What it is?
Transformation is a special type of reorganization, which is a change in the organizational and legal form of a company, while another legal entity is created, and the old one ceases its activities, the constituent documents and charter are changed, but all rights and obligations are retained after the procedure.
A significant difference from other types of reorganization, that is, merger, separation, accession, is that one legal entity begins to participate in the procedure and, as a result, one company is also formed .
The process has some features:
- From an economic point of view, the transformed organization is one and the same company, which has only changed its management structure and legal status, and no changes have occurred in other areas of the company’s life.
- From a macroeconomic point of view, such a reorganization is a neutral action in relation to capital, since there is no division or merger of the authorized capital of several companies. This nuance is the most significant difference. In other cases, assets and liabilities are either combined into one fund or divided among several organizations.
- From a legal point of view, during the transformation, a completely new enterprise is created, which is a complete successor to the obligations and rights of its predecessor. The book value of the property does not change.
There are two types of transformation:
- Voluntary . Carried out only on the initiative of the company owners. For example, the procedure can be carried out if the owners or founders come to the conclusion that the enterprise will operate most effectively in a different legal form. Most often, for this reason, an LLC is transformed into a joint stock company.
- Mandatory . It is carried out upon the occurrence of certain circumstances defined by law. There are several such cases: participants in a non-profit organization intend to conduct business, and it is transformed into a partnership or society;
- the number of participants in an LLC or CJSC exceeds 50 people, and it is necessary to reorganize the enterprise into an OJSC or cooperative.
Reorganization does not include a change in the type of joint stock company, for example, a transition from an OJSC to a CJSC. This action is recorded as a name change.
Regulation by law
The most important documents regulating the procedure are:
- Civil Code of the Russian Federation. The main types of reorganization, definitions, and features are established by Article 57 of the Civil Code of the Russian Federation.
- Federal Law No. 129-FZ of August 8, 2001 “On state registration of legal entities and individual entrepreneurs.” The procedure, necessary documents, nuances are indicated in Chapter V.
Other regulations establish some restrictions on the choice of legal form into which an existing enterprise can be transformed:
- LLC - into a partnership, a company of another type, a cooperative;
- private institution - to a foundation, non-profit organization, society;
- production cooperative - into a partnership, society;
- CJSC and OJSC - into LLC, non-profit partnership, cooperative.
When determining a new form, it is worth taking into account the requirements established by law for the amount of capital, the number of founders, etc.:
- A company cannot have one legal entity as its founder, which also has a single owner.
- The founder of a partnership must be registered as an individual entrepreneur if he is an individual.
- Minimum size of the capital: LLCs and CJSCs owe more than 10 thousand rubles;
- For OJSC this amount is equal to 100 thousand rubles.
- for partnerships - 2 or more;
Step-by-step registration instructions
The procedure occurs in several stages in a certain order. Actions of the founders:
- Making a decision on reorganization . At the general meeting of all owners of the enterprise, the following issues are discussed: conditions of transformation;
- exchange of shares of participants or contributions to the authorized capital of a future enterprise;
- the charter of the new organization is agreed upon.
- receive creditors' claims for repayment of obligations, draw up a register of counterparties, amounts payable, etc.;
draw up and sign reconciliation reports with partners;
Based on this data, the founders draw up and approve the transfer deed. The absence of a document is the reason for refusal of state registration of the reorganization. The act states:
- general information about the enterprise;
- income statement;
- gear balance;
- explanations.
After all these documents are completed, they are submitted for state registration.
- deregister with the tax office, the statistics body, and extra-budgetary funds;
You can find out more detailed information about the stages of the procedure in the following video:
Procedure for reorganization of a legal entity
- Merger (two or more legal entities turn into one);
- Accession (one or more persons join another);
- Division (one legal entity is divided into two or more);
- Separation (one or more others are separated from the legal entity, while the first one continues to exist);
- Transformation (a legal entity of one type is transformed into a legal entity of another);
The procedure for registering a reorganization for joint-stock companies and limited liability companies is similar, the only difference is that in the case of reorganization of joint-stock companies, it is necessary to go through the procedure for registering the issue of shares in the Federal Financial Markets Service (Central Bank), so we will consider it in general.
The reorganization of legal entities is regulated by the following legislative acts: Civil Code of the Russian Federation, Federal Law “On Limited Liability Companies”, Federal Law “On Joint-Stock Companies”, Federal Law “On State Registration of Legal Entities and Individual Entrepreneurs” and other norms.
Reorganizations of all types, except reorganization by merger, involve the creation of a new legal entity and, at the same time, the termination of the activities of the old one.
When making a decision to reorganize a company and select a form of reorganization, it is necessary to officially record such a decision to begin the procedure for reorganizing the LLC. At this stage, it is important to consider the following points:
- The decision to reorganize the company can be made exclusively at a general meeting of company participants.
- The right to convene an extraordinary general meeting of participants to consider the possibility of reorganizing a legal entity has the general director, board of directors or a company participant with a share of 10% of the total number of votes of the general meeting.
- The decision on any form of reorganization can be made exclusively unanimously by all participants of the organization.
- If the company consists of one participant, then the decision on reorganization is made by him alone and is formalized in writing in the form of a decision, but if there are several participants, then the minutes of the general meeting of participants are drawn up.
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
If the decision to reorganize is made by one person, then it is drawn up in the form of a Decision; if the decision is made by two or more founders, then a Protocol is drawn up.
1. Place of drawing up the document and date of the decision.
2. Full name of the person/persons who made the decision (possibly including passport details, but not required.)
3. Signature of the founder. There are many options for designing a Solution/Protocol; Internet search engines can help you.
The reorganized legal entity, within five working days after the date of sending the notice of the beginning of the reorganization procedure to the body carrying out state registration of legal entities, notifies in writing the creditors known to it about the beginning of the reorganization, unless otherwise provided by federal laws (clause 2 of article 13.1 of the Federal Law On state registration of legal entities).
Successor organizations assume all rights and obligations to creditors of the reorganized LLC, but creditors have the right to demand early fulfillment of obligations, and if this is not possible, then the termination of such obligations.
It is allowed to send a set of documents by registered mail with a list of attachments. Also, if you use electronic document management with the Federal Tax Service, you can transfer documents via the Internet using specialized software or from your personal account on the State Services portal.
On the 6th working day, the applicant personally or through a representative with a notarized power of attorney can receive documents on state registration:
- Certificate of state registration;
- One copy of the constituent document with the mark of the registering authority;
- Unified State Register of Legal Entities.
Documents can be sent to your address by mail.
Within Moscow, documents can also be obtained through DHL Express and Pony Express.
A number of features of this form of reorganization were noted above, but there are several more nuances that are worth paying attention to when planning the transformation.
The transformation procedure limits the possibility of changing the composition of the participants of a legal entity - until the reorganization is completed, it is impossible to leave the ranks of the founders or introduce a new one into it. Such an operation can be performed only after registering a new legal entity.
Reorganization in the form of transformation, in which succession is universal, does not exclude claims from tax authorities and other creditors. Even the presence of debt will not become an obstacle to the transformation procedure, but the debt obligation will be transferred to the newly created organization.
The reorganization of a joint-stock company in the form of transformation into an LLC is under special control. The joint stock company must notify the Central Bank of the cancellation of shares as a result of the transformation. At the same time, in relation to other securities, for example, bonds, the need for cancellation is determined by the general meeting, as well as the existence of creditor claims.
Reorganization by transformation is one of the options to change the format of doing business, which does not require serious financial costs, but involves taking into account a number of features of the reorganized and created business.
For the reorganization of legal entities, there are the following five forms (methods):
- merger - a form in which a new legal entity is created on the basis of the termination of the activities of several organizations with the transfer of all duties and rights;
- affiliation - a legal entity increases its assets through the infusion of several other organizations;
- division - a new enterprise is created by dividing a legal entity that is ceasing its activities into several small firms. A separation balance sheet is drawn up and the transfer of rights and obligations is carried out;
- spin-off - the company continues to exist, operates with reduced volumes, fewer participants, assets are reduced, and one or more firms are removed from its composition. According to the separation balance sheet, rights and obligations are transferred from the reorganized enterprise to each new company;
- transformation of a legal entity means a change in the legal form of the company. The new organization receives rights and obligations under the transfer deed.
All forms are divided into two categories, membership in which is determined by the will of the founders:
- division and selection;
- merger, transformation and accession.
Reorganization occurs at the will of the participants, founders, body authorized by the charter or without their will by decision of a state body vested with special competence. The reorganization period is established by decision. If the management bodies do not meet the deadline established by the decision, the authorized government body, through an appeal to the court, will appoint an external manager who will carry out the reorganization.
The external manager receives the rights of a body of the reorganized legal entity and is engaged in drawing up the separation balance sheet and constituent documents of the newly formed legal entities. The balance sheet and constituent documents are approved by the court, after which state registration of the new organization is carried out in the Unified State Register of Legal Entities.
The procedure for reorganizing a legal entity is carried out:
- in cases established by law;
- by decision of a legal entity with the prior consent of the authorized government body.
Reorganization happens:
- voluntary;
- forced.
The reorganization is considered completed after the state registration of new legal entities, with the exception of the form of merger of one legal entity with another, when the first of them completes the reorganization after entering information about the termination of the activities of the merged company into the Unified State Register of Legal Entities. In these forms of reorganization, obligations are divided by a deed of transfer or balance sheet containing provisions for succession of all debts, including disputed obligations.
The separation balance sheet or transfer act is signed by the participants, founders of the legal entity or the bodies that made the decision on the reorganization. The documents are provided to the state registrar along with the constituent documents when entering information about newly emerged legal entities into the Register and changing the constituent documents of existing legal entities.
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At their core, liquidation and reorganization are completely different concepts. Upon liquidation:
- the company's activities cease;
- there is no transfer of rights and obligations to another legal entity;
- the meeting of shareholders and founders makes a decision on liquidation;
- a liquidation commission is appointed.
During reorganization, the enterprise is degenerated: one legal entity is liquidated, and other companies appear in its place and are registered with the justice authorities.
Reorganization of a legal entity can be considered as a transaction or act of succession with a complex legal structure, which may include a merger or accession agreement, such a legal fact as a transaction.
The procedure for reorganizing a legal entity is as follows:
- participants, founders of the organization or the relevant government body make a decision on reorganization;
- a transfer deed or separation balance sheet is drawn up and approved;
- changes are made to the constituent documents of existing legal entities;
- constituent documents are created for new legal entities;
- placement of information in the official media, which publishes data on state registration of legal entities, on the beginning of the reorganization procedure.
Required documents
The legislation establishes a list of documentation required for submission to the tax service. To register the transformation, the following documents of the liquidated enterprise must be submitted:
- Application on form P12001. The document must be signed by the applicant. Provided for each emerging company.
- A set of documents of the reorganized organization. It includes:
- TIN;
- charter;
- extract from the Unified State Register of Legal Entities;
- OGRN certificate.
statistics codes;
Originals or notarized copies are submitted to the Federal Tax Service. Documents are provided in two copies.
For a newly created company, the following information is needed:
- full and abbreviated name;
- activity codes;
- legal address;
- size of the authorized capital indicating the form of payment;
- details of the manager, name of his position;
- data of the chief accountant;
- data of the founders indicating their shares in the authorized capital;
- information about the bank in which the account will be opened;
- The contact person.
If these documents and information are available, the tax authorities register the reorganization of the enterprise.
Does the TIN change?
From a legal point of view, during reorganization, the enterprise ceases to exist and a completely new company is created. In this regard, all company details are changing.
During the procedure, the taxpayer number of the converted company is removed from the register. In the future, this TIN will no longer be used. The newly created enterprise is assigned a different number .
If the legal form changes without reorganization, the TIN remains the same. For example, when an OJSC is transferred to a CJSC, no changes are made in the tax service register.
Features of reorganization in the form of transformation
After reorganization through transformation, the activities of the old legal entity are terminated and a new company is created. The company details are being changed. The assigned individual taxpayer number of the transformed company is excluded from the unified state register, after which the legal successor receives its TIN. If the legal form of a company changes without reorganization, the TIN does not change. For example, if a CJSC is formed from an OJSC, then no changes are made to the register.
The reorganization of a company, carried out in the form of a transformation, is considered from a legal, economic and macroeconomic point of view.
From a legal point of view, after the reorganization, a new company is formed, inheriting all the assets and liabilities of the old one.
From an economic point of view, the internal structure, management and organizational and legal structure of the created company changes, but all other areas of activity remain the same.
From a macroeconomic point of view, the company's balance sheet does not change, so the transformation will be a neutral process for it.
For business owners who would like to expand their activities and have reached the maximum number of participants, changing the organizational and legal form will be useful. But not in all cases, the transformation of the company will indicate the impending consolidation of the company.
Other nuances
Conversion is a rather complex procedure. There are a few more nuances, knowledge of which will allow you to carry it out without violations:
- The liquidated enterprise must draw up final financial statements as of the date preceding the day the reorganization was recorded.
- The new organization must provide introductory reports. It is compiled by transferring indicators from the final one.
- If an enterprise used a special tax regime, then after reorganization it can apply the simplified tax system or UTII only if it submits an application to the tax authorities.
- Small organizations wishing to switch to the simplified tax system or UTII can submit a corresponding application within five days from the date of creation.
- The duration of the procedure is approximately 2-3 months .
- To implement this, you can use the services of specialized companies.
Tax consequences of reorganization in the form of conversion
Art. 50 of the Tax Code of the Russian Federation guarantees to legal entities the observance of rights and legitimate interests by the state. When a company is reorganized, new tax obligations do not arise, but previously arising ones are also not canceled. In accordance with paragraph 1 of Art. 50 of the Tax Code of the Russian Federation, the burden of paying taxes passes to the legal successor. An exception may be cases that involve reorganization in the form of a spin-off, subject to certain reservations.
Taxes, in accordance with paragraph 2 of Art. 50 of the Tax Code of the Russian Federation, the successor will have to pay regardless of whether he is informed about the existence of debt to the budget from the old company or not.
Note!
All responsibilities that the original enterprise had are transferred to the successor, so it is not advisable to carry out this procedure deliberately in order to reduce tax payments.
Tax officials will not be able to fine the successor for the mistakes of its predecessor if no violations were discovered before the reorganization process.
A company that is subject to liquidation is required to prepare final financial statements as of the date that precedes the date of entry on the reorganization. The newly created legal entity is required to provide opening statements, that is, transfer accounting indicators from the final statements of the predecessor company.
After the transformation, the regime of simplified taxation or single tax on imputed income can be used only if the legal successor submits a corresponding application to the tax office. This must be done within five days from the date of creation of the company.
