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Power of attorney to exchange foreign currency: legal nature.



04.07.2002NGO “Pericles” American Business and Legal Education Project
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The following article discusses the practice of obtaining power of attorney to exchange foreign currency, as a way of being paid for services or goods in foreign currency.

Generally, with the several exceptions in the Federal Law “On Currency Regulation and Control”, it is prohibited to use foreign currency payments in the territory of the Russian Federation. According to Article 317 of the Civil Code of the Russian Federation monetary obligations must be expressed in rubles.

The scheme works this way - the Russian legal entities take foreign currency payments from their customers along with the written power of attorney from the customer to exchange this foreign currency. So there is no foreign currency payment as the customer formally is the owner of the currency until it is exchanged into rubles. When the foreign currency is exchanged into rubles there can be an automatic setoff of an identical counterclaims between the customer (claim to return exchanged money) and the legal entity (claim for payment for the services or goods rendered) (Article 410 of the Civil Code of the Russian Federation)

However, there are several questions which need to be discussed regarding the power of attorney to exchange foreign currency.

Is it possible to issue a power of attorney to exchange foreign currency in simple written form?

According to Article 163 of the Civil Code of the Russian Federation obligatory notarization of the transaction (including issuing power of attorney) is required in cases indicated by a statute or in cases provided by an agreement of the parties. Neither Federal Law “On Currency Regulation and Control”, nor any other Federal Law or even lower normative act provide obligatory notarization for power of attorney to exchange foreign currency. Thus it is possible to issue a power of attorney to exchange foreign currency in simple written form.

Is the issuing of the power of attorney to exchange foreign currency a currency operation according to the Federal Law “On currency Regulation and Control”?

According to part 7 of Article 1 of the Federal Law “On Currency Regulation and Control” currency operations are in particular operations connected with the transfer of ownership or other rights on the currency valuables. In our case, as the result of the transfer of the currency from the customer to the Russian legal entity on the basis of the power of attorney to exchange foreign currency the Russian legal entity becomes lawful possessor of the currency. Thus, issuing of the power of attorney to exchange foreign currency is a currency operation as it is connected with the transfer of the right of the possession of the foreign currency – that is “ transfer of other rights on the currency valuables” (Part 7 of Article 1 of the Federal Law “On Currency Regulation and Control”).

What are the consequences of recognizing the issuing of power of attorney to exchange foreign currency as a currency operation?

According to parts 9 and 10 of Article 1 of the Federal Law “On Currency Regulation and Control” issuing of power of attorney to exchange foreign currency is the currency operation associated with the movement of capital, which requires obtaining Central Bank license according to the Letter of the Central Bank of 06.10.95 № 12-524.

What are the penalties for issuing the power of attorney to exchange foreign currency without obtaining the Central Bank license?

According to Article 14 of the Federal Law “On Currency Regulation and Control” performance of the currency operation without Central Bank license leads to the transaction being void and everything obtained by the parties under the transaction shall be taken for the income of the Russian Federation.

In conclusion, it is obvious that obtaining power of attorney to exchange foreign currency, as a way of paying for services or goods in foreign currency is inconvenient as it either requires obtaining the Central Bank license or, in case of non-obtainment of this license, it can cause confiscation of everything obtained by the parties under the transaction for the income of the Russian Federation.

 


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