How can you pay for the authorized capital of a business company? Authorized capital (Authorized fund, Share capital) The minimum amount of authorized capital of business companies by law.
Any legal entity, in order to be considered as such and, as a result, have legal personality, must meet certain criteria (Article 48 of the Civil Code of the Russian Federation). The first sign established by the above article is that a legal entity has separate property under the right of ownership or other (limited) property right. Business societies (the most common type of commercial organizations today) have the property they own on the right of ownership (Clause 1, Article 66 of the Civil Code of the Russian Federation). Business companies can own any property (with the exceptions established by current legislation (clause 1 of Article 129 of the Civil Code of the Russian Federation). The main sources of formation of property of business companies are: contributions of founders when creating business companies (in relation to an LLC, additional contributions from company participants are possible into his property and in the course of the activities of the LLC) and the acquisition of property by a business company in the process of conducting business activities. Within the framework of this article, it is planned to consider the category of authorized capital as a source of formation of the company’s property, as well as its other functions and features.
By establishing an imperative requirement for all business entities to own separate property, the legislator, it seems, tried to create a situation in which commercial organizations acting in civil circulation on their own behalf and in their own interests can ensure the fulfillment of their obligations with the property they own. Those. potential creditors, knowing that they were dealing with an owner who necessarily had some assets (since the company was registered), could hope that, in the event of non-fulfillment or improper fulfillment of an obligation, the unscrupulous counterparty would have something to recover. To determine the minimum size of such property, the concept of authorized capital was introduced into legislation. Paragraph 4 paragraphs 1 art. 14 of the Federal Law of 02/08/1998 N 14-FZ “On Limited Liability Companies” (hereinafter referred to as the LLC Law) and para. 3 tbsp. 25 of the Federal Law of December 26, 1995 N 208-FZ “On Joint-Stock Companies” (hereinafter referred to as the JSC Law) states that “the authorized capital of the company determines the minimum amount of the company’s property that guarantees the interests of its creditors.” Since the very definition of authorized capital in the current legislation is absent both at the level of the Civil Code and at the level of special laws, we have to be content with indicating one of its functions (guarantee), which the legislator considered necessary to highlight. It turns out that the main purpose of the existence of authorized capital in business companies is to ensure the interests of its present and future creditors. Practice has shown the inconsistency of such a position. Today, the guarantee function of the authorized capital, in most cases, does not fulfill its purpose. Creditors of companies prefer other, more understandable and reliable methods of securing civil obligations (guarantee, bank guarantee, pledge, etc.). The current state of affairs is also facilitated, as mentioned above, by the absence in the current legislation of a single definition of authorized capital, which would indicate its main features and functions. In civil law and corporate doctrine, more or less detailed definitions of authorized capital* have been developed, which are proposed to be included in the Civil Code and other laws in order to at least partially remove the uncertainty and confusion in the understanding of this category. It should be noted that while emphasizing the guarantee function of the authorized capital, the legislator bypasses other, from our point of view, more important and in demand functions. We are talking about the so-called “distributive” function. Its essence lies in the fact that by participating in the formation of the authorized capital at the stage of creating a business company, the founders, depending on the amount of contributions, acquire different amounts of corporate rights, which significantly affects their further legal status as participants (shareholders) of the existing business company.
Another, quite important function of the authorized capital – financial security – is also being forgotten. It is assumed that when creating a business company, the founders do not contribute any (often illiquid and simply unnecessary) property, but something that the company needs to start activities and without which it simply cannot begin to achieve the goal for which it was created - making a profit . First of all, this is, of course, money. The Concept for the Development of Civil Legislation of the Russian Federation" (approved by the decision of the Council under the President of the Russian Federation for the codification and improvement of civil legislation dated 07.10.2009, hereinafter referred to as the Concept) proposes, along with a significant increase in the minimum amount of authorized capital, to establish the obligation to contribute a significant part of it in cash. This is only possible welcome the idea of monetary contributions from the founders. But even the Concept does not contain a definition of what exactly “authorized capital” is. In practice, this situation gives rise to certain difficulties. In a number of cases, in the understanding of entrepreneurs, authorized capital is identified with the property with the help of which it was formed. Questions arise about the possibility of spending funds and alienating such property.This state of affairs is also facilitated by the wording chosen by the legislator: the authorized capital of the company determines the minimum size (emphasis added by the author) of the company's property, guaranteeing the interests of its creditors. It is not very clear why the term “property size” is used. Usually the word “size” is used to define the physical characteristics of an object. In this case, it would be more appropriate to indicate that the authorized capital determines the minimum value (emphasis added by the author) of the company’s property, which guarantees the interests of its creditors.
Regarding other legislative initiatives related to the authorized capital and reflected in the Concept, I would like to note that the increase in the minimum authorized capital of business companies: for LLCs in the amount of at least 1 million rubles, and for joint-stock companies - in the amount of at least 2 million rubles . (clause 4.2.2. Concept) can strengthen the material support function of the authorized capital, but will have little effect on the guarantee function. The fact is that property contributed to the authorized capital (including cash) can be alienated by decision of the management bodies of the company for any purpose and at any time. At the same time, a company, at different periods of its existence, may have a total amount of obligations to creditors much greater than the size of its authorized capital (no matter how large it may be). And new creditors, not being able to obtain such information, cannot rely on the size of the authorized capital as an indicator indicating the solvency of the counterparty. To level out such a situation, the legislation provides for a requirement for the mandatory excess of the value of the net assets of a business company over its authorized capital (clause 6 of article 35 of the Law on JSC, clause 4 of article 30 of the Law on LLC). But these indicators of net assets are calculated over a certain time period, do not take into account the liquidity of the property that constitutes the assets of the company, and cannot with a sufficient degree of probability guarantee the solvency of the organization. Such initiatives of the legislator are understandable from the point of view of the position, which determines the limited liability of the founders for the obligations of the created business company by the requirement to endow this company with a sufficient amount of property to independently conduct business activities. Those. for limited liability "you have to pay." And the category of authorized capital determines the minimum amount of this fee. Another question is that in the existing conditions, payment of the authorized capital has turned into a kind of formality, due to the obligatory nature of this action for the state registration of a business company.
To summarize the above, I would like to note that the category of authorized capital requires additional regulation by law. In our opinion, it is necessary to introduce into legislation, at the level of the Civil Code, a unified definition of the authorized capital of business companies in order to understand its essence and main functions. Through this definition, one can further move in the direction of increasing or decreasing its minimum size (there is a position that speaks of the need to generally remove any restrictions on the minimum size of the authorized capital, or make it symbolic), the possibility of forming the authorized capital with one or another property, etc. .d. At the same time, it is necessary to maintain proportionality in the regulation of individual aspects of this legal phenomenon, without allowing the expansion of some of its functions at the expense of others, as is happening today.
*Guarantee function of the authorized capital: new in joint stock legislation (Povarov Yu.S.) (“Law and Economics”, 2010, N 7) Kiperman G. Authorized capital of a business company // Law and Economics. 2005. N 3. Tarasenko Yu.A. Authorized capital of a joint-stock company: analysis of arbitration practice. M.: YURKNIGA, 2005. Issues of the authorized capital of a limited liability company in the practice of arbitration courts (Boryakova S.A., Sergeeva E.V.) (“Legislation and Economics”, 2006, No. 7) (“Advocate”, 2006, N 10)
Oleg Shevtsiv
YF Legal Studio
Authorized capital (Authorized fund, Share capital)- one of the types of capital of an organization that is formed during its creation.
Subsequently, this type of capital can increase or decrease (according to the rules established by law).
A comment
Authorized capital (share capital, authorized capital, hereinafter referred to as authorized capital) is one of the types of capital of an organization. So, other types of capital are additional capital, reserve capital, retained earnings.
The peculiarity of the authorized capital is that the legislation defines certain requirements for its formation, size, procedure for increasing and decreasing. This is due to the fact that the legislation considers the authorized capital as the minimum amount of the company’s property that guarantees the interests of its creditors (for example, Article 90 of the Civil Code of the Russian Federation).
Authorized capital is formed only by commercial organizations. Non-profit organizations do not have an authorized capital.
Business societies(joint stock company, limited liability company) form authorized capital(Article 66.2. Civil Code of the Russian Federation).
Business partnerships(full partnership, limited partnership) form share capital(Article 66.2. Civil Code of the Russian Federation).
State and municipal unitary enterprises form authorized capital(Article 12 of the Federal Law of November 14, 2002 N 161-FZ “On State and Municipal Unitary Enterprises”).
Specific features of the authorized capital are established for each of the relevant legislation.
Owners of organizations (shareholders), in return for contributing funds to the authorized capital, receive rights to these organizations (shares - limited liability company, additional liability company, partnerships, shares - joint stock company).
If organizations receive profit, it is distributed in proportion to the share in the authorized capital of the organization (for some, for example, for partnerships, the owners may establish a different procedure for distributing profits).
Guaranteeing role of the authorized capital.
The main essence of the authorized capital is that it determines the minimum amount of property that guarantees the interests of the organization’s creditors. The legislation establishes requirements for the size of the authorized capital.
The authorized capital funds are not allocated to any separate bank account. Funds received in the form of a contribution to the authorized capital are not limited in use. The essence of the authorized capital guarantee is that if the value of the organization’s net assets is less than its authorized capital, then the organization is obliged to increase the value of the net assets to the amount of the authorized capital or register a decrease in the authorized capital. If the value of the company's net assets becomes less than the minimum amount of authorized capital determined by law, the company is subject to liquidation. This requirement is established for limited liability companies (clause 4 of article 90 of the Civil Code of the Russian Federation) and for joint-stock companies (clause 4 of article 99 of the Civil Code of the Russian Federation).
Amount of authorized capital of a limited liability company must be no less than 10,000 rubles (Article 14 of the Federal Law of 02/08/1998 N 14-FZ “On Limited Liability Companies”).
Minimum authorized capital of an open company must be at least a thousand times the minimum wage established by federal law on the date of registration of the company;
Minimum authorized capital of a closed company- must be at least one hundred times the minimum wage established by federal law on the date of state registration of the company (Article 26 of the Federal Law of December 26, 1995 N 208-FZ “On Joint-Stock Companies”).
The size of the authorized capital of a state enterprise must be no less than 5,000 times the minimum wage established by federal law on the date of state registration of a state-owned enterprise (see).
The size of the authorized capital of a municipal enterprise must be no less than 1000 times the minimum wage established by federal law on the date of state registration of a municipal enterprise (see).
Authorized capital of business companies
It is typical for business companies that their owners are not liable for the company’s obligations and bear the risk of losses associated with the company’s activities, within the limits of the value of their shares.
Participants of the company who have not fully paid for their shares bear joint liability for the obligations of the company within the limits of the value of the unpaid part of the share of each participant (see, for example, Article 87 of the Civil Code of the Russian Federation).
Amount of authorized capital company cannot be less than the amount determined by the relevant law.
Thus, for limited liability companies, the minimum amount of authorized capital is determined by Art. 14 of the Federal Law of 02/08/1998 N 14-FZ "On Limited Liability Companies".
For joint stock companies, the minimum amount of authorized capital is determined by Art. 26 of the Federal Law of December 26, 1995 N 208-FZ “On Joint-Stock Companies”.
The rule is established that if at the end second or each subsequent financial year cost the company will have less than the authorized capital, the company is obliged to announce a reduction in its authorized capital and register its reduction in the prescribed manner. If the value of the specified assets of the company becomes less than the minimum amount of authorized capital determined by law, the company is subject to liquidation (see, for example, Article 90 of the Civil Code of the Russian Federation).
Example
A company with an authorized capital of 100 thousand rubles at the end of the second year of operation has net assets in the amount of 70 thousand rubles.
The company is obliged to announce a reduction in its authorized capital to no more than 70 thousand rubles.
Example
A company with an authorized capital of 100 thousand rubles at the end of the second year of operation has net assets in the amount of 3 thousand rubles.
The minimum amount of authorized capital determined by law is 10 thousand rubles.
The company is obliged to liquidate.
Reduction of the authorized capital is allowed after notification of all its creditors. The latter have the right in this case to demand early termination or fulfillment of the relevant obligations of the company and compensation for losses.
Until full payment of the authorized capital is prohibited pay dividends to the owners of the company. This rule is established, for example, Art. 29 of the Federal Law of 02/08/1998 N 14-FZ “On Limited Liability Companies”, as well as Art. 102 of the Federal Law of December 26, 1995 N 208-FZ “On Joint-Stock Companies”.
Depending on the size of the authorized capital, restrictions on bond issuance. Thus, for limited liability companies it is established that the issue of bonds by the company is allowed after full payment of its authorized capital. The nominal value of all bonds issued by the company must not exceed the amount of the authorized capital of the company and (or) the amount of security provided to the company for these purposes by third parties (Article 31 of the Federal Law of 02/08/1998 N 14-FZ “On Limited Liability Companies”). The same rule is established for joint stock companies by Article 102 of the Federal Law of December 26, 1995 N 208-FZ “On Joint Stock Companies”.
Authorized fund of state and municipal unitary enterprises
State unitary enterprises and municipal unitary enterprises form an authorized capital (analogue of authorized capital).
The authorized capital of a state or municipal enterprise determines the minimum amount of its property, which guarantees the interests of the creditors of such an enterprise.
The size of the authorized capital of a state enterprise must be no less than 5,000 times the minimum wage established on the date of state registration of the state enterprise.
The size of the authorized capital of a municipal enterprise must be no less than 1,000 times the minimum wage established on the date of state registration of the municipal enterprise (Article 12 of the Federal Law of November 14, 2002 N 161-FZ “On State and Municipal Unitary Enterprises”).
The authorized capital of a state or municipal enterprise must be fully formed by the owner of its property within three months from the date of state registration of such an enterprise. The authorized capital is considered formed from the moment the corresponding amounts of money are credited to a bank account opened for these purposes and (or) transfer in the prescribed manner to a state or municipal enterprise of other property assigned to it with the right of economic management in full (Article 13 of the Federal Law dated 11/14/2002 N 161-FZ "On state and municipal unitary enterprises").
Subsequently, the authorized capital of the enterprise can increase or decrease, at the discretion of the owner (the procedure for increasing and decreasing the authorized capital is established by Articles 14 and 15 of the Federal Law of November 14, 2002 N 161-FZ “On State and Municipal Unitary Enterprises”).
As established for business companies rule regarding the ratio of the size of the authorized capital and the net assets of the enterprise:
If, at the end of the financial year, the value of the net assets of a state or municipal enterprise is less than the size of its authorized capital, the owner of the property of such an enterprise is obliged to make a decision to reduce the size of the authorized capital of the state or municipal enterprise to an amount not exceeding the value of its net assets.
If at the end of the financial year the value of the net assets of a state or municipal enterprise is less than the minimum size of the authorized capital established on the date of state registration of such an enterprise and within three months the value of the net assets is not restored to the minimum size of the authorized capital, the owner of the state or municipal property enterprise must make a decision on the liquidation or reorganization of such an enterprise (Article 15 of the Federal Law of November 14, 2002 N 161-FZ “On State and Municipal Unitary Enterprises”).
Share capital of business partnerships
Business partnerships differ from business companies in that the owners of the partnership bear additional (subsidiary) liability for the obligations of the partnership with all their property. The owners of companies are liable for the obligations of the company only within the limits of the authorized capital.
Therefore, the share capital in business partnerships, first of all, serves as a starting capital and, to a lesser extent, as a guarantee for creditors. The legislation does not establish any special norms regulating the size of the share capital and its ratio to net assets.
Accounting of authorized capital
An accounting account is used to record the authorized capital. The account balance must correspond to the amount of the authorized capital recorded in the constituent documents of the organization. Account entries are made when forming the authorized capital, as well as in cases of increasing and decreasing capital, only after making appropriate changes to the constituent documents of the organization.
After the state registration of an organization, its authorized capital in the amount of contributions of the founders (participants) provided for by the constituent documents is reflected in the credit of the account in correspondence with the account. The actual receipt of deposits of the founders is carried out on the credit account in correspondence with the accounts for accounting for cash and other valuables.
The authorized capital is reflected in line 1310 “Authorized capital (share capital, authorized capital, contributions of partners)” of Section III. CAPITAL AND RESERVES.
From the participants (shareholders) of the company, the contribution of property to the authorized capital is reflected as financial investments:
D 58 - K 51 - money was deposited into the organization’s savings account
D 58 - K 76 - the contribution to the authorized capital is taken into account minus the amount deposited into the savings account (as of the date of registration in the Unified State Register of Legal Entities)
D 76 - K 51 - debt on contribution to the authorized capital has been paid
"Law and Economics", 2005, N 3
The authorized capital is made up of the par value of shares acquired by shareholders in a joint-stock company or from the par value of shares of participants in an LLC. The presence of an authorized capital is one of the defining features of a business company (unlike, for example, a business partnership, in which similar functions are performed by the share capital).
The minimum authorized capital of an OJSC must be at least a thousand times the minimum wage, i.e. 100,000 rubles, and in closed joint-stock companies and LLCs - a hundredfold, i.e. 10,000 rub. These minimum amounts of authorized capital, provided for by law, facilitate the creation of new business companies, because When a company is established from deposits, the authorized capital is formed entirely from the contributions of the founders. But if we are guided by economic considerations, then it is advisable to form the authorized capital in such a size that it can serve as a source of funds for the company to carry out economic activities during the initial, starting period, i.e. before receiving the first revenue from the sale of goods or services. In an LLC, each founder is obliged to make a full contribution to the authorized capital within the period stipulated by the constituent agreement. However, it cannot be more than one year from the date of state registration of the company. At the same time, at the time of registration, the authorized capital must be paid at least half. And for the state registration of a joint-stock company, payment of the authorized capital is not necessary, only documents adopted by the constituent meeting are required: the decision of the founders on the creation of the company, the agreement on the creation of the company (unlike a limited liability company, in a joint-stock company the agreement is not the constituent document of the company), approved charter In this case, at least 50% of the authorized capital must be paid within three months from the date of state registration of the company, and the rest - within a year from the date of registration. The agreement on the establishment of a company may provide for a shorter period, but not more than a year. Practice shows that delaying the formation of authorized capital is inappropriate. It seems that it is sufficient to set the payment period for shares to no more than 6 months.
The authorized capital specified in the charter, regardless of whether it is paid in full or in part, is reflected in the accounting records on account 80 “Authorized capital” (and, accordingly, in the liability side of the balance sheet). If the authorized capital is not fully paid, then the remaining part is reflected in the balance sheet in account 75 “Settlements with founders” (debt of the founders for contributions to the authorized capital).
In addition, it should be borne in mind that the authorized capital of a business company determines the minimum amount of its property that guarantees the interests of its creditors; It is obvious that with an amount of 100,000 rubles. or 10,000 rub. there is no need to talk about real guarantees. Of course, the authorized capital can be increased in the future, but not all business companies do this. Many business companies have a property value of millions and tens of millions of rubles, but the authorized capital remains at a minimum level.
At the same time, the heads of many business companies rightly believe that the authorized capital is the business card of the enterprise. Its size affects the image, as well as the investment attractiveness of the society. Therefore, measures are being taken to increase the authorized capital. Sometimes the feasibility of increasing the authorized capital is determined by the company's intention to place bonds. Basically, large joint-stock companies resort to issuing bonds, but any business company has the right to place them. At the same time, within the limits of the authorized capital, it is possible to place bonds without collateral provided to the company by third parties (usually banks). Increasing the authorized capital is often easier than obtaining a bank guarantee. If the authorized capital is increased at the expense of the company’s property, then this requires practically no costs; only the legal requirement to provide the authorized capital with the value of net assets must be met. In both a joint stock company and an LLC, the value of net assets must be equal to or greater than the authorized capital. True, this requirement does not apply to newly created business companies, because despite the significant expenses associated with the formation of the company, it does not yet have income or it is still small. But if at the end of the second and each subsequent financial year the value of net assets is less than the authorized capital, then the company is obliged to announce a reduction in its authorized capital to an amount not exceeding the value of its net assets, and, of course, register such a decrease in the prescribed manner. If at the end of the second and each subsequent financial year the value of net assets is less than the minimum amount established by law, then the company is subject to liquidation.
However, in reality, these legal requirements are not always observed. Many business companies have a net asset value that is less than the minimum amount of authorized capital established by law on the date of their state registration, and some have no net assets at all; the amount of their debt obligations exceeds the amount of equity capital. Business companies themselves, naturally, do not make decisions on their liquidation, and the bodies that, in accordance with federal legislation, have the right to submit to the court a demand for the liquidation of a business company, do not do this.
Neither according to the Civil Code of the Russian Federation (Article 61), nor according to the Law on Joint Stock Companies (Article 35) and the Law on Limited Liability Companies (Article 20), the relevant state bodies or local government bodies are not obliged to submit demands to the court for the liquidation of economic societies in the above cases.
Net asset value is the value of property (assets of the enterprise) free from debt obligations.
To determine it, the entire amount of debt obligations, both long-term and short-term, is subtracted from the total value of the enterprise’s assets (adjusted in accordance with Order of the Ministry of Finance of Russia dated January 29, 2003 N 10-n, FCSM of Russia N 03-6/pz). If, for example, the authorized capital of Zarya LLC is 200,000 rubles, the reserve capital is 15,000 rubles, and the value of net assets is 1,300 thousand rubles, then the amount by which the company can increase the authorized capital at the expense of its property is not may be more than RUB 1,085,000. (1,300,000 - 200,000 - 15,000). Based on net assets, the book value of the shares of the joint-stock company and the actual value of the participant’s share in the LLC are determined. If, for example, the authorized capital of a joint-stock company is 580 thousand rubles, and the par value of a share is 10 rubles, then with a net asset value of 8932 thousand rubles. the book value of one share is 154 rubles. (8932 thousand rubles: 58 thousand). Under normal operating conditions, even with a minimum level of profitability, the market value of the company's shares should not be lower than the book value, in this case - not lower than 154 rubles.
In a limited liability company, the value of net assets is significant when a participant leaves the company, because he is paid the actual value of his share.
If in Zarya LLC the nominal value of the share of participant N. (his contribution to the authorized capital) was, for example, 10 thousand rubles, and the value of the company’s business is estimated at 6 million rubles, then various estimates of the participant’s share are determined as follows (Table . 1).
Table 1
Estimation of the value of an LLC participant's share
The source of increasing the authorized capital at the expense of the company's property is, as a rule, additional capital, and in some cases - retained (net) profit. In a limited liability company, the additional capital (Article 83) reflects the increase in the value of non-current assets (fixed assets) based on the results of their revaluation, and in a joint-stock company, in addition, share premium, which is formed due to the excess proceeds from the placement of additional shares on market value above their face value.
The authorized capital can be increased in an LLC by making additional contributions by company members and third parties, and in a JSC by placing additional shares. At the same time, the value of the company's property and the amount of its assets increase, but no debt obligations arise, therefore the value of net assets also increases.
The decision to increase the authorized capital of an LLC at the expense of additional contributions from participants is made by the general meeting of participants with a majority of at least 2/3 votes (unless the need for a larger number of votes to make such a decision is provided for by the company’s charter); in this case, the votes of all participants in the company are taken into account, and not just those who took part in the meeting. Let's assume that the charter of Zarya LLC determines that the nominal share gives the participant two votes. To make a decision to increase the authorized capital through additional contributions from participants, at least 2/3 of the 200 votes of participants is required, regardless of the number of participants in the meeting, i.e. at least 134 votes. The decision to increase the authorized capital through additional contributions from third parties and, accordingly, their admission to the company is made by all participants of the company unanimously. If the authorized capital is increased by making additional contributions by all participants, then the size of their shares does not change, only the value of the share of each participant increases. If, by decision of the general meeting, the authorized capital is increased by making an additional contribution by an individual participant (participants) or a third party (third parties), then the size of the shares of all participants will change.
In a joint stock company, a decision to increase the authorized capital by placing additional shares is made by the general meeting of shareholders (by a majority vote) or by the board of directors (supervisory board), if the company's charter gives it the right to make such a decision. The decision of the board of directors on this issue must be made unanimously by all members of the board (and not just those participating in the board meeting). The charter must clearly define who exactly has the right to make a decision on increasing the authorized capital - the general meeting or the board of directors; the decision on this issue cannot be attributed simultaneously to both the competence of the meeting and the competence of the board of directors. Since the increase in the authorized capital must be defined in the charter, when a decision is made by the board of directors, this is the only case when a change is made to the charter not by decision of the general meeting. Regardless of which body is granted the right to make a decision on the placement of additional shares, their issue is possible only if the charter provides for the so-called authorized shares. It is not necessary to indicate declared shares in the charter; this is one of the many dispositive norms of the Law on Joint Stock Companies. If a joint stock company does not intend to place additional shares in the future, then it does not need the declared shares. This applies primarily to closed joint stock companies, which rarely issue additional shares. But even if the charter does not provide for authorized shares, this still does not prevent an increase in the authorized capital by issuing additional shares: the general meeting has the right to simultaneously decide to increase the authorized capital by placing additional shares and amending the charter on authorized shares. At the same time, the absence of provisions on authorized shares in the charter does not prevent the increase in the authorized capital at the expense of the company’s property by increasing the par value of the shares.
When the authorized capital is increased at the expense of the company’s property (most often, as noted above, at the expense of additional capital), the formation of fractional shares as a result of this procedure is not allowed. In other words, the authorized capital can only be increased by an integer number of times.
If, for example, the authorized capital is 500,000 rubles, and the additional capital is 8,960,000 rubles, then the authorized capital cannot be increased by the entire amount of additional capital, because resulting in fractional shares: 8,960,000: 500,000 = 17.92. Only a multiple increase in the authorized capital is allowed, i.e. in this case - by 8,500,000 rubles. (8,500,000: 500,000 = 17). As a result, the authorized capital will be 9,000,000 rubles. (500,000 + 8,500,000). In the amount of 8,500,000 rubles. account 83 “Additional capital” is debited and account 80 “Authorized capital” is credited. Accordingly, the number of shares increases 18 times and will amount to 9 million pieces. with a nominal value of 1 rub. or with the same number of shares, their par value increases and will be 18 rubles. (18 x 500,000 units = 9 million rubles). In the first case, the number of shares owned by each shareholder and their total par value will increase 18 times, and in the second case, the number of shares will not change, only their total par value will increase. If the shares are not quoted on an organized securities market, then both methods are equivalent. If the shares are quoted on an organized market, then the positive and negative aspects of each method should be taken into account: an increase in the number of shares initially does not affect their market rate, because all shares are distributed among shareholders, but in the future their number in circulation may increase significantly, which will negatively affect the exchange rate; and the increase in the par value of shares is not accompanied by a proportional increase in their market value. The total book value of shares will not change, because The net asset value remains the same.
As for taxation, with any method of increasing the authorized capital due to the revaluation of fixed assets (the corresponding part of the additional capital), neither additional shares received by shareholders, nor an increase in the par value of the shares owned by them in accordance with Article 217 of the Tax Code of the Russian Federation (clause 19) are taxed are not taxed on the income of individuals; this equally applies to property shares in an LLC. As for shareholders - legal entities (organizations), additional shares received by them or an increase in the par value of shares owned by them when increasing the authorized capital (without changing the shareholder's share in the authorized capital) is not included in the amount of taxable profit in accordance with Article 217 of the Tax Code of the Russian Federation (clause 19). Contributions to the authorized capital can be made both in cash and other property, securities, property and other rights, but always in monetary value. In joint-stock companies, the formation of the authorized capital with the funds of the founders predominates; payment for shares in kind is very rarely carried out. And when establishing an LLC, quite often the participants make contributions in kind: they transfer ownership of the LLC, for example, a computer, a garage, etc. The charter of the company may determine the types of property that cannot be a contribution to the authorized capital.
Deposits, regardless of form, are not subject to taxes. Meanwhile, the founders of an LLC often form its authorized capital in a minimum amount (10,000 rubles) in the expectation that the funds necessary to ensure the activities of the company will be received in the future through contributions made by participants to the company’s property. The corresponding obligation of the participants may be provided for in the charter. There are no violations in this, but it should be borne in mind that the law does not provide for tax exemption for contributions to property.
As for the taxation of income from the sale of shares by shareholders or shares by members of an LLC, it all depends on the period during which these shares or shares were owned by the taxpayer - an individual: if three years or more, then the entire amount received from the sale is exempt from taxation, if less than three years, then the amount up to 125,000 rubles is exempt from tax. (Article 220 of the Tax Code of the Russian Federation). Legal entities are not provided with any benefits when taxing profits on income from the sale of securities, stocks or shares.
A more complex procedure, compared to increasing the authorized capital, is reducing it.
Firstly, the decision to reduce the authorized capital is made only by the general meeting, and in an LLC this decision must be made by a majority of at least 2/3 of the votes of the company's participants (unless the charter provides for a larger number of votes to make such a decision). Secondly, the company’s creditors must be notified of the decision within 30 days, and they have the right, within 30 days from the date of sending them the notification (and publication of the corresponding message), in writing to demand early termination or fulfillment of the relevant obligations of the company and compensation for losses. Thirdly, the authorized capital cannot be less than the minimum amount established by law.
In an LLC, the authorized capital can be reduced by reducing the nominal value of the shares of all participants without changing the size of the shares and (or) by redeeming the shares owned by the company. There are a number of circumstances in which shares belonging to the company are formed; they are recorded as the debit of account 81 “Own shares (shares)”. If, for example, the company's charter prohibits the assignment of a participant's share to third parties, and other participants in the company refuse to acquire it, then the company itself is obliged to acquire, at the request of the participant, the share or part thereof belonging to him. The share of a participant expelled from the company by a court decision also passes to the company. Shares acquired by the company or transferred to it under the circumstances provided for in the charter must, by decision of the general meeting of participants, be distributed among the participants or sold within one year. The undistributed or unsold share must be redeemed with a corresponding reduction in the authorized capital. At the same time, the size of the shares of the remaining participants increases.
If, for example, a participant in Zarya LLC, whose nominal value of the share was 20 thousand rubles, left the company and his share transferred to the company and was later redeemed, then the authorized capital will be reduced and amount to 180 thousand rubles, and the size of the share of participant N., which was previously 10%, will now be equal to 11.1% (20,000 rubles: 18,000 rubles).
A joint stock company, unlike an LLC, has no obligation to purchase shares from its shareholders under any circumstances. But at the same time, the JSC has the right to acquire shares placed by it, if this is provided for by the company’s charter. Typically, the right to make a decision on the acquisition of outstanding shares for the purpose of their subsequent sale is granted to the board of directors, and only the general meeting of shareholders has the right to make a decision on the acquisition of part of the outstanding shares for the purpose of redemption. Often such decisions are initiated by owners of large blocks of shares in order to bring them to the size of a blocking or controlling stake.
If, for example, the authorized capital of a joint-stock company is 500,000 rubles. and consists of 500,000 ordinary shares with a par value of 1 ruble. each, then upon acquisition from shareholders and subsequent redemption of 65,000 shares, the authorized capital will be correspondingly reduced and amount to RUB 435,000. If shareholder K. owns 11,000 shares, then in the previous authorized capital his share was 22%, and in the reduced authorized capital it will be 25.3% (blocking stake). The value of a blocking block of shares is usually significantly greater than the value of the same number of individual shares that are not concentrated in the ownership of one shareholder. If in the above example the market value of a share is, say, 30 rubles, then the cost of 11,000 shares belonging to various owners will be 3.3 million rubles, and the owner of a blocking stake consisting of the same number of shares can sell it for 5 - 6 million rubles, or even more. In fact, in this case, the buyer, in addition to the market value of the shares, will pay for the right to actually participate in the management of the business company: without his consent, not a single serious decision can be made at the meeting, requiring a qualified majority of votes - 75% of the votes of the shareholders participating in the meeting. Such issues include, for example, the conclusion of a major transaction, the amount of which exceeds 50% of the book value of the company’s assets, the decision to reorganize the company, etc. Therefore, behind the seemingly unprincipled procedure for the acquisition by a joint-stock company of issued shares, there is often hidden one of the ways of redistributing “spheres of influence”, forming majority shareholders have a blocking or controlling stake.
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Glossary
Promotion- an issue-grade security that secures the rights of its owner to receive part of the profit of a joint-stock company in the form of dividends, to participate in the management of the joint-stock company and to part of the property remaining after its liquidation.
Share of participation- the property right of a participant in a limited liability company, which gives its owner a set of rights of a property and non-property nature in relation to the company.
Bond- an issue-grade security that secures the holder’s right to receive from the issuer, within the period specified by the bond, the nominal value and the percentage of this value fixed in it or other property equivalent.
Authorized capital of the company- a conditional value equal to the total value (monetary value) of participants’ contributions made as payment for the acquired right of participation in the company, necessary to determine the volume of the participant’s (shareholder’s) claims to the company.
Ordinary share- a share that provides the owner with the same amount of rights: the right to receive part of the profit of the joint-stock company in the form of dividends, the right to participate in the management of the joint-stock company and the right to receive part of the property remaining after its liquidation.
Preference share- a share, as a rule, which does not provide voting rights at a general meeting of shareholders, the amount of dividend and (or) liquidation value of which must be determined in the company's charter.
Announced shares- shares, the issue and placement of which is planned by the company in the future in addition to already placed shares.
Placed shares- shares acquired by shareholders.
Uncertificated security- a security, the rights to which are recorded by entering data about their owner, quantity, nominal value and category of securities owned by him into special lists (registers).
Fractional share- part of a share, formed in cases provided for by law and granting its owner rights in an amount corresponding to the part of the whole share that it constitutes.
Nominal value of participant's share- a conditional value in monetary terms, determined by the value of the participant’s contribution made to the authorized capital of the limited liability company.
Preemptive right to purchase a share- the right owned by a participant in a limited liability company to purchase a share (part of a share) of a company participant at the offer price to a third party.
Emission- sequence of actions of the issuer aimed at accumulating funds by the issuer by placing securities.
Issue-grade security- a security, including non-documentary one, which is simultaneously characterized by the following characteristics: it secures a set of property and non-property rights that are subject to certification, assignment and unconditional implementation in compliance with the form and procedure established by law; posted in releases; has equal volume and terms of exercise of rights within one issue.
Issuers of issue-grade corporate securities- legal entities that bear, on their own behalf, obligations to the owners of securities to exercise the rights assigned to them.
§ 1. Authorized capital of business companies
The concept of authorized capital
The concept of authorized capital (fund) is not a product of the market economy. In the law of the socialist period, the authorized capital was understood as the monetary value of the fixed assets and working capital assigned to the enterprise, recorded on any date during the entire period of operation of the enterprise in the balance sheet of the enterprise, and the concept of the authorized capital was considered as a conventional terminological designation of the totality of working capital and fixed assets in monetary terms. expression that has mainly accounting meaning.
The authorized capital of a business company is made up of the nominal value of shares (shares) of the company acquired by shareholders (participants). The authorized capital represents the total value (or monetary value) of the property contributed by all founders (participants) as payment for the acquired right of participation in the company. That is, the amount of the authorized capital indicated in the company's charter is a nominal figure, a common noun, which determines only the aggregate assessment of the participants' contributions at the time of their making.
The authorized capital essentially does not reflect the real value of the property owned by the company, which can be either more or less than the authorized capital<1>. The authorized capital is only one of the sources of formation of property of a business company.
<1>In this case, in accordance with the requirements of the law, the authorized capital is subject to reduction.
The size of the authorized capital fixed in the company's charter may not correspond to the value of the funds and property actually received by the company. Firstly, the founders of the company are required to form the authorized capital in full only within a year from the moment of registration of the business company (clause 1 of article 34 of the Law on JSC, clause 1 of article 16 of the Law on LLC). That is, during the first year of its existence, the company can have only half the value of the authorized capital. Secondly, the types of property contributed to the authorized capital and its valuation are determined by the founders when establishing the company, which does not exclude a subjective assessment of the value of the authorized capital. According to paragraph 3 of Art. 34 of the Law on JSC, the value of the monetary valuation of property made by the founders of the company and the board of directors of the company cannot be higher than the value of the valuation made by an independent appraiser. Thus, the amount of the authorized capital may be lower than the real value of the contributed property. Abuse by the founders is also possible due to inflated costs of deposits. Shares (participation interests) can also be paid for at a price exceeding their nominal value. In this case, the company generates share premium.
In legislation, the authorized capital is defined as the minimum amount of the company’s property that guarantees the interests of its creditors (clause 1, article 25 of the Law on JSC, clause 1, article 14 of the Law on LLC). But this does not mean limiting the liability of the company to the amount of the authorized capital. Satisfaction of the claims of the joint stock company's creditors is ensured by all property owned by the company, regardless of the size of the authorized capital.
Understanding the essence of authorized capital is possible through determining its functions.
Functions of authorized capital
In the legal literature, there are traditionally three main functions that the authorized capital of a business company must perform:
Material support - the property contributed in payment of the contribution constitutes the material basis for the activities of the company upon its establishment and during its further functioning;
Guarantee - the company is liable to creditors within the limits of its property, which cannot be less than the authorized capital;
Distributive - the share of participation of each shareholder (participant) in the company and its profits is determined through the authorized capital<1>.
<1>See: Dolinskaya V.V. Shareholder law: Textbook. M., 1997.
Let's look at these functions:
a) material support function. The authorized capital of a business company is the property basis for the company’s activities, the initial (starting) capital. Therefore, the specific size of the authorized capital is determined by the founders depending on the type of activity that the created organization will be engaged in;
b) guarantee function. The authorized capital indicates a certain value of the property owned by the company. That is, the next function of the authorized capital is the guarantee function. The purpose of the authorized capital is to guarantee the company's obligations to third parties. Since, unlike participants in general partnerships, participants in business companies, according to the general rule established in Art. 56 of the Civil Code of the Russian Federation, are not liable for the company’s obligations with their own property, then the company must have property on which its creditors can foreclose. For execution
guarantee function, the legislation establishes the minimum amount of the authorized capital of a business company. Also, in order to ensure the formation of the authorized capital of the company upon its creation, a ban is provided on the release of the founders of the company from the obligation to make contributions to its authorized capital.
The existing minimum amount of authorized capital cannot ensure the interests of creditors, as noted in the legal literature. So, for example, E.I. Goryainov emphasizes that “the amount of authorized capital specified in the law... is too insignificant in modern civil circulation and is in no way capable of guaranteeing the interests of creditors”<1>.
<1>Goryainova E.I. Authorized capital - nominal value or real property: problems of legal regulation // Lawyer. 2004. N 2. P. 5.
The low value of the minimum amount of authorized capital leads some authors to the opinion that the authorized capital is fictitious. As Yu. Ershov believes, “the idea with authorized capital has not been working since its introduction and remains one of the fictions of the civil law and order”<1>.
<1>Ershov Yu. Why do we need authorized capital // EZh-Lawyer. 2005. N 31. P. 4.
The guarantee function does not mean that the authorized capital should be inviolable and cannot be used for the current needs of the company. The authorized capital is used by the company for business activities and can be used, among other things, to purchase property, pay rent for premises, pay salaries to employees, etc. The legislation does not limit the expenditure of authorized capital, and proposals in the literature about the need to introduce such restrictions, in our opinion, are erroneous. In addition, the size of the authorized capital fixed in the company’s charter may not correspond to the value of the funds and property actually received by the company.
The guarantee function of the company's authorized capital is that the value of the company's net assets cannot be less than the size of the authorized capital. If at the end of the second or each subsequent financial year the value of the net assets of the joint-stock company is less than the size of the authorized capital, the company is obliged to reduce the size of its authorized capital in the prescribed manner. And if the value of the company’s net assets becomes less than the minimum amount of authorized capital determined by law, the company can be liquidated (clauses 4, 5 of Article 35 of the JSC Law, clause 3 of Article 20 of the LLC Law).
The concept of "net assets"
The concept of “net assets” and the procedure for determining the value of net assets of joint-stock companies are defined in legal acts regulating accounting, since the value of a company’s net assets is assessed solely based on accounting data.
In accordance with the LLC Law, the procedure for determining the value of the company's net assets must be established by federal laws and regulations issued in accordance with them (Clause 3, Article 20 of the LLC Law). However, the required federal law has not yet been adopted. Currently, when determining the value of the net assets of a limited liability company, one should be guided by the rules established for joint-stock companies. The net assets of a joint stock company are a value determined by subtracting from the amount of the company's assets accepted for calculation the amount of its liabilities accepted for calculation<1>. The company's assets consist of the company's funds and property, and liabilities represent the company's obligations to third parties.
<1>The procedure for assessing the value of net assets of joint-stock companies was approved by Order of the Ministry of Finance of Russia and the Federal Commission for the Securities Market of Russia dated January 29, 2003 N 10н/03-6/пз // BNA. 2003. N 18.
Thus, the fulfillment of the guarantee function by the authorized capital of the company does not mean that the liability of the company is limited to the amount of the authorized capital. Legal entities, including business companies, are liable for their obligations with all the property belonging to them, regardless of the size of the authorized capital (Article 56 of the Civil Code of the Russian Federation). The authorized capital of a company in itself, as a certain set of funds and property, is not a guarantee of the company’s obligations; the presence of an authorized capital creates only a certain legal mechanism for control over the real property of the company;
c) distribution function. The formation of the authorized capital makes it possible to determine the share of participation of each shareholder (participant) in the company. Knowing the share (percentage) of participation of a particular shareholder (participant) in the authorized capital, it is easy to determine his influence at the general meeting of shareholders (participants) and the amount of income due to him from the company's profits, since the number of votes and the amount of his income correspond to the percentage of participation in the authorized capital. As a general rule, each shareholder or participant in a limited liability company has a number of votes at the general meeting in proportion to his share in the authorized capital; the same approach is applied when distributing the company’s profits. At the same time, in a limited liability company, exceptions are possible: the charter of the company, by decision of the general meeting of participants, may establish a procedure other than proportional to the share in the authorized capital for determining the number of votes of the company's participants (paragraph 5, paragraph 1, article 32 of the LLC Law ) and a different procedure for the distribution of profits between participants (clause 2 of article 28 of the LLC Law). In addition, participants in a limited liability company may be granted additional rights, in addition to the rights provided for by law (Clause 2, Article 8 of the LLC Law).
Amount of authorized capital
The legislation differentiates the size of the authorized capital for various organizational and legal forms of commercial organizations. The minimum amount of the authorized capital of an open joint-stock company must be no less than a thousand times the amount of the minimum wage, and a closed joint-stock company and limited liability company - no less than a hundred times the amount of the established minimum wage on the date of submission of constituent documents to the registering authorities for state registration (Article 26 of the Law on JSC, paragraph 1 of Article 14 of the Law on LLC). Moreover, if the legal requirements for the size of the minimum authorized capital subsequently change, the company is not obliged to change its authorized capital accordingly. Thus, the company cannot be denied registration of changes to the constituent documents due to the non-compliance of the authorized capital with the minimum amount in force on the date of registration of the changes.
For business companies engaged in certain types of activities (banks, insurance organizations, investment institutions), a higher minimum authorized capital is established. So, according to Art. 25 of the Law of the Russian Federation of November 27, 1992 N 4015-1 (as amended on July 21, 2005) “On the organization of the insurance business in the Russian Federation”<1>, the minimum amount of the authorized capital of the insurer cannot be less than 30 million rubles.
<1>Gazette of the SND and the Armed Forces of the Russian Federation. 1993. N 2. Art. 56; 2005. N 30 (part 1). Art. 3115.
The small size of the minimum authorized capital for most business companies is the subject of constant criticism in the legal literature<1>. At the same time, many authors propose to increase the minimum authorized capital to a size that would allow it to fulfill the guarantee function, for example, 300 - 500 or 1000 minimum wage<2>. However, this approach raises objections among experts who believe that the low size of the minimum authorized capital of a business company creates the opportunity for a wide range of people to participate in business activities.
<1>See, for example: Sayapina I.A. Functions and structure of the authorized capital of a limited liability company // Law and Politics. 2005. N 6.
<2>See: Boryakova S.A., Sergeeva E.V. Issues of the authorized capital of a limited liability company in the practice of arbitration courts // Legislation and Economics. 2006. N 7. P. 65.
The maximum size of the authorized capital of a business company is not limited by law, i.e. a company can have an unlimited amount of authorized capital, which its founders can afford.
