Is it possible for two of the three participants to exit the LLC? This is a common question. We will examine it in more detail.
What if two participants leave the company when there are only three persons registered in the legal documents of the organization? What legal and economic consequences should be expected in this case?
As a rule, the first thing that is done in a similar situation is the registration of the exit of two participants from the LLC and the sale of shares that are transferred to the company by the retiring participants. Is it necessary to conclude a contract of sale of parts? What documents should be submitted to the body that carries out the re-registration of the LLC?
Legislation prohibits the exit of one or more participants if, as a result, no one is left in the organization. In such a situation, we are already talking about the liquidation of this legal entity.
Change of founder LLC
Situations when changes take place within the company structure and it is necessary to introduce a new participant instead of the one who is leaving, often happen. This legal process is called a “change of founder” and consists, as a rule, of two stages:
- exit of one or several participants (for example, two out of three registered);
- acceptance of new members into the LLC.
Exit participants. What can he be?
The exit of two participants from three from LLC is possible with the subsequent alienation of their own shares to the company, regardless of the consent of its other participants. Or (if it is provided for in its charter) of the organization itself. The share of the participant who leaves the company goes to the company from the moment the company receives a written statement (in free form) about leaving the company.
The main legislative document that regulates the activities of the LLC and all the nuances relating to its participants is the Law “On LLC”. According to the provisions of this legal act, the company must maintain a list of participants indicating information about each of them, the size of their shares in the capital and its payment, as well as the sizes of shares that belong to the company, the dates of their transition to it or direct acquisition by the company. In addition, there should be information about the founders of this legal entity, information about the size and nominal price of each share in the capital, as well as those shares that belong to the company. The main document that contains all the above information is the unified state register of legal entities (USRLE).
Thus, from the date of receipt of the application, the LLC has the obligation to make all necessary changes to the list of participants and submit information to the Unified State Register of Legal Entities.
In relation to the shares of participants who left the LLC, special rules are also established.
Rules regarding shares of exiting participants
Within one year from the moment the share (or part thereof) in the capital registered in the charter of the company is transferred to the company itself, they must be (based on the decision of the meeting of the founders of the LLC) either distributed among all the founders (in proportion to their parts in the capital), or offered for purchase to all participants, or only to some of them (if it is not prohibited by the charter of the company), or to third parties.
Moreover, by virtue of paragraph 6 of Art. 24 of the aforementioned law, the body that makes the legal registration of legal entities must necessarily be notified of the withdrawal.For example, two out of three registered. And the transition to society of the share (or part thereof) in the capital of the company.
This is done no later than a month after the date of transfer, by sending a statement about the availability of relevant changes to the Unified State Register of Legal Entities, as well as documentation confirming the reasons for the transfer to the LLC share. If, during this period, the share is distributed, redeemed or sold, then the company is obliged to send to the state registration authority a statement in the established form on making corresponding changes to the Unified State Register of Legal Entities and documents that confirm the basis for the transfer of the frequent participant to the company, as well as their subsequent sale, distribution or redemption.
If the shares of the withdrawn participants are realized through a sale, then in such a situation the LLC may submit to the USRLE information simultaneously on their sale to third parties and on the transition to it.
About debt. Nuances
It is worth noting that the founder of LLC debts is responsible in the amount proportional to their share in the authorized capital. A participant may withdraw from its composition without the consent of other participants, but only if there are no restrictions in the charter. He sends a letter of his intention to leave the LLC, after which a general meeting is held and this fact is approved by his decision. There is no talk about any dividends in this case, but other participants are not entitled to demand from the leaving participant to pay part of the debts.
Documents
According to paragraph 6 of Art. 24, cl. 7.1. 23 of the Law, the documents that are necessary for state registration of a change of founder in an LLC, and when selling a share, also documents to confirm its payment in the authorized capital, must be submitted to the body involved in the registration of legal entities within no more than a month from the date of the decision.
If the possibility of two participants withdrawing from the three registered in the LLC is provided for by the charter of this company, then persons wishing to leave (physical or legal) need only one document - a statement in which such a desire is expressed. The application form is usually arbitrary, but this document must necessarily contain the personal data of the applicant himself. In addition, the application must contain the name of the LLC and information about the CEO. The main (substantial) part of the application indicates the size of the shares of the participants who left, and the reason for the exit (clause of the charter of the LLC).
Share taxes
Upon withdrawal from the company of participants, as in this case, two of the three registered, the actual value of the shares paid by it is subject to taxation on the income of individuals for the full amount of the paid income. Since the main financial assets of LLC are subject to accounting on the balance sheet without VAT, the market value of the funds should also be set excluding VAT. That is, when calculating the volume of LLC’s net assets, the market price of fixed assets is determined without increasing it by the amount of VAT.
As for income taxes, the cost of their shares paid to participants leaving the LLC cannot be taken into account in the expenses when calculating the taxable base. This is because the payment is made from the difference between the authorized capital and net assets, according to Art. 23 of the Law "On LLC". Since after the release the shares are transferred to the company, it is obligated for 12 months. distribute them among the remaining founders (transferred to one remaining), or sell them to a third party (with the consent of the participants). In a situation where only one participant remains out of three, then all these activities are carried out in his regard.
Dividends for retirees
The withdrawal of two participants from the LLC from three entails the absolute termination of rights that arise from the rules of corporate relations. Often, the current founders of the company take advantage of this in order to deprive those who come out of what they could count on.For example, the dividends of the founders of an LLC during its participation in the activities of this organization. This is one of the most common disputes over making a profit.
Dividends are distributed between the real participants of the LLC. Since the right to receive dividends from the organization is held by citizens and legal entities having the status of a participant at the time of distribution of such payments.
Changes to the charter
LLC after leaving the membership is required to amend the provisions in the charter document. It is also necessary to register it in a new edition. Information about shares during re-registration in the register is transferred automatically. What awaits those who do not re-register the LLC and do not submit new documents? The consequences of this can be quite unpleasant - up to the liquidation of the company, if a tax inspection is filed.
Re-registration. Features
The re-registration event of the LLC is based on FZ-129 and looks like a process of amending the constituent documentation. This is a memorandum and articles of association. To successfully re-register, you must sequentially perform the following actions:
- Prepare all required documents.
- Pay state fees for registration activities.
- Fill out the application and submit it to the Federal Tax Service along with the rest of the papers.
- Get an extract from the register.
Documents to be provided
The list of documents that must be submitted to the tax contains:
- Application P13001;
- decision on amendments (if only one of the three founders remains);
- an application for a copy of the Charter;
- two receipts of state fees;
- new Charter (in duplicate).
Now you know the features of the exit of two participants from the LLC of three.