In the course of structuring a business and building a group of companies, the question of maintaining the controllability of the entire group always arises, provided that, as a rule, the management staff of the business is one and it is impossible to divide it between companies.
As a result, this always leads to the need to search for such a management option, when the owner still has the ability to control and influence decision-making both on the entire business as a whole and on any of its segments, despite the economic independence of each member of the group.
In this case, when designing a business model, a management company can act as a link between its individual elements.
A management company is any organizational and legal form (according to our experience, not only LLCs or JSCs, but also cooperatives, partnerships, partnerships and even non-profit organizations) can act as a management company, accumulating a complex of strategic, tactical, general marketing (including brand management) ), organizational, motivational and control functions, as well as the functions of scientific and technical development and financial management for all other entities of the Group of Companies.
The formation of such a functionality of the management company is due to the following economic and managerial reasons:
1. The presence of a need for all subjects of the group of companies in common support functions for all:
accounting, legal, marketing and other services, the provision of which by employees of a specialized organization is organizationally and economically more profitable than the creation of similar full-time services in each individual company.
Most often, managed legal entities do not have their own lawyer, accountant, or system administrator - all this is done by the personnel of the management company. Objectively, not every business is able to pull such a staff in each individual organization of the Group. But even with this variant of the organizational structure, there should be a central link that manages the employees in the field.
Therefore, there are cases of creating functionally similar services both in the management company and in the managed society (for example, when the structure is branched, when individual companies are significantly removed from each other and from the management company itself), however, in this case, the management company is engaged in solving strategic problems, then how employees of a managed company perform current work that does not require high qualifications and knowledge of the strategic business development plan as a whole.
2. The ability to quickly implement and develop, as well as adjust the previously developed strategy for the activities of the group of companies as a whole.
Undoubtedly, business owners need to have full information about its functioning, financial performance, the degree of effectiveness of previously made management decisions.
In this sense, the value of direct receipt of information about all significant events directly to the "headquarters" is invaluable for both owners and top management.
3. Transfer of management from the plane “he is the most important here, everyone knows him” into the legal field, formalization of relations between the managing and subordinate companies by civil law means and thereby ensuring the necessary degree of control over the activities of managed companies.
In our practice, we have repeatedly encountered situations where, as a business with a small number of owners grows, new companies are registered, the leaders of which are only formally such; in fact, leadership is concentrated in the hands of the real beneficiaries.
But there comes a time when the number of personnel and the number of individual organizations within one business reaches a critical level, the owners are not recognized by sight and do not obey their verbal orders (and they are not entitled to issue written ones). Worse, a nominee director can “do things,” because he legally has the right to make decisions that will lead to adverse consequences (primarily of a financial nature).
We must not forget about the costs of wages of a nominee manager, which you will incur one way or another, as well as the need to pay social taxes.
It is management through the Criminal Code that helps to avoid such negative moments.
4. The possibility of legally reducing the tax burden through the use of the Criminal Code of the simplified taxation system.
The contractual regulation of the relationship between the management company and the managed companies can be mediated by two types of contracts:
contract for the provision of management services;
contract for the performance of the functions of the sole executive body.
The choice of one or another contractual instrument depends on a number of factors and the specific structure of the group of companies. Consider the features of the application of each of the contracts separately:
Contract for the provision of management services.
At the conclusion of this agreement, all or some of the strategic, as well as auxiliary functions in relation to the operating core, are transferred to the management company: legal, accounting and personnel support, security, etc., the need for which all holding entities experience, however, the creation of similar units in each of them is unprofitable and impractical.
The task of the management company in this case is to determine the main vectors of activity (to develop a marketing strategy, to carry out scientific and technical development, to issue a program of activities of a group of companies for a year, etc.), which all managed companies must follow without exception.
At the same time, it should be noted that the managed company has its own sole executive body (director, sole proprietor or other managing company, but in the role of the sole executive body (SEO)), which carries out operational management of the company, makes all current decisions and is responsible for the financial result. It is he who is listed in the Unified State Register of Legal Entities as a subject entitled to act on behalf of the company without a power of attorney.
With such interaction between the CEO and the management company, the former is limited only by the strategic framework set by the management company, and is completely independent in the process of managing the current activities of his company. Moreover, these frameworks (in the form of reporting forms and periods, as well as a liability mechanism) can and should be laid down both in the contract with the management company (this is the condition under which the management company undertakes to manage), and in the contract with the CEO himself.
However, our experience shows that owners (especially when transforming a single company into a holding company) do their best to avoid delegating authority to hired managers, fearing that they will get out of control.
In this case, the mind comes into conflict with feelings: on the one hand, the owner understands the objective need to “give up” the reins of government (a non-core type of activity specifically for him, employment in another project, the inability to cover all areas of his business), and on the other hand, psychologically cannot come to terms with the fact that someone else will manage his brainchild.
In this regard, the issue of trust to a hired manager on the part of the owner is of particular relevance.
At the same time, one cannot fail to note a significantly higher degree of personal interest of the director in the results of the activities of the managed company, compared to the contract for the transfer of functions of the sole executive body, which is automatically reflected in the level of his personal (and not imposed from outside) responsibility.
It is thanks to this instrument of a controlled increase in the degree of independence that a synergistic effect is achieved from business structuring - tax optimization can be strengthened by increasing managerial efficiency.
In addition, in the event of any adverse consequences of the activities of the managed company (the simplest example is tax claims), it is unlikely that anyone will be able to definitely assert (and prove) that such consequences occurred as a result of the direct orders of the Criminal Code by the director of the managed company.
In other words, the management company will protect itself from negative consequences, and will also be able to maintain its business reputation and well-established image, referring to the "amateur" of the hired director.
Agreement for the performance of the functions of the sole executive body
Recall that the possibility of transferring authority to manage the organization of the Management Company is provided for by a number of federal laws:
For example:
p. 1, art. 42 of the Federal Law on LLC: The company has the right to transfer the exercise of the powers of its sole executive body to the manager under the contract. paragraph 1 of Art. 69 of the Federal Law on JSC: By decision of the general meeting of shareholders, the powers of the sole executive body of the company may be transferred under an agreement to a commercial organization (managing organization) or an individual entrepreneur (manager).
In this case, an agreement is concluded with the management company for the transfer of functions of the sole executive body. It is the management company (in the person of its director) that receives the authority to act on behalf of the managed company without a power of attorney: to represent the interests of the managed company in all organizations and institutions, and also to enter into any economic relations. Key business managers, its owners in this case are employees and / or participants of the management company and already at its level and on behalf of the management company perform all management functions.
Of course, the director of the management company cannot effectively manage the management company itself, and even all the managed companies, therefore, on the basis of a power of attorney, he delegates his powers to a special employee who will be the actual head of the managed company.
At the same time, such an actual leader is on the staff of the Criminal Code (!) and receives a salary in it.
The degree of control of the owners, accountability and responsibility, as well as the degree of independence of the actual manager in making decisions in this case is determined by the provisions of the employment contract with the Criminal Code.
A negative consequence of the appointment of such a manager may be the low degree of his responsibility and the lack of a deep personal interest in the results of the managed company.
As you can see, the inclusion of the Management Company in the business model undoubtedly helps to solve many difficulties in the presence of an extensive legal business structure.
At the same time, given the realities and trends of tax administration, one cannot ignore the question of how the management company is viewed from this side.
After all, the existence of the Criminal Code gives reason to talk about the affiliation of the entities it manages with each other (even if the owners of the companies do not match). Of course, when it comes to, for example, purely accounting and legal services (not about the status of a management company as a CEO) and such services are provided not only to organizations linked by contractual relations, but also to outside entities, it will be difficult to recognize affiliation on this basis. With the option of fulfilling the role of CEO - the presence of a single managing entity for several legal entities, which are all the more connected by other agreements with each other (which usually happens if the business is built within a group of companies) will link all organizations into a single structure.
This is not critical if all subjects apply DOS and there is no possibility for the tax savings described above by applying the same Criminal Code of the simplified tax system. However, such affiliation will attract attention when it comes to the interaction of entities in different special regimes, which by itself leads to minimization of taxation on business income.
Considering that the tax authorities are paying more and more attention to such structures, trying to justify the artificiality of their division into several entities or the unreasonableness of the costs of attracting the management company itself, regarding the separation of the management company, the following rules must be observed:
1) The types of services provided should be specified. The more detailed the subject of activity of the Criminal Code is described, the more difficult it is to prove the artificiality of its separation in a group of companies (see, for example, the Resolution of the Seventeenth Arbitration Court of Appeal dated October 30, 2012 No. 17AP-11284/12: the taxpayer managed to win the dispute by maximally detailing the evidence of the performance of the contract In the report on the performance of the powers of the CEO, the amount of work performed to manage the current activities is indicated with a breakdown of the work performed by employees of specific departments (services) and even the amount of hours spent on each service is indicated).
Considering that at the moment many companies use various software systems that allow tracking the time of completion of certain tasks by employees, the solution to the problem of collecting such information can be automated.
At the same time, the Management Company, in the role of the sole executive body, carries out the current management of the company, a full detailed description of which in the contract is impossible. Both corporate legislation and, as a rule, company charters usually leave residual competence for the CEO: “and other things not related to the powers of other bodies of the Company”. Therefore, if the management agreement with the management company in the role of CEO does not contain a specific list of the powers of the management company, it is impossible to talk about the absence of detailing the functions of the management company, and, consequently, its artificial allocation. This conclusion is also supported by jurisprudence:
Due to the very nature of current management activities, it is impossible to exhaustively determine the competence and terms of reference of the CEO (Management Company) not only at the level of law, but also at the level of the company's Charter, agreement on the transfer of powers, local regulations, since it is impossible to foresee all issues, daily arising in the activities of the managed organization and which are not referred to the exclusive competence of the general meeting and the board of directors.
Decree of the Federal Arbitration Court of the West Siberian District dated May 12, 2014 No. F04-2761 / 14 in case N A81-2271 / 2013
2) You must carefully refer to the description of the procedure for calculating the remuneration of the management company for its services.
So, if you tie remuneration to the achievement of any indicators (growth in revenue, profit, number of customers, etc.), you need to confirm their achievement or failure each time, draw up all the necessary documentation. Otherwise, the tax authority will challenge the payments towards the Criminal Code (Resolution of the Arbitration Court of the North Caucasus District dated July 11, 2016 N F08-3871 / 16 in case No. A01-1790 / 2015, Resolution of the Fifteenth Arbitration Court of Appeal dated February 16, 2016 No. No. 15AP-22105/15).
As a rule, the courts, taking the side of the tax authority, say that they could not confirm what specific work the management company performed and how the cost of each type of its services was determined. Therefore, a description of the procedure for forming the cost of services rendered in the contract itself and detailing the final cost for each period of activity of the Management Company is a prerequisite for working with the Management Company.
Of course, the remuneration should include all current expenses of the management company to maintain its activities: office rent, payroll for employees, etc. This amount forms the base amount of remuneration. If a part of the business profit is not accumulated on the management company, then the remuneration may include a fixed fixed amount covering the expenses of the management company with a possible slight increase, for example, no more than 1 time per year (in case of an increase in payroll or other expenses);
The above calculation of remuneration can be complicated if, for example, the payroll of employees depends on their performance indicators and changes from month to month. To do this, companies have developed their own systems for calculating the remuneration of each employee, which can also be used as the basis for calculating the remuneration of the management company. In this case, it will be necessary to detail each indicator in order to confirm the validity of the expenses for the MC in the declared amount.
Along with covering the basic expenses of the MC, remuneration may also include a variable part depending on the financial result of the MC's activities: for example, as a percentage of the revenue or profit of the managed company. This can be either a monthly increase to the base remuneration, or an “annual bonus” to the management company based on the results of the financial year. In any case, remuneration in this form must be justified by the mandatory growth of the managed company's revenue / profit and confirmation that such growth is associated with the activities of the Management Company and its employees. At the same time, of course, this part of the remuneration should not lead to the fact that the entire profit of the operating company flows into the management company, which applies a lower income tax rate.
3) Evidence of the effectiveness and reality of the activities of the management company will be the growth in revenue, profits, assets of the managed company, which, in turn, for example, led to an increase in taxes paid to it (this indicator will be especially valuable).
4) Evidence of the independence of the management company as an economic entity will be the performance of management functions for several companies, preferably not related to each other (for one, for example, in the role of CEO, for another, the provision of only accounting services, etc.).
5) High professionalism of the staff of the management company (in comparison with the managed company), increased requirements for their level of education, work experience, etc. also allow confirming the professional competence and independence of the Criminal Code (see, for example, the Resolution of the Arbitration Court of the North Caucasus District dated January 26, 2015 No. F08-9808 / 14 in the case NА32-25133 / 2013).
Considering the described nuances, it is necessary to carefully approach the legal fixation of the real activities of the Management Company and the procedure for its interaction with its customer of services. In addition to the constant, systematic collection of evidence confirming this activity and its usefulness for managed companies, there should be no problems with the tax authority.
The concept of "management company" is often used in business, while the participants in the discussion do not always talk about the same thing. Difficulties arise at the beginning of the project, when it is not entirely clear to the performers what the bosses agreed on. To understand the status of such a legal entity and choose the right strategy for project movement, the author provides a list of forms and types of legal entities, which are most often called "management company".
Management company - the parent company of the holding
In this case, the management company is understood as a legal entity that has a predominant stake in the authorized capital of other legal entities of the holding (by holding, the author means a group of companies). In other words, this is the head (parent) company of the holding.
The term "managing company" is used in connection with the use by the parent company of corporate governance tools provided by law in order to ensure managerial influence on subsidiaries. Such managerial influence is carried out through ensuring the representation of the ultimate business owners in the supreme management bodies of subsidiaries. The management company, through its representatives, determines the decisions taken by the collegial management bodies of the subsidiary joint-stock company.
Management company - managing organization
In accordance with paragraph 1 of Art. 69 of the Federal Law of December 26, 1995 No. 208-FZ “On Joint Stock Companies”, by decision of the general meeting of shareholders, the powers of the sole executive body of the company may be transferred under an agreement to a commercial organization (managing organization) or an individual entrepreneur (manager).
The company, the powers of the sole executive body of which have been transferred to the managing organization or manager, acquires civil rights and assumes civil obligations through the managing organization or manager in accordance with paragraph one of clause 1 of Article 53 of the Civil Code of the Russian Federation.
The same provision is contained in Article 42 of the Federal Law of February 8, 1998 No. 14-FZ (as amended on December 6, 2011) “On Limited Liability Companies”.
Thus, the so-called "management company" (correctly - the managing organization) performs the functions of the sole executive body on the basis of an agreement concluded with a managed legal entity.
The "management company", as a rule, is one of the legal entities of the holding.
The place of the managing company in the corporate structure of the holding is not a fundamental aspect: the managing company can be either the parent company of the holding (sub-holding) or one of the subsidiaries. In rare cases, the management company becomes a third-party legal entity that professionally provides management services.
Most often, the functions of the sole executive body are transferred to the management company in holdings, where there are several legal entities with the same type of functionality.
Also, a single management company is found in a group of legal entities, within which the functionality of one business process is distributed (operating company, logistics center, profit center, etc.).
In addition, a group of companies can be managed by a single managing organization or several, depending on the purpose of using this tool and a number of other factors. A single managing organization is more suitable for slightly branched single-industry holdings, while in holdings with a heterogeneous industry structure and territorial dispersion of business units, it makes sense to distribute management functions among several managing organizations that perform non-production functions in relation to organizations defined in their jurisdiction, united by industry or territorial attribute.
In some cases, the mechanism for transferring the powers of the sole executive body to the management company is not related to the alignment of the management vertical in the holding. The basis for making such a decision may be the desire to improve the efficiency of business management (an example is the transfer of a hotel building under the management of a company managing a hotel chain), the need to implement a complex business project (during its reorganization, such a mechanism was used by RAO UES), etc.
Management company - design company
A management company as a project company is usually created from scratch by several (more often two, less often three or more) legal entities and / or individuals to implement a specific project, idea or business idea, for example, to introduce a new technology in any industry / production.
In this case, the term "management company" implies that the created legal entity will manage the project throughout the entire period of its implementation (plan, organize, involve third parties, control the timing of the project, "master" the project budget, etc.).
Most often, through participation in the authorized capital of the project company, the owner of material resources (land, production equipment, etc.), the owner of intellectual resources / ideas and the investor who provides funds for the implementation of the project are united (public legal entities often act as the latter) .
For the correct choice of the organizational and legal form of the created legal entity, the parties need to decide on the degree and method of participation in the project of each participant, the purpose of the creation and activities of the project company.
For the purposes of implementing a commercial project, a management company can only be created in the form of a commercial organization, since the law establishes restrictions on the conduct of entrepreneurial activities for non-profit organizations (paragraph 3 of Article 50 of the Civil Code of the Russian Federation), as well as a ban on the distribution of profits among participants (paragraph 1 of Article 50 Civil Code of the Russian Federation, article 2 of the Law on NGOs).
From the point of view of legal features, the design of an LLC is more flexible compared to the design of a joint-stock company (CJSC, OJSC) - LLC participants are provided with more dispositive opportunities for regulating corporate relations in the field of managing and financing LLCs. The main advantages of the design of LLC over the design of JSC (CJSC, JSC) are as follows:
1) the creation of an LLC and the change in its authorized capital are not complicated by issuance procedures (issuance and placement of securities);
2) financing of an LLC can be carried out according to an additional special mechanism (participants making contributions to the property of an LLC without increasing the authorized capital of the LLC and changing the shares of participants);
3) the possibility of expanding (in comparison with the law) the competence of the general meeting of participants;
4) the possibility of determining the procedure for electing the board of directors and the audit commission (by a simple majority of votes or by cumulative voting);
6) the possibility of exclusion of an unscrupulous participant from the LLC.
However, when setting up a project company in the form of an LLC, the following should be taken into account:
1) the law establishes restrictions on the participation of public legal entities in the authorized capital of an LLC;
2) JSC traditionally inspires more confidence on the part of investors, as well as government authorities due to the more stringent formalization of corporate procedures provided for this form. In case of participation of a public legal entity in the authorized capital of the project company:
1) a project company can only be established in the form of an OJSC, since the norms of the current legislation (paragraph 2 of paragraph 4 of Article 66 of the Civil Code of the Russian Federation, paragraph 4 of Article 7 of the JSC Law, Article 7 of the LLC Law), as well as judicial practice (paragraph 5 of the SAC Resolution RF dated November 18, 2003 No. 19) provide that a public legal entity cannot act as a founder (participant) of organizations of other forms (including LLC and CJSC);
2) in accordance with paragraph 2 of Article 80 of the RF BC, budget investments planned to be provided to legal entities in the form of a contribution to their authorized capital are approved by the budget law by including an article in the budget law indicating the legal entity, the volume and purpose of the allocated budget allocations.
Management company on the basis of the law
If all of the above types of management companies have developed from the custom of business turnover, then the creation and activities of the following are regulated in detail by law. Let's consider some of them.
Bank holding management company
A commercial organization, which, in accordance with Federal Law No. 395-1 of December 2, 1990 “On Banks and Banking Activities”, can be recognized as the head organization of a banking holding company, in order to manage the activities of all credit institutions included in the banking holding company, has the right to create a managing banking holding company. In this case, the managing company of the bank holding company performs the duties that, in accordance with the said federal law, are assigned to the head organization of the bank holding company.
In accordance with Part 6 of Article 4 of Federal Law No. 395-1 of 02.12.1990 “On Banks and Banking Activities”, the managing company of a banking holding company is recognized as an economic company whose main activity is managing the activities of credit institutions included in the banking holding company.
The management company of a banking holding is not entitled to engage in insurance, banking, production and trade activities. A commercial organization that can be recognized as the head organization of a banking holding must be able to determine the decisions of the management company of the banking holding on issues falling within the competence of the meeting of its founders (participants), including its reorganization and liquidation.
Fund management company
In accordance with Article 38 of Federal Law No. 156-FZ of November 29, 2001 “On Investment Funds”, only a joint-stock company or a limited (additional) liability company established in accordance with the legislation of the Russian Federation can be a management company.
The management company may use in its name the words "investment fund", "joint-stock investment fund" or "unit investment fund" in combination with the words "management company".
Management (trust management) of the assets of a joint-stock investment fund and trust management of a unit investment fund may be carried out only on the basis of a license from the management company. On the basis of this document, trust management of other assets may also be carried out in cases provided for by federal laws.
The requirements for the composition and structure of assets of joint-stock investment funds are regulated by the Order of the Federal Financial Markets Service of the Russian Federation dated December 28, 2010 No. 10-79/pz-n “On Approval of the Regulations on the Composition and Structure of Assets of Joint-Stock Investment Funds and Assets of Mutual Investment Funds”.
Management company in the field of housing and communal services
The management company (organization) is the utility operators that manage the housing stock and engineering infrastructure.
The activities of such organizations are regulated by the Housing Code of the Russian Federation of December 29, 2004 No. 188-FZ (hereinafter referred to as the Housing Code of the Russian Federation).
In accordance with Part 1 of Article 162 of the Housing Code of the Russian Federation, under an apartment building management agreement, one party (managing organization) on the instructions of the other party (owners of premises in an apartment building, management bodies of a homeowners association, management bodies of a housing cooperative or management bodies of another specialized consumer cooperative, or, in the case provided for by Part 14 of Article 161 of the Housing Code of the Russian Federation, the developer) within the agreed period, for a fee, provides services and performs work on the proper maintenance and repair of common property in such a house, provides utility services to owners of premises and persons using premises in this house, as well as carries out other activities aimed at achieving the goals of managing an apartment building.
Management company established on the basis of a special federal law
In this case, we are talking about a “project company” at the federal level. One of such projects is the creation of the Skolkovo innovation center. In accordance with the basic concepts enshrined in the Federal Law of September 28, 2010 No. 244-FZ “On the Skolkovo Innovation Center” (hereinafter referred to as the Federal Law “On the Skolkovo Innovation Center”), the management company is a Russian legal entity, which in order established by the President of the Russian Federation, the responsibility for the implementation of the project is assigned.
In the Decree of the President of the Russian Federation No. 446-rp dated 02.07.2010 “On the Creation and Operation of the Skolkovo Innovation Center”, the non-profit organization “Development Fund of the Center for the Development and Commercialization of New Technologies” is named as the managing company.
The specifics of the activities of such a management company are established by the Federal Law “On the Skolkovo Innovation Center”, decisions of the President of the Russian Federation and the constituent documents of the company. The change in the constituent documents of the management company is carried out in agreement with the advisory body under the President of the Russian Federation, formed in order to ensure the interaction of federal state authorities, state authorities of the constituent entities of the Russian Federation, local governments, public associations, scientific and other organizations when considering issues related to modernization of the economy and innovative development of Russia.
It should be noted that the Federal Law “On the Skolkovo Innovation Center” caused an ambiguous assessment by experts, since it granted the management company, a private legal entity, fairly broad powers, including urban planning and supervisory functions, ensuring the sanitary and epidemiological welfare of the population on the territory of the center, regulating medical and educational activities, etc., which are essentially state-owned. Time will tell how the project will be implemented in practice.
I. General provisions.
1.1. The General Director of the Managing Company MKD (ZHKH) (hereinafter referred to as the UK) belongs to the category of managers.
1.2. A person with higher technical or economic education is appointed to the position of General Director; and work experience in a managerial position for at least 5 years (in construction, the production of building materials, housing and communal services, etc.); ability to manage staff, organize work and control its execution.
1.3. The General Director reports directly to the general meeting of the founders of the organization that performs the functions of the management company.
1.4. Appointment to the position of the General Director and dismissal from it is made by the decision of the general meeting of the founders.
1.5. Directly reporting to the General Director of the Criminal Code
Executive Director,
Deputy General Director for Marketing,
Lawyer, Chief Accountant,
Heads of structural divisions,
Office Manager / Secretary of the Criminal Code.
1.6. During the absence of the General Director, his official duties are performed by an employee of the Management Company appointed by order, belonging to the category of managers, who is responsible for their high-quality, efficient and timely implementation.
1.7. An irregular working day is established for the General Director of the Criminal Code.
1.8. In his work, the Director General of the Criminal Code should be guided by:
(Knowledge of the CEO should cover many aspects of the activities of the housing and communal services in general and the Criminal Code in particular.).
1) the requirements of the current legislation of the Russian Federation;
2) legislative and regulatory legal acts regulating the production and economic and financial and economic activities of the organization,
3) resolutions of federal, regional and local bodies of state power and administration that determine the priority directions for the development of the economy and the relevant industry;
4) methodological and regulatory materials of other bodies relating to the activities of the organization;
5) the Charter of the Company and other internal regulatory documents of the Company;
6) this Job Description.
1.9. The CEO must know:
1) profile, specialization and features of the structure of the organization;
2) production capacity and human resources of the organization;
3) tax, civil and environmental legislation;
4) the procedure for compiling and agreeing on business plans for the production, economic and financial and economic activities of the organization;
5) market methods of managing and managing the organization; a system of economic indicators that allow the organization to determine its position in the market and develop programs for entering new markets;
6) the procedure for concluding and executing economic and financial contracts;
7) market conditions;
8) management of the economy and finances of the organization,
9) organization of production and labor;
10) labor legislation; legislation on labor protection, rules and norms of labor protection.
1.9. Must have experience with a personal computer, software products.
II. Job Responsibilities
(The functions of this position are concentrated in the constant monitoring of the continuous provision of residents of apartment buildings with the highest quality services, without disruptions and accidents. The General Director of the Housing and Utilities Management Committee is obliged to know everything about the state of affairs of the enterprise, including finances, and to have information about the work of each of his employees )
2.1. The immediate responsibilities of the General Director of the Criminal Code include:
1) Management in accordance with the current legislation of the production, economic and financial and economic activities of the organization.
2) Organization of work and effective interaction of all structural divisions, direction of their activities to the development and improvement of production, taking into account social and market priorities.
3) Improving the efficiency of the organization, increasing sales volumes and increasing profits, quality and competitiveness of products, their compliance with international standards in order to conquer the domestic and foreign markets and meet the needs of the population in the relevant types of domestic products.
4) Ensuring that the organization fulfills all obligations to the federal, regional and local budgets, state non-budgetary social funds, suppliers, customers and creditors, including bank institutions, as well as economic, labor contracts and business plans.
5) Organization of production and economic activities based on the widespread use of the latest technology and technology, progressive forms of management and organization of labor, scientifically based standards of material, financial and labor costs.
6) Studying the market situation and best practices (domestic and foreign) in order to improve the technical level and quality of products (services), the economic efficiency of its production, the rational use of production reserves and the economical use of all types of resources.
7) Organization of providing the management company with all the necessary material and technical conditions of activity.
8) Taking measures to provide the Criminal Code with qualified personnel, rational use and development of their professional knowledge and experience, creation of safe and favorable working conditions for life and health, compliance with the requirements of environmental protection legislation.
9) Ensuring the correct combination of economic and administrative methods of leadership, unity of command and collegiality in discussing and resolving issues, material and moral incentives to improve production efficiency, applying the principle of material interest and responsibility of each employee for the work entrusted to him and the results of the work of the entire team, paying wages in deadlines.
10) Together with the labor collective and trade union organizations, on the basis of the principles of social partnership, it ensures the development, conclusion and implementation of a collective agreement, compliance with labor and production discipline, promotes the development of labor motivation, initiative and activity of workers and employees of the Criminal Code
11) Development and approval of the staffing table of the Criminal Code of other local regulatory legal acts, organization of certification, organization of training for subordinate employees of the branch.
12) Resolving issues related to the financial, economic and production and economic activities of the Criminal Code, within the limits of the rights granted to it by law, entrusting the conduct of certain areas of activity to other officials - Deputy General Directors, heads of production units and branches of the Criminal Code, as well as functional and production divisions:
- conclude agreements with suppliers of energy resources (water, electricity, heat, gas);
- control timely payment to resource suppliers;
- in accordance with plans, organize the implementation of current repairs in the common areas of houses;
- control the implementation of current and preventive repairs of process equipment (pumps, boilers, elevators, etc.);
- coordinate the activities of the UK specialists for the proper operation of external and internal highways and networks;
- take measures to improve the improvement of the territory adjacent to the house;
- control the financial condition of the UK;
13) Ensuring, at the request of authorized state bodies and other organizations, the provision of information and reporting on the activities of the Criminal Code in the manner prescribed by law and internal documents of the Criminal Code.
14) Ensuring the safety of material assets belonging to the Criminal Code.
15) Ensuring compliance with the law in the activities of the management company and the implementation of its economic and economic relations, the use of legal means for financial management and functioning in market conditions, strengthening contractual and financial discipline, regulating social and labor relations, ensuring the investment attractiveness of the management company in order to maintain and expand the scale entrepreneurial activity.
16) Protection of the property interests of the Criminal Code in court, arbitration, public authorities and administration.
III. Rights.
3.1. The General Director of the Criminal Code has the right:
1) Draw up and sign financial, reporting and other documents related to the level of his competence.
2) Represent the interests of the Criminal Code without a power of attorney in relations with citizens, legal entities, institutions, organizations, state authorities and administration.
3) Conclude and terminate on behalf of the Criminal Code any types of contracts, including labor contracts.
4) Open all types of MC accounts in banks.
5) Approve and sign the Job Descriptions of subordinate employees, orders, orders, give instructions within their competence that are binding on subordinate employees.
6) Approve the Internal Labor Regulations and other local regulatory documents of the Company that fall within its competence.
7) Dispose of property and funds of the Criminal Code.
8) Issue powers of attorney.
9) Approve the staffing of the Criminal Code.
10) Hire and fire employees of the Criminal Code.
11) Encourage and bring to disciplinary and financial responsibility employees of the Criminal Code
12) In accordance with the legislation of the Russian Federation, determine the system, forms and amount of remuneration and material incentives for employees of the Criminal Code. Ensures the implementation of the collective agreement;
13) Submit issues related to his activities and within the scope of his competence, for consideration by the general meeting of the founders of the organization in the manner determined by the legislation of the Russian Federation and the Charter of the organization.
14) Obtain the necessary clarifications from subordinate employees of the Criminal Code.
15) Make decisions within its competence, for example, coordinate calculations and approve tariffs, contractual prices for services;
IV. Responsibility.
(The General Director of the Criminal Code mustbe responsible to municipal authorities and residents for the quality of the enterprise, etc.)
4.1. The General Director of the Criminal Code bears the responsibility provided for by the legislation of the Russian Federation and this job description:
1) For poor-quality and untimely performance of duties and failure to fulfill the rights provided for by this Job Description.
2) For losses caused to the Company by its guilty actions (inaction) in the process of fulfilling the functions and duties provided for by this Job Description.
3) For disclosure of information containing commercial secrets. The General Director is obliged to maintain the confidentiality of information about the Criminal Code and not to use it for his own personal interests.
4) For the consequences of the decisions made, the safety and efficient use of the Company's property, as well as the financial and economic results of its activities - in accordance with the Charter of the Company and current legislation.
5) For causing material damage to the Criminal Code - within the limits determined by the current labor and civil legislation of the Russian Federation.
6) For offenses committed during the period of its activities - in accordance with the current civil, administrative and criminal legislation.
7). The General Director of the Company bears personal responsibility for the consequences of decisions taken by him that go beyond his powers established by the current legislation, the Charter of the Company, and other regulatory legal acts. The General Director of the Company is not released from liability if the actions entailing responsibility were taken by the persons to whom he delegated his rights.
8. The General Director, who unfairly uses the property and funds of the Company in his own interests or in the interests contrary to the interests of the founders, shall be liable within the limits determined by civil, criminal and administrative law.
Managing organization- in fact, the same general director, only being a legal entity. Carrying out management of managed companies, she acts on their behalf without a power of attorney, on the basis of the decision of the founders to transfer to her the powers of the sole executive body and an agreement on the indication of management services. Often this type of leadership is used in holdings, where one firm manages the affairs of each of the group of companies, thus ensuring a unified policy of their actions. The holding creates a management company specifically for itself (or the parent company becomes it). There are also specialized management organizations that offer their services to everyone. They are approached as high-class managers by firms that need to solve some strategic problems: get out of the crisis, achieve a certain position in the market, etc. And finally, a management company may be needed as part of a well-known income tax savings scheme: management services are ephemeral and expensive, and their cost, if properly justified and paperwork, reduces taxable income (clause 18, clause 1, article 264 of the Tax Code).
The management company receives the powers of the permanent executive body of the company(in the usual management scheme, this is the general director). The decision to transfer powers is made by a meeting of participants (in an LLC - clause 3 of article 42 of the Law of February 8, 1998 N 14-FZ) or a general meeting of shareholders (in JSC - clause 1 of article 69 of the Law of December 26, 1995 N 208-FZ), at the same time abolishing the position of director. These changes must be reflected in the founding documents. Information about the permanent executive body is part of the state register of legal entities. Companies are required to notify registrars, that is, tax authorities, of any change in the information contained therein (clause 2, article 17 of the Law of August 8, 2001 N 129-FZ). To do this, an application is submitted to the inspection in the form P14001, in which there is a separate sheet "B" "Information about the person entitled to act on behalf of a legal entity without a power of attorney (management company)".
Note. Why is a management company better than a director?
- transfer of administrative and criminal liability from an individual - a director - to a management company and its employees;
- less likely to embezzle or embezzle the company's funds;
- a single policy for several firms of the same owner;
- an employment contract is concluded with the director, and a civil law contract with the management company (contract for the provision of services). Legislation shifts labor relations in the direction of protecting the rights of an employee, civil law relations are built on equality: you can prescribe a larger scope of tasks and significant measures of responsibility (you cannot recover a fine from a director for poor work);
- greater control over the actions of the company's management. The founders can be sure that the management company will follow exactly the course that they need;
- reducing the number of employees, saving on wages and insurance premiums by transferring administrative functions to the side.
And here it may turn out that the company must be registered with the inspection at the location of the managing organization - if the places of their tax "registration" do not match. It sounds absurd, because the company managed by the outside remains in its original place. However, a literal reading of the law confirms that its new legal address, and therefore, should be the address of the management company, and the actual address will have to be registered with the inspectorate as its own separate division. Moreover, all obligatory interaction with funds - payment of insurance premiums, delivery of settlements, notification of opening bank accounts, etc. - should also take place in those departments to which the legal address of the company belongs.
The law is harsh. But stupid
In which inspection you need to register for tax, Art. 83 of the Tax Code. She establishes that firms are subject to tax registration at their location. The Civil Code (clause 2, article 54) names the location of a legal entity as the place of its state registration, which, in turn, is carried out at the location of its permanent executive body (in the absence of such, another body or person entitled to act from company name without a power of attorney). There is exactly the same provision in the Law on State Registration of Legal Entities and Entrepreneurs of August 8, 2001 N 129-FZ (clause 2, article 8). The location of the Civil Code requires that it be indicated in the constituent documents (clause 3, article 54, clause 2, article 52). It is easy to guess that, when compiling these norms, they simply did not think about firms that use the services of managing organizations.
So it turns out that the address of the managing organization that has assumed the powers of the permanent executive body of the company becomes the location of the latter. Hence the need to change the tax office. It turns out that the managed companies in this case become hostages of the manager: every time the latter moves, all her "wards" will "run" after her for inspections.
This will not suit, as one might assume, the tax authorities themselves. The idea of tax accounting at the location of the company is based on the fact that the taxpayer controlled by a particular inspectorate is always available, so that if necessary, it can easily find him, contact him, check, get information from him, etc. It is unlikely that inspectors will like to go to another region for inspections, and such trips would be for the budget. In addition, the need to "register" a managed company at the address of the manager provides an unprofitable opportunity for inspectors to transfer tax disputes to courts convenient for the taxpayer (for example, to those in which there is a positive practice for him on a particular issue).
This state of affairs is not beneficial for local authorities either. It is unlikely that they will be delighted when the big business of the city is re-registered in another region. And finally, attracting to the leadership of a foreign company that does not have a representative office in the Russian Federation, which is located somewhere in Cyprus and will manage the Russian ward organization from there, will lead the situation to a legal impasse: by the letter of the law, it will turn out that the latter no longer has a location in the Russian territory.
It is inconvenient to register at the location of the managing company and for the managed organization itself. The "charms" of the procedure for switching to another tax authority and subsequent interaction with territorially remote inspectors can seriously complicate the work. Having changed its own legal address to the address of the management company, the company will be required to indicate the latter in contracts, "primary" and invoices. The discrepancy between the legal address and the actual one will inevitably alert counterparties - tax claims against those who contact "problem" suppliers are on everyone's lips. Another difficulty will arise for the OJSC: the transfer of the legal address to another region gives shareholders the opportunity to demand the repurchase of their shares at a market price, if this limits their right to manage the company (clause 1, article 75 of the Law of December 26, 1995 N 208- FZ).
However, there was a time when all these difficulties did not stop the tax authorities. Back in 2003, the tax service, which was then the Ministry of Taxes and Dues, explained that when delegating authority to manage the management company, it is necessary to register with the tax authorities at its location (Letter dated October 7, 2003 N 09-1-02 /4826-AK241). True, already in 2005, the Federal Tax Service expressed the opposite position, responding to a request from its department for the Leningrad Region (Letter dated October 11, 2005 N 09-1-04 / [email protected]).
Since then, the tax service has not officially spoken out on this issue, but it can be assumed that officials, at least federal officials, no longer want to create problems for themselves and companies from scratch. Such a conclusion follows, in particular, from the Letter of the Ministry of Finance of Russia dated July 9, 2009 N 03-03-06 / 1/455, containing the answer to a private question about where a managed company should file an income tax return - in its city or at the location of the management company. The financial department supported the first option, but found it difficult to substantiate. We limited ourselves to the above-mentioned references to the norms of the Civil Code and the Law on State Registration on the location of a legal entity, which, as we see, confirm just the opposite.
However, there are no official clarifications from the Federal Tax Service as a registrar of legal entities, therefore, as practice shows, local tax authorities act differently: somewhere they insist on changing the legal and tax "registration", somewhere they do not. Therefore, it is better to play it safe: when attracting a management company, do not immediately decide to change the location of the company indicated in the constituent documents and submit an application in the P14001 form with the same address. It is possible that the tax office will register the changes anyway.
Note. Local inspectors act in different ways: somewhere they insist on changing the legal and tax "registration", somewhere they don't. Therefore, when attracting a management company, it is better not to change the location of the company in the constituent documents and submit an application in the form P14001 with the same address. Perhaps the tax office will register the changes and so.
Otherwise, faced with the requirement of the inspectorate to register at the address of the management company, you need to try to convince the tax authorities that this is unprofitable, first of all, for themselves. If this does not work out, it remains either to try to maintain the former legal address through the court, or to get around the problem by formally building relations with the management company in a slightly different way.
Spirit over letter
When applying to the court, you need to appeal against the refusal of the tax inspectorate to register a change in information about the permanent executive body of the company without changing its location. Judicial practice in such disputes cannot be called extensive, but according to what is available, one can say that arbitration is against changing the legal address to the address of the management company. Judges, as they should, focus primarily on the spirit of the law, and not on the letter. And the spirit of the law suggests that the legal address of the company and its tax "registration" must match its actual location.
So, the Federal Arbitration Court of the West Siberian District in its Resolution of April 24, 2008 N F04-2610 / 2008 (4132-A27-3) concluded that clause 2 of Art. 54 of the Civil Code connects the location of the organization with the location of its executive body only at the time of state registration. At the same time, the subsequent transfer of the functions of the sole executive body to another person does not change the legal address of the company. In another Resolution (dated February 26, 2007 N F04-678 / 2007 (31652-A75-40)) the same court stated: since the location of the company is essential for determining its legal capacity, jurisdiction of disputes, resolving issues related to the payment taxes and other obligatory payments, then the temporary transfer of the functions of a permanent executive body to the managing organization should not change the location of the legal entity and deprive the regulatory authorities of the opportunity to conduct inspections of its activities. According to the court, such a transfer of authority does not mean that the company does not have a permanent executive body or that its location changes. Similar conclusions were made in the Federal Arbitration Court of the Moscow District (Decree of May 16, 2001 N KA-A40 / 2335-01).
Indeed, the management company does not become a permanent executive body of the company, it only temporarily receives its powers. Therefore, it can be considered as a person existing in parallel with him, to whom all his powers have been temporarily transferred and who has the right to act on behalf of the company without a power of attorney.
The place where the manager is found
Pay attention to pp. "in" paragraph 1 of Art. 5 of the Law on State Registration. It defines the location of the permanent executive body as the place where the connection with the legal entity is carried out. Obviously, even after the transfer of management functions to a third-party organization, it is still possible to contact the firm at its actual address. It is there, most likely, that the executive director (an employee of the management company to whom she entrusts the management of the managed organization) will constantly work.
As an argument for maintaining the former legal address, an analogy is often drawn with an ordinary director: the organization is not registered at the place of his residence. Because the place of his location as a general director is his permanent workplace, that is, the address at which he is contacted directly or through employees of the organization. Location after all means "a place where you can find." The same is with the management company in the role of general director: the place of registration of this company itself as a legal entity does not matter - it will manage the company, which remains at its former address. Usually, an employee of the management company, to whom she instructs to manage the affairs of the ward firm, constantly works on the territory of the latter. By the way, in this case, the managing organization usually registers its separate subdivision at the address of the managed company, since a workplace is created there for its employee.
Minister without portfolio
However, you can try to completely avoid disputes about the change of address by initially building relations with the management company at a formal level in a slightly different way. To do this, it is necessary to transfer to it only part of the powers of a permanent executive body, retaining the position of the general director and leaving him with some insignificant functions, such as representation. The legislation does not prohibit this. However, the norms of civil law do not directly provide for the possibility of splitting the powers of a permanent executive body - and this is one of the risks.
Another risk is non-recognition by the inspectorate of expenses for the services of the managing organization: the tax authorities may doubt the need for its services, despite the fact that the director has remained in his place. To minimize this risk, it is necessary to clearly define the division of powers between the director and the management company, as well as prepare a justification for the need for its services under the current director.
Managing company instead of CEO: organizational pluses and legal minuses Mergers and Acquisitions magazine. - November 2007. - No. 11 (57) In the practice of economic turnover in Russia, the institution of transferring the powers of the sole executive body1 (SEO) of a business company (OJSC, LLC) to a management company has long been successfully used. However, there are still a number of practical issues that require more detailed analysis and elaboration. Some legal risks in the transfer of powers of the sole executive body to a management company Determination of the location of the managed company Similar issues arise every time when the owner (majority shareholder, majority shareholder) of companies that are geographically significantly remote from each other decides to consolidate management into one - managing - company, to which the powers of the CEO of each of the controlled structures are transferred. The practice of using a management company in the management system of a group of companies has shown its effectiveness, for example, in the Severstal group. Thus, since 2003, Severstal-Avto has been exercising the powers of the CEO of OAO Zavolzhsky Motor Plant and OAO Ulyanovsk Automobile Plant. Since 2004, Severstal-metiz has been exercising the powers of the CEO of OAO Cherepovets Steel-Rolling Plant, OAO Oryol Steel-Rolling Plant and OAO Volgograd Rope Plant. IDGC of the North-West, JSC performs the functions of sole executive director of Arkhenergo JSC, Karelenergo JSC, Kolenergo JSC, Pskovenergo JSC, etc. The correct determination of the location of a legal entity affects the determination of its legal capacity, the place of conclusion of contracts and the performance by a legal entity of civil and public law obligations. First of all - to resolve issues related to the payment of taxes and fees established by law, the jurisdiction of disputes in which a legal entity acts as a defendant. The legal definition of the term "location" of a legal entity is given in a number of regulatory legal acts. So, in accordance with paragraphs. 2 and 3 Art. 54 of the Civil Code of the Russian Federation2 the location of a legal entity is determined by the place of its state registration. State registration of a legal entity is carried out at the location of its permanent executive body, and in the absence of a permanent executive body - another body or person entitled to act on behalf of the legal entity without a power of attorney. The name and location of a legal entity are indicated in its constituent documents. A similar definition of the location of a legal entity is contained: for a joint-stock company in paragraph 2 of Art. 4 of the Law "On Joint Stock Companies"3; for a limited liability company in paragraph 2 of Art. 4 of the Law "On Limited Liability Companies"4; for non-profit organizations in paragraph 2 of Art. 4 of the Law on non-profit organizations5. Obviously, the definition of such a legal concept as "place of state registration of a legal entity" is of key importance for determining the content and criteria of the legal concept "location of a legal entity". Relations arising in connection with the state registration of legal entities during their creation, reorganization and liquidation, when changes are made to their constituent documents, as well as in connection with the maintenance of a unified state register of legal entities, are regulated by the Law on State Registration6. According to paragraph 2 of Art. 8 of the Law on State Registration, state registration of a legal entity is carried out at the location of the permanent executive body indicated by the founders in the application for state registration, in the absence of such an executive body - at the location of another body or person entitled to act on behalf of the legal entity without a power of attorney. State registration of legal entities - these are acts of the authorized federal executive body carried out by entering into state registers information on the creation, reorganization and liquidation of legal entities, other information about legal entities in accordance with the Law on State Registration (paragraph 2 of article 1). In view of the foregoing, the question arises as to whether the location of a legal entity will change if the powers of its CEO are transferred to a management company, the location of which is different from the location of the managed company. From the analysis of clause 2, article 8 of the Law on State Registration, it follows that the location of the legal entity indicated in the application for state registration by the founders (during the state registration of a legal entity associated with its creation) was determined even before the competent authority accepted the economic the decision of the company to transfer the powers of its CEO to the management company. The norms of the Law on State Registration do not directly define the transfer of powers of the CEO of a business entity (from the person who initially performed the functions of the CEO) to the management company as the basis for changing the location of the managed legal entity, and as a result, making appropriate changes to its constituent documents and their subsequent state registration. It follows from a formal analysis of these legislative norms that if the location of the initial permanent executive body of a legal entity (determined by its founders) does not coincide with the actual location7 of the legal entity, then its state registration should be carried out at the location of such a permanent executive body. Tax Burden An indirect confirmation of this legal position is the existing arbitration practice in the Moscow region in cases in which the tax authorities filed claims against commercial organizations. The reason is discrepancies between the actual location of the legal entity and the location specified in its constituent documents8, revealed during tax audits. Let's take an example from practice. During a tax audit, the tax authority established that the actual location of legal entity "A" does not correspond to the location specified in the constituent documents of "A". In such a situation, the tax authority often, with references to Articles 54 and 61 of the Civil Code of the Russian Federation, applies to the arbitration court with an application for the liquidation of such a legal entity. With such a requirement, the tax authority applied to the court in relation to "A". Arbitration courts unanimously consider similar disputes and refuse to satisfy the requirements of the tax authorities with reference to the elimination of such a violation of the law by a legal entity, as well as the absence of signs of repeated and gross violation of the law. The court refused to meet the requirements for "A". A legal entity that is faced with the said claims of the tax authority can be recommended to attach documents confirming its legal and actual actions aimed at eliminating the relevant violation to the materials of the court case. From the point of view of tax legislation, the problem of determining the location of a legal entity is relevant in the context of the implementation of the institution of "accounting for taxpayers", provided for by the provisions of Articles 23, 32, 83 and 84 of the Tax Code of the Russian Federation9 and the rules providing for the corresponding tax liability (Articles 116 and 117 Tax Code of the Russian Federation). In accordance with the specified provisions of the Tax Code of the Russian Federation, accounting of a taxpaying organization is carried out at the location of the organization. In the event of a change in location, the taxpayer is obliged to notify the tax authority thereof. The liability of taxpayers (organizations and individual entrepreneurs) for violation of the deadlines for filing applications for registration with the tax authority, depending on the composition (qualification) of the tax offense, is provided for by Art. . 116 and 117 of the Tax Code of the Russian Federation. The form of guilt does not play a role, the violation can be committed both in the form of intent and negligence. These offenses are ongoing. The act itself is an inaction, which is expressed in the failure to file an application for registration with the tax authority within the period established by law. The offense is considered completed from the moment of expiration of the term established by law for filing the relevant application of the taxpayer. The taxpayer is responsible for the failure to file an application for tax registration, regardless of whether this circumstance entailed adverse consequences for the budget or not. The legislator also established the terms and procedure in accordance with which the taxpayer is obliged to register not only at the location of the organization, but also at the location of all separate divisions of the organization and property subject to taxation. However, as stated above, the mere fact of transferring the powers of the CEO of a business company to a management company, the location of which is different from the location of the managed company, does not unambiguously indicate a change in its location. As a result, the question remains unresolved whether the managed company, as a taxpayer, again has the obligation to register for tax purposes in accordance with the requirements of subparagraph 2, clause 1, article 23 and clause 1, article 83 of the Tax Code of the Russian Federation. Consequently, there remains the risk of bringing him to tax liability in accordance with Articles 116 and 117 of the Tax Code of the Russian Federation. So, according to ch. 14 of the Tax Code of the Russian Federation, the tax authorities, within the limits of their competence, are entrusted with carrying out tax control. For the purpose of conducting tax control, taxpaying organizations are subject to registration with the tax authority at the location of the organization, the location of its separate subdivisions, as well as at the location of its real estate and vehicles, and on other grounds provided for by the Tax Code of the Russian Federation (Art. 83). Thus, the goal - the implementation of tax control - is an essential condition that is important for registration. It can be carried out by a specific tax authority only if the taxpayer is located in the territory assigned to the competence of this tax authority. When determining the location of a legal entity (when transferring the powers of its sole executive body to a management company), it should be taken into account that the transfer of powers of the CEO should not legally change the actual location of this company, since this will deprive the controlling fiscal and other state bodies of the ability to oversee its activities. This position is also confirmed by judicial practice (see Decree of the Federal Antimonopoly Service of the Moscow District dated May 16, 2001 No. КА-А40/2335-01)10. The transfer of the powers of the sole executive body of a business company to a management company will not entail a change in the place of its actual location, nor a change in the place where the legal entity carries out its main activities, and this will not entail a change in the location of the managed company. In this case, it should be noted that, according to subparagraph "c)" of paragraph 1 and paragraph 5 of Art. 5 of the Law on State Registration, information about the address (location) of the permanent executive body of the legal entity11, through which communication with the legal entity is carried out, as well as other information about the person entitled without a power of attorney, is entered into the unified state register of legal entities act on behalf of a legal entity (last name, first name, patronymic and position of a person entitled to act on behalf of a legal entity without a power of attorney, as well as passport data of such a person or data of other identification documents in accordance with the legislation of the Russian Federation, taxpayer identification number, if any ). At the same time, according to clause 5, article 5 of the State Registration Law, a legal entity must report this to the registration authority at the location within 3 days from the date of change in this information. The specified information is not obligatory to be indicated in the constituent documents of economic companies12, and when they are changed, it is only necessary to notify the relevant tax authority in the prescribed manner. If law enforcement practice confirms the identity of the location of the managed company and the location of the management company, then in order to reduce the risks of filing relevant claims by the tax authorities, the managed company will need to make appropriate changes to the constituent documents. And also - notify the tax authority about the change in its location, register for tax at the new location (location of the management company), and create a separate subdivision (branch, representative office) at the actual location of the managed company. Legal Aspects of Terminating an Employment Contract with the CEO of a Managed Company In addition to the issues of determining the location of the managed company and the compliance of documentation with tax legislation, when transferring the powers of the CEO to a management company, other problems arise. For example, related to the legal aspects of termination of the employment contract with the CEO (director, general director) of the managed company. Thus, if the competent body of the economic company decides to transfer the powers of the CEO to the management company, the powers of the person who previously performed the functions of the CEO (director, general director, president) are terminated, as a rule, ahead of schedule by decision of the managed company in accordance with the norms of legislation and the charter of the controlled company. In accordance with Article 279 of the Labor Code of the Russian Federation13 termination of employment contracts with heads of organizations, in connection with the adoption by the authorized bodies of managed companies of a decision to terminate the employment contract in the absence of guilty actions (inaction) of the head, he is paid compensation in the amount determined by the employment contract, but not less than three times average monthly income. If the managed company fails to fulfill this obligation, there is a significant risk that the person who previously held the position of the head of the managed company (director, general director) will file a corresponding lawsuit, apply to the prosecutor's office and labor inspection bodies. Example. The sole shareholder of JSC "B" decided to dismiss the general director, the results of which were recognized as extremely unsatisfactory. At the same time, JSC "B" had a Regulation on the remuneration of the General Director of the Company based on the results of the financial year. Having negatively assessed the performance of the former general director, the shareholder decided not to pay the annual remuneration to him. However, the dismissed director formally had every reason to claim the appropriate payments. The "offended" director sued JSC "B" and won the case. At the same time, the amount of remuneration of the general director for the past financial year, albeit insignificant, moral damage, as well as legal expenses incurred by the plaintiff, was recovered from the company. Adverse legal consequences through the prosecutor's office and labor inspection for JSC "B" did not occur only due to the lack of relevant statements from the former director to these bodies. Thus, in case of early termination of the employment contract with the head of the managed company, he must be provided with compensation, the amount of which cannot be less than when the employment contract is terminated due to a change in the owner of organizations (Article 181 of the Labor Code of the Russian Federation - not less than three average monthly earnings of an employee) . Representation of interests in the transfer of powers of the CEO As mentioned earlier, when concluding an agreement on the transfer of powers of the sole executive body of the management company, the entire scope of powers of the CEO of the managed company is transferred to it. The management company, along with the rights and obligations that form its own legal personality, acquires additional rights and assumes additional obligations related to the exercise of the powers of the CEO of the managed company, including the right to act on behalf of the managed company, represent its interests, perform deals, approve states, issue orders, etc. But a management company is a legal entity that, due to its essential features, cannot directly acquire civil rights and assume civil obligations, but does this, firstly, through its management bodies and, in Secondly, through the institution of representation. The sole executive body of the managing company may act on behalf of the managed company. The management company as a legal entity can exercise its rights and assume obligations through its bodies and, first of all, through such a universal body as the sole executive body of the management company itself. The actions of the general director of the management company should be considered as the actions of the management company itself, and, consequently, of the managed company. At the same time, the general director acts on the basis of the charters of the management company and the managed company, without a power of attorney (the so-called right of "first signature"). In this case, there is a "through" management of both the management company and the managed company. Representatives who are employees of the management company may act on behalf of the managed company by proxy. The problem of the current execution by the management company of the powers of the CEO - the implementation of the actual representation in the managed company deserves special attention. In the conditions of territorial remoteness of the management company and the managed company, given the scope of powers transferred to the management company, the ability to act on behalf of the managed company only to the general director of the management company is clearly insufficient. To solve this problem, the civil law institution of representation is used: the ability to act on behalf of the managed company on the basis of a power of attorney may be given to employees of the management company (deputy general directors of the management company - managing directors, executive directors, etc. ). It should be noted that it is not possible to give employees of the management company the right to act on behalf of the managed company without a power of attorney, but only on the basis of the relevant provisions of the constituent documents. According to Art. 53 of the Civil Code of the Russian Federation, only its bodies have the right to act on behalf of a legal entity. The body of a legal entity is part of the latter, and there are no relations of representation between them, which is confirmed by the position of the Supreme Arbitration Court of the Russian Federation, which indicated that the bodies of a legal entity, which include the head, cannot be considered as independent subjects of civil legal relations14. In accordance with the Law "On Limited Liability Companies", the supreme governing body of the company is the general meeting of participants; a board of directors may be formed in the company; management of the current activities of the company is carried out by the executive bodies (sole executive body or sole and collegial executive body). Similar norms are contained in the Law "On Joint Stock Companies". The deputy general director of a business company (executive director, managing director) is not a body of the company and reports directly to the general director. Courts have repeatedly drawn attention to this when resolving disputes15. Based on this, it must be borne in mind that these employees, acting on behalf of the company in civil circulation, act as its representatives, therefore, the relevant powers of these employees must be certified by a power of attorney. Attention should be paid to the special procedure for issuing powers of attorney issued to representatives of the managed company. According to paragraph 5 of Art. 185 of the Civil Code of the Russian Federation, a power of attorney on behalf of a legal entity is issued signed by its head or another person authorized to do so by the constituent documents, with the seal of this organization attached. When a management company is involved to exercise the powers of the sole executive body, a power of attorney on behalf of the managed company is issued signed by the general director of the management company, but with the stamp of the managed company attached. This procedure for issuing powers of attorney when transferring the powers of the sole executive body of the management company is also confirmed by judicial practice16. The use of the institution of representation in the transfer of powers allows, if necessary, without any particular difficulties, to remove from office the managers and/or executive directors of the management company acting on behalf of the managed company by proxy. To do this, it will be enough to revoke the power of attorney and order to transfer the manager and / or executive director of the management company to another position within the management company. Naturally, no general meetings of shareholders / participants or meetings of the board of directors will be required for this. Peculiarities of concluding transactions between companies of the same group After signing the relevant agreements with each of the managed companies of the holding, any transaction with the subject structure "managed company - managed company" or "management company - managed company" will be an interested party transaction (hereinafter - "interested party transaction", "interested party transaction") on the grounds set out in paragraph 3 of paragraph 1 of Art. 81 of the Law "On Joint Stock Companies"17, Art. 4 of the Law of the RSFSR No. 948-1 "On Competition and Restriction of Monopolistic Activities in Commodity Markets" dated March 22, 1991 and Article 9 of Federal Law No. 135 "On Protection of Competition" dated 26.07.2006. Interested party transactions within the group In accordance with paragraph 1 of Art. 83 of the Law "On Joint Stock Companies", a transaction in which there is an interest must be approved prior to its completion by the Board of Directors (Supervisory Board) of the company or the general meeting of shareholders in accordance with the specified article of the Law "On Joint Stock Companies". A similar provision is contained in Art. 45 of the Law "On Limited Liability Companies"18. In the process of active economic interaction between the holding companies that transferred the powers of the CEO to one management company, any transaction will turn out to be "interested", which will require its approval by the authorized bodies of each of the parties to such a transaction. In this regard, the possibility of approving a transaction (transactions) between the company and an interested person becomes relevant, which may be made in the future in the course of the company's ordinary business activities (paragraph 2, clause 6, article 83 of the Law "On Joint Stock Companies"). In joint stock companies, the decision of the general meeting of shareholders on the approval of transactions with interest that may be made by the company in the future applies to transactions concluded with the approval of the general meeting of shareholders (clause 4, article 83 of the Law "On Joint Stock Companies"). And also - for transactions made on the basis of decisions of the board of directors (supervisory board) of the company (clauses 2 and 3 of article 83 of the Law "On Joint Stock Companies"), unless otherwise provided in the decision of the general meeting19. In order for the general meeting of the company's shareholders to take a decision on the approval of related-party transactions that may be made by the company in the future, the following must be taken into account: 1) approved transactions must be made by the company in the course of its ordinary business activities; 2) the decision to approve such transactions must contain information about the persons who are its parties, beneficiaries, about the price, the subject of the transaction and its other essential conditions, as well as the maximum amount for which such transactions can be made; 3) the period during which transactions approved for the future must be made - from the moment the general meeting of shareholders makes a decision on their approval and until the next annual general meeting of shareholders. Thus, the approval of all possible transactions that may be made between managed companies in the future may be fraught with certain difficulties. Firstly, the legislation of the Russian Federation does not contain a definition of the "ordinary economic activity" of a company. Previously, the Supreme Arbitration Court of the Russian Federation, generalizing the practice of applying the Law "On Limited Liability Companies" and the Law "On Joint Stock Companies", spoke as follows about the content of the concept of ordinary economic activity of a business company: "to conclude a transaction in which there is an interest, it is not required decisions of the general meeting of participants in the company (in appropriate cases - the board of directors (supervisory board), if it is carried out in the course of ordinary business activities (sales of products, purchase of raw materials, performance of work, etc.) ... "20; "established by Art. 78 and 79 of the Law "On Joint-Stock Companies", the norms that determine the procedure for concluding major transactions by a joint-stock company do not apply to transactions made by the company in the course of its ordinary business activities (related to the acquisition of raw materials, materials, the sale of finished products, etc.), ... "21. When deciding whether to classify one or another the activities of the company to ordinary economic activities should be guided, first of all, by the provisions of the charter of the company, as well as the provisions of special legal acts regulating the activities of the company22. In practice, many disputes arise when the court has to put an end to this issue, taking into account the specific circumstances of the case23. Example. Joint-Stock Company "C" decided to take a bank loan with the conclusion of an appropriate agreement. At the same time, the size of the transaction exceeded 25% of the book value of assets "C" as of the last reporting date. In accordance with the provisions of Art. 79 of the Law "On Joint Stock Companies", such a transaction had to be approved by the meeting of shareholders of the Company. JSC "S" intended to use the funds raised to increase the authorized capital of Joint Stock Company "D", 100% of whose shares belong to JSC "S". The management of JSC "S" assessed the loan agreement as a transaction made in the ordinary course of business, and did not ensure that the necessary corporate procedures for its approval were carried out. The shareholder of JSC "S" turned out to have a different opinion regarding this transaction and challenged it in court in accordance with paragraph 6 of Art. 79 of the Law "On Joint Stock Companies". The court, satisfying the claim of the shareholder, indicated that the loan agreement, based on the economic goals of JSC "S", cannot be recognized as a transaction concluded in the ordinary course of business. Secondly, there is no detailed mechanism for approving related-party transactions that may be made in the future, defined by law. In accordance with paragraph 1, paragraph 6 of Art. 83 of the Law "On Joint Stock Companies", in the relevant decision on the approval of a transaction in which there is an interest, the person (s) who are its party (parties), the beneficiary (beneficiaries), the price, the subject of the transaction and its other essential conditions must be indicated . According to paragraph 1 of Art. 432 of the Civil Code of the Russian Federation, the essential terms of the transaction are: a) the conditions named in the law or other legal acts as essential or necessary for contracts of this type; b) all those conditions regarding which, according to the statement of one of the parties, an agreement should be reached. In the case of a broad interpretation of the term "statement of one of the parties", it can be assumed that any initiative of a party to include any provision in the contract is a specified statement, and the conditions set forth in it are the essential terms of the contract. If we adhere to this position, then it seems rather difficult and problematic to indicate in the preliminary (before the transaction) decision of the general meeting of shareholders all such essential terms of the agreement, which is an interested party transaction that may be concluded in the future. For practical reasons and in order to ensure the stability of economic turnover, it seems appropriate to consider the concept of "statement by one of the parties" to the contract in the narrow sense, that is, as a special and direct indication of the party to those terms of the contract that are essential for it (in addition to those established by law). This approach makes it possible to reduce the unreasonable range of "essential" terms of the contract, which currently leads to the complication and duration of establishing effective contractual relations between participants in economic turnover24. The determination of the price for a number of types of civil contracts is not an essential condition, and, therefore, its determination by the parties when concluding the contract is not mandatory. However, with the specified requirements of the legislation to the content of the decision to approve an interested-party transaction, an indication in the text of the contract of such a condition as the price becomes mandatory. Otherwise, there may be a contradiction between the transaction price specified in the decision of the competent body of the economic company and the price determined in accordance with paragraph 3 of Art. 424 of the Civil Code of the Russian Federation. If there is a conflict between the price specified in the decision of the management body of the company and in the contract, the corresponding transaction will be voidable in accordance with paragraph 1 of Art. 84 of the Law "On Joint Stock Companies". In addition, in order to properly approve a transaction that may be made in the future, according to the Law "On Joint Stock Companies", the decision of the general meeting of shareholders must also indicate the maximum amount (paragraph 1, clause 6, article 83 of the Law "On Joint Stock Companies"), for which such a transaction (transactions) can be made. Thirdly, the Law "On Joint Stock Companies" establishes that the decision to approve the transaction is valid until the next annual general meeting of shareholders (paragraph 2, clause 6, article 83 of the said law). Therefore, if the company does not complete the approved transaction in this period, then after the next annual general meeting of shareholders of the company, a new decision will be required to approve the future transaction. As for limited liability companies, in accordance with Art. 45 of the Law "On Limited Liability Companies" provides for the approval of an interested-party transaction by the general meeting of the company's participants by a majority vote of the total number of votes of the company's participants who are not interested in making it. At the same time, the Law "On Limited Liability Companies" does not provide for the possibility (by analogy with the provisions of the Law "On Joint Stock Companies") that the management body of the company decides to approve transactions with interest that may be made in the future in the course of the company's ordinary business activities. . Conclusion of transactions between companies of the group When transferring the powers of the CEO of business entities of the holding to one management company, the question of the legitimacy of signing business contracts on behalf of two managed companies by the same person - the director (general director, president) of the management company is debatable. In accordance with paragraph 3 of Art. 182 of the Civil Code of the Russian Federation, a representative cannot make transactions on behalf of the person represented in relation to himself personally. He also cannot make such transactions in relation to another person, of which he is at the same time the representative, except in cases of commercial representation. According to paragraph 1 of Art. 53 of the Civil Code of the Russian Federation, a legal entity acquires civil rights and assumes civil obligations through its bodies acting in accordance with the law, other legal acts and constituent documents. P. 3 Art. 53 of the Civil Code of the Russian Federation says that a person who, by virtue of the law or the constituent documents of a legal entity, acts on its behalf, must act in the interests of the legal entity it represents in good faith and reasonably. In accordance with Art. 69 of the Law "On Joint Stock Companies", the executive bodies of the company manage the current activities of the company, and the CEO "acts on behalf of the company without a power of attorney, including representing its interests, making transactions on behalf of the company ...". This provision also applies to the management company, to which, by decision of the general meeting of shareholders, the powers of the CEO of the company may be transferred. Despite the use by the legislator in relation to persons exercising the powers of the CEO of the company, such wordings as "in the interests of the legal entity he represents" and "represents its interests", the person exercising the powers of the CEO of the company (director, general director / management company) cannot be considered as a representative of society (including commercial) in the sense of Art. 182 and 184 of the Civil Code of the Russian Federation on the following grounds: The person performing the functions of the CEO of a business entity (director, general director / management company) does not act as an independent subject of legal relations, but as a body of a legal entity - a party to the transaction; Under the representative in Art. 182 and 184 of the Civil Code of the Russian Federation is understood as an individual or legal entity, and not the management body of a legal entity; Representation involves the actions of a representative on behalf of the represented, and the person performing the functions of the sole executive officer of the company (director, general director / management company), independently (without any instruction) within its competence, determines its actions to manage the current activities of the company and makes decisions on committing certain transactions on behalf of the company; According to paragraph 3 of Art. 182 of the Civil Code of the Russian Federation, a representative cannot make transactions on behalf of the person represented in relation to himself personally, as well as another person, whose representative he is. The non-applicability of this provision to the legal status of a person exercising the functions of the CEO of a company (director, general director / management company) is evidenced by the procedure for concluding transactions provided for by the Law "On Joint Stock Companies", in which the said person is recognized as an interested party. This procedure allows the company to make transactions (albeit in a special manner) with the general director/management company, as well as with other legal entities in whose management bodies the general director/management company holds positions. P. 4, Art. 182 of the Civil Code of the Russian Federation does not allow the conclusion of a transaction through a representative, which by its nature can only be made personally, as well as other transactions specified in the law. If we consider the person exercising the powers of the CEO of the company as a representative of the company, then one should admit the possibility of the existence of transactions that the company can only make personally (not through its management bodies), and this is not possible due to the provisions of Art. 53 of the Civil Code of the Russian Federation. Different legal regulation of the consequences of concluding transactions by a representative of a company and a person exercising the powers of the CEO of the company: a) Art. 183 of the Civil Code of the Russian Federation establishes the legal consequences of concluding a transaction by an unauthorized person, consisting in recognizing such a transaction as concluded on behalf and in the interests of the person who made it (representative), and not represented; b) Art. 174 of the Civil Code of the Russian Federation establishes the legal consequences of a transaction by the management body of the company exceeding its powers, consisting in the possibility of recognizing such a transaction as invalid. Thus, the management company is a body, and not a representative of the company (including commercial ones) within the meaning of Art. 182 and 184 of the Civil Code of the Russian Federation. Consequently, the provisions of these articles do not apply both to transactions concluded between the managed companies of the holding, the powers of the CEO of which have been transferred to one management company, and to transactions concluded between the managed company and the management company (taking into account the requirements of corporate law regarding the procedure for concluding a transaction, in which has an interest). ________________________________ 1 Further also - "CEO". 2 Civil Code of the Russian Federation 3 Federal Law No. 208-FZ of December 26, 1995 "On Joint Stock Companies" 4 Federal Law No. 14-FZ of February 8, 1998 "On Limited Liability Companies" 5 Federal Law No. 7-FZ of January 12, 1996 "On non-profit organizations" 6 Federal Law of 08. 08.2001 No. 129-FZ "On State Registration of Legal Entities and Individual Entrepreneurs" 7 We believe that the actual location of a legal entity can be tied to the location of real estate, vehicles and self-propelled machines subject to state registration, stationary jobs, the location of the main types of activities in accordance with the assigned OKVED codes. 8 Rulings of the Federal Arbitration Court of the Moscow District: dated April 11, 2002 in case No. КА-А40/2101-02; dated 04.08.2003 in case No. KG-A40/4752-03; dated June 28, 2004 in case No. KG-A40 / 5057-04; dated June 28, 2004 in case No. KG-A40 / 5077-04; dated November 18, 2004 in case No. КА-А40/10447-04; dated July 27, 2005 in case No. KG-A40 / 6507-05. 9 Tax Code of the Russian Federation. 10 If we recognize that when concluding an agreement on the transfer of powers of the sole executive body, the location of the managed company changes to the location of the management company, we can conclude that the organization is obliged to notify the tax authority only about the change in the address (location) of the permanent executive body which did not result in changes to the founding documents. Neither the Law on State Registration nor the Law on JSC provides for a direct obligation of a legal entity to amend the constituent documents in connection with a change in the address (location) of a permanent executive body (although the Law on JSC clearly establishes the need to amend the constituent documents of a joint stock company , for example, when reducing or increasing the authorized capital (Articles 12, 29, 30 of the JSC Law).The courts have repeatedly paid attention to this when considering specific litigation (see, for example, Resolution of the Federal Antimonopoly Service of the Moscow District dated 24.04. 2002 No. KA-A40 / 2605-02, Decree of the Federal Antimonopoly Service of the Moscow District dated November 14, 2001 No. KA-A40 / 6618-01) On the other hand, with this approach, the Company's Charter will not reflect the real state of affairs associated with the transfer of powers of the CEO to the management company 11 In the absence of a permanent executive body and a legal entity - another body or person entitled to act on behalf of a legal entity without a power of attorney. 12 Paragraphs 1 and 2 of Article 12 of the LLC Law, paragraph 3 of Article 11 of the JSC Law. 13 Labor Code of the Russian Federation (as amended by the Federal Law of 30. 06.2006 No. 90-FZ). 14 Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of February 9, 1999 N 6164/98. 15 Resolution of the Federal Antimonopoly Service of the Moscow District No. KG-A40/1697-04 of March 15, 2004. 16 Resolution of the Federal Antimonopoly Service of the North-Western District of October 16, 2003 No. A66-2852-03. 17 Federal Law No. 208-FZ of December 26, 1995 "On Joint Stock Companies" 18 Federal Law No. 14-FZ of February 8, 1998 "On Limited Liability Companies" 19 Paragraph 4 of Clause 35 of Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of November 18, 2003 No. 19 "On Certain Issues of the Application of the Federal Law "On Joint-Stock Companies". 20 Clause 20 of the Decree of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated 09.12.1999 No. 90/14 "On Certain Issues of the Application of the Federal Law "On Limited Liability Companies" " (cancelled). 21 Clause 14 of the Decree of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated 04/02/1997 No. 4/8 "On Certain Issues of the Application of the Federal Law "On Joint-Stock Companies" (cancelled). 22 Regulation on regulated purchases of goods (works, services) for the needs of society, Annual program of regulated purchases of goods (works, services) for a certain period. 23 Decree of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 15, 2005 No. 12856/04; Decree of the Presidium of the Supreme Arbitration Court of the Russian Federation dated November 28, 2006 No. 9148/06. 24 Stepanova I.E. Essential terms of the contract: problems of legislation//Bulletin of the Supreme Arbitration Court of the Russian Federation. 2007. No. 7 (176).
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