Timing and stages of reorganization in the form of transformation. Reorganization of legal entities and its types

Reorganization of the enterprise.

In an effort to bring the enterprise out of the crisis, many managers try to do as much as possible effective measures. Among such measures, one of the most radical is reorganization.

Reorganization of an enterprise can take place in the form of merger, accession, division, separation and transformation.

During a merger, a new legal entity is formed on the basis of one or more enterprises that are ceasing their activities. A merger is a reorganization in which one enterprise merges with another and thus ceases to exist as such. When dividing, new ones arise on the basis of a legal entity that has ceased to operate. Isolation is considered to be the occurrence new organization on the basis of a continuing legal entity. If, during a reorganization, one enterprise ceases its activities and one or more new enterprises arise on its basis, then this is a transformation.

Many managers willingly agreed to reorganization also because they saw it as one of the reliable ways to evade paying tax debts and penalties. After all, the current legislation did not require newly created enterprises to assume responsibility for the tax obligations of their predecessor. As a result, all debts to the budget remained with the old enterprise, which was then liquidated without repaying them.

However, with the entry into force of the first part of the Tax Code of the Russian Federation (hereinafter referred to as the Tax Code of the Russian Federation), the situation has changed. The Code provides that tax rights and obligations can be fully transferred from a predecessor to an enterprise created on its basis.

In other words, succession in tax relations is now possible. In our opinion, if a newly created enterprise wants to be freed from the tax burden of its predecessor, then it is necessary to pay off all old debts and satisfy all claims of creditors, including the state (debt on mandatory payments to the budget and off-budget funds applies in accordance with paragraph 1 of Art. 64 of the Civil Code of the Russian Federation to accounts payable of the fourth stage).

Succession in tax law

Succession is understood as the transfer of rights and (or) obligations (in this case, tax) from one entity (legal predecessor) to another (successor). Based on this, the debt to pay arrears, wages etc., in our opinion, must be included in the separation balance sheet.

But what if the successor has already assumed responsibilities for the tax obligations of the predecessor and it turns out that as a result of a calculation error by the predecessor, an arrear has arisen? In this case, the legal successor may recalculate and, in accordance with Article 78 of the Tax Code of the Russian Federation, raise the issue of offset or refund of overpaid tax.

The predecessor's obligations to pay fines must also be fulfilled on time. For example, if the legal predecessor. who had a debt to pay a fine had to pay it off within 6 months from the date of discovery of the violation (Clause 1 of Article 115 of the Tax Code of the Russian Federation), now the legal successor must do this. Moreover, the period for paying the fine after succession is not suspended or interrupted for a single day.

The same applies to the deadlines for fulfilling tax payment obligations. In accordance with paragraph 3 of Article 50 of the Tax Code of the Russian Federation, the reorganization of a legal entity does not change the deadlines for fulfilling its obligations to pay taxes.

In other words, the successor, as it were, replaces the legal predecessor and subsequently fulfills his tax obligations.

In civil law (for example, in agreements on the assignment of a right of claim or on the transfer of a debt), the parties can specifically establish that only a certain right or only a certain obligation is transferred to another person, and not the entire set of rights and obligations. In this regard, the question arises: is this possible in tax law? Can, for example, one enterprise transfer its debt to pay arrears or penalties to another enterprise by concluding an appropriate agreement with it? Does one organization have the right to transfer to another the right to demand a refund of overpaid taxes from the budget?

In tax law, the principle “taxes cannot be negotiated” applies. According to this principle, it is prohibited to use tax clauses by virtue of which the obligation to pay tax is assigned to another person. To date, this principle is directly enshrined only in special acts of tax legislation devoted to individual taxes. Thus, in accordance with paragraph 2 of Article 11 of the Law of the Russian Federation of December 27, 1991 No. 2116-1 “On the income tax of enterprises and organizations”, it is prohibited to include tax clauses in agreements and contracts, according to which the enterprise undertakes the obligation to bear expenses for payment of taxes of other payers. In accordance with paragraph 1 of Article 45 of the Tax Code of the Russian Federation, the taxpayer is obliged to independently fulfill the obligation to pay tax, unless otherwise provided by the legislation on taxes and fees.

Requirements for the reorganization of enterprises

In order for tax succession to take place during the reorganization of an enterprise, it is necessary to comply with:

firstly, the requirements of civil law governing the reorganization procedure;

secondly, the norms of antimonopoly legislation;

thirdly, the rules on succession established by tax legislation.

The reorganization procedure is regulated by the Civil Code of the Russian Federation, as well as laws on certain types legal entities: Federal Law of December 26, 1995 No. 208-FZ “On Joint-Stock Companies”. Federal Law of December 8, 1998 No. 14-FZ “On Limited Liability Companies”. Federal Law of May 8, 1996 No. 41-FZ “On Production Cooperatives”, etc.

Notification of tax authorities about reorganization

In accordance with paragraph 2 of Article 23 of the Tax Code of the Russian Federation, an enterprise is obliged to inform the tax authority about liquidation or reorganization no later than three days from the date of such decision.

Tax inspectors have the right to conduct on-site tax audit reorganized enterprises, regardless of when the previous inspection was carried out. Tax inspectorates have no right to demand that a reorganized enterprise fulfill its tax obligations ahead of schedule. But during the audit, they can identify the amount of arrears that must be paid to the budget, and also decide to impose penalties if there are tax violations.

Transfer act and separation balance

If the reorganization is carried out in the form of a merger, accession or transformation, then the rights and obligations are transferred to the legal successors in accordance with the transfer deed. If a division or separation is carried out, then the rights and obligations are transferred to the legal successor in accordance with the separation balance sheet. But until the legal entity is registered, the rights and obligations remain with the legal predecessor, even if the transfer deed and separation balance sheet have already been drawn up and signed.

By the way, these documents must contain provisions on the succession of all obligations of the reorganized legal entity in relation to all its creditors and debtors, including obligations disputed by the parties. If the transfer deed and separation balance sheet are not presented together with the constituent documents or there are no provisions on succession in these documents, then state registration a newly created legal entity may be refused.

In practice, the question often arises: how to reflect in the separation balance sheet information about the succession of all obligations in relation to all creditors and debtors? After all, the balance sheet items contain only generalized indicators of the results of the financial and economic activities of the enterprise, and it is impossible to determine the amount of debt to specific creditors. Indeed, in the balance sheet it is impossible to specifically show to whom exactly and how much the organization owes. Therefore, it is sufficient that it is clear from the transfer deed or separation balance sheet. that all obligations of the legal predecessor were actually transferred to the successor.

This means that the amount of assets on the balance sheet of a legal entity (in case of a merger - legal entity) before the reorganization must be equal to the amount of assets on the balance sheet of legal entities (in the event of a merger - legal entity) after the reorganization. Accordingly, the sum of the liabilities of the balance sheet (balance sheets) of legal entities before the reorganization should also be equal to the sum of the liabilities of the balance sheet of legal entities after the reorganization. However, the coincidence of these amounts does not always guarantee that the legal successor is actually able to pay off the debts of the legal predecessor transferred to him using the assets received.

When reorganization is carried out in the form of division or separation, there may be several legal successors. In this case, rights and obligations are distributed between them in proportion to the acquired property. In particular, if, as a result of the division of an enterprise, 10 percent of its entire property passed to one of several legal successors, then 10 percent of all obligations of the legal predecessor to third parties and to the budget should also pass to the same legal successor. Formally, this is expressed as follows. that for each legal successor the amount of the asset balance must be equal to the amount of the liability balance.

In some cases, there is still a need to clearly determine to which specific legal successor the obligations of specific creditors were transferred and in what part. Special meaning This is the case during reorganization in the form of division and allocation, when there may be several legal successors, and creditors need to know which legal successor received the responsibility for repaying specific loans.

In this case, the Tax Code of the Russian Federation provides a rule: if the separation balance does not allow determining the obligations of the legal successor to pay debts and taxes of the reorganized enterprise or payment these debts and taxes in full is impossible, then by court decision the newly emerged legal entities can jointly and severally fulfill the financial and tax obligations of their predecessor.

In order to impose joint liability on the legal successors of an enterprise reorganized by division (spin-off), the tax inspectorate must:

Apply to court with a corresponding claim;

Prove in court that the separation balance sheet does not allow determining the share of the legal successor in terms of obligations to pay taxes or excludes the possibility of fulfilling these obligations in full;

Convince the court. that the entire reorganization was specifically aimed at not fulfilling obligations to pay taxes.

But this is quite difficult to do, which means that it is virtually impossible to hold legal successors jointly and severally liable.

In order to avoid bringing the matter to court and to determine which of several legal successors the rights and obligations to specific creditors have transferred to, a list of debtors and creditors should be attached to the balance sheet compiled upon division. This list should indicate all amounts of receivables and payables that the enterprise had before the reorganization (list the grounds for this debt - contracts, other primary documents). In addition, it is necessary to develop and attach to the balance sheet a procedure for distributing this debt among legal successors after the reorganization. Such an approach will not contradict paragraph 2 of the Instructions on the accounting of individual transactions related to the entry into force of part one of the Civil Code of the Russian Federation (approved by order of the Ministry of Finance of Russia dated July 28, 1995 No. 81). Subclause 2.1 of these instructions requires, in addition to the transfer deed and separation balance sheet, in the prescribed manner draw up financial statements as of the date of reorganization. In addition to the mandatory articles, it must include an act containing a list of all amounts of receivables and payables.

Composition of rights and obligations passing to the legal successor

It is established in paragraph 2 of Article 50 of the Tax Code of the Russian Federation. that the duties of the reorganized enterprise to pay taxes must be fulfilled by the successor regardless. did he know before the completion of the reorganization that this enterprise had tax debts? Besides. the successor must also pay all penalties of the reorganized enterprise.

If, before the adoption of the Tax Code of the Russian Federation, the obligation to pay penalties passed to the legal successor only in the case when the amount of the corresponding arrears was identified by the tax authorities before the reorganization, now the legal successor will have to pay penalties even when the arrears are identified after the reorganization.

Fines imposed by the tax inspectorate on the enterprise before the completion of its reorganization are also paid by the legal successor. This is established in paragraph 2 of Article 50 of the Tax Code of the Russian Federation. Fines, decisions on the imposition of which were made by tax authorities after the reorganization, cannot be collected from legal predecessors.

If not one, but several enterprises are separated from a legal entity, tax succession does not arise. This means that the enterprises spun off as a result of the reorganization do not pay any arrears, penalties, or penalties. This must be done by the legal predecessor himself. But if, as a result of reorganization in the form of a spin-off, the legal predecessor is unable to pay taxes, then the court, by its decision, may oblige the newly created enterprises to jointly repay the debt to the budget.

Tax legislation provides for the transfer to the legal successor not only of the tax obligations of the predecessor, but also of his rights. In accordance with paragraph 10 of Article 50 of the Tax Code of the Russian Federation, the amount of tax excessively paid by the enterprise before the reorganization must be offset by the tax authority against future tax payments of the legal successor. Such offset must be made within 30 days from the date of completion of the reorganization.

The overpaid amount of tax may be returned to legal successors in accordance with the share of each of them. This share is determined on the basis of the separation balance sheet. In this case, it does not matter whether the successor is in debt for other taxes, penalties, and fines. Refunds are made within one month from the date of application.

In accordance with paragraph 4 of Article 79 of the Tax Code of the Russian Federation, interest must be accrued on the amount of excessively collected tax. This interest is calculated from the day following the day of collection until the day when the overpaid amount was actually returned. Interest rate equal to the refinancing rate of the Central Bank of the Russian Federation in force on those days.

Fulfillment of tax obligations upon liquidation of an organization

Tax succession and the liability of the founders with their property for the debts of the liquidated organization are two different things. When an enterprise is liquidated, its rights and obligations do not pass by succession to other companies.

Meanwhile, paragraph 2 of Article 49 of the Tax Code of the Russian Federation establishes that if Money the liquidated organization, including those received from the sale of its property, is not enough to pay taxes and fees, penalties and fines, then the debt is repaid by the founders of the organization. The repayment procedure is established by law.

But this does not mean that the tax obligations of enterprises always pass to the founders through tax succession. According to civil law, participants in a legal entity are liable for its debts in strictly limited cases. For example, if the actions of the participants led to the insolvency (bankruptcy) of a legal entity (clause 3 of Article 56 of the Civil Code of the Russian Federation). Besides. The Civil Code of the Russian Federation establishes that participants are responsible for the debts of an enterprise if the enterprises were created in the form general partnerships and limited partnerships, companies with additional liability and some other types of legal entities. The legislation does not oblige participants of joint-stock companies and limited liability companies to be liable for the debts of these companies.

The process of reorganization of a legal entity is based on universal succession, which represents the transfer of property, property rights and obligations of an economic entity to its successor on grounds. transfer deed or separation balance sheet.

When reorganizing a legal entity, the founders are required to notify their creditors in writing no later than 30 days from the date of the decision to reorganize the company, and when reorganizing the company in the form of a merger - from the date decision made about this by the last legal entity participating in the process of merger or accession.

Creditors have the right to demand termination or early fulfillment of obligations and, accordingly, compensation for losses, regardless of the period of repayment of the debt.

The Civil Code of the Russian Federation (Article 92) and Federal Law No. 14-FZ dated 02/08/98 “06 limited liability companies” (Clause 8, Article 37) establish the need to obtain the consent of all participants in the company to make a decision on reorganization in any form. Federal Law No. 14-FZ dated 02/08/98 provides for five main forms of enterprise reorganization: merger, accession, division, spin-off, transformation. When preparing for transformation, a prerequisite is the preliminary distribution or sale of shares on the company's balance sheet. This decision is made by the general meeting of participants, and the sale, which changes the size of their shares, is carried out by their unanimous decision (Article 24 of Federal Law No. 14-FZ dated 02/08/98). Convening a general meeting, notifying participants about it, providing them with materials for the general meeting and holding the meeting are carried out in the manner prescribed by the charter of the company.

In accordance with Art. 56 of the said law, resolving the issue of reorganizing the company (partnership) in the form of its transformation into Joint-Stock Company, the general meeting of participants should consider the following issues:

making a decision on transformation;

making decisions on the procedure and conditions of transformation;

making a decision on the procedure for exchanging shares of company participants for shares of the joint-stock company;

making a decision to approve the charter of the joint stock company created as a result of the transformation;

making a decision to approve the transfer deed.

Converting 000 into a joint stock company involves the following options:

the authorized capital of the joint-stock company being created is equal to the authorized capital of the company (partnership);

shares of the created JSC are paid for by exchanging shares of participants for them;

the participant becomes the owner of a block of shares in the amount of his share in the authorized capital of the company.

At this option the authorized capital of the joint-stock company actually retains the same structure as the authorized capital of the company.

To change the structure authorized capital provide for the placement of two categories of shares:

ordinary and privileged.

In this case, when determining the procedure for exchanging shares, a rule is established according to which a share whose size is equal to or less than a certain (arbitrarily selected) size is exchanged for preferred shares, the remaining shares - for ordinary shares. For example, shares less than 5% are exchanged only for preferred shares. In this case, the requirements of paragraph 2 of Art. 25 Federal Law“On Joint-Stock Companies”, according to which the par value of outstanding preferred shares should not exceed 25% of the authorized capital of the joint-stock company.

During a spin-off, you can transfer not only assets, but also debts.

When creating a company by separation, it is necessary to take into account two requirements for this procedure.

Firstly, As a result of the reorganization, both transformed and spun-off companies must have an amount of net assets no less than their authorized capital.

Secondly, tax debts cannot be transferred during reorganization by allocation to a legal entity (Article 50 of the Tax Code), i.e. they remain in full with the reorganized company.

If debts are transferred to a new company, the assets transferred to it must exceed debts by an amount not exceeding smaller size its authorized capital. The amount of assets left with the reorganized company must accordingly exceed its remaining debts.

Reorganization of the company in the form of spin-off. requires preliminary analysis which provides:

Availability confirmation sufficient quantity net assets;

Identification of the amount of debts of the company;

Studying the structure of debts: the size of civil obligations and the amount of debt for taxes and fees.

When separating a company, you should be guided by the following rules:

The net assets of the reorganized company must exceed or be equal to the size of its authorized capital;

The assets of the reorganized company must represent the sum of the assets of the reorganized and spun off company;

The debts of the reorganized company must not exceed the amount of debts of the reorganized and spun off company;

The net assets of the created enterprise must represent the value of the net assets of the reorganized and separated company.

The company is considered reorganized from the moment of state registration of newly emerged legal entities, with the exception of cases of reorganization in the form of merger. In the latter case, the first of the legal entities is considered reorganized from the moment an entry is made in the state register of legal entities about the termination of the activities of the affiliated enterprise. The supreme body of a legal entity determines the basic conditions and procedure for reorganization and makes a decision on the approval of relevant documents. The main documents are:

when merging: merger agreement, charter or constituent agreement of the company created as a result of the merger; transfer act of each liquidated organization;

upon joining: affiliation agreement and transfer act of each acquired organization;

when splitting: decision on division and creation of new companies, separation balance sheet;

when selected: decision on the separation and creation of a new company, separation balance sheet;

ateducation: decision on transformation, deed of transfer.

When changing the organizational legal form The founders of the company must submit the following documents to the relevant registration authority:

Application by a legal entity to change the organizational and legal form of ownership;

Payment order confirming payment for registration of a legal entity;

Charter and memorandum of association, old and new editions;

Minutes of the general meeting of participants;

Application for withdrawal of participants from the founders;

The decision of the company's participants on the transformation;

A copy of the premises rental agreement;

Certificate of absence of debt on rent of municipal space;

Certificate of absence of rent arrears for land lease;

Balance sheet;

Calculation of net assets;

Documents confirming payment of the authorized capital;

Transfer deed.

Documents are submitted to the registration authority at the place of previous registration of the reorganized enterprise, regardless of whether its location changes after the reorganization or remains the same.

During the reorganization of a company, the authorized capital may be changed, as well as the composition of participants due to the admission of new members to the company or the exclusion of those who have left.

The sole founder member of the reorganized company submits the entire list of specified documents with the exception of the constituent agreement. The main document is the charter, which indicates the size of the company's authorized capital.

One of the main points in the reorganization of legal entities is the preparation of a transfer deed and a separation balance sheet. The transfer deed and separation balance sheet include financial statements drawn up in the prescribed manner, in the amount of annual forms accounting report as of the last reporting date (registration date).

Reorganized legal entities must conduct an inventory of property and liabilities in order to confirm the accuracy of individual articles of the transfer act or separation balance sheet.

The separation balance sheet is drawn up according to the form of the balance sheet approved by Order of the Ministry of Finance of Russia dated January 13, 2000 No. 4n “On the forms of annual financial statements of the organization.” In this case, the separation balance sheet consists of the general balance sheet of the previously existing legal entity and the balance sheets of all new companies.

The transfer act is drawn up by enterprises in free form. It contains the following information:

dacha and registration form;

organizational and legal form and name of the legal successor;

the amount of assets and the amount of liabilities of the balance sheet of the reorganized legal entity as of the date of reorganization with a breakdown by sections of the balance sheet;

list of attached reporting forms;

list of attached inventory lists, matching statements;

list of other attached documents (order on accounting policy enterprises, analytical data on receivables and payables).

The registration authority makes appropriate changes to the state register of legal entities. The company is assigned a new registration number and a temporary registration certificate is issued. The procedure for registering a reorganized company with the regulatory authorities is identical to the procedure for registering a newly created company.

Clause 2 of Art. 23 of the Tax Code of the Russian Federation stipulates that in the event of reorganization, an enterprise is obliged to notify the tax authority about this in writing no later than three days from the date such a decision was made by the participants.

In accordance with the order of the Ministry of Taxes of Russia dated November 27, 1998 No. GB-3-12/309 “On approval of the procedure and conditions for assigning, applying, as well as changing the taxpayer identification number and document forms used when registering legal entities and individuals" (as amended on December 24, 1999) an application for registration with the tax authority of a legal entity at its location is submitted within ten days after its state registration in the form established in Appendix No. 3 to the order. In this case, the information specified in the application , must comply with the constituent and other documents necessary for registration.

When registering with the tax authority, the newly created company is assigned a taxpayer identification number (TIN), since the TIN of organizations that ceased operations as a result of reorganization is invalid (p. 3 of Appendix No. 1 to Order No. GB-3-12/309).

The TIN of a company reorganized in the form of spin-off and merger does not change. A company reorganized in the form of a merger is obliged to notify the tax authority about changes and additions to the constituent documents within 10 days from the date of their state registration (Articles 83, 84 of the Tax Code of the Russian Federation).

The created companies in the process of reorganization acquire the obligations of the legal successor to repay debts to creditors (Article 58 of the Civil Code of the Russian Federation), as well as to the budget - to pay taxes and fees of the reorganized legal entity (Article 50 of the Tax Code of the Russian Federation).

Bibliography

Literature:

1. Civil law of Russia: course of lectures. Part one. / Ed. HE. Sadikov. M. 1996.

2. Civil law. Textbook. Part 1-3 / Ed. A.P. Sergeeva, Yu.K. Tolstoy. M. 1997.

3. Civil law: textbook. In 2 volumes. / Rep. ed. prof. E.A. Sukhanov. M.: 1999.

Regulatory acts:

1. Civil Code of the Russian Federation

2. Tax Code of the Russian Federation

5. Federal Law of December 8, 1998 No. 14-FZ “On Limited Liability Companies”.

Reorganization is a specific way of forming new and terminating the activities of existing legal entities. The reorganization process is based on the so-called universal succession. That is, the transfer of property, property rights and obligations of an economic entity to its successor on the basis of a transfer deed or separation balance sheet. The principle of universal legal succession requires the transfer of all rights and obligations (including tax ones) to the legal successor or successors.

Reorganization of a legal entity can be carried out through merger, accession, division, separation and transformation (Article 57 of the Civil Code of the Russian Federation 1). The order of its implementation and the composition of the documentation to be drawn up depend on the form of the reorganization. During the process of reorganization, some companies cease to exist, while others either arise in the form of new companies or appear in a different capacity.

Reorganization of a legal entity can be voluntary or forced. Voluntary reorganization of a legal entity is carried out by decision of its founders (participants) or a body of the legal entity authorized to do so by the constituent documents. In a number of cases, the reorganization of legal entities can be carried out only with the consent of authorized state bodies.

Forced reorganization of a legal entity in the form of division or separation is carried out in cases established by law, by decision of authorized state bodies or a court.

1. Conversion along with merger, accession, division and separation is one of the forms of reorganization of a legal entity. In accordance with clause 5 of Article 58 of the Civil Code of the Russian Federation, when a legal entity of one type is transformed into a legal entity of another type (change of organizational and legal form), the rights and obligations of the reorganized legal entity are transferred to the newly emerged legal entity in accordance with the transfer deed.

Analysis of this norm of the Civil Code of the Russian Federation allows us to highlight the following distinctive features of transformation as a form of reorganization of a legal entity. Firstly, the reorganization procedure in the form of transformation involves one legal entity, which ceases to exist upon its completion. Secondly, in place of the reorganized legal entity, a new legal successor legal entity of a different organizational and legal form arises. Finally, thirdly, the succession of a newly emerging legal entity in relation to the reorganized one is formalized by a separate document - a transfer deed. Thus, transformation can be considered the simplest form of reorganization, since, unlike merger, accession, division and separation, only one legal entity is involved in it and only one legal entity arises during its implementation. However, the noted signs of transformation are not accepted by all scientists. Thus, in the literature, the opinion was expressed that when a transformation is carried out, the reorganized legal entity is preserved, whose organizational and legal form changes, and, accordingly, a new legal entity does not arise 2.

Circle possible options transformation is limited by law, which determines into what organizational and legal forms certain types of legal entities can be transformed. In relation to commercial organizations, a similar rule is established by clause 1 of Article 68 of the Civil Code of the Russian Federation, which provides that business partnerships and companies of one type can be transformed into business partnerships and companies of another type or into production cooperatives by decision of the general meeting of participants in the manner established by the Civil Code of the Russian Federation . Restrictions for the transformation of joint-stock companies into other commercial organizations are established by clause 2 of Article 104 of the Civil Code of the Russian Federation, which provides for legal entities of this organizational and legal form only the possibility of transformation into a limited liability company or into a production cooperative. At the same time, the provisions of paragraph 2 of Article 104 of the Civil Code of the Russian Federation expand the wording of Article 68 of the Civil Code of the Russian Federation by including non-profit organizations in the list of legal entities into which a joint-stock company can be transformed, and the procedure for carrying out such a transformation must be established by law.

The procedure for transforming a joint stock company is regulated by the Federal Law “On Joint Stock Companies” (hereinafter referred to as the Law on Joint Stock Companies). It specifies the provisions of the Civil Code of the Russian Federation on the transformation of a joint-stock company, in particular, it establishes that the company, by unanimous decision of all shareholders, has the right to transform into a non-profit partnership (paragraph 2, paragraph 1, article 20 of the Law).

The Law on Joint Stock Companies also provides for other features of the transformation procedure. A distinctive feature of this Law is that the term “transformation” is used not only to designate one of the types of reorganization: transformation also means a change in the type of joint stock company - from open to closed and vice versa. If a closed company exceeds the maximum number of participants established by Law, it is obliged to carry out such a transformation within a year, otherwise the company is subject to liquidation in court.

2. Selection. One of the forms of reorganization provided for by Russian legislation is spin-off. The decision on the allocation can be made either by the founders (participants) or by a body authorized to do so by the constituent documents. This is indicated by paragraph 1 of Article 57 of the Civil Code of the Russian Federation.

When one or more legal entities are separated from the organization, the rights and obligations of the reorganized enterprise are transferred to each of them in accordance with the separation balance sheet (clause 4 of Article 58 of the Civil Code of the Russian Federation). At the same time, the reorganized enterprise continues its activities.

In relation to joint-stock companies, reorganization in the form of a spin-off is the creation of one or more companies with the transfer of part of the rights and obligations of the reorganized company without terminating the latter 3; a similar definition is applicable to limited liability companies 4.

The definition of the term “spin-off” contains key provisions that characterize this form of reorganization, namely:

a) one or more new companies are created;

b) part of the rights and obligations of the reorganized company is transferred to the new companies;

c) the reorganized society itself continues to exist.

The first of these characteristics is a distinctive feature of reorganization as a whole and can be applied to all forms of reorganization, with the exception of merger. The remaining characteristics are inherent exclusively in reorganization in the form of separation.

Separation is characterized by singular (private) succession, in which, in contrast to universal (general) succession, the successor takes the place of the predecessor not in all, but only in some legal relations. It must be borne in mind that succession is not allowed in cases where the rights and obligations are of a personal nature (right to a name, authorship, obligation to compensate for harm) or there is a direct prohibition by law 5 .

Spin-off also differs from other forms of reorganization in that the reorganized company is not liquidated, while in other forms of reorganization the activities of at least one legal entity are terminated.

The decision on forced reorganization in the form of separation from a commercial organization is made if certain conditions are met:

a) the possibility of organizational and territorial isolation of its structural divisions;

b) the absence of close technological interrelation between its structural divisions;

c) the ability of legal entities, as a result of reorganization, to independently operate in the market for a certain product.

The decision of the federal antimonopoly body on forced allocation is subject to execution by the owner or a body authorized by him, taking into account the requirements provided for in the said decision, and within the period specified therein, which cannot be less than six months.

If the founders (participants) of a legal entity, a body authorized by them or a body of a legal entity authorized to reorganize its constituent documents, do not carry out the reorganization of the legal entity within the period specified in the decision of the authorized state body, the court, at the request of the specified state body, appoints an external manager of the legal entity and instructs him to carry out the reorganization of this legal entity. From the moment the external manager is appointed, the authority to manage the affairs of the legal entity is transferred to him. The external manager acts on behalf of the legal entity in court, draws up a separation balance sheet and submits it to the court for consideration along with the constituent documents of the legal entities arising as a result of the reorganization. Court approval of these documents is the basis for state registration of newly emerging legal entities (Article 57, paragraph 2 of the Civil Code of the Russian Federation).

3. Separation. This form of reorganization involves the termination of the existence of a legal entity and the creation of two or more new ones. All rights and obligations of the reorganized legal entity are transferred to the latter in accordance with the separation balance sheet. In other words, during division, the reorganized legal entity ceases to exist and transfers all its assets and liabilities to new legal entities that arose by decision of the founders (participants) and on the basis of the material base of the old enterprise. The separation balance sheet of a reorganized enterprise is an important document on the basis of which a list of property and liabilities transferring to the newly formed enterprises is determined. According to T.P. Shishmareva, in accordance with the parts of the transferred property, the transfer of rights and obligations is carried out. 6

An important issue in the reorganization of legal entities in the form of division is the question of the possibility of creating various organizational and legal forms as a result of the division of legal entities.

For example, in accordance with the Law “On Joint-Stock Companies,” the division of a joint-stock company presupposes the emergence of several joint-stock companies on the basis of one company being reorganized. In other words, when a legal entity is divided, the newly formed entities are endowed with the same organizational and legal form as the reorganized entity. This provision is not directly enshrined in the current legislation, however, indirect confirmation of what has been said can be found in the existing regulatory framework.

Thus, a literal interpretation of joint stock legislation leads to the conclusion that it is impossible to divide a joint stock company, leading to the emergence of legal entities of a different organizational and legal form.

4. Joining. In this case, one or more legal entities cease to operate, and their rights and obligations are transferred to another legal entity. According to Civil Code When reorganizing in the form of affiliation, the acquiring organization is considered reorganized from the moment an entry is made in the Unified State Register of Legal Entities about the termination of the activities of the acquiring organization, the rights and obligations of which are transferred in accordance with the transfer act to the acquiring organization. At the same time, as established by the Federal Law “On State Registration of Legal Entities”, it is not the newly created legal entity that is subject to state registration, but the changes made to its constituent documents.

Russian legislation does not contain prohibitions on the merger of various organizational and legal forms of business entities. To exercise their rights, they must perform actions in a certain order.

5. Merger. When legal entities merge, the rights and obligations of each of them are transferred to the newly emerged legal entity in accordance with the transfer deed. A merger is characterized by the fact that several enterprises form one new legal entity, and pre-existing legal entities cease their activities. Reorganization in the form of a merger is considered completed from the moment of state registration of the newly emerged legal entity.

The current legislation of the Russian Federation does not limit the number of legal entities that can act as subjects of reorganization in the form of a merger. In accordance with Art. 16 of the JSC Law, a merger of companies recognizes the emergence of a new company by transferring to it all the rights and obligations of two or more companies with the termination of the latter. A similar definition is contained in Art. 52 of the LLC Law, according to which a merger of companies is the creation of a company with the transfer to it of all the rights and obligations of two or more companies and the termination of the latter.

The development of many organizations often leads to some adjustments in the structure of the company. Enterprises can change their legal form, owner, divide, or merge. Any of these actions must be formalized strictly in accordance with the law.

One type of change in the organizational and legal form is transformation.

What it is?

Transformation is a special type of reorganization, which is a change in the organizational and legal form of a company, while another legal entity is created, and the old one ceases its activities, the constituent documents and charter are changed, but all rights and obligations are retained after the procedure is completed.

A significant difference from other types of reorganization, that is, mergers, is that one legal entity begins to participate in the procedure and as a result one company is also formed.

The process has some features:

• From an economic point of view, the transformed organization is one and the same company, which has only changed its management structure and legal status, and no changes have occurred in other areas of the company’s life.
• From a macroeconomic point of view, such a reorganization is a neutral action in relation to capital, since there is no division or merger of the authorized capital of several companies. This nuance is the most significant difference. In other cases, assets and liabilities are either combined into one fund or divided among several organizations.
• From a legal point of view, during the transformation, a completely new enterprise is created, which is a complete successor to the obligations and rights of its predecessor. The book value of the property does not change.

There are two types of transformation:

• Voluntary. Carried out only on the initiative of the company owners. For example, the procedure can be carried out if the owners or founders come to the conclusion that the enterprise will operate most effectively in a different legal form. Most often, for this reason, an LLC is transformed into a joint stock company.
• Mandatory. It is carried out upon the occurrence of certain circumstances defined by law. There are several such cases:
  • participants non-profit organization are going to lead entrepreneurial activity, at the same time it is transformed into a partnership or society;
  • the number of participants in an LLC or CJSC exceeds 50 people, and it is necessary to reorganize the enterprise into an OJSC or cooperative.

Reorganization does not include a change in the type of joint stock company, for example, a transition from an OJSC to a CJSC. This action is recorded as a name change.

Regulation by law

The most important documents regulating the procedure are:

• Civil Code of the Russian Federation. The main types of reorganization, definitions, and features are established by Article 57 of the Civil Code of the Russian Federation.
• Federal Law No. 129-FZ of August 8, 2001 “On state registration of legal entities and individual entrepreneurs" Procedure order, Required documents, the nuances are indicated in Chapter V.

Others regulations establish some restrictions on the choice of legal form into which an existing enterprise can be transformed:

• LLC - into a partnership, a company of another type, a cooperative;
• private institution - to a foundation, non-profit organization, society;
• production cooperative - into a partnership, society;
• CJSC and OJSC - into LLC, non-profit partnership, cooperative.

Defining new uniform, it is worth taking into account the legal requirements for the amount of capital, the number of founders, etc.:

• A company cannot have one legal entity as its founder, which also has a single owner.
• There must be a founder in a partnership if he is an individual.
• Minimum size of the charter capital:
  • OOO and CJSC owe more than 10 thousand rubles;
  • For OJSC this amount is equal to 100 thousand rubles.
• The name of the commercial organization must indicate the type of planned activity.
• Number of enterprise participants different forms property:
  • for partnerships - 2 or more;
  • For production cooperatives- 5 or more;
  • for non-profit partnerships - at least 2.

Step-by-step registration instructions

The procedure occurs in several stages in a certain order. Actions of the founders:

• Making a decision on reorganization. On general meeting The following issues are discussed with all business owners:
  • transformation conditions;
  • exchange of shares of participants or contributions to the authorized capital of a future enterprise;
  • the charter of the new organization is agreed upon.
• Report to the tax authorities. The start of the procedure must be notified in writing to the territorial inspection within three days from the date of the decision. Based on the notification received tax service will make an entry in the Unified State Register of Legal Entities about the beginning of the reorganization.
• Media report. The enterprise is obliged to report once a month in funds mass media about the procedure being carried out. This action is necessary to notify creditors of the company's transformation. Counterparties may, within 30 days from the date of the last announcement, request in writing the early repayment of obligations. In case of impossibility of payment - its termination, as well as compensation for losses.
• Election of company bodies. According to the law, enterprises with different organizational forms have different structures. The Founding Council determines specific composition managers, and also instructs management to complete all actions related to registration of the transformation:
  • receive creditors' claims for repayment of obligations, draw up a register of counterparties, amounts payable, etc.;
  • draw up and sign reconciliation reports with partners;
  • pay off accounts payable before the end of the procedure;
  • conduct an inventory of property and liabilities;

  Based on this data, the founders draw up and approve the transfer deed. The absence of a document is the reason for refusal of state registration of the reorganization. The act states:

  • general information about the enterprise;
  • gear balance;
  • explanations.

  After all these documents are completed, they are submitted for state registration.

• Liquidation of a reorganized entity. After receiving a certificate of termination of activity, the company must take the following actions:
  • deregister with the tax office, the statistics body, and extra-budgetary funds;
  • close all accounts;
  • destroy the seal.
• After this, you need to re-register with all institutions as a new legal entity, make a stamp, and open an account.

More detailed information You can learn about the stages of the procedure from the following video:

Required documents

The legislation establishes a list of documentation required for submission to the tax service. To register the transformation, the following documents of the liquidated enterprise must be submitted:

• Application on form P12001. The document must be signed by the applicant. Provided for each emerging company.
• A set of documents of the reorganized organization. It includes:

  Originals or notarized copies are submitted to the Federal Tax Service. Documents are provided in two copies.

• The founders' decision to reorganize the company.
• A copy of the advertisement in the media.
• A document confirming payment of the state fee, that is, a check, receipt.
• Transfer deed. It should contain all the necessary information.
• Certificate of absence of debt to the Pension Fund.
• A copy for the last reporting period.
• Decoding accounts payable.
• Contact details.

For a newly created company, the following information is required:

• full and abbreviated name;
• size of the authorized capital indicating the form of payment;
• details of the manager, name of his position;
• data of the chief accountant;
• data of the founders indicating their shares in the authorized capital;
• information about the bank in which the account will be opened;
• The contact person.

If these documents and information are available, the tax authorities register the reorganization of the enterprise.

Does the TIN change?

From a legal point of view, during reorganization, the enterprise ceases to exist and a completely new company is created. In this regard, all company details are changing.

During the procedure, the taxpayer number of the converted company is removed from the register. In the future, this TIN will no longer be used. The newly created enterprise is assigned a different number.

If the legal form changes without reorganization, the TIN remains the same. For example, when an OJSC is transferred to a CJSC, no changes are made in the tax service register.

Tax consequences

All responsibilities of the enterprise pass to his successor. That is, in order to reduce taxes, it does not make sense to carry out the procedure, since all amounts of mandatory payments due to the previous organization must be paid by the new company.

But there is only one small relaxation - if the tax service does not find any violations before the reorganization, then the new enterprise will be fined for the mistakes of its predecessor government agency can not.

Other nuances

Conversion is a rather complex procedure. There are a few more nuances, knowledge of which will allow you to carry it out without violations:

• The liquidated enterprise must draw up final financial statements as of the date preceding the day the reorganization was recorded.
• The new organization must provide introductory reports. It is compiled by transferring indicators from the final one.
• If an enterprise used a special tax regime, then after reorganization it can apply the simplified tax system or UTII only if it submits an application to the tax authorities.
• Small organizations wishing to switch to the simplified tax system or UTII can submit a corresponding application within five days from the date of creation.
• The duration of the procedure is approximately 2-3 months.
• To implement this, you can use the services of specialized companies.

Probably everyone knows what reorganization of a legal entity is. In government institutions it is carried out even more often than in commercial organizations. As a rule, reorganization is associated with a change in the organizational and legal form (when, for example, a unitary institution becomes a state institution), a change in the owner of the institution’s property, the merger of several organizations into one, etc. This process affects not only organizational and financial relations, but also labor. What is reorganization? In what forms can it occur? What responsibilities does an employer have towards employees? In what cases are they subject to dismissal? You will find answers to these and other questions in this article.

Reorganization and its forms

The concept of reorganization is absent in the legislation. However, as some experts define it, it is the cessation or other change legal status legal entity, entailing relations of succession of legal entities, 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 occur.

According to Art. 57 and 58 of the Civil Code of the Russian Federation, reorganization of a legal entity is carried out in the following forms:

Merger, when a new legal entity is formed from several legal entities that cease to operate;

Merger, when one legal entity is joined by another legal entity that ceases its activities, and in the end one remains;

Division, when one legal entity is divided into several legal entities;

Spin-off, when another legal entity is separated from one legal entity, while both continue to conduct their activities;

Transformation, when a legal entity of one type is transformed into a legal entity of another type, while the first one ceases its activities (change in legal form).

The reorganization of federal institutions is discussed in a separate regulatory legal act - Decree of the Government of the Russian Federation dated July 26, 2010 N 539 “On approval of the Procedure for the creation, reorganization, change of type and liquidation of federal state institutions, as well as approval of the charters of federal state institutions and amendments to them.” According to this resolution, the reorganization federal institution may be carried out in the form of merger, accession, division or separation.

The decision on the reorganization of a federal institution in the form of division, spin-off, merger (if the legal entity resulting from the merger is a federal government institution) or annexation (in the case of the merger of a federal budgetary or autonomous institution with a government institution) is made by the Government of the Russian Federation.

The decision on reorganization in the form of merger or accession, with the exception of these cases, is made by the federal executive body exercising the functions and powers of developing state policy and legal regulation in the established field of activity.

By virtue of Art. 57 of the Civil Code of the Russian Federation, reorganization of a legal entity 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.

A legal entity is considered reorganized, with the exception of cases of reorganization in the form of merger, from the moment of state registration of newly emerged legal entities. When a legal entity is reorganized in the form of the merger of another legal entity with it, the first of them is considered reorganized from the moment an entry on the termination of the activities of the merged legal entity is made in the Unified State Register of Legal Entities.

Labor Relations

Article 75 of the Labor Code of the Russian Federation talks about labor relations during reorganization. Moreover, in addition to the reorganization, a change in the owner of the organization’s property and a change in its jurisdiction are separately indicated.

Let’s consider what is meant by a change in the owner of an organization’s property and a change in its jurisdiction.

A change in the owner of the organization’s property in accordance with clause 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 the courts of the Russian Federation of the Labor Code of the Russian Federation” is a transition (transfer) of ownership of the organization’s property from one person to another person or other persons, in particular:

When privatizing a 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);

When converting property owned by an organization into state ownership (Article 235 of the Civil Code of the Russian Federation);

When transferring state-owned enterprises to municipal property and vice versa;

When transferring federal state enterprise into the property of a subject of the Russian Federation and vice versa.

Change of property owner government agency- This is, in essence, reorganization in the form of transformation.

As for changing the jurisdiction (subordination) of an organization, this means transferring the organization from the jurisdiction (subordination) of one body to the jurisdiction (subordination) of another body.

So, Art. 75 of the Labor Code of the Russian Federation establishes that when there is a change in the owner of the organization’s property, a change in the jurisdiction (subordination) of the organization or its reorganization (merger, annexation, division, spin-off, transformation) or a change in the type of state or municipal institution, employment contracts with employees are not terminated. An exception is the possibility of terminating employment contracts with the head of the organization, his deputies and the chief accountant when the owner of the organization’s property changes. The new owner may terminate employment contracts with these persons no later than three months from the date on which he acquired ownership rights.

Note. The ownership of the enterprise passes to the buyer from the moment of state registration of this right (Article 564 of the Civil Code of the Russian Federation).

Upon termination of employment contracts with these persons, the new owner is obliged to pay them compensation in the amount of not less than three average monthly earnings of these workers (Article 181 of the Labor Code of the Russian Federation). Grounds for termination employment contract in such cases there will be clause 4, part 1, art. 81 of the Labor Code of the Russian Federation - change of owner of the organization’s property.

Article 75 of the Labor Code of the Russian Federation also establishes the right of an employee to refuse to continue working in connection with a change in the owner of the organization’s property, a change in the jurisdiction of the organization, its reorganization, or a change in the type of state or municipal institution. The employment contract in these cases is terminated in accordance with clause 6, part 1, art. 77 of the Labor Code of the Russian Federation (an employee’s refusal to continue working in connection with a change in the owner of the organization’s property, a change in the jurisdiction (subordination) of the organization or its reorganization, a change in the type of state or municipal institution).

Paperwork

As already mentioned, labor relations with employees in the event of a change in the owner of the organization’s property (with the exception of persons established by Part 1 of Article 75 of the Labor Code of the Russian Federation), reorganization, or change of jurisdiction are preserved. That is, employment contracts remain the same. But additional agreements must be concluded with them.

However, first, the employer should notify employees of the upcoming reorganization, change of ownership of property or change of jurisdiction, as well as the right of employees to terminate their employment relationship in connection with this.

Such an obligation is not established by law, unless simultaneously with the reorganization the terms of the employment contract are changed or there is a reduction in the number of employees or staff. However, in order for employees to exercise the right to terminate their employment relationship established in Art. 75 of the Labor Code of the Russian Federation, this still needs to be done. The question here is: when should such notice be given? Since this issue is not regulated by the Labor Code, other provisions should be followed. Thus, in the case when the reorganization is accompanied by a change in the employee’s working conditions (place of work, structural unit, conditions of payment, position, etc.), notification is sent two months before the upcoming changes by virtue of Art. 74 Labor Code of the Russian Federation.

It should be borne in mind that all employees, including those on vacation or sick leave, should be notified.

So, while the employee was on her next vacation, the municipality was reorganized into a regional state educational institution"Special (correctional) Orphanage N 2 for orphans and children left without parental care, with disabilities health." Due to the reorganization, the number of children increased, as a result, the work schedule of this employee was subject to change. The employee was not notified about such a change before she returned from her next vacation in the prescribed manner (namely two months in advance).

The employee refused to work in the new regime, for which she was brought to disciplinary liability and then fired.

However, the court reinstated her in her previous position with payment of wages for the period of forced absence and compensation for moral damage, and the dismissal under such circumstances was declared illegal (Cassation ruling of the Khabarovsk Regional Court dated April 27, 2011 in case No. 33-2747/2011).

If no changes in working conditions are planned, employees must be notified in the shortest possible time from the moment of state registration of changes during reorganization or entry into force of a regulatory legal act when jurisdiction changes. In this case, it is not necessary to notify each employee against signature, but you can inform the employees this information orally or by posting on a bulletin board, etc. In this case, it should be noted that employees have the right to terminate their employment relationship by submitting an appropriate application.

Employees who submit such a statement will have their employment contract terminated. IN work book the following entry is made: “The employment contract is terminated due to the employee’s refusal to continue working in connection with the reorganization of the organization, paragraph 6 of part one of Article 77 of the Labor Code of the Russian Federation.”

And on what basis should an employee be dismissed if he does not agree to continue working due to a change in the terms of the employment contract: according to clause 6 or 7 of Part 1 of Art. 77 of the Labor Code of the Russian Federation (an employee’s refusal to continue working due to a change in the terms of the employment contract determined by the parties)?

Since there are no clarifications on this issue, we believe that it would be simpler and more expedient to dismiss under clause 6, part 1, art. 77 Labor Code of the Russian Federation. In any case, the employee can always resign for at will.

Note! Dismissal of an employee under clause 6, part 1, art. 77 of the Labor Code of the Russian Federation should be drawn up after the completion of the reorganization, that is, from the moment the entry is made in the state register.

Additional agreements to employment contracts must be concluded with employees who continue to work. The agreements indicate all changes, including changes in the terms of the employment contract, that occurred as a result of the reorganization. In addition, it is necessary to make an entry in the work book.

Since the Instructions for filling out work books, approved by Resolution of the Ministry of Labor of the Russian Federation dated October 10, 2003 N 69, do not regulate the procedure for making such entries in the work book, it is assumed that the entry in this case should be similar to the entry on changing the name of the organization (clause 3.2 of the said instructions) , for example: “The municipal unitary enterprise “Fakel” was reorganized in the form of transformation into a closed joint-stock company “Svetoch” from July 15, 2014.”

Reduction of staff during reorganization

Quite often, when an institution is reorganized (for example, during a merger, division, spin-off), there is a reduction in the number of employees or staff.

In Letter of Rostrud dated 02/05/2007 N 276-6-0 on this matter, it is noted that the reorganization may be accompanied by an actual reduction in the number of employees or staff of the organization. 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.

In this case, as officials point out, we can talk not about the priority right to hire, but about the priority right to remain at work when the number of employees or staff is reduced. Preferential right to remain at work is given to employees with higher labor productivity and qualifications.

With equal labor productivity and qualifications, preference in remaining at work is given to families with two or more dependents (disabled family members who are fully supported by the employee or receive assistance from him, which is for them a permanent and main source of livelihood), persons in whose family there are no other workers with independent earnings, workers who received a work injury or occupational disease while working for this employer, disabled people of Great Britain Patriotic War and disabled combatants in defense of the Fatherland, workers who improve their skills in the direction of the employer without interruption from work.

Note! If in new staffing table The employee’s position has been retained; there are no grounds for dismissal due to staff reduction.

According to Art. 180 of the Labor Code of the Russian Federation about the upcoming dismissal due to a reduction in the number of employees or staff, employees are warned by the employer personally against their signature at least two months before the dismissal. WITH written consent The employee's employment contract with him can be terminated before the expiration of the specified period.

Thus, two months before the reorganization, which is accompanied by a reduction in staff, employees must be notified of this. In addition, the employer is obliged to offer the laid-off employee another available job (vacant position) in accordance with Part 3 of Art. 81 Labor Code of the Russian Federation. You can do all this in one notification.

It should be noted that if a reduction in the number of employees or staff is carried out in connection with a change in the owner of the organization’s property, then by virtue of Part 4 of Art. 75 of the Labor Code of the Russian Federation, such a reduction is allowed only after state registration of ownership by the new owner. That is, only after registration of ownership rights the new owner begins the reduction procedure.

If an employee refuses to work in a new vacant position or there is no such position in the organization, the employment contract with him is terminated under clause 2 of part 1 of Art. 81 of the Labor Code of the Russian Federation, and the dismissed employee is paid severance pay in the amount of average monthly earnings. He also retains his average monthly earnings for the period of employment, but not more than two months from the date of dismissal (including severance pay), and in exceptional cases, the average monthly earnings are retained for the third month from the date of dismissal by decision of the employment service authority, provided that that within two weeks after dismissal, the employee applied to this body and was not employed by it (Article 178 of the Labor Code of the Russian Federation).

If the employment contract is terminated before two months, the employee is paid additional compensation in the amount of his average earnings, calculated in proportion to the time remaining before the expiration of the notice of dismissal.

Please note that if an employee is subject to dismissal due to a reduction in staff or number of employees, then replacing this basis for dismissal with dismissal under clause 6, part 1, art. 77 of the Labor Code of the Russian Federation or at one’s own request may be declared illegal by the court, since it deprives the employee of the right to receive guarantees established by the Labor Code in the event of dismissal due to staff reduction.

Separately about vacation

Since employers often make mistakes when providing annual paid leave in the event of reorganization, this issue deserves special attention.

Let us remind you that the right to use vacation for the first year of work arises for the employee after six months of his continuous operation at this employer. By agreement of the parties, paid leave may be provided to the employee before the expiration of six months (Article 122 of the Labor Code of the Russian Federation).

The order of provision of paid vacations is determined annually in accordance with the vacation schedule approved by the employer, taking into account the opinion of the elected body of the primary trade union organization no later than two weeks before the start of the calendar year.

Note! The vacation schedule is mandatory for both the employer and the employee (Article 123 of the Labor Code of the Russian Federation).

As mentioned above, during the reorganization of the institution (including when the owner of the property changes), the employment relationship continues; accordingly, the employee retains the right to leave and the length of service for granting leave is not interrupted. And vacation schedules drawn up before the reorganization remain valid. Therefore, employees must go on vacation in accordance with the current vacation schedule.

Question. For the period of work from 01/05/2014 to 01/04/2015, according to the vacation schedule, the employee must be granted leave of 40 calendar days from 09/30/2014 to 11/10/2014. As of November 1, 2015, the institution is planning to reorganize. Before the reorganization, can an employer provide vacation not in the amount of 40 days, but in proportion to the time worked by the employee before the reorganization?

Since the employment relationship with employees continues, leave must be granted according to the leave schedule. In this case, by agreement between the employee and the employer, annual paid leave can be divided into parts. Moreover, at least one part of this vacation must be at least 14 calendar days (Article 125 of the Labor Code of the Russian Federation).

Article 124 of the Labor Code of the Russian Federation establishes cases of transferring vacation to another period. In exceptional cases, when granting an employee leave in the current working year may adversely affect the normal course of work of the organization, it is allowed, with the consent of the employee, to transfer the leave to the next working year. In this case, the leave must be used no later than 12 months after the end of the working year for which it is granted.

Thus, if the employee agrees to divide the vacation into parts and transfer the second part of the vacation to another time (in this case, after reorganization) or to the next working year, this can be done. In this case, the employee must be asked to submit an application requesting the division and transfer of vacation, and changes must also be made to the vacation schedule.

If the employee does not agree, the employer is obliged to provide him with leave according to the schedule in full, regardless of whether it falls during the period of reorganization.

If the employee exercised his right to terminate the employment contract in connection with the reorganization under clause 6 of Part 1 of Art. 77 of the Labor Code of the Russian Federation, on the day of dismissal he is paid monetary compensation for all unused vacations.

The same rule applies when the reorganization is accompanied by a reduction in the number of employees or staff. That is, if an employee quits due to a reduction in the number of employees or staff, and according to the vacation schedule, he is given vacation until the expiration of two months before the termination of the employment contract, or he partially goes beyond this period, then he must be granted vacation.

In addition, according to Art. 127 of the Labor Code of the Russian Federation, upon a written application from an employee, unused vacations may be granted to him with subsequent dismissal (except for cases of dismissal for guilty actions). In this case, the day of dismissal is considered the last day of vacation.

Please also note that when paying compensation for unused vacation upon dismissal of an employee in accordance with the Rules on regular and additional holidays, approved by the People's Commissariat of Labor of the USSR on April 30, 1930 N 169, in the event of liquidation of an enterprise or institution or its individual parts, reduction of staff or work, as well as in the event of reorganization or temporary suspension of work, an employee who has worked from 5.5 to 11 months receives full compensation, then is for all annual and additional paid leave due to him.

* * *

To summarize, let us draw your attention to the main points related to the reorganization of the institution.

1. In the event of reorganization of the institution, labor relations with employees continue. The exception is the possibility of terminating labor relations with the manager, his deputies and the chief accountant when the owner of the organization’s property changes.

2. Employees must be notified of the upcoming reorganization, as a result of which the terms of the employment contract are changed or the staff or number of employees is reduced, two months in advance.

3. Employees must be informed about any reorganization in order to exercise their right to dismissal under clause 6, part 1, art. 77 Labor Code of the Russian Federation.

4. Additional agreements to employment contracts are concluded with employees, and entries are made in their work books about the reorganization of the institution.

5. The next annual leave is provided to employees in the reorganized institution in accordance with the vacation schedule approved before the reorganization.

6. If the employee wishes to terminate the employment relationship due to reorganization, change of owner or change of jurisdiction, he is dismissed according to 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. No benefits are paid to the employee upon such dismissal.

7. If during the reorganization there is a reduction in the number of employees or staff, the employees are dismissed according to clause 2, part 1, art. 81 of the Labor Code of the Russian Federation with the payment of severance pay to them.

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 in the legal status of a legal entity, entailing succession, which results in the simultaneous creation of one or more new legal entities and the termination of one or more previous legal entities.
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;
- the highest executive body of state power of a constituent entity of the Russian Federation - in relation to budgetary or government institutions of a constituent entity of the Russian Federation;
- local administration municipality- in relation to municipal budgetary or government institutions.
The decision to transform an autonomous non-profit organization is made by its supreme body management 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 of state registration of the newly emerged organization (organizations).
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 the courts of the Russian Federation of the Labor Code of the Russian Federation,” a change of owner is understood as a transition (transfer) of ownership of an organization’s property from one person to another person or persons, in particular, at:
- privatization of state or municipal property, that is, during the alienation of 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 Privatization” 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 enterprises to municipal ownership and vice versa;
- transfer of a federal state enterprise to the ownership of a constituent entity of the Russian Federation and vice versa.
A change in the ownership of the property of a state institution 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, appropriate changes are made to its constituent documents.

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 legal entity is formed.
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 of legal form).
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 the work book of 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 the employee’s position is retained in the new staffing table, there are no grounds for dismissal due to staff reduction (Rostrud Letter N 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;
- the terms of the employee’s employment contract change.
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 made in writing and 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 is dismissed due to a reduction in headcount or staff, he is paid severance pay in the amount of average monthly earnings, and also retains the average monthly salary 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 the two-month period, 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.