Reorganization by separating a new legal entity taxes. Reorganization in the form of a spin-off allows you to keep the old company. Publication of data on allocation and individual notification of creditors

It is not the legal successor of the reorganized one for tax liabilities.

Secondly, there is no universal legal succession for civil claims, that is, the transfer of all rights and all obligations from the old company to the new one does not occur. The decision of what to transfer and what to leave is made by the participants of the reorganized legal entity.

Both features allow the use of "spin off" to separate the assets of a business by transferring them to a new entity. It is important that such separation does not entail tax consequences for either the transmitting or receiving party.

In addition, the allocation allows you to divide the profile and auxiliary areas in the business into different legal entities. This protects independent business lines from each other's risks in the future.

As a result of the reorganization, a new legal entity is created that can apply any taxation system, including the simplified tax system. Thus, it becomes possible to pay income tax at a reduced rate.

We believe it will not surprise anyone that the presence of such pleasant bonuses arouses keen interest of the regulatory authorities in the allocation procedures.

VAT recovery and reasonable business purpose

The tax authorities' main claim against the spin-off is VAT recovery. They arise, as a rule, in the case of "seizure" of real estate from the reorganized company after providing it with deductions for production costs for construction and the subsequent transfer of such real estate to the legal successor applying the simplified tax system. Recall that the Tax Code in clause 8 of Art. 162.1, sub. 2 p. 3 art. 170 directly indicates that there is no need to restore VAT in such a situation.

In general, no one argues with this rule, there are no complaints about the reorganization itself. Questions arise about the transfer of property to special. mode. The tax authorities see in such actions a scheme aimed at obtaining an unjustified tax benefit in the form of unreasonably received VAT deductions.

The essence of the claims is that the previous owner received the deduction, but did not use the object in VAT activities, which means that he will not pay tax from the sale. Total - the budget is at a loss. It is not surprising that taxpayers are charged additional taxes.

The result of challenging the decision of the Federal Tax Service Inspectorate in the given situation largely depends on the presence of a reasonable economic (business) goal in the actions of the taxpayer. If there is none, the inspection is likely to win in the dispute.

Given: the company is building a shopping and entertainment center, claiming VAT deductions. Upon completion of construction, the company announces reorganization in the form of separation of two legal entities. The legal successors, among other things, transfer the ownership rights to the constructed shopping and entertainment center. At the same time, one of the assignees in 2 months switches to the simplified tax system. The building of the shopping and entertainment center is subsequently leased to third parties without VAT.

Conclusion of the tax authority: consistency of actions on the successive reorganization of legal entities in order to evade the obligation to restore VAT in connection with the transition to the simplified tax system.

The taxpayer denied the conclusion, pointing out that the reorganization was aimed at dividing activities into areas: both operation and maintenance of networks. It is important that the separation was necessary, first of all, due to the fact that activities on the energy market are subject to regulation, and the coordination of tariffs for energy transmission requires separate accounting of costs for the specified type of activity in the company, which, if there is, among other things, accounting for transactions related to with the construction of a shopping and entertainment center - it was almost impossible.

It is noteworthy that such an argument was arranged by the courts of three instances, in connection with which the taxpayer managed to avoid an additional charge of about 24 million rubles, as well as the payment of a fine.

Reorganization errors

If the declared business goal is subtle, then the claims of the tax authorities can receive support in court. Let's illustrate again with an example.

Given: two companies LLC "Asset Keeper" on OSN and LLC "Operating Company" on USN. The first one owns the property - a restaurant. The second leases this property and uses it for its intended purpose. It is important that the premises itself was acquired quite recently and in the tax period preceding the events described below, a VAT refund was received from the budget.

The business owners had a simple plan: to transfer assets to the simplified tax system, avoiding VAT recovery. For this, the owner decided to reorganize in the form of a spin-off.

(1) Spin-off of Promezhutok LLC with the transfer of real estate to it. Recall that the decision on the allocation was made in the next quarter after the confirmation of the VAT deduction and receipt of the refund from the budget;

(2) After registration, Promezhutok LLC applies the OSN, but from January 1 of the next year it switches to the STS. At the same time, the same application is submitted by the original company, the Guardian, which got rid of the valuable property;

(3) A few months later, the procedure for joining Promezhutok LLC to the Operating Company (restaurant) begins.

The tax authority did not like such actions. In his opinion, Promezhutok LLC should have restored VAT. And since the accession was completed by the time the demand was made, the Operating Company was hit.

Consider the taxpayer's mistakes that led to the described result:

First, the reorganization was announced immediately after receiving the VAT deduction. At the same time, the owner of the property did not conduct independent activities, which means that he did not pay VAT on sales to the budget. Conclusion - the property was acquired to receive a deduction. Obviously, the tax authority simply could not allow this.

Secondly, during the allocation, the balance of distribution of rights and obligations with the assignee was not observed. In this case, according to the separation balance sheet, the new Company received a restaurant complex, but no obligations were transferred to it.

Third, the business purpose of the reorganization. In this case, he tried to prove that all the actions he took were aimed solely at reducing the operating company's expenses for paying the lease. In support of the stated business purpose, they even provided an auditor's report.

However, such a goal against the background of the interdependence of the reorganized entities and other mistakes of the taxpayer did not suit the courts.

Fourth, despite the fact that the case is related to the reorganization, the claims of the tax authority are based on the next step - the transition to the simplified tax system.

The courts have explicitly stated that the reorganization itself does not necessitate the restoration of VAT. However, the purpose of the allocation in this case is to evade the obligation to restore VAT due to the subsequent transition of the taxpayer to special. mode. In other words, the taxpayer preliminarily carried out a reorganization in order to withdraw the property and create a formal opportunity not to restore the deductible tax.

The conclusions from the case are obvious. To avoid adverse tax consequences:

you cannot reorganize with the transfer of fixed assets immediately after receiving the deductions. Wait a substantial amount of time. Several years after the acquisition of the property, the tax authority will have no reason to refer to the lack of intention to conduct VAT-taxable activities;

you cannot reorganize without a clear business purpose. You should not perceive the allocation as a way to recover VAT and not pay it on future activities. Reorganization primarily serves as a business optimization tool;

you cannot transfer the reorganized company to the simplified taxation system. Despite the fact that she no longer owns the property, the tax authority will ask to restore VAT;

need to plan ahead. Do not provoke the tax authority with the subsequent transition of the new company to the simplified tax system. Dedicated legal entity the person must apply special. mode since inception.

An analysis of the established judicial practice allows us to derive a number of additional rules. Of course, the decision to follow them or not is an independent choice, but we recommend you listen.

Do not make sudden movements after the discharge

The result of the reorganization in the form of a selection must be self-sufficient and finite. If this is one of the "preparatory stages" for something, then the business purpose of the allocation will not work.

For example, the sale of property by a legal successor on the STS immediately after the reorganization will raise a fair question that the only purpose of the spin-off was to pay tax when selling at reduced rates. There was no intention to conduct independent activities.

The tax authorities and the court will come to a similar conclusion in the event of a repeated reorganization after the purchase of the next object and VAT deduction. That is, you cannot carry out the selection regularly.

The assignee must operate independently

At the same time, the transfer of property for rent from the separated (new) organization to the company from which it was separated will not help. Other counterparties, cash flows and employee availability are important. Accordingly, if the company has one tenant and one employee, and the rent is not paid regularly, it will not work to prove that this whole thing is a real business.

Economic efficiency of reorganization

The taxpayer's position will be strengthened by the achievement of the economic effect from the reorganization carried out. For example, an increase in profitability after the separation of an independent business line. And, on the contrary, a clear deterioration of the “economy” will play against the taxpayer:

after the transfer of fixed assets to the legal successor, the taxpayer leases them. In this case, the amount of rent is many times higher than the depreciation deductions;

all expenses for the maintenance of the property are still borne by the taxpayer as a lessee;

the money in the form of an inflated rent, transferred to the lessor, is then re-transferred to the taxpayer (lessee) or other related companies in the form of loans.

In this case, the court decided that the sole purpose of the spin-off was to overstate the expenses of the previous owner in the form of rent payments. At the same time, the actual business processes did not change, the company continued to use "its" property.

Joint and several liability of the "new" company

The general rule stipulates that a separated legal entity is not liable for the obligations (including tax) of the predecessor company. However, if certain conditions are met, joint responsibility arises between the new and the old organizations.

In terms of tax obligations, these are: the inability to pay taxes and the reorganization's focus on tax evasion. In terms of civil liability: the deed of transfer does not allow determining the legal successor of the obligation, or the assets and liabilities are distributed unfairly.

It is important that in order to attract a person as a joint and several debtor, it is necessary to go to court, which means that the tax authority or another creditor must prove the existence of the indicated conditions.

Tax liabilities

The inability to pay taxes is proved quite simply. In the course of measures to collect tax arrears from the main debtor, the inspectorate reveals "0" on the current account. After that, he issues a decree on debt collection at the expense of property, which is sent to the bailiffs - executors. The latter, in turn, establish the fact that the debtor does not have property, in connection with which the enforcement proceedings are terminated.

The next task is to prove that the reorganization was aimed at tax evasion. For this, the inspectorate, in particular, may refer to the facts of the taxpayer's performance of actions aimed at concealing funds due to which it was possible to pay off the debt to the budget. For example, if a taxpayer, with a filing cabinet in a bank account, asks customers to pay directly to his counterparties, or in the course of a reorganization, all liquid assets were transferred to a legal successor.

It is important that the assignee can only be involved in paying tax debts for the three years preceding the separation. Three years after the end of the discharge, you can sleep peacefully.

Claims of other creditors

Bringing a spun-off company to joint liability in civil matters depends on the presence of one of the two above conditions. Moreover, in practice, the solution to the issue has a lot of peculiarities. Here are some conclusions from judicial practice:

(1) With regard to unfair distribution

It is important to approach this feature reasonably, that is, the fulfillment of the obligation must be adequate. It is obvious that transferring 100 rubles to the lender once a month will not change the picture.

(2) In general, everything is clear with the impossibility of determining the assignee by the deed of transfer: if the obligation does not appear in the act, both are responsible. However, there are nuances in this part as well.

Firstly, the preparation of the deed of transfer must be approached scrupulously. So, for example, it is desirable to name the counterparties and make a reference to specific obligations, including specifying the details of contracts and balances for the period of drawing up the act.

In practice, generalizations are often encountered, for example: "... what is not specified in the act remains with the reorganized legal entity ...". In general, such an indication is permissible, if only because, in accordance with part 1 of Art. 59 of the Civil Code of the Russian Federation, the deed of transfer must establish the procedure for determining the succession in the event of the occurrence, change or termination of the obligations of the reorganized legal entity, which may occur after the date of approval of the deed of transfer.

Second, the situations concerning the obligations arising after the reorganization stand out. In this case, it is necessary to analyze the essence of the relationship between the debtor and the creditor.

So, the fulfillment of obligations arising after the reorganization, but arising from the relationship that developed before its start, can be assigned to the separated (new) company, in the event of an unfair distribution of assets and liabilities. An example of such a situation is the collection of a forfeit under a loan agreement.

On the other hand, after the completion of the separation procedure and the signing of the deed of transfer, the reorganized company continues its activities, during which it independently makes decisions and enters into new relationships with third parties. Accordingly, the spun-off company cannot be the legal successor of the obligations arising after the reorganization.

In conclusion, we will give the main advice - do not abuse. It concerns both the use of the tool in general and the use of its individual features. The reorganization in the form of separation was not invented to optimize taxes, and even more so it is not a way to "forgive everyone who owes it." First of all, it is an opportunity to optimize business, solve entrepreneurial problems.

Let's repeat typical mistakes reorganizations that will allow the tax authority or another creditor to question the sincerity of intentions:

the reorganized companies do not have a clear business purpose, they lease all the property "back";

the property is transferred immediately after receiving the VAT deduction;

the reorganized company switches to a special tax regime after spin-off;

a new company is created on a general basis and goes to a special one later;

the successor to the simplified tax system sells the property immediately after the reorganization;

a sharp increase in the costs of the old company for renting property from its own successor;

other facts, based on which there is no transparent economic logic, except for the desire to reduce taxes.

1. See the letter of the Ministry of Finance of the Russian Federation dated July 30, 2010 No. 03-07-11 / 323, as well as the letter of the Federal Tax Service of Russia dated March 14, 2012 No. ED-4-3 / [email protected]

2. That is, the main purpose of the operation should not be tax savings.

4. See, for example, case No. A10-3798 / 2016.

5. One of the legal successors received assets that ensure the transmission (transit) of electricity.

6. See case No. A32-2471 / 2015. Similar conclusions were made in the framework of case No. A27-15970 / 2016

7. See case No. А47-10141 / 2015

8. See case No. А02-553 / 2017

9. See case No. A05-9428 / 2016

10. Joint and several liability is the obligation of several debtors to satisfy the creditor's claim. In this case, the creditor has the right to demand full satisfaction both from all debtors and from one person.

11. See case No. А27-23391 / 2014

12. See case No. А40-101831 / 2014

13. See case No. A53-14577 / 2017

14. See case No. А32-15413 / 2017

- This is a type of reorganization in which the organization does not cease to exist.

A legal entity is considered reorganized from the moment of state registration of newly emerged legal entities on the basis of a deed of transfer, which must contain provisions on legal succession for all obligations of the reorganized legal entity in relation to all its creditors and debtors, including obligations contested by the parties, as well as the procedure for determining succession in connection with a change in the type, composition, value of property, the emergence, change, termination of the rights and obligations of the reorganized legal entity, which may occur after the date on which the deed of transfer is drawn up.

When reorganizing by spin-off, one or more legal entities are created, which will be considered newly created as a result of the reorganization.

Procedure reorganization by separation of LLC in an economic sense, it mediates the division of capital between the founders. In its pure form, it means the creation of a separate society, inheriting certain rights and obligations of the original society, and is aimed at dividing the business. However, in its pure form, it is extremely rare, most often in entrepreneurial activities, the procedure for reorganizing an LLC in the form of separation is used for the so-called restructuring of the company's debts, in which certain property and certain obligations are transferred to the separated company. THE BASIC PACKAGE OF REORGANIZATION SERVICES IN THE FORM OF A SEPARATION INCLUDES:

Consulting the client on the choice of a suitable organizational and legal form of the newly transformed enterprise; collection and analysis of documents
Preparation of a package of necessary documents for the reorganization of the enterprise
Making a seal
Submission of an announcement to the bulletin of state registration of legal entities Registration of documents in the MIFNS, PF, FSS, statistics
Creditors Notice

Reorganization in the form of allocationallows you to divide the business in such a way as to separate liquid property from illiquid property and get rid of some of the liabilities attributable to illiquid property. Therefore, the legislation regulates in such detail the procedure for the transfer of responsibility from the enterprise, from which the organizations are separated, to its successors.

The reorganization of an LLC in the form of a spin-off is used in practice to divide the property of one company between its participants. At the stage of such a reorganization, problems may arise that often lead to litigation. To date, within the framework of disputes related to such a reorganization, the following issues are being considered:

the ratio of the property transferred to the allocated LLC and the actual value of the shares of the participants transferred to the separated company
the consequences of the evasion of the separated LLC from state registration of the transfer of ownership of the property transferred to it
joint liability of companies during reorganization in the form of spin-off

In case of reorganization by separation, the general meeting of participants in the reorganized legal entity submits for consideration the issue of reorganization of the company in the form of separation, the procedure and conditions for this reorganization, the creation of a new company, and the procedure for converting the shares (shares) of the reorganized company into shares (shares) of the created company.

When one or several organizations are separated from a legal entity, part of the rights and obligations of the legal entity reorganized in the form of separation is transferred to each of them in accordance with the transfer act.

The transfer is approved by the founders of the legal entity or the body that made the decision on the reorganization, and is submitted together with the constituent documents for state registration of the newly emerged legal entity. Failure to submit, together with the constituent documents, a deed of transfer, as well as the absence in it of a provision on succession for the obligations of the reorganized legal entity is the basis for refusing state registration of the newly emerged legal entity.

If the deed of transfer does not make it possible to determine the legal successor of the reorganized legal entity, the newly formed legal entities shall be jointly and severally liable for the obligations of the reorganized legal entity to its creditors.

The issues of separation from LLC cause a lot of different disputes (judicial) when certain parties, for whom this procedure is unprofitable, try to challenge it. The documents adopted during the reorganization procedure in the form of separation: decisions of general meetings, deed of transfer - undergo a strict and captious check, and often do not withstand it.

Faced with such a complex, multi-component legal procedure, you should contact professionals who understand all the intricacies of the current legislation. At the Law Firm "Logos" clients can always count on a competent and responsible approach to business and prompt, clear actions.

1.1. This document determines the policy of the Limited Liability Company "" (hereinafter - the Company) in relation to the processing of personal data.

1.2 This Policy has been developed in accordance with the current legislation of the Russian Federation on personal data.

1.3 This Policy applies to all processes for the collection, recording, systematization, accumulation, storage, clarification, extraction, use, transfer (distribution, provision, access), depersonalization, blocking, deletion, destruction of personal data, carried out using automation tools and without using such means.

1.4. The policy is strictly followed by the employees of the Company.

Definitions

personal Information - any information relating directly or indirectly to a specific or identifiable individual (subject of personal data);

operator - a state body, a municipal body, a legal entity or an individual, independently or jointly with other persons organizing and (or) processing personal data, as well as determining the purposes of processing personal data, the composition of personal data to be processed, actions (operations) performed with personal data;

processing of personal data - any action (operation) or a set of actions (operations) performed with the use of automation tools or without the use of such tools with personal data, including collection, recording, systematization, accumulation, storage, clarification (update, change), extraction, use, transfer (distribution, provision, access), depersonalization, blocking, deletion, destruction of personal data;

automated processing of personal data - processing of personal data using computer technology;

dissemination of personal data - actions aimed at disclosing personal data to an indefinite circle of persons;

provision of personal data - actions aimed at disclosing personal data to a certain person or a certain circle of persons;

blocking of personal data - temporary suspension of the processing of personal data (except in cases where processing is necessary to clarify personal data);

destruction of personal data - actions as a result of which it becomes impossible to restore the content of personal data in the personal data information system and (or) as a result of which material carriers of personal data are destroyed;

anonymization of personal data - actions as a result of which it becomes impossible to determine the ownership of personal data by a specific subject of personal data without using additional information;

personal data information system - a set of personal data contained in databases and information technologies and technical means providing their processing.

Principles and conditions for the processing of personal data

3.1. The processing of personal data is carried out on the basis of the following principles:

1) The processing of personal data is carried out on a legal and fair basis;

2) The processing of personal data is limited to the achievement of specific, predetermined and legal purposes. Processing of personal data that is incompatible with the purposes of collecting personal data is not allowed;

3) It is not allowed to combine databases containing personal data, the processing of which is carried out for purposes that are incompatible with each other;

4) Only those personal data that meet the purposes of their processing are subject to processing;

6) When processing personal data, the accuracy of personal data, their sufficiency, and, if necessary, relevance in relation to the stated purposes of their processing is ensured.

7) The storage of personal data is carried out in a form that makes it possible to determine the subject of personal data no longer than the purpose of processing personal data requires, unless the storage period of personal data is established by federal law, an agreement to which the subject of personal data is a party, beneficiary or guarantor. The processed personal data is subject to destruction or depersonalization upon achievement of the processing goals or in case of loss of the need to achieve these goals, unless otherwise provided by federal law.

8) The company in its activities proceeds from the fact that the subject of personal data provides accurate and reliable information during interaction with the Company and notifies the representatives of the Company about changes in his personal data.

3.2. The company processes personal data only in the following cases:

processing of personal data is carried out with the consent of the subject of personal data to the processing of his personal data;
processing of personal data is carried out in connection with the participation of a person in constitutional, civil, administrative, criminal proceedings, proceedings in arbitration courts;
the processing of personal data is necessary for the execution of a judicial act, an act of another body or official, subject to execution in accordance with the legislation of the Russian Federation on enforcement proceedings (hereinafter referred to as the execution of a judicial act);
the processing of personal data is necessary for the performance of an agreement to which the subject of personal data is a party or beneficiary or guarantor, as well as for concluding an agreement on the initiative of the subject of personal data or an agreement under which the subject of personal data will be a beneficiary or guarantor;
the processing of personal data is necessary to protect the life, health or other vital interests of the personal data subject, if it is impossible to obtain the consent of the personal data subject;

3.4. The company has the right to entrust the processing of personal data of citizens to third parties, on the basis of an agreement concluded with these persons.
Persons who process personal data on behalf of LLC Legal Company "Start" undertake to comply with the principles and rules for the processing and protection of personal data provided for by Federal Law No. 152-FZ "On Personal Data". For each person, a list of actions (operations) with personal data that will be performed by a legal entity carrying out the processing of personal data, the purposes of processing is determined, the obligation of such a person to maintain confidentiality and ensure the security of personal data during their processing is established, and requirements for the protection of processed personal data.

3.5. If the Company entrusts the processing of personal data to another person, the Company bears responsibility to the subject of personal data for the actions of this person. The person who processes personal data on behalf of the Company is responsible to the Company.

3.6. The Company does not make decisions on the basis of exclusively automated processing of personal data that generate legal consequences in relation to the subject of personal data or otherwise affect his rights and legitimate interests.

3.7. The company destroys or depersonalizes personal data upon reaching the processing goals or in case of loss of the need to achieve the processing purpose.

Personal data subjects

4.1. The company processes the personal data of the following persons:

employees of the Company, as well as entities with whom contracts of a civil nature have been concluded;
candidates for filling vacant positions in the Company;
clients of LLC Legal Company "Start";
users of the website of LLC Legal Company "Start";

4.2. In some cases, the Company may also process personal data of representatives of the above personal data subjects authorized on the basis of a power of attorney.

Rights of subjects of personal data

5.1. The personal data subject whose data is processed by the Company has the right to:

5.1.1. Receive the following information from the Company within the time frame provided for by the Law:

confirmation of the fact of processing of personal data by LLC Legal Company "Start";
on the legal basis and purposes of personal data processing;
the methods of processing personal data used by the Company;
the name and location of the Company;
about persons who have access to personal data or to whom personal data may be disclosed on the basis of an agreement with LLC Legal Company "Start" or on the basis of federal law;
a list of processed personal data relating to the citizen from whom the request was made and the source of their receipt, unless another procedure for providing such data is provided for by federal law;
on the timing of processing personal data, including the timing of their storage;
on the procedure for the exercise by a citizen of the rights provided for by the Federal Law "On Personal Data" No. 152-FZ;
the name and address of the person processing personal data on behalf of the Company;
other information provided for by the Federal Law "On Personal Data" No. 152-FZ or other federal laws.

5.1.2. Require clarification of your personal data, their blocking or destruction if the personal data is incomplete, outdated, inaccurate, illegally obtained or is not necessary for the stated purpose of processing.

5.1.3. Withdraw your consent to the processing of personal data.

5.1.4. Demand the elimination of illegal actions of the Company in relation to his personal data.

5.1.5. Appeal against the actions or inaction of the Company to the Federal Service for Supervision of Communications, Information Technology and Mass Media or in court if the citizen believes that LLC Legal Company Start is processing his personal data in violation of the requirements of Federal Law No. 152- Federal Law "On Personal Data" or otherwise violates his rights and freedoms.

5.1.6. To protect their rights and legitimate interests, including compensation for losses and / or compensation for moral damage in court.

Obligations of the Company

6.1. In accordance with the requirements of Federal Law No. 152-FZ "On Personal Data", the Company is obliged to:

Provide the subject of personal data, upon his request, with information regarding the processing of his personal data, or legally provide a reasoned refusal containing a link to the provisions of the Federal Law.
At the request of the subject of personal data, clarify the processed personal data, block or delete if the personal data is incomplete, outdated, inaccurate, illegally obtained or is not necessary for the stated purpose of processing.
Maintain a Register of records of requests from subjects of personal data, which should record requests from subjects of personal data to obtain personal data, as well as the facts of providing personal data for these requests.
Notify the subject of personal data about the processing of personal data in the event that the personal data was not received from the subject of personal data.

The exceptions are the following cases:

The subject of personal data has been notified of the processing of his personal data by the relevant operator;

Personal data was obtained by the Company on the basis of federal law or in connection with the performance of an agreement to which the subject is a party or beneficiary or guarantor.

Personal data is obtained from a publicly available source;

Providing the personal data subject with the information contained in the Personal Data Processing Notice violates the rights and legitimate interests of third parties.

6.2. If the purpose of processing personal data is achieved, the Company is obliged to immediately stop processing personal data and destroy the relevant personal data within a period not exceeding thirty days from the date of achieving the purpose of processing personal data, unless otherwise provided by an agreement to which the subject is a party, beneficiary or guarantor. personal data, another agreement between the Company and the subject of personal data, or if the Company is not entitled to process personal data without the consent of the subject of personal data on the grounds provided for by No. 152-ФЗ "On Personal Data" or other federal laws.

6.3. If the subject of personal data withdraws consent to the processing of his personal data, the Company is obliged to stop processing personal data and destroy personal data within a period not exceeding thirty days from the date of receipt of the said revocation, unless otherwise provided by an agreement between the Company and the subject of personal data. The Company is obliged to notify the subject of personal data about the destruction of personal data.

6.4. In the event of a request from the subject to stop processing personal data in order to promote goods, works, services on the market, the Company must immediately stop processing personal data.

6.5. The company is obliged to process personal data only with the written consent of the subject of personal data, in the cases provided for by the Federal Law.

6.7. The company is obliged to explain to the subject of personal data the legal consequences of refusing to provide his personal data, if the provision of personal data is mandatory in accordance with Federal Law.

6.8. Notify the subject of personal data or his representative about all changes concerning the relevant subject of personal data.

Information about the implemented measures for the protection of personal data

7.1. When processing personal data, the Company takes the necessary legal, organizational and technical measures to protect personal data from unauthorized or accidental access to them, destruction, alteration, blocking, copying, provision, dissemination of personal data, as well as from other illegal actions in relation to personal data.

7.2. Ensuring the security of personal data is achieved, in particular:

identification of threats to the security of personal data during their processing in personal data information systems;
the use of organizational and technical measures to ensure the security of personal data during their processing in personal data information systems, necessary to meet the requirements for the protection of personal data, the implementation of which is ensured by the levels of personal data protection established by the Government of the Russian Federation;
application of the procedure for assessing the conformity of information protection means that have passed in the prescribed manner;
assessment of the effectiveness of measures taken to ensure the security of personal data prior to the commissioning of the personal data information system;
taking into account machine media of personal data;
detection of facts of unauthorized access to personal data and taking measures;
restoration of personal data modified or destroyed due to unauthorized access to them;
establishing rules for access to personal data processed in the personal data information system, as well as ensuring registration and accounting of all actions performed with personal data in the personal data information system;
control over the measures taken to ensure the security of personal data and the level of security of information systems of personal data.
assessment of harm that may be caused to subjects of personal data in case of violation of the legislation of the Russian Federation in the field of personal data, the ratio of this harm and measures taken to ensure compliance with the legislation of the Russian Federation in the field of personal data.

The article will touch on the main points regarding the reorganization process. What it is, what is the form of selection and how to carry it out - further.

Dear Readers! The article talks about typical ways of solving legal issues, but each case is individual. If you want to know how to solve exactly your problem - contact a consultant:

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A legal entity has the right to change the form of activity and the type of organization. A process such as reorganization will help in this.

What do you need to know about him, how to plan and carry out everything? Without basic knowledge, you can make a lot of mistakes.

Basic information

Many entrepreneurs are worried about their business, trying to save it or bypass the requirements of the legislation (which is not very successful).

In order not to stop the activities of the organization, you can reorganize it. One form, selection, is the most common.

What it is

Reorganization is the termination of the activity of a legal entity, which is accompanied by legal succession.

As a result, one or more new enterprises appear, which must retain the rights and fulfill the obligations of the old company.

The decision on this transfer is made by the founder of the company and the owner. In the event of reorganization, a legal entity is not obliged to extinguish its obligations, they are transferred to the legal successor.

That, in turn, accepts them in full and has no right to refuse them. During the process, it is issued. What is he like?

The law does not establish a clear structure for its drafting. The only requirement is that the balance sheet must contain basic information about the succession (its provisions).

The amount of debt that is transferred to the new organization must be indicated. There is also no approved form for drawing up the separation balance sheet.

However, an accountant must take a responsible approach to its design and write down each figure. You need to attach the following documents to it:

inventory statement;
a list of property, rights and obligations for each company (assets, debts, financial investments, etc.);
transfer agreement;
other obligations.

In other words, the separation balance sheet is an accounting report. It is also necessary to indicate which right is transferred to a particular participant.

Spin-off is one of the forms of reorganization, on the basis of which a new firm is opened with an independent organization.

All rights and obligations of the reorganized organization are transferred to it. One or several companies can appear.

It may be needed in several cases:

The selection process has its own characteristics:

Allocation requirements:

These changes are possible only if there are orders from the head of the new organization.

For what purpose does it pass

The reorganization of the company helps to avoid a crisis or loss of business.

It is carried out in order to:

Distribute business.
Restructure assets.
Combine business.
Withdraw assets.
Transfer shares when direct transactions are prohibited.
Optimize the taxation process.

Also, the separation process is carried out in order to improve the management of the enterprise, that is, to increase its efficiency.

In this case, the branches gain independence. This process involves the opening of new enterprises, without liquidating the old one.

Applicable standards

The reorganization process can be carried out only on the basis of the Civil and Tax Code of the Russian Federation, and other regulations.

Observing their requirements and instructions, you can carry out this process without problems. Laws concerning the separation of LLC:

This Federal Law is called “On Limited Liability Companies”.

The assignee is obliged to continue to pay taxes. This is stated in.

The procedure for reorganization by separating an enterprise

The process of reorganization of a company can be carried out both voluntarily and by a court decision. In the second case, this is done to support competition.

It is necessary to fulfill this requirement, observing all conditions. The term for this is at least six months.

On September 1, 2020, came into force regarding changes to legal entities, especially - various non-profit organizations. According to the Law, SNT is transformed into TSN.

Deal structure

Highlighting is the most difficult form of transformation. It takes a long time to reorganize, companies are not liquidated. The terms of the deal are also slightly different from other types.

The main role is assigned to legal succession. In the allocation process, each participant is assigned certain rights according to the separation balance.

That is, all the property is received by the legal successor and the created society. Succession is manifested in transactions, the purpose of which is to assign part of the rights and partially transfer debts.

Decision-making

As soon as the company has decided to reorganize, it is necessary to convene a meeting of all shareholders of the institution. Participants make a decision on the transformation, approve the conditions and procedure for action in this process.

It should be noted that making a decision is not the initial stage of reorganization. First of all, it is necessary to develop a process plan, assess property and assets, and prepare documentation for examination.

A plan is essential to a successful process. Thanks to him, the conditions and requirements of the Law, the timing of the holding are observed. The main condition is that all participants must vote for the reorganization.

Step-by-step instruction

The transformation process using the selection method takes place in several stages:

Meeting of participants at which the resolution on transformation is adopted	At this stage, it is also necessary to distribute responsibilities among all participants, determine the timing of the process, and divide the capital. It is important to enter all the information in the protocol
Inventory	During which you need to assess the property of the organization and shares
Separation balance sheet	Accounting document, making it possible to share finances, rights for everyone
Contacting the tax office	This service must be notified of the ongoing reorganization. Term - 3 days
Submission of information to creditors and repayment of obligations to them	To do this, you must draw up a written notice and send it within 5 days
Announcement in the "Bulletin of State Registration"	This must be done within 2 months.
Registration and approval of the Charter for each legal entity that is allocated	And also the purpose of the controls in each of them
Registration of company and documents	In which there have been changes
Sending notifications to all Extrabudgetary Funds	Pension Fund, Social and Health Insurance, Federal Tax Inspectorate
Making a seal for a newly created organization	Opening a new bank account, obtaining a code

To register, you must provide the following documents:

photocopies of documents with the changes made;
protocol on the election of an executive authority;
a copy of the document confirming registration;
certificate of registration with tax authorities;
extract from the register of legal entities;
notifications from off-budget funds (photocopies);
information about the contact person.

This list of documentation will be required for the organization to be converted.

List of documents for the created company:

title (in full, abbreviated);
a certificate indicating the legal address;
capital amount;
types of proposed activities;
taxation form - full or;
information about the leader;
the branch of the bank where you plan to open an account;
information about all founders and their share.

In some cases, other documents may be required. A company that is in the process of reorganization in the form of spin-off must be registered within 2 months.

After registration, the process is considered complete.

Drawing up a protocol

The protocol is drawn up in the event that there are several owners. This document displays information about the procedure for holding a meeting of shareholders, what results they have arrived at.

As soon as the decision on the allocation is made, it is necessary to apply to the registration authorities with a photocopy of the protocol within 3 days.

Frequently asked Questions

Due to frequent changes in legislation, legal entities have questions regarding reorganization.

Is it possible to exchange shares

When deciding to reorganize the organization, an exchange of shares is possible. It is carried out between the participants of the reorganized enterprise.

In the opposite case, the only member of the society that will arise is the society to be transformed.

If the separation of a new legal entity

If a new limited liability company is allocated, then it is subject to full registration. In this case, the payment of the duty is obligatory, its amount is 4 thousand rubles.

A company that has not passed registration has no right to continue its activities. Thus, transformation in the form of separation is not an easy process that requires responsibility and attention.

It differs from other forms in that the reorganized institution does not stop its activities, and the enterprises created by it acquire independence.

When is reorganization necessary by spinning off a new legal entity?

Spin-off is one of the forms of reorganization in which, on the basis of an independent organization a new company appears (one or more), having part of its rights and obligations.

As a result of this procedure, an entry appears in the state register about one or more new economic entities. At the same time, the company from which they separated, continues its activities.

Most common situationsin which it may be necessary to carry out a reorganization by separating:

Company engaged in various activities, one of which (or several) will be transferred to the new organization (and read about changing the types of activities of the LLC).
In this case, the separation will optimize the tax system and simplify the accounting of the activities of both companies.
Organization seeks to restructure its debts... Since some of the rights and obligations of the previous one are transferred to the newly created enterprise, this also applies to debts - a part of them can also go to the selected entity.
Insoluble disputes or conflicts have arisen between the owners of the company, as a result of which they cannot continue further joint work. In this case, allocation is the only way to solve the problem, in which business is preserved and the rights of all participants are respected.
Company seeks to expand its fast growing business by transferring part of the assets to another entity.

Regardless of the grounds and form of ownership of the companies, the reorganization procedure by spin-off must be carried out in compliance with all legal requirements.

If the tax authorities find at the same time clear tendency to evade taxes or other debts, owners can be seriously liable.

Step by step instructions for the procedure

Like any other form of reorganization, the procedure for spinning off an LLC has its own algorithm of actions:

Decision-making the owners of the enterprise on the reorganization and the choice of its specific form.
Taking inventory and the formation of a separation balance sheet.
Collection and preparation required documentsthat are needed to start the procedure (decision or minutes of the meeting and application).
Notificationabout the upcoming procedure of the registration authorities.
Notificationcreditors that the firm is in the process of reorganization in the form of a spin-off.
This is done in two ways: by sending all known creditors written notices about the upcoming allocation and by publishing a message in the media (in the Bulletin). The publications are made twice, once every month.
Forming the necessary reporting: final, transitional and introductory.
Training documentsfor the procedure.
Submission of registration documents to the tax authority.
Entering into the state register information about the new enterprise.

At this point, the reorganization procedure is completed.

Typically, reorganization by separation, like other forms, takes about 2-3 months.

For more details on dividing an LLC into two LLCs, see.

Preparatory stage

This stage covers all actions that are performed before starting the reorganization procedure. The first required action is holding a general meeting of participants (founders) of the enterprise that is being reorganized. The result of this meeting will be the following documents:

1. Decisionon the reorganization procedure (if the owner is one person). The legislatively established form of this document is not provided, however, in practice, it usually contains the following information:

the formreorganization (in this case - allocation);
namea new enterprise (or enterprises, if there are several of them);
time and order inventory of property;
size and order of formation authorized capitalnew community;
scroll property, as well as the rights and obligations that are transferred to the new company.

2. Meeting minutes- if there are several owners. It fixes the procedure for holding the meeting, as well as the voting results and the final decision. Basically, the protocol contains the same information as the allocation decision.

After the decision is made, an application is submitted to the registration authority to start the reorganization procedure, to which a copy of the decision on the spin-off or the minutes of the meeting is attached. Application deadline - 3 days from the moment of the decision on reorganization.

Registration actions

Registration Authority Notification by submitting the appropriate documents - the most important step in the entire reorganization procedure.

This stage is conditionally divided into two parts:

1. Actions that take place at the beginning of the reorganization of a legal entity. These include:

filing an application and decisionon reorganization into a registration authority;
notificationterritorial tax authority (the composition of the necessary documents in this case is specified in a specific department of the Federal Tax Service).

2. Actions that are performed at the end of the procedure. After the second publication in the Bulletin, you can prepare a package of documents:

statements(f., and), which must be notarized;
chartera new enterprise (in duplicate);
renovated enterprise being reorganized;
letter of guarantee to the legal address of the organization that is being created;
protocolmeetings or a decision to conduct a reorganization procedure;
receipt of payment of state duty for registering a new organization;
dividing balance;
copies pages of the Bulletin with published notices of the upcoming procedure;
certificate from the FIU, confirming the absence of debt;
evidence creditors' notice (for example, postage receipts).

All these documents are submitted by the general director of the reorganized company to the registration authority. Within five days after that, all documents must be ready - both for the new enterprise and for the main one. They can be collected in person or with the help of a trusted person.

If on the appointed day no one comes to the registration authority for documents, they sent by mail to the legal address of the organization... The moment of completion of the reorganization procedure is the record of the new enterprise.

You can also find on our website a sample of the deed of transfer in case of reorganization by merger, transformation of a CJSC into LLC and division, read.

Separation balance

Each form of reorganization provides for the preparation of the main mandatory document on the basis of which this procedure takes place. For those forms as a result of which one enterprise divided into several (or one stands out from the other), it is a separation balance.

It is a document that displays distribution of assets and transfer of their part new economic entity.

Separation balance does not have a legally approved form, but certain requirements are imposed on its content:

availability reorganization information (name of the main enterprise and its successor, their organizational and legal forms, date of the procedure);
indication the amount of assets, equity and liabilities of the enterprise, which is being reorganized, as well as the procedure for their distribution for the new company;
balance sheet accounting statements, compiled for the last reporting period before the reorganization (on its basis, the separation balance sheet is drawn up).

Before drawing up the document is take an inventory- this will allow the most accurate accounting and assessment of the value of all property that is available at the reorganized enterprise.

HR problems

One of the many important questions that can arise when highlighting is distribution of workers the main enterprise in the newly established. As with any other form of reorganization, this procedure may entail a number of changes for staff. It is worth noting the most important points and actions that need to be performed when selecting an enterprise:

Drafting staffing table... This document is being created in accordance with the new organizational structure and staffing requirements. It is necessary to clearly define how many employees will be needed to operate the new enterprise and how their job responsibilities will be divided.
Broadcast hR documentation... All documents for employees who are transferred to a new enterprise, from the moment of completion of the allocation procedure, must be stored in its personnel department.
Notice of the upcoming procedure workers. This requirement applies only to those whose working conditions change significantly after the procedure. If the employees agree to the continuation of labor relations, then an addendum is signed to their contract with the introduction of amendments to the contract and a corresponding entry is made in the work book.

When employee refusal to continue working in a new company, he may be dismissed from it on this basis.

If he i agree to continue working and his working conditions are preserved, changes are made only to the work book and personal cards.

All of these changes are taking place on the basis of orderspublished by the head of the new enterprise. These documents, as well as other personnel changes, must comply with the requirements of the current legislation.

The spin-off is one of the simplest forms of reorganization from the point of view of carrying out the reorganization, with the help of which from one enterprise other business entities may be separated (their permissible number is not limited by law).

At the same time, the main organization continues its work, and new companies become independent and self-reliant- from the parent company they receive only a part of the rights and obligations.

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