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

How a business is divided in a divorce can become a very important issue, especially in a truly profitable enterprise.

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

Does the second spouse have a right to a share in the business after a divorce? You will find the answer to this question in this article.

Does the spouse have the right to partition

If everything is simple when dividing property: it is divided in half, then with a business everything is somewhat more complicated.

When dividing a business, you should rely on the Family Code of the Russian Federation. It spells out all types of property and those incomes that will be divided equally upon dissolution of marriage.

Second spouse who is not involved in entrepreneurial activity, has the right to sources of the family budget from individual entrepreneurs, to a share of the authorized capital of the organization. It is further clarified that property is recognized as joint, even if one of the spouses has only a part of the capital.

Any object of entrepreneurial activity during a divorce is divided in half. The issue may be resolved differently. To do this, the composition of the business is determined, property is assessed, a path is chosen that will not disrupt the stable course of affairs.

If the ex-husband and wife agree among themselves voluntarily, then the business is divided according to their decision. Otherwise, litigation is required. You can sue immediately after the official divorce, or you can still live together.

The litigation can drag on 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 commercial activities, is one of the founders.

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

In a divorce, the following property is divided:

business money;
stock;
shares in LLC;
bonds;
material.

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

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

LLC section

To determine in which cases the spouse will receive nothing in the division of the Society with limited liability(LLC), you need to refer to the charter of the company.

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

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

In fact, it rarely happens that the shares are divided equally, since the business will not be able to continue to function normally due to the absence of one manager. If only one person has the right to adequately manage the household, 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 compensation is calculated as 50% of it.

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

assets;
obligations of third parties;
bank accounts;
items owned by the LLC.

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

IP section

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

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

Entrepreneurial activity not only brings income, but sometimes there are also debts. AT judicial order 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 the amount in proportion to the share in the joint property. If the profit was spent on personal needs, then the court may 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 divide the goods that are in circulation, then the court considers the case in favor of the functioning of the individual entrepreneur.

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

Bank deposit section

During a divorce, all property is divided in half, and currency bank accounts also fall under this rule.

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 need of the parties for shares. If the account is issued 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 exactly equally.

How the business is divided during the divorce process, see the explanation 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 you to solve many other tasks that are equally important for business: from diversifying the risks associated with unscrupulous suppliers to protecting company assets from tax authorities and creditors in the event of an unforeseen bankruptcy.

Today we will talk about how to safely introduce several legal entities into the business structure using the “simplification” in order to reduce the tax burden of the company.

How exactly should you not do it?

If the company is already on the "simplification", but the amount 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 for the same legal address 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, laying the proceeds for each of them in legal limits and thereby reduce the tax burden.

So. In both cases, such a "frontal" path will be illegal, since the goal is obvious - a deliberate reduction in taxes. Recently, tax inspectors have been successfully proving the illegality of this approach in court.

When splitting a business in order to reduce taxes, it is necessary to observe the most important rules security.

What is the benefit of "simplification"?
Consider on specific example, by how much taxes can be reduced by replacing one legal entity with VAT by two separate firms operating without VAT (that is, using a “simplified system”).
Let's say the company's revenue is 100 million rubles. / year. And its expenses for the same period amounted to 65 million rubles. (VAT included).
In this case, for the year the company must pay the following amounts to the state treasury:

RUB 5.34 million in the form of value added tax;
RUB 5.93 million 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 divided into two firms, each of which uses the USN. With similar indicators, we will have to pay the following amounts to the treasury:

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

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

2.5 times - when the business is split 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 of New Companies

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

It is better to proceed from the forecasted amount of 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 unsystematic opening of new LLCs, as soon as the indicators of one of them approach to limits.

Security Rule #2: No Affiliation of Legal Entities

The inevitable suspicion of illegal tax cuts and the commission of a tax crime by the IFTS arises if several legal entities on the "simplified" one and the same CEO or founder. To see this, it is enough for inspectors to obtain information from open sources (for example, from an extract from the Unified State Register of Legal Entities).

Of course, the interdependence of participants is not in itself evidence of an unjustified tax benefit and tax avoidance. But in most cases, this situation is a reason for a thorough tax audit. And already as part of the audit, inspectors will begin to dig deep and will be able to prove the relationship between legal entities for the purpose of tax optimization, if:

Organizations closely interact with each other on non-market conditions. 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 security reasons, it is necessary to avoid intersections in activities, such as issuing loans to each other, reselling goods, works or services. That is, purely outwardly, the activities of companies should have an independent character.

Either the relationship of companies must be convincingly justified by business objectives (see below - "Safety Rule No. 3")

The companies have the same employees. As a rule, firms created for the distribution of revenue do not hire new employees. Financial documents are signed by the same managers as in related organizations. Most often they are issued part-time, which clearly proves the relationship of companies.

For security reasons, each company must have its own (albeit small) staff of employees who will not be issued 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 the maintenance accounting. This gives the inspectors a reason to believe that this particular company is the decision-making center and in fact only one operates, 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 separation must be justified by business objectives

If affiliation is indispensable, then when introducing a new legal entity into the business infrastructure, it is necessary to have a clear idea of what business goal it will pursue. The official reason for the division of the business must be convincing in the eyes of the tax inspectors.

For example, companies within the Group may sell different types 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 justify the expediency of having several companies on the "simplified" system as part of one group of companies.

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

Lack of self-sufficiency is the main nitpick of the tax authorities, along with interdependence. In the eyes of the tax authorities, each company should be completely independent. What is it expressed in? The tax authorities must see that each participant is an independent business unit, that is, there are fixed assets on the balance sheet, he 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, it enhances protection in real court cases within the framework of fragmentation and makes it difficult to implement subsidiary liability.

So, adhering to the above principles, business splitting can be a profitable and convenient tool for legally reducing taxes. And in the case of claims from the IFTS, it will always be possible to justify the reasons for the division of business processes into different firms with 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 properly divide the business, or you want to put things in order in several open LLC 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 a completely understandable desire of companies. Entrepreneurial 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 reduction in the flow of tax revenues to the budget. Because of this, disputes arise that have to be resolved in court. The question of the legality of business splitting has already been brought up for discussion 13 times Supreme Court RF. And the number of cases heard by district courts is approaching two hundred. We analyzed 198 litigations and share with you our findings on when splitting a company into several new firms will result in additional charges and when not.

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

Such manipulations are under the close attention of the tax authorities. The tax authorities are sure that any business fragmentation is aimed at creating a tax minimization scheme. As a result, the inspectors calculate taxes based on the entire amount of income received by dependents, and impute additional charges plus penalties to the parent company.

If the taxpayer fails to substantiate the economic essence of the splitting of the business, the courts will recognize the additional charges as legitimate. When a company has arguments that prove that the separation was necessary, there are chances to fend off the claims of the tax authorities.

Let's see what legal actions of a business optimization company will be difficult to defend in the courts.

Mistake 1: split up to keep the right to special treatment

The splitting of a company is widely used in order not to lose the right to use such a special regime as a simplified taxation system. Recall that the “simplification” can be applied until the revenue exceeds 150 million rubles. There are also restrictions on the number of employees (they should not be more than 100 people) and the residual value of fixed assets - no more than 150 million rubles. (signature 15, clause 3, article 346.12, clause 4, article 346.13 of the Tax Code of the Russian Federation).

To stay within these limits, business owners split the organization into multiple companies that continue to operate in the same line of business as the parent company, often in the same premises. This is exactly what happened in the case considered in the decision of the Arbitration Court of the Far Eastern District of October 22, 2015 No. F03-4073 / 2015.

The company on a simplified system provided hotel services. When the company's revenue approached the threshold, the excess of which would have entailed 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 customers. The inspection decided that the business was divided for only one purpose: not to go beyond the income limits and remain on a simplified taxation system.

In this case, the court confirmed the unreasonable split and supported the inspectorate in assessing additional taxes in the amount of more than 32 million rubles. Evidence, in addition to the absence of a real business purpose, included:

provision of services by different firms in the same premises;

lack of document flow between companies.

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

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

So, in a case that reached the Supreme Court of the Russian Federation (Determination of January 23, 2015 No. 304-KG14-7139), tax authorities, as a result of control measures, concluded that the organization conducted financial and economic activities in the conditions of formal business splitting in order to underestimate the number employees 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 on common system taxation, accrued the corresponding amounts of penalties and fines.

The courts upheld the conclusion of the tax authorities. They recognized the absence of a real need to create additional interdependent organizations that carry out one type of activity, are located on the same territory as the taxpayer, and do not have their own production facilities (premises, warehouses), equipment, and transport.

Problems may also arise for those taxpayers who wish to retain the right to use UTII. An example is the decision of the AS of the Far Eastern District dated January 19, 2017 No. F03-5944 / 2016. In this case, two individual entrepreneurs, a husband and wife, were the defendants in the split. They used 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 applying the “imputation”. After all, the area of the hall for retail trade should not be more than 150 square meters. m (signature 6, clause 2, article 346.26 of the Tax Code of the Russian Federation). But the courts of first instance and appellate instances refused the inspection. They proceeded from the fact that the property (shop) was acquired by married entrepreneurs, which means that both of them are equally entitled to use it for their own purposes.

The cassation sent the case for a new consideration to the regional arbitration and ordered to investigate the inspectorate's argument about the formal division of retail space in stores. The arbitrators pointed out that if the halls in one trading room are structurally or visually separated, but the independent conduct of activities in them is not confirmed, the splitting 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 the “imputation” fell under the accusations of crushing. Before the firms became independent, they were part of the same organization and had the status of branches.

The tax authorities decided that the purpose of splitting the business was to underestimate income by distributing them to artificially created organizations that formally carry out financial and economic activities aimed at obtaining unreasonable tax benefits through the use of a special taxation regime in the form of UTII. The inspectorate, as a result of the audit, combined the proceeds of all the newly created organizations and, “for joy”, additionally assessed taxes on the entire amount to the “main” company. According to tax officials, 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 managed to prove that the separation was caused by the need to maintain a competitive business. The fact is that pharmaceutical activity 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 was subjected to such 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 to work 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 fragmentation (decree of the Arbitration Court of the Far Eastern District dated January 21, 2015 No. F03-5980 / 2014).

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

Mistake 2: coincidence of founders and leaders

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

In the resolution of the Arbitration Court of the Far Eastern District of October 22, 2015 No. Ф03-4073/2015, which we have already mentioned, the same individual became the founder of all companies. The owner also acted as director. Yes, 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 out in clause 6 of Resolution No. 53 of the Plenum of the Supreme Arbitration Court of the Russian Federation dated October 12, 2006 (hereinafter referred to as Resolution No. 53), the interdependence of the participants in transactions in itself cannot serve as a basis for recognizing the tax benefit as unreasonable.

On the other hand, in conjunction with other circumstances, interdependence will lead to additional charges. If, for tax purposes, transactions are accounted for not in accordance with their actual economic meaning or are not due to reasonable economic reasons (business purposes), 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 Arbitration Court of the East Siberian District, in its Resolution No. F02-6540/2016 dated December 7, 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 proved the business splitting scheme and, as a result, the legitimacy of additional charges 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 negative court decision for the taxpayer. Thus, the Arbitration Court 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 impact of the fact of interdependence on the conditions and economic results of transactions and activities of participants in economic turnover, as well as an unreasonable reduction in tax liabilities."

In this case, the taxpayer managed to prove that the legal entities were independent business entities. After all, each of the companies was located in different places, independently kept records of their 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. An example is the dispute considered in the decision of the Arbitration Court of the Volga-Vyatka District dated June 30, 2016 No. F01-2276 / 2016.

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

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

In addition, entrepreneurs used the IP address of the company's director to communicate with the bank, individual entrepreneurs were listed in administrative documents firms as structural units for which it had the right to conduct 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 charge of 43 million rubles to it. tax payments.

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

The courts supported the inspection. They noted that such a business scheme 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 reflected artificially (Determination of the Supreme Court of the Russian Federation of June 27, 2016 No. 301-KG16-6290).

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

Rule 1: companies conduct different activities

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 if there is a real business goal. Consider what arguments will convince the judges that it exists.

You can justify the business goal 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 on the example of the case considered in the decision of the Arbitration Court of the West Siberian District dated January 31, 2017 No. Ф04-6830/2016. The organization was engaged in the processing of agricultural products and applied the general taxation regime. The director established two more firms on the "simplified" basis, which purchased raw materials from manufacturers.

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

The following evidence helped him:

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

counterparties during interrogation said that they did not know about the interdependence of the 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 firms and document circulation has been organized;

counterparties of the companies did not intersect with each other;

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

the taxpayer did not use unreasonable VAT deductions.

Rule 2: each firm has its own property

If each taxpayer, after splitting, received on its balance sheet a separate property necessary for statutory activities, this may serve as an argument in favor of the company. Of course, the joint use of property is permissible (for example, if we are talking about an administrative building).

An illustration to the above is the resolution of the Federal Antimonopoly Service of the West Siberian District dated May 26, 2014 No. A81-4180 / 2013. The court pointed out that each of the enterprises has on its balance sheet the property necessary for the implementation of its 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 entrepreneurial activity. Indeed, in this case, the organizations of the group of companies rented office space from a third party. They signed lease agreements on their own.

Keep in mind that the tax authorities will assess the value of the property received by each company in the split. Distortions speak of the groundlessness of the division. For example, one company owned a building that cost almost 700 million rubles, and after the creation of other legal entities, received a share of approximately 700,000 rubles, which is 0.1% of the property price. Moreover, other firms were given 15% each. This discrepancy convinced the court of “criminal” fragmentation (Ruling of the Supreme Court of the Russian Federation of August 13, 2015 No. 304-KG15-8734).

As you can see, one factor, whether it is a single composition of owners or common property, does not speak of unreasonable splitting. The courts will assess the totality of the circumstances. It is not for nothing that the Federal Tax Service of Russia instructed the territorial tax authorities in such cases to obtain “reinforced concrete” evidence that would “unequivocally testify to the commission by the audited taxpayer, together with persons controlled by him, of guilty, deliberate concerted actions aimed solely at obtaining unreasonable tax benefits” (

» Anastasia Stefanova.

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Anastasia Stefanova

The optimal 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 conflict division of the business will most likely 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.

Consider the process of business division on the example of a limited liability company (LLC).

Friendly partition with control

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

To maintain control, partners can use the institutions of a corporate agreement and a plurality of directors. Legally, they will not separate the business, but they will help to separate the areas of management.

Corporate agreement

If one or more owners are not involved in current activities companies, while others are actively engaged in it, then to simplify the adoption of corporate decisions or to delineate 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. A corporate agreement is drawn up in a simple writing. Participants must notify the society of its conclusion without disclosing the content.

Plurality of Directors

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

The owners can agree that each of them appoints its own director with certain powers. For example, you can separate territorial boundaries or activities (one is engaged in marketing, the second in procurement, and so on). The legislation allows the participants of the LLC, at their discretion, to fix the powers of several directors in the charter.

Friendly section with loss of some benefits

Such classical ways of dividing a business as reorganization (in the form of separation or division) and liquidation (in order to obtain assets) often lead to unexpected consequences for partners.

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

These advantages include: credit history (the size of the company's working capital for all periods in all banks is 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 societies must obtain new permits for special activities).

With a spin-off, these benefits will remain with only one of the companies, and with a split, no one will be able to retain them.

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

If partners see clear prospects for the future, their aspirations and goals are the same (or at least similar), then a friendly and fast sharing 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 to separate a business is to liquidate it, which is used to obtain the company's assets. This method involves the creation of a liquidation commission, the preparation of a liquidation balance sheet, the sale of property, the receipt of all debt, the dismissal of employees with the payment of severance pay.

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

Sale by a partner of his share

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

The main difficulties are the pre-emptive right provided by law for the purchase of a share by other participants and the company. 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.

By 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 cost net assets, book value and net income, but also the price of control, since some decisions in an LLC can only be made by a qualified majority. For example, in order 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 structure. An option is a right (in the case of a purchase) and an obligation (in the case of a sale) to acquire or sell a share at a certain point in time at a predetermined price.

The construction is used when the parties need a gap in time 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 setting the terms of the 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 make a major transaction.
If the charter contains a prohibition on the alienation of shares to third parties.
If the charter contains a requirement to obtain consent to the alienation of the share (which other participants did not give).

Such a request must be notarized and sent to the company.

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

Corporate conflict

In the presence of a corporate conflict, the owners sometimes use the right to exclude a 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.

You can exclude a partner only 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 clients with a proposal to conclude similar agreements with competitors; makes deliberately unfounded claims to the court; becomes government bodies to harm the company; withdraws cash without counter provision; falsifies corporate documents and so on.

This year from LLC (field of activity - Maintenance and auto repair) in respect of which a bankruptcy petition was filed, the court excluded 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 it to pay off the debt to creditors and restore solvency.
The courts came to the conclusion that the owner violated his obligation to manage the company, which is a gross violation that makes it difficult for the company to operate in the face of its possible bankruptcy.

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

If, in the course of a long-term corporate conflict, one owner who is intended to be excluded files a counterclaim for the exclusion of another owner who also committed abuses, and other means of resolving the conflict have been exhausted, then the court may liquidate the company.

One LLC (field of activity - retail alcoholic beverages) was thus liquidated after a six-year corporate conflict. The company had two partners with shares of 50%.
The company's activities did not generate income, losses for some periods were written off due to undistributed profits of previous years. General Meetings could not take place for three years, since each of the participants proposed his candidacy as chairman of the meeting.
The partners participated in numerous litigation, repeatedly initiated criminal cases against each other. The court decided to liquidate the company, since if the shares of the participants were equal and there was a corporate conflict, the company could not make a profit.

If the right to withdraw is enshrined in the charter and the company has a significant amount of net assets, then the owner can submit a notarized application to withdraw from the LLC. However, after the company receives this statement, 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 activities of the company.

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 obtain it by force.

Possible tax problems

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

In the summer of 2017, the Federal Tax Service, in its letter, explained in detail about the circumstances that testify to the illegality of the business split.

If it is carried out for the sole purpose of maintaining tax advantages and at the same time the former partners carry out the same type of activity, use the same office and warehouses, use the labor of the same workers, work under the same commercial designation, conduct Accounting by one person, store documentation in one place, use one website, and so on, this may become the basis for tax audits.

Therefore, entrepreneurs need to prepare and substantiate the reality and economic sense of business separation in advance.

In one of the disputes, the taxpayer was able to prove that each of its interdependent companies carried out a real economic activity and the business split was not carried out solely for tax purposes.
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 leased real estate objects had different functional meanings (hotel, shopping center, office rooms).
The courts confirmed that the factors of territorial, logistical, functional, commercial (market) individualization and independence were proven. At the same time, the interdependence of the parties did not become the basis for recognizing the tax benefit as unreasonable.

Currently, you can meet a lot of married couples in which one of the spouses is engaged in business, thereby providing decent level the lives of 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 is more acute than ever. In this article, we will tell you how to divide a business in a divorce.

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

A separate clause states that the property will be recognized as jointly acquired, regardless of whether the spouse will have the right to 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 business income in a divorce, this issue has its own difficulties. The main ones include:

determining the composition of the business;
assessment of property owned by an individual entrepreneur or a legal entity;
choosing a path that does not disrupt the normal course of business and does not lead to the liquidation of the organization.

When an agreement is reached between the spouses, the property is divided voluntarily, otherwise - with the participation of the judiciary. An application demanding the allocation of a part of the jointly acquired property can be submitted both before the official dissolution of the marriage union, and after. Such cases often drag on for several months or even years, while divorce requires 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.
Business is carried out in the form of a commercial organization in which one of the spouses is among 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 capital of the company falls on each of the spouses, upon divorce, the total amount will be divided equally.

Spouse is a sole trader

How to divide the husband's business if he - individual entrepreneur? The provisions of the modern Russian legislation make it clear that all profits from the conduct of such activities are common property spouses and in case of divorce will be divided 50 to 50. The fact is that all objects are the property of an individual. Hence follows legal right 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 overshadowed by the appearance of debts. In this situation, the decision of the court will depend on the purpose of spending received in family budget Money.

If the main use of income from entrepreneurial activity was the needs common to the spouses - the purchase of a family car, the education of children, the purchase of housing - then the husband and wife will be required to pay an amount proportional to their share in the jointly acquired property.

In the event that the cash receipts were used for personal needs, the judge may attribute such expenses to the number of economic risks of the business and impose the need to repay debt obligations in full on the spouse-entrepreneur.

Spouse - founder or participant of a commercial organization

The current Family Code of the Russian Federation says that during a divorce, only that part of the property that belongs to the spouse is divided. The main problem in 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 to solve this issue:

Nominal cost. It is a formal approach, during which a specific percentage of each of the spouses is established. For example, the authorized capital of an enterprise is 100,000 rubles. Husband and wife in this case will receive 50,000 rubles each. But often the real state of affairs is far from these figures, and the value of property is estimated in millions of rubles. For this reason, the presented method is practically not used.
Market price. Effective Method determining the value of the spouse's share in the authorized capital of the 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 particular 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 engaged 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 charter of the company does not provide for the adoption of new founders without the consent of all other participants;
- alienation of the capital share of any of the founders is prohibited in the organization;
- Strained relationships can have a negative impact on doing business.
Payment by a businessman to a former member of the required amount of money.
The sale of the case and the division of the funds received, according to the agreement reached or the 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 fairly resolve the issue.

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