Nao joint stock company. LLCs as non-public companies. Certification of JSC decisions and maintaining the register of shareholders

22.09.2019

Still have questions about accounting and taxes? Ask them on the accounting forum.

Public company: details for an accountant

International holding companies: taxation features
This status is established for public companies and their subsidiaries... participation in one or more public companies that are Russian organizations. Up to... participation in one or more public companies recognized by the MHC. Required information... are public companies as of the dividend payment date. Let's take a closer look at the new norms. ... participation in organizations that are not public companies, more than 50% of whose assets... on the date of payment of dividends are public companies (clause 1.2 p...
On the issue of using foreign experience in reforming Russian audit
Also, the activities of managers and directors of public companies, i.e., the responsibilities are not... SOX establishes the responsibilities of the top management of a public company, expressed in the responsibilities of the general... of firms engaged in auditing the financial statements of public companies (SEC Practice Section, SECPS). ... Public Company Accounting Oversight Council ... audit organizations that audit the financial statements of public companies have become subject to registration upon...
Financial statement fraud. Overview of litigation for 2016
Preparation and presentation of financial statements by public companies. The number of such cases in... is prohibited from directing or being a director of a public company, he is subject to a fine... is prohibited from serving as a director or director of a public company for five years. ... reporting and auditing of public companies for the next five... for $1, to a public company listed on the New York... suspended from working for public companies. Presented overview of investigations and...
General and special income tax rates
Shares (stakes) of MHC, which are public companies on the day of the decision of such... of which such companies are registered, were public companies as of 01.01 ...
Reporting in XBRL format: preparation experience
I prepared the reporting of a large public company in XBRL. The main problem with... the USA, where since 2008 public companies have published reporting in XBRL format... US reporting in XBRL has been provided by public companies since 2008. However, disputes... according to IFRS in XBRL format. Public companies in the US have a lot of experience... everything will not break even. But for public companies whose securities are traded on... IFRS using XBRL. If public companies are interested in foreign...
Review of legislative changes for September 2016
Participation in one or more public companies that are Russian organizations. Such participation... participation in one or more public companies that are Russian organizations, which, in... or several organizations that are not public companies. In the case of mixed participation in... for the sequence in which the public company is present. At the same time, the participation share for...
Guide to tax amendments for medium-sized businesses. Winter 2019
Sovereign fund, Russian or foreign public company with shares/depositary receipts of more than...
Study of the current state and development trends of internal audit in Russia for 2017
Real estate– 1% Other – 9% Public companies – 50% Non-public companies – 50% With...
Briefly about the new “Russian offshores”
The dividend payment date must be a public company. C. Income from sales (other...
What the discussion of the bill on vesting the Bank of Russia with powers in the field of auditing showed
Enterprises are subject to mandatory audit only public companies Denmark. Absolutely...

In connection with the reform of corporate law, the classification of business companies, which has become customary over a fairly long period of existence, has changed. Now there are no JSC and JSC. They were replaced by public and non-public ones. Next, let's look at the changes in more detail.

New categories: first difficulties

So, instead of OJSC and CJSC, public and non-public companies appeared. The law changed not only the definitions themselves, but also their essence and characteristics. However, the categories did not become equivalent. Thus, a closed joint-stock company cannot automatically become non-public, just as an open joint-stock company cannot become public. The accepted wording of the norms can be interpreted in two ways. There are not enough explanations today, and judicial practice absent at all. It is therefore not surprising that companies may encounter difficulties in the process of self-determination.

Goals of the new classification

Why was it necessary to introduce public and non-public companies? The rules for regulating intra-corporate relations that existed for closed joint stock companies and open joint stock companies, according to the rule-makers, turned out to be insufficiently clear. The new classification should presumably establish differentiated management regimes for companies that differ in the nature of their turnover and shares, as well as the number of participants.

The essence and characteristics of software

Should be considered public joint stock company, in which shares and securities convertible into them are placed through open subscription or public circulation in accordance with the conditions established by regulations. The turnover is carried out within an indefinite circle of participants. Public society is distinguished by a dynamically changing and unlimited subject composition. Openness means that the company is focused on a wide range of participants. It is typical for a public society large number diverse shareholders. To maintain a balance of interests of participants, activities in such JSCs are regulated primarily imperative norms. They prescribe standard, unambiguous rules of conduct for corporate participants. The use of provisions that cannot be changed at the discretion of the dominant entities of the company guarantees the attraction of investment.

PO activities

Public companies borrow on the stock market from an unlimited number of persons. These corporations cover a wide range of diverse investors. In particular, software interacts with the state, banks, investment companies, collective and pension investment funds, and small individual entities. The activities carried out by public companies, as mentioned above, are regulated by imperative norms. This indicates relatively little freedom within the corporate organization.

The essence of BUT

A company that does not meet the criteria established by law for a public company is considered non-public. The specified criteria are given in Art. 66.3 Civil Code. BUT - corporations that place securities within a predetermined circle of entities. They do not go into open circulation. In addition, BUT are based on a low-current asset - shares of an LLC. Public and non-public companies differ in the mechanisms used to manage internal corporate relations. Thus, non-profit organizations can use a special subject composition of participants. They have greater freedom of internal corporate self-organization.

Features of the functioning of NO

Activities carried out by non-public companies are regulated primarily by dispositive norms. They allow the introduction of individual rules of conduct for company participants at their discretion. Non-public companies do not borrow on the share market.

Regulatory separation

Today, the border between imperative and discretionary management passes between JSC and LLC. The Civil Code reform has shifted it somewhat. However, according to some critics who analyze the order in which public and non-public joint stock companies exist today, there is some confusion when classifying them into any of the categories. However, there is another opinion on this matter. When corporations are included in public and non-public joint stock companies, the fundamental differences between the entities are not questioned. The features of the turnover of securities and shares are quite clearly expressed, which is the main feature for classification. The division into public and non-public societies is reduced solely to an attempt to form general modes management. At the same time, the expansion of the influence of dispositive norms does not apply to the features that distinguish the circulation of securities. Due to insufficient practice and the absence of a number of clear formulations, classifying some joint-stock companies as public and non-public companies is difficult.

Comparative characteristics

Public and non-public companies mainly differ in the method used to issue securities. How these procedures are carried out in NO and software is described above. Public offering of securities means alienation through open subscription. It is a way to increase volume authorized capital corporations. The software carries out paid placement of an additional number of shares during the issue process among an unlimited number of entities. The method of alienation of securities is included in the decision on their issue. This document is approved by the board of directors and is registered with the state market regulator. Previously, it was the Federal Financial Markets Service of the Russian Federation and the Federal Commission for the Securities Market of the Russian Federation. Currently, the state regulator in the market is the Central Bank of the Russian Federation. After registration, the document must be kept by the issuer. Based on the text of the decision, it can be determined whether an open subscription of an additional number of shares was carried out or not. Public and non-public companies also differ in the method of circulation of securities. Turnover is the process of concluding civil transactions. They entail the transfer of ownership of shares (securities) after their first alienation following their release by the issuer (outside the issue procedure).

The sign is open appeal. What does it mean? This term should be understood as the turnover of securities (shares) within organized trading. Public circulation can also be carried out by offering them to an unlimited number of subjects. Among the ways to implement this opportunity is advertising. These provisions are established in Art. 2 Federal Law No. 93, which regulates the functioning of the securities market. It should be noted that the circulation of shares can be carried out different methods. In particular, it may be a one-time event. In this case, the appeal has a time limit. This, for example, could be a sale at auction, to a wide circle persons Also, the appeal can have an unlimited duration. For example, this occurs when trading occurs on securities exchanges.

Federal Law No. 99-FZ, adopted on May 5, 2014, amended civil legislation regarding organizational and legal forms legal entities. On September 1, 2014, the new provisions of Article 4 of the first part of the Civil Code of the Russian Federation came into force:

This form of legal entity, such as a closed joint stock company, has now been abolished.
All business companies are divided into public and non-public companies.

Which companies are considered non-public?

According to the new rules, those joint-stock companies that place their shares among a strictly limited circle of persons and do not issue them for circulation on the stock market are recognized as non-public companies. LLCs that do not meet the criteria acquire a similar status.

Legislators believe that business organizations in the form of closed joint stock companies, in fact, are not joint stock companies, since their shares are distributed among a closed list of participants and may even be in the hands of a single shareholder. Thus, these societies are practically no different from societies with limited liability and can be converted into an LLC or a production cooperative.

Reorganization of a closed joint-stock company into a limited liability company is not required. A closed joint-stock company has the right to retain its shareholder form and acquire non-public status if it does not have any signs of publicity.

Amendments to civil legislation practically do not affect LLCs. According to new classification, these legal entities are automatically recognized as non-public. They are not assigned any responsibilities for re-registration in connection with the new status.

Non-public joint-stock companies

A non-public joint stock company is a legal entity that meets the following criteria:

the minimum amount of authorized capital is 10,000 rubles;
number of shareholders – no more than 50;
the name of the organization does not indicate that it is public;
The company's shares are not listed on the stock exchange and are not offered for purchase by public subscription.

The name and constituent documents of joint-stock companies must be brought into line with the current edition of the Civil Code of the Russian Federation, in particular, the word “closed” should be excluded from the corporate name of the joint-stock company. Changes in the title documentation can be recorded later, when scheduled amendments are made to it.

Recognizing a JSC as non-public provides it with much greater freedom in managing its activities compared to a public company. Thus, the former closed joint stock company is not obliged to publish information about its work in open sources. By decision of the shareholders, management of the organization can be completely transferred to the hands of the board of directors or the sole executive body society. The meeting of shareholders has the right to independently determine the par value of shares, their number and type, and grant additional rights to individual participants. JSC securities are bought and sold through a simple transaction.

All decisions of the JSC must be certified by a notary or registrar. Maintaining the register of shareholders of a non-public joint stock company is transferred to a specialized registrar.

LLCs as non-public companies

The activities of business entities in the form of an LLC are regulated by Art. 96-104 Civil Code of the Russian Federation:

the minimum amount of authorized capital is 10,000 rubles;
number of participants – maximum 50;
the list of participants is maintained by the company itself, all changes are registered in the Unified State Register of Legal Entities;
the powers of participants by default are established according to their shares in authorized capital, but can be changed if the non-public company has a corporate agreement or after introducing the relevant provisions into the company’s charter with recording of amendments in the Unified State Register of Legal Entities;
the transaction for the alienation of shares is formalized by a notary, the fact of transfer of rights is entered into the Unified State Register of Legal Entities.

Unlike the documentation of public companies, the information contained in the corporate agreement of a non-public limited liability company is confidential and is not disclosed to third parties.

With the entry into force of amendments to the Civil Code of the Russian Federation, registration of decisions of company participants must be carried out in the presence of a notary. However, there are other possibilities that do not contradict the law, namely:

introducing amendments to the charter that define a different method of confirming decisions of the meeting of LLC participants;
mandatory certification of the company's minutes with the signatures of all participants;
the use of technical means that record the fact of document acceptance.

Along with CJSC, the form of legal entities ALC (additional liability company) is also excluded from civil law circulation. According to the new rules, such organizations must re-register as non-public LLCs.

Perhaps in the near future we should expect further changes to the legislative norms regarding legal entities, since the laws on joint stock companies, on the securities market and limited liability companies, regulating the activities of JSCs and LLCs, still exist in old versions (without division into public and non-public companies).

On September 1, 2014, some changes to the Civil Code came into force Russian Federation. A division of joint stock companies into two types has emerged, based on the principle that organizations possess certain characteristics. The first type is public joint stock companies. Such organizations are more open. The second type is non-public joint stock companies; they are more closed, but their management system is less strict. Instead of the abbreviations familiar to everyone, new ones appeared, such as NAO and PAO. You can read more about public and non-public joint stock companies in this article.

Public joint stock company

This is the name given to those enterprises whose shares are publicly traded in accordance with securities laws. This could be an entry to the stock exchange, an issue for the purpose of generating income, etc. Also, the publicity of a particular joint stock company is determined by the fact that the charter documents state that the organization is open in one form or another. Control of such companies is more stringent due to the fact that they may affect the interests of third parties, because citizens can purchase shares of these organizations. For example, a supervisory board of five people must be present as a supervisory body. It should also be noted that all United Joint Stock Companies (JSC), based on the new legislation, are becoming public. Moreover, new changes in legislation provide for openness and transparency of data related to the owners of securities issued by PJSC. They also have a number of additional nuances and innovations, for example, a company will be considered public provided that the number of its participants exceeds five hundred. More detailed information is set out in the first paragraph of Article 66.3 of the Civil Code of the Russian Federation.

Non-public joint stock company

This is an enterprise whose participants are strictly defined, information about these persons is recorded at the time of creation of the organization. The innovation allows you to correct and make changes to the organization’s charter, form management bodies, influence the board of directors and shareholders’ meeting on various issues through voting. All closed joint stock companies, as well as some LLCs, will now be called non-public.

It is important to note the lower obligations in relation to the owners of securities that a non-public joint stock company bears. Responsibility to investors is less than in the case of open organizations. This is due to the fact that a non-public joint stock company has a limited number of securities owners, strictly limited by the charter documents. In simpler terms, participants are initially warned about all risks and possible losses. Often shares in such companies are not issued at all, and such enterprises are partly the result of privatization or a consequence of a unique management model with equity participation to delegate responsibility.

Changes in terminology in accordance with legislation

As stated above, all enterprises called OJSC are now called public joint-stock companies. The changes also apply to other organizational and legal forms. CJSC is a non-public joint stock company. The latter will also include some LLCs, but subject to the presence of the necessary characteristics.

In addition, all companies created before the legislation was updated do not have to undergo any re-registration procedures. This rule applies only if no adjustments are required to the registration data. For example, moving companies to another office or changing the type of activity may become the basis for a change in the organizational and legal form. It should be noted that the charter may have to be changed in accordance with new legislation if there is such a need. As for the new abbreviations in names, a non-public joint-stock company is abbreviated as NAO, a public joint-stock company is abbreviated as PJSC.

Information about securities holders

Both in the case of a public and non-public company, the register of shareholders must be maintained by an independent competent organization. Otherwise, there is a risk of receiving a fine and attracting additional checks on your company. This rule appeared in October 2013. Choosing a registrar company that will maintain the register of shareholders is a very important decision. Before accepting it, you should make sure that the company to which you entrust this task is quite conscientious, has good experience in this field and has been working for a long time. Otherwise, there is a risk of various problems and additional litigation. It is also recommended to look at clients similar companies. The more serious these companies are, the better for you. The decisions of all meetings must be included in the register by the company, which assumes responsibility for maintaining it.

Nominal capital

These are the funds of an enterprise formed through the issue of securities. They are also called authorized or share capital due to the fact that their size is indicated in the organization’s charter. This is the amount invested by the participants to ensure the statutory activities of the company. The amounts of these funds are recorded in the organization’s constituent documents in accordance with current laws. Based on the Civil Code, share capital is the smallest amount of funds guaranteeing solvency to creditors. The law provides for the possibility of increasing nominal capital. This is possible if at least two thirds of the participants vote for such a decision and in compliance with the laws provided for specific cases. Property may be contributed as funds to the share capital in the form of cash, and their equivalents in kind, for example in the form of property. In the case of depositing funds in another form or in the form of property rights, they are assessed using an independent examination.

Charter document of the NAO

When creating a non-public JSC, you must have various papers and completed forms with you. Charter of a non-public joint stock company - key document. It contains all the information about the organization, it tells about its property, participants and their rights, about the activities of the enterprise being formed, etc. In case of problems and disputes, the Charter will be a supporting document in legal proceedings. Therefore, it must be written in such a way that it does not contain loopholes and flaws that could be used in court against the organization. When drawing up the Charter, it is recommended to study in detail all legislative acts that are in one way or another related to the activities of the organization, or contact lawyers who have experience in this area or specialize in the development of such documents.

Charter document of PJSC

The charter in such enterprises is in many ways similar to a similar document of a non-public joint stock company. Exception - it must state that the organization is open. For example, the procedure for issuing shares, their circulation, listing on stock exchanges is specified, and the policy for paying dividends is prescribed. It may also prescribe the procedure for circulation and issue of other securities, but it must be possible to convert such bills into shares. In general, the Charter of a public joint stock company should be developed even more responsibly than in the case of a NJSC. This is due to the high potential responsibility and obligations to shareholders, which, in fact, can be anyone. This means that the risk of claims from various individuals and legal entities and government representatives in the case of a PJSC is much higher. Documentation development requires a responsible approach and the work of specialists.

Authorized capital of NAO

When forming the authorized capital, the supporting legal acts will be the Civil Code of the Russian Federation and Federal Law 208 “On Joint-Stock Companies”.

According to the Civil Code of the Russian Federation, these include organizations whose nominal capital is divided into any number of securities. Members of the company cannot incur losses or liabilities that exceed the value of the securities they own.

IN in this case When the authorized capital of a non-public joint stock company is considered, securities cannot be placed publicly. The share of bills belonging to the owner may be limited by the statutory documents. The number of votes that is granted to one holder of securities may also be indicated. In this case, the minimum authorized capital of the joint-stock company must be equal to at least one hundred minimum wages ( minimum sizes wages).

Authorized capital of a public joint stock company

In the situation with PJSC, rules similar to the previous case apply. The key acts will be latest editions Civil Code of the Russian Federation and Federal Law 208 “On Joint Stock Companies”.

The authorized capital of a public company consists of shares acquired by the owners at their original cost at the time of issue. The par value of the securities must be the same. Just like the rights of shareholders, which should be equal. The size of the authorized capital can either increase or decrease in accordance with the current market situation. This occurs through the issuance of additional securities or through the repurchase of own shares from large investors. The authorized capital must include at least 1000 minimum wages.

PJSC participants

In this case, the participants will be all owners of shares in the company. Any citizen of the Russian Federation who has reached 18 years of age can become a PJSC participant. Shareholders have no legal and financial liability for the actions of society, but only have some rights. For example, they may take part in general meeting and vote. The only ones possible losses owners of securities are associated with the value of shares or dividends.

NAO participants

The procedure for membership in organizations of this type is different from PJSC. Only participants of a non-public joint stock company will be founders. This is due to the peculiarities of regulation of such companies. The founders will also be shareholders, and their bonds do not extend beyond the boundaries of this organization. There cannot be more than fifty participants, otherwise the NJSC must be reorganized into a public joint-stock company.

Reorganization from one form to another

The legislation provides for the possibility of changing one organizational and legal form to another. Using the example of transforming a NJSC into a PJSC, we can highlight the following obligations arising before the organization:

Increasing the authorized capital to the required minimum (1000 minimum wage).
Development of documents confirming changes in the rights of shareholders.
Issue of shares.
Complete inventory.
Involvement of an auditor.
Development of a new charter and related documentation.
Re-registration in the Unified State Register of Legal Entities.
Transfer of property to a new legal entity.

Registration: public and non-public joint stock companies

The first step is to choose a legal form, public joint stock company or another type, in accordance with the needs of the organization being created. Next you need to prepare everything necessary documents: an agreement between the founders, if there is more than one person, then - documents on the types and types of shares, their value and quantity. Afterwards, a charter is developed, which includes:

The name of the organization in full and in the form of abbreviations; in the case of a public company, this should be reflected in the name.
Legal address.
Number and price of shares at par.
Types of shares issued.
Rights of shareholders owning one or another category of shares.
Cost of authorized capital.
Procedure for holding various meetings, voting and making decisions.
The powers and decision-making algorithm of management bodies are in accordance with current legislation.

Now you need to register the society with the local tax authority, in which one - depends on the city and region in which registration is made. It is necessary to fill out and provide all the required documents, have them certified by a notary and pay a fee. Registration will be completed within 5 working days. Next, you will have exactly 30 days to issue and register shares, and you will also need to select the company that holds the register of shareholders.

It should be noted that the process of registration and creation of joint stock companies is a very responsible decision. Problems with documentation and various forms can arise even when registering an individual entrepreneur, so you should not save on creating a future organization; if any difficulties arise, it is recommended to contact competent specialists in the tax, legal and financial spheres. The correctly chosen organizational and legal form is the first step towards successful business, and this choice should be made as thoughtfully as possible.

Civil Code of the Russian Federation Article 97. Public joint stock company

ConsultantPlus: note.

If, as of 07/01/2015, the charter and name of a JSC created before 09/01/2014 indicate that it is a PJSC in the absence of signs of publicity, such a JSC must register a share prospectus before 07/01/2020 or change the charter, excluding public status from the name (Federal Law dated 06/29/2015 N 210-FZ).

ConsultantPlus: note.

JSCs created before September 1, 2014 and meeting the criteria of a PJSC are recognized as such, regardless of whether this is indicated in their name. For exceptions to this rule and refusal of public status, see Federal Law No. 99-FZ dated 05.05.2014.

1. A public joint-stock company (clause 1 of Article 66.3) is obliged to submit information about company name society, containing an indication that such a society is public.

A joint stock company has the right to submit information about the company's corporate name, containing an indication that such a company is public, for inclusion in the unified state register of legal entities.

A joint stock company acquires the right to publicly place (by open subscription) shares and securities convertible into its shares, which can be publicly traded on the terms and conditions established by laws on securities, from the date of entering into the unified state register of legal entities information about the company's corporate name, containing an indication that such a company is public.

2. The acquisition by a non-public joint-stock company of the status of a public company (clause 1 of this article) entails the invalidity of the provisions of the charter and internal documents of the company that contradict the rules on a public joint-stock company established by this Code, the law on joint-stock companies and laws on securities.

3. In a public joint-stock company, a collegial management body of the company is formed (clause 4 of Article 65.3), the number of members of which cannot be less than five. The procedure for the formation and competence of the said collegial management body are determined by the law on joint stock companies and the charter of the public joint stock company.

4. Responsibilities for maintaining the register of shareholders of a public joint-stock company and performing the functions of the counting commission are carried out by an organization that has a license provided for by law.

(see text in the previous edition)

5. In a public joint stock company, the number of shares owned by one shareholder, their total par value, as well as the maximum number of votes granted to one shareholder cannot be limited. The charter of a public joint stock company cannot provide for the need to obtain anyone's consent to alienate shares of this company. No one can be granted the right of pre-emption to acquire shares of a public joint stock company, except in cases provided for