New Conditions for Acceptance of Payments from Individuals by Payment Agents in favour of Third Parties.
LEGAL UPDATE No. 49.
Goltsblat BLP advises that Federal Law No. 103-FZ, dated 3 June 2009, “On Acceptance by Payment Agents of Payments from Individuals” (hereinafter – the “Federal Law”) has been adopted and will come into force on 1 January 2010.
The Federal Law limits admissible operations with funds belonging to individuals conducted by parties that are not credit institutions and qualify as payment agents.
Let us recall that, at present, non-credit commercial organisations may, without having a banking licence or opening a bank account, conduct a banking transaction to transfer funds on the instructions of private individuals in payment for telecommunications services, housing and public utilities (provided the parties accepting the funds from the private individuals and the recipients of these funds have appropriate contracts with credit institutions). In other cases, acceptance of payments from individuals by non-credit institutions entailed a risk of these activities being recognised as unlawful, having been conducted without a banking licence.
The Federal Law removes this risk by expressly allowing legal entities and individual entrepreneurs acting as payment agents, subject to certain conditions, to accept funds from individual payers in favour of the following suppliers:
legal entities and individual entrepreneurs -- so that the payers might discharge their monetary obligations before any legal entities (apart from credit institutions) and individual entrepreneurs for delivery of goods (work or services);
state authorities, local governments and budget-financed institutions under their jurisdiction within the scope of their functions, as established by the legislation of the Russian Federation.
The Federal Law does not apply to certain types of payment (in favour of foreign legal entities, by wire transfer; in accordance with the legislation on banks and banking, etc.).
In addition, the activities allowed by the Federal Law are subject, in particular, to the following conditions:
the Russian Government may establish a list of goods (works, services) in payment for which a payment agent is not allowed to accept payments from private individuals;
institutional payment agents may act either as payment operators, for which purpose they must sign an agreement with the supplier for acceptance of payments from individuals, or as payments subagents, for which purpose they must sign a payment acceptance agreement with the payment operator (not the supplier); individual entrepreneurs may only act as payment subagents;
performance of settlement obligations by a payment operator towards a supplier must be secured by a penalty, pledge, lien on the debtor’s property, surety, bank guarantee, security deposit, civil liability insurance or otherwise, as agreed by them;
a payment operator is covered by the requirements of the legislation on combating legalisation of criminally derived proceeds (money-laundering), including the obligation to register with the competent authority and to identify the individual making the payment in cases prescribed by law; a payment subagent may not accept payments that require identification of the paying individual;
when accepting payments, a payment agent has to use a cash register and comply with the requirements of the legislation concerning use of cash registers for cash settlements.
The Federal Law allows payment agents to charge the payer an agreed fee.
Payment agents may use payment terminals to accept payments. The Federal Law contains a number of mandatory requirements applicable to such terminals. One of these is that such terminals have cash registers that, in turn, meet all the requirements of the legislation of the Russian Federation concerning cash settlements. Another requirement is that such terminals may not be used for accepting payments that, in accordance with the legislation on combating legalisation of criminally derived proceeds (money-laundering), require identification of the paying individual.
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