Alienation of a share in the authorized capital. Taxation when selling a share in the UK

Option 1

"Purchase - sale of a share in LLC between the members of the Company"

A member of the Company has the right to sell his share or part of it to one or more members of the Company. The consent of other participants or the Company itself to this transaction is not required, if there is no restriction under the Articles of Association. If consent is required, the participants must, within 30 days, provide written consent to purchase a share or provide refusals. To do this, each of the participants informs the Company, represented by its General Director, of its decisions. On the basis of which the relevant documents are drawn up, including a contract for the sale and purchase of a share in an LLC in a simple writing. In this case, only the participant selling the entire share should be present at the notary. The participant - the seller of the share must certify at the notary the form according to which the registration of the purchase and sale of the share of the authorized capital will take place.

The share passes to the acquirer from the moment of state registration. In the case of the purchase and sale of the entire share of a participant in the company, a complete replacement of the participant occurs, since one of them leaves the LLC during the sale.

Option 2

"Purchase - sale of a share in LLC between a member of the Company and a third party"

This option for registering the purchase and sale of a share is possible only when refusals from other participants have been received and the possibility of selling a share in the authorized capital to new persons is not limited.

Having received Required documents from the participants, the Seller of the share and the Buyer - new member draw up documents for the assurance of the transaction. To do this, both parties gather at the notary and certify all the necessary documents in his presence. In addition, the implementation of this procedure will require the written consent of the spouses for the purchase and sale of shares in the authorized capital. This can be done in parallel at the time of certification of this transaction by inviting the spouses of the parties to the notary chamber, or bring ready-made ones.

The buyer in this case receives the right to a share at the time of certification. Within 3 days, the notary personally submits the documents to the registration authority. After registration of these changes in the register of legal entities, the Buyer becomes a member of the LLC, the seller of the share receives money from the sale. If the share was sold in full, the participant leaves the LLC and no longer has any relation to it.

Option 3

"Purchase - sale of a share in the authorized capital between a member of an LLC and the Company itself"

The company may and is obliged to buy a share or a part of the share of a participant only in the following cases:

1. There is a ban on the sale of shares in LLC to third parties;
2. If the consent of the participants for the sale of a share in the LLC to a third party is not received (if the approval is provided for by the Charter of the LLC) and they have not expressed a desire to acquire it.

The law obliges the Company to acquire a share of a participant upon his written request. The share purchase and sale agreement in this case does not provide for notarization. It is necessary for the Company to register the sale of a share in the authorized capital within one month from the date of the decision to sell and transfer the share to the Company. The applicant in such a sale will be a participating Seller.

Further, within a year, the Company's share should be redistributed proportionally between other LLC participants or third parties (unless prohibited by the current Charter). This condition applicable after the registration of a new version of the Charter or an annex to it, where the prohibition on introducing new persons to the membership has been lifted.

In addition, in practice there is an opposite situation, when the Company itself does not sell a share to all participants. This procedure also takes place without certification of the sales contract by a notary, the terms remain the same as usual (7 working days). The applicant in this situation is the LLC itself, represented by the head.

The withdrawal of a participant from the Company is prohibited if there is not a single participant left in it (clause 2, article 26 of the Federal Law “On Limited Liability Companies”).

Option 4

"Purchase - sale of a share in the authorized capital between the Company itself and a third party"

If during the year the participants did not redistribute the share of the LLC among themselves, it must be sold to a third party without fail. To do this, you need to refer to the Charter and see if there is a ban on this action. If there is a ban, first you need to re-register the Articles of Association and remove this restriction, and then start selling your share in the LLC to a third party.

If the Charter requires the consent of all participants to the implementation of such actions, it is necessary to obtain written consent.

Sale of a share of the authorized capital LLC carried out by drawing up an agreement between the Company represented by its CEO and a third party, a future member of the LLC. Such an agreement is drawn up in a simple form; it is not required to certify it with a notary. The principal is the applicant.

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Lawyers Answers (4)

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Good afternoon

In response to your question, I would like to state the following.

A legal entity has the right to be a member of the company, since, according to Article 7 of the Federal Law of February 8, 1998 N 14-FZ "On Limited Liability Companies" (hereinafter - the Law):

1. Members of the company may be citizens and legal entities.
The company cannot have as its sole participant another economic company consisting of one person.

With regard to the procedure for selling a share to a third party, according to the provisions of the Law:

Article 21
1. The transfer of a share in the authorized capital of the company to third parties is carried out, including on the basis of a transaction.

2. Sale or alienation in any other way of a share or part of a share in the authorized capital of a company to third parties is allowed subject to the requirements provided for by this federal law unless prohibited by the charter of the company.

4. Members of the company shall enjoy the pre-emptive right to purchase a share of a member of the company at the offer price to a third party or at a price different from the offer price to a third party and predetermined by the charter of the company at a price (hereinafter referred to as the price predetermined by the charter) in proportion to the size of their shares, unless otherwise provided by the charter of the company exercising the pre-emptive right to purchase a share or part of a share.

The charter of the company may provide for the company's pre-emptive right to purchase a share belonging to a member of the company at the offer price to a third party or at a price predetermined by the charter, if other members of the company have not exercised their pre-emptive right to purchase the share of a member of the company.

5. Member of the company intending to sell his share
to a third person, is obliged to notify in writing the other participants of the company and the company itself by sending through the company at its own expense an offer addressed to these persons and containing an indication of the price and other conditions of sale.

An offer to sell a share or part of a share in the authorized capital of the company is considered received by all participants in the company at the time it is received by the company.

The participants of the company have the right to use the pre-emptive right to purchase a share in the authorized capital of the company within thirty days from the date of receipt of the offer by the company. The charter may provide for a longer period for the use of the pre-emptive right to purchase a share or part of a share in the authorized capital of the company.

If the company's charter provides for a pre-emptive right to purchase a share or part of a share by the company, it must establish the terms for the use of the pre-emptive right to purchase a share or part of a share by the company's participants and the company.

6. The pre-emptive right to purchase a share in the charter capital of the company from a participant and, if the charter of the company provides, the pre-emptive right to purchase a share from the company by the company shall terminate on the day:

submission of a written application for refusal to use this pre-emptive right in the manner prescribed by this paragraph;

expiration of the period of use of this pre-emptive right.

11. A transaction aimed at alienating a share in the authorized capital of a company is subject to notarization. Failure to comply with the notarial form entails the invalidity of this transaction.

12. A share in the authorized capital of the company passes to its acquirer from the moment of notarization of the transaction aimed at alienating a share or part of a share in the authorized capital of the company.

14. After notarization of a transaction aimed at the alienation of a share or part of a share in the authorized capital of a company, the notary who performed its notarization, no later than within three days from the date of such certification, performs a notarial act of transfer to the body carrying out state registration legal entities, an application for making appropriate changes to the unified state register of legal entities, signed by a member of the company alienating the share.

From the above provisions of the law it follows that:

1) You can sell your share in the company to a third party, if this is not prohibited by the charter of the LLC.

2) Other members of the company, as well as the company itself, have the preemptive right to purchase a share in the company, if this is provided for by the charter of the LLC. That is, in order to sell a share to a third party, it is initially necessary to offer other members of the company to acquire this share.

received
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The other members of the company (in your case, the second founder) enjoy the pre-emptive right to purchase a share.

The charter of the company may provide for obtaining the consent of the founders for the sale (transfer) of the share.

Participants can redeem this share themselves in proportion to the size of their own shares in the authorized capital.

The charter may provide that the company itself also has a pre-emptive right to purchase a share. It can exercise this right if all other participants have refused to acquire a share. The share transferred to the company must be sold by it within a year (otherwise the company will have to reduce the authorized capital by the amount of the share).

The seller is obliged to notify in writing both the company itself, represented by the director, and the other participants of the decision to sell its share. Better - by mail with a description of the attachment. In the letter, specify the price, terms, etc. terms of sale.

The term for a response established by law is 30 days from the date of receipt of the offer by the company (another term may be established in the Charter).

During this period, the remaining founders who are interested in acquiring the share being sold must give written consent to the purchase. They have the right to send a refusal to purchase or not respond to the offer at all. In this case, the seller has the right to sell the share to any third parties, but required under the conditions stated above.

The consent of the rest to the sale of the share (if the need to obtain it is provided for by the charter) is considered received: if within 30 days from the moment of contacting the participants (or within another period determined by the charter of the company), a written consent of all participants is received; or, if no written waiver is received from any of the participants within the prescribed period.

You have the right to sell the share of the legal entity, however, you must comply with the procedure established by the law on the LLC and the charter of the LLC, which, depending on the situation, may include the following steps:

1. Preparing for a deal

If the charter provides that the share can be sold to 3 persons only with the consent of the participants and (or) the LLC, you must prepare a notice-offer to the company about the alienation of the share to a third party

If the articles of association do not require consent, you must make an offer to the other participant to buy your share. The charter may provide for the pre-emptive right of the company itself to purchase your share.

Accordingly, it is necessary to obtain, if consent to alienation is required, a refusal (acceptance) to acquire a share by another participant (company).

2. Preparation of the contract and notarization of the transaction

3. Submission by a notary to the Federal Tax Service of an application signed by you on making changes to the Unified State Register of Legal Entities and sending a copy of the application to the company (done by one of the participants in the transaction or a notary)

After making changes to the Unified State Register of Legal Entities, the new owner of the share becomes a full member of the LLC.

Therefore, it is important to know the provisions of the charter of your LLC so that the transaction is concluded in accordance with the law. This way you can avoid risks in the future.

The deadline for obtaining an acceptance (consent to purchase) is submitted by the participant to the company within 30 days from the date of receipt of the offer (proposal), unless a longer period is established by the charter.

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"a legal entity has the right to buy part of the authorized capital of another legal entity?"

Answer: Yes

"new owner has the right to participate in the management of the company" - from the moment of notarization of the transaction

Required documents:

1. Help according to the sample (see in the appendix);

2. List of LLC participants according to the model (see in the appendix);

3. A copy of the appeal (offer) of a member of the company with a mark of the company on the date of receipt or a copy of the offer of the member of the company (seller) issued by the company, addressed to other participants and the company itself, indicating the price and other conditions of sale, or a notarized certificate of transfer of the application (sent 30 days in advance before the transaction (if a longer period is not provided for by the charter)), or a notarized waiver of the pre-emptive right to purchase.

4. If the charter provides for the consent of the company or its participants to the transaction - the relevant protocol.

5. Copies certified with a seal, signed by the head of the organization:

1) the articles of association in the latest edition;

2) evidence:

On registration with the tax authority;

On the state registration of legal entities.

3) a protocol on the appointment of the head of the LLC;

4) a constituent agreement or an agreement on the exercise of the rights of participants in the company between the founders (participants) of the company:

For companies established by several participants after July 01, 2009, mandatory; a copy of the contract is provided with a note that the original copy is located at ____ LLC.

6. Documents confirming the authority of the person alienating the share (part of the share) to dispose of the shares (part of the share) - a protocol on the creation of a legal entity, a contract of sale, assignment of a share, a certificate of the right to inheritance, another document expressing the content of the transaction made in a simple written form, and confirming the right to dispose of shares in the event of obtaining a share in the order of succession or in other cases that do not require or previously did not require notarization.

Hello! Today we will talk about the sale of the authorized capital of an LLC or a share in the authorized capital.

- this is the main source through which the company's property is formed. The need to sell often arises. The reason may be moving to another place of residence, the business has ceased to arouse interest, various family circumstances, it happens that a person simply wants to change the type of activity. We will deal with all the nuances in this article!

General procedure for the alienation of a share or part of a share in the authorized capital

First of all, let us clarify that if the transaction is aimed at alienating the entire share or some part of it, it must be certified by a notary, that is, a document is drawn up that is signed by all parties. In addition, the notary checks the data on whether the this person authority to dispose of a share or part of it.

But there are cases when the presence of a notary is not necessary:

• Forced exclusion of a participant;
• The share is sold at public auction;
• The share is the subject of collection of creditors.

A complete list of cases can be clarified by referring directly to Federal legislation.

It is also worth mentioning one point that concerns terminology: the alienation of a share is any transfer of its part. These manipulations are often referred to by the term "yield".

How is the alienation of the share of the authorized capital of LLC

The procedure itself is not very difficult and consists of three steps:

• Document preparation process;
• Certification of documents (when required by law);
• The process of entering information into .

Be that as it may, the procedure still has its own specific features, and in order to facilitate understanding, we will analyze each stage.

The documentation package should include all the necessary papers:

• Charter as amended;
• Confirmation protocol;
• Agreement for the sale of a share in the authorized capital of an LLC, with prescribed conditions.

Other documents may be required, which should be clarified with a notary certifying the transaction.

Of the listed documents, the most important is signed by both parties.

It must include the following information:

• General information about the parties;
• Information about the company;
• Agreed price;
• Responsibility for non-fulfillment by one party of any clauses of the contract must be prescribed.

Notarization of the transaction also has its own pitfalls:

• If the seller is married, you need written consent to the transaction from the second spouse;
• If the seller is divorced, but was married at the time of the organization of the company, then the former spouse also needs written consent. To put it mildly, a strange requirement, but it has a place to be. And you have to comply with the law.

By last stage we can say the following: all the documents necessary to make changes to the register can be sent not only by a notary, but also by any member of the LLC. The consequences may be different, since in this option notaries are not responsible for actions with documents.

The procedure for selling a share in the authorized capital of an LLC to another member of the company

The first thing a participant who has decided to sell his part of the authorized capital of an LLC should do , notify all other members of the company, as it is they who have the priority right to buy.

This transaction option is possible without the involvement of a notary, which saves time and money.

The procedure is as follows: within thirty days, one of the founders of the company agrees to acquire your share in the business. Then the contract is drawn up in any form, and notarization is not required.

Such a transaction actually has many advantages: you do not need to visit a bunch of instances, a notary's office.

If all LLC participants refused to acquire a share or part of it, it is possible to alienate a share in the authorized capital in favor of other persons. Of course, the refusal requires written registration.

Sale of a share of the authorized capital of an LLC to a third party

If you plan to sell a share or part of a share to a third party, you need to collect a documentation package that includes:

• TIN certificate (copy of the buyer and seller);
• Copy ;
• Protocol or other document confirming the establishment of the company;
• Register of all founders;
• Consent to the transaction from the spouse of the seller;
• Completed application.

The transaction is carried out by a notary, in the presence of the director of the company, who certifies copies of documents.

After the signing of the contract is carried out, the seller addresses the company with a notice in which he indicates the very fact of the transaction.

The studied judicial practice in this category of cases allows us to conclude that participants in transactions often falsify documents: forge signatures, manipulate dates, and so on. To avoid this, the procedure will be gradually tightened.

Sale of the authorized capital of LLC by the sole participant

Alienation of a share or 100% of the authorized capital sole member automatically implies changing it to another person. This is usually done through the conclusion of a sale and purchase agreement.

Let's take a closer look at this option.

The sale of a 100% stake in the authorized capital of an LLC must be certified by a notary, otherwise the transaction will be declared void.

The sale and purchase agreement is drawn up between the sole founder and the potential participant of the LLC. The contract must indicate how much the share costs and information about all parties to the transaction. From all of the above, it becomes clear that in fact this is the alienation of a share or 100% of the Criminal Code to a third party.

Often there are situations when a share is acquired by a legal entity. In such cases, the law provides for a slightly different procedure according to which the transaction is made.

When such a transaction is made, information is necessarily checked whether the person who will sign the contract has the right to sign such serious documents at all. The powers of the CEO are also subject to verification if he signs the document.

There are also significant restrictions on the sale of an unpaid share: only the paid part can be sold (alienated) (according to the Civil Code of the Russian Federation). The transaction for the sale of the actually unpaid part of the Criminal Code is void.

What happens to the share in the authorized capital after the withdrawal of the participant

The sale of a share in the authorized capital of an LLC after the withdrawal of a participant is possible only when this is not expressly prohibited by the Charter of the company. If there is no such prohibition, then any participant can leave the company without paying attention to the opinion of other founders.

Since January 2016, the legislation requires certification by a notary of the application that has been submitted.

The sole founder cannot withdraw from the company.

Instructions for the sale of a share in the authorized capital upon the withdrawal of a participant

• The participant writes a statement about his decision, transfers it to a person authorized to receive and consider such materials;
• A protocol is drawn up with fixing the fact of the exit of one founder;
• Title documents are submitted to the Federal Tax Service. They are sent by courier, e-mail, or through the portal of public services;
• Obtaining the relevant certificate. It usually takes about 5 days. All information specified in the certificate must be carefully checked, as they are of legal importance.
• At the next stage, banks and counterparties are notified of the changes (banks are notified when the company has credit obligations to them);
• Making payments to the exiting participant. It can be made in monetary terms, or through property, if the former participant has given his consent to this.

If the court recognized the LLC, then the former participant receives his share back. It usually takes 6 months.

Difficulties in exiting

Sometimes circumstances require forcibly withdrawing a participant from the LLC. This happens infrequently, but it is worth mentioning and considering them in order to have a general idea.

• This procedure is usually accompanied by trial, which provides evidence to support that the actions specific person led to the fact that the company incurs losses, or the founder violated the law;
• If the court decides to enforce the withdrawal, then former member may be denied payment of his share of the capital;
• If a member of the company dies, his successors declare their rights, otherwise the share of the deceased will be used by the company in its own interests.

Getting out is not as easy as it seems. In fact, she needs close attention, as well as full-fledged consultations with specialists.

Share capital sale and purchase agreement and other documents for download

• Download the contract for the sale and purchase of a share in the authorized capital of LLC
• Download a sample contract for the sale of a part of a share in the authorized capital of an LLC
• Sample minutes of the general meeting of participants in an LLC when selling a share in the authorized capital
• Sample consent of a spouse for the sale-acquisition of a share in the authorized capital of an LLC

Personal income tax on the sale of a share in the authorized capital of an LLC

The procedure for taxation of such transactions has a number of subtleties.

In accordance with the Tax Code of the Russian Federation, if physical. a person sells a share or part of a share in the authorized capital, he receives income. Accordingly, there is also an object for payment. In this case, physical a person fills out a declaration and submits it to the department of the Federal Tax Service at his place of residence.

If the share is sold by an individual person, then it does not sell the property itself, but the right to it, which means that it will not have the right to a tax deduction. personal income tax the person pays after the end of the calendar year.

Important information: Phys. persons themselves fill out the declaration, and hand it over!

If legal entities sell their shares. individuals, the tax will directly depend on which one they use.

List of documents for filing a declaration

• Passport (copy of the front page and registration page);
• Original TIN, or give its number;
• Information about the sale of shares;
• Contact phone number.

And further. The Ministry of Finance of the Russian Federation believes that even if you are, you must still declare income and pay personal income tax. This is justified simply - a member of the LLC - physical. face. There is even jurisprudence supporting this view.

In conclusion, I would like to say that each participant of an LLC has the right to carry out a transaction for the sale and purchase of a share in the authorized capital of an LLC, which he himself contributed. A transaction for the alienation of a share in the authorized capital can be made simultaneously with several persons wishing to acquire it.

If you have decided to deal with the entire procedure yourself, it is worth remembering that the judicial practice on the unscrupulous execution of such transactions is quite extensive.

Always pay attention to the following points:

• Is not the only founder alienating capital;
• The share to be sold must be paid;
• If the share is sold to a third party, do the other participants of the LLC have any objections;
• Whether the pre-emptive right to purchase is respected.

Following these simple points will avoid litigation and negativity.

Tell me how to reflect the Organization bought a share in the authorized capital in LLC. Buyer LLC "Buyer", sellers: individual 1900 (19%), legal entity "Seller" 5100 (51%). What are the transactions of Seller LLC and tax obligations? What are the postings of "Buyer" LLC? Recording date? Sale and purchase agreement 08.07.13

The seller reflects the transactions for the sale of the share as of the date of signing the act of acceptance and transfer of the share, unless otherwise provided by the agreement. Accordingly, on this date, the buyer reflects in his account the receipt of a financial investment. In accounting, the seller takes into account the implementation of the share on the Debit of account 76 m Credit of account 91/1 of the Chart of Accounts, as well as the disposal of financial investments on the Debit of account 91/2 and Credit of account 58 of the Chart of Accounts. In tax accounting, the organization reflects the proceeds from the sale of property rights, as well as expenses in the form of the cost of the share and the cost of selling the share. The buyer reflects the receipt of the share on the Debit of account 58 and Credit of account 76 of the Chart of Accounts. The buyer does not have any tax liability until the disposal of the share. It should be noted that the sale and purchase of a share in the authorized capital is not subject to VAT.

The rationale for this position is given below in the "Glavbukh System"

An organization can receive shares (stakes) of another organization not only as a founder during the initial placement of shares (distribution of shares), but also acquire them under a sale and purchase agreement from a shareholder (participant) of the company (clause , article 454 of the Civil Code of the Russian Federation).

Attention: the acquisition of shares (shares) must be notified to the tax office. There are penalties for violating this order.

Within a month from the date of acquisition of shares (stakes), send to your tax office a message about participation in Russian and foreign organizations in the form No. С-09-2, approved by order of the Federal Tax Service of Russia dated June 9, 2011 No. ММВ-7-6 / 362 (Clause 2, Article 23 of the Tax Code of the Russian Federation).*

Do it regardless:

• is an organization professional market participant valuable papers or not;
• what is the purpose for which the shares (shares) were acquired: income generation, further resale, etc.

This follows from the letters of the Ministry of Finance of Russia dated July 17, 2008 No. 03-02-07 / 1-290, dated January 28, 2008 No. 03-02-07 / 1-34.

If the tax inspectorate is not notified of the acquisition of shares (stakes), during the audit, the organization may be held liable under paragraph 1 of Article 126 of the Tax Code of the Russian Federation (see, for example, Resolution of the Federal Antimonopoly Service of the Urals District dated July 9, 2008 No. F09-4833 / 08 -C3). According to decisions of tax inspectorates made after September 2, 2010 (the date of entry into force of the Law of July 27, 2010 No. 229-FZ), the amount of the fine may be 200 rubles. for each document not submitted. This follows from the provisions of paragraphs and article 10 of the Law of July 27, 2010 No. 229-FZ.

Documenting

Confirm the fact of receiving shares (shares) as a result of a financial investment purchase and sale transaction with a primary document *. Compose it in any form (clause, article 9 of the Law of December 6, 2011 No. 402-FZ). For example, it may be an act of acceptance and transfer of shares (shares), containing all the required details in accordance with paragraph 2 of Article 9 of the Law of December 6, 2011 No. 402-FZ. In addition, extracts from a depo account or securities register may be required to confirm the purchase of shares. This is due to the special procedure for the transfer of ownership of this type of asset.

Situation: how to draw up a contract for the sale of shares (shares) of another organization

Transactions of organizations among themselves, with entrepreneurs and citizens must be concluded in writing (clause 1, article 161 of the Civil Code of the Russian Federation). Consequently, the contract for the sale of financial investments must be drawn up in writing (clause 2, article 454 of the Civil Code of the Russian Federation).

Specify in the contract, in particular:

• details of the buyer and seller;
• data on the object of purchase and sale, allowing to identify it (for example, series, number, issuer, par value of the share);
• the value of the object of sale;
• other essential conditions, on which, in the opinion of either party, an agreement should be reached (for example, the timing of settlements, penalties, etc.).

The conclusion of a written contract may be considered not only the drawing up of a single document, but also the exchange of documents by electronic, postal or other communication. An example of such an exchange is the correspondence of the parties to the transaction, from which the intention to sell and buy a certain number of shares at a certain price clearly follows.

Analytical accounting of received shares (shares) can be organized:

• by the piece (i.e., each share or share);
• homogeneous aggregates (i.e., for example, series, batches, etc.).

At the same time, in analytical accounting it is necessary to disclose the following information: name of the issuer, number, series of securities, nominal price, purchase price, costs associated with the acquisition, total, purchase date, storage location, etc.

Choose the accounting unit in such a way as to generate complete and reliable information about shares, ensure control over their presence and movement, and also streamline the work of accounting.

The choice of the unit of account and the rules for disclosing information on financial investments should be reflected in the accounting policy of the organization for accounting purposes.

Take into account the received financial investments at the initial cost. Include*:

• the cost of acquiring shares (shares);
• the cost of information and consulting services related to the acquisition of shares (shares);
• remuneration of intermediaries through which shares (shares) are acquired;
• other costs directly related to the acquisition of shares (stakes) (an exception in accounting is the case when their amount deviates insignificantly from the cost of acquiring shares (stakes));
• the amount of VAT on expenses directly related to the acquisition of shares (shares) .

Costs directly related to the acquisition of securities can also be taken into account in accounting not at their original cost, but as a lump sum as part of other expenses of the organization. The organization has the right to do so if the cost of acquiring securities (other than their value) deviates insignificantly from the amount of their acquisition. Expenses, the amount of which is recognized as insignificant, can be recognized as others in the reporting period in which the security was accepted for accounting, that is, capitalized on account 58-1 “Shares and shares”. This procedure is established by paragraph 11 PBU 19/02 and Instructions for the chart of accounts.

The opportunity to simultaneously take into account the cost of acquiring securities as part of the organization's other expenses, as well as the criteria for the materiality of expenses, reflect in the accounting policy of the organization for accounting purposes (clause and PBU 1/2008).

Do not include general business expenses in the initial cost of shares (shares) (except when they are directly related to the acquisition of financial investments) (paragraph 8, clause 9, PBU 19/02). If the shares (stakes) were purchased with borrowed funds, do not include interest on loans and borrowings in the initial cost either (paragraph 7, clause 9 of PBU 19/02 and clause 7 of PBU 15/2008).

BASIC: income tax

With any method of calculating income tax, the transaction for the acquisition of shares (shares) does not affect taxation until the moment of their disposal (for example, sale, transfer to a counterparty for goods (work, services)). Since the cost of acquired securities (property rights) is not reflected in expenses until they are disposed of. This procedure follows from subparagraph 7 of paragraph 7 of Article 272 - for shares (as securities) and from the Tax Code of the Russian Federation - for shares (as property rights).*

However, the cost at which the share (share) was acquired must be recorded in tax accounting (for example, in tax accounting registers). This procedure follows from the Tax Code of the Russian Federation.

The cost of acquiring shares (stakes) purchased from Russian organizations is determined according to the tax records of the transferring party as of the date of transfer of ownership. At the same time, both the value of the shares (shares) themselves and the additional costs associated with the purchase are taken into account. This procedure follows from Article 277 of the Tax Code of the Russian Federation *.

If shares (shares) are bought from citizens, then the acquisition cost is determined as the smallest of two values:

• or as the amount of documented expenses of a citizen for their acquisition;
• or as the market value of shares (shares) confirmed by an independent appraiser.

BASIC: VAT

Operations for the sale of shares (shares) are not subject to VAT, regardless of who the seller is: an organization or a citizen (subclause 12, clause 2, article 149, Tax Code of the Russian Federation). Therefore, when acquiring shares (shares), the organization does not have the right to deduct this tax. Since there is no actual amount of input tax presented by the seller * (clause and article 171 of the Tax Code of the Russian Federation). For more information on what to do if the seller has issued an invoice to the buyer with the allocated tax amount, see When "input" VAT can be deducted.

Input VAT on expenses directly related to the acquisition of shares or shares (for example, consulting, intermediary services) should not be deducted. This is due to the fact that the operations for which they were made are not subject to VAT (subclause 12, clause 2, article 149, clause 1, article 146 of the Tax Code of the Russian Federation). Include the amount of tax in the cost of purchased works and services. This procedure follows from paragraph 2 of Article 170 of the Tax Code of the Russian Federation.

The organization has the right to independently dispose of its property, including such assets as shares and shares of other organizations (paragraph , article 209 of the Civil Code of the Russian Federation). These financial investments the organization, in particular, can*:
- sell;
- transfer as payment for goods (works, services);
- to give away free of charge;
– to invest in the authorized (share) capital of other organizations.

In accounting for the disposal of shares (shares) in the income of the organization, include *:
- proceeds from the sale (for example, provided for by the contract of sale, exchange).

Do this at the time of transfer of ownership of the financial investment to the counterparty;
– the amount of the reserve for depreciation of retired shares (stakes) not traded on the organized securities market (if it was created). Do this at the end of the reporting period in which the unquoted shares or shares are retired.

This procedure is established by paragraphs and PBU 19/02, as well as paragraphs and PBU 9/99.

Expenses associated with the disposal of shares (shares), take into account at the time of transfer of ownership of the financial investment to the counterparty. Include in expenses:
- the cost of acquiring retired shares (stakes);
– other costs associated with the disposal (for example, payment for the services of an intermediary, depositary, bank, etc.).

This procedure is established by paragraphs, and PBU 19/02, as well as paragraphs and 17-19 PBU 10/99.

At the same time, determine the costs in the form of the cost of acquiring retiring financial investments, depending on what is retiring:
– a share traded (quoted) or not traded (not quoted) on the organized securities market;
- share.

Determine the value of listed shares taking into account the latest revaluation carried out by the organization based on the market value.

Determine the value of unlisted shares in one of the following ways:
– at the initial cost of the retiring unit;
- at the average initial cost;
- at the initial cost of the first in time acquisition of financial investments (FIFO method).

Determine the cost of disposal of the share based on the initial cost of its acquisition*.

Reflect the chosen method of evaluating a particular financial investment in the accounting policy of the organization for accounting purposes.

And, Art. 9 of the Law of December 6, 2011 No. 402-FZ). For example, it may be an act of acceptance and transfer of shares (shares), providing for all the required details, in accordance with Part 2 of Article 9 of the Law of December 6, 2011 No. 402-FZ. For an example of filling out an act, see How to reflect in accounting and taxation the acquisition of shares (shares) of other organizations *.

Taxes: realization of a share

If the company sells a share in the authorized capital Russian organization acquired on or after January 1, 2011 and held continuously for more than five years, a 0 percent rate is applied to the tax base ().

The sale of shares in the authorized capital of other organizations is not subject to VAT (subclause 12, clause 2, article 149 of the Tax Code of the Russian Federation).

Oleg Khoroshiy, State Adviser of the Tax Service of the Russian Federation, III rank

The concept of the implementation of property rights

The tax legislation does not clearly define what relates to the realization of property rights. The Tax Code of the Russian Federation defines only the sale of goods, works, services. At the same time, property rights do not fall under this concept ().

However, the Civil Code of the Russian Federation defines a property right as an object of civil circulation (Art. , Civil Code of the Russian Federation). That is, citizens and organizations can alienate, exchange, acquire it. Therefore, we can conclude that the alienation (for a fee or free of charge) of property rights for the purposes of taxation of profits will be recognized as a realization.

In particular, the following can be attributed to the realization of property rights*:

• assignment of the right to claim (cession) (paragraph 3, subparagraph 2.1, paragraph 1, article 268 of the Tax Code of the Russian Federation); Civil Code of the Russian Federation), etc. *

  When realizing property rights (shares, shares), the proceeds from the sale can be reduced by the following expenses*:

  • the cost of acquiring property rights (shares, shares);
  • costs associated with the acquisition and sale of property rights (shares, shares) (for example, when selling a share in the authorized capital, the cost of sending notices of the sale of a share can be included in the costs).

  Such a list of expenses is established by subparagraph 2.1 of paragraph 1 of Article 268 of the Tax Code of the Russian Federation.

  If the cost of acquiring property rights (shares, shares), taking into account the costs of their sale, exceeds the proceeds received, the difference is recognized as a loss that the organization can take into account when calculating income tax (subclause 2.1 clause 1, clause 2 article 268 of the Tax Code of the Russian Federation) .

  Situation: What documents can confirm the cost of acquiring a share in the authorized capital (share)

  The Tax Code of the Russian Federation does not clearly define how to confirm the costs associated with the acquisition of property rights in the form of a share in the authorized capital (share).

  Representatives of the tax service believe that the confirmation of expenses are documents establishing the amount of funds that the organization spent on acquiring a share (share). In particular, these may be*:

  • agreement (constituent);
  • payment documents;
  • a notice sent to the company and the participants of the company, which informs about the price and conditions for the sale of a share to a third party;
  • other documents.

  Such clarifications are contained in the letter of the Federal Tax Service of Russia for Moscow dated December 15, 2005 No. 20-12 / 93067.

  Elena Popova, State Adviser of the Tax Service of the Russian Federation, 1st rank

The purchase and sale of an LLC share in the authorized capital is one of the most complex transactions considered in modern civil turnover. Both the law and the provisions of the charter of the company regulate the procedure for concluding such transactions. Operating for today legal regulations give the founders the opportunity to introduce into the charter restrictions on the sale of shares for third parties, in addition, special conditions upon notification of a transaction to be effected.

Alienation of a share in an LLC

The process of transferring a share to a third party is possible only after obtaining the consent of all LLC participants who have priority rights to buy out the company's share. Therefore, the founder must first of all notify his partners about the sale of the share and obtain from each of them the appropriate permission. The law allows these procedures to be carried out in any form (written or oral), however, in order to avoid possible risks of challenging the concluded share purchase agreement, it is better to send written notices to all participants and the limited liability company itself. According to general rule, the founders of the LLC must provide a response within a month after they receive a written notification. If this is not sent, it means that they consider that consent to the transaction has been received. The charter of the organization may contain other deadlines for the implementation of these actions.

In the event of a refusal, the sale of a share in an LLC must be carried out to any participant who has expressed a desire to acquire it, or to the company itself. The latter option implies the distribution of the share on general meeting between the other founders within the period specified by law. In this case, it should be taken into account that the founder can sell only that part of the share for which payment has been made, with an incomplete contribution, only the paid part is subject to sale.

Sale of a share in the authorized capital of LLC

It should be borne in mind that contracts for purchase and sale transactions must be notarized. Note that the same rules apply. Of course, with this procedure, the execution of such transactions is much more complicated, but this provides quite effective protection against raider seizure of the business.

Sale of a share in the authorized capital of an LLC: notarization of the transaction

To certify the contract for the sale of a share at a notary, the parties must provide passports, an extract from the state unified register of legal entities, the registration number and TIN of the company, the consent of the spouses (if their personal presence is impossible). In addition to those listed, you will need documents that confirm the fact of payment of a share or part, an agreement, documents showing that the procedure for notifying the founders was carried out. And finally, you will need a receipt for and a completed application on form P14001 about

All submitted documents are checked by a notary, and if there are no errors in the paperwork, he certifies the contract. The parties are given two copies with an acknowledgment inscription. Within three days after the conclusion of the transaction, the notary submits documents to the tax authorities for changes in the Unified State Register of Legal Entities. Five days after the signing of the contract, a company representative can receive a certificate from the Federal Tax Service Inspectorate.

It is worth saying that if the sale of a share in the authorized capital of an LLC was carried out between the founders, then all of the listed documents will be required, and the application P14001 will also have to be certified by a notary.