Reorganization in the form of affiliation: consequences for the parties. Reorganization of an enterprise in the form of merger Possible violations of the reorganization process

With the advent of 2019, many significant changes have occurred in the legislation of the Russian Federation. Most globally, they affected the industry of reorganization in all five forms, including the form of affiliation.

Most of the innovations had a positive impact on the conduct of procedures under the new regulations.

Regulation of legislation as of 2019

The reorganization is carried out strictly in accordance with the Civil Code of the Russian Federation (Civil Code of the Russian Federation) part one.

Reorganization in the form of affiliation concerns the registration of legal entities, as well as individual entrepreneurs.

When putting this bill into effect, special attention should be paid to Federal Law of the Russian Federation No. 14. It includes the rights and obligations of a limited liability company, as well as the procedure for state registration of legal entities.

In addition to legislation, certain circumstances must be additional grounds for reorganizing the affiliation. Their list is clearly stated in Resolution of the Plenum of the Russian Federation No. 19, paragraph 20, for 2015.

The decision to carry out the reorganization depends entirely on the opinion adopted at the general meeting of representatives of each community. Failure to comply with the regulations in the organization of the enterprise’s work will be considered invalid.

Why is reorganization in the form of affiliation necessary, what changes does it bring with it?

The definition of reorganization is interpreted as a complete or partial replacement of the owners of enterprises, as well as a replacement of the organizational and legal forms of doing business. When replacing any of the divisions, the property is completely transferred to the next employees hired as a result of this bill.

Reorganization in the form of affiliation, in its functions, differs significantly. Instead of replacing business owners, one organization is created, which includes several separate firms.

This step is being taken in order to expand the existing business, increasing the financial situation of each enterprise, due to coordinated work and the absence of influence of the tax inspectorate on each company separately. When carrying out reorganization in the form of merger, all enterprises remain unchanged in the state register.

The reasons for carrying out this process may be criteria such as:

• the emergence of strong competition in the market, which can affect the trade statistics of other firms;
• purchase prices for raw materials;
• insufficient organization of the enterprise to produce high-quality final products;
• vision of further prospects for the modernization of manufactured products and a possible increase in demand specifically for their products.

Thus, based on the above information, we can conclude that reorganization can keep on the market those enterprises that have become practically unsuitable for the production of goods, with the aim of their further modernization.

Step-by-step instructions for reorganization in the form of affiliation in 2019

Reorganization in the form of affiliation is carried out in a certain order, which cannot be violated.

Taking into account all the amendments to bills and regulations of the Russian Federation as of 2019, the step-by-step instructions for conducting this event look like this:

1. 1. Step one is choosing a reorganization method by voting by all participants.
      There are only 5 methods, but in this article we are talking about a specific form - accession.

1. Step two - after determining the form, an agreement should be concluded between all owners of the enterprises whose merger is in question.
   The agreement specifies the rights and obligations of each party, the grounds on which the reorganization takes place and the conditions on the part of the state regarding taxation.
2. Step three is to notify those bodies whose register contains the data of the company and enterprise about the merger.
   Also notify extra-budgetary funds and the largest creditors.
3. Step four is to submit an announcement of reorganization in the state registration gazette.
   This procedure is repeated twice.
4. Step five is to collect a package of necessary documents.
   Their list includes documents of two categories: from the founders and from the company.
   The first category is also divided into two subcategories: the founder is an individual and a legal entity.
   The list itself is provided in table form below.

1. Step six is ​​to conduct a complete inventory of the property, recording each object in the register, having previously given it an inventory number.
   After describing the property in the form of a list, it is also necessary to draw up an act of transferring this property to the disposal of the new manager.
2. Step seven is to make a number of characteristic changes to the charter of the new managing legal entity.
3. And the last, eighth step is to receive a document from the controlling registration service stating that the procedure has been completed successfully and the rules provided for by the reorganization can come into force.

After receiving the document confirming the completion of the procedure, within 3 days it is required to send a written notification to the authority on behalf of the head of the enterprise, which made the decision on reorganization later than everyone else. After this, the changes will be entered into the register and subject to changes in the taxation of the combined organization.

Find out about further prospects for reorganization in the form of affiliation from the video.

Personnel issues

Since during the reorganization of an enterprise there is a complete replacement of not only the management team, but also most categories of workers, the question of the work of the department during this procedure becomes acute. When joining and merging, changing the composition is not a prerequisite.

Therefore, all employees remain in their positions; only their work charter can be changed due to economic and technical changes in the enterprise.

The HR department pays special attention to female employees at any stage of pregnancy. In this case, the employee cannot be dismissed under any circumstances, other than those specified in the work charter, or on his own initiative.

All workers, upon completion of the reorganization process, receive an act of agreement with a new employment contract and note this change in the work book. If an employee refuses an assigned position for any reason, he should notify new management.

In this case, the manager of the organization is obliged to give the employee a package of documents that indicate: a note about the reorganization process, the position offered to him and the conditions that the employee must fulfill in case of refusal of the employment contract.

Nuances of the procedure in 2019 that you should pay attention to

If the merging organizations are not cooperative, but are registered as an antimonopoly authority, additional requirements are imposed on them. They consist in the fact that such organizations must additionally obtain permission from the FAS.

According to the conditions of the legislation of the Russian Federation, when issuing a permit, special attention should be paid to those enterprises whose total assets exceed the mark of 7 billion rubles. The changes also apply to those institutions that carry out their activities with a license.

In this case, the company being merged with must re-register such organizations.

The state has set a time limit for resolving this issue, individual for each enterprise, depending on the current situation. Mainly, insurance companies, companies and factories specializing in the sale of alcoholic beverages, and companies engaged in communication services are subject to such changes.

Another nuance may arise when working with budgetary organizations.

This is due to the lack of commercial goals for enterprises of certain categories:

• educational (schools, technical schools, institutes, lyceums, etc.);
• cultural (theatres, museums, etc.);
• charitable (exhibitions, foundations);
• scientific (laboratories, research centers);
• social;
• health protection.

In this case, the reorganization is carried out in accordance with the established procedure of the Federal Law “On Non-Profit Organizations” No. 7, dated January 12, 1996.

Emerging violations during the reorganization process

This process is quite difficult, and, as a result, entails a group of possible violations that occur intentionally or unintentionally. One of such violations is considered to be the failure to include small joint stock communities in the list of organizations participating in the reorganization.

Thus, these enterprises are deprived of the opportunity to participate in this process.

The second, most common violation is the failure to notify a certain circle of shareholders within the period allotted by the state - 30 days. Also, due to the large number of obligations of shareholders and managers, their proper fulfillment is not always possible.

Violations by “state” institutions are also not uncommon. Such violations include persecution by the head of a government agency.

Such purposes are not mentioned when carrying out the reorganization, and, accordingly, such an organization is not subject to tax.

The most common reorganization problems

The problems of the reorganization mainly lie in the incorrect preparation of documents and violations of the allotted deadlines. Regarding documents, irregularities are often observed in the preparation of the inventory list.

Problems may arise in the future with unlisted property.

Frequent problems also arise when transferring personnel to new positions. When filling out documents, violations occur, during the proceedings of which the deadlines are significantly delayed, exceeding the permissible limits.

To avoid such violations, it is enough to familiarize yourself with the rules of the procedure before submitting an application for reorganization.

This way you can avoid fines and expired documents.

Find out about reorganization in the form of merger using the example of an LLC in the form.

In contact with

Due to ongoing changes in the Russian economy, it is becoming more difficult for many market participants to conduct their activities efficiently and without losses. The reasons can be different: the presence of stronger players, rising prices for raw materials, etc.

Therefore, many of them decide to join forces to create a larger enterprise that can survive in the current conditions and stay afloat. In addition, the reorganization is carried out in order to optimize taxation and management.

Existing methods of enterprise reorganization

Existing civil legislation provides 5 forms for reorganization of enterprises:

1. separation;
2. selection;
3. transformation;
4. merger;
5. accession.

Only the last two of them are suitable for merging organizations. Each has its own special rules for the order of implementation.

If merger is a procedure in which the organizations participating in it cease to exist, and all their rights and obligations are transferred to a new (created as part of this process) legal entity, then accession a slightly different phenomenon. This is a form of reorganization in which, out of several persons participating in the procedure, at the end only one (joining) remains, and the rest (joining) cease to exist.

I choose one or another form of reorganization, its initiators proceed from the circumstances of a particular situation, the need to preserve any of the participating companies, the complexity of the documentation, and, of course, the goal pursued by carrying out these procedures.

According to the Civil Code of the Russian Federation allowed when reorganizing, combine its various forms, as well as the participation of 2 or more organizations, including different organizational and legal ones.

It is no secret that mergers and acquisitions are carried out, among other things, in order to “liquidate” them. In this case, the process of affiliation is most acceptable, which is facilitated by the absence of the need to create a new organization.

If we calculate the time spent on carrying out reorganization actions in the form under consideration, we can establish that at least 3 months must be allocated for these procedures.

Various ways of reorganizing Joint Stock Companies are discussed in the following video story:

Mechanism of accession as part of the reorganization

This procedure is implemented through several stages.

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Making a decision on reorganization by each participant

Carrying out this stage depends on the OPF (organizational and legal form) of the enterprise. Thus, in an LLC, decision-making on this issue is within the competence of the general meeting of participants (GMS).

Thus, it is accompanied by the preparation, convening and holding of the General Assembly (as a rule, extraordinary). The said decision should not only determine the main conditions of the reorganization, but also approve the terms of the merger agreement, and if we are talking about the LLC being merged, then deed of transfer.

Notification of the registration authority (IFTS) about the start of the procedure

According to the requirements of the law, it is necessary to submit a notification in form P12003 and the corresponding decision on reorganization to the authorized bodies. At the same time, the law establishes a period for performing this action - no more than 3 working days from the date of the decision made by the last of the accession participants. It is the authorized representative of the latter, as a rule, who is the applicant when filing a notification.

Notification of creditors about the commencement of relevant procedures

In accordance with Art. 60 of the Civil Code of the Russian Federation, after the decision on reorganization is made, it is necessary to implement notification measures interested parties, namely creditors, government agencies, etc.

For this purpose (after registration by the tax authorities of a notification about the beginning of the process), a corresponding announcement is printed in special media (Bulletin of State Registration). This is done twice (periodically - once a month). It should be taken into account that the notice is published from all participants, those of them who made the decision last or who were assigned such a responsibility by others.

Conclusion of a connection agreement, inventory and transfer of property

In cases provided for by law, a merger agreement is required, which regulates all the conditions of the reorganization, including its procedure and consequences. To conduct this, a special commission is formed, which conducts it and prepares the relevant documents.

The reconciliation of settlements with the tax authorities of the reorganization participants and other necessary actions are carried out. These activities may precede the notification of the Federal Tax Service and interested parties about the reorganization of companies. In addition, it is preparing deed of transfer, according to which the assets and liabilities of the acquired persons are alienated to the acquirer.

It is also necessary to note that, for example, in relation to an LLC, a rule has been established according to which it is required holding a joint OSG companies participating in the merger, where a decision is to be made on making changes to the acquiring company as provided for in the merger agreement and on electing new members of the company’s bodies. This stage does not stand out as independent, however, its existence must be taken into account.

State registration of changes in the information of the Unified State Register of Legal Entities on the reorganization that took place

As part of the implementation of this stage, it is necessary to take into account that final registration of the merger is allowed no earlier than the moment when the deadline for filing complaints against decisions on reorganization expires, which is 3 months from the date of entry into the records of the beginning of the procedure. In addition, at least 30 days must have passed from the date of the last publication.

For registration introduce themselves:

• applications (form No. P16003 and form P13001);
• accession agreement;
• deed of transfer;
• decision to increase, amend the charter of the acquiring entity;
• changes to the charter;
• document confirming payment of state duty;
• statement (if changes need to be made regarding controls, etc.);
• other documents that may be required depending on the type of legal entity or the characteristics of its activities (for example, confirmation of changes in the issue of issue-grade securities, if any).

State registration period is no more than 5 working days. Traditionally, reorganization procedures are considered to be completed at this stage.

Solving personnel issues of enterprises

Important when implementing the connection are questions about personnel joining organizations. If possible, it is possible to transfer employees through dismissal and to the acquiring enterprise, or guided by Art. 75 Labor Code of the Russian Federation. Within the latter method, it is necessary to take into account that employees have the right to refuse to work in the acquiring organization, as a result of which they may be fired. In general, as a general rule, reorganization is not a basis for termination.

If it is not possible to accept the entire staff of the merging organizations, then a preliminary one must be carried out, otherwise, it will all go to the acceding one, and the latter will have to take measures to reduce the number of employees.

However, there are exceptions to the above rules, so the Labor Code of the Russian Federation provides that if the owner of the property of an enterprise changes (which actually happens upon merger), within three months from the date the new owner acquires rights, it is possible to terminate employment contracts with the managers (participants in the merger), their deputies and chief accountants, which is logical.

Some features of the procedure

The reorganization of certain categories of legal entities requires Additional requirements. Thus, antimonopoly legislation establishes cases when reorganization must be carried out with the prior consent of the relevant antimonopoly authority (FAS), for example, if amount of assets of all organizations participating in the merger will amount to more than 7 billion rubles.

If the specifics of the activities of the merging companies require availability of special permission (license), then the acquiring company has the right to carry it out only after re-issuance of licenses. This applies to insurance organizations, alcohol trade, communications companies, etc.
As a rule, the legislation establishes specific deadlines for re-registration of documentation after the completion of reorganization procedures. The affiliating organization may obtain a license if the conditions that are mandatory are maintained. Appropriate actions must be taken even if it already has a similar license, but, for example, for a different territory (if we are talking about organizing communications).

In a situation where as part of transferred assets there are results of intellectual activity, the rights to which are registered in the prescribed manner, it is also required to re-register to a new copyright holder.

Features of the enterprise reorganization procedure are discussed in this video:

Possible violations of the reorganization process

Issues related to cases where the reorganization was carried out in violation of the law are also important.

For example, decision on reorganization was adopted by the wrong governing body, or the rights of any participant/shareholder were violated. In these situations, there is a risk that the registration of the termination of the activities of the affiliated organizations will be invalidated.

It is also necessary to take into account that after the above decision was made by the court, the affiliating organization bears all the risks unreliability of information contained in the Unified State Register of Legal Entities, including compensation for losses caused to other persons as a result.

Consequences of violations of order obtaining FAS consent for reorganization will mean that the company can be liquidated or reorganized by a court decision (in the form of separation or division) if there is reason to believe that such merger has led or will lead to a restriction of competition, including the emergence of a dominant entity. And if consent was not requested, then those obligated to send petitions to the antimonopoly authorities will be subject to administrative liability in the form of a fine.

How to re-issue a previously concluded agreement during reorganization through the merger of an institution?

Answer