It is often difficult for small enterprises to stand on their own in the face of fierce market competition, so they are forced to either stop their activities or look for other ways to organize work.
One of these ways is to reorganize the enterprise, that is, change its organizational and legal form.
For small enterprises, the most appropriate option would be to turn to a form of reorganization such as a merger.
It allows you to combine the property of several organizations and create one large enterprise on their basis.
The merger of organizations has its own characteristics and advantages over other forms of reorganization, which include the necessary documents, as well as the consequences for owners and staff.
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One of the forms aimed at consolidation, the reorganization of a legal entity is the merger of enterprises.
This form is a process in which several existing enterprises cease their activities, and on their basis a completely new legal entity is created.
The consequences of the merger will be the following events:
Mergers are also often used as an alternative to liquidation, as they help to quickly terminate the activities of unprofitable companies.
Acquisition and merger are two similar forms of reorganization, however, despite many similarities, they also have significant differences.
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Therefore, the choice between them largely depends on the characteristics and characteristics of specific enterprises.
Accession is the only form of reorganization, as a result of which information about the new enterprise is not entered into the Unified State Register of Legal Entities.
On the contrary, one or more legal entities are removed from the register.
At the same time, all property and debts as a result of the closure of an LLC through a merger of enterprises are transferred to the successor, the organizational and legal form of which does not change.
Another feature of the connection is the fact that for its implementation it is not necessary to obtain a certificate of the absence of debts from the FIU.
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Often, it is the absence of this document that is the basis for refusing to reorganize.
It combines all the assets of the predecessors and allows you to start a new activity more efficiently, with big amount opportunities.
In general, the merger procedure is easier than the merger of an LLC. However, the first form may violate the rights of participants, while the second provides the most equal opportunities for all reorganized enterprises.
Since at least two entities take part in the merger of organizations by way of accession economic activity, the algorithm of actions will be somewhat different from all other forms:
Stage 1. At this stage, all participants in the reorganization hold general meetings of owners and, by voting, decide on the reorganization. The results are documented in a protocol (if there are several owners) or in the form of a decision on reorganization (if there is one owner). Also, each company must conduct an inventory of assets, draw up a deed of transfer and take care of paying off their debts.
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Stage 2. Holding a joint meeting of participants in the reorganization, which is attended by representatives of each company. At this stage, it is necessary to sign the final decision on the reorganization (in the form of a merger agreement), develop and approve the draft charter of the newly created enterprise, and, based on the data submitted by the companies, form a general act of transfer.
Stage 3. Notification of the registration authority of the decision to carry out the merger. For this, the participants in the procedure are given three days from the moment of signing the agreement (agreement) on the merger.
Stage 4. Notice to all known creditors. These actions must be taken by all participants in the reorganization, in the event of a merger of a company with debts. Notification occurs in two ways:
It is also necessary to take care of the repayment of all debts to the tax office and extra-budgetary funds, in particular, to the PFR. All known debts and claims must be settled before the completion of the merger procedure.
Stage 5 Submission of a package of necessary documents to the registration authority to start the reorganization procedure.
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Stage 6 Registration of a new enterprise in the Unified State Register of Legal Entities and receipt of documents confirming the merger procedure.
The duration of the merger usually ranges from 2-3 months to six months, depending on the size and specific types reorganized enterprises.
The list of documents required for reorganization by merging can be divided into two groups:
After that, the new enterprise can start its work in accordance with the chosen type of activity and available opportunities.
With any form of reorganization, the changes that have occurred in the company will affect such an element of the enterprise as personnel. The merger is no exception, some personnel changes will occur in this case as well.
What will happen to employees when organizations merge by joining?
It is worth highlighting several rules for the reorganization that directly relate to employees:
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Obviously, in most cases, layoffs are still inevitable. According to the labor code, employees cannot be fired due to the reorganization of structural divisions through a merger, however, after the completion of the procedure, the management of the new enterprise will be able to legally reduce staff.
Each reorganized company, before carrying out the procedure, must prepare the final financial statements, the date of which will be the day before the entry on the merger in the Unified State Register of Legal Entities. It includes the balance sheet, as well as income statements, cash flows and changes in equity.
Also, the “Profit and Loss” account must be closed, the funds from which are distributed according to the decision of the owners.
After the reorganization, all the debts of the old companies are completely transferred to the successor.
If one of the predecessor enterprises had debts to the tax or funds, they will be transferred to the account of the new organization.
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It is desirable to submit tax declarations to reorganized companies, however, this can be done by their legal successor after the completion of the procedure.
An important point is the fact that the reorganization is not the basis for changing the periods for paying taxes or reporting.
The new company is obliged to hand over all documents in the term established by the legislation.
Reorganization is one of the alternative ways to liquidate an LLC, and often it is caused by the debt of one enterprise to another.
However, a merger is also possible - in this case, both participants will stop their work.
When companies merge, one of which has obligations to the other, there is a coincidence of the creditor and the debtor in one person.
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And this, in accordance with Art. 413 of the Civil Code of the Russian Federation, is the basis for the termination of debt obligations.
Civil Code of the Russian Federation. Article 413. Termination of an obligation by the coincidence of the debtor and creditor in one person An obligation is terminated by the coincidence of the debtor and creditor in one person, unless otherwise established by law or follows from the nature of the obligation.
Therefore, in this case, such a procedure for reorganizing an institution through a merger will lead to the cancellation of debts, and new company be able to start from scratch.
The merger of two organizations into one is a form of reorganization that aims to create new, larger enterprises.
It is advisable to conduct it in cases where small companies or a debtor with a creditor want to unite.
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In the first case, all participants will be able to organize a stronger and more competitive business, in the second case, they will receive mutual benefits and continue working without mutual obligations.
(Saint Petersburg)
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WHAT to offer people during the reorganization of two firms: transfer or dismissal without compensation?
As I understand it, you want to offer people a layoff and then a hire. In this case, you interrupt the continuous experience and people lose their seniority bonus. It is best if you issue a transfer in connection with the reorganization of the enterprise.
Russia, Moscow, st. Stromynka, house 19, bldg. 2, entrance 1, office 113 (contacts, Google+).
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Affiliation of an enterprise is the termination of the activities of one or more legal entities carried out by transferring their rights and obligations to another (already operating) successor organization.
A business merger differs from a takeover in that the successor entity is a completely new business.
These procedures are effective way alternative liquidation of a legal entity. Their main advantages:
Being alternative way, liquidation by affiliation is associated with certain risks:
Curious to know everything about the voluntary liquidation of a CJSC? Follow this link.
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If the decision is made and the process of liquidation by merger is necessary, then the company will have to go through several stages of reorganization.
On this stage a general meeting of the founders of each of the enterprises participating in the procedure is held. Its purpose is to make a decision on carrying out a reorganization in the form of a merger and conclude a merger agreement.
Within the framework of this agreement, the stages and terms of the reorganization procedure, the rights and obligations of each of the enterprises participating in it, the distribution of reorganization costs between them and a number of other important points are determined.
For the initial package of documents, the following are also prepared:
Within three days after the decision on the reorganization is made, all enterprises participating in this process are required to notify the tax authorities at the place of registration.
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The following documents are provided for this:
Within the same three-day period, the following documents are submitted to the registering tax authority of the main organization:
After three working days, the IFTS provides a certificate of commencement of the accession procedure. At the same time in the United State Register legal entities, a corresponding entry is made.
To notify all creditors about the beginning of the reorganization of enterprises, five working days are allocated from the date of receipt of a certificate of the beginning of the reorganization.
Each of the enterprises participating in the merger (merger) must do so in writing. It is more rational to send a message by mail with a notification of receipt, it is better to add an attachment description to it. Letter sample.
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Publication is the responsibility of the company authorized to do so within the framework of the reorganization decision. This is usually taken over by the main enterprise.
Publication is carried out at least twice with an interval of at least 30 days from the date of publication of the first notification.
In accordance with the Law “On Protection of Competition”, if the assets of the reorganized organizations exceed 3 billion rubles, it is required to obtain consent to the merger from the antimonopoly authority. The decision is made within 30 days from the date of submission of documents, but this period may be extended.
All societies conduct an inventory of property. The inventory data of the merging companies shall be entered in the deed of transfer.
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After that, a general meeting of all participants is held to:
The results of the meeting are recorded in the minutes of the general meeting.
State registration of changes in the constituent documents of the successor organization and liquidation of the merging companies requires the following package of documents:
What is public liquidation non-profit organization? Read here.
Liquidation of a representative office of a foreign company is one of the most complex, lengthy and expensive registration procedures. All about it at this address.
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For state registration of changes, a package of documents indicated in the previous paragraph is submitted to the registering authority. Forms 13001 must be notarized.
At the end of the five-day period, an entry is made in the Unified State Register of Legal Entities on the liquidation of the affiliated companies and the registration authority issues Required documents. At this point, the procedure for liquidating the enterprise by merger is considered completed.
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The company can be reorganized by way of takeover and merger. What are the differences between these methods of reorganization?
Upon merger, the activities of one or more merged companies are terminated, and all rights and obligations are transferred to another (acquired) company (clause 1, article 53 of the Law of 08.02.1998 No. 14-FZ):
Lyutik LLC + Vasilek LLC = Vasilek LLC
That is, in this case we are talking on the complete transfer of rights and obligations to the existing company in accordance with the deed of transfer, and the merged companies cease their activities.
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Making entries in the Unified State Register of Legal Entities containing information related to the completion of the company's activities on the merger of another company with the company is carried out by the registering authority at the location of the company to which the merger is carried out.
By itself, the recognition of the decision of the meeting on the reorganization and the agreement on the merger of the company as invalid (insignificant) cannot entail such legal consequences as the restoration of companies that existed before the reorganization (determination of the Supreme Court of the Russian Federation of March 18, 2015 No. 305-ES).
When a company is merged, a new company is created with the transfer of all rights and obligations of the merged companies in accordance with the deed of transfer (clause 1 of article 52 of the Law of 08.02.1998 No. 14-FZ):
OOO Lyutik + OOO Vasilek = OOO Narcissus
The reorganization by way of a company merger is considered completed from the moment of state registration of the newly established successor company. In the event of a merger, the companies that existed before the reorganization terminate their activities.
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During the reorganization in the form of a merger, all the merged companies cease their activities, and instead a new company appears with completely different details (new TIN, KPP, etc.). All information about "old" companies is excluded from the Unified State Register of Legal Entities.
In case of reorganization in the form of affiliation, all merging companies cease their activities, but no new company arises. The main company, to which other companies join, retains all the details (TIN, KPP, etc.).
In both cases, the reorganized company is obliged to notify creditors of the start of the reorganization procedure by publishing a message in the State Registration Bulletin (par. 2, clause 1, article 60 of the Civil Code of the Russian Federation, clause 5, article 51 of Law No. 14-FZ ).
Reorganization in the form of a merger involves the creation of a new company, which makes it impossible to maintain licenses, permits, etc., which are issued to a specific legal entity. In this case, licenses are reissued in the manner prescribed by paragraph 3 of article 18 of the Law of 04.05.2011 No. 99-FZ "On Licensing Certain Types of Activities", only if each company participating in the merger has a license for the same type of activity as of the date of state registration of the legal successor of the reorganized companies. other companies) retain licenses, permits, etc.
By general rule 50 of the Tax Code of the Russian Federation, if the reorganized company did not pay or could not pay taxes (fees) before its reorganization, then this obligation is fulfilled by its successor (successors).
In the event of a merger of several companies, the new company that has arisen as a result of such a merger is recognized as their legal successor in terms of fulfilling the obligation to pay taxes (clause 4, article 50 of the Tax Code of the Russian Federation). When one company is merged with an existing company, the successor of the merged company in terms of fulfilling the obligation to pay taxes is recognized as the company that merged it (clause 5, article 50 of the Tax Code of the Russian Federation).
Reorganization, both in the form of a merger and in the form of accession, is most often used to optimize taxation (for the application of a special regime, etc.).
And most of all claims arise in terms of joining a loss-making company to a profitable company. The fact is that a taxpayer who, as a result of financial and economic activities, has received losses taken into account when calculating income tax, has the right to reduce the tax base for losses within ten years, counting from the year following the year of the loss (Article 283 of the Tax Code RF).
And since, when a company is merged and merged, in terms of paying taxes, the successor enjoys all the rights of a reorganized legal entity, the losses are transferred to the new (in case of merger) and existing (in case of merger) company.
If the loss of a company reorganized by merger occurred in the last tax period for it, then the successor has the right to take into account such a loss in the period following the tax period in which the merger took place (Letter of the Ministry of Finance of the Russian Federation dated March 30, 2016 No. / 1/17811).
At the same time, if the successor company does not have primary accounting documents of the reorganized legal entity confirming the amount of the loss incurred by it and the period of its occurrence, the tax authorities refuse the right to reduce taxable profit.
These conclusions correspond to the legal position of the Supreme Arbitration Court of the Russian Federation set out in the decision of the Presidium of July 24, 2012 No. 3546/12 and are supported by arbitration courts (Decree of the Seventh Arbitration Court of Appeal of December 4, 2015 No. A / 2014, decision of the Arbitration Court of the Sverdlovsk Region of July 27. 2015 No. A/2015).
However, if such a reorganization has the sole purpose of minimizing taxes, and not carrying out real activities, the courts can support the position of the tax authorities on obtaining unjustified tax benefits (determination of the Supreme Arbitration Court of the Russian Federation dated March 13, 2008 No. 2789/08).
Often there are situations when it is simply impossible to do without the liquidation of the organization. In this case, an important aspect is the choice of the type of liquidation.
It is good if the procedure takes a minimum of time and does not require so much financial costs. One of the most common options for terminating an enterprise is liquidation by affiliation.
Accession is one of the ways of alternative liquidation. Liquidation by acquisition is often used to consolidate a business, while merging several subsidiaries.
The basis of the entire procedure is to perform a set of actions to terminate the activities of the affiliated organization, while all obligations of the liquidated company are transferred to the new enterprise. The affiliated companies completely cease their activities and are excluded from the Unified State Register of Legal Entities.
The main difference between a takeover and a merger is that during a merger, the work of all liquidated organizations is terminated, and a completely new legal entity with a new name is created on their basis.
Upon merger, subsidiaries “merge” into an existing successor. At the same time, the receiving party fully retains the former name, details and type of activity.
According to the documentation submitted by the parties to the process, the tax authority makes the necessary entries in the Unified State Register of Legal Entities twice:
Liquidation by joining should be carried out, strictly observing the phased actions. This will help to avoid further problems associated with regulatory authorities, and will also help to complete the procedure quickly and without unnecessary hassle. Let's consider the main stages of the liquidation of a CJSC by joining an LLC.
To start the procedure, the leaders and founders of each of the parties must hold a general meeting of participants. It is necessary to put on the agenda the question of the expediency of the procedure, determine the procedure, timing and other nuances.
At this stage, it is also necessary to draw up an agreement with the successor organization that regulates the main provisions of the process of liquidation by accession.
The contract must state:
After signing the contract by both firms, the successor is responsible for the quality and timely conduct of the liquidation.
In addition to the contract, the following list of documents should be prepared:
After approval of the decision on liquidation in the order of accession, it is necessary to notify the tax service within three days with the provision of the above documentation.
After the tax authority makes an appropriate entry in the Unified State Register of Legal Entities about the start of the merger procedure, the responsible persons must notify the creditors.
A note is submitted to the periodical "Bulletin of State Registration" indicating the legal address of the liquidated enterprise, the timing and contact information for communication with the management.
The announcement must be submitted twice, and the second - not earlier than one month after the publication of the first.
Creditors have the right, approved at the legislative level, for a period of two months, during which they can present their claims. After the expiration of the period, it will be possible to restore justice only in court.
In addition to publication in the media, written notifications must be sent out. This is done by sending registered letters with a description of the attachment. The form is not approved by law, therefore, responsible persons can notify creditors in a free form.
It is necessary to draw up a register of creditors. It must contain the following information:
Subject to registration the following types requirements:
The creditor is included in the register only in case of presenting the relevant requirements to them.
The current legislation defines a special procedure for the liquidation of especially large enterprises. The procedure requires consent from the FAS. However, this applies only to companies whose assets exceed 3 billion rubles.
In other cases, obtaining approval from the antimonopoly service is not mandatory. The planned term for the provision of a decision from the FAS is 1 calendar month.
Each party must conduct an inventory. The information obtained as a result will be reflected in the transfer act. The act is a mandatory document in case of liquidation by accession. The data of the act is subsequently used to draw up balance sheets and consolidated financial statements.
At the last stage of liquidation, the final package of documents should be prepared. The list is presented in the next section.
After the submission of the entire package of documentation to the registration authority, the state registration of changes in the Unified State Register of Legal Entities takes place. The procedure is carried out within five working days. Thereafter, liquidation by affiliation may be considered completed.
At the preliminary stage you will need:
On final stage will need:
Not in every case it will be expedient to apply liquidation by way of accession. This way you can use:
You should not approach the choice of the type of liquidation unconsciously. It is necessary to consider all the methods, evaluate the feasibility of each applicable to a particular enterprise, study all the pros and cons, foresee the risks, and only then make a decision.
Features of the liquidation of an enterprise by merger:
There is no liquidation that can be carried out without any risks. In every case, there is a certain probability that everything will not go according to plan.
However, everything can be foreseen and the necessary measures can be taken to reduce all kinds of risks and undesirable circumstances even before they arise.
Consider what risks may lie in wait for the participants in the process:
The main advantages of joining are:
Liquidation by affiliation is a fast and profitable way to terminate operations. In the process, obligations are transferred in the order of succession to the main organization, which makes it liable under the law for all debts of the affiliated legal entity.
The order of the procedure is clearly regulated, which allows you to quickly and efficiently complete the reorganization. Participants on both sides must strictly abide by the laws to avoid possible problems by the regulatory authorities.
A merger is the merging of several businesses into one. The merger process is subject to general order reorganization of legal entities (Articles 57-60.2 of the Civil Code of the Russian Federation), but at the same time it has its own peculiarities. How to carry out such a procedure and what is needed for this, we will consider in our article.
A set of actions related to the completion of activities by existing organizations and the transfer of all their rights and obligations to a newly created company is called a merger.
The decision to merge organizations may be taken by their participants or by a body endowed with appropriate powers.
In some cases, despite the decision taken, such a change is possible only with the permission of the authorized bodies. For example, if the total value of assets of commercial organizations as of the last reporting date exceeded 7 billion or 10 billion rubles. their total revenue from sales of the previous year, then their combination is possible with the consent of the antimonopoly authority (Article 27 of the Federal Law “On Protection of Competition” dated July 26, 2006 No. 135-FZ).
IMPORTANT! In accordance with par. 2 p. 3 art. 64 of the Federal Law "On Bankruptcy" dated October 26, 2002 No. 127-FZ, after the introduction of the monitoring procedure, the management bodies of the organization are prohibited from making decisions on reorganization.
From 2 organizations can take part in the reorganization, even those created in different forms(Clause 1, Article 57 of the Civil Code of the Russian Federation). More information about changing the legal status of organizations is described in the article "Reorganization of a legal entity is ...".
To, for example, merge with an organization of another form, one must first transform into the form of this organization. For example, a joint-stock company can become a production cooperative (Article 104 of the Civil Code of the Russian Federation). But laws may contain restrictions on such transformations.
Reorganization in the form of a merger is provided for by civil law for all organizations. However, they have their own characteristics:
When specified in the law, the parties draw up an agreement in which, for example, the following should be established:
The contract may also contain other information (clause 3.1, article 16 of Law No. 208-FZ).
The newly created person in the course of the merger assumes all the obligations of the reorganized organizations.
The document confirming such succession is a deed of transfer (Article 59 of the Civil Code of the Russian Federation). It reflects the transfer of all rights and obligations to the new organization.
That is, the succession is carried out in relation to all creditors, debtors, both for existing obligations (including disputed ones), and for those that may arise, change or terminate after the deed of transfer is drawn up.
Attached to the deed of transfer:
The deed of transfer is approved by the persons who made such a decision and is submitted during registration.
In the order of succession, the created entity also receives obligations to pay taxes, fees of reorganized entities, as well as all due penalties and fines (Article 50 of the Tax Code of the Russian Federation).
IMPORTANT! The merger procedure does not affect the timing of the fulfillment of obligations to pay taxes and fees.
The amounts excessively paid by the person prior to the reorganization will either be distributed proportionally to his other debts, or set off against the fulfillment by the assignee of obligations to pay arrears, and in the absence of debts - returned to the assignee.
3 working days are given for filing an application for registration, the countdown of which starts from the day following the date of the decision on the merger.
Further, the organization that made the last decision on the reorganization (unless otherwise agreed by the parties), twice with a difference of a month, information about such changes is placed in the State Registration Bulletin.
The law may establish the obligation of the organization to notify creditors in writing of its transformation.
For the registration of a legal entity created by reorganization, it is necessary to submit the following documents (Article 14 of the Federal Law “On State Registration of Legal Entities and individual entrepreneurs"dated 08.08.2001 No. 129-FZ):
The documents required to complete the reorganization procedure are submitted to the registering authority either 30 days after the last publication of the message in the journal, or 3 months after the entry in the register on the beginning of the reorganization (letter of the Federal Tax Service of Russia dated 14.08.2015 No. GD-4-14 /14410).
Registration is carried out at the location of the organization that sent such a message.
The procedure for registering an accession, as well as a merger, is subject to the general procedure for the reorganization of legal entities. But it's important to understand that merger of organizations and attachment, despite their apparent similarity, are 2 different forms:
Also, each procedure has its own characteristics of the formation of indicators for their fixation in the financial statements of the organization. For example, guidelines, approved by order of the Ministry of Finance of Russia dated May 20, 2003 No. 44n, established following rules(except for credit organizations and state institutions):
Procedure mergers of organizations has a fairly clear order. At the same time, such a reorganization has its own characteristics, for example, in making a decision to merge, drawing up documents necessary for the transfer of rights and obligations, etc. Such features are provided for by special normative documents regulating merger of organizations depending on their form and the activities they carry out.
Reorganization in the form of a merger. A merger is a form of reorganization of legal entities, in which the rights and obligations of each of these entities are transferred to a newly emerged legal entity in accordance with the deed of transfer. The reorganization of a legal entity through a merger is considered completed from the moment an entry is made in the Unified State Register of Legal Entities on the creation of a new legal entity. At the same time, the legal entity created during the merger becomes the full successor of all rights and obligations of the merged organizations. It should also be borne in mind that relations arising from a merger, as a result of which at least one legal entity is created in an identical pre-existing form, are subject to the rules on merger within the same legal form, respectively, and in relation to merging legal entities, as a result of which a legal entity of a different organizational and legal form is created - the relevant rules relating to the merger of the legal entity that is obtained as a result of the merger. Thus, in the merger process, it is necessary to take into account the requirements for the merger of two or more types of legal entities. In the process of reorganization by way of merger, it is not allowed to change the composition of participants (founders). It is necessary to introduce new or withdraw old participants either before the reorganization or after. Since the merger involves the liquidation of the legal entities participating in the reorganization with the transfer of all rights and obligations to the newly created legal entity, it is necessary to notify all creditors of the merging legal entity about the upcoming reorganization, as well as publish information about the upcoming reorganization in a specialized periodical publication - State Registration Bulletin. It is necessary to notify the creditors within 5 days from the date of the decision on reorganization. Creditors of legal entities participating in the reorganization within thirty days from the date of sending notifications to them or within thirty days from the date of publication of a notice of decision has the right to demand in writing early termination or performance of the relevant obligations of the legal entity and compensation for their losses. The legal entities participating in the reorganization transfer all their rights and obligations to the newly created legal entity. All rights and obligations of merging legal entities, as well as provisions on legal succession, must be reflected in the transfer acts, which are approved by the relevant management body of each of the legal entities participating in the reorganization (in LLC - by the General Meeting of Participants, in JSC - by the General Meeting of Shareholders).
Liquidation represents the termination of a legal entity without succession, i.e. without transfer of rights and obligations to other persons. The legal basis for the liquidation of organizations and individual entrepreneurial activities is enshrined in the Civil Code of the Russian Federation and other acts.
There are the following types of liquidation of legal entities:
1) voluntary;
2) forced;
Voluntary liquidation is carried out by decision of the founders (participants) of a legal entity or a body of a legal entity authorized to do so by the constituent documents. The decision to liquidate a state or municipal unitary enterprise may be made by the owner of the property - the relevant state body or local self-government body. Article 61 of the Civil Code of the Russian Federation contains an approximate list of grounds for voluntary liquidation, in particular: the expiration of the period for which the organization was created; achievement of the purpose for which it was created, etc.
Forced liquidation is carried out on the basis of a court decision in the following cases:
Carrying out activities without proper permission (license);
Carrying out activities prohibited by law;
Repeated or single, but gross violation of the law or other legal acts, etc. (Article 61 of the Civil Code of the Russian Federation).
The above list is not exhaustive. The grounds for forced liquidation may also be provided for by other articles of the Civil Code of the Russian Federation (for example, Articles 65, 81 of the Civil Code of the Russian Federation). A state body or a local self-government body may apply to the court with a demand for liquidation if such a right is granted to it by law. In particular, the Federal Antimonopoly Service of Russia, the Federal Tax Service of Russia, the Ministry of Finance of the Russian Federation, the Central Bank of the Russian Federation (hereinafter - the Ministry of Finance of Russia) have such a right.
The liquidation process goes through several stages, listed below.
1. Adoption by authorized bodies of a decision on the liquidation of a legal entity.
2. The founders (participants) of a legal entity or the body that made the decision to liquidate the legal entity are obliged to notify in writing within three days the registering body at the location of the legal entity being liquidated, attaching the decision to liquidate the legal entity. The registering body makes an entry in the Unified State Register of Legal Entities that the legal entity is in the process of liquidation. From this moment on, state registration of changes made to the constituent documents of a liquidated legal entity, as well as state registration of legal entities, the founder of which is the specified legal entity, or state registration of legal entities that arise as a result of its reorganization are not allowed (Article 20 of the Federal Law " On State Registration of Legal Entities and Individual Entrepreneurs).
3. Appointment of the liquidation commission (liquidator) by the founders (participants) of the person or the body that made the decision on liquidation, in agreement with the registering body. From the moment of appointment of the liquidation commission (liquidator), the powers to manage the affairs of the legal entity, including the right to speak on behalf of the liquidated legal entity in court, pass to it.
4. Publication of liquidation in the press, which usually publish data on state registration of legal entities. The publication should reflect: the name of the liquidated legal entity; date of adoption of the decision on liquidation; the body that made the decision to liquidate; identification number of the taxpayer and the number of the liquidated person in the register; the procedure and term for filing claims by creditors, which may not be less than two months from the date of publication; method of communication with the liquidation commission (address, telephone, fax).
5. Re-issuance of a bank card with sample signatures of persons entitled to dispose of the funds on the account to the head and members of the liquidation commission.
6. Formation of assets and liabilities of the organization. To this end, the liquidation commission identifies creditors (the latter must be notified in writing of the liquidation of the debtor), measures are taken to obtain receivables, and an inventory of property is carried out.
7. Withdrawal from the membership of other legal entities.
8. Dismissal of employees in accordance with the requirements provided for by labor legislation.
9. Drawing up an interim liquidation balance sheet at the end of the period allotted for creditors to submit claims. The balance sheet is approved by the founders (participants) of the legal entity or the body that made the decision to liquidate; coordinated with the state registration authority (where the original or a certified copy of the balance sheet is sent). The balance sheet must contain information on the composition of the property of the liquidated legal entity, a list of claims submitted by creditors and the result of their consideration. If the assets of the organization are not sufficient to satisfy the claims of creditors, the liquidation commission (liquidator) is obliged to apply to the arbitration court with an application for declaring the debtor bankrupt (Article 224 of the Federal Law of September 27, 2002 No. 127-FZ “On Insolvency (Bankruptcy)”) . In this case, the legal entity is liquidated in the manner prescribed by § 1 Ch. 9 of the Federal Law "On Insolvency (Bankruptcy)".
10. Settlements with creditors in the order of priority established by Art. 64 of the Civil Code of the Russian Federation, begin from the date of approval of the interim liquidation balance sheet, with the exception of creditors of the fifth priority, payments to which are made after a month from the date of approval of the balance sheet.
11. Drawing up a liquidation balance sheet, which is approved by the founders (participants) of the legal entity or the body that made the decision to liquidate. The balance must be agreed with the registration authority.
12. Submission to the body carrying out state registration (tax authorities) of the following documents:
a) statements confirming compliance with the liquidation procedure, completion of settlements and coordination of liquidation issues with the relevant state bodies;
b) liquidation balance sheet;
c) a document confirming the payment of the state fee.
State registration of liquidation is carried out at the location of the liquidated legal entity within a period not exceeding five working days.
The reorganization by way of a company merger is considered completed from the moment of state registration of the newly established successor company. In the event of a merger, the companies that existed before the reorganization terminate their activities. Civil law differences between reorganization by merger and merger When reorganizing in the form of a merger, all the merged companies cease their activities, and instead a new company appears with completely different details (new TIN, KPP, etc.). All information about "old" companies is excluded from the Unified State Register of Legal Entities. In case of reorganization in the form of affiliation, all merging companies cease their activities, but no new company arises. The main company, to which other companies join, retains all the details (TIN, KPP, etc.).
Attention
PreviousPage 4 of 6Next ⇒ At its core, the merger of business companies is the creation of a new company with the transfer of rights and obligations of two or more business companies, the activities of which are terminated. In this case, there is a kind of equality of legal entities, because both business companies cease their activities. A merger is understood as the termination of one or more business companies with the transfer of all their rights and obligations to another company. The merged companies actually lose their independence, voluntarily merging into another business company. The reorganization procedure is more fully developed for joint-stock companies.
The board of directors of the company to which the merger is being carried out also submits other issues for decision by the general meeting of shareholders of such a company, if this is provided for by the merger agreement. In addition, the board of directors of the merging company submits for decision by the general meeting of shareholders the issue of approving the deed of transfer. Holding general meetings of shareholders of reorganized companies.
The general meeting of shareholders of each company participating in the merger makes a decision on the reorganization of each such company in the form of a merger, which includes: approval of the merger agreement and the deed of transfer of the company participating in the merger; approval of the charter of a company created by reorganization in the form of a merger; making decisions on the issue of electing members of the board of directors.
Standard tax deductions. The successor company provides employees with such deductions from the moment they start working in that company, taking into account the salary received since the beginning of the calendar year in which the reorganization took place. Property deduction. If an employee received a property deduction from a former employer, he will not be able to receive it automatically from the successor, since the notification of confirmation of the right to a property deduction (approved by Order of the Federal Tax Service of Russia dated December 25, 2009 N MM-7-3 /) indicates the former employer.
In order for the assignee to start providing the deduction, the employee must receive a new notification (Letters of the Ministry of Finance of Russia dated 08.25.2011 N 03-04-05 / 7-599 and the Federal Tax Service of Russia dated 09.23.2008 N 3-5-03 /) and write an application for the deduction ( article 220 of the Tax Code of the Russian Federation).
Law N 208-FZ) Employment contract upon reorganization in the form of a merger or takeover When a company is reorganized in the form of a merger or takeover, an employment contract (Article 56 of the Labor Code of the Russian Federation) with a conditional labor function (work in a certain specialty, qualification or position) remains in force (Article 15 of the Labor Code of the Russian Federation). At the same time, labor relations with employees: - continue with their consent in the new (reorganized) company (part 5 of article 75 of the Labor Code of the Russian Federation); - terminated if employees do not agree to continue labor activity in a new, from their point of view, organization (including with a new director and chief accountant). In the case under consideration, it is considered that the employment contract is terminated at the initiative of the employee, but on a special basis provided for in paragraph 1 of Art.
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The company can be reorganized by way of takeover and merger. What are the differences between these methods of reorganization? Before turning to the differences between two of the five existing forms of reorganization, let us briefly recall the essence of these forms of reorganization. Upon merger, the activities of one or more merged companies are terminated, and all rights and obligations are transferred to another (acquired) company (clause 1, article 53 of the Law of 08.02.1998 No.
No. 14-FZ): Lyutik LLC + Vasilek LLC = Vasilek LLC That is, in this case we are talking about the complete transfer of rights and obligations to the existing company in accordance with the deed of transfer, and the merging companies cease their activities.
Statistics show that in legal practice the lion's share of the processes of reorganization of companies is occupied by the form of merger or merger. Experts objectively consider such options to be a simplified form of the termination of the functioning of the organization. The transformation of companies, in the process of which there is a merger of one company with another, is often referred to as alternative liquidation.
Info
The bottom line is that as a result of accession, the organization actually ceases to exist. And this means that all information about the company is completely excluded from the Unified State Register of Legal Entities. The reorganization of firms by merger, the purpose of which is to merge the existing assets of companies, involves the transfer of not only property, but also debts from the old owner to the new one.
Lawyers call such processes - succession.
Bulletin of State Registration” (paragraph 2, clause 1, article 60 of the Civil Code of the Russian Federation, clause 5, article 51 of Law No. 14-FZ). Important! Reorganization in the form of a merger involves the creation of a new company, which makes it impossible to maintain licenses, permits, etc., which are issued to a specific legal entity. In this case, licenses are reissued in the manner prescribed by paragraph 3 of article 18 of the Law of 04.05.2011 No. 99-FZ "On Licensing Certain Types of Activities", only if each company participating in the merger has a license for the same type of activity as of the date of state registration of the legal successor of the reorganized companies. other companies) retain licenses, permits, etc.
Information about work Record N Date Information about hiring, transfer to another permanent job, qualifications, dismissals (indicating the reasons and referring to the article, paragraph of the law) Name, date and number of the document on the basis of which the entry was made day month year 1 2 3 4 1 08 05 2011 Admitted to the sales department Order from the position of manager 08.05. 2011 N 3-mi 2 20 04 2013 Limited Liability Company Order from Liability 04/20/2013 N 28 Avaton (Avaton LLC) 05/20/2013 reorganized by merging with Vavilon Limited Liability Company (Vavilon LLC) 3 20 05 2013 Employment contract Order from terminated due to 05/20/2013 N 6-n refusal of the employee to continue working in connection with the reorganization of the employer, paragraph 6 of the first part of Article 77 Labor Code Russian Federation Head of the personnel department Taganova I.D.
Certificate of submitted personalized accounting When reorganizing a company in the form of a merger, the set of documents submitted to the registration authority (IFTS) must contain a certificate from the Pension Fund on the submitted personalized accounting information (clauses “g”, clause 1, article 14 of Law N 129- FZ). Often, obtaining such a certificate makes it difficult to register the merger procedure and obtain a certificate of termination of the company. The only form of reorganization for which Law N 129-FZ does not require the submission of a certificate from the Pension Fund on the submitted personalized accounting is affiliation. NDFL Help 2-NDFL. The former company, and not the successor company, must report in the 2-NDFL form from the beginning of the year until the moment of termination of activity (Letters of the Ministry of Finance of Russia dated July 19, 2011 N 03-04-06 / 8-173 and the Federal Tax Service of Russia for Moscow dated April 21. 2010 N 16-15/, dated 04/01/2008 N 09-14/031191).
