A subsidiary usually has status. Methods for creating subsidiaries and affiliates. Video: how to objectively evaluate the results of subsidiaries

If the activities of an LLC expand and profits increase, then often the managers of such a company decide to create subsidiaries. Based on the basic legislation regulating the activities of companies with limited liability(LLC), such companies can create subsidiaries and dependent enterprises, both on the territory of the Russian Federation and abroad. But it is worth remembering that if a subsidiary is created on the territory of a foreign state, it is necessary to comply not only with the legislation of the Russian Federation, but also with the legislation of the country where such an enterprise is created and registered.

What is a subsidiary LLC?

Affiliated undertaking is a society in authorized capital, of which another LLC has a dominant share. There is no precise definition of “predominant share” in the legislation. An enterprise can also be called a subsidiary if the main limited liability company has the ability “...to determine the decisions made by such company...”, or if this is established by an agreement concluded between the main and subsidiary enterprises. By general rule the subsidiary is an independent legal entity and is not liable for the debts of the main enterprise. But the latter in turn carries:

• Joint and several liability for those transactions carried out by the subsidiary in pursuance of the instructions and decisions of the main LLC;
• Subsidiary liability in case of bankruptcy subsidiary company occurred due to the fault of the main one.

Just like all other legal entities, a subsidiary must be registered in tax office and entered into the unified state register of legal entities. In this case, registration can only be carried out by the legal entity that created such an enterprise. Documents required for state registration subsidiary LLC, almost the same as for state registration of LLC, these are:

1. Application to the Federal Tax Service in form P11001;
2. The charter of the company being created, which contains all the same provisions as the ordinary charter of the company, in addition, it indicates that the company is a subsidiary of another LLC.
3. If there are several founders, then it is necessary to submit a constituent agreement or protocol with general meeting, at which the decision was made to create and register a subsidiary, the decision is made unanimously. If there is only one founder, the decision on creation is attached to the main package of documents. The agreement on the establishment of a company is not a constituent document;
4. A document confirming the state registration of the main LLC; this document is an extract from the Unified State Register of Legal Entities.
5. Confirmation of the legal address of the subsidiary (most often a lease agreement for non-residential premises is provided);
6. Receipt for payment of the state duty (the amount of the duty is also 4,000 rubles).

Creation methods, their pros and cons

Lawyers distinguish two main ways to create a subsidiary: establishment of a new organization or separation during reorganization.

First way. Each procedure has both its pros and cons. Obvious advantage in the form of creating a new LLC, are, first of all, timing. It takes on average about a week to register a new company. At the same time, the reorganization procedure takes an average of 3-4 months. It should be remembered that the reorganization is considered completed from the moment of state registration of the subsidiary community. Due to the fact that the terms of the reorganization are quite long, a problem arises with the transfer act because During the 3-4 months that elapse from the moment the application is submitted to the Federal Tax Service and until the corresponding entry is made in the unified state register of legal entities, the composition of the property may change significantly, some of the property may be lost, damaged or even sold. In this regard, the entire reorganization procedure may be declared invalid. In addition, while one reorganization procedure is being carried out, in the form of a spin-off, there is no possibility of carrying out another reorganization. And when creating a company, there are no restrictions; you can simultaneously register several new subsidiary companies, with the participation of the parent company in them.

It should also be remembered that when reorganizing a company, it is necessary to notify creditors about the reorganization procedure itself, and creditors can either prevent the reorganization procedure or demand early fulfillment of obligations. While it is impossible to prevent the creation of a new society.

Second way creation is the most popular in Russian Federation. But the choice of one method or another depends primarily on the operating conditions of the enterprise and the goals it strives for. For example, at legal entity there is a share of assets that are highly liquid and that need to be transferred to a subsidiary. IN in this case it would be more expedient to create a subsidiary by forming a new legal entity, because If a subsidiary is created through a spin-off, the transfer of such assets may be invalidated due to the relationship between the parties.

Specialists of the company "Ordin and K" will help you choose The right way creation of a subsidiary. We are ready to analyze the activities of your company and present the most profitable plan for creating a subsidiary.

"Daughter" or branch?

So what is the advantage of a subsidiary over a branch or representative office? In order to answer this question, you need to understand what differences there are between subsidiaries, branches and representative offices.

In accordance with the Federal Law “On Limited Liability Companies” dated February 8, 1998 No. 14-FZ, an LLC can open branches, representative offices, and create subsidiary LLCs.

Branch under this law, a separate division of a specific limited liability company is recognized. The branch must be located outside the company's location. He carries out all the functions of society or part of them. The branch is not a legal entity and operates on the basis of approved regulations. The branch does not have its own property. He is endowed with the property that created him by the society. The head of the branch is appointed by the LLC and acts on the basis of a power of attorney. The branch acts on behalf of the company that created it. The LLC itself is responsible for the activities of the branch. In addition, the company's charter must contain information about all branches.

Representative office a company is also recognized as a separate division of a limited liability company. In accordance with the above law, the representative office is also located outside the location of the company and carries out the following activities - represents the interests of the company and protects them. In other respects, the representative office is similar to the branch. The head of the representative office is also appointed by the LLC and acts on the basis of a power of attorney. The representative office is also not a legal entity and operates on the basis of approved provisions. The charter of the LLC must contain information about all representative offices.

A subsidiary has a number of differences from branches and representative offices:

• First of all, it is an independent legal entity, which is created in the same way as ordinary limited liability companies. This means that it has its own authorized capital, its own mouth, and is responsible for its debts independently;
• May engage in other activities provided for by the charter. Branches can only engage in the same activities as the main company, and the representative office only represents and protects the interests of the company;
• Next significant difference is that branches and representative offices act on behalf of the company that created them, while the subsidiary acts on its own behalf;
• The subsidiary is not liable for the debts of the parent limited liability company.

Based on all of the above, we can conclude that a subsidiary is in many ways more profitable than opening branches and representative offices. This is due to the fact that it is more independent in its decisions and actions. Responsible for obligations with his property, except for cases when the action was performed at the direction of the main company. In this case, it bears joint liability together with the subsidiary LLC.

Lawyers of the company "Ordin and K" can quickly, efficiently and for a reasonable fee prepare everything for you Required documents to create a subsidiary in any specified way. In addition, our specialists can draw up detailed step by step instructions to create a subsidiary, both through reorganization and the creation of a separate company.

Every entrepreneur, as well as founder, sooner or later has a question: to open a subsidiary or not? What is the difference between a subsidiary, a branch and a representative office? Does the parent organization really receive significant benefits when opening a reporting one? Let's take a closer look at these legal issues.

The parent company is...

A parent company is a founder that owns a controlling stake in a subsidiary (50% or more). In other words, this is the main economic society.

Here are some powers of the “mother”:

• Has the right to conduct certain operations and participate in the production of certain goods of a subordinate company.
• Implements organizational and economic principles of management.
• Develops specific goals, controls the direction and development of both the company and its divisions.
• She is responsible for the distribution of profits.
• This company controls not only its financial planes, but also their use in its divisions.
• Makes a decision on the liquidation or reorganization of a subsidiary.

In order to improve the performance of a subsidiary, the founder can carry out. This analysis reveals strengths and weaknesses financial activities business.

The subsidiary is...

A subsidiary is a branch of a large corporation with its own shares. When an established company gains momentum, there is a need to create subsidiaries. Since investments in the subsidiary are made by the main one, it also controls it in accordance with the concluded agreement. Most of the decisions made by the “daughter” come into force only after agreement with the maternal center.

The parent company is fully responsible for the subsidiary to the state regulatory authorities. It is mandatory to register a subsidiary in the manner prescribed by legislative acts. Successful interaction between “mother” and “daughter” is possible only if the subordination at work.

A subsidiary is a separate legal entity. In fact, it is engaged in independent economic activities. Personnel issues and marketing strategy V this enterprise is taken over by the leader. The set of rules establishing the order of work constitutes the mother center. But, according to the Charter, for decisions made The “daughter” is responsible. Well, capital management is the responsibility of the main organization.

Pros and cons of a subsidiary

TO strengths"daughters" include the following features:

• A subsidiary cannot be declared bankrupt because the entire responsibility for financial management lies with the parent company.
• The marketing strategy for subsidiaries is developed by its founder. This means that he is the guarantor of product quality. The situation allows you to use the reputation of the main company, its symbols, etc., which has been developed over a long time.
• The subsidiary company does not need to worry about calculations and budgeting, because the parent company handles the accounting.
• The parent organization is fully responsible for the expenses of the subsidiary and pays its debts.

The main disadvantages in organizational and legal relations that characterize a subsidiary:

• Deprivation of the opportunity for self-development and the introduction of rational proposals for broader activities, and as a result, dependence on the parent company. For example, when considering, a subcompany must take into account the opinion of the main one.
• Restrictions on the use and distribution of fixed capital, since this is done by the management of the main company according to a clearly defined plan.
• In the event of bankruptcy, the influence of the “mother” or branches dependent on it on the “daughter” up to the termination of the latter’s activities with the seizure of its funds to pay off debts.

Features of opening a subsidiary company

Why are such companies formed and what is required to open them? Here are the main goals:

1. “Subsidiaries” are often created for use by large corporations when various problems arise in the course of their activities. This is an opportunity to start a business with " clean slate”, without taking into account past debts. An additionally created organization can become useful in improving the administration system and getting rid of routine work.
2. The subsidiary company helps resolve issues with personnel selection and participate in the fight against competitors. The holding gains an advantage in the market by opening more subsidiaries.
3. “Daughters” also help a lot with development foreign economic activity. Concluding transactions with foreign counterparties will play into your hands (savings are achieved thanks to tax benefits). In many ways, the prosperity of a business depends on the ability to organize correctly. New contacts and connections (including abroad) - additional opportunities and results.
4. The creation of a subsidiary increases the stability of the parent company. This, in turn, provides an excellent chance to increase financial flows and investments, and rationally use assets and resources.
5. Sometimes a strategy is used in parallel with the opening of a subsidiary organization. This is an opportunity to engage in a new activity and reduce risks.

To achieve the above goals, the subsidiaries are given the following tasks:

• Improving the quality and, as a result, the competitiveness of manufactured goods or services provided.
• Attracting specialists to management bodies.
• Minimizing cooperation ties with the parent organization.

When opening a subsidiary company you will need:

1. Documents of the ruling and Charter of the subsidiary organizations.
2. A legally certified decision on Form P11001 to form a subsidiary.

Important: documentary evidence that is missing indicates the solvency of the founder.

Responsibility of the parent organization

At the legislative level, three cases of liability were previously provided for:

1. When the relationship between the parent and subsidiary companies was proven.
2. If the main organization obliges the subsidiary to take part in the transaction. This instruction had to be documented. In this case, both entities are subsidiarily liable to general obligations, which means that if adverse consequences arise, either of the firms must repay the debt to creditors.
3. If, as a result of the order of the parent enterprise, the subsidiary suffered losses and became bankrupt. In this case, subsidiary liability also applies. The parent company must repay part of the subsidiary's debt.

Thanks to innovations in the Civil Code of the Russian Federation, the rule for holding the main company liable for the debt obligations of its subsidiary has been simplified. That is, there is no need to prove the right of the parent company to give instructions to the subsidiary in the latter’s Charter or in the agreement between these two organizations.

How does a subsidiary differ from a branch and representative office?

Branch- a division of a legal entity that is located outside its territory and performs most of its functions, including the function of representation. It is entered into the unified state register, and in its activities it uses the property of the parent company and works on the basis of its provisions. A legal entity appoints branch managers who perform their duties in accordance with the provided power of attorney.

Representation- is a separate division of a legal entity that does not have legal status. Its function is to represent the interests of society and protect them. The principle of operation is in many ways similar to a branch: all actions are carried out with the consent of the legal entity, this also applies to the appointment of managers.

Distinctive features of subsidiaries:

1. The parent company exercises relative control over the subsidiary, grants it legal autonomy and thus influences decision making. In contrast, a dependent company does not have the right to make any decisions at all without discussion with the parent organization.
2. The “subsidiary” has the status of a legal entity, which is not typical for branches and representative offices. It means that similar company may be located on the main territory, which is excluded for branches.
3. A subsidiary can be in any legal form.

Thus, subsidiaries are more independent structural units, since they have more rights and powers, and also own property on a proprietary basis. Branches and representative offices have more limited business management capabilities.

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In general, opening a subsidiary organization has a number of advantages, but, on the other hand, it imposes legal liability. With a properly drawn up business plan, a subsidiary can significantly increase the company’s income and reduce risks. Such expansion of activities is enough interesting phenomenon, which deserves close attention.

Large corporations are opening new organizations in order to expand their business. They are called "children". The company's enterprise creates such own funds. It is responsible for their work to the state and regulatory authorities. Accordingly, the management of subsidiaries is carried out from the parent organization. However, such companies are not responsible for the work of the main corporation. Let us next consider what a subsidiary LLC is.

General information

A subsidiary is a legal entity. It must be registered in the manner prescribed by legislative acts. The formation of a new company is carried out by transferring part of the property to economic management. Acting as a founder, the main corporation approves the head of the organization and exercises the rights of the owner, as established by the relevant regulations.

Specifics

A subsidiary is an organization whose structure is identical to that established at the main office. The difference between the two is that the parent corporation has more rights and benefits. However, she also has more responsibility. One of the advantages of the main office is the ability to make administrative decisions regarding all activities of the open company. It is generally accepted that to fully participate in its activities you must own 3% of its shares. However, in practice this figure rises to 5%. Of course, a controlling stake (more than 50%) provides many advantages to the main corporation. At its core, a subsidiary is a separate division. Activities are controlled not only by the main corporation, but also by the state. All financial transactions are under close attention supervisory authorities.

Management

The main organization sends its employees to again open companies. The head of the representative office receives a seat on the board of directors. For example, Gazprom's subsidiaries operate on this principle. Employees of the main office can give orders and recommendations for promoting the business and for all activities of the organization as a whole. However, the right to make the final decision belongs to the head of the subsidiary.

Compensation for losses

In a number of cases, the established company begins to lose profits due to the illiterate policies of the main corporation. In such situations, creditors have the right to demand that the parent company repay the debt. Counterparties act similarly in the event of bankruptcy of an open organization.

Possibilities

A subsidiary is primarily a tool for business expansion. Due to the network of such organizations, the main corporation can significantly strengthen its position in the market. A large holding company undoubtedly has more weight than a single company. An example of this is the subsidiaries of Gazprom. One of the key tasks of such organizations is to identify potential competitors in the market. Often, single firms quickly leave the sector when a representative office of a large holding appears in it. In addition, a subsidiary may be formed to capture new market segments. To increase capital inflow, the corporation must look for new, more promising sites. This causes large corporations to actively enter international markets by opening representative offices abroad.

Advantages

Large corporations may face various challenges during the course of their operations. To solve some of them, an enterprise can create a subsidiary company. Often a corporation needs to improve its administration system and free itself from routine activities. The formation of a new organization may well contribute to the implementation of this task. At the expense of the subsidiary, such important problems as personnel selection and the fight against competitors are solved. The more such organizations a holding has, the more advantages it has in the market.

Subsidiary and parent company

The situation is considered quite normal when an organization formed by the main corporation becomes an independent company with separate property and own capital. Accordingly, it is not liable for the debts of the parent company, just as the main holding cannot be held liable for the obligations of the subsidiary. Meanwhile, the legislation still provides for a number of cases in which demands can be addressed to the main corporation. The parent company is liable when:

• the conclusion of the transaction took place on her orders (this fact must be documented);
• the subsidiary carries out the orders of the parent organization and is declared insolvent (bankrupt).

In the first case, settlement of obligations is carried out in full. In the second situation, the parent company repays only that part of the debt that the subsidiary is unable to pay.

Difference from branch

First of all, the subsidiary has legal autonomy. The branch is fully connected to the main office. This fact predetermines other differences. In this case, it often happens that the main corporation opens a subsidiary in one region and a branch in another. Both organizations will have the same goal. In this regard, in practice, most of the work of branches and subsidiaries does not differ much. The discrepancy between these organizations can only exist on legal grounds.

Features of creation

Before opening a subsidiary, it is necessary to develop a Regulation on its activities. Based on this document new organization will work. In addition, changes must be made to the charter of the main corporation. Applications must be sent to the registration authority in the prescribed forms. The formation of a subsidiary must be discussed at a general meeting. This matter must be entered into the minutes. The package of documents must be accompanied by the decision of the meeting on the creation of a new organization.

During the discussion, the head of the future company is determined. The prepared package of documents is certified by a notary and sent to the registration authority. The subsidiary company will be considered created from the moment the corresponding entry is made in the Unified Register. After this they decide organizational matters. The subsidiary must have the entire package of documents established for legal entities. The organization also needs to register with the tax office.

is a legally independent company created by the parent organization by transferring part of its property to it. A subsidiary cannot make most decisions without the consent of the parent company; therefore, they share responsibility for the consequences of these decisions. However, there is one aspect: the subsidiary is not liable for the obligations of the parent.

Why is a subsidiary formed?

The main goals of forming a subsidiary include:

• Increasing the level of specialization of a specific type of activity of the main company.

• The ability to more effectively and efficiently use the assets and resources available to the parent company.

• The opportunity to start business activities “from scratch,” that is, without the debts of the parent company.

• Minimizing risk through diversification (a subsidiary is developing a new type of activity).

It is believed that in order to achieve these goals (and to operate effectively in general), a subsidiary must:

• Strive to increase the competitiveness of manufactured products.

• Hire professional managers.

• Try to minimize cooperative relations with the parent organization.

Signs of subsidiaries

Subsidiaries have the following characteristic features:

• There is an element of legal influence (control) in the relationship between parent and subsidiary organizations. The presence of this element means that the parent company is to some extent able to influence the decisions made by the subsidiary.

• A subsidiary has the status of a legal entity, which distinguishes it, for example, from branches and representative offices. This status gives rise to a number of other features - for example, a subsidiary may be located in the same place as the main one, which is again excluded for branches.

• A subsidiary can have any of the organizational and legal forms.

• The legislation distinguishes between the concepts of dependent and subsidiary enterprises. If the subsidiary assumes the presence possibilities participation of the parent in decision-making, then the dependent company cannot decide anything at all without the consent of the main one.

Subsidiary management

Managers of the parent company do not have the right to directly manage the employees of the subsidiary - influence is exercised through the governing bodies of the subsidiary. The following is also important: any directive from the management of the parent company is only advisory in nature for the managers of the subsidiary and is implemented after their confirmation. However, as a rule, lobbying for such a directive is not difficult, since the representation of the main company in the governing bodies of the subsidiary is decisive.

The parent company does not have to be the owner of a large block of shares in the subsidiary in order to be able to influence management decisions– this possibility is provided for in a special agreement, which is signed upon the establishment of a subsidiary. The agreement governs the following aspects:

• The scope of powers of the head of a controlled company.

• The procedure for dismissing a manager and appointing a new one.

• The procedure for distributing profits of a subsidiary.

• The procedure for making a decision on liquidation or reorganization of a subsidiary.

Is the parent company responsible for the subsidiary?

The Civil Code defines two cases of liability of the parent company for the debts of a subsidiary:

• The debts arose due to the fact that the subsidiary complied with the directive of the parent company (supporting documents are required).

• Due to the fault of the main company, the subsidiary turned out to be insolvent.

A.A. Efremova,
advisor to the vice president
JSC Aeroflot-Russian International Airlines

1. Legal basis for creating a subsidiary

Currently, legislation allows for the possibility of creating a subsidiary in two ways - establishment again or reorganization *1. In the case of using the first method, a completely new subject of civil circulation appears, the rights and obligations of which did not exist at all before their emergence and, naturally, could not belong to anyone. Reorganization of an existing legal entity by spinning off a subsidiary is associated with legal succession, that is, newly created legal entities become legal successors of a previously existing entity, and therefore assume its rights and obligations. Here we cannot talk about the emergence of a completely new entity, since it already existed within the framework of the reorganized legal entity.

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*1 Here and further we will use the “Commentary to the Federal Law on Joint Stock Companies” (Institute of Legislation and Comparative Law under the Government of the Russian Federation, edited by G.S. Shapkina). - M.: BEK Publishing House, 1996

In the proposed material, the selection procedure is discussed using an example joint stock company, since this form is by far the most common. If there are other forms of legal entities among the participants in the reorganization, then this process will be regulated by its own legal acts (for example, for limited liability companies - Articles 54-55 of the Federal Law “On Limited Liability Companies”). On the issue of separation, all these acts contain almost identical provisions (with the exception of purely technical aspects, for example, the distribution of shares is replaced by the distribution of shares, etc.), therefore, from the point of view of accounting registration of the processes under consideration, the proposed material is of interest for any organizational and legal forms legal entities (commercial organizations).

The procedure for reorganizing legal entities through separation is determined by Art. 57-60 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation) and Art. 15, 18, 19 of the Federal Law “On Joint Stock Companies”.

When separating another company from one company, the separated company is vested with part of the rights and obligations of the main company. From the composition of the primary society one or more larger number society In this case, the reorganized company does not cease to exist and is not excluded from the state register.

The decision to reorganize a legal entity operating in the form of a joint stock company in accordance with Art. 48 of the Federal Law “On Joint Stock Companies” falls within the exclusive competence of the general meeting of shareholders and cannot be transferred for decision to the board of directors (supervisory board) or the executive body of the company. The initiator of a decision on reorganization (unless otherwise provided by the charter) can be the board of directors, and the decision itself is adopted by the general meeting of shareholders with a 3/4 majority vote of shareholders-owners of voting shares participating in the meeting. It is also necessary to take into account that, in accordance with the current legislation, in voting on this issue holders of preferred shares also participate (and have voting rights).

After a decision on reorganization is made, the company does not have the right to dispose of its main and working capital otherwise than transferring them to newly created legal entities.

The distribution of the rights and obligations of the reorganized company among its legal successors must provide for which claims of creditors must be satisfied by one or another of the newly formed companies. Here, abuses are possible related to the concentration of liabilities (meaning accounts payable) in one of the companies in order to relieve other companies from liability. To avoid this, creditors are given the right to demand termination or early fulfillment of obligations by the reorganized company by notifying it of their demands (Article 60 of the Civil Code of the Russian Federation). To do this, the body that made the decision on reorganization is obliged to notify in writing the creditors of the reorganized legal entity. The deadline for submitting claims by creditors is no later than 60 days from the date the company sends the notice of reorganization to the creditor.

This may lead to the fact that the reorganized legal entity will be subject to numerous requirements for early repayment obligations, and, as a result, its financial position may deteriorate significantly.

Shareholders of a company have the right to demand that the company repurchase their shares if the decision to reorganize the company was made without their participation or if they voted against it (Article 75 of the Federal Law “On Joint-Stock Companies”).

Among the creditors of the reorganized legal entity, the legislation also distinguishes the state, represented by its authorized bodies, therefore the taxpayer is obliged to notify about the upcoming reorganization tax authorities within ten days from the moment the decision on reorganization is made (Article 11 of the Law of the Russian Federation “On the Fundamentals tax system In Russian federation"). As a rule, in this case, a comprehensive tax audit of the reorganized company is carried out, the purpose of which is to establish the presence or absence of debt to the budget and target off-budget funds on obligatory payments, taxes and fees.

To carry out reorganization in the form of a spin-off, the reorganized joint stock company must submit the following documents to the state registration authority:

The decision of the general meeting of shareholders on the reorganization of the company in the form of separation, the procedure and conditions for the separation, the creation of a new company;

Constituent documents of the new joint stock company;

Separation balance.

Clause 1 of Art. 59 of the Civil Code of the Russian Federation establishes requirements for the content of the main documents regulating the transfer to newly created legal entities of part of the property, rights and obligations of the reorganized enterprise: “the transfer act and the separation balance sheet must contain provisions on the succession of all obligations of the reorganized legal entity in relation to all its creditors and debtors, including obligations disputed by the parties.”

The transfer act must include the entire set of obligations of the reorganized company, indicating the person to whom the corresponding rights and obligations are transferred. In addition, the transfer deed must include the following information:

On notification of creditors about the reorganization of the enterprise - date and form of notification (by mail with acknowledgment of receipt, by courier against receipt, etc.);

On the composition of the property, shortcomings identified in the transferred property; property encumbered with any obligations (transferred as collateral, in trust, etc.) is indicated separately.

The rights and obligations transferred by succession may include not only property rights, but also non-property rights (for example, rights to brand name, for use registered in in the prescribed manner trademark, etc.).

The day of signing the transfer act is recognized as the moment of transfer of the enterprise and the transfer of the risk of accidental death or accidental damage to its property. At the same time, the moment of transfer of an enterprise does not coincide with the moment of obtaining ownership of this enterprise, which is determined by the date of state registration of newly created legal entities.

The separation balance sheet is one of the documents that must be submitted to the registration authority for state registration of companies newly emerging as a result of reorganization. The separation balance sheet data is also the opening balance sheet data created as a result of the separation of a new legal entity. From the moment of creation, a legal entity newly created as a result of reorganization is endowed with property and liabilities, the value of which is transferred from the separation balance sheet to the balance sheet of the newly created legal entity as an opening balance. In this case, the separation balance sheet consists of the general balance sheet for the previously existing legal entity and the balance sheets of each new legal entity formed on the basis of divisions that were previously part of the previous legal entity.

The very content of the transfer deed and the separation balance sheet determines that their preparation can only be carried out after a complete inventory of the property and liabilities of the company subject to reorganization. When conducting an inventory, you must be guided by Methodological recommendations on inventory of property and financial obligations, approved by order of the Ministry of Finance of Russia dated June 13, 1995 N 49 “On approval Guidelines on inventory of property and financial obligations.”

Registration with the tax inspectorate of organizations created as a result of reorganization is carried out in accordance with the requirements of Section II of the instruction of the State Tax Service of Russia dated June 13, 1996 N VA-3-12/49 “On the procedure for registering taxpayers.”

2. Reorganization of the company through restructuring

In the process of reorganization, the status of a legal entity is acquired by an entity that previously existed “within” the reorganized company, and this fact does not necessarily have to be formalized internal regulations, that is, not only a registered division (branch, workshop, etc.), but also an unregistered one (production production) can be distinguished certain type, from a certain raw material, for a certain consumer, etc.), however, in the second case, the reorganization process will require much more preparatory work.

More preferable, from the standpoint of reducing the labor intensity of preparatory procedures and streamlining them, is the reorganization of the company through its restructuring, when separate structural divisions (representative offices, workshops, etc.) are identified that have the status of branches, that is, forming separate balance sheets and registered as independent taxpayers.

The reorganization procedure in this case will be carried out in stages.

At the first stage, the executive body of the joint-stock company, based on the reporting documentation (as of the last reporting date) for each allocated structural unit, conducts an inventory of property, rights and obligations, creates lists of debtors and creditors, and determines the estimated amount of the authorized capital of newly created subsidiaries. The amount of the authorized capital of a subsidiary is calculated on the basis of data on non-current assets (tangible and intangible assets, long-term financial investments), inventories and costs (including cash) contributed by the parent company to authorized capital new legal entities (based on the property that is on the separate balance sheet of the division at the time of separation). In addition, the executive body of the parent enterprise calculates the amount of net assets of newly created enterprises after the transfer to the latter of the remaining parts of assets and liabilities not included in the authorized capital, recorded on the separate balance sheets of the separated structural divisions.

At the second stage executive body The joint stock company is preparing to transfer part of the rights and obligations of the allocated structural units to newly created legal entities. In this case, the following activities are carried out:

1. The net assets of each subsidiary are finally calculated, taking into account changes in the balance sheets of the liquidated divisions as of the last reporting date.

2. Decisions are made to reduce (increase) the authorized capitals of subsidiaries. Reducing the size of the authorized capital if its value exceeds the value of the net assets is a mandatory procedure - state registration of a new legal entity is possible only if the amount of the authorized capital does not exceed the value of the organization's net assets. Increasing the authorized capital through additional placement of shares is a voluntary procedure and can be carried out if net assets exceed the amount of the originally registered authorized capital.

3. Preparations are being made for the transfer of the remaining part of the assets (accounts receivable) to the newly created subsidiaries (according to the balance sheet as of the last reporting date); final lists of debtors are compiled, whose debt is subject to transfer to new legal entities; an agreement is being developed on the transfer of creditor rights from the parent enterprise to the subsidiary (in accordance with the final lists of debtors).

4. Preparations are being made for the transfer of accounts payable of the parent enterprise to the newly created subsidiaries (according to the balance sheet data as of the last reporting date); agreements are being prepared on the payment by subsidiaries of a portion of the current (repayable) accounts payable of the parent enterprise, which was listed on the balance sheets of the relevant structural divisions before the reorganization; agreements are being prepared on the transfer (in agreement with the creditors of the parent enterprise) of the remaining part of the accounts payable of the parent enterprise to newly created legal entities.

At the third stage, the transfer of the remaining part of the assets and accounts payable of the parent company to subsidiaries is formalized. In this case, two situations are possible.

1. The registered authorized capital is greater than the net assets of subsidiaries:

An agreement is concluded on the purchase by the subsidiary company of its own shares from the parent company in order to reduce the authorized capital in accordance with the decision made by the owner;

In payment for the repurchased shares, the subsidiary assumes the obligations of the parent company to its creditors in accordance with clause 4 of the second stage.

2. The registered authorized capital does not exceed (less than or equal to) the net assets of the subsidiary:

An agreement is concluded on the acquisition by the parent company of shares of the subsidiary (to increase the authorized capital in accordance with the decision made by the owner);

In payment for the acquired shares, the parent company transfers the rights of the creditor in accordance with the concluded agreement (clause 3 of the second stage).

After carrying out the above activities and state registration of new amounts of authorized capital of subsidiaries business entities the process of transferring rights and obligations recorded on the separate balance sheets of the former structural divisions is completed.

3. Accounting registration of the creation of a subsidiary by establishing again

In connection with the entry into force of the first part of the Civil Code of the Russian Federation by order of the Ministry of Finance of the Russian Federation dated July 28, 1995 N 81 in the Chart of Accounts accounting financial- economic activity enterprises and the Instructions for its application, changes were made, in particular, to reflect the transactions we are considering, it was prescribed to use account 78 “Settlements with subsidiaries (dependent) companies.”

1. When establishing a subsidiary (according to the date of state registration of the newly created legal entity), an entry is made for the value of the property to be transferred:

2. When transferring property to a subsidiary (the type of property, the procedure for assessing its value and the timing of transfer to the subsidiary must be determined in constituent documents) by date actual transfer property records are made:

The transfer of property as a contribution to the authorized capital is formalized by generally accepted primary accounting documents- acceptance certificates, invoices, etc. (for example, when transferring fixed assets, all prescribed forms OS-1, OS-4, etc. are drawn up), on which the note “contribution to the authorized capital” is made. The absence of this mark may lead to some difficulties in the event of a tax audit of both organizations - difficulties in proving the fact that the property was a contribution to the authorized capital.

Accountants should pay special attention to the fact that the modern regulatory framework for regulating accounting (Accounting Regulations “Accounting for Fixed Assets” PBU 6/97) does not allow depreciation to accrue to the receiving party ( wiring D-t 01 K-t 02), that is, the initial cost of property for the subsidiary will be equal to its contractual value, defined in the constituent documents and re-recorded in primary documents on the acceptance and transfer of property.

Unfortunately, practice shows some typical mistakes allowed by accountants when registering the transfer of property as a contribution to the authorized capital:

At the transmitting side

Profit from the transfer of property as a contribution to the authorized capital is not included in account 80, but is included in deferred income (account 83), additional capital (account 87) or other accounts, which contradicts the current Instructions for using the Chart of Accounts and distorts reporting indicators of the volume of both balance sheet and taxable profit;

The loss from the transfer of property as a contribution to the authorized capital is not included in account 80, but is reduced equity(accounts 86, 87, 88), which contradicts the current regulatory framework (Instructions for the application of the Chart of Accounts, Regulations on accounting in the Russian Federation, Regulations on accounting of fixed assets PBU 6/97, etc.) and distorts reporting on financial performance indicators ;

At the receiving party

The receipt of property is carried out through capital investment accounts (account 08), which contradicts the current Instructions for using the Chart of Accounts and distorts reporting on the volume of capital investments;

The receipt of property requiring installation is immediately reflected in account 01, which forces installation costs to be included in the cost of production (violating the resolution on the composition of costs N 552) or in estimates for the use of own sources (funds), which in both cases underestimates the accounting value of fixed assets and distorts reporting on non-current assets and property taxes;

By calculation, value added tax is allocated from the value of the property received, which is then applied to settlements with the budget (account 68) or to the account of own sources (accounts 81, 86, 87, 88).

4. Accounting for the creation of a subsidiary through reorganization

When reflecting the reorganization procedure in accounting, you should be guided by section 2 of Order of the Ministry of Finance of Russia dated July 28, 1995 N 81 “On the procedure for reflecting in accounting transactions related to the entry into force of the first part of the Civil Code of the Russian Federation” (as amended and supplemented), in according to which the reorganization of legal entities is recommended to be timed to coincide with the end of a certain reporting period (year or quarter), and the transfer act and separation balance sheet must include accounting statements compiled in the prescribed manner, in the amount of the annual accounting report forms as of the last reporting date (date of reorganization ).

In Art. 218 of the Civil Code of the Russian Federation it is noted that “in the event of reorganization of a legal entity, the ownership of the property belonging to it passes to legal entities - the legal successors of the reorganized legal entity.” From the content of this article, a conclusion is often made about the need to use sales accounts (46, 47, 48) when reflecting transactions on the transfer of property from a legal entity being reorganized to entities newly created during the reorganization process, that is accounting registration The process of creating a subsidiary through reorganization is proposed to be carried out similarly to the case of creating a subsidiary through establishment again.

We allow ourselves to challenge this conclusion.

First. One of the significant differences between the above methods of creating a subsidiary is the fact that when a company is established, the new company forms its authorized capital from the contributions of its founders (that is, the value of the transferred property is equal to the value of the founder’s contribution). On the contrary, reorganization involves the division of all property and balance sheet currency between the parent and subsidiary companies, and the value of the property transferred from the parent company to the subsidiary, as a rule, significantly exceeds the size of its contribution to the authorized capital. The reason for this is clear: in the first case (institution), a fundamentally new legal entity is formed, the history of which begins “from scratch”, and the property - from the authorized capital formed by the amount of contributions of the founders; in the second case (reorganization) - on the contrary, the new legal entity only acquires the status of a legal entity itself, but at the same time has its own background “within” another legal entity, and therefore is endowed, in addition to the authorized capital, with a certain share of property in the creation and acquisition of which it took part and to which it was related as an integral part of the reorganized entity.

We present these arguments to prove the fact that the transfer of ownership of property from the reorganized entity to its legal successors has a purely legal meaning, but for accounting purposes we must be guided by the economic meaning of the operation (the requirement of priority of economic content over legal form), which in this case consists in the fact that the property does not receive a completely new owner (as is the case in the case of its alienation under contracts of sale, exchange, gratuitous transfer, etc.), but its ownership of the old owner is legally formalized , which only changes its status - from a part of a legal entity is registered as an independent legal entity. Therefore, despite the transfer of ownership, it is impossible to talk about the sale of property in this situation, which means there is no need to use sales accounts.

Second. After a decision is made to reorganize the company, it has no right to dispose of its fixed and current assets in any other way than to transfer them to newly created entities on its basis in accordance with the separation balance sheet, that is, transactions with other counterparties are terminated, with the exception of satisfying creditor claims. In other words, from the moment the transfer deed begins to be prepared and until the moment of complete separation, legal entities cannot conduct financial and economic activities in the generally accepted interpretation of this term, that is, operations for the division of property and obligations cannot be called either financial or economic. Turning to the preamble of the Instructions for the application of the Chart of Accounts for accounting the financial and economic activities of enterprises *1, it can be argued that operations for the division of property are not regulated by this document, that is, the division of property in the process of reorganizing an enterprise does not imply accounting entries, and therefore does not require use of property sale accounts (accounts 46, 47, 48). The division of the balance sheet of the reorganized society into two balance sheets is carried out purely mathematically (that is, one matrix is ​​divided into two, equal in amount).

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*1 “The chart of accounts is a scheme for recording and grouping facts of economic activity (financial, business transactions etc.) in accounting.

This position is confirmed by the fact that the Chart of Accounts and the Instructions for its application regulate the normal accounting process determined by the accounting policy of the organization, while one of the generally accepted principles of its formation is the assumption of continuity of activity of the enterprise (see the Accounting Regulations “Accounting Policy enterprise” PBU 1/94): “... the enterprise will continue its activities for the foreseeable future and it has no intention or need to liquidate or significantly reduce its activities...”. Since the intention of reorganization does not allow us to talk about the continuity of the organization, the normal accounting process must be replaced by extreme accounting procedures. The same is said in Federal law“On accounting” (Article 8): “Accounting is maintained by an organization continuously from the moment of its registration as a legal entity until reorganization or liquidation in the manner established by the legislation of the Russian Federation,” that is, it can be argued that the reorganization process interrupts accounting. In other words, the generally applicable accounting procedure in the form of an entry must be replaced by a specific accounting procedure in the form of an itemized subtraction of the separation balance sheet data, which can be illustrated following example(conditional figures), where the data in column 4 is determined by the difference between the indicators in column 2 and column 3 (the only exceptions are the lines of financial investments in the asset of the parent company and the authorized capital in the liability of the subsidiary, which increase by the same amount - by the amount of the authorized capital of the subsidiary company, the total balance sheet currency of the two companies increases by the same amount after the reorganization):

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*1 Reflection in the balance sheet of the parent company of a contribution to the authorized capital of a subsidiary as financial investments (i.e. on account 06) can be disputed, since confirmation of the presence of financial investments in shares is usually considered to be extracts from the registers of shareholders, which is obtained at the time of drawing up the separation balance is not possible. However, we consider it acceptable to consider a contribution to the authorized capital as a financial investment already at the time of reorganization of the company, since a transfer act can serve as confirmation of the presence of investments until the receipt of an extract from the register of shareholders.

However, if automated system accounting *1 or any other reasons require the division to be carried out using transactions *2, then for this purpose any conditional intermediate account can be used, for which it is not necessary to choose account 78 “Settlements with subsidiaries (dependent) companies”, but you can use internal accounts (00, XX, etc.) or unoccupied positions in the Chart of Accounts (49, 74, etc.).

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*1 We are talking about the accounting of a reorganized enterprise, since the newly created JSC “B” starts accounting “from scratch”, solely by entering data on opening balances without saving the history of previous entries in the accounting accounts.
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