Sample Sample statements about the withdrawal of a participant from the Company with limited liability
In a number of cases, it becomes necessary for a Member of the Company to leave the Company: this includes entering the civil service, and the impossibility of combining the status of a Member of the Company with other duties and other points.
Federal Law No. 14-FZ of February 8, 1998 "On Limited Liability Companies" provides for a Participant's withdrawal from the Company, regardless of the consent of other participants. But a number of restrictions are imposed on such an exit of the Participant:
A participant can withdraw from the Company only by alienating his share to the Company
This form of exit must be provided for in the Charter of the Company.
Exit of the sole Member of the Company is not allowed
In addition, if the Participant who left the Company did not contribute (partially or completely) to the property of the Company, he remains the debtor of the Company.
To withdraw from the Company by leaving a share to the Company, the Participant must submit an Application for withdrawal to the Executive Body.
When a Participant withdraws from the Company by leaving a share to the Company, the Company must pay the withdrawing Participant the actual value of his share in the property of the LLC, determined according to the data accounting as of the last reporting date.
It is advisable to draw up the application in two copies, one of which, remaining with the former Participant, must have a mark of the Head of the Company on receipt of this application.
The application is considered at the general meeting of the participants of the limited liability company, and the relevant Minutes of the general meeting of the participants of the limited liability company on the withdrawal of the participant from the company are drawn up.
Gene. director of LLC "______________"
___________________________________ (surname, acting)
from the Participant LLC "_______________"
________________________________ (surname, acting)
STATEMENT
I, __________________________ (surname, acting). citizen's passport Russian Federation series _____ No. ______, issued by ________________________________________________________ subdivision code ______________, registered at _______________________ _______________________________________ (share in the authorized capital of the Company ___%) I leave the Limited Liability Company "_________________________" by alienating my share to the Company from __ _________ 201__.
Withdrawal of a member from the LLC. Current as of March 2015.
Experienced lawyers, for a long time engaged in making changes to the Unified State Register of Legal Entities (withdrawal of a participant from an LLC), we will professionally withdraw a participant from an LLC in Perm on a turnkey basis for 5,000 rubles + notary services of about 2,000 rubles.
Service cost.
Procedure.
When certifying the applicant's signature on the form p14001, the notary requires the following documents:
In order to make changes to the Unified State Register of Legal Entities for the withdrawal of a participant from an LLC, it is compiled and submitted to the tax office:
Sample documents.
Attention! Fill out the application only in this program, it almost eliminates the possibility of error.
Instructions for self-filling out an application under the new form p14001 (2015) for the withdrawal of a participant from an LLC, the share passes to the company.
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Instructions for filling out an application under the new form p14001 (2014) for the withdrawal of a participant from an LLC, the share is distributed and transferred to the sole participant.
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Application of a member of a limited liability company on withdrawal from the company
APPLICATION of a member of a Limited Liability Company on withdrawal from the company
I declare my decision to withdraw from the membership of the Limited Liability Company "_____________________".
My share in the authorized capital of the company has been paid in full (or: in the amount of _____ percent (fraction) in the amount of _____ rubles).
In accordance with paragraph 6.1 of Art. 23 of the Federal Law "On Limited Liability Companies" I ask you to pay me the actual value of my share in money <*>.
<*> In the sense of clarification of subparagraph "e" of paragraph 16 of the Resolution of the Plenum Supreme Court Russian Federation N 90, Plenum of the Supreme Arbitration Court of the Russian Federation N 14 dated 09.12.1999 "On some issues of the application of the Federal Law" On Limited Liability Companies "other options are allowed only with the consent of the withdrawing participant.
Withdrawal of a participant from an LLC
A member of the Company has the right to withdraw from the Company by alienating a share to the company, regardless of the consent of its other members or the company, if this is provided for by the charter of the Company.
1. Checking the possibility of a participant leaving the LLC:
- The possibility of withdrawal from the Society must be provided for by the charter.
- It is not allowed for the sole participant to withdraw from the Company, as well as for the withdrawal of the Company's participants from the Company, as a result of which not a single participant remains in the Company.
2. Application for withdrawal of the participant from the LLC
A participant wishing to withdraw from the Society shall submit an application. The application is made in free form. The Company is obliged to pay to the participant who submitted such an application the actual value of his share in the authorized capital, determined on the basis of the data of the Company's accounting statements for the last reporting period preceding the date of submission of the application, or, with the consent of this participant, to give him property in kind of the same value, or in the case incomplete payment by him of a share in the authorized capital of the Company, the actual value of the paid part of the share. Such payment shall be made within three months from the date of the occurrence of the corresponding obligation, unless another term or procedure for payment of the actual value of the share or part of the share is provided by the Charter of the Company.
The actual value of the share of a member of the Company corresponds to the part of the value of the net assets of the Company, proportional to the size of its share.
The actual value of the share or part of the share in the authorized capital of the Company is paid out of the difference between the value of the net assets of the Company and the amount of its authorized capital. If such a difference is not enough, the Company is obliged to reduce its authorized capital by the missing amount.
If a decrease in the authorized capital of the Company may lead to its size becoming less than the minimum amount of the authorized capital as of the date of state registration of the Company, the actual value of the share is paid out of the difference between the value of the net assets of the company and the specified minimum size authorized capital. In this case, the actual value of the share or part of the share in the authorized capital of the Company may be paid no earlier than three months from the date of the occurrence of the grounds for such payment.
The company is not entitled to pay the actual value of the share or to issue in kind property of the same value, if at the time of these payments or the issuance of property in kind it meets the signs of insolvency (bankruptcy) in accordance with federal law on insolvency (bankruptcy) or as a result of these payments or the issuance of property in kind, these signs will appear in the company. In accordance with Article 3 of the Federal Law on Insolvency (Bankruptcy) No. 127-FZ, a sign of the Company's bankruptcy is its inability to satisfy the claims of creditors for monetary obligations and (or) fulfill the obligation to make mandatory payments, if the relevant obligations and (or) obligation are not fulfilled by it in within three months from the date on which they were due.
If, in accordance with the requirements of the Federal Law on Limited Liability Companies, the company is not entitled to pay the actual value of the share or to issue in kind property of the same value, the company, on the basis of a written application submitted no later than three months from the date of expiration date of payment of the actual value of the share by a person who has withdrawn from the Company, has the right to restore him as a member of the Company and transfer to him the appropriate share in the authorized capital of the Company.
The share passes to the Company from the date of receipt by the company of the application of the participant of the company on withdrawal from the company.
2. Actions of the Company with the share of the participant who announced his withdrawal from the LLC
Within one year from the date of transfer of a share in the authorized capital to the Company, it must be distributed by decision of the general meeting of the participants of the company among all the participants of the Company in proportion to their shares in the authorized capital of the company or offered for acquisition by all or some of the participants of the Company and (or), if it is not prohibited by the Charter of the Company, to third parties.
Distribution of the share between the Company's members is allowed only if it was paid before the transfer of the share to the Company.
The sale of shares of participants who have left the Company is carried out at a price not lower than the price paid by the Company in connection with the transfer of a share or part of a share to it, unless a different price is determined by a decision of the general meeting of participants in the Company.
The sale of a share to the members of the Company, as a result of which the size of the shares of its participants changes, as well as the sale of a share to third parties and the determination of a different price for the sold share, are carried out by a decision of the general meeting of the members of the Company, adopted by all participants unanimously.
The share in the authorized capital of the Company not distributed or not sold in due time must be redeemed, and the size of the authorized capital of the Company must be reduced by the nominal value of this share.
3. State registration in the Unified State Register of Legal Entities
Within a month from the date of receipt by the Company of the participant's application for withdrawal, the General Director of LLC is obliged to submit the following documents to the tax office:
1. Share. transferred to the Company, within a month it is distributed among the members of the Company by decision of the General Meeting of Members. It is required to draw up and sign the corresponding protocol.
Documents for the registration of such changes shall be submitted within a month from the date of the decision on the distribution of the share between all participants in the company.
The tax office is provided with:
Minutes of the general meeting on the distribution of shares between the members of the Company.
2. Share. transferred to the Company, is sold to participants and (or) third parties within a month. It is drawn up by the minutes of the General Meeting of Participants and the contract for the sale and purchase of a share in the authorized capital of the Company.
Documents for the registration of such changes shall be submitted within one month from the date of the decision to sell the share.
Submit to the tax office:
Minutes of the general meeting on the sale of shares
Share sale and purchase agreement
Documents confirming the payment of the share by the acquirer of the share.
3. The share transferred to the Company is not temporarily distributed or sold.
Additional documents are not provided, it is enough to record in the Unified State Register of Legal Entities the transfer of a share from a participant to an LLC (see above).
A member of an LLC, if he is not the only one, has the right to withdraw from the company at any time. Obtaining the consent of other members of the company, the company itself is not required for this, but only if this is reflected in the charter.
Recall that, according to the previous legislation, a participant could withdraw from an LLC, regardless of whether the this right in the statute. After the participant leaves, the company receives his share, and he is paid its actual value.
Withdrawal from the founders of an LLC is carried out by submitting an appropriate application. By its nature, it is a unilateral transaction: for the emergence of rights and obligations, it is enough for the participant to send an application, and for the society to receive it.
A prerequisite for the application is that it must be in writing. The application may be sent by mail or by telegram. There is no mandatory form for such a declaration.
The main thing is that the participant's will to withdraw must be clearly formulated, that is, the statement must clearly indicate the participant's intention to withdraw from the society, and not about any other intentions. Thus, an application for the dismissal of a member of an LLC or containing a requirement to pay him the cost of a share, as well as other requirements, is not suitable for this purpose.
An example of filling out an application for withdrawal from an LLC in 2018
The document must indicate:
- surname, name, patronymic and passport details of the participant, his address;
- company name;
- the amount of the applicant's share;
- par value of the share;
- intention to withdraw from society;
- Date of preparation;
- decoded signature.
Sample application for withdrawal of a participant from an LLC:
Director (General Director) of Techno LLC
PSRN ______________
from the participant of Techno LLC
______________________
STATEMENT
In accordance with Art. 26 of the Federal Law "On Limited Liability Companies", I, ____________________________________, declare my decision to withdraw from the membership of the Techno Limited Liability Company.
My share in the authorized capital of the company has been paid in full.
I ask you to pay in the manner prescribed by clause 6.1. Art. 23 of the Federal Law "On Limited Liability Companies" within 3 (three) months, the actual value of the owned share in the authorized capital of the Company, amounting to 40.00% of the authorized capital, with a nominal value of 4,000 (Four thousand) rubles, or to give in kind property of the same value .
"__" January 2018
You can download this form from the following link.
Just as the correct application form is important, the application process itself is important. If it is handed over to an authorized person in his hands, then the date of receipt is marked on the document, a signature is made with a transcript. When sending by mail, the address contained in the constituent documents should be indicated.
The date of filing the application is the day of its receipt by the appropriate recipient in accordance with the constituent documents or the employee who is entrusted with given function. In the case of sending an application by mail, the countdown is from the date of receipt of the letter to the expedition or to the employee performing these duties. The application must be submitted by registered mail with notification, preferably with a description of the attachment.
Judicial practice also recognizes other forms of a participant's application for withdrawal from an LLC - the minutes of the general meeting of participants, which records the intention to withdraw or withdraw a particular participant from this society. The protocol must be signed by all participants legal entity. However, in order to avoid litigation, it is still preferable to submit a separate application in writing.
The application for withdrawal from the founders is Starting point in the process of leaving the number of organizers of a legal entity.
Reasons for leaving the founders
Withdrawal from the founders of one of its participants often becomes unexpected news for his colleagues. However, such situations are not uncommon. They may be related to the unwillingness to bear responsibility for the activities of the organization, the desire to withdraw existing assets, etc.
The procedure and procedure for withdrawing from the number of founders of an LLC are prescribed in Art. 26 of the Federal Law "On Limited Liability Companies", they must also be spelled out in the Charter of the enterprise.
What you need to do to exit, the order of the procedure
As you know, the number of participants in an LLC should not exceed fifty persons (legal or natural), while the shares of participation among them can be divided both proportionally and disproportionately.
Each of the participants has the right to withdraw from the founders at any stage of the operation of the LLC.
To do this, you just need to write an application and submit it to the person managing the organization (director or to CEO). At the same time, withdrawal from the founders of the company is possible without obtaining the consent of other members, only by the personal will of its participant.
After the application is accepted by the head of the company and other founders of the LLC, it must be considered by them within the legally established period (no more than ten working days), and then an appropriate decision must be made on it. One copy of the decision remains within the organization, the second is transferred to the applicant.
An important nuance should be noted: withdrawal from the number of participants in an LLC is considered completed only after information about it is officially registered.
This is where the role of the former member of the LLC ends, and serious work awaits its other founders on structural changes. These include the redistribution of shares, making adjustments to constituent documents and submitting the necessary information to state supervisory authorities (primarily tax service), notification of changes to all interested organizations, contractors, etc.
By the way, with regard to the share of the withdrawing participant, if no actions are taken in relation to it within one year, then the remaining authorized capital is proportionally reduced.
If the former founder wishes to receive his share in the real monetary terms, then payment to him must be made within a period not exceeding three months from the date of his release (only if the Charter does not indicate another period).
In what cases it is impossible to leave the LLC
The legislation clearly defines situations when the founder does not have the opportunity to leave the LLC. These are just two cases:
- when the founder is the only one;
- when all its participants decide to leave the company at once (at least one must remain and, if necessary, it will be he who will carry out the procedure for liquidating the enterprise).
Features of drawing up an application, general information
If you need to write an application to withdraw from the founders of an LLC, but you do not know how to do it correctly, we advise you to carefully read the recommendations below. Also look at the sample document - based on it, you can easily draw up your own form.
Today a single unified sample no statement. This means that the founder has the opportunity to draw it up in any form or, if the Charter of the organization provides for the form of the document, according to its type.
Regardless of which option will be used, when writing an application, one must take into account several common parameters characteristic of all such papers. In particular, care must be taken to ensure that the structure and content of the form comply with some standard business rules, i.e. The statement is conditionally divided into three parts:
- the beginning of the document or, as it is also called, the “header”, where data about the addressee and the applicant are entered;
- the main block is the actual request to withdraw from the founders, indicating the shares that belonged to the LLC participant, if necessary, the reason for the withdrawal should also be entered here (but not necessarily);
- the conclusion must include the date of the document and the personal signature of the applicant.
Rules for filling out an application, ways of transfer
The application can be written on a regular blank sheet of any convenient format(preferably A4), by hand or typed on a computer - these values \u200b\u200bdo not play a role in establishing its legality. It is only important that it be written without inaccuracies, errors and blots, and if any do happen, you should not correct them, but rather draw up a new form.
The application must be signed by the applicant (and the signature must be "live").
An application is being made in two identical copies, one of which should be handed over to the representatives of the enterprise (general director or other founders), and the second, after a mark on the acceptance of the copy is put on it, to keep. In the future, this will help to avoid possible troubles if the question suddenly arises about the very fact of transferring the document to its destination or the date of its compilation.
You can send the application to the interested party in any of the following ways:
- personally, from hand to hand;
- via the Russian Post by sending a message with a list of attachments by registered mail with acknowledgment of receipt;
- it is also possible to transfer the application through an authorized representative (provided that the latter has a duly certified power of attorney).
Withdrawal of a participant from an LLC without paying the cost of a share
Over time, the presence of many participants can become a source of conflicts in the Company that impede its activities, or the life circumstances of one of the participants change. And the decision to leave one / several participants becomes the best options for all.
In the case when the desire to withdraw from the Society is expressed by the participant himself, he must submit an application for withdrawal from the membership. Such a possibility should be established by the Charter of the Company (clause 1 of article 26 of the Federal Law on LLC).
According to Article 23 of the Federal Law on LLC, the share of a participant who wishes to withdraw passes to the Company, while the Company is obliged to pay the actual value of the share / hand over property in kind within 3 months.
How to qualify a participant's application for withdrawal from the Company
The participant's application for withdrawal from the Company is a unilateral transaction and complies with the provisions of Article 153 of the Civil Code of the Russian Federation. Since the withdrawal of the participant is aimed at changing the memorandum of association, then, by virtue of paragraph 1 of Article 452 of the Civil Code of the Russian Federation, it must be drawn up in the same form as the original agreement, that is, in writing. Based on the imperative requirements of the Federal Law on LLC, this application also requires notarization.
At the same time, neither the Civil Code of the Russian Federation nor the Federal Law on LLC contain explanations regarding the possibility (or impossibility) of the transfer of a participant's share to the Company free of charge.
This situation has been resolved judicial practice which recognizes the refusal of the participant from the value of his share as legal if it is properly executed.
This refusal is qualified by the courts as the forgiveness of the debt to the Company by the former participant.
Sometimes participants who have previously refused payments go to court to recover the unpaid cost of the share and interest for non-payment. The basis of the appeal is the fact of gratuitousness. However, such cases are consistently lost by them.
The courts take the side of the participant only if he wrote an application for withdrawal from the Society under the influence of threats, deceit, other violence (the transfer of a share will be an insignificant transaction and will not entail legal consequences).
Or in the case when the participant did not intend to withdraw from the membership, however, he wrote a statement of withdrawal in order not to be responsible for the activities of the Company (such a statement will be recognized as an imaginary transaction).
Arbitrage practice
Determination of September 18, 2012 N VAS-12296/12 of the Supreme Arbitration Court of the Russian Federation refused to transfer the case to the Presidium of the Supreme Arbitration Court of the Russian Federation.
The essence of the case was as follows: a former member of the VERYAZHSKY Autocomplex Company applied to the court for the recovery of the actual value of the share in the authorized capital in the amount of 456,621 rubles. and interest for the use of others in cash in the amount of 43,629 rubles. 20 kop.
Previously, he had filed an application, which indicated the waiver of the right to pay the actual value of the share belonging to him.
After this participant left, his share was distributed among the remaining participants based on the decision of the general meeting.
The participant explained that he did not submit an application and did not put his personal signature on it. However, his arguments about the falsification of the signature were refuted by the examination.
Based on the fact that his intention to withdraw from the Company and the refusal to pay his share clearly followed from the text of the submitted application, the court found the claim unlawful.
In another case, the Arbitration Court of the North-Western District (Decision dated July 16, 2015 in case N A52-2286 / 2014) confirmed the decision of the appellate and cassation courts and also dismissed the claim of the former member of the Company.
According to the plot of the case, the plaintiff, a former member of the Alaska Society, applied to the court to invalidate the application for withdrawal from the membership of the Society and the restoration of the rights of the participant.
He substantiated his claims by the gratuitous nature of the transaction to withdraw from the Company and the non-payment by the Company of the actual value of the share.
Earlier, on his own initiative, he applied to the Society with a statement about withdrawing from the membership. This application was considered at an extraordinary general meeting. By the decision of the meeting, duly executed by the minutes, it was determined that the share of the participant in the amount of 80% of the authorized capital is transferred to the Company, about which it is necessary to make appropriate changes to the Unified State Register of Legal Entities.
A witness participated in the court session, asserting that the participant intended to sell the share in the Company to him.
The court of first instance considered these arguments convincing and concluded that the Company did not provide convincing evidence of the plaintiff's will to withdraw from the Company without compensation and reinstated him as a participant.
But the court of appeal did not agree with the conclusions of the court of first instance and dismissed the claim, recognizing the plaintiff's argument that the statement had flaws in will and content as unproven. The Court of Cassation upheld the arguments of the Court of Appeal.
The claims of the plaintiff were denied, the withdrawal from the Company and the refusal to pay the share were recognized as legal.
General conclusions
Despite the already established practice, it is noteworthy that cases in which former participants try to play on the gratuitous transfer of a share, subsequently demanding that it be declared illegal, go through several instances and are finally resolved only by higher courts.
Some difficulty is also the question of the need to notarize the very refusal to pay the cost of the share if 1) the participant did not indicate this directly in the text of the application, 2) he demanded payment of the actual cost, but then changed his mind and decided to transfer the share to the Company free of charge.
Since the refusal to pay the cost of the share is considered by the courts as debt forgiveness, one should refer to paragraph 2 of Article 415 of the Civil Code of the Russian Federation: "The obligation is considered terminated from the moment the debtor receives the creditor's notification of debt forgiveness, if the debtor does not send the creditor objections against debt forgiveness within a reasonable time" .
Based on the norm of the article, the notification does not require a notarized statement.
Subsequent refusal of the participant to pay can be 1) executed in writing and sent/transferred to the Company, or 2) reflected in the Minutes of the general meeting of the Company.
However, these options carry the risk of challenging this decision in court and the need to provide evidence confirming the legality (or illegality) of the refusal to pay the cost of the share.
It can be noted that the most successful solution for the Company will be a statement on the participant’s withdrawal, in the text of which “the will to release the Company from the obligation to pay the actual value of the share” is clearly and unambiguously expressed (the standard wording used by the courts in the text of decisions on the gratuitous transfer of the share).
A sample application for withdrawal of a participant from the Company without paying the actual value of the share can be downloaded here.
When establishing the Company, the participants, by unanimous decision, may provide for the possibility of withdrawing from the Company with the subsequent transfer of their share to the Company free of charge. You can refuse this decision if there are 2/3 votes of the Company's members.
Also, the Company may develop and approve a form of application for the withdrawal of a participant from the Company, which reduces the risk of ambiguous interpretations of the participant's will to a minimum.
Lawyer at Avisto LLC
© Krivoshapova Olga
How is the withdrawal of a participant from an LLC
A member of a limited liability company is granted by law the right to withdraw from an LLC if certain conditions are met.
In what cases the founder has the right to leave the company, how this procedure must be documented and what are the features of leaving the LLC - this will be discussed below.
Normative base
The right to exit a participant from an LLC is enshrined in the Civil Code of the Russian Federation, in Article 94. In more detail, the procedure and procedure is regulated by the provisions of Article 26 of the Federal Law of 08.02.1998 "On Limited Liability Companies".
The practical provisions of the procedure are also enshrined in regulations Federal Tax Service of the Russian Federation. For example, the application form for changing information about the company in the Unified State Register of Legal Entities, including due to the withdrawal of one of the participants, is established by Order of the Federal Tax Service of Russia dated January 25, 2012 No. ММВ-7-6 /
The procedure for the withdrawal of a participant from an LLC - step by step instructions
The withdrawal of a participant from the LLC, in accordance with the norms of the current legislation, is possible if this is provided for by the charter of the legal entity. It is the charter that should consider in detail the procedure for the exit of the founder and all other options for making changes to the composition of the company.
The charter may contain provisions both on the mandatory transfer of a share to the company, and on the possible alienation of a share to a third-party individual or legal entity or the prohibition of such alienation.
If the main constituent document of the company does not contain provisions regulating the withdrawal of a participant, the charter can be amended and supplemented, but only if all participants in the LLC agree to the changes.
Thus, the first thing to do in order to leave the company is to carefully read the charter and study in detail its provisions regarding the transfer of a share in the authorized capital upon the withdrawal of a participant.
Video - how to formalize the withdrawal of a participant from an LLC:
The algorithm of actions for the withdrawal of a participant from the founders of an LLC is a certain sequence of procedures, namely:
- Step 1: notification of the head and members of the company of the intention to leave the LLC by sending an appropriate application;
- Step 2: sending to the territorial division of the IFTS about changing the composition of the company's participants;
- Step 3: obtaining from the tax authority documents confirming the necessary changes to the Unified State Register of Legal Entities;
- Step 4: the final stage for the calculation of contributions and contributions to the company's capital.
Each step-by-step procedure has its own rules and specifics that should be taken into account if the participant decides to leave the society.
Application for withdrawal from LLC
The first step for a participant to withdraw from the company is to send a statement of his intention to the executive body of the LLC - the director or general director.
The application form is not strictly defined. However, the document must contain information such as:
- full information about the participant, including passport data and address of residence and registration;
- information about the legal entity from which the participant withdraws;
- the amount of the applicant's share in the authorized capital;
- date of submission of the application;
- personal signature of the applicant.
From the moment the application is accepted by the company, namely its registration and receipt by the company, the participant is considered to have withdrawn from the company.
Also, the statement about the withdrawal of a participant from the company is a reason for holding a general meeting of participants. At such a meeting, the fate of the released share is decided. Members of the general meeting may dispose of the shares as follows:
- distribute proportionally among the rest of the participants;
- sell to one of the participants or another natural or legal person;
- remain in the hands of the company until the end of the year.
The decision taken must be confirmed by the minutes of the general meeting.
Within the framework of the general meeting, the issue of calculating the cost of the share and the timing of its payment to the withdrawing participant is also resolved.
The procedure for determining the value of a share
The procedure for determining the value of the share to be paid to the participant in the event of his withdrawal from the LLC is fixed in paragraph 6.1 of Article 23 of the Law "On Limited Liability Companies".
So, according to the specified norm, the amount of funds payable is calculated by multiplying the share in the authorized capital of the withdrawing participant and the value of the net assets of the legal entity.
In this case, the net asset value is used from the accounting data for the period preceding the date of filing the application. So, if the reporting period is a quarter, and the application was submitted in the 2nd quarter of the current year, then the net asset value is taken based on the results of work for the 1st quarter.
The payment period for the share price is 3 months. The law also grants the right of a participant to receive, upon exit, as a payment, the property of an LLC within the value of its share.
Sending documents to the IFTS
The next step in formalizing the withdrawal of a participant from an LLC is to send documents to the territorial tax authority.
Changing the number of participants in the company is the basis for making changes to the Unified State Register legal entities. The basis for this should be an application drawn up in the form P14001.
A document of this form filled out in accordance with all the rules must be sent to the Federal Tax Service Inspectorate within a month from the date of receipt by the executive body of the LLC of the participant's application for withdrawal from the company.
The following documents must be attached to the application:
- charter;
- an up-to-date extract from the Unified State Register of Legal Entities, issued no later than 30 calendar days before sending the documents to the tax authority;
- copy of PSRN;
- a copy of the minutes of the general meeting of members of the company on the appointment of a director or other executive body of the LLC.
Before sending documents to the IFTS, they should be certified by a notary. Based on the results of the procedure, a new extract from the Unified State Register of Legal Entities will be issued containing the changed information about the participants in the company.
Withdrawal of a participant from an LLC by selling a share to a company
One of the most common cases is the withdrawal of a participant from the LLC by alienating his share directly to the company itself.
The alienation of a share to a company is formalized by a sale and purchase agreement, the parties to the agreement are the participant leaving the LLC and the director or other executive head of the legal entity. The agreement is also subject to notarization and submission to the tax authorities for registration of changes in the Unified State Register of Legal Entities.
However, the company cannot be the owner of a share in the authorized capital for more than one year. During the calendar year, the head of the company must make a decision on the distribution of the released share among the current participants, or on its sale to third parties.
Withdrawal from the company of the sole founder
Within the meaning of the current legislation, withdrawal of the sole participant from the company is not allowed. Possible option the termination of the founder's participation in an LLC can only be the liquidation of a legal entity, the decision to start which can be made by the founder himself.
The alienation of the share of the sole founder to a third party is possible only if this person is included in the composition of the company's participants and an appropriate entry is made in the Unified State Register of Legal Entities.
The specifics of the participant’s exit procedure from the LLC and the pitfalls
When initiating the procedure for withdrawing a participant from an LLC, several points must be taken into account that may be important for acceptance final decision about exit and paperwork.
The specifics of the procedure include the following:
- The obligation of the participant to make contributions to the capital of the company remains until the moment of filing an application for withdrawal. Thus, the obligation to make contributions to the property of an LLC is valid until the moment the application is sent, and if the obligation was not fulfilled on time, then sending an application for withdrawal from the company does not exempt the participant from mandatory contributions.
- For a participant to leave the LLC, the consent to the procedure of all other founders is not necessary.
- A participant's withdrawal statement sent to the address of the executive body of the company is not subject to withdrawal or cancellation.
- Payment of a share to a withdrawn participant with the property of the company is possible only with the consent of the founder who left the LLC.
- The paid value of the share in monetary terms is included in income individual and is subject to inclusion in the income statement and taxation.
- Some agreements with counterparties, including banks, have provisions on the obligation of the company to notify the partner of a change in the composition of the founders. This must be taken into account when a participant leaves the LLC and, if necessary, inform counterparties.
Despite the apparent complexity, the procedure for withdrawing a participant from the company is very simple and transparent. Carrying out all the necessary actions and paperwork is within the power of almost every full-time legal adviser.
Particular attention should be paid to the timing of sending documents on amendments to the Unified State Register of Legal Entities to the tax authority, the correct calculation of the cost of the share of the withdrawing participant and the procedure for its payment. For example, untimely sending to the IFTS information about a change in the participants of an LLC is fraught with the application of administrative responsibility measures to the head and organization.
Read about the new traditions associated with saying goodbye to colleagues when they leave.
Video - the exit of the founder from the LLC:
Is it possible for the founder to leave the LLC without paying a share?
Withdrawal of the founder from the LLC without paying a share quite possible, but in the vast majority of cases, payment must be made. In the article, we will consider situations where an LLC is not obliged to pay the price of a share to a former participant, and we will analyze the procedure for exiting an LLC.
Legal basis for the withdrawal of a participant from an LLC
The procedure for leaving an LLC is prescribed in Art. 94 of the Civil Code of the Russian Federation, art. 26 of the Federal Law “On Companies ...” dated 08.02.1998 No. 14. According to these standards, when leaving the company, the share price must be paid in favor of the leaving participant.
From the provisions of Art. 23 of Federal Law No. 14, it follows that if one of the members of the company leaves it, the share will go to the company, which in turn must pay its cost to the withdrawing participant. If he agrees, then the LLC can pay with property, not money.
The cost of a share upon exit of one of the company's participants is determined not at face value, but at the actual price.
When is it possible for a member of an LLC to withdraw without paying him a share in the authorized capital?
In some cases, the Company is not obliged to pay to the departing member of the company the value of his share. Let's consider them.
- Refusal of the participant from the due payment. If the participant does not wish to receive the due compensation, this is recognized as forgiveness of the debt (Article 415 of the Civil Code of the Russian Federation). This position is confirmed by judicial practice, for example, the Resolution of the Arbitration Court of the North-Western District dated July 16, 2015 No. F07-3831/2015 in case N A52-2286/2014. Refusal is made as follows. A participant in an LLC writes an application for withdrawal from the organization, in which he indicates that he refuses to receive compensation for his share. In this case, compensation may not be paid, and the debt is considered forgiven. In the future, even if the participant who left the company changes his mind, the court will take the side of the organization, since the participant, when leaving the LLC, himself expressed a desire to refuse compensation, which he reflected in a written statement.
- The founder did not pay for a share in the company. If the participant did not contribute the price of the share to the authorized capital, in some cases the LLC may not pay the cost of the share upon its exit. However, many courts take the side of the participant, indicating that the Company did not express claims for non-payment of the share by the participant, the share did not pass to the Company after the deadline for its payment, and also that the participant took part in general meetings of the organization, i.e. was officially recognized as a participant, which is impossible without paying a share.
- The company has signs of bankruptcy, or the payment of the value of the share upon the exit of the founder will lead to bankruptcy. In this case, on the basis of a subsequent application submitted by a participant who has already withdrawn, he can restore his status in the LLC.
The procedure for the withdrawal of a participant from an LLC, a sample application for withdrawal from the membership of the organization
The withdrawal of a participant from an LLC can be made:
- by submitting an application to the Company (if the corresponding possibility is specified in the charter);
- by presenting a demand for the redemption of the share.
It is not possible for a single member to leave the organization.
After the Company receives an application, the share passes to the organization (clause 2, clause 7, article 23 of the Federal Law No. 14). Changes must be registered within a month.
Thus, the participant has the right to withdraw from the LLC, if such an opportunity is prescribed in the Charter of the company. The withdrawing member must be paid the value of his share, except as noted above.
Withdrawal of a participant from an LLC
A limited liability company may face a situation where its member expresses a desire to leave the business. The withdrawal of a participant from the LLC is the refusal of the part belonging to him and the receipt in the future of compensation equal to its real value. The share of a participant can be transferred to the company at the request of the owner of the share, upon exclusion of the participant from the LLC or after his death. We will analyze all these situations, and also describe in detail the procedure for a participant to leave an LLC.
Departure of a participant from an LLC at his own request
It is worth noting that the charter should stipulate the right of a participant to withdraw from the LLC on his own (without the consent of other founders) through the alienation of his share to the company. Therefore, if you join an LLC, study the main document.
It is not allowed for the founder to leave the LLC if he is the sole owner of this organization. This restriction is quite natural: LLC cannot function without founders. The last participant in an LLC who wants to leave the company must liquidate it completely.
The procedure for the withdrawal of a participant from an LLC
Art. 26 of the Federal Law "On LLC" defines the process of a participant's withdrawal at his own request as a one-sided transaction. If you want to step-by-step instruction, the first step will be the filing by the exiting participant of an application in free form addressed to the CEO. It contains the following information:
- Participant details (complete).
- Expressing a desire to leave the LLC and receive compensation.
- Registration of the application (notification or stamp with the date).
The letter (sample withdrawal decision) can be downloaded here.
Since 2016, new rules have been in force, according to which notarization of the application is required. The exit order of two or more participants is similar.
The period allotted to the company for making amendments to the registration documents is 1 month. Then the LLC must submit to the tax authority at the place of registration an application in the form P-14001, which was certified in advance by a notary, an application from a participant who wants to leave the LLC, and a minutes of the meeting on the participant's withdrawal.
Form P-14001 can be filled out according to the sample.
The procedure for the withdrawal of a participant without paying a share is possible only in the case of a negative value of the net assets of the LLC. It is worth noting that the former participant, after receiving compensation, can transfer it to the LLC free of charge.
The calculation of the amount of compensation should be done based on the value of the net assets (NA) of the LLC, calculated in the accounting report for the last period that preceded the day the letter of withdrawal from the LLC was received, and the share of the participant.
Compensation and taxation
Leaving the LLC, the former participant is obliged to pay personal income tax on the amount of compensation received by him. The LLC, in turn, cannot reduce taxes by attributing this payment to expenses, since the payment is made from the difference between the TCA and the authorized capital. Therefore, accountants should draw up the postings on the withdrawal of a participant from the LLC with due attention. Failure to comply with this rule may result in negative tax consequences.
If the share of the withdrawing participant is transferred to the company, there are different ways to dispose of it:
- LLC distributes it among the remaining participants, depending on their share in the UK.
- LLC transfers the share to one participant.
- An LLC sells a share to a person who is not a member of this company, unless a prohibition is imposed on this in the charter.
It is necessary to issue a distribution or sale and report it to the tax authorities within 1 month after the approval of the decision on this issue. A package of documents submitted to the tax office:
- Application form P-14001, certified by a notary.
- Protocol on the distribution or sale of a share.
- Share sale and purchase agreement.
- Documents confirming the fact of payment.
If the participants of the LLC during this period have decided on further actions with the share of the withdrawn participant, then you can contact the tax service once, indicating both facts in the application: the departure of one of the participants in the LLC and actions with its share.
If the LLC has not distributed the share of the departed member within 12 months, it must be repaid and the charter capital must be reduced by the amount of this share. To notify the tax authorities of this fact, form R-13001 should be used. You can download a sample here. It should be accompanied by a decision of the meeting of the members of the LLC, amendments to the charter of the LLC, as well as a document confirming that the state duty was paid.
LLC Member Exclusion Process
The exclusion of one of the participants from the LLC is a difficult and sometimes impossible task, since there must be serious grounds for this, confirmed by irrefutable facts. They are described in Art. 10 of the LLC Law and Art. 67 of the Civil Code of the Russian Federation.
To remove a member of an LLC from the membership, he must be guilty of one of the following violations:
- Forgery of the minutes of the meeting of the members of the LLC, as a result of which it was approved new director who sold the property of LLC.
- Communication to partners of the LLC of untrue information about the liquidation of the company, which provoked the departure of partners to the company's competitors.
- Selling at a reduced price the property of LLC.
- Systematic evasion from participation in the meetings of the founders of the LLC.
Only a participant whose share exceeds 1/10 of the Criminal Code can file a claim demanding the removal of a dishonest founder from the LLC. If the court decides in favor of the plaintiff, the court order must be attached to Form R-14001. It is still necessary to pay compensation to the excluded participant, but then the current participants in the LLC have the right to file a lawsuit in court demanding compensation for the damage caused.
Inheritance of a member's share after his death
After the death of one of the participants in the company, his share is transferred to the heirs (clause 1 of article 1176 of the Civil Code of the Russian Federation). Having received an inheritance, the heir most often becomes a full member of the LLC. If the heir is a minor, a guardian must represent his interests in the LLC.
But there is also another option, when the accession of the heir to the ranks of the founders of the LLC must be approved by other members of the company, or the charter of the company even prohibits the inheritance of a share in the LLC. In these cases, the LLC must pay the real value of the heir's share. The company itself can dispose of the share in the same ways as when a participant leaves the company.
If the heirs did not accept the inheritance within the prescribed period (6 months), the share of the deceased passes to the state.
Therefore, if the above procedure for the withdrawal of a participant from an LLC is followed, the parties should not have any difficulties in resolving the issues of withdrawal, and the whole process will lie exclusively in the legal field.
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Limited liability companies are created on the basis of the decision of one or more citizens. Such a decision is made in the process of debate, during which it is drawn up. Before state registration, the owners must develop constituent documentation (you can get it from a law office or download it on the Internet). After obtaining permits, the organization must choose a taxation system on which it will depend. If the founders decide to switch to the simplified tax system, then they must submit to the regulatory authorities. After receiving the seal and opening, he can begin active work.
What should I do if there are disagreements between the founders of the LLC?
Very often, disagreements arise between business partners who have opened a Limited Liability Company. Controversial issues can arise both on management issues and in the process of profit distribution. As a result teamwork becomes simply impossible, so some owners decide to exit the business.
The withdrawal of a participant from the founders of an LLC is a legal procedure that is carried out in accordance with the regulations of the Federal legislation and the information laid down in the Charter. The owner who decides to leave the business must officially give up his share, for which the Limited Liability Company must pay compensation. A participant may voluntarily transfer his share to other founders. Also, a part in the organization may pass to the owners after the death or exclusion of a member from the LLC. In case of voluntary abandonment of the business, an application is written to withdraw from the founders of the LLC (a sample can be downloaded on the Internet), on the basis of which the further procedure is carried out.
Can the owner voluntarily withdraw from the founders of the LLC?
The right of each participant to voluntarily leave the Limited Liability Company must be fixed in the statutory documentation. That is why people who want to join an LLC as a founder need to carefully study the Charter.
Advice: if the organization is created by one person, then the Federal legislation prohibits him from waiving the powers of the founder. In the event that the owner does not want to continue to conduct business, he needs to liquidate or sell the LLC.
How should the procedure for the founder's withdrawal from the LLC be carried out?
The procedure for the withdrawal of a participant from the founders of an LLC must be carried out in accordance with the regulations of Article 26 of the Federal Law "On Limited Liability Companies". Owners must act in a certain sequence:
- A participant who decides to leave the business submits an application for withdrawal from the founders of the LLC. This document must contain full information about this person. The application must contain information that the participant wishes to leave the founders of the LLC and receive compensation.
- The application is being registered. The form is stamped with the date.
- The participant is accounted for.
- Amendments are made to the statutory documentation.
- Charter in new edition certified by a notary and submitted for registration to the Federal Tax Service.
Advice: in 2016, amendments were made to the Federal legislation that relate to the procedure for the withdrawal of participants from the founders. Now the application for withdrawal from the founders of an LLC is subject to mandatory notarization.
In accordance with the regulations of the Federal legislation, the organization is obliged to amend the statutory documentation within 1 month from the date of receipt of the application from the participant to withdraw from the founders of the LLC. After that, it is necessary to fill out the P14001 form and submit it to the regulatory authority at the place of registration along with the minutes of the meeting of the founders and the application of the former owner. This form must first be notarized.
How should settlements be made with a participant who has left the founders of an LLC?
After the participant submits an application for withdrawal from the founders of the LLC, the organization must make a final settlement with him. The legislation of the Russian Federation establishes a 3-month period for payment of compensation. Settlement with the former owner can be carried out both in property and in cash, in the amount corresponding to his share in the company.
If a limited liability company has a negative value of net assets, then the Federal legislation allows participants to withdraw from the founders without compensation for their shares. Former owners have the right to transfer the received compensation to the LLC free of charge, if such a procedure is provided for by the Charter.
Advice: each participant who received compensation for leaving the founders of the LLC is obliged to pay personal income tax from this amount to the budget.
How is the share of the former participant received by the LLC registered?
If the former owner transfers his share to the Limited Liability Company, then the founders have the right to dispose of it as follows:
- The organization can document the transfer of this share to one of the founders.
- The company evenly distributes the received share among all founders.
- The company sells the share of the former owner to an outsider (if this procedure is provided for in the Charter).
The procedure for distributing the share of the former participant must be carried out within 1 month from the date of its receipt and approval at the meeting of the founders of this issue. After that, a package of documents must be submitted to the regulatory authority:
- a statement of the established form (form P14001), which was previously certified by a notary;
- minutes of the meeting of founders, which reflects all the nuances of the distribution of the share of the former owner;
- a contract of sale, if the share was transferred to an outsider;
- documents that testify to financial settlements.
Advice: if within 1 year from the date of receipt of the share of the former participant, the founders could not distribute it, then it is subject to redemption in accordance with Federal law. After that, the authorized capital of the organization is reduced by the amount of this share. The founders are required to notify the tax authority of this fact, to which the completed form P13001 should be transferred. Attached to this form is the decision of the meeting of founders, the Charter in a new edition and a document certifying the payment of the state fee.
Can a participant be forcibly excluded from the founders of an LLC?
The procedure for the forced exclusion of a participant from the founders of an LLC can be carried out only if serious violations are committed. At the same time, the owners must comply with the provisions of Article 67 of the Civil Code of the Russian Federation and Article 10 of the Federal Law "On Limited Liability Companies". A statement of claim for the forced withdrawal of a participant from the founders of an LLC can only be filed by an owner who has a share in the company exceeding 1/10 of the authorized capital. Upon receipt of a positive court decision, it should be submitted to the regulatory authority along with form P14001.
Sample application for withdrawal from the founders of LLC
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Regardless of the reason for which the participant decided to withdraw from the founders of the LLC, this procedure must be carried out in accordance with the regulations of the Federal Law. At the same time, the owners of the organization must comply with the conditions prescribed in the statutory documentation. All actions must be notified to the regulatory authorities in a timely manner, otherwise penalties will be applied for violation of the deadlines.
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STAGE 1. PREPARATION AND SUBMISSION (SUBMISSION) OF THE APPLICATION FOR WITHDRAWAL FROM LLC
1.1. Preparation of a participant's application for withdrawal from the LLC
A participant in an LLC has the right to withdraw from the company by alienating his share, regardless of the consent of other participants or the LLC, if this is provided for by the company's charter (paragraph 6, paragraph 1, article 8, paragraph 1, paragraph 1, article 26 of the LLC Law).
The Presidium of the Supreme Arbitration Court in paragraph 21 of the letter dated 03/30/2010 N 135 indicated that if the charter of an LLC established before 07/01/2009 contained a provision on the right of LLC participants to withdraw from the company, then this right is retained by them even after this date, regardless of whether whether changes have been made to the charter of the LLC in connection with bringing it into line with the new legislation. If the charter of an LLC established before the date of entry into force of Law N 312-FZ did not contain such a provision, then from 07/01/2009 its participants do not have the right to withdraw from the LLC in the manner prescribed by Art. 26 of the LLC Law.
Restrictions on withdrawal of a participant from an LLC
Participants are not allowed to leave the company in the following cases(Clause 2, Article 26 of the LLC Law):
Only one member leaves the society.
The participant exercises the right to withdraw from the company by submitting (sending) an application.
In accordance with judicial practice, a participant’s application for withdrawal from an LLC can be recognized:
Application of the participant for his exclusion from the list of participants in the LLC and payment of the actual value of the share;
Minutes of the general meeting of participants, containing a record of the participant's withdrawal from the LLC and signed by all participants;
A telegram sent to the LLC by a participant - a legal entity, containing a notice of withdrawal from the LLC;
Form and content of the application for withdrawal from the company
An application for the withdrawal of a participant from an LLC must be submitted in writing(clauses "b" clause 16 of Resolution No. 90/14).
In judicial practice, there are two positions on the issue of the possibility of confirming the withdrawal of a participant from an LLC by other (in addition to the written application of the participant) evidence:
1) The only admissible evidence of the withdrawal of a participant from a limited liability company is his application submitted in writing.
2) Written statement of the participant is not the only one evidence confirming his withdrawal from the limited liability company.
Requirements for the content of the application for withdrawal from the company are not established by the LLC Law.
A sample (form) of an application for withdrawal from an LLC, prepared using legal acts as of 10.10.2012
Head of LLC Silkin & Partners»
Silkina Elena Valentinovna
(FULL NAME.)
from participant Silkin Alexey Alexandrovich
(for FL-full name, passport data) ( for legal entity-name, TIN, ORGN)
_____________________________________
Address: _______________________________
STATEMENT
In accordance with clause ___ of the Charter of the Limited Liability Company
Silkin & Partners", as well as Art. 26 of the Federal Law "On Limited Companies"
responsibility" please withdraw _ Silkin Alexey Alexandrovich ____________
(FULL NAME., or the name of the legal entity)
from the members of LLC Silkin & Partners» with payment in the manner prescribed
clause 6.1 of Art. 23 of the Federal Law "On Limited Liability Companies", as well as
clause _______ of the charter, within 3 (three) months (if the charter of the Company
a shorter period is not provided) of the actual value of the property
Silkin Alexey Alexandrovich shares in the authorized capital of the Company
(full name, name)
and a component of _______% of the authorized capital
(option) or give in kind property of the same value
Application: Power of Attorney (if the application is signed by power of attorney)
" ___"______________ _______ G.
Option, if the participant is an individual:
____________/__________/
(signature) (full name)
Option if the participant is a legal entity:
____________________
(Name)
____________________
(job title)
_________/__________/
(signature) (full name)
The actual value of the share (part of the share) must be paid to the participant within three months from the date of the occurrence of the corresponding obligation (paragraph 2, clause 6.1, article 23 of the LLC Law). This obligation arises for the company from the date the company receives the participant's application for withdrawal (clause 2, clause 7, clause 6.1, article 23 of the LLC Law).
According to materials judicial practice in the event of a change in the provisions of the articles of association on the period for paying the actual value of the share after the participant has submitted an application for withdrawal, the company is obliged to pay the actual value of the share (part of the share) in accordance with the norm of the charter on the new term.
The charter of an LLC may establish a different period for payment of the actual value of the share. A provision establishing a different payment period may be included in the charter when the company is founded or introduced by decision of the general meeting of participants, adopted by all participants unanimously (paragraph 2, clause 6.1, article 23 of the LLC Law).
The exclusion of this provision from the charter is carried out by decision of the general meeting of participants, adopted by ⅔ of the total number of votes of the LLC participants (paragraph 2, clause 6.1, article 23 of the LLC Law).
In accordance with court practice, an LLC is not entitled to set a period for paying the actual value of a share that exceeds the period provided for by the Law on LLC.
The actual value of the share (part of the share) is paid in cash. However, with the consent of the participant, property of the same value can be issued to him in kind (paragraph 1, clause 6.1, article 23 of the LLC Law).
If the participant paid his share with property, when leaving the LLC, he is not entitled to demand the return of this particular property (clauses “e”, clause 16 of Resolution N 90/14).
The authority of the persons signing the application must be confirmed. In this regard, it is recommended to attach to the application documents confirming the powers of such persons (for example, a protocol on the election of the sole executive body of the participant - a legal entity, a notarized power of attorney of the representative of the participant - an individual).
1.2. Submission (direction) of the participant's application for withdrawal from the LLC
The participant submits (sends) an application for withdrawal from the LLC to the LLC (clauses 6.1, 7, article 23 of the LLC Law).
Methods for filing (sending) an application for withdrawal from an LLC
Based on the law and judicial practice, an application can be submitted (sent) to the company in one of the following ways:
1) delivery against receipt;
Based on the clarifications "b" paragraph 16 of Decree 90/14, it can be concluded that the application can be served:
The person exercising the functions of the sole executive body;
Chairman of the Board of Directors (Supervisory Board), if such a body is formed in an LLC and, in accordance with the charter, the receipt of such documents is within its competence;
The chairman of the collegial executive body, if such a body is formed in an LLC and, in accordance with the charter, the receipt of such documents is within its competence. The functions of the chairman of the collegial executive body of the company are performed by the person exercising the functions of the sole executive body of the company, unless the powers of the sole executive body of the company are transferred to the manager (paragraph 4, clause 1, article 41 of the LLC Law);
An LLC employee whose duties include the transfer of correspondence to the appropriate person.
According to court practice, the proper address for sending an application for the withdrawal of a member from an LLC is the address specified in the articles of association.
However, it is recommended to send an application for withdrawal not only to the address specified in the charter, but also to the address of the actual location of the company (if the address specified in the charter and the address of the actual location do not match).
Evasion of the sole executive body of the LLC from receiving correspondence (the return by the communication authorities of the postal notification of delivery with the mark “the addressee refused to receive the letter”, “the addressee is not working”) can be regarded by the court as an abuse of the right. In this case, the court recognizes that the direction by the participant of the LLC to the sole executive body of the application for withdrawal from the list of participants entails the transfer of the share to the LLC.
Attachment description example
With such delivery, the person who received the document must indicate his position, name of the organization, full name, date, signature, preferably a stamp or seal of the company.
Possibility to withdraw an application for withdrawal of a participant from the company
Based on the meaning of s. "b" paragraph 16 of Decree 90/14, the participant has the right to withdraw the application for withdrawal from the company. If the company refuses to satisfy its request to withdraw the application, it has the right to challenge such an application in judicial order in relation to the rules on the invalidity of transactions provided for by the Civil Code of the Russian Federation (for example, on the grounds of filing an application under the influence of violence, a threat, or at a time when a member of the company was in such a state that he was not able to understand the meaning of his actions or manage them).
According to judicial practice, the application of bilateral restitution in case of invalidation of a transaction for the payment to the withdrawing participant of the actual value of his share does not entail the abolition of the legal consequences generated by the participant's application for withdrawal from the company, and does not restore him to this status.
STAGE 2. RECEIVING THE APPLICATION FOR THE EXIT OF THE PARTICIPANT FROM LLC
2.1. Receipt of a participant's application for withdrawal from the LLC
From the moment the company receives the participant’s application for withdrawal from the LLC, the share (part of the share) of the participant passes to the company and the participant loses his status (clause 2, clause 7, article 23 of the LLC Law).
The current version of the Law on LLC does not establish at what point the application for the withdrawal of a participant from an LLC is considered received. However, we believe that the clarifications of paragraphs. "b" paragraph 16 of Resolution N 90/14 regarding the time of filing an application can be used to determine the moment of receipt of the application.
Based on the explanation, The moment of receipt of the application will be considered:
1. The day of submission of the application by the participant (representative of the participant) to the authorized body (person).
2. The day the application is received by the expedition of the company (to the LLC employee who performs the functions of receiving (receiving) correspondence).
STAGE 3. STATE REGISTRATION OF CHANGES ASSOCIATED WITH WITHDRAWAL OF A PARTICIPANT FROM LLC
3.1. Preparation of documents to the tax authority for state registration of changes related to the withdrawal of a participant from an LLC
The share (part of the share) of the participant passes to the company from the date of receipt of the application for the participant's withdrawal from the LLC (clause 2, clause 7, article 23 of the Law on LLC).
According to paragraph 7.1 of Art. 23 of the Law on LLC, documents for state registration of changes regarding the composition of LLC participants must be submitted to the registering authority within a month from the date of transfer of the share (part of the share).
Information on the size and nominal value of the share of each LLC participant is excluded from the mandatory information contained in the charter of the LLC.
These changes have been made to Art. 12 of the Law on LLC Federal Law of December 30, 2008 N 312-FZ and entered into force on July 1, 2009.
Since the charter does not specify information on the size and nominal value of the share of each participant, changes related to the withdrawal of a participant from an LLC should be made only in the Unified State Register of Legal Entities.
Before preparing an application in the form No. P14001 for state registration, it is necessary to make changes in the passport data of the Founders and the director of the Company, if necessary, otherwise registration will be denied.
Documents required to amend the Unified State Register of Legal Entities
Application Form N P14001(Clause 2, Article 17 of Law N 129-FZ).
Form N P14001 "Application for the introduction of changes in the Unified State Register of Legal Entities into the information about a legal entity that is not related to changes in the constituent documents" was approved by Decree of the Government of the Russian Federation N 439. However, due to the adoption of the Federal Law of December 30, 2008 N 312-FZ, it ceased to respond legal requirements. Federal Tax Service of Russia in letter N MN-22-6 / [email protected] indicated that before the approval of new forms it is recommended to use the application forms posted on the website of the Federal Tax Service of Russia on the Internet at www.nalog.ru. The recommendation was confirmed by an additional letter from the Federal Tax Service of Russia N MN-22-6 / [email protected]
Law N 129-FZ (clause 3, article 11) establishes that the registration authority no later than one working day from the date of state registration issues to the applicant, in accordance with the method of receipt indicated in the application, a document confirming the fact of making an entry in the state register. Thus, the mentioned Law provides for the possibility for the applicant to choose the method of obtaining documents from the registering authority. At the same time, it should be noted that the application in form N P14001 does not contain the corresponding column.
Despite the fact that Law N 129-FZ establishes a list of documents required for state registration of changes in the Unified State Register of Legal Entities, in practice, the registration authority may require the submission of additional documents (for example, a copy of the participant's application for withdrawal from the LLC). It is recommended to clarify the existence of additional requirements before submitting an application.
The application is certified by the signature of the applicant, the authenticity of which must be certified by a notary. In this case, the applicant indicates his passport data (another identity document) and taxpayer identification number (if any) (clause 1.2, article 9 of Law N 129-FZ).
For state registration of changes related to the withdrawal of a participant from an LLC, state duty is not charged.
The applicant is the director of the Company.
Deadline for submission of documents for state registration
Not more than a month from the date of transfer of the share to the LLC(Clause 7.1, Article 23 of the LLC Law).
Place of state registration
The registration authority (inspectorate of the Federal Tax Service of Russia) at the location of the legal entity (clause 1, article 18 of Law N 129-FZ, clauses 1, 4 of the Regulations on the Federal Tax Service of Russia, approved by Decree of the Government of the Russian Federation of September 30, 2004 N 506).
For the city of Moscow, this is the Federal Tax Service No. 46
The procedure for submitting documents for state registration
Documents are submitted to the registration authority (clause 1, article 9, clause 2, article 18 of Law N 129-FZ):
Directly;
Postal item with a declared value with a list of attachments (for Moscow, it is possible at 46 Federal Tax Service itself, so as not to stand in line);
In the form of electronic documents signed electronic signature, using public information and telecommunication networks, including the Internet, including single portal state and municipal services, in the manner prescribed by the federal executive body authorized by the Government of the Russian Federation.
The procedure for such a direction is approved by the Order of the Federal Tax Service of Russia dated 12.08.2011 N YaK-7-6 / [email protected];
Through a multifunctional center for the provision of state and municipal services from January 1, 2013.
Date submission of documents during state registration, the day of their receipt by the registering authority is recognized (clause 2, article 9, clause 2, article 18 of Law N 129-FZ).
On the day of receipt of the documents submitted by the applicant, the registration authority issues a receipt to the indicated person for receiving the documents indicating their list and the date of their receipt (clause 3, article 9, clause 2, article 18 of Law N 129-FZ).
In case, as well as when sending documents by mail, a receipt for their receipt, if there is a corresponding indication of the applicant, is sent by the registration authority to the postal address indicated by the applicant no later than the working day following the day of receipt of the specified documents(paragraph 2, clause 3, article 9, clause 2, article 18 of Law No. 129-FZ).
Upon receipt by the registering authority of documents in the form of electronic documents on the Internet, including a single portal of state and municipal services, a receipt for receipt of documents during the working day following the day of receipt of documents is sent in the shape of electronic document by the address Email , indicated by the applicant (paragraph 3, clause 3, article 9, clause 2, article 18 of Law No. 129-FZ).
The term of state registration of changes
No more than five working days from the date of submission of documents to the registration authority (clause 1, article 8, clause 3, article 18 of Law N 129-FZ).
The moment of state registration is the making by the registering authority of an entry in the state register (clause 2, article 11 of Law N 129-FZ).
From the moment of state registration, changes related to the withdrawal of a participant from an LLC become effective for third parties (clause 7.1, article 23 of the LLC Law).
The registering authority, no later than one working day from the date of state registration, issues to the applicant, in accordance with the method of receipt indicated in the application, a document confirming the fact of making an entry in the state register (clause 3, article 11 of Law N 129-FZ).
If the applicant does not specify the method of obtaining documents, the registration authority sends a document confirming the fact of making an entry in the relevant state register to the postal address indicated by the applicant (clause 3, article 11 of Law N 129-FZ).
Upon receipt by the registration authority of documents in electronic form signed with an electronic signature, transmitted using public information and telecommunication networks, including the Internet, including a single portal of state and municipal services, a document confirming the fact of making an entry in the state register is sent in the form of an electronic document to the email address indicated the applicant. At the same time, the registering authority is obliged, upon appropriate request, to provide the applicant with a document confirming the fact of making an entry in the state register in written (paper) form (clause 3, article 11 of Law N 129-FZ).
STAGE 4. PAYMENT TO THE SHARE PARTICIPANT THAT LEFT THE LLC (PART OF THE SHARE)
4.1. Calculation of the actual value of the share (part of the share) to be paid to the participant who left the LLC
The share of a participant withdrawing from the company passes to the LLC at the moment the company receives the relevant application from the participant (clause 6.1, clause 2, clause 7, article 23 of the Law on LLC). In this case, the company is obliged to pay the participant the actual value of his share (part of the share) (clause 6.1, article 23 of the LLC Law).
Based on judicial practice, the obligation of an LLC to pay the actual value of a share does not depend on the fulfillment by the participant of the obligations of the founder. At the same time, a member of the company has the right to fully dispose of only the paid part of his share (clause 3 of article 21 of the LLC Law).
Determination of the actual value of a share (part of a share)
The actual value of the participant's share corresponds to the part of the value of the net assets of the company, proportional to the size of this share (paragraph 2, clause 2, article 14 of the LLC Law, clauses "c", clause 16 of Resolution N 90/14).
The cost is determined according to the LLC's financial statements for the last reporting period preceding the day the application for withdrawal from the LLC was submitted (paragraph 1, clause 6.1, article 23 of the LLC Law).
The LLC Law does not specify what kind of reporting should be used for the purposes of determining the true value of the share. Accounting legislation provides for several types of reporting: monthly, quarterly and annual (clause 3, article 14 of the Law on Accounting, clause 29 of the Regulation on Accounting and Reporting). For the preparation of financial statements, the reporting date is the last calendar day of the reporting period (clause 37 of the Regulation on Accounting and Reporting).
Based on the foregoing, for the purposes of determining the actual value of the share, the accounting statements of the LLC for the last calendar month preceding the day of filing an application for withdrawal from the company should be used.
If an LLC applies a simplified taxation system, then in the event of a dispute about the reliability of accounting data, on the basis of which the actual value of the share of a participant who has withdrawn from the company is determined, such information must be confirmed tax authorities, independent examination or other evidence.
According to judicial practice, the actual value of a participant's share is determined on the basis of the company's balance sheet, primary accounting documents, as well as other documents confirming the company's property.
Example of calculating the actual value of a share
For example, the authorized capital of an LLC is 10,000 rubles. and divided among five participants into shares, each with a nominal value of 2,000 rubles. The net asset value of LLC is 30,000 rubles.
To determine the actual value of a share (part of a share) of a participant, when calculating the value of the net assets of an LLC, the method of estimating the value of the net assets of joint-stock companies is used.
The procedure for estimating the value of net assets of joint-stock companies was approved by the Order of the Ministry of Finance of Russia, the Federal Commission for the Securities Market of Russia dated January 29, 2003 N 10/03-6/pz.
One of the participants decided to leave the society.
The actual value of this participant's share is calculated as follows:
2 000 rub. (nominal value of the participant's share) x 30,000 rubles. (net asset value of LLC) / 10,000 rubles. (authorized capital of LLC).
Thus, the actual value of the participant's share is 6,000 rubles.
When calculating the actual value of a share, the courts take into account:
market value real estate reflected on the balance sheet of LLC;
The book value of the property, if it is impossible to determine its market value;
The market value of fixed assets, both movable and immovable property, reflected on the balance sheet of the LLC;
The market value of real estate objects reflected on the balance sheet of the company, and the value of other assets reflected on the balance sheet.
When calculating the actual value of the share of a participant who submitted an application for withdrawal, VAT is not subject to exclusion.
The procedure for determining the actual value of the share to be paid to a member of the company in connection with his withdrawal from the LLC does not provide for the use of decreasing or increasing coefficients.
According to court practice, the actual value of a share is determined according to the financial statements of the company and does not exclude the determination of the size of the company's net assets based on their market value.
It should be noted that there is a judicial act, according to which the value of the share is determined according to the financial statements, and not from the market value of the assets of the LLC.
The size of the actual value of the share in the event of a participant's withdrawal from the company cannot be established by agreement between the company and its participant.
Source of payment of the actual value of the share (part of the share)
The actual value of the share (part of the share) in the authorized capital of the LLC is paid out of the difference between the value of the net assets of the LLC and the amount of its authorized capital (paragraph 2, clause 8, article 23 of the LLC Law).
If such a difference is not enough to pay the actual value of the share (part of the share), the LLC is obliged to reduce the authorized capital by the missing amount (paragraph 2, clause 8, article 23 of the LLC Law).
If a decrease in the authorized capital of the company may lead to its size becoming less than the minimum amount of the authorized capital of the company, determined in accordance with the Law on LLC, the actual value of the share (part of the share) is paid from the difference between the value of the net assets of the company and the specified minimum amount of the authorized capital companies (paragraph 3, clause 8, article 23 of the LLC Law).
If the LLC has an obligation to pay the actual value of another share (part of a share) or other shares (parts of shares) owned by several participants, this amount is paid from the difference between the value of the net assets of the LLC and the minimum amount of its authorized capital in proportion to the size of the shares (parts of shares) belonging to the participants (paragraph 3, clause 8, article 23 of the LLC Law).
Based on judicial practice, when calculating the value of the net assets of an LLC, in order to determine the actual value of a share (part of a share) of a participant, the methodology for estimating the value of the net assets of joint-stock companies is used.
The procedure for assessing the value of net assets joint-stock company approved by the Order of the Ministry of Finance of Russia, the Federal Securities Commission of Russia dated January 29, 2003 N 10 / 03-6 / pz.
According to court practice, when calculating the actual value of a share, the net assets of an LLC do not include the value of the assets of its subsidiaries.
In practice, a participant in a company does not always agree with a certain company on the size of the actual value of his share (part of a share). In accordance with the explanations given in paragraphs. “c”, paragraph 16 of Resolution N 90/14, the court checks the validity of his arguments, as well as the objections of the company on the basis of the evidence presented by the parties, including the conclusion of the examination carried out in the case.
When a participant contests the size of the actual value of the share determined by the LLC, the burden of proving the size of the share lies with the defendant, i.e. OOO.
In the event of the death of a participant who has withdrawn from the company, his heirs are not deprived of the right to dispute the amount of the actual value of the share determined by the company, if at the time of the participant's death the period for paying the value of the share has not expired.
4.2. Payment to a participant who left the LLC, the actual value of the share (part of the share)
The company pays to the participant who left the LLC the actual value of the entire share or part of the share if the share is not paid in full (clause 6.1 of article 23 of the Law on LLC, clause "d" clause 16 of Resolution N 90/14).
Form of payment of the actual value of the share (part of the share)
Cash (Clause 6.1, Article 23 of the LLC Law);
Issuance in kind of property of the same value with the consent of the participant (clause 6.1 of article 23 of the LLC Law).
Payment of the actual value of the share through the provision of services by the company to the participant is not allowed.
The form of payment of the actual value of the share is determined by the company. If the company decides to pay the actual value of the share with property, then it needs to obtain the consent of the participant for such a payment (paragraph 1, clause 6.1, article 23 of the LLC Law, clauses "e" clause 16 of Resolution N 90/14).
It should be noted that in the event of a participant's withdrawal from the company, the latter has the right, and is not obliged, to give such a participant property in kind in payment of the actual value of the share.
Deadline for payment of the actual value of the share (part of the share)
The specified period is no more than three months from the day the corresponding obligation arises, unless otherwise provided by the charter(paragraph 2, clause 6.1, article 23 of the LLC Law).
The charter of an LLC may establish a different period for payment of the actual value of the share. A provision providing for a different payment period may be included in the charter when the company was founded or introduced by decision of the general meeting of participants, adopted by all participants unanimously (paragraph 2, clause 6.1, article 23 of the LLC Law).
The exclusion from the charter of the relevant provision is carried out by a decision of the general meeting of participants, adopted by ⅔ of the total number of votes of the LLC participants (paragraph 2, clause 6.1, article 23 of the LLC Law).
Restrictions on payment of the actual value of a share (part of a share)
The company is not entitled to pay the actual value of the share (part of the share) in the authorized capital of the company or to issue in kind property of the same value if:
At the time of these payments or issuance of property in kind, it meets the signs of insolvency (bankruptcy) in accordance with the federal law on insolvency (bankruptcy);
As a result of these payments or the issuance of property in kind, the indicated signs will appear in the company (paragraph 4, clause 8, article 23 of the LLC Law).
According to court practice, a company is not entitled to pay the actual value of a share if its net assets are negative.
If the company is not entitled to pay the actual value of the share in the authorized capital of the company or to issue property of the same value in kind, the company, on the basis of a written application submitted no later than within three months from the date of expiration of the period for payment of the actual value of the share by the person whose share was transferred to the company, is obliged to restore him as a member of the company and transfer to him the appropriate share in the authorized capital of the company (paragraph 5, clause 8, article 23 of the LLC Law).
In doing so, the following should be borne in mind. The fact that the LLC has signs of insolvency (bankruptcy) in itself is not a circumstance that excludes the possibility of the court recovering the actual value of the share at the claim of the participant, but may be an obstacle to its payment if at the time of execution judicial act with respect to society, a monitoring procedure will be introduced (paragraph 11 of the Recommendations of the Scientific Advisory Council under the Federal Antimonopoly Service of the Urals District dated March 31 - April 01, 2010).
At the same time, the writ of execution issued on the basis of the decision of the arbitration court on the obligation to pay the former participant the actual value of the share is subject to execution regardless of whether the company shows signs of bankruptcy as a result of the execution of this writ of execution (question 24 of the Recommendations of the Scientific Advisory Council on application of the norms of corporate legislation and the norms of the legislation on insolvency (bankruptcy) approved by the Presidium of the Federal Antimonopoly Service of the Volga District on April 26, 2010).
Consequences of non-payment (late payment) of the LLC of the actual value of the share (part of the share) to the withdrawing participant
The legislation does not directly establish the consequences of non-payment (late payment) of the LLC of the actual value of the share (part of the share) to the withdrawing participant. According to judicial practice, in the event of late payment, along with the principal amount of the debt, interest may be collected from the company for the unlawful use of other people's funds (Article 395 of the Civil Code of the Russian Federation).
In addition, in accordance with judicial practice, an agreement between a company and its participant cannot establish a penalty for late payment of the actual value of the share in the event of the participant's withdrawal from the company.
In case of non-payment of the actual value of the share (part of the share), the participant's claim for compensation for moral damage is not subject to satisfaction, as it does not comply with Art. 151 of the Civil Code of the Russian Federation.
In accordance with the materials of judicial practice, the refusal of a participant who has withdrawn from the company to pay him the actual value of the share is lawful and is recognized as debt forgiveness.
In practice, there are cases when one of the participants submits an application for withdrawal from the Company, and the remaining participants withdraw assets and apply for liquidation of the Company. It is very difficult to counteract such actions in practice. But even if after the trial you have a writ of execution in your hands to recover a certain amount of money from the Company, it is quite difficult to execute it. The bailiff, due to the company's lack of any assets, will not be able to execute the court decision. What to do next? Usually, a bankruptcy petition is filed, an arbitration manager is appointed, who comes to the Company, gets acquainted with all transactions, disputes them if possible, and tries to return the money back to the Company. It is also possible to bring the participants of the company to subsidiary liability. But for some reason, it was with the former members of the Society that the legislation played a cruel joke. Former member Companies cannot file for bankruptcy.
According to paragraph 2 of Article 3 of the Federal Law "On Insolvency (Bankruptcy)", a legal entity is considered unable to satisfy the claims of creditors for monetary obligations and (or) fulfill the obligation to make mandatory payments if the relevant obligations and (or) obligation are not fulfilled by it within three months from the date they were due.
Clause 2 of Article 6 of the said Law establishes that bankruptcy proceedings may be initiated by an arbitration court, provided that the claims against the debtor - legal entity in the aggregate amount to at least one hundred thousand rubles.
In accordance with paragraph 2 of clause 2 of Article 4 of the Bankruptcy Law, to determine the presence of signs of bankruptcy of the debtor, the following are taken into account: the amount of monetary obligations, including the amount of debt for the transferred goods, work performed and services rendered, the amount of the loan, taking into account interest payable by the debtor, the amount debt arising as a result of unjust enrichment, and the amount of debt arising as a result of damage to the property of creditors, with the exception of obligations to citizens to whom the debtor is liable for causing harm to life or health, obligations to pay severance pay and remuneration of persons working on employment contract, obligations to pay remuneration to the authors of the results of intellectual activity, as well as obligations to the founders (participants) of the debtor arising from such participation.
According to paragraph 8 of Article 2 of the Bankruptcy Law, the founders (participants) of a legal entity do not acquire the status of a bankruptcy creditor in insolvency (bankruptcy) proceedings.
From these rules of law it follows that the founders (participants) of a legal entity (debtor) in legal relations associated with such participation cannot be its bankruptcy creditors in a bankruptcy case, therefore, the claims of the founder (participant) of the debtor for obligations arising from such participation , are not subject to consideration in a bankruptcy case, and as a result, they cannot be the basis for initiating such a case. (Decision of the Tenth Arbitration Court dated January 18, 2012 in case N A41-38192 / 11)
In practice, unscrupulous members of the Company take advantage of this.
The liquidator may not consider the claims and may not include them in the register. In such a situation, it is necessary to file an application to challenge the inaction of the liquidator, expressed in evading consideration of the creditor's claims, from our practice. If the Company is liquidated, then it will be practically impossible to return the money invested in the Company. Therefore, after filing an application for withdrawal from the Society, it is necessary, as they say, to keep abreast and turn to a lawyer in time.
The material was prepared by lawyer Silkin A.A., and lawyer Remidovsky R.A.
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