ASSIGNMENT OF A SHARE IN THE AUTHORIZED CAPITAL OF A LIMITED LIABILITY COMPANY

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Published: 05/22/2020

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Currently, cases of transfer of a share in the authorized capital of a limited liability company or part of such a share are quite common. There are many reasons to carry out such a transfer.

The procedure for transferring a share or part thereof in the authorized capital
Pre-emptive right to purchase
Notice of intent to sell
Termination of pre-emptive right to purchase

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The legislative framework

A limited liability company is a commercial organization whose main purpose is to make a profit. In the course of the business activities of a company, situations may arise in which the property of one of the participants is transferred to another, for example, under a purchase and sale agreement, donation, inheritance, etc.

All issues regarding the transfer and distribution of shares are regulated by the following regulations:

Law 14-FZ “On Limited Liability Companies”.
Civil Code of the Russian Federation.

In addition, the procedure for distribution of shares is also regulated by the company's charter. In individual regions, the norms for the distribution of company shares may be different, but these differences are not significant. As a rule, the provisions of these documents are the same throughout the Russian Federation and only the procedure for documenting the relevant transaction is taken into account.

Procedure for alienation of shares

The features and process of alienation of a share are regulated by the norms of current legislation.

To alienate a share in the joint capital of a partnership, the consent of all members of the company and amendments to the constituent documentation are required.

The list of rights of a general partner includes the right to transfer his share - this is one of the ways to exit a general partnership. The share of a general partner may be alienated for consideration or free of charge.

The procedure for transferring a share, and with it a number of rights, must be reflected in the founding agreement of a general partnership, which will be the main document regulating the features and procedure of activity of a particular company.

Transfer of a share in the LLC to another participant

Based on Art. 93 of the Civil Code of the Russian Federation, the transfer of a share to other participants in the company is possible in the following ways:

by completing a transaction;
legal transfer of rights to a share;
in accordance with the provisions of the legislation on the transfer of rights.

The company's charter may contain the procedure for transferring shares. If such conditions are absent, then you should be guided by Law 14-FZ, which contains clarifications on the transfer of assets. For example, that a company participant has the right to assign his part of the authorized capital to another participant without obtaining approval from other persons. Moreover, it is also possible to divide it into several parts (Read also the article ⇒ Can an individual entrepreneur be the founder of an LLC).

Stages of share transfer in practice:

Stages of share transfer	What does the stage include?
Stage 1: Negotiations	At this stage, it is verified that the transfer of the share is possible. Participants check the charter to ensure that it contains the necessary provisions.
Stage 2: Concluding a deal	Transactions are subject to notarization. Without this, it will not be considered valid.
Stage 3: Notification of registration authorities	The Federal Tax Service must be notified that the share is transferred from one LLC participant to another. To do this, an application is submitted to the tax office to make appropriate changes to the register. 3 days are allotted for this.
Stage 4: Notification of participants about the transfer of shares	At the last stage, all participants in the company are informed about the transfer of the share. This can be done either by a notary or by one of the parties to the transaction.

The transfer of a share in an LLC to another participant is contained in the Civil Code of the Russian Federation, according to which this procedure is accompanied by the conclusion of an assignment or sale agreement. Some features should be taken into account:

The participant who transfers the share must pay the share contribution in full.
The LLC cannot influence the transaction. Obtaining consent to transfer a share is not required unless this is directly provided for in the company's charter.
The transaction must be certified by a notary.

To complete a transaction, you will need to verify the participant’s right to the asset. This fact is confirmed by an extract from the Unified State Register of Legal Entities. You will also need to confirm that the participant has paid his share of the capital. This can be done by payment order or certificate issued by the LLC. If the charter of an LLC contains a requirement for the consent of other participants in the company for this type of operation, then it will be necessary to obtain appropriate approval.

Important! After preliminary preparation for the conclusion of the contract, it is directly certified by a notary.

The assignment agreement is drawn up by a notary. Once he has certified it, the transaction will be considered completed. After this, the documents are submitted to the tax authority. This is done by the notary. In addition, the notary also notifies the company, represented by the manager, about the completed transaction . No additional actions will be required on the part of the former or current owner of the share.

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Internal issues of organizing the activities of a legal entity and corporate issues are regulated by the norms of the Civil Code of the Russian Federation, as well as specialized federal laws.

In relation to limited liability companies, such a law is Federal Law No. 14-FZ of February 8, 1998 “On Limited Liability Companies”.

The authorized capital in an LLC is the funds contributed by the founders of the company in order to ensure the minimum property of the company and guarantee the satisfaction of the interests of the company's creditors. The law currently sets the minimum amount of authorized capital at 10,000 rubles.

The founders and participants have the right to a share of the company's property in an amount proportional to the size of their share in the authorized capital.

However, there are cases when part of the authorized capital belongs not to the participants, but to the company itself. Such cases are defined in Article 23 of the Federal Law “On Limited Liability Companies”.

According to Art. 23 Federal Law “On Limited Liability Companies” in the event that the company’s charter prohibits the alienation of a share or part of a share belonging to a company participant to third parties and other company participants refused to acquire them or consent to the alienation of a share or part of a share to a company participant or a third party was not obtained person, provided that the need to obtain such consent is provided for by the charter of the company, the company is obliged to acquire, at the request of a participant in the company, the share or part of the share belonging to him.

If the general meeting of the company's participants makes a decision to carry out a major transaction or to increase the authorized capital of the company, the company is obliged to acquire, at the request of a participant in the company who voted against such a decision or did not take part in the voting, a share in the authorized capital of the company belonging to this participant.

In the above article of the Federal Law “On Limited Liability Companies” there are no other grounds for the company acquiring a share in the authorized capital; the list is closed.

Thus, in cases other than those provided for in Article 23 of the Federal Law “On Limited Liability Companies,” a share in the authorized capital cannot be transferred to the company, and participants cannot decide to transfer their share or part of it to the company.

A similar approach can be seen in paragraph 1.4 of the Review of judicial practice on disputes involving registration authorities No. 3 (2017), specified in the Letter of the Federal Tax Service of October 11, 2017 No. GD-4-14 / [email protected]

Attention! The information provided in the article is current at the time of publication.

Types of transfer of shares in an LLC

Important! The transfer of a share in an LLC to another participant can be carried out either free of charge or on a reimbursable basis.

The gratuitous transfer of a share presupposes that the parties enter into an agreement between themselves, register it in the prescribed manner and make the necessary changes to the Rosregister. Current legislation does not contain any prohibitions or restrictions on the owner of a share and allows it to be disposed of by gift or inheritance. In this case, approval from other members of the company will not be required. At the end of the transaction, you will need to inform all other participants that part of the authorized capital has been alienated.

When transferring a share for compensation, there are several possibilities for developing the situation:

transfer of a share to a third party (the size of the shares of other members of the company remains unchanged, but a new participant appears in the organization);
alienation of a share within the company (implies an increase in the share of one of the participants acquiring assets, which means an increase in interest and votes).

The company's charter may contain a ban on the sale of capital shares to third parties, or contain a requirement for the need to obtain consent for alienation from other participants. In this case, the parties to the transaction will have to comply with a certain notification procedure, otherwise the transaction may be canceled in court.

Transfer of a share in share capital as a way to terminate participation in a partnership

A general partnership is a legal entity operating on the basis of a constituent agreement. The company is engaged in commercial activities regulated by law.

The main feature of a partnership is the existence of joint and subsidiary liability of general partners.

The constituent documentation must indicate the composition and amount of capital of the legal entity, the timing and procedure for making contributions.

According to the norms of the Civil Code, all participants have a certain share in the share capital of the organization. The profit that a legal entity receives as a result of its activities is distributed in proportion to the shares.

Alienation of a share in the authorized capital is carried out only on the basis of the law, by a general decision of the meeting of general partners.

Article 79 of the Civil Code states that any community member has the right to transfer his share in the share capital. This action must be carried out with the consent of other participants in the partnership.

The share of one participant can be transferred to another person - along with part of the participant’s capital, part of the rights and obligations of the one who expressed a desire to transfer his share is transferred.

The person who received it is liable for obligations under the law.

The transfer of a share is a form of termination of membership in the society. Alienation of a share of capital at the request of one of the partners and its transfer to another participant in the legal entity entails certain consequences.

For 2 years after leaving the partnership, the person leaving the partnership bears subsidiary liability. Also, the former general partner must fulfill the obligations that arose before the transfer of the capital share.

Transfer of share to the company

According to Art. 23 of Law 14-FZ, if one of the participants leaves the company, then his capital goes to the LLC:

if the deceased LLC participant has no heirs or they refuse to accept a share;
there is a participant’s requirement to purchase his share (in the event that he does not have the opportunity to sell the share to third parties).

Such shares may remain among the assets for no more than 1 year. The subsequent fate of these assets can be decided in one of the following ways:

alienation of shares to other participants (if the charter of the LLC does not contain a prohibition in this regard);
redemption (reduction of the authorized capital) by the value of the share;
distribution of shares among all participants of the company.

One way or another, the further fate of the share that belonged to the previous member of the company must be decided at the membership meeting . Moreover, in this case, when voting, this share of the company will not be taken into account. Based on the results of the meeting, minutes are drawn up. If after a year a decision regarding this share is not made, the company is obliged to repay this part. If there is only one participant left in the LLC, then he will be assigned the responsibility to make a decision on the redemption of the share.

The process of transferring a share or part thereof

Each general partner owns a share in the joint capital of the legal entity. The rights of general partners to receive profit, corresponding to a share in capital, are protected by civil law.

Alienation of a share is a legal form of withdrawal from the company, but this does not negate the presence of subsidiary liability - it remains for 2 years after leaving the general partnership.

The transfer is carried out in accordance with the law and requires a decision of the meeting of partners - the participants must agree to the alienation of the share.

If the company's participants do not give consent, this decision is considered void. The process of transferring a share must be recorded in the constituent documentation, which will need to be changed after the exit of one of the partners.

Since only a meeting of shareholders can decide to make changes and implement them, the lack of consent of the meeting makes attempts to transfer the share impossible and unlawful.

The main thing in the process of transferring a share is the adoption of a certain decision by the general meeting of participants. After this, it is necessary to make changes to the constituent documentation.

With the transfer of a share, the former partner of the partnership transfers a certain amount of rights to another general partner. This can be done for a fee or free of charge.