Limited liability companies are among the most popular in the Russian Federation legal forms business. Russian law provides for procedures for withdrawal from the LLC participants. What is their specificity? What documents are necessary for the correct exit of the co-owner of the organization from the business?
Specifics of legislation
The exit from LLC participants is provided for by the provisions of several sources of law operating in the Russian Federation at once. First of all, this is the Civil Code. In the 94th article of the Civil Code, it is said that a member of an LLC may withdraw from its membership by alienating its share in favor of the remaining members of the company. Moreover, if the Charter of the organization provides for this procedure, then the consent of other business owners is not required.
The most important source of law is Federal Law No. 314 adopted on December 30, 2008. This legal act regulated in sufficient detail the exit from LLC participants. So, for example, the aforementioned Federal Law says that the owners of an LLC cannot leave the organization if, in fact, there are no other participants in its composition. That is, if an LLC belongs to one person, then it also cannot leave its structure. Also, the legal act in question introduced a norm according to which withdrawal from the participants of an LLC by means of alienation of a share may not be carried out if the Charter does not provide for the corresponding opportunity.
The essence of one of the most common exit procedures is as follows: the person who owns a stake in the LLC voluntarily abandons it, thereby leaving the organization. His share passes into the possession of society, and in return he receives compensation. Exit of the sole participant from LLC within the framework of this scheme is impossible, however there is an alternative way to implement it - we will also consider it today.
Highlights of the process of leaving the LLC
Consider the legal nature of the withdrawal of the co-owner of the company from its composition. This type of activity is categorized as one-way transactions which are aimed at terminating the legal rights of the entrepreneur to participate in society. Such legal relations should be made in writing (however, there are objections to this subject - about them a little later). In practice, this means that the exit of the LLC participant from the company is carried out upon the fact that he compiled the application. The law does not provide for specific requirements for its form; the main thing is that the wording present in it clearly reflects the will of the citizen. The exit of two participants from the LLC is carried out by filing applications by each of them.
The legal consequences associated with the fact that a person ceases to participate in the business and transfers his share to colleagues occur regardless of the fact of state registration of adjustments in the constituent documents of the organization. That is, as soon as an entrepreneur submits an application, his exit from the participants of the LLC is immediately initiated. However, he can, taking advantage of the fact that his colleagues for whatever reason reject the application, go to court in order to try to invalidate the transaction. In addition, the reason for canceling the application may be such an argument that at the time of filing the document a person did not realize his actions due to objective circumstances.
The importance of documents
It can be noted that the Russian judicial practice does not give a clear answer regarding the issue of confirmation by a person of his intention to withdraw from the participants of the LLC. There are two main points of view in this regard.The first position assumes that the entrepreneur is obliged to express his will exclusively in writing. A second view suggests that writing is optional. But this fact, rather, is not in favor of an LLC participant who has changed his mind about leaving the company. A document that can record the intention to withdraw a participant from an LLC is a protocol formed at a meeting of the board of directors of the company. That is, the statement in question is an important, but in some scenarios non-defining document. Information from the protocol may well be accepted by the court as reliably confirming the decision voiced earlier by the citizen. Thus, the participant’s exit from the LLC will be carried out if the entrepreneur’s colleagues do not show a goodwill gesture.
Application Procedure
How to file the application in question? The form and content of the document, as we noted above, are not regulated by law. For a co-owner of an LLC, the most important thing is to state the essence of the intention in it. Further, the application is submitted to the board of directors of the organization or other structure responsible for carrying out such procedures. Also, a person can send a statement confirming the desire to withdraw from the LLC, by mail. As soon as it reaches, and in the first case, as soon as the board of directors or other structure accepts the document, the process of alienation by the co-owner of his share in the LLC is initiated. By the way, one of the proofs of an entrepreneur’s intention to leave the company may be a mail notification.
Share payment
Having received a statement from the participant who decided to withdraw from the LLC, the remaining co-owners of the company must pay him the equivalent of his share in the authorized capital within 3 months, unless otherwise specified in the Charter of the organization. If the entrepreneur’s colleagues do not make this payment, the court can recover it. Also in this case, interest may be awarded in favor of the former co-owner of the LLC on the basis that his colleagues misused the funds belonging to another person. The size of the share payable is determined on the basis of the information that is reflected in the financial statements. By the way, the corresponding compensation can be transferred to the former co-owner not in cash, but in kind, in the form of property.
A share is paid at the expense of cash arising from the deduction of the amount of the authorized capital from net assets. Another possible formula for calculating the amount of compensation: dividing the nominal value of the share by a figure reflecting the size of the authorized capital, and multiplying the result by the net assets indicator. There are no documents in the legislation that would require the use of a specific formula for calculating the corresponding type of assets. But you can use the criteria that are reflected in the Order of the Ministry of Finance of the Russian Federation No. 10n, as well as the Federal Commission for the Securities of the Russian Federation No. 03-6 / p3.
It is possible that the difference between net assets and capital will be insufficient to compensate for the share. In this case, the company will have to reduce the amount of the authorized capital by the required amount. And if this procedure leads to the fact that it will be less than 10 thousand rubles. (legislative minimum for LLC), the share is paid at the expense of the amount that arose after deducting 10 thousand rubles from net assets. Payment of a share may not be made if, at the time of the relevant procedures, the company is characterized by signs of bankruptcy.
It may be that the former co-owner of the LLC will not agree with the size of the share due to him. In this case, he has the right to establish an objective figure by engaging outside experts.
As soon as a person leaves the LLC, his share goes to society. During the year, it should be fairly distributed among the other participants - in proportion to their current shares.Another option is to sell in favor of one of the co-founders, or to third parties, if the ban on such transactions is not spelled out in the Charter of the LLC. If the remaining co-founders of the LLC were not able to divide or sell to someone part of the assets that one of the participants in the company transferred to them during the year, then the authorized capital should be reduced by an appropriate share.
Postings
There are specific formalities that accompany the participant's exit from the LLC - posting. Through them in the financial statements reflects the fact that the share of one founder passes to other participants. How can this be done? What might the accompanying participant exit from LLC postings look like? Consider a simple example.
Suppose that Hospitable Neighbor LLC has an authorized capital of 1 million rubles, which is divided between Ivanov (who owns 250 thousand rubles), Petrov (he owns 250 thousand rubles) and Sidorov (which has a share of 500 thousand . rub.). Sidorov decided to move to another region of the country and alienate his share in the LLC in favor of Ivanov and Petrov.
Suppose, in relation to net assets, Sidorov’s share is 2 million 200 thousand.
In this case, you must make the wiring:
- According to the debit 81, as well as the loan 75, the sub-account “Participant Sidorov” - 2 million 200 thousand rubles. Thus, we record the fact that Sidorov’s stake goes to LLC.
Next, we draw up the distribution of Sidorov's assets among other participants in the company.
This can be done using the following postings:
- on a debit 75 sub-account "Member Ivanov" loan 81 - 1 million 100 thousand rubles. (that is, Ivanov gets 50% of Sidorov’s share);
- for debit 75 "Participant Petrov" a loan of 81 - 1 million 100 thousand rubles. (similarly, Petrov receives the remaining 50% of the assets);
- debit 80 sub-account “Participant Sidorov” loan 80 sub-account “Participant Ivanov” - 250 thousand rubles. (i.e. 50% of the authorized capital), this reflects the adjustment of the composition of participants in the company;
- debit 80 sub-account “Participant Sidorov” loan 80 sub-account “Participant Petrov” 250 thousand rubles (similarly, 50% of the authorized capital is transferred).
Additional transactions (due to the fact that participants do not bear the costs of shares that have passed in their favor):
- for a debit 84 credit 75 sub-account “Participant Ivanov” - 1 million 100 thousand (actual assets are written off);
- for a debit 84 credit 75 sub-account “Participant Petrov” - 1 million 100 thousand (the actual cost of a share is written off similarly).
The Federal Tax Service can also report that the tax in connection with the income received for Ivanov and Petrov cannot be calculated due to the lack of actual payments of funds in their favor.
It will be necessary to provide documents confirming the transaction on the alienation of the share, the specifics of which we have now examined, to the state bodies responsible for registering legal entities and changes in their structure within a month. Now the Federal Tax Service is engaged in these issues, it will be necessary to interact with it.
Required documents
What documents are needed for the correct exit of participants from the LLC? There are relatively few of them, and all of them, as a rule, are available to the owners of the organization. It is, first of all, constituent documents information from the PSRN, TIN of the organization and members of the company, as well as their passport data.
Application structure to other founders
What about the statement for the board of directors, its sample? The participant’s withdrawal from the LLC is a fairly responsible procedure, and therefore, despite the absence of strict legislative regulations relating to the completion of the document in question, you should try to compile it, clearly reflecting the essence of the intentions. The application must contain: name, passport details, address of registration of the co-owner. It should also reflect the value of the share in the authorized capital that belongs to the person.
Application for tax
As soon as the board of directors or other competent structure of the company receives a statement, from that moment the co-owner is considered to have left the organization structure. But it is also necessary, as we noted above, to notify the tax. The Federal Tax Service will also need to send a statement, but already in the prescribed form.
The director general of the organization will have to write it. The application form is 14001, which is officially approved by the Federal Tax Service. This document should reflect all the changes that the organization has been exposed to in the process of transferring a share by one of the participants to the benefit of its colleagues. This usually requires a check mark on the first page of the document: on the item that reflects information about the participants. Also on one of the application sheets put another checkmark - opposite the item “termination of rights to a share”.
Lawyers recommend notarizing document 14001. Going to a notary public, you should take a statement from the former co-owner, the Charter of the organization, certificate of registration of the company, an extract from the register, as well as documents that confirm the status of a citizen who goes to the notary public - this should also be the general director.
Having certified all the documents with a notary, you can go to the Federal Tax Service. Thus, the director general will have in his hands a statement from the former co-owner, as well as a notarized document in form 14001. You need to manage to pay a tax visit within a month after accepting the statement from the co-owner who wishes to leave the organization. Having accepted the documents, the Federal Tax Service will issue a receipt. After 5 days, it will be possible to pick up documents from the department that reflect the fact that the composition of the founders of the company has been changed, as well as a new extract from the register.
Alternative schemes
Above, we examined the scenario in which a person can withdraw from the LLC through the alienation of his share. But this is not the only option. Also, the co-owner of the company has the right to sell its share to any of the other participants or to third parties. This option is suitable if, for example, it is necessary to carry out the actual withdrawal of the sole participant from the LLC, which, as we noted at the beginning of the article, is not possible under the scenario with the alienation of the share.
The only question is to find a buyer. If it was possible to do this, then it is possible to conclude a contract of sale of a share in the LLC. To do this, you will need to collect the following package of documents:
- extract from the register (mandatory fresh);
- the already familiar form 14001 (it will be needed in 3 copies);
- several references: on payment of the sold share, as well as on the fact that the other co-owners are not against the sale (if it is a scenario, when there are several participants), in some cases - a document confirming that there is no need to obtain permission for the transaction from the Federal Antimonopoly Service of the Russian Federation .
The contract of sale must be notarized. As soon as the transaction is completed, the documents will need to be transferred to the Federal Tax Service (by mail).
It can be noted that the founders of the company have the primary right to acquire a share if one of the participants wishes to leave the organization.
Director's exit
A scenario is possible when the director-participant leaves the LLC. What is the algorithm of actions in this case? Above, we determined that the director general should carry out all the actions - who will do this if he is going to leave the business?
Everything is very simple. The company may appoint a new director at the general meeting, as well as confirm the fact of his approval for this position in the minutes. It will need to be submitted to the Federal Tax Service along with other documents:
- Form P14001 (on the change of CEO);
- the protocol on the dismissal of the former director from the post and the appointment of a new one, as well as on the removal of one of the participants from the LLC;
- an order confirming the appointment of a new leader;
- statement of the co-owner to leave the organization.
Thus, two actions are carried out simultaneously - a change in the leadership of the organization, as well as the withdrawal of one of the co-founders. At the same time, the application for the exit of the former CEO must be notarized. In turn, the entity that will be considered as the applicant for a change of manager is the new CEO, who was elected based on the results of the meeting.
