Tax consequences when joining a friendly company

For what purpose do companies undertake reorganization? What nuances need to be taken into account when reorganizing an LLC through merger?

A few words about what reorganization is. Company reorganization is a structural transformation that results in the formation or liquidation of one or more companies. Each form of reorganization has its own subtleties. Today we will talk about the reorganization of the company in the form of a merger.

Reduction during reorganization in the form of merger

When reorganizing in the form of affiliation, staff reductions are permitted only if employees are properly notified. Such notice is given to each employee personally against signature no later than two months before the date of joining.

What to do if an employee does not agree to move to a new organization? Personnel have the right to agree to new working conditions or a new position (if such a condition is provided for by the terms of affiliation).

If the notified employee does not agree with the new working conditions, or if there are no vacant positions for employment, the employees are subject to dismissal at the initiative of the company's management for layoffs.

Order on reorganization by merger

The legal basis for carrying out organizational and staffing measures with the company’s workforce will be an order for reorganization by merger. This order is issued after approval of the decision to begin the procedure and must contain a number of mandatory conditions:

1. Establishing deadlines for all personnel activities (notifying employees, transferring them to a new company, dismissal due to reduction, etc.).
2. The procedure and forms for paying severance pay to employees and calculating wages.

The reorganization order is the main personnel document for carrying out organizational and staffing measures with the employees of the enterprise. Each employee must personally sign to become familiar with the terms of the order.

Transfer of employees during reorganization in the form of affiliation

In case of agreement to work under new conditions, employees are transferred during reorganization in the form of affiliation. Activities for the transfer of personnel are carried out by the personnel service of the enterprise in strict accordance with the requirements of the law and the terms of the manager’s order.

If job responsibilities and other essential terms of the employment agreement are retained in full, it is subject to change indicating the new organization - the employer.

If an employee’s working conditions change, appropriate changes are made to his employment contract.

An order is issued regarding the transfer of each specific employee to the staff of a new enterprise, and an entry about the transfer is made in the work book.

Main difficulties you may encounter

1. Let's start with the fact that all the rules and principles are found in various legislative acts. This causes significant difficulties, since even within one stage you need to have a large amount of information. You cannot look at the action plan in one document and be guided by it. Everything is collected piece by piece in various Codes, Instructions, etc.
2. Misunderstanding of the content of specific documents can significantly slow down the execution of the LLC reorganization through merger. The fact is that not all papers are drawn up in a certain form. In some cases, the legislator gives the initiative to the legal entities themselves, but this does not mean that the absence of some important point will be ignored by the registration authority, banks, tax inspectorate, etc. You can only include all the necessary points if you have good experience in this field.
3. Failure to understand hidden issues can jeopardize the entire process. For example, if you do not budget for the possible costs of paying severance pay to employees who do not want to continue working, you will already be faced with a shortage of financial resources at the initial stage of the new enterprise’s existence.
4. It is important to strictly follow all the nuances. Let’s say that in the process of reorganizing an organization in the form of a merger, you do not personally notify creditors, but simply make a publication in the media. This approach will make the entire procedure illegal.
5. Superficial attitude to the operation. You should secure your enterprise as much as possible from the legal standpoint. This is done by including specific points in the documents being prepared. For example, minutes of a general meeting. It is important not only to outline the circle of participants, but also to analyze within its framework all the points that may complicate joining.
6. Laws are constantly changing. This especially applies to the Civil Code. At the stage of reorganization, significant changes may be made to legislation, which will certainly affect the specific content of each stage of this operation.
7. You should not only prepare the papers, but also submit them to the relevant authorities on time. There are many other nuances that only a qualified lawyer can deal with.

Only those difficulties in the reorganization of an enterprise (merger) that are textbook in nature are given. There are always implementation features related to a specific project. Even if you have a lawyer on your staff, it is quite difficult to cope with such a volume of work alone, and it is unlikely that your employee will have much experience in performing such operations. If there is no lawyer, then independent reorganization is generally undesirable. An unprepared person will take too long to understand all the vicissitudes of Belarusian legal acts.

The optimal solution is to contact specialists. Our company would be an excellent option. To make sure of this, we suggest considering the benefits of cooperation with us.

Cancellation of reorganization in the form of merger

Even if most of the measures to join a legal entity to a new organization are completed, the initiators of this procedure always have the opportunity to cancel further actions. Cancellation of reorganization in the form of merger is carried out by the same structures that made the decision on reorganization:

1. For limited liability companies - the general meeting of founders or the only participant.
2. For joint stock companies – a general meeting of shareholders.
3. For state budgetary institutions and enterprises - the executive authority of the state or subject of the Russian Federation.
4. For municipal institutions or enterprises - local authorities.

A decision to cancel the reorganization can be made at any time, up to the time the information is entered into the Unified State Register of Legal Entities, and is subject to forwarding to the tax authority.

Reorganization procedure in the form of merger

The reorganization procedure in the form of affiliation provides for the implementation of a number of mandatory measures provided for by law:

1. Approval of the decision to initiate reorganization in the form of merger.
2. Sending a notification to the Federal Tax Service inspection about the initiation of the procedure.
3. Two publications of notices in the “Bulletin of State Registration”.
4. Approval of the transfer deed of the organization.
5. Submitting an application to the Federal Tax Service inspection for state registration based on the results of the reorganization.

Violations committed during the implementation of at least one of these stages entail the invalidity of the entire reorganization procedure. Failure to comply with the deadlines for procedural measures, the procedure for publishing notices and filling out document forms will also result in a refusal by the registration authority.

Questions that arise ↑

There are special requirements for the reorganization of the antimonopoly authority. Current legislation prescribes the need to obtain the consent of the FAS.

This is especially true in cases where the amount of all assets exceeds seven billion rubles. If the affiliated organizations operate under a license, then the main company must reissue it.

Only after this will she be able to carry out work. The legislation sets specific deadlines for resolving this issue.

This category includes:

• insurance companies;
• companies selling alcohol;
• enterprises providing communication services.

Reorganized enterprises have the right to switch to a simplified taxation system. The transition procedure is determined by the provisions of the Tax Code of the Russian Federation.

To do this, a notification in form 26.2-1 is submitted to the registration authority for consideration.

What are the consequences

If the process is carried out in violation of legal requirements, the reorganization will be declared invalid.

The reason may be the following:

1. The wrong governing body made the decision to join.
2. The rights of the shareholder(s) have been violated.
3. The registrar was provided with false information.
4. No FAS consent.

When an organization is at the stage of reorganization, merger, accounting reports are submitted according to the established schedule and in full.

The procedure is regulated by regulations of the Ministry of Finance. The taxpayer is also required to pay all taxes, fees, and insurance premiums.

Unresolved personnel issues

The transfer of working personnel of the merging companies is carried out as follows:

1. According to Article 75 of the Labor Code of the Russian Federation, employees are automatically transferred to the staff of the acquiring organization. If the worker refuses, the employer has the right to terminate the employment contract with him.
2. Employees leave one company and are hired by another.
3. Before the affiliation process begins, the staff is reduced.

Nuances for a budgetary institution (state-owned)

Since budgetary institutions are created to achieve non-profit goals (cultural, charitable, scientific, social, educational, health protection), they are subject to the Federal Law “On Non-Profit Organizations” No. 7-FZ of January 12, 1996.

In addition, based on paragraph one of Article 60 of the Civil Code of the Russian Federation, a budgetary organization is obliged to notify the Federal Tax Service of Russia in writing within three days after the decision is made about the start of the reorganization procedure.

The notification must indicate the organizational and legal form of the enterprise being created.

Dismissal of a manager

Since the merger procedure implies the actual existence of a legal entity, the owners of the company have the right to terminate the contract with the manager. Labor legislation allows for this possibility while simultaneously respecting the labor rights of the manager.

The dismissal of a manager during a reorganization in the form of a merger is formalized by a decision of the owners of the enterprise, which, as a rule, coincides with the decision to initiate the reorganization procedure.

This procedural decision provides for the date of termination of the contract with the director, and also determines the conditions for paying him severance pay.

In practice, the owner of educational institutions most often uses this right by dismissing an objectionable school director during the merger process.

Basic information ↑

The current civil legislation provides for the following forms of changing the legal status of legal entities:

1. Joining.
2. Merger.
3. Separation.
4. Transformation.
5. Selection.

To unite organizations, the first two methods are used. A combination of several of them is also allowed.

What it is

Reorganization of an LLC is the formation of one legal entity from several companies on the basis of legal succession.

As a result, the business expands, the financial position of the enterprise improves, and unnecessary attention from the tax inspectorate is not attracted.

Reorganization is also one of the forms of liquidation of a legal entity. Affiliation is the process of several organizations joining one.

The affiliated companies transfer their responsibilities, rights, and privileges to the main company, and they themselves cease to exist as legal entities (Article 17 of the Federal Law No. 208, Article 53 of the Federal Law No. 14).

A larger business entity absorbs their assets and liabilities, while maintaining all their data in the state register (OGRN and TIN).

Corresponding changes are made to the charter of the legal successor. After which the amendments made are subject to state registration.

According to Article 57 of the Civil Code of the Russian Federation, only when an entry is made in the state register about the liquidation of an affiliated business entity, the reorganization is considered completed.

On September 1, 2014, amendments to the Civil Code of the Russian Federation (Federal Law No. 99 of May 5, 2014) concerning the accession procedure came into force.

These include:

For what purpose is it carried out?

Most often, affiliation is used so that companies can, by combining their statutory goals, achieve the most effective result in the use of assets.

For the liquidation of a company, this process is more acceptable, since there is no need to open a new organization. It only takes three months to achieve this goal.

To carry out legal actions for reorganization and have it recognized by higher authorities, they adhere to the norms set out in the Civil Code.

By a court decision, the process is declared invalid if discrepancies with the law are found.

Current standards

Russian laws control the process of enterprise reorganization. Violating them entails unpleasant legal consequences.

The procedure is determined by the following legislative acts:

1. Federal Law “On State Registration...” No. 129-FZ dated 08.08.2001.
2. Tax Code.
3. Federal Law “On Joint Stock Companies” No. 208-FZ.
4. Federal Law “On Societies...” No. 14-FZ.

The process of joining some forms of budgetary organizations is controlled by special laws regulating their work. For this purpose, some by-laws have also been issued.

Decree of the Government of the Russian Federation No. 110 dated February 26, 2004 describes the rules for cooperation between authorities during state registration of legal entities during reorganization.

How long does reorganization in the form of merger take?

To the question of how long reorganization in the form of affiliation lasts, only an approximate answer can be given - within three months. This period includes time for preparing documents, making and processing a decision on reorganization, notifying the tax authority, publishing notices of merger, and registration actions of the Federal Tax Service inspectorate.

Qualified specialists from a legal or consulting company will help reduce the time required to prepare document forms, as well as ensure careful compliance with legal requirements at each stage of the reorganization procedure.

Experienced lawyers will undertake the preparation of the entire set of documents and represent the client’s interests in the tax office at every stage of the process. will provide the law firm's client with full legal support and ensure the required result in the shortest possible time.

Transfer act during reorganization in the form of merger

One of the most important documents in carrying out this procedure is the transfer act during reorganization in the form of affiliation. This method of reorganization implies the transfer in full of all rights and obligations of the acquired company in the form of succession.

The transfer act is drawn up on the date the decision on reorganization is made and includes the following information:

1. A complete list of property assets of a legal entity.
2. Detailed composition of the organization's financial assets.
3. List of accounts payable claims, including financial obligations for which the due date has not arrived.
4. List and forms of accounts receivable.

The transfer act is drawn up with the participation of representatives of both organizations, after which it is subject to approval by the owners of the enterprise. The approved transfer act is submitted to the tax authority as part of the documents for state registration of the reorganization in the form of merger.

According to the list of tasks that reorganization in the form of affiliation can solve, this procedure is one of the most popular among legal entities of any organizational legal form.

Strict adherence to the deadlines and procedure for processing documents will allow the merger to be completed in strict accordance with the goals pursued by the owners of the enterprise at the stage of making the decision on reorganization.

Author of the article

Dmitry Leonov

Work experience 15 years, specialization - housing, family, inheritance, land, criminal cases.

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Useful information on business disputes

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Procedure outline, important features and difficulties commonly encountered

In the Republic of Belarus, the procedure for reorganization by merger is regulated by a number of legal acts: Civil Code; Regulation No. 1, approved by Decree of the head of the country No. 1; Law 2020-XII, passed in 1992; Resolution of the Ministry of Justice No. 8 of 2009; 78th Instruction of the Ministry of Finance 2021; Instruction No. 180, approved by the same government agency.

Registration of a legal entity is carried out at its location. Organizations with foreign investment are registered only by the Minsk and regional city executive committees, commercial and non-profit structures on the territory of the Chinese-Belarusian Industrial Park - by its administration, companies in the SEZ - by the administrations of free economic zones, the rest - by regional and city executive committees. Please note that regional executive committees may delegate part of their powers to reorganize a legal entity in the form of affiliation by subordination.

Reorganization in the form of affiliation: general information

This procedure is a form of reorganization in which one or more legal entities merge with another, formally ceasing their activities. The company that was joined then conducts work taking into account the reorganization carried out. The rights and obligations of structures that ceased to exist as a result of this operation are transferred to it.

The process is considered completed from the moment a record of termination of the legal entity’s activities is made in the Unified State Register. This feature is due to the fact that reorganization by way of affiliation does not involve adding information about the emergence of a new company, since the organization that has been joined continues its work in the market, but taking into account changes as a result of the emergence of new participants. Its details (name, account number, special permissions, etc.) remain the same.

If a legal entity has been joined by a company that has a license for a similar type of activity, it has the right to use the old permit if the data specified in it has not changed. If an adjustment is required, it must be made within a month from the date the entry on the termination of existence was included in the Unified State Register. When a license is missing, it must be applied for within the same time frame.

Cessation of work on the market allows you to use the reorganization of a legal entity (merger) instead of liquidating the company, because it not only requires a large number of formalities, but also lasts at least 2 months. Remember that the owner, manager and other persons provided for by the norms of Belarusian law are responsible not only for compliance with the accession procedure, but also for the accuracy of the information.

This form of reorganization does not involve the creation of a new entity, but this does not mean that everything is simple. It is important to pay close attention to each stage in order to avoid problematic situations that may arise.

The following stages can be distinguished:

1. Actions before registration.
2. State registration.
3. Operations after it.
4. Registration of shares if a merger with a joint stock company has taken place.

The list of actions is the same as for other reorganization options, but the specific content of each stage has its own characteristics.

Procedures performed before state registration

1. The owner of the property or other persons provided for by law make a decision on reorganization in the form of merger. It can also be drawn up in the form of minutes of the general meeting, if we are talking about a business company.
2. The manager issues an order to carry out an inventory of property and financial obligations.
3. A letter is sent to the Tax Inspectorate body notifying that changes will occur, with a copy of the decision on reorganization attached.
4. Similar messages are sent to Belgosstrakh and the Social Protection Fund at the place of registration.
5. Creditors are notified.
6. The information is brought to the attention of employees by appropriate order.
7. Based on the inventory order, a commission is created that carries out this operation and provides inventories, acts and matching statements based on its results.
8. These documents allow you to prepare accounting papers. The results are reflected in the reporting (accounting records and balance sheet) of the month in which the inventory was completed.
9. The accounting department of the reorganized entity draws up a transfer act indicating data on the succession of obligations, including controversial issues.
10. An accession agreement is concluded.
11. The owner, founders, participants or authorized body of the legal entity approve the transfer deed by appropriate decision (minutes of the general meeting).
12. The agreement on accession is approved by the decision of the founder or the minutes of the meeting.
13. Creditors make their demands. When reorganizing in the form of affiliation in the Republic of Belarus, 30 days are allotted for this from the date of sending the notification of the relevant decision. Requirements can only be expressed in writing. The form of the message is arbitrary.
14. A general meeting of participants of legal entities directly related to the reorganization is held, which is recorded in the minutes.
15. The owner of the property or other persons provided for by law prepare changes and additions to the constituent documents of the organization to which others are affiliated. The new version of the charter must be in 2 copies.

Procedure for state registration of changes/additions made to the constituent documents of the entity to which the merger is being carried out

An application of the established form is sent to the registration authority with the attachment of adjustments made to the papers, without notarization and their copies in digital form; original/copy of the document confirming payment of the state duty; certificate of state registration of the company adjacent as a result of the reorganization of a legal entity through merger. The authority carries out registration or refuses it. A new version of the charter with the appropriate stamp or an application for registration with a printed note of refusal is provided. If the latter case occurs, there must be a certain motive for such actions.

This stage seems to be the simplest. You just need to prepare a package of relevant documents and wait for your issue to be resolved by the competent authority. This is also due to the fact that the legal entity continues its activities while maintaining the same details.

Post-registration actions

As you may have guessed, the process of reorganization in the form of affiliation does not end with the registration of changes. After this you need to perform the following sequence of actions:

1. Based on the decision on reorganization, the manager gives an order to re-register labor relations with the relevant entries being made in the work books. An order is issued to continue the employment relationship or dismissal in case of disagreement to continue working.
2. A notification is sent to the servicing bank with a payment order attached to transfer funds to the current account of the person to which the organization is joining, and an application to close the current accounts of the old company that has ceased operations.
3. To make changes to the accounting file at the Tax Inspectorate at the place of registration, you must provide a letter attaching a copy of the changes/additions or a copy of the new charter with a stamp. An organization that ceases to exist is removed from tax registration. In addition, the notification letter is stamped with an acceptance stamp.
4. A notification is sent to the Federal Social Protection Fund accompanied by a copy of the amendments made to the charter or the new charter; information about the manager and chief accountant (if new people are appointed). A letter is also sent regarding the termination of the activities of the affiliated organization. Changes are made to the accounting file, the old legal entity is deregistered. The notification is stamped with acceptance by the Foundation.
5. A letter is sent to Belgosstrakh with information about the director and chief accountant, if new ones have been appointed. Changes are made to the case and the associated person is removed from the register. The notification is affixed with a Belgosstrakh acceptance stamp.
6. The territorial securities authority cancels the shares of the joint-stock company and excludes them from the State Register of the Central Bank.

Registration of shares in case of joining a joint stock company

Application for registration of shares with the attachment of the relevant decision and payment document for the implementation of the administrative procedure. State registration of additional securities is completed within 15 days. The exception is cases when sending requests is required. Then the period increases to 1 month. Transfer of shares for centralized storage to the depository is strictly mandatory. A letter with information about the Central Bank is provided. If a refusal is given, it must be motivated.

Despite the fact that the general structure of actions during reorganization in the form of merger of OJSC, LLC, etc. typical for such operations, it has its own nuances. It is unlikely that you should ignore the help of a lawyer. After all, there are people who specialize in solving such issues, so they are able to do everything with maximum efficiency, avoiding mistakes and saving time.

Having considered the action plan, it is worth studying a number of points without which it is useless. It is not enough to know what to do - you need to have an idea of ​​what to pay attention to when performing a particular operation.