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Determination of the actual value of the property. Actual value of a share

When a participant leaves the LLC by alienating his share to the company, the company pays the participant the actual value of his share (clause 6.1 of article 23, article 26 of the Law of 08.02.1998 N 14-FZ).

The actual value of the share upon exiting the LLC

The actual value of the participant's share in authorized capital of the company is determined on the basis of the data of the balance sheet of the organization for the last calendar year preceding the day of submission of the application for withdrawal (, clause 1 of article 15 of the Law of 06.12.2011 N 402-FZ).

The actual value of the share is paid to the participant upon his exit from the LLC within 3 months from the date of occurrence of such an obligation for the company, unless another period is established by the charter of the company (clause 2, clause 6.1 of article 23 of the Law of 08.02.1998 N 14- FZ). If the deadline for payment of the actual value of the share is not met, interest may be charged on this amount for the use of other people's funds in accordance with Art. 395 of the Civil Code of the Russian Federation.

After the participant leaves the LLC, the company must notify the registering authority about this within 1 month from the date of the transfer of the share to the company (clause 7.1 of the Law of 08.02.1998 N 14-FZ, Article 17 of the Law of 08.08.2001 N 129-FZ ).

Actual value of a share: calculation

The actual value of the share of a participant in the company is determined as part of the value of the company's net assets, proportional to the size of the share of the participant and is calculated according to the formula (clause 2 of article 14 of the Law of 08.02.1998 N 14-FZ):

Actual value of the participant's share = Nominal value of the share / Share capital * Net asset value

The value of net assets is calculated according to the balance sheet according to the formula (clause 4, clause 7 of the Procedure approved by Order of the Ministry of Finance of Russia dated 28.08.2014 N 84n):

Net Asset Value = Assets - Liabilities

The composition of assets accepted for calculation includes non-current and current assets (section I and section II of the Balance Sheet), except for the debts of participants in contributions to the authorized capital (clause 5 of the Procedure

The composition of the liabilities accepted for calculation includes long-term and short-term liabilities (section IV and section V of the Balance Sheet), with the exception of deferred income generated in connection with the receipt of state aid or gratuitous receipt of property (clause 6 of the Procedure approved by the Order of the Ministry of Finance of Russia from 28.08.2014 N 84n).

Change in the par value of the share of a participant - an individual

In order to increase the liquidity of the business, many financial and industrial groups and holding companies are considering the possibility of making a decision to increase the authorized capital subsidiaries without changing the shares of participation. As a rule, the directors of the parent companies act as participants in subsidiaries. In this case, the par value of the shares of individual participants increases. Consider the tax consequences of a change (increase or decrease) in the par value of a participant's share.

The authorized capital of a limited liability company consists of the nominal value of the shares of the participants (clause 1 of article 14 of the Law on LLC<1>). Consequently, the share in the authorized capital of the company of each individual participant is formed at the expense of his contribution. Money can act as a contribution, securities, things or property rights that have a monetary value. The Law on LLC establishes the following methods for assessing the share of a participant - an individual in the authorized capital:

  • in the form of the par value of the share, determined in rubles;
  • the size of the share, defined as a percentage or as a fraction. It corresponds to the ratio of the par value of the participant's share and the authorized capital of the company;
  • the actual value of the share.

<1>Federal Law of February 8, 1998 N 14-FZ "On Limited Liability Companies".

As noted in paragraph 3 of Art. 26 of the LLC Law, the actual value of the share of a company participant is paid out of the difference between the value of the company's net assets and the size of its authorized capital. The algorithm for calculating the actual value of the share is as follows: the par value of the share is divided by the size of the authorized capital of the company, then the resulting indicator is multiplied by the amount of the company's net assets. The actual value of the share is determined on the basis of the company's financial statements for the year.

There are three ways to increase the authorized capital of an LLC - by:

  • property of the society itself;
  • additional contributions of its participants;
  • contributions of third parties accepted in society.

As already noted, the authorized capital of a company consists of the par value of the shares of all its participants, which means that a change (increase or decrease) in the authorized capital entails an increase (decrease) in the par value of the share of one or several participants. The foregoing does not apply to the situation when the authorized capital increases due to contributions of third parties, since this is associated with the admission of one or several new participants to the company and their contribution to the authorized capital, therefore, the nominal value of the shares of the old participants in the company does not change.

Increase in the par value of a share

With an increase in the authorized capital at the expense of the property of the company itself, the nominal value of the shares of all its participants at once increases. The size of the participants' shares remains the same. In this case, the source of the company's property is:

  • retained earnings of previous years;
  • additional capital in the form of the results of the revaluation of fixed assets (assets).

Let us consider what tax consequences an increase in the par value of his share at the expense of the company's property causes for a participant - an individual. If the value of the non-monetary contribution made to the society exceeds 200 minimum wages, then an independent appraiser must be involved.

Example 1... The nominal value of the share of an individual participant in the authorized capital of Alpha LLC is 150,000 rubles. Monetary assessment of the contribution made independent appraiser and approved by the participant of the LLC is equal to 200,000 rubles. and contributed to the charter capital of the newly created Beta LLC.

Cost of services for independent evaluation the par value of the share was 59,000 rubles, including VAT - 9,000 rubles.

In the accounting records of Alpha LLC, the following entries are made:

D 58 "Financial investments", sub-account 1 "Shares and bonds", - K 91 "Other income and expenses", sub-account 1 "Other income", - 50,000 rubles. (200,000 rubles - 150,000 rubles) - operating income from participation in other organizations is recognized;

Д 91-1 - К 76 "Settlements with different debtors and creditors" - 50,000 rubles. - accrued services for an independent assessment;

D 19 "Value added tax on acquired values" - K 76 - 9000 rubles. - VAT is allocated according to an independent assessment;

D 68 "Calculations of taxes and fees" - K 19 - 9000 rubles. - accepted for deduction from the VAT budget.

For the purpose of taxation of profits, income in the form of an excess of the par value of a share over its original size when contributing to the charter capital of Beta LLC is not taken into account when determining the tax base (p.

Truth in court: determination of the actual value of a share in the authorized capital of an LLC

3 p. 1 art. 251 of the Tax Code of the Russian Federation).

Now for the cost of the services of an independent appraiser. Is it possible to take it into account when taxing profits? For the purpose of calculating income tax, payment for the services of specialized organizations for property appraisal is taken into account as part of other expenses associated with production and (or) sale (subparagraph 40 of paragraph 1 of article 264 of the Tax Code of the Russian Federation). The date of these expenses, as in accounting, is the date of signing the acceptance certificate for the services rendered for property valuation.

Let us consider whether the taxable base for personal income tax arises for a participant - an individual with an increase in the par value of a share. According to Art. 41 of the Tax Code of the Russian Federation, income is an economic benefit in cash or in kind, taken into account if it is possible to assess it and to the extent that such benefit can be estimated.

Example 2... The authorized capital of OOO Metal-Service is 10,000 rubles. The company was created by two participants, their shares are 30 and 70%, respectively. The nominal value of the share of the first participant is 3000 rubles. (10,000 rubles x 30%), and the second - 7,000 rubles. (10,000 rubles x 70%).

The general meeting of participants of Metal-Service LLC made a decision to increase the authorized capital of the company to 100,000 rubles. due to retained earnings of previous years. After the increase in the authorized capital, the new par value of the participants' shares amounted to 30,000 rubles. (100,000 rubles x 30%) and 70,000 rubles. (100,000 rubles x 70%).

In the accounting of an LLC, the following is done:

D 84 "Retained earnings (uncovered loss)" - K 80 "Authorized capital" - 90,000 rubles. - the nominal value of the share of the contribution is reflected.

With an increase in the authorized capital at the expense of the company's property, there is no change in the shares of the participants, i.e. the participant does not receive any additional volume of rights arising from his ownership of the shares. Such an increase leads exclusively to a change in the structure equity capital organizations. Consequently, on the basis of the existing norms of paragraph 2 of Art. 211 of the Tax Code of the Russian Federation, it can be concluded that an increase in the par value of a participant's share does not lead to the latter gaining income in kind. An individual's income will arise only when he leaves the company (as the difference between the value of the share and the participant's contribution).

Specialists of the Ministry of Finance of Russia and tax authorities express the opinion that with an increase in the authorized capital from sources other than the revaluation of fixed assets, an individual gains income subject to personal income tax (see, for example, Letters of the Ministry of Finance of Russia dated April 28, 2007 N 03 -04-06-01 / 133, dated January 26, 2007 N 03-03-06 / 1/33, dated December 19, 2006 N 03-05-01-04 / 336, Federal Tax Service of Russia dated June 15, 2006 . N 04-1-03 / 318).

With regard to judicial practice, when considering disputes over the need to tax personal income tax on amounts of increasing the nominal value of the shares of the company's participants with an increase in the authorized capital, the courts come to the conclusion that individuals in such situations do not have income taxed with personal income tax (see, to for example, Resolutions of the FAS North-West District of April 23, 2008 in case No. A26-3819 / 2007, of the Thirteenth Arbitration Court of Appeal dated December 24, 2007 in case No. A26-3819 / 2007, FAS of the Ural District of May 28, 2007 . in case No. F09-3942 / 07-C2, FAS of the East Siberian District of July 25, 2006 in case No. A33-18719 / 05-F02-3629 / 06-C1). In the author's opinion, this position of the courts should be considered correct.

Decrease in the par value of a share

In accordance with Art. 20 of the LLC Law, a decrease in the authorized capital of a company can be carried out by:

  • reduction of the par value of the shares of all participants;
  • repayment of shares owned by the company.

Let's consider the second option first. By decision general meeting of the participants, the share within one year from the date of its transfer to the company must be distributed among the participants in proportion to their shares or sold to all or some of the participants in the company, as well as, if this is not prohibited by the charter of the company, to third parties. The unallocated or unsold part of the share must be redeemed with a corresponding decrease in the authorized capital of the company.

Example 3... The company acquired the share of the retired participant, but could not sell it during the year. The size of the share is 30%, the authorized capital of the company is 100,000 rubles, and the net assets are 130,000 rubles.

Let's determine the actual value of the share of the retired participant. It is equal to the product of the sum of net assets and the value of the share, i.e. RUB 39,000 (130,000 rubles x 30%).

The par value of the share, equal to the product of the authorized capital and the size of the share, will be 30,000 rubles. (100,000 rubles x 30%).

The balance of net assets less the authorized capital is equal to 30,000 rubles. (130,000 rubles - 100,000 rubles). Since it is not enough to pay the actual value of the share, it is necessary to reduce the authorized capital by 9,000 rubles. (39,000 rubles - 30,000 rubles). The company decided that the decrease in the authorized capital will take place by reducing the nominal shares of the participants. In the accounting of the company, the following entries are made:

D 81 "Own shares (stakes)" - K 75 "Settlements with founders" - 30,000 rubles. - reflected the debt on payment to the participant of the par value of the share;

D 81 - K 75 - 9000 rubles. - the difference between the nominal value of the share and the actual value has been taken into account;

D 80 - K 84 - 9000 rubles. - the authorized capital was reduced at the expense of nominal shares;

D 80 - K 81 - 30,000 rubles. - the share belonging to the company has been repaid;

D 91-1 - K 81 - 9000 rubles. - reflected the amount of excess of the actual value of the share over the nominal;

D 99 "Profit and loss" - K 68, subaccount Calculations of income tax "- 2160 rubles (9000 rubles x 24%) - a permanent tax liability is reflected.

Now about personal income tax. In the case under consideration, the decrease in the authorized capital is caused by the need to repay the shares, respectively, the participant who is an individual does not have any income.

Example 4... By decision of the general meeting of participants, Cementservice LLC changes the size of the authorized capital by reducing it by a total of 500,000 rubles. the value of the nominal shares of all participants without paying the difference to the participants. The following record is made in the accounting records of Cementservice LLC:

D 80 - K 84 - 500,000 rubles. - reflected the decrease in the par value of the shares without payment of the difference to the participants.

Let's change the conditions of the example. By decision of the general meeting of participants, Cementservice LLC changes the size of the authorized capital by reducing the value of the nominal shares of all participants, but with payment of the difference to the participants in the total amount of 500,000 rubles.

In the accounting records of the LLC, the following entries are made:

D 80 - K 75 - 500,000 rubles. - reflected a decrease in the par value of shares with payment of the difference to the participants;

D 75 - K 50 "Cashier" - 500,000 rubles. - paid to the participants the amount by which the authorized capital was reduced.

For members of the company - individuals who are paid part of the share, according to the Ministry of Finance of Russia, the entire amount received is income subject to personal income tax. One can agree with this conclusion. This is due to the fact that as a result of a decrease in the authorized capital of the company, individuals - members of the company will be paid cash in the amount by which the authorized capital is reduced, in proportion to the share of each participant.

In accordance with paragraph 1 of Art. 66 of the Civil Code of the Russian Federation, property created at the expense of participants' contributions, as well as produced and acquired by an economic partnership or society in the course of its activities, belongs to it by right of ownership. This means that the indicated funds will be paid by reducing the property of the company, i.e. property that is the property of the company, and not its founders.

Thus, when paying to the participant - to an individual monetary funds in connection with a decrease in the authorized capital of the company, the entire amount of income received is subject to taxation without the application of any deductions that reduce the tax base.

V.V. Zemskov

When evaluating shares for the purpose of redemption, the owner of the share raises many methodological issues related to individual formulations of legislation and a heterogeneous judicial interpretation.
Such issues include: accounting of the company's property for market value, application of discounts and premiums to the value of the assessed share and long-term financial investments, revaluation current assets, accounting for economic impairment, accounting for off-balance sheet assets and liabilities, as well as the company's goodwill.
These Guidelines are devoted to one of these issues, in particular, the use of discounts and bonuses.

METHODOLOGICAL EXPLANATIONS
on the application of discounts and bonuses when assessing the actual value of a share in an LLC

Word document, pdf.

1. These Methodological Explanations are intended for the preparation of appraisal reports, as well as the conclusions of forensic experts in order to establish the actual value of a share in an LLC when a participant leaves the company. Methodical recommendations have been prepared taking into account the established judicial practice.

2. The actual value of the share of a participant in the company corresponds to a part of the value of the net assets of the company, proportional to the size of his share.

3. In accordance with the generally accepted cost estimation methodology, the application of discounts and premiums can take place at two levels:

3.1. With regard to the assessment of the object of assessment itself (shares in the LLC, from which the participant leaves);

3.2. With regard to the assessment of blocks of shares and participation interests owned by the LLC, from which the participant leaves.

4. The total value of the value of the share in the LLC (clause 3.1), determined when the participant leaves the company, is calculated excluding discounts and bonuses.

5. When determining the size of the net assets of an LLC, the property of the LLC, including immovable and movable property, blocks of shares and participation interests, is taken into account at market value.

6. The market value of the shares and / or blocks of shares in companies owned by the LLC (clause 3.2) is determined taking into account discounts and premiums.

An analysis of judicial practice on the application of discounts and bonuses when assessing the actual value of a share in an LLC was prepared jointly with the VETA Expert Group.

Federal Law "On Limited Liability Companies" dated 08.02.1998 No. 14-FZ (paragraph 2, clause 2, article 14).

OVERVIEW OF JUDICIAL PRACTICE

1. With regard to the assessed share of LLC

No. p/ P

A source
(case number)

19AP-5853/2011

The defendant's argument about the need for an independent appraiser to apply a discount for lack of liquidity on a block of shares or a share in the authorized capital in the amount of 27% when determining the actual value of the share is based on an incorrect interpretation of the provisions of the Federal Law "On Limited Liability Companies", since the procedure for determining the actual value established by this Law share does not provide for the use of increasing and decreasing coefficients.

The court of first instance rightly indicated that the determination of the actual value of the share in the authorized capital of the company, taking into account the decreasing coefficients applied by the expert in the Report ( liquidity - page 81), contrary to the provisions of article 26 Federal law"On limited liability companies", which does not provide for the inclusion of any increasing / decreasing coefficients when determining the actual value of the share of a company participant.

…. the court indicated to the parties that when applying to expert organizations they pointed out the absence of primary accounting documentation, and also raised the question of the possibility, in its absence, to determine what is the actual value of the share in the authorized capital of LLC “Company SOYUZGLAVBUMPROM” in the amount of 50% as of (date), calculated in accordance with the order of the Ministry of Finance of Russia dated 28.08.2014, No. 84n, according to the financial statements of the company as of (date), without the use of increasing and decreasing coefficients(Resolution of the Supreme Arbitration Court of the Russian Federation of October 14, 2008, No. 8115/08), taking into account the market value of real estate objects owned by the company.

13AP-14171/2010

The appraiser's calculation of the market value of a 20% stake in the authorized capital of the Company does not correspond to the concept of the actual value of a share and cannot be applied in determining it, since no reduction factors and discounts are applicable to such a calculation.

This rule is contained in the Procedure for assessing the value of the net assets of joint stock companies, approved by the Order of the Ministry of Finance of Russia and the Federal Commission for the Securities Market of Russia dated January 29, 2003 N 10n / 03-6 / pz, which is applicable by analogy with law.

A similar position is reflected in decisions on cases: No. a55-3964 / 2016,11ap-3691/2017, No. a03-742 / 2015, f04-1771 / 2017, No. a43-14917 / 2015,01ap-2956/2016, No. a55- 14068/2015, f06-13246 / 2016, No. a26-2135 / 2014,13ap-5233/2015, No. A62-1333 / 2011, No. A56-16827 / 2009, No. a53-1159 / 2008,15ap-8424/2008.

  • Resolution of the Plenum of the Supreme Court of the Russian Federation No. 90, Plenum of the Supreme Court of the Russian Federation No. 14 dated 09.12.99 “On some issues of the application of the Federal Law“ On Limited Liability Companies ”-“ 16. When resolving disputes related to the withdrawal of a participant from the company, the courts must proceed from the following: …… c) ……. Based on paragraph 2 of Article 14 of the Law, the actual value of the share of a participant must correspond to the part of the value of the company's net assets, proportional to the size of his share ";
  • Federal Law of 08.02.1998 No. 14-FZ "On Limited Liability Companies" - "2. ……. The actual value of the share of a participant in the company corresponds to a part of the value of the net assets of the company, proportional to the size of his share ";
  • Resolution of the Supreme Arbitration Court of the Russian Federation of October 14, 2008 No. 8115/08 - “Canceling judicial acts of the courts of first and appellate instances and partially satisfying the claims, the court of cassation proceeded from the procedure for determining the actual value of a share established by Article 26 of the Federal Law, not involving the use of increasing and decreasing coefficients applied by experts.

    How to calculate the actual value of a share

    The use of increasing and / or decreasing coefficients entails an unjustified increase / decrease in the value of the shares of the company's participants remaining in the company after another participant leaves it. … .. The court of cassation, when determining the size of the actual value of the share, reasonably proceeded from the provisions of the Federal Law that the value of the share of a participant in a company corresponds to a part of the value of the company's net assets, proportional to the size of its share ";

  • Determination of the Supreme Court of the Russian Federation of 13.04.2016 N 307-ES15-13470 in case N A26-10818 / 2012 - see below.

2. With regard to the valuation of property owned by LLC

No. p/ P

A source
(case number)

As follows from the practice of applying the provisions of the Law on Limited Liability Companies concerning the payment of the actual value of the share to a participant in the company, as well as from the position of the Supreme Arbitration Court Russian Federation on this issue, set out in the resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 07.06.2005 N 15787/04, the actual value of the share of the company's participants should be determined taking into account the market value of fixed assets, both movable and immovable property, reflected in the company's financial statements.

А14-8348 / 2010, 19ap-5853/2011

Argument the applicant of the appeal that the determination of the actual value of the shares of the participants in the company based on the market value of the real estate owned by the defendant is not provided for by the legislation, is subject to rejection by the court of appeal.

Taking into account the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 06.09.2005 No. 5261/05, the uniformity of the established judicial practice, the actual value of a share in the authorized capital of a company upon withdrawal of its participant is determined taking into account the market value of real estate reflected in the company's balance sheet.

А53-1159 / 2008, 15AP-8424/2008

In addition, the Regulation on accounting "Accounting for inventories" PBU 5/01 "provides for a decrease in the cost commodity stocks in cases where their sale at the actual cost reflected in the financial statements is impossible due to obsolescence or physical damage. The expert calculated the cost of illiquid and low-liquid products at the cost of waste paper, i.e. stated the impossibility of its implementation. However, according to the data of the expert opinion, from 01.04.2007 to 01.01.2008 the Company sold 11,594 units of illiquid products. The given data refutes the expert's conclusions.

A similar position is reflected in decisions in cases: No. a03-742 / 2015, f04-1771 / 2017, No. A43-19822 / 2016, No. A41-3226 / 2014, A62-1333 / 2011, No. A47-2936 / 2009, No. a32 -47374 / 2009,15ap-9510/2010

In the reasoning part of the decision, the courts refer to the following regulatory legal acts:

  • Determination of the Supreme Court of the Russian Federation dated April 13, 2016 No. 307-ES15-13470 in the case
    № А26-10818 / 2012 - “By canceling the judicial acts of the courts of first instance and appeal, the district court indicated that the courts' conclusions regarding the calculation of the value of a share are based on the correct application of substantive law. At the same time, the provisions of the Law on Limited Liability Companies cannot be applied when determining the size of the company's net assets, taking into account the market value of its property in the form of a block of shares. The norm of paragraph 2 of Article 14 of the Law on Limited Liability Companies not applicable in determining the market value of property limited liability company in the form of a block of shares or a participation interest in another business company. Limited Liability Companies Law does not exclude the possibility of using correction factors when determining the market value of property owned by a limited liability company in the form of a block of shares joint stock company... Conclusions excluding the use of such coefficients in the current jurisprudence, including in the above decision of the Presidium of the Supreme Arbitration Court of the Russian Federation, is not contained. On the contrary, the use of such ratios when determining the market value of blocks of shares is a common practice and corresponds to the prevailing conditions of business turnover ”;
  • Resolution of the Presidium of the Supreme Arbitration Court dated 06.09.2005 No. 5261/05 - “In satisfying the stated requirements in part, the courts were guided by the fact that the determination of the actual value of the shares of the participants in the company based on the market value of the real estate owned by the defendant was not provided for by the legislation. Meanwhile, this conclusion of the courts is based on an incorrect interpretation of paragraph 3 of Article 26 of the Law on Limited Liability Companies. Within the meaning of the aforementioned norm, the actual value of a share in the authorized capital of a company upon withdrawal of its participant is determined taking into account the market value of immovable property reflected on the company's balance sheet ”;
  • Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of 17.04.2012 No. 16191/11 - “The court of appeal, resolving this dispute, took into account the explanations given in paragraph 16 of the resolution of 09.12.1999 No. 90/14, the established judicial arbitration practice of applying paragraph 3 of Article 26 Of the Law on Limited Liability Companies, formed in the resolutions of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 06.09.2005 No. 5261/05 and dated 26.05.2009 No. 836/09, in accordance with which the actual value of the share in the authorized capital of the company upon withdrawal of its participant is determined taking into account the market value of real estate, reflected in the balance sheet of the company. … In such circumstances, the appellate court reasonably satisfied the claim made by the plaintiffs… ”.

The Association will continue to work on the above methodological issues.

2 participants left the company. It was decided to distribute the share of the withdrawn participants to the remaining participant. Reflection on accounting accounts and documentary registration.

Question: An explanation of the situation is urgently needed: 2 participants left the company. with the payment of the actual value of the share in monetary equivalent, distribute the share of the withdrawn participants to the remaining participant, a protocol was drawn up. There are notarized statements. What kind of bookkeeping you need to draw up specifically for this situation and how to determine the actual share. The authorized capital is 10,000 rubles.

Answer: The intrinsic value of a share is a share of net assets. To calculate the actual value of a share, there is not enough data on the authorized capital, but data on net assets are needed. For most organizations, the value of NA is equal to the total for section III of the Balance Sheet “Capitals and reserves”. This value must be taken from the financial statements.

It follows from the arbitration practice that if the statements of withdrawal were submitted to the Company in July, then it is necessary to draw up interim reports for the period 01.01.2018 - 31.06.2018 and, on its basis, calculate the value of net assets for settlements with participants.

So, in the ruling of the Seventh Arbitration Court of Appeal dated 06.04.2015 No. 07AP-871/2015, A67-1869 / 2014, the court indicated that “the society, knowing that its participant has submitted an application for withdrawal from the company, and acting reasonably and in good faith, could and should have taken measures to draw up interim financial statements as of the last reporting date, as close as possible to the date of submission of the application for withdrawal, in order to calculate the actual value of the share of the withdrawn participant. "



This is provided by paragraphs and 7 subparagraph 2 of paragraph 2, paragraph 7 of Article 220 of the Tax Code.

Postings:


- the transfer of the share from the participants to the organization is reflected, the posting amount is the actual value of the share;

Debit 80 subaccount "Participant" Credit 80 subaccount "LLC"
- reflects the par value of the share that was transferred to "LLC".

Debit 75 subaccount "Participant" Credit 68 subaccount "Personal income tax settlements"
- withheld personal income tax from the actual value of the share;

Debit 75 subaccount "Participant" Credit 50
- paid to the participant the actual value of his share in the authorized capital minus personal income tax.

The distribution of the share in the authorized capital of the company between the remaining participants is reflected in the following entries:

Debit 75 subaccount "Participant remaining" Credit 81
- by the decision to redistribute the share of the retired participant, the transfer of the nominal share to the remaining participant is reflected;

Debit 80 subaccount "LLC" Credit 80 subaccount "Participant remaining"
- the change in the composition of the participants is reflected;

If the remaining participant does not pay for the shares distributed in their favor, then the amount reflected in the debit of account 75 is debited from the appropriate sources:

Debit 84 Credit 75 subaccount "Participant remaining"
- the par value of the share in the part transferred to the remaining redistribution participant was written off;

When the share of the retired participants is distributed to the remaining participant, his income taxable with personal income tax arises. Since no payments are made to participants, the organization must inform the inspectorate about the impossibility of withholding personal income tax.

Conditions for leaving society

When the withdrawal of members from LLC is prohibited

The founder (participant) can leave the LLC, regardless of the consent of other participants or the company, as follows:

From the date of submission of this document, the participant's share will go to the organization (clause 2 of article 94 of the Civil Code, clause 6.1, article 23 of the Law of 08.02.1998 No. 14-FZ).

When the participant's application to leave the LLC is considered to be submitted

One of the following dates is recognized as the day of filing an application:

the day of its transfer to the board of directors (supervisory board), the head of the company or an employee of the organization, whose duties include the transfer of the application to a competent person;

the day on which the company received the application sent by mail.

On July 16, Glebova sent an application to Hermes by mail with acknowledgment of receipt. The Society received the application on 23 July. The date of receipt of the application by Hermes is confirmed by the imprint of the calendar stamp on the notification.

Changing the charter

If the founder (participant) left the LLC before bringing the company's charter into compliance with the new edition of the Law of 08.02.1998 No. 14-FZ, then it is necessary to proceed as follows. Simultaneously with the registration of the transfer of the share, it is necessary to register the changes in the articles of association. This is stated in.

Within a year from the date of submission of the application for withdrawal, the organization must find new owners of the share of the founder (participant) who left the company. It can be distributed among other founders (participants), sold to one of them, sold to third parties, etc. This is stated in the Law of February 8, 1998 No. 14-FZ.

The new list of members of the organization must be reflected in the list of members of the company. In addition to information about each participant, this document must contain information about the size of his share, its payment, the amount of shares owned by the company itself, the dates of their transition to the company, etc. ().

Amendments to the Unified State Register of Legal Entities

Do I need to make changes to the Unified State Register of Legal Entities when a participant leaves the LLC

In connection with the withdrawal of the founder (participant) from the company, the organization needs to make changes to the Unified State Register of Legal Entities (). The documents required for making changes to the register are listed in paragraph 6 of Article 24 of the Law dated 08.02.1998 No. 14-FZ, Law dated 08.08.2001 No. 129-FZ and the letter of the Federal Tax Service dated 25.06.2009 No. MN-22-6 / 511.

Payment of a share to a withdrawn participant

The organization is obliged to pay the founder (participant) the actual value of his share ().

Calculate the actual value of the share of the founder (participant) retiring from the LLC by the formula:

This calculation procedure is established by paragraph 2 of Article 14 of the Law of February 8, 1998 No. 14-FZ.

Situation: what data must be used to calculate the actual value of the share of the founder (participant)

Estimate the actual value of the redeemed share of the founder (participant) based on the market value of the property reflected in the balance sheet.

The actual value of the share of the founder (participant) corresponds to the part of the value of the net assets of the company, proportional to its nominal share. By general rule upon redemption of a share (upon withdrawal of a participant from the company) this indicator is determined on the basis of the balance sheet data for the last reporting period before the founder (participant) applied to the company with such a request (statement). In this case, the indicators for calculating the actual value of the share must be taken from the statements that are closest to the date of filing the request (application) of the participant to quit the company. It can be not only annual, but also interim (monthly or quarterly) reporting. This procedure follows from the provisions of paragraph 2 of Article 14, paragraphs and 6.1 of Article 23 of the Law of February 8, 1998 No. 14-FZ and is confirmed jurisprudence(see, for example, the ruling of the Seventh Arbitration Court of Appeal dated 06.04.2015 No. 07AP-871/2015, the Arbitration Court of the West Siberian District dated 06.08.2015 No. F04-21575 / 2015).

Thus, from the literal interpretation of these norms, it follows that the only document on the basis of which the organization must calculate the actual value of the share of the founder (participant) is the balance sheet. Consequently, other methods for determining the value of the company's assets, including on the basis of the market value of the property, cannot be applied.

However, it should be borne in mind that financial statements must reliably reflect the financial position of the organization (clause 6 of PBU 4/99). Subject to of this rule the carrying amount of the property corresponds to its market value.

The outgoing participant has the right to challenge in court the size of the actual value of the share calculated by the company (subparagraph "c" clause 16 of the resolution of the plenums of the Supreme Court and the Supreme Arbitration Court dated 09.12.1999 No. 90/14).

In the event of a dispute between a participant and the company, the courts determine the actual value of the share taking into account the market value of the company's property. In this case, the data of the balance sheet are used to establish the composition of the company's property (Resolution of the Presidium of the Supreme Arbitration Court dated 07.06.2005 No. 15787/04, dated 06.09.2005 No. 5261/05).

The decisions of arbitration courts adopted after this are overwhelmingly based on this position (see, for example, the definitions of the Supreme Arbitration Court dated 05.03.2010 No. VAS-1880/10, dated 22.11.2007 No. 14448/07, decisions of the Federal Antimonopoly Service of the West Siberian District of 24.06. 2010 No. A75-5643 / 2009, Ural District dated 12.05.2010 No. F09-3177 / 10-C4, dated March 18, 2010 No. F09-1603 / 10-C4, Far Eastern District dated March 23, 2010 No. 1365/2010, Volga District dated 02/12/2010 No. A72-4275 / 2008, dated 02/12/2010 No. A72-4272 / 2008, Central District dated 05.02.2010 No. F10-6286 / 09, dated 30.03.2009 No. F10-714 / 09 (2), North-Western District dated 23.12.2009 No. A26-3413 / 2008, North Caucasian District dated 11.12.2009 No. A32 -16337/2007, Volgo-Vyatka Okrug dated May 28, 2008 No. A28-278 / 2008-9 / 9).

In this situation, the organization will have to independently decide on the assessment of the actual value of the share of the founder (participant), redeemed from him. However, taking into account the established arbitration practice, the company will not violate the requirements of the law, but will avoid litigation if it estimates the actual value of the redeemed share of the founder (participant) on the basis of the market value of the property reflected in the balance sheet.

An example of calculating the actual value of a share when the founder leaves the LLC. The book value of the net assets of the organization corresponds to their market value

Gromova decided to quit the founders. The announcement of Gromova's withdrawal was received by Hermes on July 16th. For the payment of the share, the Hermes accountant calculated its actual value according to the balance sheet data. According to the balance sheet for the first half of the year, the value of the organization's net assets is 1,080,000 rubles.

The actual value of Thunderova's share to be paid is:
RUB 25,000 : 100,000 rubles. ? RUB 1,080,000 = RUB 270,000

Accounting: share payment

How to reflect in accounting the payment of the participant's share when he leaves the LLC

You can settle accounts with the founder (participant) both in money and property (with his consent). This must be done within three months from the date the participant submits an application for withdrawal from the company, unless another period is provided for in the charter (clause 6.1 of article 23 of the Law of 08.02.1998 No. 14-FZ).

Reflect the payment of the actual value of the share by posting:

Debit 75 subaccount "Participant" Credit 51 (50)
- the actual value of the participant's share has been paid, minus the withheld personal income tax.

An example of the payment of the actual value of a share when the founder leaves the LLC. The book value of the net assets of the organization corresponds to their market value

The authorized capital of LLC Trading company"Hermes" "is 100,000 rubles. It is divided into shares between three participants:

share A.V. Lviv - 25,000 rubles;

share of E.E. Thunderous - 25,000 rubles;

share of V.K. Volkov - 50,000 rubles.

Gromova decided to quit the founders. The announcement of Gromova's withdrawal was received by Hermes on July 16th. For the payment of the share, the Hermes accountant calculated its actual value. According to the balance sheet for the first half of the year, the value of the organization's net assets is 1,080,000 rubles. The actual cost of Gromova's share is 270,000 rubles. (RUB 25,000: RUB 100,000? RUB 1,080,000).

Debit 81 Credit 75 subaccount "Participant of Gromov"
- 270,000 rubles. - the transfer of Gromova's share to the organization is reflected;

Debit 80 subaccount "Participant of Gromov" Credit 80 subaccount "Trading company" Hermes "
- RUB 25,000 - the par value of the share that was transferred to Hermes is reflected.

On August 20, the Hermes cashier paid the amount due to Gromova. Gromova is a resident of Russia. On this day, the accountant made the following entries:

Debit 75 subaccount "Participant of Gromov" Credit 68 subaccount "Payments for personal income tax"
- 35 100 rubles. (270,000 rubles? 13%) - personal income tax withheld from the actual value of Gromova's share;

Debit 75 subaccount "Participant of Gromov" Credit 50
- 234 900 rubles. (270,000 rubles - 35,100 rubles) - paid to the participant the actual value of his share in the authorized capital.

Situation: whether it is necessary to pay the actual value of the share to the founder (participant) leaving the LLC, if the value of the net assets of the organization is negative

There is no need.

If the founder (participant) leaves the company, the organization is obliged to pay him the actual value of his share. The acquisition of a share is paid by the company at the expense of the difference between the value of net assets and the size of the authorized capital.

Consequently, if the value of the company's net assets is negative, then there are no grounds for paying the actual value of the shares.

It should be noted that a company whose net assets will be less than its authorized capital at the end of two consecutive financial years (starting from the second financial year) must decide to reduce the authorized capital to an amount not exceeding the value of the organization's net assets (clause 4 Art. 90 of the Civil Code, clause 4 of Art. 30 of the Law of 08.02.1998 No. 14-FZ). In this case, it is possible to reduce the authorized capital by reducing the nominal value of the shares of all participants or by extinguishing the shares belonging to the company (clause 1 of article 20 of the Law of 08.02.1998 No. 14-FZ).

An example of reflecting the transfer of a participant's share in accounting when leaving an LLC. The actual share is not paid because the net assets are negative

The authorized capital of OOO "Trading Firm" Hermes "is 100,000 rubles. It is divided into shares between three participants:

share A.V. Lviv - 25,000 rubles;

share of E.E. Thunderous - 25,000 rubles;

share of A.S. Glebova - 50,000 rubles.

Glebova decided to withdraw from the list of participants. The announcement of Glebova's withdrawal was received by Hermes on July 16. As a general rule, when Glebova leaves the membership, "Hermes" must pay her the actual cost of the share within a month. However, according to the balance sheet data for the first half of the year, taking into account the market value of the property, the value of net assets turned out to be negative (-250,000 rubles).

Based on this, the calculation and payment of the actual value of the share upon leaving Glebova from the membership of the LLC are not made. V statutory deadline (i.e. until November 17) Glebova did not announce her reinstatement as a member of the LLC.

At the same time, the nominal value of Glebova's share is distributed among the remaining participants in proportion to their shares in the authorized capital (by decision of the general meeting of participants).

Since the shares of Lvov and Gromova are the same, the share of Glebova is divided equally between them.

Debit 81 Credit 75 subaccount "Participant Glebov"
- 50,000 rubles. - the transfer of Glebova's share to the organization at par is reflected;

Debit 80 subaccount "Participant Glebov" Credit 80 subaccount "Trading company" Hermes "

Debit 75 subaccount "Participant Glebov" Credit 91
- 50,000 rubles. - the par value of Glebova's share was charged to other income.

The accountant reflected the distribution of the share in the authorized capital of the company between the remaining participants with the following entries:

Debit 75 subaccount "Participant Lviv" Credit 81
- RUB 25,000 (RUB 50,000: 2) - according to the decision to redistribute the share of the retired participant, the transfer of the nominal share to Lviv was reflected;


- RUB 25,000 (RUB 50,000: 2) - according to the decision to redistribute the share of the retired participant, the transfer of the nominal share to Gromova was reflected;


- RUB 25,000 (RUB 50,000: 2) - the par value of the share in the part transferred to Lviv through redistribution has been written off;


- RUB 25,000 (RUB 50,000: 2) - the par value of the share in the part transferred to Gromova through redistribution has been written off.

When the share of the withdrawn participant is distributed among the remaining participants, they have income taxable with personal income tax. Since no payments are made to participants,

Accounting: transfer of the participant's share to the organization

How to reflect in accounting the transfer of the participant's share to the organization when he leaves the LLC

Upon receipt of an application for the withdrawal of the founder (participant) from the company in accounting, make the following entry:

Debit 81 Credit 75 subaccount "Participant"
- the transfer of the participant's share to the organization is reflected.

An example of reflecting in accounting the distribution of the share of a retired participant between the remaining participants

The authorized capital of OOO "Trading Firm" Hermes "is 100,000 rubles. It is divided into shares between three participants:

share A.V. Lviv - 25,000 rubles;

share of E.E. Thunderous - 25,000 rubles;

share of V.K. Volkov - 50,000 rubles.


-50,000 rubles. - the par value of the share that was transferred to Hermes is reflected.

By decision of the general meeting of participants, the share of the retired participant is distributed among the remaining participants in proportion to their shares in the authorized capital. Since the shares of Lvov and Gromova are the same, the share of the retired participant is divided equally between them.

In accounting, the accountant reflected the redistribution of the share in the authorized capital with the following entries:

Debit 75 subaccount "Participant of Gromov" Credit 81
- 110,000 rubles. (220,000 rubles: 2) - the transfer of the share to Gromova by the decision to redistribute the share of the retired participant is reflected;

Debit 75 "Participant Lviv" Credit 81
- 110,000 rubles. (220,000 rubles: 2) - the transfer of the share to Lviv is reflected by the decision to redistribute the share of the retired participant;

Debit 80 subaccount "Trading company" Hermes "Credit 80 subaccount" Participant of Gromov "
- RUB 25,000 (RUB 50,000: 2) - the change in the composition of the participants is reflected;

Debit 80 subaccount "Trading company" Hermes "Credit 80 subaccount" Participant Lviv "
- RUB 25,000 (RUB 50,000: 2) - the change in the composition of the participants is reflected.

Since the remaining participants do not pay for the shares distributed in their favor, the amount reflected in the debit of account 75 is written off from the appropriate sources:

Debit 84 Credit 75 subaccount "Participant of Gromov"
- 110,000 rubles. - the actual value of the share in the part transferred to Gromova by redistribution was written off;

Debit 84 Credit 75 subaccount "Participant Lviv"
- 110,000 rubles. - the actual value of the share in the part transferred to Lviv through redistribution has been written off.

When the share of the withdrawn participant is distributed among the remaining participants, they have income taxable with personal income tax. Since no payments are made to participants, the organization informed the inspectorate that it was impossible to withhold tax.

An example of the reflection in the accounting of the sale by a company of a share of a retired participant to a third party

The authorized capital of OOO "Trading Firm" Hermes "is 100,000 rubles. It is divided into shares between three participants:

share A.V. Lviv - 25,000 rubles;

share of E.E. Thunderous - 25,000 rubles;

share of V.K. Volkov - 50,000 rubles.

Volkov decided to withdraw from the list of participants. On July 16, his application for withdrawal was received by the organization. The actual value of Volkov's share is 220,000 rubles.

In the accounting of the organization, the following entries were made:

Debit 81 Credit 75 subaccount "Participant of Wolves"
- 220,000 rubles. - the transfer of Volkov's share to the organization is reflected;

Debit 80 subaccount "Participant Wolves" Credit 80 subaccount "Trading company" Hermes "
-50,000 rubles. - the par value of the share that was transferred to Hermes is reflected.

By decision of the general meeting of participants, the share of the retired participant will be sold to a third party at its actual value (220,000 rubles)

In accounting, the accountant reflected the sale of a stake in the authorized capital with the following entries:

Debit 75 subaccount "New participant" Credit 91-1
- 220,000 rubles. - the share of the retired participant is sold to the new participant;

Debit 91-2 Credit 81
- 220,000 rubles. - written off the actual (actual) value of the sold share;

Debit 50 (51) Credit 75
- 220,000 rubles. - the share was paid by the new participant;

Debit 80 subaccount "Trading company" Hermes "Credit 80 subaccount" New participant "
- 50,000 rubles. - the change in the composition of the participants is reflected.

Situation: what is the value of the share of the founder (participant) in the authorized capital of the LLC - nominal or actual - is written off in the accounting when he submits an application for withdrawal from the company

When the founder (participant) leaves the company, write off the actual value of his share in accounting.

On the debit of account 81 "Own shares (shares)", reflect the amount of actual costs - the amount that needs to be paid to the founder (participant) (Instructions to the chart of accounts). The LLC must pay the founder (participant) the actual value of the share (clause 6.1 of article 23 of the Law of 08.02.1998 No. 14-FZ). Therefore, in the debit of account 81 "Own shares (shares)", take the actual value of the share.

An example of the reflection in accounting of settlements with a participant when he leaves the LLC

The authorized capital of OOO "Trading Firm" Hermes "is 100,000 rubles. It is divided into shares between three participants:

share A.V. Lviv - 25,000 rubles;

share of E.E. Thunderous - 25,000 rubles;

share of V.K. Volkov - 50,000 rubles.

Volkov decided to withdraw from the list of participants. On July 16, his application for withdrawal was received by the society. The actual value of Volkov's share is 220,000 rubles.

In the accounting of the organization, the posting was made:

Debit 81 Credit 75 subaccount "Participant of Wolves"
- 220,000 rubles. - the transfer of Volkov's share to the organization is reflected.

Personal income tax and insurance premiums

Situation: whether it is necessary to withhold personal income tax when paying the founder (participant) leaving the LLC, the cost of his share

Yes, it is necessary if the alienation of a share does not fall under the benefit.

The fact is that the funds that are paid to the founder upon leaving the LLC will be his income, which means that they are subject to personal income tax (). In this case, the organization from which this income was received is recognized as a tax agent and must independently calculate, withhold and pay tax (clause, sub. 2, clause 1 of article 228 of the Tax Code).

Given the later position of the controlling authorities, the organization must withhold personal income tax when paying the cost of the share to the founder.

At the same time, there is a benefit that allows you not to pay personal income tax on such income. You will not have to pay personal income tax if:
- as of the date of alienation, the share has continuously belonged to the participant for more than five years;
- the participant acquired the share not earlier than January 1, 2011.

When a participant leaves the company, the tax agent must withhold personal income tax from the entire actual value of his share in the authorized capital of the LLC (letter of the Ministry of Finance dated November 10, 2016 No. 03-04-05 / 65811).

In this case, a resident participant has the right to a property deduction in the amount of actually incurred and documented expenses related to the acquisition of this share. These costs include:
- money, property that was contributed to the authorized capital during its formation or directed to its increase;
- expenses for the acquisition or increase in the share in the authorized capital.

If there are no documents, a deduction can be obtained in the amount of 250,000 rubles.

The participant will be able to receive a property deduction in tax office when it submits its tax return at the end of the year.

This is provided by paragraphs and 7 subparagraph 2 of paragraph 2, paragraph 7 of Article 220 of the Tax Code.

). In this case, they will have an economic benefit - income received by increasing the nominal share in the authorized capital. And from such an income of the organization, in theory, it is necessary to withhold personal income tax and transfer it to the budget (, clause 1 of article 211 of the Tax Code).

But the income is essentially virtual, that is, you do not pay it with real money. And if so, then there is simply nothing to withhold tax. And therefore, an appropriate message must be sent to the inspection.

An example of the distribution of the share of a retired participant between the founders

The authorized capital of OOO "Trading Firm" Hermes "is 100,000 rubles. It is divided into shares between three participants:

share A.V. Lviv - 25,000 rubles;

share of E.E. Thunderous - 25,000 rubles;

share of V.K. Volkov - 50,000 rubles.

Volkov decided to withdraw from the list of participants. On July 16, his application for withdrawal was received by the society. The actual share was not paid to him, since the value of net assets is negative.

By decision of the general meeting of participants, the share of the retired participant is distributed among the remaining participants in proportion to their shares in the authorized capital. Since the shares of Lvov and Gromova are the same, the share of the retired participant is divided equally between them. That is, 25,000 rubles each. to each.

When the share of the retired participant is distributed among the remaining participants, they have income taxable with personal income tax in the amount of 25,000 rubles. Since no payments are made to participants, the organization informed the inspectorate that it was impossible to withhold tax.

Alexander Sorokin answers,

Deputy Head of Department operational control FTS of Russia

“CCP should be used only in cases where the seller provides the buyer, including his employees, with a deferral or installment plan to pay for their goods, works, services. These cases, according to the Federal Tax Service, relate to the provision and repayment of a loan to pay for goods, works, services. If an organization issues a cash loan, receives a return of such a loan, or receives and returns a loan itself, do not use the cashier. When exactly you need to punch a check, see

According to Art. 14 of the Law, the authorized capital (authorized capital) of the company is drawn up from the par value of shares its participants.

The size of the share of a company participant in the authorized capital (authorized capital) of the company is determined as a percentage or as a fraction. Participant's share society must comply the ratio of the par value of his share and the authorized capital(authorized capital) of the company.

Example 1.100% of the authorized capital is 10 million soums. The nominal value of one participant is 3 million soums, and the nominal value of the second - 7 million. Accordingly, the percentage of the par value of the share and the authorized capital is, respectively, 30% and 70% of the authorized capital.

That is, in constituent documents the company contains precisely the nominal value of the share of the participant (founder), which he is preparing to contribute or has already contributed to the statutory fund. In other words, the size of the share declared in the charter (and in the memorandum of association) is called nominal.

However, the legislation contains one more concept - the actual value of the share. It seems that this is due to the fact that in the course of its activities the company develops financially (makes a profit, acquires goods and materials, including long-term assets) or, on the contrary, suffers losses and goes bankrupt. Those. the nominal value of the share may in fact not correspond to the real financial situation of the company. The actual value of the share may be higher or lower than the nominal (declared in the articles of association and articles of association).

According to the fourth part of Art. 14 of the Law of the Participant of the Company corresponds to a part of the value of the company's net assets, proportional to the size of its share.

Example 2. A company has an authorized capital of 10 million soums, and net assets of 100 million. The size of the share of one participant is 30% of the authorized fund, the nominal value of his share is 3 million, and the actual value of the share is 30 million. the participant makes 70% of the authorized capital, its nominal value is 7 million, and the actual value of the share is 70 million soums.

In the case of unprofitable financial activities society, the actual value of the share will be lower than its nominal value.

We remind you that if at the end of the second and each subsequent financial year the value of the company's net assets turns out to be less than its authorized capital (authorized capital), the company is obliged to declare its reduction to an amount not exceeding the value of its net assets, and to register such a decrease in the prescribed manner (part the fifth article 19 of the Law).

If at the end of the second and each subsequent financial year, the value of the company's net assets turns out to be less minimum size the authorized capital (authorized capital) established by this Law as of the date of state registration of the company, it is subject to liquidation (part six of Article 19 of the Law).

Determination of the nominal and actual value of the share

Par value it is easy to determine the share - just read the corresponding clause of the charter (with all the changes to it).

Define actual value shares without the balance sheet of the company is impossible. As a general rule 2, actual value of a share a member of the company in the authorized capital of the company determined on the basis of data from the company's financial statements for the last reporting period, preceding the onset of an event 3. Those. for the majority of companies that pay STP - based on the latest annual tax returns.

To determine the actual value of a share, it is necessary to know the total amount of the company's net assets - the book value of the company's property, not encumbered by obligations (cleared of obligations).

Net assets are determined on the basis of the balance sheet data (the last, handed over to the tax) according to the following formula: all assets of the company minus all liabilities of the company = net assets of the company.

This total amount of net assets is calculated part of the value of the company's net assets, in proportion to the size of the participant's share. This amount is the actual value of the share.

Example 3. total cost net assets of the company - 100 million soums. The share of the company participant, according to the charter, is determined at the rate of 30% of the authorized capital. Accordingly, the proportion of net assets proportional to this share is 30 million. This is the actual value of the share.

Thus, there is a clear algorithm for determining the actual value of a share:

1. determine the last reporting period of the company;

2. we calculate the total amount of net assets according to the last balance sheet of the company;

3. from the total amount of net assets we calculate a part in proportion to the share of the participant (according to the charter).

In what cases does it apply nominal and actual value of a share


nominal cost shares are applied in the case of determining the total size of the authorized capital and the value of the shares of each participant in the constituent documents of the company. It is declared at the creation of a society and sometimes changes at the request of the participants or out of necessity.

The par value of the share is also applied when the participant sells his share.

Actual value shares are applied in the following cases specified in the Law:

When the partnership is obliged to acquire, at the request of a member of the partnership, the share belonging to him 4. In this case, the company is obliged to pay the participant of the company the actual value of this share (part of the share), which is determined on the basis of the data of the financial statements. for the last reporting period, preceding the day of the participant's request with such a requirement, or with the consent of the participant, give him in kind property of the same value (part two of article 22 of the Law);

When the share of a participant in a company is transferred to the company if:

When the company was founded, the participant did not make his full contribution to the statutory fund on time;

The participant did not provide in time the monetary compensation in exchange for the early termination of the right to use the property contributed by him to the statutory fund. In this case, the company is obliged to pay the participant the actual value of a part of his share, in proportion to the part of the contribution made by him (the period during which the property was in the use of the company), or, with the consent of the participant, give him property of the same value in kind. The actual value of a part of the share is determined on the basis of accounting data for the last reporting period preceding the day of expiration of the term for making a contribution or providing compensation (part three of article 22 of the Law).

When the share of a participant excluded or withdrawn from the society goes to the society. In this case, the company is obliged to pay to such a participant the actual value of his share, which is determined according to the data of the financial statements. for the last reporting period preceding the date of exclusion and exit, or with the consent of this participant, give him in kind property of the same value (part five of article 22 of the Law);

If, in accordance with the charter of the company, the transfer or redistribution of a share is possible only with the consent of the other participants, then the share is transferred to the company:

if the members of the company refuse to agree to the transfer or distribution of a share in cases of inheritance or legal succession of legal entities,

when, in the event of the liquidation of a legal entity - a member of the company, the share belonging to him, remaining after the completion of settlements with his creditors, is distributed among the participants of the liquidated legal entity. In this case, the company is obliged to pay the heirs of the deceased participant, the legal successors of the reorganized legal entity - the participant of the company or the participants of the liquidated legal entity - the participant of the company, the actual value of the share, determined on the basis of the financial statements for the last reporting period preceding, respectively, the day of death, reorganization or liquidation, or with their consent, give them in kind property of the same value (part six of article 22 of the Law);

In the event that a share (part of the share) of participant 5 is foreclosed on its debts, the company has the right to pay creditors the actual value of the share (part of the share) of the participant (part two of article 24 of the Law).

The actual value of the participant's share also applies when it is sold.

When making a sale and purchase of a share, both the nominal and the actual value of the share are applied. More on this in the next publication.

Zumrad NIYAZMETOVA, attorney.

The actual value of the share upon withdrawal of the participant is calculated taking into account the rules that are described in Federal Law No. 14, Article 23. Despite the transparency of calculations, many do not know where to start work, in what cases to make a calculation, and what is the essence of the actual price in general. Let's consider these points in detail.

General Provisions

To begin with, let's consider what the actual size of the share is when the founder leaves. In fact, this is the part of the net asset price of the organization, which is proportional to the size of the share. The final result is presented as a percentage or in fractional terms. Often the actual value is presented as the difference between the net asset price of the structure and the value of the equity capital. If the resulting difference is small, the company is forced to reduce the amount of capital by the required amount.

The transfer of a share to the ownership of a company is possible in the following situations:

  1. The company received a request from the founder to acquire the share.
  2. The period in which the share in the Criminal Code of the LLC is to be paid or the period for issuing compensation has ended.
  3. The company received an application from the founder to retire from the company. This is possible if such action is permitted by the charter of the company.
  4. The decision of the court to expel the founder of the LLC from the company entered into force or the decision to transfer the share of the organization came into force.
  5. One of the founders refused to consent to the transfer of a share or part of it to the legal successors or heirs of the LLC participants.
  6. The company makes payment of the actual price (in respect of all or only part of the share) held by the founder, at the request of the creditors.

How do you exit an LLC?

Any of the participants has the right to decide whether to leave the company or not. To implement this task, the participant must take into account a number of points (Federal Law No. 14):

  • Such a possibility should be reflected in the charter of the LLC.
  • In case of leaving the organization, at least one more participant must remain in it.

To leave the company, you need to fill out an application (drawn up in a free form). It acts as a confirmation that the founder plans to leave the LLC. The process is considered completed when the head of the company, the board of directors, and also an authorized employee received this paper.

In addition, the founder can be removed from the membership in such cases:

  • The applicant for the exit voted against some big deal and is now forced to leave at the request of the other founders.
  • The founder died, but the relatives demanded the part.
  • The person was expelled at the meeting by voting.

There may be other reasons that are spelled out at the legislative level. Interestingly, payments to the founder of an LLC in case of his exit are made regardless of the reasons. This obligation arises for the company at the time of the transfer of interest.

Please note that a company cannot pay a share if at that moment it has signs of bankruptcy.

It is known that if any of the founders leaves the organization, the company registration data will also change. It is the enterprise, and not its founder, that bears the obligation to register. So, an application drawn up in the form of P14001 is sent to the registration structure. It informs about the withdrawal of the participant, and also confirms the transfer of the share in favor of the LLC. The obligation to register in this case is spelled out in the Federal Law No. 14, article 31.1.

The process of leaving the founder, as well as further division of the share, can be carried out in different ways. The task of the LLC is to resolve the issue with the share of the participant within a year from the date of release. Otherwise authorized capital will have to be reduced.

Once the founder has left the organization, the following fate may befall his share:

  • Distribution among the founders who remained in the company, taking into account their shares.
  • Sale to 3rd person. Relevant for cases when there is no restriction on such an action in the company's charter.
  • Realization to one of the LLC participants.

How to calculate the actual share?

In the process of deciding on the fate of the founder's share, it is important to carry out one more action - to calculate its real price. Federal Law No. 14, Article 23 states that this parameter is the share of the structure's net assets proportional to the share price. Formula:

ADI = CHA / 100% * VDU.

It uses the following terms:

  • ADI is the actual value of the share.
  • VDU - the size of the share of the founder.
  • NA - the net assets of the enterprise.

The most important indicator is PM, because they reflect the success of financial and economic activity enterprises. The calculation procedure was approved by order No. 84n issued by the RF Ministry of Finance. It states that the net asset value is the difference between the assets of the LLC and the debt. The calculation takes into account the book value of liabilities and assets.

How to calculate net assets?

Next important point, requiring consideration - the calculation of the price of net assets. This procedure was also thought out by the Ministry of Finance, but it is only suitable for JSCs. Wherein financial statements society has the same structure, therefore, the approved procedure can be applied in relation to LLC. In turn, the Ministry of Finance of Russia agrees with this position, as evidenced by the letter under the number 03-03-06 / 1/791.

Net assets are calculated using the following formula:

CHA = IP + PBP - ZPUUV, where

  • NA - net assets.
  • PI - the final parameter of the 3rd section of the balance sheet.
  • PBP - deferred profit.
  • ZPUUV - arrears in the payment of capital contributions by the founders.

It should be noted that the LLC is not obliged to pay the share of the founder in a situation if the price of its net assets is less than zero.

It turns out that in the process of calculating the actual value, only one document is relevant - the accounting records of the society. In this case, the parameters that are subsequently substituted into the formulas are also pulled from the balance sheet.

For greater accuracy, it is worth highlighting another position, which is based on the need to take into account the market price of the company's assets when calculating the actual price of the share of the founder leaving the LLC. This position often causes a lot of controversy regarding the issue of calculating the value of a share.

If the founder of the LLC does not agree with the amount of the share determined by the company, he has the right to come to the arbitration court and transfer the evidence base on hand. In this case, the authorized body must check how correct the calculations of the LLC are. The evidence submitted to the court should be based on an independent examination.

Estimating the share to calculate the real market price

In a separate section, it is worth highlighting another approach, according to which the actual price of the share is calculated in the event of the founder's exit. In this case, the market price is taken as the basis. This option was worked out by the judicial authorities, and it is based on the resolution of the Supreme Arbitration Court of the Russian Federation under the number 3744/13. It notes that taking market price into account implies the principle of fairness.

The real cost belongs to the nomenclature category, and its parameter reflects the information in the balance sheet. Market price refers to the change in the assets of a company based on their market price. Over time, the value of these assets of the enterprise (real estate, land, transport and others) can be adjusted. In order to reduce the amount of property tax, many companies do not reflect the real price. In a situation where the information in the accounting papers does not correspond real situation things, this will affect the interests of the founders leaving the LLC.

According to the legislation, the company's financial statements are a reliable source of information characterizing the financial state of affairs. If this requirement is met, the size of the LLC's assets will match their market value.

As noted above, if a participant does not agree with the calculations, he has the right to file a claim in court. Moreover, there is a high probability that he will win the case. If a participant requires payment of market value, it is better not to wait until it is forced to do so. A more profitable way is voluntary payment, which allows you to save on legal costs. In addition, in the event of a victory in court, the founder may demand interest for the misuse of his funds.

How is the payment of the real value of the share of assets that are not on the company's balance sheet made?

The “stumbling block” in disputes between the company and the founder often becomes the actual value of the LLC's assets, which in reality are not on the balance sheet, but in fact they are in the possession of the company and are used in the course of business activities.

The market value of an asset is taken into account when calculating the actual price of a share in cases where the company:

  • Receives income from its application.
  • Uses assets when conducting business.

The evidence base will be the conclusions made by the expert, as well as reflected in the report. The document is drawn up after an independent examination appointed by the court.

Interestingly, even in such a situation, it is not always possible to avoid further problems regarding the size of the actual price, because the conclusions of an independent examination can also be challenged.

There are other cases when an LLC has an asset with low liquidity on its balance sheet, the market price of which will be high after the valuation. In such a situation, after the payment of a part of the actual value of the LLC, it may be on the verge of bankruptcy.

Such a mismatch is beneficial to people who intend to perform an unfriendly takeover or eliminate a competitor using controversial situations.

Outcomes

To avoid problems with calculating the actual value of the share of the founder leaving the LLC, it is important to reflect the main issues in the company's documents, namely the calculation procedure, periods and timing of payments.