July 8, 2020

For purpose of presenting in Ukraine official documents issued abroad, or official documents of Ukraine to other countries, such as extract from business register of companies, power of attorney, these documents are to be legalized in order to have legal validity in Ukraine.

There are 3 ways of legalization of documents.

a. Apostille

It is simplified legalization, available to countries, which entered Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents _Convention (the Apostille Convention).

The following countries are in the list according to the Apostille Convention: Albania, Andorra, Antigua and Barbuda, Argentina, Armenia, Australia, Austria, Azerbaijan, Bahamas, Bahrain, Barbados, Belarus, Belgium, Belize, Bosnia and Herzegovina, Botswana, Brazil, Brunei, Bulgaria, Burundi, Cape Verde, Chile, Colombia, Cook Islands, Costa Rica, Croatia, Cyprus, Czech Republic, Kingdom of Denmark, Dominica, Dominican Republic, Ecuador, El Salvador, Estonia, Fiji, Finland, France, Georgia, Germany, Greece, Grenada, Cyprus, Honduras, Guatemala, Hungary, Iceland, India, Ireland, Israel, Italy, Japan, Kazakhstan, Kosovo (but Ukraine objected to accession of Kosovo to Convention, so classical legalization between the countries are required), Kyrgyzstan, Latvia, Lesotho, Liberia, Liechtenstein, Lithuania, Luxembourg, Macau, Macedonia, Malawi, Malta, Marshall Islands, Mauritius, Mexico, Moldova, Monaco, Mongolia, Montenegro, Morocco, Namibia, Kingdom of the Netherlands, New Zealand, Nicaragua, Niue, Norway, Oman, Panama, Paraguay, Peru, Poland, Portugal, Romania, Russia, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Samoa, San Marino, São Tomé and Príncipe, Serbia, Seychelles, Slovakia, Slovenia, South Africa, South Korea, Spain, Suriname, Swaziland, Sweden, Switzerland, Tonga, Trinidad and Tobago, Turkey, Ukraine, United Kingdom, United States, Uruguay, Uzbekistan, Vanuatu, Venezuela.

Double apostille

Some countries require 2 apostilles on official documents, first on document, second on notary certified translation of already apostilled document. These countries are Austria, Belgium, Spain, France, United Kingdom, Portugal, Switzerland, the Netherlands and Italy.

b. Notarization of the copy

The most simple way of document legalization is notary certification. List of countries which concluded mutual legal assistance treaties according to which the simple notary copy in country of issuance is sufficient for state bodies of Ukraine is as follows: Algeria, states from former Republic of Yugoslavia, Estonia, Kyrgyzstan, North Korea, Latvia, Lithuania, Mongolia, Azerbaijan, Albania, Belarus, Armenia, Bulgaria, Georgia, Kazakhstan, Cuba, Moldova, Poland (for Ukrainian documents Poland requires apostille), Turkey, Uzbekistan, Tadzhikistan, Russia (for Ukrainian documents Russia requires apostille), Romania, Slovakia, Vietnam, Turkmenistan, Hungary, Czech Republic (for Ukrainian documents Czech Republic requires apostille). Means that even if the country is in the list above as member of Apostille Convention, no apostille is needed if the mutual legal assistance treaty is concluded.

c. Legalization

Means classical legalization of document through embassy. If the country of official document issuance is not in any of the lists above, the legalization is needed. It involves Embassy certification, which is more time consuming. These are such countries as Abkhazia, Angola, Afghanistan, Bangladesh, Benin, Burkina Faso, Burundi, Bhutan, Vatican City, Timor East, Gabon, Haiti Guyana Gambia Ghana Guatemala, Guinea Guinea-Bissau, Djibouti Egypt Zambia Zimbabwe Indonesia Jordan Iraq Iran Yemen Cambodia Cameroon Canada Qatar Kenya Comoros Congo Korea D.P.R. Cote d’Ivoire Kuwait Lao P.D.R. Lebanon, Libyan Arab Jamahiriya, Mauritania Madagascar Malaysia Mali Maldives, Federated States of Micronesia, Myanmar, Nauru, Nepal, Niger, Nigeria, Nicaragua, United Arab Emirates, Pakistan Palau Palestine, Papua New Guinea, Rwanda, Saudi Arabia, Senegal, Singapore, Syria, Solomon Islands, Somalia, Sudan, Sierra Leone, Thailand, Taiwan, Tanzania, Togo, Tuvalu, Tunisia, Uganda, Philippines, Central African Republic, Chad, Sri Lanka, Equatorial Guinea, Eritrea, Ethiopia, South Ossetia, South Sudan, Jamaica.

Taxes from the deal:

In case of buying, buyer pay usually 1 % (there are two taxes paid  – duty 1 %  and pension fund tax 1 % from deal price, divided between parties). 

In case of sale, the following taxes are to be paid:

Residential estate, apartment:

– personal income tax 18 % (resident pays instead 5 %).

– military tax 1,5 %

BUT if individual (either resident or non-resident) owns property for more than 3 years and for the last 1 year didn’t sell any other real property, there is no tax. 

Additionally as was mention above, when the deal is made – should be paid duty 1 % and pension fund tax 1 % from deal price (usually these are paid 50/50 by seller and buyer). 

Commercial estate, offices etc:

– personal income tax 18 % (resident pays instead 5 %).

– military tax 1,5 %

The above rates applies to residents and non-residents independently on the term they own estate and the fact of sale of estate during a year.

Additionally, when the deal is made – should be paid duty 1 % and pension fund tax 1 % from deal price (usually these are paid 50/50 by seller and buyer). 

In case of rent. Individual pays from rent payments the taxes:

– personal income tax 18 %  – military tax 1,5 %

Individual should submit tax return annually till 1 of May of the following year (next one) and pay tax (PIT) till 1 of August of the following year. 

In case company rents from individual – it pays his taxes being its agent. Still individual is obliged to submit tax return (fine for not doing this is 170 UAH). 

When and if rental is to be transferred to non-resident owner abroad, withholding tax (at rate 15 %) should be applied.

2. The buyer is individual (either resident or Ukraine or non-resident having registered address in Ukraine), who is registered as private entrepreneur

In this case the property is advised to be bought on individual (not private entrepreneur). So the tax consequences in case of buying and selling will be the same as described above. 

But for rent, the private entrepreneur shall pay 5 % from income and also social tax (in 2018 it is 2457 UAH per quarter and changes once the Government changes minimal official salary).  

Private entrepreneurship (PE) doesn’t give rights to non-resident to become resident, to stay in Ukraine longer than 90 days per 180 days etc. 

3. The buyer is LLC

You may solely or together with partner register LLC, which will buy the real estate. At the moment you can buy share of LLC for nominal price, but we expect changes already in 2019. 

If non-resident invests more than 100 000 EUR per non-resident individual in share capital of LLC, this provides you the right to get either temporary or permanent residency in Ukraine. 

Corporate profit tax is 18 % and will be calculated based on income and expenses. 

Taxes on ownership

Residential estate, apartment:

The law provides in 2018 that the real estate tax should be paid in case the person owns apartment of more than 60 sq.m or private house of more than 120 sq.m. Or 180 sq.m. totally in case of owing both apartment and house. The tax rate is 1,5 % from minimal official salary (now it is 3723 UAH per month, so 1.5 is 55,84 UAH), per each meter above this minimal quantity of meters. In case the apartments are more than 300 sq.m and houses 500, the rate is plus 25000 UAH per each object.  

Commercial estate, offices etc:

The rate of real estate tax is conditional, depends on decision of local authorities (if there is no decision, there is no tax). The maximum rate is 1.5 % from official minimum salary (in 2019 it is 4173 UAH, 1.5% is 62.595 UAH) per meter.

4. Rent of real estate

The property can be rented by legal entity, representative office of foreign company or private entrepreneur (individual, who is the owner of property as an individual). There are some limitations on real estate, which can be rented by the private entrepreneurs. The private entrepreneur can provide this activity being on a common system of income tax (18+1,5% of tax from profit) or on 3rd group of single tax, which is 5 % from income.

The limitations regarding size of property starting from January 1, 2021 are as follows:

• rent of land up to 0,2 hectares;
• rent of residential property up to 400 sq.m.
• rent of non-residential property up to 900 sq.m.

Residential status

Please note that the above rates for residents and non-residents are stipulated in Tax Code of Ukraine, which also has definition who is considered to be resident. Here is tax residency matters, which is not equal to citizenship.

If a foreigner becomes tax resident of Ukraine at the date of sale, he is entitled to tax rates applicable to residents of Ukraine.

Out of definition it is clear that temporary residency by itself doesn’t provide the right to become tax resident of Ukraine. There are additional measures to be taken to become resident. We provide more detailed consultancy on this questions as our experts are tax lawyers and financial specialists.

Double Taxation Treaty 

DTT between Ukraine and the state of owner should be considered when income is to be tranfered from Ukraine to the seller or rentor abroad.

We would be pleased to consult you more in details for your particular case.

The Article is published here http://www.uadn.net/files/ua_hightech.pdf (page 138). Here is it updated according to 2018 law requirements.

The updated analytical report on development of Ukrainian IT industry from 2018 you can find here.

RECOMMENDATION #1: MAKE SURE THAT COPYRIGHT OWNERSHIP IS SPECIFIED IN A CONTRACT WITH THE DEVELOPER

Under Ukrainian law, a programmer may claim 50 % of property rights on a created computer program if not otherwise agreed in the engagement contract. This is provision of Civil Code of Ukraine, Article 430, which states that “Intellectual property rights of an asset created by order belong to the author and customer jointly if otherwise is not provided by the contract”. Thus the contract should include two other important clauses.

• Description of the property rights which are transferred. This is a detailed list of the rights which the exclusive rights owner should obtain. By law, no rights are transferred if there is no description of what exact rights are to be transferred.

• An authorship fee – which is formally a distinct payments for services – should be specified. Alternatively, you may use the formulation of “payments for services”, but specify that the authorship fee is included in this payment for services. It is important that the payment of the fee is actually made.

Without these clauses, the agreement on the transfer of exclusive IP rights can be voided. If you don’t have a direct contract with the author of the computer program, you have to be sure that the outsourcing company has one and that it provides for the rights to be transferred to you as the customer.

RECOMMENDATION #2: DO NOT AUTHORIZE THE EXECUTOR TO CREATE ANY INTELLECTUAL PROPERTY ASSET

To avoid risks, it may be more practical to stipulate in the provisions of the contract that no IP assets are to be created during services provision. The executor is to work on separate tasks, create and improve modules, but does not create the idea or develop the core of the computer program. Those separate working tasks are not the IP assets.

However, it is impossible to avoid creation of IP assets in the case of design works, when logos, icons and other visual object are created while developing a software product. It would also be advisable to conclude separate copyright agreements in case the idea of the computer program, application or other software product arose while working on another of your IT projects. In this case, the idea technically doesn’t belong to customer and conditions of its transfer should be negotiated between the parties.

RECOMMENDATION #3: REGISTER COPYRIGHT ON YOUR IP

In Ukraine, the same as in other European countries, and the USA, the international copyright laws rules apply. Those rules state that IP rights arise once the asset is created and no registration is needed for those rights to exist (Presumption of Authorship).

Nevertheless, when it comes into dispute, the registration document – called the Certificate of Copyright Registration – generally does matter, be it in Ukraine or in other jurisdictions. According to the Berne Convention of 1986, a title of copyright protection locally issued is valid in all convention countries, which includes 168 countries among which the USA and EU countries.

Copyright is treated distinctly from trademark protection, which requires registration in every country separately, whether you apply locally or by means of international application. This means that you may protect your IP rights in any country participating in this convention, but it would be more effective to protect them in the country of IP usage. Here is worth mentioning that in Ukraine IP is being registered as submitted, without substantial examination.

When it comes to a dispute, evidence of priority is to be presented by the parties. It is the opposite in the US, where the Copyright Office conducts examination of software code in order to detect if it contains protected IP of third parties. This makes US copyright protection more valuable for the foundation of evidence in the case of a copyright dispute.

ALTERNATIVES FOR ENHANCED IP RIGHTS PROTECTION

If you feel that the conditions offered by your IT service provider are not fully satisfactory to protect your interests and intellectual property, you may consider the following options.

Direct contract with team members

You may enter into direct, individual contracts with the developers who work on your project, thus establishing a more direct and personal responsibility towards you. In many cases, these developers are registered as individual entrepreneurs and thus legally independent from the Ukrainian company with which they collaborate. This model of work is legal and widespread in Ukraine due to its flexibility and lower taxation.

From a legal and tax perspective, the procedures and consequences for you and for the developers can be the same as in a standard collaboration with a Ukrainian company. The difference is that you will have to manage several contracts instead of one. Using this model, the Ukrainian company running the team should be remunerated through a separate agreement. Thus the financial model of work with the IT service provider will be fully transparent. To protect your commercial secrets, NDAs should be signed with the individuals as well as with the service provider.

Create your subsidiary in Ukraine

If, for strategic or other reasons, you need to fully control your R&D processes and assets produced in Ukraine, setting up your own local subsidiary can be an efficient solution. To set up your own company does not necessarily need to be an expensive legal item. You may be the founder as a foreign physical person or as a non-residential legal entity. The director is the executive body of LLC, often as a hired local for the position being completely dependent on your decisions as the founder.

Foreigners from designated 45 states can apply for registration of the Ukrainian electronic visa (e-Visa), issued for one-time entry into Ukraine with a tourist or business purpose for a period of up to 30 days.

Please note that due to temporary restrictive measures aimed at preventing the spreading of the severe respiratory disease caused by the novel coronavirus (COVID-19), E-Visa service thus will not be available for applicants up until early April 2020.

Due to usual course of making e-visa (after preventing measures due to COVID-19 will terminate), such an option will be available to foreigners from the following countries: 

Australia, Bahamas, Barbados, Bahrain, Bahrain, Bolivia, Bhutan, Vanuatu, Haiti, Guatemala, Honduras, Guinea-Bissau, Dominica, Dominican Republic, Dominican Republic, Cambodia, Qatar, Kuwait, Laos, Mauritius, Mauritius, Mauritius, Malaysia, Mozambique, Myanmar, Nepal, Nicaragua, New Zealand, Oman, Palau, Peru, Salvador, Samoa, Saudi Arabia, Seychelles, Saint Vincent and the Grenadines, Saint Lucia, Singapore, Suriname, Thailand, Timor-Leste, Trinidad and Tobago, Tuvalu, Fiji, Jamaica.

For e-Visa obtaining followings steps are to be done:

1. Register on the web-platform of the Ministry of Foreign Affairs evisa.mfa.gov.ua 
2. Fill out the visa application form online. 
3. Download a photocopy and scanned copies of documents: 
        – passports – a valid health insurance policy (with coverage of at least 30,000 euros); 
        – a document confirming the availability of sufficient financial support; 
        – a document confirming the tourist / business nature of the trip to Ukraine (hotel reservation / tourist voucher / travel services agreement / invitation of a legal entity registered in Ukraine, etc.). 
4. Pay the online consular fee (US $ 85) by bank card.

The decision to grant an e-Visa or a visa refusal is sent to the applicants by e-mail within 9 working days from the day of successful registration of the application form and payment of the consular fee. 

To enter Ukraine, you need to print the received e-Visa and present with the passport the border authorities of Ukraine (e-Visa is valid for entry to international border crossing points). 

On November 14, 2018 the Government of Ukraine adopted the following decision:

1. to abolish from January 01, 2019 issuance visas upon arrival in airports. For the foreigners of the respective 44 countries (see below) electronic visa (e-Visa) can be issued. At the same time the possibility remains to process all types of visas through the Embassy or Consulate of Ukraine;
2. to change from January 01, 2019 the fee for electronic visas (e-Visa) for entry into Ukraine from 65 to 85 USD;
3. to increase the number of purposes upon which the electronic visas (e-Visa) for entry into Ukraine can be issued. 

In addition to business and tourist purposes, from January 01, 2019  electronic visas (e-Visa) for entry into Ukraine for foreigners can be also issued for such purposes as private, medical treatment, conducting activity in the sphere of culture, science, education, sport, as well as for foreign mass media representatives with the aim of fulfilling their service obligations.

You can read more here https://evisa.mfa.gov.ua/Help. Support for applicants – evisa@mfa.gov.ua

In connection with quarantine which strarted in Ukraine on the 12th of March 2020, some temporary Migration rules had been introduced.

It’s necessary to mention, that these rules shall be applied to the foreigners and people without citizenship who stayed legally in the territory of Ukraine as of the beginning of quarantine measures, id est:

• those having Ukrainian temporary/permanent residence permit
• those staying in Ukraine for the duration of the valid visa
• those having their residence term duly prolonged

The temporary measures are as follows:

1. Foreigners and people without citizenship that have not been able to apply to the territorial Units and Departments of the State Migration Service of Ukraine to prolong the period of their stay in Ukraine AND/OR to exchange their permanent/temporary resident permits, WILL NOT BE PENALIZED for violation of the legislation on the legal status of the foreigners and stateless persons, IF such violations have occurred within the period of the quarantine.
2. Also it’s prescribed that during quarantine a processing and issuance of the documents which confirm citizenship of Ukraine or a special status of a person shall be carried out in the place, where the person has applied (before you should apply at the place of registration or planned registration).
3. From the date when the quarantine had been announced, the time frames for applications for administrative and other services and the terms of these services provisions, determined by the law, shall be paused. From the date of termination of the quarantine, these terms shall reset, taking into account the time elapsed before its termination. Simply talking there will be prolongation for the applying documents to the 3rd of April.
4. From 0.00 of 16th of March to 0.00 of 3rd of April 2020 all foreign citizens and people without citizenship will be prohibited from entering Ukraine.

The exception is made for affiliated diplomatic officials of Embassies of foreign countries in Ukraine, employees of missions of international organizations.

Also, Ministry of foreign affairs of Ukraine in particular occasions is entitled to issue individual permits to admission of foreigners. Prohibition to admission may be cancelled or prolonged depending on the situation of extension of coronavirus COVID-19 in the world.

Citizens of Ukraine and foreigners entitled temporary or permanent residence in Ukraine, are permitted to admission in Ukraine.

Please note that violation of rules of residence in Ukraine by foreigners and stateless persons usually causes inflicting of fines in the amount from hundred to three hundreds of individual income tax exemption (UAH 1700-5100 for the March 2020), in particular:

• Residing without the permits (temporary or permanent) Residing with the invalid documents
• Employment without proper work permit provided by the Laws of Ukraine
• Incompliance with stated order of movement and changing the domicile
• Evasion from leaving the territory of Ukraine after expiration of the proper terms
• Employment after arriving within the proper terms
• Violation of the rules of transits passing across the Ukraine.

Some of the above violations will be reduced according to described above temporary measures implied by government of Ukraine.

Our team of lawyers is ready to assist your business regarding of proper documenting of foreign citizens staying in Ukraine.

If you are the owner or manager of business, lawyer or accountant dealing with documentary support of the company, this article could be actual for you.

From the date of April 28, 2020 entered into force Law of Ukraine № 361-IX “On Prevention and Counteraction to Legalization (Laundering)of the Proceeds from Crime or Terrorism Financing, as well as Financing Proliferation of Weapons of Mass Destruction” (hereinafter referred – The Law № 361).

The Law № 361 imposed into existing companies the obligation to provide the State Registrar with actual information about Ultimate Beneficial Owner (hereinafter referred – UBO) within 3 months from the date of entry into force the Regulation that will approves the form of application and content of the ownership structure.

On the moment of posting this article mentioned Regulation hasn’t been adopted, consequently respective 3 months’ term hasn’t been started yet.

The Law № 361 amends The Law of Ukraine № 755-IV “On State Registration of Legal Entities, Individual Entrepreneurs and Public Organizations” (hereinafter referred – The Law № 755) by clause 17-1 and also created obligation for all companies (new and existing) to provide State Registrar with update information about UBO on a permanent basis every year within 14 calendar days from the date of state registration of the company.

The Law № 755 lay emphasis on company’s obligation to keep updated respective information about UBO, this means that if the ownership structure has changed, the company undertakes to notify with updated information the State Registrar within 30 business days from the date of such changes.

Moreover, if company decides to register changes, which should be included to State Register, along with filing relevant documents, company should either file update information about beneficiary or inform about absence of any changes in ownership structure.

If filed information were not full or inaccurate, company should refile corrected documents within 3 business days from the moment of discovery such inaccurate data.

Documents’ required

According to the clause 17-1 of The Law № 755 documents that requires for providing the information about UBO are the follows:

• application form;
• ownership structure;
• if the shareholder of the company is non-resident – the extract from the trade, banking, and court register of a non-resident legal entity of such entity’s country of location, – (apostilled or otherwise legalised in the country of issue, and translated into Ukrainian);
• notarized copy of identity document of UBO.

Ways of filing documents

Company could file documents in follows ways:

*in hard copy personally or postal;

*in electronic form through the portal of electronic services using digital signature

Finally, what consequences the company would suffer if it fails to comply with the law?

The Code on Administrative Offences of Ukraine imposed fine on manager of the company which fail to comply with above mentioned requirements of law. Amount of a fine is of 1000 to 3000 non-taxable minimum incomes (means 17 000,00-51 000,00 UAH).