When a person decides to go into business, no matter what form of ownership he chooses, he must clearly understand: any of his actions require a report to regulatory authorities. The question of how to withdraw the founder from the LLC is not subject to exclusion. This article will discuss the main nuances of this difficult matter.
Where does it all start?
The first thing you need to do if you need to stop your activity is to write a statement to the Director General. An exception is possible only when it is one person, since it is impossible to withdraw the sole founder of an LLC. In this case, the organization will have to be liquidated or sold to third parties. The application is compiled in random order, because there is no standard for its execution. The only thing you should not forget about is the general rules of the documentation. The moment of acceptance of the application will be considered in the future as the date of termination of work in the company, but all obligations will be withdrawn from the person only after entering information in the state register.
Are there any other ways?
The procedure can be initiated by force or voluntarily. The legislation does not prohibit leaving the organization at any time and only at will, without any other grounds, if such a clause is specified in the charter. About how to withdraw the founder from the LLC, is also described in the norms of federal law. In addition to the initiative with writing a statement, you can sell your share in a limited liability company, if it is not prohibited by the charter of the company. At the same time, one should not forget that other participants must be informed, in addition, when selling the remaining founders there is an advantage in buying a share. If, however, part of the authorized capital is still transferred to a third party, the contract will have to be officially certified by a notary.
It so happens that the question arises of how to remove a person from the founders of an LLC without consent. This method is initiated only when the participant creates obvious obstacles to the successful operation of the organization, ignores obligations, or if he does not contribute his share in the authorized capital for at least a year. Then other members of the company who own no less than ten percent of the share in total may, by court order, withdraw such a partner.
What rights does the person have?
Upon leaving the limited liability company, the shareholder has the opportunity to receive monetary compensation based on his share. How can a founder withdraw profit from an LLC? This procedure has a number of nuances. Firstly, the remuneration due to the candidate is calculated on the basis of the value of net assets divided in proportion to his share. Secondly, this amount can be known only at the end of the accounting for the full year. That is, the person who submitted the application, for example, in February 2018, will have to wait until January 2019. This is in line with the general rules on how to set up LLC founders money.
The Ministry of Finance defines net assets net of liabilities. After calculating the total for the year, in order to calculate the compensation of the shareholder, it is necessary to divide the face value of its share by the value of the entire authorized capital, and then multiply it by net assets (decreasing by passive and retained earnings).
In addition to remuneration in cash, the former founder may receive shares or property, if this is provided for in the charter. The value will be estimated at the market price on the day of the application for leaving.
What about the founderās taxes?
Of course, do not forget about tax obligations. Their size will vary depending on whether they are dealing with the question of how to withdraw the organization from the founders of the LLC, or whether an individual needs to leave.
Exit of a legal entity creates more difficulties. If finances are issued that are comparable with the size of the share of the authorized capital, then the tax base for profit does not arise, since there is no income. If property is transferred, even if its value is less than a share, an income base outside of sale is formed, and it is taken into account when calculating income tax. Why a lossy organization must also pay a tax can only be clarified by the courts. According to the standard, the income tax base is calculated based on the amount received, reduced by the contribution to the authorized capital. With VAT, the situation is as follows: if the issued income is equal to a share in the authorized capital, you do not need to pay VAT; if it is higher, you will have to pay value added tax.
For individuals, compensation equal to the price of a share in the authorized capital is not taxed. If the remuneration exceeds the unit value, personal income tax is paid at a rate of 13 percent of the amount of the difference in payment in relation to the initial share. The obligation to pay the tax costs of an individual by law lies with the organization if the person himself has not expressed a desire to do this on his own.
Tax liabilities of the LLC itself
If the LLC upon the withdrawal of one of the members received an amount equal to the share of the participant, it does not need to be taken into account when calculating the income. If the contributed share is higher, it is reflected in income outside of sales. When the contribution is of a property nature, income is determined from the size of the balance of the price according to tax records. It is important not to focus on a market indicator or an independent appraiserās calculation - claims from the tax service may arise if the price exceeds the market level.
In relation to expenses associated with the issue of a share to a former partner, the organization does not have the right to take them into account when calculating the tax base. The organization accepts all expenses associated with the exit of the participant only at its own expense without any exceptions.
VAT will need to be paid only when the value of the property transferred to the candidate is greater than its share in the authorized capital. In cases where compensation is less than or equal to a share, value added tax does not require payment.
What to do if a partner is dead
How to withdraw the deceased founder from the LLC? It all depends on whether the participant was the only one or several partners in the organization, as well as on whether the action plan for such a situation is spelled out in the company's charter.
If the owner was alone, by law the organization passes to its descendants on the basis of inheritance. To do this, within six months it is necessary to visit a notary public together with a death certificate and a certificate of the last registration of the deceased. Since the transfer of inheritance is not reproduced immediately, focusing on the Civil Code, the notary has the right to appoint a trustee, because the death of the general director can paralyze all the work of the company otherwise. Such a person is appointed for the period necessary for the transition to inheritance, after which the descendant already independently decides whether to conduct business of the organization or sell it to him. We must not forget that along with the rights all the obligations of the company are inherited, including debts and sanctions.
If one of several company organizers has died, there may be two options for inheriting the rights to organize. The first (it is predominant in the vast majority of cases) method is when the heirs receive monetary compensation for the share of the deceased and do not participate in the fate of the organization. It is not difficult to collect the necessary documents and reproduce the process. To do this, you need a photocopy of the certificate of inheritance, certified by a notary, and a statement from the heir that he refuses to take part in the affairs of society. After payment, the LLC will have a certificate stating that the dividends are fully issued to the copyright holder, and he has no complaints.
The second option is that the heir completely replaces the deceased in the composition of the founders, assumes the role of a participant in the company and further has the right and obligation to participate in his business. This option is possible only after the consent of the remaining members of the organization, and if the relevant clause is spelled out in the charter. The documents will be needed the same, with the exception of the letter of refusal.
Does withdrawal relieve obligations?
It is worth mentioning how to remove the founder of an LLC from the founders in order to relieve him of obligations. Situations are different: a member of the organization may want to retire because of the loss of business or because other partners have a personal dislike for him and he is afraid of the consequences of this. Firstly, any responsibility incurred by a participant prior to writing a resignation letter rests with him. After the Director General signed a document on the withdrawal of the partner, notifications were sent to the regulatory authorities and information on the termination of the candidateās activity appears in the state register, any obligations with respect to the company are withdrawn.
The complexity of the procedure
What difficulties may arise with how to withdraw the founder from the LLC? The first problem that one may encounter is that the charter of society contains a clause on the impossibility of participants to leave the organization. This provision is permitted by law. What to do in such a situation? At least initiate a meeting of partners. The provisions of the charter can be changed at any time, if there is agreement of all parties, therefore, the paragraph is possible to remove. Other members of the company may not be against this circumstance. In the event that the willing does not meet, he will have to act only through the courts.
The next problem is simpler - there is no way to sign a statement in the form of the absence of any ways to contact the CEO. If the charter contains a clause on the approval of an independent exit, you must obtain a copy of the document and write a statement with the notary with it. If there is no such item, you just need to wait for the head of the company. In the case when the connection does not appear for a very long time, you can go to court.
The main problem is to remove the director and founder from the LLC, if this is the only participant. This option is not possible in any way. If the organizer is alone, he will have to deal with the liquidation of the company. The situation is exactly the same if all the founders want to leave the organization at once. This cannot be done, at least one person must remain, or the company must be closed.
The laws
How to remove a participant from the founders of an LLC can be found in the legislation of the Russian Federation. To do this, look at federal law No. 14 āOn limited liability companiesā, chapter three, article twenty-six.
Required documents
Of the necessary documents for preparing the participant's exit, the following are required:
- Original passport of a citizen of the Russian Federation.
- TIN or its photocopy.
- The charter of the LLC and all the amendments that were made to it.
- Certificate of registration of LLC.
- Extract from the register.
How to get a participant out of an LLC? The procedure further assumes that the general director of the enterprise must submit to the branch a tax statement that has been issued and form 14001. After five days, the federal service will issue a fresh extract from the Unified State Register of Legal Entities and a certificate that the changes have been made.
How long will it take?
The time for the procedure may vary in each individual situation. However, the deadlines for individual actions are indicated. So, for example, it is necessary to submit documentation to the tax office no later than one month after the date of application. IFTS itself is obliged to issue a fresh extract from the Unified State Register of Legal Entities and a certificate that changes have been made, within five days from the receipt of the documents. The organization is obliged to issue dividends to the departed participant no later than six months after the end of the financial year, during which the founder left the limited liability company.
When can I do business again?
If the founder voluntarily resigned from the LLC without legal proceedings and without debts, he can at any time and without problems take part in the economic activities of any companies both as a founder and as an executive body (general director). The candidate may also apply to the organization that he left earlier and, if the founders council approves, return.
In the event that he left the debts and acted as a defendant in lawsuits that ended not in his favor, the court could impose a punishment on which the rights to hold such posts and conduct legal activities may be limited.
Conclusion
How to withdraw the founder from the LLC? This is quite simple if you approach the procedure wisely and comply with the laws and regulations of the organizationās charter. In turn, participants in societies are advised to discuss such problems in advance and document the decision in the charter of a limited liability company.