The acquisition of commercial real estate, as a rule, is associated with fairly high costs, respectively, the amount can be very large. In such situations, legal entities need to determine whether the transaction is large. Let's consider further how to do it.
Terminology
A major transaction for an LLC is the alienation or acquisition of material assets by the company, the value of which exceeds 25% of the price of the entire property of the company. The assessment of the latter is carried out according to the financial statements. In this case, the settlement is carried out for the period preceding the day on which the decision was made to approve a major transaction. The charter of the company may establish a higher percentage. In accordance with the constituent document, a major transaction for an LLC may be determined according to other criteria. Thus, this category may include the sale and purchase of real estate, regardless of its value. Any transaction, the amount of which exceeds a certain figure (for example, more than a million rubles), can also be recognized as a major one.
the federal law
A major transaction is carried out in accordance with the rules established in Art. 46 Federal Law No. 14. The article also contains a detailed explanation of the definition itself. Thus, one (loan, credit, guarantee, pledge, including) or two or more interconnected transactions relating to the acquisition, alienation or the possibility of indirectly or directly alienating property worth 25% or more of the total price of the company's material assets, established according to the data financial statements for the period preceding the date of the decision to conclude them, unless the Charter of the company provides for a higher percentage.
The category under consideration does not include those that are made in the course of the normal economic activity of the company, as well as those that are mandatory for a legal entity on the basis of the Federal Law or other regulations, and settlements on them are carried out at prices established in the manner determined by the Government or authorized by it. executive body. The cost of acquired material assets is determined according to the company's reports, and the cost of acquired property is determined based on the amount of the offer. 
Approval of a major transaction: sample, description of the procedure
No participant can independently acquire or sell the property of a legal entity without the knowledge of the other shareholders. Approval of a major transaction is carried out by the general meeting. Discussion and documentation is carried out according to the rules provided for in the founding documents. The decision to approve a major transaction (a sample act is presented in the article) must contain information on:
- Persons who act as parties to the contract, beneficiaries.
- Price.
- The subject of the contract and other essential conditions.
The decision to approve a major transaction may not include information about the beneficiaries if the contract is concluded at an auction and in other cases when the parties cannot be determined by the time the act is adopted. The company's charter may provide for the establishment of a board of directors. In this case, the decision to approve a major transaction of an LLC regarding the alienation or its possibility, as well as the acquisition, indirectly or directly, of material assets worth 25% or more of the price of the company's property, may be referred by the founding documents to the competence of this body. 
Challenging
Contracts signed in violation of the requirements of the law (approval of a major transaction has not been received, an act has been drawn up improperly, etc.) may be declared invalid. A dissenting participant may file an appropriate claim in court. If the statute of limitations on a claim for recognition of the invalidity of the contract in such cases is not subject to restoration.
Court refusal
The authorized body may not satisfy the plaintiff's request to invalidate the decision on a major transaction carried out in violation of the requirements established by law, in the presence of any of the following circumstances:
- It has not been proven that the conclusion of this agreement has caused or may cause damage and other adverse consequences for the company or the participant who filed a claim.
- The vote of a shareholder who claims to the court to invalidate a transaction concluded after approval at a general meeting, even though he participated in it, could not affect the results.
- By the time the case is heard, evidence of the subsequent agreement of the contract according to the rules established in the Federal Law has been presented to the court.
- During the consideration of the dispute, it was proved that the other party to this transaction did not and should not have been aware of its commission in violation of the provisions of the law.
Consequences of invalidity
The main result in this case will be the absence of a positive legal outcome. In other words, the rights and obligations stipulated by the conclusion of the contract will not arise. Thus, an invalid transaction will not entail legal consequences, except for those that arise directly when it is recognized as such. As an exception, the court has the right to terminate the contract not from the moment of its conclusion, but for the forthcoming period - from the date of issuance of the relevant act. This provision applies to voidable transactions if it follows from their content that they can only be stopped for the forthcoming period. Basically, this refers to lasting contracts, the termination of which from the moment of their conclusion is inexpedient or impossible. 
Bilateral restitution
This is another important consequence of the recognition of a transaction, including a large one, as invalid. In the event of termination of the contract, the parties must return to their original position. Each participant is obliged to return to the other everything that he received during the transaction. Bilateral restitution takes place if the parties partially or fully fulfilled the contractual requirements. If it is impossible to return what was received in kind, the participant must reimburse its value in cash, unless other consequences are provided for in the legislation.
It should be noted that bilateral restitution does not always work in practice. For example, you cannot return goods that have been resold to third parties. Compensation in money in such cases does not make sense, since the buyer has already paid, and the repeated deduction of money will act as unjust enrichment. On such controversial issues, the Constitutional Court explained that in case of restitution, the restoration of rights should be carried out on the basis of the principle of equality, ensuring equivalence and equivalence of compensation for the value of material assets. The Supreme Court and the Supreme Arbitration Court also pointed out that when applying the consequences of the invalidity of a contract, the obligations under which are partially or completely fulfilled, it is necessary to proceed from an equal amount of obligations. In this regard, in controversial situations, restitution provisions often do not work in practice.
Important point
If an agreement is concluded, in the signing of which there is an interest, the approval of a major transaction is carried out in accordance with the provisions of Art. 45 Federal Law No. 14. An exception is the case when all members of the society have it. In such situations, a major transaction is negotiated in accordance with the procedure established by Article 46. In addition to the cases specified in paragraph 1 of this Article, the constituent documents may provide for other sizes or types of contracts to which the above requirements apply. 
Exceptions
The provisions under which a major transaction must be concluded do not apply to:
- Relations that arise when the right to property is transferred during the reorganization of a legal entity, including under agreements on accession and merger.
- Companies that consist of one participant, simultaneously performing the functions of the sole executive body in it.
- Relations that arise when a share or part of it in the authorized capital is transferred to a legal entity in the cases established in Federal Law No. 14.
Arbitrage practice
According to paragraph 2 of Art. 46 of the Federal Law No. 14, if a major transaction is concluded, the value of the property alienated by the company is determined in accordance with its accounting data. According to the explanations contained in paragraphs 2, 3 of Letters of the Supreme Arbitration Court No. 62 (a review of the practice of resolving disputes relating to the conclusion by business entities of the contracts and agreements under consideration in which there is an interest), when determining the category of legal relationship, the value of the subject should be compared with the book value of the assets of the legal entity at the last approved reporting without reduction by the amount of liabilities (debts).
The accounting period, according to Federal Law No. 129, is the calendar year from January 1 to December 31 inclusive. In the absence of a balance sheet in the company, the burden of proving that the contract being concluded is not a major transaction is placed directly on the legal entity. If there are objections from the persons participating in the case regarding the reliability of the information provided by the company, it is allowed to determine the value of material assets on the basis of the results of an accounting expert examination as ordered by the court.
Interest calculation: sample
A major transaction is determined by the ratio of the value of the existing and acquired / alienated property. Consider an example:
- The value of the property is 45 million rubles.
- The price of the property of a legal entity is 5 million rubles.
- 1% of 5 million = 50 thousand rubles.
Find the value of the transaction as a percentage of the property of the legal entity:
45 million/50 thousand = 900%
There is another option: divide the cost of the transaction by the price of the property (100%) and then multiply by 100:
45 million / 5 million x 100 = 900% 
Control
On January 1, 2012 Section V.1 of the Tax Code came into effect. It regulates the exercise of control over transactions between related parties. The subject of supervision is the price of the contract. In the course of control, the compliance of the indicated value with market values is checked. This process is regulated by Art. 105.3-105.6 NK. Tax control is carried out to check the completeness of the calculation and payment of fees and taxes (on profit, VAT, personal income tax, mineral extraction tax). Any major transaction is subject to registration with the appropriate service. Contracts that meet certain pricing requirements are subject to control. The Tax Code establishes the following criteria:
- The amount of income under contracts for the corresponding period exceeds 1 billion rubles. (since 2014).
- One of the parties acts as a taxpayer of the MET, calculated at a percentage rate, and the subject of the transaction is a mineral (precious metals and stones, oil and products of its processing, ferrous and non-ferrous metals, mineral fertilizers). The cost criterion for such contracts is 60 million rubles.
- At least one member:
Acts as a UTII or UAT taxpayer (if the agreement is signed as part of this activity), and the other party does not use a special taxation regime (value limit - 100 million rubles / year);
Exempted from paying income tax, and the other does not use such relief (price threshold - 60 million rubles / year);
Acts as a participant in the Skolkovo project, while the other does not (the criterion for the amount is 60 million rubles / year);
It is a resident of the SEZ and uses a preferential taxation regime, while the second one does not, the price limit is 60 million rubles per year.
Notification
The taxpayer is obliged to notify the supervisory authority of controlled transactions that were made during the calendar year, no later than May 20 of the forthcoming period. This provision is found in Art. 105.16, clause 2. The notification is sent to the place of residence, location or registration of the legal entity as a major taxpayer. The notice should include the following information:
The notification form, the filling procedure, as well as the format for providing the document in electronic form are accepted and approved in accordance with the Order of the Federal Tax Service. If the transaction is not recognized as controlled, then the above requirements do not apply to it.
The General Director has the right to make transactions on behalf of the organization without any additional approvals from its owners. But if we are talking about the so-called major deal, he must first obtain permission (consent) from the business owners to conclude it. Otherwise, such a transaction, made without proper approval by the owners, may subsequently be declared invalid. How to properly execute a large deal and prevent possible mistakes?
On the intention to conclude a transaction on behalf of the organization that meets the criteria for a major one, it is necessary to inform the owners of this legal entity and obtain their approval of such a transaction. Business owners, that is general meeting of participants (shareholders) business entity, and in some cases board of directors (supervisory board), must discuss and approve the very possibility of concluding a major transaction and its main conditions: the parties, the subject, the price of the transaction and other essential conditions. It is not their responsibility to agree on other terms of a major transaction. If more than one transaction is subsequently entered into, certainty must be achieved as to which transaction was approved.
The procedure for classifying transactions as major transactions and the procedure for approving major transactions differ depending on the legal form.
Big deal concept
A major transaction is one or more interconnected transactions related to the acquisition, alienation or the possibility of alienation by the company directly or indirectly of property, the value of which is 25% or more of the total value of the property of this company. The value of the property is determined on the basis of the company's financial statements for the last reporting period preceding the day the decision to conclude the transaction was made. This definition of a major transaction is guided by. The basis is paragraph 1 of Art. 46 of the Federal Law of February 8, 1998 N 14-FZ "On Limited Liability Companies" (hereinafter - Law N 14-FZ).
Similar but not analogous concept established For in paragraph 1 of Art. 78 of the Federal Law of December 26, 1995 N 208-FZ "On Joint Stock Companies" (hereinafter - Law N 208-FZ).
Despite the fact that significant changes were made to the norms of the legislation on limited liability companies (Articles 87 - 94 of the Civil Code of the Russian Federation and Law N 14-FZ) from July 1, 2009 30.12.2008 N 312-FZ) and in terms of large transactions they are largely close to the norms applicable to joint-stock companies, some fundamental differences between the two specified definitions still remain (Table 1 on pp. 60 - 61).
Table 1. Features of the conclusion of major transactions by limited liability companies and joint-stock companies
|
Characteristic |
Limited |
Joint-Stock Company |
|
Deal, |
One or more |
One or more |
|
deals, |
Transactions made |
Transactions (clause 1, article 78 of the Law |
|
Increase |
Allowed (clause 1, article 46 |
Not allowed (ch. X |
|
Charter expansion |
Allowed (clause 7, article 46 |
Allowed but not |
|
Indication in the charter |
Allowed (clause 6, article 46 |
Not allowed (ch. X |
|
Indicator (base) |
The value of the entire property |
The book value of all |
|
Comparison object |
Offer price |
Acquisition price |
|
Comparison object |
The cost of the alienated |
The cost of the alienated |
|
Who should |
General meeting of participants |
Board of Directors |
|
Who should approve |
General meeting of participants |
General Meeting of Shareholders |
|
Who should approve |
Sole Member |
Sole shareholder |
|
Who should |
Deal approval |
Deal approval |
|
Subsequent |
Allowed (clause 5, article 46 |
Allowed (clause 6, article 79 |
|
Who is eligible to apply |
Society itself |
The joint-stock company itself |
Note. Transactions of joint-stock companies related to the placement by subscription or sale of ordinary shares of the company, and transactions related to the placement of equity securities convertible into ordinary shares of the company, are not large, regardless of their price (clause 1, article 78 of Law N 208-FZ ).
Transactions that can be considered major
Some types of transactions that can be recognized as large and require approval by the owners of a business entity are listed directly in paragraph 1 of Art. 46 of Law N 14-FZ and paragraph 1 of Art. 78 of Law N 208-FZ. Among them, in particular, are transactions under loan, credit, pledge and surety agreements. However, the list is not exhaustive. This is indicated in paragraph 30 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of November 18, 2003 N 19 (hereinafter - Resolution N 19). Certain types of transactions that, with the corresponding amount of the transaction, can be recognized as large, are given in paragraph 30 of Resolution No. 19 and paragraphs 1, 4, 6 and 7 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 13, 2001 N 62 (hereinafter referred to as the Information Letter No. 62).
Note! Ordinary business transactions are not considered major
Transactions entered into by a limited liability company or a joint-stock company in the course of normal business activities cannot be recognized as major transactions, regardless of the value of property acquired or alienated under such transactions. This is established in paragraph 1 of Art. 46 of Law N 14-FZ and paragraph 1 of Art. 78 of Law N 208-FZ. What is meant by these transactions? The answer to this question is not contained in either Law N 14-FZ or Law N 208-FZ. The Plenum of the Supreme Arbitration Court of the Russian Federation in paragraph 30 of Resolution No. 19 explained that transactions in the ordinary course of business may, in particular, include transactions:
On the acquisition by the company of raw materials and materials necessary for the implementation of production and economic activities;
Sales of finished products;
Obtaining loans to pay for current operations (for example, obtaining a loan by a trading company aimed at purchasing wholesale lots of goods intended for their subsequent sale through a retail network).
The Presidium of the Supreme Arbitration Court of the Russian Federation also confirmed that the transaction under the loan agreement concluded by the company in the course of its ordinary business activities is not large, regardless of the amount of the loan received. This is indicated in paragraph 5 of the Information Letter N 62.
Based on the above explanations, we conclude that the rules for approval of major transactions also apply to transactions:
Purchase and sale (including real estate, securities, enterprises as a property complex);
donations;
Assignments of the right to claim;
Debt transfer;
Making a contribution to the authorized capital of another economic company as payment for shares (shares) in it;
Credit;
Guarantees;
Pledge of property;
Other types of transactions aimed directly or indirectly at the acquisition or alienation of the property of the organization or providing for the possibility of foreclosure on its property with the subsequent alienation of this property.
The obligation to coordinate with the business owners any of these agreements arises only if, as a result of the conclusion of such an agreement, the organization has the opportunity to acquire or alienate property, the value of which is at least 25% of the total value of the property (assets) of the company. An exception to this rule are transactions entered into by the organization in the ordinary course of business. Such transactions, regardless of the amount, can be concluded without the consent of the business owners (clause 1, article 46 of the Law N 14-FZ and clause 1, article 78 of the Law N 208-FZ).
Similarities and differences in definitions
So, starting from July 1, 2009, both in limited liability companies and joint-stock companies, a transaction or several interconnected transactions made with property, the value of which is 25% or more of the total value of the company's property, is recognized as a major transaction. Recall that before the specified date, the transaction of a limited liability company with property, the value of which was equal to 25%, was not considered large and, therefore, was not subject to prior approval by the owners.
Note. Several transactions that are entered into between the same persons within a short period on identical terms, have the same nature of the obligations of the parties and entail the same consequences for the organization, are considered interconnected transactions. If the total value of property acquired or alienated under such transactions is 25% or more, these transactions must be approved by the owners of the organization.
As before, the charter of a limited liability company may provide for a higher amount of the amount of a transaction recognized as a large one (clause 1, article 46 of Law N 14-FZ). For example, the charter of a company may state that a transaction is considered a major one and therefore, before it is concluded, it must be approved by the company's participants if it is associated with the acquisition or alienation of property worth more than 30% of the total value of the company's property.
Moreover, a limited liability company has the right not to coordinate with its owners plans for concluding major transactions at all, if its charter provides that such transactions do not require a decision of the general meeting of participants or the board of directors (supervisory board) of the company. The basis is paragraph 6 of Art. 46 of Law N 14-FZ. This is not allowed in joint-stock companies, just as it is not allowed by the charter of a joint-stock company to increase the maximum amount of a transaction classified as large.
The charter of a limited liability company or joint-stock company may provide for other types of transactions that are subject to the established procedure for approving major transactions (clause 7, article 46 of Law No. 14-FZ and clause 1, article 78 of Law No. 208-FZ). So, in the charter of the company, it can be indicated that any transactions on the alienation and pledging of real estate, regardless of value, must be coordinated with the participants (shareholders) or with the board of directors (supervisory board) of the company.
Note. A loan agreement may be recognized as a major transaction if the amount of the loan granted under it and the prescribed interest for using the loan (excluding interest for late repayment of the loan) is 25% or more of the book value of the property (assets) of the company.
With what to compare the cost of the transaction, or Base for comparison
Another difference is the metric used for comparison. Limited Liability Company compares the value of the property that is the subject of the transaction with the value of the entire property of the company, determined according to the financial statements for the last reporting period preceding the day the decision was made to complete the transaction (clause 1, article 46 of Law N 14-FZ).
A joint-stock company must compare the value of property acquired or alienated under a transaction with the book value of all the company's assets as of the last reporting date (clause 1, article 78 of Law N 208-FZ). The total value of the property of a limited liability company and the total value of the assets of a joint-stock company are determined based on accounting data for the last reporting period preceding the day the decision to conclude the transaction was made.
Note. When deciding on the issue of classifying a transaction as a large value of the property that is the subject of the transaction, it should be compared with the book value of the property (assets) of the company, and not with the size of its authorized capital.
Obviously, the book value of all the assets of an organization is a broader concept than the value of its property. After all, in addition to the property itself (fixed assets, raw materials, materials, finished products, cash, etc.), the company's assets also include accounts receivable, costs in work in progress, deferred expenses and other indicators.
The Presidium of the Supreme Arbitration Court of the Russian Federation in paragraph 3 of Information Letter No. 62 confirmed that joint-stock companies compare the value of property acquired or alienated under a major transaction with the total amount of the company's assets according to the last approved balance without reducing it by the amount of debts (unfulfilled obligations). That is, as a basis for comparison, joint-stock companies use the balance sheet currency (the sum of all current and non-current assets) as of the last reporting date preceding the day the major transaction was approved.
Please note: when classifying transactions as large, the book value of the assets of a joint-stock company should not be identified with the value of its net assets (Letter of the Federal Securities Commission of Russia dated 10/16/2001 N IK-07/7003). After all, the value of net assets is an independent indicator that is used, for example, when deciding whether to pay dividends on shares or when distributing the profits of a limited liability company among its participants. The amount of net assets does not affect the order of approval of major transactions.
Note. The value of the net assets of a business company is understood as the balance sheet value of its property (all its assets), reduced by the amount of obligations of this company.
What to compare, or the object of comparison
In contrast to the basis for comparison, the object of comparison itself (that is, the value of property acquired or alienated on the basis of a transaction) and limited liability companies and joint-stock companies are determined according to uniform rules. These rules differ only depending on the type of transaction being made (clause 2, article 46 of Law N 14-FZ and paragraph 2, clause 1 of article 78 of Law N 208-FZ).
If the transaction is aimed at acquiring property, then when classifying it as a large one with the total value of the property (assets) of the company, it is necessary to compare the purchase price (offer price) of the property specified in the contract. This price does not include additional charges (fines, penalties, forfeits), claims for the payment of which may be presented in connection with non-fulfillment or improper fulfillment by the parties of their obligations (Such explanations are given in clause 31 of Resolution No. 19).
Example 1 . LLC "Promtorg", the main activity of which is the wholesale trade in foodstuffs, decided to acquire another warehouse. In October 2010, such a room was found. An individual entrepreneur who owns it by right of ownership is ready to sell it for 9,100,000 rubles. The main indicators of the asset of the balance sheet of Promtorg LLC as of September 30, 2010 are given in Table. 2. Deferred expenses and costs in work in progress (included in the total amount of stocks in line 210 of the balance sheet) amounted to 100,000 rubles as of the indicated date.
(thousand roubles.)
|
Balance sheet indicator |
Code |
|
|
I. Non-current assets |
||
|
Intangible assets |
||
|
fixed assets |
||
|
Construction in progress |
||
|
Long-term financial investments |
||
|
Other noncurrent assets |
||
|
Total for sect. I |
||
|
II. current assets |
||
|
Accounts receivable |
||
|
Accounts receivable |
||
|
Short-term financial investments |
||
|
Cash |
||
|
Other current assets |
||
|
Total for sect. II |
||
When calculating the total value of the property as of the last reporting date preceding the day the transaction was approved (as of September 30, 2010), Promtorg LLC does not take into account the amount of receivables, deferred expenses and costs in work in progress. Thus, the total value of the property of the organization, determined according to the balance sheet, is 28,000,000 rubles. (36,400,000 rubles - 300,000 rubles - 8,000,000 rubles - 100,000 rubles).
The cost of the acquired premises is RUB 9,100,000, which is 32.5% (RUB 9,100,000 : RUB 28,000,000 x 100) of the value of the entire property of the company. Since the value of the purchased property exceeds 25% of the total value of the property of Promtorg LLC, this transaction is a major one for the company and must be approved by the owners before it is completed.
Example 2 . Let's use the condition of example 1. Let's assume that the organizational-legal form of the Promtorg company is not a limited liability company (LLC), but a closed joint-stock company (CJSC). To resolve the issue of recognizing a transaction as a large joint-stock company, the transaction price is compared with the value of all current and non-current assets (with the balance sheet currency) as of the last reporting date preceding the day the transaction is approved. The cost of the premises that CJSC Promtorg plans to acquire is exactly 25% (9,100,000 rubles : 36,400,000 rubles x 100) of the value of all assets of the organization. This means that the transaction for the purchase of this premises is recognized as a major one, which means that it is subject to prior approval by the owners of the organization.
Note. To determine whether several interconnected transactions are a single major transaction, it is necessary to sum up the value of the property acquired (alienated) under all interconnected agreements and compare the resulting figure with the total value of the property (assets) of the organization.
Suppose the subject of the transaction is the alienation or the possibility of alienation of property belonging to the company. In this case, the value of the alienated property calculated on the basis of accounting data is compared with the total value of the property (all assets) of the company, and not the market value of the property being sold and not the actual value at which the property was sold.
Example 3 . Let's use the condition of example 1. Suppose, in October 2010, Promtorg LLC received a bank loan for the purchase of a consignment of goods. As security under the loan agreement, the organization offered to pledge to the bank a part of the office space owned by it (acquired in 2004). The initial cost of the office space, at which it was accepted for accounting, is 10,700,000 rubles. From the beginning of the operation of the premises to September 2010 inclusive, depreciation in the amount of 2,140,000 rubles was accrued in accounting.
The conclusion of a pledge agreement by an organization creates, directly or indirectly, the possibility of alienating property transferred as pledge. After all, in case of non-fulfillment by the company of the loan agreement, the bank has the right to foreclose on the mortgaged office space with its alienation in the manner prescribed by law (clause 4 of the Information Letter N 62).
To resolve the issue of whether a major transaction for the transfer of office premises to the bank as a pledge, Promtorg LLC needs to compare the cost of the premises, calculated on the basis of accounting data, with the total value of the entire property of the company. Since this issue was resolved in October 2010, the organization used the information reflected in the balance sheet as of September 30, 2010.
The residual value of the office space as of September 30, 2010 is RUB 8,560,000. (10,700,000 rubles - 2,140,000 rubles). The total value of the property of the organization on the same date is 28,000,000 rubles. The value of the pledged property amounted to 30.57% (RUB 8,560,000 : RUB 28,000,000 x 100) of the total property value. Consequently, the conclusion of the office premises pledge agreement was a major transaction for Promtorg LLC and was subject to prior approval by the owners of the organization.
Note. In the event that the debtor fails to fulfill an obligation secured by a pledge, the creditor (pledgee) shall have a priority right to receive satisfaction from the value of the pledged property over other creditors of the person who owns the said property (pledger). The basis is paragraph 1 of Art. 334 of the Civil Code of the Russian Federation.
Example 4 . Let's use the condition of example 3. Suppose the Promtorg company is a closed joint stock company (CJSC). Unlike limited liability companies, joint-stock companies, when deciding whether to recognize a transaction as a major one, compare the price of the transaction with the value of all assets. The residual value of the office premises pledged as collateral amounted to 23.52% (8,560,000 rubles : 36,400,000 rubles x 100) of the total value of the organization's assets, i.e. less than 25%. This means that for CJSC "Promtorg" the transaction on pledging the office premises was not a major one and could be concluded without prior approval by the owners of the company.
The procedure for approving a major transaction in a limited liability company
In a limited liability company, a major transaction must be approved by the general meeting of participants in this company. So it is said in paragraph 3 of Art. 46 of Law N 14-FZ. The transaction is considered approved if a simple majority of the total number of votes of the company's participants voted for the decision to approve it (clause 8, article 37 of Law No. 14-FZ).
Reference. Requirements for the execution of a decision on the approval of a major transaction
The decision to approve a major transaction must include the following information (clause 3, article 46 of Law No. 14-FZ and clause 4, article 79 of Law No. 208-FZ):
List of persons who are parties to the transaction;
The list of persons who are beneficiaries under the transaction (that is, persons in whose favor or in whose interests this transaction was concluded);
Price and subject of the transaction;
Other material terms of the transaction.
These requirements apply to both limited liability companies and joint-stock companies. There is a special rule for limited liability companies. If a major transaction of such a company is subject to conclusion at auction or at the time of its approval, the parties (beneficiaries) of the transaction have not yet been determined, the decision on approving the transaction may not indicate the persons who are parties (beneficiaries) of the transaction (clause 3 of article 46 of Law N 14- FZ).
In limited liability companies in which a board of directors (supervisory board) is established, the approval of major transactions may be assigned by the charter of the company to the competence of the board of directors (supervisory board). But such an opportunity is provided only for transactions related to the acquisition or alienation of property, the value of which is from 25 to 50% of the total value of the company's property (clause 4, article 46 of Law N 14-FZ). Transactions aimed at the acquisition or alienation of property, the value of which exceeds 50% of the total value of the company's property, are subject to approval exclusively by the general meeting of the company's participants.
Note. The charter of a limited liability company may provide that the conclusion of major transactions does not require either a decision of the general meeting of the company's participants, or a decision of the board of directors (supervisory board) of the company (clause 6, article 46 of Law N 14-FZ).
Suppose a limited liability company has only one participant, and this participant performs the functions of the sole executive body of this company, that is, is its director or general director. In pp. 1 p. 9 Art. 46 of Law N 14-FZ states that in such a situation, approval is not required to conclude a major transaction. If the sole member of the company is not its director or general director, the written consent of this member to conclude it is sufficient to complete a major transaction (clause 11 of Information Letter No. 62).
The procedure for approving major transactions does not apply to legal relations arising (clauses 2 and 3, clause 9, article 46 of Law N 14-FZ):
When transferring to a company a share or part of a share in its authorized capital in cases provided for by Law N 14-FZ;
Transfer of rights to property in the process of reorganization of the company (including under merger or accession agreements).
The procedure for approving a major transaction in a joint-stock company
In a joint-stock company, a major transaction must be approved by the board of directors (supervisory board) or the general meeting of shareholders of the company (clause 1, article 79 of Law N 208-FZ). If the subject of a major transaction is property, the value of which is from 25 to 50% of the book value of all assets of the company, the decision to approve such a transaction is within the competence of the board of directors (supervisory board) of the company. This is indicated in paragraph 2 of Art. 79 of Law N 208-FZ. This decision must be taken unanimously by all members of the board of directors (supervisory board) of the company. In this case, the votes of retired members of the board of directors (supervisory board) of the company are not taken into account.
Note. Retired, in particular, are members of the board of directors (supervisory board), whose powers were terminated ahead of schedule by the decision of the general meeting of shareholders in accordance with paragraphs. 4 p. 1 art. 48 of Law N 208-FZ.
Please note: a major transaction, the subject of which is property worth from 25 to 50% of the book value of all assets of the company, must be approved unanimously by all members of the board of directors (supervisory board) of the joint-stock company, and not just those present at a specific meeting of the board (clause 2 article 79 of the Law N 208-FZ). Suppose the board of directors (supervisory board) of a joint-stock company did not come to a unanimous decision to approve a major transaction. Then the issue of its approval can be submitted to the general meeting of shareholders of the company. In this case, the decision to approve a major transaction is made by a majority vote of shareholders - owners of voting shares participating in the general meeting of shareholders of the company (clause 2, article 79 of Law N 208-FZ).
Major transactions in which property worth more than 50% of the book value of all assets of the company is acquired or alienated can only be approved by the general meeting of shareholders of the company (clause 3 of article 79 of Law N 208-FZ). Moreover, the decision to approve such a transaction must be made by a 3/4 majority vote of shareholders - owners of voting shares participating in the general meeting of shareholders.
The Presidium of the Supreme Arbitration Court of the Russian Federation in paragraph 10 of Information Letter No. 62 and the Plenum of the Supreme Arbitration Court of the Russian Federation in paragraph 32 of Resolution No. 19 also indicated that such transactions cannot be concluded on the basis of a decision of the board of directors (supervisory board) of a joint-stock company. To make them, in all cases, a decision of the general meeting of shareholders is required, adopted by a majority of 3/4 of the votes of shareholders - owners of voting shares participating in the general meeting of shareholders.
Approval is not required if the joint-stock company has a sole shareholder who owns 100% of the company's shares and is at the same time its director or general director (clause 7, article 79 of Law N 208-FZ). From the sole shareholder who is not a director or general director of the company, it is enough to obtain his written consent to make a major transaction.
If a major transaction was concluded without the approval of the owners
Major transaction entered into by a limited liability company or a joint stock company in violation of the established approval procedure, may be declared invalid by the court. The company itself or its participant or shareholder may apply to the court with a corresponding claim. This is provided for in paragraph 5 of Art. 46 of Law N 14-FZ and paragraph 6 of Art. 79 of Law N 208-FZ.
Note. A statement of claim for the recognition of a major transaction as invalid cannot be brought to court by third parties.
So, a major deal concluded without the approval of the business owners can be challenged (clause 1, article 166 of the Civil Code of the Russian Federation). The limitation period for a claim to declare a voidable transaction invalid and to apply the consequences of its invalidity is one year (Clause 2, Article 181 of the Civil Code of the Russian Federation). This means that a limited liability company (joint stock company) or its participant (shareholder) has the right to apply to the court to declare a major transaction invalid within one year from the date when the plaintiff learned or should have learned about the circumstances that are the basis for declaring the transaction invalid . Similar explanations are given in paragraph 36 of Resolution No. 19.
Please note: the limitation period established for filing a claim for the recognition of a major transaction as invalid cannot be restored if it is missed (clause 5, article 46 of Law N 14-FZ and clause 6, article 79 of Law N 208-FZ).
Note! In what cases will the court refuse to recognize a major transaction as invalid?
The court has the right to refuse to satisfy the company, its participant or shareholder in a claim for invalidating a major transaction that was concluded in violation of the established procedure for approving major transactions, if at least one of the circumstances exists (clause 5, article 46 of Law N 14-FZ and paragraph 6 article 79 of Law N 208-FZ):
The voting of a member (shareholder) of the company that filed a claim for the recognition of a major transaction as invalid could not affect the voting results, even if this member (shareholder) took part in the voting on the approval of this transaction (provided that the decision to approve transactions are accepted by the general meeting of participants (shareholders), and not by the board of directors (supervisory board) of the company);
It has not been proven that the completion of this transaction has entailed or may entail the infliction of losses on the company or the participant (shareholder) of the company who filed the relevant claim, or the occurrence of other adverse consequences for them;
By the time the case is considered in court, evidence has been presented of the subsequent approval of this transaction in the manner prescribed by Laws N N 14-FZ or 208-FZ;
During the consideration of the case in court, it was proved that the other party to this transaction did not know and should not have known about its commission in violation of the requirements provided for in Art. 46 of Law N 14-FZ or art. 79 of Law N 208-FZ.
A transaction declared invalid by a court is such from the moment it was made (clause 1, article 167 of the Civil Code of the Russian Federation). This means that the parties to the transaction must be returned to the position in which they were before its conclusion. That is, each of the parties is obliged to return to the other everything received under the transaction, and if it is impossible to return what was received in kind (including if the received is expressed in the use of property, work performed or service provided), reimburse its cost in cash (clause 2 of article 167 of the Civil Code RF). If the property is returned in kind, its condition should be taken into account. In addition, it is necessary to compensate for the deterioration (damage) of the property, taking into account normal depreciation, as well as to compensate for the improvements made to the property.
Note. An invalid transaction does not entail legal consequences, with the exception of those related to its invalidity, and is invalid from the moment it is made (clause 1, article 167 of the Civil Code of the Russian Federation).
Subsequent approval of a major transaction entered into without owner approval
Civil law does not exclude the possibility of subsequent approval of an already concluded transaction. So, in Art. 183 of the Civil Code of the Russian Federation states that a transaction made by an unauthorized person may subsequently be approved by the person in whose interests it was concluded. In the absence of subsequent approval, the transaction is considered concluded on behalf and in the interests of the person who made it.
The possibility of subsequent approval of a major transaction concluded on behalf of a limited liability company is stated in paragraph 5 of Art. 46 of Law N 14-FZ. The above paragraph states that the court will refuse to satisfy the claim for the recognition of a major transaction as invalid if it was concluded in violation of the procedure for the mandatory approval of a major transaction, but by the time the case was considered in court, it was approved in the manner established by Law N 14-FZ. A similar rule regarding joint-stock companies is provided for in paragraph 6 of Art. 79 of Law N 208-FZ.
Recall that the above provisions appeared in the Laws N N 14-FZ and 208-FZ from October 21, 2009. Prior to this date, subsequent approval of a major transaction was allowed only in limited liability companies. The fact is that even before October 21, 2009, such a possibility was indicated in paragraph 20 of the joint Resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated 09.12.1999 N 90/14, which provides explanations to the courts on some issues of application of Law N 14-FZ.
Similar clarifications on the procedure for applying Law N 208-FZ, including those related to the subsequent approval of a major transaction, were contained in clause 14 of the joint Resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation of 04/02/1997 N 4/8. However, in 2003 this joint Decree became invalid. Instead, Decree N 19 applies, which does not contain a rule on the admissibility of approving a major transaction concluded on behalf of a joint-stock company in violation of the requirements of Law N 208-FZ. Now, the possibility of subsequent approval of such a major transaction is mentioned directly in paragraph 6 of Art. 79 of Law N 208-FZ.
At the same time, the FCSM of Russia recommends that joint-stock companies approve all major transactions even before they are completed. After all, the lack of prior approval of a major transaction makes it voidable, which creates the risk of the transaction being declared invalid and creates instability in the company's relations with counterparties. This is indicated in paragraph 1.2 of Ch. 6 of the Code of Corporate Conduct dated 04/05/2002, the provisions of which the FCBC of Russia recommends that all joint-stock companies established in the Russian Federation be guided by (Order No. 421/r dated 04/04/2002).
Note. If there are doubts whether this or that transaction is a major one, it is recommended to make such a transaction only after its approval by the owners in the manner prescribed by Laws N 14-FZ or N 208-FZ.
What is a major deal for LLC and how to calculate it is a topical issue for many companies. You can understand it only after carefully reading the term itself and other important aspects.
What is considered a major transaction for an LLC
In the current law on LLC, a major transaction is designated as an agreement that can be considered major for the following forms of ownership: LLC and Jsc. This term is applicable to the deal being concluded if it meets certain criteria and taking into account the organizational and legal form of the legal entity. This can also include a group of combined interconnected transactions. The following parameters act as signs of the relationship of these agreements: homogeneity, sufficient proximity by the date of their implementation, the same list of parties involved and one purchaser, a common economic goal.
The very concept of a major transaction for LLC is defined in the relevant Federal Law No. 14, in Article 46. The designated term is described here and detailed explanations are given regarding all aspects of the question posed. According to this legislative act, two key criteria for a major transaction for an LLC are established:
- Comparative value of a specific object with the total book value of the existing assets of the enterprise
- Establishing the fact of going beyond the boundaries of the normal business activities of the organization
The concept of property that is the object of the transaction includes equipment, immovable objects, other tangible objects, shares in non-documentary form, cash, intellectual property.
A major transaction for LLC can also be recorded in the main statutory document of a particular company. The qualitative criterion according to which the evaluation of the concluded contract is carried out includes two elements:
- An object that determines the legal connection with the property
- Action to perform on the specified property
The quantitative criterion during the evaluation of the contract becomes a priority.
The definition of a major transaction for a limited liability company provides for the alienation of either property acquired by it in the amount of 25% of the total property of the company, or has a value above this threshold. The charter of the organization may contain a higher limit, according to which the transaction will be recognized as a major one. The group of large transactions requiring approval, according to the charter of the company, may include the following types of transactions:
- Buying and selling securities, real estate, etc.
- Transactions of barter, donation, transfer of debt
- Loan agreements
- Guarantee contracts and property pledge agreements
- Other types of contracts
The general internal law of a limited liability company may also classify as major any transactions whose value exceeds the established threshold.
Comparison of the book value of the company's assets is carried out with:
- The book or contract value established for the alienated property - the maximum of the two indicators is used
- The purchase price of this object
- The price of shares available for purchase due to the emergence of an obligation to send a mandatory offer
These indicators serve as the basis for comparison.
To understand what is a major deal for LLC and Jsc, you can focus on the following rules.
LLC compares the object of the transaction being signed with the value of its property, fixed in accordance with the information in the accounting report for the last reporting period. In the case of a joint-stock company, the basis for comparison is the book value of the assets of this organization as of the last reporting date, which is fixed in Article 78 of the Federal Law No. 208. The explanation of the term major transaction for organizations of these organizational and legal forms is similar, but there are some nuances. The key difference between the concept of a major transaction for joint-stock companies and limited liability companies lies precisely in the fact that organizations with the first form of ownership take into account the total value of assets as a comparison base, and in the case of an LLC, the value of its property is taken as the basis. The calculation of the value of the LLC property and JSC assets is carried out in accordance with the current accounting data.
The object of comparison of the society is established according to the same criteria. Differences appear only taking into account the specific type of operation being performed.
Transactions conducted by the company in the process of implementing its usual economic activities do not belong to the number of large ones. The cost of the object of the contract being concluded is not taken into account. Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 28 determines that ordinary economic activity implies the performance of any operations adopted in the current activities of the organization. The fact that this company signed contracts of this kind in previous periods is not recognized as significant. This includes:
- Contracts related to the purchase by the organization of materials and raw materials for the implementation of production and economic activities
- Sale of finished products
- Obtaining a loan that has the purpose of paying for the current operations of the organization
A contract, which implies the purchase of a wholesale consignment of goods for the purpose of its subsequent retail sale, can be considered the usual economic activity of a company.
The transaction is not recognized as belonging to the ordinary economic activity of the company solely taking into account the following parameters:
- Produced within the framework of the main activity recorded in the Unified State Register of Legal Entities or the statutory document of the company
- The LLC has a license to conduct this type of activity
Do not belong to normal business activities and transactions that are not characteristic of this organization: an assignment agreement, assignment of a share in the authorized capital of another LLC, a mortgage agreement, the purchase and sale of bills, the purchase of expensive fixed assets.
A specific list of transactions belonging to the ordinary business activities of the company is not established by law.
In order to participate in the tender, in a number of situations, a properly drawn up certificate of the size of the transaction is required. The document must be confirmed by the signature of the head of the company and its chief accountant. A certificate of this type is also needed for presentation to Rosreestr in order to register the transfer of rights to real estate.
Calculation of a major transaction for an LLC
The calculation of a major transaction for LLC is as follows. Initially, the total amount of the transaction is calculated. Then the result obtained is compared with the value of the company's property according to the financial statements for the last reporting period. The value of the LLC's property is the total amount of all its assets.
The size of a major transaction in 2017 is determined by calculating 25% of the indicator indicated in line 700 "Balance" of the current accounting report. The result obtained serves as a control value that allows you to set the size of the transaction.
Before concluding a specific contract, it should be carefully analyzed for compliance with the size criteria. The procedure is as follows:
- Calculation of the value of assets on the last reporting date, which precedes the signing of the contract.
- Calculation of the ratio of the value of the contract to be concluded and the assets of the company - if the final indicator exceeds the threshold of 25%, a more thorough analysis of the operation should be carried out.
- Determination of a causal relationship with the property of the organization.
- Establishing a relationship with other contracts that have a similar meaning.
- Identification of the fact that the operation is classified as ordinary business activity.
As a result of the performed analysis, the size of the operation is determined.
An example of calculating a large transaction:
Zvezda is going to buy an office space. It allocates 12 million rubles for the purchase. At the same time, the balance sheet of its assets is 40.0 million rubles. An analysis of intentions to conclude a contract makes it possible to identify qualitative indicators of fineness (acquisition of property). The quantitative criterion indicates the size of this transaction. Calculation is carried out according to the following scheme: comparison of the transaction amount of 12 million rubles. with a balance indicator of 40 million rubles is 30%. (12.0: 40.0 X100 = 30).
Ultimately, the deal is recognized as a major one.
Major transaction for LLC with one founder
Conducted by the only member of the company, acting simultaneously as a leader, transactions do not belong to the list of major ones. This nuance is regulated by the legislative act Federal Law No. 14 - this moment is described in paragraph 7 of Article 46. To confirm the fact that the organization has a single participant and at the same time the head, an extract from the Unified State Register of Legal Entities is used. The question of the need to approve a transaction that is carried out on the basis of a preliminary agreement, subject to a change in the composition of participants or managers of the company by the date of its implementation, is becoming relevant. There is no formal requirement to obtain consent, but there is a potential to violate the interests of new members of the LLC. In this regard, it is desirable to formalize the obtaining of consent in an appropriate way.
Big deal for LLC, as for other business entities, requires the approval of the business owners. We will study what are the criteria for classifying transactions as large, as well as how the owners of the company agree to conclude a "major" contract.
Definition (concept) of a major transaction in the Federal Law on OJSC and LLC
What is a major transaction for LLCs and JSCs? Despite the fact that these organizational and legal forms of business have significant differences, the criteria for determining a major transaction with their participation are almost the same.
1. Outside the normal economic activities of the organization.
At the same time, such transactions do not include those that are typical for legal relations entered into by an organization or other firms engaged in similar types of economic activity (provided that such transactions do not lead to the liquidation of the company, a change in its type or a significant change in the scale of the organization).
2. It involves the acquisition, alienation or lease of property or the issuance of a license for the use of intellectual development.
3. It is characterized by the price or book value of property (which is the subject of the transaction) exceeding 25% of the book value of all assets of the company as of December 31 of the year preceding the one in which the transaction was made.
When purchasing more than 30% of PJSC shares in the manner regulated by Chapter XI.1 of Law No. 208-FZ, the buyer is obliged to send a public offer - a proposal to acquire shares to other owners of securities. At the same time, the cost of the transaction includes not only the price of the purchased shares, but also the price of other shares, which the buyer must try to buy back from the current owners.
On our forum you can discuss any question that you have on tax and not only legislation. For example, we figure out how to notify the tax authorities about a controlled transaction.
How can you tell if a deal is a big one?
1. Take the balance sheet for the year preceding the one in which the transaction is concluded and familiarize yourself with the book value of all assets of the company (line 1100).
2. Familiarize yourself with the cost of property purchased (sold or leased) under an agreement with a counterparty.
3. Compare the value of the property under the contract with the carrying amount (which may include other costs associated with acquiring the asset, such as shipping costs).
If the property is purchased by a participant in the transaction, then the purchase price of the property is taken into account in the further calculation; if sold - the largest value when comparing the book value and selling price; if rented out - the book value (clause 2, article 46 of Law No. 14-FZ, clause 1.1 of Article 78 of Law No. 208-FZ).
4. Divide the amount taken into account in paragraph 2 by the amount in paragraph 1.
If the score is greater than 0.25, then the deal is considered a major deal (subject to meeting the other criteria discussed above) and will require the approval of the business owners, unless otherwise provided by law.
What is the significance of the fact that a transaction is classified as a major one?
The presence of legal grounds for recognizing a transaction as a major one makes it possible for the owners to actually protect their business from undesirable and uncoordinated actions of the general director. If a transaction that meets the criteria of a major transaction is carried out without the approval of the owners, then they will have a legal opportunity to challenge it.
The conclusion of a major transaction for an LLC or JSC, as a rule, imposes a number of large-scale obligations on the business entity. Most often financial (for example, related to the payment of purchased goods). Acceptance of such obligations without the knowledge of the owners of the company or their proxies is in many cases an extremely undesirable scenario for business.
There may be a corruption component here (when the director negotiates a large purchase from “his” supplier), and the lack of competence of the manager (when the supplier is not “his”, but not the most profitable, which only the owners know about, and the director, due to inexperience, does not suspects it).
Let us now consider in more detail the specifics of conducting large transactions by limited liability companies.
Do I need approval for a major transaction in an LLC?
It is important for the head of a company registered as an LLC, as well as the director of a JSC, to obtain consent to this transaction from certain authorized persons (later in the article we will consider how it can be given).
The corresponding transaction, carried out without approval, can be challenged in court on the basis of the provisions of Art. 173.1 of the Civil Code of the Russian Federation. At the same time, persons owning at least 1% of the authorized capital of an LLC can challenge it (clause 4, article 46 of Law 14-FZ). Approval of a major transaction for an LLC can also be obtained upon its completion. The main thing is that the consent of the authorized persons is obtained before the case is considered in court (clause 5, article 46 of Law 14-FZ).
At the same time, the legislation provides for the conduct of transactions that fall under the criteria of large ones, without obtaining the consent of any persons. For example, if an LLC has a single founder, who is also the general director.
The acquisition by the sole founder of the company of the powers of the general director has nuances - you can study them in the article "Sample employment contract with the general director of LLC" .
However, there are still a number of reasons to use the opportunity to disapprove a major deal. Let us study the specifics of “large” contracts concluded freely in more detail.
Is a deal with one founder considered non-approval?
Yes, it is, as we noted above, so. In addition, a large - in accordance with the above criteria - a transaction involving an LLC does not require approval if (clause 7, article 46 of Law 14-FZ):
1. It is carried out as part of the reorganization of an LLC (as an option - under an agreement on a merger with another company or accession to it).
You can learn more about the specifics of the reorganization of an LLC in the article. "Step-by-step instructions for the reorganization of an LLC by merger" .
2. Assumes the receipt by the company of a share in its authorized capital in cases provided for by law 14-FZ.
3. It is carried out by the company by virtue of law at a price established in regulatory enactments.
4. LLC buys PAO securities as part of a mandatory offer.
5. The conclusion of a major transaction for an LLC is carried out according to the rules determined by the preliminary agreement, and also on the condition that this agreement:
- contains information certifying the fact of approval of the transaction;
- is concluded with the approval of the persons giving consent to the transaction.
Let us now study how to ensure the legitimacy of a major transaction, which in turn requires consent to its implementation.
What is the approval process for a major LLC transaction?
Concludes a major deal for LLC, as we noted above, its CEO. At the time of its completion (or, if it happened, at the time the court considered the claim for the recognition of the transaction as invalid), he should have in his hands - as a condition for recognizing the "major" contract as legal - a decision to approve the conclusion of the contract:
1. Published by authorized persons - participants in the general meeting of LLC owners. If the firm has a board of directors, then issued by it on the condition that:
- the board of directors has the relevant competences under the charter of the LLC;
- the value of the property in the framework of the transaction is 25-50% of the value of the property of the LLC.
- on the persons acting as parties to the transaction;
- beneficiaries;
- price, subject of the contract;
- on other material terms of the transaction or the mechanism for determining them.
- on the upper or lower limit of the value of the sale of property or the procedure for their establishment;
- permission to conclude a number of similar agreements;
- alternative terms of the contract, the conclusion of which requires approval;
- approval of the transaction subject to the conclusion of several contracts at the same time.
When this period is not specified, the decision is considered valid for 1 year from the date of its adoption, unless otherwise predetermined by the specifics of the approved major transaction or due to the circumstances of the decision.
Results
A major transaction is one whose value exceeds 25% of the company's total assets. At the same time, the terms of the contract must meet the criteria established by Art. 46 of the Law "On LLC" dated February 8, 1998 No. 14-FZ and Art. 78 of the Law "On JSC" dated December 26, 1995 No. 208 (for LLC and JSC, respectively).
You can learn more about the features of legislative regulation of legal relations with the participation of an LLC in the articles:
- “What is the procedure for the withdrawal of participants from the LLC?” ;
- "Registration of the transfer of a share in an LLC to another participant" .
There is a concept of a major transaction for an LLC, the essence of which is the alienation or purchase of a large object worth at least a quarter of the entire property of the LLC. This definition acquires new features along with the changes that occur in the course of the development of entrepreneurial activity. About the features associated with the conduct of a major transaction, and will be discussed in the article.
Legislative framework
Article 46 of Federal Law No. 14 “On Limited Liability Companies” establishes the criteria for a major transaction:- The relationship between the principal balance sheet of the LLC and the value of the object.
- Does the enterprise go beyond entrepreneurial activity.
The following deals are under control:
- Acquisition of shares, credits, pledges, loans, guarantees that relate to the purchase or alienation of property. They also include contracts for the provision of services, contracts.
- Agreements on the withdrawal of property from the assets of the enterprise. It can be a gratuitous or compensated transfer for use.
The "Concept for the development of civil legislation" of the Russian Federation regulates the conduct of major transactions. This document lays down the main provisions on the process of their implementation, describes the moments at which conflicts may arise between the creditor and the counterparty.
Major Deal Qualification
With a close relationship of small transactions, they turn into one large one. This is possible if the following symptoms are present:- homogeneity of small transactions;
- their commission occurs either simultaneously or close in time;
- the same entities, the same acquirer take part in the operation;
- they have a common goal.
- an object that is a property part;
- actions performed with this object;
- business transaction evaluation criteria.
For a clearer definition of the scale of the operation, the price of the object is compared with the balance sheet level for the last reporting period.
Operations with large transactions
When making a large-scale transaction, the following operations are carried out:- purchase and sale of securities, real estate;
- donation, exchange, transfer of debt;
- signing agreements on issuing loans;
- agreements on property pledge or guarantee.
What transactions are not recognized as large?
Ordinary transactions that are made in the course of business activities, when the cost of the signed contract is not taken into account, are not usually classified as large:- conclusion of contracts for the purchase of raw materials, consumables for solving production and economic issues;
- sale of finished goods;
- issuing a loan to finance current operations at the enterprise;
- supply of a wholesale batch for the purpose of subsequent retail sale.
Information about the size of the transaction
Without such a certificate, the LLC will not be able to participate in the tender. It must also be presented to the Rosreestr when transferring ownership of an immovable object. The document must be drawn up in accordance with legal requirements, and it is certified by the seal of the enterprise and the signatures of the head and chief accountant.
Calculation of a major operation
Calculation should begin with an assessment of the operation being performed. It is then compared to the total of all assets of the LLC. Next is the amount equivalent to 25% of the total balance. This figure is the criterion that will determine how large the upcoming deal is.After the comparative analysis, when the transaction estimate exceeds the control one, the following information should be collected before the conclusion of the corresponding contract:
- Determine the amount of assets on the date preceding the transaction.
- If the 25% criterion is exceeded, a deeper analysis is carried out.
- It is necessary to identify what are the causal property relationships of LLC.
- Examine the question of the likely relationship between other agreements concluded in a similar direction.
- Clarification of non-involvement of the transaction in the category of ordinary.
Calculation example:
LLC "Continent" plans to purchase premises to accommodate a new department. For these purposes, an amount of 14 million rubles is provided. The company's balance is 42 million rubles. As a result of a comparative analysis of the cost of the upcoming contract, indicators were identified that correspond to the qualification of a major transaction.
The calculation is carried out according to the following algorithm:
The amount of the upcoming operation of 14 million rubles is 33.3% (14.0 / 42.0 * 100 = 33.3).
The deal was considered a major one.
Deal Approval Process
To carry out this procedure, a meeting of the members of the LLC is held. It is preceded by the preparation of a draft approval decision, which contains the following information:- the cost of the purchased object;
- description of the subject of the auction;
- purchaser information.
At such an event, all members of the Society must be present, who are notified in advance of the upcoming meeting. The head conducts it, observing the requirements of the Federal Law on LLC, as well as the installations fixed in the statutory and other regulatory documents. During the meeting, a break is possible, its duration is determined by the members of the LLC.
After consideration of the issue, a discussion takes place, and a final decision is made. If the transaction is approved, this fact is recorded in the minutes of the meeting. The decision is considered legitimate from the moment the document (protocol) is signed, if it is made within the legal framework.
If the protocol lacks compelling arguments for a positive decision, the transaction is considered not approved.
An LLC may have a board of directors. If the price of the contract is estimated at 25% to 50% of the book value, this body is authorized to independently decide whether to recognize the size of the transaction or not.
You can also learn more about the decision to approve a major transaction from the video below.
LLC with one founder
If there is a single founder, the transactions initiated by him cannot be considered as large ones. In paragraph 7 of Art. 46 of Federal Law No. 14 contains a description interpreting the legitimacy of the above condition on non-recognition of a major transaction.The state of affairs can be changed only with a possible change in the composition of the founders, which must be completed by the time the transaction is concluded. To do this, it is necessary to draw up a preliminary contract providing for the mentioned changes. To avoid violation of the rights of the future founders of the LLC, the documentary consent of each of them and confirmation of their future presence in the LLC is required.
Grounds for legality
Any of the members of the LLC may file a claim with the court for a decision to recognize the agreement as unlawful if there were obvious violations of legal requirements during the meeting.The parties are obliged to appear at the court session at the appointed time, otherwise the limitation period is not restored.
The court may recognize the transaction as lawful under the following conditions:
- The lawsuit is based on the dissatisfaction of one of the participants, whose opinion was not listened to and his negative attitude towards the transaction was not taken into account. His protest is based only on outrage that his vote did not affect the results of the final vote. This situation is not legally justified, because the decision was made by a majority vote without rigging.
- The participant insists that the upcoming major operation will adversely affect the economic performance of the enterprise, but has no documentary evidence.
- The evidence base for the court is properly executed documents, in particular, the minutes of the meeting. If there are no claims against him, the court makes an approving decision.
- The transaction is recognized as legitimate if there were violations during the meeting, but the second participant did not know anything about them.
The need to follow the basic rules
The LLC is responsible for deciding whether a large-scale transaction is legal. If a conflict situation arises, an accounting examination is carried out.The statutory documents should contain information regulating the financial activities of the enterprise.
If the settlement agreement is approved in court, this transaction is rightfully considered a major one. You can file a complaint and challenge it in the court process.
A major transaction for an LLC is a financial transaction for lending, collateral or surety for the purchase or disposal of real estate. The concept of a major operation and ordinary activities have a fine line. This is the main problem that can cause a breakdown as a result of the recognition of the transaction as invalid.
