Russian law allows that the owner of an LLC or one of those people in whose ownership the enterprise is located may transfer its share in the business as a pledge. Such transactions are most common in the field of credit relations. The execution of contracts legally securing the relationship between the mortgagor and the creditor must comply with legislative criteria. What is their nature? How are contracts on transferring a share in an LLC as a pledge most correctly executed?
The essence of encumbrance
What is an encumbrance (pledge) regarding a share in business community? Current Russian law gives LLC participants the right to transfer their share in the business as a security measure in favor of other owners of the organization or to third parties. In the second case, the approval of the LLC participants at the general meeting is necessary. Contracts by which an encumbrance is executed must be certified by a notary public.
Also, the transfer of a share in an LLC as a pledge to third parties is possible if this procedure is not prohibited by the charter of the organization. Many businesses are just trying to limit the actions of co-owners regarding the procedures under consideration in order to protect against raiding. It does not matter what position the mortgagor occupies in the structure of the company's board. Even if it is the general director, the fact of a ban on the implementation of this type of transaction in the charter of the LLC will retain the status of a legal barrier to concluding encumbrance agreements.
Types of encumbrance on a share in an LLC can be classified on various grounds. There are no criteria generally accepted in the market. One of the possible reasons is the specifics of the subjects of the transaction. As we noted above, parties to the agreement may be other business owners or third parties. This determines the types of encumbrance of the share in the LLC. The first type of transactions is with other business participants, the second with third parties.
These or other types of encumbrance on a share in an LLC can be classified depending on the specifics of the obligations that a person who decides to pledge part of the business takes upon himself. The most common option is when a person takes a loan from a bank for business development or, less commonly, but also practices for personal needs. The transfer of an LLC share as a pledge may be a security measure in the event of monetary obligations between private individuals.
Transfer of a share in an LLC as a pledge: legislative aspect
The main source of law governing this procedure is the Federal Law "On Limited Liability Companies". According to the provisions of this law, a participant in an LLC may transfer its share in the ownership of the business to another owner of the LLC or, if it is not prohibited by the constituent documents of the company, in favor of third parties. The legal act under consideration determines the main types of encumbrances in the framework of the transactions in question - transfer to another owner, as well as the corresponding operation with the participation of third parties. Other sources of law related to the transactions in question are the Federal Law “On State Registration of Legal Entities and Individual Entrepreneurs”, as well as Order of the Federal Tax Service of the Russian Federation No. MMV-7-6 / 25, which regulates the issues of state registration of legal entities and individual entrepreneurs in the aspect application forms of certain documents.
Documents
If a person decided in the prescribed manner to impose an encumbrance on his share in the business, then what documents need to be prepared for this? What is the standard list of relevant sources? It might look like this:
- articles of association;
- passports of participants in the transaction;
- certificate of registration of the organization;
- memorandum of association for the creation of an LLC;
- documents with information about TIN, PSRN;
- certificate from the FTS on tax registration;
- documents confirming the right of the LLC participant to a share in the authorized capital;
- fresh extract with information from the register;
- if necessary, a notarized consent to the transaction from the spouse of the LLC participant or a person’s statement that he is not married;
- a list of participants in the company indicating how the authorized capital is distributed between them;
- document confirming the transaction on the transfer of the LLC share as a pledge;
- a document reflecting information about the obligations of a person transferring a share of a business as a pledge.
This range of documents must be transferred to a notary. It is he who will have to carry out the main volume of subsequent actions.
Contract structure
An agreement within the framework of which a transfer of a share in the ownership of a company as a pledge is carried out must comply with the criteria specified in the Federal Law "On Pledge". The agreement should include conditions reflecting the type of collateral, the nature of the claims, the size of the secured shares in the LLC, the size of the obligations, the term for their fulfillment, the value and specific type of pledged assets, as well as other conditions requiring agreement from the parties to the transaction.
Notary actions
First of all, the notary must certify the agreement confirming the encumbrance of the right to own shares in the company, as well as the main document, in accordance with which changes should be made to the Unified State Register of Legal Entities - this is form Р14001. Having assured the relevant sources, the notary must forward them to the Federal Tax Service within three days.
This scenario is standard, but there are nuances characteristic of its implementation. Consider them.
First of all, a notary public will have to examine the Charter of the company for the absence of provisions prohibiting the transfer of shares in business as a pledge, and also to make sure that the quorum that is established for the approval procedure of the transaction by the meeting of LLC participants is observed. Also, the lawyer will need to make sure that the relevant approval was issued in the proper manner, without violations.
The next aspect of the transaction, which will be studied by a notary, is the marital relationship of the mortgagor. If the party to the agreement is married, then it is necessary, as we noted above, the consent of his spouse or wife so that their common property is pledged. If the share in the business is a separate property, then the notary will need to examine the documents proving this fact.
For example, it can be a person’s agreement with the company, confirming the transfer to him of a share in the business, which are executed prior to marriage. In this case, the authorized capital of the company in the part that is assigned to the pledge holder will be considered his personal property. If the person is not married, then the notary will need to examine the documents confirming this.
An option is possible in which the co-owner of the business is a minor citizen, this also happens. In this case, the notary must require the consent of his parents to complete the transaction.
A notary, certifying documents on the transfer of a share in a business as a pledge, in some cases may require the company and the pledger to confirm that the corresponding part of the authorized capital of the enterprise has been fully paid by him. This can be a certificate signed by the general director of the company and the chief accountant.
To calculate the correct amount, reflecting the value of the share, you may also need the opinion of an appraiser acting on behalf of an independent legal entity. The fact is that the real amount of assets is usually higher than the nominal amount of the authorized capital. A notary in some cases needs to know her.
Authority is significant
The lawyer will examine documents related to the constituent and registration categories, as well as those that reflect the powers of the people who participate in the transaction. The specialist will need to make sure that certain persons can act without issuing a power of attorney by virtue of special powers. In the general case, only the general director of a company is entitled to sign documents related to the transfer of a business share as a pledge. But scenarios are possible in which the specific owner of the share acting as the pledger will have the appropriate powers. However, the notary will need to make sure that he is assigned a similar status.
Strategic Business Share
An interesting aspect is the burden of shares in enterprises that belong to the category of legal entities of strategic importance to the state. The Federal Law “On Limited Liability Companies” contains provisions that establish the following restriction: encumbrance of the right to own part of the business when the creditor of the strategic enterprise is a foreign organization can be executed only with written approval from the Federal Antimonopoly Service. The notary will have to request the appropriate document from the mortgagor.
Aspect of competition
In some cases, notaries are seeking to bring the deals in question into line with competition law. For example, this is possible if the creditor, in accordance with the contract concluded with the mortgagor, acquires the right to vote in the company. Moreover, many notaries can approach the regulation of this type of issue in more detail, believing that even if the co-owner of the business, who transfers its share as a security to the creditor, retains the right to vote, there is a possibility of violation of the Federal Law “On Protection of Competition”.
As in the previous scenario, notaries may require the pledger to carry out approval procedures for the transaction with the FAS of the Russian Federation in writing. Notary offices may also require parties to the agreement to include in the contract conditions reflecting the fact that there is no need to approve the transaction by the FAS.
Cessation of encumbrance
Along with the procedure for transferring a share in an LLC as a pledge, there is a statutory procedure for terminating the corresponding encumbrance. It is assumed that the entry in the registration databases of the Federal Tax Service, drawn up on the basis of the application for the transaction, will be repaid. What documents are needed to remove the burden? This largely depends on the basis on which the corresponding procedure can be initiated. Two main mechanisms are possible here - a statement of the mortgagor and its creditor, as well as a court decision.
If we consider the first scenario in which the mortgagor and the creditor settled the debt issue, then the main document here is the same form P14001. It indicates the necessary data reflecting changes in the ownership structure of the LLC. This form is usually supplemented by a document confirming that the debt of the mortgagor to the creditor is repaid. Interaction with the Federal Tax Service, within the framework of which a statement on the removal of the burden is submitted to the appropriate department, also involves the participation of a notary.
There is a nuance regarding the procedure in question. It is assumed that documents confirming the absence of encumbrances will be submitted by the mortgagor. But this person has the right to perform the corresponding action only if he has the powers that are delegated to him by society. The exception is the situation when he is the general director of the company authorized to put signatures on official documents.
The most important nuance: informing the Federal Tax Service in accordance with the established procedure that debt obligations have been terminated is a mandatory procedure, even if the term of encumbrance has expired and the debt is de facto (and de jure in relation to the loan agreement) repaid.If the mortgagor and his creditor do not file a corresponding application with the tax service, then the state will consider the debt outstanding. The burden information will be stored in the registry.
Costs
The participation of a notary in the procedures of interaction between the enterprise and the Federal Tax Service - the procedure is not free. What expenses can the company incur? In practice, the tariffs used in the framework of this procedure can vary greatly, as they are not strictly regulated by the state. But approximate figures are determined by the following formulas.
Notarization of a transaction, the subject of which is one or another type of encumbrance on a share in an LLC, usually costs 0.5% of the amount included in the agreement. If we take the provisions of the Tax Code of the Russian Federation as a basis, then the range of possible amounts here is from 300 rubles. up to 20 thousand rubles Also, a notary can take a fee for certifying documents reflecting a change or termination of the contract, 200 rubles. In some cases, a fee for the authentication of signatures of participants in a transaction of 100 rubles may also be charged.
But this is not all expenses. Legal acts regulating notarial services contain provisions under which a notary has the right to charge a fee for providing legal or technical services. Billing in the field of these services is determined by notaries independently. The average prices related to transactions, the subject of which is the transfer of a share of the LLC as a pledge, is 5-7 thousand rubles.
Also, certain expenses will be predetermined by the fact of applying to the services of an appraiser. The cost of the services of specialists in this profile can vary greatly. Typically, the corresponding tariffs are about 3-4 thousand rubles, but the specific organizations providing such services may use different prices that differ from those indicated both upwards and downwards.
