Is there a need to re-register your Bulgarian company?

While you won't have to re-register your company periodically, there is, since January 1, 2008,
a requirement to re-register it once. This is a result of the
entry into force of the Bulgarian Commercial Registry Act on January
1, 2008, imposing a requirement for registration on previously
registered legal persons with the new, computerised and more internet-accessible register. The deadline for re-
registration is at the end of 2010, so for most company owners who registered with the express purpose to acquire a property in Bulgaria still have time.

However, an obligation to re-register before the deadline is triggered by a number of events including any change in the
company's particulars - in its ownership, registered address, directorship etc.

Re-registration itself is free in terms of state fees but is, because of staffing difficulties in the Registry Agency (www.brra.bg) and unexpectedly high early demand somewhat time-consuming.

Whether a company is re-registered yet or not is liable to
file accounts annually with the National Revenue Agency (www.nap.bg),
even if it is not trading. These accounts need to be accompanied by
full financial statements.

Basic accounts of an otherwise dormant entity can be prepared by a Bulgarian accountancy for a fee in the region of €150-€200.

A Land Tax in Bulgaria from 2007?

Capital Land Tax in Bulgaria after 2007? reported recently on the introduction of a ownership-based tax on Bulgarian properties.

Currently, property ownership where the property is agricultural land does not imply the payment of a tax during the course of ownership (but does imply payment on acquisition which may or may not be split with the former owner and potentially on disposal a contribution to which may be extracted by the future buyer). The position is of course different in relation to 'land' (in the sense of buildings) which are subject to local taxation, usually of a minimum nature.

Proposals of this type have been mooted by several previous governments, mainly with view to increasing the marketability of land but these have appeared politically too unappetising to gain sufficient buy-in from government. The current spur of interest seems connected to the likely difficulty of absorbing some of the € 2.8 billion which Bulgaria has been promised in EU agricultural funds over the next five years - and which require co-funding by the government. This has emboldened the cabinet in feeling that landowners will accept the small inconvenience of a tax against the mouth-watering goodness of the expected windfall.

The suggested justification for the tax however, is any dynamising effect on the domestic market in agricultural land it may bring. It appears that possibly as little as 15% of the country's 57,000 square kilometres of arable land (1.4 million acres) are currently under any form of cultivation. Agri-land is cheap compared to equally productive intra-EU land (several-fold cheaper), but it appears that most land-owners find the current costs of doing anything with their land higher than the opportunity cost of doing nothing. Imposing on them a minimal tax (with an accompanying cost of administration not just for the government but also for each passive landowner) is hoped to energise them sufficiently into action - renting or selling their otherwise idle farms, ideally. Rental or sale in turn is expected to move the land from the hands of non-users into those of potential users who value it highly. In a sense, the annoyance value which the Agriculture and Forestry Ministry (whose plan this currently is) is hoping to create to make wanton owners move may be offset by the annoyance and cost in administering the system added to the tax authorities (not to mention any dampening effect on the economy by virtue of the sapping of capital itself).

The impact of the tax on the purse of the individual owner is likely to be insignificant (mooted rates are € 0.05 - €0.25 per hectare (€0.13 - €0.65 per acre). It may mean the difference between hiring an accountant or not however for prospective small inward-investing landowners in Bulgaria who would not have otherwise had to consider such a cost.

Its constitutionality may however be subject to a challenge. Given that urban or industrial is not taxed in this way, questions of fairness (and, possibly conversely, questions of proportionality in comparison to other effective rates of taxation on properties in Bulgaria) may be brought up to challenge a law on this point. European acquis places no demand on Bulgaria to act in this way. In fact there is sufficient diversity in the choices of the current member states of the Union, and globally.

The end of promotion games in Bulgaria?

In its decision 25/2006, The Bulgarian Commission for the Protection of Competition (CPC) announced imposing a fine of 50,000 Leva on "Kendi" OOD for a breach of s. 34(6) in connection with s.30 of the Competition Act (CA) and has issued an order to the investigated company to cease and desist from further breaches. Process on the case was initiated on the request of Eurostok EOOD, a producer of soluble drinks, effervescent tablets and vitamins.

Kendi OOD, the producer of the Bulgarian market-leading drink powder "Step", ran a promotion game from 1st July 2005 to 1st September 2005 which involved collecting 5 packs of Step, sending them to an address and the chance of collecting one of several prizes - 3 scooters, a sea holiday, bikes, portable fans and footballs.

s 34(6) of the Bulgarian CA bans offering 'non-market stimuli directed towards buyers as a method of raising sales' (in the reading given to it by the Commission). The ban was held by the commission to be intended to prevent such types of sales in which consumers prefer a good or service because of the offered (in the event of a sale) inducements, instead of because of its quality and price.

The Commission proceeded to point out that in the instance before it, the reviewed promotional game involved the purchase of a product. The value of two of the offered prizes - a holiday and a scooter - considerably surpassed the price (if not the value) of the offered product. The possibility for consumers to receive the prize goods not for their market value but against paying for the promotional product, with a far lower price impacted the market behaviour of the consumers, 'forcing them psychologically' to re-orient towards a good accompanied by the offer of a prize. This skews (held the Commission) ordinary competition between producers of substitutable goods, which then turns from a contest of combinations of goods and additional prizes. This eliminates the fair competition (loyal competition) which relies on the product qualities, their gustatory properties (!) and other factors which would otherwise naturally determine the market behaviour of its participants.

VAT tax implications of Act 15 and Act 16 (in respect of the price of buildings)

LEGAL FRAME:
- VAT Act,
- Spatial Development Act

ANALYSIS:
1. General Bulgarian VAT Regime with respect to immovable property

- Good: Immovable property is a “good” in the meaning of VAT Act (Art.7)
- Supply: Transfer of ownership of goods or other rights in rem over the goods is a “supply” in the meaning of VAT Act (Art.6)
- Exempted supplies: Transactions of land ownership is an exempted supply (Art.33 in connection with Art.34 )
- Specific Case of Determining VAT Rate: Where the title to a building or part thereof (actual or common) is transferred, the tax base shall be the one agreed by the parties as increased with the taxes and fees due for the transfer or the tax base determined in pursuance of Art. 46 of the Local Taxes and Fees Act, (the assessed value of the property for tax purposes ) whichever is the higher.
- Tax Credit: the amount of the tax charged under the VAT Act on goods obtained by a registered person (registered under VAT Act) under taxable supplies during the tax period, which the person has the right to deduct.

2. Implications of Act 15 and Act 16 on the obligation of the Purchaser to pay VAT

2.1. Overview of administrative acts issued upon completion of construction (Act 15 and Act 16 in comparison):
a) Purposes:
Act 15 – to ascertain that a construction or building is fit for acceptance (it meets the construction technical requirements)
Act 16 – to permit the use (putting into operation) of the building (it meets the specific use requirements, including utilities etc)
b) Interrelation: Act 15 is a prerequisite for Act 16
c) Difference in their legal effect with respect to the ownership of the Building – none;
As soon as there is an object, firmly fixed to the land and capable of general individualization (borders, area), real property could be transferred. In the real property transfer practice, first notary acts for purchases could be executed as soon as the construction is in the phase of “rough construction” .
d) Liability for usage of flat without Act 16 (Usage Permission)
q Fine between BGN 100 and BGN 500 (general Administrative liability under the Spatial Development Act for any violations of the Act, Art.233).
Practically, the authorities do not impose such sanctions on the users of flats in buildings that do not have Act 16.

2.2. Difference in the assessed value of the property for tax purposes – such value is lower upon Act 15.

Actually the tax base for VAT may be different between Act 15 and Act 16, provided that the parties in the transfer insert in the notary act for purchase of real estate not the purchase price but the lower value assessment for tax purposes.

Conclusion: VAT will not be excluded if the real property is purchased after Act 15 and before Act 16. The only tax implications refer to the tax base, which might be lower in the case of Act 15. Construction companies need to impose VAT on their projects whenever they sell the real estate, unless a scheme that avoids VAT is elaborated. For such scheme the following option could be considered:
ß Purchasers to be persons registered under VAT Act and thus entitled to obtain tax credit
ß Investment construction project that avoids classic purchase: For example, 10 persons decide to finance the construction of a building, in which each of them will get an apartment. The Investor creates a company (LLC or JSC) that will buy the land on which the construction works will be carried out. As soon as the rough construction of the building is ready the 10 persons purchase shares in the company in proportion with the area of their apartments. As soon as the Usage Permit (Act 16) is issued, the shareholder in the company that owns the building take a decision for company winding-up and distribution of the assets of the company in the form of obtaining the respective apartments. Of course such scheme will be workable only upon execution of preliminary contracts that will ensure the real property transfers.

(Article by Deyana Marcheva)

Bulstat - another enemy of the free market in Bulgarian property?

Dnevnik and the Sofia Echo in English, recently publicised a change of the law which will require foreign buyers of land/property in Bulgaria to undergo another registration - this time post-purchase - with the unified national businesses register, Bulstat, since not so long ago a part of the Registrations Executive Agency of the government (www.registry.bg). The Dnevnik article surmised that this is part of a drive for simplification of the process of financial identification for businesses.


On the surface - it all makes sense. The only reason why foreign property buyers are affected is that they are treated presumptively as doing this for investment purposes, if non-resident in Bulgaria (and the presumption is sustained by their non-possession of a Foreigner's Identification Number that comes with residence rights). Freelancers, and self-employed individuals (eg, lawyers in private practice), they need to obtain Bulstat registration. This is right in its impulse of seeing as blurry the lines between different forms of organising business activity and recognising that many property purchases are motivated by business intentions. But it falls on two grounds, one of which is connected with that impulse.


Conceptually, it mistakenly assumes that residence should be the test of motivation. Human agents' actions are more complex than this and they often combine the intention to profit from a property purchase and the intention to derive pleasure from it for instance or to raise one's children on it or to retire to it, albeit for parts of the year. Obtaining Bulgarian residence is a costly in time, effort and money and may not be available to all foreigners who've acquired property (it certainly appears not to be intended to be available in this way, if the Aliens Act is read on its face)). As Bulgarians receive their IDs without fail, but also sometimes buy properties for pure gain, the provision is discriminatory and unfair.


Practically, it is defeated by the way that the reform is implemented - through the imposition of another inconvenience. Regulation is never uncostly, but one which needs to be performed at the regional office in person is too costly to leave any gain. The regulators in this case should have foreseen.


As it is meant as a procedure that is part of the drive for simplifying dealings with government and is it part of a new generation of government services, one would expect registration to be possible either by post or electronically or at least to be doable at any Bulstat office.


The only ray of hope is the bit in the Sofia Echo that from September, the registration will be available through the Registration Agency. If this implies the availability of the customer-friendly remote/universal methods of registration, it may make the new layer of red tape just about worthwhile.

A guide to minority shareholder rights in Bulgaria

A guide to minority shareholder rights in Bulgaria

Increasingly, international companies establishing a presence in Bulgaria will do so through a subsidiary. Often such companies are not wholly-owned, for example because:
· the subsidiary company was incorporated for the purpose of a joint venture with a Bulgarian partner;
· the subsidiary company was acquired by way of takeover while certain shareholders retained an interest;
· shares have been retained or allotted to management and/or directors;
· tax, regulatory or other legal requirements require a second or additional shareholders;
· the company is listed and has a number of its shares held by the public.

This article summarises the protections given to minority shareholders in both private and public companies by the Bulgarian law. We shall assume that the public company is listed on the Bulgarian Stock Exchange.

Specifically, this article deals with (A) when a minority can be forced to sell its shares to a majority, conversely (B) when a minority can force the majority to buy its shares, and (C) when a controlling shareholder must make an offer for all the other shares in the company. Lastly, there is (D) a summary of what percentage holding a minority shareholder (or shareholders acting together) needs to prevent any of a roster of actions by the company.

Future development

Upon joining the EU in 2007 or 2008, Bulgaria will be governed by, and will need to adopt law in compliance with, the EU legal framework for takeovers, which deals with minority shareholders rights. The Council and European Parliament Takeover Directive adopted in December 2003 came into effect in May 2004. Current member states must implement this into national law by May 2006. The Takeover Directive applies to companies listed on a recognised EU exchange.

Private Companies

Although the general Bulgarian law does protect minority shareholders in certain aspects, the greatest protection that can be afforded a minority shareholder is usually contained in a shareholders agreement. Shareholders in a company are, subject to limited restrictions, free to agree amongst themselves that certain of them will have rights to buy shares from, or sell their shares to, the other shareholders (drag- or tag-along rights).

However, shareholders agreements are not commonplace in Bulgaria, and a non-Bulgarian joint venture party will need to understand the other party’s reluctance to conclude such an agreement. The main reason is that a shareholders agreement does not over-ride the provisions of Bulgarian corporate law and, as such, a breach of the shareholders agreement can only be remedied through a long court process.

When a minority shareholder in a private company wishes to sell its shares, and in the absence of applicable provisions of a shareholders agreement, the minority shareholder may sell to any third party. However, sometimes the articles requires the shares to be offered first to the majority shareholder. There are no compulsory provisions in Bulgarian law that can force the majority shareholder of a private limited company to purchase the shares of a majority.

In fact, that the Commercial Act of 1991 permits an increase of the capital of the company sub conditio, which means that the majority shareholder may resolve that only he be eligible to obtain the new shares!

As a consequence, unless the parties can negotiate a shareholders agreement that they are confident they can enforce in court, it is not advisable to enter into joint ownership of private Bulgarian companies, in which one of the shareholders owns more than 50% of the shares. In any event, the parties should ensure that the articles of association prevent the majority shareholder from unilaterally managing and disposing of the company, the business or its assets.

Public (listed) Companies

The Bulgarian law that governs listed companies assumes that, as the shares in that company are listed, any minority shareholders who are unhappy with the company can sell their shares on the market. However, sometimes the market can be illiquid, such as when the share price has dropped very low. Therefore, in addition, the law and regulations governing listed companies tries to ensure that all shareholders are treated equally. The rules on disclosure to the market of certain information is designed, inter alia, to ensure that minority shareholders have equal access to information.

When a person acquires more than 50% of the shares in a public company (or two thirds of the shares together with a related party) it shall in fourteen days, following the date of acquisition, offer to the minority shareholders to purchase their shares, at a price which is subject to preliminary approval by the Financial Supervisory Committee.

When a person acquires more than 90% of the shares in a public company (alone or together with a related party) it shall inform the minority shareholders of its plans for management of the company, and shall inform the minority shareholders of its intention to make an offer for the entire share capital at least three months prior to the making of such offer. The minority cannot be forced to sell its shares.

The management of public companies is subject to special regulation aiming to disclose as much information for the shareholders/investors, as they need to be fully informed as to how the company is being run. The management must submit to the Financial Supervisory Committee quarterly reports and an annual report.

A single or a group of shareholders representing 5% of the issued share capital are entitled to call a general meeting of the company. Any shareholder having 5% is entitled to bring an action on behalf of the company against a third party in the event of inaction of the management.



The increase of the capital sub conditio is forbidden. Each of the shareholders is entitled to obtain a percentage of any new shares that is equal to his percentage prior to the increase. If one does not obtain the new shares they shall be compulsory sold through the stock exchange.

The management of the company cannot dispose of the company’s assets, which are at the value over 2 per cent of the last audited balance unless three quarters of the shareholders have authorized it in advance.

Any shareholder is entitled to bring an action against the management of the company. However, there is limited number of such claims in practice, as the court process is expensive and time-consuming, with a very high burden of proof on the claimant to prove mis-management and loss.

Registration of a branch of a non-Bulgarian incorporated company in Bulgaria

Registration of a branch of a non-Bulgarian incorporated company in Bulgaria

a) Summary
b) Documents required
c) Costs
d) Timeframe
e) Legal issues

a) Summary

New Balkans Law Office (“NBLO”) will be able to assist with the following primary and ancillary aspects of the registration of a branch office of a non-Bulgarian person:

· Advice on the relative advantages of establishing a Bulgarian private limited liability company, a branch of a foreign company, and a commercial representation office of a foreign company;
· Advice on the documentation required for the registration of a branch;
· Drafting and preparation of documents for the registration of a branch including documents to be executed/provided by the parent company;
· Effectuation of a registration with, inter alia, the National Statistics Institute, National Social Security Institute and the Local Tax Authority;
· Registration under the VAT Act of 1999 of the new branch;
· Preparation of branch/company books as required by law.

In addition, NBLO can assist with:

· the setting up of a bank account for the new branch;
· the negotiation of a lease of office space;
· the conclusion of employment contracts with new staff.

b) Documents required

The following documents will need to be prepared and filed with the relevant Bulgarian authorities to effect the branch registration (and if they are not signed in front of notary in Bulgaria then they will need to be witnessed by a suitable official and apostiled in the country of signature):

· Power of Attorney of the person who will be in charge of initiating and completing the procedure for registration of the branch;
· Minutes of a meeting of the directors of the parent company explicitly showing the decision: i) to establish a branch of the parent in Bulgaria, ii) to approve the registered address and business address, iii) to define its scope of activity, iv) to appoint its manager and lawful representative, and v) the limitations of his powers, if any;
· Declaration under Article 141, sub-Article 3, of the Commercial Act of 1991 and a specimen signature of the manager and lawful representative;
· A certificate for current standing of the parent issued by the Registrar of the companies or the respective body as per national company’s registration legislation;
· Certificate for reservation of the branch’s commercial designation issued by the Bulgarian National Reservation System DELFY;
· Receipts for payment of the registration fees.


c) Costs

Generally, the process will cost in the region of EUR 750 (approximately 15 billable hours) and plus registration costs and other disbursements, which are typically as follows:

Typical Disbursements
Value (in BGN)
Value (in Euro)
Translations
30
15
Validation/Notarisation
20
10
Reservation of the name of the branch
100
50
State Gazette Publication
30
15
Sofia City Court Company’s Registrar Fee
60
30
Official copy of the decree for registration
1.50
0.75
Registration with the Statistics Institute
100
50
Official stamp of the branch
33
16.50
Opening of a current bank account
25
12.50



Total
399.50
199.75


d) Timeframe

The registration can be completed by NBLO in approximately 7-10 working days.

e) Legal Issues

Clients should consider carefully whether registering a branch office is the most appropriate form of presence for the business they wish to conduct in Bulgaria.

Branch offices require a manager, who can be a foreign person. There are certain limits on the capacity of the branch office, acting by its manager. As a branch is not a separate legal entity, distinct from its parent, it is normal for the other party to a transaction to require an explicit confirmation by the parent company that the branch is able to conclude the relevant contracts in Bulgaria. As such, a great deal of attention will be paid to the capacity of the branch manager. This may result in delays to the business activity of the branch. Consequently, NBLO recommends that a client register a branch only if it plans to develop a short-term or small to middle-size business activity within Bulgaria.

For alternative methods of starting your business in Bulgaria, please contact NBLO consultants.

Running a bank account in Bulgaria by non-nationals

Opening a bank account in Bulgaria by non-Bulgarian persons

a) Natural persons and legal persons (including branches of foreign legal persons)
b) Money laundering issues
c) Transfer restrictions

a) At heart, the Bulgarian regime is quite liberal. Bulgarian banks open accounts to all natural persons (over 18) and all legal persons irrespective of their place of establishment and place of business.

The prospective account-holder fills in an application form, present his ID card or passport or documents proving establishment (applicable to a legal person), nominates those who have a mandate to transact on the account and provides specimen signatures of those mandated.

With legal persons, banks will generally require a certified copy of a statement of the company’s registration status (such as a certificate of incorporation) and proof of registered address. A proof of address in the country of residence may be required from natural persons. The passport/ID card, if they include this will be an obvious source of proof.

A proxy (a person formally appointed as attorney or proxy) can also act on behalf of a natural or legal person to open an account, upon submission to the bank of an explicit power-of-attorney (suitably witnessed, apostilled and translated if and as required).

b) Money laundering and other checks

The Money Laundering Act of 1999 provides for a number of measures to prevent money laundering. Banks are under a duty to inform the national Financial Intelligence Service of any transaction (including a payment-in on opening of a bank account) with a value in excess of 30,000 BGN (or 10,000 BGN if a cash transaction). This obligation also concerns public notaries, petrol traders, wholesalers, insurance and leasing companies, tax consultants, auditors, and others. The Financial Intelligence Service is entitled to intercept a transaction pending investigation upon a suspicion that it is a money laundering.

The Financing of Terrorism Act of 2003 provides for the freezing of accounts and other assets of persons who are under suspicion of participation in terrorism operations or are on the list of the United Nations of persons and organisations engaged with terror.

c) Restrictions on the use or transfer of money

Bank transfers

Money can be withdrawn/transferred (including expatriated) once the account holder has completed a declaration under the Foreign Currency Act of 1999.

In addition, the account holder must show that he or in case of a legal person, the legal person, has paid all taxes due to the tax administration (usually this is a certificate from the respective regional tax office).

If a foreign person with a Bulgarian bank account wishes to make a transfer abroad then, along with complying with the above rules, he must specify a reason for the transfer and present supporting documentation. If the amount to be transferred abroad does not exceed the amount previously received from abroad into that account there is no need to prove anything and the holder is free to order the transfer.

Taking cash out of Bulgaria

The Foreign Currency Act of 1999 also established rules for the export and import of money in cash. The foreign person is free to import/export cash currency amounting of up to BGN 5 000 (approx. EUR 2 500). If those cases no declaration is required on crossing the border.

If the person wishes to import in cash currency exceeding 5 000 BGN he needs to submit a declaration in two originals to the customs authorities stating the exact amount and type of the currency. The second original must be kept safe after stamping by the customs officer. Upon exit of the country with an amount in cash exceeding 5 000 BGN he shall present the original of the declaration for previously imported currency.

Upon exporting cash currency exceeding 25 000 BGN (12 500 EUR) he shall submit to the tax authorities a declaration of the origin of the money along with the above mentioned certificate issued by the respective regional tax office. Again, if the exported amount does not exceed the value of previously imported in cash and declared, the person is free to export the amount only by presenting the original import declaration for the identical type of currency. If the exported amount does exceed the imported value, the foreign person shall submit to the customs authorities valid proof that he has paid all the taxes regarding the surplus of the value and a certificate that he does not have any obligations to the fiscal service.

Credit or debit cards

The use of credit and debit cards in Bulgaria has increased immensely during the last five years. A foreigner is not under any duty to declare at customs the bank cards he carries on his person. In addition to major bank cards, cheques and travellers cheques are also known and welcomed as means of payment and are equally not subject to declaratory obligations.

If a person holds a Bulgarian bank account and has a credit or debit card associated with that account then there is no Bulgarian-originating restriction on his withdrawing money from that account while abroad.