Sale of a share in the authorized capital of an LLC: registration of a transaction. Situation: What documents can confirm the cost of acquiring a share in the authorized capital (share)

Sale of a share in authorized capital OOO — a popular option for the alienation of part of the company. What is the essence of such an action? It is known that the authorized capital of a company is divided into how many shares, each of which is owned by a certain founder or the company itself. The owner of a part of the company has the right to dispose of the property at his own discretion. In this case, one of the options is the sale of a share. How to do it right? What options exist? What algorithm is recommended to follow in order to avoid mistakes?

Ways to sell the right to a share in an LLC

Today, there are several ways to sell your part to the company:

• Do the work yourself, using the information in the article. Following the suggested steps, you can make a deal share purchase and sale authorized capital OOO, while saving money. Despite the small costs, you will have to spend a lot of time preparing papers and visiting numerous instances.
• Use the help of special services that ensure the legal conduct of the transaction and guarantee its purity. In this case, the preparation of papers takes a minimum of time, which allows you to accurately complete the sale and go about your business. All that remains in this case is to send the finished documents to the relevant authorities.

How is a share in an LLC assessed?

The sale of a company's share requires at least an approximate knowledge of its value. To assess the property, it is not necessary to appoint an expensive appraiser - it is enough to understand how the value of a part of the company is formed. The calculation requires information on the price of net assets and the amount of capital of the LLC. Next, the second parameter is subtracted from the first, after which the total amount is multiplied by the percentage of the share. The result is the value of the marketable portion of the company.

For a better understanding, let's look at an example. At the time of registration, the authorized capital of the company was 100,000 rubles, and each of the founders paid 50,000. In this situation, the share of each owner is 50%. At the time of the decision to sell the existing share, the amount of net assets is one million rubles. This means that the cost of the share is 450,000 rubles.

Focusing on the calculated indicator, you can set the price and sell the share. It's important to know that market price will not always be equal to the calculated one. To calculate it, one cannot do without professional assessment, which takes into account many factors that affect the price of a share in a company.

The founders of the company have the primary right to buy a share or part of it at the price that was offered to a third party or at the price specified in the charter of the LLC (taking into account the shares in hand). It turns out that the sale of a part of the company to a third party is real, but the founders have the right to "intercept" the transaction and take advantage of the priority right to acquire, but at a price that is prescribed in the charter.

Calculating the value of a share in a company is required to solve another problem - determining the amount of taxes that the seller must pay after the transaction is completed. Much here depends on the category of the subject of the transaction - whether it is an individual or a legal entity.

If an ordinary citizen acts as a seller, he must pay NDFD, the amount of which is equal to 13% of the profit received from the transaction. This tax rate is relevant for residents of the country, and for its non-residents, the percentage will be higher - 30%. Moreover, if an individual owns a share for more than five years and decides to sell it, you will not have to pay tax at all. A similar condition applies to cases where the share of an LLC is sold at a nominal price.

It is legally stipulated that the founders of a company can be legal entities or ordinary citizens. As for individual entrepreneurs, they cannot perform such a function, because their status differs from the first and second categories of subjects. Individual entrepreneur will pay tax, like an ordinary individual, in the amount of 13 or 30 percent, respectively.

As for legal entities, slightly different rules apply for them when selling a share in a company. Such participants pay taxes taking into account the applicable taxation scheme. If the value of the share being sold is equal to the contribution to the authorized capital, there is no need to pay income tax.

After taking into account the nuances discussed above, you can proceed to the sale of a share in the organization. But before considering the instructions, it is worth considering the nuances of the priority right to buy out a share.

What is the pre-emptive right to buy a part in a company?

​Before selling its share in the company's management company to a third party, the founder must offer to purchase a share to partners (other participants in the LLC). This condition is typical for cases where such an obligation is stipulated in the company's charter. In fact, this is the pre-emptive right that protects the interests of the already existing founders of the company.

It is worth highlighting here important point. Many believe that the sale of a share requires the consent of other founders. This is not true. This rule is relevant for situations where there is a corresponding entry in the charter. On the other hand, even in the absence of such an option in the charter, the seller must offer a share to all founders, and only after they refuse to try to sell it to a third party. It is impossible to deprive other participants of the right of priority redemption, because this can lead to the cancellation of the transaction.

The sale of a share, taking into account the priority right to purchase, takes place subject to the conditions prescribed in Article 21 of the Federal Law on LLC. Based on the text of the Federal Law, the following procedure must be observed:

• The founder, who plans to sell a share in an LLC, sends a letter of offer to the director of the enterprise, where he proposes to acquire a part of the company. The value of the share must be determined taking into account the information specified in the articles of association or the nominal price. By the way, the value of the share is prescribed in the charter as a certain figure, or the method of calculation is indicated. Such a requirement is connected with the fact that to exclude unjustified overpricing when selling a share in the authorized capital in order to receive a refusal from the founders.
• The participants in the company who received the offer must study the terms of the transaction and agree to purchase a share within one month (unless another period is specified in the charter). If the founder refuses the transaction, he must issue this statement, followed by registration with a notary. The second option is also possible, when the participant simply ignores the offer and does not respond to it. If the owners have renounced the share, this right is given to the company, which has seven days at its disposal.
• If, within the period specified by law, the LLC and its founders did not reveal a desire to become owners of a “free” share for a certain amount, it becomes possible to sell to a third party that is not related to the company.

If the pre-emptive right procedure was violated, and the owner of a part of the LLC sold it directly to a third party, the founders have three months from the date of the sale to file a claim and submit it to the judicial authorities. In order for the court to start considering the case, an amount equal to the value of the company's share will have to be transferred to its deposit.

The pre-emptive right does not apply to gift or inheritance transactions. This is used by the founders who want to sell their shares to a third party in a short time. They make a sham deal - donating part of the LLC without official confirmation of payment. Based on the practice of litigation, it is extremely difficult to prove the fact of the "pretense" of the transaction.

How is a sale out of preemption made?

Sometimes there are situations when it was not possible to sell part of the LLC within the framework of the pre-emptive right. In this case, the founder has the opportunity to sell existing assets to third parties. But here, too, there is an exception. The charters of many companies prescribe a ban on such transactions, and then the share must be redeemed by the LLC.

The law on companies stipulates that the price of a part of the authorized capital when sold to a third party should not be lower than the price that was announced for the rest of the founders of the company. If the transaction for the purchase of a share in an LLC by a third party nevertheless took place, the latter becomes a full member of the company.

What you need to know about the company's obligation to buy back shares?

It was noted above that in certain situations the company assumes the obligation to buy out the share within the scope of the pre-emptive right. This is true for cases where there is a corresponding entry in the charter. At the same time, Federal Law No. 14 (Article 23) clearly spells out situations when a company must make such a buyout:

• All founders received an offer to buy a share, but waived their right. At the same time, the charter prohibits the sale of property to third parties.
• According to the charter of the enterprise, the consent of the founders is required for the implementation of such a transaction, but they do not provide it.
• The general meeting decided to increase the management company of LLC or make a major deal, but one of the founders voted against the deal. Here he demands to redeem his share.

In addition to the situations mentioned above, there are cases that cannot be called the sale of a share. In particular, compensation of the real price is implied, but not in the course of the sale. Such situations take place when the founder leaves the company, in case of his exclusion or refusal to accept the recipient of the inheritance into the company.

Registration of the sale of a share - step by step instructions

With the introduction of changes in the legislation, the process of buying a part of an LLC was complicated by the following points - the contract for the sale of a share in the authorized capital of an LLC, as well as the offer, must be certified by a notary. Despite this shortcoming, the procedure for selling part of the company itself is transparent and looks like this:

1. Step #1. If the charter of the LLC requires obtaining consent from other founders to sell a share in the company, the seller must issue a written request and send it to the head. Within 30 days from the date of receipt of the request, the founders must give their answer.
2. Step #2. If the charter of the LLC does not require the mandatory consent of the founders or when they have given their approval, the seller sends a notarized offer to the address of the company. Despite the fact that Federal Law No. 21 stipulates the obligation to notify participants, this does not mean that all of them must receive papers certified by a notary. The offer is considered received by the founders when it came to the director of the LLC. That is why the proposal can be issued in one copy. In a situation where the seller changes his mind, he has the right to withdraw the offer. This can be done before it is received by the director or after that, but with the consent of the founders of the LLC.
3. Step #3. The response of the owners of the company must be given within a month from the date of receipt of the proposal. The role of refusal can be ordinary silence or a notarized answer. If part of the company could not be sold within the preemptive right, the share can be sold to a third party.
4. Step number 4. A sale and purchase transaction is formalized by an agreement, and the participants in the transaction are the selling and buying parties. The document must be certified by a notary public for any part of the transaction.
5. Step number 5. To carry out a sale and purchase operation, a notary must receive a number of documents. Among them are an agreement, an application (form P14001), a list of LLC owners, the consent of the seller's husband / wife. The consent of the seller's spouse, a paper confirming the payment of the share, as well as confirmation of the transfer of funds by the buyer of the value of the part of the company are required. If a third party acts as a buyer, the seller must have the founders' refusal to use their preemptive right.
6. Step number 6. The notary body sends an application to the Federal Tax Service in the form P14001 after the document is certified with its signature. This person receives tax service an extract from the Unified State Register of Legal Entities with the changed data on the founders, as well as registration of changes with subsequent sending to the address of the management. If the company needs paper documents, you need to contact the Federal Tax Service on your own.

At the final step, the LLC updates the list of participants, indicates the new sizes of the parts, accounting entries, the bank and counterparties are notified.

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 written form. 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 state registration. In the case of the purchase and sale of the entire share of a participant in the company, complete replacement participant, 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 - the new participant draw up documents to certify 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 is applicable after registration new edition of the Charter or its appendix, where the ban on the entry of new persons into 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 without fail should be sold to a third party. 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.

The sale of a share in the authorized capital of an LLC is 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.

The issue of selling a share of the authorized capital became relevant after some changes in the legislation. Often difficulties arise precisely because of ignorance of the laws. How to formalize the sale of a share of the authorized capital in 2019?

When an organization is formed, the authorized capital is formed. Its shares are distributed among the participants in proportion to the amount of the contribution made.

At the same time, each founder is free to dispose of his share at his own discretion - to donate, assign or sell.

And if a donation or assignment simply involves a change of participant, then the sale of a share is accompanied by certain features design. How is the sale of a share of the authorized capital registered in 2019?

General information

A participant in an LLC who wishes to sell his share must first offer to buy out his part to other founders, unless he is the only participant.

If there is one participant, a decision is drawn up on the sale of a share in the authorized capital of the LLC. Participants have a pre-emptive right to acquire a share.

If it is stipulated by the charter, then the company may also have such a right. The participant states his intention to sell the share in an offer submitted to the director of the LLC.

Within a thirty-day period, unless otherwise specified, consent to the purchase of a share must be expressed. In the absence of acceptance within the prescribed period, the right to preferential redemption by the participants is lost.

By general rules the founders redeem the share of another participant in proportion to their own shares. But statutory provisions can also predetermine the possibility of uneven distribution.

If some participants refuse to purchase, the rest of the founders retain the right of first refusal. In this case, the share may be sold in parts, the remaining part of the share may be sold to a third party.

When selling on the basis of a pre-emptive right, the value of a share corresponds to its nominal value or another amount determined by the charter.

Such a rule does not allow a participant to request too much high price, thus violating the right of participants to a preferential buyout.

If the LLC participants refused to buy a share, then it can be sold to another person or participant, but without the right of first refusal.

The price in this case is determined by the seller himself, but it cannot be lower than the nominal value specified in the charter.

What it is

The authorized capital is the property that the founders of the LLC endow the company with in order to carry out activities in order to achieve certain tasks.

Also, the authorized capital is the minimum amount of property that guarantees interests. There is no specific definition of what exactly is meant by property.

Participants can contribute their share in money, fixed assets, goods, materials. In order to avoid disagreements, all types of property are reduced to a single equivalent.

The value of the contribution is valued in monetary terms, which is the value of the share. The authorized capital of the organization is divided into shares according to the number of participants. The share in the authorized capital is the part of the net assets that the participant can claim.

Also, the concept of a share determines the number of votes that participants have at a general meeting of founders. The size of the share is expressed as a percentage or fractional ratio of one hundred percent of the total capital.

It is the size of the share that determines the amount of dividends received by the participant from the profits of the LLC. The owner of a share of the authorized capital is free to dispose of it within the limits determined by law or the charter.

According to this legal act LLC is recognized as a business company created by one or more participants, and the authorized capital of which is divided into shares.

In addition, the method is distinguished by its simplicity, the absence of the need to obtain consent from the spouse and verify the legality of owning shares.

Contract of sale

The essential terms of the contract are the subject of the transaction and the price. The cost of a share can be determined as nominal or market value, but not lower than the nominal value. At the same time, the size and value of the share should not differ from those declared to the participants of the company.

At the same time, an individual does not have the right to a property deduction, since it is not property that is being realized, but a property right.

However, the amount of taxable income may be reduced by the amount of confirmed actual expenses incurred in obtaining income.

That is, in fact, a certain is possible. Confirmation of it is provided by documents certifying expenses. You need to indicate expenses when filling out 3-NDFL.

To fill out the form, you will need a certain list of documents. There are many subtleties in filling, depending on specific situation.

In addition, the form has changed somewhat. To avoid mistakes, you can fill out the 3-NDFL declaration for 2019 online. You can fill out the form correctly using the Tax Return 2019 program.

Reflection of accounting entries

The display of the sale of a share in accounting depends on the type of transaction. In particular, the following lines are used:

The seller is a legal entity. In his accounting, he makes postings:

The buyer-legal entity makes records for itself:

The buyer is society. Wiring:

For an LLC, the sale of a share to participants or third parties is recorded by analytical records on the change of a participant:

Dt80 Kt80

Possibility to terminate the contract

The sold share of the authorized capital is transferred to the acquirer from the moment of notarization of the transaction. In this case, a situation may arise when the buyer does not pay the due amount.

In this case, it is possible to terminate the agreement on the basis of a violation by the counterparty of the agreement, or extending to the sale of an LLC share with a deferred payment.

But when the contract of sale is terminated voluntarily or by a court decision, the parties are not entitled to demand the return of obligations performed before the termination of the contract. That is, the seller cannot claim back his share.

If the court recognizes a material breach of the terms of the contract, the seller may recover money from the buyer to pay for the share and compensate for losses incurred as a result of termination of the contract.

In order to avoid non-return of the share, it is necessary to provide at the stage of concluding the contract the conditions under which the share must be returned in the absence of payment.

It is also possible to provide for the full payment of the share at the time of signing the contract or the retention of ownership by the seller until the moment of full payment.

Changes in 2019 slightly changed the process of selling a share of the authorized capital. The most important change is the necessary notarization of all stages of the transaction.

Nevertheless, all possible nuances should be taken into account. This will help to avoid the loss of a share or the emergence of claims from the tax authorities.

In what cases is it possible to sell a share in an LLC? How is such a transaction formalized correctly, what federal law regulates it, and what is included in the package of documents required for the sale and purchase of a share in an LLC? We will talk about this in our article.

Transactions such as the purchase and sale of a share in an LLC are quite common in the business world, due to a change in the size of the share, the addition or withdrawal of LLC participants. The parties to the transaction for the sale and purchase of a share in an LLC are: current participants, a third party (future participant) and the LLC itself. Let us consider in more detail the main reasons for the purchase and sale of a share in an LLC:

1. Joining an LLC. Assumes the possibility for a third party to become a member of an LLC by acquiring a share from the Company itself (in the absence of restrictions on the unallocated share of the withdrawing member) or from one of the existing members. Depending on who is the Seller and the Buyer, registration of the share is carried out by concluding an agreement in a simple written form or notary public. Also, the introduction of a new member into the LLC is possible through an increase in the authorized capital of the LLC by means of funds or property received from a new member of the Company.
2. Leaving the LLC. Each member of the Company has the right to withdraw from the organization with the receipt of the desired income from the sale of his share to a third party, directly to the Company or its member. Depending on who becomes the Buyer of the share of the participant who wants to withdraw from the LLC, the option of registering the purchase and sale of the share is applied. In the event that a member of the Society wishes to withdraw from its membership without compensation, he has the right to do this without the consent of other members by writing an application on his own behalf. Voluntary withdrawal from an LLC implies further receipt of compensation in an amount equal to the real value of the LLC's share. In practice, it is believed that this way of exiting an LLC is the least time-consuming.
3. Replacing one LLC member with another. This method involves registration of the sale and purchase of a share of a member of the Company with a third party. Such a transaction must be concluded in a notarial form and is under the strict control of a notary. One of the most best options for a simple replacement of one participant in an LLC with another, a new participant is entered through an increase in the authorized capital of the Company, and the exit of the former participant is carried out through an application.
4. Change in the size of the participant's share in the LLC. Each member of the Company has the right to change the size of its share by repurchasing a share or part of a share from another member of the LLC or directly from the Company itself. Also, an increase in the size of a participant's share can be made through an increase in the authorized capital and the subsequent buyout of a share equal to the amount by which the authorized capital was increased.

Alienation of an LLC share: options for buying and selling a share

Regardless of who is a party to the agreement for the sale and purchase of a share in an LLC by using the authorized capital, the Law "On Limited Liability Companies" FZ-No. 14, clause 11, Art. 21 requires mandatory certification of such transactions by a notary.

Transactions for the sale and purchase of a share in an LLC may provide for several options for changing participants. Let's take a closer look at each of them.

1. Purchase and sale of a share between LLC participants. Each member of the Company has the right to sell his share (or part of it) to one or more members of the LLC. This transaction does not require the consent of other participants. In cases where the Charter of the organization contains a restriction in the form of a requirement for consent to the sale and purchase of a share of other participants, the latter must provide their consent or refusal in writing no later than 30 days. On the basis of the decisions of other members of the Company submitted to the General Director, the necessary documents and a contract for the sale of a share in an LLC are drawn up in a simple written form. At the notary, the presence of only the Seller of the share is sufficient.

The buyer of a share in an LLC becomes its full owner after state registration.

2. Purchase and sale of a share in an LLC between a member of the Company and a third party. This option for registering the purchase and sale of a share in an LLC is possible if there are refusals from other members of the Company and there are no restrictions on the sale of a share through the authorized capital to third parties. The seller of a share and its acquirer, having received at their disposal all the necessary documents from other participants in the LLC, must certify them in the presence of a notary.

It is important to note that a transaction for the sale and purchase of a share in an LLC between a member of the Company and a third party requires the consent of the spouses to complete it. The personal presence of the spouses at the notary at the time of the transaction is allowed, or such consent must be provided in a written, notarized form.

The buyer of a share in an LLC becomes its full owner from the moment of certification by a notary, who, in turn, must transfer all received documents to the registration authority. And only after registration of changes in the register of legal entities, the acquirer of the share becomes a full member of the LLC, and the Seller, in turn, receives funds from the Buyer.

In cases where a share in the Company is redeemed in in full, the seller member is obliged to withdraw from the LLC without further claims.

3. Purchase and sale of a share in an LLC between a participant and the Company itself. A limited liability company has the right to redeem a participant's share in the following cases:

• if there is a prohibition in the Charter of the organization to sell shares to third parties;
• in the absence of the consent of other participants in the LLC to sell the share to third parties and their desire to purchase one from the seller participant.

In accordance with the Federal Law, the Company is obliged to purchase the share of a participant leaving the LLC voluntarily upon a written application. In this case, the share purchase and sale agreement is not notarized, and the registration of the transaction must be completed within 1 month. The share redeemed by the Company may be distributed among other participants and third parties (unless it is limited by the charter of the organization) within 12 months. As practice shows, there is also an opposite situation, when the LLC itself offers the buyout of a share not to all participants in the Company. In such cases, the share purchase and sale agreement does not require notarization, the registration period is 7 days. The Society itself, represented by its leader, acts as the applicant.

Important! Based on Federal Law 312 “On Limited Liability Companies”, if not a single participant remains in the LLC, withdrawal from it is not allowed.

4. Purchase and sale of an LLC share between a third party and the Company directly. This version of the transaction is possible in cases where the share of the LLC is not redistributed among the members of the Company within 1 year, and it becomes necessary to sell it to third parties. Registration of the purchase and sale of a share of an LLC is carried out by concluding an agreement in a simple written form without certification by a notary. The Seller is the Company represented by the General Director, the Buyer is a third party, as a future member of the LLC. If the Charter of the organization provides for the consent of other participants to the sale of shares, they must be provided in writing.

If the Charter of the organization contains a restriction on the sale of a share of an LLC to third parties, it must be re-registered already with the changes made.

Purchase and sale of a share in an LLC: main stages

Registration of a transaction for the sale and purchase of a share in an LLC involves several main stages:

1. Preparation of the necessary package of documents and their certification by a notary.
2. Notarial certification of the contract and application for state registration.
3. State registration and making appropriate changes to the Unified State Register of Legal Entities (EGRLE).
4. Obtaining documents on state registration.

The contract for the sale of a share in an LLC must include:

• subject of the agreement (information about the LLC and the share of the participant in the Company);
• conditions and procedure for execution of a share purchase and sale transaction;
• the value of the share in a certain monetary equivalent;
• the consequences of the execution of a purchase and sale transaction for the buyer and seller;
• additional conditions.

The package of documents required for registration of the purchase and sale of a share in an LLC includes:

• the Articles of Association of the Company in a new edition, as amended with regard to the change in the composition of participants;
• agreement for the sale of a share of an LLC;
• a photocopy of the certificate of state registration of the LLC;
• a photocopy of the certificate of registration with the tax authority;
• notification of the Company and all participants of the LLC about the sale of a share (in cases where the participant is not the only one);
• a written refusal or consent of other participants of the LLC for the purchase and sale of a share;
• a written decision to sell its share in the LLC;
• a document confirming the fact of the formation of the authorized capital;
• extract from the Unified State Register of Legal Entities, which is valid for no more than 10 days;
• written consent of one of the spouses (if necessary);
• a document confirming the legal acquisition of a share in the LLC (notarized contract of sale, certificate of inheritance, application and protocol on admission to the Company);
• a document confirming the payment of the LLC share (bank payment order, bank statement, etc.) is provided in case of payment in cash;
• a document confirming the increase in the authorized capital by property (balance statement, property valuation act and act of acceptance and transfer of property to the organization's balance sheet).

State registration of a contract for the sale and purchase of a share in an LLC

To alienate a share in an LLC and register changes in tax office must submit an application in the prescribed form. Registration of purchase and sale of a share is carried out on the basis of an agreement signed in 2 copies. The applicant is the seller - a member of the LLC. If the Seller is a legal entity, it is allowed to participate as an applicant by a representative of the head of the organization by proxy. In the event that several participants act as Sellers at once, there must be the same number of applicants, and the sales contract may include attachments in the amount equal number participants in the transaction. Upon completion of the transaction at the notary, the latter must submit an application form to the tax registration authority within 3 days. Within 5 working days, documents can be received both personally by the applicant and by an official authorized representative. In cases where the documents are sent by a notary by post, a certificate of making the corresponding entry in the Unified State Register of Legal Entities, together with an extract, will be sent to the legal address of the LLC in which the share was sold.

When opening an enterprise, the founders invest their property in it in order to achieve their goals and make a profit from economic activity. Participants in an LLC can contribute their shares to create an authorized capital (UK) with fixed assets, materials, goods, and money. Thus, initially the number of shares corresponds to the number of participants. The size of the share in monetary terms determines how many votes the participant will be given, how much profit he will receive in the end.

The participant, who is also the owner of the share, has the right to dispose of the share at his own discretion, but within the limits determined by the charter of the enterprise and the law. Wishing to withdraw from the company at any time, the participant has the right to sell his share. He can also sell his share of the UK in part, while remaining a member of the LLC.

Other participants and the company itself have the priority right to acquire a share of the authorized capital (DUK), if such is provided for by the charter. If they refuse, the participant may sell his share to any person or other participant, but without a pre-emptive right. Other participants cannot prevent a participant from leaving the company and selling his share in full (in parts).

Often, a participant, leaving an LLC, does not assume that the sale of a share of the authorized capital is subject to personal income tax. full size, because alienating his property or invested money, he actually receives income. In this case, the participant must still file for the period (calendar year) in which the income was received.

If the declaration is submitted before the end of April of the year following the reporting year, then the income tax is paid before July 15. But in this case, there are nuances. If an LLC pays a participant the cost of his alienated share, and he sells it to other participants in the company or to the LLC itself, then the company is not a tax agent.

This means that the LLC should not accrue, withhold and pay income, this is done by the participant who received the income. If a participant withdraws from the company and fills out an application that he transfers his share to the LLC, then he receives income in the form of the value of the DUK. In this case, the LLC becomes a tax agent, accrues, withholds and pays personal income tax on the full amount paid as income to the participant.

Central conditions

The occurrence of the taxpayer's obligation to pay personal income tax arises under certain circumstances.

What does the law say

Law on LLC No. 14 (08.02.98) regulates the provisions regarding the Criminal Code. The right of a participant (owner of the DUK) to sell it or alienate it in favor of other persons is enshrined in Art. 21. In 2019, on December 29, the legislator by Law No. 391 established new order in relation to the sale, transfer of the DUK, it entered into force from the beginning of 2019. The share becomes the property of the new owner only after an entry is made in the Unified State Register of Legal Entities.

The exemption from taxation of income received from the sale of the DUK is stated in the Tax Code, Art. 217, paragraph 17, part 2. The provision applies to Russian organizations and provided that by the time the DUK was sold, it belonged to the taxpayer for more than 5 years on property rights or property. At the same time, the taxpayer had to purchase it from the beginning of 2011 and over the subsequent period.

The Ministry of Finance emphasizes that in order to receive a benefit, the DUK must be obtained on the basis of a sales contract. If a participant was accepted into an LLC and presented to him with a part of the share of the Criminal Code or in full, then he cannot be exempted from paying income, despite the fact that he became the owner in 2011 or during subsequent years.

According to the Tax Code, art. 220, paragraph 2, when a participant sells a share that he has owned for less than 5 years, then he has the right to reduce the income from the sale for the costs that were associated with its acquisition.

Notarization

It is not required to certify transactions on the alienation of the DUK in accordance with the LLC Law by a notary when:

In the above cases, it is enough to make changes to the Unified State Register of Legal Entities so that the share passes to the new owner. When certifying the contract, the notary is obliged on the basis of Art. 21 (p. 13) check the powers of the person who alienates the share.

The authority to dispose of the DUK can be confirmed:

• a notarized contract for the purchase of a DUK earlier;
• an extract from the Unified State Register of Legal Entities, which contains information that the person owns the DUK in such and such an amount.

If the notary certifies the transaction for the alienation of the share, then he submits an application to the territorial branch of the National Assembly for changes to be made to the Unified State Register of Legal Entities. The application to the notary must be submitted to in electronic format, assuring his .

The parties to the transaction can be different persons:

• If the seller of the DUK is a legal entity, the notary, before certifying the alienation agreement, will need to check whether the transaction is large. The second point to check is the interest of persons in it in accordance with Art. 45–46. The seller of the DUK is obliged to submit to the notary a certificate stating that the transaction amount is not more than 25% of the value of the entire property of the enterprise. If its value is more, then it is necessary to submit documents for approval, this may be a solution general meeting or board of directors. It is not required to submit documents for the approval of the transaction in the case when the charter provides for the conclusion of major transactions. If the LLC has one member, it cannot make a major transaction and sell more than 25% of the value of the authorized capital.
• If the implementer of the share of the Criminal Code, for example, in 2019 is a participant (individual), then he is obliged to provide the notary with the consent of the spouse to complete the transaction, as stated in the UK, Art. 35. The exception is situations where the share of the UK was previously acquired before marriage, passed by inheritance, belongs to the participant on the basis of separate ownership, which is indicated in the marriage contract.

The contract must be accompanied by a document confirming the payment of the DUK, which will be indicated in the alienation contract. After the transaction, the notary also sends copies of the documents to the LLC. In another case, one of the participants in the transaction can notify the company.

The moment of the emergence of law

According to the Civil Code, Art. 454 on the basis of a contract of sale, one party has an obligation to transfer something, and the other to take ownership. In Art. 48 states that the participants legal entity have obligations to him, property rights, in relation to his property, and non-property. The DUK provides a set of rights to its participants.

A participant may exercise property rights on the basis of general provisions about buying and selling. From the moment the transaction is completed and the DUK is acquired, not only the rights, but also the obligations of the participant are transferred to the buyer.

In the LLC Law, art. 8 specifies the rights of participants, they can:

• manage the affairs of the LLC;
• get acquainted with the economic activity of the enterprise on the basis of various documentation;
• participate in the distribution of profits;
• sell or alienate your share in any way;
• withdraw from the membership of the LLC by alienating or selling a share to the company, if this provision is provided for by the charter;
• receive upon liquidation of the enterprise property (its value), which will remain after settlements with various creditors;
• others.

What is the peculiarity of the sale of a share of the authorized capital of personal income tax

According to some experts, the DUK represents property rights, not property. A participant is an individual who previously owned some money or property, but invested in the company's management company, after which he lost the ownership of these things. The property of the participant passed into the ownership of the LLC.

By managing the management company as an owner, an enterprise can increase or decrease the amount of capital, which the participants will learn about only from the results of the annual report. Therefore, when selling the DUK, the assignment of the rights of claim to the LLC or the realization of the property rights of the participant is actually made.

If during the period of economic activity the enterprise has developed dynamically, then the share of the UK in relation to the down payment will increase, which means that the amount of accrued income will be significant. The natural desire of the share seller is to reduce the amount of personal income tax.

According to the Tax Code, art. 220, para. 1, sub. 1, para. 2 the seller is entitled to property . But due to the fact that the share is recognized as property rights, expenses are allowed to be deducted from income. The tax authorities often argue with taxpayers on this issue, believing that the legislator has not clearly defined the list of expenses for deduction.

Tax authorities require that the deduction include expenses that are associated only with the acquisition of a share. But participants insist on the inclusion of expenses related to the development of the enterprise. For example, a participant could at one time refuse dividends when the annual profit was distributed and direct this amount to business development.

In another case, the participant received dividends, but after paying personal income tax, he again invested the rest of the funds in the enterprise for targeted needs. From the established practice, we can say that the tax will not allow deducting from the income the expenses incurred by the participant, investing money in the enterprise for business development.

step by step algorithm

Instructions for the transfer of ownership of the DUK within the enterprise may look like this:

1. The founder selling the share and the other participant (s) sign the contract of sale in the presence of a notary.
2. The procedure must take place in the presence of the general director of the LLC. He is obliged to certify with a seal and signature not only the contract, but also other accompanying documents.
3. Other participants who did not take part in the transaction are obliged to submit to the notary's office written waivers of their rights to preferential redemption before its conclusion.
4. The notary draws up an application according to f. Р14001, where it indicates all participants in the LLC and information regarding the share being sold. He needs to indicate that the property right to the share of the Criminal Code is terminated by one participant and appears by another.
5. The notary must submit an application to the National Assembly within 1-2 weeks from the moment the contract is concluded and certified.
6. The notary gives 3 copies of the agreement to the hands of the participants, one for the seller and the buyer of the share, one for storage in the archive of the LLC.

Important Notes

If the buyer refuses to pay after the execution of the contract for the cost of the share, then the agreement can be terminated on the basis of the Civil Code, Art. 450, because the counterparty violated the terms of the contract. In another case, a deferred payment is possible, if it is stipulated by the terms of the contract.

You can terminate the contract voluntarily or judicially. But in this case, if the obligations under the contract have already been fulfilled by the parties, they are not entitled to claim a refund. For example, the seller will not be able to return his share in the UK if it has already been paid for.

If the court recognizes a violation of the contract by one of the parties, for example, there was no payment on the part of the buyer, then the seller, by a court decision, can recover the cost of the share from the buyer and the losses incurred in connection with this.

To avoid misunderstandings, the terms of the contract should provide in advance how to return the share if the buyer does not pay it. It is best to demand full payment from the buyer by the time the contract is concluded.

Mechanism of action

The taxation of the transaction is carried out in several directions:

• A state duty is paid for notarial certification of the transaction for the sale of the DUK. To calculate its size, the value of the share under the agreement multiplied by 0.5% is taken. The amount of the fee for payment should not be less than 300 rubles. and more than 20 thousand rubles.
• VAT is not paid on the AMC received back by the participant, because in fact the property that he invested earlier is returned to him. This is stated in the Tax Code, Art. 149, paragraph 2, sub. 12. But the difference between the down payment and the actual value at the time of the return is subject to VAT. The tax authorities believe that there is a hidden sale, while arbitration courts make a distinction between the return of a share and a sale and purchase transaction. LLC is exempt from VAT if the other party to the transaction is an individual. If the transfer of the DUK occurs between legal entities on the basis of a sales contract, then VAT must be paid.
• If the implementer of the share and the participant of the LLC is a legal entity, then according to the Tax Code, Art. 249, paragraph 1, he has an object for taxation on profits. In the event that a share of the charter capital is sold, the value of which is equal to the previously made contribution to the charter capital, then income tax is not charged.
• If a resident individual is a member of an LLC, then the sale of a share in the authorized capital of personal income tax is calculated at a rate of 13%. Non-residents pay income tax at a rate of 30%. If the sale is carried out at face value, then income tax is not charged. If an entrepreneur is a participant in an LLC and the seller, then he pays taxes as an individual.

Declaration Overview

Regulations on filling out the declaration according to f. 3-NDFL for individuals is indicated in the Tax Code, Art. 209. It should be borne in mind that when calculating income, a certain deduction is required for the amount of expenses, if they are documented. These expenses must be included in the declaration and copies of supporting documents must be attached to it.

Depending on the specific situation, filling out the declaration has its own subtleties. Declaration obligation for 2019–2016 arises for individuals starting from 2009, if property was sold during these periods.

Related costs

Starting from 2019, the legislator has specified the costs that can be included in the deduction when selling the DUK.

It can be:

• cash and / or other property that was previously contributed to the Criminal Code when the LLC was established;
• costs associated with the purchase or increase of the AUC.

The Ministry of Finance believes that an individual can include in the category of expenses:

• interest on a loan, if it was taken to purchase a DUK;
• the value of the shares of an OJSC, if the company was subsequently reorganized into an LLC;
• the amount of the company's debt under a loan agreement, which was acquired by the participant on the basis of an assignment agreement;
• notarial services and commissions that the participant had to pay when buying a share.

Differences from leaving an LLC

The charter of the LLC may provide in advance that the participant is not allowed to alienate the DUK in favor of a third party. At the same time, other participants may waive their pre-emptive rights and not redeem the share. In this case, the LLC itself will have to buy the DUK from the participant. If a participant leaves the company, it is obliged to pay him a share in the Criminal Code with property or money.

An LLC can settle with a participant within a year from the moment the ownership of the DUK passes to it. It is necessary to determine the cost of the DUK on the basis of the reporting that was generated for the last calendar year (reporting period) preceding the moment the participant submitted an application to withdraw from the LLC.

In this case, calculating income tax individuals it is impossible to reduce the amount of income for expenses, even if they are documented, because there is no sale of DUK. The legal relationship between an LLC and a participant withdrawing from it cannot be considered as arising from a contract of sale.

Calculation and consequences

If an individual can document the expenses that are allowed to be deducted from income when calculating income, then it must be borne in mind that the maximum deduction amount can be 250 thousand rubles. The calculation of the tax is required to be done for a period of 12 months. If the amount of benefits (expenses) exceeds the income received by the participant from the sale of the DUK, then the base for calculating personal income tax is zero.

For LLCs that are under different taxation regimes, the consequences of the sale of the DUK will be different: