Reorganization of a legal entity

Reorganization of a legal entity entails the creation of new legal entities or a change in the organizational and legal form of existing enterprises.

However, this process has its own subtleties. On the one hand, during reorganization, a legal entity is excluded from the state register - as during official liquidation, and it is extremely difficult for creditors and government agencies to cancel it. On the other hand, as a result of reorganization, a successor always appears who has to answer for all debts, and the procedure itself lasts at least 3.5 months.

The concept of reorganization of a legal entity

Its essence is that the activity of one legal entity (enterprise, organization) is terminated due to the beginning of the activity of another (others).

However, the entity is not always liquidated, as will be discussed below. Reorganization should not be confused with liquidation, since in the latter case there is no transfer of rights and obligations to its legal successor.

That is, a smooth transition from one form to another is a completely normal process, taking into account the need to launch and carry it out. This contributes to the development of other forms of activity, and certain problems regarding the survival of a particular enterprise are solved.

Signs of reorganization of a legal entity are manifested in the peculiarities of this procedure. Options and methods for reorganizing legal entities are chosen either independently by the entity, if there is an intention to carry out a voluntary reorganization, or by a court (government body), if a forced reorganization occurs.

Specialist assistance to legal entities and organizations

Forms of reorganization of a legal entity

The reorganization is implemented in the following forms:

Merger: a legal entity is being terminated through reorganization and the formation of another.

Peculiarities:

At least two companies participate;
Not a single entity retains its legal status - they are liquidated;
All assets are “poured” into the newly created entity.

In the form of accession: the process of joining one person to another takes place.

Peculiarities:

One or more entities can join at once;
Those who join lose their legal nature by transferring all assets to a third party, that is, they are liquidated;
The third party (the one who is joined) acquires rights and obligations, while continuing to function;

Division: is the process of dividing one entity into several. Relatively speaking, the enterprise “splits” into parts. They represent the volume of assets, each of which is transferred to a new entity.

Peculiarities:

Only one organization is divided, but several can be formed at the same time;
The divided enterprise ceases to exist, i.e. its liquidation occurs;

In the form of separation: the entity transfers part of its assets to a newly created legal entity, without losing its legal nature.

Peculiarities:

The allocation process creates one or more entities;
An enterprise that gives away part of its assets continues to exist;
The separation procedure is accompanied by the transfer of only part of the assets, and not all.

In the form of transformation: the organization continues to carry out its activities in a different organizational and legal form.

Assets, rights, and obligations remain with the subject of the transformation;
No other legal entity is created during the transformation process;
The subject of the reorganization must take into account the legal possibilities of such a transformation.

Grounds for reorganization

The basis for reorganization is the decision of the founders in this regard.

As for a merger or accession, not only the founders, but also all entities participating in this process can decide the future fate of the enterprise.

If, for example, a limited liability company decides to split into two, three or more separate entities, then the supreme body (general meeting) also decides issues of procedure, timing, and other conditions.

That is, the termination of a legal entity through reorganization occurs on the initiative of its supreme body (if such is assumed in a particular organizational structure).

Difference 4. Labor relations with employees

Liquidation of the company leaves no options - all employees of the company are subject to dismissal without exception, including pregnant employees.

Employees must be notified personally about the upcoming dismissal due to the liquidation of the company against signature at least 2 months before the date of dismissal (Part 2 of Article 180 of the Labor Code of the Russian Federation). The company will need a lot of money to fully pay its employees: wages, unused vacations, severance pay and compensation.

Reorganization of the employee if he does not agree to continue working under the new conditions.

The law does not require notifying employees about the reorganization. However, such notification is in the interests of management - this way it will be clear which of the employees is ready to continue working after the reorganization and there will be time to find replacements for resigning employees.

Employees who refuse to continue working are fired under clause 6, part 1, art. 77 Labor Code of the Russian Federation. The work book records the reorganization and termination of the employment contract. In this case, no severance pay is paid (unless, of course, otherwise provided by the company’s internal local regulations).

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Procedure and order of reorganization

The reorganization of a legal entity has a number of stages, “steps”, and sequential actions.

This is due to the fact that the process is time-consuming; the procedure established by the state must be followed; the decision itself and the moment of reorganization are associated with the implementation of the rights and obligations of both the enterprise itself and other entities.

The conditions prescribed by law for a person who is at the stage of reorganization must be met:

Action #1:

Making a decision on reorganization by the founder(s) or participants. Important aspects of this process are discussed and documented: inventory deadlines, audits, methods for assessing assets and liabilities.

Action #2:

Written notification to the body that conducts state registration of its decision. After entering the relevant information about the beginning of this procedure, there is a need to give two announcements every month in specialized media about the beginning of the reorganization process, as well as notifying each creditor in writing. The claims made by the creditor, the scope of which is defined by law, must be satisfied before the end of the reorganization. In addition, the tax authority at the place of registration is notified.

Action #3

Carrying out inventory at enterprises that are being reorganized.

Action #4

A transfer deed is formed. An assessment of assets is carried out, the scope of rights and obligations that are transferred from one person to another is determined.

Action #5

Final reporting is generated, statutory documents of the newly created enterprise are developed and adopted, and a new entity is registered. At the same time, liquidation of the reorganized entity may occur, but not necessarily (see Forms of reorganization).

These actions, stages and order may well be supplemented by others, since only the main milestones are indicated here, which, of course, are subject to adjustment, including depending on the chosen form of reorganization.

Problems arising during the process are resolved in strict accordance with the law.

Difference 5. Time consumption

liquidation procedure of a company can take considerable time: from 4 months to 1.5 years. It includes many activities:

holding a meeting of founders (shareholders) with drawing up minutes;
determination of the composition of the liquidation commission;
sending notifications and other necessary documents to the tax office;
publication of information in the “Bulletin of State Registration” and on the Federal Resource;
notification of contractors and employees;
settlements with creditors;
submission of the latest reports and other activities.

Features of the reorganization of legal entities

As with any legal institution, there are specific features of the reorganization of legal entities. What are they?

The subject of the reorganization may not be transformed into all organizational and legal forms, but only into those that are permitted by current legislation. For example, an LLC cannot be reorganized into a state enterprise, and commercial enterprises cannot be reorganized into charities;
The reorganization itself can take place within the framework defined by the Civil Code of the Russian Federation;
Types, types or methods of reorganization of legal entities can be either voluntary or forced. The first case was discussed above. In the second, decisions can be made by the court or the Antimonopoly Committee;
The possibility of attracting an arbitration manager if the entity does not take the necessary steps to reorganize;
Reorganization takes place with the transfer of rights (all or part, depending on the form) and responsibilities to the legal successor. This is a feature and the main difference from the liquidation of an enterprise.

General signs of reorganization of a legal entity boil down to the possible creation of a new entity and the transfer of rights and obligations to the successor.

New TIN

If a company changes its organizational and legal form, then the tax authorities assign a new TIN to the newly formed legal entity.

After all, the transformation of a legal entity (change of organizational and legal form) is one of the forms of reorganization. As a result of the reorganization, a new legal entity arises.

In the event of a change in the organizational and legal form, the TIN of the “old” organization is invalidated, and the newly established legal entity is assigned a new TIN (see letter of the Ministry of Finance dated May 12, 2010 No. 03-02-07/1-232).

In connection with the new TIN, the company needs to put its entire contractual base in order.

Possibility of appealing the decision on reorganization

The decision to reorganize can be appealed in court. It is important to take into account that only certain persons can act as applicants, for example, participants of a legal entity or authorized representatives of a government agency.

In addition, there are clear deadlines for filing such an application with the court. In this case, we will be talking about recognizing the decision itself as invalid as a legal act.

Regardless of who accepted it, voluntarily or compulsorily, the right to appeal is inalienable, taking into account the stated features.

Consequences of reorganization of a legal entity: if existing requirements and conditions are violated, this may be grounds for invalidating the decision on reorganization.

A newly created enterprise can be left in the register, transactions made by such a person can also be valid, but the damage caused must be compensated.

But if, for example, the decision was made by an unauthorized person, or forged documents were provided to the registration authorities, then the created enterprise is excluded from the register.

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List of documents required for submission to the tax authority

To register a legal entity that is created through reorganization, the following documents must be submitted to the state registration authorities:

Application for state registration of each newly created legal entity through reorganization, signed by the applicant;
Constituent documents of a legal entity in two copies;
Merger agreement, if a merger procedure is being carried out;
Documents confirming the submission of information on pension and insurance contributions to the territorial body of the Pension Fund of the Russian Federation;
A document confirming the assignment of a registration or identification number to the issue of shares, if the legal entity created through reorganization is a joint-stock company;
A document confirming amendments to the decision to issue securities (except for shares), if the reorganized legal entity was the issuer of these securities.

A detailed list of documents required for each type of reorganization and the procedure for submitting them to government bodies is presented in the guide to Personnel Issues in the Consultant Plus system.