Determining the true value of a share. Encyclopedia of solutions

When creating a limited liability company, the participants, as a rule, plan a long and promising activity. But reality is more complicated than any plans, and often the founders of the company, for one reason or another, have to “leave the game”, leave their offspring. How to “say goodbye” competently, what rights and obligations arise in this case, the features of the taxation of such operations - these and other aspects will be discussed in the article.

The legal status of the company, the rights and obligations of its participants are determined by two main documents. These are the Civil Code of the Russian Federation and Federal Law No. 14-FZ of February 8, 1998 “On Limited Liability Companies” (hereinafter - Law No. 14-FZ).

In Article 87 of the Civil Code of the Russian Federation, an LLC is a company established by one or more persons, the authorized capital of which is divided into shares of sizes determined by the constituent documents. The participants of the company are not liable for its obligations and bear the risk of losses associated with the activities of the company, within the value of their contributions.

The Civil Code of the Russian Federation recognizes the right of a company participant to sell or otherwise assign his share in the company's authorized capital or part of it to one or more participants in this company.

The alienation by a company participant of his share (its part) to third parties is allowed, unless otherwise provided by the company's charter (clause 2, article 93 of the Civil Code of the Russian Federation).

This right is also stipulated by Article 21 of Law No. 14-FZ, which additionally states that the consent of the company or other participants in the company to make such a transaction is not required, unless otherwise provided by the charter of the company.

EXAMPLE 1. "RESTRICTION" ON SHARE DISPOSAL

Extract from the Charter of a limited liability company.

The Company Member has the right to withdraw from the Company at any time, regardless of the consent of its other Members or the Company.

A Member of the Company intending to sell its share (part of a share) to a third party is obliged to notify the other Members of the Company and the Company itself of this in writing, indicating the price and other conditions for its sale.

It should be noted that the participants in the company enjoy the pre-emptive right to purchase a share (part of a share) of a company participant at an offer price to a third party or at a price different from the offer price to a third party and predetermined by the company’s charter in proportion to the size of their shares, unless the company’s charter or agreement of the company’s participants there is a different procedure for the exercise of this right.

Thus, we have established that the participants of the company and third parties can act as buyers of a share. It can be both individuals and legal entities.

However, there may be another acquirer - the society itself. This is stated in Article 23 of Law No. 14-FZ, which determined the list of cases in which companies can acquire a share of participants (part of a share) in their authorized capital.

The acquisition by the company of a share in other cases is prohibited by law.

Estimation of the value of the participant's share

As a rule, the participants in the transaction in the end, after long assessments, analyzes, markups, more or less clearly represent the value of the proposed share. Sometimes the market value of the assets on the balance sheet of the company, and hence the share itself, is very different from the accounting estimates. At the same time, often legally established methods of calculating the cost can be very helpful in determining the real price of the transaction. And in some situations, the organization is simply obliged to calculate the value of the share in a certain order.

Thus, paragraph 2 of Article 94 of the Civil Code of the Russian Federation indicates that the participant must be paid the actual value of his share in the authorized capital or, with his consent, property of the same value must be issued in kind in the manner, method and within the time limits provided for by the law on companies with limited liability and the charter of the company.

And in paragraph 2 of Article 23 of Law No. 14-FZ, it is determined that if a company is obliged to redeem a share of a participant, then within three months from the date the corresponding obligation arises, unless another period is provided for by the charter, it is obliged to pay the participant the actual value of his share in the authorized capital . It is determined on the basis of the financial statements of the company for the last reporting period preceding the day the participant of the company applied with the corresponding requirement, or with the consent of the participant of the company, to give him property of the same value in kind.

The actual value of the participant's share in the authorized capital is calculated by the formula.

The Formula for Calculating the True Value of a Share

The procedure for determining the value of net assets was approved by the Order of the Ministry of Finance of Russia dated August 28, 2014 No. 84n “On approval of the Procedure for determining the value of net assets”.

In a simplified form, the net assets of an enterprise are assets cleared of all liabilities, that is, the amount of current and non-current assets remaining at the disposal of the company after the repayment of all its creditor obligations.

But it is no secret that the book value of a property can be very different from its real market value. For example, a building purchased at the beginning of our century, and listed on the balance sheet for several million rubles, can actually cost tens of millions of rubles. And how then to be? It turns out that a citizen who wants to leave society, by virtue of the requirements of Law No. 14-FZ, must transfer a share for nothing?

No, it's not. In accordance with the explanations contained in paragraph 16 of the joint resolution of the Plenum Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated 09.12.1999 No. 90/14 “On some issues of application federal law“On Limited Liability Companies”, if a member of the company does not agree with the size of the actual value of his share in the authorized capital of the company, determined by the company, the court checks the validity of his arguments, as well as the objections of the company based on the evidence provided by the parties, provided for by the procedural legislation , including the conclusions of the examination carried out on the case.

The obligation to take into account the market value of real estate when calculating the actual value of the share of a withdrawing member of the company is indicated in the decisions of the Presidium of the Supreme Arbitration Court RF dated 07.06.2005 No. 15787/04, dated 06.09.2005 No. 5261/05, dated 05.26.2009 No. 836/09 and dated 17.04.2012 No. 16191/11.

Case Study

Individuals Ivanov, Petrov and the legal entity Granat LLC in March 2018 entered into memorandum of association on the establishment of Aristocrat LLC. The authorized capital of the company being created was agreed upon in the amount of 1,000,000 rubles.

The size of the founders' shares in the authorized capital of the enterprise was agreed as follows (see table).

The size of the shares of the founders in the UK LLC

In the accounting of the organization after state registration enterprises in March 2018, the following entries were made:

DEBIT 75 / Ivanov   CREDIT 80 sub-account “Declared authorized capital»/Ivanov
- 250,000 rubles. - reflects the formation of the authorized capital of the LLC in the amount of Ivanov's share declared in the constituent documents;

DEBIT 75/Petrov   CREDIT 80 sub-account "Declared authorized capital"/Petrov
- 240,000 rubles. - reflected the formation of the authorized capital of LLC in the amount of Petrov's share, declared in the constituent documents;

DEBIT 75 / LLC "Granat"   CREDIT 80 sub-account "Declared authorized capital" / LLC "Granat"
- 510,000 rubles. – reflected the formation of the authorized capital of LLC in the amount of the share of Granat LLC, declared in the constituent documents;

After paying the authorized capital, all participants made the following entries:

DEBIT 80 sub-account "Declared authorized capital"/Ivanov   CREDIT 80 sub-account "Paid-in authorized capital"/Ivanov
- 250,000 rubles. – reflects the paid-in authorized capital after the actual receipt Money and other property as a contribution to the authorized capital;

DEBIT 80 sub-account "Declared authorized capital"/Petrov   CREDIT 80 sub-account "Paid-in authorized capital"/Petrov
- 240,000 rubles. - the paid-in authorized capital is reflected after the actual receipt of funds and other property as a contribution to the authorized capital;

DEBIT 80 subaccount "Declared authorized capital" / LLC "Granat"   CREDIT 80 subaccount "Paid authorized capital" / LLC "Granat"
- 510,000 rubles. - the paid-in authorized capital is reflected after the actual receipt of funds and other property as a contribution to the authorized capital.

Suppose, following the results of work in March 2018, the following balance sheet was drawn up (see table).

Balance

Thus, the actual value of the share of participants as of March 31, 2018 will be (see table).

The actual value of the shares of LLC participants

Reflection of operations on the assignment by a participant of his share in accounting

Information on the state and movement of the authorized capital of the organization is reflected in account 80 "Authorized capital".

Analytical accounting on account 80 is organized in such a way as to ensure the formation of information on the founders of the organization, the stages of capital formation.

The subsequent assignment of a share to another member of the company or third parties is reflected only in the analytical accounting of the company. To summarize information about the presence and movement own shares, redeemed by the company from the participants for their subsequent resale or cancellation, account 81 “Own shares (shares)” is used.

EXAMPLE 2. ACCOUNTING FOR THE ASSIGNMENT OF A SHARE BY A NEW OWNER

Let us turn to the input data from the above situation and assume that Ivanov in April 2018 ceded his share (25%) to Petrov, and the share of Granat LLC was transferred to the company.

In analytical accounting, the accountant of the company will indicate:

DEBIT 80 sub-account "Paid-in authorized capital"/Ivanov   CREDIT 80 sub-account "Paid-in authorized capital"/Petrov
- 250,000 rubles. - the assignment of a share by a participant is reflected in the analytical accounting of the company;

DEBIT 81   CREDIT 75/LLC "Granat"
- 733,442.22 rubles. - reflects the actual value of the share of the withdrawing participant - Granat LLC;

DEBIT 75/LLC "Granat"   CREDIT 51
- 733,442.22 rubles. – the actual value of the share of the withdrawing participant, Granat LLC, was paid.

And it must be taken into account that if an individual sells or cedes a share, then, of course, the sellers will not make any transactions. They are not required to keep any accounting records. Another thing is a legal entity. When selling or assigning a share, certain transactions must also be reflected in their accounting.

Recall that an enterprise acquiring a share in the authorized capital will reflect this acquisition on account 58 " Financial investments". Consequently, upon disposal of such an asset, it will be necessary to close account 58 “Financial investments”.

EXAMPLE 3. ACCOUNTING FOR ASSIGNMENT OF SHARE FROM EX-OWNER

We will reflect the assignment of the share in the accounting of Granat LLC.

The accountant made the following entries:

DEBIT 76   CREDIT 91
- 733,442.22 rubles. - a transaction for the sale of shares is reflected.

DEBIT 91   CREDIT 62
- 510,000 rubles. - written off initial cost valuable papers.

DEBIT 51   CREDIT 76
- 733,442.22 rubles. - funds from the new owner were received on the settlement account of Granat LLC.

DEBIT 91   CREDIT 99
- 223,442.22 rubles. – (733,442.22 – 510,000) – profit from the transaction is reflected.

Taxation upon exit from LLC

Features of the taxation of such transactions determine who is the owner of the shares - an individual or a legal entity; the applicable taxation system; whether the sale to a new owner or the assignment of shares to the company.

When determining the tax base for personal income tax, all taxpayer incomes received by him both in cash and in kind, or the right to dispose of which he has arisen, as well as income in the form of material benefits (Article 210 of the Tax Code of the Russian Federation) are taken into account.

These incomes individual will be taxed at a rate of 13%. In accordance with paragraphs 1 and 2 of article 226 tax code Russian Federation, Russian organizations from which or as a result of relations with which the taxpayer received income, are obliged to calculate, withhold from the taxpayer and pay this amount of tax to the budget. These organizations are tax agents (letters of the Ministry of Finance of Russia No. 03-04-06/50673 of 03.09.2015, No. 03-04-06/40675 of 15.07.2015, No. 03-04-05/13597 of 13.03.2015).

On the basis of subparagraph 2 of paragraph 2 of Article 220 of the Tax Code of the Russian Federation, upon assignment of a share (its part) in the authorized capital of an organization, the taxpayer has the right to reduce the amount of taxable income by the amount of actually incurred and documented expenses associated with the receipt of these incomes.

Expenses directly related to the implementation of the transaction for the sale of a share in the authorized capital of an organization include, in particular, the costs of acquiring the specified share, subject to documentary evidence of the costs of contributing funds to pay for the acquired share.

note

Share buyers can be members of the company and third parties. It can be both individuals and legal entities. However, there may be another acquirer - the society itself. This is stated in Article 23 of Law No. 14-FZ.

But no contributions to funds (pension, medical, social insurance) need to be taxed on these amounts. After all, payments to a participant upon his withdrawal from the company are neither wages nor remuneration for work performed or services performed under a civil law contract (Article 420 of the Tax Code of the Russian Federation, Article 20.1 of the Federal Law of July 24, 1998 No. 125-FZ).

However, in relation to the transactions under consideration, the object of personal income tax will not always arise. Income received from the sale (redemption) of shares in the authorized capital Russian organizations, provided that on the date of sale (redemption) of such participation interests they have been continuously owned by the taxpayer on the basis of ownership or other real right for more than five years, are not subject to taxation (clause 17.2 of article 217 of the Tax Code of the Russian Federation, part 7 of article 5 of the Federal Law dated December 28, 2010 No. 395-FZ). A similar opinion was expressed in the letter of the Ministry of Finance of Russia dated December 22, 2017 No. 03-04-05 / 86203.

So, we have considered the assignment of shares to the company. When selling shares, the situation is somewhat different. In this case, the company will no longer be a tax agent, does not withhold personal income tax and does not submit data 2-personal income tax, 6-personal income tax on this income of an individual. All this is done by an individual independently (clause 2 of article 226, subclause 2 of clause 1, clause 2 of article 228 of the Tax Code of the Russian Federation, letter of the Ministry of Finance of Russia dated 08.21.2014 No. 03-04-06 / 41908).

EXAMPLE 4. SALE OF A SHARE OF INDIVIDUAL TO INDIVIDUAL

In the example discussed earlier, Ivanov sold his stake (25%) to Petrov. He could sell the asset at some market value. Suppose that the sale was also carried out at the calculated fair value of the share for 359,530.50 rubles. This value will be fixed in the sales contract, and this indicator will be the basis for calculating personal income tax.

Ivanov reduced his income in accordance with the norms of the law by the amount of expenses for the acquisition of the specified share (250,000 rubles). Accordingly, the amount of taxable income amounted to 109,530.50 rubles. (359,530.50 - 250,000).

In this case, Ivanov needs to independently calculate and pay 14,239 rubles to the budget. (109,530.50 rubles × 13%).

Sale, assignment of shares legal entity will have its own characteristics, since taxation in this case will depend on what taxation system the seller company applies.

When applying the simplified tax system, an object of taxation will also arise in the form of the sale value of shares. Those who have the right to reduce income by the amount of expenses incurred will be able to take into account the purchase price of the sold securities on the basis of subparagraph 23 of paragraph 1 of article 346.16 of the Tax Code of the Russian Federation (see letters of the Ministry of Finance of Russia dated May 15, 2006 No. 03-11-04 / 2 / 105 , No. 03-03-02-04/1-107 of 29.04.2005, No. 03-11-06/2/08 of 24.01.2011, No. 03-11-06/2/201 of 06.10.2009, dated 11.11 .2013 No. 03-11-06/2/47957).

But the simplistic people who use the object of taxation "income" will pay 6% of the total amount of income.

EXAMPLE 5. ASSIGNMENT OF A SHARE IN THE STS

Suppose Granat LLC applies the USN. The share of the company was assigned for 733,442.22 rubles. with an initial investment of 510,000 rubles.

In this case, the single tax will be:

With the object of taxation, income tax at a rate of 6% will amount to 44,007 rubles. (733,442.22 rubles × 6%).

With the object of taxation, income reduced by the amount of expenses, the tax at a rate of 15% will be 33,516 rubles. ((733,442.22 rubles - 510,000 rubles) × 15%).

But the seller organization can also be on the general taxation system. Should the transaction be subject to VAT? The sale of securities (shares) on the territory of the Russian Federation is not subject to VAT (exempted from taxation) (subclause 12, clause 2, article 149 of the Tax Code of the Russian Federation). Invoices for such a sale are not drawn up (subclause 1, clause 3, article 169 of the Tax Code of the Russian Federation).

And you have to pay income tax. Subparagraph 4 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation states that when determining the tax base, income in the form of property, property rights that are received within the contribution (contribution) by a participant is not taken into account economic society upon exit (retirement) from a business entity. That is, incomes are not taxed if their amount is less than or equal to the contribution of the departing participant. If they are more, then tax arises from the difference.

The specifics of determining expenses when selling shares are described in subparagraph 2.1 of paragraph 1 of the Tax Code of the Russian Federation. Income from the sale of property rights (shares, shares) is reduced by the acquisition price of these property rights (shares, shares) and by the amount of expenses associated with their acquisition and sale.

That is, translated into a simpler language, the resulting difference is subject to taxation.

EXAMPLE 6. INCOME TAX ON THE SALES OF A SHARE

Profit from the transaction for the assignment of shares from Granat LLC amounted to 223,442.22 rubles. Consequently, income tax will be equal to 44,688 rubles. (223,442.22 rubles × 20%).

Dmitry Kislov, Ph.D., expert

When a participant leaves the LLC, the calculation of the actual value of his share is required according to the rules of 2019. This value must be set in order for the company to pay the money or so that they can be demanded through the court.

If a member leaves the LLC, he is paid the actual value of the share

The LLC forms its authorized capital from the funds invested by the participants. It is made up of the nominal value of their shares. The value of each share is determined as a percentage or as a fraction. This is the ratio of the nominal value of the share and the authorized capital ().

There is also the concept of the actual value of the share of an LLC participant in the authorized capital of a company: this is a part of the value of the net assets of an LLC proportional to the size of its share. It is this cost that the company is obliged to pay to the participant if he decides to leave the LLC (). That is, the owner of a share of 50% has the right to claim 50% of net assets. With the consent of the participant, the company can provide him not with money, but with property for the same amount.

In 2019, the old rules for calculating the actual value of a share upon withdrawal of a participant continue to apply. It is determined according to accounting data. The data is taken for the reporting period that preceded the application for withdrawal. For example, if the application was received on April 11, look at the data for the previous year. If the owner of the share has not paid it in full, he is transferred the actual value of the part for which he contributed funds.

The LLC has 3 months to transfer funds or transfer property. This period is counted from the date such obligation arises. The charter of the company may indicate a different period, then the funds must be transferred in accordance with the requirements of the charter.

If the company refuses to pay or delays funds, the participant has the right to claim them in court. But in order for the court to consider the claim, it is necessary to indicate the actual value of the share and justify it with a calculation scheme. To determine the value, you need to calculate the corresponding net asset price.

To determine the true value of a share, find out the net asset value of an LLC

Determining the value of a share in an LLC depends on the value of its net assets. This indicator is the difference between the LLC's assets and the amount of its liabilities. The obligations of the LLC are recorded in the accounting data ().

Before calculating the actual value of the share, check for which period you need to determine the value of assets. Most often, they take accounting data for the previous reporting year. But the charter of an LLC may have other rules - for example, on filing reports every quarter. Then you need to rely on the reporting for the last quarter.

The plaintiff indicated in the claim the price of the share in accordance with financial indicators LLC for the past year. The society objected and referred to the quarterly submission of reports. The calculation of the actual value of the share based on quarterly data gave a result of 100 million rubles. less than the claim. However, the courts found that there was no requirement in the bylaws to file reports every quarter, and there was no meeting decision to do so. The courts determined the value based on data annual report and supported the plaintiff ().

When determining the value of a share of VAT, VAT is not taken into account

The value of a share in a claim depends on net assets. If VAT is taken into account when determining them, as a result, the cost of the share will be overestimated. The higher court will point out this error and cancel the decision ( , ). Since fixed assets on the balance sheet of an LLC are taken into account without VAT, VAT is not used when calculating net assets ().

The lawsuit indicates not only data on determining the value of a share in an LLC, but also penalty interest

In addition to the requirement to pay the actual value of the share, interest can be charged under Article 395 of the Civil Code of the Russian Federation. They are calculated from the date when the company became obliged to transfer funds to the former participant (,). The calculation of interest is not affected by the date of entry into force of the court act on the recovery of funds for the share ().

You can determine the cost yourself or with the help of experts

• use the available services and determine the cost of the share yourself,
• involve experts in the assessment.

To independently calculate the net assets of an LLC, you can use the Glavbukh System service. You will need data from the balance sheet of the LLC. if you need to calculate interest under Art. 395 of the Civil Code of the Russian Federation, use the calculator.

It is necessary to involve experts in determining the value of a share if there is not enough data to calculate. An unreasonable share will allow the court to reject the claims (). Therefore, in difficult situations, it is better to seek help from specialist appraisers. The court has the right to rely on the data of an independent examination as one of the evidence (). But for the pre-trial examination, the court will not be able to recover court costs from the opponent (,). Before filing a claim, an examination must be done at your own expense.

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

The actual value of the share when leaving the LLC

The actual value of the participant's share in the authorized capital of the company is determined on the basis of the organization's balance sheet data for the last calendar year, preceding the day of submitting an application for withdrawal (, clause 1, 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 withdrawal from the LLC within 3 months from the date such an obligation arises for the company, unless another period is established by the company's charter (clause 2, clause 6.1, article 23 of the Law of 08.02.1998 N 14- FZ). If the deadline for paying 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 registration authority within 1 month from the date the share is transferred 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 share value: calculation

The actual value of the share of a member of the company is determined as part of the value of the net assets of the company, 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 share of the participant = Nominal value of the share / Authorized capital * Net asset value

The value of net assets is calculated according to the balance sheet data according to the formula (clause 4, clause 7 of the Procedure, approved by Order of the Ministry of Finance of Russia dated August 28, 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), with the exception of participants' debts on contributions to the authorized capital (clause 5 of the Procedure

The liabilities accepted for calculation include 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 assistance or gratuitous receipt of property (clause 6 of the Procedure, approved by Order of the Ministry of Finance of Russia dated 28.08.2014 N 84n).

"Calculation", 2014, N 4

Sometimes the calculation of the actual value of a share in the authorized capital is associated with certain difficulties both for the founders who leave the company and for accountants. Anna Mishina found out on what "nodal" moments it is necessary to focus especially and under what circumstances the arbitrators will take into account the calculations made by the forensic expert.

Components

According to the law, upon withdrawal from the founders, the company is obliged to issue compensation to the former partner for the share he leaves. The payout must be equal to the actual value of the share. The calculation of the value is simple - this is the ratio of the par value of the share to the value of the authorized capital, multiplied by the net assets of the enterprise. Since the size of the "charter" is specified in the constituent document and does not raise questions, attention should be paid to the two remaining categories: the face value of the share and net assets.

WITH face value everything seems to be simple too - its total and numerical value is indicated in the state register. Although there is room for error here as well. It should be clarified whether the departing participant paid his part in full, then upon leaving he is entitled to the actual value of his share (this is stated in clause 6.1 of article 23 of the LLC Law).

“In addition,” warns Moscow auditor Yuri Slavin, “an accountant who calculates the actual value of the share of the departing participant needs to clarify whether there are any shares in the UK owned by the company itself. And if there are any, then the calculation should indicate the amount of that part of the authorized capital, which belongs only to the participants, for example, if the size of the entire authorized capital is 10,000 rubles and 2,000 of them belong to the company, then the authorized capital is taken as 7,000 rubles. It is important to observe this rule, otherwise there will be "an unreasonable reservation of part of the net assets in the interests of the remaining participants" (see, for example, the Resolutions of the Fifteenth Arbitration Court of Appeal dated 11/21/2011, FAS of the North Caucasian district dated 03/13/2012 in case N A53-10992 / 2011). And if the owners find out, new calculations will not be avoided, taking into account the already "real" Criminal Code. Naturally, this time the price of the share will turn out to be higher than in the previous calculation, and the "calculated" participants may well go to court and, on an absolutely legal basis, demand interest.

Note. The procedure for calculating the share is clearly established in the Law (i.e. it is mandatory). In other words, it cannot be changed and any other calculation algorithm will be void, even if the founders of the company agree with it and "legalize" it in the company's charter (see Determination of the Supreme Arbitration Court of the Russian Federation of December 13, 2010 N BAC-16834/10).

Market or balance sheet?

Now about the net assets of the enterprise. This is an annual calculated indicator of the value of the property of the company. It represents the difference between the assets on the balance sheet and all debt obligations of the company. I would like to note right away that the courts, as a rule, proceed from the fact that when calculating the actual value of the share of the withdrawing participant, the market price of real estate on the balance sheet of the enterprise is taken into account. "Pay attention, Veronika Nikonova warns, Chief Accountant LLC "RodAvto-ST" company - here the accountant can make a mistake if, for example, the company has not revalued its property for a long time, which led to significant differences in the book value of objects from their real market or replacement price. And the term "actual value" denotes such a type of object value as market value (Article 7 of the Law of July 29, 1998 N 135-FZ). Therefore, the actual value of a share in the authorized capital of a limited liability company upon withdrawal of its participant is determined taking into account the market price of real estate reflected on the balance sheet of the company (Resolution of the First Arbitration Court of Appeal dated April 29, 2009 in case N A38-3364 / 2007-1-250) .

However, one should not forget another conclusion of the SAC - that the actual value of the share should not be calculated taking into account the value added tax. The judges explained that the VAT received from the buyer in the event of the sale of assets is payable to the budget, so it does not affect the price of net assets. At the same time, only recoverable VAT is one of the assets and is taken into account when calculating net assets (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of September 10, 2013 N 3744/13 in case N A28-358/2012).

Calculation and expertise

However, as practice shows, participants who leave the founders do not always manage to receive the compensation due to them peacefully. Quite often, a difference in opinion, or rather, in the interpretation of certain "components" of the formula for calculating the real share, leads businessmen and accountants to court. And then, most likely, another person will enter the case - forensic expert. But his conclusions, alas, are not always perceived by the disputing parties as one hundred percent proof of the correctness of certain calculations.

An example of this is a dispute that was recently resolved by the arbitrators of the Northwestern Federal District.

Two entrepreneurs were members of the company, owned the same shares, each of which corresponded to approximately twenty-five percent of the "charter". After some time, they turned to the company with statements of withdrawal from its membership and demanded that the company acquire their shares, as required by law. After spending everything necessary calculations and withholding personal income tax, the accounting department of the enterprise paid money to the founders. However, the amounts received not only did not please them, but on the contrary, they were very puzzled. The participants agreed that the company gave them far from everything. And after failed attempt to resolve the conflict on their own, the founders were forced to apply to the arbitration court with a claim for the recovery of the cost of the share they were counting on and which, according to their calculations, was approximately three times higher than the amount issued to them, and, moreover, interest for using other people's money for the entire period of confrontation .

The judges of the first instance pointed out that in the current situation, when each of the parties to the dispute insists that its calculation of the actual value of the share is correct, it would be advisable to appoint a forensic examination. When the expert opinion was ready, it became clear that the actual value of the net assets was almost three times more than the amount originally indicated by the plaintiff's accountants. Therefore, the judges of the first, and after them, the appellate instances satisfied the claims of the plaintiffs. The arbitrators ordered the defendant company to pay the founders the amounts they claimed in statements of claim, and in addition interest for the use of other people's money (Decision of the Arbitration Court of the Vologda Region dated July 31, 2013 and Resolution of the Fourteenth Arbitration Court of Appeal dated October 25, 2013 in case N A13-872 / 2013).

However, the representative of the respondent enterprise considered these decisions unlawful. In his cassation complaint, he indicated that the actual value of the shares of the rebellious founders was clearly determined on the basis of accounting data for the last reporting period preceding the day the application for withdrawal from the founders was filed. And the expert's opinion, according to the representative of the company, is incorrect, because. he was not initially provided with all the documents necessary for the study. And if the plaintiffs and the judges consider the conclusions of this specialist necessary, then it would be more correct to invite him to a meeting, where everyone (including the respondent-applicant) will have a real opportunity to ask the expert questions of interest to them and point out all available in the case paper.

But the cassation arbitrators, as well as their colleagues, did not support the company's complaint. They explained that the expert's report could well be considered sufficient evidence to confirm the net assets of the respondent company. As for contesting the conclusion as documentary evidence, this requires very weighty arguments. For example, it is required to clearly indicate the violation of the methodology for its implementation or the presence of contradictions in the conclusions of the expert (part 2 of article 87 of the APC of the Russian Federation). However, the specialist who calculated the actual value of the net assets of the defendant firm was not caught in any of this. Therefore, this argument cannot serve as a reason why the judges did not regard the expert opinion as proper evidence and ordered a new study.

Under such circumstances, the arbitrators of the cassation instance find no grounds to satisfy the complaint and cancel the appealed judicial acts (Resolution of the Federal Antimonopoly Service of the North-Western District of February 5, 2014 in case N A13-872 / 2013).

Note. Today, there is no special algorithm for determining the value of net assets for an LLC. Therefore, the Ministry of Finance indicated that such enterprises have the right to use the calculation methodology intended for joint-stock companies (Letters of the Ministry of Finance of Russia dated May 15, 2008 N 03-03-06 / 1/312, dated December 17, 2008 N 03-03-06 / 1/696). And arbitration practice confirms this (Resolutions of the Federal Antimonopoly Service of the Urals District dated April 18, 2006 N F09-2886 / 06-C5).

When mistrust is possible

Since recourse to forensic examination when calculating the actual value of a share is a rather frequent phenomenon, I would like to note once again that during the examination, the specialist who is entrusted with the study himself determines the amount of material (in the case just considered - financial documents) that is necessary for giving answers to the questions put by the court. After all, it is understood that he has sufficient qualifications to decide for himself which papers he needs. But the participant in the case, within the framework of which the examination was appointed, is just not a specialist (in the sense of Art. 55.1 of the APC of the Russian Federation), therefore his conclusions contain only a subjective assessment of the actions of the expert, because he is a person of interest, and cannot serve as evidence that the expert's conclusion is incorrect. In addition, judges always warn the expert about the responsibility for giving a deliberately false conclusion, and this is an extra and very good reason to consider the conclusion as full and reliable evidence.

As for the appointment of a re-examination, this is possible only if there are doubts about the validity of the expert’s opinion or the presence of contradictions in his conclusions (part 2 of article 87 of the Arbitration Procedure Code of the Russian Federation). If the specialist has made a clear, unambiguous and categorical conclusion that does not contain contradictions, the arbitrators have no reason to question the expert's statements and "start" everything in a new "circle".

Please note that there may also be such a situation that an expert conducting an important study is fired in the middle of work. The situation is unpleasant, but by no means fatal and has no legal significance for the examination. After all, the dismissal of a specialist who investigated your problem does not indicate that the latter was incompetent. And if the court does not find contradictions in the conclusions of the dismissed person, then the dismissal itself excludes the appointment of a re-examination (part 2 of article 87 of the APC of the Russian Federation). Another thing is if the court has doubts about the validity of the expert’s opinion due to the absence in the presented conclusion of information about the date of its compilation, taking into account the expert’s explanations about the date of its (conclusion) preparation after dismissal from expert institution(Resolution of the Seventeenth Arbitration Court of Appeal dated January 11, 2013 N 17AP-14646/2012-GK).

Bankruptcy and the real value of the share. Exit of a member from the society. Payment to the participant of the actual value of the share. Calculation of the actual value of the share.

If a member of a limited liability company decides to withdraw from the company, he is entitled to expect to receive the actual value of the share, determined on the basis of the book value of net assets. During the period of bankruptcy or in its run-up, payments to participants are prohibited. Does the participant have the right to file a claim through the court for the payment of funds for the share that has gone to the company? What period and what indicators should be taken into account when determining this value?

Case plot:

The participant of the company, in connection with the exit, demanded to pay the actual value of the share (hereinafter referred to as the DSD). In 2016, the LLC received an application for the withdrawal of a participant, a report was drawn up on the assessment of the market value of the share. In 2018, after the introduction of an external management procedure in relation to the LLC, the participant applied to the court with a claim for payment of funds for the alienated share. The defendant objected to the size of the claims, as well as to the fact of payment during the bankruptcy period.

In the first instance, the applicant was refused: during the period of bankruptcy, a person cannot leave the company and demand payments. The judges of the appeal took a different side, the plaintiff's requirements were satisfied.

Judgment: decision of the 8th AAC dated 06/21/2019 in case No. A70-4289 / 2018

Court's findings:

1. Any person has the right to protect his interests with the help of the court, independently determine the methods of judicial protection.

2. The cost of the share that is paid to the withdrawing participant is determined based on the data financial statements for the last reporting period. If the application was received in 2016, net assets are taken into account in accordance with the reporting for 2015.

3. The cost estimate is confirmed by an expert examination, accounting provisions are applied according to which the book value of funds is reduced to market prices. During the assessment period, the company's assets included fixed assets that were retired from the company's possession after the specified period. At the end of 2015, no evidence was provided of the absence of objects classified as fixed assets of the company.

4. The objection that the experts operated only on separate documents, possibly in a truncated form, does not exclude the reliability of the information examined by the expert.

5. The amount established by the expert is reasonable, its inconsistency and excessive overestimation have not been proven.

6. The law establishes a ban on the payment of DSD if the company is in bankruptcy or, as a result of the payment, will be in bankruptcy. At the same time, no prohibition has been established for the court to consider and make a decision on recovery. Bankruptcy does not deprive the participant of the right to defend his interests in court.

7. A claim for payment of an LTA to a participant cannot compete with the debtor's obligations to other creditors. Participants have the right to claim only the property that remains after settlements with creditors.

8. The resolution of the dispute on the merits will entail the introduction of certainty into the legal relations of the withdrawn participants of the company, which will contribute to the resolution of the corporate conflict.

Comments:

1) The unconditional right of the participant to receive funds for his share faces restrictions in the event of bankruptcy of the company - in this case, the advantage is on the side of bona fide creditors, and payments to participants are made after settlements with creditors.

2) The claim is fair in terms of the actual payment of funds. However, the claim itself can be filed and considered by the court. Restrictions during the bankruptcy period apply only to payments, that is, the court decision is likely to be unenforceable, however, the bankruptcy period cannot impose a restriction on the judicial protection of the plaintiff's right.

3) The obligation of the company to pay the DSD is not excluded due to the opening of bankruptcy proceedings. The initiation of bankruptcy proceedings only affects the term for paying the DSD. This conclusion has been repeatedly confirmed by judicial practice.

4) LTA should be determined taking into account the market value of assets and real estate that are on the balance sheet of the company at the date of reporting. However, DSD is determined not based on the market value of assets, but on the basis of accounting data.

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