Big deal for the LLC. Decision to approve a major transaction

The acquisition of commercial real estate, as a rule, is associated with quite large costs, respectively, the amount can be very large. In such situations, legal entities need to determine whether the transaction is large. Let’s further consider how to do this.

Terminology

A major transaction for an LLC is an alienation or acquisition of material assets by a company whose value exceeds 25% of the price of all the property of the company. Assessment of the latter is carried out according to financial statements. Moreover, the calculation is carried out for the period preceding the day in which the decision was made to approve a major transaction. The charter of the company may establish a higher percentage. In accordance with the constituent document, a major transaction for an LLC may be determined by other criteria. So, the purchase and sale of real estate can be attributed to this category, regardless of its value. Any transaction, the amount of which exceeds a certain figure (for example, more than a million rubles), can also be considered large.

the federal law

A major transaction is carried out in accordance with the rules established in Art. 46 Federal Law No. 14. The article also contains a detailed explanation of the definition itself. So, one (a loan, a loan, a guarantee, a pledge, including) or two or more interrelated transactions relating to the acquisition, alienation or the possibility of alienation of indirectly or directly property worth 25% or more of the total price of material assets of the company, established according to financial statements for the period preceding the date of the decision on its conclusion, if the Charter of the company does not provide for a higher percentage.

This category does not include those that are performed in the course of the ordinary economic activity of the company, as well as those that are mandatory for a legal entity on the basis of the Federal Law or other normative acts, and calculations are carried out at prices established in the manner determined by the Government or authorized by it executive body. The value of the acquired material assets is determined by the statements of the company, and the acquired property - based on the amount of the proposal.

Approval of a major transaction: sample, procedure description

No participant can independently acquire or sell the property of a legal entity without the knowledge of other shareholders. The approval of a major transaction is carried out by the general meeting. Discussion and documentation is carried out according to the rules provided for in the constituent documents. The decision on approval of a major transaction (a sample act is presented in the article) should contain information about:

• Persons who act as parties to the contract, beneficiaries.
• The price.
• Subject of the contract and other material conditions.

The decision to approve a major transaction may not include information on beneficiaries if the contract is concluded at tenders and in other cases where the parties cannot be determined by the time the act is adopted. The company's charter may provide for the creation of a board of directors. In this case, the decision to approve a major LLC transaction regarding the disposal or its possibility, as well as the acquisition of indirectly or directly tangible assets worth 25% or more of the price of the property of the company, may relate to the constituent documents of the competence of this body.

Challenging

Contracts signed in violation of the requirements of the law (approval of a major transaction has not been received, an improperly drawn up act, etc.) may be invalidated. A dissenting participant may file a lawsuit in court. In case of missing, the statute of limitations on the claim for invalidating the contract in such cases cannot be restored.

Court denial

An authorized authority may not satisfy the plaintiff’s claim to invalidate a decision on a major transaction made in violation of statutory requirements, if any of the following circumstances exist:

1. It is not proved that the conclusion of this agreement resulted or may cause damage and other adverse consequences for the company or the party who filed a lawsuit.
2. Voting by a shareholder presenting a claim to a court to invalidate a transaction concluded after approval at a general meeting, even if he participated in it, could not affect the results.
3. At the time of the trial, the court submitted evidence of the subsequent approval of the contract according to the rules established in the Federal Law.
4. During the consideration of the dispute, it was proved that the other party to this transaction was not and should not have been aware of its completion in violation of the requirements of the law.

Consequences of invalidity

The main result in this case will be the absence of a positive legal outcome. In other words, the rights and obligations stipulated by the conclusion of the contract will not arise. Thus, an invalid transaction will not entail legal consequences, except for those that arise directly when it is recognized as such. As an exception, the court has the right to terminate the contract not from the moment of its conclusion, but for the coming period - from the date of issuance of the relevant act. This provision applies to contested transactions if it follows from their contents that they can only be stopped for the coming period. Basically, they mean continuing contracts, the termination of which from the moment of their conclusion is impractical or impossible.

Bilateral Restitution

This is another important consequence of the recognition of the transaction, including large, invalid. In the event of termination of the contract, the parties must return to their original position. Each participant is obliged to return to the other everything that he received in the transaction. Bilateral restitution takes place if the parties have partially or fully complied with the contractual requirements. If it is impossible to return received in kind, the participant must reimburse its value in cash, unless other consequences are provided for in the legislation.

It should be noted that bilateral restitution in practice does not always work. For example, you cannot return goods resold to third parties. Compensation in money in such cases does not make sense, since the buyer has already paid, and the re-deduction of money will act as unjust enrichment. The Constitutional Court on such controversial issues clarified that in restitution, restoration of rights should be carried out on the principle of equality, ensuring equivalence and equivalence of compensation for the value of material assets. The Armed Forces and the Supreme Arbitration Court also indicated that when applying the consequences of the invalidity of a contract, obligations under which are partially or fully fulfilled, it is necessary to proceed from an equal amount of obligations. In this regard, in contentious situations, the provisions on restitution often do not work in practice.

Important point

If an agreement is concluded in the signing of which there is an interest, the approval of a major transaction is carried out according to the provisions of Art. 45 Federal Law No. 14. An exception is the case when all members of society have it. In such situations, a major transaction is agreed upon in accordance with Article 46.Except for the cases specified in clause 1 of this article, constituent documents may provide for other sizes or types of contracts to which the above requirements apply.

Exceptions

The provisions in accordance with which a major transaction is to be concluded do not apply to:

1. The relations that arise during the transfer of the right to property during the reorganization of a legal entity, including under agreements on accession and merger.
2. Companies that consist of one member, simultaneously performing the functions of the executive sole body in it.
3. Relations that arise during the transition to a legal entity of a share or part thereof in the authorized capital in cases established in Federal Law No. 14.

Arbitrage practice

Under paragraph 2 of Art. 46 of the Federal Law No. 14, if a major transaction is concluded, the value of the property alienated by the company is determined in accordance with the data of its accounting. According to the explanations contained in paragraphs 2, 3 of the Letter of the Supreme Arbitration Court No. 62 (review of the practice of resolving disputes relating to the conclusion by business entities of the considered agreements and agreements in which there is an interest), when determining the category of legal relationship, one should compare the value of the item with the book price of the legal entity’s assets for the latter approved reporting without reduction by the amount of obligations (debts).

The accounting period, according to Federal Law No. 129, is the calendar year from January 1 to December 31 inclusive. In the absence of a balance sheet in society, the burden of proof that the contract is not a major transaction is placed directly on the legal entity. If there are objections of the persons participating in the case regarding the reliability of the information provided by the company, it is allowed to determine the value of material assets based on the results of the accounting expertise by court order.

Percentage calculation: sample

A major transaction is determined by the ratio of the value of existing and acquired / disposed property. Consider an example:

1. The value of the property is 45 million rubles.
2. The price of a legal entity’s property is 5 million rubles.
3. 1% of 5 million = 50 thousand rubles.

Find the value of the transaction as a percentage of the property of a legal entity:

45 million / 50 thousand = 900%

There is another option: divide the transaction value by the price of the property (100%) and then multiply by 100:

45 million / 5 million x 100 = 900%

Control

On January 1, 2012, Section V.1 of the Tax Code entered into force. It regulates the implementation of control over transactions between related parties. The subject of supervision is the price of the contract. In the course of the control, the compliance of the indicated value with market values ​​is checked. This process is regulated by Art. 105.3-105.6 Tax Code. Tax control is carried out to verify the completeness of accrual and payment of fees and taxes (for profit, VAT, personal income tax, mineral extraction tax). Any major transaction is subject to registration with the appropriate service. The contracts subject to certain pricing requirements are subject to control. The following criteria are established in the Tax Code:

1. The amount of contractual income for the corresponding period exceeds 1 billion rubles. (since 2014).
2. One of the parties acts as a tax payer for mineral extraction tax, calculated at a percentage rate, and the subject of the transaction is minerals (precious metals and stones, oil and its products, ferrous and non-ferrous metal, mineral fertilizers). The cost criterion for such agreements is 60 million rubles.
3. At least one participant:

- acts as a taxpayer of the UTII or the Unified State Customs Union (if the agreement is signed as part of this activity), and the other party does not use a special taxation regime (cost limit is 100 million rubles / year);

- exempt from income tax, while the other does not use such relief (price threshold - 60 million rubles / year);

- acts as a participant in the Skolkovo project, and the other does not (the criterion for the amount is 60 million rubles / year);

- is a resident of the SEZ and uses the preferential tax regime, but the second does not, the price limit is 60 million rubles / year.

Notification

The taxpayer is obliged to notify the supervisory authority of controlled transactions that were completed during the calendar year, no later than May 20 of the forthcoming period. This requirement is present in Art. 105.16, paragraph 2. The notification is sent at the place of residence, location or registration of the legal entity as a major taxpayer. The following information should be provided in the notice:

1. The calendar period for which data is presented.
2. Subjects of contracts.
3. Information on participants in transactions (full name of the parties, TIN and other essential details).
4. The sum of the costs incurred or the proceeds received with the allocation of profit / expenses under controlled contracts, the cost of which is subject to regulation.

The notification form, the procedure for filling out, as well as the format for submitting the document in electronic form have been accepted and approved in accordance with the Order of the Federal Tax Service. If the transaction is not recognized as controlled, then the above requirements do not apply to it.