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They are benefits. And from them?
What claims are there to investors in TOR and SPV in the Far East?
In 2018, the JSC Far East Development Corporation (KRDV, the managing company of the advanced development territories and the free port of Vladivostok) began to form the practice of fines for investors who received benefits in the Far East but do not fulfill their obligations to the state. EastRussia analyzed the arbitration practice of last year in order to understand what claims the state may have against business if events develop within the framework of preferential regimes.
The essence of TOR, we recall, is that the management company undertakes to build the infrastructure to the sites where the business, in turn, is obliged to set up production. The mutual obligations of the parties are fixed in the agreements on the basis of which the resident investor is entitled to tax and other benefits. Thus, the state invests in the construction of networks, roads and is ready for the first time to collect less taxes on the basis that the business will build something and thereby create a tax base that will pay for the budget in the future. Of course, if the business project is stalled or is being implemented with a delay, the government’s plans to return the invested funds are violated.
The Law on TOR provides for four significant violations of the agreement, on the basis of which the CCDA may file a lawsuit with a lawsuit for the early withdrawal of the investor’s status of resident. This is “non-implementation by the resident of the activities stipulated by the agreement” during 24 months from the date of its signing, failure to submit project documentation to the management company for examination, lack of investment in the amount and within the time limits stipulated by the agreement, and opening of a branch or representative office outside the TPA.
They began to punish residents with a ruble through filing claims for early termination of agreements and the recovery of penal 0,01% of the amount of the declared investment for each project (such sanctions were enshrined in the agreements of the DPR and residents). The resident may withdraw from the TOR or SPV regime ahead of time and himself, initiating the termination of the agreement, and the companies began to actively use this right as reported EastRussiasince the summer of 2017. State represented by the KRADV took up the cleaning of the rows enjoying benefits in the Far East since the summer of 2018-th.
The first from the list of residents at the initiative of the state was the Far Eastern Agricultural Company LLC (Mikhailovsky TOR), which pledged to build several livestock farms with 9,1 billion rubles, but since 2016, it has not been able to provide project documentation to the DFA. The company got off with just the termination of the agreement. A similar story happened with OOO Dalstroytorg (TOR Kamchatka), who promised to invest 50 million rubles. The company also did not lose anything, except for the court fee, which, according to the law, is paid by the losing party.
But to the next in the list of retiring CRDV decided to apply penalties for non-performance of obligations of the investor. Epsilon-2 LLC (resident of the KORSOMOLSK Tori) and Samarga-holding LLC (the Khabarovsk Tor) became defendants in the lawsuits. Samarga Holding has committed itself to invest 5,99 billion rubles. in the logistics complex, Epsilon-2 - 7,17 billion rubles. in power machining. KRDV demanded from the first company 599,5 thousand rubles. fine, with the second - 717,5 thousand rubles. The Primorsky Territory Arbitration Court upheld the first claim in August 2018 of the year, and the Moscow Arbitration Court the second - in November of the 2018.
KRDV also won a lawsuit against Epsilon-2 for the recovery of arrears of land rent in TOR: in November last year, the Primorye Arbitration Court decided to recover from the company in favor of 581,4 corporation thousand rubles. And in December, 2018, the corporation filed a lawsuit against Epsilon-2 in the Moscow Arbitration Court, in which it requests that the company be fined already 7,175 million rubles. A preliminary trial is scheduled for February 20.
In July 2018, the KRDV filed two lawsuits against Zaimka LLC, a resident tenant of a land plot in the Bolshoy Kamen ASEZ, who owed money for the land. The corporation asked the court in one lawsuit to collect the arrears in payments and terminate the lease agreement, and in the other - to terminate the agreement on the conduct of activities in the TOP and collect a fine of 6 rubles. The court did not terminate the lease because the KRDV did not comply with the legal formalities when notifying the defendant, but it satisfied all the other requirements of the corporation.
According to the file of arbitration cases, after these lawsuits, during the year 2018, the KRJV went to court as a plaintiff again 25 times. If the corporation’s claims to the authorities (usually filed in the protection of investors due to delays in the allocation of land) and designers (who do not comply with the deadlines for preparing engineering and design solutions) are not taken into account in this array, then the list of claims against residents will remain the same: failure to pay lease and non-compliance with the terms of the agreement.
Thus, the proceedings are still ongoing in relation to Ariel LLC, Russkaya Voda LLC, Lausor Product LLC, Ledstroy LLC and several other residents. And in January, the 2019-th KRDV filed a lawsuit against Khabarovsk Torex LLC, the owner of the Amurstal plant (former Amurmetal) and the initiator of the project of the metallurgical mini-plant in Khabarovsk. The sum of claims is almost 24,5 mln. Rub., The preliminary hearing on the case is scheduled for February 18.
EastRussia will continue to monitor developments.