The reorganization of the enterprise can occur in various ways, including the merger of LLC to LLC. However, this method carries certain risks, including subsidiary liability, therefore, in the presence of large debt obligations at least one of the enterprises, this procedure is considered inappropriate.
Legislative framework
All procedures for the reorganization of the LLC are prescribed in Law No. 14-FZ. The main essence of the merger is that the merged legal entity loses its status and actually ceases to exist. And all the obligations and rights of the affiliated company pass to the company, which has become the assignee.
Benefits of the procedure
The reorganization of an LLC in the form of a merger has several advantages. The procedure does not require enterprises to obtain certificates from the FSS and PFR, which would confirm a full settlement to the funds. In other cases of reorganization, such a certificate is required, before the issuance of which an inspection is carried out with a duration of at least 2 months.
There are small and financial savings. For the merger, you will have to pay 4 thousand rubles of state duty, and when you join - only 1.5 thousand rubles.
Reorganization in the form of joining an LLC to an LLC is often used in cases where it is not possible to pay off debts. Then the debtor company actually transfers its property to the creditor, and such a process can be considered as an alternative to liquidation, because it is quite difficult to close an enterprise with debts. Although this is not entirely correct, it is practically impossible to prove the wrongfulness of such an accession.
The first stage - preparation and meetings of shareholders
Initially, in order to begin the process of joining an LLC to an LLC, it is necessary to hold a general meeting of shareholders at each enterprise separately.
The affiliated enterprise is obliged to indicate in its protocol all the rights that are transferred to the LLC to which it is joining, and also indicate that this organization is given the right to notify the tax authorities about the upcoming merger.
Next, an agreement on accession should be drawn up and approved. The document must specify all the terms and key points of what size the authorized capital will be after the merger. It is also recommended to prescribe who will bear all the administrative expenses for the procedure, who will lead the entire process.
The second stage - notification of all interested parties
First of all, you should notify the tax authorities that the LLC has joined the LLC. For such a message, form C-09-4 is provided.
In the tax authority where the initial registration of the enterprise took place, it is required to submit another application (form P12001). It should be understood that employees of the tax inspectorate have the right to request any documents both from one enterprise and from another.
At the stage of filing applications, the tax service will reconcile with each of the LLC, which will be drawn up, showing the absence or presence of tax arrears.
It is important to remember: if two LLCs have assets of 3 billion rubles or more, you will also have to contact the Antimonopoly Committee for permission.
Each enterprise will have to send a number of documents to the Russian Pension Fund:
- list of insured employees;
- information on how much insurance premiums were paid, whether there are overpayments or surpluses.
Each company should understand that the entire contribution base that is available to the merging company will not transfer to the assignee.
If the documents are submitted in full, then literally three days later the applicant must receive a certificate in his hands, which will allow him to begin the reorganization of the LLC by joining.
After receiving the certificate within 5 days, it is necessary to notify all creditors through a written message. Do not forget about extrabudgetary funds, which should also be notified. It is necessary to compile and post publications in the “State Registration Bulletin”: the first immediately after receiving the certificate, and the second one month later.
The third stage is an inventory
In fact, this process can be called not even an inventory, but a complete audit. We will have to check the presence of absolutely all values, even those that are not accounted for on the balance sheet, account balances. Also checked are obligations that are not fulfilled to creditors and government agencies. You will have to check the accuracy of the information contained in the accounting and financial records. It also clarifies the existence of claim rights, storage facilities and the correctness of accounting.
Inventories are also subject to values that do not belong to the right of ownership of the LLC, namely those taken on lease, for safekeeping or processing. The main purpose of the inventory is to verify the availability of property with existing documents.
According to the results of the inventory, representatives of both enterprises are required to draw up an act and endorse it.
The fourth stage - registration
After completing and signing all the above documents, you can proceed to the next step of the step-by-step instructions for joining the LLC, namely, registration of changes. Registration is carried out by the tax authority. You need to collect the following package of documents:
- decisions on approval of the reorganization procedure;
- joint decision of both LLCs;
- an application for the liquidation of the LLC, which is being merged (form P16003);
- minutes of the general meeting;
- an application in the form of P14001, which indicates the changes;
- an act of acceptance of material and other values;
- an application in the form of Р13001, which highlights the issues of approval of new title documents;
- accession agreement;
- new edition of the charter;
- confirmation that all creditors and interested parties have been notified of the decision;
- receipt of state duty payment.
If the package of documents fully complies with the requirements of regulatory enactments, then in five days the applicant will be issued a new extract from the Unified State Register of Legal Entities, a charter and a certificate of registration.
Agreement on joining LLC to LLC
This is a fundamental document defining the rights and obligations of both enterprises, the basic requirements for which are spelled out in FZ-14. The contract is subject to mandatory approval at the general meeting of shareholders of each company. In fact, this is a common civil law transaction, it is of an organizational and procedural nature, without the formation of property rights. Such an agreement is not a charter document, but may carry information on amendments to the charter.
In this document, the dates of meetings, filing of documents for registration, and other registration issues are mandatory. The rest of the contract must meet all the requirements for such documents, that is, the subject of the contract, details of the parties, the procedure for transferring shares, holding a general meeting of the two companies, information on the succession procedure must be present.
Requirements for the General Meeting of Shareholders of both LLCs
Such a meeting is held after inventory and before submitting documents for registration. The procedure for convening shareholders and the rules of the meeting is no different if the meeting is held at the same enterprise. The main provisions of such an assembly should be set out in the contract of accession.It is recommended to observe the quorum without fail and notify the owners of the meeting clearly with the requirements of the current legislation.
At this meeting, shareholders must approve a new version of the charter and elect governing bodies that can be elected by more than ¾ votes. And to accept the charter, it will take 2/3 of the vote.
Media Publishing
Notify creditors of the reorganization procedure that has begun in the State Registration Bulletin immediately after making the corresponding entry in the USRLE. The secondary announcement is submitted in a month.
None of the instructions for joining the LLC has a deadline in which the company must file for registration of changes to terminate activities after the announcement. Practicing lawyers offer two solutions to the problem. You can submit documents to the Federal Tax Service immediately after the second announcement in the media, because virtually all the requirements of the law are met. This opinion is formed from Article 60 of the Civil Code, which states that claims made by creditors are not grounds for terminating the reorganization procedure. Another opinion is based on the same article that all claims of creditors must be fulfilled before the end of the reorganization procedure. There is no judicial practice on this issue, there are no official explanations. Therefore, in order to avoid any troubles, it is still recommended to wait 30 days after the publication of the second notice in the media. Moreover, there is no liability for completing the reorganization procedure after 30 days from the date of the last publication, even if the creditors did not manage to apply.
AO with LLC
The legislation provides for the possibility of conducting a mixed reorganization, for example, the merger of AOs into LLCs. In this case, there are no special differences in the procedure of ordinary connection and mixed.
And one more important point: if for some reason the LLC decided to cancel the procedure that has already been launched, then you should contact the tax authority and submit an application in the form of P12003.