In the creation of LLC often involved several individuals. Each subject makes a certain contribution. In this case, the authorized capital consists of several shares. The exact amount of each part is established by the founders when drawing up the company's charter. Subsequently, this share will be recognized at the initial (starting) value. If one entity participates in the creation of a society, then 100% of the authorized capital will belong to it. Participants may deposit shares of varying value.
Investment Amount Limits
In accordance with applicable law, the minimum authorized capital for an LLC is 10 thousand rubles. If the amount is less, then the company will not pass state registration. The indicated value does not depend on the number of participants: even if a company is established by one entity, it needs to contribute 10 thousand rubles to the capital.
The maximum contribution is not established by law. It is determined by the co-owners by agreement. Meanwhile, participants in the company may well limit the maximum amount of capital, fixing it in the charter.
Share payment
Almost all issues related to the size of deposits, terms and amounts of their payment are resolved at the very first meeting of the founders. At the end of it, participants sign an agreement to create an LLC. If there is only one founder, all issues are reflected in a separate decision on the formation of the company.
The maximum period for payment of a share in the capital is, in accordance with the Federal Law “On LLC”, 4 months (calendar).
Founders have the right to pay in installments. Funds will be collected on the company's savings account and subsequently will be spent on the acquisition of necessary fixed assets. The 4-month period starts from the date of registration of the LLC. This period is the same for everyone and cannot be adjusted depending on the size of the contribution. If there is only one founder, then he also needs to deposit 100% of the amount of capital within 4 months.
Problems in case of non-payment
In practice, situations are quite possible when any of the participants was unable to timely deposit the due amount due to objective reasons or for circumstances beyond his control. If he proves the lack of intent in his actions, then fines or penalties will not be imposed on him. However, a participant who fails to pay its share on time may encounter some problems. In particular, he will vote at meetings exclusively within the paid part. Regarding the unpaid share, the entity will be jointly and severally liable with other participants of the LLC.
If the payment deadline is violated, the entire unpaid amount must, according to the law, go to the company. Subsequently, this part will belong to him.
Sale of share capital
In LLC quite often there is a need to change the co-owner. Until 01/01/2016 this issue was resolved in a slightly different way. One participant left the founders, and a third person was accepted instead. The share of the first at the same time passed to the "successor" or was distributed in equal shares between the newcomers (if there were several). Starting January 1, 2016, carrying out such a procedure has become much more difficult due to the requirements of the law on mandatory notarization of applications for withdrawal from the founders.
The sale of a share of the authorized capital of an LLC became possible only through a notary office (notary public), regardless of the subject composition of the transaction. The cost of the procedure, of course, has grown. Currently, the founders themselves decide how they should do it: pay more, but perform only one action, or spend less, but do everything in 2 or more stages.
Preemptive right
Before the direct sale of a share of the authorized capital to a third party, its owner must offer it to other founders. This is the essence of the preemptive right. It may belong to the company itself, if the corresponding clause is enshrined in the Charter.
The order of sale of the share of the authorized capital is regulated by Art. 21 of the Federal Law No. 14. In accordance with paragraph 4 of this norm, the founders have the preemptive right to purchase the entire amount of the deposit or part thereof at the offer price to a third party or at a predetermined value, unless other rules for the exercise of this right are enshrined in the Charter.
One important point to consider here. The sale of a share in the authorized capital at a cost set in advance is allowed only if the purchase price is not lower than the price established for the participants in the Charter.
Co-owners can exercise their pre-emptive right with respect to all or part of it. The Charter may stipulate the possibility of offering a contribution or part thereof to all LLC participants disproportionately to their shares. This provision should be entered into the Charter by the founders unanimously, and excluded - at least 2/3 of the total number of co-owners.
Limitations
Please note that the Charter of the company cannot provide for the opportunity to use the pre-emptive right to purchase simultaneously at a price set earlier and at the cost of the offer to a third party. There is one more limitation. The establishment of the preemptive right to purchase at a predetermined value in respect of an individual founder or a specific share (or part) of capital is not allowed.
Question by timing
Founders can exercise pre-emptive rights within 30 days, and society - within a week (7 days). The law does not prohibit the establishment of longer time periods in the Charter.
The founder loses the pre-emptive right in 2 cases. Firstly, upon the expiration of the period specified by the Charter, and secondly, in case of voluntary refusal from it.
Consequences of non-compliance
If during the sale of a share in the authorized capital there were violations of preemptive rights, the person (company) who could not use it has the opportunity to demand the transfer of the obligations and rights of the buyer to it in court. The corresponding application can be submitted within 3 months from the date when the victim became (or should have become) aware of the violation.
Procedural Issues
Please note that from 01.01.2016 any alienation of a share in the authorized capital (sale and withdrawal of a participant from the membership are exceptions) requires notarization. The consent of the other founders is required if the corresponding provision is enshrined in the Charter.
A participant who intends to make a sale of a share in the authorized capital must send an offer to the co-owners. In it, he indicates the value of the deposit and the conditions for its acquisition. The offer must be notarized, as well as the refusal to purchase.
Thus, persons who will enjoy the pre-emptive right when purchasing a share will be determined. After this, it is necessary to prepare documents for the registration authority. Among them:
- Statement on f. P14001 Often it is compiled by the notary public.
- Offer indicating the value and terms of the transaction. It is sent, as a rule, in the form of a notice.
- Proof of receipt of the offer.
- Acceptance (acceptance) of the proposal.
- Notarized written refusals of co-owners of the acquisition of a share by virtue of preemptive right.
- If the parties to the transaction are individuals who are married, the written consent of the spouses is required.
- The contract of sale of the share capital. The document must be notarized. Usually in notaries there are already forms of such contracts.
The sale of a share in the authorized capital, as mentioned above, is often used as a way to replace one founder with another. In this regard, the implementation of provisions of the law on preemptive rights is often a pure formality. It is much faster, simpler and more reliable to draw up a contract for the sale of a share of authorized capital than anything else. In fact, the documentation is drawn up so that the deadline for claims by the co-owners has expired. The remaining participants have nothing against the deal (and, frankly, they are not particularly asked). Documents are prepared in strict accordance with the law exclusively for the notary, so that he quickly assured the transaction.
Special conditions
In the Charter, co-owners are entitled to establish a ban on the alienation of shares to third parties. In such cases, there is no sense in applying the preemptive right, since all founders are equal in their capabilities.
Participants can also complicate the sale of shares in the authorized capital. For example, they can establish in the Charter the need to obtain the consent of the other founders. In Federal Law No. 14 there is a corresponding provision. The normative act, in particular, says the following. If the provisions of the Law or the Articles of Association of the LLC establish the need to obtain the consent of the co-owners to alienate the share (its part) to a third party, then it will be recognized as received if all participants, within thirty days (or during another period established by the constituent documents), have given this consent or not provided a refusal to give such consent.
Of course, co-owners are entitled to specify longer periods for the use of preemptive rights.
Alienation in favor of a third party
If the sale using the preemptive right has not taken place, the participant may send an offer to third parties.
The norms of the Federal Law No. 14 establish that the cost of an offer to a third party cannot be less than the price set for co-owners. After the purchase of a share, the acquirer becomes a member of the company. He fully acquires his duties and rights from the moment of making a corresponding entry in the Unified State Register of Legal Entities.
The sequence of actions, as well as the list of documents will be the same as in the case of sale under preemptive right. After the transaction is certified, the notary has 2 days to transfer documents to the registration authority. Making an entry in the registry usually takes no more than 5 days.
Experts recommend that you carefully read all the documents that are executed by a notary. Often, due to carelessness, applicants are denied registration of a transaction. Be sure to check the completeness of the information in all sheets of form P14001. In practice, there are many cases when notaries forgot to fill out information about the applicant.
Alienation of the unallocated portion of the contribution to a third party
This option allows you to "save" on the notary, since the subject of the transaction is the sale of a share owned by a business company.
First, of course, it is necessary to formalize the withdrawal of the participant from the founders. To do this, you will have to contact a notary to assure the statement. After that, you can conclude a deal in simple writing.
If a decision has been made to transfer the share to other participants, then it is more expedient to distribute it, if it is better to sell it to third parties. In the latter case, the following documents are submitted to the registration authority:
- Statement on f. P14001 certified by a notary.
- Decision of the co-founders on the alienation of a share belonging to a business company. If there are several participants, then the decision must be taken unanimously.
- Contract.
- A document confirming the payment of the alienated share.
The applicant will be an entity acting as an executive body (director, for example). Registration will also take about 5 days, plus 2 days to submit documents and receive an extract.
Mandatory clauses of the contract
The document must include:
- Place, date of transaction.
- F. I. O., passport data, addresses of the parties.
- The size of the share, its value (selling and real).
- Order and terms of payment.
- Obligations and rights of participants in the transaction.
- Responsibility for failure to comply with the terms of the contract and the circumstances under which the parties may be exempted from it.
- Dispute Resolution Methods.
Features of the content of the contract
The key point is the subject of the transaction. It is the sale of a share of capital.
The contract must indicate the full name of the LLC. It happens that in one region (or city) there are several enterprises with the same names. In order to avoid disputes, all registration numbers and details of the company, its legal and actual address should be indicated.
Reporting
Consider several postings for the sale of a share of the authorized capital, depending on the subject composition.
Suppose the acquirers are third parties and founders. In this case, the company itself is not involved in the sale of shares in the authorized capital. In transactions, the transaction will be reflected on the day the rights are transferred by entries in the analytical account:
If the seller is a legal entity, then he records the transaction as follows:
- DB 62 (76) CT 91 - accrual of debt of the buyer for the acquired share;
- DB 91 Ct 58 - reflection of the recorded value of the alienated contribution.
If the buyer is a legal entity, then it reflects the receipt of the share:
- DB 58 Kt 60 (76) - transfer of debt to the seller for the acquired share.
The value of the deposit to the face value is not adjusted. However, it can be overestimated.
Both the buyer and the seller may incur certain transaction costs. These costs may be taken into account in the cost of financial investments of the buyer and the financial result of the seller.
If the buyer is the company itself, then the account is used to reflect the transaction. 81:
- DB 81 Kt 75 - accrual of debt on a retiring founder at the redemption value of his contribution;
- DB 75 Kt 68 - personal income tax calculation (sale of a share of the authorized capital to an individual);
- DB 75 Kt 51 - payment of the cost of a share to a retired person.
After that, the contribution can be distributed among the founders due to undistributed income:
- DB 75 Kt 81 - distribution of the share repurchased by the company at par value;
- DB 81 Kt 91 or DB 91 Kt 81 - attribution to the financial result of the difference between the nominal and redemption prices of a share;
- DB 82 (83 or 84) Kt 75 - accrual of additional amounts to the founders due to the distributed contribution;
- DB 80 Kt 80 - adjustment of analytics by the amounts of participation.
Sale of the share of the authorized capital: 3-NDFL (sample fill)
Quite often, in practice, difficulties arise with the preparation of a declaration. Let's briefly review the main points for filling out a 3-personal income tax form.
The sale of a share in the authorized capital by an individual involves income. In accordance with the Tax Code, it must be declared.
First of all, the cover page is filled. It contains personal information of an individual, a phone number by which tax authorities will contact him if necessary.
Next, you need to fill out sheet A. Information on the cost of the share is displayed here. This information should coincide with the data given in official documents. Lowering the amount in order to reduce tax will lead to extremely negative consequences.
Sheet E shall indicate the costs incurred in connection with the conclusion of the transaction. This information must be supported by documents.
Sections 1 and 6 indicate the amount of income from the sale of a share in the authorized capital, the calculation of the amount of expenses, as well as the size of the taxable base and tax (13%).
If the founder has owned a share for more than 5 years, it is not necessary to draw up 3-personal income tax and pay tax.