Succession
Succession may arise in cases where a company has been reorganized, a merger, accession, or transformation has occurred. But at the same time, its organizational and legal form necessarily changed (OJSC became LLC, LLC became individual entrepreneur, etc.). Also, succession can be carried out on the basis of existing legislation.
For your information! The legal successor can be either a newly created legal entity or an existing one. This will depend on the specific situation.
The main thing is that the transfer deed is drawn up correctly.
Succession is universal. This is a situation when all property and non-property rights, obligations, services, contracts, etc. are transferred from one organization to another. This type is the most convenient. But sometimes circumstances arise in which the company is divided into two (three, etc.) separate ones. In this case, succession will not occur completely, it will be singular. All rights and obligations will be divided between the two emerging organizations in accordance with the drawn up separation balance sheet.
More details about these nuances can be found in Articles 128 and 59 of the Civil Code.
The legal successor upon liquidation of any organization should not be subject to any taxes. But if tax officials previously discovered violations, then no one canceled responsibility for these violations. Consequently, the legal successor will bear the penalty.
Thus, the succession of an organization can be evidenced by:
- transfer act (during liquidation, merger, accession);
- separation balance (during separation).
How to create an order?
There is no unified form of the order, so it can be drawn up in any form. But still, this document must contain the following conditions:
- establishing deadlines for all personnel activities;
- procedure for payment of severance pay and salary calculations.
The reorganization order is drawn up as follows:
- At the beginning, indicate the name of the document (for example, “Order on the reorganization of Lyudmila LLC”).
- Then write down the name of the locality and the date the order was drawn up.
- Next comes the stating part, which provides the rationale for administrative actions. It looks something like this: “In connection with the reorganization of the limited liability company “Lyudmila” in the form of accession to...”.
- After this, the administrative part begins with the word “I ORDER”. It may consist of several points, each of which must contain answers to the questions “who should do what and when.”
This order should take into account the following instructions:
- from what date should all employees of the reorganized company be considered working in the organization to which the merger was carried out;
- who and when to make changes to employment contracts, work books and personal cards of employees;
- the need to familiarize employees with the order before the expiration of a specific period.
Then you need to indicate the name and details of the document that became the basis for issuing the order. For example, a certificate of making an entry in the state register about the termination of activities as a result of reorganization.
The order is signed by the general director of the reorganized company.
Writing a letter
The letter is for informational purposes only and aims to massively notify business partners, banks and other institutions that the organization is someone’s legal successor.
The document begins with a header common to most documents. Ideally, the paper is printed on letterhead. But in most cases it is compiled by a newly created organization that has not yet had time to order their production.
For this reason, it is necessary not to lose sight of the fact that the letter at the very top of the page contains the name of the company that took part in the reorganization (merged, joined, etc.), its details: address, INN, OGRN, contact phone number.
Also at the top of business letters are placed:
- Information about the addressee. As specific information as possible about who the letter is sent to. If this is an employee of the organization, then you can simply indicate the position.
- Letter number. Required for inclusion in outgoing email logs.
- Date of preparation.
The main part must contain the following data:
- The name of the organization and what happened to it: liquidation, merger, merger or other type of reorganization.
- Legal address of the organization.
- Name of the successor organization.
- What actions are required from the addressee. This could be reworking documents, inserting certain plans into project documentation, etc.
If this is necessary, then indicate the details of the successor organization for accuracy in the documentation: legal address, INN, ORGN, KPP. The letter ends with the signature of the responsible person (general director), and, if possible, with a seal.
The meaning of the company name and documents containing it
The name of the company is one of the most important identifying indicators. It is mandatory to be included in the unified state register of legal entities - Unified State Register of Legal Entities (subparagraph “a”, paragraph 1, article 5 of the law “On State Registration ..." dated 08.08.2001 No. 129-FZ). As for the constituent documents, the situation is as follows:
- The name is included in the content (clauses 1, 4, article 52 of the Civil Code of the Russian Federation):
- the charter adopted by the founders of the company;
- constituent agreement of a business partnership;
- federal law on state corporations.
- The name is not included in the standard charter if the enterprise (institution) chooses it as its constituent act (clauses 2, 3 of Article 52 of the Civil Code of the Russian Federation). It should be noted that standard charters are currently in force, on the basis of which LLCs can operate, approved by Order of the Ministry of Economic Development dated August 1, 2018 No. 411.
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Add-ons
A business letter should be concise and well-reasoned. However, if the current situation requires it, this document may indicate whether the assignee has certificates of conformity for the equipment.
It is fundamentally important to send letters of such content to counterparty companies in advance. This way they will be able to adjust plans, agree on contracts, and draw up appropriate accounting reports.
If we talk about who should sign the document, then this should be the person from whom the letter was sent. In most cases, the upcoming reorganization of the company is known in advance. Especially if succession occurs by mutual agreement, with the drawing up of an agreement.
Features of the repeal of local regulations
According to Article 190 of the Labor Code of the Russian Federation, the internal labor regulations of an institution in most cases are an annex to a collective agreement concluded for a period of no more than 3 years and comes into force from the day it is signed by its head. It is also possible to enter from the date specified in the agreement in accordance with Article 43 of the Labor Code of the Russian Federation, therefore, if the institution has a collective agreement, the validity period of the internal labor regulations cannot exceed three years from the date of its signing or from the date established by the collective agreement . In a situation where there is no such agreement, the validity period of the internal labor regulations is not limited.
The originals of current LNAs are stored in the office, personnel department or other department. And departments that are guided by the provisions of a particular local act must have a copy of it, and the employee should always have the opportunity to familiarize himself with the LNA that is related to his work activity.
Also, the employer is obliged to preserve inactive LNA of the enterprise (storage periods are established by the List of standard management archival documents generated in the course of the activities of state bodies, local governments and organizations, indicating storage periods, approved by Order of the Ministry of Culture of the Russian Federation dated August 25, 2010 No. 558).
How to find out the legal successor
In practice, not all organizations consider it necessary to disclose that they are the legal successors of a particular company. And for partners this is a fundamentally important nuance of the relationship.
You can find out who received what rights and obligations by reading the following documentation (copies of which can be requested during business correspondence):
- The decision of the meeting of founders on reorganization (or the sole founder).
- The company's charter.
- Transfer deed or separation balance sheet. These documents must contain the full name of the successor company and information about it. Moreover, if there are several such organizations, it is possible to determine from the papers what rights and obligations are transferred from one company to another.
How to submit an application to the court
There are no special requirements for the procedure for filing such an application in court. You can send it on paper or electronically (Part 7, Article 4 of the Arbitration Procedure Code of the Russian Federation, Part 1.1, Article 3 of the Code of Civil Procedure of the Russian Federation).
You can submit a paper application directly to the court office or send it by letter with a list of attachments and a return receipt to the court address indicated on its website.
An electronic application can be sent through your personal account on the website https://my.arbitr.ru/ (when applying to arbitration) or https://ej.sudrf.ru/ (when applying to a court of general jurisdiction).
Liabilities
When reorganizing, it is not necessary to inform the company's creditors. According to the law, it will be enough to publish this information in the media. So creditor companies need to keep a close eye on possible reorganizations. This legal loophole has helped more than one company avoid paying off debt obligations. Lawyers often encounter this.
Fortunately, there are also honest organizations that write a letter about the legal succession of the organization in order not to put their counterparties in an uncomfortable situation.
Reason for drawing up the order for reorganization
In the course of its activities, the employer, for one reason or another, may carry out reorganization.
Reorganization means the termination of the existence of an employer with the transfer of its rights and obligations to other persons. The reasons for reorganization may be different, for example: simplification of doing business; release of new products; complete change of internal structure, etc.
According to Art. 57 of the Civil Code of the Russian Federation, the procedure for reorganizing an employer can be carried out in five forms : transformation, separation, division, accession, merger.
In Art. 75 of the Labor Code of the Russian Federation describes in detail the legal consequences for employees.
In accordance with Part 5 of Art. 75 of the Labor Code of the Russian Federation, reorganization of the employer or change in the type of state or municipal institution cannot be grounds for terminating employment contracts with employees. To maintain the employment relationship, the employee's consent is required.
In case of disagreement to continue working in connection with the reorganization, the employee is subject to dismissal in accordance with clause 6, part 1, art. 77 Labor Code of the Russian Federation.
We are introducing a new seal
Since the name of the company has changed, all its seals and stamps used in daily activities are also subject to replacement. Accordingly, it is necessary to develop and approve sketches of new seals/stamps, as well as dispose of old ones.
Sketches of seals and stamps can be developed
both by the organization itself (usually there is nothing complicated about this) and with the involvement of third-party specialists. Designers, as a rule, are called in when it is necessary to “fit” a trademark into a print or combine a complex image with text. After making the sketches, they must be approved by order (Example 2) and sent to the stamp manufacturer to translate the organization’s wishes into reality.
Order on the distribution of responsibilities for carrying out activities in connection with a change in the name of the organization
Procedure for renaming an organization
1. Making the necessary changes that certify the change in the name of the company to the constituent documentation of the legal entity. The decision is approved by responsible employees or bodies. There are 2 design options.
2. Entering information into the Unified State Register of Legal Entities. This requirement is stipulated by the Federal Law “On State Registration of Legal Entities and Individual Entrepreneurs”. The law stipulates that information on both the full and abbreviated name of the organization must be entered into the Unified State Register of Legal Entities.
- Application on form P13001.
- The decision to rename the organization.
- Amended or new charter.
- Receipt for payment of state duty.
Attention! Papers can either be submitted to the tax office yourself or sent by mail.
3. Making changes by tax officials to the Unified State Register of Legal Entities and issuing the corresponding certificate. From this moment on, the renaming of the company is a legal fait accompli.
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4. Obtaining new registration information from a number of organizations. These include the FSS, FFOMS and Rosstat, which is responsible for issuing new statistics codes. If the name of a joint stock company changes, the company is obliged to notify the Federal Financial Markets Service of the Russian Federation about this.
5. Notifying counterparties and banks involved in settlement services about changes in the organization’s details.
6. Obtaining licenses and permits in connection with the new name of the legal entity. Compared with the initial registration, the renewal of documentation is carried out according to a simplified scheme. Certificates of ownership of real estate and vehicles do not lose their validity. However, we strongly recommend that you re-register them.
7. Carrying out internal organizational work, which includes an order to rename the organization. Additionally, forms, seals, and concluded employment contracts are changed. Employees of the enterprise are notified of the new name.
