The authorized capital of an LLC can not only be increased, but also decreased. For what it is needed, and in what cases the Company is obliged to do it, we will describe below.
To begin with, let's define what the authorized capital of an LLC is and why it is needed. The authorized capital is an asset of the Company, which determines the minimum size of the LLC property, which guarantees the fulfillment of obligations to creditors. The minimum amount of the authorized capital, as you know, cannot be less than 10,000 (ten thousand) rubles. Therefore, we will immediately determine that it is not possible to reduce the authorized capital of an LLC by an amount below ten thousand. We also recall that if for some reason the size of the authorized capital is less than 10,000 rubles, then the Limited Liability Company is obliged to either liquidate or increase it to the minimum possible size.
It is necessary to reduce the size of the authorized capital of an LLC in mandatory in the case when the value of the net assets of the Company is less than the size of the authorized capital.
Ways to reduce the authorized capital of an LLC
Limited Liability Companies Law provides two options for reducing the authorized capital.
- The first method is to reduce the nominal value of the shares of all (namely all) members of the Company while maintaining the relationship between the shares.
- The second method involves the repayment of shares that belong to the Company.
Let us recall that shares in the authorized capital of an LLC may belong not only to the members of this Company, but also to the Company itself. Read more about shares in UK LLC.
The above two methods can be combined, but, as you understand, only if the Company owns a share in the capital.
The procedure for reducing the authorized capital of LLC
For reduction of authorized capital The limited liability company must decide on this. After making such a decision General manager within 3 (three) working days is obliged to submit to the registration authority (in Moscow this is MIFNS No. 46) a completed and notarized application in the form of R13001. In addition to the form, it is necessary to submit the Charter of the LLC to new edition... Two copies should be submitted, one of which will be returned with a mark "tax" on its registration.
Then, after receiving the documents on amending the constituent documents of the LLC and making an entry in the Unified State Register of Legal Entities, it is necessary to publish a message (notification) in the "Bulletin of State Registration" about the fact of reducing the Criminal Code. It is necessary to publish such a message twice with a frequency of one month.
Notification of a decrease in the authorized capital must contain the following information:
- LLC name (full and abbreviated)
- The size of the new authorized capital and the amount by which it decreased
- Method, procedure and conditions for reduction
- Conditions and procedure for filing claims against the Company by creditors
- Permanent address executive body(legal / actual address), additional addresses can also be indicated
- Other ways of communication with the Company: telephone, e-mail
Creditors' Rights in Case of Reduction of the Authorized Capital
If the rights of the creditor arose before the publication of the message on the reduction of the authorized capital by the Company, then he (the creditor) has the right, within 30 days from the date of the last published message, to demand from the Company early repayment obligations to him. It should be remembered that if the creditor did not manage to apply to the Company within this period, then he has the right to go to court, but the limitation period is only six months (6 months) and also from the date of the last published notice on the reduction of the authorized capital.
But, the court has the right to satisfy the claim in cases when:
- Of the Company as a result of a decrease in the authorized capital did not violate the rights of the creditor
- The security provided by the Company to the creditor is sufficient to fulfill the obligations to the creditor.
The authorized capital of an LLC is formed when the organization is opened. The minimum size is limited by law. The cost of capital is approved by the founders and reflected in the Articles of Association of the enterprise. When capital is formed, parts of the value are distributed among the founders. The proportion of shares is recorded in the minutes of the general meeting. We will tell in the article how the charter capital of an LLC is reduced.
Reasons for reducing the authorized capital
The legislation provides for the possibility of voluntary reduction of the amount of the authorized capital (CC) and the obligation of compulsory reduction in value. TO mandatory cases relate:
- Incomplete payment of the share of the Criminal Code, which must be paid before the expiration of a year from the date of registration. The share of the fund, which was not bought out in time by the founder, is transferred to the society.
- Revealing the magnitude net assets(AC) below the Criminal Code based on the results of activities for the second and subsequent years. The fund should be reduced to the amount of net assets. A decrease in the amount below the minimum established by law obliges the company to liquidate.
- The emergence of a free part of the capital formed when the founder left the structure. The sale of a person's share is carried out within a year, after which the amount is repaid by the company with a simultaneous decrease in the value of the authorized capital.
The reasons for the voluntary reduction of the size of the authorized capital is the desire of the society to avoid bankruptcy. The second most common cause is reorganization. The shares of the founders are subject to redemption in the event of a merger or acquisition.
The procedure for registering a reduction in the authorized capital
The legal right to the reduced value of the Criminal Code arises after step by step procedures and registration.
| Stages of registration | Document flow |
| Making a decision to change the amount | Minutes of the general meeting are issued with a quorum of 2/3 of the founders or a decision of the sole participant |
| IFTS notification | Form P14002 submission |
| Partner notification | Sending notifications and two-time notification in the official bulletin |
| Preparation of documents | Publication of the new edition of the Charter and filling out the form Р13001 |
| Submission of documents to the IFTS | Carried out by the manager or responsible person |
Grounds for reducing the authorized capital of LLC
The general meeting of founders has the right to voluntarily reduce the amount of capital. At least 2/3 of the number of all founders must participate in matters related to the management company and the distribution of shares. The procedure for holding a meeting is formalized in writing, for which a secretary is selected from among the founders or a third party is invited, whose data is reflected in the minutes.
The conduct of the meeting is entrusted to the chairman, who announces the agenda, is responsible for the quorum, the correct formulation of the issue and the legal force of the decision. The chairman is elected from among the participants present.
The decisions made by the meeting are recorded in one or several minutes at the request of the meeting. The document can be issued in several copies according to the number of participants and for presentation to the registrar. The issues under consideration include:
- Consideration of the issue of accepting the new value of the Criminal Code.
- A method for reducing the size of the charter capital. The legislation provides for the implementation of 2 options: by reducing the size of the shares of each participant or repayment of the part owned by the LLC. When the amount of the previously established shares of participants is reduced, the difference is paid at the discretion of the management body, unless otherwise specified in the constituent documents.
- Obligation to accept new editions or amendments to the Articles of Association.
- Obligation to amend constituent documents with registration of data in the register.
The meeting determines the person responsible for the preparation and submission of documents to the IFTS.
Notification of the Federal Tax Service Inspectorate of the capital reduction
When making a decision to reduce the size of the authorized capital within 3 days, you must inform the IFTS about the intention. For notification, the application form R14002 is provided. If the organization abandons its intentions at the stage of the procedure, the same form is used to submit the refusal. The document is submitted on paper without blots, erasures and corrections. No sewing is done, the sheets are connected with a paper clip.
When submitting the form, it is necessary to attach the minutes of the meeting of the founders with the decision to reduce the authorized capital. The application is submitted by the head who has the right to represent the interests of the company without a power of attorney or another person whose right is confirmed by a power of attorney. The person must prove their identity with a passport.
Notification of creditors about a decrease in the authorized capital
The company is obliged to notify the creditors of the decrease in the size of the authorized capital. The company is obliged to send out the mailing to partners by registered mail. Additionally, the publication of the message is carried out in the official publication - "Bulletin state registration". The journal provides an opportunity to publish by submitting a notification through the official website. Terms of document flow:
When published in the newsletter, information is provided: data on the name and location of the company, the size of the charter capital before and after the reduction, the method of changing the capital, the procedure for filing claims.
List of documents for registration
The Inspectorate of the Federal Tax Service obliges to submit a package of documents for registering a decrease in the Criminal Code. The state service is paid, a fee is paid for making changes. A package of documents is submitted to the IFTS:
- New edition of the Charter or a list of changes made to the document. The forms indicate the reduced amount of the authorized capital. The document is submitted in 2 copies.
- Application Form P13001.
- Original receipt with details of the paid fee.
- Minutes of the meeting or the decision of the sole participant. The documents remain in the organization's file.
- A copy of the notification of partners when publishing a message in the official bulletin.
In the case of bringing the value of the authorized capital to the value of net assets, the calculation of the NRA is included in the list. There are no rules for calculating NA. The calculation is presented in no particular order.
The term for the registration procedure is 5 days, after which the representative or the head of the company receives a new version of the Charter certified by the registrar and a list of entries in the register.
Taxation when reducing the authorized capital
When shares are redeemed with a simultaneous refusal to receive payment for the amount of value, the company has non-operating income (clause 16 of article 250 of the Tax Code of the Russian Federation). The amount is entered into the structure of non-operating income after registration of changes. Enterprises that use the simplified tax system in accounting, take into account non-operating income, taking into account the provisions of Art. 250 of the Tax Code of the Russian Federation (Article 346.15, Article 248 of the Tax Code of the Russian Federation). In the case of a decrease in the cost of capital to bring them to the value of NA, income does not arise (Article 251 of the Tax Code of the Russian Federation), which also applies to enterprises on the simplified tax system.
Postings in accounting for a decrease in authorized capital
An example of a share buyback with subsequent redemption
Enterprise "Crocus" left the list of founders of LLC "Segment". The participant's share was 20%, which in total was 15,000 rubles. The ransom was made at par. Organization LLC "Segment" reflects in the accounting:
- The share price was repurchased and taken into account: Dt 81 Kt 75 - 15,000 rubles;
- Payment of the cost of the share has been made by bank transfer: Dt 75 Kt 51 - 15,000 rubles;
- The cost of the authorized capital was reduced by the redeemed amount: Dt 80 Kt 81 - 15,000 rubles.
Accounting for transactions depends on the method of reducing the Criminal Code. If the meeting of founders decides to reduce the size of the shares of participants, the decrease is made in proportion to the percentage of the shares.
An example of a decrease in authorized capital due to reorganization
The meeting of the founders of Temp LLC fixed the intention to reduce the value of shares in the authorized capital in connection with the forthcoming reorganization. The participants include 2 persons with equal shares. total cost The authorized capital is 300 thousand rubles. The reduced cost is 100 thousand rubles. To register the changes, a state fee was paid in the amount of 800 rubles. By decision of the head, the difference was paid to the founders. In the accounting of Temp LLC, the following entries are made:
In the opinion of the Federal Tax Service Inspectorate, the amount of the difference paid between the nominal and reduced shares is subject to personal income tax. The company has the duty of a tax agent. The date of receipt of income (tax withholding) is the day of payments from the cash desk or receipt on the current account. The issue is controversial and can be contested in court. In the case of a forced reduction of capital (up to the value of NA), the difference individuals not paid.
Key questions and clarifications
Question number 1. Is there a payment of the difference to the founders between the values of the shares in case of a voluntary reduction of capital?
Payment of the difference is not provided for by law and is paid only by decision of the company's management body.
Question number 2. Can the Inspectorate of the Federal Tax Service refuse to register the Charter in the event of a decrease in capital, if a different amount is indicated when notifying partners and publishing?
In case of inconsistency of data of any nature, the registering authority has the right to refuse registration until the errors are corrected.
Question number 3. Is the amount received upon reduction of the authorized capital taxable if the shares are repaid without redemption? The company uses UTII.
Non-operating income is not revenue received in the course of conducting taxable activities. single tax... Income tax is paid from the amount in the manner prescribed by the generally established system. When the modes are combined, the amount is fully taken into account in the non-operating income of the DOS.
Question number 4. Who should be indicated by the payer of the state duty when registering a decrease in the Criminal Code?
The payer of the state duty is the applicant on whose behalf the application is submitted.
Question number 5. How is the Criminal Code reduced if part of it is contributed by property?
Shares of the founding fund can be contributed by property. After making a share in the charter capital, the property becomes the property of the enterprise with the expression in the total value. The reduction of the Criminal Code is made on a general basis with withholding personal income tax and paying tax to the budget.
The limited responsibility of society does not interfere with being an equal player in your market segment and keeping a course for development and economic prosperity. The foundation on which the building of the financial and economic activity are investments of the founders, which are considered the authorized capital... And any actions, relationships with partners and the resulting rights and a number of opportunities are determined by the norms of Federal Law 14-FZ, according to which a procedure for measures has been developed to regulate the path of economic development.
Reasons for reducing the authorized capital
1. For example, a company caught in a financial trap can go to reduce the authorized capital and, thereby, avoid bankruptcy... List of rules special purpose administering this procedure are unconditionally recognized regulations current legislation.
2. The use of the mentioned changes in relation to reduction may refer to the list of rights that the founders fully own. In other cases, the procedure is imputed to them. Here, for example, are the circumstances when such an obligatory basis for the said procedure is considered incomplete payment after the end of the year, which has passed since the registration of such a company.
3. Another reason to use the chance reduction of the authorized capital, the value of net assets that do not reach its level is considered, even as a result of active fiscal year... With an eye on a similar situation, the members of society only have to equate authorized capital to the value of net assets.
4. A decrease in the amount of the authorized capital also has to be used in the event of a withdrawal from the LLC of one of the participants.
But, in any case, mandatory and belonging to the category of independently made decisions, when it is necessary to deal with the problem of reducing capital, its size cannot fall below the established limits. From June 1, 2009, this amount is considered to be 10 thousand rubles.... So, the task of the procedure will be to adjust the capital to the amount of the amount that is actually paid.
Do founders and their partners always know about the rules excluding the possibility of reducing the size of the authorized capital? This situation is likely when the decline rates fall below the limits provided by the law. It is necessary to calculate in advance the amount of the reduction, which will help to eliminate obstacles even before the time comes for the state registration of changes in the charter of the LLC.
But this issue is too complicated, requires deep knowledge and skill of execution, which makes you turn to the help of professionals who can find and apply in practice the most suitable way decisions in a particular case.
Options for reducing the authorized capital
Any of the proposed methods can serve as a guide to action that guarantees a successful solution:
- an excellent solution would be to reduce the par value of the share of each participant in the LLC, as an integral part of the authorized capital;
- the solution to the problem is also achieved by paying off the shares.
In an effort to extract the greatest benefits for each client, well-trained specialists masterfully operate the features of this procedure, their experience, knowledge and skills. But in the successful solution of individual problems, the bureau staff strictly adhere to General requirements dictated by Law No. 14-FZ and the latest amendments introduced on January 1, 2012.
The procedure for reducing the authorized capital
Achieving the desired results is inextricably linked with the accuracy of each of the stages included in the procedure for reducing the size of the authorized capital. And since every action is triggered by a timely decision, the first step towards the goal will be general meeting held by the founders of the LLC and its minutes.
V this document the specifics of the procedure are clearly reflected, including both a decrease in the amount of capital and changes in the ratio of shares, their nominal value, and the approval of a new edition of the company's charter.
Publication of information
And so that the action does not come as a surprise to partners and regulatory authorities, a mandatory step will be publication of a special notice in the "Bulletin of State Registration". So that changes in the charter and the amount of capital do not go unnoticed, the publication about them is repeated in a month.
To post such a notice, you must contact the magazine with an application form, cover letter and by the decision of the meeting of founders, the authenticity of which is confirmed by the seal and signature of the General Director.
Documents for reducing the authorized capital
According to the requirements of the amended legislation, the notification of the tax service about the changes related to the decrease in the authorized capital must fit within a period of three working days from the adoption of the decision. It is with this number that information about the process that has begun is entered into the Unified State Register of Legal Entities. But first it is necessary:
- submit an application (form number P14002), which is well known to professionals who are ready to provide quality support;
- the decision of the LLC, according to which it is planned to reduce the amount of the authorized capital;
- since responsible actions require the reliability of confirmation, the LLC is armed with a document confirming the entry of this entry into the state register.
And don't forget about the need to inform the tax service the steps taken, as a warning or penalties could otherwise be earned. And since the publication is used to make the changes made public, then the magazine itself or the document confirming the placement of information will serve as evidence of the fulfillment of this obligation.
AND the last step This procedure is considered registration of changes in the amount of the authorized capital. But you need to act only with the presentation of the minutes of the meeting of the LLC participants and an application for amending the documents. It is also necessary attach a receipt, indicating the payment of the required fees and indicate all changes in the charter (2 original copies).
Registration of notification
To correctly issue a notification of the procedure performed, you will need
- precise indication full name society and its location.
- also, one cannot do without specifying the exact initial amount, which is equal to the authorized capital, as well as the size of its reduction.
- with maximum accuracy and in an understandable form, the conditions of changes, their size and the procedure for carrying out the procedure are written.
Execution of obligations
In case of receipt of claims from creditors, a special procedure for resolving such problems has been developed, the conditions are described and the address for communication with the executive body of the LLC is indicated. Just from here you can find out contact information, methods of communication and additional addresses for filing claims.
An important milestone on the way to reducing the amount of the authorized capital will be satisfaction of claims of army credits informed through publication in the magazine... And all their claims made up to the moment last publication can get satisfaction. If obstacles arise that interfere with the fulfillment of the LLC's obligations, the creditor has the right to take advantage of the termination of obligations and compensation for material losses through the court. But after six months from the date of the last publication, the claims of creditors may remain unsatisfied, since the term expires limitation period.
A similar result is likely also in the case when there is evidence that as a result of the procedure entailing a decrease in the authorized capital, the rights of creditors are sufficiently secured and there is every chance to fulfill the obligations assumed by the LLC.
Tax features
Taking advantage of the chance to reduce the authorized capital, LLC participants should be aware of the tax consequences that may arise. The voluntary use of this procedure, accompanied by the receipt of some property, is perceived as income and entails income taxation.
Amending the Charter of an LLC is not an easy task and has a number of characteristic features... Not everything is as complicated as it seems initially. The main thing is to follow the instructions in order to do everything without breaking the law. The procedure for reducing the authorized capital of an LLC takes place in several stages:
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- A meeting is convened, to which all owners of shares in the authorized capital (co-founders) are invited. At the meeting, a decision is made by a majority vote on the need to amend the constituent documents (Articles of Association).
- From the moment the decision is made at the meeting, within three days, the LLC is obliged to notify the tax inspectorate about it. To this end, the company submits form P14002, which must be signed by the head of the LLC, and the notary must certify it ( notarization not required if given form filed with the Federal Tax Service in in electronic format with the use of enhanced EDS). Within 5 working days, employees of the tax service enter the relevant information into the Unified State Register of Legal Entities.
- After the tax office is notified of the reduction of the Criminal Code, the company is obliged to notify its creditors as well. This is done by submitting an advertisement to the journal "State Registration Bulletin". This can also be done through the official Internet portal of the publication. The announcement in the "Vestnik" must be submitted twice: the first time - immediately after receiving a notice from the tax office on entering information into the Unified State Register of Legal Entities, and the second - no earlier than 30 calendar days since the publication of the first.
- After the second publication of the announcement about the reduction in the size of the start-up capital, the company needs to prepare a package required documents to register these changes with the Federal Tax Service.
- It will take up to five working days to register with the tax office. After that, the head of the LLC or his representative (trustee) in the inspection will be issued a new Charter with the amendments and a sheet on entering the relevant information into the Unified State Register of Legal Entities, which indicates the new size of the authorized capital of the company.
Attention! The need for mandatory notification of creditors and tax office the forthcoming decrease in the start-up capital is regulated by the Order of the Federal Tax Service No. SAE-3-09 / 355, Federal Law No. 14 and the Law on State Registration. Failure to comply with legal requirements entails legal liability.
Sample protocol or solution
The decision to reduce the size of the charter capital is made at general meeting all members of the society. According to Russian legislation the reduction in the size of the start-up capital occurs provided that more than 2/3 of all co-founders voted for it. But there are exceptions, unless otherwise specified in the Charter of the LLC. In the case when there is only one founder in the company, he independently makes such a decision.
The results of the meeting of the company's participants and the decision made on it are recorded in the corresponding minutes. If the decrease in the authorized capital was taken solely by the sole founder, then he draws up it in an appropriate documentary manner. This decision, like the minutes of the meeting of the co-founders, is a sufficient basis for starting the procedure to reduce the Criminal Code.
The decision to reduce the authorized capital of an LLC (minutes), a sample form of which can be downloaded from, must contain the following information:
- Document number, company name, date and time of the meeting of the co-founders.
- A complete list of persons present at the meeting with the number of votes, their ratio to the total number of participants in the company and to the number of those present at the meeting.
- Full name of the chairman of the meeting and the secretary who records the entire process.
- Agenda (list of issues considered at the meeting).
- List of persons present who made statements at the meeting and short essence the question posed by the speaker.
- Signature of the chairman and secretary.
You can download the form of the decision (protocol) on reducing the size of the authorized capital.
Tax implications for reducing the authorized capital
After changing the size of the charter capital downward, tax consequences may arise. This circumstance is due to the fact that with a decrease in the par value of shares, the amount by which each share was reduced, is paid to the members of the company. Such payments are regarded as profit, which in turn is the tax base. The same happens when a company buys out one or more shares. A participant who has dropped out of the co-founders receives compensation (in kind or in cash), and it is taxed.
LLC becomes a temporary tax agent, that is, the company, when paying funds to its members, is obliged to withhold tax from the amount paid in order to transfer it to the account of the Federal Tax Service. The procedure for reducing the start-up capital of a company does not have any tax consequences if it does not pay to its co-founders a part of their contributions, by the amount of which the charter capital was reduced.
This article talks about typical ways solving legal issues, but each case is individual. If you want to know how to solve exactly your problem - contact our consultant absolutely FREE OF CHARGE!
Important! When the legal entities participating in the company are paid part of their contributions, they are obliged to pay income tax, and if it comes about individuals, then they have a tax liability in the form of personal income tax.
But besides tax consequences, there are others:
- A decrease in the authorized capital entails a decrease in the level of creditors' confidence in the LLC.
- The procedure negatively affects business reputation society, since it is often regarded as the approach of bankruptcy of the enterprise.
- The likelihood of problems with creditors (they may require early repayment of loans), etc.
Specifics of reducing the share in the authorized capital of a company
Despite the fact that in most cases a decrease in the authorized capital is a real salvation for an LLC, the meeting must decide on the liquidation of the enterprise if at the time of consideration of the issue of reducing the authorized capital, the amount of net assets is slightly lower than the minimum established by law for the authorized capital of a limited liability company. ...
The untimely payment of the declared contributions can also lead to the liquidation of the enterprise. Members of the community can do this later, but in this case the registration authority will receive all legal grounds to file a claim with the court to terminate the activities of an LLC in connection with non-fulfillment of its direct obligations. The court may refuse to satisfy the claim, or the registration authority will provide the society with an opportunity to peacefully resolve this issue.
This is permissible if the LLC voluntarily fulfills its obligations and contributes the declared amount to the authorized capital. In the event that one of the co-founders (or several) did not contribute his share or contributed it partially, then the company needs to reduce start-up capital, or the LLC participants must pay the missing amount on their own.
Important! A co-founder who has not made the first contribution to the Criminal Code within the time period established by law leaves the membership of the company. If he paid the declared amount in part, and the rest was added by the rest of the participants, then the share of the participant in the authorized capital of the LLC decreases. All changes in percentage shares, their size and quantity, must be included in the Charter of the enterprise.
The reduction of the authorized capital of a limited liability company, as practice shows, is a forced measure. But if the co-founders wish and strict adherence to legislative standards, the size of the Criminal Code can be reduced voluntarily, the main thing is that this procedure did not entail negative consequences in the form of a deterioration in the reputation of the enterprise and loss of creditor confidence.
To determine what the authorized capital represents and what constitutes it, 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.
In the process of financial and economic activity, the size of the authorized capital may change, both upward and downward.
The moment of state registration is considered to be the entry by the registering authority into the corresponding state register (clause 2, article 11 of the Federal Law of August 08, 2001 N 129-FZ "On state registration legal entities and individual entrepreneurs").
An increase in the charter 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 participants in 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 liable 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 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 nominal 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 does not have the right to reduce its charter capital if, as a result of such a reduction, the size of the charter capital becomes less minimum size of the authorized 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 relevant changes in the charter of the company. In cases of mandatory reduction of the authorized 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 authorized 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), and 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 the reduction of 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 relevant 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 size 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 reduction 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 the 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 par 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 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 joint stock companies approved by the 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 share 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 about 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 taken 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.
In the 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 twice, once a month, to publish 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 application 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 no 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 has the right to demand its termination and compensation for related losses within the specified time frame. The limitation period for filing this claim with the court 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 corresponding 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 was reduced are recognized as income if, upon the decrease in the charter capital, 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 participant in 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 February 17, 2009 N 03-03-06 / 1/71, dated January 13, 2009 N 03-03-06 / 1/4, the Federal Tax Service of Russia in Moscow dated December 14, 2007 N 20- 12/119673.
Personal income tax
In accordance with paragraph 1 of Art. 210 of the Tax Code of the Russian Federation when determining tax base all income of the taxpayer is taken into account, received by him both in monetary and natural forms, 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 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.
The company, when paying 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).
