The procedure for convening and holding a general meeting of shareholders. Annual general meeting of shareholders: registration of preparation and holding

In this issue, we focus your attention on paperwork during the registration process for participants who arrived at general meeting shareholders; a ballot paper, along the way explaining the rules for regular and cumulative voting; minutes of the meeting itself, as well as minutes and the report of the counting commission. We explain what design variations are possible, taking into account the latest innovations of the Federal Financial Markets Service.

Counting Commission

In a company with more than 100 shareholders (owners of voting shares), a counting commission is created, the quantitative and personal composition of which is approved by the general meeting of shareholders. If the registrar is a professional registrar, he may be entrusted with the functions of the counting board. If the owners of voting shares are more than 500, then the functions of the counting commission in mandatory performed by the registrar (and it is the one who maintains the register of shareholders of the given JSC).

The counting commission must include at least 3 people. In addition, the counting commission cannot include:

• members of the Board of Directors (Supervisory Board) of the company;
• members of the audit commission (auditor) of the company;
• members of the collegial executive body society;
• the sole executive body of the company (usually this general manager), as well as the managing organization or manager,
• as well as persons nominated by candidates for the above positions.

The tasks of the counting commission include:

• verification of powers and registration of persons participating in the general meeting of shareholders;
• determination of the quorum of the general meeting of shareholders;
• clarification of issues arising in connection with the exercise by shareholders (their representatives) of the right to vote at the general meeting;
• clarification of the voting procedure;
• ensuring the voting procedure;
• counting of votes;
• summing up the voting results;
• drawing up a protocol on the results of voting and transferring it to the archive together with voting ballots.

The order of work, status and powers of the counting commission in JSC, as a rule, are regulated by a separate local normative act. It is approved by the general meeting of shareholders and is one of the main documents of the organization. In our opinion, it should also contain general requirements for the procedure for drawing up the protocols of the counting commission. There can be two of them:

• the first minutes - on the results of registration of shareholders at the general meeting (this document is needed primarily to determine the quorum on the agenda of the meeting);
• and, of course (in accordance with the requirements of Art. 62 of the Federal Law "On JSC"), there is a protocol on the voting results, on the basis of which a report on the voting results is drawn up. The minutes on the results of voting at the general meeting shall be signed by the members of the counting commission, and if the functions of the counting commission were performed by the registrar, by persons authorized by the registrar. If the number of shareholders is less than 100, then the counting commission may not be created; then such minutes are signed by the chairman of the meeting and the secretary.

Registration of shareholders and their representatives

The general meeting of shareholders is always preceded by the registration of participants. Within the framework of this procedure, the powers of persons who have expressed a desire to take part in the general meeting of shareholders (GMS) are established. Registration of persons participating in the OCA must be carried out at the address of the venue of this meeting. The registration process is essentially a process of identifying arrivals by comparing the data contained in the list of persons eligible to participate in the OCA with the data of the submitted documents.

If the interests of shareholders are represented by proxies, then their powers should also be checked - the documents submitted by them are checked formally:

1. If it comes about a power of attorney, it is necessary to establish:
   • whether the term of office has expired. The power of attorney is always issued for a specific period. The Civil Code of the Russian Federation established the maximum period of its validity - 3 years. The validity period in the power of attorney may not be specified, in this case it is considered valid for 1 year from the date of issue. The date of issue of the power of attorney is its obligatory requisite, without which it is invalid! A power of attorney can be issued not only for a period, but also for participation in a specific meeting of shareholders;
   • whether the power of attorney contains all the necessary information. In accordance with the Federal Law "On JSC", the power of attorney to vote must contain information about the represented and the representative:
     • for an individual - name, details of the identity document (series and (or) number of the document, date and place of issue, issuing authority),
     • for the organization - the name, information about the location;
   • whether the revocation of the power of attorney was previously received by the joint-stock company;
   • whether the signatures are properly certified. If a power of attorney for voting is issued by an individual, then it must be notarized. If issued by a legal entity, then it is necessary to take into account the requirements of paragraph 5 of Article 185 of the Civil Code of the Russian Federation2.
2. If we are talking about a person acting as the sole executive body (IO) of a legal entity-shareholder, in addition to his identity (by presenting a passport), it is necessary to check:
   • the title of the position and powers of such an official. This can be established according to the charter of the shareholder organization (usually a notarized copy of it is presented);
   • the fact of appointing a person who has come to you at the meeting to the position specified in the charter as a sole proprietorship. Depending on the organizational and economic form, you can present a protocol or a decision of the authorized body (for an LLC - a general meeting of participants, for a JSC - a general meeting of shareholders or the Board of Directors, for institutions - the decision of the founder), as well as an extract from it. Additionally, you can ask to submit an extract from the Unified State Register of Legal Entities, confirming the fact of entering this information into it. However, it must be remembered that the register is for informational purposes only and the protocol of appointment is the main document;
   • if the CEO is limited in its powers, then in addition to documents confirming its powers to represent the interests of a legal entity without a power of attorney, there must also be a protocol of the higher body of the legal entity-shareholder having the authority to make decisions. Moreover, such a protocol should contain the exact wording of the agenda items and a decision on how to vote on them.

The transfer of the shareholder's right to participate in the General Meeting of Shareholders to the representative is fixed in the Regulations on the General Meeting of Shareholders of OJSC "Kulebaksky Plant of Metal Structures" 3

Article 28. Transfer of the right to participate in the general meeting of shareholders

1. The transfer of rights to a shareholder's representative is carried out by issuing a written authorization - a power of attorney.

2. A shareholder has the right to issue a power of attorney both for all shares belonging to him and for any part of them.

3. A power of attorney can be issued both for the entire range of rights provided by the share, and for any part of them.<...>

8. A shareholder has the right at any time to replace his representative and personally exercise the rights provided by the share by terminating the power of attorney. The shareholder has the right, without terminating the power of attorney, to replace his representative and personally exercise the rights provided by the share<...>

If the representative's power of attorney is revoked in the specified order, he cannot be registered to participate in the general meeting of shareholders.

Samples of general, special and one-time power of attorney, as well as a power of attorney for English language with an apostille and its translation into Russian, you can find the general rules for drawing up this document in the article "We issue powers of attorney to represent the interests of an organization" in No. 10 ’2011 and No. 11’ 2011

Now we give examples of two powers of attorney:

• for the simple case when one authorized person fully represents the interests of the shareholder at the GMS without any restrictions (see Example 15), and
• for a more complex one, when the transfer of authority is carried out only for a part of the shares (see Example 16).

These powers of attorney differ slightly in the way some details are placed. In both, the text is divided into semantic paragraphs, which does not correspond to the usual rules of the Russian language, but it allows you to quickly find key information: who, to whom and what has entrusted (this version of the power of attorney registration is more and more common).

Pay attention to the details that are used to identify the organization and the individual who appear in the power of attorney.

But the law does not require the signature of the trustee in this document (without it, the power of attorney will also be valid), just its presence will help to additionally protect against fraudulent actions, because allows you to compare the sample signature in the power of attorney with the strokes that the representative will put on other documents.

Power of attorney to participate in the OCA - general case

Power of attorney for the transfer of powers in respect of shares

The composition of participants in a meeting held in the form of joint attendance is recorded by filling out the Participant Registration Log (Example 17). If shareholders send ballots to the company (instead of personally attending the meeting), it seems advisable to draw up a notice of registration of received ballots, which reflects the dates of their receipt (by last date on the postmark print). In addition, a protocol of registration of participants in the general meeting of shareholders is drawn up (Example 19). Requirements for the form and content of the registration forms listed by us here are not established, therefore each JSC is free to develop them for itself, following common sense (you can use our samples as well).

Registration log of GMS participants (shareholders themselves, proxies and representatives)

We note only a number of information that is advisable to include in the Register of Participants of the General Meeting of Shareholders by virtue of the Regulation on additional requirements to the procedure for preparing, convening and holding a general meeting of shareholders approved by order of the FFMS of Russia dated 02.02.2012 No. 12-6 / pz-n4:

• in the messages about the meeting, the time of the beginning of registration must be indicated (clause 3.1 of the Regulations). Fixing the actual time of the beginning of registration in the Journal will help to confirm that registration began at the time indicated in the notice of the OCA. See Note 1 in the Journal from Example 17;
• in accordance with clause 4.6 of the Regulation “registration of persons participating in the general meeting held in the form of a meeting must be carried out at the address of the place where the general meeting is held”. The indication of this address in the Journal will serve as an additional confirmation of compliance with these requirements. See note 2 in Example 17;
• the fact of checking the identity documents of those who arrived at the meeting (i.e., the fulfillment of clause 4.9 of the Regulations) will additionally confirm the presence in the Journal of a filled column marked with number 3 in Example 17;
• a personal account is opened for each person registered in the register of shareholders - the owner, nominee, pledgee or trustee. It contains data not only on the registered person, but also on the type, quantity, category (type), state registration number of the issue, par value of securities, numbers of certificates and the number of securities certified by them (in the case of a documentary form of issue), encumbrances of securities securities obligations and (or) blocking transactions, as well as transactions with securities. The procedure for assigning numbers to personal accounts is determined by the internal documents of the organization that maintains the register of shareholders. See Remark 4 in Example 17.

Ballot paper

If the JSC has more than 100 owners of voting shares, then voting at the annual meeting of shareholders of the company must be carried out using voting ballots. If the number of shareholders is less, you can do without them, but it is worth noting that if more than 7-10 people participate in the meeting, then the use of ballots, in our opinion, will already justify itself. Firstly, it speeds up the voting process itself, and secondly, it reduces the risk of confrontation between shareholders and the public about their actual will expressed during the voting.

The current legislation (paragraph 2, clause 2, article 60 of the Federal Law "On JSC") provides that if the company has more than 1000 shareholders, then the bulletins must be sent to them in advance. This is usually done in conjunction with the distribution of the notification of the OCA5.

If there are fewer of them, then the requirement for mandatory mailing can be fixed in the charter of the JSC. Timely distribution of ballots in small societies can increase the level of trust in the governing bodies, and in large ones, it can significantly simplify the counting of votes. In addition, paragraph 3 of Art. 60 of the Federal Law "On JSC" for those who send out ballots, makes a certain indulgence: the shareholders of these JSCs will be able to take part in the meeting in person or send the completed ballots to the company for absentee voting (when determining the quorum and summing up the voting results, votes represented by ballots will be taken into account received by JSC no later than 2 days before the date of the OCA).

In all other cases, ballots are distributed during registration of shareholders at the GMS.

• the form of the GMS (meeting or absentee voting);
• date, place, time of the OCA and the mailing address to which the completed ballots can be sent;
• wording of decisions on each issue (name of each candidate), voting on which is carried out by this ballot6;
• voting options for each item on the agenda, expressed as “for”, “against” or “abstained”. Opposite each voting option, there should be fields for setting the number of votes cast for each voting option, or it may contain an indication of the number of votes belonging to the person entitled to participate in the general meeting (in Example 18, the second option is implemented);
• if a cumulative vote is taken on an issue, this should be specially noted;
• mention that the voting ballot must be signed by the shareholder (see note 1 in the ballot from Example 18);
• the bulletin should explain the rules:
  • regular voting - when on the agenda item it is necessary to choose only 1 answer option: “for”, “against” or “abstained” (see mark 2 in Example 18) and
  • cumulative (if the questions put to such a vote are in the ballot) - it is used to select candidates for positions. Moreover, the number of candidates among whom votes are distributed in a cumulative vote may exceed the number of persons to be elected (for example, the Board of Directors consists of 5 people, and 9 people apply for these seats, and only those who received the most votes will go to this collegial body ) - mark 3 in Example 18.

Example 18 demonstrates how to fill out the ballot in regular voting (agenda items 1, 2 and 3) and cumulative (issue 7).

Procedural Issues

• elect the Chairman of the meeting;
• the secretary of the meeting, as a rule, is appointed by the presiding officer, but a different procedure may be prescribed in the charter or other document of the joint-stock company (clause 4.14 of the Regulations);
• choose a counting commission that can operate during one meeting or, for example, a whole year; the functions of the counting commission can also be performed by the registrar keeping the register of shareholders of this JSC; Recall that if a JSC has less than 100 shareholders, then its functions can be performed by the chairman and secretary of the meeting.

Let us dwell separately on the problem of reflecting a number of procedural issues in the OCA protocol and the bulletin. The most common of these is the election of the Chairman and Secretary of the meeting. There are several options, but their choice is not arbitrary. It depends on the order that is set out in its Charter.

As a general rule, the election of the Chairman, the secretary of the annual GMS cannot be made on him; the duty to preside over the GMS is assigned by law to the Chairman of the Board of Directors, unless otherwise provided by the Charter; and the procedure for performing the functions of the Chairman in his absence is determined by the local regulatory act of the JSC (for example, the Regulation on the Board of Directors). Thus, if there is no special clause in the Charter that the Chairman should be elected at the annual GMS, then there can be no question of any vote on his candidacy. The annual meeting is chaired either by the Chairman himself or, in his absence, by a person performing his functions in accordance with internal local acts.

The situation with the secretary before the entry into force of the Regulation was rather complicated. However, now it is clearly regulated by clause 4.14 of this document: "The secretary of the general meeting is appointed presiding over the general meeting, unless a different procedure for its appointment (election) is established by the charter or internal document of the company governing the activities of the general meeting."

If in the Charter or local act AO has reservations about the election of the Chairman and the Secretary, then this issue, in our opinion, should be included in the Agenda of the meeting and voting ballots under No. 1. At the same time, it is necessary to understand that such reservations can lead to rather problematic situations, especially during corporate conflicts. The company may find itself in a situation where it is impossible to hold a meeting, since the shareholders did not come to an agreement on the candidates within the framework of resolving a procedural issue.

Who performs the functions of the counting commission is usually also decided before the meeting.

Because the issue of determining a quorum at a meeting is important, then in order to confirm the presence of a quorum, the counting commission can draw up such a procedural document as a protocol on the results of registration of shareholders at the General Meeting of Shareholders (Example 19).

Minutes on the results of registration of shareholders at the General Meeting

Note to Example 19: in order to speed up the work, the protocol template can be prepared in advance, while the columns "registered" and "total number of votes of registered shareholders" remain empty, which are then filled in by hand before signing the document.

As a rule, the first version of the document is drawn up for submission to the Chairman before the start of the GMS. Then such documents can be prepared immediately before the hearing of each question (registration continues, and suddenly it was possible to gain a quorum on those issues for which it was not there at the beginning of the meeting). Such a protocol is not mandatory and is often replaced by something like reports or memorandums signed by the chairman of the counting commission. This document contains information on the total number of shareholders and the number of shareholders registered at the time of the commencement of the GMS.

Vladimir Matulevich, expert of the magazine "Legal Directory of the Head"

The Regulation clearly states that the general meeting can be opened if there is a quorum on at least one issue from the agenda (clause 4.10). At the same time, those wishing to take part in the meeting have the opportunity to register after the discussion of the last item on the agenda (for which there is a quorum), but before the start of voting.

If by the time of the beginning of the meeting there is no quorum on any of the agenda items, it is possible to postpone the opening, but for a maximum of 2 hours. The specific term can be prescribed in the charter or internal document of the JSC, which regulates the activities of the OCA. If this is not done, then the opening can be postponed only for 1 hour. Moreover, it will not be possible to do this indefinitely: the transfer is possible only once.

In order to avoid corporate disputes and to achieve complete objectivity of voting, clause 4.20 of the Regulations contains complete list types of shares, the ownership of which does not affect the quorum.

The Regulations refer to the final documents of the general meeting:

• minutes of the general meeting;
• protocol on the results of voting;
• a report on the voting results (if the adopted decisions and voting results were not announced during the meeting);
• documents adopted or approved by decisions of the general meeting.

The FFMS in order No. 12-6 / pz-n outlined in some detail the requirements for each document. So, in the minutes it is enough to reproduce the main provisions of the speeches. At the same time, in comparison with the previous rules, the list of information that should be in the protocol has expanded.

In recent years, the state in corporate relations has actively supported the side of shareholders as initially more disadvantaged in comparison with the "top" of the joint-stock company. An illustrative example is the appearance in the Code of Administrative Offenses of the Russian Federation of Article 15.23.1, which establishes liability, including for violation of the procedure for preparing and holding general meetings of shareholders. This article provides for considerable fines, the order of numbers is as follows - from 2,000 to 700,000 rubles. (and, as an option, disqualification). Arbitration practice shows that this article is "in demand" among the courts and the Federal Financial Markets Service of Russia. So it makes sense to familiarize yourself with it.

Minutes and report on voting results

The minutes of the general meeting of shareholders shall be drawn up no later than 3 business days after the close of the general meeting of shareholders in 2 copies. Both copies are signed by the chairman of the GMS and the secretary of the GMS. The minutes of the general meeting indicate (clause 4.29 of the Regulations):

• full company name and location of the JSC;
• type of general meeting (annual or extraordinary);
• the form of its holding (meeting or absentee voting);
• the date of compiling the list of persons entitled to participate in the GMS;
• date of the OCA;
• place of the meeting held in the form of a meeting (address at which the meeting was held);
• the GMS agenda;
• start time and end time of registration of persons entitled to participate in the GMS, held in the form of a meeting;
• opening time and closing time of the GMS held in the form of a meeting; and if the decisions made by the general meeting and the results of voting on them were announced at the meeting, then also the time when the counting of votes began;
• the postal address (addresses) to which the completed voting ballots were sent during the GMS in the form of a meeting (if voting on the issues included in the GMS agenda could be carried out by absentee voting);
• the number of votes held by the persons included in the list of those entitled to participate in the General Meeting on each item on the agenda of the general meeting;
• the number of votes attributable to voting shares of the company on each item on the agenda;
• the number of votes possessed by the persons who took part in the general meeting, indicating whether there was a quorum (separately for each item on the agenda);
• the number of votes cast for each of the voting options (“for”, “against” and “abstained”) for each item on the agenda for which there was a quorum;
• wording of decisions adopted by the general meeting on each item on the agenda;
• the main provisions of the speeches and the names of the speakers on each issue on the agenda, if the GMS was in the form of a meeting;
• chairman (presidium) and secretary of the OCA;
• date of drawing up the minutes of the OCA.

As you can see, the content of the protocol as one of the main corporate documents is determined in sufficient detail by the current legislation. At the same time, the form of information presentation is not regulated by anything, therefore it is composed in different ways:

1. Some JSCs post material "on questions", that is, give a description sequentially:
   • agenda item;
   • speeches on this issue;
   • decision and results of voting on this issue.
2. Other AOs give material in logical blocks:
   • agenda;
   • speeches on each item on the agenda;
   • decisions and results of voting on all issues.

Lawyers monitor more compliance with the mandatory requirements of the current corporate legislation to the content of the OCA protocol than the rules for drawing up the protocol that developed in our country in the Soviet period and now have a recommendatory nature. Therefore, many go the second way. He is especially loved in large joint-stock companies, since when a large number It allows the speakers and voting shareholders to draw up minutes in two independent blocks, separated by time:

• speeches are recorded directly following the results of the meeting according to steno- or audiograms of speeches. At the same time, you can work separately on each item on the agenda, i.e. can work on the document at the same time big number specialists;
• and the counting of votes is added to the minutes a little later - after the counting of ballots.

We provide a sample of the minutes of the general meeting of shareholders in Example 20, drawn up according to the first scheme - more familiar to the audience of our magazine. It should be noted that in this case it is rational to use separate voting ballots, when each issue is voted on with its own ballot. This will significantly speed up the counting of votes, and in JSCs with a small number of shareholders, it will even make it possible to announce the results of voting on an issue during the meeting itself.

The minutes of the general meeting must be accompanied by the minutes on the results of voting at the general meeting and documents adopted or approved by the decisions of this GMS.

The counting commission, based on the results of voting, draws up a protocol signed by all members of the counting commission (Example 21). It must be drawn up no later than 3 business days after the closing of the OCA. Decisions adopted by the general meeting of shareholders, as well as the results of voting:

• are announced at the meeting itself (during which a vote was taken) or
• are communicated in the same order in which the shareholders were notified of the general meeting (mailing of letters or publication in the media) no later than 10 days after drawing up the protocol on the voting results in the form of a report on the voting results (Example 22).

In addition, we will explain: the protocol on the voting results is always drawn up (this follows from clause 4 of article 63 of the Federal Law "On JSC" and additional clarification in clause 4.28 of the Regulations). And in the event that the decisions made by the General Meeting of Shareholders and the voting results were not announced during the meeting at which the voting was held, a report on the voting results is also drawn up. There is also some difference in the details of the documents: the most serious difference is that the protocol is signed by the members of the counting commission, and the report is signed by the chairman and secretary of the OCA.

After drawing up and signing the protocol on the results of voting, the voting ballots are sealed by the counting commission and deposited in the archives of the company for storage. At one time, the Federal Commission for the Securities Market determined the storage period for the ballots: “until the termination of the activities of the joint-stock company” 7.

Read about the storage of documents of the general meeting of shareholders on the website "How to store documents related to the holding of the general meeting of shareholders?"

The annual general meeting of shareholders cannot be "absentee", it is always held in the form of an in-person meeting. Even if all shareholders sent filled in ballots and did not appear in person, from a formal point of view, this is still a face-to-face meeting with the package of documents that we are talking about in this article.

Also, pay attention to the numbering and dates of the protocols: the date is a mandatory identification variable, and the number may not be there.

Read about stitching on the website "How to properly arrange stitching of multi-page documents?"

Minutes of annual general meetings of shareholders do not need to be numbered at all. If a second meeting is held within a calendar year, then its minutes are immediately assigned No. 2, and the first minutes (of the annual meeting) remains without a number. Such a detail of the minutes as the date reflects the date of the meeting, and not the date of signing the minutes (we draw your attention to this, since these events often take place on more than one day). At the same time, it is necessary to monitor the correct wording in the agenda, which reflects the year (for example, the minutes of the annual meeting in 2013 will include “Approval of the annual report of the Company for 2012”).

As for the protocols of the counting commission, they are numbered within the limits of the work of the counting commission in a certain composition. Usually they prefer to create / form a counting commission in one composition for one meeting, then, for example:

• under No. 1 there will be a protocol on the results of registration of shareholders,
• under No. 2 - interim protocol on the results of voting and
• under No. 3 - protocol on voting results.

If the counting commission is formed to work at several meetings, for example, within a year, then at the second meeting the minutes of this counting commission on the results of registration of participants will already be No. 4, and the next on the results of voting at the meeting - No. 5, etc.

Minutes of the General Meeting of Shareholders

Note to Example 20: Decisions made at the meeting are of a directive nature and are worded accordingly. Pay attention to their numbering: the first number repeats the number of the issue on the agenda, and the second number numbers the decisions made on this issue. After all, there can be more than one of them, for example, under No. 9 on the agenda there is the approval of a certain local normative act, but the shareholders, in addition to its approval, may decide to instruct specific executors to develop another document by a certain date. In such a situation, there will already be 2 decisions on one issue on the agenda with numbers 9.1 and 9.2.

By June 30, joint stock companies are required to hold an annual general meeting of shareholders, which is the highest governing body of the JSC. On it, the co-owners of the business decide key questions related to the company's activities: reorganization and liquidation of the company, amendments and additions to the charter, election of the board of directors and early termination of its powers, increase and decrease authorized capital, payment of dividends, etc.

The requirement that the annual general meeting of shareholders (hereinafter referred to as the meeting) must be held no earlier than two months and no later than six months after the end of the financial year is established in paragraph 1 of Art. 47 of the Federal Law of December 26, 1995 No. 208-FZ "On Joint Stock Companies" (hereinafter - the Law on Joint Stock Companies).

Taking into account the provisions of Federal Law No. 99-FZ of 05.05.2014 on expanding the powers of the collegial executive body, on the possibility of introducing two directors in the company at once, etc. new edition by including new provisions at the discretion of the business owners.

Who initiates the convening of the meeting

The annual general meeting of shareholders is convened at the initiative of the board of directors of the company, the head of the company, or other persons, including the shareholders themselves, who in aggregate own at least 2% of voting shares in the authorized capital of the company.

If the company has avoided calling a meeting, a shareholder who owns a block of shares in the specified number has the right to file a corresponding claim with the court (Resolution of the CA of the West Siberian District of 03.23.2016 in case No. A27-19348 / 2015). At the same time, even actions taken voluntarily by the company to prepare the meeting after filing a claim with the court do not exclude the possibility of its satisfaction (Resolution of the AU Central District dated 10.08.2016 No. F10-2119 / 2016).

An exception is the case when the meeting actually took place, and all the issues included in the agenda, including those requested by the plaintiff, were considered. In such a situation, the satisfaction of the claim entails the impracticability of the court decision, since in fact the rights of the plaintiff were restored (Resolution of the AC of the Far Eastern District of December 28, 2015 No. F03-5240 / 2015).

Meeting procedure: registrars and notaries

The meeting is held either by the registrar who maintains the register of shareholders of the company, or by a notary who works within the notary district at the location of the company.

For notaries, such an operation is relatively new, not yet worked out in detail, since the standard regulations for the performance of a notarial act have been approved quite recently (Guidelines for certifying by a notary the adoption of a decision by a general meeting of participants in a business company and the composition of participants in the company who were present at its adoption, approved by the Federal Notary Chamber) RF 1).

The advantage of working with a professional registrar, in addition to the fact that he has already developed the practice of holding corporate meetings, is the conclusion of a separate agreement for holding a meeting on a specific date. This removes the risk of disrupting the meeting and bringing the JSC to responsibility, since it will have the right to compensate for its losses at the expense of the registrar if the meeting is disrupted through his fault. Having concluded an agreement with the registrar, the company can, as usual, carry out work on organizing and preparing corporate event without fear of negative consequences.

Notaries, when performing a notarial act to certify the adoption of a decision by the meeting and the composition of shareholders present at its adoption, do not conclude contracts with the company. Accordingly, they also do not assume obligations to attend the meeting on a specific date and do not bear responsibility. The notary can agree to hold a meeting and then refuse to participate at the very last moment due to a change in circumstances.

The final price of all notary services is also unknown, which may change during the event.

With the registrar, a fixed fee for a set of services can be established in an agreement, and it will no longer be able to change it upwards without the consent of the joint-stock company (Articles 309, 310 and 450 of the Civil Code of the Russian Federation). The registrar may be assigned an obligation in the contract to carry out all the actions that are necessary to organize the meeting, or only part of them in order to save money. For example, a joint-stock company can independently send messages about the holding of a meeting, as well as a report on the results of voting, which must be sent to all shareholders (clause 4 of article 62 of the Law on joint-stock companies).

When agreeing with the registrar of the date of the meeting, the JSC must first familiarize itself with the prices for this service accepted by the registrar, taking into account the increasing coefficients in connection with the multitude of orders coming from various issuers. If possible, it is better not to postpone the meeting until the very last moment and check with the registrar the most optimal time to conduct it.

To hold a meeting, a JSC must order from the registrar a list of persons entitled to participate in the meeting of shareholders, as well as send a mailing to all shareholders about the date, time and place of the meeting, about issues included in the agenda. This list is drawn up no more than 50 days before the date of the meeting, and the message is sent to shareholders by registered mail no earlier than 20 days before the date of the meeting (Art. 51-52 of the Law on JSC).

The list of persons entitled to participate in the meeting is drawn up by the registrar on the basis of the data contained in the system for maintaining the register of shareholders. The company with the registrar bears joint responsibility for maintaining and keeping the register of shareholders, but within the framework of the meeting of shareholders it is guided by the list that the registrar prepares for it upon request. Therefore, if one of the shareholders did not attend the meeting due to the lack of information about him in the list in question, he should address his claims to the registrar.

The company cannot be held administratively liable for violation of the procedure for holding a meeting (Article 15.23.1 of the Administrative Offenses Code of the Russian Federation), since it is not his fault in the improper performance of his duties by the registrar. In addition, shareholders themselves bear the risk of not receiving notices at their place of residence if the register of shareholders contains not up-to-date information (Resolution of the AC North Caucasian District from 23.11.2016 in case No. A53-905 / 2016).

Before ordering a list of persons entitled to participate in the meeting, it will not be superfluous to look at the terms of the agreement with the registrar for the storage and maintenance of the register. It is possible that for the annual general meeting, it will provide for discounts for the production of this list, or it will generally be provided free of charge. For example, an agreement with a registrar may contain a condition that the list during the term of the agreement may be provided once free of charge.

Meeting announcement

In the notice of the meeting, it is necessary to indicate the date, time and place of its holding, the date of compiling the list of persons entitled to participate in it, the agenda, as well as the procedure for familiarization with the materials for the meeting. When holding a meeting, shareholders will have to consider all issues on the agenda and vote on them, while they are not entitled to consider issues not included in the agenda (resolution of the Federal Antimonopoly Service Ural district dated 17.01.2012 No. F09-8843 / 11).

When specifying the location of the meeting, the JSC must be guided by the information from its charter. If the charter of the venue for the meeting is not determined, the meeting must be held at the location of the joint-stock company specified in the Unified State Register of Legal Entities, in accordance with clause 2.9 of the Regulation on additional requirements for the procedure for preparing, convening and holding a general meeting of shareholders, approved. by order of the FFMS of Russia dated 02.02.2012 No. 12-6 / pz-n (hereinafter - Regulation No. 12-6 / pz-n).

The notice of the meeting is sent to all shareholders by registered mail with a list of attachments, or it can be published in printed edition or posted on the company's website on the Internet, if such a possibility is provided for by the charter. When posting a message in a printed publication, it is necessary to take into account that such a publication must be publicly available in the relevant area so that shareholders have access to it (resolution of the FAS of the East Siberian District of 09/04/2013 on case No. A19-13535 / 2012).

The place of the meeting should be clearly indicated in the message so that shareholders do not have any difficulties upon arrival at the place. Simply indicating the address of the building without indicating the number of the premises in which the meeting of shareholders will be held is a violation (Resolution of the AC of the Volgo-Vyatka District of December 17, 2014 No. F01-5146 / 2014).

If one of the shareholders considers that his rights and legitimate interests have been violated by the company and he has not received a notice of the meeting, the JSC will have to present an inventory of the investment, from the content of which it will follow which letter and with what content was sent to a particular shareholder. In such a situation, the shareholder's assertion, for example, that he received an empty letter or a postcard instead of a message about the meeting, will be unfounded, and the court will reject it as contradicting the case materials (resolution of the FAS West Siberian District of April 26, 2013 in case No. A75 -1719/2012).

In such a situation, any reasonable shareholder, having received an empty letter, must necessarily apply to the JSC for appropriate explanations in order to verify whether there has been an error or deliberate violation of his corporate rights in order to take timely measures.

When posting a message about holding a meeting on the JSC website, it is necessary to take into account such an important point as the age of shareholders. If these are mainly elderly people, the use of such a method of notification as posting information on the site may be difficult for them, which must be taken into account by the society due to the principles of conscientiousness and rationality (Article 1 of the Civil Code of the Russian Federation). Therefore, it is better to use the site as additional way notices, and not as the main one.

Disclosures and Agenda

Information that must be disclosed to shareholders (Article 52 of the Law on JSCs) includes the company's financial statements, information about members of the Audit Commission and candidates to the Board of Directors, including full name, date of birth, information about education, work experience, annual activity report companies and other necessary documents and information. The agenda includes the main issues provided for in paragraph 1 of Art. 47 of the JSC Law (approval of financial statements, election of the board of directors, etc.), as well as other issues included in it by the person who convenes the meeting (for example, on the approval of major transactions or related-party transactions).

The company's annual report is approved in any form and includes the following information: the company's position in the relevant industry or industries, the main financial and economic indicators of its activities, priority areas of its activities, prospects, a description of the main risk factors associated with its activities, a list of major transactions and related party transactions, information about members of the board of directors, about the head of the company, other information.

Responsibility of JSC

These procedures are mandatory when holding a meeting. If they are not fulfilled, the JSC may be brought to administrative responsibility under Part 2 of Art. 15.23.1 Administrative Code of the Russian Federation in the form of a fine in the amount of 500,000 to 700,000 rubles. AO will be able to reduce the fine below the lower limit only if in judicial procedure it will be proved that there are good reasons for its reduction based on an assessment of the nature and consequences of the violation committed, the degree of guilt of the society, its financial situation, as well as other circumstances that are essential for the individualization of administrative responsibility (parts 2.2 and 2.3 of article 4.1 of the Code of Administrative Offenses of the Russian Federation, Resolution of the Constitutional Court of the Russian Federation of February 25, 2014 No. 4-P).

In the absence of such grounds, the amount of the fine is lower lower bound not subject to reduction (Resolution of the CA of the Moscow District dated 05.02.2015 No. F05-14587 / 2014).

If a JSC committed a violation and an administrative offense case was initiated against it, the entire arsenal of legal remedies should be used in order to obtain exemption from liability, such as: expiration of the statute of limitations for bringing to responsibility (three years from the date of committing in accordance with Part 1 4.5 of the Code of Administrative Offenses of the Russian Federation), violation of the procedure for the proceedings, proof of the absence of a violation event, its insignificance and insignificance. For example, sending a message about holding a meeting not 20 days in advance, but 19 (resolution of the FAS of the Volgo-Vyatka District of 05/31/2013 in case No. A79-11124 / 2012), etc.

A joint-stock company, if there are grounds, must refer to its innocence of committing an administrative offense, as well as the fact that it has taken all reasonable and dependent measures to comply with the norms of the current legislation of the Russian Federation.

Example 1

Concluding that there was no violation of the procedure for holding the meeting in the actions of the JSC, the court proceeded from the fact that for its holding the JSC could not receive from the registrar a list of persons entitled to participate in the meeting, since the regulator issued an order to the registrar prohibiting the provision of information from the register any person, with the exception of the regulator, judicial, investigative and other government agencies.

The joint-stock company was forced to hold an annual general meeting of shareholders without a list drawn up by the registrar, since if the meeting was not held, negative consequences occurred both for the company and for its shareholders. The JSC was guided by the latest information available to it on the composition of shareholders, to whom the messages were sent.

(Resolution of the Federal Antimonopoly Service of the Moscow District dated 20.06.2014 No. F05-5991 / 2014).

As can be seen from the above example, in the presence of difficulties and obstacles in holding a meeting, the AO should in any case do everything that is possible in the current situation, and not stay idle.

If the failure to comply with the requirements for holding a meeting entailed the imposition of a fine on the JSC, the owners of the company have the right to apply to the court in its interests with a claim against the director for damages in the amount of the fine paid, if the violation was related to his illegal actions (inaction). This possibility follows from Art. 15 of the Civil Code of the Russian Federation and Art. 71 of the Law on JSC. If the director is not guilty of violating the procedure for holding a meeting of shareholders and someone from the company's employees bears responsibility for this, the owners can instruct the director to bring him to disciplinary and material liability with deprivation of bonuses in order to compensate for his property losses (Article 192, 193 and 238 of the Labor Code of the Russian Federation).

The director of the company, in the event of a claim against him for damages in the form of the amount of the administrative fine paid by the JSC, must prove the absence of his fault in the incident, as well as the absence of a direct causal relationship between his behavior and the adverse property consequences that have occurred for the company (Article 65 of the Arbitration Procedure Code of the Russian Federation ).

Example 2

The director cannot be held liable for losses in the form of a fine if it is proved that the JSC does not have funds and any other property, in the presence of which it would be possible to pay for the meeting, as well as in the case when the director was not paid a salary and he is legitimately the basis of Art. 142 of the Labor Code of the Russian Federation suspended the performance of his labor duties for the entire period until the payment of the delayed amount.

(Resolution of the Federal Antimonopoly Service of the East Siberian District of 12/15/2011 in case No. A19-5972 / 2011).

Form of the meeting

In most cases, the meeting is held in the form of joint attendance and voting on all issues on the agenda, which shareholders are notified of in advance by sending an information message indicating the date, time and place of the meeting, the agenda, as well as the procedure for reviewing the documents and information that are submitted before the meeting.

If shareholders before the date of the meeting want to familiarize themselves with the proposed materials, they have the right to do so by arriving at the address indicated in the notification received about the meeting. At the same time, in addition to a passport or other identity document, the shareholder does not need to take anything with him. It is not necessary to take an extract from the register of shareholders confirming its status, given that by the time the documents and information are presented to shareholders, the JSC will already have a list of persons entitled to participate in the meeting.

It is undesirable to insist on the mandatory submission of an extract from the register of shareholders, given the existence of a list, since it is possible that a shareholder may complain to the Financial Markets Service of the Central Bank of the Russian Federation to initiate a case under Part 2 of Art. 15.23.1 Administrative Code of the Russian Federation.

By the appointed time, the shareholders must arrive to go through the registration procedure for participation in the meeting, where the members of the counting commission appointed by the registrar of the JSC verify the identity documents of the shareholders with the data contained in the list of persons entitled to participate in the meeting. Late shareholders have the right to register until the closing of the meeting, until the voting on all agenda items has passed (clauses 4.9, 4.10 of the Regulation on additional requirements for the procedure for preparing, convening and holding a general meeting of shareholders, approved by order of the Federal Financial Markets Service of Russia dated 02.02. 2012 No. 12-6 / pz-n, hereinafter - Order No. 12-6 / pz-n).

Despite the fact that the registration procedure for shareholders for admission to participation in the meeting is conducted by the members of the counting commission of the registrar and they also fill out the registration log, it will not be superfluous to check the correctness of filling it out and counting the number of registered persons and the total volume of their votes in order to determine the quorum before the meeting starts. which for participation in the meeting must be more than half of the total number of all votes (clause 1 of article 59 of the Law on JSC).

This need is due to the fact that in practice, unfortunately, there are often cases of violation by the counting commission of the registrar of the procedure for registering shareholders for participation in a meeting and incorrect determination of the quorum, which is a significant violation and grounds for canceling decisions taken at such a meeting.

Example 3

Recognizing as invalid the decisions of the general meeting of shareholders, the court proceeded from the following. The case file contained the minutes of the counting commission on the results of voting at the meeting. According to this document by the time of the opening of the meeting, five shareholders took part in it, which amounted to 33.05% of the votes of the total number of shareholders. But from this protocol it was not clear which particular shareholder was present and gave the constituent number of votes. The register of shareholders or any other document testifying to the personal composition of shareholders who arrived to participate in the meeting was not presented in the case file. In the absence of registration data, it was impossible to draw a conclusion about the presence or absence of a quorum at the general meeting.

(Resolution of the Federal Antimonopoly Service of the Volgo-Vyatka District of 04.24.2013 in case No. A43-18485 / 2012).

Voting at the meeting takes place by filling in ballots, which are handed out to all shareholders present at the meeting with an explanation of the procedure for filling them in. The use of voting ballots is mandatory if the number of shareholders exceeds 100 people or if the meeting is held in the form of absentee voting. In the latter case, a voting ballot is sent by registered mail at least 20 days before the date of the meeting to each shareholder indicated in the list of persons entitled to participate in the meeting.

This procedure is a mandatory stage of the meeting. Otherwise, the company runs the risk of facing a lawsuit filed against it to invalidate the decision of the meeting due to the untimely provision of voting ballots.

The court is more likely to reject such a claim if it establishes that the voting of this shareholder could not affect the voting results, the violations committed are not material and the decision did not cause any losses to the shareholder in accordance with paragraph 7 of Art. 49 of the Law on Joint Stock Companies (paragraph 2, clause 24 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated November 18, 2003 No. 19 “On some issues of the application of the Federal Law“ On Joint Stock Companies ”). However, for this, these circumstances must be present in the aggregate (Definition of the RF Armed Forces dated 10.04.2015 No. 47-PEC15), so it is better not to risk it.

It should also be borne in mind that the bulletin must contain the same issues as in the notice of the meeting in the form of an agenda. Since the shareholders are invited to participate in the meeting with a specific agenda, they expect to vote on it, get acquainted with a certain set of documents for participation in the meeting. If directly at the meeting new issues appear that were not initially discussed, the shareholders have the right to demand that they be provided with additional information and documents for making an informed decision.

In accordance with paragraph 10 of Art. 49 of the JSC Law decisions of the meeting adopted on issues not included in the agenda (unless all shareholders took part in the meeting), or in violation of the competence of the meeting, in the absence of a quorum for its holding or without the majority of votes required for making a decision shareholders have no effect regardless of their appeal in court. Therefore, a decision on an issue not included in the agenda of the meeting can be adopted and upheld only on condition that the meeting has the required quorum - more than half of all outstanding shares in accordance with Art. 58 of the Law on JSC. Otherwise, such a decision is invalid (Resolution of the CA of the Moscow District of 07.04.2015 No. F05-2872 / 2015).

After the speech of the chairman of the meeting on the results of the completed financial year, the company's successes and achievements, problems and challenges, changes in the competitive environment that it faced, determining the main directions for further work, shareholders ask clarifying questions, express possible claims and thanks for the completed year. After that, they start voting on all items on the agenda.

For convenience and minimization of conflict situations during a meeting, shareholders wishing to express their complaints about the company's activities, management quality and other issues may be advised to contact them at the end of the meeting so as not to increase the duration of the meeting. This will allow not only to promptly close the meeting, but also to minimize the risk of involving other shareholders in the conflict, as well as to hide possible contradictions from the registrar who performs the functions of the counting commission at the meeting.

Despite all the obviousness that voting takes place by filling out ballots, it will not be superfluous to note that the Law on JSC does not provide for other methods of voting. In particular, you cannot vote at a general meeting by show of hands counting the total number of shares held by shareholders. In such a situation, it is impossible to determine the quorum and the number of voting shares when making decisions on agenda items (Resolution of the Federal Antimonopoly Service of the Urals District dated 05/30/2007 No. Ф09-4071 / 07-С4), which entails the invalidity of decisions taken following the meeting of shareholders.

As practice shows, many shareholders sometimes show simply miracles of ingenuity, themselves creating conflict situations on far-fetched grounds.

Example 4

The shareholder refused to participate in the meeting without the presence of the guards accompanying him. However, the court indicated that the non-admission of such persons cannot be considered a violation of the rights of a shareholder. The law on joint-stock companies provides for participation in the meetings of shareholders directly or their authorized representatives. The shareholder did not prove that he received any threats regarding participation in the meeting.

(Resolution of the Federal Antimonopoly Service of the Volgo-Vyatka District of 15.11.2010 in case No. A82-2168 / 2008).

Shareholders need to additionally explain that only one voting option should be left in the ballot, and the document itself must be signed with an indication of the date of the meeting. Otherwise, the ballot will be invalidated (Resolution of the Federal Antimonopoly Service of the Far Eastern District of April 30, 2013 No. F03-1309 / 2013), and votes on it will not be counted, unless the violations do not relate to all issues on the agenda. In such a situation, the ballot will be considered valid in terms of those issues, the voting option for which was chosen correctly, subject to the signing of the document (Article 61 of the Law on JSC).

Important!

An invalid ballot paper in whole or in part is not excluded when calculating the total number of votes to determine a quorum (clause 4.23 of Order No. 12-6 / пз-н).

When filling out the ballot, a shareholder can put his signature not only at the bottom of the document, where there is a corresponding column for it, but also under or next to each voting option for each or in relation to several questions that he has chosen. If, for example, on the issue of approving the annual report of a JSC, a shareholder voted for, deleting all other options and putting a signature under the selected option, he is not obliged to put it under the other options that he struck out, since the law does not contain such a requirement (resolution of the Federal Antimonopoly Service of the West Siberian District dated 12.07.2012 in case No. A45-16998 / 2011).

The columns “for”, “against” and “abstained” do not have to be put on the ballot paper for voting on issues related to the election of members of the board of directors of the company, since voting on it is cumulative: the total number of votes of a shareholder is multiplied by the total number of members of the board directors, and then they are distributed among them or given to one person at the discretion of the shareholder. In cumulative voting, the will of a shareholder must be expressed in the distribution of the total number of votes belonging to him among all candidates or one of them. The number of shares that voted against a candidate to the board of directors or against all candidates is not taken into account when counting votes.

In case of cumulative voting, a shareholder can put his votes next to the selected candidates, and therefore the absence of columns “for”, “against” and “abstained” in the ballot is not a violation of Art. 60 of the Law on JSC, which defines the requirements for the bulletin (Resolution of the Federal Antimonopoly Service of the North Caucasian District of February 14, 2006 No. F08-6310 / 2005). Filling out the voting ballot in a situation where the shares were alienated after drawing up a list of persons entitled to participate in the meeting is distinguished by a certain specificity. In this case, the new shareholder is not indicated on this list, he votes by proxy from the previous shareholder or asks him to vote in accordance with his instructions.

If shares are alienated to several persons at once, the former shareholder votes with certain blocks of shares in accordance with the instructions of each of them. To do this, in the voting ballot, he puts the necessary marks on each agenda item in the appropriate columns: if the instructions of the new shareholders on some issues coincide, the former shareholder chooses only one voting option, if not, chooses different options indicating the number of votes cast for such options. It is also allowed for such a case to use several ballots signed by the same person, while, as a general rule, if a shareholder fills in several ballots with different options voting, all ballots will be considered invalid (clauses 2.16, 2.19, 4.21 of order No. 12-6 / пз-н).

Those shareholders who, for some reason, could not attend the meeting in person or could not send their representatives, have the right to write a statement about this to the JSC and send the completed ballot. The fact is that on the basis of the provisions of paragraph 3 of Art. 60 of the Law on JSC, when holding a meeting, persons included in the list of persons entitled to participate in the meeting (their representatives) have the right to take part in such a meeting directly or send completed ballots to the JSC.

When determining the quorum and summing up the voting results, the votes represented by the voting ballots received by the JSC no later than two days before the date of the meeting are taken into account. Therefore, a shareholder does not have to worry about whether his votes will be taken into account when summing up the results (Resolution of the FAS of the Urals District dated July 28, 2014 No. F09-3475 / 14). It should be borne in mind that voting ballots filled in by shareholders are subject to storage until the termination of the JSC ( Information mail Federal Commission for the Securities Market of Russia dated November 28, 2000 No. IK-07/6364 "On the storage time of ballots for voting at general meetings of shareholders of joint-stock companies").

Within three working days after the meeting, the JSC is obliged to draw up minutes in two copies, which are signed by the chairman and secretary of the meeting. This protocol indicates the date, time and place of the meeting, the agenda and voting results on all issues, the main provisions of speeches, as well as other mandatory conditions that are provided for in paragraph 2 of Art. 63 of the Law on JSC and in clause 4.29 of Order No. 12-6 / pz-n.

If the minutes of the meeting does not contain information on the total number of votes held by shareholders - owners of voting shares of JSC, as well as the number of votes held by shareholders participating in the meeting, such an omission will constitute a material violation of the procedure for holding the meeting, since this does not allow to reliably establish presence or absence of a quorum for making the contested decision (resolution of the Federal Antimonopoly Service of the Central District of July 29, 2014 in case No. A14-7725 / 2013).

If some of the shareholders are not satisfied with the decisions made at the meeting, they can challenge them in court. To do this, the plaintiff must have the status of a shareholder, and not at the time when he prepares statement of claim to the court, but on the date when the decision was made, which he is going to challenge. He must also have the status of a shareholder as of the date of filing a claim with the court. Accordingly, if the plaintiff acquired the status of a shareholder after the adoption of the decision contested by him, the claim will be rejected (resolution of the Federal Antimonopoly Service of the Central District of 21.04.2011 in case No. A36-2770 / 2010). In addition, shareholders who, at the time of consideration of the dispute on appeal against the decision of the meeting, have lost this status, are not entitled to appeal against such a decision (Definition of the Supreme Arbitration Court of the Russian Federation of 22.02.2008 No. 1963/08).

This legal position is currently being uniformly applied in the practice of all arbitration courts, so the plaintiff should take it into account. It is caused by the need to exclude the possibility of filing unfounded claims by persons whose rights and legitimate interests are not violated by the contested decision. In order to ensure adequate legal protection for all participants in such a dispute, the courts refuse to consider claims to challenge the decisions of the meeting in all cases where the plaintiff has not confirmed his status as a shareholder. The filing of a claim with the court by a person who does not have the substantive right to claim is the basis for refusing to satisfy the submitted claim (Definition of the Supreme Arbitration Court of the Russian Federation of 18.04.2013 No. VAS-2416/13).

In this regard, if the decisions at the meeting are challenged by persons who have not proven their status, the JSC must refer to this, indicating that the plaintiff does not have the right to claim in the material sense. In addition, the JSC may, in its objections to the claim, indicate that the plaintiff chose an inappropriate way to protect the right, if such a procedural violation took place.

As noted in this respect in judicial practice, the choice of the method of protecting the right is carried out not arbitrarily, but taking into account the nature of the violation committed. The choice and filing of a claim without taking into account these requirements are regarded as the choice of an inappropriate way to protect the right, which is the basis for refusing the claim (definitions of the RF Constitutional Court of 04/21/2011 No. 450-O-O, of 06/18/2006 No. 367-O, resolution of the FAS Volgo -Vyatsky district from 22.01.2010 No. А43-9961 / 2009, etc.).

With regard to the situation under consideration, the appropriate way to protect the rights of a shareholder would be a requirement to invalidate the decision of the meeting, and not to declare the meeting itself illegal (resolution of the Federal Antimonopoly Service of the Moscow District of 13.05.2011 No. KG-A40 / 3751-11-1.2).

If a shareholder claims falsification of the minutes of the meeting, he must support his argument with specific documentary evidence. An expert opinion will be a proper and admissible proof of falsification of the minutes of the meeting or other documents. Therefore, in order to verify the argument about falsification, the shareholder must file a corresponding motion with the court (resolution of the Federal Antimonopoly Service of the Moscow District of 12/30/2008 No. KG-A41 / 12228-08-1.2).

The company in court in its objections to the shareholder's claim must also indicate if there are grounds that the vote of the shareholder, taking into account the number of shares he owns, could not affect the results, the quorum of the meeting was observed, the fact of voting on agenda items was confirmed by voting ballots, minutes the counting commission of the registrar, the register of shareholders and other documents of evidence (resolution of the Federal Antimonopoly Service of the West Siberian District of 09.11.2011 in case No. A03-11778 / 2010). To protect the strengthening of its position in the JSC case, it will also not be superfluous to involve its registrar in the case, who will be able to confirm the absence of violations during the meeting.

In addition, it is possible to challenge the decision of the meeting not on any formal and far-fetched grounds, but only in connection with significant violations.

Example 5

Failure to reflect in the minutes of the general meeting of information on the main provisions of speeches will not constitute a material violation. But the consideration of an issue at the meeting, which was not initially included in the agenda of the meeting, failure to notify the shareholder of the date, time and place of the meeting are significant violations, which are considered sufficient grounds for invalidating the decision of the meeting.

(Resolution of the CA of the Ural District of November 27, 2014 No. F09-6999 / 14).

When holding a meeting, a joint-stock company may also make audio or video recordings with the consent of shareholders, which will allow it to use the materials received in court as additional evidence of its compliance with the current requirements of the legislation of the Russian Federation. Can be used when holding a meeting technical means can be provided for in the company's charter or in another internal document.

Corporate conflicts and disputing the decision of the meeting

In the process of corporate governance, disagreements often arise between shareholders on certain issues. These disagreements can be caused by a variety of reasons. Some shareholders interested in the development of the company, expansion and strengthening of its business, try to accumulate all available financial resources and direct them to achieve such goals. Others, on the contrary, may not be interested at all in the activities of society as such, but only wish for the distribution of profits. In a situation where one group of shareholders insists on refraining from distributing profits, directing it to business development, and the other on how to distribute the profits, conflicts are inevitable.

Often, the majority shareholders of a company try to squeeze minority shareholders who own small stakes by adopting amendments to the charter or approving internal documents restricting their rights. Unwillingness to put up with this state of affairs makes disgruntled shareholders go to court and seek protection there.

In practice, the rights of shareholders to manage the affairs of a JSC are also often violated due to the fact that they are not properly notified of the fact of holding a corporate meeting. This violation is significant, since it deprives the shareholder of the opportunity to participate in the meeting and express his opinion on the agenda items. In most cases, such situations are subject to court permission.

To promptly receive all the necessary information about the situation around the company's activities, the shareholder should take part in all corporate meetings held, ensuring that the correspondence sent to him by mail is received. To do this, the shareholder must make sure that the contact information about him contained in the register of shareholders is up-to-date and true. From time to time (say, once every six months) it will be useful to order extracts from the register of shareholders about yourself in order to track whether his shares have been illegally written off.

Also, the shareholder should familiarize himself with the information and documents that make up the company's activities in order to be ready to immediately accept the right decision and defend their interests in court. Upon discovering the facts of violation of his rights, the shareholder must immediately take measures to protect himself, depending on the situation.

1 http://www.notariat.ru/prof/teorija-i-praktika/12548

In accordance with the requirements of the legislation, holding an annual general meeting of shareholders is a mandatory procedure, which, at first glance, is not complicated. However, it includes all sorts of formalities, the violation of which can lead to significant fines. In general, the procedure for holding an annual general meeting of shareholders can be conditionally divided into several stages.

1. Preparation for the meeting of shareholders.

A meeting of the board of directors is held on the issues of holding the annual meeting of shareholders, the agenda is determined, the shareholders are notified of the meeting, the shareholders are familiarized with the information (materials) provided in preparation for the general meeting of shareholders.

2. Holding a general meeting of shareholders.

The registration of the arrived shareholders, the issuance of ballots (if voting is in person), the procedure for voting on the agenda items, the announcement of the voting results can be carried out.

3. Registration of the results of the general meeting of shareholders.

The minutes of the counting commission on the results of voting, the report on voting, the minutes of the general meeting of shareholders are drawn up.

Preparation for the annual general meeting of shareholders

The annual meeting of shareholders must be held on time. The legislation does not define a specific date for holding the annual meeting of shareholders (it is determined by the company's charter). At the same time, the legislator limits the discretion of the company on the timing of the annual meeting. Thus, the annual meeting must be held no earlier than two months and no later than six months after the end of the financial year. The financial year corresponds to the calendar year and lasts from January 1 to December 31 (Article 12 of the Budget Code Russian Federation). This time limit also applies in a situation where it does not contain a provision on the date of the annual meeting of shareholders.

Evasion of convening a general meeting of shareholders shall entail the imposition of an administrative fine for citizens in the amount of 2,000 to 4,000 rubles, for officials - from 20,000 to 30,000 rubles or disqualification for a period of up to 1 (one) year, for legal entities - from 500,000 to 700,000 rubles. (Clause 1 of Article 15.23.1 of the Administrative Code of the Russian Federation).

In addition, violation of the established deadlines for holding the annual meeting of shareholders entails the termination of the powers of the board of directors (supervisory board) of the company, with the exception of the powers to prepare, convene and conduct the annual general meeting of shareholders (clause 1 of article 66 of Federal Law No. 208-FZ "On Joint Stock Companies").

In preparation for the annual meeting of shareholders, a meeting of the board of directors is held, at which issues related to the form of holding the general meeting of shareholders (meeting or absentee voting) are resolved; date, place, time of the general meeting of shareholders; the date of compiling the list of persons entitled to participate in the general meeting of shareholders; the agenda of the general meeting of shareholders; the procedure for informing shareholders about the holding of a general meeting of shareholders; a list of information (materials) provided to shareholders in preparation for the general meeting of shareholders, and the procedure for its provision; the form and text of the ballot paper in case of voting by ballots.

The results of the meeting of the board of directors are documented in the corresponding minutes, which discloses in detail the content and sequence of the issues discussed, the content of the decision taken on each of the issues, the results of voting on each of the issues. The minutes must indicate the date and time of the meeting of the board of directors, the composition of the board of directors, and the presence of a quorum.

The agenda of the annual general meeting of shareholders approved by the board of directors, a message on the holding of the annual general meeting of shareholders, which is sent to shareholders, voting ballots on each of the agenda items must also be formalized in separate documents.

The agenda should include the issues binding on the issues set out in clause 2 of Art. 54 and p. 11 p. 1 art. 48 of Law No. 208-FZ. In addition to mandatory questions the agenda may include additional issues, the solution of which is within the competence of the general meeting of shareholders. Additional issues are put on the agenda, both by the board of directors and shareholders. Proposals to the agenda are made by shareholders who collectively own at least 2% of the company's voting shares. Proposals for the agenda must be received by the company no later than 30 days after the end of the financial year, unless a later date is established by the charter of the company.

The notice on the holding of the annual meeting of shareholders is sent to each shareholder who has the right to participate in the meeting. The imperative terms for sending this message are established by law, and the procedure for sending it can be determined by the society independently. Thus, this message must be made no later than 20 days in advance, and the message about the holding of a general meeting of shareholders, the agenda of which contains the issue of the company's reorganization, must be made no later than 30 days before the date of its holding.

As for the procedure for sending a message, as a general rule, a notice of a meeting is sent to a shareholder by registered mail. However, the charter of the company may provide for other requirements for the direction of the message. For example, the charter can stipulate that the message is sent by registered mail with notification or a valuable letter with a list of attachments, or delivered in person against signature. The charter may also provide for the need to publish a message about the holding of a meeting in accessible media, in print media. In any case, the company has the right to additionally inform shareholders about the holding of a general meeting of shareholders through other mass media (television, radio).

Violation of the procedure or deadline for sending (handing in, publishing) a notice of a general meeting of shareholders shall entail the imposition of an administrative fine. A fine is imposed on citizens in the amount of 2,000 to 4,000 rubles, on officials - from 20,000 to 30,000 rubles or disqualification for up to one year, on legal entities - from 500,000 to 700,000 rubles. (Article 15.23.1 of the Code of Administrative Offenses of the Russian Federation).

The notice of the general meeting of shareholders shall indicate the full corporate name of the company and its location; the form of the general meeting of shareholders (meeting or absentee voting); date, place, time of the general meeting of shareholders; the date of compiling the list of persons entitled to participate in the general meeting of shareholders; agenda of the general meeting of shareholders; the procedure for familiarization with the information (materials) to be provided in preparation for the general meeting of shareholders, and the address (addresses) at which it can be viewed. The message must be drawn up taking into account the additional requirements established by the decree of the Federal Commission for the Securities Market of the Russian Federation dated May 31, 2002 No. 17 / ps (as amended on February 7, 2003).

Violation of the requirements of federal laws and other regulatory legal acts adopted in accordance with them to the form, date or place of the general meeting of shareholders, as well as holding a general meeting of shareholders in violation of the form, date, time or place of its holding, determined by the body of the joint-stock company or by persons, convening a general meeting of shareholders shall entail the imposition of an administrative fine on citizens in the amount of 2,000 to 4,000 rubles, on officials - from 20,000 to 30,000 rubles or disqualification for a period of up to one year, on legal entities - from 500,000 to 700,000 rubles. (Clause 5, Article 15.23.1 of the Administrative Code of the Russian Federation).

It is important to take into account that shareholders included in the list of persons entitled to participate in the general meeting are entitled to participate in the general meeting of shareholders. The list of persons entitled to participate in the general meeting of shareholders is drawn up on the basis of data from the register of shareholders of the company, either by a joint-stock company or by a person entrusted with maintaining the register. The date for compiling the list of persons entitled to participate in the general meeting of shareholders cannot be set earlier than the date of the decision to hold the general meeting of shareholders. The list is valid for 50 days, and in some cases - for 85 days before the date of the general meeting of shareholders.

Violation of the requirements of federal laws and other regulatory legal acts adopted in accordance with them regarding the compilation of lists of persons entitled to participate in the general meeting of shareholders shall entail the imposition of an administrative fine on citizens in the amount of 2,000 to 4,000 rubles, on officials - from 20,000 to 30,000 rubles or disqualification for a period of up to one year, on legal entities - from 500,000 to 700,000 rubles. (Article 15.23.1 of the Administrative Code of the Russian Federation).

In the period from the date of sending the notice of the annual general meeting to the date of the meeting, the shareholders are familiarized with the information (materials) provided in preparation for the general meeting of shareholders. At the request of the person entitled to participate in the general meeting of shareholders, the company is obliged to provide him with copies of documents. The fee charged by the community for the provision of these copies may not exceed the cost of their production.

Failure to provide or violation of the deadline for the provision of information (materials) subject to (subject) provision in accordance with federal laws and other regulations adopted in accordance with them legal acts, in preparation for the general meeting of shareholders shall entail the imposition of an administrative fine on citizens in the amount of 2,000 to 4,000 rubles, on officials - from 20,000 to 30,000 rubles or disqualification for a period of up to one year, on legal entities - from 500,000 to 700,000 rubles. (Clause 2, Article 15.23.1 of the Administrative Code of the Russian Federation).

All the above violations related to the compilation of the list of persons entitled to participate in the general meeting of shareholders, notification of the meeting, provision of relevant information (documents) to shareholders may also entail invalidation of the decision of the annual general meeting of shareholders of the company (resolution of the Federal Antimonopoly Service of the West Siberian District of 19.02 .2008 No. F04-424 / 2008 1017-A27-16, FAS of the Moscow District dated February 14, 2008 No. KG-A41 / 14154-07, definition of the Supreme Arbitration Court of the Russian Federation dated February 13, 2009 No. 862/09)

General meeting of shareholders

The shareholders who arrived at the meeting must be registered in the corresponding register of the meeting participants and accounting for the ballots issued during the meeting. The right to participate in the general meeting of shareholders is exercised by a shareholder both personally and through his representative. The shareholder's representative acts on the basis of a notarized power of attorney, a copy of which must be attached to the register of meeting participants and accounting for ballots issued during the meeting.

The general meeting is competent only if there is a quorum. As a general rule, the general meeting of shareholders has a quorum if it is attended by shareholders holding in aggregate more than half of the votes of the outstanding voting shares of the company (50% of shares + 1 share). When determining the quorum, the provisions of clause 6 of Art. 32.1, clause 6 of Art. 84.2 of Law No. 208-FZ.

Holding a general meeting of shareholders in the absence of a quorum required for its holding, or consideration of certain issues on the agenda in the absence of the required quorum, shall entail the imposition of an administrative fine on citizens in the amount of 2,000 to 4,000 rubles, on officials - from 20,000 to 30,000 rubles or disqualification for up to one year, on legal entities - from 500,000 to 700,000 rubles. (Clause 6 of Article 15.23.1 of the Administrative Code of the Russian Federation).

Voting on the agenda items shall be carried out by a voting ballot. In the practice of holding meetings of shareholders, the ballot is used even when the law allows voting by show of hands (clause 1 of article 60 of Law No. 208-FZ), since the presence of a completed ballot complicates the procedure for challenging the voting results. A ballot paper is issued to each participant who arrives or his representative against signature. Ballots, as already indicated, are drawn up separately for each issue of voting, although the law does not contain an explicit prohibition on the inclusion of several issues put to the vote in the ballot. The form of the bulletin must strictly comply with the requirements of the legislation (clause 4 of article 60 of Law No. 208-FZ, resolution of the Federal Commission for the Securities Market of Russia No. 17 / ps). Voting at the general meeting of shareholders is carried out according to the principle "one voting share of the company - one vote", with the exception of cumulative voting.

Registration of the results of the annual general meeting of shareholders

The counting of votes is carried out by the counting commission or by a person replacing it. (the counting commission is created in a company with more than one hundred voting shareholders). Based on the results of voting, the counting commission or the person who performs its functions draws up a protocol on the voting results, which is signed by the members of the counting commission or the person performing its functions. The minutes of voting results shall be drawn up no later than 15 days after the close of the general meeting of shareholders.

If the results of voting on each of the agenda items were not announced to shareholders after the completion of the voting procedure, it is necessary to draw up a report on the results of voting. This report must be sent to each person included in the list of persons entitled to participate in the general meeting of shareholders within ten days after drawing up the minutes of voting results in the manner prescribed for the notification of the general meeting of shareholders.

Violation of the requirements of federal laws and other regulatory legal acts adopted in accordance with them on the announcement or notification of shareholders of decisions adopted by the general meeting, or the results of voting shall entail the imposition of an administrative fine on officials in the amount of 20,000 to 30,000 rubles or disqualification for a period of up to one year, on legal entities - from 500,000 to 700,000 rubles. (Clause 10 of Article 15.23.1 of the Administrative Code).

The minutes of the general meeting of shareholders shall be drawn up no later than 15 days after the close of the general meeting of shareholders in two copies. Both copies are signed by the person presiding at the general meeting of shareholders and the secretary of the general meeting of shareholders. The minutes of the general meeting of shareholders must contain information on the place and time of the general meeting of shareholders; the total number of votes held by shareholders who own the voting shares of the company; the number of votes held by the shareholders participating in the meeting; the chairman (presidium) and secretary of the meeting, the agenda of the meeting. The minutes of the general meeting of shareholders of the company must contain the main provisions of speeches, issues put to the vote, and the results of voting on them, decisions adopted by the meeting (clause 2 of article 63 of Law No. 208-FZ). The minutes of the general meeting must also contain the information specified in clauses 5.1, 5.7 and 5.8 of the resolution of the Federal Commission for the Securities Market of Russia No. 17 / ps.

Violation by the chairman or secretary of the general meeting of shareholders of the requirements for the content, form or timing of drawing up the minutes of the general meeting of shareholders, as well as evasion of the specified persons from signing the specified minutes shall entail the imposition of an administrative fine on citizens in the amount of 1,000 to 2,000 rubles, on officials - from 10,000 to 20,000 rubles. or disqualification for up to six months.

Photo by Evgeny Smirnov, IA "Clerk.Ru"

If the company is registered as a limited liability company (LLC), then at least once a year within the time frame established by the charter, and not earlier than February 1 and not later than April 30, it is necessary to hold an annual meeting to approve the annual financial statements and consider other issues included on the agenda.

If the company is a joint stock company (JSC), then no earlier than February 1 and no later than 6 months after the end of the reporting year, an annual meeting should be held and the annual financial statements should be approved.

Leaders of many organizations are under the misconception that holding an annual meeting is their right and not their obligation. This is especially true for LLCs and JSCs with a single or small number of shareholders. There is an opinion that "young" or companies that have not achieved high financial results can also "get around" this rule, since they were created recently, there is no need to distribute profits, and, accordingly, there is no need to hold an annual meeting. This position is a delusion that can lead to negative consequences, and some of them can be fatal for the company.

According to the norms of the current legislation, the following documents and issues must be approved at the annual meeting (see table).

Documents and issues to be approved at the annual meeting
Joint Stock Company (JSC)	Limited Liability Company (LLC)
Auditor (since 2014, an audit is mandatory for a JSC) Other issues in accordance with the charter (distribution of profits, composition of the board of directors, executive body, audit commission, etc.)	Financial statements for the year Executive body annual report Other issues in accordance with the charter (distribution of profits, executive body, audit commission, auditor, etc.)

Decisions made at the annual meeting are formalized in the minutes (decisions) of the general meeting of shareholders or participants. It is this document that is proof that the shareholders (founders) approved the annual financial statements and were aware of its content.

Often, the CEO of a company makes management decisions at his own discretion, not considering it necessary to inquire about the opinions of the founders, and when asked to substantiate his decisions, he can acquire the status of an unscrupulous manager. In order to avoid negative consequences, the society must systematize its work, for which, first of all, it is necessary to develop, according to its constituent documents, an individual corporate calendar, without resorting to excuses "this is not necessary", "it is too early for our company", etc. The activities of a company in a competent legal field should begin from the moment a decision is made to establish it, which will have a positive effect on the work of the company for the following main reasons:

• When creating a company, the founders initially imply its development by using various resources, attracting both their own and borrowed funds, as well as investors' funds. The investor's understanding that the company applies a systematic approach to documents and corporate procedures (and this indicates a competent vision of the business), as well as the transparency of the company's activities for owners or third parties can be decisive factors for investing in this organization;
• the above corporate procedures are based on the provisions of the current legislation for JSCs and LLCs, and non-compliance with the relevant requirements is a direct violation of them (it is also worth remembering that the company and its officials may be fined for violating the requirements of the legislation for the preparation and holding of the annual meeting);
• when conducting an audit of a company or Due Diligence (from the English "due diligence", that is, the procedure for drawing up an objective view of the investment object) all the documents necessary for the preparation and conduct of the annual meeting, as well as documents that reflect the decision-making on this meeting are subject to mandatory presentation. The absence of these documents indicates that the established procedures were not carried out, and this is a violation of the order of the company and the law. It should be noted that the restoration of documents with current dates (or registration "retroactively") is impossible, since the mandatory procedures for preparing and holding the annual meeting will not be followed (mandatory advance notice of convocation, registration of results and disclosure of this information, if the company has such duty). All documents and decisions executed In a similar way will be illegitimate.

In addition, one should not forget that, according to the norms of the Civil Code of the Russian Federation, the general director is obliged to compensate, at the request of the company, its founders (participants), acting for the interests of the company, for losses caused through his fault.

For your information! The violation of the right to drive is expressed in the very fact of not holding an annual meeting. According to Art. 15.23.1 of the Code of Administrative Offenses of the Russian Federation illegal refusal to convene or evading the convocation of a general meeting of shareholders, as well as illegal refusal or evasion of inclusion in the agenda of the general meeting of shareholders of issues and (or) proposals on nominating candidates to the board of directors (supervisory board), collegial executive the body, the audit commission (auditors) and the counting commission of a joint-stock company or a candidate for the position of the sole executive body of a joint-stock company shall entail the imposition of an administrative fine on citizens in the amount of 2 thousand to 4 thousand rubles, on officials - from 20 thousand to 30 thousand roubles. or disqualification for up to one year, for legal entities - from 500 thousand to 700 thousand rubles.

Thus, when answering the question whether it is necessary to hold an annual meeting, there is only one correct answer, since all the procedures associated with its preparation and holding cannot be commensurate with the negative consequences that are possible if it is not held.

Changes in the procedure for holding the annual meeting of JSC

Since 2016, the procedure for holding the annual meeting of shareholders has undergone some changes, mainly this directly affected the procedure for holding the meeting. The following has changed:

• for holding a meeting of shareholders (extraordinary) on the issue of electing members of the board of directors on the initiative of the board itself, the meeting time is reduced by 20 days and is 70 days from the date of the decision to convene such a meeting, however, the charter may provide for more short term to hold such a meeting (if the charter has not been brought into line with the current provisions of the law, and the charter sets a period exceeding 70 days, then the provisions of the charter should be applied);
• the list of information to be determined by the board of directors in preparation for the meeting is supplemented with the following: if there is an issue on the agenda of the election of members of the board of directors, exact date closing the admission of candidates nominated to the board of directors; wording of decisions on all agenda items sent by shareholders to the AO in case of voting by ballots.

According to the amendments made to the law, the deadlines provided for the establishment of shareholders entitled to participate in the meeting on certain issues (on the formation of the board of directors, reorganization of JSCs) have been reduced.

At the same time, the joint-stock company is exempted from the obligation to provide all interested parties with extracts from the compiled list of potential shareholders - meeting participants and certificates of shareholders absent from this list. This obligation under the securities market law belongs exclusively to the registrar.

We remind you! On the basis of Federal Law No. 142-FZ dated 2.07.13, all joint-stock companies that independently maintain the register of shareholders are obliged to transfer the maintenance of the register to a person who has a license provided for by law, i.e., a professional participant in the securities market that carries out activities in keeping the register (registrar). The deadline for the fulfillment of this requirement expired on October 1, 2014.

With regard to some issues on the agenda of the general meeting (re-election of members of the board of directors, appointment / dismissal of the executive body of a JSC), the period provided for notifying shareholders of the meeting has been reduced to 50 calendar days.

One of the positive results of the adopted amendments is the approval of legal norms that significantly increase the information content of the message about holding meetings. Added information about categories (types) of shares, whose owners will be able to vote on all agenda items or part of them. In addition, in the cases specified in the charter, the message must indicate the address of the JSC's official website, where a shareholder can “leave” his vote on agenda items, including an e-mail address for the purpose of sending voting ballots by voting shareholders.

Now all joint-stock companies can provide in the charter two possible ways of notifying shareholders about the holding of a general meeting:

• the company may send a message about the meeting to the personal email address of the shareholders;
• to the personal email address or personal phone number of shareholders, the company may send a short text message with indication of information about where the shareholder can get acquainted with the full content of the message on the holding of the meeting.

However, one should not forget that other possible methods of notification are not canceled by law, for example, through print media or the official website of the joint-stock company.

After the amendments have been made to the law, joint stock companies are obliged to keep information on the method of notifying shareholders of the meeting held within 5 years from the date of the general meeting. In other words, the CEO must ensure that the notices sent to shareholders are kept.

In accordance with one of the amendments, joint stock companies are allowed to hold an in-person meeting, which implies the joint presence of shareholders, remotely using information and telecommunication technologies. For example, such a tool can be a video call, the use of which will enable a shareholder to be present at a meeting without being physically present at it and to vote on agenda items.

At the same time, as a result of amendments to the law, the obligation was established to vote at a meeting in presentia using ballots in all public and non-public JSCs with more than 50 shareholders holding voting shares.

It is important that the legislative concretization of the designation of the presence of a shareholder at a meeting in presentia has taken place. So, a shareholder is considered to be present at the meeting if:

• if a shareholder has registered (in person or on a website on the Internet) to participate in the meeting;
• if two days before the meeting, a shareholder handed over the completed voting ballot to the company or filled out an electronic ballot form on the website indicated by the company for voting.

For your information! Companies should take the following actions in anticipation of the annual shareholders' meeting period for the year.

First, to bring the charter and name of the company in line with the Civil Code of the Russian Federation.

Despite the fact that the amendments made to the Civil Code of the Russian Federation, according to which joint-stock companies were divided into public and non-public ones, entered into force in 2014, not all JSCs brought their names and the content of their charters in line with the new rules. However, it is necessary to make a reservation that the timeframes for such actions are not specified in the legislation (clause 7 of article 3 of the Federal Law of 05.05.14, No. 99-FZ), and the need for their implementation is dictated, rather, by the expediency or individual needs of society on changing the charter, which in this case must be accompanied by a complete alignment of the charter with the Civil Code of the Russian Federation. Those companies that plan to include in the agenda of the general meeting of shareholders the issue of approving a new version of the charter (or amendments to it), it is necessary to take into account the specifics of voting on this issue and the form of JSC.

Second, the agenda for the AGM should include the issue of auditor approval. This need is dictated by the requirements of Art. 67.1 of the Civil Code of the Russian Federation, according to which the financial statements of any joint-stock company, regardless of its status, must be confirmed by an auditor. At the same time, it is appropriate to pay attention to the issue of the timing of the preparation of the auditor's report. General rules on the timing of the annual audit are contained in the specified Art. 67.1 of the Civil Code of the Russian Federation, Art. 5 of the Federal Law of 30.12.08, No. 307-FZ "On Auditing" and in Art. 18 of the Federal Law of 6.12.11, No. 402-FZ "On Accounting", the first of which obliges any JSC to conduct a statutory audit annually, and the second - to submit a copy of the audit report to the statistical authorities to those specified in this rule deadlines, but not later than December 31 of the next financial year following the reporting year. However, for JSCs, which are subject to the obligation to disclose information, including the disclosure of annual financial statements (the proposal is not completed by the author).

Thirdly, it is necessary to make a decision to increase the authorized capital. In accordance with the provisions of Art. 26 of the Federal Law of 26.12.95, No. 208-FZ "On Joint Stock Companies" (hereinafter - Law No. 208-FZ) regarding the size of the authorized capital of a joint stock company (effective from 1 July 2015), the authorized capital of a public JSC must be at least 100,000 rubles, non-public joint-stock company - at least 10,000 rubles.

Now about what is also advisable to do in preparation for the annual meetings of shareholders at the end of the year:

1. amend the company's charter with respect to the method of notifying shareholders of the upcoming meeting - the method used must be specified in the charter. We would also like to draw your attention to the fact that the current provisions of the law allow the company to use the sending of a paper message by mail other than registered mail as a method of notification of a meeting. The provisions of the charter of companies providing for just such a method of notification of a meeting will become null and void, and such companies will have to be guided by the general rules of notification (registered letter or delivery against signature);
2. amend the company's charter on the method of sending voting ballots to shareholders. In the current version of the law to the earlier established ways the way of sending the bulletin has also been added to the method of sending it in the form of an electronic message to the e-mail address of the corresponding person indicated in the register of shareholders of the company. However, the use of this method is possible only after making the appropriate changes to the company's charter;
3. it is possible to amend the charter of the company, allowing the use of remote methods of participation in the meeting. The following are named as such in the law: registration of a shareholder for participation in a meeting on the Internet site; sending the completed voting ballot to the public by e-mail or filling out a ballot form on the Internet site.

Dividend FAQ *

Dividends are the company's net profit received as a result of its activities, the right to receive which is available only to shareholders and members of the company. In practice, there are many disputes related to the procedure for making a decision on the payment of dividends and their receipt, from the content of which it is possible to draw the following main conclusions:

1. making a decision on the payment of dividends is a right, not an obligation of the company;
2. the shareholder's right to demand the payment of dividends arises only if the general meeting of shareholders adopts a decision on their payment;
3. the general meeting of shareholders is not entitled to take a decision to cancel an earlier decision on the payment of dividends;
4. the decision of the general meeting that does not contain a direct indication of the payment of dividends, their amount, the term and procedure for payment, does not serve as a basis for shareholders or participants to have the right to demand payment of dividends;
5. the company's lack of net profit, as well as the approved annual report and annual financial statements, which reflect the company's losses, is not a reason for non-payment of the declared dividends;
6. heavy financial position the company is not a ground for non-payment of previously announced dividends;
7. the right of shareholders to demand payment of dividends to them after improvement financial condition a company arises in cases where dividends have been declared in accordance with the requirements of the law;
8. a shareholder is not entitled to demand that the issue of the amount of dividends paid be included in the agenda of the general meeting of shareholders;
9. violation of the deadline for the payment of the declared dividends and (or) their payment not in full are the basis for collecting interest from the company for the use of other people's funds for the period of delay;
10. non-payment of the declared dividends and (or) their payment not in full within a reasonable time after the elimination of the circumstances preventing such payment, serve as the basis for collecting interest from the company for the use of other people's funds;
11. the company is released from liability for late payment of declared dividends if the shareholder has not updated his data in the register of shareholders;
12. the company is released from liability for late payment of declared dividends if it did not have information about the bank details of the shareholder;
13. a joint-stock company has the right to decide on non-payment of dividends even if there is a net profit;
14. if the board of directors (supervisory board) of the company did not recommend paying dividends, the general meeting of shareholders is not entitled to make a decision on their payment;
15. the sale by a shareholder of his shares after the company has made a decision to pay dividends does not release the company from the obligation to pay them to such a shareholder.

The law defines the mandatory requirements for the payment of dividends in LLCs, which are based on the restrictions contained in the law, providing:

• full payment of the authorized capital;
• full payment to the outgoing participant of his share;
• excess of the amount of net assets over the amount of the authorized capital and reserve fund, including after the payment of dividends;
• no signs of bankruptcy, including after dividend payments.

Compliance with these restrictions must take place both at the date of the decision to issue and at the time of payment of income. If the decision has already been made, and by the time of issue the conditions are such that they do not allow the payment to be made, then it will be made after the disappearance of these conditions.

Each shareholder has the right to receive dividends from the net profit of the organization. It occurs when all of the following conditions are met:

• at the end of the reporting period, the company received a net profit;
• the board of directors or supervisory board of the company made a decision containing recommendations on the amount of dividends;
• a general meeting of shareholders was held with total number voting shares - more than half;
• the agenda of the general meeting of shareholders included the issue of payment of dividends;
• earlier there was an announcement of the payment of dividends;
• the quorum of the general meeting of shareholders voted for the payment of dividends;
• compliance with the condition that the amount of dividends will not exceed that recommended by the board of directors or the supervisory board of the company;
• the decisions adopted by the general meeting of shareholders were announced;
• the due date for the payment of dividends has come;
• the shareholder is in the register of persons entitled to receive dividends.

If at least one of the conditions is not met, dividends are not paid.

For your information! Personal income tax:

With individuals- citizens of the Russian Federation is 13% (clause 1 of article 224 of the Tax Code of the Russian Federation), for foreign citizens- 15% (clause 3 of article 224 of the Tax Code of the Russian Federation); income tax for legal entities of the Russian Federation - 13% (clauses 2, clause 3, article 284 of the Tax Code of the Russian Federation), for foreign legal entities - 15% (clauses 3, clause 3, article 284 of the Tax Code of the Russian Federation).

If dividends are issued to a legal entity that owns more than 50% of the authorized capital for at least a year, then in such cases the 0% rate can be applied (clause 1, clause 3 of Article 284 of the Tax Code of the Russian Federation).

From practice ...

Is it possible for tax purposes to consider payments to participants from the profit of an LLC as dividends?

Yes, you can. According to paragraph 1 of Art. 43 of the Tax Code of the Russian Federation for tax purposes, dividends are any income received from an organization in the distribution of its net profit, on shares or contributions of participants in proportion to their shares. This rule is true for organizations of any form, although formally in civil law the term “dividend” is used only in relation to payments to shareholders. Limited liability companies distribute the net profit among their members. The foregoing follows from clause 2 of Art. 42 of Law No. 208-FZ, paragraph 1 of Art. 28 of the Federal Law of 8.02.98, No. 14-FZ (hereinafter referred to as the Law No. 14-FZ), but for the purposes of tax accounting, such a discrepancy in terms does not matter.

Is it possible to pay dividends with property?

Yes, you can. Civil law allows dividends to be paid in kind, that is, not only in money, but also in other property. For JSCs, this is provided for in paragraph 2 of clause 1 of Art. 42 of Law No. 208-FZ. In relation to LLC, there is no such norm in the legislation, but there is also no prohibition on the distribution of net profit in non-cash form. In Art. 28 of Law No. 14-FZ, the method of payment is not specified, therefore it is understood that the participants of the LLC can receive not only money, but also other property.

Consequently, dividends can be paid out by fixed assets, materials, and goods. The main condition is that this procedure is provided for by the charter of the organization.

Only payment from retained earnings remaining after taxation can be recognized as dividends. Refunds of a participant's or shareholder's contribution to the authorized (pooled) capital, as well as the distribution of other property, are not considered dividends. However, in this case, it is necessary to pay corporate income tax.

Is it possible to pay dividends from the profits of previous years?

Yes, you can. In both civil and tax legislation, it is only established that the source of payment of dividends is the organization's net profit. There are no indications of the exact period in which such profit should be generated (Article 43 of the Tax Code of the Russian Federation, paragraph 2 of Article 42 of Law No. 208-FZ, paragraph 1 of Article 28 of Law No. 14-FZ).

Consequently, if according to the results of previous years the profit has not been distributed, then it is possible to pay dividends in the current year at its expense. This can happen, for example, if the net profit was not used for the payment of dividends or the formation of special funds.

The legality of such a conclusion was confirmed in, dated 6.04.10, No. 03-03-06 / 1/235. Similar conclusions are contained in the resolutions of the FAS of the North Caucasus District of 23.01.07, No. F08-7128 / 2006, of 22.03.06, No. F08-1043 / 2006-457A, FAS of the East Siberian District of 11.08.05. No. А33-26614 / 04-С3-Ф02-3800 / 05-С1, FAS of the Volga District of 10.05.05, No. А55-9560 / 2004-43.

In addition, dividends can be paid out of the profit of previous years, if in the reporting year the organization had no net profit (letter of the Federal Tax Service of Russia No. ED-4-3 / 16389 dated 5.10.11).

By delaying the issuance of dividends, the organization thereby commits administrative offense, for which JSCs can be fined in the amount of 500 thousand to 700 thousand rubles.

A fine is also provided for officials of a joint-stock company who are overdue in payment - from 20 thousand to 30 thousand rubles.

If the payment is overdue due to errors specific people, they can also be punished, and for them the amount of the fine will be from 2,000 to 3,000 rubles.

The above norms are provided for by Art. 15.20 of the Administrative Code of the Russian Federation.

If, within the specified period, the participant, the shareholder has not demanded to pay him dividends, then he loses the right to receive them completely. An exception is a situation when a shareholder or participant did not claim their rights under the influence of violence or threat. If this was the case, and he was able to confirm this, then the period of reclamation can be restored, that is, it can be extended for another three years.

Dividends declared (distributed), but not claimed by shareholders, participants, are again included in the retained earnings of the company (clause 9 of article 42 of Law No. 208-FZ, paragraph 4 of article 28 of Law No. 14-FZ). The distribution of such dividends is possible in a difficult financial period.

Changes and features of reporting on wages in 2019. New in the calculation and taxation of wages and benefits.

Starting from March, the period for holding annual general meetings of participants and shareholders of the companies will open. Recall that limited liability companies, as well as joint stock companies, must annually approve at such a general meeting an annual report and an annual balance sheet. This norm for each of the mentioned societies is enshrined in federal laws:
dated 08.02.98 No. 14-FZ "On Limited Liability Companies" (subparagraph 6, clause 2, article 33, article 34) and
dated 26.12.95 No. 208-FZ "On Joint Stock Companies" (Art. 47, Subclause 11, Clause 1, Art. 48).

Meeting preparation
- limited liability companies

The next general meeting of participants of a limited liability company, at which the annual results of its activities are approved, is held within the timeframe determined by the charter of the company. At the same time, this period should not go beyond the period from March 1 to April 30 (Art. 34 of Law No. 14-FZ).

The considered meeting of the company's participants is convened by the executive body of the company, which is obliged to notify each participant of the company no later than 30 days before the holding of such a meeting (Article 36 of Law No. 14-ФЗ). This is done by registered mail to the address indicated in the list of participants in the company, unless another method of communication is provided for by the charter of the company. The notice must indicate the time and place of the meeting, as well as the proposed agenda.

At the stage of preparing the general meeting, information and materials are formed for the members of the company. The package of documents provided includes:
the annual report of the company;
the conclusion of the auditing commission (auditor) of the company;
the auditor's conclusion based on the results of the audit of the annual financial (accounting) statements, if the organization is subject to mandatory audit in accordance with federal laws or the founders decided to conduct an audit;
information about the candidate (candidates) to the executive bodies of the company, the board of directors (supervisory board) of the company and the audit commission (auditors) of the company;
draft internal documents of the company, as well as other information (materials) provided for by the charter of the company.

If the issue of changing the constituent documents is included in the proposed agenda of the general meeting, then the draft of amendments and additions to these documents, or the draft of the constituent documents of the company in a new edition, shall be included in the mentioned materials.

The specified information and materials within 30 days prior to the general meeting of the company's members must be provided to all members of the company for familiarization in the premises of the executive body of the company.

In addition, the executive body is obliged to send information and materials to the participants together with a notification of the holding of a general meeting of the company's participants, unless a different procedure for familiarizing the company's participants with the said information and materials is provided for by the charter of the company. In the event of a change in the agenda, the relevant information and materials are sent together with a notification of such a change.

At the request of the participant, the company is obliged to provide him with copies of these documents. In this case, the organization has the right to charge a fee for the provision of these copies. At the same time, the fee cannot exceed the cost of their manufacture (Art. 36 of Law No. 14-FZ).

This information is presented in the table in Section 3 "Net Assets" of the statement of changes in equity, which shows the values ​​of net assets as of three reporting dates: December 31, 2012, December 31, 2011 and December 31, 2010.

The procedure for assessing the net assets of joint-stock companies was approved by the joint order of the Ministry of Finance of Russia and the Federal Commission for the Securities Market of January 29, 2003 No. 10n / 03-6 / pz. It is also used in the calculation and by limited liability companies (letter of the Ministry of Finance of Russia dated 07.12.09 No. 03-03-06 / 1/791). In calculating the value of net assets, asset indicators are involved (the cost of non-current and current assets) and the liabilities of the balance sheet (long-term liabilities - loans, credits, etc., short-term liabilities on loans and credits - accounts payable, arrears to participants in the payment of income, reserves for future expenses, other short-term liabilities).

If the value of net assets turned out to be lower than the size of the authorized capital, then in the explanations to the report it is necessary to reflect:
the results of the analysis of the reasons and factors that led to this (in the opinion of the director and the board of directors);
a list of measures to bring the value of the company's net assets in line with the size of its authorized capital.

If the value of the company's net assets remains less than its authorized 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 is less than its authorized capital, the company no later than six months after the end of the corresponding financial year is obliged to take one of the following decisions (clause 4 of article 30 of Law No. 14-FZ):
on reducing the authorized capital of the company to an amount not exceeding the value of its net assets;
on the liquidation of society.

The decision to liquidate will have to those limited liability companies whose net assets turned out to be less than the authorized capital equal to the minimum authorized capital (10,000 rubles), and which will not be able to raise their value to the specified value until June 30, 2013.

- joint stock company
The annual general meeting of the joint-stock company must be held in person (clause 2, article 50 of Law No. 208-FZ). However, companies with a large number of shareholders often use a mixed form of holding a meeting, the so-called face-to-face meeting. It "follows" from the opportunity provided by the law for shareholders included in the list of persons who have the right to participate in the general meeting to directly participate in the meeting or to send completed ballots to the company (clause 3 of article 60 of Law No. 208-FZ).

The convocation of the annual meeting of shareholders is referred to the issues falling within the competence of the board of directors (supervisory board) of the company (subparagraph 2 of paragraph 1 of article 65 of Law No. 208-FZ). When preparing the annual meeting, the Board of Directors determines:
agenda;

The date of the meeting is set on the basis of the existing limitation from March 1 to June 30, specified in paragraph 1 of Article 47 by Law No. 208-FZ.

The meeting must be held at the location of the company, unless another place of its holding is established by the charter of the company or by an internal document of the company regulating the procedure for the general meeting (clause 2.9 of the Regulation on additional requirements for the procedure for preparing, convening and holding a general meeting of shareholders, approved by the resolution of the FCSM from 31.05.02 No. 17 / ps).

Some of the issues that must be included in the agenda of the annual meeting are determined by law No. 208-FZ. These include (clause 2 of Art. 54 of Law No. 208-FZ):
election of the board of directors (supervisory board) of the company;
election of the auditing commission (auditor) of the company;
approval of the auditor of the company;
approval of annual reports, annual accounting statements, including the profit and loss statement of the company;
distribution of profits (including payment (declaration) of dividends) based on the results of the financial year.

The date of compiling the list of persons entitled to participate in the annual meeting of shareholders is selected from the time interval determined by the date of the decision on its holding and 50 days before the date of the meeting (clause 1 of article 51 of Law No. 208-FZ).

Failure to properly define this date is an administrative offense. Violation of the requirements of federal laws and other regulatory legal acts adopted in accordance with them to the compilation of lists of persons entitled to participate in the general meeting of shareholders in accordance with paragraph 3 of Article 15.23.1 of the Administrative Code of the Russian Federation, entails the imposition of an administrative fine on legal entities from 500,000 to 700,000 rub. Regional branches of the Federal Financial Markets Service, when finding one, resort to penalties, and arbitration courts such actions are considered lawful (resolution of the Federal Antimonopoly Service of the North Caucasian District of 22.02.11 No. A32-17121 / 2010).

The list of shareholders entitled to participate in the annual meeting is drawn up on the basis of data from the register of shareholders of the company as of the date set by the board of directors of the company. In this case, the list of persons includes shareholders - owners of ordinary shares of the company (clause 2 of article 31 of Law No. 208-FZ), as well as shareholders - owners of preferred shares of a company of a certain type, depending on the issues included in the agenda and certain circumstances (art. 32 of Law No. 208-FZ). Shareholders included in the list - holders of preferred shares are specified in clause 2.11 of the said provision on additional requirements.

If in relation to a company a special right is used for the participation of the Russian Federation, a constituent entity of the Russian Federation or a municipality in the management of the said company ("golden share"), then the list of shareholders entitled to participate in the annual meeting includes representatives of the Russian Federation, a constituent entity of the Russian Federation or a municipal education.

This list also includes:
management companies of mutual investment funds, if the shares of the company constitute the property of mutual investment funds, and
trustees - when transferring the company's shares to trust.

The announcement of the holding of the annual meeting of shareholders must be made no later than 20 days before the date of its holding. Within this period, it must be sent to each person indicated in the list of shareholders by registered mail, unless the charter of the company provides for another way of sending this message in writing. The notice, if provided for by the charter of the company, may be delivered to each of the indicated persons against signature. It is quite possible to publish it in a print publication accessible to all shareholders of the company, as defined by the charter of the company, as well as additional placement of information about the holding of a meeting of shareholders in other media: on television, on radio (clause 1 of article 52 of Law No. 208-FZ) ... The notice of the meeting must indicate:
date, place, time of the general meeting of shareholders. In the case when the completed ballots can be sent to the society, the message contains the postal address to which they are sent;
the date of compiling the list of persons entitled to participate in the meeting;
meeting agenda;
the procedure for familiarization with the information (materials) to be provided in preparation for the meeting of shareholders, and the address (addresses) at which it can be viewed.

Information (materials) to be provided to persons entitled to participate in the meeting in preparation for its holding include:
annual accounting statements, including the auditor's report;
the conclusion of the audit commission (auditor) of the company based on the results of the audit of the annual financial statements;
recommendations of the board of directors (supervisory board) of the company on the distribution of profits based on the results of the financial year, including on the amount of dividend on the company's shares and the procedure for its payment;
information about the candidate (candidates) to the executive bodies of the company, the board of directors (supervisory board) of the company, the audit commission (auditors) of the company, the counting commission of the company;
draft internal documents of the company, draft decisions of the general meeting of shareholders, as well as information (materials) provided for by the charter of the company.

If the agenda of the annual meeting includes the issue of changing the charter or making additions to it or a new version of it, then the relevant draft documents are included in the information materials.

The above information must be made available to eligible persons 20 days before the annual meeting. Shareholders can familiarize themselves with this information at the premises of the executive body of the company and in other places, the addresses of which are in the message. The availability of this information to persons participating in the meeting is maintained during its holding (clause 3 of article 52 of the law No. 208-FZ).

The company's annual report submitted for approval by the annual general meeting must contain the information specified in clause 3.6 of the provision on additional requirements.

The reliability of the data contained in the annual report must be confirmed by the audit commission (auditor) of the company. The very same annual report of the company is signed by the person performing the functions of the sole executive body of the company. Before submitting it to the annual meeting, the report is subject to preliminary approval by the board of directors (supervisory board) of the company. Moreover, this must be done no later than 30 days before the date of the annual meeting. If the company does not have a board of directors, then the report is preliminarily approved by the person performing the functions of the sole executive body of the company (clauses 3 and 4 of article 88 No. 208-FZ).

The above requirements in terms of the ratio of net assets to the authorized capital of limited liability companies also apply to joint stock companies (clauses 4, 5, 6, 11, article 35 of Law No. 208-FZ). In addition to them, in addition, for joint-stock companies, the obligation was introduced to publish twice with a frequency of once a month in the media in which data on state registration legal entities, notification of a decrease in the value of the company's net assets, if their value turns out to be less than the authorized capital of the company by more than 25% at the end of three, six, nine or twelve months 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 (clause 7 of article 35 of Law No. 208-FZ).

Decisions at the annual general meeting of shareholders are made by voting on each item on the agenda. The counting of votes is carried out by the counting commission, in case of its absence - by the person replacing it. Based on the results of voting, these persons shall draw up and sign a protocol on the results of voting no later than 15 days after the end of the meeting. The protocol is drawn up in two copies. Both copies are signed by the chairman and the secretary of the meeting. The protocol must contain the information specified in clauses 5.3, 5.7 and 5.8 of the provisions on additional requirements.

The report on the voting results is drawn up if the voting results on each of the agenda items were not communicated to the shareholders at the end of the voting. Such a report, within a period not exceeding 10 days after the drawing up of the minutes of voting results, must be sent to each shareholder who has the right to take part in the meeting.

Violation of the provisions described above also qualifies as an administrative offense. For these violations may be imposed administrative penalty:
for officials - in the amount of 20,000 to 30,000 rubles. or disqualification for up to one year;
for legal entities - from 500,000 to 700,000 rubles.

Cost accounting
The above requirements of the legislation of the Russian Federation for holding an annual (general) meeting determine the structure of expenses associated with its holding.

Both joint stock companies and limited liability companies will not do without costs associated with:
informing shareholders or participants of information about the meeting;
preparation of copies of mandatory and additional documents not included in the annual report, which the company is obliged to provide to persons entitled to participate in the general meeting.

For joint-stock companies, these are added costs:
to publish in the media information about both the holding and the results of the meeting. At the same time, for publication, the society can use not only print, but also other media (for example, television, radio), the use of which is determined by the charter of the society;
for the production of voting ballots and their distribution, if:

The meeting is held in the form of absentee voting;
- in JSCs the number of shareholders - owners of voting shares is 1000 and more;
- the charter of the joint-stock company provides for the distribution of bulletins before the meeting;
to send a report on voting results to shareholders if the voting results were not announced directly at the meeting.

Joint-stock companies with more than 500 shareholders - owners of voting shares have one more item of expenses for paying for the services of a registrar performing the functions of a counting commission in accordance with the requirements of paragraph 1 of Article 56 of Law No. 208-FZ.

In addition to this, organizations, as a rule, incur other additional costs:
renting a meeting room;
organization of buffet services (meals) for the event participants;
travel and rental of living quarters for nonresident participants;
transport and other services for the event (including technical equipment and cleaning of premises, translation services, security, office expenses, etc.).

For open joint-stock companies, another item of expenditure is the cost of publishing annual statements (Art. 92 of Law No. 208-FZ). Are obliged to publish annual reports and balance sheets, as well as to disclose other information about their activities, provided for by federal laws and regulations adopted in accordance with them, and some limited liability companies. This applies to LLCs that have publicly placed bonds and other emission securities(Clause 2, Article 49 of Law 14-FZ).

For OJSC, the Procedure for publishing annual financial statements by open joint-stock companies has been established (approved by order of the Ministry of Finance of Russia No. 101 dated November 28, 1996). The accounting statements of a company are considered published in the media accessible to all shareholders of this company if the publication actually took place in at least one periodicals... A specific publication can be determined by the charter of the company or by a decision of the general meeting.

One of the expense items for many joint stock companies, as well as some limited liability companies, is the cost of an audit. Recall that open joint stock companies are subject to mandatory audit due to their organizational and legal form. Closed joint stock companies, as well as limited liability companies, may be subject to mandatory audit in terms of financial performance. This happens if the volume of proceeds from the sale of products (sale of goods, performance of work, provision of services) of the organization for the previous reporting year exceeds 400,000,000 rubles. or the amount of assets of the balance sheet as of the end of the previous reporting year exceeds 60,000,000 rubles. (subparagraphs 1, 4, paragraph 1, article 5 of the Federal Law of 30.12.08 No. 307-FZ "On Auditing").

The auditor of a joint stock company, as mentioned above, is approved at the annual meeting. The amount of payment for these services is determined by the board of directors of the company (clause 2 of article 86 and clause 2 of article 69 of Law No. 208-FZ). In LLC, the appointment of an audit, approval of the auditor and determination of the amount of payment for his services are within the competence of the general meeting of the company's participants (subparagraph 10, paragraph 2 of article 33 of Law No. 14-FZ).

- in accounting
The costs associated with the audit are classified in accounting as costs associated with the management of production. And they, in turn, refer to expenses for ordinary activities (clause 7 of the Regulation on accounting"Organization costs" (PBU 10/99), approved. by order of the Ministry of Finance of Russia dated 06.05.99 No. 33n). Instructions for the application of the Chart of accounts for financial and economic activities of organizations (approved by order of the Ministry of Finance of Russia dated October 31, 2000 No. 94n) prescribes accounting for administrative expenses on account 26 "General business expenses" (trade organizations are encouraged to use account 44 "Sales expenses"):

Debit 26, 44 Credit 76
- reflected the debt under the contract for the provision of audit services;
Debit 19 Credit 76
- allocated VAT paid to the auditor;
Debit 76 Credit 51
- listed cash auditor.
The costs of payment for audit services taken into account in general expenses, depending on the accounting policy of the organization, are subsequently written off either to account 20 "Main production" or to account 90 "Sales" of subaccount 2 "Cost of sales" as conditionally fixed.

If an organization rents premises for holding an annual meeting, then the costs incurred are also considered as costs associated with the management of production. It also includes the costs associated with the preparation of information materials for the annual meeting, notification of its holding and the production of voting ballots, etc.

It was stated above that a person participating in the annual (general) meeting has the right to request copies of the prepared information materials. If the organization makes a decision to charge a fee for them, then the funds received to reimburse the costs incurred are related to other income (clause 7 of the Accounting Regulations "Income of the organization", approved by order of the Ministry of Finance of Russia dated 06.05.99 No. 32n) and are accounted for account 91 "Other income and expenses" subaccount 1 "Other income":

Debit 50, 51 Credit 91-1
- funds were received from persons participating in the annual (general) meeting for information materials.
The costs associated with the publication of financial statements, including the cost of preparing, publishing and mailing a special brochure (booklet) with accounting statements, are included in the costs of ordinary activities as costs associated with production management (clause 3.1 of the publication order).

- for taxation
When calculating income tax, the costs of auditing services are included in other costs associated with production and (or) sales (subparagraph 17 of paragraph 1 of article 264 of the Tax Code of the Russian Federation). Other costs are known to be indirect. Such costs in in full are taken into account in the expenses of the current reporting (tax) period (clauses 1 and 2 of article 318 of the Tax Code of the Russian Federation).

Debit 68 subaccount "Calculations for VAT" Credit 19

If, in addition to transactions subject to VAT, the organization carries out transactions that are exempt from taxation, then only a part of the tax amount can be deducted. The part accepted is determined based on the value of the shipped goods (work, services), the sale of which is subject to taxation (exempt from taxation), in total cost goods (works, services) shipped during the tax period. In this case, the organization must keep separate records of VAT amounts for purchased goods (works, services) (clause 4 of article 170 of the Tax Code of the Russian Federation).

Expenses for holding meetings of shareholders (participants, shareholders) are related to non-operating expenses (subparagraph 16 of paragraph 1 of article 265 of the Tax Code of the Russian Federation). At the same time, in the aforementioned subparagraph, the legislator indicates the costs of renting premises, preparing and distributing information necessary for holding meetings. That is, the costs incurred, the direct connection with the holding of the meeting of which can be directly traced:
rental of premises;
copying and duplicating works for the formation of documents provided to shareholders and participants, etc., -
tax officials should not be skeptical.

Documents confirming rental costs may be a lease agreement, an act of acceptance of the premises from the lessor. In this case, it is necessary to match the date on which the premises were rented and the date of the annual meeting. The latter can be confirmed by the minutes of the meeting.

Provided in the aforementioned subparagraph 6 of paragraph 1 of Article 265 of the Tax Code of the Russian Federation and other expenses directly related to the holding of the meeting, which means an open list of them. Thus, the financiers referred to these as payment for the services of the registrar performing the functions of the counting commission (letter of the Ministry of Finance of Russia dated 10.11.09 No. 03-03-06 / 1/736).

The Ministry of Finance also does not object to the inclusion in the non-operating expenses of the costs of publishing in the official press and posting on the Internet information about the meeting of shareholders and its results (letter of the Ministry of Finance of Russia dated 10.11.09 No. 03-03-06 / 1/736).

At the same time, there are a number of expenses that are directly related to the holding of a meeting of participants (shareholders) of the company, but are not directly indicated in the considered subparagraph 16 of paragraph 1 of Article 265 of the Tax Code of the Russian Federation. This primarily refers to the costs of providing participants with food, their protection, travel, accommodation. In practice, disagreements arise between organizations and tax authorities on such expenses, since the latter do not accept them in reducing the taxable base only on the grounds that they are not directly named in the specified norm.

In our opinion, there is still an indirect connection between transport costs and the holding of the meeting: the failure of the company to ensure the arrival of participants to the meeting may lead to the absence of a quorum for recognizing the decisions of the meeting as competent (clause 8 of article 37 of Law No. 14-FZ, clause 1 of article . 58 Law No. 208-FZ). Therefore, it would be logical to recognize such costs as non-operating expenses. However, officials do not agree with this.

You can, of course, try to take into account such costs as representative costs, because by virtue of paragraph 2 of Article 264 of the Tax Code of the Russian Federation, such costs are recognized, in particular, the costs of the official reception and service of participants who arrived at a meeting of another governing body of the taxpayer. The general meeting of participants or shareholders of the company is the supreme governing body (Art. 32 of Law No. 14-FZ, Clause 1 of Art. 47 of Law No. 208-FZ). The tax authorities, again, are quite skeptical about this.

However, the courts sometimes still support the taxpayer. Thus, the judges of the FAS Ural District recognized as legitimate the attribution of expenses for holding a reporting meeting of shareholders to entertainment expenses, since the general meeting falls under the definition of another governing body, and the list of costs that can be attributed to entertainment expenses is not regulated by the legislator (resolution of the FAS Ural District of 03.03.05 No. F09-529 / 05-AK).

The judges of the Federal Antimonopoly Service of the Volga District considered that the cost of the following may be included in the entertainment expenses:
air transportation costs associated with the delivery of members of the board of directors to the place of the annual general meeting of shareholders (resolution dated 09.10.07 No. A57-4062 / 2006-9);
flight of a shareholder - a member of the company's management board to participate in the meeting (resolution of August 31, 2006 No. A65-18519 / 2005-CA2-22).

The fact that the living expenses of persons participating in the entertainment event do not reduce the tax base for corporate income tax, since these costs are not provided for by the provisions of paragraph 2 of Article 264 of the Tax Code of the Russian Federation, the Ministry of Finance of Russia indicated in a letter dated 01.12.11 No. 03-03- 06/1/796.

To confirm entertainment expenses, financiers strongly recommend issuing a package of documents, which includes (letters of the Ministry of Finance of Russia dated 01.11.10 No. 03-03-06 / 1/675, dated 22.03.10 No. 03-03-06 / 4/26):
order or order of the head of the organization to hold an entertainment event;
estimate of entertainment expenses;
source documents confirming the purchase and cost of goods used during the entertainment event (invoices, invoices, cash register receipts, sales checks and etc.);
primary documents confirming the purchase from third-party organizations of works and services necessary for the event (invoices, acts of work performed or services rendered, receipts of the cash register, etc.);
report or act on the actual amount of expenses for the event.

Hospitality expenses, as you know, are subject to regulation. When calculating income tax, they can be recognized in an amount not exceeding 4% of the total amount of the company's expenses on wages for the current reporting or tax period. Excessive amounts of entertainment expenses for tax purposes are not taken into account (paragraph 3, clause 2 of article 264, clause 42 of article 270 of the Tax Code of the Russian Federation).

Since the annual meeting should be held in the first or in the second quarter, it is possible that due to the excess of the standard, the organization will not be able to immediately recognize the total cost of the specified reporting periods. Most likely, it will be possible to fully account for these costs only by the end of nine months or a calendar year. After all, the maximum amount of entertainment expenses that can be recognized in tax accounting, is determined on an accrual basis from the beginning of the year until the end of the corresponding reporting period or year (clause 3 of article 318 of the Tax Code of the Russian Federation).

Note that the amount of VAT presented to the company for entertainment expenses is subject to deduction in the amount corresponding to those accounted for in taxation (paragraph 2, clause 7 of article 171 of the Tax Code of the Russian Federation). With an increase in labor costs in the next reporting period (and even more so at the end of the year), the standard for recognition of entertainment expenses in tax accounting also increases. In such a situation, the corresponding deduction of VAT ceases to be "above the standard". Therefore, VAT amounts for excess expenses that are not deducted in one tax period of a calendar year are deducted in those tax periods for VAT in which these expenses are taken into account for tax purposes with corporate income tax (letter of the Ministry of Finance of Russia dated 06.11.09 No. 03 -07-11 / 285).

If you have a contract with a firm that organizes the full range of activities for preparing and holding the annual meeting, it is very tempting to write off all the costs it incurs for organizing the meeting as the cost of its services under the item "services of third parties." However, this expense item can include the cost of the organizer's services, and not individual components of the total amount of the invoice issued by the organization, including, for example, the cost of renting a room for holding a meeting, protecting its participants, their buffet service, etc. confirming the expenses for the services of the organizer, it must be visible what exactly the services provided were.

Recall that the taxpayer has the right to independently determine to which group he attributed costs, which with equal grounds can be attributed to different groups (clause 4 of article 252 of the Tax Code of the Russian Federation). Therefore, nothing interferes with society:
expenses for renting a hall (building) shall be attributed to production rent (subparagraph 10, clause 1 of article 264 of the Tax Code of the Russian Federation);
postage, telecommunication and similar expenses - for communication services (subparagraph 25 of clause 1 of article 264 of the Tax Code of the Russian Federation);
used paper, issued pens, notepads, letterheads, etc. - to office expenses (subparagraph 24 of paragraph 1 of article 264 of the Tax Code of the Russian Federation);
the protection of the meeting participants is available for other security activities (subparagraph 6 of clause 1 of article 264 of the Tax Code of the Russian Federation). Note that the judges of the FAS of the Volgo-Vyatka District confirmed the legality of writing off the costs of providing additional security during the annual meeting under the item “other security costs” (Resolution of the FAS of the Volgo-Vyatka District of 08/10/06 No. A29-4238 / 2005a).

In Chapter 25 of the Tax Code of the Russian Federation, as mentioned above, there is a special rule on the costs of holding meetings of shareholders (participants) - the aforementioned subparagraph 16 of paragraph 1 of Article 265 of the Tax Code of the Russian Federation. As is known, a special rule has priority over a general one. Therefore, directly named expenses - for renting premises, for preparing and distributing information necessary for holding meetings - as well as directly related ones, such as, for example, publishing information about a meeting, are included in non-operating expenses. Doubtful expenses for transport and food can be considered as representative. When attracting a special organizer for holding a meeting, it is necessary to draw up the most detailed act on the services provided.

IMPORTANT:

In some organizations, the general meeting is of a formal nature, which entails not so significant costs for its holding. For others, this event turns into a rather thorough ceremony with a large number of guests, the duration of which can be delayed. The executive body of the organization, following established requirements of the above laws, before the meeting is obliged to perform a number of organizational actions.

The annual report must contain a section on the state of the company's net assets, which indicates indicators characterizing the dynamics of changes in the value of net assets and the authorized capital of the company for the last three completed financial years, including the reporting year (subparagraph 1, clause 3, article 30 of Law No. 14-FZ). Newly created societies provide such data for each completed financial year.

When preparing the annual meeting, the Board of Directors determines:
date (if it is not specified in the charter of the company), place and time of the event;
agenda;
the date of compiling the list of shareholders entitled to participate in the annual meeting;
the procedure for informing shareholders about its holding;
list of information (materials) provided to shareholders;
the form and text of the voting ballot in case of voting by ballots (Art. 54 of Law No. 208-FZ).

As the venue for the general meeting, the message indicates the address where the meeting will be held, as well as the start time of registration of persons participating in its work (clause 2 of article 52 of Law No. 208-FZ).

The person participating in the meeting has the right to request copies of information materials. The company must provide them within 5 days from the date of application. The organization may charge a fee for making copies up to the costs incurred.

The requirements of the legislation of the Russian Federation on holding an annual (general) meeting determine the structure of expenses associated with its holding.

The accounting statements of a company are considered published in the mass media accessible to all shareholders of this company if the publication actually took place in at least one periodical. A specific publication can be determined by the charter of the company or by a decision of the general meeting.

Provided that the organization carries out only operations recognized as an object of VAT taxation, and the presence of an invoice, the amount of tax paid to the auditor, the organization has the right to deduct:
Debit 68 subaccount "Calculations for VAT" Credit 19
- VAT paid to the auditor is accepted for deduction.

It is unlikely that the taxpayer will be able to prove the legality of including the living costs of nonresident participants in the city where the meeting is held in expenses for the purpose of calculating income tax, because the list of entertainment expenses given in paragraph 2 of Article 264 of the Tax Code of the Russian Federation is closed, and such costs it is not given.

The taxpayer has the right to independently determine to which group he should attribute the costs, which with equal grounds can be attributed to different groups (clause 4 of article 252 of the Tax Code of the Russian Federation).

Vladimir ULYANOV, PBU expert