The charter of the SNT is the basic document of a garden partnership that regulates it. legal status, as well as the procedure for the interaction of its members in the course of managing the organization and using joint property. Details about what regulations the drafting of such a charter is regulated and what requirements are imposed on it, we will describe in the article below.
The charter of SNT under the new law No. 217-FZ (instead of the law No. 66-FZ in force in 2018)
In accordance with the requirements of Art. 52 of the Civil Code of the Russian Federation, the charter is the main constituent normative document. It is he who determines the basic norms that govern the activities of a particular partnership - accordingly, his instructions are binding on all participants in the organization, as well as its governing bodies.
The requirements for the charter of a horticultural non-profit partnership in 2018 are established by Art. 16 of the law "On horticultural ..." dated April 15, 1998 No. 66-FZ. However, practitioners should remember that this law will cease to be valid from 01/01/2019, after which the law "On maintaining ..." dated 07/29/2017 No. 217-FZ will regulate the activities of the SNT.
Article 54 of the new law No. 217 does not establish strict requirements for the timing of bringing the charters of such partnerships established before 01/01/2019 into compliance with the new legislation, however, it determines that legal status From that moment on, SNT should be regulated by the new law No. 217. Thus, the speedy bringing of the charter of existing SNTs in accordance with law No. 217 is in the interests of the members of the partnership themselves.
It should be noted that from 2019, both gardening non-profit partnerships and horticultural non-profit partnerships will operate. Both of these organizational and legal forms are types of associations of property owners (clause 3, article 4 of law No. 217).
Considering the significant time required for the preparation of documentation and the creation of SNT, as well as the need to adjust the charters of already existing SNTs from 01/01/2019, we will focus in the article on the provisions of the already new law No. will be prepared according to the new rules.
Requirements for the charter of a gardening partnership
The list of information that should be reflected in the charter of the SNT is enshrined in Art. 8 of law no. 217.
These include:
- the name in which it is necessary to indicate the organizational form of the partnership;
- legal address of the partnership;
- goals and object of functioning of the organization;
- acceptance procedure management decisions, a list of governing bodies, their competence, the procedure for their work;
- regulations for admission to and withdrawal from the SNT, as well as requirements for maintaining a register of existing gardeners;
- legal status of a member of the SNT (rights, obligations);
- the procedure for paying fees, the powers of the SNT to collect them in judicial order;
- the procedure for the work of the auditor or the audit commission;
- the procedure for the creation (acquisition) of the common property of SNT;
- the procedure for informing members of the SNT about the activities of its bodies;
- the basics of the relationship of the SNT with gardeners whose plots are located within the SNT, but who are not members of it;
- decision-making procedure by means of absentee voting;
- the procedure for reorganization and (if necessary) liquidation of the partnership;
- procedure for amending the statute.
Preparation of the charter according to the requirements of the new law No. 217
According to Art. 10 of Law No. 217, the charter is adopted at a general organizational meeting of founders, the number of which must be at least 7 (the maximum number of founders is not limited by Law No. 217). In the future, after the registration of the SNT, its founders become members of the partnership and have equal rights with other participants in the organization.
When adopting a statute, attention should be paid to the following issues:
- According to Art. 4 of Law No. 217 SNT is a type of association of property owners. This is based on the requirements of Art. 123.12 of the Civil Code of the Russian Federation, means that the phrase "horticultural non-profit partnership» must be included in the name of the organization.
- The purposes of establishing a partnership are listed in Art. 7 of law no. 217.
- The rights, duties and responsibilities of the participants in the partnership are listed in Art. 11 and 14 of Law No. 217. Also, these articles outline the procedure for informing them about the activities of the SNT, ways to obtain copies of decisions and documents of the partnership.
- The issues of accepting new comrades in the SNT are regulated in Art. 12 of Law No. 217, exit procedure - Art. 13 of law no. 217.
- The procedure for calculating and paying contributions, as well as the measures of responsibility for their non-payment are indicated in Art. 14 of law no. 217.
- Issues related to the acquisition and management of common property are regulated by Art. 24-25 of law no. 217.
- The order of relations with citizens who are not members of the SNT is determined by Art. 5 of law no. 217.
- The powers of the comrades to reorganize and liquidate the SNT are provided for in Art. 27-28 of law no. 217.
Partnership Management
According to Art. 16 of law no. 217 supreme bodies The management of the SNT is the general meeting of its members. The competence, the procedure for holding a meeting and voting on the most important issues for the organization are indicated in Art. 17 of law no. 217.
Don't know your rights?
Also in SNT, in accordance with the requirements of Art. 16 of Law No. 217, the chairman (sole body) and the board (collective body) elected by the members of the SNT for the period specified in the charter (but not more than 5 years) must be present. The competence and procedure for making decisions by the chairman of the SNT and the board are listed in Art. 18 and 19 of law no. 217.
Control powers over the activities of the chairman and board of the SNT, in accordance with Art. 20 of law No. 217, possesses the auditor. This person is accountable to the general meeting of members of the partnership, the procedure for his election and work must be determined by the charter. At the same time, Law No. 217 leaves these issues to the discretion of the SNT participants.
Issues of record keeping in SNT, according to Art. 21 of Law No. 217, are within the competence of the chairman. It is he who is responsible for the storage of documents and the seal of the SNT, and is also authorized to make extracts, copies of documents upon request. government agencies and members of the partnership.
The new charter of SNT 2019: sample, legal and technical design
Practitioners need to remember that technical requirements the charter is not presented by the current legislation. In this connection, this document should comply only with generally accepted rules of legal practice.
In particular, when drawing up the charter, it should be remembered that the first page is allocated as a title page and, unlike subsequent pages, is not numbered. All charter sheets are stitched, their number is indicated on the back of the last sheet.
The text of the document should be structured into sections/chapters/articles, each/each of which regulates one of the issues of the organization and activities of the SNT. In turn, the section/chapter/article is divided into smaller structural units (paragraphs or parts), which include separate prescriptions.
So, the first section of the charter is usually devoted to general provisions, where the points are:
- name of SNT;
- snt status as legal entity;
- location, etc.
Since it makes no sense to draw up a sample of the new charter of the SNT in 2018 (changes to the legislation come into force only in 2019), we offer for download a sample of the charter of 2019, prepared taking into account the requirements of Law No. 217 and generally accepted rules of legal practice. Note that this document is exemplary, i.e. in each specific situation, it must be adapted to the requirements and specifics of a particular SNT.
Summing up, we note that the charter of the 2018 horticultural non-profit partnership is drawn up in accordance with the requirements of Law No. 66, and the new requirements for its preparation will apply only in 2019 with the entry into force of Law No. 217. The norms of Law No. 217 define fairly clear and specific requirement to the charter of SNT. To prepare a legally and technically competent charter for any specific SNT, our article and an example of a document offered at the link above will help.
Converting SNT to TSN
In accordance with Federal Law N 99-FZ “On Amendments to Chapter 4 of Part One of the Civil Code of the Russian Federation and on the Recognition of Certain Provisions of Legislative Acts of the Russian Federation as Invalid” (given in the part of associations of property owners), the organizational and legal the form. Now such associations are partnerships of property owners.
In accordance with the same law, re-registration of legal entities that were created in the previous organizational and legal forms is not required. However, their constituent documents and names must be brought into line with the new norms of the Civil Code of the Russian Federation at the first time changes are made to them.
The only founding document of a horticultural non-profit partnership is its Charter.
First of all, in the current Charters of the SNT, its organizational and legal form was indicated: a horticultural non-profit partnership. But since September 1, 2014, such organizational and legal form does not exist, which entails the need to change the organizational and legal form of the SNT to: a partnership of property owners, and, accordingly, filing with the tax office at the location of the partnership new edition Charter of the Partnership.
It must also be borne in mind that with the introduction of the new organizational and legal form of the Partnership of Property Owners instead of the Horticultural Non-Commercial Partnership, some basic provisions of its functioning also change significantly. Thus, objects of common use in associations of real estate owners belong to members of the TSN on the basis of the right of common shared ownership, while in the SNT the property of common use was the property of the partnership as a legal entity, or the joint property of the members of the SNT, if it was acquired at the expense of earmarked contributions.
In addition, in TSN, the alienation of a share in the right to common property occurs simultaneously with the alienation of a land plot, while in SNT, when alienating a garden land plot, a member of the SNT had the right to simultaneously alienate a share of common use property to the acquirer as part of a horticultural, gardening or country non-profit partnership in the amount of earmarked contributions. There are a number of differences between TSN and SNT.
In addition, it must be borne in mind that a legal entity can conduct its activities only from the moment of its registration in the Unified state register legal entities (USRLE). An organization with a non-existent organizational and legal form of a Horticultural non-profit partnership at any time can be excluded from the Unified State Register of Legal Entities by the tax inspectorate, which can lead to unpleasant consequences.
It should be noted that there is already a practice of refusal by the tax inspectorate to register the Charters of Real Estate Owners' Associations, as successors of Horticultural non-profit partnerships, which were presented in the form of amendments to the current Charters of SNT. In addition, when converting an SNT into a TSN, the question of succession in relation to the property of the SNT arises.
Thus, the most correct way to bring the constituent documents in line with the norms of 99-FZ, taking into account all the problems that arise and the requirements of the Federal Law 129-FZ “On State Registration of Legal Entities and individual entrepreneurs» is the procedure for reorganizing SNT into TSN in the form of a transformation.
The procedure for reorganizing SNT into TSN consists of several main stages:
1. Decision of the Board of SNT on the timing of preparation and those responsible for the preparation of a new edition of the Charter of TSN.
2. Preparation of a new edition of the TSN Charter.
3. Decision of the Board of SNT on the appointment of the General Meeting of members of the SNT to adopt a new Charter of the TSN.
4. General meeting of SNT members with a decision to reorganize SNT into TSN, approve a new version of the TSN Charter and instruct the Chairman of the Board to register a new version of the Charter with the registration authorities (tax office at the location of TSN).
5. Preparation of documents for the state registration of the constituent documents of the association (new Charter, Minutes of the general meeting, Application in the form P13001).
6. Submission of documents to the tax office at the location of the partnership.
There is no fee for this procedure.
TRANSITION OF SNT TO TSN IS NOT A RIGHT, BUT AN OBLIGATION
Federal Law No. 99 dated May 5, 2014, which amended Chapter 4 Part 1 of the Civil Code of the Russian Federation, was put into effect.
Many SNTs have made changes in accordance with the requirements of the new law in their charter and name (more on this below). Go from SNT to TSN on the first try is not so easy.
All the rules explaining the rules for the transition from SNT to TSN are set out in our Federal Law-66 of 04/15/98 and the new Chapter 4 of Part 1 of the Civil Code. But we, gardeners, simply do not see them for various reasons, including our incompetence and lack of time to study all the features of SNT, regulated by various laws and government regulations.
Organizational and legal form (OPF) of a legal entity,
amendments to the founding documents.
All legal entities have a certain organizational and legal form, non-commercial partnership, consumer cooperative etc..
From the date of entry into force (01.09.2014) of Chapter 4 of Part 1 of the Civil Code ( 99-FZ of 05/05/2014) all legal entities on the territory of the Russian Federation should be created only in those organizational and legal forms that are provided for this by the code. In other words, the list OPF closed for legal entities. And there is no place in it for SNT (as well as for gardening and dacha non-profit partnerships).
Civil Code, part 1 Chapter 4 "Legal entities"
Article 48. The concept of a legal entity.
1. A legal entity must be registered in the unified state register of legal entities in one of the organizational and legal forms provided for by this Code.
The Civil Code provides for many different organizational and legal forms. Most of them are of absolutely no interest to us, gardeners, just as they were not interested before. The nature of the activities of horticultural associations of citizens remained unchanged. It was as non-commercial as it has remained so. Let us turn to those OPFs that are of interest to us and are provided for citizens who, on the basis of ownership or on other legal grounds, land with permitted horticultural use:
2. Legal entities that are non-profit organizations may be created in the organizational and legal forms:
consumer cooperatives, which include housing, housing construction and garage cooperatives, horticultural, horticultural and dacha consumer cooperatives, mutual insurance companies, credit cooperatives, rental funds, agricultural consumer cooperatives;
associations (unions), which include non-profit partnerships, self-regulatory organizations, associations of employers, associations of trade unions, cooperatives and public organizations, commercial and industrial, notarial and lawyer chambers;
associations of property owners, which include, among other things, homeowners' associations;
- Horticultural, horticultural and country consumer cooperatives actually did not change. Such OPF were provided earlier by Art. 4 p. 1 "Forms of horticultural, horticultural and dacha non-profit associations" FZ-66 of 04/15/1998 This only means that such cooperatives continue to exist in the new conditions.
- Horticultural, horticultural and country non-profit partnerships also not changed. And they continue to exist.
- SNT (horticultural, horticultural and country) ceased to exist. Chapter 4 of the Civil Code does not provide for such an organizational and legal form. This means that under the new conditions, after the entry into force of No. 99-FZ dated May 5, 2014. SNT outlawed.
From 09/01/2014, Chapter 4 of the Civil Code directly provides for the obligatory management of new norms of the law until all regulatory legal acts of the Russian Federation are brought into line with the new requirements.
Until the legislative and other regulatory legal acts in force on the territory of the Russian Federation are brought into line with the provisions of the Civil Code of the Russian Federation (as amended by this Federal Law), legislative and other regulatory legal acts of the Russian Federation, as well as acts of legislation of the USSR that are in force on the territory of the Russian Federation within the limits and in the manner provided for by the legislation of the Russian Federation, are applied insofar as they do not contradict the provisions of the Civil Code of the Russian Federation (as amended by this Federal Law).
From the date of entry into force of this Federal Law, the provisions of Chapter 4 of the Civil Code of the Russian Federation (as amended by this Federal Law) shall apply to legal entities created before the date of its entry into force, respectively:
to homeowners associations horticultural, horticultural and dacha non-profit partnerships - about partnerships of property owners(Articles 123.12 - 123.14);
Constituent documents, as well as the names of legal entities established prior to the date of entry into force of this Federal Law, shall be brought into line with the norms of Chapter 4 of the Civil Code of the Russian Federation (as amended by this Federal Law) upon the first change in the constituent documents of such legal entities.
Name change legal entity in connection with bringing it into line with the norms of Chapter 4 of the Civil Code of the Russian Federation (as amended by this Federal Law) does not require amendments to title and other documents containing its former name.
Constituent documents such legal entities, until they are brought into line with the norms of Chapter 4 of the Civil Code of the Russian Federation (as amended by this Federal Law), act insofar as they do not contradict the said norms.
Since no one needs our horticultural associations except us (gardeners), we should foresee the possible consequences of an irresponsible attitude to the decision to bring the constituent documents in line with the law.
The procedure for the transition from SNT to TSN will require more effort and more work, and therefore a longer time frame.
- The goals and objectives solved by horticultural associations must clearly correspond to those goals and objectives that are spelled out in the law.
- Constituent documents must comply with the law.
- Changes related to bringing the constituent documents in line with the law must be registered in the prescribed manner.
From all of the above, two directions for further actions to bring the constituent documents in line with the norms of Chapter 4 of the Civil Code follow:
For horticultural non-profit partnerships, non-profit partnerships- taking into account the norms of 99-FZ, it is necessary to carry out the procedure for reorganizing SNT into TSN in the form of transformation and the procedure for reorganizing a partnership into an association or union.
Since 09/01/2014, SNT (ONT, DNT), as organizational and legal forms on the territory of the Russian Federation, no longer exist. Instead, Chapter 4 of the Civil Code introduced a new legal form TSN ( association of property owners). The old forms and the new are not identical, their definitions differ a priori:
Horticultural, horticultural or dacha non-profit partnership -
A non-profit organization established by citizens on a voluntary basis to assist its members in solving common social and economic problems of gardening, horticulture and dacha farming (hereinafter referred to as a horticultural, horticultural or dacha non-profit association).
A partnership of property owners is recognized -
a voluntary association of owners of immovable property (... horticultural, gardening or country plots of land), created by them for joint possession, use and, within the limits established by law, the disposal of property (things), by virtue of the law being in their common ownership or in common use, and also to achieve other goals provided for by laws.
In the case of SNT - TSN, the organizational and legal form is changing. It is important. We look at Article 39, paragraph 1 of our 66-FZ: Reorganization of a horticultural, horticultural or dacha non-profit association(merger, acquisition, division, spin-off, change of legal form) is carried out in accordance with the decision of the general meeting of members of such an association on the basis of the Civil Code of the Russian Federation, this Federal Law and other federal laws.
Conclusion: In the course of bringing the constituent documents into compliance with the norms of 99-FZ of 05/05/2014, SNT, it is necessary to carry out the procedure reorganization in the form of transformation, the procedure for which is determined by Chapter 4 of the Civil Code of the Russian Federation and 129-FZ of 08.08.2001 "On State Registration of Legal Entities and Individual Entrepreneurs". No other procedure is provided by law.
Change of legal form of SNT to TSN
by reorganization in the form of transformation.
Reorganization of SNT in the form of transformation -
This is a change in the legal form of a legal entity - from SNT to TSN. In the process of reorganization by transformation, the SNT ceases its activities with the transfer of all rights and obligations to a newly created legal entity in a new organizational and legal form - TSN.
The reorganization of any legal entity has its own peculiarities, nuances, and pitfalls. Let's deal with them from the beginning, in terms of SNT and TSN.
Features of reorganization by transformation:
- Choice of legal form:
The question may arise about the possibility of reorganizing the SNT, transforming it into a consumer cooperative. This is indirectly confirmed by the norms of Chapter 4 of the Civil Code, enacted by 99-FZ of 05/05/2014. So in article 3 in the first part of paragraph 8 and paragraphs. 6 states that "From the date of entry into force of this Federal Law, the norms of Chapter 4 of the Civil Code of the Russian Federation (as amended by this Federal Law) shall apply to legal entities created before the date of its entry into force:" and further "to associations of homeowners , horticultural, horticultural and dacha non-profit partnerships - on partnerships of real estate owners (Articles 123.12 - 123.14)".
Additionally, we open the norm of the law, which names those OPFs into which TSN can be reorganized:
Article 123.12. Fundamentals of the Association of Real Estate Owners.
4. An association of real estate owners, by decision of its members, may be transformed into a consumer cooperative.
Three conclusions can be drawn from these rules:
- Provided that the norms of Chapter 4 of the Civil Code regarding associations of property owners are applied to SNT, then the transformation of SNT into TSN is the most correct and expedient goal for former SNT.
- It is quite possible that there is a possibility of reorganizing SNT into a horticultural consumer cooperative, based on the fact that SNT, before the change of the OPF, is guided in its activities by the norms of the law, in part relating to associations of property owners.
When forming a TSN, one should remember the requirement of Chapter 4 of the Civil Code and Article 16, paragraph 2 of 66-FZ of April 15, 1998 that the number of founders in the partnership must be at least 3 people. At the same time, during the reorganization procedure, this does not matter, because decision on all issues is made by the general meeting of members of the SNT, and after the completion of the reorganization, all members of the SNT, even those who were not present at the general meeting, become members of the TSN. The founders of any special rights over the rest of the members of the SNT do not have.
- Change of the name of a legal entity:
According to the norm of Art. 123.12 of Chapter 4 of the Civil Code the charter of a partnership of real estate owners must contain information about its name, including the words " association of property owners" . An individual name can and should be added to the combination of TSN, which is enclosed in quotation marks TSN "Sakharovo". Mixing of two organizational-legal forms is not allowed.
The question of horticulture and the definition of "horticultural" remained unanswered. In the overwhelming majority of horticultural associations existing in the Russian Federation, a legal entity is not engaged in horticulture. Owners of individual land plots are obliged and should deal with this, tk. these sites have a permitted type of use - "horticulture".
The legal entity itself has nothing to do with horticultural activities, performing only functions management company, similarly to the HOA, and then with a very big stretch.
- Legal address of the association (location of the permanent executive body - Article 54, paragraph 2 of the Civil Code):
During the reorganization, you can change the legal address of the association. To do this, it is necessary to consider this issue at a general meeting of members of the SNT, among other issues of reorganization. At the same time, documents for state registration are submitted to the tax office where the association was registered before the reorganization. After completing the entire procedure, the IFTS will redirect the documents of the association (TSN) to a new legal address.
The legal address indicates the address of the building located on the public land of the SNT where the permanent executive body works. If there is no permanent executive body, then the address of other body or person authorized to act on behalf of the association.
The legal address from the postal address is actually no different and must be entered in the Unified State Register of Legal Entities.
At the same time, it should be remembered that "a legal entity bears the risk of the consequences of not receiving legally significant messages (Article 165.1) delivered to the address indicated in the unified state register of legal entities, as well as the risk of the absence of its body or representative at the specified address. Messages delivered at the address specified in the Unified State Register of Legal Entities are considered received by a legal entity, even if it is not located at the specified address" - Article 54, Clause 3, Chapter 4 of the Civil Code.
As a legal address, you can and should use:
- the address of the actual place of residence of one of the founders ( tax authority may refuse to register at the place of residence);
- address of the rented premises;
- the address of the premises owned by one of the founders of the legal entity or the legal entity itself;
- legal address - the address of the premises, which will be indicated in the documents of the organization, the application for state registration and the registration file of the organization, but in fact the organization will never be located at such an address, on the basis of the relevant agreement.
Legal address- this is the address that can be indicated as the location of the organization (permanent executive body), provided that the organization has documents confirming this location.
If the board building has an owner with completed documents or documents on the lease of the premises, then the legal entity can use such an address as the legal address of the SNT (TSN).
In order for such a legal address to appear, it is necessary to declare the premises where the board of the horticultural association is located, register the ownership of the property, and then obtain an address for it.
The actual address- this is the address at which the legal entity is actually located, the documentation, the permanent working body works.
Mailing address- the address to which the mail (responsible person) will deliver all correspondence arriving at the legal address, at the actual location of the organization.
Admission to the membership of the SNT (TSN), exclusion from the membership of the association:
During the reorganization procedure, admission to the membership of the SNT (exclusion from members) by the general meeting of participants is not allowed. These issues must be resolved before the reorganization or after its completion.
Mandatory notice to creditors:
From 09/01/2014 notification of creditors of the horticultural association in the event of reorganization in the form of transformation is not necessary. This norm is enshrined in Article 58, paragraph 5 of Chapter 4 of the Civil Code. This situation is apparently due to the fact that the reorganization procedure by transformation implies automatic succession of the rights and obligations of the reorganized association from SNT to TSN, and there is no doubt about the succession from the old legal entity to the new one.
- Adoption of a decision by the collegial executive body (board) on the preparation of the reorganization.
In the law, the right to make a decision on the reorganization of a legal entity is granted to the general meeting of participants and to no one else for the organizational and legal form of the SNT, incl. and for all other OPF horticultural, horticultural and dacha associations. Therefore, the direct decision on the reorganization will be made at the general meeting. However, this in no way relieves the SNT board from making a preliminary decision on preparing the association for reorganization in the form of a transformation. The decision is drawn up in a protocol, which determines the activities, responsible persons and deadlines for implementation:
- development of a new charter for TSN (the most complex and time-consuming process);
- preparation of business documents;
- clarification of the list of members of the SNT;
If necessary, the admission of new members is carried out before the general meeting on reorganization. To this end, it is necessary to hold another general meeting. If it does not work, then such a meeting is held after the completion of the reorganization procedure. It is permissible to have two meetings on the same day.
- Making a decision on the reorganization of SNT into TSN in the form of transformation.
Solution ... on the approval of the charter in a new edition, ..., on its ... reorganization, ... are adopted by the general meeting of members of such an association (meeting of authorized persons) by a two-thirds majority(Article 21, paragraph 2 of the Federal Law-66 of 04/15/98), from the number of members of the SNT present at the general meeting, subject to the presence of a quorum.
- Registration of reorganization of SNT in TSN in the form of transformation.
After the general meeting, the chairman of the TSN prepares and submits the following documents to the tax office:
- Application form P12001, notarized.
When filling in the field of the OKVED form, you should select: Real estate management, code 70.32.
- Minutes of the general meeting on the reorganization.
- Charter of a legal entity created in the process of reorganization - 2 copies.
Copies are not stitched, not signed, printing is not put. For the design of the title page of the charter, see the link.
- A document confirming the payment of the state duty for registration in the amount of 4000 rubles.
- Documents to the legal address of the created legal entity.
At the end of the registration period, the tax authority that carries out registration issues to the chairman of the TSN a Certificate of termination of the activity of the reorganized legal entity - CNT, a Certificate of creation in the process of reorganization of a new legal entity TSN. The Chairman will also receive a Tax Deregistration Notice and a Tax Registration Certificate, as well as the Articles of Association of the new legal entity - TSN.
Making a seal and opening a current account of the reorganized association.
The chairman takes the necessary documents according to the list determined by the bank, goes to the bank and reissues the account. Before that, he orders new stamps in any of the offices.
On this, the procedure for bringing the constituent documents and the names of horticultural, gardening and country non-profit associations of citizens into line with the norms of the new Chapter 4 of the Civil Code, enacted by 99-FZ of May 5, 2014, can be considered completed.
How to switch from SNT to TSN. Is it possible to stay SNT?
The second most popular question after "how to leave the chairmen" is "how to go to TSN and is it possible not to do this." Let's take these questions in order...
Why are SNT, DNP, ONT and other familiar abbreviations changed to TSN?
Let's understand what is SNT and what is TSN. Horticultural non-profit partnership (SNT), dacha non-profit partnership (DNT), gardening non-profit partnership (ONT), partnership of real estate owners (TSN) - the name of the organizational and legal forms of our associations as legal entities.
The list of organizational and legal forms is clearly regulated by the Civil Code of the Russian Federation Article 50. “Commercial and non-profit organizations". The Civil Code of the Russian Federation was amended on May 5, 2014, in accordance with which, in Article 50 of the Civil Code of the Russian Federation there is no indication of SNT, ONT, DNT and other variations of the names of partnerships. In subparagraph 4 of paragraph 3 of Art. 50 of the Civil Code of the Russian Federation from January 1, 2019, changes will be made. SNT with ONT will appear in the Civil Code, but not as independent organizational- legal forms, but as a type of partnership of property owners (a similar situation is currently with the HOA). Literally, all partnerships will become either Gardening Associations of Property Owners or Gardening Associations of Real Estate.
In this regard, the tax inspectorate of new forms (for registration of a new SNT / amendments to the charter / change of the legal address of the current SNT) with a non-existent organizational and legal form cannot physically accept. But, in practice, variations are registered - STSN, OTSN, STTSN ... Is it worth using this and “inventing” new organizational and legal forms? Not worth it. In any case, all of them will be guided by the same special law - FZ No. 217.
How to change SNT to TSN?
Very simple. By the decision of the general meeting to make any changes to the charter. Better yet, develop a fundamentally new partnership charter, taking into account the provisions of 217-FZ.
After approval by the decision of the general meeting of the new form of the Charter. The chairman of the board notarizes form 13001, in which the old organizational and legal form (SNT) appears on the first page, and TSN is already indicated on the second. The obligation to make a decision on changing the OPF by the general meeting of members of the SNT is not legally established. It passes automatically, since the tax office cannot accept another form.
So, the certified form P130001, the protocol on the approval of the new form of the Charter (even if only the comma was changed), the new Charter, the receipt of payment of the state fee (800 rubles) are submitted by the chairman of the board to the tax office at the location of the partnership. After 5 days, in an extract from the Unified State Register of Legal Entities under the same OGRN (main state registration number) and TIN (individual taxpayer number), we see not SNT, but TSN.
"SNT" is no more, there will be no "dacha residents" either! 217-FZ enters from 01/01/2019 ... What to do? Where to run?
First, don't panic! The legislator does not oblige to urgently change the abolished organizational and legal forms to TSN. Hypothetically, for a long time it is possible to remain SNT, DNP, DNT, ONT, etc.
If you are summer residents, then you will become gardeners. Nothing in your life will fundamentally change. And now garden and dacha partnerships are legally in exactly the same conditions. This is what dictated the unification of these concepts by law.
The legislator also does not call for urgent changes to the Charter of the SNT. But the need to make changes is dictated by legal aspects. The old statutes will also be in force with the introduction of 217-FZ, but in the part that does not contradict the new law. The problem is that in the old charters there are not and cannot be some sections and provisions that are necessary for the partnership for the normal conduct of financial and economic activities. As a result, we get the old charter, in which half is invalid and a third is not. There is little point in such a document. Especially with the prospect of litigation.
This can be especially reflected in cases of judicial recovery of debts on membership, earmarked contributions and fees for the use of infrastructure facilities from individuals.
This is now all the documents to change ...
Article 54 of Federal Law No. 217 clearly states that when switching to TSN, it is not required to make changes to title and other documents containing the previous names. Such changes can be made at the request of interested parties.
Most of all, in connection with the transition to TSN, ordinary gardeners are frightened by the prospect of replacing certificates of ownership of land and buildings.
Firstly, what you want to change is the address of the landmark (For example, Moscow region, Mozhaysky district, s / p Such and such, SNT "Romashka" section 23), and not the real (postal) address of the site (house).
Secondly, the landmark does not carry a legal load, it is not a postal address, and there have long been more proven methods for determining the exact location of an object. For this, a survey is carried out.
Thirdly, if you change certificates, in return you will be given not a new certificate, but an extract from the USRN, since it is the entry in unified register rights to real estate is a confirmation of the ownership right of a certain citizen to a certain property. Certificates are no longer issued.
When to switch to TSN?
Until 01.01.2019 the charter developed taking into account the provisions of 217-FZ will be invalid in those provisions that contradict 66-FZ. Starting from January 1, 2019, the old charters in terms of provisions will contradict 217-FZ and will also be partially invalid. At the same time, the old charter in the new year may become a problem (problems when opening an account, during collection and other legal proceedings). The conclusion is obvious, but in practice everything is more complicated.
The ideal solution is to approve new form charter by the decision of the general meeting of members in December, register the charter with the tax office in January. The problem is that few partnerships will be able to gain a quorum at the December meeting ...
As an option, approve a new form in September-October, submit a charter for registration in the new year. With this option, you should be prepared for a fine of 5,000 rubles, since it takes only 3 days to register a new charter from the moment the relevant decision is made by the general meeting.
Outcome: each partnership chooses when to approve a new form of articles of association, based on individual characteristics and existing plans for the near future (the number of plots, the "political" situation in the partnership, the intention to collect debts in court, etc.).
IMPORTANT! The new statutes (developed in accordance with the provisions of Federal Law No. 217) will differ in structure and practical application from those to which we are accustomed. 217-FZ is variable: it assumes that each partnership, for one reason or another, will choose the optimal principle of interaction for itself (within the partnership). In order for this principle to become official (that is, it applies to all gardeners within the boundaries of horticulture (horticulture) of this particular partnership), legal, it must be determined by the charter. Not by the decision of the general meeting of members, not by the decision of the board, not because “we are so used to it”, but precisely by the charter, moreover, registered with the tax office.
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