Amendments to the Law on Leasing

Art. 10 of the Federal Law dated 29.10.1998 No. 164-FZ “On Financial rent (Leasing)” was amended by the Federal Law dated 03.07.2016 No. 360-FZ “On Amendments to Certain Legislative Acts of the Russian Federation”. The Law on Leasing was supplemented by the duty of the lessor to provide the Unified Federal Register of information on the facts of legal entities (hereinafter - the “Register”) with information on the conclusion of the lease contract.

This information is to include the following:

• Number and date of the lease contract;
• Commencement and expiration dates of the leasing;
• Names of the lessor and the lessee (indicating TIN and BIN);
• Property that is subject of the leasing (digital, lettering of the property, the object of rights or the combination of symbols).

In accordance with Art. 7.1 of the Federal Law of 08.08.2001 No. 129-FZ “On State Registration of Legal Entities and Individual Entrepreneurs” (hereinafter – “No. 129-FZ”) legal entities are obliged to maintain the Register. Pursuant to part 9 thereof information is to be submitted to the Register within three (3) business days from the date of occurrence of the legal fact by the entity which has the duty to provide such information. The exception is the information provided by the authorized federal executive authority.

The Russian Ministry of Economic Development by the Order dated 05.04.2013 No. 178 has approved the Procedure of  formation and maintenance of the Unified Federal Register of information about the facts of legal entities and the Unified Federal Register on Bankruptcy Information and list of information to be included in the Unified Federal Register on Bankruptcy Information (hereinafter - the “Order”).

In accordance with the Order in order to submit information to the Register, the lessor is to create a user account in the information resource on the Internet at the following address: http://www.fedresurs.ru, maintained by the Registry Operator. At present, CJSC “Interfax” maintains the Register (p. 4 of Art. 6 of the Federal Law dated 18.07.2011 No. 228-FZ, para. 2 of the Order of the Russian Ministry of Economic Development No. 121 dated 21.03.2011).

The lessor may also submit relevant information to the Register by referring to the notary in the manner stipulated in the Art. 86 of the Fundamentals of Russian legislation on notaries, according to which the notary sends the application and (or) other documents of individuals and legal entities to other individuals and legal entities. Documents submitted in such a manner are to be accompanied by a cover letter from the notary. The information contained in the statements of individuals and legal entities is to be delivered to the notary in writing. Then the notary transfers the information from the written document to the Register. Finally, the statement is to be signed by a qualified electronic signature of the notary.

The legal entity also is to prepare a standard package of constituent documents, such as certificates of TIN and BIN, the actual version of the Charter, the Decision / Meeting minutes on the appointment of directors, the passport or the notarized power of attorney for the representative.

Responsibility for late submission, provision of false information and failure to provide information to the Register is indicated in the parts 6 and 7 of the Art. 14.25 of the Administrative Code of the Russian Federation:

1. In accordance with part 6 of Art. 14.25 of the Russian Administrative Code: late submission of information about a legal entity or an individual entrepreneur to the Register in cases when such submission is provided by law, is punishable by a warning of officials or an administrative fine imposed on officials in the amount of 5000 rubles;
2. In accordance with part 7 of Art. 14.25 of the Russian Administrative Code: provision of false information and failure to provide information of a legal entity or an individual entrepreneur to the Register in cases when such submission is provided bylaw, is punishable by an administrative fine imposed on officials in the amount from 5 000 to 10 000 rubles.

According to Art. 4 and Art. 422 of the Civil Code, law is not retroactive, unless otherwise provided by a certain law. Thus, the necessity to submit information on the conclusion of a lease contract applies only to contracts concluded after entry into force of the amendments, i.e. from 01.10.2016.

Among the potential risks related to failure to submit information to the Register may be noted:

1. The risk of declaration of a contract as not concluded (by analogy with the registration of lease of real estate - Clause 2 of Art. 609, par. 2 of Art. 651 of the Russian Civil Code, Clause 1 of the Art. 20 of the Federal Law “On financial rent (leasing)”;
2. The risks related to the claims of third parties on the subject of leasing (by analogy with paragraph 4 of Article 339.1 of the Russian Civil Code);

Moreover, each of the mentioned potential risks includes both tax and general legal risks.