Powerless banks vs new scheme of withdrawing assets through arbitration court

Powerless banks vs new scheme of withdrawing assets through arbitration court
Scammers circumvent the ban of the Central Bank of Russia

Attackers are trying to unlock payment of imports at an inflated price through court. The banking sector informed of a new scheme for the withdrawal of assets and tax evasion.

Scammers figured out how to circumvent the banning of banks to buy goods abroad at an inflated price. This is reported by RBC with reference to its sources in the banking sector.

For many years banks have been struggling with a scheme to withdraw funds abroad by buying goods at an inflated price. Earlier they fought with the 'commodity' scheme  the following way: banks blocked operations for payment of goods, if the customs declarations of resident importers had a note of the Federal Customs Service (FCS) about "a sign of overstating the value of goods imported into the territory of the Russian Federation". Blocking such operations credit institutions were guided by the recommendations of the Central Bank as of 05.05.2015 №12-МR. However, the attackers found a way to conduct such transactions through the intervention of arbitration bodies.

Since the delivery of goods is confirmed by the customs, and payment for it does not pass, the supplier applies to the Russian arbitration court. At the same time, the inflated value of goods can not be challenged in court (because the supplier and the customer have agreed).

"Consideration of claims for recovery of fees under contracts in arbitration courts is of a competitive nature. In the civil process the court listens to the parties and evaluates the evidence submitted by them, without trying to establish an objective truth. As a consequence, the court will never intentionally establish the fact of overstating the value of the goods under the contract," explains partner of Pepelyaev Group Roman Bevzenko.

Therefore, the court often makes a decision in favor of the plaintiff, and the swindler, having  the official decision of the courtin his hands, comes to the bank. Employees of a credit organization do not have the right to disobey the court decision, in connection with which they unlock the account, and the money goes abroad.

RBC applied to several departments at once, but the answer came only from the Ministry of Justice (it oversees the work of courts) and the FCS (controls foreign economic activity). The Ministry of Justice stated that the issue of combating fraudulent schemes is not within the competence of this Ministry.

According to the representatives of the FCS, their employees are closely cooperating with the Central Bank, due to which all declarations for imported goods are carefully checked for inaccurate information and overpricing. According to customs data, thanks to such a policy for 2016 the volume of such operations decreased threefold in terms of the number of declared goods (DT, from 366 to 115 DT), in terms of the sum - more than 18 times (from 170 billion ($3 billion) to 9 billion rubles ($159.8m).

As the Deputy Head of the National Council of the Financial Market Alexander Naumov told the publication, the scheme for withdrawing funds through expensive goods has become especially active recently, taking into account that other schemes, in particular, the so-called Moldovan (withdrawal of funds through decisions of Moldovan courts on fictitious disputes) and so-called Kazakh (fictitious import of goods into the countries of the Customs Union), came under tight control.

According to lawyers, it is very difficult to combat the 'commodity' scheme, and even banks are powerless in this case - they do not have the appropriate authority. Moreover, it is impossible to prohibit businessmen from buying expensive goods by law. It is about the provisions of the Constitution of the Russian Federation, which states that an entrepreneur himself assesses the effectiveness and appropriateness of each transaction, and also takes all possible risks.

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