Calculation of the actual value of the share. The actual value of the share upon exit. Calculation and examination

When a participant leaves an LLC, it is necessary to calculate the actual value of his share according to the 2019 rules. This value must be established in order for the company to pay the money or so that it can be demanded through the court.

If a member leaves the LLC, he is paid the actual value of the share

The LLC forms its authorized capital from the funds invested by the participants. It is made up of nominal value their shares. The value of each share is determined as a percentage or as a fraction. This is the ratio of the par value of the share and authorized capital ().

There is also the concept of the actual value of an LLC participant’s share in the authorized capital of the company: this is part of the value of the LLC’s net assets proportional to the size of its share. It is this cost that the company is obliged to pay to the participant if he decides to leave the LLC (). That is, the owner of a 50% share has the right to claim 50% of the net assets. With the consent of the participant, the company may provide him with cash, and property for the same amount.

In 2019, the previous rules for calculating the actual value of a share upon withdrawal of a participant continue to apply. It is determined according to accounting data. The data is taken for the reporting period that preceded the filing of the application for withdrawal. For example, if the application was received on April 11, look at the data for the previous year. If the owner of the share has not paid for it in full, the actual cost of the part for which he contributed funds is transferred to him.

The LLC has 3 months to transfer funds or transfer property. This period is counted from the date such an obligation arises. The company's charter may specify a different period, in which case the funds must be transferred in accordance with the requirements of the charter.

If the company refuses to pay or delays funds, the participant has the right to claim them in court. But in order for the court to consider the claim, it is necessary to indicate the actual value of the share and justify it with a calculation scheme. To determine the value, you need to calculate the corresponding net asset price.

To determine the actual value of a share, find out the LLC's net asset value

Determining the value of a share in an LLC depends on the size of its net assets. This indicator is the difference between the assets of the LLC and the amount of its liabilities. The obligations of the LLC are recorded in the accounting data ().

Before calculating the actual value of a share, check for what period you need to determine the value of assets. Most often, accounting data is taken for the previous reporting year. But the LLC charter may have other rules - for example, about filing reports every quarter. Then you need to rely on the reporting for the last quarter.

The plaintiff indicated in the claim the price of the share according to financial indicators LLC for the past year. The society objected and referred to the quarterly filing of reports. Calculation of the actual value of the share based on quarterly data gave a result of 100 million rubles. less than in the claim. However, the courts found that there was no requirement in the charter to file reports every quarter, and there was no corresponding resolution of the meeting. The courts determined the value based on the annual report data and supported the plaintiff ().

When determining the cost of a share, VAT is not taken into account

The value of the share in the claim depends on the net assets. If VAT is taken into account when determining them, the value of the share will ultimately be overstated. The higher court will point out this error and overturn the decision (,). Since fixed assets on the LLC balance sheet are accounted for without VAT, VAT is not used when calculating net assets ().

The claim contains not only data on determining the value of the share in the LLC, but also punitive interest.

In addition to the requirement to pay the actual value of the share, interest can be charged under Article 395 of the Civil Code of the Russian Federation. They are calculated from the date when the company became obligated to transfer funds to the former participant (,). The calculation of interest is not affected by the date of entry into force of the court act on the collection of funds for the share ().

You can determine the cost yourself or with the help of experts

use available services and determine the cost of the share yourself,
involve experts in assessing the share.

To independently calculate the net assets of an LLC, you can use the Glavbukh System service. You will need the LLC balance sheet data. if you need to calculate interest under art. 395 of the Civil Code of the Russian Federation, use the calculator.

It is necessary to involve experts in determining the value of a share if there is insufficient data for calculation. An unreasonable share will allow the court to reject the claims (). Therefore in difficult situations It is better to seek help from specialist appraisers. The court has the right to rely on independent expert data as one of the evidence (). But for the pre-trial examination, the court will not be able to recover legal costs from the opponent (,). Before filing a claim, the examination must be done at your own expense.

Alienation by an LLC participant of a share to the company can hardly be called in the usual way going out of business. This is evidenced, in particular, by the possibility of limiting this right of a participant by the charter (Article 26 of the LLC Law). Obviously, such actions are most often caused by a corporate conflict or the reluctance of LLC participants to see one of the heirs as a partner.

In this case, when a participant leaves the LLC, the company is obliged to pay the participant the actual value of his share in the authorized capital of the company, which is determined on the basis of data financial statements for the last reporting period (clause 6.1 of article 23 of the LLC Law).

By virtue of Art. 14 of the Law on LLC, the actual value of the share of a company participant corresponds to part of the value of the company’s net assets, proportional to the size of its share, however, issues related to its determination cause the most heated debate.

So, what should you keep in mind when making a claim for payment of the actual value of your share?

How to determine the actual value of a share?

The actual value of the share general rule paid in money. Property in kind is issued only with the consent of the participant.

Based on the provisions of the LLC Law, the actual value of the share is determined on the basis of the company’s financial statements. Meanwhile, the book value of the property may differ significantly from the market value, and therefore the calculated price of the share will not be fair. Indeed, in the event of liquidation of the company, its other participants will receive a share in proportion to the value of the company’s property sold at market prices.

In addition, accounting statements may also simply be unreliable, from which a company member is not insured.

In fact, this is why this issue is often the subject of dispute in arbitration court.

In case of disagreement with the size of the actual value of the share determined on the basis of financial statements, the participant has the right to file a petition for an examination to establish the actual value of the share, which follows from paragraph 16 of the resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated December 9, 1999 No. 90 /14.

But how should the value of such a share be calculated and on what date?

1. Definition market value company assets

For the first time, the court allowed going beyond the balance sheet in the resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated September 6, 2005 No. 5261/05.

Subsequently, this position, by virtue of which the calculation of the actual value of the share should be determined taking into account the market value of real estate, was confirmed in the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated April 17, 2012 No. 16191/11. This approach is currently supported by the courts.

Example: Resolution of the Arbitration Court of the Moscow Region dated November 28, 2017 in case No. A41-72731/2015,

A sufficient number of such cases can be found in the system. .

Moreover, not only real estate, but also other assets are subject to accounting:

securities,
property rights,
intellectual property.

On the one hand, this position is correct, since it takes into account the market value of the LLC’s property when determining the actual value of the share, and on the other hand, it is not directly a market assessment of the LLC’s share itself, which corresponds to the provisions of Art. 23 of the LLC Law. Indeed, when determining the market value of a share, we will inevitably encounter issues of applying discounts due to the fact that the assessed share is not a controlling one or is simply illiquid, but this already goes beyond the scope of the LLC Law.

2. Application of coefficients when determining the actual value of a share

According to the general rule, formulated in the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated October 14, 2008 No. 8115/08, decreasing and increasing coefficients are not subject to application when determining the actual value of the share of an LLC participant. Arbitration practice has adhered to this position for quite a long time. However, later this approach was slightly adjusted, the main provisions of which were defined in (Raevsky case).

Thus, in particular, the Presidium of the Supreme Court of the Russian Federation pointed out that the mere impossibility of applying a reducing coefficient to the value of a share does not indicate that the corresponding coefficient cannot be applied to the assessment of the company’s net assets, the size of which determines the actual value of the participant’s share. In this case, the company owned blocks of shares in other companies, and therefore, when assessing them, the expert applied a reduction factor based on liquidity and the ability to influence decision-making. In other words, it was concluded that when establishing the market value of the company’s assets, the appraiser can use appropriate discounts based on approved valuation standards.

What follows from this?

It follows that the determination of the actual value of the share is carried out taking into account the encumbrance of real estate, for example, a mortgage (see).

3. If access to documents is limited

When considering a dispute regarding the recovery of the actual value of an LLC participant's share, the favorable position of the LLC participant in terms of distribution of the burden of proof should be taken into account. The responsibility for determining the amount of the company's net assets and the actual value of its share rests with the company itself due to the legal position set forth in Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated May 26, 2009 No. 836/09.

C) With regard to personal income tax, the situation is the opposite

In court, the actual value of the LLC participant's share is subject to recovery in full, and the withholding and payment of personal income tax by the tax agent is made upon the actual transfer of the awarded amounts.

These are only some of the problems that participants inevitably face when collecting the actual value of a share, but in general, a brief overview of these issues gives a general idea of the prospects and forecasts of a potential claim.

The alienation of a share by an LLC participant to the company can hardly be called a common way to exit the business. This is evidenced, in particular, by the possibility of limiting this right of a participant by the charter (Article 26 of the LLC Law). Obviously, such actions are most often caused by a corporate conflict or the reluctance of LLC participants to see one of the heirs as a partner.

In this case, when a participant leaves the LLC, the company is obliged to pay the participant the actual value of his share in the authorized capital of the company, which is determined on the basis of the financial statements for the last reporting period (Clause 6.1, Article 23 of the LLC Law).

So, what should you keep in mind when making a claim for payment of the actual value of your share?

How to determine the actual value of a share?

The actual value of the share is generally paid in cash. Property in kind is issued only with the consent of the participant.

In addition, accounting statements may also simply be unreliable, from which a company member is not insured.

In fact, this is why this issue is often the subject of dispute in arbitration court.

But how should the value of such a share be calculated and on what date?

1. Determination of the market value of the company’s assets

For the first time, the court allowed going beyond the balance sheet in the resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated September 6, 2005 No. 5261/05.

Example: Resolution of the Arbitration Court of the Moscow Region dated November 28, 2017 in case No. A41-72731/2015,

A sufficient number of such cases can be found in the system. .

Moreover, not only real estate, but also other assets are subject to accounting:

securities,
property rights,
intellectual property.

2. Application of coefficients when determining the actual value of a share

What follows from this?

It follows that the determination of the actual value of the share is carried out taking into account the encumbrance of real estate, for example, a mortgage (see).

3. If access to documents is limited

C) With regard to personal income tax, the situation is the opposite

Question from Clerk.Ru reader Tatyana (Moscow)

The procedure for the withdrawal of a participant from the company is regulated by Article 26 of the Federal Law of 02/08/1998 N 14-FZ “On Limited Liability Companies”. A company participant has the right to leave the company by alienating the share to the company.
If a participant leaves the company, in accordance with Article 26 of this Federal Law his share passes to the company (clause 6.1 of Article 23 of the Federal Law on LLC).

The company is obliged to pay the participant the actual value of his share. The cost is determined on the basis of financial statements for the last reporting period preceding the day of filing the application for withdrawal from the company. The cost is paid within three months from the date the corresponding obligation arises, unless a different period is provided for by the charter of the company.

The actual value of the share of a company participant corresponds to part of the value of the company’s net assets, proportional to the size of its share (paragraph 2, paragraph 2, article 14 of the Federal Law on LLC).
The current procedure for calculating net assets (Order of the Ministry of Finance of the Russian Federation N 10n, FCSM of the Russian Federation N 03-6/pz dated January 29, 2003 “On approval of the Procedure for assessing the value of net assets of joint-stock companies”).

According to the Ministry of Finance, LLCs can use the methodology for calculating net assets adopted for joint-stock companies (letters of the Ministry of Finance of Russia dated October 29, 2007 N 03-03-06/1/737, dated January 26, 2007 N 03-03-06/1/39).

The value of net assets is understood as a value determined by subtracting from the amount of assets joint stock company accepted for calculation, the amount of his liabilities accepted for calculation.

Net asset value is the difference between the company's assets and liabilities taken into account.
The assets accepted for calculation include:
- fixed assets
- current assets, excluding the cost of purchased shares, and debt of participants for contributions to the authorized capital.

The liabilities accepted for calculation include:
- long-term liabilities for loans and credits and other long-term liabilities;
- short-term obligations for loans and credits;
- accounts payable;
- debt to participants (founders) for payment of income;
- reserves for future expenses;
- other short-term liabilities.

A form for calculating net assets, it will help in the calculation. Thus, when calculating the actual value of an action share, the following should be considered:

Take the balance sheet (Form 1) for the period preceding the application for withdrawal.
Calculate net assets in accordance with the table from the Ministry of Finance-FCSM.
The resulting amount is multiplied by the participant’s share.

The resulting result will be the actual value of the share that the company must pay to the participant after his withdrawal.

Example:

The participant submitted his resignation on December 1, 2009. Authorized capital - 10,000 rubles. Participant's share - 49%. The previous reporting period was 9 months of 2009.

Extract from the balance sheet as of September 30, 2009:
Assets:

Fixed assets - line 140 - 40 thousand rubles
Inventories - line 210 - 50 thousand rubles
Cash - line 260 - 99 thousand rubles

Total assets - 189 thousand rubles.

Accounts payable - line 620 - 64 thousand rubles.

The total liabilities accepted for calculation are 64 thousand rubles.

Net assets: 189-64=125 thousand rubles.

Actual value of the share: 125/100*49=61,250 thousand rubles

Thus, in accordance with the calculation, the company is obliged to pay the participant the actual value of his share in the amount of 61,250 rubles.

It’s very easy to get personal advice on registering and re-registering companies online - you just need to fill out . Every day, several of the most interesting questions will be selected, the answers to which you can read in specialist consultations.

However, it should be noted that the courts also have the view that, within the meaning of the provisions of Part 4 of Art. 13 of the Accounting Law, the need to prepare interim financial statements may be due to the implementation of certain provisions of the LLC Law, including provisions on the distribution of profits (Resolution of the AS of the West Siberian District dated 06/07/2017 N F04-1283/17, AS of the Central District dated 09.26. 2016 N F10-3334/16, Fifth AAS dated July 28, 2017 N 05AP-4321/17). It is possible that, based on this position, the court may recognize the obligation to prepare interim reports for a quarter or six months, if the charter of the LLC provides for the right of the company to make a decision quarterly or every six months on the distribution of its net profit among the participants of the company (see the resolution of the Far Eastern District Court of Justice dated 10.24.2016 N F03-4773/16).

If you disagree with the amount of the actual value of the share determined by the company for payment, the person to whom it should be paid may apply for judicial protection. The court verifies the validity of its arguments, as well as the society’s objections, on the basis of the evidence presented by the parties, provided for by civil procedural and arbitration procedural legislation, including on the basis of the conclusion of the examination carried out in the case (clause 16 of the resolution of the Plenum of the Armed Forces of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated 09.12. 1999 N 90/14).

It should be remembered that when paying the actual value of a share, the authorized capital of the company is deducted from the net assets of the company at the expense of which such payment is made. If in this case the net assets of the company become insufficient to pay the actual value of the participant’s share, the company is obliged to reduce its authorized capital by the missing amount. If such a decrease leads to the fact that the amount of the authorized capital becomes less than 10,000 rubles, payment of the cost of the share is made from the difference between net assets company and this size of the authorized capital (clause 8 of article 23 of the LLC Law).

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