Features of reorganization through spin-off

Reorganization is the process of transferring a certain part of the responsibilities and rights to other branches of a legal entity. At the same time, the main enterprise does not cease its activities. There are several rules by which the reorganization of an organization is carried out. This article is devoted to the form of separation, as one of the ways to transform an enterprise.

General information

The reorganization procedure in the form of separation has been used in practice for quite a long time in various spheres of economic life. In this regard, the basic rules for its implementation are fixed in such regulations as the Civil Code, Tax Code and sectoral federal laws. A peculiarity of the process under consideration is the fact that the newly formed company is part of a previously existing one, but at the same time its founders act as owners of a separate structure. They have the opportunity to issue their own regulations and manage their current account.

Accounting for reorganization

In paragraph 7 of paragraph of the Instructions established by Order of the Ministry of Finance No. 44n dated May 20, 2003, it is stated that reorganization in the form of a spin-off does not involve making entries in accounting. However, in practice, entries are made. This is needed to compare accounting data before and after allocation. A subsidiary account is used for accounting. Usually this is account 00. DT00 records the transfer of assets, and CT records the transfer of liabilities. The new entity that accepts the property and obligations records reverse entries in its accounting. The accuracy of the accounting can be verified. For this purpose, the DT and CT revolutions are correlated. They must match each other.

There is no rule in the laws that the total price of the transferred assets must be equal to the total value of the transferred liabilities. In paragraph 4-5 of paragraph 39 of the Directives it is stated that if the value of the net assets of the entity that appeared in the process of separation is lower or higher than the size of the authorized capital, the difference is regulated in the opening balance sheet.

Example

There is an organization with a capital of 10 thousand rubles. The founders decided that an organization with a capital of 10 thousand rubles would be spun off from it. It is formed from the retained earnings of the first entity. According to the balance sheet of the second organization, raw materials worth 20 thousand rubles, a receivable in the amount of a million rubles, and a liability in the amount of half a million rubles are transferred. These transactions are recorded in accounting:

• DT00 KT10. Transfer of raw materials in the amount of 20 thousand rubles.
• DT00 KT62. Transfer of accounts receivable.
• DT67 KT00. The obligation to cover the debt in the amount of 500 thousand rubles was transferred.
• DT84 KT00. Writing off profits to create capital.

That is, accounting reflects the transfer of assets and liabilities of the reorganized company.

Characteristic

The reorganization procedure in the form of spin-off is considered the most difficult option for transforming an enterprise. As a result of the process, one or more new companies are formed. It should be said that this result is characteristic of almost all forms of transformation. A certain share of responsibilities and rights is transferred to the formed structures while continuing the functioning of the main enterprise. Reorganization in the form of separation is characterized by singular succession. It is impossible with other types of company transformation.

Classification

In accordance with legal provisions, such a change in the structure of the enterprise can be either forced or voluntary. In the first case, it occurs under the Federal Law regulating the protection of competition. For example, if an enterprise conducts business activities and has a monopoly on a particular service or product, the state can force it to reorganize in the form of a spin-off. This will ensure the creation of artificial competition. A similar situation may arise with a non-profit company. If its monopoly generates significant profits, it will be forced to transform. At the same time, reorganization of a legal entity in the form of a spin-off is permitted if a separate enterprise can exist on the market of goods or services alone. Such processes must be considered by the court. If the corresponding decision is made, the owner of the company or authorized bodies must carry out the transformation within the prescribed period. In accordance with the law, it must last at least six months.

Reorganization of a legal entity by separation: general provisions

Full description

General provisions on the reorganization of a legal entity are contained in the Civil Code of the Russian Federation, the rules of which provide for reorganization in the form of annexation, transformation, merger, separation and division. Within the framework of this article, the procedure for reorganizing a legal entity in the form of separation will be considered.

The essence of reorganization in the form of a spin-off is that it is accompanied by the formation of one or more new organizations, but the parent company does not cease its activities. Rights and obligations to the newly formed company are transferred in proportion to the share of property that it received from the parent company.

In Art. 57 of the Civil Code of the Russian Federation states that the reorganization of a legal entity in the form of separation is carried out by decision of the founders of the legal entity or the authorized body of the legal entity. In addition, the decision of authorized state bodies and a court decision are indicated as additional grounds for forced reorganization in the form of separation. Separately, the consequences of failure to comply with the decision of these bodies are provided, namely the appointment by the court of an external manager to carry out the reorganization. From the moment the external manager is appointed, the authority to manage the affairs of the legal entity is transferred to him. A legal entity is considered reorganized from the moment of state registration of newly created legal entities.

The consequences of the separation are indicated in Art. 58 of the Civil Code of the Russian Federation in the form of transfer of the rights and obligations of a reorganized legal entity to each of the separated legal entities in accordance with the separation balance sheet. The requirements for this balance are contained in Art. 59 of the Civil Code of the Russian Federation.

In view of the fact that the process of reorganization of a legal entity directly affects the interests of creditors, Art. 60 of the Civil Code of the Russian Federation provides for guarantees of the rights of the latter. In particular, notification by a legal entity to the body carrying out state registration within three working days of the start of the reorganization procedure, indicating the form of reorganization. Based on this notification, the relevant authority makes an entry in the Unified State Register of Legal Entities (hereinafter referred to as the Unified State Register of Legal Entities) stating that the legal entity is in the process of reorganization. Further, after making an entry in the Unified State Register of Legal Entities about the beginning of the reorganization procedure, the legal entity publishes a notice of its reorganization twice, once a month, in the media in which data on state registration of legal entities is published. These rules are established to ensure that creditors have the opportunity to make claims against the reorganized legal entity.

Taking into account the above, we can highlight the following features of the separation in comparison with other forms of reorganization:

• the activity of a legal entity does not cease, but a new one is formed;
• two independent legal entities are formed;
• the created legal entity acquires the rights and obligations of the reorganized company in accordance with the separation balance sheet in the manner of singular succession.

Based on the analysis of legislative norms, the stages of reorganization schematically look like this:

1. preparatory - representatives or bodies of commercial organizations decide on the possibility, feasibility and economic efficiency of reorganization with justification for its implementation and bringing such information to all interested parties;
2. adoption and execution of a decision on reorganization - authorized persons bring the issue of reorganization in a specific form to the general meeting of participants of a commercial organization, fundamental issues of reorganization are resolved and the terms of reorganization agreements are discussed;
3. organizational and technical – authorized bodies prepare the separation balance sheet, develop the necessary documents;
4. approval – the general meeting of participants of a commercial organization approves the necessary documents, including the separation balance sheet;
5. notification of creditors and early fulfillment of relevant obligations - creditors of the reorganized commercial organization are notified in the prescribed manner about the upcoming change in the subject of law and succession and exercise their rights;
6. registration – state registration of the creation of a legal entity is carried out, from the moment of which, according to the general rule, the commercial organization is considered reorganized.

Dividing the reorganization procedure into stages will make it possible to more clearly apply in practice the rules on the protection of the rights of both creditors of reorganized commercial organizations and participants of such legal entities. After all, these documents must reflect the list of transferred property, the procedure and proportions for changes and division of property.

The main documents for the reorganization are:

• decision of the competent authority on reorganization (this can be either the management body of the reorganized legal entity or an authorized representative of the owner);
• separation balance;
• constituent documents of new legal entities, changes and additions made to the constituent documents of existing legal entities or a new edition of such documents;
• state registration act.

The law imposes certain requirements on the separation balance sheet. The document regulating the preparation of the separation balance sheet and containing recommendations for its preparation is Order No. 44n of the Ministry of Finance of the Russian Federation “On approval of the Guidelines for the preparation of financial statements during the reorganization of organizations” dated May 20, 2003 (hereinafter referred to as the Guidelines). At the same time, the separation balance includes the balance of the reorganized and newly emerged companies.

It must be borne in mind that according to clause 1.5 of the Methodological Guidelines for Inventory of Property and Financial Liabilities, approved by Order of the Ministry of Finance of the Russian Federation dated June 13, 1995 No. 49, when reorganizing a company, an inventory is required.

Errors in the separation balance sheet may result in refusal of state registration of the reorganization of legal entities. Judicial practice regarding the division of obligations in the case of separation of a legal entity is as follows. The court, referring to paragraph 1 of Art. 57, paragraph 4 of Art. 58, paragraph 1, art. 59 of the Civil Code of the Russian Federation, came to the conclusion that during reorganization by spin-off, the reorganized legal entity remains obligated to creditors for all obligations that were not transferred in accordance with the separation balance sheet to the newly created legal entity as a result of the spin-off. Without reflecting all obligations in the separation balance sheet, the reorganized legal entity runs the risk of unfavorable consequences for itself (Resolution of the Federal Antimonopoly Service of the West Siberian District dated December 19, 2011 in case No. A46-16297/2010, Resolution of the Seventeenth Arbitration Court of Appeal dated September 8, 2010 No. 17AP-8749/2010-GK in case No. A71-4453/2010). Moreover, on the basis of Art. Art. 57, 59, pp. 3.4 tbsp. 58, paragraph 1, art. 129 of the Civil Code of the Russian Federation does not provide for the authority of the registering body to verify the completeness and accuracy of the presented separation balance sheet and the correspondence of the volume of transferred obligations to those actually available to the reorganized entity at the time of registration (Resolution of the Nineteenth Arbitration Court of Appeal dated March 22, 2013 in case No. A48-3640/2012) . Thus, the separation balance sheet must be clearly defined, otherwise the reorganized legal entity may have difficulties in settling accounts with creditors.

Separately, it is necessary to raise the issue of entities having the right to challenge the reorganization of a legal entity. So, in addition to creditors, the authorized registration body has the right to make such a demand. This right is expressly enshrined in paragraph 2 of Art. 25 of Law No. 129-FZ, which states that the registration authority has the right to apply to the court with a demand for the liquidation of a legal entity in the event of gross violations of the law or other legal acts committed during the creation of such a legal entity, if these violations are irreparable in nature, as well as in the event repeated or gross violations of laws or other regulatory legal acts of state registration of legal entities. This point of view is also supported by the law enforcement officer, taking into account the established judicial practice on this issue. The Federal Antimonopoly Service of the Far Eastern District, in Resolution No. F03-4091/2011 dated September 5, 2011, indicated that the invalidation of the decision of the general meeting of LLC participants on the reorganization by separating LLC-1 and on the approval of the separation balance sheet indicates a gross violation of the law committed during the creation of the company, and is irremovable in nature, and therefore, in accordance with the legislation of the Russian Federation, serves as the basis for the liquidation of a legal entity in court.

In connection with the reorganization of a legal entity, a number of procedural issues arise that need to be paid attention to.

The issue of replacing a person in an obligation in the event of its reorganization through separation is resolved in paragraph 1 of Art. 48 of the Arbitration Procedure Code of the Russian Federation as follows: in cases of the departure of one of the parties in a controversial legal relationship or established by a judicial act of the arbitration court (reorganization of a legal entity, assignment of a claim, transfer of debt, death of a citizen and in other cases of change of persons in obligations), the arbitration court replaces this party with its successor and indicates this in the judicial act. Succession is possible at any stage of the arbitration process. The replacement of a party by its legal successor or the refusal of this by the arbitration court is indicated in the relevant judicial act, which can be appealed (Part 2 of Article 48 of the Arbitration Procedure Code of the Russian Federation).

Also, the arbitration court may suspend the proceedings if the organization participating in the case is in the process of reorganization. This norm is enshrined in Art. 144 Arbitration Procedure Code of the Russian Federation. In paragraph 3 of Art. 145 of the Arbitration Procedure Code of the Russian Federation determines the moment of termination of such suspension, namely the establishment of the legal successor of the person participating in the case.

Judicial practice on this issue is as follows. The Supreme Arbitration Court of the Russian Federation in its Determination dated March 3, 2008 No. 17832/07 noted that clause 2 of Art. 144 of the Arbitration Procedure Code of the Russian Federation gives the arbitration court the right to suspend proceedings in a case if this is necessary to clarify the circumstances related to the transfer of property rights and obligations of a legal entity. The FAS of the Moscow District came to the same conclusion in Resolution dated 08/21/2007, 08/28/2007 No. KG-A40/8301-07.

In the Resolution of October 29, 2008 No. F09-7392/08-S6 of the Federal Antimonopoly Service of the Ural District, the court concluded that the suspension of the proceedings is also possible in the case when the reorganization process has begun and is not completed, since upon completion of the reorganization and inclusion in the unified state register of legal entities of the corresponding entry, the court, guided by the provisions of Art. 48 of the Arbitration Procedure Code of the Russian Federation, resolves the issue of succession.

The above allows us to conclude that the existence of grounds for suspending the proceedings when a party to the case is in the process of reorganizing a legal entity must be proven in court. At the same time, the risk of refusal to suspend the proceedings remains.

Based on the above, the following conclusions can be drawn:

1. one of the forms of reorganization of a legal entity is separation;
2. the essence of the separation is to create a new legal entity while preserving the reorganized one and distributing obligations between them in proportion to the transferred property;
3. the law provides for a registration procedure, which ends with the entry into the Unified State Register of Legal Entities of information on the creation of a legal entity;
4. As procedural aspects of reorganization in the form of separation, a person in an obligation is replaced in the order of succession, and it is also possible to suspend proceedings in a case in which a legal entity is in the process of reorganization.

Galaktionova Olesya

Law Firm

Voluntary procedure

There are various factors under the influence of which the reorganization of an LLC in the form of a spin-off may become necessary. For example, one of the owners participating in the labor process decided to conduct business independently. The need for transformation may arise in order to optimize management in several structures. Often, to prevent liquidation, a reorganization of the company is carried out. The form of allocation is characterized by the provision of not only rights, but also responsibilities. Moreover, the latter may also be in debt. After this, the subsidiary can be declared bankrupt. In this case, the main enterprise will pay off small debts, thus continuing its functioning.

It is also worth saying that the newly formed company is not obliged under the Tax Code to pay duties, taxes and fees for the old enterprise. Reorganizing an LLC in the form of a spin-off can thus be used as a way to prevent debt from accumulating. Of course, there is a possibility that the court will oblige the company to pay it. However, this is only possible if it is proven that the purpose of its creation was precisely to evade payment.

Reorganization in the form of separation: step-by-step instructions

The process under consideration has its own specifics. Enterprises that decide to reorganize often face a variety of problems. To avoid certain difficulties, it is advisable to use a practical guide to transforming an enterprise. The separation of an enterprise is carried out in several stages:

1. Decision-making.
2. Submitting an application.
3. Notification of creditors.
4. Publication about the upcoming procedure.
5. Preparation of documentation.
6. Drawing up a balance sheet.
7. Notification from the Pension Fund about the absence of debt.
8. Transfer of documentation to the registration service.

Let's look at each separately.

Step-by-step instructions for reorganizing an LLC

In turn, the most difficult of the changes that may need to be registered with the Federal Tax Service is the reorganization of a legal entity.

The application, notification or message form (hereinafter referred to as application 12003) is filled out using software or manually.

Filling out the application form manually is done in black ink with capital block letters, numbers and symbols

Using the PPDRUL program, you need to reliably enter all the data and at the end you will receive a ready-made application form.

In 2013, new application forms used for registering legal entities were approved. The requirements for filling out application forms will help you fill out application 12003 correctly.

Here you need to indicate why this form is being submitted. We choose either 1 – making a decision, or 2 – canceling a previously made decision.

This section is not completed in case of reorganization in the form of transformation or merger. In all other cases, this section must be completed.

The e-mail must be filled out if an electronic signature is used when submitting an application.

3. Signature of the founder. There are many options for designing a Solution/Protocol; Internet search engines can help you.

The decision/protocol must be printed in two copies. One is provided in reg. organ, the second is kept in society.

Registration of legal entities, as well as registration of changes in the Unified State Register of Legal Entities and constituent documents of legal entities in Moscow, is carried out by the Inspectorate of the Federal Tax Service of Russia No. 46.

MIFTS No. 46 for Moscow is located on the territory of a complex of buildings along with IFTS No. 33, MIFTS No. 45,46,47,48,49 and 50, in building No. 3.

So, upon entering the MIFNS building No. 46 (document submission hall No. 1), you will see electronic queue terminals in front of you (similar terminals are installed in many banks and other institutions).

in which one or more organizations cease to exist as separate legal entities and become part of the successor company.

• Application for making an entry on the termination of the activities of an affiliated legal entity (form 16003);
• Agreement of accession;

• Certificate of state registration;
• One copy of the constituent document with the mark of the registering authority;
• Unified State Register of Legal Entities.

However, in business it is customary to conclude additional agreements on changing the parties to the contract in connection with the reorganization of a legal entity.

Decision-making

The issue of reorganization is discussed at a meeting of participants. The shareholders make a decision to carry out the transformation, and approve the procedure and conditions for the reorganization. Meanwhile, it is worth saying that this process must be preceded by the development of a plan. During the preparatory stage, the company's management must evaluate its assets and property and prepare documentation for examination. The plan will allow you to structure operations and reduce discussion time. The decision must be unanimous. This means that all meeting participants (if there are several of them) must vote for the reorganization. Problems usually do not arise if the company has only one founder. Minutes must be taken during the meeting.

Preparatory stage

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

1. The decision to carry out the reorganization procedure (if the owner is one person). There is no legally established form for this document, but in practice it usually contains the following information:

• form of reorganization (in this case, spin-off);
• the name of the new enterprise (or enterprises, if there are several);
• the timing and procedure for conducting an inventory of property;
• the amount and procedure for forming the authorized capital of the new community;
• a list of property , as well as rights and obligations that are transferred to the new enterprise.

Sample decision on carrying out the reorganization procedure.

Sample decision to reduce the authorized capital.

2. Minutes of the meeting - if there are several owners. It records the order of the meeting, as well as the voting results and the ultimately adopted decision. Basically, the protocol contains the same information as the allocation decision.

After the decision is made, an application to begin the reorganization procedure is submitted to the registration authority, to which is attached a copy of the decision on the separation or the minutes of the meeting. The application deadline is 3 days from the date of the decision on reorganization.

Sample minutes of the general meeting.

Important points

When filling out the application, you must pay attention to points 1 and 4. In the first, you should indicate the number of persons participating in the allocation. Due to the fact that the new company has not yet been formed, only one economic entity is included. The fourth paragraph contains information about the number of tumors that are expected to form. This issue is resolved at the meeting.

Preparation of documentation

The legislation requires the following documents to be available for an enterprise undergoing reorganization in the form of a spin-off:

1. Separation balance.
2. Application according to f. p12001. In accordance with the unified form, it must contain information about the company that will be formed, the number of entities that will work in it, the number of persons who carried out the separation procedure, and so on.
3. Local regulatory act of the established enterprise.
4. Protocol or decision on allocation.
5. An act approving a new body responsible for drawing up and implementing the charter.
6. Receipt for payment of duty.
7. Copies of the Herald pages. They are needed as proof of the existence of public notice of the upcoming process.
8. Notification from the Pension Fund about the absence of debt. This certificate is not considered mandatory, however, as practice shows, its presence helps to significantly speed up the process.

Step-by-step instructions for the procedure

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

1. The decision by the owners of the enterprise to carry out reorganization and the choice of its specific form.
2. Carrying out inventory and forming a separation balance sheet.
3. Collection and preparation of necessary documents that are needed to start the procedure (decision or minutes of the meeting and application).
4. Notification of the upcoming procedure of registration authorities.
5. Notifying creditors that the firm is undergoing a reorganization in the form of a spin-off.
   This is done in two ways: by sending written notices to all known creditors about the upcoming allocation and by publishing a message in the media (in the Bulletin). Publications are made twice, once every month.
6. Formation of the necessary reporting : final, transitional and introductory.
7. Preparation of documents for the procedure.
8. Submission of registration documents to the tax authority .
9. Entering information about a new enterprise into the state register.

Sample notice to creditors of reorganization.

At this point, the reorganization procedure is completed.

Next, the selected enterprise becomes a separate economic unit , independent from other organizations.

Typically, reorganization by spin-off, like its other forms, takes about 2-3 months.

Read more about dividing an LLC into two LLCs in this material.

Requirements

When carrying out reorganization in the form of a spin-off, it is necessary:

1. Create a staffing schedule. It should indicate the number of employees who will work in the new company, as well as the distribution of responsibilities between them.
2. Submit personnel documents. We are talking about papers for employees who are transferred to the newly formed company.
3. Notifying employees about upcoming changes. In this case, those employees whose working conditions at the enterprise will be changed are subject to notification. If they agree to the transfer, appropriate entries are made in the work books and an annex to the contract is drawn up.

Reorganization of the separation form: separation balance sheet (sample)

Drawing up this document is the responsibility of the enterprise carrying out the transformation. Its approval is carried out at the general meeting of participants. It contains information about the obligations and property of both the existing and the newly created company. The separation balance sheet is considered as a set of documentation reflecting data on the past, current and future work of the enterprise. In particular, it contains annual reporting, inventories, lists of obligations and material assets, and the procedure for their distribution.

Separation balance

Each form of reorganization requires the drawing up of a basic mandatory document on the basis of which this procedure takes place. For those forms as a result of which one enterprise is divided into several (or one is separated from another), it is the separation balance sheet.

It is a document that reflects the distribution of assets and the transfer of part of them to a new economic entity.

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

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

Before drawing up the document, it is worth conducting an inventory - this will allow you to most accurately take into account and estimate the value of all the property that the reorganized enterprise has.

Sample separation balance sheet.

We bring to your attention materials on changing the passport data of the general director of an LLC or changing the founder, on making changes to the OKVED IP, in the constituent documents, on the merger of an LLC by affiliation, on the reorganization of a closed joint-stock company into an LLC.