Reorganization is a merger, accession, division, separation. Labor relations during the reorganization of an institution

Reorganization of state and municipal institutions is a fairly common phenomenon. In most cases, it is associated with a change in the type of institution and the merger of several institutions into one. And often such a merger is accompanied by a reduction in staff or number of employees, which in practice raises many questions. In the article we will tell you what an employer should pay attention to in case of reorganization of an institution and what mistakes should be avoided in relation to employees.

What is reorganization?

The basic provisions on reorganization are established by the Civil Code of the Russian Federation, but the formulation of what reorganization is is not given. The main feature of reorganization is a change legal status legal entity, entailing legal succession, as a result of which the simultaneous creation of one or more new legal entities and the termination of one or more previous legal entities occurs.
By virtue of paragraph 1 of Art. 57 of the Civil Code of the Russian Federation, reorganization of a legal entity in the form of merger, accession, division, separation and transformation can be carried out by decision of its founders (participants) or a body of the legal entity authorized to do so by the constituent documents.
As for specifically the reorganization of non-profit organizations (which also include state and municipal institutions), Art. 16 of the Federal Law of January 12, 1996 N 7-FZ “On Non-Profit Organizations” (hereinafter referred to as Law N 7-FZ) establishes that making decisions on reorganization and carrying out reorganization of budgetary or government institutions, unless otherwise prescribed by an act of the Government of the Russian Federation, are carried out in in the manner established:
- by the Government of the Russian Federation - in relation to federal budgetary or government institutions;
- supreme executive body state power subject of the Russian Federation - in relation to budgetary or government institutions of the subject of the Russian Federation;
- local administration municipality- in relation to municipal budgetary or government institutions.
The decision to convert an autonomous non-profit organization adopted by its supreme governing body in accordance with Law No. 7-FZ in the manner prescribed by the charter of an autonomous non-profit organization (Part 5, Article 17 of Law No. 7-FZ).
A non-profit organization is considered reorganized, with the exception of cases of reorganization in the form of affiliation, from the moment state registration newly emerged organization(s).
When a non-profit organization is reorganized in the form of another organization joining it, the first of them is considered reorganized from the moment an entry on the termination of the activities of the affiliated organization is made in the Unified State Register of Legal Entities.
State registration of an organization (organizations) newly emerged as a result of reorganization and entry into the Unified State Register of Legal Entities of an entry on the termination of the activities of the reorganized organization (organizations) is carried out in the manner established by federal laws.
As for labor relations with employees in the event of reorganization, the only article is devoted to them. 75 of the Labor Code of the Russian Federation, which pays attention to two main points:
1) in the event of reorganization, employment contracts with employees are not terminated;
2) the employee has the right to terminate the employment contract due to reorganization. The basis for termination in this case will be clause 6, part 1, art. 77 Labor Code of the Russian Federation.
Before discussing the nuances of labor relations with employees during reorganization, we note that the provisions of Art. 75 of the Labor Code of the Russian Federation applies not only to cases of reorganization, but also to others, which we will consider below.

Other types of changes in the legal status of an institution

So, by virtue of Art. 75 of the Labor Code of the Russian Federation, employment contracts with employees are also not terminated if:
1) change of owner of the organization’s property. According to paragraph 32 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 N 2 “On the application by courts Russian Federation Labor Code Russian Federation" change of owner means the transition (transfer) of ownership of an organization's property from one person to another person or persons, in particular, when:
- privatization of state or municipal property, that is, when alienating property owned by the Russian Federation, constituent entities of the Russian Federation, municipalities, into the ownership of individuals and (or) legal entities (Article 1 of the Federal Law of December 21, 2001 N 178-FZ “On the privatization of state and municipal property”, Article 217 of the Civil Code of the Russian Federation);
- conversion of property owned by the organization into state ownership (Article 235 of the Civil Code of the Russian Federation);
- transfer of state-owned enterprises to municipal property and vice versa;
- transfer of federal state enterprise into the property of a subject of the Russian Federation and vice versa.
Change of property owner government agency- this is actually a reorganization in the form of transformation;
2) changing the jurisdiction (subordination) of the organization. It consists in transferring an organization from the jurisdiction (subordination) of one body to the jurisdiction (subordination) of another;
3) changing the type of state or municipal institution.

Note! The types of state and municipal institutions are autonomous, budgetary and state-owned (Article 9.1 of Law No. 7-FZ).

By virtue of Art. 17.1 of Law No. 7-FZ, a change in the type of state or municipal institution is not its reorganization. With such a change in his constituent documents appropriate changes are made.

Reorganization is not liquidation

Sometimes employers confuse the reorganization of an organization with its liquidation and fire employees under clause 1, part 1, art. 81 of the Labor Code of the Russian Federation (liquidation of an organization), which is a violation of the law. Let's figure it out. As already mentioned, reorganization can be carried out in the forms of merger, accession, division, separation and transformation.
When merging from several legal entities that cease their activities, a new one is formed entity.
In the case of merger, one legal entity is joined by another that ceases its activities, and as a result one remains.
When dividing, one legal entity is divided into several.
When separating from one legal entity, another is separated, while both continue their activities.
And finally, transformation: a legal entity of one type is transformed into a legal entity of another type, while the first one ceases its activities (change in organizational legal forms s).
It turns out that one of the legal entities, during reorganization in almost any form, ceases its activities. But the difference between liquidation and reorganization is that during the latter legal succession is carried out, that is, the rights of one organization are transferred to another, its legal successor. During liquidation, the legal entity is terminated without the transfer of rights and obligations by way of succession to other persons (Article 61 of the Civil Code of the Russian Federation). The liquidation procedure is established by Art. 63 Civil Code of the Russian Federation. The liquidation of a legal entity is considered completed, and the legal entity is considered to have ceased to exist after making an entry to this effect in the Unified State Register of Legal Entities.
Thus, if an employer unknowingly or, conversely, deliberately replaces reorganization with liquidation and dismisses employees of an organization that is ceasing its activities, they will be reinstated by the court.
Thus, G.I. filed a claim in court to invalidate the order of dismissal, reinstatement and recovery of average earnings.
G.I. was appointed head of the education department of the Administration of the Yustinsky district municipality of the Republic of Kalmykia (hereinafter referred to as AYURMO RK). In connection with the reorganization of the department through transformation into the municipal institution "Department of Education, Culture, Youth Policy and Sports of the Administration of the Yustinsky District Municipality of the Republic of Kalmykia" (hereinafter referred to as the Department of Education), she was transferred as the head of the education department of the Department of Education.
By the resolution of the head of the AYURMO RK, the Education Department was liquidated. G.I. warned about the upcoming dismissal in connection with the liquidation of the Education Department and was subsequently dismissed under clause 1, part 1, art. 81 Labor Code of the Russian Federation.
The court found that the Education Department was not liquidated, but was reorganized by dividing into the Education Department of the AYURMO RK and the Sector of Culture, Youth Policy and Sports under the AYURMO RK, to which the rights and responsibilities of the reorganized institution were transferred. The main goals, objectives and functions of the education department have not changed.
The fact that the property was transferred by the Education Department to the education department was not disputed by the defendants.
With the actual reorganization of the Education Department with G.I. the employment relationship was not continued, she was illegally dismissed, despite the fact that she did not refuse to continue working in the education department, and there was no staff reduction.
The court decided to reinstate G.I. head of the department in the Institution "Education Department of the Administration of the Yustinsky District Municipality of the Republic of Kalmykia" and recovery in her favor of average earnings for the period of forced absence and compensation for moral damage (Appeal ruling of the Supreme Court of the Republic of Kalmykia dated 09/06/2012 in case No. 33-604/2012).

Nuances of relations with employees during reorganization

So, by virtue of Art. 75 of the Labor Code of the Russian Federation, employment contracts with employees are not terminated not only in cases of reorganization, but also when the jurisdiction and type of state or municipal institution changes. As for changing the owner of the organization’s property, the situation here is somewhat different, in particular, the new owner, no later than three months from the date of his ownership rights, has the right to terminate the employment contract with the head of the organization, his deputies and the chief accountant.
When changing the owner of an organization's property, it should be borne in mind that, within the meaning of Art. 75 of the Labor Code of the Russian Federation in its systematic interpretation from Art. Art. 132 and 559 of the Civil Code of the Russian Federation, a change in the owner of an organization’s property is understood as a change in the owner of the organization’s property as a whole, that is, the entire property complex, including real and movable property, equipment, inventory, raw materials, products, claims, debts and exclusive rights. This conclusion was made in the Appeal ruling of the Kaliningrad Regional Court dated May 15, 2013 in case No. 33-1970/2013. This Determination left unchanged the decision of the court of first instance, which, among other things, invalidated the entry in Ts.S.’s work book. about dismissal due to a change in the owner of the organization’s property.
Ts.S. worked in kindergarten No. 21, which was a structural unit (branch) of the Federal State Institution "1409 Naval Clinical Hospital" (hereinafter - FGCU). The kindergarten was located in a separate building and was one of the real estate assets of the Federal State Institution. Later the building kindergarten was transferred from federal to municipal ownership. Ownership was registered to the municipal municipality "Baltiysky Municipal District". The activities of the kindergarten were stopped, and the kindergarten workers were deprived of the right to continue working.
Guided by Art. 75 of the Labor Code of the Russian Federation, the employer made an entry in work book Ts.S. about a change in ownership of the property and suggested contacting the new owner regarding the continuation of work.
But in this case, there was a change in the ownership of part of the property of the Federal State Institution in the form of individual real estate objects, including the kindergarten building, and not the entire property complex of the organization, that is legal grounds for the employer to apply the above provisions of Art. 75 was not available.
The transfer by one organization of part of its property to another organization does not constitute a change in the owner of the property within the meaning of Art. 75 and the basis for continuing the employee’s employment relationship with the new owner of the property. The entry in the work book was declared invalid by the court, and it was concluded that the plaintiff, through the fault of the employer, was unlawfully deprived of the opportunity to work, and therefore the employer is obliged to compensate her for the earnings not received during this period.
According to Part 3 of Art. 75, when the owner of an organization’s property changes, a reduction in the number or staff of employees is allowed only after state registration of the transfer of ownership.
However, a reduction in numbers or staff may be accompanied not only by a change in the owner of the organization’s property, but also by a reorganization of the institution. This, in particular, is indicated in the Letter of Rostrud dated 02/05/2007 N 276-6-0 (hereinafter referred to as Letter of Rostrud N 276-6-0). As stated in this Letter, in this case, as a rule, the staffing table changes, new structural units and positions may be introduced into it, and individual positions may be excluded from it.

Note. If in new staffing table The employee’s position has been retained; there are no grounds for dismissal due to staff reduction (Rostrud Letter No. 276-6-0).

And in this case, we can talk not about the priority right to hire employees, but about the priority right to remain at work when the number or staff of employees is reduced. Preferential right to remain at work is given to employees with higher labor productivity and qualifications.
During the reorganization, the issue of providing leave deserves special attention. As long as the employment relationship continues, the employee retains the right to leave. That is, the employer must provide the employee with vacation according to the schedule drawn up at the end of the calendar year, even if the vacation coincides with the reorganization period or a subsequent one.

Employer's actions during reorganization

No obligations towards employees of the institution during reorganization (notification, transfer, etc.) Art. 75 of the Labor Code of the Russian Federation is not established, so you need to be guided by other norms of the Labor Code.
First of all, you should understand in what cases the employer is obliged to notify employees about the reorganization, and in what cases such an obligation is not established by law. There are two cases when the employer is obliged to do this:
- it is planned to reduce the number or staff of employees;
- conditions change employment contract employee.
In both cases, workers must be notified two months before the upcoming changes. At the same time, those being laid off should be offered existing vacant positions in the institution (Part 3 of Article 81 of the Labor Code of the Russian Federation). Notifications are issued in in writing and are sent to each employee against signature.
But is it necessary to notify employees in cases where the reorganization does not in any way affect labor relations with employees? If necessary, when?
First, let's look at judicial practice.
Municipal institution"The editorial office of the newspaper "Amurskaya Zarya" (hereinafter - MU) was reorganized by transforming into the Municipal Unitary Enterprise "Editorial Office of the newspaper "Amurskaya Zarya" (hereinafter - MUP). The employee filed a claim for compensation for moral damages because she was not notified of the reorganization that had taken place and believed that she was in an employment relationship with the municipal enterprise, and not with the municipal unitary enterprise. Such actions of the employer grossly violated her rights and caused moral harm.
However, the court concluded that the fact of violation labor rights the employee was not identified as a result of the reorganization. Job responsibilities and the employee’s position has not changed, wages have not decreased. The decision to reorganize was made at a general meeting of the team, and no evidence was provided that the employee did not take part in this meeting.
Also, the employer made relevant entries about the reorganization in the work books, which all employees could familiarize themselves with.
The employee's claims were denied. The decision of the court of first instance remained unchanged (Appeal ruling of the Khabarovsk Regional Court dated November 6, 2013 in case No. 33-6800/2013).
Thus, the employer has no obligation to notify employees about the reorganization if the employees’ working conditions do not change.
However, Art. 75 and paragraph 6, part 1, art. 77 of the Labor Code of the Russian Federation, an employee is given the right to refuse to continue working in connection with a change in the owner of the organization’s property, with a change in the jurisdiction (subordination) of the organization or its reorganization, with a change in the type of state or municipal institution. Therefore, it is still necessary to notify employees about changes in the legal status of the institution. As we can see from the above court decision, this does not have to be done in writing; it can also be done orally, for example at a team meeting.
But in order to avoid legal disputes in the future, we recommend that this information be communicated to employees in a visual form by posting it on the institution’s notice board or in each department (office). This must be done immediately after making an entry about the reorganization in the Unified State Register.
The fact of reorganization should be reflected in the workers’ work books. At the same time, the Instructions for filling out work books, approved by Resolution of the Ministry of Labor of Russia dated October 10, 2003 N 69 (hereinafter referred to as the Instructions), do not regulate the procedure for making such entries. Therefore, a record is made similar to the record of changing the name of the organization (clause 3.2 of the Instructions). For example: "The municipal institution "Editorial office of the newspaper Amurskaya Zarya" was reorganized in the form of transformation into the "Municipal unitary enterprise "Editorial office of the newspaper Amurskaya Zarya" from 08/14/2014."
If, as a result of the reorganization, the terms of the employment contract have changed, including if the employee, for example, is transferred to another position or to another structural unit, an additional agreement to the employment contract is concluded. An entry about the transfer is also made in the work book after the entry about the reorganization.
If an employee refuses to work due to the reorganization that has taken place, an entry about dismissal is made in the work book under clause 6, part 1, art. 77 Labor Code of the Russian Federation.

Note! Dismissal is formalized under clause 6, part 1, art. 77 of the Labor Code of the Russian Federation after state registration of changes or entry into force of a regulatory legal act on changing jurisdiction.

If during the reorganization process an employee was laid off, the basis for dismissal will be clause 2, part 1, art. 81 Labor Code of the Russian Federation.
On the last day of work with the employee, a full payment is made, including compensation for all unused vacations.
If an employee quits due to a reduction in numbers or staff, he is paid severance pay in the amount of average monthly earnings, and also retain the average monthly earnings for the period of employment, but not more than two months from the date of dismissal (including severance pay) (Article 178 of the Labor Code of the Russian Federation).
Moreover, if the employment contract is terminated before two months, the employee is paid additional compensation in the amount of average earnings, calculated in proportion to the time remaining before the expiration of the notice of dismissal.
In the event of termination of an employment contract with the head of the organization, his deputies and the chief accountant in connection with a change in the owner of the organization’s property, the new owner is obliged to pay compensation to the indicated employees in an amount not less than three times their average monthly earnings (Article 181 of the Labor Code of the Russian Federation).

To summarize, we note that the reorganization of the institution itself has virtually no effect on the labor relationship with the employee, unless it entails a reduction in the number or staff of employees or a change in the terms of the employment contract. But even in this case, you just need to be guided by the provisions of the Labor Code. Nevertheless, litigation related to reorganization is not decreasing. We hope that if your organization is facing reorganization, this article will help you avoid mistakes.

The Russian Federation provides for such a procedure as the reorganization of legal entities. What is its specificity? What are the ways to carry out this procedure?

What is the reorganization of a legal entity?

Before considering the methods of reorganization of legal entities provided for by the legislation of the Russian Federation, let us study what the corresponding term means. Its interpretation is given directly in the provisions of regulatory sources of law, the main of which is the Civil Code of Russia. In accordance with its provisions, the reorganization of a legal entity should be understood as a process during which a legal entity in one way or another transfers its own powers to another business entity.

It is important to distinguish, in particular, a transformation in the form of a merger - when several firms consolidate their rights and obligations - from a process such as a reorganization by spin-off, in which the original business entity does not cease to conduct its main activities. There are other types of reorganization - we will look at them in more detail later in the article.

It should be noted that from the point of view of law the process is completely different. Its result is the exclusion of the record of the company as being actively involved in activities from the state register. However, liquidation and reorganization are processes that, one way or another, can be interconnected within the framework of transformations in the management structure of the enterprise and holdings. Therefore, their consideration can in many cases be carried out in the same context.

There are 2 types of reorganization - voluntary and forced. Let's take a closer look at their features.

What is voluntary reorganization?

The corresponding type of reorganization is carried out in accordance with the decision made by the management of the company. At the same time, options are possible in determining the further format of doing business. So, for example, if reorganization through a merger is proposed, then the business entities that participate in this process enter into a special agreement, within the framework of which the procedure for the procedure under consideration is fixed, as well as the principles for the distribution of shares in the resulting company (or establishing the volume of shares that are transferred to ownership by one or another co-owner).

What is a forced organization?

This type of reorganization involves the adoption of a decision, in accordance with which the procedure in question is implemented, by the competent authority or the court. The reason for forced reorganization may be, for example, the need to organize the company’s settlement with creditors through the sale of property that is subject to distribution among other business entities.

Classification of reorganizations

What are the ways to reorganize legal entities? The legislation of the Russian Federation provides for a classification that distinguishes 5 relevant procedures:

Merger of companies;

Merger of one company with another;

Division of the company;

Spin-off of an enterprise;

Business transformation.

A merger is the combination of 2 or more business entities into one structure. In this case, each of the merged companies ceases its activities. As soon as a new legal entity is registered with the Federal Tax Service, the reorganization procedure by merger is considered completed.

The procedure may involve the merger of one company or several with another. In this case, each of the companies that is part of another structure ceases its activities. In addition, termination of the activities of a legal entity through reorganization in the form of a merger involves the transfer of its rights and obligations to the company into which the relevant business entity entered. The procedure under consideration is considered completed as soon as the Federal Tax Service of the Russian Federation enters into the state register information that all affiliated companies have ceased their activities.

The procedure for reorganizing a legal entity may also involve division, which is a procedure for the formation of other economic entities on the basis of the company, receiving legal independence.

The next option for transforming an enterprise is spinoff. It involves the formation of new legal entities on the basis of the company, which become economic entities independent of it. This procedure is considered completed as soon as the Federal Tax Service registers all business entities that have separated from the company.

The next type of reorganization is transformation. This procedure involves the termination of the activities of one legal entity and the subsequent creation of a new business entity on its basis. As soon as the Federal Tax Service of the Russian Federation completes the state registration of a new company, the procedure in question is considered completed.

These are the main ways of reorganizing legal entities, reflecting the common classification. Which specific ones can be chosen is determined by the specifics specific type business, the company's obligations, the priorities of its owners - the list of factors that can influence their preferences can be quite impressive.

Classification of reorganizations: rights and obligations of business entities

Classification of reorganizations can be carried out on other grounds. For example, from the point of view of determining the scope of those rights and obligations that are transferred from the reorganized company to the legal successors. Thus, they can be transferred to another business entity:

In full;

Partially - despite the fact that only a certain amount of rights and obligations are transferred to other legal successors;

Partially subject to the distribution of the initially full volume of rights and obligations that belonged to the company.

In general, the first option for the distribution of rights and obligations characterizes procedures such as reorganization through transformation, merger, and accession. The second is during separation. The third one is during selection.

Documentation of reorganizations

When carrying out reorganizations, the following documents can be generated:

Separation balance;

Transfer deed.

In this case, the first document is generated if division or selection is carried out. The second is if reorganization is carried out in the form of annexation, merger or transformation. One way or another, both of these documents must reflect information about the obligations of business entities participating in the business transformation process.

Main stages of reorganization

Having examined the types and methods of reorganization of legal entities, we will now study the specifics of the stages within which the corresponding procedure is carried out. In general, the sequence of actions of economic entities involved in the reorganization will be as follows.

First of all, competent persons - for example, the board of directors of a business company - make a decision on business transformation. Next, the Federal Tax Service is notified that the organization will be carried out. Tax authorities must be informed that the company’s management has made a decision to transform the enterprise within 3 days after its adoption.

The next step is for the Federal Tax Service to make changes to the Unified State Register of Legal Entities, reflecting the fact that the enterprise transformation procedure has begun. Afterwards, information is published in an industry magazine that a reorganization of the relevant legal entity is being carried out.

Reorganization of legal entities under the Civil Code of the Russian Federation: nuances

There are quite a few nuances that characterize the procedure in question. Let's study them based on the Civil Code. Reorganization of a legal entity is a procedure that is carried out, as we noted above, mainly on the basis of the provisions of the Civil Code of the Russian Federation.

First of all, it is worth noting that the Civil Code of the Russian Federation allows for reorganization: with the simultaneous combination of its different forms - if this is possible from the point of view of the absence of inconsistencies in the procedure with the current rules of law, with the participation of two or more legal entities that operate in different legal forms - again, if this procedure does not violate the provisions of current legislation.

Any restrictions on legal entities in carrying out reorganization can only be established by law. At the same time, the regulatory legislation may define provisions in accordance with which a separate reorganization procedure will be fixed:

Insurance companies;

Clearing companies;

Financial organizations;

Trading corporations;

Investment funds;

Non-state pension funds;

People's enterprises.

We noted above that ways to solve the reorganization may be based on legal acts issued by the courts. It should be noted that the founders of a business company are obliged to comply with the provisions of these acts. Otherwise, the corresponding procedure will be carried out by the arbitration manager - based on the norms established in the Civil Code of the Russian Federation.This option may be less preferable for business owners.

The court decision on reorganization is the basis for the Federal Tax Service of the Russian Federation to carry out state registration of newly formed legal entities. Its completion, as we noted above, is the main criterion for recognizing the procedure in question as having taken place.

In a number of cases, certain methods of reorganizing legal entities may be initiated by decision of the competent government bodies.

One of key nuances the corresponding procedure is succession. Let's study it in more detail.

Succession during reorganization of legal entities

Succession involves the legal transfer of the rights and obligations of the legal entity in respect of which the reorganization is being carried out to another economic entity to the established extent. The rules here are as follows:

When legal entities merge, the rights of each of them are acquired by the newly created business entity;

Upon joining, the company that includes others accepts their rights and obligations;

When a company is divided, its rights and obligations are transferred to the economic entities formed on its basis;

Upon separation, the rights and obligations of the reorganized entity are transferred to each of the resulting legal entities;

During the transformation, the scope of the rights and obligations of the new legal entity, compared to those that characterized the activities of the previous one, remains unchanged.

Moreover, in cases provided for by law, rights and depending on the form of reorganization of the legal entity, rights and obligations are transferred under a transfer deed.

It will be useful to consider the specifics of this document in more detail.

What is a deed of transfer?

The purpose of the transfer act is to determine the list of rights and obligations transferred within the framework of a procedure such as reorganization, from one legal entity to another. The document in question includes provisions according to which the succession of the company is established in relation to all creditors and debtors, as well as how it can be determined taking into account possible changes in the rights and obligations of the business entity.

The transfer act is drawn up by the founders of the company or the competent government body, which decided to choose one or another form of reorganization of the legal entity. The corresponding document is sent to the Federal Tax Service along with other sources that are transferred to the tax authorities - as part of interaction with them in the manner prescribed by law. If the transfer deed is not provided to the Federal Tax Service, then the department will not make the necessary changes to the state register.

Guarantees of creditors' rights

Next most important aspect reorganization - guarantees of the rights of creditors of an economic entity that changes its status in in the prescribed manner. These guarantees are also established in the provisions of the Civil Code of the Russian Federation. First of all, the relevant legal entity is obliged, as we noted above, to notify the Federal Tax Service within 3 days after the decision on reorganization is made that the status of the organization is expected to change.

Having received this notification, tax authorities make an entry in the state register indicating that the company is being reorganized. In turn, this business entity is obliged to publish a notice about this in departmental media. The relevant document reflects the order in which creditors can submit their claims.

If they arose before the reorganized business entity first published a notice in the departmental media, then the creditor in court has the right to demand early fulfillment of the debtor’s obligations or compensation for losses incurred. These claims may be brought by the eligible party within 30 days after the reorganizing firm issues its final notice.

The claims of creditors that are put forward within the period established by law must be fulfilled before the reorganization is carried out - in the form of annexation, merger, transformation or another type. At the same time, the creditor will not have the right to demand that the debtor repay the obligations ahead of schedule if, within 30 days from the date of presentation of the relevant requirements, he receives security, the amount of which is considered sufficient. The law also defines cases in which the rights of the creditor, one way or another, are exercised regardless of the reorganization procedure.

If the creditor's demands are not fulfilled, his losses are not compensated, and sufficient security is not provided to him, then those persons who actually have the ability to manage the actions of the reorganized business entities are jointly and severally liable to him.

The main criteria for the sufficiency of the creditor's security are the consent of the authorized party to accept it, as well as the availability to fulfill the obligations of the reorganized business entity.

Many people have no idea what reorganization of a legal entity is or why it is needed.

But if you are going to transform your company, you will have to study the norms of Russian legislation, which discuss this procedure and its stages.

Reorganization of a legal entity is not an easy procedure, especially for those who are faced with this for the first time. Liquidation entails mandatory termination of activities, but reorganization does not.

Therefore, let’s figure out what the features of its implementation are, when it is possible and why it is needed. Is there a routine that everyone involved can rely on?

Basic information

Like any legal procedure, reorganization is carried out in accordance with certain norms of the legislation of the Russian Federation.

The basics of such a process are the first thing to learn before putting regulations into practice.

Basic Concepts

A legal entity is an enterprise registered in accordance with the law, which owns separate property. Legal entities are liable for their obligations with such property objects.

They have the right to buy and sell property and non-property rights on their own behalf. They can act as defendant and plaintiff in court.

Reorganization of a legal entity is the termination of legal or other provisions of a legal entity, which entails the emergence of a relationship of succession.

The result of this procedure is the creation of one or more new enterprises and the termination of the activities of one or more firms.

That is, these are actions of a legal entity and government agencies that are aimed at transferring the rights and obligations of the company to another legal successor.

Reorganization is carried out by:

• mergers;
• accessions;
• transformations;
• divisions;
• discharge.

Reorganization of a legal entity cannot be carried out by way of merger if one of the enterprises is a joint-stock company and the second is an LLC.

That is, all participants in the procedure must have the same organizational form. Otherwise, the conversion is done first and then the appendage.

Why is this necessary?

Reorganization is carried out voluntarily or compulsorily (subject to a court decision).

Reasons for reorganization:

Sometimes a company is reorganized	To stimulate competition between two firms in the same direction in a certain industry. In other cases, the antimonopoly authority will insist on this.
Number of shareholders of the CJSC	It is on the verge of the established limit (50 people), and the managers want to continue issuing shares and attracting new participants. In this case, the transformation is carried out
Measures are being taken to reduce risk in the company's activities	A company is separated from its parent enterprise for the purpose of providing certain services or activities that may lead to insolvency. Thus, only the new enterprise will be affected. The company itself will continue to operate
The founders decide to split the company	And continue to carry out activities independently of each other
The participants decided to join forces	And open one legal entity

Legal regulation

The rules for carrying out reorganization are described in the following legislative documents:

	dated 11/14/2002
	from 02/08/1998
	from 05/08/1996
	dated 12/26/1995
	dated 12/21/2001
	from 07/26/2006

Procedure for reorganization of a legal entity (enterprise)

Such documents are submitted to the tax authority, as well as to the registration chamber, where an entry is made in the Unified State Register of Legal Entities.

Reorganization is considered as:

• deal;
• an act of succession, which is characterized by a complex legal composition.

The basis for reorganization is (according to Article 57 of the Civil Code):

Basically, reorganization involves the cessation of conducting entrepreneurial activity. The exception is cases of separation.

When drawing up an order, you can rely on the following example:

Step-by-step instruction

Let's consider the stages of the reorganization:

1. The participants of the closed joint-stock company make decisions at the general meeting (Article 48 of Law No. 208). The decision will be made if ¾ of the founders vote “For”. Notice of the date of the meeting is sent 30 days in advance. The founders of the LLC make a decision at the meeting in accordance with Art. 33 of Law No. 14-FZ. All participants must vote “For”. The founders are notified no later than a month before the meeting, unless otherwise provided by law ().
2. The registration authorities are notified within 3 days from the moment the decision is made. A letter is submitted to the tax authority in connection with the reorganization of the enterprise, a sample of which can be found on the Internet. Such a notice will serve as the basis for making a record that the company is undergoing reorganization (). If the procedure is carried out by two or more enterprises, the notification will be sent by the company that last decided to carry out the reorganization ().
3. Information about the procedure is published in the Bulletin (twice) and on the portal of the federal tax authority. Creditors can submit their claims. If the debtor fails to fulfill his obligations, they will be terminated. The exception is the cases described in paragraph 2 of Art. 60 GK.
4. Creditors are notified within 5 days after the notice is submitted to the registrar. If this condition is not met, the reorganization will be declared invalid.
5. The transfer deed is drawn up and approved. The date of its approval is determined by the participants during the procedure. Conducting an inventory.
6. The final accounting reports are prepared (the day before making an entry in the Unified State Register of Legal Entities about the reorganization).
7. The acquired rights to real estate are registered.

Problems encountered during the procedure

Reorganization is carried out quite often, the reason for which is the financial and economic crisis.

Some enterprises want to optimize their activities, others want to get away from it. But the reorganization must be carried out in accordance with the law.

If a company is created without the consent of the antimonopoly service, even through a merger or accession, it will be liquidated or reorganized through separation/division based on a court decision.

Legislative documents do not indicate how shares of new enterprises are distributed between participants in a divided and spun-off company.

During a forced reorganization, competition is restored only in certain cases when the business is divided between participants.

If there are many shareholders, then it is necessary to determine who will make the decision on the distribution of shareholders among the newly created companies. The rights of participants are limited, and therefore this provision is not effective.

There are other unfinished legal provisions that create controversial situations regarding:

• recognition of reorganization transactions as invalid;
• recognition of the separation balance sheet as invalid;
• application of the consequences of invalidity of void transactions for the transfer of property objects to authorized capital etc.

How is succession carried out?

The merger of legal entities involves the transfer of rights and obligations to the created enterprise in accordance with the transfer deed ().

Merger involves the transfer of rights and obligations to the new company in accordance with.

When separating, rights and obligations are transferred to each separated company in accordance with the separation balance sheet, and during transformation - to the new enterprise in accordance with.

In all cases, the transfer of rights and obligations to the legal successors is carried out, and not the sale of property objects of the reorganized legal entities. faces.

Dismissal of employees

Relations with employees during the reorganization procedure are discussed in. When carrying out the procedure, it is sometimes necessary to terminate the agreement with employees.

But it is worth remembering that the jurisdiction of the company is changing. But during the reorganization, contracts with the company’s employees are not terminated (paragraph 5 of Article 75 of the Labor Code).

Some experts say that organizations that join or merge with another enterprise can fire personnel, citing (during liquidation).

In other cases, dismissal under this article will not be legal. A new legal entity, 3 months before the emergence of ownership rights, can terminate employment contracts with the management of the company, deputies and chief accountant.

Upon dismissal, such persons will be paid a compensation amount (at least 3 average earnings), as stated in.

Based on the reorganization, the company cannot terminate contracts with employees. But employees retain the right to refuse to work in the reorganized company.

Then the agreement will terminate in accordance with the Russian Federation. All payments will be made on the day of dismissal (). But you shouldn’t count on severance pay.

They are studying whether there may be instructions about which of the workers has preferential rights to remain in their jobs with equal success in work and qualifications.

If employees leave due to staff reduction, they must receive severance pay, the amount of which is the average monthly salary.

They are also entitled to payments while looking for another job (maximum 2 salaries including severance pay).

In accordance with, the right to remain at work has:

• family citizens with at least two dependents;
• persons who are the only family members who have income;
• persons with a work injury or occupational disease, disabled people of the Second World War and combat operations;
• employees who improve their skills if they are directed by the company without interrupting their work obligations.

You cannot terminate a contract with a pregnant woman.

Termination of work of legal entities through reorganization

The company may cease to operate through reorganization or liquidation.

With all types of reorganization (except for spin-off), the activities of at least one organization will be terminated, but its rights and obligations will not be terminated.

They are transferred to a new legal successor entity. This means that during a reorganization, succession always arises, which distinguishes it from when succession does not appear.

Reorganization is often a voluntary procedure. The decision is made by the founders or other bodies that have the appropriate powers in accordance with the constituent documentation.

The process is carried out with the consent of government agencies. Separation and allocation is carried out only compulsorily.

The decision in this case is made by a court or other competent authority. It may follow if the requirements of antimonopoly laws are violated.

If everything is not represented Required documents, or they do not contain provisions on legal succession, the authorized body will refuse to register the newly created legal entity. This means that the reorganization will be declared invalid.

If it is impossible to determine legal successors for any obligations, the newly opened enterprise will be jointly and severally liable to the creditors of the company that was reorganized. That is, creditor interests are protected.

What should employees of business entities do?

During the reorganization, the privatization of property objects of the state and municipality takes place.

Often the basis for illegal privatization is a decision made by the assembly labor collective unitary enterprise. But the decisions of the company's employees have no legal significance.

Only the owner can make such a decision. It is impossible to mix the norms of civil and labor legislation. The staff also does not have the right to challenge the reorganization.

What rights do employees have?

If the employee does not want to work under different conditions after the transformation of the company, the employer offers another position that can be performed taking into account the employee’s health.

Jobs are offered in the area. A vacancy may be offered in another territory if this is stated in the contract. If there is no work, then the employment contract will be terminated, as discussed above.

If there is a reason that could lead to mass layoffs, the employer approves an internal act that will introduce part-time or less than a week. Acceptable periods are six months.

If the employee does not agree to such conditions, the employment contract is terminated in accordance with clause 2, part 1, art. 81 TK. In this case, appropriate payment of all compensation must be made.

The main difference between reorganization and liquidation is that in the first case, rights and obligations continue to exist, but they are transferred to the legal successors.

It is this feature that makes the procedure often indispensable when a company does not want to stop doing business.

But you should also pay attention to the shortcomings, because at the beginning of the journey you may encounter a number of problems. Be careful - strictly adhere to the law when starting a reorganization.

Enterprise reorganization is an alternative process that is used to create new companies or terminate the existence of existing ones. The reorganization process is regulated by the Civil Code of the Russian Federation, as well as other special regulations, which narrowly reveal the features of the reorganization of an enterprise of one type or another.

Forms of reorganization

Let's take a closer look at this issue. Civil legislation establishes the types and forms in accordance with which the reorganization of an enterprise can occur. These are the five varieties listed below.

The so-called mixed type should also be included in this section. Essentially, this is a reorganization that uses two forms. For example, during the division of a legal entity of one organizational form, two completely different companies may be formed.

All of the listed forms of reorganization of a legal entity are briefly discussed below.

Selection

Basic distinctive feature This type of reorganization of an enterprise is that it does not involve liquidation or cessation of activity. During this procedure, a new legal entity, or even several, is formed. At the same time, the newly formed companies are endowed with the rights and obligations that the original enterprise previously had. The transfer of these rights and obligations occurs in accordance with the transfer deed, which must state what exactly is transferred to the new company. This document should define what remains with the original organization.

In this case, the principle of fair distribution of assets must be observed. It consists in ensuring that the responsibilities transferred to new organizations are secured by appropriate assets (property). This is due to the protection of creditors' rights.

Separation

Upon division, the original organization interrupts its life activity; it is excluded from the unified state register from the moment of formation of new enterprises. As a rule, a company division occurs when it is necessary to divide the business between the founders. Although, of course, there may be other reasons. The division of assets and liabilities between new companies occurs on the basis of the same transfer act.

The decision on reorganization, as in all other cases, is made by the authorized body of the enterprise in accordance with its constituent documents or in accordance with the requirements of the law.

Accession

Reorganization by merger is mainly used when small companies wish to merge with larger ones. This type of reorganization can also be called a takeover. Naturally, upon joining, only one organization remains. The merged companies cease to operate, and their participants receive a share in the remaining organization.

Merger

Forms of reorganization of a legal entity include such a variety as merger. This type is somewhat similar to annexation, but the only difference is that a completely new face is formed as a result of such a procedure. In the same way, a transfer deed is used here, and the constituent documents state what shares the participants of the merged organizations receive.

Typically, such shares are proportional to the assets that the original companies had. Accordingly, the more such assets in total number, the greater the participant's share.

Conversion

This form of reorganization is very interesting from the point of view that, in fact, new organizations do not appear and the activities of existing ones do not cease. In essence, reorganization occurs by changing the organizational form. This procedure is necessary when, due to some objective reasons the form of the company should be changed (for example, reorganization of a closed joint stock company into an LLC).

However, in this case, it should be remembered that organizations cannot transform into any other statutory forms that they please. Special regulations governing the activities of a certain type of company establish what they can transform into. For example, the reorganization of an LLC may take the form of transformation into a production cooperative, business society or another type of partnership.

additional information

Reorganization of an enterprise is not only the above points, but also additional preparatory work, and notification to the registering authority, and notification to creditors of the planned action.

This process occurs, or rather begins with the adoption of an appropriate decision by the authorized body. As a rule, such a body, if this is a reorganization of an LLC, is considered general meeting participants. After such a decision is made, an inventory commission is convened, whose task is to count all the property of the reorganized person or persons. Based on the data of this commission, a transfer act is drawn up.

Notification of the registration authority about the decision taken on reorganization. This notice must be sent no later than three days. Next you need to printed publications publish the same information for creditors, indicating the deadline for filing claims.

Reorganizing an enterprise is a very labor-intensive and lengthy process, during which numerous problems may arise. There are also many nuances that need to be taken into account when carrying out a reorganization of a certain type. That is why, before taking these actions, it is necessary to carefully consider all future steps.

Economic concepts

Reorganizing an enterprise can be both a way to achieve new goals and a means of correcting critical errors. This article talks about its types and how it is carried out.

There are three main organizational and legal forms of registration of private enterprises: LLC (stands for “limited liability company”), CJSC and OJSC ( Joint-Stock Company closed/open type). However, a registered business may undergo significant changes over time. Production volumes decrease or increase, the specifics of activities and management structure change. This leads to the need for innovation in terms of organization.

If the enterprise is unprofitable, something needs to be changed. If the initial goals set by the company's management have already been achieved, it's time to move on new level, which is associated with expanding the sales market and powers, improving relations with partners. It happens that the OPF no longer corresponds to the format, established by laws. In each of these situations, a “political” measure such as reorganization can help.

Reorganization- this is the completion of the enterprise’s activities, which is accompanied by the transfer of its obligations and rights to another company. This measure leads to the formation of one/several newly formed enterprises, which “inherit” the property and other rights, as well as the obligations of the reorganized person.

Often reorganization is carried out instead of liquidation. This is due to the economic inexpediency of the bankruptcy procedure and the possibility of preserving the main assets.

There are several types of reorganization. They differ in the structure and scope of transferred rights.

Procedure for reorganization of a legal entity

This is what the management action mechanism looks like when reorganizing legal entities:

1. 1. A decision is made about the need to reorganize the enterprise.
2. 2. The state registrar is notified of this decision within 3 working days.
3. 3. A commission is being created to implement reorganization measures.
4. 4. The media publishes reports about the reorganization.
5. 5. A transfer deed is drawn up.
6. 6. IN specified period The state registrar is provided with the relevant papers.

Types and methods of reorganization

Among the methods of reorganization, a special place is occupied by the transformation of a legal entity, during which a change in organizational and legal forms occurs. All rights (including property rights), as well as obligations, are transferred to the newly formed enterprise.

The decision on the need for reorganization is made by the founders or authorized bodies. There are five types of reorganization. Here they are:

• Transformation. In this case, one organization turns into another.
• Joining. This means that one or more legal entities are attached to an already registered enterprise.
• Merger– several legal entities become one.
• Selection. In this situation, one or more organizations leave the main one.
• Separation. One legal entity ends its activities and is divided into several “successors”.

As soon as the state registrar has recorded the fact of reorganization, the legal entity is officially considered reorganized. However, reorganization through separation or division occurs only by decision of government bodies having the appropriate powers, as well as the court.

When a merger, accession or transformation occurs, the transfer of obligations and rights is certified by transfer acts. When dividing and separating, this function is performed by the separation balance.

If management decides to reorganize, it must notify its creditors in writing.

Having engaged in reorganization, a legal entity must, within 3 working days, send to the state registration authority such documents as a notice of the start of the reorganization and a decision on the reorganization process.

Reorganization problems

Reorganization is a rather risky undertaking, because it is not a single procedure, but a multi-stage process in which the founders and creditors are involved.

Making a decision is also accompanied by legal difficulties. True, unitary enterprises cope without any problems, because their owner does not need approval. It is more difficult for companies with additional liability and LLCs.

It is also important that the executive body in the process of reorganization is obliged to inform tax service about making a decision.

This is done within 5 days. Such notification may result in an inspection.

Reorganization can be triggered by both positive and negative changes in the life of an enterprise. But, one way or another, changing the form and structure is associated with numerous legal difficulties.

On this page you can read general information about each of the forms of reorganization of companies and general information about the reorganization procedure, the main stages of which are the same for all types of reorganization, but may differ in nuances. If you want to learn more about the intricacies of a specific type of reorganization, please go to the page of the type of reorganization you are interested in.

In addition, please note: Liquidation by acquisition, merger

MAIN TYPES OF REORGANIZATION:

Merger- two or more companies merge into a third legal entity, which is created as a result of reorganization.

The newly created legal entity is the legal successor. In the event of reorganization in the form of a merger, the original legal entities cease their activities (liquidate).

Accession- one or more legal entities transfer rights and obligations to another and are annexed to this entity, having ceased their activities. In this case, the person to which another legal entity is attached continues its activities.

Separation- one legal entity is liquidated through the creation of several legal entities, where the property of the first is divided between several subsequent ones. The legal successors in this case are newly created legal entities.

The reorganized entity is liquidated.

Selection— one or more legal entities are separated from a legal entity, while the reorganized legal entity is not liquidated, but only transfers part of its rights and obligations to the newly created entities.

Conversion— change of organizational and legal form, in this case the legal successor is a newly created legal entity.

GENERAL PROCEDURE FOR REORGANIZATION OF A COMPANY:

Any reorganization consists of a number of actions that must be carried out for its successful registration. We distinguish three stages, which we briefly describe below:

STAGE 1. Beginning of the reorganization procedure.

At this stage supreme body The management of each of the firms participating in the reorganization makes a decision on the reorganization. In this decision, each of the companies is required to make a number of binding decisions, which vary depending on the form of reorganization.

One of the firms participating in the reorganization submits a notification to the registration authority about the start of the reorganization procedure within three working days from the date of the decision on reorganization.

Each of the firms participating in the reorganization notifies its territorial Federal Tax Service, its branch of the Pension Fund and the Social Insurance Fund - within three working days from the date of the decision on the reorganization.

DURATION: 2 weeks.

STAGE 2. Notifying creditors and resolving general issues.

This stage begins after information is entered into the Unified State Register of Legal Entities that the companies participating in the reorganization are in a state of reorganization.

At this stage, one of the participating firms twice, once a month, places in funds mass media on behalf of all companies participating in the reorganization, a notice of reorganization.

In addition, each participating firm will notify all known editors in writing of its reorganization.

Also at this stage, companies prepare and submit reports in connection with the reorganization to the tax authority and off-budget funds and receive a certificate from the Pension Fund about personalized accounting.

DURATION: 6 weeks.

STAGE 3. Completion of the reorganization.

This stage begins after the second publication in the media.

At this stage, documents are submitted to the registration authority, different for each form of reorganization, for state registration and completion of the reorganization.

DURATION: 2 weeks.

In total, the minimum total duration of the reorganization is 10 weeks, i.e. 2.5 months.

However, often in practice, for various reasons, given period may increase to 3-4 months. This may be due to both objective (holidays, publication dates, etc.) and subjective (delays in payment for publications, fees, delays in certification of forms by the applicant, refusals, etc.) reasons.

We are often approached by companies that have independently begun the reorganization procedure, prepared documents, but are unable to complete it, receiving refusal after refusal. This is due to the fact that there are many nuances that we know about, but which people who do not have sufficient experience in this area often cannot guess.

Contact Law firm Simple Solutions and we will be happy to help you!

COMPLEX SERVICES for company reorganization

WHAT IS INCLUDED IN THE PRICE:

— full legal support of the reorganization procedure;

— full courier service for the order.

The specific composition of services varies depending on the form of reorganization. For more detailed information, please refer to the page of the reorganization form you are interested in.

If you want to reorganize your company, contact the professionals. Call!

· Joining

· Merger

· Conversion

· Separation

· Highlight

Currently in Russia there is no single normative act, which would regulate the issue of reorganization. However, in Lately The issue of reorganization is quite relevant. Reorganization of a legal entity is the termination or other change in the legal status of a legal entity, entailing relations of succession of legal entities. Art. 57 of the Civil Code of the Russian Federation identifies five types of reorganization: merger, accession, transformation, division, separation. It is very important to thoroughly provide for the reorganization procedure in the Charter.

Reorganization of a legal entity is its termination, entailing the emergence of new organizations or a significant change in the nature of the legal personality of existing organizations. It can be put simply this way: reorganization is a way of terminating the activities of a legal entity, characterized by the transfer of rights and obligations to another legal entity. In such cases, the newly emerged or previously existing organizations, in addition to the participants and property of the legal entity, may receive the characteristics of its organizational structure, legal capacity, company name, etc. Reorganization is possible in the forms of merger, accession, division, separation, transformation (clause

1 tbsp. 57 Civil Code of the Russian Federation).

Affiliation means that an existing organization, due to the fact that one or more other organizations merge into it, loses the characteristics of a legal entity. This is a method of reorganization in which the rights and obligations of one pre-existing legal entity are transferred to another legal entity. Rights and obligations are transferred to the merging legal entity in accordance with the transfer deed (clause 2 of Article 58).

Merger, as a way of reorganizing a legal entity, means the enlargement of a newly emerging subject of civil law through the termination of several legal entities. Moreover, all the rights and obligations of each of them are summarized by the organization arising as a result of the merger, in accordance with the transfer deed (clause 1, article 58).

In accordance with paragraph 5 of Art. 58 of the Civil Code of the Russian Federation, another way to reorganize legal entities is their transformation, i.e., changing their organizational and legal form of a legal entity. At the same time, the organization itself, its participants and its property in quantitative terms may remain unchanged; but the set of certain features that characterize the type of the corresponding legal entity changes: its purpose as an association of other persons and their property; legal regime property assigned to him; methods for solving certain issues that arise in the activities of this organization; the scope of requirements for the constituent documents of a given legal entity and the amount of its authorized capital; the method of formation and termination of this legal entity, which depends on all this. When transforming a legal entity, the rights and obligations of the transformed legal entity are transferred to the newly emerged entity in accordance with the transfer deed.

Division means splitting one legal entity that ceases to exist into several smaller organizations. Consequently, the rights and obligations of a terminated legal entity are also split up: they are transferred to newly emerged organizations based on the data of the separation balance sheet (clause 3 of Article 58).

Spin-off is, like division, a way of disaggregating legal entities; Unlike division, with this method of disaggregation the organization does not cease to exist, but the volume of its characteristics as a legal personality decreases: the property complex assigned to it, the number of its participants, and the volume of civil legal capacity decrease. All this is, as it were, deducted from it and transferred to other legal entities that arise again on such a basis. A document recording details this process, is the separation balance drawn up in this case (clause 3 of article 58 of the Civil Code of the Russian Federation).

Reorganization is a transformation, reorganization of the organizational structure and management of an enterprise or company, while maintaining fixed assets and the production potential of the enterprise. Reorganization is a way of both terminating legal entities and creating new ones.

Employees of an enterprise who are faced with the issue of reorganization, as a rule, cannot understand all the subtleties and nuances of a particular method, see all the positive and negative sides. Therefore, before trying to carry out the reorganization on your own, we, as professionals, advise you to seek advice from the Center for Legal Modeling and Assessment of Moscow and we will develop the most best option exactly for your situation. TsYuMO provides a full range of services in Moscow related to the reorganization of legal entities, including representation of your interests in government agencies.

Date of publication: 2014-11-29; Read: 109 | Page copyright infringement

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What is reorganization?

First of all, company reorganization is a tool for optimizing business processes, aimed at expanding the scope of activities and highlighting individual areas of activity. Secondly, reorganization can serve as an effective tool for ensuring the property security of business owners. And only thirdly, it can result in beneficial tax consequences.

So, reorganization is the transformation of the organizational structure of a company while maintaining its overall potential.

There are five forms of company reorganization. All of them are named in clause 1 of Article 57 of the Civil Code of the Russian Federation.

1. Merger. Merging two or more companies into one. Company A+Company B=Company C.

All rights and obligations of companies A and B are transferred to company C on the basis of a deed of transfer.

2. Accession. Merger of one or more companies with another company. Company A + Company B = Company A1. All rights and obligations of the merging company B are transferred to the merging company A on the basis of a transfer deed.

3. Separation. Division of one company into several. Company A = Company B, Company C, Company D. All rights and obligations of the dividing company in certain parts are transferred to the new companies on the basis of the separation balance sheet.

4. Selection. Spin-off from one company to one or more other companies. Company A = Company A, Company B, Company D. Each of the separated companies receives part of the rights and obligations of the reorganized company on the basis of the separation balance sheet.

5. Transformation. Changing one legal form of a company to another. Company A (LLC) = Company A (OJSC). All rights and obligations of the reorganized company are transferred to the company that changed its organizational and legal form on the basis of a transfer deed.

The transfer deed and the separation balance sheet are mandatory documents during the reorganization of legal entities.

Guarantees of the state's rights regarding taxes are enshrined in Article 50 of the Tax Code of the Russian Federation. It is important to understand that reorganization does not create any new tax obligations, but does not cancel those that arose previously. The legal successor is responsible for paying taxes. The exception is allocation. There are nuances there. It is a mistake to believe that by undertaking a reorganization procedure, you can avoid paying taxes. This is wrong. Such actions, if intentional, are a criminal offense.

According to clause 2 of Article 23 of the Tax Code of the Russian Federation, the company is obliged to inform the tax authority at the place of its registration in writing about the start of the reorganization procedure. within 3 days from the date of such decision. The tax authority has the right to order an on-site tax audit in connection with the reorganization. Moreover, such a check is in fact independently tax audit and does not fall under the concept of a repeat inspection, it is carried out regardless of the time of the previous inspection and the subject of the previous inspection. The tax authority may not exercise this right, but you need to know about it.

Before making a decision to reorganize, it is necessary to understand all its consequences. It is necessary to approach reorganization issues with particular caution in cases where driving force reorganization is solely the desire of the owners to save on taxes, and not to improve business processes. We never tire of repeating, let us repeat once again, that taxes are always a consequence of business, and not vice versa.

Before deciding to reorganize, answer this question for yourself. What do I, as an owner, want to improve and secure in my business through reorganization? Do you have an answer? Yes, by the way, the answer should not sound like: “I want to pay less taxes!” Well what is the answer? Great! This is the business goal for which reorganization can be undertaken.

Creativity of thought

Enterprise reorganization

Reorganization of an enterprise means the cessation of its activities in its previous form. To reorganize an enterprise, the consent of its owner, or the workforce, or a court decision is required.

What types of enterprise reorganization are there?

Types of enterprise reorganization:

• reorganization of an enterprise through merger;
• reorganization of an enterprise through merger;
• reorganization of the enterprise through transformation;
• reorganization of an enterprise through division;
• reorganization of an enterprise through spin-off.

Each method of enterprise reorganization has its own characteristics, and there is no separate legislative act that would completely regulate the entire process of enterprise reorganization.

However, enterprises often face the need to reorganize them for various reasons.

Reorganization of an enterprise is any change in its legal status. The Civil Code of the Russian Federation distinguishes the indicated types of enterprise reorganization: by merger, accession, transformation, division and separation.

The reorganization procedure can be faced by any enterprise, therefore, even at the stage of its registration, when drawing up the constituent documents, it is necessary to provide for the procedure and implementation of the reorganization of the enterprise.

When an enterprise is reorganized, a situation arises that the previous enterprise ceases to exist, and all its rights and obligations are transferred to another legal entity. When reorganizing an enterprise, it often happens that the new enterprise borrows from the old one, being reorganized, not only property and authorized capital, but also structure, name and some other aspects.

Enterprise reorganization

So, how do the methods of reorganizing an enterprise differ?

Reorganization of an enterprise by merger

As a result of the reorganization of an enterprise through merger, the previous enterprise transfers all its rights to another legal entity to which it merges. When reorganizing an enterprise by merger, a transfer act must be drawn up. Essentially, the reorganization of an enterprise by merger is alternative way liquidation of the enterprise. With such a reorganization of an enterprise, no new legal entities are formed, but one enterprise transfers all its rights and property to another - it joins it.

When reorganizing an enterprise by merger, it is necessary to draw up a transfer act, which confirms that the enterprise that is being enlarged takes over the property, shares of participants, as well as all the rights and obligations of another enterprise during its reorganization.

When reorganizing an enterprise through merger, it is necessary to make changes to the constituent documents of the enterprise being merged and register these changes. Also, the reorganization of an enterprise involves making appropriate changes to the unified register of legal entities. After entering information into it that the constituent shares and property of the enterprise undergoing reorganization are transferred to another enterprise, the reorganization of the enterprise by merger is considered completed.

In some cases specified by law, reorganization of an enterprise through merger can occur only with the consent of the Antimonopoly Committee or certain government bodies.

Enterprise reorganization

Reorganization of an enterprise through merger

When an enterprise is reorganized through a merger, several legal entities are liquidated, and in their place a legal entity is created new organization, to which the rights and obligations of each enterprise undergoing reorganization are transferred.

When reorganizing an enterprise through a merger, a transfer act is also drawn up.

This act states that the newly formed enterprise is the legal successor of the rights and obligations of all enterprises that have gone through reorganization. Without such a transfer deed, registration of the created legal entity is impossible.

In some cases, if the assets of the created enterprise exceed a certain amount, the reorganization of the enterprise by merger requires notification of the Antimonopoly Committee within the period specified by law after entering the relevant information about the reorganization of enterprises into the unified register of legal entities.

Reorganization of an enterprise through transformation

Reorganization of an enterprise through transformation means a reorganization in which the organizational and legal form of the enterprise changes. In this case, the reorganization may not affect either the number of participants in the enterprise or its property, but the legal regime of the enterprise’s activities, the procedure for managing its property, the procedure for the operation of the enterprise, the procedure for resolving some organizational issues of its functioning, formation and liquidation are changing.

When reorganizing an enterprise through transformation, a corresponding transfer act is created, according to which all the rights and obligations of the reorganized enterprise are transferred to the new enterprise.

Thus, when an enterprise is reorganized through transformation, the old enterprise disappears, and in its place a new one is formed - with a different organizational and legal form.

Reorganization of an enterprise through transformation is considered completed when appropriate changes are made to the unified register of legal entities.

If the reorganization concerned an enterprise that issued a license to engage in its type of activity, then after the reorganization and change in the organizational and legal form of the enterprise, the license must be reissued to a new legal entity.

Enterprise reorganization

Reorganization of an enterprise through division

Reorganizing an enterprise through division means splitting it into smaller parts. This type of reorganization of an enterprise causes the division of all its rights and obligations between the resulting legal entities. With this type of enterprise reorganization, a separation balance sheet is created.

When reorganizing an enterprise by division, new legal entities are created, and the reorganization of the enterprise is considered completed at the moment when the newly formed enterprises undergo state registration.

The separation balance sheet must indicate to what extent each new legal entity inherits the duties and rights of the enterprise that existed before the reorganization, as well as its debts and obligations.

The separation balance sheet is a mandatory document for submission for registration of newly created legal entities at the site of the enterprise undergoing reorganization.

Reorganization of an enterprise through division can occur without the consent of the enterprise, on the basis of a decision of the Antimonopoly Committee, court and other bodies

Enterprise reorganization

Reorganization of an enterprise through spin-off

Reorganizing an enterprise by spinning off also means the formation of several smaller enterprises in place of a larger one and the division of its property between them. The basis for such a reorganization is also the separation balance sheet. Reorganization of an enterprise through spin-off, as well as reorganization through division, can be forced by a decision of the court, the Antimonopoly Committee and other authorized bodies.

The separation balance sheet must indicate to what extent each new legal entity inherits the duties and rights of the enterprise that existed before the reorganization, as well as its debts and obligations. The separation balance sheet is a mandatory document to submit for registration of newly created legal entities.

Difficulties of enterprise reorganization

The reorganization of an enterprise is associated with determining its future fate: will it continue its activities as part of more large enterprise whether, as a result of reorganization, it should change the organizational and legal form of business or merge with another enterprise. Answering all these questions requires high qualifications and means great responsibility, because the future fate of the enterprise depends on exactly how the enterprise is reorganized.

In addition, the reorganization of an enterprise is a complex and responsible matter, which is associated with the preparation of balance sheets, transfer of rights and re-registration of the enterprise. As a rule, any reorganization of an enterprise has its pros and cons, but in order to understand them, quite often the founders and owners of the enterprise need professional advice.

Our law firm is ready to consider possible options reorganization of your enterprise and select the most suitable form of reorganization for it, taking into account the specifics of its type of activity, property, rights, obligations and other circumstances.

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