How to divide a business between partners. Business section. The most painless option for a partner to exit the business

How a business is divided in a divorce - such a problem can become very important, especially with a truly profitable enterprise.

In most cases, if the main income of the family is profit from business, then only one of the spouses is engaged in entrepreneurial activity.

Is the second spouse entitled to a share in the business after divorce? You will find the answer to this question in this article.

Does the spouse have the right to partition

If the division of property is simple: it is divided in half, then with business everything is somewhat more complicated.

When dividing a business, one should rely on the Family Code of the Russian Federation. It spelled out all types of property and those incomes that will be divided equally in case of divorce.

The second spouse, who does not participate in entrepreneurial activity, has the right to sources of the family budget from the individual entrepreneur, to a share of the authorized capital of the organization. Further, it is specified that the property is considered joint, even if one of the spouses has only a part of the capital.

Any object of entrepreneurial activity is divided in half upon divorce. The issue can be resolved differently. For this, the composition of the business is determined, the property is assessed, a path is chosen that will not disrupt the stable flow of affairs.

If the ex-husband and wife agree among themselves voluntarily, then the business is divided by their decision. Otherwise, litigation is required. You can file a lawsuit immediately after an official divorce, or during your life together.

The trial can take from several months to several years, so it is better not to bring it to this. Most often you have to deal with the following situations:

One of the couple has the status of an individual entrepreneur.
One of the former couple is engaged in commercial activities, is one of the founders.

Please note that regardless of the share of the capital owned by one of the spouses, it will be divided equally when the marriage is annulled.

In case of divorce, the following property is divided:

money from business activities;
promotions;
shares in LLC;
bonds;
material.

In case of divorce, it is not subject to division:

business created before marriage;
business donated or created by one of the spouses;
objects of intellectual activity.

Section LLC

To determine in which cases the spouse will not receive anything when the Limited Liability Company (LLC) is divided, you need to refer to the company's charter.

If it was initially stated that new participants cannot join the society, then the party claiming the share can only receive compensation. If there are common shares and a joint share, then they are divided in half.

There is a general concept that joint shares are divided according to property rules. Step-by-step rules for dividing shares are not described anywhere. The value of the company is preliminary estimated. Before dividing the firm, liabilities and assets, profit are assessed.

In fact, it rarely happens that the shares are divided equally, since the business will not be able to continue functioning normally due to the absence of one manager. If only one person has the right to adequately manage the economy, then he gets 100% of the shares, and the second is paid compensation.

Good to know: if the amount of the nominal share is 10,000 rubles, then the compensation is calculated as 50% of it.

The value of the share is estimated depending on the total total value of the LLC property:

assets;
obligations of third parties;
bank accounts;
things belonging to the LLC.

The size of the authorized capital and the value of assets may not coincide. If an LLC has a minimum authorized capital of 10 thousand rubles, then in fact it can be millions of rubles.

IP section

If the husband or wife are self-employed, then all profits from the activity will be divided in half.

Any objects are the property of an individual, therefore, according to the law, the second family member can claim half of the family business. It does not matter which of the spouses has the status of individual entrepreneurs, who is the legal owner.

Entrepreneurship not only generates income, but sometimes debts appear. In court, it is considered for what purposes the family money was spent, whether it was rational in the situation that arose.

If the income from entrepreneurial activity was spent on the purchase of real estate or the education of children, then one of the spouses is obliged to pay the second amount in proportion to the share in the joint property. If the profit was spent on personal needs, then the court can order to pay off the debt obligations of the owner of the company in full.

Regardless of what one of the spouses was doing while the other was managing the state of emergency, all property will be divided equally. If the plaintiff demands to split the goods that are in circulation, then the court considers the case in favor of the functioning of the IP.

If this can lead to the collapse of the company, then such statements of claim are rejected. SP is divided in half, if it does not harm business.

Bank deposit section

In case of divorce, all property is divided in half; foreign currency accounts in the bank also fall under this rules.

All shares, deposits and bank deposits are subject to division. You can share money if it was earned during your life together.

If the second condition is met, then the court determines the parties' need for shares. If the account is in the name of the child, then the parents do not have the right to claim it. If there is money in the account, they are divided equally.

How the business is divided in the divorce proceedings, see the explanations in the following video:

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Tax consultant 1C-WiseAdvice

As part of tax planning projects, we often have to resort to such a legal optimization tool as splitting a business into several legal entities. In addition to safe tax cuts, this allows us to solve many other, equally important for business, tasks: from diversifying the risks associated with unscrupulous suppliers to protecting company assets from tax authorities and creditors in the event of an unexpected bankruptcy.

Today we will talk about how to safely introduce into the structure of a business several legal entities that use the "simplification" in order to reduce the company's tax burden.

How is it definitely not worth doing?

If the company is already on the "simplified" system, but the volume of revenue is about to exceed allowable limits - there is a great temptation to open another legal entity with the same type of activity, the same founders and at the same legal address in order to continue doing business on preferential tax terms.

Or the owner of a company with a common taxation system may come up with a sensible idea to divide his business into two identical legal entities with the simplified tax system, putting the proceeds for each of them into legal limits and thereby ensure a reduction in the tax burden.

So that's it. And in fact, and in another case, such a "frontal" path will be illegal, since the goal is obvious - deliberate tax cuts. Recently, tax inspectors have successfully proven the illegality of this approach in court.

When splitting a business to reduce taxes, it is necessary to follow the most important safety rules.

What are the benefits of "simplified"?
Let us consider, using a specific example, by how much it is possible to reduce taxes by replacing one legal entity with VAT by two separate firms that operate without VAT (that is, they apply a “simplified” system).
Let's say the company's revenue is 100 million rubles. / year. And her expenses for the same period amounted to 65 million rubles. (VAT included).
In this case, the company must pay the following amounts to the state treasury for the year:

5.34 million rubles. in the form of value added tax;
5.93 million rubles. in the form of income tax.

In total, the total tax burden of the company from our example will be 11.27 million rubles / year, or ... Now suppose that this company is divided into two firms, each of which uses the simplified tax system. With similar indicators, we will have to pay the following amounts to the treasury:

5.25 million rubles. or 5.25% of revenue (if applicable uSN-15 mode);
6 million rubles or 6% of revenue (if the regime applies USN-6).

Thus, by abandoning the company for VAT, we will reduce taxes (as a percentage of revenue):

2.5 times - when splitting a business into 2 firms with USN-15;
2.2 times - when the business is split into 2 firms with USN-6.

Safety Rule # 1. No spontaneous startups

Tax optimization is a project. And, like any project, it requires competent preliminary preparation. Therefore, the first thing to understand is the number of participants in the new business structure.

It is better to proceed from the forecasted revenue for the coming year. This will allow you to correctly calculate how many new legal entities on the "simplified" system will be required and will help to avoid the haphazard opening of new LLCs as soon as the indicators of one of them approach to the limits.

Security Rule No. 2. No affiliation of legal entities

The inevitable suspicion of illegal tax cuts and the commission of a tax crime from the IFTS arises if several legal entities on the "simplified" system have the same general director or founder. To see this, inspectors only need to obtain information from open sources (for example, from an extract from the Unified State Register of Legal Entities).

Of course, the interdependence of the participants does not in itself constitute evidence of unreasonable tax benefit and tax evasion. But in most cases, this situation is a reason for a thorough tax audit. And already within the framework of the audit, the inspectors will begin to dig deeper and will be able to prove the relationship between legal entities for the purpose of tax optimization if:

Organizations interact closely with each other on non-market terms. For example, to replenish working capital, one company provides interest-free loans to another or sells goods to it at a price lower than that of external counterparties.

For safety reasons, it is necessary to avoid intersections in activities, such as lending to each other, resale of goods, works or services. That is, purely outwardly, the activities of companies should be independent.

Or the relationship of companies must be convincingly justified by business objectives (see below - "Safety Rule # 3")

The companies have the same employees. As a rule, new employees are not hired in firms created to distribute proceeds. Financial documents are signed by the same managers as in related organizations. Most often, they are issued concurrently, which clearly proves the relationship of companies.

For security reasons, each company must have its own (albeit small) staff who will not be part-time in other organizations of the group.

The companies are served by the same full-time accounting department. Often, despite the presence of several seemingly independent legal entities, financial accounting for them is maintained by the same accounting service, which is part of the infrastructure of the main company. At the same time, it is obvious that the main activity of this company is the sale of goods or the provision of services, and not accounting. This gives the inspectors a reason to believe that this particular company is the center of decision-making and, in fact, only it functions, and the rest exist to save taxes.

To protect your business from tax claims, it is enough to outsource the accounting of related legal entities to a specialized accounting company.

Safety Rule # 3. Business division must be justified by business objectives

If you cannot do without affiliation, then when introducing a new legal entity into the business infrastructure, you must have a clear idea of \u200b\u200bwhat business goal it will pursue. The official reason for dividing a business must be compelling in the eyes of tax inspectors.

For example, companies within the Group may sell different types of goods. Or you can distinguish between their activities on a territorial basis. There are many options.

But only in this case it will be possible to substantiate the advisability of having several companies on the "simplified" system as part of one group of companies.

Safety Rule No. 4. Independence of the activities of each participant

Lack of self-sufficiency is the tax authorities' main quibble, along with interdependence. In the eyes of the tax authorities, each company should be completely independent. How is this expressed? The tax office must see that each participant is an independent business unit, that is, there are fixed assets on the balance sheet, it bears expenses and has a current account and specialized specialists in the state. In our opinion, the independence of each legal entity in terms of doing business strengthens protection in real court cases within the framework of fragmentation and complicates the implementation of subsidiary liability.

So, adhering to the above principles, splitting up a business can be a profitable and convenient tool to legally reduce taxes. And in the case of claims from the Federal Tax Service Inspectorate, it will always be possible to justify the reasons for the division of business processes into different firms by non-tax purposes.

Since the activity of each company has its own specifics, we develop individual solutions for a specific client.

If you need to competently divide your business, or you want to put things in order in several open LLCs without waiting for a tax audit and additional charges - our tax consultants are always ready to help.

We hope to be of service to you!

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Paying less taxes is an understandable desire of companies. Enterprising businessmen have already come up with a lot of schemes to minimize tax payments. One of them is business fragmentation. Naturally, the tax authorities are not satisfied with the decrease in the flow of tax revenues to the budget. Because of this, disputes arise that have to be resolved in court. The issue of the legality of splitting up a business has already been brought up 13 times for discussion by the Supreme Court of the Russian Federation. And the number of cases considered by the district courts is approaching two hundred. We analyzed 198 legal proceedings and share with you our conclusions about when splitting a company into several new firms will lead to additional charges, and when not.

In the practice of business turnover, splitting a business means its restructuring, as a result of which the company will save on taxes, for example, splitting one company into several through reorganization, creating new organizations or working with dependent individual entrepreneurs.

Such manipulations are under the scrutiny of the tax authorities. The tax authorities are confident that any splitting up of a business is aimed at creating a scheme to minimize taxes. As a result, the auditors calculate taxes based on the entire amount of income received by the dependent persons and impose additional charges plus penalties for the parent company.

If the taxpayer is unable to substantiate the economic nature of the splitting up of the business, the courts recognize the additional charges as legitimate. When a company has arguments that prove that the separation was necessary, there are chances to fight off the claims of the tax authorities.

Let's take a look at the legitimacy of which actions of the company to optimize the business will be difficult to defend in the courts.

Mistake 1: splitting up to retain eligibility

Splitting a company is widely used in order not to lose the right to use such a special regime as a simplified taxation system. Let us remind you that the “simplified system” can be applied until the proceeds exceed 150 million rubles. There are also restrictions on the number of employees (there should not be more than 100 people) and the residual value of fixed assets - no more than 150 million rubles. (Subclause 15, Clause 3, Article 346.12, Clause 4, Article 346.13 of the RF Tax Code).

To stay within these indicators, business owners split the organization into several companies, which continue to do the same type of activity as the parent company, often in the same premises. This is exactly what happened in the case considered in the resolution of the CA of the Far Eastern District of 10.22.2015 No. F03-4073 / 2015.

The company provided hotel services on a simplified system. When the company's revenue approached the threshold value, exceeding which would entail the loss of the right to this special regime, the owner registered another organization with a similar type of activity. He also became the founder of two more companies that provided catering services to hotel clients. The inspectorate decided that the business was divided with only one purpose: not to go beyond the limit values \u200b\u200bfor income and remain on a simplified tax system.

In this case, the court confirmed the unjustified splitting and supported the inspectorate in additional tax assessment in the amount of more than 32 million rubles. The evidence, in addition to the lack of a real business purpose, included:

provision of services by different firms in the same premises;

lack of document flow between companies.

An organization can also burn out on a fictitious crushing in order to maintain a special regime if the tax authorities find that its employees have been transferred to controlled organizations. Especially if employees wrote applications for dismissal by transfer on the same day.

In this case, inspectors will certainly conduct interrogations of employees in order to find out the conditions of the transition: whether they retained the same position and salary, duties, address of the place of work, management. And if everything is confirmed, then the splitting will be recognized as unreasonable.

So, in the case that reached the Supreme Court of the Russian Federation (Definition of 01/23/2015 No. 304-KG14-7139), as a result of control measures, the tax authorities concluded that the organization was conducting financial and economic activities in the conditions of formal fragmentation of the business in order to understate the number workers by distributing them to several organizations. As a result, the company received an unjustified tax benefit through the application of a special tax regime. In this regard, the inspectorate assessed additional taxes to the company according to the general taxation system, assessed the corresponding amounts of penalties and fines.

The courts upheld the withdrawal of tax officials They recognized that there was no real need to create additional interdependent organizations carrying out the same type of activity, located in the same territory with the taxpayer, without their own production areas (premises, warehouses), equipment, and transport.

Problems may arise for those taxpayers who wish to retain the right to apply UTII. An example is the resolution of the CA of the Far Eastern District of January 19, 2017 No. F03-5944 / 2016. In this case, two individual entrepreneurs, a husband and a wife, were involved in the splitting. They applied UTII in relation to retail trade, conducted the same types of activities in one store, divided into parts.

The tax authorities decided that the store was divided only for the purpose of using "imputation". After all, the area of \u200b\u200ba retail hall should not be more than 150 sq. m (subclause 6, clause 2, article 346.26 of the Tax Code of the Russian Federation). But the courts of first instance and appeal refused the inspection. They proceeded from the fact that the real estate (shop) was acquired by spouses-entrepreneurs in marriage, which means that both of them are equally entitled to use it for their own purposes.

The cassation referred the case for a new consideration to the regional arbitration and ordered to investigate the inspectorate's argument about the formal division of the retail space in stores. The arbitrators indicated that if the halls in one retail space are structurally or visually separated, but the independent conduct of activities in them is not confirmed, the crushing scheme will be confirmed. Since "the independence of the object of trade is determined not only by the presence of signs of isolation, but also by the independence of the activities carried out in this object."

Another example regarding the preservation of UTII. A pharmacy chain of 14 separate legal entities using imputation fell under charges of crushing. Before firms became independent, they were part of one organization and had the status of branches.

The tax authorities decided that the purpose of splitting the business was to understate income by distributing them among artificially created organizations that formally carry out financial and economic activities aimed at obtaining unjustified tax benefits through the use of a special taxation regime in the form of UTII. As a result of the inspection, the inspection combined the proceeds of all the newly created organizations and "in joy" added additional taxes to the "main" company from this entire amount. According to the tax authorities, the underpayment amounted to almost 46 million rubles.

The courts sided with the company. But this is rather an exception to the general trend. The company was able to prove that the separation was driven by the need to maintain a competitive business. The point is that pharmaceutical activities are licensed. The law gives the licensing authority the right to suspend the company's activities for up to 90 days in case of violations. Moreover, the list of such violations is quite extensive.

The firm has been subjected to this punishment more than once, and it suffered losses. Therefore, the owners decided to split one company into several. This made it possible, in the event of an audit, not to suspend the activities of the entire organization, but to continue working for individual firms, except for the one that was issued an order to suspend activities.

Surprisingly, the court accepted this argument as an economic justification for non-criminal division (Resolution of the AU of the Far Eastern District of 01.21.2015 No. F03-5980 / 2014).

It should be noted that the Supreme Arbitration Court of the Russian Federation, in the Resolution of the Presidium of 09.04.2013 No. 15570/12, indicated that splitting is justified if the company structures the business in the best way for itself. For example, it transfers activities from one firm to another, due to the better supply of the latter. That is, the presence of real economic reasons for the division may well justify the legality of the division.

Mistake 2: overlapping founders and leaders

In practice, the same composition of owner-managers always raises questions from the tax authorities during the audit. Tax officials and judges are not inclined to believe in simple coincidences.

In the already mentioned resolution of the CA of the Far Eastern District of 10.22.2015 No. F03-4073 / 2015, the founder of all companies was the same individual. The owner was also acting director. And the chief accountant was one for all.

On the one hand, such coincidences in themselves are not punishable. Citizens and organizations have the right to carry out any activity not prohibited by law. It does not contain a prohibition on the creation of several organizations by one person. Based on the legal position set forth in clause 6 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 12.10.2006 No. 53 (hereinafter - Resolution No. 53), the interdependence of the parties to transactions in itself cannot serve as a basis for recognizing the tax benefit as unjustified.

On the other hand, in combination with other circumstances, interdependence will lead to additional charges. If, for tax purposes, transactions are not accounted for in accordance with their actual economic meaning or are not conditioned by reasonable economic reasons (business goals), then clause 6 of Resolution No. 53 does not work, and the tax benefit is recognized as unreasonable (Clauses 3 and 7 of Resolution No. 53 ).

For example, the CA of the East Siberian District, in its resolution dated 07.12.2016 No. F02-6540 / 2016, focused on the fact that the founders and directors in the group of companies were relatives, that is, interdependent persons. This convinced the judges that the tax authority had proven the business splitting scheme and, as a result, the legitimacy of additional accrual of the disputed amounts.

However, as the analysis of arbitration practice shows, the same composition of founders and directors does not always lead to a court decision that is negative for the taxpayer. Thus, the CA of the Far Eastern District in its resolution dated 07.10.2015 No. F03-4067 / 2015 indicated that "the tax authority did not provide evidence of the influence of the fact of interdependence on the conditions and economic results of transactions and activities of participants in economic turnover, as well as an unjustified reduction in tax liabilities."

In this case, the taxpayer managed to prove that legal entities were independent subjects of entrepreneurial activity. After all, each of the companies was located in different places, independently kept records of its income, determined the object of taxation and the tax base, calculated mandatory payments and submitted reports.

Mistake 3: using IP in special modes

The following actions may serve as a reason for claims from the tax authorities - the company registers its employees as individual entrepreneurs and supplies them with products for sale. As an example, we can cite the dispute considered in the resolution of the CA of the Volgo-Vyatka Okrug dated June 30, 2016 No. F01-2276 / 2016.

The company sold goods through individual entrepreneurs at UTII. According to the tax authority, its activities were accompanied by artificial fragmentation of business for the formal redistribution of the number of its employees with individual entrepreneurs. Recall that only those payers have the right to apply "imputation" whose number of employees does not exceed 100 people per year (subparagraph 1 of clause 2.2 of article 346.26 of the Tax Code of the Russian Federation).

The courts established that the LLC sold building materials wholesale and retail and was the only supplier of the indicated individual entrepreneurs. The entrepreneurs did not have their own fixed assets and assets, they sold goods in shops owned by the company, but leased or subleased to them. The goods were brought to them by transport belonging to the organization.

In addition, to communicate with the bank, entrepreneurs used the IP-address of the company's director, individual entrepreneurs were indicated in the administrative documents of the company as structural units in which it had the right to carry out an inventory.

All this convinced the judges that the company had created a scheme to minimize taxes, and allowed them to make a decision on additional charges of 43 million rubles. tax payments.

Another example of such fragmentation. The employees who worked in the company for many years were registered as individual entrepreneurs. Civil law contracts were concluded with them, according to which the company granted entrepreneurs the status of dealers and regularly supplied consignments of goods (tools and equipment). Entrepreneurs resold goods on their own behalf and at their own expense. The scheme is similar to the previous one. The retail space belonged to the company and was leased to individual entrepreneurs. Information about the company was posted on the signs. In addition, the entrepreneurs' proceeds were returned to society as interest-free loans.

The courts supported the inspection. They noted that such a business pattern indicates the lack of independence of individual entrepreneurs; the activity was actually carried out by the company itself, and the proceeds from the sale of goods on the accounts of entrepreneurs were artificially reflected (Definition of the Armed Forces of the Russian Federation of June 27, 2016 No. 301-KG16-6290).

Now let's see what rules should be followed in order to prove in court the legality of actions to divide the business.

Rule 1: companies do different things

It is certainly possible to defend the right to freely carry out entrepreneurial activity in the form in which the owner considers it necessary. But with a real business purpose. Consider what arguments will convince the judges that it is.

The business goal can be substantiated by the fact that companies carry out independent activities that are not part of a single production process. This argument works even when all legal entities are under the same control.

Let us illustrate this conclusion using the example of the case considered in the resolution of the CA of the West Siberian District of January 31, 2017 No. F04-6830 / 2016. The organization was engaged in the processing of agricultural products and applied a general tax regime. The director established two more companies on the "simplified" system, which bought raw materials from manufacturers.

After the inspection, the tax authorities accused the group of companies of interdependence, creating a scheme for splitting the business in order to obtain unreasonable benefits. But in court, the taxpayer presented an economic justification for such an organizational structure.

He was helped by the following evidence:

the activities of the companies within the group were not identical;

counterparties during interrogation said that they did not know about the interdependence of companies;

all organizations are registered in accordance with the legislation of the Russian Federation;

there are office premises at the location of the companies;

within the group, contracts have been concluded between the firms and the workflow is organized;

counterparties of the companies did not intersect with each other;

there were no VAT budget losses for transactions within the group;

the taxpayer did not use unjustified VAT deductions.

Rule 2: every firm has its own property

If each taxpayer, after splitting, received on the balance sheet separate property necessary for statutory activities, this can serve as an argument in favor of the company. Of course, the sharing of property is permissible (for example, when it comes to an office building).

The illustration to the above is the resolution of the Federal Antimonopoly Service of the West Siberian District of 05/26/2014 No. A81-4180 / 2013. The court indicated that each of the enterprises has on the balance sheet the property necessary for the implementation of statutory activities, a sufficient resource base and operates independently of each other.

The use of the same administrative building does not confirm the absence of independent business activities. Indeed, in this case, the organizations of the group of companies rented office premises from a third party. They entered into lease agreements independently.

Keep in mind that the tax authorities will assess the value of the property received by each company in the split. Distortions indicate the unfounded separation. For example, one company owned a building that was worth almost RUB 700 million, and after the creation of other legal entities received a share of approximately RUB 700,000, which is 0.1% of the property price. Moreover, 15% were transferred to other firms. This discrepancy convinced the court of “criminal” fragmentation (Determination of the Supreme Court of the Russian Federation dated 13.08.2015 No. 304-KG15-8734).

As you can see, one factor, be it a single composition of owners or common property, does not speak of unreasonable fragmentation. The courts will assess the totality of the circumstances. No wonder the FTS of Russia instructed the territorial tax authorities in such cases to extract "reinforced concrete" evidence that would "unequivocally indicate that the audited taxpayer, together with the persons under his control, committed deliberate concerted actions aimed solely at obtaining an unjustified tax benefit" (

»Anastasia Stefanova.

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Anastasia Stefanova

The best way to divide a business depends on whether the diverging business partners (owners) are in corporate conflict or not. If a friendly section is drawn up, then it will take a minimum of time and money.

The conflicting division of the business is likely to last at least a year, the partners will spend a significant amount of money on its legal support, and as a result, they may not receive their assets at all.

Let's consider the process of business division using the example of a limited liability company (LLC).

Friendly section while maintaining control

A friendly division of the company can be carried out both with maintaining control over business processes, and with the termination of all existing ties.

To maintain control, partners can use the institutions of corporate agreement and multiple directors. They will not legally divide the business, but they will help to separate the spheres of management.

Corporate agreement

If one or more owners are not involved in the current activities of the company, while others are actively involved in it, then to simplify the adoption of corporate decisions or delimit the spheres of influence, a corporate agreement can be concluded.

For example, partners can agree at the next general meeting to vote for the purchase of expensive equipment, thereby forming the majority needed to make a decision to expand the scope of the company. The corporate agreement is drawn up in a simple written form. Participants must notify the public of its conclusion without disclosing the content.

Plurality of directors

In 2014, the institute of plurality of directors appeared in Russian legislation, which allows partners to divide spheres of influence, giving each of them the opportunity to independently make decisions on a certain range of issues.

The owners can agree that each of them appoints a director with specific powers. For example, you can divide territorial boundaries or types of activities (one is engaged in marketing, the second is in procurement, and so on). The legislation allows the members of an LLC, at their discretion, to consolidate the powers of several directors in the charter.

Friendly section with loss of some benefits

Such classical methods of business separation, such as reorganization (in the form of spin-off or division) and liquidation (in order to obtain assets) often lead to unexpected consequences for partners.

First, after a reorganization or liquidation, businessmen will not be able to enjoy some of the benefits that an existing company gives them.

Among these advantages: credit history (the size of the company's working capital for all periods in all banks are taken into account when issuing a loan), reputation and brand history (it is almost impossible for partners to share reputation if it is closely related to their personalities), licenses and special permits (new companies must obtain new permits for special activities).

When separated, these advantages will remain with only one of the companies, and when split, no one will be able to retain them.

Secondly, decisions on reorganization or liquidation are made at the general meeting of the LLC participants, so these methods can be used only if the partners have a unidirectional view of the ultimate goal and agreement on reorganization issues.

If partners see clear prospects for the future, their aspirations and goals are the same (or at least similar), then a friendly and fast section will allow them to continue developing their business. Each of them will develop in its own direction, but with the acquired start-up capital.

Liquidation

The most protracted way of dividing a business is its liquidation, which is used to obtain the company's assets. This method involves the creation of a liquidation commission, drawing up a liquidation balance sheet, selling property, receiving all debts, dismissing employees with the payment of severance pay.

Part of the property or its value can be obtained only after settlements with creditors. If in the process debts to creditors are discovered, then liquidation can drag on for two to three years.

Sale by a partner of its share

If the owner is ready to break the legal relationship with the company, then (both in friendly and in conflict situations) he can sell his share, and in certain cases demand from the company to acquire it.

The main difficulties are the preemptive right of purchase of shares by other participants and society, provided by law. The owner will be able to sell his share to a third party only in one case: if he offers the company a notarized offer for its purchase (with all the conditions of sale), and the partners do not want to purchase it within 30 days from the date of receipt of the offer.

As a general rule, the sale price is set at the discretion of the parties. When determining it, it is necessary to take into account not only the net asset value, book value and net profit, but also the price for control, since some decisions in an LLC can be made only by a qualified majority. For example, to make a decision to change the charter of an LLC, at least two-thirds of the votes of all participants are required.

Also, since 2015, when alienating shares in an LLC, you can use the option design. An option is a right (in the case of a purchase) and an obligation (in the case of a sale) to purchase or sell a stake at a certain point in time at a predetermined price.

The structure is used when the parties need a time gap between the offer of a share for sale and consent to its purchase. Or when the parties are in different cities. This tool gives the parties more flexibility in determining the terms and conditions when making a deal.

The owner has the right to demand from the company to acquire his share in the following cases.

If he voted against an increase in the authorized capital or a decision to conclude a major transaction.
If the charter contains a ban on the alienation of a share to third parties.
If there is a requirement in the charter to obtain consent to the alienation of a share (which other participants did not give).

Such a demand must be notarized and sent to the public.

If the company does not voluntarily pay the actual value of the share to the partner, the lawsuit and enforcement proceedings may drag on for at least one year.

Corporate conflict

In the event of a corporate conflict, the owners sometimes exercise the right to exclude the partner from the LLC or the right to withdraw from the company. The company will continue its activities further, and the partner can create his own business by receiving the value of the share. However, these methods take at least one and a half years, since they are most often resolved in court.

A partner can only be excluded by a court decision: if he knowingly causes harm, violates trust between the owners and interferes with the normal operation of the company.

Sufficient evidence of harm must be presented in court. For example, that a partner sends letters to customers with a proposal to conclude similar agreements with competitors; presents deliberately unfounded claims to the court; appeals to government agencies to harm the company; withdraws funds without counter submission; falsifies corporate documents and so on.

This year, from the LLC (the field of activity - maintenance and repair of cars), in respect of which a bankruptcy petition was filed, the court expelled the owner who did not attend general meetings without good reason.
His actions led to the fact that the company was unable to make significant decisions that would allow to pay off the debt owed to creditors and restore solvency.
The courts concluded that the owner had violated his obligation to manage the company, which is a gross violation that impedes the company's activities in the context of its possible bankruptcy.

It is worth noting that after the exclusion of the partner, the company must pay him a portion of the net asset value in proportion to his share.

If, in the course of a long corporate conflict, one owner, whom they intend to exclude, files a counterclaim to exclude another owner who also committed abuse, and at the same time other measures to resolve the conflict have been exhausted, then the court may liquidate the company.

One LLC (sphere of activity - retail trade in alcoholic beverages) was liquidated in this way after a six-year corporate conflict. The company had two partners with 50% shares.
The company's activities did not generate income, losses for some periods were written off at the expense of retained earnings of previous years. General meetings could not take place for three years, since each of the participants proposed his own candidacy as chairman of the meeting.
The partners have participated in numerous legal disputes, have repeatedly initiated criminal cases against each other. The court made a decision to liquidate the company, since if the shares of the participants were equal and there was a corporate conflict, the company could not make profit.

If the right to exit is enshrined in the charter and the company has a significant amount of net assets, then the owner can submit a notarized application for leaving the LLC. However, after the company receives this application, he will not be able to control its activities.

In particular, he will not be able to convene meetings and participate in them, distribute profits, demand documents, receive information about the company's activities.

The former owner can go to court if the company does not pay the actual value of his share within three months. It can take more than a year to get it compulsorily.

Possible tax problems

When dividing a business, partners need to take into account tax aspects. If the company or entrepreneur is on the simplified taxation system (STS), then the division of such a business, leading to tax benefits, will be of interest to the tax authorities.

In the summer of 2017, the FTS, in its letter, explained in detail about the circumstances indicating the illegality of splitting up the business.

If it is carried out for the sole purpose of preserving tax advantages and at the same time the former partners carry out one type of activity, use the same office and warehouse premises, use the labor of the same workers, work under the same commercial designation, keep accounting records by one person, keep documents in one place, use one site and so on, then this may become the basis for tax audits.

Therefore, entrepreneurs need to prepare in advance and substantiate the reality and economic rationale of splitting a business.

In one of the disputes, the taxpayer was able to prove that each of his interdependent companies carried out real economic activity, and the division of the business was not carried out solely for obtaining tax benefits.
This was confirmed by the fact that companies independently formed a client base, kept accounting records, formed an independent staff of employees, were headed by various directors, independently participated in litigation, and the leased real estate had different functional significance (hotel, shopping center, office space) ...
The courts confirmed that the factors of territorial, material and technical, functional, commercial (market) individualization and independence have been proven. At the same time, the interdependence of the parties did not become the basis for recognizing the tax benefit as unjustified.

Currently, you can find many married couples in which one of the spouses is engaged in business, thereby ensuring a decent standard of living for their loved ones. But sometimes it happens that the paths of people diverge, and divorce becomes inevitable. In such a situation, the question of a competent and fair division of property becomes more acute than ever. In this article, we'll show you how to split your business in case of divorce.

The current Family Code of the Russian Federation contains information on specific types of property and income that are general and subject to division in the event of a divorce. This list includes both sources of the family budget related to entrepreneurial activity, and the share of any of the spouses in the authorized capital of commercial organizations.

A separate paragraph stipulates that the property will be recognized as jointly acquired, regardless of whether the spouse will have the right to a part of the capital of the legal entity or not. All objects used for business activities are subject to division between both spouses.

Not so simple

Despite the fact that the law clearly prescribes the rules for the division of property and income from doing business in case of divorce, this issue has its own difficulties. The main ones include:

determination of the composition of the business;
appraisal of property owned by individual entrepreneurs or legal entities;
choosing a path that does not disrupt the normal course of business and does not lead to the liquidation of the organization.

Upon reaching an agreement between the spouses, the property is divided voluntarily, otherwise - with the participation of the judiciary. An application demanding the allocation of part of the jointly acquired can be submitted both before the official dissolution of the marriage union, and after. Such cases are often delayed for several months or even years, while dissolution of a marriage takes up to 2 calendar months.

The most common situations of division of property in relation to the form of business are:

The husband or wife is registered as an individual entrepreneur.
Doing business is carried out in the form of a commercial organization in which one of the spouses is one of its founders and, accordingly, has the right to a certain part of the authorized capital or a percentage of shares.

Regardless of what share of the company's capital belongs to each of the spouses, in the event of a divorce, the total amount will be divided equally.

Spouse - individual entrepreneur (IE)

How to divide the husband's business if he is an individual entrepreneur? The provisions of modern Russian legislation make it clear that all profits from such activities are the common property of the spouses and in case of divorce will be divided 50 to 50. The fact is that all objects are the property of an individual. This implies the legal right of the spouse to claim half of the family business. At the same time, it does not matter at all whether the husband or wife has the status of an individual entrepreneur and who owns the property.

Doing business is always associated with a certain amount of risk, so the business process is often clouded by the appearance of debts. In this situation, the court's decision will depend on the purpose of spending the funds received in the family budget.

If the main direction of using the income from business activities were common needs for the spouses - the purchase of a family car, the education of children, the purchase of housing - then the husband and wife will be obliged to pay an amount proportional to their share in joint property.

In the event that the proceeds were used for personal needs, the judge can attribute such expenses to the number of economic risks of the business and impose the need to pay off the debt in full on the entrepreneur spouse.

Spouse - founder or member of a commercial organization

The Family Code of the Russian Federation in force today says that in case of divorce, only that part of the property that belongs to the spouse is divided. The main problem of such cases is to determine the price of the husband's or wife's share in the authorized capital of a commercial company. There are two methods for solving this issue:

Nominal value. This is a formal approach in which a specific percentage of each spouse is established. For example, the authorized capital of an enterprise is 100,000 rubles. In this case, the husband and wife will receive 50,000 rubles. But often the real state of affairs is far from these figures, and the value of the property is estimated at millions of rubles. For this reason, the presented method is practically not applied.
Market value. An effective method for determining the value of a spouse's share in the authorized capital of a company. It involves a professional assessment - all of its debts are deducted from the total price of the organization's property, and then the share of a specific individual is established. This takes into account a number of factors, the main of which is the monthly profit of the enterprise.

If one of the spouses is in business

As practice shows, lawsuits on the division of business between spouses have three outcomes:

Receipt of the due share in kind. Not the most common option, because:
- often the company's charter does not imply the acceptance of new founders without the consent of all other participants;
- the alienation of the share of capital of any of the founders is prohibited in the organization;
- strained relationships can negatively impact the conduct of business.
Payment by a businessman to a former member of the required amount of funds.
Sale of the case and division of the funds received, according to an agreement reached or a court decision.

Regardless of the form in which the spouse ran the business - as an individual entrepreneur or a legal entity - the help of a professional is needed to resolve the issue fairly.

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