Lawyers: re-privatization is a minefield
Following in the footsteps...
Following in the footsteps of Putin’s government Ukraine may, Bankova mulls borrowing a relatively honest method of boosting tax revenues from less friendly big businesses, KW wrote this week.
The publication wanted to know the expert opinion on this suggestion. “There are theoretical grounds for seizing privatized assets. Recognizing a certain stage of privatization as illegal is the most popular and maybe the only viable method. The court can also satisfy a claim on the basis of understatement of the price of assets that were put up for privatization in the past,” says Mykola Voitovych, lawyer at Hramatskiy & Partners law firm. Taking into account how privatization has been conducted in Ukraine, lawenforcers will not have much trouble unearthing violations made during any privatization deal.
“Non-fulfillment or improper fulfillment of undertaken obligations as to basic areas of development and functioning of privatized property is one of the grounds for termination of privatization agreements,” says Natalia Rachok, legal consultant at Alekseyev, Boyarchukov & Partners.
It will not be that easy, since “under the Civil Code, if a person has been a diligent owner of movable property for over five years and immovable property for ten years, that person can be recognized the bona fide owner of such property,” believes Oleksandr Minin at KM Partners, “The property that was privatized many years ago could have been be resold and there are no grounds to raise a claim against a new owner, who did not participate in privatization. In addition, the property could have changed hands or ceased to exist in the form it was privatized.”
Much more realistic is to fully follow the Russian example: re-appraise the earlier privatized assets and force the owners pay extra. “The rates of the duties for geological prospecting were introduced in 1999 for users of mineral deposits. The authorities tried to additionally charge this duty on companies that were involved in prospecting of mineral deposits prior to approval of the instruction by State Tax Administration of Ukraine, which determined the procedure of payment. However, the extra charges were contested due to the absence of a special law.” commented Mykhailo Mozhayev, managing partner at Mozhayev & Partners law firm.