How to separate an organization. Reorganization by division. What benefits does “simplification” provide?

Along with highlighting the second form of reorganization, aimed at reducing the enterprise, is division.

This form can be used for different reasons - for organizing companies with different types of activities, for distributing capital between participants, for the purpose of diversifying production, etc.

In order for the reorganization procedure to be successful, you need to know what stages it consists of, what documents are required for its implementation and how to avoid possible difficulties and separation problems.

What is separation and what are its consequences?

Separation is one of the forms of reorganization, in which two or more new ones are created on the basis of one existing enterprise.

In this case, the old enterprise ceases to exist and is officially liquidated.

Main The consequences of separation are:

• termination of activity of one enterprise;
• creation of at least two new business entities (the maximum possible number is not limited by law);
• transfer of all rights and obligations of the old enterprise to new ones, while the distribution is carried out by decision of the former owners, on the basis of a transfer deed.

This form is often used in cases where the owners of the enterprise are several people.

If conflicts and insoluble disputes arise between them, separation is in a good way a quick solution to the problem - everyone can receive a portion of the invested funds in the amount of their existing share of capital.

Other motives for the procedure are:

• improvement organizational structure enterprises;
• reduction of production costs;
• creation of enterprises for organization different types activities;
• tax optimization;
• increasing business competitiveness, etc.

Reorganization in the form of division may be necessary in any of these cases, so the owners of the enterprise need to know what stages does this procedure consist of?

Main stages

The reorganization procedure by division has a certain sequence of actions, subject to which this process will be carried out as quickly and correctly as possible.

Main stages divisions are:

1.Preparation for the procedure. At this stage d documents will be prepared necessary for a legally established procedure holding a meeting: draft charters of future enterprises are developed, a transfer act is drawn up (for which it is necessary to carry out an inventory), participants in the meeting are notified (no later than 30 days before the date of its holding).

2. Conducting a general meeting of participants (owners) of the enterprise. It is necessary to decide at the meeting a number of important questions:

• making a decision on reorganization (enshrined in the decision if there is one owner, or in the minutes of the meeting if there are several owners);
• approval of the charter for each enterprise that is created;
• approval of the transfer deed.

In order for the decision on reorganization to be legal, the majority of participants who were present at it must vote in favor of the procedure (from 50 to 100%, depending on the form of ownership of the enterprise).

3. Notification of funds. After making a decision on division, the authorized person is obliged to notify about the upcoming procedure registration authority and Pension Fund and Tax Inspectorate. There is a deadline for this: 3 days after the meeting. The authorized person is usually one of the owners or the general director of the reorganized enterprise.

After notifying the tax office, an audit may be carried out - this does not happen in all cases, but owners need to be prepared for this option. Small enterprises are rarely inspected; the targets of the Federal Tax Service employees are often large companies.

4. Notification of creditors. This stage consists of the following procedures:

• publication of a notice in the Bulletin - carried out twice with a frequency of at least once a month;
• sending notifications about the upcoming procedure to all known creditors.

If, during this period, creditors receive claims for debt repayment(including ahead of schedule), the reorganized enterprise must fulfill these requirements.

5. Preparation necessary documents. The full package depends on the requirements of the specific registration authority where the reorganization procedure is being carried out.

6. Receiving a response from the registration authority. To check documents and make a decision 5 days are allotted.

7. Completion of the procedure. After the expiration of the established period, you can pick up new documents from the registration authority. The reorganization procedure by division is considered officially completed from the moment of making entries in the register of newly created enterprises.

The described procedure is used in cases where the reorganization occurs voluntarily.

However, division is also possible forcibly - by decision of those authorized to do so. government agencies.

In this case, instead of the minutes of the meeting of owners, the approved decision of the relevant government agency.

Required documents

Collection and preparation of documents – one of the most important stages of reorganization of any form, since the absence of certain papers often becomes reason for refusal in carrying out the procedure.

The specific list of documents should be clarified with the body where the reorganization will be carried out - in some cases additional papers may be required.

The general list of documents looks like in the following way:

1. Minutes of the meeting (or decision), which sets out the form of reorganization.
2. An application in the prescribed form, which must be notarized.
3. The transfer deed and the final accounting statements attached to it.
4. Charters of the created enterprises developed and approved at the meeting (at least two copies for each).
5. Written evidence of notice to creditors. Often in this case, copies of the Herald pages with published messages are provided, as well as receipts for letters sent.
6. Certificate of absence of debt to the Pension Fund.
7. Receipt for payment of state duty.
8. Letters of guarantee confirming new legal address created enterprises.

After completing the procedure, participants will receive documents confirming the placement new enterprises registered, and also about formalized copies of the statutes.

Typically, the reorganization procedure takes at least 3 months, however, in the event of an audit by the tax authorities or if problems arise with creditors, this period may be delayed.

Transfer deed

An important document during reorganization is deed of transfer.

It displays all the assets that the enterprise has at the time of compilation (before making a decision on reorganization), as well as the distribution of property and liabilities between all created enterprises.

That is, this document contains information on the procedure of succession reorganized company.

To draw up an act it is necessary take inventory– its results will also be displayed in the document.

Most often this document is in the form of a balance sheet – approved form no transfer deed is provided.

Since after drawing up the act, the company can still conduct some kind of activity, it is necessary to draw up an additional document for it (for example, a regular balance sheet).

It displays movement Money during the period of reorganization.

Preparation and submission of reports

The obligation of the reorganized company before the start of the reorganization is submission of necessary reports– to the tax service and extra-budgetary funds.

Reporting is submitted on the date from which the separation procedure begins (that is, after the meeting).

Lack of reporting is often the basis for refusal to reorganize an enterprise.

When reorganizing by division occurs immediately several consequences for all participants in the procedure, the main enterprise ceases to exist, and several new business entities are created on its basis.

For individual species activities approved by order of the Federal Tax Service of Russia TAX PERIOD CODESCodeName21I quarter22II quarter23III quarter24IV quarter51I quarter during reorganization (liquidation) of the organization54II quarter during reorganization...

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The division of a business is one of the natural stages of its development. With a peaceful separation, partners can preserve their interests. But if “fighting” begins, then losses are inevitable on both sides.

When the general director and main founder of the Novosibirsk transport and logistics company went on New Year's vacation abroad, his contacts with the remaining partners were difficult. When he returned, he realized why he couldn’t reach any of them. Partners involved operational management enterprises, very quickly divided the business among themselves. They left the joint stock company and withdrew assets - vehicles. The deputy general director, who acted as head during his absence, put his signature on the decision. The company turned into a “dummy”, whose balance sheet included several old cars, and its liabilities included considerable loans taken out to purchase vehicles. On its basis, the former co-founders created their own transport company. The general director had to go to court, but he was never able to prove that he suffered as a result of a “set-up” on the part of his former partners.

One of the banal business truths says: when establishing an enterprise in partnership, think about how you will part with your partners. Obviously, the general director of the Novosibirsk enterprise did not take this possibility into account. He completely trusted his partners, and most of the agreements between the parties were “formalized” in words and not documented.

This company originated in the late 1990s. At that time, many neophyte businessmen did not think about business ethics and did not know about the existence of civilized management procedures. As domestic entrepreneurs accumulated experience (including experience in severing relations between co-owners), it became clear that general business is far from eternal.

People and businesses change so much over time that it is sometimes easier for co-owners to part ways than to continue joint activities. After all, partners may not only develop different views on doing business, but also develop personal hostility, in which there is no room for mutual trust. If in the first case peaceful forms of separation are still possible, then in the second, most likely, conflicts cannot be avoided.

Experts recommend performing a number of procedures already at the moment of creating an enterprise, so that later it will not be excruciatingly painful when you “divorce” your partner. They should be provided for even if the company initially has one owner - after all, partners may appear later, for example, as heirs or investors.

One of the most important and, most importantly, far-sighted procedures is the inclusion of relevant clauses in the constituent documents of the enterprise. Moreover, at the first stage, when all parties are interested in the successful development of the business, it is easier to agree on how to behave in the event of a conflict and provide options for exiting this situation.

“Already in the charter and constituent agreement of companies created jointly, it is possible to provide, for example, all the mechanisms that relate to property rights for shares and assets. The charter can set out the procedure for selling shares, describe the exact procedure for repurchasing shares, etc., notes Oksana Golubtsova, adviser at the legal bureau DS Law. “Such mechanisms will make it possible to eliminate conflicts in the future or reduce their intensity, since the algorithm of actions in a given situation will be known in advance.” Even if such clauses were not initially provided for in the charter, it makes sense to amend the constituent documents as soon as the first doubts arise about the honesty of the partners.

It is necessary to meticulously indicate the maximum possible number of details, advises IH Finam analyst Anton Soroko: “It is necessary to determine the procedure for making all key decisions in the life of the company, be it convening a general meeting of shareholders, concluding any transactions or changing the type of ownership. It is also necessary to describe in detail all situations related to the purchase and sale of a share of a company participant, indicate prerequisite giving consent to the transaction in writing by all remaining participants of the company, if one of the owners decided to withdraw from the capital and sell its share to a third party; determine the calculation scheme in advance, etc.”

We should not forget about the mechanism for informing partners about their desire to leave the business, he believes Executive Director Aspect consulting group Artem Genkin: “Such a mechanism should imply a sufficient time lag during which “pre-divorce preparation” of the company’s assets is carried out. At the same time, it is important to record that all important decisions (and not just approval major transactions) during this period are accepted by the partners consensually.” You can even provide in the documents a kind of “brake”, which in some cases will keep partners from leaving the business or make them think about whether it is worth breaking up if this means going through a risky procedure.

Thus, one of the Moscow companies introduced a principle that its shareholders call “pull.” Any of the partners at any time has the right to offer the other to buy out his share in the company at any percentage of the nominal value. The partner who receives such an offer must either sell his share in the company or make a counter offer to the initiator to buy out his share - at the same price.

And then the partner who initiated the first proposal will no longer have a choice: he is obliged to sell his share. “The point of such a scheme is that offers to buy out a partner’s share are initially made at a fair, and not an artificially low, price,” notes Artem Genkin.

Another interesting and effective document can be a shareholder agreement. This is a kind of voluntary gentleman's agreement that regulates the order of interaction between partners.

“In Russia, this practice is not yet widespread, so many entrepreneurs continue to enter into transactions in English law, since it protects them more than Russian legislation,” explains Tamara Kasyanova, managing partner of 2K Audit - Business Consulting / Morison International.

Nevertheless, shareholder agreements are becoming increasingly popular among domestic businessmen, especially if the holding structure includes non-resident companies. A certain advantage of the document is that it may even contain points that are not taken into account by Russian legislation, and sometimes even contradict it.

The interaction mechanism specified in the shareholder agreement may not be reflected in the constituent documents. “Since a shareholder agreement allows us to regulate issues that may not be directly provided for by existing corporate legislation, it is in this document that the procedure for “divorce” is often spelled out in detail,” says Oksana Golubtsova. “And in the event of litigation, the terms provided for in the agreement must be considered and taken into account.”

The institution of shareholders' agreements was introduced in July 2009, but since the shareholders' agreement is a non-public document, there is no reliable data on how widely it is used. The agreement itself does not need to be notarized or stored with a notary, but since this is not a simple document in structure and essence, it is better to involve lawyers in its preparation. But we must take into account that, according to expert estimates, this will cost at least 7 thousand euros. Lawyers can value their work at a much higher amount - it all depends on the type of business, its size, as well as the complexity of drafting the agreement. And if foreign entrepreneurs are involved in the agreement, then it is necessary to involve foreign lawyers in its drafting, whose services are even more expensive.

The business division scheme directly depends on the form of ownership in which a particular company operates. And this should also be taken into account at the very beginning. collaboration. It is possible that thoughts about a possible upcoming “divorce” will even influence the choice of the type of company to be created - LLC, CJSC or OJSC.

None of these forms of ownership have clear pros or cons when dividing a business. But, as usual, the nuances are important, which often determine the line of behavior of the parting owners or shareholders. “Shareholders of a closed joint-stock company have a chance to receive their initial contribution in kind during the division of the business, but a joint-stock company does not have such an opportunity,” explains Tamara Kasyanova. - At the same time, it is somewhat easier to terminate an LLC than an OJSC. And selling a closed joint stock company and its shares is a little easier and more profitable than selling an LLC.”

The division of business in an LLC looks most ambiguous, although theoretically it is enough for one or more co-owners to write a statement asking to pay what belongs to them real share. Its size is calculated based on market value assets. In practice, this can cause a serious blow to the participants remaining in the business, since by law the co-owner leaving the LLC also has the right to the property of this company. “He can take away all the property - for example, assets - and then the company will be left with nothing. There have been cases when enterprises had to curtail their activities altogether,” says Tamara Kasyanova.

A similar fate threatens primarily small companies, whose business is often concentrated in one or two enterprises, and not in holding structures, like big business. So the division of a business and a single company are different concepts. "If we're talking about about the division of one enterprise, then everything is quite clear: there is legislation, specific procedures within the framework of which the founders/shareholders must act. There are certain assets and liabilities that must be divided, says Oksana Golubtsova. - But when there are many enterprises, the situation becomes much more complicated, since they may have different forms of ownership: somewhere we are talking about receiving shares, somewhere - about receiving shares, the composition of assets can be completely different, some of them may be liquid, and some be unprofitable.”

As a result, a multi-level business division procedure is launched, and complex calculations are required to determine the fair value of the share of the business that belongs to the exiting partners.

In theory, the easiest way to divide a business is in an open joint stock company. It is only necessary to compensate the departing person for the cost of the shares, and the issue will be closed. He will receive either money (if the remaining partners bought out his securities) or an asset that can be offered for sale at open market. The enterprise's business will not suffer, and the rights of all shareholders, including minority shareholders, will be protected.

It is by no means always that owners begin to divide a business due to insoluble disagreements. There are often situations when the division of a business is due to production needs - for example, it is necessary to carry out tax or financial optimization, structure the business in certain areas or master the new kind activities. “Such peaceful or even planned “divorces” in the format of restructuring are very common - it’s just that, unlike high-profile scandals, they are not always heard,” says Oksana Golubtsova. Enterprises subject to antimonopoly legislation, for example, chain retailers, are periodically forced to use such schemes.

In the event of an amicable division, the parties should sit down at the negotiating table and, by inviting lawyers whom everyone trusts, set out the procedure for the upcoming actions. At the same time, partners figure out how to “divorce” in the most profitable way. “In such cases, sometimes it is better to sell the entire business and divide the money,” says Tamara Kasyanova. “But it also happens when it is easier for one of the parties to receive its share, for which a market assessment is carried out with the involvement of independent specialists.”

If all these details are already indicated in the constituent documents, the work is greatly facilitated, accelerated and costs the owners much less. Audit mechanisms for obtaining data on the real value of the company’s assets, as well as a scheme for attracting consultants who will be necessary when completing a transaction, should also be prescribed immediately. Then the price of “divorce” will be extremely clear to each party - in the literal sense of the word. Considering that separation, like creating a business, costs a lot of money, it would be useful to agree on who will bear the burden of financial costs - for example, you can oblige the initiator of the “divorce” to bear 70% of the financial costs.

If there are initial agreements, then during a “divorce” the partners will only need legal support for transactions related to division, transfer of assets, and posting of documents. When the parties trust each other, the process of dividing the business goes quickly - according to experts, it is possible to part ways peacefully in one to two months. It was during this period in 2006 that the co-owners of Stroymontazh, Sergei Polonsky and Artur Kirilenko, divided their business. The first received Moscow assets, which became Mirax Group, the second - the St. Petersburg part of the structure. It all came down to an exchange of shares without cash payments.

If the division of a business resembles military operations, then the process will become significantly more complicated and protracted. As a rule, in such situations there is no longer mutual understanding between the partners and it is extremely difficult for them to agree on something. “The loss of mutual trust is the saddest of all possible reasons for the division of a business,” comments Artem Genkin.

In a conflict, both sides always suffer. “There is a saying: “When going to war, dig two graves.” Losses during a controversial division of a business are much more likely than during a peaceful separation,” notes Tamara Kasyanova. The business begins to lose momentum, it is more difficult to sell it, as the price decreases, and debt may begin to grow. And if the parties begin to take illegal actions, then the attempt to “get divorced” risks dragging on for many years of litigation. It is possible that in the end neither party will win, and the business itself will simply disappear.

The situation is usually aggravated by the reluctance of the remaining owners to buy out the share of the shareholder leaving the enterprise. “And the law is on their side in this matter,” notes Anton Soroko. - And still, it is better to solve the problem by coming to a mutual agreement. Because in the absence of real progress towards reaching a compromise, partner teams may begin to use incorrect techniques.”

Artem Genkin includes a number of actions as such: withdrawal of funds under fictitious agreements; sale of tangible assets at reduced prices; falsification of decisions of company management bodies; manipulations with the register of shareholders (list of participants); initiation of business transactions that are unprofitable for the company (failure of contracts, refusal of counterparties to cooperate, etc.); initiation of inspections of the company by government authorities or unjust decisions of judicial authorities not in favor of the company; criminal “assaults”; actions against the company's top management; “black” PR, etc.

Meanwhile, even in the event of conflicting developments, we must strive for negotiations. Only if you have a positive attitude can you avoid spending significant funds on protecting your business interests. Although, of course, you will still have to fork out money for auditors, appraisers, lawyers, security specialists, and sometimes even for professional negotiators - mediators.

The mediation market is just beginning to take shape in Russia, so for now these functions in resolving controversial issues are more often taken on by trusted persons. They can be the same lawyers, auditors and even “neutral” entrepreneurs who are trusted by the conflicting parties. Thus, in December last year, Alisher Usmanov had to act as a mediator in resolving a protracted conflict between Norilsk Nickel shareholders - Vladimir Potanin and Oleg Deripaska. True, Usmanov cannot be called a completely disinterested party - his company Metalloinvest owns 4% of Norilsk Nickel shares.

This article continues a series of materials on reorganization. Previously, we wrote about transformation (see ""), selection (see "") and appendage (see ""). Today's material is devoted to reorganization in the form of separation. What is the best way to draw up a separation balance sheet? What documents should be sent to the counterparties of the predecessor company? Why is it necessary to reset the base for insurance premiums? These and other questions are covered in this material.

Initial separation stage

A demerger is a form of reorganization in which one company “breaks up” into several separate legal entities. In this case, all debts, assets, liabilities, profits and funds are distributed among the newly created organizations, and the predecessor company ceases to exist.

The very first step during division is the decision on reorganization, which is made by the owners. The company must report this decision in writing to the “registration” inspection within three working days, and bring the decision itself there. Also, within three working days it is necessary to inform the employees of the Pension Fund and the Social Insurance Fund (clause 3 of part 3 of article 28 Federal Law dated July 24, 2009 No. 212-FZ).

Then, within five working days from the date of filing the application with the inspectorate, it is necessary to notify all known creditors (Article 13.1 of the Federal Law of 08.08.01 No. 129-FZ “On state registration legal entities and individual entrepreneurs"). In addition, a notice of reorganization should be published twice, once a month, in special publications.

Finally, a new charter needs to be prepared and memorandum of association for each newly created company and conduct an inventory of the property and liabilities of the “old” organization. This is stated in paragraph 2 of Article 12 of the Federal Law of November 21, 1996 No. 129-FZ “On Accounting”.

Separation balance

At the next stage, the accountant will have to draw up a separation balance sheet. The date of its preparation is determined by the founders. According to the advice of officials, it is better to date the document at the end of the quarter or year (clause 6 of the Instructions for the formation of accounting records during reorganization *).

The regulations do not say what the separation balance sheet should look like. But in paragraph 1 of Article 59 of the Civil Code of the Russian Federation there is a requirement for content. It says it must have “succession provisions.” This is information about the extent to which property, as well as receivables and payables, are transferred to each of the newly formed legal entities. By the way, objects can be reflected in one of two ways: either at market value or at residual value. The founders decide which option to choose (clause 7 of the Instructions for the formation of accounting records during reorganization).
Due to the fact that there is no approved form for the separation balance sheet, companies have the right to invent their own forms. Most often, a regular balance sheet is taken as a basis, and columns are placed in it for the predecessor and for each of the successors.

So, if an organization is divided into two companies, then the separation balance sheet will have three columns. Moreover, the number indicated in one or another line of the first column is equal to the sum of the numbers in the second and third columns. For example, the predecessor had fixed assets worth 150 thousand rubles, and the successors divided them equally. Then the number “150,000” will appear in the first column of the corresponding line, and “75,000” must be entered in the second and third columns.

Does the predecessor need to make entries when transferring assets and liabilities? No no need. This answer follows from paragraph 26 of the Instructions for the formation of accounting records during reorganization.

Period until completion of the reorganization

Now you need to collect a package of documents and submit them to the “registering” tax office. The package should include a separation balance sheet, applications for state registration again companies being created, a document confirming the payment of state duty and other papers (the full list is given in paragraph 1 of Article 14 of the Federal Law of 08.08.01 No. 129-FZ).

Having received the documents, the Federal Tax Service must make entries in the unified state register of legal entities stating that the “old” organization has ceased to exist, and new ones, on the contrary, have begun to operate.

Practice shows that inspectors can make entries in the Unified State Register of Legal Entities in just a few days, or maybe in a few months. During this time, the predecessor company continues to operate. In particular, it calculates wages, depreciation, issues invoices and issues primary documents.

Final financial statements of the predecessor company

A company that ceases operations must prepare final financial statements. It must be dated on the day preceding the date of entry into the Unified State Register of Legal Entities about the division. The reporting consists of reports and explanations and an auditor's report (if the organization was subject to a mandatory audit).

The final statements should reflect transactions that occurred during the period from the date of drawing up the separation balance sheet until the closure of the predecessor company. Because of these transactions, the separating and closing balance sheet data will differ from each other.

Also, the predecessor organization must close account 99 “Profits and losses” and form retained earnings (uncovered loss). This needs to be done in the context of the companies being created, that is, in such a way that the resulting indicators are transferred to each of the new legal entities.

After the final reporting, the “divided” company does not have to submit balance sheets and other documents, because the last reporting period for it is the time from the beginning of the year to the date of reorganization.

Introductory accounting of newly formed companies

Newly formed organizations must draw up opening balance sheets as of the date of entry into the Unified State Register of Legal Entities about the division. Column 3 should reflect information as of the date of reorganization. There will be dashes in columns 4 and 5, since as of December 31 of last year and the year before that, the successor companies did not yet exist.

Particular attention should be paid to the authorized capitals of successor organizations. If their amount is less than the capital of the predecessor company, then the difference is reflected in the opening balance sheets in the line “Retained earnings (uncovered loss).” If the amount of the authorized capital of the legal successors is greater than the capital of the “divided” company, such a difference does not need to be shown in the balance sheet. In both cases, the accountant should not make any entries.

Introductory balances are submitted to the Federal Tax Service Inspectorate either immediately after registration or at the end of the current quarter - depending on what is more convenient for the inspector.

"Primary" in the transition period

As a result of reorganization in the form of division, newly formed companies inherit, among other things, contractual relations with counterparties. Moreover, the agreements were signed by the predecessor organization.

There are two possible ways here. The first is to conclude with suppliers and buyers additional agreements about replacing the parties to the transaction. The second is to simply send information letters to partners, which indicate the name and details of the new organization.

The first way is more reliable, but also more troublesome. The second way is also acceptable, because according to paragraph 3 of Article 58 of the Civil Code of the Russian Federation, the rights and obligations of the predecessor company on the separation balance sheet are transferred to the newly formed legal entities. This also applies to contractual relationships. Thus, if you have an extract from the Unified State Register of Legal Entities and a separation balance sheet, it is quite possible to do without additional agreements.

Invoices, invoices and certificates of work performed for “inherited” counterparties must be written out as follows: up to the day of reorganization on behalf of the predecessor, on the date of reorganization and further - on behalf of the successor.

Mutual settlements with the budget

If the predecessor company had an overpayment of taxes, then the successor who received the corresponding receivables according to the separation balance will be able to return it from the budget. But a refund is not possible in any case, but only on the condition that the divided legal entity has no remaining debts on other taxes, penalties and fines. To receive money from the budget, the assignee should write a return application and attach a separation balance sheet, a reconciliation report (if available) and other documents confirming the payment of taxes.

The arrears are also distributed among all legal successors in accordance with the separation balance. If a successor's share cannot be determined or he or she is unable to pay the "inherited" taxes, the remaining successors may have to assume this responsibility themselves. This can happen in court if it is proven that the entire reorganization is aimed at tax evasion (Clause 7, Article 50 of the Tax Code of the Russian Federation).

Carry forward of losses and depreciation

The legal successors have the right to take into account the losses of the divided organization. This directly follows from paragraph 5 of Article 283 of the Tax Code.

In addition, a newly created company that has received a property from its predecessor can safely charge depreciation. Although general rule depreciation of real estate is allowed only after submitting documents for state registration of property rights (clause 11 of Article 258 of the Tax Code of the Russian Federation); during reorganization, this prohibition does not apply. This is due to the fact that ownership of the property automatically passes to the assignee under the separation balance. This point of view is also expressed by officials (letter of the Ministry of Finance of Russia dated December 31, 2010 No. 03-03-06/1/817).

Tax base for VAT

The newly created company must include in the taxable base the prepayment received from buyers before the separation and “inherited” according to the separation balance sheet. And the tax on advances previously accrued for payment can be deducted by the successor (clauses 1 and 2 of Article 162.1 of the Tax Code of the Russian Federation).

“Input” VAT paid to suppliers or at customs and not accepted for deduction before the reorganization is subject to deduction from the legal successor who received the corresponding objects (results of work, services, etc.). To do this, certain conditions must be met. The corresponding objects must be used in transactions subject to VAT and be registered by the assignee. In addition, you must have an invoice, a “primary” invoice. Finally, the predecessor must have documents confirming payment for the objects (clause 5 of Article 162.1 of the Tax Code of the Russian Federation).

When deducting VAT, the accountant of the newly formed company needs to check the date of the invoice issued in the name of the predecessor. If this date is later than the day the reorganization took place, inspectors will likely invalidate the deduction. The only way out in this situation is to ask the supplier to correct the invoice.

Personal income tax reporting

In a reorganization in the form of division, employees move from their predecessor to their successors. Moreover, according to Article 75 of the Tax Code of the Russian Federation labor Relations there are no interruptions with employees. Also, the tax period is not interrupted, because the employer acts as a tax agent, and not a taxpayer. Consequently, no interim income tax reporting individuals There is no need to hand over when dividing.

Please note: if an employee brings a notice for property deduction, where the “divided” organization is indicated as the employer, the accounting department of the “new” company must refuse him. The employee will have to go to the tax office again and get another notice confirming the deduction related to the legal successor. Such clarifications were given by the Federal Tax Service of Russia. Practice shows that inspectors everywhere follow these clarifications and cancel the deduction provided under an “outdated” notification.

Insurance premium base

Also, the accountant of the company created as a result of the division will have to answer the question: is it necessary to reset the base for insurance premiums, or continue the countdown that began before the reorganization? In the first case, the assignee will lose the right to exempt accruals from contributions that exceed the maximum amount (in 2011 it is equal to 463,000 rubles). In the second case, the base is inherited, and with it the right not to pay contributions on the excess amount.

In our opinion, the successor must re-start the determination of the base for insurance premiums. The fact is that for a company created after January 1, the first billing period is the time from the date of creation to December 31 (Part 3 of Article 10 of the Federal Law of July 24, 2009 No. 212-FZ). Moreover, there are no provisions in this law that would talk about the transfer of the base by inheritance.

*Full title of the document: “Guidelines for the formation financial statements when carrying out the reorganization of organizations"; approved by order of the Ministry of Finance of Russia dated May 20, 2003 No. 44n.

There is only one founder of the Company. The company owns two shopping center: Romashka shopping center and Buttercup shopping center. Question: How can a company be divided into two legal entities, each with its own shopping center? For example, can the founder sell the Buttercup shopping center to other founders who will create an independent legal entity? And also, in 2012, the company reimbursed VAT from budget for the purchase of the Romashka shopping center, this fact may attract the attention of the tax authorities. Three years have passed.

2) Yes, you can do this. Register the sale of the shopping center as the sale of a fixed asset.

3) No, this fact should not attract the attention of tax authorities, since when selling a shopping center you will pay VAT.

The division of an LLC is a rather lengthy and complex process, the result of which largely depends on the correct work of a lawyer. Each stage requires maximum concentration and attentiveness. Thus, a transfer deed drawn up in violation of the requirements of the law may entail joint liability for the debts of creditors for the entities created during the reorganization process. Violation of the rights of participants at a general meeting may become a reason for the court to invalidate the decision to divide the LLC. Due to improper notification of creditors by the reorganized LLC, the registration authority may refuse to make an entry in the Unified State Register of Legal Entities confirming the fact of the reorganization. Submitting an incomplete set of documents to the registration authority will not allow the organizations being created to be registered.

Came into force on September 1, 2014 new edition Chapter 4 of the Civil Code of the Russian Federation, which largely changed the reorganization procedure in the form of division.

In order for the reorganization in the form of division to take place in accordance with the law and without negative consequences, the lawyer of the reorganized LLC must first of all develop rough plan actions. The procedure consists of several stages. When dividing an LLC, you must:

1. Make a decision to convene a general meeting of LLC participants on the issue of reorganization in the form of division.

3. Draw up a transfer deed.

4. Hold a general meeting of participants of the reorganized LLC in order to make a decision on division.

5. Notify the tax office about the start of the reorganization procedure.

6. Notify the creditors of the reorganized LLC and settle accounts with those of them who make a demand for early fulfillment of the obligation or for its termination and compensation for losses.

7. Reconcile settlements with the tax inspectorate (clause 3.3 of the Regulations for organizing work with taxpayers, payers of fees, insurance contributions for compulsory pension insurance and tax agents, approved by order of the Federal Tax Service of Russia dated September 9, 2005 No. SAE-3-01/444 ; hereinafter referred to as the Regulations).

8. Submit to the territorial authority Pension Fund information specified by the legislation of the Russian Federation.

9. Develop draft charters for each of the legal entities being created.

10. Hold a general meeting of participants in each of the LLCs being created.

11. Register the reorganization (submit documents to the registration authority to make entries in the Unified State Register of Legal Entities).

Is it necessary to notify social and pension insurance funds about the reorganization of an LLC in the form of division

No no need.

Rationale

Previously, such a requirement was established in paragraph 3 of part 3 of article 28 of the Federal Law of July 24, 2009 No. 212-FZ “On insurance contributions to the Pension Fund Russian Federation, Social Insurance Fund of the Russian Federation, Federal Compulsory Medical Insurance Fund” (hereinafter referred to as the Law on Insurance Contributions).

The law required written notification of the reorganization of the LLC (including in the form of division) to the Pension Fund of the Russian Federation and the Social Insurance Fund of the Russian Federation. They control the payment of insurance premiums ().

The company had to submit a written message to the territorial body of each of the funds about the decision on reorganization. Messages were submitted within three working days from the date of adoption of the relevant decision. For violation of the notice period, the organization could be charged a fine of 200 rubles. for each document not submitted ().

The law did not establish any requirements for the content of messages, so it was possible to send them in free form, indicating all the necessary information.

Attention! If the LLC is an issuer of bonds, additional measures must be taken during the process of its reorganization in the form of division.*

The law gives LLCs the right to place bonds (Clause 1, Article 31 of the Law on LLCs). If the reorganized company took advantage of this opportunity (i.e., became an issuer of bonds), then the reorganization must be carried out taking into account a number of features.

Firstly, when drawing up a transfer deed, you need to ensure that all obligations under bonds of the same issue are transferred only to one of the entities being created.

If such obligations are transferred to different persons, then the rules of Article 27.5-5 of the Federal Law of April 22, 1996 No. 39-FZ “On the Market” will be violated valuable papers"(hereinafter referred to as the Law on Securities Markets). This violation may cause refusal to register the reorganization.

Secondly, after making a decision on reorganization you need to:

• make changes to the decision on the issue (additional issue) of bonds;
• replace previously issued or executed certificates of bearer bonds issued in documentary form with new certificates. New certificates must indicate that the issuer of the bonds is the entity being created.

Such rules are established in paragraph 2 of clause 6 of Article 27.5-5 of the Law on the Securities Market.

Changes to the decision on the issue (additional issue) of bonds are usually made by the general meeting of participants. However, there may be cases where the board of directors is authorized to make such changes.

Rationale

Changes to the decision on the issue (additional issue) of issue-grade securities are made by the issuer's body, whose competence includes the approval of such a decision (clause 2 of article 24.1 of the Law on the Securities Market, clause 9.3 of the Bank of Russia Regulations of August 11, 2014 No. 428-P “On standards for issuing securities, the procedure for state registration of an issue (additional issue) of issue-grade securities, state registration of reports on the results of an issue (additional issue) of issue-grade securities and registration of prospectuses of securities”; hereinafter referred to as the Regulations on Issue Standards).

The right to approve this decision belongs to the board of directors (supervisory board) or the management body performing the functions of the board of directors of a business company (clause 2, article 17 of the Law on the Securities Market, clause 3.2 of the Regulations on Emission Standards).

The board of directors of the reorganized company has the right to make changes to the decision on the issue (additional issue) of bonds if two conditions are simultaneously met:

• such a body has been formed (clause 2 of article 32 of the LLC Law);
• The company's charter provides that the competence of this body includes the issue of approving the decision on the issue (additional issue) of issue-grade securities and (or) the issue of introducing changes to this decision ().

In all other cases, changes to the decision on the issue (additional issue) of bonds are made by the general meeting of participants.

The essence of the changes boils down to the fact that the issuer of bonds is not the reorganized LLC, but its legal successor - the newly created entity to which the obligations under the bonds are transferred. Such changes must be stated in the form given in Appendix 19 to the Regulations on Emission Standards.

Changes can be made without the consent of bondholders (clause 4 of article 24.1 of the Law on the Securities Market).

If the issue (additional issue) of bonds was subject to state registration, then the changes made to the decision on such issue must also be registered (Clause 5, Article 24.1 of the Law on the Securities Market). The documents required for registration are listed in clauses 9.9, 11.3 of the Regulations on Emission Standards. The registration procedure is established in paragraphs 2.1–5 of Article 20, paragraphs 6–9 of Article 24.1 of the Law on the Securities Market.

Changes to the decision on the issue (additional issue) of bonds come into force from the moment the reorganization is completed (paragraph 3, paragraph 6, article 27.5-5 of the Law on the Securities Market, paragraph 11.5 of the Regulations on Issue Standards).

Thirdly, within 30 days from the date of completion of the reorganization, the created entity to which the obligations under the bonds were transferred is obliged to notify the Bank of Russia about the reorganization of the bond issuer and its replacement with a legal successor. If the reorganized LLC was an issuer of exchange-traded bonds, then instead of the Bank of Russia it is necessary to notify the exchange that admitted exchange-traded bonds to organized trading (clause 7, article 27.5-5 of the Law on the Securities Market, clause 11.6 of the Regulations on Issue Standards).

Fourthly, the created entity to which the obligations under the bonds have been transferred is obliged to disclose information according to the rules of the Securities Market Law in each of the following cases:

• the bond prospectus of the reorganized LLC was subject to state registration;
• the reorganized LLC was an issuer of exchange-traded bonds admitted to organized trading with the submission of a prospectus of exchange-traded bonds to the exchange.

This rule is established in paragraph 8 of Article 27.5-5 of the Law on the Securities Market.

What requirements must a transfer deed meet when dividing an LLC?

Rights and obligations from the reorganized LLC to the created entities are transferred on the basis of a transfer act (clause 3 of Article 58 of the Civil Code of the Russian Federation). Previously (before September 1, 2014), the document in which it was necessary to reflect the provisions on succession was called a separation balance sheet. However, the requirements for drawing up such a document have not changed much.

The transfer act must contain provisions on the succession of all obligations of the reorganized LLC in relation to all its creditors and debtors, including obligations disputed by the parties (clause 1 of Article 59 of the Civil Code of the Russian Federation). In addition, the transfer deed must establish the procedure for determining succession in cases where, after the date of drawing up the deed:

• the type, composition, value of property will change;
• the rights and obligations of the reorganized LLC will arise, change, or cease.

Attention! The absence of provisions on succession of obligations in the transfer deed entails negative consequences for the LLC.*

If there are no provisions on legal succession in the act, the tax inspectorate may refuse to register the newly created entities (paragraph 2, paragraph 2, article 59 of the Civil Code of the Russian Federation).

If the newly created entities do register, there may be a risk of their joint and several liability to creditors. This means that creditors will be able to demand the fulfillment of obligations from any of the created organizations or from all organizations jointly (clause 1 of Article 323 of the Civil Code of the Russian Federation).

The created persons will bear such liability if the transfer deed does not allow determining the legal successor for the obligation of the reorganized LLC ().

The rights and obligations of the reorganized company must be distributed among the created persons according to the principle of fair distribution of assets and liabilities (the principle of proportionality). For example, if, as a result of division, two new LLCs are created with identical authorized capitals, then it is impossible to transfer debts on obligations to only one of the created companies. Such a reorganization will most likely be registered, but the interests of the creditors of the reorganized LLC will be infringed. Therefore, the law establishes that in the current situation the created persons will bear joint and several liability (). In other words, the creditor will have the right to make a claim against any of the created entities, and not just the person to whom the debt under the obligation was transferred on the basis of the transfer deed (paragraph 2, paragraph 22 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated November 18, 2003 No. 19 “On some issues of application of the Federal Law “On joint stock companies"" – this resolution regulates relations between JSCs, but in practice it also applies to LLCs).

The transfer act is drawn up by the accounting department of the reorganized LLC in cooperation with legal department. The form of the transfer deed is not approved by law. Usually it establishes that the reorganized LLC transfers, and the legal successors (created entities) accept:

1) property. The asset (current and non-current assets) and liability (capital and reserves, long-term and short-term liabilities) are indicated;

2) documentation. An approximate list of documents attached to the transfer deed is formulated in paragraph 4 Guidelines on the preparation of financial statements during the reorganization of organizations approved by order of the Ministry of Finance of Russia dated May 20, 2003 No. 44n. Such documents are:

• accounting statements, in accordance with which the composition of property and liabilities is determined;
• acts (inventory) of inventory of property and liabilities (inventory must be carried out before drawing up the transfer act);
• primary accounting documents for material assets (for example, acts of acceptance and transfer of fixed assets);
• decoding (inventory) of accounts payable and receivable with information about written notification of creditors and debtors about the transfer to the legal successor of property and obligations under contracts, as well as settlements with the budget and state extra-budgetary funds.

In addition, during reorganization it is necessary to transfer the documents listed in paragraph 1 of Article 50 of the Law on LLC (decision to establish the reorganized LLC, its charter, certificate of state registration, minutes of general meetings of participants, etc.). The law establishes that the conditions and place of storage of such documents must be determined by the founders (authorized body) of the reorganized entity (Clause 9, Article 23 of the Federal Law of October 22, 2004 No. 125-FZ “On Archival Affairs in the Russian Federation”). Therefore, in the transfer deed, it makes sense to indicate which documents will be transferred during the division process, and which of the created companies will be responsible for their storage.

The transfer act comes into force from the moment of its approval by the general meeting of participants of the reorganized company (clause 2 of article 54 of the LLC Law).

How is the decision to reorganize an LLC in the form of division made?

The decision on reorganization in the form of division is made by the general meeting of participants of the reorganized LLC (Clause 2 of Article 54 of the LLC Law). In a society with a single participant, the decision is made solely by this participant ().

The issue of reorganization falls within the exclusive competence of the general meeting of LLC participants (or the sole participant of the company). Other bodies (for example, the sole executive body) do not have the right to make decisions on such an issue ().

The meeting of participants is held according to the general rules established by law (Art. , Law on LLC). The decision on reorganization is made by all participants of the company unanimously (paragraph 2, paragraph 8, article 37 of the LLC Law).

The general meeting of participants of the reorganized LLC makes decisions on the following issues (clause 2 of Article 54 of the Law on LLC):

• on the reorganization of the LLC in the form of division;
• about the procedure and conditions for separation. It is necessary to determine the procedure for exchanging shares in the authorized capital of a reorganized LLC for shares in the authorized capital of newly created LLCs. You can also establish the procedure and period for notifying creditors and for publishing a message in the media, the procedure and period for holding a general meeting of participants of each LLC being created, etc. Such a detailed settlement of relations will help to avoid possible disputes and adverse consequences;
• on the creation of new legal entities. It is necessary to indicate information about each entity being created (name, location, amount of authorized capital);
• on approval of the transfer act (the transfer act is attached to the decision).

Who can be a participant in an LLC created as a result of a division?

Initially, only participants of the reorganized company, whose shares in the authorized capital will be exchanged for shares in the authorized capital of the LLC being created in accordance with the approved procedure.

Third parties can become participants in the LLC being created only after its state registration (for example, upon subsequent acquisition of its shares). Directly at the time of registration, third parties will not be able to act as founders. You cannot form an LLC by combining two different methods of creation legal entity– establishment and reorganization.

Who can transfer property to authorized capital LLC created as a result of division

Only reorganized LLC.

Neither the participants of the reorganized company nor any other persons have the right to transfer property to the authorized capital of the LLC created in the process of division.

The transfer of property is carried out only on the basis of a transfer deed (clause 3 of Article 58 of the Civil Code of the Russian Federation).

The authorized capital of the LLC being created is formed by:

• authorized capital of the reorganized LLC
• and (or) other own funds reorganized LLC (additional capital, retained earnings, etc.).

Attention! If the general meeting of participants is held in violation of the requirements of the law, then the decision to reorganize the LLC in the form of division may be declared invalid.*

A request to invalidate such a decision may be submitted (by):

• participants of the reorganized LLC;
• other persons who are not participants, if such a right is granted to them by law.

You can submit this demand to the court no later than three months after an entry is made in the Unified State Register of Legal Entities about the beginning of the reorganization procedure (paragraph 2, paragraph 1, article 60.1 of the Civil Code of the Russian Federation).

If the court satisfies such a requirement, negative consequences will follow. They will differ depending on whether the entities being created have registered or not yet.

However, in any case, persons who contributed in bad faith to the decision on reorganization will be obliged to jointly compensate for losses (clause 4 of Article 60.1 of the Civil Code of the Russian Federation):

• a participant in the reorganized LLC who either voted against the decision on reorganization or did not take part in the voting;
• creditors of the reorganized LLC.

If the decision on reorganization is declared invalid before the registration of the first entity being created, the executive body of the LLC will be forced to convene another (extraordinary) general meeting of participants (), which will negatively affect the activities of the company:

• the period for the reorganization will increase;
• the reorganization of the LLC in the form of division may not take place at all. After all, the person who appealed the decision on reorganization due to violation of the requirements for holding a meeting () will most likely vote against the reorganization in the future.

If the entities being created manage to register, they will bear joint liability along with other responsible persons (Clause 4, Article 60.1 of the Civil Code of the Russian Federation). At the same time, the created organizations will continue their activities. Recognition of a decision on reorganization as invalid will not entail the liquidation of the created entities or serve as a basis for declaring transactions made by them invalid ().

If the decision on reorganization is declared invalid at the time when only a part of the created entities are registered, succession will occur only in relation to the registered entities. The rest of the rights and obligations will remain with the reorganized LLC.

Attention! If the general meeting of participants does not decide to divide the LLC, but the division is carried out anyway, then the reorganization may be declared invalid*

A request to recognize the reorganization of an LLC as invalid can be submitted by a participant who voted against the decision on reorganization or did not take part in voting on this issue (clause 1 of Article 60.2 of the Civil Code of the Russian Federation).

The fact that the court recognizes the reorganization of the LLC as failed will cause the following consequences (clause 2 of Article 60.2 of the Civil Code of the Russian Federation).

Firstly, the reorganized LLC will be restored, and at the same time the created legal entities will cease to exist. This will be recorded in the Unified State Register of Legal Entities.

Secondly, the transactions between each of the persons created and the persons relying in good faith on the succession will remain valid. However, the parties to these transactions will be considered not the created entities, but the reorganized LLC.

Thirdly, the transfer of rights and obligations from the reorganized LLC to the created entities will be considered failed. If the debtors of the reorganized LLC, who in good faith relied on succession on the creditor’s side, make a provision in favor of the created entity (make payments, provide services, etc.), such provision will be considered made in favor of the reorganized (authorized) LLC.

Fourthly, the participants of the reorganized LLC will be recognized as owners of shares in the authorized capital in the amount in which the shares belonged to them before the reorganization. If during the reorganization process or upon its completion there is a change of participants, the participant who has lost shares in the reorganized LLC will be able to demand:

• return the shares to him with payment of fair compensation to the persons to whom such shares were transferred during or after the reorganization, and

• compensate for losses at the expense of persons responsible for the loss of shares.

What actions need to be taken after making a decision to reorganize the LLC in the form of division

After making a decision on division at the general meeting of participants of the reorganized company, it is necessary to perform a number of actions established by law:

• notify the tax office about the start of the reorganization procedure;
• notify creditors and settle accounts with those of them who present a demand for early fulfillment of the obligation or for its termination and compensation for losses;
• reconcile settlements with the tax office (clause 3.3 of the Regulations);
• submit to the territorial body of the Pension Fund of the Russian Federation the information specified by law;
• hold a general meeting of participants in each of the LLCs created during the division process (before holding the meeting, a draft charter of the company being created must be developed).

How to notify the tax office about the start of the reorganization procedure

The tax inspectorate must submit a written notification of the start of the reorganization procedure in form No. P12003, approved by Order of the Federal Tax Service of Russia dated January 25, 2012 No. ММВ-7-6/25@ (hereinafter referred to as Order No. ММВ-7-6/25@). This must be done within three working days after the company makes the decision to reorganize. Moreover, the notification must be submitted along with the decision on division.

Rationale

Such rules are established in paragraph 1 of Article 60 of the Civil Code of the Russian Federation, paragraph 1 of Article 13.1 of the Federal Law of August 8, 2001 No. 129-FZ “On State Registration of Legal Entities and Individual Entrepreneurs” (hereinafter referred to as the Law on State Registration), paragraph 19 of the Administrative regulations for the provision by the Federal Tax Service public services on state registration of legal entities, individuals as individual entrepreneurs and peasant (farm) households (approved by order of the Ministry of Finance of Russia dated June 22, 2012 No. 87n; hereinafter referred to as the Administrative Regulations).

The notification is signed by the general director of the reorganized LLC or another person acting on behalf of the company without a power of attorney (hereinafter referred to as the applicant).

Is it necessary to have the applicant’s signature certified by a notary on the notification of the start of the procedure for reorganizing the LLC in the form of division

Yes, it is necessary, except for the situation when the notification is sent to the inspectorate in the form electronic document.

On May 5, 2014, the changes made to paragraph 1.2 of Article 9 of the Law on State Registration by Federal Law No. 107-FZ of May 5, 2014 “On Amendments to the Federal Law “On State Registration of Legal Entities and Individual Entrepreneurs”” came into force. .

Now the law directly provides that the signature on the notice of the start of the reorganization procedure does not need to be certified by a notary if the applicant sends the notification via information and telecommunication networks (including the Internet) in the form of an electronic document signed with an enhanced qualified electronic signature (paragraph 5 Clause 1.2 of Article 9 of the Law on State Registration).

In all other cases, the applicant’s signature must be notarized (clause 1.2 of article 9 of the Law on State Registration, clause 38 of the Administrative Regulations, paragraph 3 of clause 1.18 of the Requirements for the execution of documents submitted to the registration authority, approved by order No. MMV- 7-6/25@).

The notification must be submitted to the inspectorate performing the functions of the registration authority. It is important to take into account that in cities with a population of at least 1 million people, unified registration centers can be created (clause 3 of the order of the Ministry of Taxes of Russia of July 22, 2004 No. SAE-3-09/436@). If a Unified Registration Center has been created in a city, then other city inspectorates do not carry out registration. For example, in Moscow the registration authority (Unified Registration Center) is MIFTS No. 46 for Moscow. This is where you need to submit a notification about the start of the reorganization procedure for an LLC located in Moscow.

Attention! If the reorganized LLC does not notify the tax office about the start of the division procedure, negative consequences will arise.*

Firstly, the tax office may refuse to register newly created legal entities. As a result, the reorganization will not be completed.

Rationale

Notifying the tax inspectorate about the start of reorganization is a mandatory stage of the separation procedure.

If the company does not notify the inspectorate, then it will not be able to notify its creditors of the reorganization, that is, publish the necessary messages in the journal “Bulletin of State Registration”. The fact is that for such publication it is necessary to submit to the editors of the journal a document confirming the entry into the Unified State Register of Legal Entities about the beginning of the reorganization. This follows from paragraph 2 of paragraph 1 of Article 60 of the Civil Code of the Russian Federation and is directly provided for by the rules on the journal’s website.

In turn, when registering each created legal entity, it is necessary to provide evidence to the inspectorate that the reorganized LLC has notified creditors.

True, such an obligation is not established by the Law on State Registration (i.e. not a special normative act regulating the procedure for registering legal entities), and paragraph 2 of paragraph 5 of Article 51 of the LLC Law. Therefore, there is an opinion that when registering a reorganization, evidence of notification to creditors is not actually necessary. In particular, on the official website of the Federal Tax Service of Russia, this evidence is not named in the list of submitted documents.

However, the risk cannot be ruled out that the inspectorate will refuse to register the entity being created, citing the lack of evidence of notification of creditors. Moreover, in the event of a dispute with the inspection, the court may side with it and consider that evidence of notification is mandatory documents for registration. This conclusion has often been found in judicial practice 2006–2011 (decrees of the Federal Antimonopoly Service of the North Caucasus District dated March 24, 2011 in case No. A32-11446/2010, FAS Ural District dated November 21, 2007 No. F09-9539/07-S4 in case No. A76-2083/ 07-56-121, FAS East Siberian District dated December 5, 2006 No. A33-9795/06-F02-6492/06-S2 in case No. A33-9795/06). It is possible that the court will come to this conclusion at the present time.

In particular, the inspection (court) may adhere to the following position.

The legislation on state registration of legal entities consists of (paragraph 3 of article 1 of the Law on State Registration):

• Civil Code of the Russian Federation;
• Law on State Registration;
• other regulatory legal acts issued in accordance with the two laws mentioned above.

In turn, the Law on LLC, in accordance with the Civil Code of the Russian Federation, determines the procedure for the reorganization of limited liability companies (clause 1, article 1, clause 1, article 51 of the Law on LLC). Consequently, when registering a reorganization, it is necessary not only to comply with the procedure provided for by the Law on State Registration, but also to fulfill the obligation established by law about the LLC (i.e., submit to the registration authority evidence of notification of creditors).

If the created organizations are nevertheless registered, disputes may subsequently arise with the creditors of the reorganized LLC. Moreover, most likely, the court will be guided by the rules on joint and several liability provided for in paragraph 3

Is the LLC obliged to send written notifications to each creditor about the start of the division procedure according to the rules of Article 13.1 of the Law on State Registration

From October 21, 2009 to the present time, other rules for notifying creditors have been in effect (subclause 11, clause 4, article 6 of the Federal Law of July 19, 2009 No. 205-FZ “On Amendments to Certain legislative acts Russian Federation"). Now, paragraph 5 of Article 51 of the LLC Law does not oblige sending messages to each creditor.

Creditors have the right to apply to the LLC with demands for early fulfillment of an obligation or for its termination and compensation for related losses (hereinafter referred to as demands), if the following conditions are simultaneously met:

1) the creditor’s rights of claim arose before the LLC published the first notice of reorganization (paragraph 1, paragraph 2, article 60 of the Civil Code of the Russian Federation);

2) The LLC did not provide the creditor with sufficient security (paragraph 3, paragraph 2, article 60 of the Civil Code of the Russian Federation);

3) the law or the agreement of the creditor with the LLC does not provide for a prohibition to present a claim (paragraph 1, paragraph 2, article 60 of the Civil Code of the Russian Federation).

Creditors have the right to make claims against the LLC:

• only in court (paragraph 1, paragraph 2, article 60 of the Civil Code of the Russian Federation);
• no later than 30 days after the last notice of reorganization is published (paragraph 2, paragraph 2, article 60 of the Civil Code of the Russian Federation).

The fact that the creditor has submitted a claim is not considered a reason to suspend the reorganization procedure (paragraph 6, paragraph 2, article 60 of the Civil Code of the Russian Federation). At the same time, this requirement will need to be fulfilled before this procedure is completed. The law directly names depositing the debt as one of the possible methods of execution (paragraph 4, paragraph 2, article 60 of the Civil Code of the Russian Federation).

At the same time, the creditor will lose the right to demand early fulfillment of the obligation (its termination and compensation for losses) if, within 30 days from the moment the creditor made the demand, the LLC provides him with sufficient security (paragraph 5, paragraph 2, article 60 of the Civil Code of the Russian Federation).

Attention! If the LLC, reorganized in the form of division, does not fulfill the creditor’s demand and does not provide sufficient security, joint and several liability will arise*

The following will be jointly and severally liable to the creditor:

1) legal entities created as a result of reorganization;

2) persons who had the actual opportunity to determine the actions of the reorganized LLC (clause 3 of Article 53.1 of the Civil Code of the Russian Federation);

3) members of the supervisory board and board of the reorganized LLC;

4) general director of the reorganized LLC.

However, the persons specified in paragraphs 2–4 of the above list will be liable provided that they, through their actions (inaction), contributed to the fact that the reorganized LLC did not fulfill the creditor’s requirement and did not provide sufficient security.

Such rules are established in paragraph 3 of Article 60 of the Civil Code of the Russian Federation.

How to hold a general meeting of participants of the LLC being created

A general meeting of participants is held in each LLC being created (Clause 3, Article 54 of the LLC Law). Purposes of the meeting:

• approve the charter of the LLC being created;
• elect the bodies of the LLC being created.

The general meeting of participants must be held before the state registration of the LLC being created. This follows from the interpretation of the Law on State Registration. The article stipulates that in order to register a new LLC, it is necessary to submit the charter of the company. As shown above, the charter is approved by the general meeting of participants of the LLC being created.

The procedure for holding a general meeting of participants of an LLC being created is not provided for by law. In practice, such a meeting is held according to the rules of the LLC Law, which regulate the procedure for establishing a company. At the same time, this meeting cannot be identified with the meeting of founders. After all, the establishment of a company and reorganization - different ways LLC creation. When establishing a company, the decision to create a company is made by the meeting of founders, and when reorganizing in the form of division, the decision is made by the general meeting of participants of the reorganized LLC.

If there is only one participant in the LLC being created, then he alone approves the charter of the company and appoints its bodies. Decisions of the sole participant on such issues must be made in writing.

How to register legal entities created during reorganization in the form of division

The reorganization of an LLC in the form of division is considered completed from the moment of state registration of the last of the created legal entities. At the same time, the reorganized company ceases its activities (clause 3 of article 16 of the Law on State Registration).

Registration is carried out by making entries in the Unified State Register of Legal Entities by the tax inspectorate. The reorganized LLC must submit to the inspection established by law set of documents.

From September 1, 2014, documents for registration are allowed to be submitted no earlier than the deadline for appealing the decision on reorganization has expired, that is, no earlier than three months from the date of entry into the Unified State Register of Legal Entities about the start of the division procedure (paragraph 3, paragraph 4, article 57 of the Civil Code RF).

Vladislav Dobrovolsky

Candidate of Legal Sciences, Head of Corporate Practice of the Yakovlev and Partners Legal Group (in 2001–2005 – judge Arbitration Court Moscow)

Vitaly Perelygin

senior expert of the Law Firm "Sistema Lawyer"

Gennady Uvarkin

Candidate of Legal Sciences, Deputy general director Legal Bureau "Omega"

Documenting

Complete the sale of fixed assets with standard documents or use your own developed forms. In the latter case, the main thing is that the forms contain all the necessary details. Whatever form you use - standard or independently developed, the manager must approve it.*

Standard forms There are different acts of acceptance and transfer for the sale of fixed assets:

• for one object, except for buildings and structures, - form No. OS-1;
• for several homogeneous objects, except for buildings and structures, - form No. OS-1b;
• for a building or structure - form No. OS-1a.

As a general rule, deeds must be drawn up on the date when ownership of the property passes from the seller to the buyer. This usually defaults to the day of shipment unless otherwise specified in the delivery agreement. An exception is provided only for buildings or structures. The acceptance certificate for such objects is drawn up on the date of transfer of the object. It does not matter whether the property rights to the object are registered or not.

Draw up acts based on technical documentation for fixed assets, as well as accounting data. For example, turnover on account 02 “Depreciation of fixed assets” will allow you to fill in information about the amount of accrued depreciation.

Draw up the acts in two copies, one of which is given to the buyer. At the same time, the section “Information on fixed assets as of the date of acceptance to accounting» do not fill in. The buyer must do this in his copy of the deed. Both copies of the act must be signed and approved by both the supplier and the buyer.

In the acts, indicate:
– number and date of compilation;
– full name of the fixed asset according to the technical documentation;
– name of the manufacturer;
– place of transfer of the fixed asset;
– factory and assigned inventory numbers of the fixed asset;
– depreciation group number, useful life of the fixed asset and actual service life;
– the amount of depreciation accrued before the sale of the fixed asset, its residual value;
– information about the content precious metals, stones;
– other characteristics of the fixed asset.

Simultaneously with the preparation of these acts, enter information about the disposal of fixed assets in the inventory card or in the book (intended for small enterprises). These documents can be drawn up in forms No. OS-6, OS-6a or OS-6b. Enter information on the basis of the acceptance certificate.

The acts require reference to the commission’s conclusion. Such a commission should be created in the organization to control the disposal of fixed assets. Commission members can be Chief Accountant, materially responsible persons and other employees. The composition must be approved by the head of the organization by issuing an order.

Depreciation

From the next month after the month in which the fixed asset was retired (that is, you wrote it off from account 01), stop accruing depreciation on it (clause 22 of PBU 6/01).

This procedure also applies to real estate that was transferred to the buyer before the transfer of ownership was registered in Rosreestr. This point of view is confirmed by what was brought to the attention of the tax inspectorates.

Accounting

In accounting, reflect the disposal of property from fixed assets on account 01. To do this, you can open a separate sub-account “Disposal of fixed assets”. On the debit of this account, reflect the initial (replacement) cost of the fixed asset, on the credit - the amount of depreciation accrued during the period of its operation:*

– the initial (replacement) cost of the retiring fixed asset is reflected;

– reflects depreciation accrued during the period of operation of the facility.

As a result, the balance on account 01 “Retirement of fixed assets” will reflect the residual value of the fixed asset.

The formula will help you check the data:

This procedure is provided for in the Instructions for the chart of accounts (account 01).

Disposal of buildings or structures

If a building or structure is transferred to the buyer before the transfer of ownership is registered in the prescribed manner, then already at the time of signing the act in the OS-1a form, the objects cease to have all the characteristics of fixed assets. Therefore, the residual value of buildings and structures must be written off without waiting for sale (transfer of ownership). The Financial Department recommends using account 45 subaccount “Transferred Real Estate Objects” for these purposes (letter of the Ministry of Finance of Russia dated March 22, 2011 No. 07-02-10/20, brought to the attention of the tax inspectorates by letter of the Federal Tax Service of Russia dated March 31, 2011 No. KE -4-3/5085). Such a business transaction is reflected by posting:

Debit 45 subaccount “Transferred real estate” Credit 01 subaccount “Disposal of fixed assets”
– the residual value of a retiring fixed asset, the ownership of which is subject to state registration, has been written off.*

Revenue and expenses from the sale of fixed assets

To account for income and expenses from the sale of a fixed asset, use:
– account 91-1 “Other income”, on which reflect the proceeds from the sale of the object;
– account 91-2 “Other expenses”, on which reflect the residual value of the retired fixed asset and other expenses associated with its sale.

Reflect the proceeds from the sale as part of other income when the ownership of the sold fixed asset passes to the buyer. For real estate, this is the moment when ownership is registered. Recognize as revenue the amount stipulated in the purchase and sale agreement (supply, exchange).

12 (OS-1a, OS-1b);
– certificates of registration of ownership (for real estate);
– documents confirming expenses associated with the sale of a fixed asset (for example, an act for the provision of services transport company, transporting the object, payroll for the payment of salaries to employees producing pre-sale packaging, etc.).

When recording income and expenses from the sale of a fixed asset, make the following entries:

Debit 62 (76) Credit 91-1
– revenue from the sale of fixed assets is reflected;

– VAT is charged on the sale of a fixed asset (if the organization’s activities are subject to VAT);

Debit 91-2 Credit 01 subaccount “Disposal of fixed assets” (account 45 subaccount “Transferred real estate”)
– reflected in other expenses is the residual value of the sold fixed asset (the residual value of the fixed asset, the ownership of which is subject to state registration);

Debit 91-2 Credit 10 (60, 69, 70, 76...)
– included in other expenses are costs associated with the sale of a fixed asset (for example, costs for the services of an appraiser, transportation costs, etc.);

Debit 19 Credit 60 (76)
– VAT is reflected on costs associated with the sale of fixed assets.

If the costs associated with the sale of a fixed asset exceed the income received from the sale, the difference between them is recognized as a loss. In accounting, the amount of loss is attributed to the expenses of the current period and is included in other expenses at a time in the month when the sale occurred (clause 11 of PBU 10/99).

Sergey Razgulin,

When selling fixed assets, prepare primary accounting documents approved by How to take into account income and expenses from the sale of depreciable property when calculating income tax.

If the costs associated with the sale of a fixed asset exceed the income received from the sale, the difference between them is recognized as a loss.

When calculating income tax, the amount of loss is included in other expenses in equal shares over a certain period of time. This period is equal to the difference between the period beneficial use asset and its actual service life. This procedure is established by paragraph 3 of Article 268 of the Tax Code of the Russian Federation.

(clause , PBU 18/02).

An example of how to reflect in accounting and taxation a loss received upon the sale of a fixed asset. The organization applies common system taxation

CJSC "Alfa" in January current year sold the fixed asset. The loss from this operation amounted to 120,000 rubles. The remaining service life of the sold fixed asset is 12 months.

In accounting, the amount of loss from the sale of a fixed asset is attributed to the expenses of the current period and is included in other expenses at a time in the month when the sale occurred (clause 11 of PBU 10/99).

In tax accounting, the amount of the resulting loss is included in other expenses in a special manner. It is taken into account in equal shares over a certain period (clause 3 of Article 268 of the Tax Code of the Russian Federation). It is equal to the difference between the useful life of the object and the actual period of its operation until the moment of sale. Consequently, in tax accounting, 10,000 rubles will be included in expenses every month during this period. (RUB 120,000: 12 months).

Due to the difference in the recognition of expenses in accounting and tax accounting, a deductible temporary difference arises, which leads to the formation of a deferred tax asset.

In January, the accountant reflected the occurrence of a deferred tax asset by posting:

Debit 09 Credit 68 subaccount “Calculations for income tax”
– 24,000 rub. (RUB 120,000 ? 20%) – a deferred tax asset is reflected.

Starting from February, every month until the loss is fully repaid, a portion of the loss will be written off in tax accounting in the amount of:
120,000 rub. : 12 months = 10,000 rub.

Simultaneously with the reflection of the loss in tax accounting, the deferred tax asset will be written off:

Debit 68 subaccount “Calculations for income tax” Credit 09
– 2000 rub. (RUB 10,000 ? 20%) – part of the deferred tax asset is repaid.

BASIS: VAT

Fixed assets subject to sale are considered as goods for VAT purposes (clause 3 of Article 38 of the Tax Code of the Russian Federation). On income from the sale of goods (works, services) in Russia, you will pay VAT (account 91-2 of the Tax Code of the Russian Federation). Along with this, other conditions required for deduction must be met.

An example of how income and expenses from the sale of a fixed asset are reflected in accounting and taxation. The organization applies a general taxation system

Alfa CJSC sold OJSC in August Manufacturing company"Master"" production equipment for 1,770,000 rub. (including VAT – 270,000 rubles). In accordance with the agreement, ownership of the equipment passes to the “Master” at the time of transfer of the object, that is, in August. From September 1, Alpha’s accountant stopped calculating depreciation on equipment in tax and accounting.

According to accounting and tax accounting"Alphas":

• the initial cost of the equipment is RUB 1,200,000;
• the amount of accrued depreciation is 240,000 rubles.

In August, Alpha's accountant made the following entries:

Debit 62 Credit 91-1
– 1,770,000 rub. – revenue from the sale of equipment is reflected;

Debit 91-2 Credit 68 subaccount “VAT calculations”
– 270,000 rub. – VAT is charged on the sale of fixed assets;

Debit 01 subaccount “Disposal of fixed assets” Credit 01
– 1,200,000 rub. – the initial cost of the retired equipment is reflected;

Debit 02 Credit 01 subaccount “Disposal of fixed assets”
– 240,000 rub. – reflects depreciation accrued during the period of operation of the facility;

Debit 91-2 Credit 01 subaccount “Disposal of fixed assets”
– 960,000 rub. (RUB 1,200,000 – RUB 240,000) – the residual value of the equipment sold is reflected as other expenses.

When selling the equipment, Alpha's accountant filled out two copies of the act in form No. OS-1, one of which he gave to the Master.

In tax accounting in August, Alpha's accountant included 1,500,000 rubles in income from sales. (1,770,000 rubles – 270,000 rubles), included in expenses – 960,000 rubles.

Sergey Razgulin,

Actual State Councilor of the Russian Federation, 3rd class

Sincerely,

Vladimir Asatiani, expert of the Glavbukh System.

Answer approved by Sergey Granatkin,

leading expert of the Glavbukh System.

What steps does a company need to take if it decides to reorganize in the form of a division? What is the deadline for submitting documents related to the reorganization of the company to the registration authority?

Division is one of the forms of company reorganization (Article 57 of the Civil Code of the Russian Federation). The division of a legal entity can be carried out by decision of its founders (participants) or a body of the legal entity authorized to do so by the constituent document (Clause 1 of Article 57 of the Civil Code of the Russian Federation).

What are the consequences of reorganization in the form of separation?

As a result of division, two or more new legal entities are created on the basis of one legal entity. That is, the result of this form of reorganization is the termination of the activities of the “old” (reorganized) legal entity and the creation of new legal entities.

Main stages of reorganization in the form of division

Regardless of the organizational and legal form of the organization, the first step towards separation will be holding a general meeting of company participants (shareholders), at which decisions are made:

on reorganization in the form of division;

on the creation of new organizations;

on approval of the transfer act;

• on the procedure and conditions for dividing the organization, on the creation of new organizations and on the approval of the transfer act.

Important!

From September 1, 2014, a separation balance sheet is not drawn up during the reorganization of an organization, but only a transfer act is formed (Article 1 and Article 3 of the Federal Law of May 5, 2014 No. 99-FZ).

Participants in each of the newly created organizations also conduct general meetings, at which their constituent documents (charters) are approved, and governing bodies are elected.

Procedure for registering reorganization in the form of division

Stage 1.

The reorganized organization, within 3 working days after the date of adoption of the decision on reorganization, notifies the registering authority (tax office at the place of registration) in writing about the start of the reorganization procedure, attaching the corresponding decision on reorganization.

NPOs submit a notice of the start of the reorganization procedure and other documents to the Ministry of Justice of the Russian Federation and its territorial divisions (according to administrative regulations, approved by order of the Ministry of Justice of the Russian Federation dated December 30, 2011 No. 455).

If more than two organizations are involved in the reorganization, then the decision on the reorganization of each of them is attached to the notification. The notification in this case is sent by the legal entity that made the decision last, or by the person specified in the decision on reorganization.

Important!

Stage 4. Formation of a package of documents for registration.

Documents related to the completion of the reorganization procedure are submitted to the tax office after 30 days from the date of the second publication of the message on the reorganization of legal entities in the journal "Bulletin of State Registration", as well as the expiration of three months after the entry into the Unified State Register of Legal Entities about the beginning of the reorganization procedure.

Application form for state registration of a legal entity created through reorganization - No. P12001.

Constituent documents. Submitted in two original copies if submitted in person or by mail, in one if sent to in electronic format;

Transfer deed.

Important!

A document confirming the submission of information to the Pension Fund of Russia is not required. The tax authority will independently request the necessary information from the territorial office of the Pension Fund.

Stage 5. Documents receiving.

On the sixth working day, the applicant personally or through a representative with a notarized power of attorney can receive documents on state registration:

Certificate of state registration;

One copy constituent document with the mark of the registering authority;

Sheet Unified State Register of Legal Entities.

Newly created legal entities as a result of division receive certificates of registration. The reorganization procedure through division is considered officially completed from the moment entries about the newly created organizations are entered into the register.

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