In this article the order of a re-registration of a farm in open company, reflection of such operation in tax and accounting is stated.
Svetlana BOGANOVA, head of the legal department of the Dnepropetrovsk consultative service Svetlana MALSHAKOVA, editor-in-chief
Sometimes owners of the enterprises make the decision to change their organizational and legal form. For example, the private enterprise is transformed to restricted liability society (further – open company) or open company becomes joint stock company, etc. In consultation we will consider legal aspect of this procedure, and also we will tell about an order of a re-registration of a farm, that is already open company, in supervisory authorities and reflection of such operation in tax and accounting.
LEGAL ASPECT
The bases for reorganization
Farms quite often should change the organizational and legal form. As a rule, it is caused by the various reasons, for example:
• attraction of the new capital in the enterprise on condition that the new investor acquires the right to participate in business management;
• change of the scheme of financing of the enterprise or the scheme of tax planning in connection with expansion of sphere of action or need of bigger publicity;
• insufficient legislative regulation of activity of farms, especially in questions of inheritance of FH in case of death of the owner or one of owners, compensation of members of FH and their provision of pensions etc.
The most popular way of FH transformation is creation on its basis of open company. About such option speech also will go.
Transformation procedure idle time you will not call. Sometimes quicker and cheaper to open the new enterprise. But after all in certain cases similar reorganization is irreplaceable. Most widespread of them – FH obremenennost the credit. At elimination of such economy it would be necessary to pay the credit on request of the creditor in full. And here at transformation to the new legal entity besides all rights and duties completely pass also credit obligations.
Carrying out transformation
According to Art. 108 of the Civil code (further – group of companies) change of an organizational and legal form of the legal entity is transformation. Its main difference from other forms of reorganization of the enterprise is that thus from the predecessor to the new legal entity passes all property, the rights and duties.
The qualifier of organizational and legal forms of managing calls more than 60 such forms, however it doesn’t mean that the farm can be transformed to any of them.
It is connected with characteristics of this or that organizational form: in the way of acceptance a resheyoniya about creation, form of ownership, etc.
Let’s remind, reorganization procedure by a preyoobrazovaniye is regulated Civil and Hozyayyostvennym by codes, and also the Law from 15.05.03 of No. 755-IV About the state registration of legal entities and individuals – businessmen (further – the Law No. 755).
Let’s consider process of transformation of the legal entity poshagovo.
Step 1. Introduction in EGRPOU records about the decision concerning the termination of the legal entity
For this purpose the applicant should submit (to send the zayokazny letter with the inventory of investments) to the state registrar such documents (Law No. 755 Art. 34):
1. A notarized copy of the decision of founders (participants) or the body authorized by them about the termination of the legal entity. In this decision it is necessary to specify the following information:
• name of the legal entity;
• its identification code;
• site of the legal person;
• the basis for making decision on transformation;
• a place and date of introduction of record about decision-making by founders (participants) or the body authorized by them on the termination of the legal person;
• date of appointment and data on the commission on reorganization by transformation, including identification numbers of her members;
• an order and term (not less than two months) statements creditors of requirements to the legal entity who stops.
2. The document confirming introduction of a payment for the publication of the announcement of acceptance by founders (participants) or authorized by them orgayony of the decision on the termination of the legal person in specialized printing mass media, in other words a copy of the receipt or the payment order of bank. Cost of such announcement – 3 NMDG, or 51 UAH. Requisites for payment – at the state registrar.
Let’s notice that the general executive who is personally filing documents, should show the passport. If documents are represented by other person, it should have the passport and the power of attorney (or its notarially certified copy). If documents go by mail, all signatures on them should be certified by the notary.
Step 2. The publication of the announcement of acceptance by founders (participants) of the decision on a prekrashcheyoniya of the legal entity which is carried out by the state registrar in specialized printing mass media within 10 working days from the moment of entering of the corresponding record into the Uniform state register.
Step 3. Implementation of procedure of the termination.
This step includes many various actions, somehow:
• acceptance and satisfaction of requirements of creditors;
• preparation of the transfer act and approval by his founders;
• carrying out the constituent assembly of open company, preparation of constituent documents on registration of the new legal entity, authorized capital formation.
On all this two months – those which are necessary for adoption of requirements of creditors are taken away, as a rule. As a result on hands at wishing to be transformed FH there should be documents which will be necessary for steps 4 and 5.
Let’s make small retreat for several important nuances.
As to structure of founders, FH as the legal entity can’t act as the founder of open company as at registration of the last the farm stops the existence. As founders individuals – members of the former FH can act. The structure of founders 000 can include also other persons which were not before members of a farm.
FH property (except the land lots of agricultural purpose) can be transferred in an authorized capital 000 as a contribution of the founder, but to do it it is not recommended. It is more expedient to create an authorized capital in the minimum size established by the law (since October 1 of 54 500 UAH., i.e. 100 minimum wages). All other property of open company will receive under the transfer act.
The land lots being in a property of FH, it is necessary to renew on open company. Those sites which belong on an ownership right to members of an economy, remain in their property and can be rented by new open company. The sites being in continuous using of FH, it is necessary raspaevat before reorganization procedure as according to the Land code of open company can’t have the land lots on the right of continuous using. As to the sites rented by FH, all depends on conditions dogovora rent: them can use before the termination of a lease term or contracts on their rent are subject to renewal (with all that it implies to state registration).
The property which is subject to the state regiyostratsiya, for example vehicles, real estate, also it is necessary to renew on the new enterprise.
Step 4. Carrying out state registration of the termination of the legal entity.
After the completion of procedure of the termination, but not earlier than two months from the date of the announcement publication in specialized printing it is necessary for mass media, state registrar to submit:
• the filled registration card on carrying out state registration of the legal entity as a result of transformation;
• the certificate on state registration of the legal entity which stops;
• original of constituent documents;
• notarized copy of the transfer act.
Let’s remind, the transfer act should be approved by founders (participants) of the legal entity. Signatures of the chairman and members of the commission on the termination of the legal person on this act should be certified by the notary.
Step 5. State registration of the legal entity which is formed as a result of transformation (at the same time with a step 4).
Transformation is considered finished from the moment of state registration of the neogenic legal entity and termination state registration as a result of transformation of the legal entity.
The state registration of the legal entity which is created as a result of transformation, is carried out in the same order in what any new legal entity (Law No. 755 Art. 24) is registered.
Thus, FH is formally liquidated, and open company to which pass all rights and economy duties at the same time is registered.
Tax and accounting aspects
Re-registration 000
As it was specified in the first part of consultation, as a result of change of an organizational and legal form one enterprise (farm) stops the activity, and another (000) is created. In this regard it is necessary pereregistrirovatsya in taxing authority and bodies social, including pension, insurance.
And we will notice that a duty to notify bodies of GNS and statistics, PF and social insurance funds about change of an organizational and legal form of the enterprise is assigned on the state registrar.
So, according to item 14 of Art. 29 of the Law No. 755 the state registrar should not later than the next working day from the date of registration of changes transfer to the above-named bodies:
• the notice on carrying out state registration of changes in constituent documents with ukazayoniy numbers and dates of introduction of the corresponding record in the Uniform state register;
• data from a registration card about carrying out state registration of changes in constituent documents of the legal entity.
Let’s consider features of a re-registration in each of the specified bodies.
In body of tax service.
As the standard of one more document confirms (Instruction item 7.2 about an order of the taxpayer registration, approved by the order GNAU from 19.02.98 of No. 80), the taxing authority brings data on changes of the status of the taxpayer on the basis of the data received from the state registrar.
The new certificate of his statement on the account in a form No. 4-OPP in this case should be given out to the taxpayer.
Pay attention: enterprise reorganization, including by change of an organizational and legal form, is the basis for carrying out unplanned exit inspection. Tax service, organizing such check, will lean on the data received from the state registrar on introduction into the record State registry on the decision of founders to carry out enterprise reorganization.
In body of the Pension fund.
Throughout three working days from the date of receiving from the state registrar of necessary data 000 the new notice of statement on the accounting of the legal entity (should be sent to item 2.3 of the Order of statement on the account and removals from the account in bodies of the Pension fund of Ukraine legal entities and individuals – businessmen as payers of the insurance fees, Board of PFU approved by the resolution from 10.10.06 of No. 14-4).
In Social insurance funds.
On the basis of the data received from the state registrar in Social insurance funds (on temporary disability, on an unemployment case, from an occupational accident) corresponding changes are made to a personal record of the insurer. Thus personal number of the insurer remains the same.
It is necessary to notice that at change the Social Insurance Fund enterprise nazvayoniya from occupational accidents sends to the payer of insurance fees the registered mail with the investment inventory the new insurance certificate in which the made changes are considered and the mark about a re-registration is made.
As well as for tax, reorganization of the enterprise is the basis for carrying out unplanned documentary inspection by bodies of the Social Insurance Fund on an unemployment and Social Insurance Fund case on VPT.
Bank accounts and press.
Open company created as a result of transformation should close in banks of the account of a farm and to open them on itself (Instruction item 20.2, 20.3 about an order of opening, use and closing of accounts in national and the inostranyony currencies, approved by the resolution of Board of NBU from 12.11.03 of No. 492). For this purpose after the registration society should put in statements in the relevant bank two:
• about closing of a current account of a farmer hozyayyostvo;
• about opening of the account of open company.
Besides, it is necessary to present copies of the following documents:
• certificates on open company state registration;
• open company charter (it should be certified by the notary or the state registrar);
• certificates of open company introduction in EGRPOU;
• forms No. 4-OPP about open company statement on the account in body of tax service;
• notices of registration as the payer of the insurance fees who has been given out by body of the Pension fund;
• the insurance certificate issued by working body of executive management of the Social Insurance Fund from occupational accidents;
• a notarized card with samples of signatures and an impress of a seal.
Copies of all these documents should be certified by the notary, the body which has issued the relevant document, or the authorized employee of bank.
Again created open company should replace also the press and enterprise stamps. For this purpose the head of open company should file such documents to body of the Ministry of Internal Affairs:
• the application for receiving permission for registration of the demand for manufacturing of the seals and stamps (permission should be given out within five days);
• notarized copy of the certificate on open company state registration;
• samples (sketches) of the seals and stamps (in duplicate).
It is necessary to hand over old seals to body of the Ministry of Internal Affairs for destruction about what the corresponding petition should be submitted.
FSN
In this section we will talk about, whether the enterprise which before transformation was the payer of FSN can, to keep this status after reorganization.
The matter is settled by the Provision on an order of collection and the accounting of the fixed agricultural tax, the approved resolution KMU from 23.04.99 of No. 658 (further – Situation).
So, according to Situation item 8 the agricultural enterprise created by transformation, can be the payer of a tax in a year of transformation, if the sum received by it from realization of agricultural products of own production and products of its processing throughout the last tax period, sostavlyaet not less than 75 % of total amount of a gross income.
Thus the enterprise stopping the existence (in our case a farm) should submit to bodies of tax service specifying calculation of FSN in which the sums of the tax obligations or debts if those are available (Situation items 6 are reflected). That is in calculation the farm should reduce the sums of the tax obligations on FSN which it is necessary to pay from the moment of transformation and until the end of the year.
In turn "newborn" open company for confirmation of the status of the payer of FSN should within 20 calendar days of the month following after a month of its creation, to submit tax calculation from creation date till the end of the current year. And to file other documents confirming such status for a year (calculation of specific weight, extraction from a land cadastre and so forth), it is not necessary.
For 10 days after giving of tax calculation of FSN to the enterprise the certificate of confirmation of the status of the payer of a fiksiroyovanny agricultural tax stands out.
Thus, if the enterprise before change of an organizational and legal form was the payer of FSN, it remains to them and after it, but under condition of giving of tax calculation of FSN.
VAT
By transfer on transfer balance of an imushcheyostvo from a farm to open company there is a question of charge at this VAT.
Cession of property isn’t assessed with the VAT according to subitem 3.2.8 of the Law on the VAT. However on property (the goods, fixed assets) at which acquisition the tax credit was reflected, it is necessary to recognize uslovyony sale, having added on its cost of the VAT. That is FH should null reflected earlier tax credit. Thus the farm writes out the tax consignment note where specifies itself in quality and the seller, and the buyer.
The similar opinion is stated to GNAU in the letter from 12.03.08 of No. 4672/7/16-1517-05.
What turns out? The new enterprise won’t have the right to the tax credit on the received property as the farm should write out the tax consignment note not on it, and on itself. And such consignment note of the right on the tax credit of open company doesn’t give.
As we see, change of an organizational and legal form is unprofitable in respect of VAT taxation therefore in this situation it is necessary to look for ways of optimization of a tax. For example, the farm sells the commodity remains under the counter to the friendly enterprise, and open company after their registration at it and buys. Then open company at least will keep the right to the tax credit.
Special modes of payment of the VAT.
For agricultural producers of item 11.21 and 11.29 of the Law on the VAT special modes of payment of the VAT are provided.
Let’s remind, a special mode, established item 11.21 (animal husbandry), all agricultural enterprises use at implementation of operations on sale of milk, cattle, a bird, wool, and also dairy production and meat products. Therefore if again created enterprise didn’t change a kind of activity, it continues to represent
the special declaration on the VAT (animal husbandry), and the sums of the VAT lists on the special bank account.
As to item 11.29 of the Law on the VAT use this special mode only those agricultural enterprises at which for last fiscal year the sum received from realization of agricultural production of own production, makes not less than 50 % from total amount of a gross income can.
Whether the enterprise created as a result of change of an organizational and legal form will use the specified special mode? We consider that will be. After all, as it was told above, after transformation all rights and obligations of the old enterprise pass to the new.
Therefore, if the enterprise applied a special mode of payment of the VAT according to item 11.29 of the Law on the VAT, and after transformation at sale of production (services) of own production it is obliged to represent the special declaration on the VAT on a contracted form and to list the VAT for the separate bank account.
Indirectly this point of view is confirmed also by that fact that at transformation of the payer of FSN the new enterprise still remains to that, after all conditions of receiving the status of the payer of FSN and prava on a special mode on the VAT are almost identical.
Accounting.
In accounting all assets and passives as a result of change of an organizational and legal form of the enterprise pass to again created enterprise. This operation is carried out under the transfer act (it is made out in the form of transfer balance), that is assets and passives from balance of one enterprise pass to balance of another.
For transferring of the remains on all accounts from balance of FH on balance of open company subaccount 683 Intraeconomic calculations in correspondence with accounts of assets, passives and obligations is used. Also before drawing up of transfer balance of FH it is necessary to close all accounts according to the accounting of the income and expenses, that is to create financial result. Received on subaccount 441 (or 442) the balance is transferred on balance of novoisyopechenny open company.
On magazine materials Balance – Agro.