Participant withdrawal from society - features, requirements and rules

The withdrawal of a participant from a limited liability company is the legal right of each founder. When exercising this right, it is important to carefully adhere to legislatively established rules and a clear sequence of actions, as well as to take into account the possibility of certain difficulties in the process of registration.

Legislative regulation

The right of an LLC participant to exit from it by Article 94 of the Civil Code is secured. The main details of this issue are contained in the 26th article of the Federal Law on LLCs. In addition, practical norms are fixed in acts of the Federal Tax Service.

In accordance with legislative standards, a participant can leave a limited liability company in the following cases:

1. By voluntary request. In this case, the former co-founder transfers its share to other company members or to third parties.
2. In case of death.
3. Forced. This option is likely with the exclusion of the founder.

According to statistics, in 99% of situations, the withdrawal of participants from the company occurs according to the first option. It is he who should be considered in detail: the registration procedure and the algorithm of actions.

Drafting a statement

A LLC participant has the right to leave the company by alienating his share, regardless of the consent of the other participants (if this feature is provided for by the provisions of the charter). The released part is subject to transfer to the company, which then must pay its real part. In cases where the LLC is organized by one sole founder, its exit is prohibited. By law, at least one of the participants must remain in the company. Otherwise, the company will have to be liquidated and then reopened.

If such an opportunity is provided for in the charter, then the participant withdraws from the company upon application in which this desire will be described. Such a document does not have a strictly regulated form of execution, but it must necessarily contain the applicant’s data, the name of the LLC, and information about the manager. The common part should reflect the size of the share owned by the founder, as well as the basis for leaving the specified company. In this case, a reference should be made to the corresponding paragraph in the charter. A sample application for the withdrawal of a participant from the company is presented below.

It is worth noting that it does not matter how many people leave the society - the procedure will be identical for both one participant and several.

Calculation of the share and its distribution

The next step is to calculate the share that will be transferred by the founder when he leaves the LLC. The calculation formula is fixed in clause 6.1 of article 23 of law 14- "On limited liability companies". To perform the calculations, you need to know the size of the net assets (they can be taken from the financial statements of the company for a certain period of time before the application is prepared). When a participant leaves the company, the cost of a share can be calculated independently. To do this, you will need to multiply the size of the share by the amount of assets.

For the best understanding, it is necessary to consider subtleties of calculations using an example. Suppose, at the time of filing an application for withdrawal, the amount of the organization’s net assets is 2 million rubles. The share of the founder in this case is a quarter, that is, 25%. This means that the desired value is 500 thousand rubles.

The payment of the real part is carried out due to the difference that exists between the size of the capital of the enterprise and the value of its net assets.

If this amount is not enough, the organization should lower the authorized capital by the required amount. Payment must occur no later than 3 months, unless otherwise specified by the charter. Pay in cash, but in some cases there may be exceptions. For example, if a participant makes a request, the amount can be completely or partially replaced with property (at an equivalent price). If there is insufficient funds, then this option for payment of funds is determined by the decision of the meeting of participants.

The transfer of a share to the company upon withdrawal of a participant in kind is prohibited in two cases:

1. If there are signs of bankruptcy already provided for by law.
2. If such signs appear as a result of payment of the estimated amount.

Calculation of taxes on a share

When a participant leaves the company, the actual share transferred to him will be subject to income tax in accordance with the general rules on the total amount of profit paid.

Since fixed assets owned by the company are recorded without VAT on its balance sheet, their market price will also be determined without this tax. This means that in the process of calculating the volume of net assets of the company, the market value of fixed assets will be determined without increasing it by the amount of VAT.

This rule also applies to income tax, since the share paid should not be reflected in the costs when calculating the base, which will be taxed. This rule is regulated by the 23rd article of the law "On limited liability companies". The point is that the payment is made from the difference between the share capital and net assets.

Share transfer

After the founder leaves, his share will be transferred to the company, which, in turn, must distribute it among the other founders during the year. The option of selling it to a third party is not excluded.

Funds may be distributed proportionally or disproportionately, as well as taking into account the requirements specified in the charter. The basis for distribution is the duly executed protocol of the company's participants on the withdrawal of the participant.

How to certify documents with a notary and transfer them to the Federal Tax Service

If a decision has been made to withdraw a participant from the company, then a package of the following securities will need to be transferred to the tax office:

1. A statement drawn up in form 14001, reflecting the participant’s exit and distribution of his share.
2. Minutes of the meeting (if the distribution process and registration are carried out at the same time).
3. Founder's application for withdrawal.

Payment of a state fee and the provision of a receipt confirming this fact are not required in this case. When registering this type, the applicant must be the Director General. It is necessary to submit documents not later than a month from the moment when the organization received the application of the LLC participant to leave the company.

You can submit these securities to the tax authorities in several ways:

1. Personal transfer by the General Director or his representative (if he has an official power of attorney). This option is the most reliable.
2. Electronic. The main advantages of this method are convenience and high speed.
3. Through the mail service. It is important to send documents by registered mail. This option is the least popular, since it requires a significant investment of time.

In each of the above options, with the exception of submitting documentation in electronic form using electronic digital signature, it is important that the papers are notarized. To fulfill this condition, you need to transfer to the notary:

1. A statement expressing the desire of an LLC participant to withdraw from its composition.
2. Application in the form of 14001 (can be submitted unbroken).
3. A solution that involves the distribution of a firm's stake.
4. A recent extract from the register (its term for issuing should be no more than 5 days). Many notaries have the opportunity to receive statements online. Therefore, before a visit to a specialist should clarify with him whether it is necessary to prepare this document.
5. Charter of the company.
6. Passport of the CEO.
7. Evidence of registration, as well as state registration of the company.
8. Documents that can confirm the authority of the CEO. Such a document may be a decision on the appointment, order, agreement.

Receipt

After the employee of the Federal Tax Service accepts the documents, he will issue a receipt in their receipt.

To avoid trouble, at the time of receipt of this receipt, you must make sure that it contains the correct information. In this case, you must be extremely careful and check everything, including the number of pages.

Getting documentation

After the organization has submitted to the tax authorities all the necessary documentation, the employee of the Federal Tax Service will consider them and make the appropriate corrections to the Unified State Register of Legal Entities. After that, the representative of the LLC will receive:

1. Certificate confirming the introduction of corrections to the constituent documentation
2. Register record.

Documents can be picked up personally, as well as received by mail (to the address indicated in the application). The basic rule is to double-check all the specified information after receiving the indicated papers.

The process of informing counterparties and the servicing bank

The final stage involves notification of a change in the composition of the founders of partners, as well as the servicing bank. The legislation does not oblige to do this, but a contract usually contains such a rule. That is why, before carrying out registration actions, it is necessary to study the agreements concluded, since violation of their clauses gives the counterparty the right to demand early fulfillment of obligations and payment of compensation.

It is also recommended to notify the bank, which will have to amend the profile of the organization. This is especially important if the banking organization is the creditor of the company. In this case, a violation of the contract may cause the need for early repayment of the debt.

Main conclusions

Thus, when a participant leaves the company, the following rules and nuances must be taken into account:

1. The co-founder of the company is obliged to fulfill all its obligations before submitting an application for its withdrawal. Only in this case can the participant’s petition be granted.
2. To leave the company, the founder does not need to obtain the consent of its other participants. He can make a decision voluntarily and independently.
3. After sending the application to the executive bodies, it will not be possible to withdraw it or cancel its action.
4. Payment of a share in property terms is allowed, but only with the consent of the participant leaving the LLC.
5. The value of the share (amount payable) in the financial equivalent is the income of an individual, which means that it is subject to income tax.
6. Some agreements with partners and credit organizations contain provisions according to which the LLC is obliged to notify them that the composition of the company has changed. This must be taken into account and, if necessary, transmit relevant information to counterparties.

Conclusion

The withdrawal of a participant from society is a fairly simple process. The main thing that is required is attention when filling out the documentation. If you wish, you can carry out all the work yourself, otherwise you can take the help of qualified specialists.