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For the first time about Decree No. 8 "on the development of the digital economy" began to talk about a year ago. At the end of December, it was signed and on March 28 it came into effect. Since then, it's been more than three months, and whoever asks you – everyone is delighted with the document. But the spoiled phone and the popular rumor have led to start-ups and IT companies sometimes misunderstanding critical nuances. "Igor Solovey, Director of the TelwellLigl Legal Society, agreed to clarify these points.
English Law and Belarussian Realities
– Decree No. 8 is Often Called Revolutionary: Is It True?
– It is of a revolutionary nature, but what many were expecting – especially regarding the regulation of crypto-currencies, the exchange of tokens for cash money – does not currently work. that it is a slippery subject, and it is necessary to exclude schemes with illegal movements of money and other similar things.
– The rules of English law that are appeared with the decree – what are they so good for?
– There are transactions which, on the basis of the legislation in force in Belarus, can not be implemented from the point of view of a For example, in accordance with the law, Belarusian project participants have a pre-emptive right to buy and sell shares. As a result, it is difficult to prescribe a regime in which a foreign investor, having invested money, will in the future receive participation rights if other participants oppose it. . It is possible, in principle, and now to prepare certain agreements that are not directly stated in the legislation. Simply in this case, there is still no judicial practice. If the case is tried in court, no one can predict its outcome.
Elements of English law allow all this to be detailed in the form of a fairly simple contract. In addition, the contract of a convertible loan is convenient because it is difficult to determine the actual cost of the start-up, which is different according to the founders and investors.
By investing in this contract, the problem is solved. at the time of the provision of funds. This occurs later according to the rules specified in the loan agreement. In addition, the investor may decide: either to take part in the start-up, or to return his money with interest, he does not see the development and potential of the start-up [19659009] Now it sounds a lot: "In Belarus, the norms of English law have been introduced!", "We can conclude treaties on English cannons and so on." Here is a very important reservation – these elements are only available for PTH residents. Unfortunately, people now have the impression that such conditions are accessible to all.
At the present time, the working groups concerned have just made suggestions on the consolidation of these standards in the Civil Code of the Republic of Belarus. It is too early to discuss the specific timeframe for the use of English law institutions by all commercial entities.
And startups have such misconceptions: they think that if they work in the IT field, they automatically rely on all the benefits. Again, the broadest benefits are available to HTP residents, not all IT companies
Register in the US for $ 500 and enter offshore
– Where does this error come from? ?
– Startups learn a lot from forums, communication as part of their community. They do not study the question thoroughly, everything happens at the level of "me Petya said that for $ 500, you can register in the United States without going there." In particular, the US state of Delaware offers many benefits – tax and other. There is really a simple record, everything can be done remotely
But this territory in a number of countries, including Belorussia, belongs to the offshore area. It is necessary to understand the financial costs of Belarussian organizations and legal entities that wish to participate in the project as participants. The tax code provides for the additional payment obligation of an extraterritorial tax – that is, 15% of the amount transferred to a non-resident. In addition, according to the legislation of the Belarussian currency, it is necessary to obtain prior authorization from the National Bank for operations related to the acquisition of shares of foreign companies, opening of accounts of settlement abroad.
They provide for additional control over transactions involving the transfer of funds to offshore areas. The information is sent to the Financial Investigations Department.
By default, our bodies badume that the business is not simply registered in an offshore area – it may be about to launder money. That is to say, this "simple listing in the United States" immediately draws you unnecessary attention.
Yes, startups now, you can say, have some privileges. But the legislation as a whole aims to reduce the number of inspections. For example, in the first time after the recording, they will not be. And it turns out that the startup is listed, friends ask if everything is fine, and they are told that there are no problems at all. And the controls will be, but not the first year. Thus, one has the impression that one can act on the same schema.
Registration Nuances
– The HTP membership process has become really easier
– Yes, the filing and deposit process is very simple. Statutory documents, provide a business project. In addition, there is a resolution of the Council of Ministers, which clearly specifies what it should look like: chapters, information, etc.
To our knowledge, the attitude of the administration of PTT is now loyal: if you follow the formal conditions of the decree, artificial barriers will not be put. But the document sets out some requirements for residents. It turns out that almost anything can join, and it is more likely to monitor and filter out companies that do not meet the conditions later.
Another trend: legal badistance services to the HTP membership process are offered to companies that do not really have the right to do so. Legal Services – type of activity allowed. The website of the Department of Justice contains a list of companies and implementing partners that can conduct such activities. Before contacting a company, at least check if it is on this list
– What form of legal entity is optimal for a startup? What are the risks for the registration of start-ups by legal entities?
– Most specialists tend to believe that the best option for the registration facility and the liability of the founders is a limited liability company. In fact, almost all start-ups are registered.
The registration body does not currently check the actual content of the constituent documents. The founders submit documents for registration with their signatures that they meet the requirements of the law.
But there is a nuance – in the Belarussian law the norms for the same field can be contained in different legal acts: something in a decree, then in the law, then something else will be fixed in the resolution of the Council of Ministers. And the person, not knowing these nuances, is checked only with a document, which he regards as the main one.
As a result, registration can be conducted with violations. The court can revoke the registration decision by collecting revenue for the entire period of activity. These negative consequences are possible when the information is knowingly misrepresented, and it is still necessary to prove that you had the intention. But this will in no way lead to something good from the point of view of the company's reputation.
Negative moments that will appear during the study of a start-up, the investor uses to reduce its cost in order to buy a cheaper project. These violations should not even be serious, but they will remain important in the negotiating position. Investors, especially foreigners, act from a position of strength.
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