Question from Clerk.Ru reader Tatyana (Moscow)
The procedure for the withdrawal of a participant from the company is regulated by Article 26 of the Federal Law of February 8, 1998 N 14-FZ "On Limited Liability Companies". A participant in a company has the right to withdraw from the company by alienating a share to the company.
In case of withdrawal of a participant from the company, in accordance with Article 26 of this federal law his share passes to the company (clause 6.1 of Article 23 of the Federal Law on LLC).
The company is obliged to pay the participant the actual value of his share. The cost is determined based on the data financial statements for the last reporting period preceding the day of filing an application for withdrawal from the company. The cost is paid within three months from the day the corresponding obligation arises, unless another period is provided for by the charter of the company.
The actual value of the share of a member of the company corresponds to the part of the value of the net assets of the company, proportional to the size of its share (paragraph 2, clause 2, article 14 of the Federal Law on LLC).
The current procedure for calculating net assets (Order of the Ministry of Finance of the Russian Federation N 10n, Federal Commission for the Securities Market of the Russian Federation N 03-6 / pz dated January 29, 2003 "On approval of the Procedure for assessing the value of net assets of joint-stock companies").
In the opinion of the Ministry of Finance, LLCs can use the methodology for calculating net assets adopted for joint-stock companies (letters of the Ministry of Finance of Russia of October 29, 2007 N 03-03-06 / 1/737, of January 26, 2007 N 03-03-06 / 1/39).
The value of net assets is understood as the value determined by subtracting from the amount of assets joint-stock company accepted for calculation, the amount of its liabilities accepted for calculation.
The value of net assets is the difference between the company's assets and liabilities taken into account.
The composition of assets accepted for calculation includes:
- fixed assets
- current assets, with the exception of the cost of repurchased shares, and debts of participants for contributions to the authorized capital.
Liabilities included in the calculation include:
- long-term liabilities on loans and credits and other long-term liabilities;
- short-term liabilities on loans and credits;
- accounts payable;
- indebtedness to participants (founders) for the payment of income;
- reserves for future expenses;
- other short-term liabilities.
Form for calculating net assets, it will help in the calculation. Thus, when calculating the true value of the share of the action, the following should be:
- Take the balance (form 1) for the period preceding the withdrawal statement.
- Calculate net assets in accordance with the table from the Ministry of Finance-FCSM.
- Multiply the resulting amount by the share of the participant.
Example:
The participant applied for withdrawal on December 01, 2009. The authorized capital is 10,000 rubles. The share of the participant is 49%. The previous reporting period is 9 months of 2009.
Extract from the balance sheet as of September 30, 2009:
Assets:
- Fixed assets - line 140 - 40 thousand rubles
- Stocks - line 210 - 50 thousand rubles
- Cash - line 260 - 99 thousand rubles
- Accounts payable - line 620 - 64 thousand rubles.
Net assets: 189-64=125 thousand rubles.
Actual value of the share: 125/100*49=61,250 thousand rubles
Thus, in accordance with the calculation, the company is obliged to pay the participant the actual value of his share in the amount of 61,250 rubles.
Getting a personal consultation on the registration and re-registration of companies online is very simple - you need to fill out . Several of the most interesting questions will be selected daily, the answers to which you can read in the consultations of a specialist.
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 face value their share. 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 authorized capital companies: this is a part of the net asset value 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.
Often, when carrying out safety actions, one has to come across such a term as real. Having an idea about the features of such a concept, there are high chances not to get confused and correctly arrange insurance.
Actual value of property, general concept
The actual value of the property - for insurance
The actual, actual value of the property, in other words, is used for insurance purposes. Such a concept is endowed with special significance in situations where it is required to make a determination regarding the sum insured in the insurance contract for property objects.
As for the sum insured, it cannot be higher than the sum insured. When it comes to, then such a concept as the actual value will have to be forgotten, because it loses its meaning. This is due to the fact that there is no objective assessment of the cost of human health or life.
Often, to establish the insurance value, the balance sheet (inventory) is used. This is typical, first of all, for enterprises whose fixed assets are insured in accordance with their full book value (at the same time, depreciation is also taken into account). It follows that in the event of the complete destruction of the designated property objects, the insured value will coincide with the total amount of the insurance indemnity.
Features characteristic of the actual value of property objects
Actual value may vary
The actual value of the property is characterized by changes, both downward and upward. In cases of designation of this amount as underestimated to the insurance, further development situation is determined by the nuances of Art. 951 GK.
Exceptions are possible, which include those moments when the amount of the insured value in the contract is fixed. The actual value of the property should be determined in accordance with its location at the time when it was produced.
Insurance at a cost called recovery, which at the time of the onset of an insurance situation, may significantly exceed that indicated in the concluded agreement, is not allowed.
If the actual value of the property has a tendency to increase, and the amount of the sum insured will not change upwards, and there will be no payment of additional insurance premiums, you can refer to paragraph 4.5 of paragraph 4 of the Civil Code.
Since the establishment of the value of property objects is carried out at their location on the day when it is concluded, the address must be clearly indicated in this agreement.
As a rule, the sum insured cannot exceed the actual value of the property. However, most types of property insurance assess damage less than its actual value, in cases where the object is not destroyed, but only fairly damaged as a result of an insurance event. The name of such damage is partial.
The value fixed in the contractual agreement is the actual value of the property. If the amount of insurance indicated in the contract is higher than the insurance value, then the document is invalidated in the part exceeding the actual value.
If we are talking about the underestimated amount of the insured value, then the issue with the amount of insurance compensation is resolved by reducing the sum insured to the insured value in proportion.
Actual cost, methods of determination
Actual value and market value are different concepts.
The concept of "real value" is far from being identical to the term "market value". Therefore, in order to determine the true value, it does not make sense to use methods designed to establish a market price.
Various methods are used to determine the insurance value. In each country, they differ, depending on what kind of legislation operates and what is the object of insurance. In case of equality of the sum insured and the insured value, the property is recognized as fully insured.
If the amount is less, then the share of responsibility lies at the insured's own risk. Among the main methods for determining the actual sum insured are:
- The insured value of the property as the purchase price.
- insurance value as its book value.
- Insured value as an average market value.
- Insurance value as replacement.
However, none of these techniques is perfect, and many of them cannot be applied in their pure form to establish true value.
Ways to establish the actual value of the property
A professional will help you appraise your property.
To resolve the issue of determining the value of the property after the fact, you can resort to the following actions:
- Apply information from directories or reports of independent appraisers. After all, in other words, it is necessary to determine the assessment in financial terms of the direct subject of insurance. As for the property, the insured value for it will be determined directly, by the actual price established at the time of conclusion of the insurance agreement.
- In cases of real estate insurance, in order to determine the size of the insured value of the insurance object (whether it be a house), it is allowed to accept an amount equal to the market value of the premises under study, but only if it is similar to the insured one. In other words, in order to determine the value of the insured value of an apartment, one should calculate market price apartments located in the same area, having a similar area with the same number of rooms, and located on the same floor.
Thus, in order to calculate the true value of the property, various methods of economic valuation are used. It is important to remember that this value is crucial in establishing the sum insured.
Opinion of a legal expert:
For a general understanding of the situation with the valuation of property for the purposes of its insurance, the article is quite useful. You gain some knowledge in this problem. However, this knowledge alone is not enough to make the right decision.
It consists in agreeing or not with the amount of insurance indemnity if your property perishes or major repairs are required. There can be only one criterion. This money is enough to bring the property to its original state. Enough, then it's all right. If not, look for why it happened. Who screwed up, you or the appraiser? Find the cause, eliminate the consequences. After that, make a decision.
To this process should be added the cost of the insurance itself, in other words, the amount of the insurance premium. Here you will get the full calculation. It is up to you to draw a conclusion about the appropriateness of such an assessment. Make the right decisions based on our recommendations.
About property valuation - in the thematic video:
2 participants withdrew from the company. It was decided to distribute the share of the withdrawn participants to the remaining participant. Reflection on accounting records and documentation.
Question: An explanation is urgently needed on the situation: 2 participants left the society. with the payment of the actual value of the share in monetary terms, distribute the share of the withdrawn participants to the remaining participant, the protocol is drawn up. There are notarized statements. What accounting entries need to be issued specifically for this situation and how to determine the actual share. The authorized capital is 10,000 rubles.
Answer: The true value of a share is the share of net assets. To calculate the true value of the share, there is not enough data on the capital, but data on net assets is needed. For most organizations, the NA value is equal to the total for Section III Balance sheet "Capital and reserves". This value must be taken from the financial statements.
It follows from arbitration practice that if applications for withdrawal are submitted to the Company in July, then it is necessary to draw up interim reports for the period 01/01/2018-06/31/2018 and, on its basis, calculate the net asset value for settlements with participants.
Thus, in the decision of the Seventh Arbitration Court of Appeal dated 04/06/2015 No. 07AP-871 / 2015, A67-1869 / 2014, the court indicated that “the company, knowing that its participant filed 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 true value of the share of the withdrawing participant.
This is provided for in paragraphs and 7 subparagraph 2 of paragraph 2, paragraph 7 of Article 220 of the Tax Code.
Wiring:
- the transfer of a share from participants to an organization is reflected, the amount of the transaction is the actual value of the share;
Debit 80 subaccount "Participant" Credit 80 subaccount "LLC"
- reflects the nominal value of the share that was transferred to LLC.
Debit 75 subaccount "Participant" Credit 68 subaccount "Calculations for personal income tax"
- personal income tax withheld from the actual value of the share;
Debit 75 subaccount "Participant" Credit 50
- the participant was paid the actual value of his share in the authorized capital minus personal income tax.
The distribution of a 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
- according to the decision on the redistribution of 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 "Remaining participant"
- reflects the change in the composition of participants;
If the remaining participant does not pay 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 sub-account "Participant remaining"
- the nominal value of the share in the part transferred to the remaining participant in the redistribution was written off;
When distributing the share of retired participants to the remaining participant, he receives income subject to personal income tax. Since no payments are made to participants, the organization must inform the inspection about the impossibility of withholding personal income tax.
Conditions for leaving the company
When the withdrawal of participants from the LLC is prohibited
The founder (participant) may withdraw from the LLC, regardless of the consent of other participants or the company, as follows:
From the date of submission of this document, the share of the participant will pass to the organization (clause 2, article 94 of the Civil Code, clause 6.1, article 23 of the Law of February 8, 1998 No. 14-FZ).
When the participant's application for withdrawal from the LLC is considered filed
One of the following dates shall be recognized as the date of submission of the 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 the competent person;
the day on which the company received the application sent by mail.
On July 16, Glebova sent a statement 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.
Charter change
If the founder (participant) left the LLC before the company's charter was brought into line with the new version of the Law of February 8, 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 changes in the charter. This is mentioned in.
Within a year from the date of filing an application for withdrawal, the organization must find new owners of the share of the founder (participant) who has withdrawn from 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 composition of the members of the organization must be reflected in the list of members of the company. This document, in addition to information about each participant, must contain information about the size of his share, its payment, the size of the shares owned by the company itself, the dates of their transition to the company, etc. ().
Making changes 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 an 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 to make changes to the register are listed in paragraph 6 of Article 24 of the Law of February 8, 1998 No. 14-FZ, the Law of August 8, 2001 No. 129-FZ and the letter of the Federal Tax Service of June 25, 2009 No. MN-22-6 / 511.
Payment of a share to a withdrawing 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) leaving the LLC, using 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 should be used to calculate the actual value of the share of the founder (participant)
Estimate the actual value of the share of the founder (participant) to be redeemed on the basis of 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 when buying out a share (when a participant leaves 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 requirement (application). At the same time, the indicators for calculating the actual value of the share must be taken from the reporting that is closest to the date of filing the demand (application) of the participant to withdraw from the company. This can be not only annual, but also intermediate (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 judicial practice(See, for example, the decisions of the Seventh Arbitration Court of Appeal of 04/06/2015 No. 07AP-871/2015, the Arbitration Court of the West Siberian District of 08/06/2015 No. Ф04-21575/2015).
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 property, cannot be applied.
However, it should be borne in mind that financial statements must accurately reflect financial position organizations (clause 6 PBU 4/99). Subject to this rule The book value of the property corresponds to its market value.
The withdrawing participant has the right to challenge in court the amount of the actual value of the share calculated by the company (subparagraph “c”, paragraph 16 of the decision 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. At the same time, the balance sheet data is used to establish the composition of the company's property (resolutions of the Presidium of the Supreme Arbitration Court dated 07.06.2005 No. 15787/04, dated 06.09.2005 No. 5261/05).
The rulings of arbitration courts adopted after that are overwhelmingly based on this position (see, for example, the decisions of the Supreme Arbitration Court dated 05.03.2010 No. VAS-1880/10, dated 11.22.2007 No. 2010 No. A75-5643 / 2009, Ural District dated 05.12.2010 No. Ф09-3177 / 10-С4, dated 03.18.2010 No. Ф09-1603 / 10-С4, Far Eastern District dated 03.23.2010 No. 1365/2010, Volga District from 02/12/2010 No. A72-4275 / 2008, dated 02.12.2010 No. A72-4272 / 2008, Central District dated 02.05.2010 No. F10-6286 / 09, dated 03.30.2009 No. F10-714 / 09 (2), North- Western District of December 23, 2009 No. A26-3413 / 2008, North Caucasian District of December 11, 2009 No. A32-16337 / 2007, Volga-Vyatka District of May 28, 2008 No. A28-278 / 2008-9 / 9).
In this situation, the organization will have to decide on its own the issue of assessing 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 evaluates the actual value of the share of the founder (participant) to be redeemed based on the market value of the property reflected in the balance sheet.
An example of calculating the actual value of a share when a founder leaves an LLC. The carrying value of the net assets of the organization corresponds to their market value
Gromova decided to withdraw from the founders. Gromova's withdrawal statement was received by Hermes on July 16. To pay the share, the Hermes accountant calculated its actual value according to the balance sheet. According to the balance sheet for the first half of the year, the value of the net assets of the organization is 1,080,000 rubles.
The actual value of Gromova's share to be paid is:
25 000 rub. : 100 000 rub. ? RUB 1,080,000 = 270,000 rubles.
Accounting: payment of a share
How to reflect in accounting the payment of a participant's share when he leaves the LLC
Settlements with the founder (participant) can be both in money and in property (with his consent). This must be done within three months from the date the participant submitted 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 is paid, minus the withheld personal income tax.
An example of the payment of the actual value of the share when the founder leaves the LLC. The carrying value of the net assets of the organization corresponds to their market value
The authorized capital of OOO Trading Firm Germes is 100,000 rubles. It is divided into shares between three participants:
share A.V. Lviv - 25,000 rubles;
share E.E. Thunder - 25,000 rubles;
share of V.K. Volkov - 50,000 rubles.
Gromova decided to withdraw from the founders. Gromova's withdrawal statement was received by Hermes on July 16. To pay 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 net assets of the organization is 1,080,000 rubles. The actual value of Gromova's share is 270,000 rubles. (25,000 rubles: 100,000 rubles? 1,080,000 rubles).
Debit 81 Credit 75 subaccount "Participant Gromov"
- 270,000 rubles. - the transfer of Gromova's share to the organization is reflected;
Debit 80 subaccount "Participant Gromov" Credit 80 subaccount "Hermes Trading Company"
- 25,000 rubles. - reflects the nominal value of the share that was transferred to Hermes.
On August 20, the Hermes cashier paid Gromova the amount due to her. Gromova is a resident of Russia. On this day, the accountant made the following entries:
Debit 75 subaccount "Participant Gromov" Credit 68 subaccount "Calculations 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 Gromov" Credit 50
- 234 900 rubles. (270,000 rubles - 35,100 rubles) - the participant was paid 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
No no need.
In the event of the founder (participant) leaving 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.
Therefore, 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 financial years in a row (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 article 90 of the Civil Code, paragraph 4 of article 30 of the Law of February 8, 1998 No. 14-FZ). In this case, the authorized capital can be reduced by reducing the nominal value of the shares of all participants or by paying off the shares owned by the company (clause 1, article 20 of the Law of 08.02.1998 No. 14-FZ).
An example of the reflection in accounting of the transfer of a participant's share when leaving an LLC. The payment of the actual share is not made, since the value of net assets is negative
The authorized capital of OOO Trading Firm Germes is 100,000 rubles. It is divided into shares between three participants:
share A.V. Lviv - 25,000 rubles;
share E.E. Thunder - 25,000 rubles;
share of A.S. Glebovoy - 50,000 rubles.
Glebova decided to withdraw from the participants. Glebova's notice of withdrawal was received by Hermes on 16 July. As a general rule, when Glebova leaves the membership, Hermes must pay her the actual value of the share within a month. However, according to the balance sheet for the first half of the year, taking into account the market value of the property, the net asset value turned out to be negative (-250,000 rubles).
Based on this, the calculation and payment of the actual value of the share in the event of Glebova's withdrawal from the LLC participants is not made. IN 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 general meeting participants).
Since the shares of Lvov and Gromova are the same, the share of Glebova is distributed equally between them.
Debit 81 Credit 75 sub-account "Participant of Glebov"
- 50,000 rubles. - reflects the transfer of Glebova's share to the organization at par value;
Debit 80 subaccount "Participant Glebov" Credit 80 subaccount "Hermes Trading Company"
Debit 75 subaccount "Participant Glebov" Credit 91
- 50,000 rubles. - the nominal value of Glebova's share is included in other income.
The accountant reflected the distribution of the share in the authorized capital of the company between the remaining participants by postings:
Debit 75 subaccount "Participant Lviv" Credit 81
- 25,000 rubles. (50,000 rubles: 2) - according to the decision on the redistribution of the share of the retired participant, the transfer of the nominal share to Lviv is reflected;
- 25,000 rubles. (50,000 rubles: 2) - according to the decision on the redistribution of the share of the retired participant, the transfer of the nominal share to Gromova is reflected;
- 25,000 rubles. (50,000 rubles: 2) - the nominal value of the share in the part transferred to Lvov by redistribution was written off;
- 25,000 rubles. (50,000 rubles: 2) - the nominal value of the share in the part transferred to Gromova through redistribution was written off.
When distributing the share of the retired participant among the remaining participants, they receive income subject to personal income tax. Since there are no payments to participants,
Accounting: transfer of a participant's share to an organization
How to reflect in accounting the transfer of a 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 sub-account "Participant"
- the transfer of the share of the participant to the organization is reflected.
An example of accounting for the distribution of the share of a retired participant between the remaining participants
The authorized capital of OOO Trading Firm Germes is 100,000 rubles. It is divided into shares between three participants:
share A.V. Lviv - 25,000 rubles;
share E.E. Thunder - 25,000 rubles;
share of V.K. Volkov - 50,000 rubles.
-50 000 rub. - reflects the nominal value of the share that was transferred to Hermes.
By decision of the general meeting of participants, the share of the withdrawn 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 withdrawn participant is distributed 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 Gromov" Credit 81
- 110,000 rubles. (220,000 rubles: 2) - the transfer of the share to Gromova is reflected by the decision to redistribute the share of the retired participant;
Debit 75 "Participant Lviv" Credit 81
- 110,000 rubles. (220,000 rubles: 2) - reflected the transfer of the share to Lviv by decision on the redistribution of the share of the retired participant;
Debit 80 subaccount "Trading company "Hermes"" Credit 80 subaccount "Participant Gromov"
- 25,000 rubles. (50,000 rubles: 2) - reflects the change in the composition of participants;
Debit 80 subaccount "Trading company "Hermes"" Credit 80 subaccount "Participant Lviv"
- 25,000 rubles. (50,000 rubles: 2) - reflects the change in the composition of participants.
Since the remaining participants do not pay for the shares distributed in their favor, the amount reflected in the debit of account 75 is debited from the appropriate sources:
Debit 84 Credit 75 subaccount "Participant Gromov"
- 110,000 rubles. - the actual value of the share in the part transferred to Gromova through redistribution was written off;
Debit 84 Credit 75 sub-account "Participant Lviv"
- 110,000 rubles. - the actual value of the share in the part transferred to Lviv by redistribution was written off.
When distributing the share of the retired participant among the remaining participants, they receive income subject to personal income tax. Since payments to participants are not made, the organization reported to the inspection that it was impossible to withhold tax.
An example of the reflection in 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 Germes is 100,000 rubles. It is divided into shares between three participants:
share A.V. Lviv - 25,000 rubles;
share E.E. Thunder - 25,000 rubles;
share of V.K. Volkov - 50,000 rubles.
Volkov decided to withdraw from the participants. On July 16, his application for withdrawal was received by the organization. The actual value of Volkov's share is 220,000 rubles.
The following entries were made in the accounting of the organization:
Debit 81 Credit 75 subaccount "Participant Volkov"
- 220,000 rubles. - reflects the transfer of Volkov's share to the organization;
Debit 80 subaccount "Participant Volkov" Credit 80 subaccount "Hermes Trading Company"
-50 000 rub. - reflects the nominal value of the share that was transferred to Hermes.
By decision of the general meeting of participants, the share of the withdrawn participant will be sold to a third party at its actual value (220,000 rubles)
In accounting, the accountant reflected the sale of a share in the authorized capital with the following entries:
Debit 75 subaccount " New member» Credit 91-1
- 220,000 rubles. - the share of the retired participant was sold to a new participant;
Debit 91-2 Credit 81
- 220,000 rubles. - the actual (actual) cost of the sold share was written off;
Debit 50 (51) Credit 75
- 220,000 rubles. - the share is paid by the new participant;
Debit 80 subaccount "Trading company "Hermes"" Credit 80 subaccount "New participant"
- 50,000 rubles. - reflects the change in the composition of participants.
Situation: what 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 leaving the company, the founder (participant) write off the actual value of his share in accounting.
In the debit of account 81 “Own shares (shares)”, reflect the amount of actual costs - the amount to be paid to the founder (participant) (Instructions for the chart of accounts). The LLC must pay the founder (participant) the actual value of the share (clause 6.1, article 23 of the Law of February 8, 1998 No. 14-FZ). Therefore, in the debit of account 81 "Own shares (shares)" include the actual value of the share.
An example of the reflection in accounting of settlements with a participant when he leaves an LLC
The authorized capital of OOO Trading Firm Germes is 100,000 rubles. It is divided into shares between three participants:
share A.V. Lviv - 25,000 rubles;
share E.E. Thunder - 25,000 rubles;
share of V.K. Volkov - 50,000 rubles.
Volkov decided to withdraw from the participants. On July 16, his statement of withdrawal was received by the society. The actual value of Volkov's share is 220,000 rubles.
In the accounting of the organization, a posting was made:
Debit 81 Credit 75 subaccount "Participant Volkov"
- 220,000 rubles. - reflects the transfer of Volkov's share to the organization.
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 the share does not fall under the benefit.
The fact is that the funds that were paid to the founder upon leaving the LLC will be his income, which means they are subject to personal income tax (). In this case, the organization from which this income is received is recognized as a tax agent and must independently calculate, withhold and pay tax (clause 2, clause 1, article 228 of the Tax Code).
Given the later position of the regulatory 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 do not have to pay personal income tax if:
- as of the date of alienation, the share has been continuously owned by the participant for more than five years;
- the participant acquired the share no earlier than January 1, 2011.
When a participant withdraws from 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).
At the same time, the resident participant has the right to a property deduction in the amount of actually incurred and documented expenses associated with the acquisition of this share. These expenses include:
- money, property that was contributed to the authorized capital during its formation or aimed at increasing it;
- expenses for the acquisition or increase of a share in the authorized capital.
If there are no documents, a deduction can be received in the amount of 250,000 rubles.
A participant can receive a property deduction in tax office when it submits a tax return at the end of the year.
This is provided for in 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, the organization, in theory, needs to withhold personal income tax and transfer it to the budget (, clause 1, 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 from. And therefore it is necessary to send the corresponding message to inspection .
An example of the distribution of the share of a retired participant among the founders
The authorized capital of OOO Trading Firm Germes is 100,000 rubles. It is divided into shares between three participants:
share A.V. Lviv - 25,000 rubles;
share E.E. Thunder - 25,000 rubles;
share of V.K. Volkov - 50,000 rubles.
Volkov decided to withdraw from the participants. On July 16, his statement of 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 withdrawn 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 withdrawn participant is distributed equally between them. That is, 25,000 rubles. to each.
When distributing the share of the retired participant among the remaining participants, they receive income taxable with personal income tax in the amount of 25,000 rubles. Since payments to participants are not made, the organization reported to the inspection that it was impossible to withhold tax.
Answered by Alexander Sorokin,
Deputy Head of the Operational Control Department of the Federal Tax Service of Russia
“CCP should be used only in cases where the seller provides the buyer, including its employees, with a deferral or installment plan for paying for their goods, works, services. It is these cases, according to the Federal Tax Service, that relate to the provision and repayment of a loan to pay for goods, work, and services. If an organization issues a cash loan, receives a return of such a loan, or itself receives and repays a loan, do not use the cash desk. When exactly you need to punch a check, look at
Change in the nominal value of the share of a participant - an individual
In order to increase business liquidity, many financial and industrial groups and holding companies consider the possibility of making a decision to increase the authorized capital of subsidiaries without changing the shares. As a rule, the directors of the parent companies act as participants in subsidiaries. In this case, the nominal value of the shares of participants - individuals increases. Let us consider the tax consequences of a change (increase or decrease) in the nominal value of a participant's share.
The authorized capital of a limited liability company consists of the nominal value of the shares of participants (clause 1, 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 be an investment securities, things or property rights having a monetary value. The LLC Law establishes the following methods for assessing the share of a participant - an individual in the authorized capital:
- in the form of the nominal value of the share, determined in rubles;
- the size of the share, determined as a percentage or as a fraction. It corresponds to the ratio of the nominal value of the share of the participant and the authorized capital of the company;
- the actual value of the share.
<1>Federal Law No. 14-FZ of February 8, 1998 "On Limited Liability Companies".
As noted in paragraph 3 of Art. 26 of the Law on LLC, the actual value of the share of a member of the company is paid out of the difference between the value of the net assets of the company and the size of its authorized capital. The algorithm for calculating the actual value of the share is as follows: the nominal value of the share is divided by the size of the authorized capital of the company, then the resulting figure is multiplied by the value of the company's net assets. The actual value of the share is determined on the basis of the financial statements of the company for the year.
There are three ways to increase the authorized capital of an LLC - by:
- property of the company itself;
- additional contributions of its participants;
- deposits of third parties accepted by the company.
As already noted, the authorized capital of a company consists of the nominal 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 nominal value of the share of one or more participants. The above does not apply to a situation where the authorized capital is increased by contributions from third parties, since this is due to the admission of one or more new participants to the company and their contributions to the authorized capital, therefore, the nominal value of the shares of old participants in the company does not change.
Increase in 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 increases at once. The size of the shares of participants 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 revaluation of fixed assets (funds).
Let us consider what tax consequences the increase in the nominal 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 to the company exceeds 200 minimum wages, then it is necessary to involve an independent appraiser.
Example 1. The nominal value of the share of an individual participant in the authorized capital of Alfa LLC is 150,000 rubles. Monetary valuation of the contribution made independent appraiser and approved by the LLC participant is equal to 200,000 rubles. and is contributed to the authorized capital of the newly created Beta LLC.
The cost of services for independent evaluation the nominal value of the share amounted to 59,000 rubles, including VAT - 9,000 rubles.
In the accounting of OOO "Alfa" the following entries are made:
D 58 "Financial investments", subaccount 1 "Shares and bonds", - K 91 "Other income and expenses", subaccount 1 "Other income", - 50,000 rubles. (200,000 rubles - 150,000 rubles) - recognized operating income from participation in other organizations;
D 91-1 - K 76 "Settlements with various debtors and creditors" - 50,000 rubles. – services for an independent assessment were accrued;
D 19 "Value Added Tax on Acquired Values" - K 76 - 9000 rubles. — allocated VAT according to an independent assessment;
D 68 "Calculations on taxes and fees" - K 19 - 9000 rubles. — accepted for deduction from the VAT budget.
For the purposes of taxation of profits, income in the form of an excess of the par value of a share over its initial size when investing in the authorized capital of Beta LLC is not taken into account when determining the tax base (para.
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 with regard to the cost of services of an independent appraiser. Can it be taken into account when taxing profits? For the purpose of calculating income tax, payment for the services of specialized organizations for property valuation is taken into account as part of other expenses associated with production and (or) sales (clause 40 clause 1 article 264 tax code RF). The date of these expenses, as in accounting, is the date of signing the act of acceptance and delivery of the rendered services for property valuation.
Consider whether the taxable base for personal income tax arises for a participant - an individual with an increase in the nominal value of the share. According to Art. 41 of the Tax Code of the Russian Federation, income is recognized as 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 assessed.
Example 2. The authorized capital of Metal-Service LLC 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 3,000 rubles. (10,000 rubles x 30%), and the second - 7,000 rubles. (10,000 rubles x 70%).
The general meeting of participants of Metall-Service LLC decided to increase the authorized capital of the company to 100,000 rubles. at the expense of retained earnings of previous years. After the increase in the authorized capital, the new nominal 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 entry is made:
D 84 "Retained earnings (uncovered loss)" - K 80 "Authorized capital" - 90,000 rubles. — reflects the nominal value of the contribution share.
When the authorized capital is increased at the expense of the company's property, there is no change in the shares of participants, i.e. the participant does not receive any additional scope of rights arising from his ownership of the shares. Such an increase leads only to a change in the structure equity organizations. Therefore, 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 nominal value of a participant's share does not lead to the latter's income in kind. An individual will receive income only when he leaves the company (as the difference between the value of the share and the contribution of the participant).
Specialists of the Ministry of Finance of Russia and tax authorities are of the opinion that with an increase in the authorized capital from other sources, except for the revaluation of fixed assets, an individual receives 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 No. 04-1-03/318).
As for judicial practice, when considering disputes over the need to tax personal income tax on the amounts of an increase in the nominal value of the shares of company participants when the authorized capital is increased, the courts come to the conclusion that individuals do not receive income taxable with personal income tax in such situations (see, to for example, the Resolution of the FAS of the North-Western District of April 23, 2008 in case N A26-3819 / 2007, the Thirteenth Arbitration Court of Appeal of December 24, 2007 in the case of N A26-3819 / 2007, FAS of the Ural District of May 28, 2007 . in case N F09-3942 / 07-C2, FAS of the East Siberian District of July 25, 2006 in case N A33-18719 / 05-F02-3629 / 06-C1). According to the author, this position of the courts should be considered correct.
Decrease in par value of a share
In accordance with Art. 20 of the Law on LLC, a decrease in the authorized capital of a company can occur by:
- reducing the nominal value of the shares of all participants;
- redemption of shares owned by the company.
Let's look at the second option first. By decision of the general meeting of 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, and also, if this is not prohibited by the charter of the company, to third parties. The undistributed or unsold part of the share must be redeemed with a corresponding reduction in the authorized capital of the company.
Example 3. The company acquired the share of the retired participant, but failed to sell it within a year. The value of the share is 30%, the authorized capital of the company is 100,000 rubles, net assets are 130,000 rubles.
Let us determine the real 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. 39 000 rub. (130,000 rubles x 30%).
The nominal 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 minus the authorized capital is 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 has decided that the reduction of the authorized capital will occur due to the reduction of the nominal shares of participants. In the accounting of the company, the following entries are made:
D 81 "Own shares (shares)" - K 75 "Settlements with the founders" - 30,000 rubles. — reflects 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 is 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 owned by the company has been redeemed;
D 91-1 - K 81 - 9000 rubles. - the amount of excess of the actual value of the share over the nominal value is reflected;
D 99 "Profit and Loss" - K 68, sub-account Calculations for income tax "- 2160 rubles (9000 rubles x 24%) - a permanent tax liability is reflected.
Now about the 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 - an individual does not receive any income.
Example 4. By decision of the general meeting of participants, Cementservice LLC changes the amount of the authorized capital by reducing it by a total amount of 500,000 rubles. the value of the nominal shares of all participants without paying the difference to the participants. In the accounting of Cementservice LLC, an entry is made:
D 80 - K 84 - 500,000 rubles. — a decrease in the nominal value of shares without paying the difference to participants is reflected.
Let's change the conditions of the example. By decision of the general meeting of participants, Cementservice LLC changes the amount of the authorized capital by reducing the value of the nominal shares of all participants, but with the payment of the difference to the participants in the total amount of 500,000 rubles.
In the accounting of an LLC, the following entries are made:
D 80 - K 75 - 500,000 rubles. — a decrease in the nominal value of shares with the payment of the difference to participants is reflected;
D 75 - K 50 "Cashier" - 500,000 rubles. - the amount paid to the participants, by which the authorized capital was reduced.
For members of the company - individuals who are paid a 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 - participants in the company will be paid money 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 contributions from participants, as well as produced and acquired economic partnership or by the company in the course of its activity, belongs to it by the right of ownership. This means that the specified funds will be paid by reducing the property of the company, i.e. property that is the property of the company, and not of its founders.
Thus, when paid to a participant - to an individual Money in connection with a decrease in the authorized capital of the company, the entire amount of income received is subject to taxation without the use of any deductions that reduce the tax base.
V.V. Zemskov
When evaluating shares for the purposes of buyout, the owner of a share raises many methodological issues related to individual wordings of legislation and heterogeneous judicial interpretation.
These issues include: accounting for the company's property at market value, the 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 premiums.
METHODOLOGICAL EXPLANATIONS
on the use of discounts and premiums when assessing the actual value of a share in an LLC
Word document, pdf.
1. These Guidelines are intended for the preparation of assessment reports, as well as conclusions forensic experts in order to establish the actual value of a share in an LLC when a participant leaves the company. Guidelines prepared taking into account the prevailing judicial practice.
2. The actual value of the share of a member of the company corresponds to the part of the value of the net assets of the company, proportional to the size of its share.
3. In accordance with the generally accepted methodology for valuation, 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 withdraws);
3.2. In relation to the valuation of blocks of shares and participation interests owned by the LLC from which the participant withdraws.
4. The final value of the cost of a share in an LLC (clause 3.1), determined upon the withdrawal of a participant from the company, is calculated without taking into account discounts and premiums.
5. When determining the amount of net assets of an LLC, the LLC's property, including real 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 of companies owned by an LLC (clause 3.2) is determined taking into account discounts and premiums.
An analysis of judicial practice on the application of discounts and premiums 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 February 8, 1998 No. 14-FZ (paragraph 2, clause 2, article 14).
REVIEW OF JUDICIAL PRACTICE
1. In relation to the assessed share of LLC
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No. p/ P |
Source |
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19AP-5853/2011 |
The defendant's argument about the need for an independent appraiser to use a discount for lack of liquidity on a block of shares or shares in the authorized capital in the amount of 27% when determining the actual value of a 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. |
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The Court of First Instance rightfully pointed out that the determination of the actual value of a share in the authorized capital of a company, taking into account the reduction factors applied by the expert in the Report (discount for reconciliation of the results for a real estate object - in Table No. 27, discount for lack of control - p. 79, discount for liquidity - p. 81), contradicts the provisions of Article 26 of the 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. |
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…. the court pointed out to the parties that, when applying to expert organizations, they indicated the absence of primary accounting documentation, and also raised the question of the possibility, in its absence, to determine what 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 August 28, 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. |
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13AP-14171/2010 |
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 the share and cannot be used in determining it, since no reduction factors and discounts are applicable to such a calculation. This rule is contained in the Procedure for Estimating the Net Asset Value of Joint Stock Companies, approved by the Order of the Ministry of Finance of Russia and the Federal Securities Commission of Russia dated January 29, 2003 N 10n / 03-6 / pz, to be applied by analogy of law. |
A similar position is reflected in the 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.
- Resolution of the Plenum Supreme Court RF No. 90, Plenum of the Supreme Arbitration Court of the Russian Federation No. 14 dated 09.12.99 “On Certain Issues of 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 participant's share must correspond to the part of the value of the company's net assets, proportional to the size of its share”;
- Federal Law of February 8, 1998 No. 14-FZ “On Limited Liability Companies” - “2. ……. The actual value of the share of a member of the company corresponds to the part of the value of the net assets of the company, proportional to the size of its share”;
- Decree of the Supreme Arbitration Court of the Russian Federation of October 14, 2008 No. 8115/08 - “Canceling the judicial acts of the courts of the first and appellate instances and partially satisfying the claims, the court of cassation proceeded from the procedure established by Article 26 of the Federal Law for determining the actual value of the share, not involving the use of increasing and decreasing coefficients applied by experts.
How to Calculate the True Value of a Share
The use of increasing and / or decreasing coefficients entails an unreasonable increase / decrease in the value of the shares of the company's participants remaining in the company after another participant left it. ….. When determining the size of the actual value of the share, the court of cassation reasonably proceeded from the provisions of the Federal Law that the value of the share of a member of the company corresponds to the part of the value of the net assets of the company, proportional to the size of its share”;
- Determination of the Supreme Court of the Russian Federation of April 13, 2016 N 307-ES15-13470 in case N A26-10818 / 2012 - see below.
2. With regard to the valuation of property owned by LLC
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No. p/ P |
Source |
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As follows from the practice of applying the provisions of the Law on Limited Liability Companies regarding the payment of the actual value of a share to a member of a company, as well as from the position of the Supreme Arbitration Court Russian Federation By 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. |
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А14-8348/2010, 19ap-5853/2011 |
Argument the applicant of the appeal that the determination of the actual value of the shares of the company's participants based on the market value of the real estate owned by the defendant is not provided for by law, is subject to rejection by the court of appeal. Taking into account the Decree of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 06.09.2005 No. 5261/05, the uniformity of the prevailing judicial practice, 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 on the company's balance sheet. |
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А53-1159/2008, 15AP-8424/2008 |
In addition, the Accounting Regulation “Accounting for inventories” PBU 5/01” provides for a decrease in the value of inventories in cases where their sale at the actual cost reflected in the financial statements is impossible due to obsolescence or the presence of 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 non-liquid products. The given data refute the conclusions of the expert. |
A similar position is reflected in the decisions on 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 of April 13, 2016 No. 307-ES15-13470 in the case
No. A26-10818 / 2012 - “Canceling the judicial acts of the courts of the first and appellate instances, the district court pointed out that the conclusions of the courts regarding the calculation of the value of the share are based on correct application substantive law. At the same time, the provisions of the Law on Limited Liability Companies cannot be applied in determining the amount of a 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 companies in the form of a block of shares or a stake in another economic society. Law on Limited Liability Companies does not exclude the possibility of applying correction factors when determining the market value of property owned by a limited liability company in the form of a block of shares in a joint-stock company. Conclusions excluding the use of such coefficients in the current judicial practice, 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 coefficients when determining the market value of blocks of shares is a common practice and corresponds to the prevailing conditions of business turnover”; - Decree of the Presidium of the Supreme Arbitration Court dated 06.09.2005 No. 5261/05 - “Satisfying the stated requirements in part, the courts were guided by the fact that the legislation does not provide for determining the actual value of the shares of the company's participants based on the market value of the real estate owned by the defendant. 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 real estate reflected on the balance sheet of the company”;
- Decree of the Presidium of the Supreme Arbitration Court of the Russian Federation of April 17, 2012 No. 16191/11 - “The Court of Appeal, resolving this dispute, took into account the explanations given in paragraph 16 of the decision of December 9, 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 decisions of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 06.09.2005 No. 5261/05 and dated 05.26.2009 No. 836/09, in accordance with which 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 on the company's balance sheet. ... In such circumstances, the appellate court reasonably satisfied the claimant's claim ...”.
The Association will continue to work on the above methodological issues.
