Donating a share in an LLC to a relative: sample contract and subtleties of the procedure

Today, the phenomenon is widespread when the interest holder decides to get out of business. As a rule, the founder invites his business partners or a third party to purchase his share. But it also happens that the founder who leaves the company expresses a desire to transfer his share free of charge (for example, when transferring the business to relatives), that is, to perform the act of donating the share in the LLC to a relative. This action is regulated by law. It may cause the dissent of other founders. If the charter of the company involves the transfer of a share in the LLC only with the consent of all the founders, it will simply not be possible to dispose of part of the business at will.

The Civil Code of the Russian Federation, namely, Article 572, as well as the Law on Limited Liability Companies No. 14-FZ, regulates the deed of gift upon alienation of a share in an LLC. The transfer of the share of the charter capital and the obligations of the founder to another person is based on a transaction that is legally executed from a legal point of view.

Terms of a transaction

The terms of such a bilateral transaction are:

1. The consent of the parties to the transaction, namely the recipient and the donor.
2. The consent of all interested parties (in this case, the co-founders of the LLC).
3. A contract certified by a notary in the presence of both parties.
4. Registration of the transaction in government bodies.

It is possible to donate a share in an LLC to a relative, either in full or in part, if payment for it was made in the authorized capital. Before starting a transaction, you need to carefully read the charter of the company and obtain the prior consent of all the co-founders.

Co-Founders Consent

Law No. 14 of the Federal Law does not provide for the mandatory consent of the co-founders of the company to donate a share. But in this case, the company's charter takes precedence, therefore, its provisions are taken into account in the first place. If the moment of consent is not provided for by the charter, then the founders can dispose of their share without restrictions.

However, in most cases, this point is spelled out in the charter, since the situation with one of the partners leaving the business is a very common occurrence.

Transfer order

A legally competent charter compulsory describes the procedure for transferring a share by a LLC participant:

1. By law, the transfer of a share in a company to another founder does not require the consent of the co-owners. At the same time, the rights, duties and share of ownership are redistributed. If this moment is important for the founders, then it must be prescribed in the charter of the company. The procedure for donating a share in an LLC to a relative should be strictly observed.
2. Transferring a share in an LLC to a third party is usually an undesirable option for other participants. In this case, the charter may completely exclude the option of transferring the share to third parties or determine additional conditions for the deed of gift. Since partners have an advantage in the right to acquire a share, first of all, it is necessary to offer them to redeem their part of the company.
3. If the charter of the LLC does not spell out the procedure and terms for notifying the co-founders about the planned transaction, then the provisions provided for in the law come into force.

CEO Alert

If the consent of the co-founders is specified in the charter, the founder shall notify the Director General in writing of his intention to donate a share in the LLC to a relative. The notice can be transmitted both personally and by mail. The notification letter should contain an inventory of the attached documents.A letter is sent to the legal address of the company. From the moment of sending, all owners are automatically considered familiar with the intentions to transfer the share of the participant.

The co-founders give their consent in writing. Objections may be raised within one month from the date of receipt of the notice of intention to commit a deed of gift. If they were not expressed within the specified period, then the co-founders are automatically considered to be consistent with the terms of the transaction.

If the LLC participants have a priority right to redeem a share, they must notify their intention to redeem it also within 30 days. In this case, it is best to enlist written waivers of the right to repurchase a share and wait for the statutory period. After 30 days, participants no longer have the right to prevent the conclusion of an agreement on the donation of a share in an LLC (a sample is presented below).

Spouses of the donor are automatically considered parties to the transaction. Therefore, consent to the gift of business must be obtained from the legal half. This moment is provided by article 576 of the Civil Code. An exception is a prenuptial agreement signed by the spouses, which provides for the possibility of the spouses to independently manage their property. How to draw up a donation of a share in the authorized capital of an LLC to a relative?

Clearance transaction

Any transaction regarding the waiver of a share in the ownership of an LLC must be concluded in the presence of a notary. He monitors the legal correctness of the transaction, checks according to the charter of the LLC, whether the transaction is a violation of the rights of other participants, whether the donor has the consent necessary for the transaction, whether he paid a contribution to the charter capital. The list of documents required to complete this type of transaction is quite extensive:

1. An agreement on donating a share in an LLC to a relative in triplicate, signed by all parties.
2. Consent of the co-owners of the company to the transaction.
3. Consent of the spouse to the disposal of joint property.
4. A copy of the charter, which spells out the procedure for transferring the company's share to other persons.
5. TIN and BIN.
6. Extract from the register, not older than 30 days.
7. Confirmation of payment of contribution to the authorized capital. This can be an act of transfer of ownership or a payment document.
8. TIN and passports of participants in the transaction.
9. Application (Form No. P14001).

Refusal of transaction

Until the notary confirms the transaction of donating a share in the LLC to a close relative, any party has the right to refuse or withdraw consent. In this case, the transaction is canceled. During registration, the founder does not have the right to change its amount, dates and procedure, as well as the currency in which it is calculated.

The donee must express his unambiguous consent, since the share in the LLC imposes certain obligations on him. Thus, after the entry into force of the transaction, the new co-founder is equally liable with others and is liable for the risks arising from the functioning of the company. A stake in a company is taxable if the parties to the transaction are not close relatives. The right to ownership is transferred to the new shareholder on the day of signing and certification of the transaction with a notary.

How to register a donation of a share in the authorized capital of an LLC to a relative?

State registration of shares

As a result of the donation transaction, one of the partners is alienated (in case of full transfer of rights), as well as the redistribution of parts of the LLC between the co-founders. If the new co-founder is a third party, then after signing the transaction he becomes a new participant. In any case, such a transaction leads to changes in the information that must be entered in the register.

Within three days after signing the transaction, you must submit the necessary information for registration. In addition to the contract, the notary certifies the donor’s statement, which contains information about the company, as well as information about the donor and the donor.

Information in the register

Information in the register is submitted by a notary.The contract is not attached to the application, as it is handed over to the donor and the donor, and one copy remains in the notary's office. A notary public is also involved in sending documents to the tax office. The donor is given a receipt on receipt of the necessary documents by the tax service. A new statement with the changes made is made five working days. It will indicate: the new composition of the founders of the LLC, the new owner of the share in the authorized capital, as well as changes in the magnitude of the shares and their value.

You can obtain new documents after donating a share in the LLC to a close relative either in person or by mail. The donor must independently transfer the documents to the second side of the transaction. An up-to-date extract from the Unified State Register of Legal Entities, confirmation of the amendments made to the register and a copy of the agreement indicate the completion of the donation of the share and are transferred to the General Director.

When is the presence of a notary public required?

The donation of a share of an LLC (a sample contract can be seen in this article) does not require the presence of a notary under the following conditions:

1. When transferring a share to another co-founder.
2. When transferring a share to the company itself, that is, to a legal entity.
3. If the founder decided to leave the LLC.

The tax code of the Russian Federation establishes the procedure for calculating and the size of the state duty, which is levied by a notary for his services. Usually, one percent of the amount of an agreement to donate a share in an LLC to a relative is taken for the transaction certification procedure. When calculating the state fee, the real value of the share is taken into account.

Transaction taxation

The act of gift is a gratuitous transaction, but it is also income for the donee, therefore it is subject to taxation. The only exception is giving a share in the LLC to a relative or spouse. Under this condition, the parties are exempt from tax. The donor does not pay it even in the case of a gratuitous transfer of the share to another member of the company or to a third party, since this is not considered income. For this reason, in the business sector, tax payment is often avoided by disguising a sale by an act of donation. However, if the parties were not aware of the current state of affairs, the contract may be challenged in court.

How to avoid paying tax?

The donee cannot avoid tax payment, unless he is closely related to the donor. Income tax is 13 percent of the market value of a share. The nominal value is calculated according to the financial statements on the basis of the company's assets in equal proportion to the authorized capital.

To determine the amount of tax, the new co-founder must provide the tax service with an assessment of the market value of the share received from an independent expert. In case of giving a share of the company between legal entities, taxes are levied on both sides of the transaction. The donor deducts value added tax based on the market value of the share, the endowed party receives income and deducts income tax based on the par value of the share.

findings

Summarizing all of the above, we can determine the following:

1. Assignment of a share in the authorized capital of an LLC at no cost is possible both for the company itself and other co-founders or third parties.
2. In order for the gift to be lawful and not violate the rights of participants in the transaction, certain conditions must be observed, namely, it is necessary to take into account the rules for processing the transaction, transfer only the paid-up part of the authorized capital, etc.
3. The conclusion of the transaction consists of four stages: notification and obtaining consent to the transaction of interested parties, signing a donation agreement in the LLC, state registration of the transaction and notifying the company of changes made to its structure.