In a situation when funds were contributed into the share capital by non-resident - founder or received as a loan it remains unclear how these conditions might be returned. On this – in the following.
According to para. 3.2 of Regulation on the procedure for foreign investment in Ukraine, approved by the National Bank of Ukraine (hereinafter − the NBU) of 10.08.2005, № 280 (hereinafter – Regulation № 280), returning from Ukraine foreign investment and profits, revenues and other funds, received by foreign investors from investing activities in Ukraine, is carried out in foreign currency of 1st category of the Classifier. Resident is entitled to transfer money in UAH for investment object to the investment account of foreign investors in case of liquidation of the company.
In accordance with para. 3.2 of Regulation of the NBU 'On approval the Procedure for obtaining loans in foreign currency from non-residents and lending in foreign currency by residents to non-residents' of 17.06.2004, № 270 (hereinafter − Regulation №270) reimbursement of a loan under the agreement must be in foreign currency that is actually received by a resident -borrower. It is allowed to repay debt in foreign currency of 1st category of the Classifier in any other foreign currency, and to repay by resident- borrower debt in foreign currency 2st and 3rd categories of the Classifier in any other foreign currency 2st and 3rd categories of the Classifier.
It should be noted that currently according to para. 6 of Regulation of the NBU 'On settlement of the situation in the money and foreign exchange markets of Ukraine' of 07.06.2016, № 342 (hereinafter − the Regulation № 342) temporarily are in force restrictions for purchase of foreign currency:
- reimbursement of loans (including financial assistance) in foreign currency under agreements with non-residents (including in case of concluding additional agreements, termination of agreements) until the term stipulated by the agreement;
- returning abroad funds received by foreign investors due to transactions from sale of securities of Ukrainian issuers;
- returning abroad funds received by foreign investors due to transactions from sale of corporate rights of legal entities that are not registered by shares, reducing of the share capital of legal entities, leaving of commercial companies by foreign investors.
Mentioned above Regulation is valid for three months and applies only to transactions in foreign currencies, but these restrictions may be extended by another Resolution of NBU.
Thus, reimbursable financial assistance is a reliable and fast method for refunding investment. To minimize risk of loss of money it is recommended investing in short-term interest-free loans (reimbursable financial assistance). If necessary, loan agreements could be continued for the desired term.
If necessary to withdraw investments abroad urgently, it is recommended considering possibility of acquiring the equity rights of foreign entity. To acquire equity rights of non-resident company in accordance with para. 4 Art. 5 of the Decree of the Cabinet of Ministers of Ukraine 'On Currency Regulation and Currency Control' of 19.12.1993, № 15-93 should obtain an individual license of NBU.
