Hello! Situations often arise when it is necessary to increase or decrease the authorized capital of a company. What is it for and what methods exist, we will consider in detail in this article!
When and why it is necessary to reduce the authorized capital of the company
Decrease your own can:
- Voluntarily;
- Forced.
Contrary to popular belief, voluntary reduction authorized capital does not at all speak of financial difficulties in the organization. Usually this process is the result of an unreasonably high value at the beginning of the company's existence.
According to the law, it is necessary to make a compulsory reduction:
- If after two financial years (from the date of creation of the LLC) the value of assets turns out to be less than the authorized capital, i.e. the company has no profit and makes losses;
- When the difference between the authorized capital and the net assets of the LLC is insufficient to pay the share to the creditor.
For example: Let's say the authorized capital of the company is 20,000 rubles, the participant requests the payment of a share of 5,000 rubles, but the actual assets of the LLC at this moment are equal to 23,000. In our example, the authorized capital of the company will be reduced by at least 2,000 rubles; - If it is necessary to pay off the shares of the LLC that were not distributed on time.
For example: the participant who had a 20% stake in the authorized capital leaves the LLC. Its share is first attributed to the company, but if it is not spent within the period specified by the charter and the law (one year), the authorized capital must be reduced by its amount.
For violation of the terms of repayment of shares, a fine is not provided, but the registering authority has grounds to send a claim to court demanding the liquidation of an LLC for violation of the Law "On Limited Liability Companies".
Methods for reducing the authorized capital
- By reducing the par value of the shares of all members of the LLC. The proportion of participants' shares will not be changed;
- By redemption of the shares of the LLC. In this case, the value of the shares remains the same, the percentage of the shares of the participants remaining in the LLC increases;
- A combination of both.
After its reduction, the authorized capital should under no circumstances become less value specified in the Law on LLC. For 2018, for most types of activities, the minimum is 10,000 rubles. Otherwise, the organization must declare its own and liquidation.
When reducing the authorized capital voluntarily - the minimum is determined on the date of registration of changes. When the decrease takes place in mandatory- the border is determined by the date of registration of the LLC in the state register.
The reduction is allowed not only in monetary form, but also in property form. For example, when the founder, in addition to the minimum amount of capital, has invested real estate, he can return it to his ownership by an act of transfer and acceptance. To do this, the accountant must draw up the disposal of funds and write off its cost from the accounting records.
The organization withholds the amounts received by the participants (or the value of the property), since the contribution made at the time ceases to be the property of the participant, and as a result of the decrease in the authorized capital, the creditor receives income.
Step-by-step instructions for reducing the authorized capital of an LLC
- During the meeting of the founders of the LLC, a decision is made to reduce the authorized capital (it must receive more than 2/3 of the votes). Changes to be made to;
- In three working days, the registration authority (tax) is notified of the upcoming reduction, an application form P14002 is submitted with a notarized signature of the director of the LLC;
- Two monthly notices are published in the press (the journal "Vestnik state registration"). According to the legislation for 2018, this notification is sufficient; it is not necessary to notify your investors personally. The publication should indicate:
- LLC name (full and abbreviated);
- Address, phone number and other contacts;
- INN / KPP;
- OGRN number, and when it was assigned;
- Name and address of the registering authority;
- The procedure and conditions for the procedure for reducing the authorized capital;
- Conditions and procedure under which creditors of an LLC can claim the protection of their rights.
The notification can be submitted through the official website of the journal.
- The state duty is paid (for 2018 - 800 rubles);
- Registration of changes with a government agency. Provide:
- Application () with a notarized signature;
- Changed LLC charter;
- The approved minutes of the meeting of founders, at which the decision to reduce the authorized capital was approved;
- Certificate of notification of creditors - a printed copy of the State Registration Bulletin certified by the director of the LLC;
- Confirmation of payment of state duty.
- Obtaining documents confirming the successful reduction of the authorized capital (after five working days).
When you need to increase the authorized capital
The reasons for increasing the authorized capital are divided into several groups:
- A new member of the LLC contributes;
- The firm changes the direction of its activities, as a result of which minimum value the authorized capital increases. For example, more amount for organizers gambling, banks, insurers, vodka producers;
- One or several members of the LLC wish to increase their own share;
- At the request of potential creditors and investors (as a guarantor of their interests).
Methods for increasing the authorized capital
Each method of increasing the authorized capital has certain consequences. It depends on the chosen method whether the ratio and size of the shares of creditors will change.
Increase of the authorized capital at the expense of property
A prerequisite for this method is positive financial statements for the previous year, since the company will increase its authorized capital with its own funds, without investing the property of the LLC participants. Accordingly, the increase will not exceed the value of the LLC property.
Consequently, the percentage of the founders' shares remains the same, and their value increases with the growth of the authorized capital. Such a decision must receive 2/3 of the votes at the meeting of participants.
V this way important role plays change date picker. If the amount matters, it is worth first of all to calculate which period in the accounting department will be the most advantageous. The increase will be made on the basis of reporting for the year to the current year.
Even at the end of the year, not the last quarterly balance sheet will be considered, but the report for last year... Therefore, in some situations it is more profitable to hurry up and make a decision to increase capital before the new year, while in others it is better to wait for the start of the next.
The procedure for increasing the authorized capital at the expense of property consists of the following stages:
- Preparation for the general meeting. Participants must be notified one month before the appointed date;
- Conducting a meeting of participants where the amount of the increase and changes that need to be made to the charter are discussed. All decisions must be recorded and certified;
- Registration of changes with a government agency.
Increase of the authorized capital due to additional contributions of the LLC participants
- All participants - first, the decision must get 2/3 votes at the general meeting of founders. All participants are entitled (but not required) to contribute;
- Some participants - as a result, the percentage of shares will increase for those participants who make additional contributions.
The capital increase procedure will look like this:
- If one or more participants will make an additional contribution, the first thing he (they) submit to the general director of the LLC is an application for making an additional contribution. It must indicate:
- The cost of the contribution, the composition in which it will be deposited (cash, shares, real estate) and in what time frame;
- The amount of the share in the LLC that the contributor would like to acquire as a result;
- Other conditions.
- The participants of the LLC must accept and certify the decisions taken by a notary to increase the authorized capital, and at the same time:
- What changes will be made to the company's charter;
- How much will the shares of the LLC participants who will make contributions (but not more than the amount of the contribution) increase;
- If necessary - how the shares of the remaining participants will be changed.
- According to the changes, a new edition of the company's charter is being prepared;
- Contributions are made no later than six months from the date of the decision. Documents are required to confirm their entry (checks, receipts, payment orders);
- Payment of state fees;
- No later than 30 days after making deposits, an application for state registration of changes and other documents is submitted to the IFTS.
Increase of the authorized capital at the expense of third parties (new members of the LLC)
This option is possible only on condition that there is no clause contradicting it in the company's charter and when consent is obtained from all members of the LLC. The third party contributing will be given a stake in the LLC, thus becoming a new member.
Procedure steps :
- If a new LLC participant comes with an increase in the authorized capital, then the first thing he does is submit to CEO your statement stating:
- Person's data (full name, passport data, address, TIN);
- Type, cost and timing of the contribution;
- The desired status in the LLC, rights and shares in the authorized capital.
- The participants of the LLC at the meeting make a unanimous decision, certified by a notary:
- How and by how much the authorized capital will be increased;
- Will a new person be admitted to the LLC and on what conditions;
- What changes need to be made to the charter;
- How the shares of the rest of the participants will change.
- A new version of the charter is being prepared;
- Payment of the state fee (800 rubles);
- Registration of changes made in the organization - an application to the registration authorities is submitted within 30 days after the decision is made at the meeting.
Increase of the authorized capital by the sole participant of the LLC
Sometimes the shares of an LLC are not divided, but belong to one founder. The procedure for increasing the authorized capital in a company with only one participant does not differ much from the standard one:
- The decision is made solely and is made in writing;
- For 60 days, a contribution is made, documents are collected that confirm its contribution. When real estate acts as a contribution, it is necessary to make state registration of the ownership of the LLC;
- No later than 90 days after the decision on the capital increase is made, amendments are made to the charter of the LLC;
- Documents are submitted to the tax office.
Documents for state registration of an increase in the authorized capital of an LLC in 2018
The following documents should be submitted to the registering authorities to increase the authorized capital of an LLC:
- Application (Form P13001). Signed by a person acting on behalf of the LLC (for example, a manager), the signature is notarized;
- Meeting minutes (in case sole participant- decision on his behalf);
- Notarized confirmation of all decisions taken;
- A new charter (two original copies), or separate list changes introduced;
- Document confirming the payment of the state fee, which for 2016 is 800 rubles;
- Documents showing all additional contributions have been made. For example: receipt and cash order, check, bank statement. If the increase was made at the expense of the property of the LLC: a copy of the balance sheet for the previous year and the calculation of the current assets of the company;
- After 5 working days, you must return to the tax office for a certified copy of the new charter and a sheet of entry in.
Important points
What documents need to be certified by a notary?
Must be notarized: minutes of the meeting, a list of its participants, a list of all decisions taken. Director's signature - if the company has one member.
What requirements can a creditor make in case of a reduction in the authorized capital of an LLC?
Not later than 30 days after the second publication of the notice on the reduction of the authorized capital, the creditor has the right to demand:
- Early fulfillment of the company's obligations that arose even before the first publication (payment of an old loan, payment for services, etc.);
- Termination of the obligation, if its fulfillment is impossible, and compensation for losses.
The court may assess the claims and dismiss the claim if:
- The society will prove that the applicant's rights have not been violated;
- The company will provide sufficient funds to fulfill its obligation.
What can act as a contribution to the authorized capital of an LLC?
Participants can make contributions to the authorized capital in the form Money, stocks, bonds, property, real estate and even in the form of exclusive rights subject to monetary value.
If a non-monetary option is chosen, then first the assessment of the contribution is carried out by an independent expert, then the assessment is approved at the meeting of the founders. By default, any property is allowed, but the charter of the LLC has the right to limit the allowed list.
What is the threat of violation of the terms of making additional deposits?
When one or more participants do not comply with the time frame established for making contributions, then the increase in the authorized capital will be declared invalid, and all the funds spent will be returned to the creditors who managed to make their contributions.
The instability of the economy is raising the issue of reducing the authorized capital. Sometimes this is an option for saving an enterprise. Regardless of the reasons, the process must be carried out according to the rules.
How to reduce the authorized capital of an LLC in 2019? The founders of any LLC are free to change the amount of the authorized capital established initially.
The change is carried out according to the established rules and is formalized properly. How does the authorized capital of an LLC decrease in 2019?
Important points
The initial "foundation" of the activities of any organization is start-up capital... In legislation this concept predetermines the authorized capital.
This definition means a set of monetary and tangible assets that an organization has on its balance sheet at the initial stage of its activities.
The magnitude initial capital certainly spelled out in the constituent documents. Moreover, the amount cannot be less than the minimum specified by law. Maximum size is not strictly limited.
The authorized capital is formed from the funds of participants, individuals and / or legal entities... The contribution of each participant represents his share in the authorized capital.
The volume of this share determines the part of the LLC property, which the founder has the right to claim. Also, the size of the share determines the size of the activity and the ability to influence the decision-making of the LLC.
The authorized capital of an LLC may consist of their monetary funds and property values, which depends on the form.
The law obliges only the minimum amount of the Criminal Code to be entered into monetary form, the rest is replenished at the discretion of the participants. All property investments are valued in monetary terms.
This allows you to express the total set of shares in the same units. That is, the authorized capital is displayed in the accounting and constituent documentation in money.
At their will or upon irresistible necessity, the founders can reduce the authorized capital. But, in any case, after the change, the amount of the authorized capital should not be less than ten thousand rubles, which is considered the minimum of the authorized capital for an LLC.
It is important that a voluntary reduction of capital cannot be considered as an option to get rid of liability to. Creditors can demand early fulfillment of obligations.
What it is
For an organization, the authorized capital is the total amount of all founders' contributions, which determines the minimum amount of property.
At the expense of the authorized capital, the interests of potential creditors are ensured. This necessitates fixing changes in the authorized capital of c.
The law for LLC is predetermined by the smallest amount of the authorized capital. The organization has to carry out activities only if this requirement is met.
When forming the capital, the share of participation of any founder is established, that is, the size of his share in the whole amount of the authorized capital is determined.
The nominal value of the share of each of the founders is determined. The sum of all shares at par is the amount of the authorized capital. A change in the authorized capital is understood as a modification of the amount of the UCC in the constituent documents of the organization.
The participants can make a decision on the change at any time after full payment of the established authorized capital, guided by the requirements of the law or urgent need.
Capital reduction can be carried out different ways... The peculiarities of the options are that the nominal price of the participant's share may decrease or remain the same, which depends on the chosen method.
Why is this procedure needed
When an organization lowers its share capital, it does not mean that problems have arisen. Participants can decide to reduce the Criminal Code of their own free will.
For example, when the activities of the organization have shown that the available capital is more than sufficient and the available funds are not used in full.
Also, the capital may decrease on the basis of legal requirements:
| If the share belonging to the company, after one year, did not belong to a third party | And it was not distributed among the participants, then its repayment is necessary. In this case, no penalties for violating the terms of reducing the Criminal Code are expected. However, this situation may become the reason for the requirement to liquidate LLC by the registration authorities. |
| When at the end fiscal year(second and next) | Price net assets the organization does not correspond to the authorized capital, namely, it will be smaller, it is necessary to reduce the capital so that its nominal value corresponds to the value of existing assets |
| If at the end of the specified period | Namely, the four-month period from the moment of state registration, the shares have not been paid in full, then the authorized capital must be reduced to the amount already paid |
The decision to reduce the authorized capital is taken by the general meeting of the founders. The issue is brought up for general discussion, then a vote is taken on it.
The results of the discussion are recorded. If the decision is taken unanimously, or big amount votes, the process of reducing the authorized capital begins.
Applicable standards
Normative regulation of the provisions on the authorized capital of the organization is carried out.
It says that the organization has the right to change the authorized capital on its own, and is obliged to make a reduction in the cases provided for by law.
As determined by the Civil Code of the Russian Federation and Federal Law No. 14, the authorized capital is subject to mandatory reduction when:
The legislative procedure for reducing the authorized capital presupposes the impossibility of reducing it if, as a result, the amount of the authorized capital is less than the established minimum (ten thousand rubles).
The decision must be made by all participants. It is obligatory to publish the decision in the media (the journal "State Registration Bulletin").
Changes in the authorized capital are registered with the Inspectorate of the Federal Tax Service, and the LLC must notify the Federal Tax Service Inspectorate of the decision within three days after the paperwork.
How can the authorized capital of an LLC be reduced?
The method, procedure and conditions for reducing the Criminal Code depend on the current circumstances. The decreasing order is detailed in.
According to the article, the decision of the participants is initially made. For this, a general meeting is convened, the presence of all the founders or most of them is mandatory.
The issue is discussed, and the entire process of the meeting is documented in minutes. If it is decided to reduce the capital, then a new value of the capital is determined. The reduction is carried out by the resulting difference.
The meeting also condemns exactly how the amount of capital will be reduced. There are two options for reducing:
- by reducing the value of shares at par;
- through the cancellation of the LLC share by reducing the authorized capital.
Step-by-step instruction
According to the Charter, the process of reducing the capital of an LLC can be divided into several stages. Each of them is important and requires strict execution. Failure to comply with at least one requirement leads to the recognition of the illegality of the procedure.
The step-by-step algorithm looks like this:
| Convening of founders | The decision to reduce the Criminal Code is made only in the process of discussing it by all the participants or by their majority. The sole founder alone makes the decision. The final decision will certainly reflect not only the fact of change in the value of the Criminal Code, but also the need to reflect this in the Charter |
| Informing the tax office | Within a three-day period after the approval of the decision, the organization is obliged to report it to the tax authorities. For this, an application is submitted, signed by the head of the organization and notarized. Within five days, the FTS makes an entry in the Unified State Register of Legal Entities on the beginning of the organization of the procedure for reducing the Criminal Code |
| Creditors Notice | There is no need to notify each creditor personally. The organization submits a message for publication in the State Registration Bulletin. The note is published twice - upon receipt of a document on amendments to the Unified State Register of Legal Entities and after about a month, but not earlier. During this period, creditors have the right to apply for early performance of obligations. |
| Submission of the amended Articles of Association for registration with the Federal Tax Service Inspectorate | After the second publication in the media, documents are prepared for registration. In particular:
|
| Obtaining documents confirming the change in the authorized capital | Within five days after submitting the required package of documents tax office registers the changes, and the applicant receives the amended charter and an entry sheet in the Unified State Register of Legal Entities regarding the reduction of the Criminal Code |
By reducing the par value
The procedure for reducing the Criminal Code through a change in the par value is provided for in Article 20 of the Federal Law No. 14. It is determined here that the value of all available shares should decrease at par.
However, the size of the shares is preserved. That is, the newly established amount of capital is divided among the participants, in proportion to percentage shares.
As a result, the size of each participant's share remains the same, but costs less. The reason for the change in the nominal value of the authorized capital may lie in a decrease in the value of the organization's net assets.
But not necessarily, the capital can also decrease at par at the request of the participants. In this case, the amount by which the capital has been reduced can be returned to the founders.
The main thing is that such a return does not reduce the value of the available net assets, and this does not become less than the established authorized capital.
By paying off the share owned by the company
Reducing the capital due to the repayment of the founders' shares is impossible. Initially, the shares must go to the society as a result of:
- share redemption;
- exclusion of the founder from the list of participants;
- transfer to the company of a share in case of impossibility of alienation;
- non-payment of the share in due time.
When buying out a share, the company pays the participant its actual price. This is based on the data of the accounting report for the last reporting period... In this case, the company incurs losses for the amount paid.
The share of the company, on the basis of a common founding decision, must:
- distributed among the participants in proportion to the ratio of their shares;
- purchased by individual members;
- to be realized by third parties.
If at the end of the year the share received by the company has not been sold and distributed, then it must be repaid without fail.
In this case, the nominal value of capital is reduced by the value of the redeemable share. This leads to an increase in the proportion of participants in size. At the same time, the par value of the shares does not change.
Decision-making
The decision to reduce the authorized capital is taken by the meeting of participants. The number of participants who agreed with the decision by default is two-thirds of the votes, but the Charter may provide for a different ratio.
The decision made is recorded in the protocol general meeting... If the organization has the only founder, then he personally decides on the need to reduce the authorized capital.
He draws up his resolution in the form of a decision of the sole founder. Both the protocol and the decision become the basis for starting the procedure to reduce the value of the CC.
Sample protocol
The minutes of the general meeting of founders regarding the reduction of the authorized capital is drawn up according to the following scheme:
| The protocol number is indicated | Organization name, document creation date, time and duration of the meeting |
| The list of participants is registered | With indication the total votes and number of votes of the founders present |
| Specifies the chairman of the meeting | And the leading documentary secretary |
| The agenda is being written | — |
| A list of the participants who spoke is prescribed | For each, the essence of the speech and the results of the voting on the decision are summarized. The decisions are summed up |
| The document is certified by the chairman | Meeting and Secretary |
How the general meeting of participants of an LLC looks like, regarding the decision to reduce the authorized capital, can be seen on an example.
Accounting entries
With a decrease in the authorized capital, the accounting and tax accounting of operations in relation to the organization's funds changes. Transactions regarding the reduction of the authorized capital in accounting differ depending on the method of reduction.
So, with a decrease in the Criminal Code, in accordance with legislative requirements, the following postings can be performed:
When the authorized capital is reduced at the initiative of the founders:
| Dt80 Kt75 | The participant leaves the society and takes his share in full |
| Dt81 Kt75 (50, 51, 52) and Dt80 Kt81 | The company redeems the share, fixes the redemption and then cancels the redeemed share, reducing the authorized capital |
| Dt80 Kt91 | Reduction of the authorized capital by reducing the nominal value while maintaining the difference for the company in the form of income |
| Dt80 Kt75 | Reduction of the authorized capital by reducing the par value and paying the difference to participants as income |
| Dt75 Kt91 | Refusal of a participant to receive the difference when the authorized capital is reduced at par and recognition of such as the company's income |
What can be the consequences
When the amount of the authorized capital is reduced in accordance with legislative requirements, in accordance with the organization, taxable income does not arise.
This is due to the fact that the organization does not gain. If the authorized capital decreases for other reasons, the difference from the decrease is recognized as income received.
When income remains in the organization, then this is the profit of society, taken into account in non-operating income. Sometimes the difference after the capital reduction is paid to the participants.
In this case, the participants are considered to have received income. Therefore, it must be paid. In this case, it does not matter whether the participant received the payment in monetary or property form.
For example, is it really necessary to register changes to the Criminal Code, because all changes are recorded in the Charter and displayed in the accounting records of the organization.
Some difficulties arise when reducing the capital of a joint-stock company, because the value of shares may change.
Also, certain nuances relate to the determination of the ratio of the net assets of the organization and its authorized capital, than to be guided in this situation.
The procedure for reducing the Criminal Code must be followed thoroughly, which means that all possible features must be taken into account.
Do I need to register the procedure
According to the organization is not obliged to notify creditors in writing about the change in the amount of the authorized capital downward.
In the absence or delay of notification, the LLC may be fined five thousand rubles. Since with a decrease in the authorized capital, its nominal value changes, modifications must be made to the Unified State Register of Legal Entities.
Ignoring the registration of changes in the Federal Tax Service may become the reason for the liquidation of an LLC at the request of the registering authority.
For a joint stock company
The authorized capital of an OJSC is reduced in situations predetermined and on the independent initiative of the participants.
Capital decreases due to:
- decrease in the price of shares at par;
- reducing the number of shares, including through the purchase of shares by the company.
The acquisition of shares by JSC and their subsequent redemption is possible only when such a possibility is provided for by the Articles of Association. In any case, it is necessary to issue shares.
With a decrease in the authorized capital due to a decrease in the par value, new shares with a lower par value are issued and the old ones are placed through conversion into shares.
It is important that the JSC is obliged to notify all creditors of the company in writing within thirty days from the date of the decision to reduce the Criminal Code.
Writing an explanatory note
When compiling accounting records, the calculation of the value of net assets is carried out. This is assessed quarterly and at the end of the year.
Net assets are disclosed in the annual and interim financial statements. When creating annual reports, the calculation results are displayed directly in the reports.
This is the net asset value at the time of the audit. This note is used as a documentary basis for a decrease in capital due to a mismatch between net assets and the amount of capital.
A decrease in the value of the authorized capital of an LLC is possible both by decision of the founders and in order to avoid liquidation.
But in any case, the order of the reduction process must be followed, and all changes are recorded properly.
Reduction of the authorized capital of LLC - step-by-step instruction 2018 - 2019 is given in this article. We will also tell you in which cases the reduction is carried out on the free will of its participants, and when they are forced to do it in pursuance of the law, and we will analyze the latest judicial practice on this issue in order to avoid possible mistakes.
Voluntary or compulsory reduction of the authorized capital
The Law "On Limited Liability Companies" dated 02/08/1998 No. 14-FZ (hereinafter - the FZ on LLC) distinguishes between cases when a decrease in the authorized capital (hereinafter - the Criminal Code) of an LLC can occur on the personal initiative of the participants, and when the participants are forced to go for such step under the influence of circumstances. In both cases, the reduction of the Criminal Code is made on the basis of a decision made at the general meeting (or on the basis of a sole decision, if there is only one participant in the LLC).
IMPORTANT!
Regardless of the reasons for which the participants are reducing the Criminal Code, its size as a result of such manipulation should not become smaller. minimum size established by the Federal Law on LLC. If the LLC is obliged to reduce the Criminal Code, and its size does not allow it, the organization must be liquidated.
Consider situations when an LLC is forced to reduce its charter capital:
- Decrease to a positive difference. After the second financial year, as well as each subsequent year, the value of the net assets of the LLC became less than its charter capital. Art. 90 of the Civil Code of the Russian Federation suggests making a choice: to increase assets or reduce the size of the authorized capital; but in the event that the authorized capital becomes less than the minimum, such an LLC is subject to liquidation. Part 4 of Art. 30 of the Federal Law on LLC requires the participants of LLC, whose authorized capital is lower than the value of net assets, to make a decision to reduce the charter capital or to liquidate. Nevertheless arbitrage practice shows that to achieve compulsory liquidation of an LLC on this basis government bodies fails (Resolution of the AS MO dated 07.19.2016 No. F05-9990 / 2016).
- Reduction by the missing amount. The LLC is obliged to pay the actual value of the share, and the difference between the net assets and the authorized capital is not enough for such a payment (part 8 of Article 23 of the Federal Law on LLC).
- Decrease by the par value of the share. Upon redemption of an unsold or unallocated share that was previously transferred to the LLC itself (Art. 24). Note that the share can be transferred to LLC in the following cases:
- non-payment of the share by the participant (Art. 16);
- exit of the participant (Art. 26);
- exclusion of a participant (Article 10), etc.
The procedure for reducing the authorized capital of LLC
So, we figured out that regardless of what served as a prerequisite for reducing the Criminal Code, it should be implemented by making a decision by the general meeting of participants.
Let us outline a short algorithm of actions:
- Conduct a general meeting, and reflect the voting results in the minutes of the general meeting of LLC participants (or issue a decision of the sole participant). We will tell you more about how to do this correctly below.
- Notify the registering authority about the beginning of the procedure for reducing the Criminal Code. To do this, you need to fill out an application 14002 and certify the signature on it of the head of the LLC at a notary.
- Inform creditors about the decision... To do this, you need to place the corresponding announcement twice in an authorized publication with a break of 1 month. Note that information on the reduction of the Criminal Code should also be placed in the Unified Federal Register of Information on the Facts of the Activities of Legal Entities, however, this refers to the responsibilities of the registering authority, not LLC.
- Wait for the period during which creditors can demand early fulfillment of obligations (30 days after the last publication).
- Submit documents for registration to the tax office. In this case, you will need:
- new text of the charter of the LLC (or changes to the old text), which will reflect the new size of the charter capital;
- applications 13001 and 14001, previously certified by a notary;
- minutes of the general meeting of participants on the reduction of the Criminal Code;
- payment order for payment of the state duty;
- a power of attorney certified by a notary (if the documents are not submitted to the registering authority by the person performing the functions executive body and another representative).
Protocol or decision to reduce the authorized capital of an LLC: sample
Now let's dwell on the rules for drawing up the minutes of the general meeting of participants on the issue of reducing the Criminal Code. The basic rules to be applied in this situation can be found by studying Ch. 9.1. Civil Code of the Russian Federation, as well as Art. 36, 37 FZ on LLC.
Let's highlight the key points that should be taken into account when drawing up the protocol.
- The protocol should reflect general data:
- the date, time and place of the meeting;
- registered participants;
- voting results (separately for each issue);
- the person or persons who counted.
- When deciding on the new size of the authorized capital, as well as the shares of the LLC participants in it, it is necessary to take into account that a decrease in the authorized capital can occur:
- proportionally for all participants (the nominal value of the share decreases, and the proportions of the shares remain the same);
- by paying off the shares owned by the LLC (the nominal value of the participants' shares remains the same, but the proportions will change).
- The decision to reduce the Criminal Code must be confirmed (Article 67.1 of the Civil Code of the Russian Federation):
- notarial certification;
- in another way, provided for by the charter or by unanimous decision (the presence of signatures of all participants, etc.).
IMPORTANT! The lack of proper certification of the decision of the meeting entails its nullity in accordance with paragraph 3 of Art. 163 of the Civil Code of the Russian Federation (Resolution of the Plenum of the Armed Forces of the Russian Federation of 23.06.2015 No. 25).
Note that most of the above requirements do not apply to the execution of a decision to reduce the Criminal Code of an LLC, consisting of a single participant (Article 39 of the Federal Law on LLC).
A sample protocol (decision) on reducing the Criminal Code can be downloaded from the link: “About sample of the protocol (decision) on the reduction of the Criminal Code ”.
Reduction of the authorized capital of an LLC: judicial practice
The conclusions set out in the acts of the judiciary can complement the general picture outlined in the legislation, and also help to avoid possible errors. Here are 3 illustrative court cases related to the reduction of the Criminal Code, and the conclusions following from them:
- The legislation contains an exhaustive list of grounds when an LLC is obliged to reduce its Criminal Code. In other cases, the decision to reduce the Criminal Code falls within the competence of the general meeting of participants and is taken by them exclusively voluntarily. This conclusion was reached by AS PO (resolution of 05/20/2016 No. F06-8146 / 2016). The court denied the plaintiff the obligation of the LLC to amend the charter and reduce the Criminal Code after its failed increase.
- If by an earlier decision of the court, which is known to have prejudicial significance, the increase in the Criminal Code was invalidated, the LLC should not have taken a new decision to reduce the Criminal Code. This is what the AS SZO indicated in its resolution dated 12.04.2016 No. A56-36782 / 2015. In such a situation, the LLC should have asked the court to invalidate the previously entered entry in the Unified State Register of Legal Entities.
- When voting at the general meeting on the issue of reducing the authorized capital, the share that was temporarily transferred to the LLC itself is not taken into account. Thus, the AC MO (Resolution No. A40-100715 / 2015 of June 27, 2016) rightly refused to invalidate the protocol on reducing the Criminal Code adopted by the participants owning only 11.8% of the votes, having established that 88% of the votes belonged to LLC. Consequently, the participants who voted at the meeting had 99% of the remaining votes, which provided the necessary quorum.
In conclusion, we emphasize once again that the reduction of the Criminal Code can be carried out by decision of the general meeting of participants. The legislation contains an exhaustive list of cases when participants are required to make such a decision. The tax authority and creditors of the LLC must be notified of the beginning of the procedure for reducing the Criminal Code. The final stage is the introduction of amendments to the charter of the LLC, which should reflect the new size of the charter capital.
Share capital is a mandatory requirement for registration joint stock companies any type. Federal Law of 08.02.1998 No. 14-FZ "On Limited Liability Companies" indicates that it is brought in at the opening of a joint-stock company and each participant contributes a certain share. In fact, this amount is a guarantee of security for the creditors of the enterprise, since it represents the minimum size of its property. The law does not prohibit the reduction of the authorized capital, however, for this, a certain procedure must be followed. Let's consider in our article how it goes this procedure, and what consequences it carries for a legal entity.
Reasons and conditions
Reducing the size of the authorized capital can be voluntary or compulsory. If the procedure is carried out on a voluntary basis, then the members of the company receive an amount in accordance with their share. In this case, the share of each owner of shares remains the same.
For clarity, consider an example: the company's shareholders are two citizens, the shares are determined at 80% and 20% of the shares. The authorized capital of the organization is 200 thousand rubles. It was decided to reduce it to 150 thousand rubles. In this case, the amounts that the shareholders will receive will amount to 40 thousand rubles and 10 thousand rubles, respectively. At the same time, the share of participants' shares will not change.
The receipt of a part of the authorized capital by an individual requires the payment of personal income tax, since the Letter of the Ministry of Finance of Russia dated January 21, 2016 No. 03-04-05 / 2050 states that the amount contributed by the participant is no longer his property, and its return is taxable income.
Forced reduction of the authorized capital can be made for two reasons:
- the value of the organization's assets is less than the value of the authorized capital. In the first year of the company's activity, such a situation is permissible; in the future, the legal entity is obliged to notify the tax office of this fact and carry out the reduction procedure;
- the company receives a share of one of the participants who has resigned, but does not distribute the amount. The organization has 12 months to decide what to do with the share of the person who left the company. If this does not happen, the unallocated capital must be repaid and withdrawn from the disposal of the organization.
If at least one of these problems is present, the authorized capital will have to be reduced.
Procedure order
The current legislation provides for a procedure that each company must comply with when reducing its authorized capital. It has four steps:
- meeting of founders. The proposal must be approved by at least 2/3 of the shareholders. At the same stage, changes are made to the organization's charter. If the company has a single founder, only he makes such decisions;
- tax office notification. After the meeting, it is necessary to prepare and submit a notarized application in the form of P14002. It is signed directly by the head of the enterprise. After consideration, the FTS makes a corresponding entry in the Unified State Register of Legal Entities;
- creditors' notice. The organization sends two messages to the State Registration Bulletin. The first - after receiving an extract from the Unified State Register of Legal Entities, the second - one month after the first entry;
- submission of documents. After re-publication, it is necessary to contact the tax office again and prepare the following documents: minutes of the meeting of founders, articles of association, receipt of payment of state fees, application in form R13001, numbers of published notices of amendments to constituent documents, calculating the value of assets.
After reviewing the package of documents, the tax authority registers the changes and sends a new charter to the organization, as well as an extract from the Unified State Register of Legal Entities.
The ways
The reduction of the authorized capital is carried out in one of the possible ways:
- reduction in the par value of each member of the joint stock company. This way provides for the division of the withdrawn amount in accordance with the share of each member of the organization, however, there is no reduction in shares;
- repayment of the share owned by the company. This option allows you to save the amounts contributed by each member of the organization.
The legislation does not prohibit combining these methods, therefore, the amount of the authorized capital can be reduced simultaneously for all participants and for the company.
The timing
Initially, the procedure for reducing the authorized capital provides for a meeting of founders, at which an appropriate decision must be made. Then it is necessary to send a corresponding application to the territorial administration of the Federal Tax Service at the place of registration of the legal entity. This must be done no later than 3 days from the date of the meeting (clause 3 of article 20 of Law No. 14-FZ).
The service is obliged to consider it within 5 working days, after which make changes to the state register of the Unified State Register of Legal Entities on the beginning of the procedure for changing the authorized capital.
As soon as the creditors are notified and the documents are submitted, the tax office examines them and makes an appropriate decision. 5 working days are also given for consideration from the date of receipt of the package of required papers. If no claims arise, after this period the organization receives the relevant documents.
Effects
In accordance with paragraph 16 of Art. 250 of the Tax Code of the Russian Federation, the amounts by which the authorized capital has been reduced (if the share is not paid to the participants) should be considered non-operating income of the company. Thus, if an LLC conducts a reduction in the authorized capital on a voluntary basis, this norm must be taken into account, and the costs should be included in the non-operating income item with all the ensuing consequences. At the same time, if the procedure is carried out compulsorily, such problems for the society are not relevant. As for individuals who receive a part of the authorized capital, they are obliged to pay personal income tax from it.
The specialists of our company are ready to help you with the reduction of the authorized capital. They will provide advice and tell you about all the nuances of the procedure, prepare a list required documents represent interests to tax authorities and creditors. Call the phone numbers indicated on the website or contact us through the feedback form.
To determine what the authorized capital represents and what it consists of, let us refer to the existing regulations.
According to paragraph 1 of Article 14 of Law No. 14-FZ and paragraph 1 of Article 90 Civil Code RF the authorized capital of a limited liability company is made up of the nominal value of the shares of its participants and determines the minimum size of its property that guarantees the interests of the LLC's creditors. A contribution to the authorized capital of an LLC can be money, securities, other things or property rights or other rights that have a monetary value (clause 1 of article 15 of Law No. 14-FZ).
Based on the foregoing, the authorized capital is the founders' investments in the business company they are creating.
Financially - economic activity the size of the authorized capital can change, both upward and downward.
The moment of state registration is the making by the registering authority of the corresponding entry in the corresponding state register (clause 2 of article 11 of the Federal Law of August 08, 2001 N 129-FZ "On state registration of legal entities and individual entrepreneurs").
An increase in the authorized capital of a company is allowed only after its full payment and can be carried out at the expense of the property of the company, and (or) at the expense of additional contributions of the members of the company, as well as at the expense of contributions of third parties accepted into the company, if this is not prohibited by the charter of the company (Art . 17 of Law No. 14-FZ). When increasing the authorized capital of a limited liability company, the norms of Articles 18, 19 of Law No. 14-FZ should be taken into account.
The authorized capital is part of property of the company and its increase is a positive indicator of financial - economic activity... In the event of an unfavorable financial situation, when there is no other property, the claims of creditors can be satisfied at the expense of the authorized capital.
The company is responsible for its obligations with all property belonging to it (clause 1 of article 3 of Law No. 14-FZ).
The decision to reduce the authorized capital can be made for various reasons. Making such a decision is not always a sign of deterioration. financial condition society. Appreciating stability and investment attractiveness society, experts consider, as a rule, a set of indicators. The size of the authorized capital is primarily related to the assessment of the company's net assets. However, in the interests of creditors, legislation provides for the obligation to notify the decision to reduce the size of the authorized capital.
Reduction of the authorized capital. Paths and limits
LLC has the right, and in some cases provided for by Law No. 14-FZ, is obliged to reduce its authorized capital (clause 1 of article 20 of Law No. 14-FZ).
A decrease in the authorized capital of a company can be carried out by reducing the par value of the shares of all participants in the authorized capital of the company and (or) paying off the shares owned by the company.
The company is not entitled to reduce its charter capital if, as a result of such a reduction, the size of the charter capital becomes less than the minimum size of the charter capital of the LLC. At the same time, the minimum size of the authorized capital of an LLC is determined in accordance with Law No. 14-FZ as of the date of submission of documents for state registration of the corresponding changes in the charter of the company. In cases mandatory reduction share capital in accordance with Federal law No. 14-FZ, the minimum amount to which the authorized capital of an LLC can be reduced is determined as of the date of state registration of the company. As mentioned above, the currently established minimum charter capital for an LLC is 10,000 rubles. This amount of the authorized capital has been in effect since July 1, 2009.
As mentioned above, if you reduce the authorized capital in a mandatory manner prescribed by law, then the minimum is the amount of the authorized capital in effect on the date state registration of the company.
Until July 2009, the size of the authorized capital of an LLC must be at least one hundred times the minimum wage (minimum wage) established by federal law as of the date of submission of documents for state registration of the company (clause 1 of Article 14 of Federal Law No. 14-ФЗ dated February 08, 1998 as amended from 27.10.2008).
According to article 5 of the Law of June 19, 2000 No. 82-FZ, the basic amount used for calculating taxes, fees, fines and other payments, the amount of which in accordance with the legislation Russian Federation is determined depending on the minimum wage, as well as payments for civil - legal obligations established depending on the minimum wage from January 1, 2001 - 100 rubles, and from July 1, 2000 - 83.49 rubles.
It would seem that if the date of registration of an LLC falls on the period from January 1, 2001 to July 1, 2009, then the authorized capital can be reduced to 10,000 rubles (100 x 100 rubles), but if the registration date falls on the period from July 1, 2000 to 1 January 2001, the Criminal Code is reduced to 8349 rubles (100 x 83.49 rubles).
At the same time, in accordance with clause 11 of the Resolution of the Plenum of the Armed Forces and the Supreme Arbitration Court of the Russian Federation dated 09.12.1999 No. 90 / 14Z, the law prohibits a decrease in the authorized capital of a company if as a result of this its size becomes less than the minimum amount of the authorized capital determined in accordance with Article 14 of Law No. 14 -FZ as of the date of submission of documents for state registration of the corresponding changes made to the charter (and not on the date of state registration of the company). Therefore, when submitting documents for state registration of changes in 2011, the amount of the authorized capital must be at least 10,000 rubles.
Important
It is possible to reduce the authorized capital of an LLC in 2011 only up to 10,000 rubles.
A decrease in the authorized capital of a company by reducing the par value of the shares of all participants must be carried out while maintaining the size of the shares of all participants in the company.
Mandatory reduction of the authorized capital
Due to some legal provisions, a limited liability company has an obligation to reduce its authorized capital. A number of such norms are contained in Federal Law No. 14-FZ.
It is necessary to reduce the authorized capital, for example, in case of incomplete payment of the authorized capital within a year from the date of state registration of the company. In such a case, the unpaid part of the share goes to the society. This part of the share must be sold in the manner and within the time frame established by Article 24 of Law No. 14-FZ. If the unpaid part of the share is not sold, then the authorized capital is reduced to the actually paid amount (if incomplete payment of the authorized capital does not entail the liquidation of the company) (clause 3 of article 16, clause 5 of article 24 of Federal Law No. 14-FZ).
A similar situation may arise in the event of a member leaving the LLC, since the share of the member in this case is transferred to the company. If the share of the withdrawn participant of the LLC has not been distributed and sold within one year from the date of transfer of the share to the company, then the share must be canceled and the size of the authorized capital of the company must be reduced by the amount of the nominal value of this share (clause 1 of Article 26, clause 5 Article 24 of the Federal Law No. 14-FZ).
If at the end of the second and each subsequent financial year the value of the company's net assets turns out to be less than its authorized capital, the company is obliged to declare a decrease in its authorized capital to an amount not exceeding the value of its net assets, and to register such a decrease in the prescribed manner (paragraph 3 of Article 20 of the Law No. 14-FZ). Since the procedure for assessing the value of net assets for a limited liability company is not approved by law, the net assets of an LLC are assessed in accordance with the Procedure for assessing the value of net assets of joint stock companies, approved by Order of the Ministry of Finance of Russia and the Federal Commission for the Securities Market of Russia dated January 29, 2003 No. 10n / 03-6 / pz (Letter of the Ministry of Finance of Russia dated January 26, 2007 No. 03-03-06 / 1/39).
If at the end of the second and each subsequent financial year, the value of the company's net assets turns out to be less than the minimum amount of the authorized capital established by Law No. 14-FZ as of the date of state registration of the company, the LLC is subject to liquidation.
Everyone and everyone - we reduce the authorized capital
A decrease in the authorized capital is not the best indicator of financial and economic activity. However, this fact cannot be hidden. The changes will have to be registered within the timeframe established by the legislation, and the decision to reduce the authorized capital will have to be announced.
Currently, the Company is obliged, within 30 days from the date of the decision to reduce its authorized capital:
- notify in writing of a decrease in your authorized capital and about his new size of all creditors of society known to him;
- post a message on the decision taken in the press, which publishes data on the state registration of legal entities.
The creditors of the company have the right, within 30 days from the date of sending them the notification or within 30 days from the date of publication of the message on the decision taken, to demand in writing the early termination or fulfillment of the corresponding obligations of the company and compensation for losses.
State registration of a decrease in the authorized capital of a company is carried out only upon presentation of evidence of notification of creditors in the manner prescribed by paragraph 4 of Article 20 of Law No. 14-FZ.
Documents for state registration of amendments made to the charter of a company in connection with a decrease in the charter capital of the company and changes in the par value of the shares of the company's participants must be submitted to the body that carries out state registration of legal entities within one month from the date of sending the last notification to the creditors of the decrease in the charter capital of the company and about its new size.
For third parties, such changes take effect from the moment of their state registration (clause 4 of article 20 of Law No. 14-FZ).
Reducing the authorized capital in a new way
From January 1, 2012, amendments concerning the reduction of the authorized capital of a limited liability company, introduced by the Federal Law of July 18, 2011 No. 228-FZ "On amendments to certain legislative acts Of the Russian Federation in terms of revising the methods of protecting the rights of creditors with a decrease in the authorized capital, changing the requirements for business entities in the event of a discrepancy between the authorized capital and the value of net assets. "
So, since 2012, a limited liability company is obliged to make a decision to reduce the charter capital of the company to an amount not exceeding the value of its net assets, or a decision to liquidate the company, if the value of the company's net assets remains less than its charter capital at the end of the financial year following the second financial year or each subsequent financial year, at the end of which the value of the company's net assets turned out to be less than its authorized capital. The decision is made by the company no later than six months after the end of the relevant financial year. That is, since 2012, regardless of the size of net assets at the end of the second financial year, the decision to reduce the authorized capital of the company may not be made.
V new edition, in particular, paragraphs 3, 4 of Article 20 of Law No. 14-FZ are set forth. Now the company will be obliged to report the decision to reduce the authorized capital to the body that carries out the state registration of legal entities, within three working days after the adoption of the specified decision. In addition, the company is obliged to publish, twice, once a month, a notice on the reduction of its authorized capital in the press, which publishes data on the state registration of legal entities.
The following information must be indicated in the notification on the reduction of the authorized capital of the company:
- full and abbreviated name of the company, information about the location of the company;
- the size of the authorized capital of the company and the amount by which it is reduced;
- method, procedure and conditions for reducing the authorized capital of the company;
- a description of the procedure and conditions for the statement by the company's creditors of the claim provided for in paragraph 5 of Article 20 of Law No. 14-FZ, indicating the address (location) of the permanent executive body of the company, additional addresses, for which such requirements can be declared, as well as methods of communication with society (phone numbers, fax numbers, addresses Email and other information).
The changes also affected the rights of claim of the company's creditors. So, if the creditors' rights of claim arose before the publication of the notice on the reduction of the authorized capital of the company, then the creditor has the right to demand from the company early fulfillment of the corresponding obligation not later than within thirty days from the date of the last publication of the above-mentioned notice. If it is impossible to fulfill the obligation ahead of schedule, the creditor within the specified time period shall have the right to demand its termination and compensation for the related losses. Term limitation period for filing with the court with this requirement is six months from the date of the last publication of the notice on the reduction of the authorized capital of the company.
In this case, the court has the right to refuse to satisfy the claims of the company's creditors if the company proves that:
- as a result of a decrease in its authorized capital, the rights of creditors are not violated;
- the provided security is sufficient for the proper performance of the respective obligation. This follows from paragraph 6 of Article 20 of Law No. 14-FZ, which was introduced by Law No. 228-FZ.
Tax implications for society and founders
Corporate income tax
If the company reduces the authorized capital in accordance with the requirements of the legislation of the Russian Federation, then according to subparagraph 17 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation, income for tax purposes does not arise.
In other cases, the amounts by which the charter capital has been reduced are recognized as income if, when the charter capital is reduced, the company refuses to return the value of the corresponding part of the contributions to the organization's participants. The specified income is recognized as non-operating income in accordance with paragraph 16 of Article 250 of the Tax Code of the Russian Federation.
A decrease in the authorized capital of a company leads to tax implications for founders, both legal entities and individuals. In the opinion of the Ministry of Finance and the Federal Tax Service of Russia, in the event of a voluntary reduction of the authorized capital, a member of this company who receives the corresponding property will receive income that is taken into account for the purposes of taxation of the profits of organizations. This conclusion follows from the Letters of the Ministry of Finance of Russia dated 17.02.2009 N 03-03-06 / 1/71, dated 13.01.2009 N 03-03-06 / 1/4, the Federal Tax Service of Russia for Moscow dated 14.12.2007 N 20- 12/119673.
Personal income tax
In accordance with paragraph 1 of Art. 210 of the Tax Code of the Russian Federation in determining tax base all income of the taxpayer is taken into account, received by him both in cash and in kind, or the right to dispose of which he has. The list of incomes that are not subject to personal income tax is given in article 217 of the Tax Code of the Russian Federation. This list is exhaustive and the income received as a result of a decrease in the authorized capital is absent in this article. Based on the above norms, as well as the letters of the Ministry of Finance of Russia dated 06.10.2010 N 03-04-05 / 2-602 and the Federal Tax Service of Russia dated 19.03.2010 N 03-04-05 / 2-113, the property received by the founder-individual in connection with a voluntary decrease in the authorized capital of an LLC, is recognized as income subject to personal income tax.
Society, upon payment of income to participants - individuals, is recognized as a tax agent and is obliged to withhold and transfer to the budget the amount of personal income tax (clauses 1, 2, 4 of Article 226 of the Tax Code of the Russian Federation).
