Due to ongoing changes in the Russian economy, it is becoming more difficult for many market participants to conduct their activities efficiently and without losses. The reasons can be different: the presence of stronger players, rising prices for raw materials, etc.

Therefore, many of them decide to join forces to create a larger enterprise that can survive in the current conditions and stay afloat. In addition, the reorganization is carried out in order to optimize taxation and management.

Existing methods of enterprise reorganization

Existing civil legislation provides 5 forms for reorganization of enterprises:

1. separation;
2. selection;
3. transformation;
4. merger;
5. accession.

Only the last two of them are suitable for merging organizations. Each has its own special rules for the order of implementation.

If merger is a procedure in which the organizations participating in it cease to exist, and all their rights and obligations are transferred to a new (created as part of this process) legal entity, then accession a slightly different phenomenon. This is a form of reorganization in which, out of several persons participating in the procedure, at the end only one (joining) remains, and the rest (joining) cease to exist.

I choose one or another form of reorganization, its initiators proceed from the circumstances of a particular situation, the need to preserve any of the participating companies, the complexity of the documentation, and, of course, the goal pursued by carrying out these procedures.

According to the Civil Code of the Russian Federation allowed when reorganizing, combine its various forms, as well as the participation of 2 or more organizations, including different organizational and legal ones.

It is no secret that mergers and acquisitions are carried out, among other things, in order to “liquidate” them. In this case, the process of affiliation is most acceptable, which is facilitated by the absence of the need to create a new organization.

If we calculate the time spent on carrying out reorganization actions in the form under consideration, we can establish that at least 3 months must be allocated for these procedures.

Various ways of reorganizing Joint Stock Companies are discussed in the following video story:

Mechanism of accession as part of the reorganization

This procedure is implemented through several stages.

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Making a decision on reorganization by each participant

Carrying out this stage depends on the OPF (organizational and legal form) of the enterprise. Thus, in an LLC, decision-making on this issue is within the competence of the general meeting of participants (GMS).

Thus, it is accompanied by the preparation, convening and holding of the General Assembly (as a rule, extraordinary). The said decision should not only determine the main conditions of the reorganization, but also approve the terms of the merger agreement, and if we are talking about the LLC being merged, then deed of transfer.

Notification of the registration authority (IFTS) about the start of the procedure

According to the requirements of the law, it is necessary to submit a notification in form P12003 and the corresponding decision on reorganization to the authorized bodies. At the same time, the law establishes a period for performing this action - no more than 3 working days from the date of the decision made by the last of the accession participants. It is the authorized representative of the latter, as a rule, who is the applicant when filing a notification.

Notification of creditors about the commencement of relevant procedures

In accordance with Art. 60 of the Civil Code of the Russian Federation, after the decision on reorganization is made, it is necessary to implement notification measures interested parties, namely creditors, government agencies, etc.

For this purpose (after registration by the tax authorities of a notification about the beginning of the process), a corresponding announcement is printed in special media (Bulletin of State Registration). This is done twice (periodically - once a month). It should be taken into account that the notification is published from all participants, those of them who made the decision last or who were assigned such a responsibility by others.

Conclusion of a connection agreement, inventory and transfer of property

In cases provided for by law, a merger agreement is required, which regulates all the conditions of the reorganization, including its procedure and consequences. To conduct this, a special commission is formed, which conducts it and prepares the relevant documents.

The reconciliation of settlements with the tax authorities of the reorganization participants and other necessary actions are carried out. These activities may precede the notification of the Federal Tax Service and interested parties about the reorganization of companies. In addition, it is preparing deed of transfer, according to which the assets and liabilities of the acquired persons are alienated to the acquirer.

It is also necessary to note that, for example, in relation to an LLC, a rule has been established according to which it is required holding a joint OSG companies participating in the merger, where a decision is to be made on making changes to the acquiring company as provided for in the merger agreement and on electing new members of the company’s bodies. This stage does not stand out as independent, however, its existence must be taken into account.

State registration of changes in the information of the Unified State Register of Legal Entities on the reorganization that took place

As part of the implementation of this stage, it is necessary to take into account that final registration of the merger is allowed no earlier than the moment when the deadline for filing complaints against decisions on reorganization expires, which is 3 months from the date of entry into the records of the beginning of the procedure. In addition, at least 30 days must have passed from the date of the last publication.

For registration introduce themselves:

• applications (form No. P16003 and form P13001);
• accession agreement;
• deed of transfer;
• decision to increase, amend the charter of the acquiring entity;
• changes to the charter;
• document confirming payment of state duty;
• statement (if changes need to be made regarding controls, etc.);
• other documents that may be required depending on the type of legal entity or the characteristics of its activities (for example, confirmation of changes in the issue of issue-grade securities, if any).

State registration period is no more than 5 working days. Traditionally, reorganization procedures are considered to be completed at this stage.

Solving personnel issues of enterprises

Important when implementing the connection are questions about personnel joining organizations. If possible, it is possible to transfer employees through dismissal and to the acquiring enterprise, or guided by Art. 75 Labor Code of the Russian Federation. Within the latter method, it is necessary to take into account that employees have the right to refuse to work in the acquiring organization, as a result of which they may be fired. In general, as a general rule, reorganization is not a basis for termination.

If it is not possible to accept the entire staff of the merging organizations, then a preliminary one must be carried out, otherwise, it will all go to the acceding one, and the latter will have to take measures to reduce the number of employees.

However, there are exceptions to the above rules, so the Labor Code of the Russian Federation provides that if the owner of the property of an enterprise changes (which actually happens upon merger), within three months from the date the new owner acquires rights, it is possible to terminate employment contracts with the managers (participants in the merger), their deputies and chief accountants, which is logical.

Some features of the procedure

The reorganization of certain categories of legal entities requires Additional requirements. Thus, antimonopoly legislation establishes cases when reorganization must be carried out with the prior consent of the relevant antimonopoly authority (FAS), for example, if amount of assets of all organizations participating in the merger will amount to more than 7 billion rubles.

If the specifics of the activities of the merging companies require availability of special permission (license), then the acquiring company has the right to carry it out only after re-issuance of licenses. This applies to insurance organizations, alcohol trade, communications companies, etc.
As a rule, the legislation establishes specific deadlines for re-registration of documentation after the completion of reorganization procedures. The affiliating organization may obtain a license if the conditions that are mandatory are maintained. Appropriate actions must be taken even if it already has a similar license, but, for example, for a different territory (if we are talking about organizing communications).

In a situation where as part of transferred assets there are results of intellectual activity, the rights to which are registered in the prescribed manner, it is also required to re-register to a new copyright holder.

Features of the enterprise reorganization procedure are discussed in this video:

Possible violations of the reorganization process

Issues related to cases where the reorganization was carried out in violation of the law are also important.

For example, decision on reorganization was adopted by the wrong governing body, or the rights of any participant/shareholder were violated. In these situations, there is a risk that the registration of the termination of the activities of the affiliated organizations will be invalidated.

It is also necessary to take into account that after the above decision was made by the court, the affiliating organization bears all the risks unreliability of information contained in the Unified State Register of Legal Entities, including compensation for losses caused to other persons as a result.

Consequences of violations of order obtaining FAS consent for reorganization will mean that the company can be liquidated or reorganized by a court decision (in the form of separation or division) if there is reason to believe that such merger has led or will lead to a restriction of competition, including the emergence of a dominant entity. And if consent was not requested, then those obligated to send petitions to the antimonopoly authorities will be subject to administrative liability in the form of a fine.

Yulia Vasilyeva
Head of the group for accreditation of foreign missions

The merger of another legal entity is a form of reorganization in which a new company is not created, but the scope of rights and obligations of the continuing company changes.

USEFUL TO KNOW: The goals of participants in the reorganization procedure in the form of a merger can be very different: from an attempt to improve their economic performance and increase their competitiveness in the market of goods, works, services, to an attempt to get rid of the obligations of the company and its creditors (the so-called “alternative liquidation”) .

YOUR POSITION: Current legislation does not provide for the possibility of participating in a reorganization by merging legal entities of various organizational and legal forms (it is impossible to merge an LLC with a JSC and vice versa).
Clause 20 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated November 18, 2003 No. 19.

The company to which the merger is carried out is considered reorganized from the moment an entry is made in the Unified State Register of Legal Entities on the termination of the activities of the merged company. Making entries on the termination of the activities of reorganized companies, as well as state registration of changes in the charter, is carried out in the manner established by Federal Law No. 129-FZ dated 08.08.2001 “On State Registration of Legal Entities and Individual Entrepreneurs”.

At the same time, the choice of one or another organizational and legal form does not in any way affect the reorganization process, since in general terms the merger procedure for both joint stock companies and limited liability companies (the two most popular forms) is completely identical. However, it should be taken into account that it is impossible to merge an LLC with a JSC and vice versa. If it is necessary to merge legal entities of different organizational and legal forms, it is first necessary to transform the acquiring or being acquired legal entity so that in the end all participants in the reorganization have a common organizational and legal form, and then merge. Companies in the form of CJSC and OJSC do not have such restrictions on mergers, since they have a common organizational and legal form - a joint stock company.

Preparation for reorganization. Determining the procedure and timing of the reorganization, agreeing and signing documents for the procedure:

• Reorganization decision
• Treaty of accession
• Transfer deed

Notification stage. Notification of the registration authority and creditors about the start of reorganization in the form of merger, including:

• Making an entry in the Unified State Register of Legal Entities about the beginning of the reorganization
• Notification of territorial bodies of the Pension Fund and Social Insurance Fund
• Publication of an advertisement in the State Registration Bulletin

Registration stage.

• Transfer of documents for state registration to the tax authority at the location of the acquiring company
• Deregistration of affiliated companies

The reorganization in the legal sense is completed, but the acquiring company needs to take a number of actions directly related to the procedure

Stage of registration of the transfer of rights and obligations.

• Transfer of accounting data of the acquired company to the accounting system of the legal successor;
• Re-registration of current accounts, transaction passports, separate divisions and branches;
• Re-registration of real estate;
• Submitting an application to the licensing authority for a new license corresponding to the type of activity of the affiliated company;
• Personnel transfer;
• Re-registration of contractual and non-contractual claims and obligations.

In general, the reorganization process can be divided into the following stages.

Making a decision on reorganization by each company participating in it.

The adoption of such a decision falls within the exclusive competence of the general meeting of participants (clause 1 of article 57 of the Civil Code of the Russian Federation, clause 11 of clause 2 of article 33 of the LLC Law) or the sole participant of the company (Article 39 of the LLC Law). The decision must be made unanimously by the general meeting of participants of each company.

Also at this stage it is necessary to prepare a draft merger agreement and a transfer deed of the acquired company. In accordance with paragraph 1 of Art. 59 of the Civil Code of the Russian Federation, the transfer act must contain provisions on the succession of all obligations of the reorganized legal entity in relation to all its creditors and debtors, including obligations disputed by the parties. Guidelines for the preparation of financial statements during the reorganization of organizations, approved by Order of the Ministry of Finance of Russia dated May 20, 2003 No. 44n, explain what information should be reflected when drawing up the transfer act. It is recommended that the transfer act in paragraph 6 of the Methodological Instructions be timed to coincide with the end of the reporting period (year) or the date of preparation of interim financial statements (quarter, month), which is the basis for characterizing and assessing the transferred property and obligations of the reorganized organization.

The legislation contains practically no requirements for the content of the agreement, with the exception of the indication that it must contain the terms and procedure for holding a joint general meeting of company participants (clause 3 of Article 53 of the LLC Law). We believe that it should contain information about the new composition of participants in the acquiring company and the size of their shares.

In accordance with clause 3.1. Art. 53 of the Law on LLC upon merger of the company are subject to repayment:

1. shares owned by the acquired company in the authorized capital of the company to which the merger is being carried out;
2. shares in the authorized capital of the acquired company belonging to this company;
3. shares in the authorized capital of the merging company belonging to the company to which the merging is being carried out;
4. shares in the authorized capital of this company belonging to the company to which the merger is being carried out.

The general meeting of participants of each company participating in the merger makes a decision on reorganization and approval of the merger agreement, and the general meeting of the company being merged also makes a decision on approval of the transfer act (clause 2 of Article 53 of the LLC Law).

IMPORTANT IN THE WORK: There may be not one, but several, companies being merged; this does not change the essence of the legal procedure; simply the actions mentioned in the article will need to be carried out in relation to each legal entity being merged.

Joint General Meeting

The joint general meeting of participants of the companies participating in the merger makes changes to the charter of the company to which the merger is being carried out, as provided for in the merger agreement, and also, if necessary, resolves other issues, including issues of electing the bodies of the company to which the merger is being carried out.

Notice of reorganization

The company that made the decision on reorganization last, or the company determined by the decision on reorganization, within three working days after the date of the decision made by the latter, is obliged to notify the registration authority in writing about the beginning of the reorganization procedure and its form (clause 1 of article 60 of the Civil Code of the Russian Federation, Clause 1 of Article 13.1 of the Law on State Registration). The notification is submitted in form P12003. Failure to fulfill this obligation on time constitutes an offense under Part 3 of Art. 14.25 Code of Administrative Offenses of the Russian Federation.

IMPORTANT IN WORK: The course of the three-day period provided for in paragraph 1 of Art. 13.1 of the Law on State Registration, begins not from the day of the joint general meeting of participants, but from the date of the last decision made in the manner provided for in paragraph 2 of Art. 53 of the LLC Law.

In addition to the registration authority, the company is also obliged to report the reorganization within the same period to the body monitoring the payment of insurance premiums at its location (clause 3, part 3, article 28 of the Federal Law of July 24, 2009 No. 212-FZ). The special form of such a message has not been approved and can be used arbitrarily.

USEFUL TO KNOW: Previously, legislation imposed on reorganized companies also the obligation to report the decision to the tax authorities at their location in form No. S-09-4, (approved by order of the Federal Tax Service dated 06/09/2011 No. ММВ-7-6/362@) . But by Federal Law No. 248-FZ of July 23, 2013, the norm containing the corresponding obligation (clause 4, clause 2, article 23 of the Tax Code of the Russian Federation) was declared invalid as of August 24, 2013.

Publication in the State Registration Bulletin

After the date of entry into the Unified State Register of Legal Entities about the beginning of the reorganization procedure by the company that last made the decision on reorganization or a certain decision on reorganization, twice with a frequency of once a month in the journal “Bulletin of State Registration” (detailed information is posted on the website on behalf of all legal entities participating in the reorganization notice of reorganization. It contains information about each company participating in the reorganization and about the company continuing to operate as a result of the reorganization, the form of reorganization, a description of the procedure and conditions for creditors to submit their claims, and other information provided for by federal laws (clause 1 of article 60 of the Civil Code of the Russian Federation). , clause 5 of article 51 of the Law on LLC and clause 2 of article 13.1 of the Law on state registration).

In this case, the second notice of reorganization may be published no earlier than the day following the day of expiration of the month period from the date of publication of the first notice (clause 12 of the letter of the Federal Tax Service of Russia dated January 23, 2009 No. MN-22-6/64).

We notify creditors

Within five working days after the date of sending the notice of the start of the reorganization procedure to the registration body of the company, they are required to notify in writing the creditors known to them about the start of the reorganization (Clause 2 of Article 13.1 of the Law on State Registration, Resolution of the Ninth Arbitration Court of Appeal dated August 29, 2011 No. 09AP -17176/11).

Accounting

In accordance with paragraphs. 2, 3 tbsp. 16 of the Federal Law of December 6, 2011 No. 402-FZ “On Accounting” when reorganizing a legal entity in the form of merger, the last reporting year for a legal entity that merges with another legal entity is the period from January 1 of the year in which the entry was made in the Unified State Register of Legal Entities on the termination of the activities of the affiliated legal entity before the date of its entry.

The reorganized legal entity draws up the latest accounting (financial) statements as of the date preceding the date of state registration of the last of the legal entities that emerged (the date of entry into the Unified State Register of Legal Entities on the termination of the activities of the affiliated legal entity).

IMPORTANT IN WORK: Accounting of transactions and their reflection in reporting during reorganization, in particular, in the form of affiliation, is carried out in accordance with the Guidelines for the preparation of financial statements during the reorganization of organizations, approved by Order of the Ministry of Finance of Russia dated May 20, 2003 No. 44n.

By virtue of clause 9 of the Methodological Instructions for the preparation of financial statements when reorganizing organizations, on the day preceding the date of entry into the Unified State Register of Legal Entities the corresponding entry on the termination of activities, the reorganized organization that is terminating its activities prepares final financial statements.

According to clause 20 of the Methodological Instructions for reorganization in the form of merger, the final financial statements are prepared only by the merging organization on the day preceding the entry into the Unified State Register of Legal Entities on the termination of its activities. In this case, the profit and loss account is closed and the amount of net profit of the joining organization is distributed (directed for certain purposes) on the basis of the agreement on the merger of the founders.

An organization in which, in the process of joining another organization to it, on the basis of a decision of the founders, only the volume of property and liabilities changes and the current reporting year is not interrupted, the closure of the profit and loss account in the financial statements does not produce the final accounting statements on the date of state registration of termination does not formulate the activities of the acquired organization in relation to the provisions of clause 9 of the Methodological Instructions (clause 21 of the Methodological Instructions).

Article 18 of Law No. 402-FZ establishes the obligation of economic entities (except for public sector organizations and the Central Bank of the Russian Federation) to submit one legal copy of annual accounting (financial) statements to the state statistics body at the place of state registration no later than three months after the end of the reporting period .

That is, the norms of the legislation on accounting, even after the entry into force of Law No. 402-FZ, still provide for the preparation of final financial statements, but do not regulate the procedure and timing of its submission to the tax authority. In turn, paragraphs. 5 p. 1 art. 23 of the Tax Code of the Russian Federation provides that the taxpayer is obliged to submit financial statements to the tax authority at his location, however, from January 1, 2013, this obligation is also provided only for annual financial statements.

Thus, the current legislation does not provide for the submission of final financial statements to the tax authority during reorganization. Moreover, from the moment an entry is made in the Unified State Register of Legal Entities about the termination of the activities of the affiliated organization, its obligation to submit financial statements to the tax authorities ceases, since it is removed from tax registration as a legal entity (clause 5 of Article 84 of the Tax Code of the Russian Federation). In other words, from the moment of making a record in the Unified State Register of Legal Entities on the termination of the activities of the affiliated organization, the affiliated organization has no obligation to submit final financial statements to the tax authority with which it was registered. At the same time, in our opinion, the successor organization also does not have the obligation to present the final financial statements of the affiliated organization.

USEFUL TO KNOW: Federal Law No. 423-FZ dated December 28, 2013, the notification procedure provided for in Art. 30 of the Federal Law “On the Protection of Competition” (no later than forty-five days after the date of accession, the company must notify the antimonopoly authority of the reorganization), repealed.

State registration of reorganization

The documents specified in clause 3 of Art. 17 of Law No. 129-FZ on state registration.

If changes are made to the constituent documents of a legal entity continuing its activities, their state registration is carried out in accordance with paragraph 1 of Art. 17 of the Law on State Registration. An application is submitted to the state registration authority in form P12001. In relation to the acquired legal entity that ceases its activities, an application is submitted in form P16003. In addition, an application is submitted to the registering authority to make changes to the Unified State Register of Legal Entities regarding information about its participants or other information, in accordance with clause 2 of Art. 17 of the Law on State Registration. Registration is carried out within no more than five working days from the date of submission of documents to the registering authority (clause 3 of Article 18 of the Law on State Registration). Upon merger, all rights and obligations of the merged company in accordance with the transfer act are transferred to the company that continues to operate (Clause 4, Article 53 of the LLC Law). In addition, the LLC being merged must be removed from tax registration.

Tax audit

When one legal entity merges with another legal entity, the legal successor of the merged legal entity in terms of fulfilling the obligation to pay taxes is recognized as the legal entity that merged it. The legal successor of the reorganized legal entity in the execution of Art. 50 of the Tax Code of the Russian Federation, the obligation to pay taxes and fees (fines, fines) enjoys all rights, fulfills all obligations in the manner prescribed by the Tax Code of the Russian Federation for taxpayers (clause 2 of Article 50 of the Tax Code of the Russian Federation).

When conducting an on-site tax audit carried out in connection with the reorganization, a period not exceeding three calendar years preceding the year in which the decision to conduct the audit was made (clause 11 of Article 89 of the Tax Code of the Russian Federation, see also clause 8 of the letter of the Federal Tax Service of Russia dated 09.13.2012 No. AS-4-2/15309, letter of the Ministry of Finance of Russia dated 07.29.2011 No. 03-02-07/1-267).

Thus, the tax authority has the right to conduct an on-site tax audit of the legal successor for the period of activity of the reorganized legal entity (merged), not exceeding three calendar years preceding the year in which the decision to conduct the specified tax audit was made. The tax authorities can conduct an audit of the activities of a reorganized entity both as part of an unscheduled on-site tax audit of this entity, and as part of an audit of the activities of the taxpayer-legal successor regarding the fulfillment of the obligations transferred to him to pay taxes from the reorganized (merged) entity (letter of the Ministry of Finance of Russia dated 16.12. 2011 No. 03-02-07/1-435, resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated January 14, 2008 No. A82-4644/2007-14 (by the decision of the Supreme Arbitration Court of the Russian Federation dated May 19, 2008 No. 5863/08, the transfer of this case to the Presidium of the Supreme Arbitration Court was refused RF), West Siberian District dated April 14, 2008 No. F04-2275/2008(3239-A27-15), resolution of the Federal Antimonopoly Service of the North-Western District dated September 19, 2013 No. A56-75256/2012 (determined by the Supreme Arbitration Court of the Russian Federation dated December 23, 2013 No. VAS-18603/13 refused to transfer this case to the Presidium of the Supreme Arbitration Court of the Russian Federation), determination of the Supreme Arbitration Court of the Russian Federation dated September 10, 2010 No. VAS-11575/10).

The Tax Code of the Russian Federation has not established any special rules for conducting such a check (see also letter of the Ministry of Finance of Russia No. 03-02-07/1-48 dated 02/05/2009). At the same time, we draw attention to clause 7 of the letter of the Federal Tax Service of Russia dated December 29, 2012 No. AS-4-2/22690, which states that if such accession occurred before the start of the audit, the decision to schedule an on-site tax audit is made in relation to the audited enterprise with a separate indication of the name of the affiliated organization. If the reorganization occurred during the audit, then a separate decision is made to order an audit of the taxpayer in relation to the merged organization. The departments of the Federal Tax Service of Russia for the constituent entities of the Russian Federation were instructed to bring this letter to the lower tax authorities.

The taxpayer is obliged to ensure that tax officials conducting an on-site tax audit have the opportunity to familiarize themselves with documents related to the calculation and payment of taxes (clause 12 of Article 89 of the Tax Code of the Russian Federation). When conducting an on-site tax audit, the taxpayer may be required to provide the documents necessary for the audit in the manner prescribed by Art. 93 Tax Code of the Russian Federation.

How to re-issue a previously concluded agreement during reorganization through the merger of an institution?

Answer