Enterprise transformation. Ways of reorganization of legal entities

The Russian Federation provides for such a procedure as the reorganization of legal entities. What is its specificity? What are the ways to carry out this procedure?

What is a corporate reorganization?

Before considering the methods of reorganization of legal entities provided for by the legislation of the Russian Federation, we will study what the corresponding term means. Its interpretation is given directly in the provisions of the regulatory sources of law, the main of which is the Civil Code of Russia. In accordance with its provisions, the reorganization of a legal entity should be understood as a process during which a legal entity in one way or another transfers its own powers to another business entity.

This should be distinguished, in particular, the transformation in the form of a merger - when several firms consolidate their rights and obligations, from a process such as reorganization by spin-off, in which the original business entity does not cease to carry out the main activity. There are other types of reorganization - later in the article we will consider them in more detail.

It should be noted that, from the point of view of law, the process is completely different. Its result is the exclusion of the entry about the firm as active in the state register. However, liquidation, reorganization are processes that, one way or another, can be interconnected as part of the transformation of the enterprise management structure, holdings. Therefore, their consideration can in many cases be carried out in the same context.

There are 2 types of reorganization - voluntary and forced. Let's consider their features in more detail.

What is a voluntary reorganization?

The appropriate type of reorganization is carried out in accordance with the decision made by the management of the company. At the same time, options are possible in determining the further format of doing business. So, for example, if reorganization by merger is supposed, then the economic entities that participate in this process enter into a special agreement, which fixes the procedure for the procedure in question, as well as the principles for distributing shares in the company being formed (or establishing the volume of shares that are transferred to ownership by one or another co-owner).

What is a forced organization?

This type of reorganization involves the adoption of a decision, in accordance with which the procedure in question is implemented, by the competent authority or by the court. The reason for forced reorganization may be, for example, the need to organize the company's settlement with creditors through the sale of property that is subject to distribution among other business entities.

Classification of reorganizations

What are the ways of reorganization of legal entities? The legislation of the Russian Federation provides for a classification, according to which 5 relevant procedures are distinguished:

Merger of firms;

Joining one company to another;

Separation of the company;

Separation of an enterprise;

Business transformation.

A merger is a combination of 2 or more business entities into one structure. At the same time, each of the merged firms ceases to operate. As soon as a new legal entity is registered with the Federal Tax Service, the reorganization procedure through a merger is considered completed.

The order may involve the affiliation of one company or several to another. At the same time, each of the firms, which is part of another structure, ceases to operate. In addition, the termination of the activities of a legal entity through reorganization in the form of a merger involves the transfer of the company, which included the relevant economic entity, its rights and obligations. The procedure under consideration is considered completed as soon as the Federal Tax Service of the Russian Federation enters into the state register information that all affiliated firms have ceased their activities.

The procedure for the reorganization of a legal entity may also involve division, which is a procedure for the formation of other economic entities on the basis of a firm that receive legal independence.

The next option for transforming an enterprise is spin-off. It involves the formation of new legal entities on the basis of the company, which become independent economic entities. This procedure is considered completed as soon as the Federal Tax Service registers all business entities that have spun off from the company.

The next type of reorganization is transformation. This procedure involves the termination of the activities of one legal entity and the subsequent creation on its basis of a new economic entity. As soon as the Federal Tax Service of the Russian Federation completes the state registration of a new company, the procedure in question is considered completed.

These are the main ways of reorganizing legal entities, reflecting a common classification. Which of them can be chosen is determined by the specifics of a particular type of business, the obligations of the company, the priorities of its owners - the list of factors that can influence their preferences can be quite impressive.

Classification of reorganizations: rights and obligations of business entities

Classification of reorganizations can be carried out on other grounds. For example, from the point of view of determining the scope of those rights and obligations that are transferred from the reorganized company to successors. So, they can be transferred to another business entity:

In full;

Partially - despite the fact that only a certain amount of rights and obligations passes to other successors;

Partially subject to the distribution of the initially full scope of rights and obligations that belonged to the company.

In the general case, the first option for the distribution of rights and obligations characterizes such procedures as reorganization through transformation, merger, and accession. The second is in separation. The third one is for selection.

Documentation of reorganizations

When reorganizing, the following documents may be generated:

Dividing balance;

Transfer deed.

In this case, the first document is formed if division or selection is carried out. The second - if reorganization is carried out in the form of accession, merger or transformation. One way or another, both of these documents should reflect information about the obligations of economic entities involved in the process of business transformation.

Main stages of reorganization

Having considered the types and methods of reorganization of legal entities, we will now study the specifics of the stages in which the corresponding procedure is carried out. In the general case, the sequence of actions of economic entities involved in the reorganization will be as follows.

First of all, competent persons - for example, the board of directors of a business entity, decide on the transformation of a business. Next, the Federal Tax Service is notified that the organization will be carried out. At the same time, the tax authorities must be informed that the company's management has made a decision to transform the enterprise within 3 days after its adoption.

The next step is the introduction of changes by the Federal Tax Service into the Unified State Register of Legal Entities, reflecting the fact that the procedure for transforming an enterprise has begun. After - information is published in the industry magazine that the reorganization of the corresponding legal entity is being carried out.

Reorganization of legal entities under the Civil Code of the Russian Federation: nuances

There are quite a few nuances that characterize the procedure in question. Let's study them based on the Civil Code. The reorganization of a legal entity is a procedure that is carried out, as we noted above, mainly on the basis of the provisions of the Civil Code of the Russian Federation.

First of all, it is worth noting that the Civil Code of the Russian Federation allows for reorganization: with the simultaneous combination of its different forms - if this is possible from the point of view of the absence of inconsistencies between the procedure and the current legal norms, with the participation of two or more legal entities that operate in different legal forms - again, if this procedure does not violate the provisions of the current legislation.

Any restrictions on legal entities in the implementation of the reorganization can only be established by law. At the same time, provisions may be determined in the regulatory legislation, in accordance with which a separate procedure for reorganization will be fixed:

Insurance companies;

clearing companies;

Financial organizations;

trading corporations;

investment funds;

Non-state pension funds;

People's enterprises.

Above, we noted that the ways to solve the reorganization may be based on legal acts issued by the courts. It should be noted that the founders of a business company are obliged to comply with the provisions of these acts. Otherwise, the relevant procedure will be carried out by the arbitration manager - based on the norms established in the Civil Code of the Russian Federation.This option may be less preferred by business owners.

The decision of the court on reorganization is the basis for the Federal Tax Service of the Russian Federation to carry out state registration of newly formed legal entities. Its completion, as we noted above, is the main criterion for recognizing the procedure in question as valid.

In a number of cases, certain methods of reorganization of legal entities can be initiated by decision of the competent state bodies.

One of the key nuances of the relevant procedure is succession. Let's study it in more detail.

Succession upon reorganization of legal entities

Succession involves the legal transfer of the rights and obligations of the legal entity, in respect of which the reorganization is carried out, to another business entity in the prescribed amount. The patterns here are:

In the event of a merger of legal entities, the rights of each of them are acquired by a newly created economic entity;

When joining - the company, which includes others, accepts their rights and obligations;

When a company is divided, its rights and obligations are transferred to business entities formed on its basis;

Upon separation, the rights and obligations of the reorganized legal entity are transferred to each of the formed legal entities;

During the transformation, the scope of the rights and obligations of the new legal entity, in comparison with those that characterized the activities of the former, remains unchanged.

At the same time, in the cases provided for by law, the rights - depending on the form of reorganization of the legal entity, the rights and obligations are transferred according to the deed of transfer.

It would be useful to consider the specifics of this document in more detail.

What is a deed of transfer?

The purpose of the deed of transfer is to determine the list of rights and obligations transferred as part of a procedure such as reorganization from one legal entity to another. The document under consideration includes provisions that establish the succession of the firm in relation to all creditors and debtors, as well as how it can be determined taking into account possible changes in the rights and obligations of an economic entity.

The deed of transfer is drawn up by the founders of the company or by the competent state body, which decided on the choice of one or another form of reorganization of the legal entity. The corresponding document is sent to the Federal Tax Service along with other sources that are transferred to the tax authorities - as part of interaction with them in the manner prescribed by law. If the act of transfer is not provided by the Federal Tax Service, then the necessary changes to the state register will not be made by the agency.

Guarantees of creditors' rights

The next most important aspect of the reorganization is the guarantee of the rights of creditors of an economic entity that changes its status in the prescribed manner. These guarantees are also established in the provisions of the Civil Code of the Russian Federation. First of all, the relevant legal entity is obliged, as we noted above, within 3 days after the decision on reorganization is made, to notify the Federal Tax Service that the status of the organization is supposed to be changed.

Having received this notification, the tax authorities make an entry in the state register that the company is being reorganized. In turn, this economic entity is obliged to publish a notice about this in the departmental media. The relevant document reflects the order in which creditors can submit their claims.

If they arose before the reorganized business entity first published a notice in the departmental media, then the creditor has the right to demand early fulfillment of the debtor's obligations or compensation for the incurred losses in court. These claims may be brought by the eligible party within 30 days after the reorganizing firm publishes its final notice.

Claims of creditors, which are put forward within the period established by law, must be fulfilled before the reorganization is carried out - in the form of accession, merger, transformation or other type. At the same time, the creditor will not have the right to demand from the debtor to repay the obligations ahead of schedule if, within 30 days from the date of presentation of the relevant requirements, he receives security, the amount of which is recognized as sufficient. The law also defines the cases in which the rights of the creditor, one way or another, are implemented regardless of the reorganization procedure.

If the requirements of the creditor are not fulfilled, his losses are not compensated, and sufficient security is not provided to him, then those persons who actually have the ability to manage the actions of the reorganized economic entities shall bear solidary liability to him.

The main criteria for the sufficiency of the creditor's security are the consent of the authorized party to accept it, as well as the availability of the obligations of the reorganized economic entity to fulfill the obligations.

Transformation is a change in the organizational and legal form of a legal entity that already exists and is registered in the general manner. In accordance with the law, existing communities have the right to transform into another economic form.

At the same time, it should be taken into account that the community of shareholders can only be transformed into an LLC or a production cooperative. As for an LLC, its transformation is possible only into a company with additional liability, a general partnership, an open joint-stock company, as well as a limited partnership.

Consequences in the tax industry

When reorganizing a legal entity in the form of transformation, it makes no sense to reduce tax costs to a minimum, since on the basis of Art. 50 of the Tax Code of the Russian Federation, the fulfillment of all obligations for the payment of tax payments by a legal entity lies with its successor.

If, before the start of the procedure aimed at reorganization, the inspection services did not find an offense, then after its completion, they cannot impose fines on the newly formed LLC or CJSC.

It follows from this that if a legal entity has not paid tax payments before the reorganization procedure and it has debts, then the responsibility for paying them lies with the newly formed community.

Reasons for reorganization

Legal Entity Conversion may be due to various reasons. There are two varieties:

1. Voluntary - the decision is made at the general meeting.
2. Forced - the decision on reorganization is made by authorized state bodies or in court.

Conversion procedure

The community transformation procedure consists of several stages:

1. The organizational and legal form of legal entities is established. face to be created.
2. A decision is made to carry out the transformation. To do this, a general meeting is organized with the participation of all founders. It is necessary to approve the protocol on the transformation of the company. In accordance with this protocol, the following will be installed:
   1. The form by which the reorganization is carried out;
   2. The order of the transformation, the conditions under which it occurs;
   3. The procedure for exchanging shares owned by participants for community shares or shares in a production cooperative;
   4. The charter of the legal the person to be newly formed;
   5. Transfer act.

After that, at the general meeting, the participants elect new community bodies, and also instruct them to carry out registration actions.

1. An inventory is carried out, the result of which is the preparation of an inventory act.
2. A place for registration of a legal entity is selected. face that is created by transformation. The registration procedure takes place at the place of the community that has ceased its economic activities.
3. Then the preparations take place:
   1. The IFTS is notified that the reorganization process has begun (an appropriate entry is made in the unified register);
   2. Information is published in the media that a reorganization is planned through transformation (publication is carried out twice within two months);
   3. Sending notices of transformation to all creditors;
   4. An act of transfer is drawn up;
   5. The state fee is paid (the receipt must be kept);
   6. Information about the change in the organized and legal form is provided to the FIU.
   7. At the next stage, documents are submitted to the tax authorities. On their basis, in accordance with the procedure for state reorganization and termination of economic functions by a legal entity, the IFTS enters into a single register information that a new community has been created. Additionally, the termination of the activities of the reorganized legal entity is noted.
   8. Completion of the reorganization procedure. It ends from the moment when an entry about the created legal entity appears in the registry. face.

Documentation required for conversion

To carry out the reorganization, you will need to submit the following documents:

1. An application drawn up in accordance with the established sample P12001.
2. Constituent documentation of the community that is undergoing transformation, copies of certificates of TIN, OGRN, as well as the charter, statistical codes, extracts from the unified register.
3. The decision taken at the general meeting on the implementation of the reorganization.
4. The decision to create a new community (a new adopted charter must be attached to it).
5. Evidence confirming the publication of information in the media.
6. Transfer act.
7. Receipt confirming the payment of fees for registration of a legal entity and copies of constituent documentation.
8. Certificate from the Pension Fund of the Russian Federation on the absence of debts.
9. Request for issuance of charter (copy).

Transformation, along with merger, acquisition, division and spin-off, is one of the forms of reorganization of a legal entity. In accordance with paragraph 5 of Article 58 of the Civil Code of the Russian Federation, when a legal entity of one type is transformed into a legal entity of another type (change of organizational and legal form), the rights and obligations of the reorganized legal entity are transferred to the newly established legal entity in accordance with the transfer act.

An analysis of this norm of the Civil Code of the Russian Federation makes it possible to single out the following distinctive features of transformation as a form of reorganization of a legal entity. Firstly, one legal entity is involved in the reorganization procedure in the form of transformation, which ceases to exist upon its completion. Secondly, in place of the reorganized legal entity, a new legal entity-successor of a different organizational and legal form arises. Finally, thirdly, the succession of a newly emerging legal entity in relation to the reorganized one is formalized in a separate document - a deed of transfer. Thus, the transformation can be considered the simplest form of reorganization, since, unlike a merger, accession, division and spin-off, only one legal entity is involved in it, and only one legal entity arises during its implementation. However, the marked signs of transformation are not accepted by all scientists. So, in the literature, the opinion was expressed that during the transformation, a reorganized legal entity is retained, in which the organizational and legal form changes, and, accordingly, a new legal entity does not arise Dolinskaya V.V. Shareholder law. M., 1997. S. 266 ..

The range of possible transformation options is limited by the law, which determines what organizational and legal forms certain types of legal entities can be transformed into. With regard to commercial organizations, a similar rule is established by clause 1 of Article 68 of the Civil Code of the Russian Federation, which provides that business partnerships and companies of one type can be transformed into business partnerships and companies of another type or into production cooperatives by decision of the general meeting of participants in the manner established by the Civil Code of the Russian Federation . Restrictions for the transformation of joint-stock companies into other commercial organizations are established by clause 2 of article 104 of the Civil Code of the Russian Federation, which provides for legal entities of this organizational and legal form only the possibility of transformation into a limited liability company or a production cooperative. At the same time, the provisions of Clause 2, Article 104 of the Civil Code of the Russian Federation expand the wording of Article 68 of the Civil Code of the Russian Federation by including non-profit organizations in the list of legal entities into which a joint-stock company can be transformed, while the procedure for such a transformation must be established by law.

The procedure for the transformation of a joint-stock company is regulated by the Federal Law "On Joint-Stock Companies" (hereinafter referred to as the Law on Joint-Stock Companies). It specifies the provisions of the Civil Code of the Russian Federation on the transformation of a joint-stock company, in particular, establishes that the company, by unanimous decision of all shareholders, has the right to be transformed into a non-profit partnership (paragraph 2, clause 1, article 20 of the Law).

The Law on Joint Stock Companies also provides for other features of the transformation procedure. A distinctive feature of the said Law is that the term “transformation” is used in it not only to refer to one of the types of reorganization: transformation also means a change in the type of joint-stock company - from open to closed and vice versa. If a closed company exceeds the maximum number of participants established by the Law, it is obliged to carry out such a transformation within a year, otherwise the company is subject to liquidation in a judicial proceeding.

The procedure for carrying out a transformation not related to the reorganization of a joint-stock company was explained in the Resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated April 2, 1997 N 4/8 “On Certain Issues of the Application of the Federal Law “On Joint-Stock Companies” Vestnik VAS RF . 1997. No. 6. In accordance with paragraph 6 of the said Resolution, the transformation of a joint-stock company of one type into a joint-stock company of another type is carried out by decision of the general meeting of shareholders with the introduction of appropriate changes to the charter of the company (approval of the charter in a new edition) and their state registration in the established order, and in this case, the requirements provided for in paragraph 5 of Article 58 of the Civil Code of the Russian Federation, paragraph 6 of Article 15 and Article 20 of the Law on Joint-Stock Companies, on drawing up a deed of transfer, on notifying creditors of an upcoming change in the type of joint-stock company should not be presented . In this case, other norms relating to the reorganization of the company, including those granting shareholders the right to demand the repurchase of their shares of the company if they voted against the transformation or did not participate in the vote (Article 75 of the Law), do not apply.

The current legislation provides for cases when a change in the type of company cannot be made or is expressly prohibited:

1) in accordance with paragraph 4 of article 7 of the Law on joint-stock companies and paragraph 3 of Decree of the President of the Russian Federation of August 18, 1996 N 1210 "On measures to protect the rights of shareholders and ensure the interests of the state as an owner and shareholder", open joint-stock companies, whose shares are in state (municipal) ownership cannot be transformed into closed companies. It is not allowed to change the type of a joint-stock company in cases where, in accordance with the law, they can only be created in the form of open ones (for example, investment funds Article 2 of the Federal Law of November 29, 2001 No. 156-FZ “On Investment Funds” // SZ RF. 2001 No. 49. Art. 4562.) or only in the form of closed ones (auditing organizations Clause 3 of Art. 4 of the Federal Law “On Auditing Activity” // SZ RF. 2001. No. 33. Part 1. Art. 3422.);

2) an open company cannot be transformed into a closed one if the number of its shareholders exceeds 50 - the limit established for closed companies (clause 3, article 7 of the Law on Joint Stock Companies);

3) a closed company is not subject to transformation into an open one, if the amount of the authorized capital of the joint stock company being created is below the minimum level established for open companies by Article 26 of the Law on Joint Stock Companies. But the bodies of the company, whose competence includes an increase in the authorized capital, have the right to make an appropriate decision, after which the type of joint-stock company can be changed.

The procedure for the reorganization of a joint-stock company in the form of transformation consists of several stages and involves the consistent performance of actions determined by law by the management bodies of the reorganized joint-stock company and state bodies that carry out state registration of legal entities. It should be noted that according to paragraph 3 of article 57 of the Civil Code of the Russian Federation, in cases established by law, the reorganization of legal entities in the form of a merger, accession or transformation can be carried out only with the consent of the authorized state bodies. However, in contrast to the merger and acquisition of legal entities, Article 17 of the Law of the RSFSR "On Competition and Restriction of Monopoly Activities in Commodity Markets" // Vedomosti RSFSR. 1991. No. 16. Art. 499. in relation to reorganization in the form of transformation, the current legislation does not provide for such requirements. The procedure for the transformation of a joint-stock company includes the following stages:

1) holding a meeting of the board of directors to convene a general meeting of shareholders, at which the issue of reorganizing the company will be considered;

2) compiling a list of persons entitled to participate in the general meeting of shareholders, and a list of shareholders entitled to demand the repurchase of their shares by the company;

3) notification to shareholders about holding a general meeting of shareholders to consider the issue of reorganization;

4) adoption of a decision on the reorganization by the general meeting of shareholders, determination of the conditions for its implementation and approval of documents formalizing the succession;

5) notification of the company's creditors about the decision to reorganize;

6) early fulfillment of obligations to creditors and redemption of shares from shareholders, if the relevant requirements were declared by them;

7) approval of constituent documents of the created legal entity and formation of its management bodies;

8) state registration of a legal entity created during the reorganization.

The board of directors of the company initiates the procedure for the reorganization of a joint-stock company in the form of transformation, which sets the date for the general meeting of shareholders, forms its agenda and submits for decision by the general meeting the issue of the transformation of the company, the procedure and conditions for the transformation, the procedure for exchanging the company's shares for contributions from the company's participants with limited liability or shares of members of a production cooperative.

Voting at the general meeting on the issue of reorganization may give rise to the right of shareholders to demand the repurchase of their shares by the company (clause 1, article 75 of the Law on Joint Stock Companies). Therefore, according to paragraph 3 of article 75 of the Law, the board of directors, when deciding to convene a general meeting of shareholders to consider the issue of reorganizing the company, must also set the price at which the company will buy back the shares. It cannot be lower than the market value of the shares, determined by an independent appraiser without taking into account its change as a result of the reorganization.

The board of directors of the company, in addition, determines the date of compiling the list of persons entitled to participate in the general meeting of shareholders. The specified date cannot be set earlier than the date of the decision to hold the general meeting of shareholders and more than 50 days before the date of the general meeting of shareholders (clause 1, article 51 of the Law). At the same time, in accordance with Articles 31 and 32 of the Law, all shareholders of the company - owners of ordinary and preferred shares - are entitled to participate in the voting on the issue of reorganization.

In addition to the list of persons entitled to participate in the general meeting, in order to make a decision on reorganization, the company must draw up a list of shareholders who have the right to demand that the company buy back their shares. At the same time, each shareholder has the right at any time, including after compiling the list of shareholders who have the right to demand the repurchase of their shares by the company, and before the general meeting of shareholders, to assign their shares to another person. In this case, according to paragraph 2 of Article 57 of the Law on Joint Stock Companies, the new shareholder has the right to vote at the general meeting on the basis of a power of attorney issued by the former shareholder, or give the latter appropriate instructions to express his will. A new shareholder can also exercise his right to demand the repurchase of shares only with the direct participation of the person from whom he acquired the shares, since the specified person was included in the list of shareholders who have the right to demand the repurchase of their shares by the company. Thus, similarly to exercising the right to participate in the general meeting, the person who transferred the shares must either issue a power of attorney to the new shareholder, on the basis of which he has the right to submit demands for the repurchase of shares, or declare these demands on his own, provided that the specified person did not take part in voting on the issue of reorganization or voted against its implementation (clause 1, article 75 of the Law).

According to Article 52 of the Law on Joint Stock Companies, a notice of a general meeting of shareholders at which the issue of reorganization will be considered must be made no later than 30 days before the relevant date. At the same time, the company must provide shareholders with the opportunity to familiarize themselves with the documents relating to the agenda of the general meeting. The list of additional information provided to shareholders in preparation for the general meeting, the agenda of which includes the issue of reorganization of the company, is established by the Regulation on additional requirements for the procedure for preparing, convening and holding a general meeting of shareholders, approved by the Decree of the Federal Commission for the Securities Market dated May 31, 2002 Mr. N 17/ps Bulletin of the Federal Commission for the Securities Market. 2002. No. 7..

In accordance with paragraph 2 of Article 20 of the Law on Joint Stock Companies, the general meeting of shareholders of the reorganized company decides on the transformation, the procedure and conditions for its implementation, on the procedure for exchanging the company's shares for contributions from members of a limited liability company or shares of members of a production cooperative.

The adoption of a decision on the reorganization of a joint-stock company falls within the exclusive competence of the general meeting of shareholders and requires a three-quarters majority vote of the shareholders participating in the general meeting for approval. According to paragraph 1 of article 58 of the Law on joint-stock companies, the general meeting of shareholders is eligible if, at the time of the end of registration, shareholders (their representatives) who have in aggregate more than half of the votes of the placed voting shares of the company have registered to participate in it. An exception to the general rule is the transformation of a joint-stock company into a non-profit partnership, which, in accordance with paragraph 1 of Article 20 of the Law, must be carried out by unanimous decision of all shareholders, which requires the presence of all shareholders or their representatives at the general meeting.

One of the main issues considered during the reorganization of any legal entity is the approval of documents formalizing the succession. With regard to reorganization in the form of transformation, such a document is a deed of transfer. However, unlike other forms of reorganization, in relation to the transformation, the Law on Joint Stock Companies does not determine the body authorized to approve this document. According to paragraph 2 of Article 59 of the Civil Code of the Russian Federation, the transfer deed is approved by the founders (participants) of the legal entity or the body that made the decision to reorganize it. The decision on reorganization in the form of transformation is made by the general meeting of shareholders, through which the shareholders exercise their right to participate in the management of the company. Taking into account the fact that, in accordance with the Law on Joint Stock Companies, documents on succession in case of merger, accession, division and spin-off are approved by the general meeting of shareholders, it can be unequivocally concluded that the approval of the deed of transfer takes place in a similar way during transformation.

A necessary step in the reorganization of a joint-stock company is the notification of creditors about it. According to Article 15 of the Law on Joint Stock Companies, no later than 30 days from the date of the decision to reorganize, the company is obliged to notify its creditors in writing and publish in a print publication intended for the publication of data on state registration of legal entities, a message about the decision taken. At the same time, the creditors of the company within 30 days from the date of sending notifications to them or within 30 days from the date of publication of the notice of the decision taken have the right to demand in writing from the company early termination or performance of the relevant obligations and compensation for their losses. The Law on Joint Stock Companies also establishes that state registration of companies established as a result of reorganization and making an entry on the termination of the activities of reorganized companies are carried out if there is evidence of notification of creditors dated February 10, 2003 No. MM-6-09/177//BNA. 2003. No. 14..

At the same time, any of the shareholders who have the right to demand the repurchase of the company's shares owned by him, may declare the specified demand within 45 days from the date of the decision on the reorganization by the general meeting of shareholders. In this case, the company must redeem the shares within 30 days from the date of presentation of the said request. Thus, a reorganized company has the right to apply to the registering authority with an application for registration of an organization created as a result of the transformation only after the expiration of the deadlines for the redemption of shares and the presentation of requirements for early performance or termination of obligations.

It has been noted in the literature that the granting of these rights to shareholders and creditors of a reorganized company during the transformation is devoid of practical meaning due to the fact that in this case there is no redistribution of the property mass of a legal entity; there is a transfer of rights and obligations from one legal entity to another, and this excludes the emergence of additional obligations or the "transfer" of the company's assets Zhdanov D.V. Reorganization of joint-stock companies in the Russian Federation. M., 2001. P.74-76. At the same time, depriving the shareholders and creditors of the reorganized joint-stock company of these rights is inappropriate. When resolving the issue of withdrawal from the company, not only property issues related to the reorganization, but also issues related to the position of participants in the legal entity created as a result of the reorganization, may be of significant importance for the shareholder. In particular, a member of a production cooperative, unlike a shareholder, must participate in the activities of the cooperative by personal labor or by making an additional share contribution, bear subsidiary liability for his debts; by decision of the general meeting of members of the cooperative, it is allowed to expel him from the members of the cooperative Clause 2, Article 8 and Article 22 of the Federal Law “On production cooperatives” // SZ RF. 1996. No. 20. Art. 2321. A participant in a limited liability company may also be expelled from the company in court at the request of its participants, whose shares in the aggregate amount to at least ten percent of the authorized capital of the company Article 10 of the Federal Law “On Limited Liability Companies » // SZ RF. 1998. No. 7. St. 785..

The right of creditors to demand early termination or performance by the reorganized company of its obligations, in turn, is closely related to the right of shareholders to demand a compulsory buyout of shares, since their buyback reduces the size of the company's assets transferred to its successors during the reorganization. But unlike the procedure for liquidating a company, when the claims of creditors are first satisfied, and then the property of the liquidated company remaining after settlements with them is distributed among the shareholders, during the reorganization, the claims of both shareholders and creditors can be satisfied simultaneously. At the same time, the Law on Joint Stock Companies limits the amount of funds directed by the company for the buyback of shares to ten percent of the value of the company's net assets as of the date of the decision on reorganization (clause 5 of Article 76) and, thus, protects the property interests of the company's creditors by restricting the rights its shareholders. At the same time, even taking into account the fact that during the transformation the rights of shareholders and creditors of the reorganized joint-stock company are exposed to the least risks in comparison with other forms of reorganization, it seems that the scope of the rights of these persons to protect their property interests should not differ from that what is granted to them by law when carrying out a merger, accession, division and spin-off.

It should be noted that when a joint-stock company is transformed into a non-profit partnership, the company does not have obligations related to the repurchase of shares from shareholders, since the decision to carry out such a reorganization is made by all shareholders unanimously. The position of the legislator in this case seems to be very reasonable, since when transforming a joint-stock company into a non-profit partnership, in contrast to transforming it into a limited liability company or into a production cooperative, shareholders do not acquire any property rights in relation to the legal entity being created, with the exception of the right to receive exit and exclusion from the partnership, as well as in the event of its liquidation - part of the property of the partnership or the value of this property within the value of the property transferred by the members of the non-commercial partnership to the ownership of the latter.

A necessary step in the reorganization of a joint-stock company is the approval of the constituent documents of its successors and the formation of their management bodies. With regard to reorganization in the form of transformation, decisions on these issues are made by the relevant body of the legal entity being created (general meeting of participants in a limited liability company, general meeting of members of a production cooperative or non-profit partnership).

The procedure for holding these meetings is similar to the adoption of a decision on the establishment of a legal entity, taking into account the requirements of the legislation governing the establishment and operation of the relevant legal entities Shapkina G.S. New in the Russian joint-stock legislation (changes and additions to the Federal Law "On joint-stock companies") // Bulletin of the Supreme Arbitration Court of the Russian Federation. 2002. No. 2. P.68; Stepanov D.I. Consultation // Economy and law. 2003. No. 4. P. 141-142 .. For limited liability companies, this is Art. "On production cooperatives" and "On agricultural cooperation", for non-profit partnerships - the Federal Law "On Non-Profit Organizations".

When transforming a joint-stock company into a limited liability company or a production cooperative, it is necessary to take into account the restrictions on the number of their participants, which are established by law (50 participants in a limited liability company, at least five members in a production cooperative), as well as the special nature of the association of persons into a production cooperative, where one of the conditions is the unification of not only property shares, but also the personal labor or other participation of the members of the cooperative in its activities Shapkina G.S. AO changes image // Business lawyer. 1997. No. 6. Thus, only a closed joint-stock company can be freely transformed into a limited liability company; in an open company, the number of shareholders must first be reduced by buying shares from some of the participants with their consent, or by carrying out, as a preliminary procedure, a reorganization in the form of a division or spin-off. A company with less than five members must attract the necessary number of shareholders to be able to transform into a production cooperative, taking into account the fact that out of every five members of the cooperative, four must participate in its activities by personal labor (clause 2, article 7 of the Federal Law “On production cooperatives”) .

The final stage of reorganization in the form of transformation is the state registration of the legal entity created as a result of the reorganization. This procedure is carried out in accordance with the rules established by Chapter V of the Federal Law "On State Registration of Legal Entities" (hereinafter referred to as the Law on Registration of Legal Entities). To perform it, in accordance with Article 14 of the Law on Registration of Legal Entities and Clause 6 of Article 15 of the Law on Joint Stock Companies, an application for state registration of a legal entity being created, its constituent documents, a decision on the reorganization of a reorganized joint stock company, evidence of notification must be submitted to the registering authority his creditors, a deed of transfer and a document confirming the payment of the state fee. The procedure for interaction between registering authorities in the event that the location of a legal entity being created differs from the location of a reorganized one is established by Decree of the Government of the Russian Federation of June 19, 2002 N 440 “On Approval of the Procedure for Interaction of Registration Authorities in the State Registration of Legal Entities Created by Reorganization”. In accordance with paragraph 1 of Article 16 of the Law on Registration of Legal Entities, the reorganization of a legal entity in the form of transformation is considered completed from the moment of state registration of the newly emerged legal entity, and the transformed legal entity ceases to operate.

At the same time, with regard to reorganization in the form of transformation, the Law on Registration of Legal Entities establishes somewhat contradictory requirements, which has already been noted in the literature Amvrosov A.I. Law on State Registration of Legal Entities: Theory and Practice // Legislation. 2001. No. 12. S. 35. So, paragraph 1 of article 5 of the said Law establishes a list of information and documents about a legal entity contained in the state register. This information also includes information on the organizational and legal form of a legal entity registered in the register. At the same time, clause 4 of the mentioned article obliges the legal entity to inform the registering authority within three days about changes in the information recorded in the state register, including changes in the legal form. However, a change in the legal form of a legal entity is possible only when a transformation is carried out, as a result of which the registered legal entity ceases to exist and, accordingly, cannot notify the registration authority about this. In addition, the Law on Registration of Legal Entities provides for a special procedure for state registration of legal entities arising from reorganization, as a result of which entries are made in the state register on the creation of a new legal entity and on the termination of the activities of the reorganized entity. Thus, imposing on a legal entity created in the course of reorganization in the form of transformation an additional obligation to inform the registering authority about the change in the legal form that has taken place by its legal predecessor seems inappropriate.

Transformation is the simplest form of reorganization, since it does not imply a change in the property base of the reorganized legal entity. At the same time, when carrying out this form of reorganization, it is necessary to ensure the protection of the rights of creditors and participants in the legal entity being transformed. The norms of the legislation on the transformation of a joint-stock company have gaps that can lead to problems in the implementation of this form of reorganization.

One of these gaps is the lack of a definition of the concept of transformation in the Law on Joint Stock Companies. It seems that its addition with such a definition will make it possible to clarify the scope of this form of reorganization and more clearly distinguish it from a change in the type of society. Equally important is the clarification of the content of the rules governing the transformation procedure. In particular, the wording of paragraph 3 of Article 15 of the Law on Joint Stock Companies should be changed to exclude the possibility for third parties to become participants in legal entities created during the transformation, in the process of carrying out this procedure. The issue of the body of the company authorized to approve the deed of transfer upon transformation must be resolved. To do this, it is necessary to make appropriate additions to the list of issues contained in Article 20 of this Law, which are considered by the general meeting of shareholders when deciding on the transformation. The issue of exercising the right to demand the redemption of shares by the company by shareholders who acquired them after compiling the list of persons entitled to participate in the general meeting of shareholders also requires clarification. To do this, the Law on joint-stock companies must provide for a mechanism for exercising this right, similar to the mechanism for exercising the right to participate in a general meeting of shareholders.

The regulation of the entire range of issues related to the reorganization in the form of transformation requires the introduction of appropriate changes in other federal laws. It is advisable to amend the Law on Registration of Legal Entities, excluding from Article 5 of the named Law the obligation of a legal entity to inform the registering authority about a change in its organizational and legal form, since such information can be obtained during the reorganization procedure.

It seems that the introduction of these changes in the current legislation will solve the problems that arise during the transformation and, as a result, will lead to a wider application of this form of reorganization in practice.

In the practice of applying the norms of Part 1 of the Civil Code of the Russian Federation, we will consider the recognition of the invalidity of privatization carried out by transforming a state enterprise into a closed joint stock company.

In case No. A32-21378/2001-35/555 (F08-1730/02), an entrepreneur filed a lawsuit against a state unitary enterprise to declare the use of a trademark unlawful.

By a court decision, satisfaction of the claims was denied on the grounds that a CJSC, formed in the process of reorganization (privatization) of a state-owned enterprise, could not dispose of its right to a trademark and conclude a commercial concession agreement with the plaintiff, since by a court decision in another case, reorganization (privatization ) of a state-owned enterprise is recognized as a void transaction and the consequences of the invalidity of the void transaction are applied by returning the property of the CJSC to state ownership.

The cassation instance annulled the decision of the court and sent the case for a new trial, indicating the following.

The court's conclusion that the invalidity of the reorganization transaction entails the invalidity of the concluded commercial concession agreement does not comply with the law.

Recognition of invalid privatization by transforming a state-owned enterprise into a CJSC means the restoration of the status of a state-owned enterprise, which is the assignee of the rights and obligations of the CJSC. Recognition by the court of the invalid registration of a legal entity is not in itself a reason to consider as null and void the transactions of this legal entity made before the recognition of its registration as invalid.

Reorganization in the form of transformation is a complex operation. The business owner will have to issue more than one order to complete the operation. For this reason, it is required to study the intricacies of the procedure in advance.

What is it

Reorganization of an enterprise in the form of transformation is a series of actions during which the organizational and legal form of the company changes, and the institution itself ceases to exist.

In its place, another organization is created, which retains all the rights and obligations of the first company. During the operation, the charter and constituent documents are changed.

Unlike other types of reorganization, only 1 legal entity.

The operation implies the presence of the following features:

1. From an economic point of view, the transformed organization continues to be treated as the same company.
   

   The changes concern only the internal structure of the company's management and the organizational and legal form. All other areas are not subject to adjustments.

2. From a macroeconomic point of view, transformation is a neutral undertaking.
   

   The company's balance sheet does not change.

3. From a legal point of view, the operation leads to dramatic changes.
   

   A new company is created, to which all the rights and obligations of the predecessor are transferred.

The conversion procedure is of 2 types - voluntary or mandatory.

1. The first variety is carried out at the initiative of the owners of the company.
   

   An action can be taken when the owners of the business decide that the company will be more efficient if its legal form is changed.

   Most often, the owners of an institution that functioned in the form of an LLC decide to transform it into a joint-stock company.

2. Mandatory conversion is performed when a number of cases occur.
   

   The action is taken if the owners of a non-profit organization decide to become entrepreneurial or the number of participants in the organization exceeds the legal limit.

   It should be remembered that the reorganization does not include a change in the type of joint-stock company.

Legislation

A business owner who plans to perform an action should examine:

Normative legal acts regulate all the nuances of the operation and provide answers to most of the questions that may arise in the process of reorganization.

Video: in detail

For whom is relevant

The operation will benefit companies that wish to scale up production. The performance of the action will also be an exit for societies that have reached the maximum mark set in terms of the number of participants.

Not always transformation is a sign of consolidation of the company.

Activities can be performed by firms that have reorganized in the form of a spin-off and now wish to choose a new organizational and legal form.

Advantages

The conversion procedure has a number of advantages.

1. The execution of the operation is the only way to change the legal form of the institution without interrupting the operation.
2. The transformation can be performed after other types of reorganization.
3. It allows you to bring the newly created companies to a single status.

Order

There is a set order for the operation. It is necessary to strictly adhere to the scheme. Deviation from it may lead to the fact that the procedure will fail.

Sample decision on reorganization in the form of transformation

The operation begins with a decision to carry out a reorganization in the form of a transformation.

The action is performed at a general meeting. The operation must support ¾ participants. The minutes of the meeting are drawn up. The decision is documented.

The paper must contain the following information:

• Company name;
• location of the institution;
• conversion order;
• conditions for performing the action;
• features of the formation of a new authorized capital.

State authorities notification

When the decision to start the reorganization is made, the owners of the company are required to notify the tax authorities. The message is sent in writing.

The action must be completed within 3 nights from the moment the decision was made. Sample document

Having received a message about the decision taken, the specialists of the state body will make an entry in the Unified State Register of Legal Entities stating that the company has begun the reorganization procedure.

Publication in the newsletter

After reporting to the state body about the procedure, it is necessary to send information to the media. Not every public source is suitable for performing an action.

Information about changes concerning legal entities should be published in "Bulletin of state registration" .

It is there that you need to send information that the company is in the process of reorganization in the form of transformation. The action is performed 2 times with a difference of 1 month.

Message to creditors

The current legislation obliges the owners of the organization to notify creditors of the reorganization procedure in the form of affiliation. To do this, they are sent a notification.

Only by informing counterparties that the reorganization process has begun, the company can proceed to further actions. Lenders have the right to demand early termination of an existing cooperation agreement.

The company will be required to provide them with a one-time loss coverage.

Lenders are required to announce their decision no later than 30 days from the date of receipt of the notification. If this does not happen, cooperation continues on the same terms. The legal successor of the organization will act as a new partner of creditors.

Registration in the Unified State Register of Legal Entities

The final stage of the operation is making an entry in Unified State Register of Legal Entities .

The action is carried out by employees of the tax inspectorate. In order for the procedure to be completed, supporting documents will be required.

The owner of the company will have to collect, draw up in accordance with the rules and provide the following papers:

• statement;
• statutory documents;
• a check confirming the payment of the state duty;
• papers confirming that the information was published in the media;
• a decision to carry out the reorganization in the form of a transformation;
• OGRN;
• documentation confirming that the company has no debt to the pension fund;
• statistics code;
• request for the provision of statutory documentation.

Having received the papers, the employees of the state body will carefully study it. If no errors are found, the documentation will be taken into consideration. All necessary changes will be made to the Unified State Register of Legal Entities within the prescribed period, and the owner of the company will receive papers confirming the correction of the legal form.

Transfer Deed Sample

Performing a reorganization in the form of a transformation involves drawing up a deed of transfer. It includes a list of obligations that the company has to creditors and debtors.

The paper is necessary for the new company to take into account the obligations. The document must contain information about the transfer of rights and obligations from the reorganized enterprise. Without paper, employees of a state body may refuse to carry out the procedure for registering a new company.

You can draw up documentation at any time, but it is preferable to perform the action along with filling out the reporting.

Restrictions and Responsibilities

It should be remembered that if the action is taken to reduce tax payments, it is meaningless. All responsibilities that the reorganized company possessed will be transferred to the new company.

Questions

To make it easier to complete the action, an entrepreneur who wants to perform a company transformation should familiarize himself with the list of questions that arise most often. Getting a timely response to them will simplify the operation.

Does the TIN change?

Having asked a question, it is necessary to look at the company from a legal point of view. Analyzing from this position, the entrepreneur will find out that the company completely ceases to exist, and a new company is created in its place.

This means that the replacement of all documentation, including the TIN, is required. The company will be assigned a new number.

Reporting and tax implications

All obligations are transferred to the company created on the site of the reorganized enterprise.

This means that the new company will have to pay all the taxes that the predecessor had to contribute to the treasury of the state.

The only difference is that if tax officials find errors in the accounts of the reorganized firm, they will not be able to punish the management of the new enterprise for them.

Other nuances

Reorganization in the form of transformation is a complex operation that has a number of features.

When doing it, you need to take into account the following nuances:

• the procedure will take 2–3 months;
• the new company must provide introductory reporting, which is compiled on the basis of data from the reorganized company;
• if a small company wishes to change the taxation system, it must submit an application within 5 days after conversion.

To simplify the operation, the business owner can contact specialized companies.

Dismissal of workers

Reorganization in the form of transformation allows the company not to interrupt activities. You don't have to lay off staff. However, the employer is obliged to notify employees of the planned changes.

They have the right to independently decide on the continuation of activities in the company. If the employee decides to quit, a corresponding entry is made in the work book. Cooperation with the rest of the staff continues on the same terms.
here.

Terms and cost

The operation will take 2–3 months.

The action is also associated with cash spending. The company must bring the authorized capital in accordance with the minimum size of the legal form that the business owner plans to choose.

In addition, if the entrepreneur cannot perform the operation on his own, he must contact the specialized authorities. They are ready to take care of all the manipulations, but the cost of their services starts from 25,000 rubles.

Reorganization in the form of transformation is a complex procedure that requires a list of knowledge to perform. However, its implementation will help the company choose the organizational and legal form that will simplify the implementation of the company's goals. The method will allow you to perform the transformation without stopping the execution of the activity.

This summer, the Ministry of Finance issued clarifications regarding a number of procedural points during the reorganization of a legal entity in the form of transformation (Letter dated July 29, 2015 No. 03-11-09 / 43662). In this document, we are talking about a company that applies a taxation system in the form of UTII, as well as the tax consequences of such a reorganization.

What is the reorganization procedure in the form of transformation and what are its stages? What tax points should be taken into account in this case by the “vmenenshchik”?

According to Art. 57 of the Civil Code of the Russian Federation reorganization of a legal entity can be carried out in several forms.

In the framework of this material, we will talk about reorganization in the form of transformation.

Reorganization in the form of transformation. What it is?

According to paragraph 5 of Art. 57 of the Civil Code of the Russian Federation reorganization in the form of transformation is a change in the organizational and legal form of a legal entity. At the same time, the rights and obligations of the reorganized legal entity in relation to other persons do not change. Reorganization is allowed with a simultaneous combination of its various forms (shown in the diagram), as well as with the participation of two or more legal entities, including those created in different organizational and legal forms.

The conditions and procedure for reorganization in the form of transformation into the appropriate organizational and legal form are determined decision of the founders on the transformation .

Stages of reorganization

Preparatory stage: making a decision
prepare documents and inform the IFTS

As already mentioned, the decision to reorganize a legal entity is made by its founders. Then during three working days after the date of its acceptance by the registering authority (IFTS), the beginning of the reorganization procedure, including the chosen form, is notified in writing, with the decision itself attached ( Art. 13.1 of Law no. 129-FZ ).

The form of notification of the beginning of this procedure is established Order of the Federal Tax Service of Russia dated January 25, 2012 No. MMV-7-6/ [email protected] .

note

State registration of a legal entity created by reorganization is carried out by the Federal Tax Service at its location ( paragraph 1 of Art. 15 Law no.129-FZ).

Based on this notification of the IFTS, on time no more than three business days makes an entry in the Unified State Register of Legal Entities that the legal entity is in the process of reorganization.

The reorganization of a legal entity in the form of transformation is considered completed from the moment of state registration of a newly emerged legal entity , and the transformed legal entity - terminated its activities ( paragraph 1 of Art. 16Law No. 129-FZ).

According to Art. 14 Law no. 129-FZ the package of documents established by this norm must be submitted to the tax authority. Documentation requirements are set out in Order of the Federal Tax Service of Russia dated 09.06.2014 No. MMV-7-14/ [email protected] .

So, what needs to be prepared for the "sponsor", who made the decision to reorganize, for submission to the tax authority?

1. Signed application for state registration of a newly emerging legal entity established through reorganization, in the form approved Order of the Federal Tax Service of Russia No. MMV- 7-6/[email protected] .
2. Constituent documents of a legal entity in two copies (subsequently, one of the copies with the mark of the controllers is issued to the applicant). It should be noted here that the entire package of documents provided for by the above article can be submitted through a multifunctional center, as well as in electronic form using public information and telecommunication networks, including a single portal of state and municipal services.
3. Transfer deed (separation balance sheet).

In the said document, issues related to the transfer of property and obligations to the successor in the event of a change as a result of reorganization in the form of a transformation of the organizational and legal form of ownership are subject to settlement.

According to Clause 5 of the Guidelineson the formation of financial statements in the implementation of the reorganization of organizations(Further - Guidelines) the founders themselves have the right to determine the date of approval of this document. It must be within the period of the reorganization provided for in their decision, taking into account the necessary procedures (notifying creditors (shareholders, participants) of the decision made and presenting their demands for termination or early performance of obligations and compensation for losses, conducting an inventory of property and obligations, etc. ).

Drawing up a transfer act (separation balance sheet) is recommended to be timed to the end of the year or the date of preparation of financial statements (quarter) ( Clause 4 of the Guidelines).

AT Article 59 of the Civil Code of the Russian Federation the requirements for the deed of transfer are defined: it must contain provisions on the succession of all obligations of the reorganized legal entity in relation to all its creditors and debtors. The document may include the following appendices:

• financial statements, in accordance with which the composition of the property and liabilities of the reorganized organization is determined, as well as their assessment is given as of the last reporting date before the date of registration of their transfer (property is assessed at the residual or current market value or at another cost (actual cost of inventories , the initial cost of financial investments) - the founders must reflect their choice in the relevant decision);
• acts (lists) of the inventory of property and obligations carried out before drawing up the transfer act (separation balance sheet);
• primary accounting documents for material assets (for example, acts (waybills) of acceptance and transfer of fixed assets), lists (inventories) of other property subject to acceptance and transfer during reorganization;
• decoding (inventory) of accounts payable and receivables with information about written notification within the established time limits of creditors and debtors of the reorganized organization about the transfer from the moment of state registration of the organization of property and obligations under the relevant agreements and contracts to the successor, settlements with the relevant budgets, extra-budgetary funds.

4. Document confirming the payment of the state fee. State duty is paid in the amounts established Art. 333.33 of the Tax Code of the Russian Federation. So, for the state registration of a legal entity, the state duty is paid in the amount of 4 thousand rubles. However, in this regard, one cannot ignore the position of the Ministry of Finance, expressed in letters dated 06/29/2015 No. 03‑05‑06‑03/37427 , №  03‑05‑05‑03/37417 . According to officials of the department, when reorganizing a legal entity in the form of transformation, it is necessary to pay a state fee in the amount of 22 thousand rubles. for registration of the transfer of ownership of property. They motivate their position as follows. When a legal entity is reorganized in the form of a transformation, the rights of the reorganized legal entity are terminated and, in the manner of universal succession, the rights of the newly formed legal entity arise.

However, in accordance with paragraph 2 of Art. 4 Law No. 122-FZ rights to real estate are subject to mandatory state registration. By virtue of the provisions Art. 17 this law, and Art. 59 of the Civil Code of the Russian Federation the basis for state registration of the transfer of rights to real estate to a newly formed legal entity is the decision on the reorganization of the legal entity and the deed of transfer.

In view of the foregoing, when transforming a legal entity to which real estate belongs by right of ownership, which passes by succession into the ownership of the established legal entity, state registration of the transfer of ownership to the formed legal entity for these real estate objects is required, for which a state fee is paid in the amount of established pp. 22 p. 1 art. 333.33 of the Tax Code of the Russian Federation(22 thousand rubles).

It should be noted that the competent authorities have repeatedly pointed out the need to pay state duty in such cases (see, for example, Letter of the Ministry of Finance of Russia dated June 17, 2015 No. 03‑05‑05‑03/34999 ).

5. A document confirming the submission of information to the territorial body of the PFR in accordance with pp. 1 - 8 p. 2 art. 6, paragraph 2 of Art. 11 Law no. 27-FZ, as well as on the basis Part 4 Art. 9 of Law no. 56-FZ. As follows from the aforementioned norms, the insured submits to the appropriate body of the PFR information about the insured persons working for him, in particular, during the reorganization of a legal entity. Based on the foregoing, the legislation indicates the obligation to submit individual (personalized) accounting information to the FIU, as well as the right of the tax authority to refuse state registration, including reorganization, due to the existence of information about the failure to fulfill this obligation.

note

The tax authority has the right to refuse to register a reorganization for a legal entity on the basis of failure to provide the FIU with information on individual (personalized) accounting.

Waiting stage: we are waiting for the decision of the tax authorities and we act ourselves

Law no. 129-FZ obliges the “imputer” (as well as any reorganized legal entity) after making an entry in the Unified State Register of Legal Entities about the beginning of the reorganization procedure twice once a month place in the media (in which data on state registration of legal entities are published) notice of reorganization . This rule is enshrined in paragraph 2 of Art. 13.1 named law.

note

The notice of reorganization should contain information about each legal entity participating in the reorganization, the form of reorganization, as well as describe the procedure and conditions for the creditors to submit their claims. In addition, the "sponsor" needs within five working days after the date of sending a message about the start of the reorganization procedure to the Federal Tax Service Inspectorate, notify in writing the creditors known to him about the start of the reorganization.

State registration of a legal entity being reorganized is carried out within the period stipulated Art. eightLaw No. 129-FZ: no more than five working days from the date of submission of documents to the registration authority.

The final stage: do not forget about accounting responsibilities

By virtue of Clause 9 of the Guidelines on the day preceding the date of making the corresponding entry in the Unified State Register of Legal Entities, by the reorganized organization terminating its activities, must be drawn up final financial statements .

Formation of financial statements in the course of reorganization is carried out in the presence of:

• constituent documents of the organization;
• decisions of the founders on reorganization;
• deed of transfer (separation balance sheet).

The final financial statements are prepared in accordance with PBU 4/99 "Accounting statements of the organization" in the scope of the forms of annual financial statements adopted earlier by the organization, for the period from the beginning of the reporting year until the entry in the Unified State Register of Legal Entities about the newly established organization. When compiling the final financial statements by the reorganized organization in the form of transformation on the day preceding the entry into the Unified State Register of Legal Entities records of the organization that has arisen, the profit and loss account is closed and the amount of net profit is distributed (directed) on the basis of the decision of the founders.

In accordance with clause 46 of the Guidelines starting from the date of adoption by the founders of the decision on the reorganization in the financial statements compiled and submitted during the reorganization must additionally include the following information:

• grounds for the reorganization;
• information about the organizations participating in the reorganization;
• date of drawing up the act of transfer (separation balance sheet);
• changes in the composition and value of property (commissioning of fixed assets from construction in progress, their depreciation, disposal) and liabilities (repayment (increase) of debt) starting from the date of drawing up the deed of transfer or separation balance sheet, as well as events that caused the corresponding changes in assets and obligations;
• costs associated with the reorganization;
• formation of the authorized capital of the organization that has arisen;
• inconsistency (clarification) of the data of the transfer act (separation balance sheet) with the numerical indicators of the final financial statements;
• discrepancy between the data of the final financial statements and the numerical indicators of the opening balance sheet.

Introductory financial statements is compiled by transferring the indicators of the final financial statements. At the same time, the size of the authorized capital may differ (if the owners decide to increase or decrease it). In this case, the transfer of indicators must be carried out according to the rules established by 44Guidelines.

tax accounting

On the payment of UTII and the submission of a declaration,
as well as the right to remain on the "imputation"

When a legal entity is reorganized in the form of a transformation, the rights of the reorganized legal entity are terminated and the rights of the newly formed legal entity arise by way of universal succession.

The obligation to pay taxes of a reorganized legal entity shall be fulfilled by its legal successor in the manner prescribed by Art. 50 Tax Code of the Russian Federation.

note

In accordance with item 9 of this article, when one legal entity is transformed into another, the legal successor of the reorganized legal entity in terms of fulfilling the obligations to pay taxes is recognized as a newly emerged legal entity.

The fulfillment of tax obligations of the reorganized legal entity shall be assigned to its legal successor, regardless of whether the latter was aware of the facts and circumstances of non-performance or improper performance by the reorganized legal entity of these obligations prior to the completion of the reorganization. Moreover, the successor must pay all penalties due for the duties transferred to him.

The legal successor must also submit tax returns. If the latter finds in the declaration the fact of non-reflection or incomplete reflection of information, as well as errors that lead to an underestimation of the amount of tax payable, he is obliged to make the necessary changes to the declaration and submit an “update” in the manner established in Art. 81 Tax Code of the Russian Federation.

AT paragraph 1 of Art. 54 Tax Code of the Russian Federation it is provided that if errors (distortions) are found in the calculation of the tax base relating to past tax (reporting) periods, in the current tax (reporting) period, the tax base and the amount of tax are recalculated for the period in which the indicated errors (distortions) were committed.

Consequently, if the successor discovers in the tax declaration filed by the reorganized organization that information is not reflected or incomplete, as well as errors that lead to an understatement (overstatement) of the amount of tax payable, the successor is obliged (right) to make the necessary additions and changes to the tax declaration of the reorganized organization for the indicated period and recalculate tax liabilities in the period of the error (see, for example, Letter of the Federal Tax Service for Moscow dated 11/17/2009 No. 16-15/120357 ).

At the same time, as noted by the Ministry of Finance in Letter No. 29.07.2015 03‑11‑09/43662 must follow the rules set out in clause 2.6 of the procedure for filling out a declaration for UTII, which states that when submitting to the tax authority at the place of registration by the successor organization of the tax return for the last tax period and revised declarations for the reorganized organization (including in the form of transformation of one legal entity into another) in the title page at the requisite "at the place accounting ", the code" 215 "is indicated, and in its upper part - the TIN and KPP at the location of the successor organization. The attribute "taxpayer" reflects the name of the reorganized organization.

Now, with regard to the legality of applying the taxation system in the form of UTII after the reorganization of the organization. Officials, explaining this situation, point to paragraph 1 of Art. 16 Law no. 129-FZ (Letter No. 03‑11‑09/43662 ), according to which the reorganization of a legal entity in the form of transformation is considered completed from the moment of state registration of the newly emerged legal entity, and the transformed legal entity - terminated their activities . Since when a legal entity that paid a single tax is transformed, a new legal entity arises, in order to apply the taxation system in the form of UTII, it is required to submit an appropriate application to the tax authority in the manner prescribed paragraph 3 of Art. 346.28 of the Tax Code of the Russian Federation.

Recall that, by virtue of the above norm, organizations that have expressed a desire to switch to the payment of UTII are submitted to the tax authorities within five days from the day the “imputation” was applied, an application for registration as a single tax payer on imputed income.

In order to avoid additional problems with the tax authorities, it may be worth following the recommendations of the competent authorities. It will not be difficult to declare yourself as a payer who plans to apply the "imputation" after the reorganization, but it will allow you to protect yourself from unnecessary tax disputes. And they will arise, as practice shows. On the one hand, there are special requirements that the legal successor of the reorganized organization - the “imputer” must declare the continuation of the use of the special regime in the form of UTII, ch. 26.3 of the Tax Code of the Russian Federation does not provide. Besides, paragraph 5 of Art. 58 of the Civil Code of the Russian Federation it has been established that when a legal entity of one type is transformed into a legal entity of another type (change of organizational and legal form), the rights and obligations of the reorganized legal entity are transferred to the newly established organization in accordance with the deed of transfer. And, as already noted, with this transformation, the newly emerged organization is the legal successor of the reorganized legal entity in terms of fulfilling tax obligations.

On the other hand, according to the regulatory authorities, the right to apply special regimes does not pass to a newly formed legal entity as a result of transformation from a reorganized organization, since the activities of the transformed legal entity are terminated.

Accordingly, a new organization has the right to apply a special regime in the form of UTII only if it submits an appropriate application in the above manner.

It should be noted that officials spoke in a similar way before, however, their explanations concerned the use by the organization of a different special regime (USNO), and not “imputation” (see, for example, letters of the Ministry of Finance of Russia dated February 7, 2012 No. 03‑11‑06/2/22 , Federal Tax Service for Moscow dated 08.10.2010 No. 16-15/105637 ).

At the same time, there is also a directly opposite point of view, which is shared by a part of the judiciary. And despite the fact that the court decisions relate to the use of the simplified taxation system by organizations, we believe that the conclusions set out in them are also relevant for the “imputers”.

In the opinion of the arbitrators, succession upon transformation of a legal entity allows the newly created organization to use the same taxation system as the former organization. At the same time, it is not required to apply for the transition to the selected special regime (see, for example, Decision of the FAS MO dated 12/18/2012 in case No. А40-46740/12‑115‑273).

Courts take into account that par. 2 p. 2 art. 50 Tax Code of the Russian Federation the legal successor of the reorganized legal entity, in the performance of the duties assigned to it for the payment of taxes and fees, enjoys all the rights, performs all the duties in the manner prescribed by the tax legislation. Since succession upon transformation of a legal entity by changing the organizational and legal form is of a universal nature, along with other rights, the right of the reorganized legal entity to apply the same special regime as before the reorganization ( Decree of the FAS UO dated 07.07.2011 No. F09-4136/11 in case No. А50-25231/2010).

At the same time, one cannot fail to note the court decisions that are negative for the taxpayer, in which the arbitrators indicate that the right to use the same special regime by succession does not pass to the newly created organization. In order to exercise this right, the organization, simultaneously with the application for tax registration, must send to the tax authority an application for its application (see, for example, Decree of the FAS SKO dated September 15, 2008 No.F08-5418/2008 in case No.  A32-3719/
2008-63/67 ).

Sent by Letter of the Federal Tax Service of Russia dated 07.09.2015 No. GD-4-3 / [email protected] to lower tax authorities and taxpayers.

Federal Law of 08.08.2001 No. 129-FZ.

Approved by the Order of the Ministry of Finance of Russia dated May 20, 2003 No. 44n.

Federal Law of July 21, 1997 No. 122‑FZ “On State Registration of Rights to Real Estate and Transactions with It”.

Federal Law No. 27-FZ of April 1, 1996 “On Individual (Personalized) Accounting in the Compulsory Pension Insurance System”.

Federal Law No. 56-FZ of April 30, 2008 “On Additional Insurance Contributions for Funded Pension and State Support for the Formation of Pension Savings”.