Regulation of leasing in the Kyrgyz republic

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American university of Central Asia

Regulation of leasing in the Kyrgyz republic

Anvar kyzy Saikal,

candidate of economic sciences

Kyrgyzstan, Bishkek

Abstract

Financial lease is one of the most useful and valuable tools for stimulating real sector of economy like agriculture, construction or healthcare. Moreover, it helps to overcome a gap between financial institutions and production industry by providing convenient, flexible and less risky channel of financing. There is no need for additional collateral, since leasing object itself serves as collateral; moreover, in combination with longer terms of repayment it creates favorable conditions for SMEs development as well as development of poor countries and countries with transitional economies.

Leasing is considered as one of the best tools for stimulation of real economy and financial sector; however it has not been become widespread in the Kyrgyz Republic. In order to fully understand the problems of leasing implementation in Kyrgyzstan it is necessary to examine its legal base concerning the leasing regulation.

Keywords: leasing, leasing regulation, Kyrgyz Republic.

Анвар кызы Сайкал. Регулирование лизинговой деятельности в Кыргызской республике

Аннотация. Финансовый лизинг является одним из самых полезных и ценных инструментов для стимулирования реального сектора экономики, такого как сельское хозяйство, строительство или здравоохранение. Предоставляя удобный, гибкий и менее рискованный канал финансирования, это помогает преодолеть разрыв между финансовыми институтами и производственной отраслью. Несмотря на то что, лизинг считается одним из лучших инструментов для стимулирования реальной экономики и финансового сектора, он не получил широкого распространения в Кыргызской Республике. Чтобы полностью понять проблемы реализации лизинга в Кыргызстане, необходимо изучить его правовую базу в отношении лизингового регулирования.

Ключевые слова: лизинг, регулирование лизинговой деятельности, Кыргызская Республика.

1. Definition and types of leasing

Leasing is defined differently from country to country, and the conditions of lease implementation also vary. Therefore, it would be more accurate to look at leasing from the financial standpoint, which is fairly constant throughout the world. The commonly accepted definition of leasing is “a contract between two parties, whereas one party (the lessor) provides an asset for usage to another party (the lessee) for a specified period of time in return for specified payments” (IFC Ukraine, 1998). In other words, leasing is a contractual agreement between the lessor and the lessee where the latter can use an asset (such as property, plant or equipment) for a specified period of time paying agreed and usually periodic cash payments to the owner of that asset. In addition, both the lessee and the lessor must confirm the terms of the agreement for the lease to make it valid. The basic proposition here is that the lessor earns profits from the use of leased asset not from their ownership. Leasing is a generic term used to express a broad range of lease types. However, for accounting and reporting purposes, one can generally classify lease transactions as financial and operating leases since they have completely different purposes to be applied. This classification is based on the degree to which risks and rewards attributed to ownership lie with the lessor or the lessee as illustrated in Figure 1.

Figure 1. Classification of leasing. This figure illustrates classification of leasing transactions based on certain parameter - degree to which risks and rewards pertain to the lessee

Financial lease is «a form of credit arrangement including certain payments for a definite period of time in exchange for the use of an asset for most of its useful life with an agreement or option for the eventual acquisition for ownership» (IFC Ukraine, 1998). Also called as a capital lease, financial lease implies that the owner of an asset - the lessor, who can be a manufacturer as well as a financial institution, grants the rights of use (including corresponding risks and rewards) to the buyer of the asset - the lessee. The lessee, in turn, shall make periodic cash payments to the lessor that cover most of the price of the leased asset and get to use it for most of the asset's useful life. At the end of the agreement, the lessee can have an opportunity to leave the asset by purchasing it at reduced price, since the asset's economic activity was greatly covered. Therefore, the characteristics that distinguish financial leasing from other types of rent include:

- The goal of the lessee is either to acquire the asset or at least use the asset for most of its economic life.

- Rights and responsibilities for «economic ownership» of the leased asset are borne by the lessee. Economic ownership refers to bearing the rewards and risks associated with possessing and using an asset. This includes the risks of accidental ruin or damage of the asset.

- The lessee intends to cover all or most of the full cost of the asset during the lease term and therefore is likely to assume title for the asset at the end of the lease term.

- The lessee may or may not buy-out the leased asset at the end of the lease (IFC Ukraine, 1998).

Because of these characteristics leasing is considered to be an alternative way of financing of the equipment purchases, as opposed to bank loans.

Operating lease, accordingly, is «a contract that allows for the use of an asset, but does not convey rights of ownership of the asset» (Investopedia US, 2012). Operating lease implies that, inversely to financial lease, the risks and rewards are stayed at the lessor of an asset. The lessor shall pay for the maintenance of the asset, and after termination of the contract the asset still is in a good condition that can be further used. That is explained by the shorter period of leasing that covers only the minor part of the useful life of the asset. In other words, operating lease represents simple rent of goods that can be easily terminated before the end of the contract. Therefore, operational lease is an off-balance-sheet transaction. The differences between financial lease, which is also called as leasing, and operational lease or rent are summarized below in table 1.

Table 1

Comparison of financial and operating leases

Note: From “The effectiveness of leasing as a method of financing the development of a company”, by Wysіocka E. & Szczepaniak W., 2012, Polish Journal of Management Studies, 6, pp. 131-132.

Table clearly demonstrates that financial lease is more complex type of economic activity rather that simple rent since it bears more risks and benefits associated with the ownership of an asset. Therefore, in this paper, only the features of financial lease (also referred as leasing) will be discussed.

2. Legal regulation of leasing in the Kyrgyz Republic

History of financial lease service in Kyrgyzstan begins from 2002, when the national government approved the Law on Financial Lease (Leasing). In fact, this event made it possible to handle the first leasing operation in 2003 (Union of Banks of the Kyrgyz Republic [Union of Banks], 2013, p. 1). Adjustments and amendments consequently made in the Kyrgyz legislation, namely in Civil Code and Tax Code, from 2003 to 2012 created the necessary conditions for the further development of a leasing market in Kyrgyzstan (Union of Banks, 2013, p. 1).

Moreover, since financial reporting for Kyrgyz companies is based on International Financial Reporting Standards according to Law on Accounting, International Accounting Standard 17 Leases is considered as another regulatory framework for performing, recording and reporting financial lease operations (Law of the Kyrgyz Republic on Accounting, 2002). Therefore, the leasing market's normal functioning in Kyrgyzstan is dependent on several interrelated regulatory requirements, which are summarized in Figure 2 below.

Figure 2. Regulatory framework of leasing in Kyrgyzstan. This figure illustrates basic legal documents that regulate leasing activity in Kyrgyzstan

According to Certified Tax Consultant Aramyan (2004), difficulties in understanding of financial leasing operations come from different accounting, legal and tax interpretations of this type of rent that leads to errors in accounting as well as in taxation. Thus, a careful examination of legal provision for leasing is needed. In particular, articles of Civil Code related to financial lease definition, Law on Financial Lease (Leasing), relevant articles of Tax Code and IAS 17 Leases should be investigated.

2.1 Civil Code of the Kyrgyz Republic

leasing economy financial kyrgyzstan

Civil Code of the Kyrgyz Republic is one of the core legal documents, which deals with the main areas of private law including rent and financial leasing. Paragraph 6 “Financial Lease” in Chapter 27 “Property rent (Rent)”, Part II of Civil Code of the Kyrgyz Republic contains the basic regulatory requirements regarding leasing contracts, the object of leasing, the procedures necessary to transfer the object of leasing, transmission of risks, and responsibilities of the seller. This paragraph identifies the three parties involved in leasing - the lessee, the lessor and the seller of leased property. Therefore, in Kyrgyzstan only a three-party relationship mechanism of leasing is permitted, which restrains execution of sales-type lease contracts. Then, Civil Code shows that the property of leasing can be any inconsumable goods used for entrepreneurial activity, and land except for natural objects (Civil Code of the Kyrgyz Republic [Civil Code] art. DCIII, §6).

Moreover, article 603 of Tax Code indicates that according to contract on financial lease, lessor is obliged:

1. To acquire (purchase) the stated property from the seller, indicated by lessee, and

2. To render to the lessee this property for temporary use for entrepreneurial purposes (Civil Codeart. DCIII, §6).

Thus, the law defines that ownership right for property pertains to lessor, while the right of use is transferred to the lessee. In fact, the lessor acts both -- as the owner by buying the property and as the crediting agent by granting this property to the lessee. The leasing company also can choose the property for the lessee itself if it possesses the necessary expertise in a field. In such case, the lessor incurs additional liability to provide an adequate quality of the leased property (Civil Code art. DCIII, §6).

Next, paragraph 6 of Civil Code explains the risk-transfer procedure connected with the transfer of object of leasing. In accordance with article 607, at the moment of assignation of the lease property to the lessor from the buyer, all the risks connected to accidental destruction or damage of this property are transferred to the lessor (Civil Code, art. DCVII, §6). Therefore, the main condition of the financial lease, where the lessee bears a substantial part of risks and rewards, is maintained by national legislation.

Therefore, the paragraph 6 of Civil Code of the KR sets the general mechanisms for executing leasing operations. Civil Code serves as a universal regulatory base for leasing relationships in the Kyrgyz Republic. However, its conceptual and practical foundation is not broad enough in order to fully comprehend the mechanism of functioning of the leasing market. Thus, it is necessary to study the other legislative documents regulating this type of crediting activity.

2.2 Law on Financial Lease (Leasing)

Law on Financial Lease (Leasing) provides more exhaustive conceptual background of leasing rather than Civil Code. However, Civil Code and Law on Leasing have similar view on financial leasing transaction, thus, simplifying its regulation. Enacted on July 23, 2002 № 121, Law in detail defines indispensible conditions for a financial lease practical realization.

Law on Financial Lease (Leasing) begins with the definition of leasing given as “the sum of economic and legal relationships, occurring due to realization of lease contract, including acquisition of a lease object,” and explains characteristics of the leasing contract (Law on Financial Lease (Leasing) [Law on Leasing] art. II).

Moreover, the Law extensively describes the object of leasing and the parties involved in it. In particular, there is specified what can and cannot be referred as the lease object, and who shall be referred as lessee, lessor and the seller.

It is worthwhile to notice that Law on Financial Lease firstly introduces the concept of leasing companies - “commercial company (resident or non-resident of the Kyrgyz Republic), executing functions of the lessor in accordance with law of the Kyrgyz Republic and its own founding documents” (Law on Leasing art. V). These could be national or foreign companies that specialize on providing financial lease service.

In addition, Law specifies the nature of leasing payments that represent:

1. reimbursement of all or the greatest part of purchase costs made by the lessee to the lessor, and other costs connected with delivery and installment of the leased object, and

2. interest income of the lessor (Law on Leasing art. XXI).

Thus, interest is the only source of income for the lessor from conducting leasing transactions. Therefore, by providing conceptual basis that satisfies the generally accepted idea of a financial lease, Law on Leasing creates the necessary normative base for proper understanding of leasing, and, thus, its proper implementation.

Legal rights and obligations

Next, the most essential legal rights and obligations of the lessor, lessee and the seller are provided in the Law. Basically, Law on Leasing of the Kyrgyz Republic legally protects such rights like right of the lessor to claim on lease payments, right of the lessee to possess and use the leased property. Moreover, it defines obligations for each of the party such as obligation of the lessor to acquire from the seller and transfer to the lessee the object of leasing, and notify the seller about the purpose of the purchase, and obligation of the lessee one's own expense to implement the technical service, capital and current maintenance of the leased object and return the object after termination of the leasing contract in an appropriate condition (Law on Leasing art. X-XI).

Regarding the seller, there are no additional rights or obligation for seller in case of leasing. They are the same as for the sale contract. However, in Law on Leasing there is a notion that the seller shall not be simultaneously responsible to the lessor and the lessee relating the one breach (Law on Leasing art. XII). It means that the seller should take responsibility either to the lessor or to the lessee, not to both of them. Thus, each of the party involved in leasing has its own rights that might be exercised and obligations that need to be followed in order to suitably carry out a leasing operation.

Insurance of leasing

In addition, the question of insurance of leasing is covered in Law on Leasing. Notably that this insurance is made on a voluntary basis (Law on Leasing art. XIX). It means that in insurance contract on a leased object can be established any legal conditions satisfying the interests of the parties involved. Moreover, they can agree on a flexible tariff system, which is far more advantageous provision than in a compulsory insurance. Thus, legal base for the insurance of leasing and the other issues is provided in Law on Financial Lease (Leasing). Therefore, it is considered as the principal normative document that regulates the leasing market in Kyrgyzstan.

2.3 Tax Code of the Kyrgyz Republic

Taxes represent an extremely powerful regulatory tool that could either favor or impede development of any type of economic activity. Leasing is not an exception. It is worthwhile to notice that before amendments in 2013, Kyrgyz Tax Code did not provide a separate regulation for leasing operations. Moreover, tax system was designed in a way that significantly hindered growth of leasing market. In 2011 there was initiated a project of “Law on bringing in changes and additions to several legal acts of the KR” that offered major changes to Tax Code for the better treatment of leasing, which was accepted by Jogorku Kenesh (parliament of the KR) on February 16, 2012 and joint into force in 2013 (Union of Banks, 2013). However, current tax regulation of financial leasing still has some uncertainties. Thus, in order to better understand the problems of leasing in Kyrgyzstan it is necessary to study Tax Codes before and after adjustments regarding definition of leasing, taxation of the lessor, taxation of the lessee and taxation of leasing companies.

First of all, according to Tax Code (2008), financial leasing is a special type of rent relationships concerning:

1. Transfer of property, based on

2. Financial lease contract,

3. Concluded in accordance with legislation of the Kyrgyz Republic (art.CLIII, point 28).

Tax legislation has not changed the definition of leasing and still treats this operation as a financial lease only in the case if a respective contract is concluded consistently with the Kyrgyz legislation. Thus, Tax Code does not pay much attention to accounting (economic) nature of leasing. This may create situations when legal, accounting and tax interpretations of leasing are not consistent (Aramyan, 2004).

For taxation purposes financial lease is viewed as a purchase of fixed assets by the lessee, so the latter is considered as an owner of the leased property and payments for leasing - as payments for credit to the lessor (Tax Code, of the Kyrgyz Republic [Tax Code] art. CLIX, amended in 2013). However, such treatment of leasing is not quite correct in a sense that the fixed assets may or may not be acquired by the lessee at the termination of the contract. This is a clear example that illustrates how different normative bases differently interpret lease transactions. Therefore, a recent change in taxation has left uncertainties concerning accounting, tax and legal treatment of leasing transactions.

Taxation of the lessor

Tax Code used to impose10% income tax on leasing transactions before amendments of 2013 year. In recently amended Tax Code there is an article 189 Non-taxable income, which states that income derived from the contract of financial lease on realization of fixed assets is not charged with income tax for four years until 01.01.2017 (Tax Code art. CLXXXIX, amended in 2013). In 2017, income tax in amount of 10% for leasing operations would return again. Since income of the lessor actually represents interest payments made by the lessee, these payments are exempt from the tax now, as demonstrated in Table 2. This temporary preference for leasing transactions was aimed to stimulate lease market growth in Kyrgyzstan.

Furthermore, one of the main reasons why leasing was not so popular in our country was double taxation. According to previous, not amended Tax Code of the Kyrgyz Republic from October 17, 2008 there were two types of VAT in amount of 12% that, if relevant conditions were present, must have been paid in terms of leasing:

1. VAT on delivery/import, when the lessor initially purchased the asset, and

2. VAT on delivery under leasing contract, which were imposed again on the owner of the property - the lessor (Tax Code art. CCXLI, 2008).

The lessor, irrespective of liabilities on VAT on import, must have repaid VAT on delivery, which implied double taxation on the lessor. Before 2013, the lessor shall have paid two same VAT taxes that inevitably increased the cost of the lease contract, thus, making it less attractive. That is why simple loans were more preferable than leasing in the past. However, recent changes in Tax Code have eliminated double taxation. Thus, from 01.01.2013 delivery of objects under lease contract is exempt from VAT on delivery (Tax Code art. CCXXXI, amended in 2013). Only VAT on delivery/import to the lessor is left, that reduces the cost of leasing contracts.

Table 2

Changes in tax treatment of the lessor

Finally, interest income earned from the financial lease contract was a subject of sales tax in amount of 2%. However, since 01.01.2013 it will not be subjected to sales tax according to article 316 of the new Tax Code (art. CCCXI, amended in 2013). This was an additional stimulus to make leasing operations more attractive for potential lessees. In total, income tax, double VAT and sales tax before changes in taxation considerably raised price of leasing in comparison with the other available financing possibilities like crediting. The recent changes in tax preferences of leasing were aimed to solve this problem and give leasing market favorable conditions for rapid and considerable development.

Taxation of leasing companies

Before 2013, Tax Code did not provide special treatment of leasing companies. Neither it did provide the definition of leasing companies. Probably, that is why there are still no leasing companies in the Kyrgyz Republic (Union of Banks, 2013). Nowadays, Tax Code has radically changed its approach regarding financial lease operations. In 2013, taxation of leasing companies has been introduced. At first, leasing company should comply with the following definition: “Leasing company - national company, branch and/or representative office of a foreign company, with not less than 90% of income derived from contracts on financial lease (leasing) on realization of fixed assets” (Tax Code art. CLIII, point 35, amended in 2013).

Moreover, according to amendments in Tax Code (art. CCXII, point 9, amended in 2013), leasing companies will not be imposed income tax beginning from 01.01.2013 until 2017 when income tax would become 5% until 2021, which is two times less than normal rate. Leasing companies, though, would be in advantageous position in comparison with banks, which interest income from leasing transactions would be subjected to 10% income tax. Obviously, such preferences are made in order to provide favorable opportunities for leasing companies that, in turn, would stimulate real sector of national economy.

Taxation of the lessee

On the contrary, under tax legislation, lessor is viewed as the owner of the leased object. Therefore, tax treatment of the lessor comes to allowances for deduction of amortization, interest expenses and maintenance expenses. To illustrate, the lessor can deduct maintenance expenses for the leased property in amount of not more that 15% of the property's taxable value (Tax Code art. CCIII, amended in 2013). Thus, taxation of the lessee is quite simple as it similar to taxation of any other property owner.

Taxation of foreign companies-lessors

Concerning interest income of foreign companies-lessors, not connected with permanent entity in the Kyrgyz Republic, tax rate for them was established in amount of 10% that shall be paid by a leasing company (Tax Code art. CCXXII, point 1, 2008). This created double-taxation for the foreign-company income tax should have been paid both in Kyrgyzstan and its home country. Therefore, this was another illustration of the obstacle in attracting foreign investments to national economy. However, in the light of the recent changes in Tax Code (art. CCXXIII, point 5, amended in 2013), the leasing company, as a source of payment of income to foreign company, not having permanent entity in the KR, shall be subjected to 1% tax on paying income in terms of dividends, interest, work/service revenue, and 0% on copyright and royalties. These preferences are made in order to inject foreign capital in national economy, especially in such demanding and capital-intensive industry as leasing. However, such loyal treatment of leasing companies with foreign capital will be in effect until 2017. After that date, foreigners would again be imposed 10% income tax.

In addition, the government of the Kyrgyz Republic included an article in Tax Code, called as Removal of Double Taxation, which imposed an offset of the taxes, paid in the foreign country if there exists Agreement on Removal of Double Taxation between Kyrgyzstan and this foreign country (Tax Code art. CCXX, 2008). The Agreement is signed with 22 countries, including China and Russia (Ministry of Economics of the Kyrgyz Republic, 2012). So, the foreigners from these countries may engage in lease and other types of activities in Kyrgyzstan and not pay or pay less local taxes, depending on the amount of their home taxes paid. This agreement was another step forward to attract foreign capital. However, the true impact of such amelioration of taxation for foreigners needs to be further investigated in order to make relevant conclusions regarding the positive or negative effect of such discrimination of the foreign lessees.

Therefore, Tax Code of the Kyrgyz Republic used to treat leasing as a type of credit activity and to design regulation in accordance with this concept. Due to an absence of a separate regulation for financial lease, there were certain problems in successful development of leasing services in the country, which would be discussed later. New treatment of leasing, though, is aimed to correct those problems and provide great incentives for further leasing development in the country. The question now is how effectively those changes can be implemented on practice.

2.4 International Accounting Standard 17 Leases

International Financial Reporting Standards represent principal rules for a conduct of accounting in Kyrgyzstan. Therefore, International Accounting Standard №17Leases designed by International Accounting Standards Board regulates the accounting issues of financial lease in our country. This standard sets general definitions in respect of nature and features of financial and operational lease, and distinct these two concepts from one another.

According to IAS 17 (2012), financial lease is “a lease that transfers substantially all the risks and rewards incidental to ownership of an asset. Title may or may not eventually be transferred.” Here, accounting understanding of leasing substantially differs from what legal documents of the Kyrgyz Republic provide. As it was seen, Civil Code, Law on Leasing and Tax Code view leasing as a contract first, and only then regard risks and rewards pertained to this contract, thus, undermining accounting (economic) nature of financial leasing. Such different interpretation of leasing may create difficulties in understanding of true nature of leasing and, thus, lead to errors in accounting and taxation.

Thus, IAS 17 (2013) treats a lease payment as a repayment of principal and finance income (interest) to reimburse and reward the lessor for its investment and services. It means that out of lease payment only the interest represents the lessor's income. However, recent version of Tax Code (2013, art.153, p.6) introduces new concept as earnings from financial lease contract on realization of fixed assets. Further, Tax Code (2013, art.4, p.5) clarifies that earnings represent cash and cash equivalents, derived from realization of goods, work, and services. However, contract on financial lease is not the contract on realization of fixed assets (purchase/sale) neither in legal nor in accounting state (Aramyan, 2004). Thus, do these earnings mean total sum of payments, obtained by the lessor? But in such case, Tax Code (2013, art.159) already has definition for lease payments as “payments for credit,” and Law on Leasing provides the same interpretation as IAS 17. Obviously, inconsistency throughout legal documents concerning financial lease recognition and treatment creates difficulties for companies to identify and correctly reflect leasing transactions.

Finally, IAS 17 (2013) states that in the statement of the lessor «finance lease gives rise to depreciation expense for depreciable assets as well as finance expense for each accounting period.” It means that lessor is the only one who shall accrue depreciation on the leased asset and then expect tax deductions on such amortizations. However, since national legislation treats the lessor as the owner of the leased asset, it intrinsically implies that he or she has a right on tax deduction for depreciation. On the other hand, in article 201 of Tax Code (2013) it is mentioned that under transfer of assets for financial lease, these assets must be deducted from the tax value of the group. Consequently, does it mean that the lessor shall at first recognize and then exclude the asset from the tax value group for depreciation? Aramyan (2004) argues that in the result of such tax operation the lessor would not necessarily have zero influence on income tax. Probably, such manipulations can leave space for creative accounting. In addition, the whole operation is not valid from the accounting standpoint. Thus, flaws in conceptual understanding of financial leasing create considerable difficulties for practical implementation of this type of rent.

Despite the fact that leasing has been introduced 11 years ago, there are still uncertainties in its legal regulation. Civil Code, Law on Leasing, Tax Code and IAS 17, which were designed to treat leasing from normative, tax and accounting standpoint, in fact provide inconsistent interpretation of leasing transaction. Moreover, before 2013 there was unfavorable tax treatment of lease operations, which imposed double taxation on leasing transactions. That is why there have been made changes in legislation in 2013 in order to encourage financial lease widespread implementation in the Kyrgyz Republic.

References

1. Aramyan, I. (2004). Financial leasing again. Nalogi i Pravo 3.

2. Civil Code of the Kyrgyz Republic. (2009). Bishkek, Kyrgyzstan.

3. Law of the Kyrgyz Republic on Accounting. (2002). Bishkek, Kyrgyzstan.

4. Law of the Kyrgyz Republic on Financial Lease (Leasing). (2002). Bishkek, Kyrgyzstan.

5. IFC Ukraine Leasing Advisory Project. (1998). Leasing in Ukraine. International Finance Corporation (IFC).

6. International Accounting Standards Board (IASB). (2012). International Accounting Standard 17: Leases. International Financial Reporting Standards Foundation (IFRS).

7. Tax Code of the Kyrgyz Republic. (2008). Bishkek, Kyrgyzstan.

8. Tax Code of the Kyrgyz Republic. (amended in 2013). Bishkek, Kyrgyzstan.

9. Union of Banks of the Kyrgyz Republic. (2013). Leasing in Kyrgyzstan.

10. Wysіocka E. & Szczepaniak W. (2012) The effectiveness of leasing as a method of financing the development of a company. Polish Journal of Management Studies, 6, 131-132.

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