The procedure for approving major transactions has changed. How to work according to the new rules. The concept of a major transaction for legal entities. Providing information about a major transaction when placing orders for government needs

The acquisition of commercial real estate, as a rule, is associated with quite large costs, and accordingly, the amount can be very large. In such situations, legal entities need to determine whether the transaction is major. Let's look further at how to do this.

Terminology

A major transaction for an LLC represents the alienation or acquisition of material assets by the company, the value of which exceeds 25% of the price of the company’s entire property. The latter is assessed using financial statements. In this case, the calculation is carried out for the period preceding the day on which the decision was made to approve a major transaction. The company's charter may establish a higher percentage. In accordance with the constituent document, a major transaction for an LLC may be determined by other criteria. Thus, this category may include the purchase and sale 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 considered large.

the federal law

A major transaction is carried out according to the rules established in Art. 46 Federal Law No. 14. The article also contains a detailed explanation of the definition itself. Thus, a large transaction is considered to be one (loan, credit, guarantee, pledge, among others) or two or more interrelated transactions relating to the acquisition, alienation or possibility of alienation indirectly or directly of property worth 25% or more of the total price of the company’s material assets, established according to data financial statements for the period preceding the date of the decision to conclude them, unless the company's Charter provides for a higher percentage.

The category under consideration does not include those that are carried out in the normal course of 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 for 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 reporting, and the acquired property is determined on the basis of the offer amount.

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. A major transaction is approved by the general meeting. Discussion and documentation are carried out according to the rules provided for in the constituent documents. The decision to approve a major transaction (a sample act is presented in the article) must contain information about:

• Persons who act as parties to the agreement, 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 agreement is concluded at auction and in other cases when the parties cannot be identified by the time the act is adopted. The company's charter may provide for the creation of a board of directors. In this case, the decision to approve a major LLC transaction concerning the alienation or its possibility, as well as the indirect or direct acquisition of material assets worth 25% or more of the price of the company’s property, may fall within the competence of this body by the constituent documents.

Challenging

Agreements signed in violation of legal requirements (no approval of a major transaction, an improperly drawn up act, etc.) may be declared invalid. The dissenting participant may file a corresponding claim in court. If the statute of limitations on a claim for recognition of the invalidity of a contract is missed, in such cases it cannot be restored.

Court refusal

The authorized body may not satisfy the plaintiff’s request to invalidate a decision on a major transaction carried out in violation of statutory requirements if any of the following circumstances exist:

1. 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 the claim.
2. The vote of a shareholder submitting a demand to the court to invalidate a transaction concluded after approval at the general meeting, even if he participated in it, could not have influenced the results.
3. By the time the case is heard, evidence of subsequent approval of the contract according to the rules established in the Federal Law has been submitted to the court.
4. During the consideration of the dispute, it was proven that the other party to this transaction was not and should not have been aware of its completion in violation 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 provided for by the conclusion of the agreement will not arise. Thus, an invalid transaction will not entail legal consequences other than those that arise directly when it is recognized as such. As an exception, the court has the right to terminate the agreement not from the moment of its conclusion, but for the coming period - from the date of the relevant act. This provision applies to voidable transactions if it follows from their content that they can only be stopped for the upcoming period. Basically, this refers to ongoing contracts, the termination of which from the moment of their conclusion is impractical or impossible.

Bilateral restitution

This is another important consequence of recognizing a transaction, including a large one, as invalid. In case 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 occurs if the parties have partially or fully fulfilled 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 by law.

It should be noted that bilateral restitution does not always work in practice. For example, you cannot return goods 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 clarified that in restitution, the restoration of rights should be carried out on 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 indicated that when applying the consequences of the invalidity of a contract, the obligations under which have been partially or fully fulfilled, it is necessary to proceed from the 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 which there is an interest in signing, the approval of a major transaction is carried out in accordance with the provisions of Art. 45 Federal Law No. 14. The exception is the case when all participants in society have it. In such situations, a major transaction is agreed upon in the manner 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 that are subject to the above requirements.

Exceptions

The provisions under which a major transaction must be concluded do not apply to:

1. Relations that arise when the right to property is transferred during the reorganization of a legal entity, including under agreements of accession and merger.
2. Companies that consist of one participant who simultaneously performs the functions of the sole executive body in it.
3. Relations that arise when a share or part thereof 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 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 clauses 2, 3 of Letter No. 62 of the Supreme Arbitration Court (review of the practice of considering disputes concerning the conclusion by business entities of the contracts and agreements in question in which there is an interest), when determining the category of legal relationship, the value of the item should be compared with the book value of the assets of the legal entity at the latest 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 a company, the burden of proving that the concluded agreement is not a major transaction rests directly with the legal entity. If there are objections from persons participating in the case regarding the reliability of the information presented by the company, it is allowed to determine the value of material assets based on the results of an accounting examination as ordered by the court.

Percentage calculation: sample

A major transaction is determined by the ratio of the value of existing and acquired/alienated property. Let's look at an example:

1. The cost of the property is 45 million rubles.
2. The price of a legal entity's property is 5 million rubles.
3. 1% of 5 million = 50 thousand rubles.

Let’s find the cost of the transaction as a percentage of the legal entity’s property:

45 million/50 thousand = 900%

There is another option: divide the transaction cost 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 force. It regulates the implementation of control over transactions made between related parties. The subject of supervision is the contract price. During the control, the compliance of the specified value with market values ​​is checked. This process is regulated by Art. 105.3-105.6 NK. Tax control is carried out to verify the completeness of accrual and payment of fees and taxes (profit, VAT, personal income tax, mineral extraction tax). Any major transaction is subject to registration with the relevant service. Contracts that meet certain pricing requirements are subject to control. The Tax Code establishes the following criteria:

1. The amount of income under contracts for the corresponding period exceeds 1 billion rubles. (since 2014).
2. One of the parties acts as a taxpayer of mineral extraction tax, calculated according to a tariff as a percentage, and the subject of the transaction is a mineral (precious metals and stones, oil and its products, ferrous and non-ferrous metals, mineral fertilizers). The cost criterion for such contracts is 60 million rubles.
3. At least one participant:

Acts as a taxpayer of UTII or Unified Agricultural Tax (if the agreement is signed as part of this activity), and the other party does not use a special taxation regime (cost limit - 100 million rubles / year);

Exempt from paying income tax, and the other does not use such a relief (price threshold - 60 million rubles / year);

Acts as a participant in the Skolkovo project, but the other does not (criterion for the amount is 60 million rubles/year);

He is a resident of the SEZ and uses a preferential tax regime, while the second one does not, the price limit is 60 million rubles/year.

Notification

The taxpayer is obliged to notify the supervisory authority about controlled transactions that were completed during the calendar year no later than May 20 of the upcoming period. This requirement is present in Art. 105.16, clause 2. The notification is sent to the place of residence, location or registration of the legal entity as a large taxpayer. The notice should provide the following information:

The notification form, the procedure for filling out, as well as the format for submitting the document in electronic form have been adopted 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.

Some types of transactions carried out by LLCs are carried out within strictly defined legal frameworks. Such transactions may be so-called major transactions (agreements, contracts). If the special procedure is not followed, then they are not recognized as valid. Even before it begins, the lawyer determines the status of whether it is large or not.

Definition of a transaction and procedure for its execution

The civil law of the Russian Federation defines concept of a major deal. A major transaction is considered to be several related transactions, as a result of which property is acquired or disposed of. The cost of property in such transactions should start at 25 percent or more of the book value of the assets of the Limited Liability Company.

Oddly enough, the conclusion of a settlement agreement also applies to major transactions. However, the parties and beneficiaries are not always known. This applies to trades. In this situation, it is permissible not to indicate mandatory information.

The value of the assets themselves is determined by the balance sheet of the Limited Liability Company, compiled by an accountant with the latest report date for the expired period (last year). Major agreements may include: loan, credit, pledge. But transactions related to the placement on the securities market, despite sometimes even their large volumes, cannot in any way be classified as large.

The Law “On Limited Liability Companies” clearly defines that transactions made in the course of ongoing business activities cannot be classified as large.

Approval of transactions

To approve the agreement, a general meeting of company participants (shareholders) is convened, where the issue of approving a major transaction is decided. A draft decision is being drawn up on approval of the agreement between subjects. This decision specifies: the price of the property being acquired, the subject of the transaction itself, and the acquiring party. If the contract was concluded during the bidding process, then the beneficiary cannot be indicated in the decision. The same rule applies in some other cases when the beneficiary could not be determined at the time of approval.

An LLC can be created Board of Directors. In this case, all agreements worth from twenty-five to fifty percent of the value of the company's property are under the jurisdiction of the Council. And the council can already decide on the approval of major contracts.

The decision taken by the general meeting is ensured by the presence of all participants. Participants must be notified in advance. The head of the enterprise introduces the agenda of the meeting to those present. The procedure for holding a meeting is determined by the law on LLC, the charter and other documents of the enterprise itself. A break in work is allowed, not limited in time.

The agreement data is documented as signed minutes of the meeting. The decision is considered legal if it does not contradict the charter and current legislation. Essential conditions not specified in the protocol automatically make the transaction unapproved.

The agreement is considered approved from the moment the protocol is signed.

Recognition of transactions as legal

If, during the events, according to the terms of the contract, violations of the law, then the agreement can be declared invalid at the request of the company or any of its participants.

The court sets a time for a hearing to invalidate the terms of the contract. If a hearing is missed, the statute of limitations cannot be restored. This means you can't miss hearings.

The transaction is recognized by the court under certain circumstances:

• The voting participant does not want to admit that the agreement was made correctly and files a lawsuit. The basis for filing a claim is the fact that the vote of the voter on the recognition of a major transaction did not affect the final result, even if he voted. This circumstance cannot in any way be unlawful. All procedures were followed and decisions were made by majority vote.
• There is no way to prove (there is no evidence) that the agreement may entail losses to the entire company or its individual participant.
• Evidence in court may require agreement approval documents. If the documents are in perfect order and executed according to the rules, then the transaction is considered legal.
• Everything is considered valid and recognized by the court - even if the transaction was concluded with violations, but the other party participating in it did not know about them or should not have known about them.
• The company's charter may stipulate that decisions on major transactions are made without a general meeting and a board of directors.
• The possibility of retroactive approval of the contract cannot be ruled out.

An article of law regulating the rules for approving agreements, cannot be applied on the following three points:

1. A limited liability company consists of one participant, who himself performs all functions for the operation of the enterprise and for making transactions.
2. The emergence of a relationship when a share or part thereof in the authorized capital is transferred to the company.
3. The emergence of relations when a merger of companies occurs or annexation occurs as a result of the reorganization of an LLC.

“Going through” a deal is not always a reason to relax. Sometimes this is just the beginning of problems. Always exists likelihood of the contract being invalidated.

The main point for the decision of the general meeting of LLC participants to be recognized as legitimate and not to cause problems in the future is the presence of an elementary majority.

If the charter does not require either a general meeting or a decision of the board of directors, then there is a possibility of acquiring illiquid assets or withdrawing assets. This option cannot suit the participants of the company and will cause a conflict of interests.

If any person related to the company is interested in the agreement, the exclusion rules.

Rules determined by the company's charter

1) The charter regulates the daily economic activities of the company. It may also define the lower and higher thresholds for large contracts, or even abolish the procedure for such processes. If there is any threshold level, the minimum and maximum threshold values ​​must be expressed as a percentage. The decision is made by the general meeting or the board of directors.

2) Usually the decision on the agreement is made general meeting of company participants. But when a board of directors is formed, all functions are transferred to it. Changes must be reflected in the charter.

3) New rules governing the agreement process define a new size threshold. If previously the threshold was no more than 25 percent, now this norm has increased from 25 percent or more.

4) The LLC charter now provides other types and sizes of large transactions. These types include: borrowing and real estate transactions. The threshold in such contractual agreements may exceed the established one.

5) According to the statutory rules and current legislation, when approving a major transaction, the following must be indicated:

• a) Persons who are beneficiaries. Such persons are not indicated for transactions made at auctions or if they are not identified before approval.
• b) Subject of the auction.
• c) Transaction cost.
• d) Special conditions.

Exactly the same rules are specified in the law on joint stock companies. But norm for LLC is considered more perfect, since in the case of a joint-stock company, the specifics of the auction agreement and cases of impossibility of identifying the beneficiary at the time of making the decision are not taken into account.

6) The charter may prohibit the alienation of a share or part of a share of a company participant in favor of a third party.

The procedure for approving transactions is provided for in Article 45 of the Law “On Limited Liability Companies”. This article provides for exceptions in case of interest by one of the persons.

Major transactions for various forms of companies

There are different approaches to the concept of “major transaction”. This depends on the form of legal entity.

For LLC

For this type of society, the assessment and rules for regulating approaches have already been given so as not to be repeated again.

Major contracts are approved by the general meeting or, if there is one, by the board of directors. The amount upon approval is from 25 to 50 percent.

Contested disputes are resolved in court.

The presence of one participant in the company provides for simple written approval without a protocol.

For unitary enterprises

This type of legal entity is subject to the rules of the law “ On state and municipal unitary enterprises”.

For state-owned enterprises, the agreement becomes large as a result if the transactions are interrelated. In this case, property is acquired or alienated, and there is also the possibility of alienation. Property in contracts of this kind is estimated at more than 10 percent of the authorized capital of the enterprise in the first version. And in the second option, fifty thousand times or more must exceed the minimum wage.

Cost of alienated property determined as a result of the accounting of the enterprise. If property is purchased, its value is determined based on the price of the property.

To make a decision, the consent of the owner of the enterprise is required. Such owner is the municipality (local authorities).

Lack of owner consent means the transaction is invalid.

For state and municipal institutions

The Law “On Non-Profit Organizations” applies to this form of enterprise. A major transaction for such an enterprise is several interrelated transactions if they involve money, the alienation of property, or the transfer of property for use or collateral.

The price of such a transaction or the value of the property (alienated or transferred) must exceed the value of the assets of the budgetary institution on the balance sheet of the enterprise. The cost is determined by accounting reports with the latest date. The charter of such an enterprise may also provide for a smaller amount of the contractual agreement.

The budgetary organization carries out its contracts with the prior consent of the founder. The founders are: federal executive authorities, executive authorities of the constituent entities of the federation and local governments.

To participate in the agreement, the founder of the budget organization should submit to the Ministry of Finance package of documents:

• Application from the head of the institution for preliminary approval. This document indicates: price and terms, subject of the transaction and parties, financial justification for feasibility. A list of documents must be attached to the application.
• Certified copies of budget reports for the last year with the latest reporting date. The chief accountant certifies budget reporting forms.
• A draft agreement that outlines all the terms of the transaction.
• Report on the assessment of the market value of the property. The assessment is carried out no earlier than three months before the report is submitted.
• Indication of all types of debts, debtors and creditors.

The decision on preliminary approval is considered and adopted by the commission after receiving the documents, within a month. The decision is formalized by order of the Minister of Finance.

For an autonomous institution

Adjustable Law “On Autonomous Institutions”. The transaction of this enterprise is large when it is associated with the disposal of funds raised under a loan, the alienation of property and the transfer of its use (or as collateral). The conditions for this are as follows: the price or value of the property (transferred or alienated) exceeds 10 percent of the value of the assets on the balance sheet of the enterprise. The value of assets is determined, as elsewhere, by the balance sheet with the latest reporting date. A lower threshold may be specified in the charter.

In an autonomous institution, the right to conduct is decided with the approval of the supervisory board. The council considers the manager's proposal within 15 calendar days. The council consists of from five to eleven people.

Members of the supervisory board are: representatives of this institution, executive bodies of local self-government or state power, representatives of the public.

A transaction made in violation is declared invalid at the request of the autonomous institution or its founder.

Special rules

Transactions require special attention. Article 46 defines and establishes a number of rules.

• A major transaction is not only one transaction related to a loan, credit, pledge or guarantee, but several related ones for acquisition or disposal.
• The value of the property must be 25 percent or more of the value of the property as of the last reporting date.
• The responsibility for whether the transaction is large or not lies with the LLC. Accounting expertise will help to understand the conflict that has arisen. Companies operating under the “simplified” system are not required to keep accounting records.
• The charter helps effectively control all economic and financial activities of the LLC.
• A settlement approved by the court is a major transaction. Such a transaction can only be challenged by filing a complaint with the court.
• A problem for LLC activities may be the line between economic activities and major transactions. This is quite difficult to determine and the threat of failure (non-recognition) invariably arises.
• Transactions where a large amount of property is contributed to the authorized capital, a pledge agreement on real estate or the purchase of leased premises are not considered major transactions.

Legal regulation of major transactions

The regulation of large transactions is given attention to by such a document as the “Concept for the Development of Civil Legislation” of the Russian Federation.

This document states that schemes of agreements are used to renounce previously committed acts, although they must preserve the property of the society. Property turnover is disrupted and contradicts the interests of counterparties and creditors.

Protection of its interests by the company when making a major transaction by challenging it is possible when the company cannot know about violations of the order, that is, it is a bona fide counterparty.

The accountant and lawyer involved in the transaction must be aware of the pitfalls and adhere to the accounting and reporting data.

In accordance with the requirement of Article 51 of Law No. 44-FZ (Part 2, paragraph 1, subparagraph “e”), an application for participation in the competition in certain cases must contain decision to approve a major transaction. This document must be attached when such a decision is required by law or the constituent documents of the participant. In this case, both the cost of the transaction itself, that is, the supply of goods, provision of services or performance of work, and the amount of security for the application or contract are assessed.

In the absence of a decision to approve a major transaction in the event that one should be submitted, the customer may reject the participant's application. In what cases should suppliers and contractors provide such a solution? What does the customer need to check so as not to reject the application without reason? Let's look at these questions in more detail.

Which deal is big?

The conditions for recognizing a transaction as a major one are established by law and vary depending on the type of legal entity. It is worth noting that the category of major transactions, regardless of the type of organization, can include not only one operation, but also several interrelated ones.

Registration in ERUZ EIS

From January 1, 2019 to participate in tenders under 44-FZ, 223-FZ and 615-PP registration is required in the ERUZ register (Unified Register of Procurement Participants) on the EIS (Unified Information System) portal in the field of procurement zakupki.gov.ru.

We provide a service for registration in the ERUZ in the EIS:

For a budget institution (BU) A large transaction is considered to be the price of which exceeds 10% of the book value of assets as of the last reporting date. Such a transaction can only be carried out with the permission of a body that has the powers and functions of the founder of the BU. This requirement is established by paragraph 13 of Article 9.2 of Law No. 7-FZ “On Non-Profit Organizations”.

And here for unitary enterprises a major transaction is a transaction of value from 5 million rubles . This rule is established by Part 1 of Article 23 of Law No. 161-FZ “On State and Municipal Unitary Enterprises”. The owner of the property of a state unitary enterprise or municipal unitary enterprise must approve a major transaction on the basis of part 3 of this article.

For joint stock companies (JSC) And limited liability companies (LLC) a major deal is 25% or more of the value of the LLC’s property or JSC’s assets . The value of property (assets) is determined according to the financial statements for the last reporting period. The legislative act establishing the conditions for recognizing a transaction as a major one for joint-stock companies is Law No. 208-FZ, and for limited liability companies - Law No. 14-FZ. Note that the charters of JSCs and LLCs may provide for other sizes and conditions for recognizing a transaction as a major one.

In relation to joint stock companies and LLCs, the legislation makes a reservation - Transactions made in the course of ordinary business activities of companies are not considered major transactions. . Because of this, the question of recognizing a transaction as a major one does not always have a clear answer for them.

Approval of a major transaction

Approval of a major transaction of a joint stock company in accordance with Article 79 of Law No. 208-FZ is accepted board of directors (supervisory board) or general meeting of shareholders.

A decision regarding major LLC transactions must be made general meeting of participants(Article 46 of Law No. 14-FZ). At the same time, a company consisting of one participant who is the sole executive body, on the basis of paragraph 1 of part 9 of this article, is not obliged to submit a decision on the approval of a major transaction.

Position of officials and courts

The Ministry of Economic Development and the FAS believe that it is unlawful to reject an application on the basis of the absence of a decision on approval of a major transaction.

If there is no such decision in the documents, it means that the transaction is not major for the participant. At the same time, Law No. 44-FZ does not require suppliers and contractors to document the fact that the transaction for them does not belong to the category of large ones. This position is supported by the majority of arbitration courts.

However, regarding non-profit organizations or unitary enterprises Judicial practice suggests that rejection of an application on this basis is often lawful. In this case, the law clearly stipulates the criteria for a transaction that is considered large for these organizations. And if, when planning to participate in one, a state unitary enterprise, municipal unitary enterprise or budgetary institution does not approve it, then this is a violation of the law.

What should the customer and participant do?

Before rejecting a participant's application based on the lack of a decision to approve a major transaction, the competition committee must check the following:

• whether such a requirement is really established by law for this type of organization;
• whether the transaction amount is really large for the participant.

If it is not possible from the constituent documents of a JSC or LLC obviously establish whether or not the transaction relates to their ordinary business activities, then on the basis of the absence of a decision on its approval It is not recommended to reject the application. In this case, the participant with a high degree of probability can cancel the decision of the competition commission through the FAS or the court.

To avoid such situations, participants can be advised only one thing - to attach the specified solution to the documentation. This is faster and more effective than facing a rejected application and challenging the decision of the competition commission. When classifying a transaction as large, unitary and budgetary organizations should focus on its size, while commercial ones should also take into account the fact whether the transaction is normal for their business activities or not.

Major deal for LLC, as for other business entities, requires approval from the business owners. Let's study what are the criteria for classifying transactions as large, as well as how the owners of the company give consent to conclude a “large” 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 involving them are almost the same.

1. Goes beyond the normal economic activities of the organization.

However, 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 business activities (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. Involves the acquisition, alienation or lease of property or the issuance of a license to use intellectual development.

3. Characterized by the price or book value of the 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 year in which the transaction was carried out.

When purchasing more than 30% of the shares of a PJSC in the manner regulated by Chapter XI.1 of Law No. 208-FZ, the buyer is obliged to send a public offer - an offer to purchase shares to other owners of securities. Moreover, the transaction price includes not only the price of the shares being purchased, but also the price of other shares that the buyer must try to buy back from the current owners.

On our forum you can discuss any question you have regarding tax and other legislation. For example, we are figuring out how to notify the tax authorities about a controlled transaction.

How to determine if a deal is large?

1. Take the balance sheet for the year preceding the year in which the transaction is concluded and become familiar with the book value of all assets of the company (line 1100).

2. Familiarize yourself with the cost of the property being purchased (sold or leased) under an agreement with the counterparty.

3. Compare the value of the property under the contract and the book value (which may include other costs associated with the acquisition of the asset, such as delivery costs).

If the property is purchased by a participant in the transaction, then the purchase price of the property is taken into account in further calculations; if sold - the largest value when comparing book value and selling value; if rented out - book value (clause 2, article 46 of law No. 14-FZ, clause 1.1, article 78 of law No. 208-FZ).

4. Divide the amount taken into account according to point 2 by the amount according to point 1.

If the result is more than 0.25, then the transaction is considered major (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 transaction?

The presence of legislative grounds for recognizing a major transaction makes it possible for owners to actually protect their business from unwanted and uncoordinated actions of the general director. If a transaction that meets the criteria of a major one is carried out without the approval of the owners, they will have a legal opportunity to challenge it.

Concluding 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 payment for purchased goods). Acceptance of such obligations without the knowledge of the owners of the company or their authorized representatives 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 insufficient 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, is not suspects this).

Let us now take a closer look at the specifics of conducting large transactions by limited liability companies.

Do you need approval for a major LLC transaction?

It is important for the head of a company registered as an LLC, as well as the director of a joint-stock company, to obtain consent to this transaction from certain authorized persons (later in the article we will look at how this can be given).

The corresponding transaction carried out without approval may be challenged in court on the basis of the provisions of Art. 173.1 Civil Code of the Russian Federation. At the same time, it can be challenged by persons who own at least 1% of the authorized capital of the LLC (Clause 4, Article 46 of Law 14-FZ). Approval of a major transaction for an LLC can also be obtained upon its implementation. The main thing is that the consent of authorized persons is obtained before the case is considered in court (clause 5 of 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 a 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 an LLC” .

However, there are still a number of reasons for using the option not to approve a major transaction. Let’s study the specifics of “large” contracts concluded freely in more detail.

Is a transaction with one founder considered not to require approval?

Yes, this is, as we noted above, true. In addition, a large - in accordance with the above criteria - 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 find out more about the specifics of LLC reorganization in the article “Step-by-step instructions for reorganizing an LLC by merger” .

2. Provides for the company to receive a share in its authorized capital in cases provided for by law 14-FZ.

3. Carried out by the company by force of law at a price established in regulations.

4. The LLC buys securities of the PJSC 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;
• concluded with the approval of the persons giving consent to the transaction.

Let us now study how to ensure the legality of a major transaction, which in turn requires consent to carry it out.

What is the procedure for approving a major LLC transaction?

As we noted above, a major deal for an LLC is concluded by its CEO. At the time of its completion (or, if so, at the time the court considers the claim to invalidate the transaction), he must have in his hands - as a condition for recognizing a “major” agreement as legal - a decision to approve the conclusion of the agreement:

1. Published by authorized persons - participants in the general meeting of owners of the LLC. If the company has a board of directors, then issued by it on the condition that:

• the board of directors has the corresponding competencies according to the charter of the LLC;
• the cost of property under the transaction is 25-50% of the value of the LLC’s property.

• about the persons acting as parties to the transaction;
• beneficiaries;
• price, subject of the contract;
• about other essential terms of the transaction or the mechanism for determining them.

• on the upper or lower limit of the sale price 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 simultaneously.

When this period is not specified, the decision is considered valid for 1 year from the date of its adoption, unless otherwise determined by the specifics of the approved major transaction or due to the circumstances of the decision.

Results

A transaction is considered large if the value of the item exceeds 25% of the company’s total assets. In this case, the terms of the contract must satisfy the criteria established by Art. 46 of the Law “On LLC” dated 02/08/1998 No. 14-FZ and Art. 78 of the Law “On JSC” dated December 26, 1995 No. 208 (for LLCs and JSCs, respectively).

You can learn more about the features of legislative regulation of legal relations with the participation of LLCs in the articles:

• “What is the procedure for the withdrawal of participants from the LLC?” ;
• “Registration of 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 characteristics along with the changes that occur during the development of entrepreneurial activity. The features associated with conducting a major transaction will be discussed in the article.

Legislative framework

• The relationship between the LLC's principal balance and the value of the asset.
• Does the enterprise go beyond the boundaries of entrepreneurial activity?

The following transactions are under control:

• Acquisition of shares, credits, pledges, loans, guarantees that relate to the purchase or alienation of property. These also include contracts for the provision of services and contracts.
• Agreements on the removal of property from the assets of the enterprise. This may be a gratuitous or paid transfer for use.

The “Concept for the Development of Civil Legislation” of the Russian Federation regulates major transactions. This document lays down the basic provisions for the process of carrying them out and describes the moments at which conflicts may arise between the creditor and the counterparty.

Qualification of a major transaction

• homogeneity of small transactions;
• they occur either simultaneously or close in time;
• the same subjects and the same acquirer take part in the transaction;
• their implementation is pursued with a single goal.

• an object that is a property part;
• actions performed with this object;
• criteria for evaluating a business transaction.

To more clearly determine 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

• purchase and sale of securities, real estate;
• donation, exchange, transfer of debt;
• signing loan agreements;
• agreements on property collateral or surety.

What transactions are not considered major?

• concluding contracts for the purchase of raw materials and consumables to resolve production and economic issues;
• sale of finished goods;
• obtaining a loan to finance current operations of the enterprise;
• supply of a wholesale batch for the purpose of subsequent retail sale.

Certificate of transaction size

Calculation of a major operation

After conducting a comparative analysis, when the transaction valuation exceeds the benchmark, the following information must be collected before concluding the relevant contract:

• Determine the size of assets on the date preceding the transaction.
• If the 25% criterion is exceeded, a more in-depth analysis is carried out.
• It is necessary to identify what the cause-and-effect property relationships of the LLC are.
• Study the question of the likely relationship between other agreements concluded in a similar area.
• Clarification that the transaction is not classified as ordinary.

Calculation example:

Continent LLC plans to purchase premises to house a new department. For these purposes, an amount of 14 million rubles is provided. The balance sheet of the enterprise 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 qualifications 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 recognized as a major one.

Transaction approval process

• the cost of the purchased object;
• description of the subject of the auction;
• information about the purchaser.

Such an event must be attended by all members of the Society, who are notified in advance of the upcoming meeting. The manager carries it out in compliance with the requirements of the Federal Law on LLCs, as well as with the guidelines recorded in the charter 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 does not contain compelling arguments for making a positive decision, the transaction is considered not approved.

An LLC may have a board of directors. If the contract price is estimated between 25% and 50% of the book value, this body is authorized to independently decide whether to recognize the size of the transaction or not.

You can learn more about making a decision to approve a major transaction from the video presented.

LLC with one founder

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 agreement providing for the mentioned changes. To avoid violation of the rights of future founders of the LLC, it is necessary to have the documentary consent of each of them and confirmation of their future presence in the LLC.

Grounds for legality

The parties are required to appear at the court hearing at the appointed time, otherwise the statute of limitations will not be restored.

The court may recognize a transaction as legal 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 his indignation that his vote did not influence the results of the final vote. This situation is not legally justified because the decision was made by a majority vote without fraud.
• The participant insists that the upcoming major operation will negatively impact 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.
• A transaction is recognized as legitimate if there were violations during the meeting, but the second participant knew nothing about them.

The need to comply with basic rules

The statutory documents must 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 court.

A major transaction for an LLC is a financial transaction involving lending, collateral or guarantee for the purchase or alienation of real estate. There is a fine line between the concepts of a major operation and ordinary activities. This is the main problem that can cause failure as a result of the transaction being declared invalid.