On 7 July 2015 the National Bank of Ukraine (the “NBU”) simplified the currency control rules applicable to the export of services and/or IP rights over the Internet.
The changes were introduced by letter No 22-01012/46746 “On Monitoring Services Export Transactions Performed over the Internet” (the “Letter”).
What the Letter says
The Letter permits a Ukrainian bank to apply a more liberal (and modern) approach to export-related documentation when verifying whether proceeds from the export of services and/or IP rights over the Internet are received on the exporter's account within the statutory period after the rendering of the services (currently 90 days). Thus:
- the bank is allowed to rely on a contract concluded over the Internet (through a public offer and acceptance evidenced by a confirmation, invoice or other documents) as a proper export contract, without requiring the submission of the conventional paper contract.The bank may accept a set of documents generated electronically if they contain sufficient information about the transaction's parties, terms and conditions, offer-acceptance and rendering of the services or export of the IP rights
- if the export contract provides that the rendering of the services or export of the IP rights is shown by an invoice or any other paper or electronic document, this document should be accepted by the bank as evidence of delivery of such services or IP rights (no bilateral act or certificate should be required by the bank unless the contract provides for the execution of such act or certificate)
- a servicing bank is not required to demand Ukrainian translations of the transaction documents necessary for compliance with the currency control rules
- the exporter's or its authorized representative's signature on the copies of the export transaction documents is regarded as sufficient certification of such copies for currency control purposes
Potential implementation problems
The Letter is not binding legislation and may be recalled any time. However, it represents the official position of the regulator, which will be relied upon by Ukrainian banks.
However, the position expressed in the Letter may not necessarily be respected by other authorities - e.g. the tax authorities. Thus, until a law governing cross-border e-commerce is adopted and becomes effective, the tax authorities may take the view that the documents indicated in the Letter are insufficient and that the conventional set of export-related documentation is needed for tax or accounting purposes. Moreover, a Ukrainian translation of such documentation may still be required by other authorities, notwithstanding the NBU's liberal position expressed in the Letter.