Judgment, it is not possible to state, however, that it unequivocally has a positive impact on the legal situation of the potential claimant.
In addition to providing for a possibility of challenging the clarification acts of the state bodies, the Constitutional Court also specified the criteria the disputed clarification act shall satisfy:
it shall stipulate the rules, which are obligatory for the public at large;
the rules shall be designed for multiple application;
the rules shall constitute general regulations.
The Constitutional Court provided for the following basis for refusal of court review of the state body’s clarification acts in its Judgment:
The clarifications provided in the act do not go beyond the reasonable interpretation and do not entail any changes in the legal regulation of relationships.
Having provided for evaluative judgment as a test for qualifying a clarification act as challengeable, the Court has largely minimized the possibility of appeal and has laid the burden of proving that there have been changes in the legal regulation of the relationship and that the clarification act is legally binding, on the claimant.
Moreover, the procedure for challenging clarification acts is not entirely clear: until the the legislator introduces the respective amendments into the Civil Procedure Code, the Arbitrazh Procedure Code and the Tax Code, cases shall be reviewed according to the procedure for challenging normative legal acts.
Therefore, it will be possible to assess the real impact of the Judgment only after the respective court practice appears.
30.04.2015 — Recent changes in the area of corporate law
We would like to inform you about important recent and upcoming changes in the area of corporate law that may be relevant for your group of companies, and we will be ready to discuss them with you if requested:
Round seals were excluded from the obligatory attributes of Russian business entities established as limited liability companies or joint stock companies (see the new Law No. 82-FZ, "On amendments to the certain legislative acts of the Russian Federation regarding the annulment of companies' obligatory seals," dated April 7, 2015). From this moment, any business entity shall have a right to decide whether to have a round seal or not. If it decides to keep the seal, the corresponding information must be entered into the company's charter. If the company chooses not to have a round seal, it is not obliged to certify documents that would normally require such a seal (e.g. powers of attorney).
From January 1, 2016, the registration authority will be entitled to check the authenticity of information included or incorporated in the Unified State Register (EGRUL). Information will be checked when the registering authority has reasonable doubt about the authenticity of such information, including events when the registration authority has received an objection to the upcoming state registration of the charter's amendments or the upcoming inclusion of information in the Unified State Register (EGRUL).
From January 1, 2016, a new two-tier system for the registration of information on a company's relocation will be introduced:
- First, information on the intention of the company to change its location is to be registered, and only after said registration will the registration authority, within 20 days, register the information on company's relocation.
- Second, the company must enclose with the application for registration of the company's relocation documents that confirm the company's title at a specific address.
From January 1, 2016, any interested person who objects to the charter's amendments or any other upcoming inclusion of information in the Unified State Register (EGRUL) is entitled to send to the respective registration authority his or her objections to the upcoming registration.
Further, Federal law No. 67-FZ has altered the regulations on notarial certification of certain corporate documents. Thus, from January 1, 2016, the following corporate documents should be certified by a notarius:
- any resolution of the general participants' meeting on increasing the share capital;
- any statement from a company participant declaring its withdrawal from the company;
- any mandatory offer for the disposal of a participatory interest, as well as any requirement for the acquisition of said participatory interest by the company (within the framework of Article 23(2) of the Federal law, "On Limited Liability Companies").