RESOLUTION OF COUNCIL OF MINISTERS OF THE REPUBLIC OF BELARUS

of June 4, 2010 No. 865

About Regulations on leasing

In pursuance of Item 2 of the Presidential decree of the Republic of Belarus of March 1, 2010 No. 104 "About recognition voided some presidential decrees of the Republic of Belarus concerning leasing" Council of Ministers of the Republic of Belarus DECIDES:

1. Approve the enclosed Regulations on leasing.

2. Recognize to invalid:

the resolution of Council of Ministers of the Republic of Belarus of December 31, 1997 No. 1769 "About leasing in the territory of the Republic of Belarus" (Collection of decrees, presidential decrees and orders of the Government of the Republic of Belarus, 1998, No. 1, the Art. 16);

the resolution of Council of Ministers of the Republic of Belarus of July 13, 2000 No. 1038 "About modification of the Regulations on leasing in the territory of the Republic of Belarus" (The national register of legal acts of the Republic of Belarus, 2000, No. 69, 5/3609).

3. To the Ministry of Economics, the Ministry of Finance, the Ministry of Taxes and Tax Collection to bring the regulatory legal acts into accord with this resolution and to take other measures for its realization.

4. Explain to the Ministry of Economics the questions connected using this resolution.

5. This resolution:

does not extend to the agreements of leasing signed to its introduction in force. These agreements are effective during the term specified in them and are not subject to reduction in compliance with requirements of this resolution. By agreement of the parties the agreement of the leasing signed before entry into force of this resolution provisions of this resolution can be applied to such agreement;

becomes effective since July 1, 2010, except for Item 3, of this resolution which is becoming effective from the date of official publication.

 

Utverzheno Postanovleny of Council of Ministers of the Republic of Belarus of June 4, 2010 No. 865

Regulations on leasing

1. This Provision regulates general economic and legal terms and procedure of activities for the conclusion, execution, cancellation of agreements of finance lease (leasing) (further - agreements of leasing), including economic activities in connection with execution of these agreements.

The relations on cession of property under the agreement of leasing are governed by the Civil code of the Republic of Belarus, this Provision if other is not established by the President of the Republic of Belarus, other legislation accepted according to them.

In case of establishment by the international treaty of the Republic of Belarus of other regulations, than those which contain in this Provision are applied provisions of the international treaty.

2. For the purposes of this provision the following terms and determinations are applied:

the contractual cost of the subject of the agreement of leasing (further - leasing subject) - the cost of the leased subject determined by approval between the lessor and the leasing recipient for the purpose of calculation of leasing payments, implementation and reflection of economic activities in case of leasing agreement performance, reflected in source accounting documents and including including the expenses of the lessor connected with acquisition of subject of leasing (including delivery, installation, installation of subject of leasing) and finishing it to condition in which it is suitable for use by the leasing recipient;

leasing term - the term to which the subject of leasing is transferred to the leasing recipient to temporary ownership and use according to the agreement of leasing and which is estimated from the date of transfer of subject of leasing to the leasing recipient and comes to the end with date of its transfer into the ownership of the leasing recipient or his return to the lessor. If the subject of leasing consists of several objects, then date of transfer of subject of leasing or its components is determined by the agreement of leasing;

the price of the agreement of leasing - set of leasing payments, and also redemption value if under the terms of the agreement the redemption of subject of leasing is provided.

3. For the purpose of establishment of features of implementation of economic activities:

leasing in case of which leasing payments during the leasing term (at least 1 year) provide compensation to the lessor at least 75 percent of contractual cost of subject of leasing irrespective of whether the transaction will be completed by the redemption of subject of leasing by the leasing recipient or his return to the lessor is determined as financial;

leasing in case of which leasing payments during the term of leasing provide compensation to the lessor less than 75 percent of contractual cost of subject of leasing and after leasing term the leasing recipient returns to the lessor leasing subject, is determined as operational.

The leasing recipient can act at the same time within one agreement as the seller of the property leased (returnable leasing).

With the consent of the lessor the leasing recipient can give to the third party to ownership and use for certain term for a fee the property received from the lessor under the agreement of leasing and constituting leasing subject, having signed the agreement of subleasing with the third party (subleasing recipient). At the same time the leasing recipient under the agreement of leasing, acquiring in relation to the subleasing recipient under the agreement of subleasing of the right of the lessor according to the procedure of and taking into account the conditions established by this Provision and the agreement it is not exempted from the obligations provided by the agreement of leasing and responsibility to the lessor.

To the relations of the subsequent provision by person who was the lessor in lease of the property leased by it earlier and returned to it (repeated leasing), the this provision regulations are applied if other does not follow from these relations or it is not defined by the lease agreement.

4. Essential terms of the contract of leasing are:

leasing subject (its name, quantity and other characteristics allowing to establish definitely the property which is subject to transfer to leasing);

specifying on the party performing the choice of subject of leasing and the seller;

contractual cost of subject of leasing;

the size or procedure for determination of the size, method and frequency of payment of leasing payments in accordance with the terms of the agreement;

price of the agreement of leasing or procedure for its determination;

condition about leasing term;

5. In addition to the essential conditions established by the legislation for the purchase and sale agreement (delivery), the additional essential term of the contract of purchase and sale (delivery) of the property acquired for the subsequent transfer as leasing subject is specifying on the fact that the property is acquired for transfer to leasing.

6. The subject of leasing, the right to it and (or) the agreement of leasing which are subject to state registration according to the legislation are registered the authorized state organization for the statement of the leasing recipient if other is not provided by the agreement of leasing. If the legislation does not establish other, when implementing state registration the leasing recipient is specified with reference to the relevant agreement of leasing. In case of termination of the contract of leasing or return to the lessor of subject of leasing the lessor shall file in the specified authorized state organizations petition for introduction of corresponding changes.

7. The lessor has the right of control of observance by the leasing recipient of terms of the contract of leasing regarding safety of subject of leasing and its maintenance in working order, and also the right of early agreement cancelation of leasing and return of subject of leasing, other rights in cases and according to the procedure, stipulated by the legislation or the agreement of leasing. If other is not established by the agreement, the leasing recipient incurs all expenses connected with return of subject of leasing to the lessor including expenses on its dismantle, transportation, and also pays other damages of the lessor connected with agreement cancelation.

8. The basis for cession of property in subleasing is the consent of the lessor in writing.

The lessor cannot become subleasing recipient owing to transfer by the lessor of the rights to the same subject of leasing to the third parties.

9. The term for which the leasing subject in ownership and use of the agreement of subleasing is provided cannot exceed leasing term under the agreement of leasing.

Termination of the contract of leasing attracts simultaneous termination of the contract of subleasing.

The lessor has the right to exercise control of observance by the subleasing recipient of terms of the contract of leasing, including regarding safety of object of leasing and its maintenance in working order.

Restrictions for use of subject of leasing shall be determined in the agreement of subleasing.

The requirement of return of subject of leasing based on the agreement of leasing attracts the simultaneous requirement of return of subject of leasing for the agreement of subleasing to the lessor irrespective of accomplishment of the obligations by the subleasing recipient.

The rights of the subleasing recipient cannot go beyond the rights of the leasing recipient, and obligations of the subleasing recipient shall consider obligations of the leasing recipient.

Under the agreement of subleasing of right to claim against the seller arise as well at the subleasing recipient.

10. The lessor has the right to use leasing subject as pledge subject for the purpose of ensuring obligation fulfillment only of the credit agreement (loan agreement) signed for payment of subject of leasing if other is not provided by the agreement of leasing.

11. The risks and benefits connected with transfer and ownership of subject of leasing pass to the leasing recipient.

If the agreement of leasing does not establish other, then risk:

failures to carry out by the seller of obligations according to the purchase and sale agreement of subject of leasing are born by the party which chose the seller;

discrepancies of subject of leasing to the purposes of use of this subject of the agreement of leasing and losses connected with it are incurred by the party which chose leasing subject.

12. Responsibility for safety of subject of leasing, and also the risks connected with death, loss, spoil, plunder, other disposal of subject of leasing, the breakdown of subject of leasing allowed in case of its installation or operation other property risks from the moment of receipt of subject of leasing are born by the leasing recipient if other is not provided by the agreement of leasing.

Loss by subject of leasing of operational characteristics after its transfer to the leasing recipient does not exempt the leasing recipient from obligation fulfillment under the agreement of leasing.

13. Transfer by the lessor to the leasing recipient of subject of leasing to leasing is drawn up by the act of acceptance - cessions of property, in sobstvennostyakty assignments of rights of property regarding leasing.

14. The leasing subject during the term of leasing stays on financial accounting both at the lessor, and at the leasing recipient if other is not established by the legislation for banks lessors and (or) banks leasing recipients, and under agreements of international leasing - without fail on financial accounting at the lessor.

15. Depreciation of subject of leasing is performed by the party (the lessor or the leasing recipient) at which under the terms of the agreement of leasing the subject of leasing is considered on balance as a part of assets.

The size and procedure for depreciation of subject of leasing are established according to the agreement of leasing under approval between the lessor and the leasing recipient according to the legislation. The amount of charged depreciation shall not exceed difference between the contractual cost of subject of leasing and its redemption value.

16. The leasing subject cost at which it is accepted by the leasing recipient in operation is not subject to change, except the cases established by the legislation.

17. Leasing payments include the amounts:

17.1. rewards (income) of the lessor. By agreement of the parties agreements of leasing this remuneration (income) can be determined in the form of sum of money or interest rate;

17.2. fully or partially (if the agreement of leasing provides the redemption of subject of leasing or the agreement of leasing is stopped ahead of schedule) the refunding expenses of the lessor on:

17.2.1. acquisition of subject of leasing, implementation of the actions which are directly connected with production, bringing by its (completion) to the condition suitable for use according to the agreement of leasing, and transfer to his leasing recipient, including including:

customs payments;

differences from revaluation of accounts payable according to the obligations connected with acquisition of subject of leasing for foreign currency, receivables on the issued advance payments connected with acquisition of subject of leasing for foreign currency (exchange differences);

the differences on receivables arising in case of payment under the obligations connected with acquisition of objects of leasing in cases when payment is performed in Belarusian rubles in the amount defined by the agreement to equivalent foreign currency amount (conventional monetary units), the differences in foreign currency arising in case of payment under the obligations expressed in foreign currency which amount is determined proceeding from equivalent of other foreign currency or conventional monetary unit (amount-based differences);

expenses on:

handling works, delivery and insurance in transit and delivery of subject of leasing;

installation, installation, and also construction of designs (constructions), necessary for application of subject of leasing;

purchase of currency for payment under the obligations connected with acquisition of subject of leasing including difference amount between the buying rate and rate of National Bank at the time of purchase before input (transfer) of subject of leasing to operation;

17.2.2. interest payment, commission and other payments on:

to the credit agreement (loan agreement) signed for the purpose of financing of acquisition of subject of leasing before its transfer to leasing;

to the letter of credit before transfer of subject to leasing;

17.2.3. issue of securities, emitted for the purpose of financing of acquisition of subject of leasing, and payment of the income (percent) on them before its transfer to leasing;

17.2.4. attraction of guarantee for providing obligations of the lessor if such guarantee was provided;

17.2.5. tax payment, charges (duties) and other obligatory payments in republican or local budgets, including in the state trust budget funds and off-budget funds, charged regarding leasing and on the parcel of land occupied with leasing subject;

17.2.6. all types of insurance of subject of leasing, risk of failure to pay the leasing payments and other risks arising in case of leasing agreement performance, and also in case of state registration of subject of leasing (the rights to it) and (or) agreements of leasing if insurance and (or) registration are performed by the lessor;

17.2.7. the running and (or) capital repairs of subject of leasing, and also the expenses connected with changes of subject of leasing according to the agreement of leasing if this repair or other works on change of subject of leasing according to the agreement of leasing are carried out by the lessor;

17.2.8. purchase of currency for payment under the obligations connected with acquisition of subject of leasing including difference amount between the buying rate and rate of National Bank at the time of purchase after input (transfer) of subject of leasing to operation.

18. The leasing payments, and also the expenses of the lessor which are not included in structure of leasing payments, but subject to compensation in accordance with the terms of the agreement of leasing are the expenses of the leasing recipient connected with production and (or) sales of products, goods (works, services), property rights.

19. The payment (advance payment) paid by the leasing recipient prior to the beginning of leasing term is set off on account of payment of the first and (or) the subsequent payments throughout the term of leasing and shall not exceed 40 percent of contractual cost of subject of leasing including tax on value added.

20. The lessor has the right to provide in the agreement of leasing or in other agreement providing the redemption of subject of leasing, condition that transition of the property right is made after payment by the leasing recipient of penalty and execution by it of the other obligations established by the agreement of leasing.

 

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