From a legal point of view, reorganization is a complex and lengthy process, which will take at least six months. And if it comes to mixed reorganization, it becomes clear that any double processes will be carried out, therefore, the procedure will continue even longer.
Interpretation in the legislation
In the civil code, a mixed reorganization of LLCs and other legal entities involves a procedure for changing the structure or legal form with the participation of enterprises of different ownership forms. However, the procedure is regulated not only by the civil code, but also by other relevant acts, the Law on Joint-Stock Companies, the Regulation of the Bank of Russia and others. Reorganization can be carried out not only with two legal entities, but also with a large number.
Reorganization Options
Mixed reorganization of LLC can be carried out in two versions:
- Merger. Regardless of the legal form and the number of legal entities participating in the procedure, as a result, a new unified structure appears.
- Joining. At least 2 enterprises can participate in such a procedure, as a result, one structure absorbs another or several.
Reorganization Goals
Naturally, the owners of enterprises have their own motives, but, as a rule, a mixed reorganization allows solving the following issues:
- switch to another taxation scheme;
- optimize enterprise costs;
- to avoid a crisis and, as a result, liquidation or bankruptcy;
- expand existing activities;
- increase the efficiency of staff and optimize its number.
In principle, the motives for the reorganization are always individual and determined by the owners, taking into account the specifics of the existence of the enterprise, its development level and compliance with the requirements of the modern market.
Stages of the procedure
First stage - the owners of the enterprises decide on a mixed reorganization of the LLC. A copy of the protocol must be sent to the Federal Tax Service and fill out the form P12000. Other authorities do not need to be notified.
Second phase - This is a notification to existing creditors of the upcoming reorganization. The announcement must be placed in the media.
Third stage - at the end of a month from the moment of publication in the media of the notification, the documents are submitted to the register of the register of law, the relevant changes are made.
The fourth stage. After making changes to the registry after 3 months, documents are drawn up on the completion of the reorganization procedure. You will also need to place 2 ads in the newspaper.
Together with the decision of the founders, a merger or acquisition agreement, an act of acceptance, copies of newspaper articles, form 13001 is submitted to the federal tax service.
Final stage - this is entering information into the Unified State Register of Legal Entities that the last company has already been reorganized.
What to write in a notification to the media
The announcement should include all registration data, PSRN, KPP or TIN, address and name of the company. The text should contain information about the protocol containing the decision, its details. Lenders must be notified of which company the legal entity will be affiliated with and their full details. It also sets out the deadline for lenders to meet in order to state their claims and where to go. At the end are the data of the head of the enterprise.The law does not limit the company in the information provided, at the discretion of management or owners, you can specify additional.
Information on the adopted decision on mixed reorganization is published in the Bulletin of State Registration.
Requirements for the execution of the deed of transfer
The merger of the joint-stock company to the LLC, the mixed reorganization of enterprises with another form of ownership require the compilation of a deed of transfer, which must have the required information:
- details of the document (date and place of compilation);
- parties to the act, which company transfers and which property accepts assets;
- a detailed description of the transferred assets and liabilities, property;
- the total amount of property transferred must be displayed;
- property claims of creditors are also described;
- signatures of the parties, position, name and seal.
The director of the enterprise can sign the act, but shareholders or owners are required to approve it by adopting an appropriate decision at the general meeting or approval directly on the act.
Rights and obligations under the act
On the basis of the deed of transfer all rights and obligations are transferred. The act can provide for the transfer of not only liabilities and assets, but also:
- contractual obligations;
- obligations not provided for by the agreements;
- taxation systems;
- bank accounts;
- real estate;
- permits and licenses.
In fact, everything can be transmitted. Typically, a deed of transfer is formed before the start of the reorganization, that is, the parties “on the shore” agree on what the new enterprise will receive in the end.
Several rules of procedure
Most often, a newly formed enterprise gets the name of one of the previous ones, but at the legislative level it is not forbidden to choose a new one. If the name change is carried out, then this must be prescribed in the contract of accession.
If at the end of the mixed reorganization procedure the LLC is supposed to change the legal address, then documents about this are submitted to the Federal Tax Service at any stage of the procedure.
You cannot change the composition of the participants until the whole procedure is completed.
After all settlements with creditors have been completed, the remaining property does not have to be divided between the owners. At the legislative level, it is possible to transfer it to an enterprise that has become the assignee.
Shares issued by the entity that is “swallowed” are transferred to the securities of the successor entity. Accordingly, the authorized capital increases - by the nominal value of the shares of the merged enterprise.
HR issues
A mixed reorganization of a joint-stock company involves solving a very sensitive issue - what to do with staff. Naturally, the interests of the “new” enterprise and the interests of all employees should be taken into account as much as possible, but this happens very rarely. The owner of the enterprise can do the following:
- transfer the best employees to equivalent positions in the new enterprise;
- transfer staff to new positions;
- cut partially or completely.
But most often the transfer of personnel to the successor company is done through the procedure of dismissal and admission.
If there is no way to do without reduction, then such personnel will receive all the rights that are laid down by law during reduction. Employees must be notified in 2 months about the upcoming release, to pay them the allowance due.
When to Notify the Antimonopoly Committee
A mixed reorganization of a legal entity in some cases involves notification of not only the tax authority, but the antimonopoly committee, namely:
- if the company is engaged in trading or manufacturing activities, provides services, and total assets exceeded the mark of 20 million rubles for the last reporting period;
- if the reorganization is carried out between non-commercial partners and associations, which include at least 2 legal entities.
Legislation issues
According to officials, the procedure for the reorganization of AO and LLC will be specified. The bill provides for the regulation of combined reorganizations, that is, not only mixed, but also combined.
It is envisaged that as a result of a mixed reorganization, it will be possible to create an enterprise with a completely new legal form that no enterprise had before the procedure. For example, after the merger of two LLCs, it will be possible to create an AO. Therefore, in the decision of the owners, it will be necessary to describe not only the reorganization procedure, but also the procedure for creating a new enterprise, how the shares will be distributed, what will be the governing bodies and so on.
A new form of reorganization has appeared in the draft law - the simultaneous separation or separation and merger and accession.
Possible problems
To date, there are significant gaps in laws regarding mixed reorganization; the procedure has hardly been resolved. For example, cancellation of the reorganization procedure is not provided. On the other hand, legal entities have the right to change their decision, for which it will only be necessary to submit an appropriate decision to the authority conducting the registration activities. If the LLC or JSC is interested in terminating the reorganization, then it will go to court, and what the decision will be is not known, since the rules regarding the procedure are contradictory.