Current legislation, namely Federal Law No. 14 on LLC, allows you to change the list of participants in the company, which can be a legal entity or an individual.
Their numbers can decrease or increase. The reasons for this procedure may be the economic growth of the company and changes in the organizational structure.
It is necessary to understand the difference in the concepts of “founder” and “participant”.
The founder is the person (organization) that formalized the decision to create an enterprise or the minutes of the meeting of founders.
A participant is any owner of a share of the company’s assets who acquires a share at the time of its registration (founder) or after the procedure.
Changes in the composition of participants should also affect the provisions of the current Charter of the enterprise.
What has changed in 2021
On July 23, 2020, an important clarification for suppliers was published on the FAS website about the procedure for submitting a decision on approval of a major transaction.
Do not provide it in the second part of the application, since it is sent by the electronic platform along with other documents that were provided during registration in the Unified Information System. If the amount of the contract being concluded is greater than the amount specified in this document, then the supplier can:
- Change it through the EIS when submitting an application.
- Provide in the second part a document that corresponds to the contract price.
In the same letter from the FAS with an explanation, another important conclusion was made:
IMPORTANT!
44-FZ provides comprehensive requirements for providing a decision on the approval of a major transaction, and the presentation of any additional requirements for the design and content of such a decision is excessive and unlawful.
| on providing a decision on approval of a major transaction |
Let us recall that on December 25, 2019, the Supreme Court, in a review of judicial practice on certain issues of application of legislation on business companies, concluded that it is necessary to notarize decisions in LLCs, including those consisting of a single participant. Learn more about how these findings impacted major deal approval decisions.
What kind of document is this
A transaction is considered major if it goes beyond the boundaries of ordinary business activities and is associated with the purchase or sale of property of a joint-stock company (more than 30% of shares) or involves the transfer of property for temporary use or under a license (clause 1 of Article 46 No. 14-FZ). Moreover, in both cases, the price of such transactions must be at least 25% of the book value of the assets of the limited liability company (LLC).
If required, such agreements are approved in accordance with the legislation of the Russian Federation (14-FZ, 174-FZ, 161-FZ, etc.) or according to the rules contained in the Charter of the procurement participant. In other options, this is done by a representative of the supplier authorized to obtain accreditation for the ETP.
In an LLC, this procedure is within the competence of the general meeting. If an organization has a board of directors, then, on the basis of the Charter, the adoption of agreements on such operations may be transferred to its jurisdiction.
IMPORTANT!
A decision on approving a major transaction for an individual entrepreneur is not necessary! It can only be registered as an LLC.
On June 26, 2018, the Supreme Court issued a resolution of the Plenum, in which it examined the main disputes regarding the approval of major transactions and agreements in which there is an interest.
conclusions
The applicant is a full member of the company from the date of making the corresponding entry in the unified state register of legal entities. The papers will be ready after 5 days from the date of application to the tax office.
After receiving them, it is necessary to send a notification to the bank about the changes that have occurred in the size of the company’s assets and the composition of its participants.
Then you should monitor obligations under contracts with counterparties. If there are outstanding debts, all suppliers are notified of the changes.
When is such approval needed in the contract system?
To start participating in government procurement, you must register in the Unified Information System. To do this, they provide a general package of documents, which includes consent to the transaction. Please note: this is always required, including when the purchase is considered small. As for suppliers who were accredited before December 31, 2018, they are required to register in the Unified Information System by the end of 2020. Both will need an up-to-date sample decision on a major transaction 44-FZ.
Information must also be included in the second part of the application if required by law or constituent documents, and also when both the security for the contract or application and the contract itself will be large for the participant. In the absence of this information, the candidate may be rejected at any stage before the conclusion of the contract. The customer’s auction commission is responsible for checking the data (clause 1, part 6, article 69 No. 44-FZ).
IMPORTANT!
Individual entrepreneurs, unlike LLCs, are not classified as legal entities. As a result, they are exempt from the obligation to submit such a document for accreditation to the ETP.
Features of compilation
The text of the decisions is divided into 2 parts. Let's look at the positions of these parts:
- Statement . The reasons for forming the decision and the goals that are pursued when making it are stated here. The solution may be an addition to the main document. In this case, you need to write down the name, number and name of the main document.
- Administrative . The name of the decision-making structure is recorded here. This is followed by the word “DECIDED”. It is reflected on the next line. It is necessary to record the performer, the validity period of the document and the deadline for its execution.
The decision must be signed by the chairman and secretary of the structure that made the decision. An A4 sheet is used to fill out the document.
Features for approving a major transaction with a single founder
LLCs, in which there is only one founder acting as the sole executive body, are not required to draw up such a document (Clause 7, Article 46 No. 14-FZ).
But in paragraph 8 of part 2 of Art. 61 No. 44-FZ states that in order to be accredited on the ETP, participants in an electronic auction must submit such information regardless of their form of ownership. Otherwise, it is impossible to take part in the auction.
It is not necessary to include this information in the second part of the application. It is considered that if the supplier has not provided such data, then the contract does not fall into this category. But as practice shows, even the decision of a single participant to approve a major transaction is added to the general package of documents just in case. It is important not to make a mistake here, otherwise there is a risk of the auction participant being rejected due to the fact that he provided false information. Such cases are disputed by the FAS, but this procedure increases the period for concluding the contract.
Decision to create a legal entity - sample
Now that we have figured out exactly what the decision to create a company should look like, let’s try to draw it up using the example of opening an LLC.
Example
Ivanov S.I. (passport series 4000 No. 123456, issued by the 10th police department of the Vyborg district of St. Petersburg on 10/01/2005, subdivision code 123-456, registered at St. Petersburg, Vozdushnaya st., 1, apt. 123) decided to open an LLC to engage in wholesale trading activities.
He is the sole founder. The address of the LLC will be a rented warehouse space (190000, St. Petersburg, Vozdushnaya St., 15). The authorized capital (AC) is 50,000 rubles. The minimum possible amount of authorized capital is 10,000 rubles. The capital is paid in cash. If the founder wants to contribute property as a charter capital, this can only be in excess of the minimum prescribed charter capital (clause 2 of article 66.2 of the Civil Code of the Russian Federation). He assumes the responsibilities of the general director of the company.
Having all the necessary information, we issue a decision, a sample of which is presented below:
What to pay attention to when drafting: form and content
There is no single model of approval in the legislation of the Russian Federation, but clause 3 of Art. 46 No. 14 of the Federal Law explains that such a document requires the following data:
- A person who is a party to an agreement and a beneficiary.
- Price.
- Subject of the agreement.
- Other significant conditions or the procedure for determining them.
The beneficiary may not be specified if it is impossible to determine it at the time of approval of the document, as well as if the contract is concluded based on the results of tenders.
At the same time, Art. 67.1 of the Civil Code of the Russian Federation establishes that the decision made by the executive bodies of an LLC must be confirmed by notarization, unless another method is provided for by the Charter of such a company or by a resolution of the general meeting, which is adopted unanimously by the participants.
Clause 4 art. 181.2 of the Civil Code of the Russian Federation establishes a list of information that must be reflected in the decision of the in-person meeting of the founders. The protocol requires the following information:
- date, time and place of the meeting;
- persons who participated in the meeting;
- voting results for each item on the agenda;
- persons who counted the votes;
- persons who voted against the approval of the agreement and demanded that this be recorded.
Sometimes customers reject a participant if the decision indicates the total amount of approved transactions, and not each agreement separately. Therefore, we recommend using the wording “Approve transactions on behalf of the Limited Liability Company “_______________” based on the results of the procurement procedures for goods, works, and services. The amount of each such transaction should not exceed ____________ (____________) rubles 00 kopecks.”
IMPORTANT!
The rules regarding approval do not apply to companies that consist of one participant who simultaneously performs the functions of an executive body (clause 7 of Article 46 No. 14-FZ).
To pass accreditation and participate in bidding, we recommend using the sample decision on a major transaction 44-FZ both for a company that consists of one founder and for a meeting of participants.
Types of solutions
Solutions are published by almost any company, regardless of its size. On their basis, divisions and non-profit organizations can be created, and changes can be made to the charter.
About liquidation of companies
Management may, for some reason, decide to liquidate the company. It must be reflected in the administrative document. The decision, in this case, will be legally valid only if a number of conditions are met. In particular, the proposal for liquidation must be supported by all the founders of the company. All solution columns must be filled out correctly. The document contains these provisions:
- Protocol number.
- Company name.
- Date and time of compilation.
- Information about the participants who made the decision (full name of the general director, discussion participants, chairman, secretary).
The “Listeners” section should reflect these provisions:
- Name of the LLC, date of its registration, legal address.
- Persons present when the decision was announced, full name of the chairman and 2 members of the commission.
- The name of the organization that is being liquidated.
- List of persons who were present when the decision was announced to transfer cases to the liquidation commission.
The decision will not be valid without the signature of the general director, chairman and members of the commission. A wet stamp must be placed on the document.
About the issue of shares
Shares are issued if a joint stock company is formed. Release is carried out solely on the basis of a decision. It needs to be approved. The document reflects this information:
- JSC name.
- Number and value of shares.
- Date of decision.
- Effective date of the decision.
- Legal address of the company.
- Information about the general director.
The document must contain data on the characteristics of the shares: their type, category, value, quantity, rights of buyers of the shares. It is also necessary to indicate the details by which the shares will be paid.
About the creation of an NPO
An NPO is also created on the basis of a decision. The founders of the company can be legal entities and legally capable individuals. The decision records this information:
- Full name of the founders or name of the legal entity.
- Full name of invited participants.
It is also required to reflect the name of the NPO being created and its legal address. Information about the composition of the collegial body is recorded.
On approval of the liquidation balance sheet
The liquidation balance is also approved based on the decision. The approval is carried out when the period for submitting creditors' claims to the company has expired. The decision contains this information:
- The composition of the property of the organization that is being liquidated.
- Claims brought by creditors, the results of their consideration.
The document must contain formal information: information about shareholders, name of the organization, decision number.
