How not to overpay superfluous former founder
IN THIS ARTICLE
The statement of withdrawal deprives the party’s access to financial documents
How to fend off claims the participant to receive the market value of the share
Payment of the share of property is possible only by mutual agreement
Analysis of judicial practice allows you to identify preventive measures and regulations that will safeguard the company against unfounded claims of former participants.
What are the legal consequences of the application involves the release
The output member of a limited liability company and is one of the reasons for the payment of the actual value of the shares. The right to withdraw from the company is the undisputed, can not be limited and requires the consent of the other participants. The sole responsibility of society at the same time is to pay the actual value of the participant’s share.
The application is submitted in writing to the free form with the personal signature of the participant. The time of application is of great legal significance. Firstly, from now on share of proceeds to society and, therefore, the latter has a duty to pay for it with a party. Secondly, from this day begins counting period in which the company is obliged to make the payment (within six months from the filing date). In case of violation of this period, society will have to pay interest on borrowed money for each day of delay. However, it is not clear how the participant will prove that indeed apply. The Company has no obligation to register these statements or to fix their arrival otherwise.
A participant may apply to the Company in person or send it by mail.
In the latter case it is necessary to take into account that the responsibilities of the society do not occur after sending the party and its receipt by society (Decree of the Federal Arbitration Court of the Volga-Vyatka region from 14.04.05 № A43-17263 / 2004-1-632).
16 Resolution of the Plenum of the RF Armed Forces and EAC RF
09.12.99 № 90/14). If the participant’s application to withdraw filed by unauthorized person, it does not cause society any legal consequences.
CASE STUDY. Member of two witnesses gave its announcement of withdrawal seller store, one of the founders of which he was. Copies of the statements he did not have. The courts decided that since he gave a statement to an unauthorized person, it can be assumed that the application does not supply and no responsibilities to society has not led (Decree of the Federal Arbitration Court of the Volga-Vyatka region from 22.03.04 № A29-2690 / 2003-2e) .
Another crucial fact of the application is that from this moment terminate all rights related to participation in society. This means that the company is no longer obliged to provide to the former party any information about her figure-of, to prevent financial and other documents, to notify the general meetings, and so on. D. (Resolution
Presidium of the RF from 01.09.05 № 1960/05).
How to calculate the size of the actual value of the share
In order to determine the actual value of the share, you need to know the size of the contribution of the participant.
According to the formula contained in the law, the calculation is made of the proportion of the difference between net assets and authorized capital in proportion to the contribution. Therefore, without knowing the size of the contribution, it is impossible to find out the size of the actual value of the share. When a contestant is not fully contributed, the actual cost is calculated taking into account the part of the contribution made by him. If it is proved that the party did not pay any contribution, no obligation to pay the society does not arise
(Decree of the Federal Arbitration Court
East Siberian district from 24.06.04 № A19-
14912 / 03-6-F02-2310 / 04-C2).
Please note that it is necessary to proceed from the difference of the net assets and the authorized capital, instead of the ratio of the share and the net asset value (ruling of the Federal Arbitration Court of the East-Siberian region from
29.03.05 № A10-5777 / 02-12-F02-1058 / 05-C2). The law on limited liability companies, the term «difference» suggests that the net asset value must subtract the amount of the share capital and of the amount received to determine the proportion to contributions (Art. 26 of the law).
(Sec. 1, Art. 20 of the law). In such circumstances, the real party is to pay its share of the cost is impossible. And as if the participants are not required to make payment, the jurisprudence on this issue is united (Regulation
Presidium of the RF from 14.11.06 № 10022/06).
By the way, if after a party to the application for withdrawal was decided to increase the authorized capital by additional contributions made by the participants, it does not affect the extent of the party released. Since the submission of the application he is no longer member of the society in any way to adjust the size of its contribution can not (Decree of the Presidium of the Russian Federation from 28.06.05 № 14638/04).
The size of the actual value of the share is independent of the market value of assets
Formal output member (of application) does not mean that society should immediately pay him the actual value of the share.
The important point. The actual value of the share is determined on the basis of accounting data. This means that the net asset value does not depend on the market value of fixed assets. On this point directly to the courts (the decision of the Federal Arbitration Court of the Far Eastern District of 22.06.05 № F03-A51 / 05-1 / 904). As jurisprudence shows, the participants attempt to challenge the size of the actual value of the share on the basis of the market price of the property is much higher than the book are doomed to failure (Decree of the Federal Arbitration Court of the Volga-Vyatka region from
17.01.07 № A82-3298 / 2004-45 et al.).
Participants challenge cost share not only on the basis that it is lower than the market, but also due to the fact that after the filing of the application for withdrawal it seems that the assets of the company began to decline, and liabilities — increase. Courts satisfy such writs only if the intent of society is obvious.
CASE STUDY. The requirement for the party to seize the company’s assets in the amount of the actual value of its share has been satisfied when the participant has proven that the company initially behaved in bad faith. Director General prevented him from freely leaving the composition of the participants did not take a statement of withdrawal, and subsequently refused to pay the actual value of the share. Once society has forced the court to pay this share, net asset value for the year halved and liabilities — increased by three. Court seized the property of the company, given the bad faith is the last (the decision of the Federal Arbitration Court of the East
Siberian District from 04.07.06 № A19-1086 / 6.9-F02-
But in the absence of an explicit intention of the society such writs are satisfied. Companies are free to contract for the alienation of their property, even if it means prodazheosnovnyh treaties. They are the sole and rightful owners, and no restrictions in case the member of the society in the law stipulated (Decree of the Federal Arbitration Court
East Siberian district from 31.03.05 № A19-
1259 / 04-13-F02-1177 / 05-C2).
Application form that understated assets is, in fact, the requirement to calculate the actual value of the share based on the market value of the property. And this is unacceptable
(Decree of the Federal Arbitration Court
Moscow District of 19.05.06 № KG-A40 / 3909-06).
Accounting reports shall be presumed valid so dissatisfied party needs serious grounds to challenge it.
Meanwhile, as has been said, from the submission of the application for withdrawal, he ceases to be a member of society, and access to the accounting records do not matter.
The only way for him to prove his claims — is to convince the court to appoint an examination (p. 16 Resolution
Plenary Meetings of the Armed Forces and the Russian Federation of 09.12.99 № 90/14).
But to justify this need is quite difficult. This is due to the fact that initially the court independently verify the documents on which the calculation. So when hearing the defendant had presented the company’s balance sheet, a certificate of valuation of fixed assets and materials testing of the tax authority, the court found them sufficient to resolve the case and rejected the appointment of expertise
(Decree of the Federal Arbitration Court of the Volga-Vyatka region from 18.07.05 № A82-
In 2800 / 2004-1). In addition, the court may order the company to reassess assets. It powers the tax inspectorate.
The courts consider only the evidence presented at the hearing
(Decree of the Federal Arbitration Court of the West Siberian District from 02.11.04
Number F04-7841 / 2004 (5943-A03-12).
Subtleties of paying the cost of the share in kind
The actual value of a share may be paid either in cash or in the form of property (Art. 26 of the law). It is a peremptory norm and, therefore, no other benefits
(eg, services, and so on. d.) the value of the share can not be paid (Regulation
Presidium of the RF from 12.07.06 № 2664/06).
Furthermore, if the real estate value of the share is paid, it should be allocated to it in kind, rather than as a share in the right. Otherwise it turns out that the value of a share is not paid property and property rights — such an option between the payment-in-law again not provided.
CASE STUDY. Member and Society agreed to pay the actual value of the share as a proportion of the right to non-residential premises. However, later on the advice ekspertastroitelya it revealed that this fraction was isolated in nature is impossible. The courts have found that it violates the provisions of the law on limited liability companies, because it clearly stipulates that the allocated money or property. There are no other options, such as a share in the ownership of the property, it is not provided (the decision of the Federal Arbitration Court of the Volga District from 17.04.07 № A06-2724-14 / 03).
It should be noted that the initiative of the partition of the actual value of a share in kind (property) may come from society and from the party. But the parties can not obligate each other to make the payment of the actual value of a share is property. They are entitled to only offer this option with each other. Therefore, the requirements of the participant to pay him the value of the share of the property is completely at the discretion of the company. When the participants are trying to challenge the refusal of the company in the courts, arbitrators make clear that compliance with the request — a right, not an obligation of the Company (Resolution
The Federal Arbitration Court of the Far Eastern District of 10.01.07 № F03-A73 / 06-1 / 4782).
Can we ignore the unregistered property assets of the company upon payment of the cost of the share?
No you can not. The absence of a public register of fixed assets — real estate is not a reason not to consider it in the assets of the company (Decree of the Federal Arbitration Court of the West Siberian District from 02.08.07 № F04-2737 / 2007). This trick can cost society more money: the court can force the company to recalculate the value of the share and to pay interest for delay
Application form of the output is worth preserving
If the actual value of the share has been paid, it is advisable to maintain a statement of the output member. Better if it will be attached to the minutes of the general meeting, which identified the size and terms of payment of the cost of the share. Otherwise there is a risk that the court admits the real value of the share was paid to the company without permission and his party out of the company is not planned (Decree of the Federal Arbitration Court of the Moscow District of 05.04.06 № KG-A41 / 1195-06).