Methods for reorganizing legal entities. Reorganization in the form of accession, merger and through the separation of a new legal entity

The need to transform a JSC into an LLC may be due to various reasons. This may be due to a decrease in the costs of maintaining JSC, the absence of an obligation to disclose information by joint-stock companies, keeping a register of shareholders by specialized registrars, conducting a mandatory annual audit, certifying decisions of general meetings of shareholders by notaries or registrars, and a number of other reasons.

Reorganization in the form of transformation of a JSC into an LLC retains all rights and obligations of a joint stock company for the LLC. You need to know that the OGRN and TIN of the LLC will be different from that of the JSC, as well as registration numbers in the Pension Fund of the Russian Federation, the Federal Social Security Service and Rosstat. As a rule, banks do not change the number of the current account.

Let us consider in order all the stages of the procedure for transforming a JSC into an LLC.

Plan (structure) of transformation of JSC into LLC:

1. Stage one. Preliminary.
2. Stage two. Adoption of a decision to hold a general meeting of shareholders with an agenda for the transformation of a JSC into an LLC.
3. Stage three. Preparation of draft documents for reorganization, for their approval by the general meeting of shareholders.
4. Stage four. Preparation for the general meeting of shareholders. Notification to shareholders about the holding of a general meeting of shareholders.
5. Stage five. Holding a general meeting of shareholders of the JSC. Decision-making on the transformation of JSC into LLC.
6. Stage six. Notification of the registering authority about the beginning of the reorganization procedure in the form of transformation of a JSC into an LLC.
7. Stage seven. Notification of JSC creditors. Publication of the announcement of the reorganization in the form of transformation of JSC into LLC in the "Bulletin of State Registration".
8. Stage eight. Submission by shareholders of a demand for the repurchase of shares. Redemption of shares at the request of shareholders.
9. Stage nine. Reconciliation with the Pension Fund.
10. Stage ten. Registration of an LLC created as a result of the transformation of a joint-stock company.
11. Stage eleven. Final stages of reorganization of JSC into LLC.

This article provides step-by-step instructions for carrying out the procedure for transforming a JSC into an LLC.

Since 2014, the procedure for transforming a JSC into an LLC has been significantly simplified. Thus, there is no need to carry out a number of stages, but so far there are difficulties in carrying out the simplified procedure in practice. Therefore, to begin with, we will consider the full procedure for reorganizing in the form of transforming a JSC into LLC, which will give a 100% result of the registration of the reorganization, and then the stages that are not mandatory by virtue of the Civil Code of the Russian Federation, but are still mandatory by virtue of a number of other laws.

Preliminary.

It is necessary to think about how you want to see the future of the LLC.

It can be completely identical to a joint stock company, or it can have differences, incl. in terms of name, address, types of activities, manager and others.

To begin with, we decide on the following:

• What will be the name of the LLC (full, abbreviated, in a foreign language).
• Where the LLC will be located - address (location).
• What will be the taxation system (OSNO or STS).
• What will be the size of the authorized capital of the LLC. The size of the authorized capital of the LLC being formed may differ from the size of the authorized capital of a JSC, both upward and downward, but not less than the established minimum.
• What will be the types of activities of the LLC according to OKVED.
• Who will be the CEO of the LLC.

When carrying out the transformation of a JSC into an LLC, it is mandatory to carry out an inventory (part 3 of article 11 of the Federal Law "On accounting"; clause 27 of the Regulations on accounting and financial reporting in the Russian Federation). To carry out the inventory, a permanent inventory commission is created, the composition of which is approved by the head of the joint-stock company (clauses 2.2, 2.3 of the Guidelines for the inventory of property and financial obligations).

A situation may arise when some shareholders vote against the decision to reorganize or do not take part in the voting. In this case, such shareholders will have the right to file a demand for the repurchase of their shares. Because the redemption of shares is carried out at a price determined by the board of directors of the JSC, but not lower than the market value, which must be determined by an independent appraiser; in preparation for the meeting, it is necessary to make an independent assessment of the value of the shares.

Adoption of a decision to hold a general meeting of shareholders with an agenda to transform a JSC into an LLC.

The decision to reorganize in the form of transformation of a JSC into an LLC falls within the competence of the general meeting of shareholders. As a rule, the Board of Directors of a JSC convenes a general meeting of shareholders, and in case of his absence, the person endowed with such powers, specified in the Articles of Association of the JSC. Usually this is the head (General Director) of the JSC.

Preparation of draft documents for reorganization, for their approval by the general meeting of shareholders.

Because shareholders have the right to familiarize themselves with the documents before the meeting, it is necessary to prepare the following projects:

• The decision to reorganize in the form of transformation. It should contain:
  1. the name of the LLC being created.
  2. information about the location of the LLC being created.
  3. order and conditions of transformation.
  4. the procedure for exchanging the company's shares for the participants' shares in the authorized capital of the LLC.
  5. an indication of the person performing the functions of the sole executive body of the LLC (General Director).
  6. an indication of the approval of the Transfer Certificate.
  7. indication of the approval of the Charter of the LLC.
  8. a list of members of the audit commission or an indication of the LLC auditor (if there are more than 15 LLC Participants in the LLC or the LLC's Charter provides for its formation).
  9. the list of members of the collegial body of the LLC (if, in accordance with the Charter of the LLC, its formation is provided).
• LLC Charter.
• Transfer act.
  Important!!! The deed of transfer is drawn up and approved as of the date of the decision on reorganization in the form of transformation. Despite the fact that by the time of the state registration of the LLC, these numbers have changed, no additional or updated acts need to be done. For this, by virtue of the Civil Code, the Transfer Act must contain provisions on succession for all obligations of the reorganized legal entity in relation to all its creditors and debtors, including obligations disputed by the parties, as well as the procedure for determining succession in connection with a change in the type, composition, value of property, the occurrence, change, termination of the rights and obligations of the reorganized legal entity, which may occur after the date on which the transfer act was drawn up.
• Information about the candidates for the management positions of LLC.
• Annual report, annual financial statements, the latest quarterly financial statements of JSC.
• Report of an independent appraiser of the market value of shares.

Preparation for the general meeting of shareholders. Notification to shareholders about the holding of a general meeting of shareholders.

Before informing shareholders about the general meeting of shareholders, it is necessary to obtain from the registrar the List of persons entitled to participate in the general meeting of shareholders. Such a list must be drawn up no earlier than 10 days from the date of the decision to hold a general meeting of shareholders, but no more than 35 days before it.

After compiling the List of persons entitled to participate in the meeting, all shareholders indicated in it must be notified of the meeting. The method of notification of shareholders is usually specified in the Articles of Association of the JSC. If no other method is provided, the notice of the meeting shall be sent to shareholders by registered mail or handed over against signature. Such a message must be sent out at least 30 days before the date of the meeting.

The notice on holding a general meeting of shareholders on the issue of reorganization of a JSC in the form of transformation must contain:

1. Full corporate name of JSC.
2. Location of JSC.
3. Meeting form.
4. Date, time, place of the general meeting.
5. Date of determination of persons entitled to participate in the meeting.
6. Agenda.
7. The procedure for familiarization with the information (materials) to be provided to the shareholders of the JSC in preparation for the general meeting, and the address at which it can be found.
8. Start time of registration of persons participating in the general meeting.
9. Information on whether shareholders have the right to demand the redemption of shares, information on the price and procedure for the redemption.
10. Categories (types) of shares, the owners of which have the right to vote on all or some of the items on the agenda of the general meeting of shareholders.

Holding a general meeting of shareholders of the JSC.
Decision-making on the transformation of JSC into LLC.

From October 1, 2014, the adoption of a decision by the general meeting of shareholders and the composition of persons participating in the meeting of a JSC must be confirmed by a notary or a specialized registrar. An exception to this rule is a joint stock company consisting of a sole shareholder. In this case, the decision on reorganization is made and signed by the shareholder in a simple written form.

Therefore, to hold a general meeting of shareholders with two or more shareholders, it is necessary to agree in advance with a notary or a specialized registrar on the date, time and place of the general meeting of shareholders, as well as on the list of documents that they need.

On the appointed day, a general meeting of shareholders is held, at which a decision is made (or not adopted) on reorganization in the form of transforming a JSC into an LLC. The general meeting of shareholders is competent if it is attended by shareholders holding in aggregate more than half of the votes of the outstanding voting shares of the JSC.

To make a decision on reorganization, it is sufficient if three quarters of the votes of the shareholders participating in the meeting have been cast for it.

As a result of the meeting, two Minutes are drawn up, signed by the Chairman and the Secretary:

1. Voting results protocol.
2. Minutes of the general meeting of shareholders.

In case of confirmation of the decisions made and the composition of the persons participating in the meeting of the JSC by a notary, the notary draws up a Certificate of attestation of these facts.

The minutes of the general meeting of shareholders shall be drawn up no later than three working days and within a period of not more than 7 working days from the date of its drawing up, provided to the registrar in the form of a copy or an extract from the minutes.

Important!!! If the JSC consists of a sole shareholder, there is no need to comply with the procedures for convening, holding a general meeting of shareholders, as well as certifying the decision of the JSC adopted by the sole shareholder, notary or registrar.

Notification of the registering authority (FTS) about the beginning of the reorganization procedure in the form of transformation of a JSC into an LLC.

Within three working days after the date of the decision on reorganization in the form of transformation of a JSC into an LLC, it is necessary to notify the registering authority (FTS). To do this, the head of the JSC certifies Form P12003 (Notification of the beginning of the reorganization procedure) with a notary and submits it to the registering authority along with the Protocol on reorganization.

In case of confirmation of the decisions made and the composition of the persons participating in the meeting of the JSC by a notary - the Certificate of attestation of these facts is provided to the Protocol in the form of a notarized copy.

If the documents are drawn up correctly, after three working days, the registering authority will make an entry in the Unified State Register of Legal Entities that the JSC is in the process of reorganization and will issue an appropriate Record Sheet.

Notification of JSC creditors. Publication of the announcement of the reorganization in the form of transformation of JSC into LLC in the "Bulletin of State Registration".

The JSC, within five working days after the date of sending to the registering authority a notice of the beginning of the reorganization procedure, shall notify the creditors known to it in writing about the beginning of the reorganization.

And after making an entry in the Unified State Register of Legal Entities about the beginning of the reorganization procedure, twice with a frequency of once a month, publishes a notice of its reorganization in the State Registration Bulletin.

Submission by shareholders of a demand for the repurchase of shares. Redemption of shares at the request of shareholders.

Shareholders have the right to demand that the company repurchase all or part of the shares they own if they voted against the decision to reorganize or did not take part in the voting. Shareholders' demands for the repurchase of shares must be submitted within 45 days from the date of the decision on the reorganization.

The JSC must repurchase shares from shareholders who have filed a repurchase request within 30 days.

The redemption of shares by the company is carried out at a price determined by the board of directors of the JSC, but not lower than the market value, which must be determined by an independent appraiser.

Reconciliation with the Pension Fund.

Within one month from the date of approval of the Transfer Act (the date of the decision on reorganization), information about the insured persons must be submitted to the FIU. It is advisable to check with the FIU about the absence of any debts in terms of the submitted reports and receive the corresponding Certificate, which should be provided together with the documents for registration of the LLC.

The registering body, in the process of considering documents on registration of reorganization in the form of transformation of a JSC into an LLC, will in any case ask the FIU about the presence of debt on personalized accounting, and in case of a negative answer from the FIU, it will refuse the state registration of the reorganization.

Registration of an LLC created as a result of the transformation of a joint-stock company.

Documents for state registration of an LLC can be submitted to the registering authority (FTS) no earlier than 3 months after the entry into the Unified State Register of Legal Entities about the beginning of the reorganization procedure is made.

The following are submitted to the registering authority:

• Application for state registration of a legal entity created through reorganization (form P12001), certified by the head of the JSC.
• The charter of the LLC being created - 2 copies.
• Transfer act.
• A document confirming the submission of information to the territorial body of the Pension Fund of the Russian Federation in accordance with cl. 1 - 8 p. 2 Art. 6 and clause 2 of Art. 11 ФЗ dated April 1, 1996 No. 27-ФЗ and in accordance with Part 4 of Art. 9 ФЗ dated April 30, 2008. № 56-ФЗ (it is possible not to submit it, the registering authority can receive it upon an interdepartmental request).
• Receipt (payment order) for payment of the state duty in the amount of 4,000 rubles.
• Notification of the transition to the simplified taxation system, if the LLC is going to apply this type of taxation system (you can submit it not immediately, but within 30 days after the registration of a new LLC).

The decision on reorganization is not required to be submitted to the registration authority.

The term for state registration of an LLC created as a result of the transformation of a JSC is 5 working days.

Based on the results of the positive state registration of an LLC, the registration authority issues:

• Record sheet for state registration of LLC.
• Record sheet on the termination of the JSC as a result of reorganization.
• Certificate of tax registration of LLC.
• Notice of deregistration of JSC.
• Charter.

Final.

After receiving the documents on registration of the LLC, you can make the seal of the LLC (Information on the presence of the seal must be contained in the charter of the LLC).

Registration of an LLC with non-budgetary bodies - the Pension Fund of the Russian Federation and the Social Insurance Fund of the Russian Federation - occurs automatically. After registration with these funds, the Notification is usually sent by mail to the address (location) of the LLC. This is not always the case, therefore, in order not to wait, you can independently or by proxy receive these Notifications at the appropriate territorial office, as well as Notifications on deregistration of a JSC.

Statistics codes are also assigned automatically and printed from the Rosstat website.

If the reorganized JSC has licenses, as well as if there are vehicles on the balance sheet, immovable property - after reorganization into an LLC, it will need to be reissued to a legal successor.

An LLC created as a result of the reorganization of a JSC is obliged to inform the registrar of the fact of its state registration (about making an entry on the termination of the activities of the reorganized JSC) on the day of making the corresponding entry in the Unified State Register of Legal Entities.

During reorganization in the form of transformation, the securities of JSC are redeemed. About what the corresponding document is issued by the registrar.

Within 30 days from the date of state registration of the reorganization in the form of transformation, it is necessary to send to the Central Bank of the Russian Federation a Notice of changes in information related to the issue (additional issue) of securities, which must be drawn up in accordance with Appendix 26 to the Regulation approved by the Bank of Russia No. 428 -P and signed by the head of the LLC.

The following must be attached to the Notification to the Central Bank of the Russian Federation:

• a copy of the Record Sheet on the termination of the activities of the JSC.
• a copy of the Decision on the reorganization of the joint-stock company.
• an extract from the register of shareholders on the redemption of shares.

It is also necessary to notify the bank in which the account of the joint-stock company and counterparties were opened about the transformation of a JSC into an LLC about the change in the organizational and legal form and details.

All the original documents of the JSC that are in storage and subject to storage are transferred to the LLC created as a result of the reorganization.

Stages that are not required to comply with the procedure for reorganizing a JSC into an LLC.

To simplify the transformation procedure, the corresponding changes were made to the Civil Code, but so far no changes have been made to the Federal Law "On Joint Stock Companies", the Federal Law "On Limited Liability Companies", the Federal Law "On State Registration of Legal Entities and Individual Entrepreneurs".

In this regard, sometimes difficulties arise during the reorganization procedure in the form of transformation, since The Civil Code has released from some stages, and federal laws still require them.

So, in accordance with the Civil Code, it is not required to draw up a Transfer Act and publish a message on the reorganization in the "Bulletin of State Registration".

Reorganization in the form of transformation of a JSC into an LLC is considered a complex and lengthy process, which, when carrying out such a procedure on its own, takes about six months. If you do not want to lose precious time, money and get fines - trust the professionals! We have many years of experience in reorganization in the form of transformation of JSC into LLC and dozens of successfully registered transformations.

To carry out reorganization in the form of transforming a JSC into an LLC is within the power of a lawyer who has a lot of diligence, a desire to understand the procedure on his own and time to search for the necessary information on the Internet. The most important thing is not to miss a single important moment, so that by the end of the reorganization procedure you will not roll back to its very beginning because of some seemingly overlooked "trifle".

Assumes a change in the organizational and legal form of a legal entity. During reorganization by transformation, the legal entity ceases to operate with the transfer of all right and commitments newly established legal entity already in the new organizational and legal form.

Reorganizing by transformations, it is necessary to take into account the requirements of the law regarding possible organizational and legal forms... So (ooo) can transform into joint-stock company, additional liability company, production cooperative... (Article 56 of the Federal Law "On Limited Liability Companies"). Joint-stock company(closed or open) can only be converted to OOO, production cooperative, non-profit partnership... (Article 20 of the Federal Law "On Joint Stock Companies").

Reorganization in the form of a transformation must be carried out without fail in and out closed joint stock companies or production cooperative.

reorganization by transformation takes place liquidation of the reorganized legal entity with the transfer of all rights and obligations to the newly created legal entity... Therefore, it is necessary to notify everyone about the upcoming reorganization. creditors, as well as publish information about the upcoming reorganization in the periodical "Bulletin of State Registration".
All rights and obligations of a legal entity, as well as provisions on succession should be reflected in deed of transfer approved by the relevant governing body.

So that you do not torment yourself with the questions "What is transformation? ", we will take a short excursion into the concept. Legal entity transformation involves a change in the organizational and legal form legal entity... In the process of reorganization through transformation, a legal entity terminates its activities with the transfer of all rights and obligations to a newly created legal entity already in a new organizational and legal form.

By implementing reorganization by transformations, it is necessary to take into account the requirements of the law regarding possible organizational and legal forms. So Limited liability company (OOO) can be converted to joint-stock company, additional liability company, production cooperative. (Article 56 of the Federal Law "On Limited Liability Companies"). A joint stock company (closed or open) can only be transformed into an LLC, a production cooperative, or a non-profit partnership. (Article 20 of the Federal Law "On Joint Stock Companies").

Reorganization as transformations must be carried out without fail in Limited Liability Companies and closed joint stock companies if the number of participants exceeds more than 50. Such legal entities should be transformed into Open Joint Stock Company or production cooperative.
It should be noted that in the process reorganization by transformation happens liquidation of a reorganized legal entity with the transfer of all rights and obligations to the newly created legal entity... Therefore, about the upcoming reorganization it is necessary to notify all creditors, as well as publish information about the upcoming reorganization in the periodical "Bulletin of State Registration". All rights and obligations legal entity, as well as the provisions on succession must be reflected in the deed of transfer, which is approved by the relevant governing body.

Conversion is the most difficult process in making changes.

If you have a question about transformation, we are always happy to help you, to protect you from unnecessary headaches, to surround you with care, attention and understanding.

We will be glad if you call us by phone 383-40-99 , we will listen carefully to you, we will offer the fastest and most effective options for your specific situation.

You will feel that you have got to the professionals and your mood will improve!

This summer, the Ministry of Finance issued clarifications regarding a number of procedural issues during the reorganization of a legal entity in the form of transformation (Letter No. 03-11-09 / 43662 dated July 29, 2015). This document refers to a company that uses 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 by the "imputed judge"?

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

Within 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 Clause 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 (presented 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 to transform .

Reorganization stages

Preparatory stage: making a decision
we 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 adoption, the registering authority (IFTS) informs in writing about the beginning of the reorganization procedure, including the chosen form, with the attachment of the decision itself ( Art. 13.1 of Law no. 129-FZ ).

The notification form on the beginning of this procedure is established By order of the Federal Tax Service of Russia dated 25.01.2012 No. MMV-7-6 / [email protected] .

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

Based on this notification, the Federal Tax Service Inspectorate in time no more than three working 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 complete from the moment of state registration of a newly formed legal entity , and the transformed legal entity - to the terminated activity ( clause 1 of Art. 16Law no. 129-FZ).

According to Art. 14 of Law no. 129-FZ the tax authority must submit the package of documents established by this norm. Requirements for paperwork are fixed 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 "imputed judge" who made the decision to reorganize for submission to the tax authority?

1. A signed application for state registration of a newly emerging legal entity created through reorganization, in the form approved by By order of the Federal Tax Service of Russia No. MMV- 7-6/[email protected] .
2. The constituent documents of the legal entity in duplicate (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 act (separation balance sheet).

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

According to p. 5 Methodical instructionson the formation of financial statements in the implementation of the reorganization of organizations(Further - Methodical instructions) the date of approval of this document may be determined by the founders themselves. 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 their presentation of demands for termination or early fulfillment of obligations and compensation for losses, inventory of property and obligations, etc. ).

It is recommended to draw up the transfer act (separation balance sheet) by the end of the year or the date of the financial statements (quarter) ( p. 4 Methodical instructions).

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

• financial statements, in accordance with which the composition of the property and liabilities of the reorganized organization is determined, and their assessment is also given as of the last reporting date before the date of registration of their transfer (the property is evaluated at the residual or current market value or at another value (the actual cost of inventories , the initial cost of financial investments) - the founders must reflect their choice in the corresponding decision);
• acts (inventory) of the inventory of property and liabilities, carried out before drawing up the deed of transfer (separation balance sheet);
• primary accounting documents for material assets (for example, acts (invoices) of acceptance and transfer of fixed assets), lists (inventories) of other property subject to acceptance and transfer during reorganization;
• transcripts (inventory) of accounts payable and receivable with information on written notification in due time to 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 legal successor, settlements with the relevant budgets, extra-budgetary funds.

4. Document confirming the payment of the state fee. The state duty is paid in the amount 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 June 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 the property. They motivate their position as follows. When a legal entity is reorganized in the form of transformation, the rights of the reorganized legal entity are terminated and, in the order of universal legal succession, the rights of the newly formed one arise.

However, in accordance with clause 2 of Art. 4 of Law no. 122-FZ rights to real estate are subject to mandatory state registration. By virtue of the provisions Art. 17 of this law, as well as 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 to reorganize the legal entity and the deed of transfer.

Taking into account the above, when a legal entity is transformed, which owns immovable property by right of ownership, which is transferred by way of succession into the ownership of the created legal entity, state registration of the transfer of ownership to the formed legal entity for these real estate objects is required, for the commission of which a state fee is paid in the amount of, established nn. 22 p. 1 of art. 333.33 of the Tax Code of the Russian Federation(22 thousand rubles).

Note that the competent authorities have repeatedly pointed out the need to pay the 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 nn. 1 - 8 p. 2 Art. 6, clause 2 of Art. 11 of Law no. 27-FZ and also based on h. 4 tbsp. 9 of Law no. 56-FZ... As follows from the aforementioned norms, the insured submits to the appropriate body of the Pension Fund of the Russian Federation 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 (personified) accounting information to the PFR, as well as the right of the tax authority to refuse state registration, including reorganization, due to the availability of information about the failure to fulfill this obligation.

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The tax authority has the right to refuse a legal entity to register a reorganization on the basis of failure to submit individual (personified) accounting information to the PFR.

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

Law no. 129-FZ obliges the "imputed judge" (as, by the way, any reorganized legal entity) after the entry into the Unified State Register of Legal Entities about the beginning of the reorganization procedure twice with a frequency of once a month place in the media (in which data on state registration of legal entities are published) notice of its reorganization ... This rule is enshrined in clause 2 of Art. 13.1 of the named law.

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The notice of reorganization should indicate information about each legal entity participating in the reorganization, the form of reorganization, and also describe the procedure and conditions for the creditors to declare their claims. In addition, the "imputed judge" needs within five working days after the date of sending the message about the beginning of the reorganization procedure to the IFTS, notify in writing the creditors known to him about the beginning of the reorganization.

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

The final stage: do not forget about accounting duties

By virtue of p. 9 Methodical instructions on the day preceding the date of making the corresponding entry in the Unified State Register of Legal Entities, the reorganized organization that ceases 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 founders on reorganization;
• deed of transfer (separation balance sheet).

Final financial statements are prepared in accordance with PBU 4/99 "Financial statements of the organization" in the amount of the forms of annual accounting statements adopted earlier by the organization, for the period from the beginning of the reporting year to the entry into the Unified State Register of Legal Entities of the newly formed organization. When drawing up the final financial statements by the reorganized organization in the form of transformation on the day preceding entering into the Unified State Register of Legal Entities records about the established organization, the profit and loss account is closed and the distribution (direction) is made based on the decision of the founders of the amount of net profit.

In accordance with p. 46 of the Methodological Guidelines starting from the date the founders made a decision on reorganization in the financial statements compiled and submitted during the reorganization , you must additionally reflect the following information:

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

Introductory accounting statements 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 should be carried out according to the rules established p. 44Methodical instructions.

Tax accounting

Payment of UTII and submission of the declaration,
and also about the right to stay on "imputation"

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

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

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In accordance with p. 9 of this Article, when one legal entity is transformed into another, the newly created legal entity is recognized as the legal successor of the reorganized legal entity in terms of the fulfillment of obligations to pay taxes.

The fulfillment of obligations to pay taxes of the reorganized legal entity shall be imposed on its successor, regardless of whether the latter was aware of the facts and circumstances of non-fulfillment or improper fulfillment of these obligations by the reorganized legal entity prior to the completion of the reorganization. Moreover, the assignee must pay all penalties due to the duties that have passed to him.

The legal successor must also submit tax returns. If the latter discovers in the declaration the fact of non-reflection or incompleteness of the reflection of information, as well as errors leading to an underestimation of the amount of tax payable, he is obliged to make the necessary changes to the declaration and submit a "revision" in the manner prescribed in Art. 81 of the Tax Code.

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

Consequently, if the legal successor discovers in the tax declaration filed by the reorganized organization that the information is not reflected or incomplete, as well as errors leading to the underestimation (overestimation) of the amount of tax payable, the legal successor is obliged (entitled) to make the necessary additions and changes to the tax return of the reorganized organization for the indicated period and recalculate tax liabilities in the period of the error (see, for example, Letter from the Federal Tax Service for Moscow dated 17.11.2009 No. 16-15/120357 ).

At the same time, as noted by the Ministry of Finance in Letter dated July 29, 2015 No. 03‑11‑09/43662 , you must follow the rules set out in clause 2.6 of the Procedure for filling out the UTII declaration, which states that when the legal successor organization submits a tax declaration for the last tax period and refined declarations for the reorganized organization (including in the form of transformation of one legal entity into another) to the tax authority at the place of registration, in the title page at the requisite "at the place accounting "the code" 215 "is indicated, and in the upper part - TIN and KPP at the location of the legal successor organization. The requisite "taxpayer" reflects the name of the reorganized organization.

Now with regard to the legality of the application of the taxation system in the form of UTII after the reorganization of the organization. Officials, explaining this situation, point to clause 1 of Art. 16 of 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 formed legal entity, and the transformed legal entity - ceased to operate ... Since during the transformation of a legal entity that paid a single tax, a new legal entity appears, in order to apply the taxation system in the form of UTII it must submit an application to the tax authority in the manner prescribed clause 3 of Art. 346.28 of the Tax Code of the Russian Federation.

Recall, by virtue of the named norm, organizations that have expressed a desire to switch to the payment of UTII submit to the tax authorities within five days from the day the “imputation” began to be applied, an application for registration as a payer of the single tax 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 oneself as a payer planning to use imputation after the reorganization, but it will help to protect oneself 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 "claimant" 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, Clause 5 of Art. 58 of the Civil Code of the Russian Federation it was established that when a legal entity of one type is transformed into a legal entity of another type (change of the organizational and legal form), the rights and obligations of the reorganized legal entity are transferred to the newly formed organization in accordance with the transfer act. And, as already noted, with this transformation, the newly emerged organization is the legal successor of the reorganized legal entity in terms of fulfilling obligations to pay taxes.

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

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

It should be noted that the officials expressed themselves in a similar way earlier, however, their explanations concerned the use of a different special regime by the organization (USNO), and not "imputation" (see, for example, letters of the Ministry of Finance of Russia dated 07.02.2012 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 some of the courts. 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 "claimants".

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

The courts take into account that by virtue of par. 2 p. 2 art. 50 of the Tax Code of the Russian Federation The legal successor of the reorganized legal entity, when fulfilling the obligations imposed on him to pay taxes and fees, enjoys all rights, fulfills all obligations in the manner prescribed by tax legislation. Since the succession in the transformation of a legal entity by changing the organizational and legal form is universal, the right of the reorganized legal entity to apply the same special regime as before the reorganization passes to the newly emerged legal entity along with other rights ( Resolution 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: the right to use the same special regime does not pass to the newly created organization by way of succession. To exercise this right, an organization, simultaneously with an application for tax registration, must send to the tax authority an application for its application (see, for example, Resolution of the Federal Antimonopoly Service of the NKR dated 15.09.2008 No.F08-5418 / 2008 in case No. А32-3719 /
2008-63/67 ).

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

Federal Law of 08.08.2001 No. 129-FZ.

Approved by Order of the Ministry of Finance of Russia dated 20.05.2003 No. 44n.

Federal Law of 21.07.1997 No. 122-FZ "On state registration of rights to real estate and transactions with it."

Federal Law of 01.04.1996 No. 27-FZ "On individual (personified) accounting in the compulsory pension insurance system".

Federal Law of 30.04.2008 No. 56-FZ “On additional insurance contributions for funded pension and state support for the formation of pension savings”.

The transformation of a legal entity is understood as a change in the organizational and legal form of this legal entity. In the process of reorganization through transformation, a legal entity terminates its activities with the transfer of all rights and obligations to a newly created legal entity already in a new organizational and legal form.

When reorganizing through transformation, you need to pay attention to the following main points:

1. Restrictions on choosing a new OPF

The legislation provides for a number of restrictions in what organizational and legal form an existing legal entity can be transformed into. So:

• A limited liability company can be transformed into a joint stock company, an additional liability company, a production cooperative. (Article 56 of the Federal Law "On Limited Liability Companies")
• Joint-stock company (closed or open) - a limited liability company, a production cooperative, a non-profit partnership. (Article 20 of the Federal Law "On Joint Stock Companies" dated December 26, 1995 No. 208-ФЗ)
• Autonomous non-profit organization - to the fund (Article 17 of the Federal Law "On Non-Commercial Organizations" dated 12.01.1996 No. 7-ФЗ)
• Non-profit partnership - into a public organization (association), foundation or autonomous non-profit organization, as well as into a business society. (Article 17 of the Federal Law "On Non-Commercial Organizations" dated 12.01.1996 No. 7-FZ)
• An institution can be transformed into a foundation, an autonomous non-profit organization, or a business company. (Article 17 of the Federal Law "On Non-Commercial Organizations" dated 12.01.1996 No. 7-FZ)
• An association or union has the right to transform itself into a foundation, an autonomous non-profit organization, a business society or a partnership. (Article 17 of the Federal Law "On Non-Commercial Organizations" dated 12.01.1996 No. 7-FZ)
• A charitable organization cannot be reorganized into a business partnership or society (Article 11 of the Federal Law “On Charitable Activities and Charitable Organizations of 11.08.1995 No. 135-FZ)
• A production cooperative - into a business partnership or business society (Article 112 of the Civil Code of the Russian Federation)
• The possibility of transforming organizations of other OPFs is established by the relevant law or the Civil Code.

In addition, when choosing a new organizational and legal form, it is necessary to remember that the legislation sets its own requirements for founders, names, authorized capital, etc. For example:

• The minimum authorized capital of a limited liability company and a closed joint stock company is 10 thousand rubles, an open joint stock company - 100 thousand rubles;
• A company (LLC, CJSC, OJSC) cannot have a single founder - a legal entity, which, in turn, consists of one founder;
• Founder (partner) - an individual in a partnership must be registered as an individual entrepreneur;
• The number of partners in partnerships is at least 2;
• The number of founders of a non-profit partnership is at least 2;
• The number of members of the production cooperative is at least 5;
• The name of a non-profit organization must contain an indication of the ongoing (planned) activity;
• Etc.

Our Agency (Stolichny Standard CJSC) recorded cases of clients applying with a request to transform an individual entrepreneur (PBOUL) into an LLC or JSC. In this regard, we draw your attention to the fact that this is not possible: an individual entrepreneur is not a legal entity, and even more so he does not have an organizational and legal form. In this situation, the entrepreneur must stop, in accordance with the procedure established by the Law, his activities as an individual entrepreneur and open (establish) an LLC or JSC.

We also draw your attention to the fact that changing the type of joint stock company (for example, from closed to open) is not a reorganization in the form of transformation. Such changes are made and registered as a change in the type and name of the joint stock company.

2. Duty of transformation

In some organizational and legal forms, there is an obligation to reorganize through transformation. For example:

• In limited liability companies and closed joint stock companies, if the number of participants exceeds 50, it is necessary to transform into an open joint stock company or a production cooperative;
• If, by the decision of the participants, an association (union) is entrusted with the conduct of entrepreneurial activity, such an association (union) shall be transformed into a business society or partnership.

3. Changing the name when converting

The full name of a legal entity consists of the organizational and legal form and, in fact, of the individual name itself (which, as a rule, is enclosed in quotation marks). Transformation is a change in the organizational and legal form and, as a rule, there are no questions about this. As for the individual name itself, it can be left the same or changed. In case of a change in the name, the following points should be noted:

• The name of the legal entity should not be misleading. For example, the main activities of StroyProekt LLC should be construction and design work, and not retail trade in dough sausages.
• The name cannot use the name of another organizational and legal form. For example, LLC Building Joint-Stock Company DOM.
• The use of abbreviations of foreign organizational and legal forms in the name of an organization in Russian is not allowed. For example, LLC "Romashka, LTD".
• In addition, when using in the name of an organization the words "Moscow", Moscow symbolism, "Russia", "Federal" and the combinations formed from these words, it is necessary to obtain permission for their use in the relevant authorities, which is not so simple.
• The name of non-profit organizations should contain an indication of specific goals or type of activity.

The name is not checked for uniqueness at the moment, therefore, when choosing a name, our AGENCY recommends to be guided by the above criteria, and also not to plagiarize the names of already existing well-known organizations or organizations operating in the same market segment and having a well-known reputation, registered trademarks using names, etc.

4. Change of legal address upon transformation

During the transformation, you can safely change the location ("legal address") of the organization. Just keep in mind that a change in the tax office or even a transfer to another city will drag out the reorganization procedure.

When changing the legal address, documents for state registration of the transformation are submitted to the tax authority at the old address.

5. Change in the composition of participants during the transformation

In the process of reorganization through transformation, it is not allowed to change the composition of the participants (founders). It is necessary to introduce new members or remove old members either before or after the reorganization.

6. The need to notify creditors

From September 1, 2014 the obligation of the company to be reorganized to notify creditors about the upcoming reorganization has been abolished, including by submitting announcements to the State Registration Bulletin.