The participant’s property is used in the activities of the LLC

Payment terms under loan agreements

The Central Bank, in its letter dated March 27, 2021 No. IN-03-31/32, indicated that if the last day of the loan payment period falls on a non-working day, then the last date is considered such a non-working day (except Saturday and Sunday).
However, the Supreme Court pointed out that the Central Bank does not have such powers and its letters cannot be above the law. Failure to pay the payments stipulated by the contract during the period from March 30 to April 3, 2021 is not a delay in the fulfillment of obligations, and the postponement of the deadline for fulfilling an obligation to the next next business day cannot be considered as a violation of the deadlines for fulfilling obligations.

Penalty and writs of execution during the moratorium period

One of the consequences of the introduction of a moratorium is the cessation of accrual of penalties (fines and penalties) and other financial sanctions for non-fulfillment or improper fulfillment by the debtor of monetary obligations and mandatory payments for claims that arose before the introduction of the moratorium.

In addition, the introduction of a moratorium against the debtor also means that it is impossible for the creditor to obtain compulsory execution by presenting the writ of execution directly to the bank. However, it is worth considering that the moratorium applies only to the most affected sectors of the economy

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If a participant leaves the founders, the Company is obliged to pay him the actual (market) value of the share. However, the market value of a share is not always positive. It is not uncommon for the nominal value to be set at 5,000 rubles, but the market value is zero.

As a rule, the participant sends to the address of the LLC a notarized statement of withdrawal from the company and a demand for payment of the actual value of the share. At the same time, the size of this share is usually quite approximate. Accounting statements are required to determine the exact size. Due to the fact that there is always a dispute about the amount, the withdrawing participant sues the company

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How is the fair value of a share calculated?

The actual value of a share or part of a share in the authorized capital of a company is paid out of the difference between the value of the company's net assets and the size of its authorized capital.

The actual value of the share of a company participant corresponds to part of the value of the company’s net assets, proportional to the size of its share (Clause 2 of Article 14 of the Law on Limited Liability Companies)

For example:

500,000 (net assets) – 10,000 (authorized capital) = 490,000 Share of the withdrawing participant – 50% Accordingly, 490,000 – 50% = 245,000 rubles

However, if the Net Assets are less than the authorized capital or have a negative balance, then the actual value of the share is 0.

Within what period is the company obliged to pay the cost of the share?

The company is obliged to pay to the company participant who filed an application to leave the company the actual value of his share in the authorized capital of the company, determined on the basis of the company’s financial statements for the last reporting period preceding the day of filing the application to leave the company, or with the consent of this company participant to issue to him in kind property of the same value or, in the case of incomplete payment of his share in the authorized capital of the company, the actual value of the paid part of the share.

clause 6.1 art. 23 of the Law “On Limited Liability Companies”

The procedure for voluntary withdrawal from an LLC

In case of disagreement with business partners or for other reasons, one of the founders, if this does not contradict the organization’s charter, may voluntarily leave the LLC. The procedure is carried out in the following order:

1. A free-form application addressed to the general is drawn up. director of the enterprise. Since 2021, it is mandatory to have a document certified by a notary. The text must contain the applicant's full name, passport details, information about place of residence. If the participant is a legal entity. person, indicate registration information.
2. Upon receipt of the application, the participant’s share is transferred to the disposal of the company. This decision is made at an extraordinary meeting of the founders and recorded in the minutes.
3. In accordance with Federal Law No. 14, a limited liability company must make appropriate changes to the registration documents within a month after receiving the application. Information in the form of a notarized form P14001 is transferred to the branch of the Federal Tax Service. This document is accompanied by an application for retirement and minutes of the meeting of LLC participants.
4. Within 3 months after the transfer of the share to the organization, the withdrawing participant must be paid compensation in the amount of DSD. Payment can be made in cash or non-cash form. Reimbursement of the share in kind (property) is permitted.
5. The share placed at the disposal of the LLC is distributed proportionally among the remaining participants, bought out by one or more founders, and sold to third parties, unless this is prohibited by the charter. The decision on the distribution of shares is formalized by application P14001. When the buyer is another organization and the acquired part is more than 20% of the authorized capital, information about this event is published in the State Bulletin. registration". If the share was not distributed within the established time frame, then it is redeemed and the authorized capital is reduced by the corresponding amount.

Federal Law No. 14 specifies situations when a withdrawing participant may be refused payment of the actual value of the share. For example, if after paying the DSD the company faces bankruptcy or if the company has signs of financial insolvency. In addition, if on the date of disposal the participant did not transfer the full contribution to the authorized capital, then the amount of DSD will be proportionally reduced. If the participant did not have time to make the contribution at all, then he is not paid a share of the cost.

Arbitration court – payment of the cost of the share

Along with the statement of claim for recovery of the actual value of the share, a request for the collection of financial statements is also submitted.

In most cases, the court can independently evaluate the submitted statements and determine the value of the shares. However, plaintiffs and defendants often have disputes about the date of reporting.

The fact is that, in accordance with the law “On Limited Liability Companies,” the actual value of the share must be determined on the basis of the company’s financial statements for the last reporting period preceding the day the application was submitted.

Therefore, one party interprets this paragraph as “quarterly reporting”, the other as “annual reporting”, depending on its benefit.

But judicial practice interprets this paragraph unambiguously:

According to Article 3 of the Federal Law dated December 6, 2011 No. 402g-FZ “On Accounting,” the reporting period is the period for which accounting (financial) statements are prepared.

In Art. 15 of the Federal Law of December 6, 2011 No. 402g-FZ “On Accounting” states that the reporting period for annual accounting (financial) statements (reporting year) is the calendar year - from January 1 to December 31 inclusive, with the exception of cases of creation, reorganization and liquidation of a legal entity.

Interim financial statements are prepared for the quarter. The reporting period for interim accounting (financial) statements is the period from January 1 to the reporting date of the period for which the interim accounting (financial) statements are prepared, inclusive.

According to the amendments made to the Federal Law “On Accounting” dated December 6, 2011. Federal laws dated July 23, 2013 No. 251-FZ and July 2, 2013 No. 185-FZ, from January 1, 2013, the obligation to prepare and submit quarterly balance sheets to the tax office was canceled, and therefore, the calculation of the actual value of the share must be carried out on the basis of the balance sheet of the defendant for the year - the latest financial statements.

Decision of the Moscow Arbitration Court dated May 14, 2018 in case A40-11574/2018

Mandatory accounting entries when a participant leaves the Company

Each legally significant action of the Company is necessarily accompanied by accounting entries. That is, recording each significant action in a journal and a number of forms established by the state. Postings are used for reporting when submitted to the Tax Inspectorate. The participant’s independence from the method of deduction of the share claimed by him (in monetary terms or in property) obliges him to record the transactions. Each of them has its own code. In the classic exit option (if the reason is not conflicts related to the enterprise’s debts, which are officially recorded by the Tax Authorities), three entries are required:

• D 81 - K 75;

Posting reflecting the Actual Value of the Share of the withdrawing participant. The posting does not include the entire asset valuation algorithm - only the final version of the calculations with reference to the relevant documents;

• D 75 - K 68;

A posting containing data on personal income tax deductions from a participant’s income upon leaving the company. If upon leaving the participant declares that he is entitled to any allowances and additional payments, personal income tax is recalculated and is also reflected in the entry;

• D 75 - K 51.

Data on the fact of payment of the Actual Value of the Share.
This is the final posting regarding the member withdrawal process. If it is necessary to record other movements in the company’s account related to the redistribution of shares and other payments not specified in the three basic entries, they are reflected in the chronology of payments and coded accordingly. It is important to note that the distribution of Shares is of two types: through the share of the remaining participant (D 51 (50) K 75 (FL))

and at the expense of the enterprise’s net profit
( D 84 K 81) .

Exit of a co-founder: accounting issues

The withdrawal of a co-founder from the company, settlements with him and the distribution of shares between the remaining co-founders is recorded by the following entries:

Reduction in size after updated reporting

In most cases, filing updated financial statements does not lead to a decrease in the actual value of the share. The actual value of the share of the withdrawing participant is not always positive.

Refusing to satisfy the stated requirements, the arbitration courts, guided by paragraph 39 of the Regulations on changes in financial statements, paragraph 10 of the Accounting Regulations “Correction of errors in accounting and reporting”, approved by order of the Ministry of Finance of the Russian Federation dated June 28, 2010 N 63n, rightfully proceeded from the absence legal grounds for taking into account when considering the case the information reflected in the updated financial statements, since changes to the financial statements compiled as of 03/31/2011 were made by Mashkomplekt-Region LLC on 06/18/2012, that is, after the deadline for its approval provided for by current legislation.

Resolution of the Arbitration Court of the East Siberian District dated February 20, 2016 N F02-7624/2015 in case N A33-18697/2014

Accounting statements are prepared by the company itself, the validity of the size of the share payable by the company is checked by the court only if the withdrawing participant disagrees with this amount, while the company does not have the right to raise objections based on the unreliability of its accounting, the data of which, in addition, is transferred to the tax authority.

Required documents

• A copy of the enterprise registration certificate.
• Copy of the Charter.
• Structure of the authorized capital: -Number of ordinary shares; -Number of preferred shares; -Nominal value of the share; -Tabular data on shareholders (interest holders) (with shares of 5% and above):
• History of the enterprise.
• Business plan (if available).
• Copies of prospectuses, reports on the results of issuing securities (for joint-stock companies), agreements for the sale and purchase of shares.
• Types of activities and organizational structure of the enterprise.
• Accounting data for 2021. -Annual balances with applications 2,3,4,5.
• Explanation (decoding) for the most important balance sheet accounts: -Fixed assets: name, inv. No., date of putting on the balance sheet, initial and residual value; -Profitable investments in material assets; -Financial investments; -Intangible assets; -Borrowed funds; -Long-term financial investments; - Accounts receivable and payable: breakdown, date of occurrence; - Inventories;

Documents for assets.

• Real estate (land plots): Cadastral passports and Certificates of registration of rights (Lease agreements, Extracts from the Unified State Register of Real Estate).
• Real estate (detached buildings): Documents for land + Certificate of registration of title to the building (Extracts from the Unified State Register of Real Estate) and Technical passport for the building. Data on connected utilities (electricity, gas, water, heat).
• Real estate (built-in premises): Certificate of registration of the right to the premises (Extracts from the Unified State Register of Real Estate) and Technical passport for the premises.
• Equipment. Technical data sheets for the most complex and expensive units, production dates, purchase contracts.
• Vehicles. Vehicle passports, certificates of mileage (hours), or PSM.
• Latest auditor's report (if an audit was conducted)
• Information about the presence of subsidiaries;

Income approach

• Forecast of income and expenses for 3 years;
• Structure of cash receipts by main types of activities quarterly for the last year;
• Sales forecast (whether it is possible to increase production and how); Product range and volume (data on products, how many were produced, how many were sold) for the last year;
• Information on the prices at which manufactured goods are sold or services are provided (catalogs, price lists);
• Main consumers of manufactured products;
• Number and actual employment of personnel;
• The degree of utilization of production capacities (are there mothballed capacities and the planned time for their commissioning);
• Future investments in fixed assets (capital investments).

Arbitration court – payment of the cost of the share

Along with the statement of claim for recovery of the actual value of the share, a request for the collection of financial statements is also submitted.

In most cases, the court can independently evaluate the submitted statements and determine the value of the shares. However, plaintiffs and defendants often have disputes about the date of reporting.

The fact is that, in accordance with the law “On Limited Liability Companies,” the actual value of the share must be determined on the basis of the company’s financial statements for the last reporting period preceding the day the application was submitted.

Therefore, one party interprets this paragraph as “quarterly reporting”, the other as “annual reporting”, depending on its benefit.

But judicial practice interprets this paragraph unambiguously:

According to Article 3 of the Federal Law dated December 6, 2011 No. 402g-FZ “On Accounting,” the reporting period is the period for which accounting (financial) statements are prepared.

In Art. 15 of the Federal Law of December 6, 2011 No. 402g-FZ “On Accounting” states that the reporting period for annual accounting (financial) statements (reporting year) is the calendar year - from January 1 to December 31 inclusive, with the exception of cases of creation, reorganization and liquidation of a legal entity.

Interim financial statements are prepared for the quarter. The reporting period for interim accounting (financial) statements is the period from January 1 to the reporting date of the period for which the interim accounting (financial) statements are prepared, inclusive.

According to the amendments made to the Federal Law “On Accounting” dated December 6, 2011. Federal laws dated July 23, 2013 No. 251-FZ and July 2, 2013 No. 185-FZ, from January 1, 2013, the obligation to prepare and submit quarterly balance sheets to the tax office was canceled, and therefore, the calculation of the actual value of the share must be carried out on the basis of the balance sheet of the defendant for the year - the latest financial statements.

Decision of the Moscow Arbitration Court dated May 14, 2018 in case A40-11574/2018

Exit of the founder without payment of the share

From the moment the participant’s withdrawal application is accepted and considered, his share becomes the property of the Company. Accordingly, a participant has the right to claim his/her allotted portion of the enterprise’s assets, which is calculated as a percentage (or fraction), which depends on the amount of funds contributed by the participant upon joining the company. From the moment of its entry, the Company could redistribute shares based on changes in the entry or exit of other participants, therefore the calculation of the share due for payment is calculated at the time of exit.

In some circumstances, after alienation of a share to the Company, a participant may be denied payment of his interest. The most common case is the presence of risks of bankruptcy of the enterprise,

when, in a high degree of probability, the enterprise will have to cover the costs associated with the bankruptcy procedure, the payment of wages to workers, the repayment of tax arrears and other obligations of the Company.

There are certain subtleties and nuances: an assessment of the company’s assets is required. If at the time of exit the value of the assets significantly exceeds the costs of the bankruptcy procedure and all the ensuing costs, then after an expert assessment the participant has the right to claim part of the share allotted to him.

The participant can also independently refuse to pay the share.

It makes sense to voluntarily refuse in cases where the composition of the founders changes at the very beginning of the activity and, in fact, there is nothing left to divide except the shares contributed upon entry. The authorized capital for most enterprises is 10,000 rubles. Exit costs (including notarized documents) are slightly cheaper. Therefore, in order to avoid wasting time, when submitting an application for withdrawal, the notary records the refusal to pay the share to the participant and confirms consent to the alienation of the share to the Company.

Reduction in size after updated reporting

In most cases, filing updated financial statements does not lead to a decrease in the actual value of the share. The actual value of the share of the withdrawing participant is not always positive.

Refusing to satisfy the stated requirements, the arbitration courts, guided by paragraph 39 of the Regulations on changes in financial statements, paragraph 10 of the Accounting Regulations “Correction of errors in accounting and reporting”, approved by order of the Ministry of Finance of the Russian Federation dated June 28, 2010 N 63n, rightfully proceeded from the absence legal grounds for taking into account when considering the case the information reflected in the updated financial statements, since changes to the financial statements compiled as of 03/31/2011 were made by Mashkomplekt-Region LLC on 06/18/2012, that is, after the deadline for its approval provided for by current legislation.

Resolution of the Arbitration Court of the East Siberian District dated February 20, 2016 N F02-7624/2015 in case N A33-18697/2014

Accounting statements are prepared by the company itself, the validity of the size of the share payable by the company is checked by the court only if the withdrawing participant disagrees with this amount, while the company does not have the right to raise objections based on the unreliability of its accounting, the data of which, in addition, is transferred to the tax authority.

Is receiving the actual value of the share considered income?

Due to the absence of special rules establishing the procedure for determining the tax base when paying a company participant the actual value of his share upon leaving the company, the provisions of Article 41 of the Tax Code of the Russian Federation are subject to application to disputed relations, by virtue of which the tax base is economic benefit in the form of the difference between the value of the paid share in the authorized capital of the company and the actual value of the share paid to the taxpayer upon his withdrawal from the company.

When a participant leaves the company, the contribution (contribution) (part thereof) made (acquired) by him earlier is returned to him. If property is transferred to a participant (monies are paid) within an amount equal to the contribution of this participant to the authorized capital or equal to the amount of costs for acquiring a share in the authorized capital, the participant has no economic benefit (income), since these funds do not increase the participant’s property status.

The exception is when a participant, upon leaving the company, is paid money (property is transferred) in an amount exceeding the amount of his contribution to the authorized capital or the amount of funds spent by him on acquiring a share in the authorized capital.

This argument is confirmed in the Cassation ruling of the Supreme Court of the Russian Federation dated August 17, 2018 N 56-КГ18-22

Features of exiting an LLC upon exclusion

The procedure for exclusion from the LLC may be initiated for the following reasons:

1. If a participant, by his action or inaction, hinders the activities of the LLC. The possibility of forced exclusion is spelled out in the Law “On LLC” and in Article 67 of the Civil Code of the Russian Federation. The grounds for removing a founder from an LLC may be: forgery of documents, concluding transactions at a reduced cost, evading participation in company meetings, etc. In these cases, the founders of an LLC, whose total share in the authorized capital exceeds 10%, can submit an application for exclusion to the arbitration court. If the court decision is positive, the participant is removed from the LLC, and he is paid the value of the share.
2. If at the general meeting a decision was made to increase the size of the authorized capital, and the participant voted against or did not participate in the vote. This norm is prescribed in paragraph 2 of Art. 23 No. 14-FZ.
3. If the right of voluntary disposal is not provided for by the charter, and one of the founders wishes to sell his share (clause 2 of article 23 No. 14-FZ, clause 3 of article 93 of the Civil Code of the Russian Federation). Such an exclusion request is filed in cases where the charter prohibits or restricts the sale of a share to a third party, and at the same time the remaining participants of the LLC refuse to buy it.
4. When one of the founders has received an order from the courts to pay off creditors, and the available funds are not enough to pay off the debts

Payment of the share to the excluded participant is made in all of the above situations.