Division of the company's assets between the founders. When is it worth splitting a company into two or more?

There are several ways to reorganize a business. As a rule, this is a way out of a financial crisis. But to avoid problems with government agencies, it is necessary to properly carry out the reorganization.

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Concept

Reorganization is the termination of one form of business ownership and the creation of a new one, entailing the emergence of succession relations.

It can occur in several forms, the choice of which depends on the goals of the reorganization. One of these forms is separation. That is, the reorganization of a legal entity in the form of division is when new companies are formed on the basis of one legal entity that ceases to exist.

The “old” enterprise completely ceases its activities, that is, it undergoes a voluntary liquidation procedure.

But, a distinctive feature of separation from liquidation is that the newly formed companies completely “inherit” the rights and obligations of the “old” enterprise in the order of succession.

Legislation

A reorganization is taking place in the form of division based on the norms of civil legislation. Therefore, it is worth considering the rules
The procedure for reorganization of this type, and state registration of a new legal entity, occurs on the basis of. It is worth relying on the norms
Succession occurs on the basis of several provisions of tax legislation, namely the Tax Code of the Russian Federation.

Goals

As a rule, reorganization by division occurs in order to avoid liquidation of the enterprise in the bankruptcy process.

But there are other goals:

reducing the tax burden on the enterprise;
During the division, several new firms are formed, which may apply different tax systems. This will help optimize taxes.
increasing competitiveness in the market;
One enterprise does not have the right to use various tax benefits and special regimes. By breaking up firms, founders can achieve greater competitiveness and sustainability in the marketplace.
increase in profits;
Several new enterprises will be able to bring significantly more profit to the founders if their industry affiliation is clearly divided between them.
expansion of areas of activity.

What a manager needs to know

Every manager must have a clear understanding of what reorganization is and how it will happen, because responsibility for violations of the law lies with the manager.

In addition, the manager must:

take measures to correctly formulate the budget for the division;
approve the expenditure budget, including repayment of debts to creditors and collection of receivables;
make a decision on the succession of rights and obligations of the “old” company for newly formed enterprises;
comply with all reorganization rules.

Video: legal methods

Options

When dividing an enterprise into several new companies, it is worth taking into account the nuances that may arise due to differences in organizational and legal forms.

If reorganization takes place in the form of division of an LLC, then:

all rights and obligations of a “strictly” enterprise are equally distributed among newly formed enterprises;
the decision is made at the general meeting of founders at 100% positive votes;
Every “new” legal entity must have a charter.

If the HOA is reorganized, then:

the decision is made at a general meeting of residents if there is ¾ positive votes;
it is necessary to comply with the norms of civil and housing legislation ().

If a credit institution undergoes a reorganization procedure, then:

it is necessary to notify the Central Bank of the Russian Federation and undergo the procedure under its strict control;
it is worth following the rules

If reorganized government agency, then you should rely on the norms

Step-by-step instructions for reorganization in the form of division

The procedure for reorganizing an enterprise of any form of ownership must be carried out in strict accordance with current legislation.

Employees must be fired or hired by newly formed companies in accordance with the Labor Code of the Russian Federation, and the succession of rights and obligations must occur in accordance with the Tax Code of the Russian Federation.

That's why step by step instructions The reorganization of the enterprise is as follows:

hold a general meeting of shareholders, participants or founders;
At the meeting, the issue of reorganization is decided, a decision is made, which is recorded in the minutes. If this is an individual entrepreneur or there is only one founder of the company, then there is no need to hold a meeting, the decision is made individually.
it is necessary to issue an order for the enterprise;
resolve the issue with employees. The “paper” work is handled by the HR department;
Bye personnel service resolves the issue with employees, the accounting department is creating a separation balance sheet, on the basis of which the transfer deed will be drawn up. At this stage, tax audits cannot be avoided;
the management of the enterprise must make a publication in an official media source "Bulletin of State Registration" about the upcoming reorganization. This is necessary to notify creditors;
notification of the reorganization must be sent to each creditor and debtor. This is necessary to pay off debts and collect receivables;
when all the documents are ready, they must be submitted to the tax office;
then register a new legal entity or several legal entities.

Making a decision

To begin the process of dividing an enterprise, it is necessary to convene a meeting of all founders, shareholders or participants of the company (depending on the form of ownership of the business).

Depending on the form of the enterprise undergoing reorganization, the number of votes “for” can range from ¾ to 100% of all participants. If the company has only one owner, or the individual entrepreneur is being reorganized, then there is no need to hold a meeting; a single decision is sufficient. That's the order!

At the meeting, a decision is made by the participants on the completion of the activities of one enterprise, and the beginning of the activities of one or more new enterprises. The decision is documented in a protocol, which is signed by all those present.

The protocol is then sent to the Federal Tax Service for notification.

Notification

An enterprise that ceases operations must notify all creditors of the upcoming reorganization.

Selecting a registration location

The place of registration of new enterprises can be anywhere. If it is convenient for the founders, then the newly formed companies can be located not far from the “old” enterprise.

Then liquidation and registration can be carried out quite quickly, since the documents will need to be submitted to the same tax office. The address of the new enterprise may be the address of the “old” enterprise. It's much more convenient!

Preparation for the process

But, first of all, it is necessary:

make a decision on the reorganization of the enterprise;
and also decide how many new companies will be created subsequently, how the rights and obligations of the “old” enterprise will be distributed, whether there will be a division of business areas or not.

All this requires maximum participation of all founders, as well as the development of detailed reports and plans.

Submitting documents to the MIFTS

The tax office must also be notified.

For 3 days After making a decision on reorganization, it is necessary to send an application to the Federal Tax Service form P12001. Example

Based on this application, an entry will be made in the Unified State Register of Legal Entities stating that this enterprise undergoing reorganization.

After carrying out all the necessary measures to notify creditors, collect accounts receivable, draw up a separation balance sheet and a transfer deed, you must again submit the documents to the tax office.

This is the final stage of the reorganization. A record of the liquidation of the enterprise will be made in the Unified State Register of Legal Entities.
Now you need to register a new or new enterprises.

Ending the process

Simultaneously with the termination of one active enterprise, a newly created legal entity (or several) begins to operate.

Registration new company is the final stage in the reorganization of the enterprise.

Basic package of documents

The following documents must be submitted to the Federal Tax Service:

1. the application itself It is necessary to submit as many applications as new ones will be registered legal entities;

2. charter of the company;

3. constituent documents:

state registration certificate;
ORGN;
statistics codes;
extract from the Unified State Register of Legal Entities.

4. act of transfer;
5. decision of the participants on reorganization, drawn up in the form of a protocol;
6. decision to appoint the applicant as general director and a copy of the order;
7. applicant’s passport.
8. document confirming that the duty has been paid.

If the documents are not submitted by the applicant personally, then a notarized power of attorney and a passport of the representative are required.

Advantages

There are advantages to separating companies:

tax optimization;
If you carry out the entire process correctly and then wisely choose the taxation system for new enterprises, the tax burden will be significantly reduced.
If an enterprise is about to go bankrupt, then division - best option its prevention;
purchase of new equipment and machinery to increase the competitiveness of new companies in the market;
other benefits, depending on the goals of the reorganization.

Timing and cost

The timing depends on the amount of work and preparation of documents to be performed by the management of the enterprise.

But, if there are no problems with creditors and debtors, then the division occurs within six months.

If you do the division of the company yourself, it is not so expensive. If you entrust it to professionals, then you will need to pay for their services.

In the form of separation, this is the most profitable option for those companies that need to create a separate legal entity with termination commercial activities first. This is precisely why the division of a company into two differs from the separation procedure, under which the primary form remains in the status of a legal entity.

Reorganization by dividing a company is a method that allows you to maintain existing business activities with minimal losses.

When you need it

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The division of a company is resorted to when the existence and further activities of the company within a single company are ineffective or difficult. Often, the decision to split a company arises when controversial issues, regarding the redistribution of a share of income between shareholders or members of the company.

In this case, the separation process may involve lengthy legal proceedings and clarifications. In some situations, the division of a company is resorted to in order to save the organization. This is necessary provided that the total volume of the company’s liabilities significantly impedes its economic development.

In accordance with the transfer act, the obligations of the divided company are transferred to one of the legal entities that arises at the time of reorganization. In turn, the second person has the right not to assume the obligations of the divided company. It should be noted that the procedure for dividing a legal entity does not deprive it of its powers.

Reorganization of an LLC in the form of division is quite often used at the time of sale of part of the company. At the same time, the direct separation process ensures the most efficient transfer of rights to the divided company, bypassing bureaucratic obstacles.

Conditions of the procedure

Required documents

In order to carry out the procedure of reorganizing a company through its division, you will need to provide the following package of documentation:

organization charter;

certificate of ORGN and TIN;

protocols general meeting shareholders;

a document confirming the assignment of statistics codes;

certificate of insurance from the Social Insurance Fund;

notification to the policyholder from the Pension Fund;

notification to the policyholder from the Federal Migration Service;

approximate separation balance sheet of the company;

a document that will confirm the fact of notification of creditors of the intention to divide the legal entity;

another list of documentation that is additionally required to carry out the reorganization of the company through its division.

A complete list of documentation that is required to be provided at the time of creation of new organizations:

full and abbreviated name of the companies being created;

the size of the companies' authorized capital;

composition and data of founders;

TIN and passports of the directors of the companies being created;

Main purpose and type of activity;

location of organizations;

taxation system.

Stages

Below are step-by-step instructions for reorganizing a company by dividing it:

The general meeting of shareholders of the reorganized company makes a decision that concerns the features and conditions of the division of the company, the creation of new companies and the procedure for converting shares of the divided company into securities of the new companies being created.

The adoption by the shareholders of a decision on the approval of new charters of organizations, as well as the election supervisory board.

Carrying out state registration organizations that were created as a result of division, as an alternative form of reorganization of a legal entity;

State registration of the process of issuing shares by new companies.

Scheme options

Simultaneous management of several types entrepreneurial activity within the framework of the functioning of one company, it allows you to strengthen your business niche, simplify the process of enterprise management, and also increase it market value. Nevertheless, this approach not always able to be beneficial. So in what cases is it necessary to resort to dividing a company?

Case one. When a company is forced to practice separate accounting The division of business activities, which is determined by separate accounting, is an excellent reason for tax representatives to look for violations in taxation.
As a rule, a company can maintain this accounting if:

there is a place for activities that are included in different taxation systems;

VAT-taxable and non-VAT-taxable transactions are carried out simultaneously;

income tax rate is 20% ;

transactions are carried out that are taxed at different VAT rates.

Case two. Unbundling of an organization to optimize taxes
Due to the fact that entrepreneurs have free choice when determining the structure of their business, they also have the opportunity to save money on taxation by legal means. For example, this could include an individual choice of tax treatment.

Thus, the organization operates on a common taxation system, and at the same time develops a new business area with a certain share of expenses.

Consequently, the company can transfer its business to a simplified system and register a completely different legal entity. In this case, the company must take care of how to plan its second business line to maximize its efficiency and minimize tax-related costs.

Case three. Division of a company subject to its participation in tenders It is considered effective to resort to dividing a company with simultaneous merger if the company takes part in various competitions, the basis of which are government contracts from other areas of activity. As a result, it becomes possible to protect your directions and your own assets.
Case four. If necessary, protect company assets
As a rule, tangible and intangible assets may be at risk when any claims are made by tax representatives or counterparties. When a company is simultaneously engaged in several types of business, it by default falls into the risk zone.

Restructuring in the form of dividing a company allows you to correctly transfer assets into new structures with all the necessary funds to carry out effective business in the future.

2 types of company division

There are several ways to divide a commercial organization:

In the process of division, independent and non-independent legal units can be created

Position of the law

Reorganization of an enterprise is a rather complex procedure that is associated with a lot of features. To ensure the interests of all participants in this process, as well as to comply with the norms and requirements of the current legislative framework, these features must be taken into account.

From the point of view of the law, in the process of dividing a company, all property rights and obligations in the enterprise are transferred into the possession of each of the business entities directly according to the separation act (balance sheet).

Implemented this process in appropriate shares, and a sample of documentation is transferred to each entity separately.

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 proper operation 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 registration organizations being created.

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 territorial body The Pension Fund of the Russian Federation, information specified by law.

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

10. Conduct 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, it's not necessary.

Rationale

Previously, such a requirement was established in paragraph 3 of part 3 of Article 28 Federal Law dated 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 securities"(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 paragraph 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 the issue (additional issue) of issue-grade securities and registration of prospectuses of securities”; hereinafter referred to as the Regulations on Issue Standards).

The board of directors (supervisory board) or the management body performing the functions of the board of directors has the right to approve this decision. economic company(clause 2 of article 17 of the Law on Securities Markets, 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 is that the issuer of the 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 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 the 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 liability (). In other words, the creditor will have the right to make a claim against any of the created persons, 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 of the 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. 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);

transcript (inventory) of accounts payable and accounts receivable with information about written notification of creditors and debtors about the transfer of property and obligations under contracts to the legal successor, 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 exactly 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) does not have the right to make a decision 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. It is impossible to form an LLC by combining two different methods of creating a 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. These will vary 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 on the division of 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 may 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 by decision about separation.

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 Administrative regulations 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).

Notice signs general manager 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 beginning 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 a publication it is necessary to submit to the editorial office 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 legal entity being created, 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 a 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 LLCs, in accordance with the Civil Code of the Russian Federation, determines the procedure for reorganizing companies with limited liability(Clause 1, Article 1, Clause 1, Article 51 of the LLC Law). Consequently, when registering a reorganization, it is necessary not only to comply with the procedure provided for by the State Registration Law, but also to fulfill the obligation established by the LLC Law (i.e., provide evidence of notification of creditors to the registering authority).

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. As one of possible ways execution, the law directly calls for depositing the debt (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 by their actions (inaction) they 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 in a newly created LLC 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, founding a company and reorganizing are different ways to create an LLC. 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 LLC being reorganized must submit to the inspectorate a set of documents established by law.

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 Legal Group “Yakovlev and Partners” (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 of the Omega Legal Bureau

Documentation

Complete the sale of fixed assets 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.*

There are different standard forms of transfer and acceptance acts 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.

By 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;
- number depreciation group, 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 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 the building or structure is transferred to the buyer before the transfer of ownership is registered in in the prescribed manner, then already at the time of signing the act in form OS-1a, 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 useful life of the asset and its actual service life. This procedure is established by paragraph 3 of Article 268 Tax Code RF.
(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 sold its fixed assets in January of this year. 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 RUB 1,770,000. (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 in 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.

A demerger is the opposite operation of a merger, breaking up a corporate organization into two or more separate and independent entities. There are a number of reasons why a subsidiary is spun off from a corporation, for example:
not profitable;
does not fit into the strategic plan;
is exposed to a higher risk than other groups in the company;
will most likely prosper as a stand-alone company.
A private form of separation is the reduction of capital investments (disinvestment). Divestment involves selling part of a company to another company. The part of the company being sold may be an asset, an operating segment, a product, etc. and is determined by the capital reconstruction scheme. A capital reconstruction scheme is a scheme under which a company reorganizes its capital structure. A reconstruction scheme may be adopted when a company is at risk of liquidation or becoming a takeover target.
Why might a company choose divestment as a form of restructuring? A company considering divestment may find this to be an appropriate strategy for a variety of reasons. These include: .
Ensuring survival. Unprofitable activities of some part of the company can create financial difficulties for the company and, in an extreme situation, jeopardize the entire enterprise. Because of this, it is possible that attempts will be made to sell part of the company engaged in this type of activity. When a company is experiencing financial difficulties, it may be necessary to sell off divisions of the company.
Focus on core activities. A company may feel that it would be more profitable for it to focus on certain core activities in which it has a competitive advantage, rather than become involved in a wide range of activities, thereby dispersing its efforts. This may force the company to sell off its specific segments to reduce to established core businesses.
Increase in company value. A conglomerate company may have poor or even unattractive stock price performance for a period of time. The reason is, apparently, that investors have not fully appreciated the type of activity being developed, or that they do not trust the ability of the conglomerate managers to fully exploit the potential of the individual companies of the association or the assets under their control.
Reducing the size of the company. For big company It may be difficult to control a variety of activities if decisions are slow. It may also be burdened with high administrative costs. If a company shrinks in size, it will likely be able to significantly reduce its overhead costs and respond more quickly to market needs.
69 General characteristics of strategic planning for the development of the city and region
Modern theory and practice have developed a number of general provisions for developing a local economic development strategy, compliance with which objectively increases the possibility of success. Among them are methods and procedures strategic planning. Strategic planning for the socio-economic development of a city and region is a systematic process through which local communities formulate a picture of their future and determine the stages of achieving it, based on local resources. It includes:
coordination of group interests within the community; inventory of real resources, limitations and enabling factors; determination of realistically feasible tasks and goals; formation of programs and action plans.
In cities and regions, the strategy for the economic development process is developed, planned and implemented through the joint efforts of local authorities, representatives of private business and state enterprises, public organizations and territorial public self-government bodies.
A strategic plan is a document that plays an important role in the development of a city or region. He concentrates on the prospects of the region (city) and in each area must identify the main, key factors. It does not cancel or replace other types of plans. It is not a comprehensive plan and determines development only in the most important priority areas for the region (city).
A strategic plan is not a directive, it is a set of agreed, recognized reasonable demands from enterprises and the population to the administration, it is an agreement on specific measures of strategic importance for the region (city) that need to be taken. The strategic planning process is aimed at searching for public consensus, at involving a wide range of active individuals in decision-making - and therefore in their implementation.
The absence of a publicly approved and accepted by the authorities strategy for the development of a region (city) reduces the quality of management and damages the external and internal image of the region (city) and its administration.
The strategic planning procedure does not allow for an absolutely uniform approach, since different cities and regions differ from each other in:
size of economic activity; geographical characteristics and natural resources; economic conditions, characteristics and results of activities of agents of economic activity; social organization of life of the population; political conditions and the effectiveness of local authorities.
The most characteristic problems of economic development of Russian regions are not only attracting new economic agents to the region, but also the development of engineering infrastructure, construction and renovation of housing, streamlining land use, maintaining employment in high level, solving pressing environmental problems.

Along with highlighting the second form of reorganization, aimed at reducing the enterprise, is division.
This form can be used for various 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 quick solution problems - 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 also Pension Fund and Tax Inspectorate. There is a deadline for this: 3 days after the meeting. As authorized person Usually one of the owners or the general director of the reorganized enterprise acts.
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 graduation deadline 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 the authorized state bodies.
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 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 as follows:
Minutes of the meeting (or decision), which sets out the form of reorganization.
Application to in the prescribed form, must be notarized.
The transfer deed and the final accounting statements attached to it.
Charters of the created enterprises developed and approved at the meeting (at least two copies for each).
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.
Certificate of absence of debt to the Pension Fund.
Receipt for payment of state duty.
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– there is no approved form of the transfer deed.
Since after drawing up the act the enterprise can still conduct some kind of activity, it is necessary to draw up additional document(for example, a regular balance sheet).
It displays movement cash 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- V 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.
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Case one. When a company is forced to practice separate accounting	The division of business activities, which is determined by separate accounting, is an excellent reason for tax representatives to look for violations in taxation. As a rule, a company can maintain this accounting if: there is a place for activities that are included in different taxation systems; VAT-taxable and non-VAT-taxable transactions are carried out simultaneously; income tax rate is 20% ; transactions are carried out that are taxed at different VAT rates.
Case two. Unbundling of an organization to optimize taxes	Due to the fact that entrepreneurs have free choice when determining the structure of their business, they also have the opportunity to save money on taxation by legal means. For example, this could include an individual choice of tax treatment. Thus, the organization operates on a common taxation system, and at the same time develops a new business area with a certain share of expenses. Consequently, the company can transfer its business to a simplified system and register a completely different legal entity. In this case, the company must take care of how to plan its second business line to maximize its efficiency and minimize tax-related costs.
Case three. Division of a company subject to its participation in tenders	It is considered effective to resort to dividing a company with simultaneous merger if the company takes part in various competitions, the basis of which are government contracts from other areas of activity. As a result, it becomes possible to protect your directions and your own assets.
Case four. If necessary, protect company assets	As a rule, tangible and intangible assets may be at risk when any claims are made by tax representatives or counterparties. When a company is simultaneously engaged in several types of business, it by default falls into the risk zone. Restructuring in the form of dividing a company allows you to correctly transfer assets into new structures with all the necessary funds to carry out effective business in the future.