A contract is concluded between the participants in a limited liability company. Each of these individuals or legal entities makes a specific contribution. The authorized capital formed from the shares of the shareholders is the property of the LLC. In exchange, participants in the enterprise are vested with property rights and the opportunity to receive dividends from profits.
Property in the authorized capital is an object of civil legal relations, therefore, it can be alienated in any convenient way for its owner. The most common option for alienating a share is selling. This will be discussed in the article.
Why sell a stake?
The reason for selling a share to a second participant in an LLC or to a third party may be commonplace - loss of interest in a particular type of business. Perhaps, disagreements have arisen between the shareholders that cannot be resolved, so there is only one way out - selling the stake. There are situations when the owners of the enterprise decide to reduce the number of founders.
Who can alienate a share?
The legislation clearly stipulates a list of persons who can alienate a share in an LLC:
- directly to society itself;
- to any third party: legal or physical, with the status of an individual entrepreneur.
You can sell the stake to the second participant of the LLC. As a rule, at the level of regulatory acts there are no restrictions for such a transaction. However, the founders themselves have the right to limit the circle of people to local acts, that is, the charter.
Stages of alienation of shares
Before drafting a sales contract, it is necessary to comply with legal norms, namely, to satisfy the priority right of all participants in the company, if there are more than two of them. In this case, the shareholder who wishes to sell the stake to the second participant of the LLC is obliged to send an offer to all other colleagues. It must indicate the size of the share and the cost at which the alienation will be carried out. All shareholders who received this offer are required to make a decision within 30 days.
The seller must also make an offer to the enterprise itself, that is, also send an offer. For its consideration, the company is given 30 days. If in a month only negative answers were received, then we can proceed to the procedure for selling the stake. If at least one of the shareholders or the enterprise itself has not given an answer, then it is better to send an offer again, otherwise the contract of sale of the share may be challenged by them in court.
If the sale will be made to one of the participants in the company, then the offer can not be sent, but to resolve this issue at a general meeting.
The first stage - drawing up a contract and going to a notary
The sale of a share to the second participant of the LLC shall be executed in a written agreement certified by a notary. The seller should prepare to visit his office and bring the following documents with him:
- extract from the list of all persons that are participants in the LLC;
- refusal of shareholders to purchase if the transaction occurs with a third party;
- a certificate from the LLC itself, confirming that it will not acquire a share;
- a certificate stating that the entire amount of the authorized capital has been paid;
- the consent of the spouses of the seller and the buyer, if the parties are single, then a corresponding statement is drawn up on the spot;
- contract of sale;
- receipt warrants or other documentary evidence of payment made under the contract of sale;
- extract from the register;
- legal documents of the company, statement of registration, tax registration, order to appoint a head, and so on;
- Parties to the contract must have documents proving their identity.
Before going to the notary public, it is best to bring him documents for familiarization and clarification of the complete list.
The second stage - notification of the Federal Tax Service
The sale of a share to the second participant of the LLC and, as a consequence, a change in the composition of shareholders requires the company to clarify this information with the tax authorities. Legislation requires the notary to notify the Federal Tax Service about a reshuffle of participants, but it is better to check this information. Notaries are usually quite busy and very “forgetful” people. The tax service must review the submitted documents within 5 days.
The third stage - extract from the registry
Now the management of the LLC needs to receive a new expanded extract from the register, which confirms the change in the composition of the participants. As a rule, after this the alienation procedure can be considered completed.
The final stage
Usually, the sale of a share to the second founder of the LLC does not apply to counterparties, however, it is recommended to check the terms of all contracts, perhaps there is a reservation about this. Be sure to change the composition of the founders will have to notify the bank in which the LLC is serviced.
The role of a notary in a transaction
Since 2016, the sale of a share to the second owner of an LLC is possible exclusively with the participation of a notary. This specialist is required to verify the legality of the alienation of the share. The notary must monitor how well the contract is drawn up, whether it complies with the law. He also clarifies the information confirming the procedure for satisfying the pre-emptive rights of the LLC participants. The notary must collect from the spouses of the buyer and seller the consent to conduct the transaction or make sure that they do not have a “second half”.
The notary is obliged to submit information to the Federal Tax Service within 3 days that there have been changes in the composition of the founders in a particular LLC.
Tax payment
If it turned out to sell the stake to the second participant of the LLC, then this means that the seller received income. Any profit is subject to mandatory declaration and payment of the corresponding tax.
For individuals, the following rates are provided:
- if the resident party was a resident, then you will have to pay 13%, the same rule applies to individual entrepreneurs;
- non-residents pay 30%.
In some cases, you may not have to pay tax, for example, if the alienated share has been owned by the seller for more than 5 years or if the price of the contract is equal to the sale value.
Individual entrepreneurs who are on a simplified taxation system are required to pay 15% of the turnover when selling the share of the authorized capital of the LLC to the second participant.
It will be necessary to report in the form of 3-personal income tax the next year, which will come after the sale of the share, until April 30. You must pay tax before July 15th. Non-compliance with the requirements of the law entails the imposition of penalties.
Requirements for the contract of sale
The final fate of the alienated share largely depends on the correctness of the contract. The contract must clearly state:
- complete and current data on the company whose share is sold;
- subject of the contract, size of the share and its value;
- special conditions that accompany the transaction;
- time frames are necessarily prescribed both in terms of payment and the actual disposal of property;
- obligations of the parties, their rights.
- possible consequences that may affect the parties to the transaction;
- what actions must be taken if one of the parties violates the terms of the contract.
Special conditions in the contract
There is another option, how to sell the stake to the second participant of the LLC - this is an alienation with the right to buy. For example, the owner of a share, having decided to sell, wants to restore his rights in 12 months. Such a condition is provided for in the contract.Naturally, in a year the value of the share will be increased, as stipulated in the agreement. An agreement on the right of further repurchase is completely legal. As a rule, such a condition is provided if one of the founders has temporary financial difficulties and urgently needs money, but he does not want to completely lose his right to an enterprise.
Particular conditions include the partial sale of a share. Usually they are not indivisible. Therefore, if you wish, you can only partially sell your rights. In this case, the buyer can be not only one. The alienation procedure is the same as the procedure for the sale of shares to the second participant of the LLC. Moreover, if there are several buyers, then each one will have to go through all the stages separately. As a rule, the sale procedure is completely changed if there is only one participant who has a 100% stake in the company but does not want to sell it.
Valuation of a share
Shareholders have the opportunity to contact an independent expert and evaluate the value of their share. However, you can do this yourself. For calculations, the price of all net assets of the enterprise and the size of the authorized capital will be required. The difference between these values is the actual value of the entire company. To calculate your part, you need to multiply this difference by the size of your own share in percent.