The founder of the organization is a legal entity documents. If the founder of the LLC is a legal entity…. The meaning of the word "founder"

Member of the society with limited liability, sometimes called the founder (and sometimes erroneously), is, according to article 7 of the Federal Law "On LLC", a physical or entity participating in LLC. It can be a citizen of the Russian Federation, a foreign citizen, and, if we are talking about a legal entity, it can also be a resident or non-resident of the Russian Federation.

The concept and characteristics of the founder, who can become the founder

The founder of an LLC is the one who establishes it. In fact, it looks like this: a group of people gathers, decides to create a company, approves the charter of this company, conclude an agreement on the establishment among themselves, where they describe how they will manage it, as well as who, how much, and when invests in authorized capital, and as a result, they carry all the documents for state registration. The only founder does all this alone, and does not conclude an agreement with anyone, he just makes a decision.

The founder may be another legal entity. face, and even Russian Federation represented by the Federal Property Management Agency. And if everything is clear with the Russian Federation, then for physical. persons and legal entities persons have a number of criteria by which they can act as founders:

Difference between a participant and a founder

What is participation in an LLC and how does it differ from a foundation? The founder, as mentioned above, establishes, that is, and after that becomes a participant. Or another person invests in this LLC, more precisely in its authorized capital, money or property, and also becomes a participant, but at the same time it is incorrect to call him the founder - he did not establish this company.

However, for example, in non-profit organizations there are no members, there are only founders.

How to become a founder of an LLC

To become a founder of an LLC, you must meet the above criteria. The rest is simple. A decision is made on the establishment, the charter is approved, paid, and an application is drawn up in the form of P11001. All this is submitted to the registration authority (inspection of the Federal Tax Service), and after state registration you become a member of the LLC, while being its founder (since you created it).

Number of founders in the company

There can be no more than 50 founders in an LLC. If there are more of them, it must be transformed into a production cooperative, or into a joint-stock company. Or, if this is not done, it will be liquidated.

Founder's rights and obligations

The rights and obligations of the participants of the LLC are specified in Article 8 of the Federal Law "On LLC". In particular, these are:

• participation in the management of the affairs of society;
• obtaining information about the activities of the company and familiarization with its documents;
• taking part in the distribution of profits;
• the right to withdraw from the LLC, if it is in the charter;
• receiving part of the property in the event of liquidation of the LLC.

The charter may provide for additional rights.

Establishment agreement

The founding agreement governs. It is concluded between the founders when their number exceeds one. The form is simple written. According to Part 5 of Art. 11 of the Federal Law "On LLC", the agreement on establishment determines:

"The procedure for their joint activities to establish a company, the size of the charter capital of the company, the size and par value of the share of each of the founders of the company, as well as the size, procedure and terms of payment for such shares in the charter capital of the company."

Meeting of founders

The meeting of the founders is held at any address. Before the meeting, it is necessary to record the attendance and powers of each of them (usually this is done by one of them, or a specially invited person; sometimes a notary).

The decision of the founders to create a company is recorded in the form of the minutes of the meeting, all decisions must be taken unanimously.

Responsibility of the founder

According to Part 6 of Art. 11 Federal Law "On LLC",

“The founders of the company are jointly and severally liable for the obligations associated with the founding of the company and which arose before its state registration. The company is liable for the obligations of the founders of the company associated with its establishment, only if their actions are subsequently approved by the general meeting of the company's participants. At the same time, the amount of the company's liability in any case cannot exceed one fifth of the paid-up charter capital of the company. "

In other words, everything before the registration of an LLC is the responsibility of the founders jointly and severally. After registration - subsidiary, if the connection between the participants and the director, to whom they gave the appropriate orders, is proved.

Exclusion or change of the founder of LLC

As such, the founder cannot be excluded from the LLC, this is an incorrect expression. You can exclude a participant, or you can change him.

It can only be through the courts, if other participants prove that his behavior is blocking the work of society. As an example - does not appear at meetings where a unanimous decision is required, for example, by approval big deal.

The change of participant takes place either through the sale of a share, or through entry-exit with an increase in the authorized capital.

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2. To form the authorized capital of the Company in the amount of 10,000 (Ten thousand) rubles, consisting of 1 (one) share with a par value of 10,000 (Ten thousand) rubles. Share capital is paid in cash and property (if property, then it is imperative to approve the monetary value of the property). no later than four months from the date of state registration of the company.

If the founder of the LLC is a legal entity

If there is a legal entity among the founders of the company, then for the registration of an LLC it will be necessary to provide a more complex package of documents than for a company, the founders of which are exclusively physical. First of all, the entry of a legal entity into the authorized capital of a newly registered company must be approved by an appropriate decision or minutes of the meeting of its founders or shareholders.

IE or LLC

The minimum number of founders is one person. Thus, a society can be created by one citizen or one legal entity. However, the law prohibits the establishment of an LLC by another company (a joint stock company or a company with limited or additional responsibility), which consists of one participant (company of one person).

FAQ (frequently asked question): how do LLCs differ from LLC members? In fact, nothing.

How to draw up a decision of the sole founder to establish an LLC

In order to competently approach the procedure for collecting documents for a newly created organization, you should understand the terms and definitions that describe the legal component of this issue.

So, a limited liability company is a business entity created by one or more, the authorized capital of which is divided into shares.

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but if LLC B has a board of directors, then its powers under the law include making decisions on participation and termination of participation of the company in other organizations, if the charter of the company does not refer this to the competence of the executive bodies of the company.

Registration of an LLC with a sole founder - a legal entity

- application in the form of P11001, with a notarized signature of the applicant. However, in this case, the applicant can only be the sole applicant. executive agency(gene.

Registration of an LLC with a foreign founder - a legal entity

All foreign documents must be apostilled and translated into Russian, and the translation must be notarized. The head of a foreign legal entity at a notary certifies the application form R11001 and submits documents to the Federal Tax Service for registration.

Registration of an LLC with a founder - a legal entity

List of documents provided in tax office for the registration of an LLC, as part of the founders, of which there is a legal entity, is no different from the usual one. Only a few tax inspectorates may require the submission of a decision by the highest governing body of the founder-legal entity to participate in the establishment of an LLC.

The applicant on behalf of the founder-legal entity may be its sole executive body (general director).

Registration of an LLC with a founder as a legal entity

1) an application for state registration. The application can be signed by the head of the company, the founder (s) of the company, the head of the company that is the founder of the registered company, a citizen who has a power of attorney to carry out actions to register a legal entity.

In accordance with Art. 40 of the Civil Code, a legal entity can be established by one or more founders.

The founders of a legal entity may be property owners or their authorized bodies or persons, and in cases specifically provided for by legislative acts, other legal entities.

At the same time, legal entities that own property on the right economic management or operational management, can be founders of other legal entities with the consent of the owner or his authorized body.

Until recently, legislation did not make a clear distinction between the concepts of “founder” and “participant”. However, even now, both in legislation and in literature, unreasonable confusion of these terms is often allowed.

Meanwhile, despite the semantic similarity of these concepts, there are significant differences between them, since, for example, the founder of an organization may not be a member of it, having stopped in established order your participation in this legal entity. And, conversely, a member of an organization may not be its founder, having bought, for example, a share in the authorized capital of a limited liability partnership from its founder.

The provision of the Law on Amendments and Additions to Certain Legislative Acts on the Securities Market and joint stock companies: the founders of a legal entity cannot have any advantages over other participants of this legal entity who are not its founders, with the exception of cases provided for by the legislative acts of the Republic of Kazakhstan.

In the legal literature it is rightly noted that the founders (participants) can be workers, employees, officials legal entity, while carrying all labor rights and obligations that are not confused with the rights and obligations of the founder (participant) of the legal entity. In other words, a distinction should be made between labor and civil law relations that may exist between a legal entity and its participants. Unfortunately, judicial practice is familiar with cases of a different approach to these issues.

Thus, the court ruled in favor of citizen G. in the case of recovery from LLP wages per forced truancy... Despite the decision of the presidium of the regional court, which left the court decision unchanged, the regional prosecutor turned to the General Prosecutor with a request to bring a corresponding protest, indicating the following: citizen G. was one of the participants in the LLP (defendant), at the same time he was in labor relations... Therefore, the court should, when considering the case, apply the relevant provisions of the legislation on business partnerships ah, for which the plaintiff, like other participants, bears the risk of losses associated with the activities of the partnership. At first glance, the prosecutor notes, the court decisions are correct: there is an enterprise, there is an administration and there are workers. However, if we imagine that the founders and participants of the LLP are only two individuals who want to make a profit by investing their capital and personal participation, but for some reason their work does not go, the partnership does not receive a profit, then the question arises, to whom should they sue, really to themselves or to each other? There is only one answer: in accordance with the law, they bear the risk of losses.

Thus, the prosecutor notes, the failure to clarify the actual rights and obligations of the plaintiff, the inappropriate application of labor legislation, the failure to apply the necessary norms substantive law led to the ruling of an illegal decision, because the plaintiff's claims to collect wages are unlawful, since he, like other participants in the partnership, according to Art. 77 of the Civil Code, bears the risk of losses associated with the activities of the partnership. His labor costs, which did not bring profit, are not reimbursed.

The arguments presented by the prosecutor are groundless and demonstrate not only a confusion of the concepts of "participant" and "employee", but also an erroneous understanding of the very essence of a legal entity.

The English judicial precedent of 1897 is widely known - the so-called Salomon v. Salomon and Co. Ltd "(" Salomon v. Salomon and Company ").

The dispute was whether the company's debts were, in fact, 100% of its participant. Making the final decision, the House of Lords, represented by Lord Halsbury, motivated it as follows: “For artificial education, it is only essential that the right must recognize this artificial formation, completely distracting from the motives that guided the founders. The company, once established, must be treated like any other independent person; but even if we assume that the formation of the company by Salomon was intended to conduct business on behalf of the company, it does not at all follow that this is contrary to the purpose of the company law, which clearly gives the company a right to exist with inherent rights and obligations, regardless of the goals those who formed the company ”41.

According to Part 1 of Clause 1 of Art. 41 of the Civil Code, a legal entity carries out its activities on the basis of the charter and the constituent agreement or, if the legal entity is established by one person, the charter and a written decision on the establishment of a legal entity (decisions sole founder), unless otherwise provided by the Civil Code and legislative acts. In the cases provided for by legislative acts, a legal entity that is a non-profit organization may act on the basis of general position about organizations of this type. Finally, a legal entity that is a small business entity can carry out its activities on the basis of a standard charter, the content of which is determined by the Government of the Republic of Kazakhstan.

On the basis of only the charter, state enterprises are created and state institutions(or general position); both the charter and the agreement at the same time, such, for example, organizations as general and limited partnerships, production cooperatives; both the charter and the charter and the agreement - joint stock companies, limited and additional liability partnerships, non-state institutions.

TO constituent documents should include the decision of the sole founder, which is, by its legal nature, a unilateral transaction and requires appropriate registration.

In more detail, these issues are determined by special legislative acts on certain organizational and legal forms of legal entities.

Item 4, Art. 41 of the Civil Code establishes the approximate content of the memorandum of association. The named conditions should be considered as essential, and in their absence (unless otherwise provided by special legislative acts) the constituent agreement in accordance with paragraph 1 of Art. 393 GK cannot be considered a prisoner.

Item 3, Art. 41 of the Civil Code establishes that in the constituent documents non-profit organization and the state enterprise should define the subject and objectives of the activities of these legal entities. With regard to the constituent documents of a business partnership, joint stock company and production cooperative There is no such requirement, therefore, it is the right, but not the obligation, of the founders of these organizations to determine the subject and purpose of their activities in the constituent documents. This approach of the legislator, as noted above, indicates the different legal personality of these two groups of organizations.

Other conditions may be included in the memorandum of association with the consent of the founders. Therefore, if one of the parties insists on the inclusion in the memorandum of association of any condition, although not required by law, this condition is recognized as essential.

Unlike the charter, with the content of which all interested parties have the right to familiarize themselves, the content of the constituent agreement is a commercial secret, and it is not subject to presentation to state and other official bodies, as well as to third parties. Exceptions to this rule can be established by legislative acts, by the constituent agreement itself or by a decision of the bodies of a legal entity.

Founding agreements, decisions of the sole founder, as well as charters of business partnerships and joint-stock companies must be notarized. With regard to the constituent documents of other forms of legal entities, the legislation is limited by the requirement for their execution in simple written form.

In order to resolve problems caused by a possible conflict between the provisions of the charter and the articles of association, the Code establishes cases of priority of one document over another. So, if the conflicting condition relates to the internal relations of the participants, the condition of the memorandum of association applies. If the application of the controversial term may have significance for the relationship of the legal entity with third parties, priority shall be given to the articles of association.

It must be recognized that this approach is rather arbitrary, since the same condition can affect both the relationship between the participants and between a legal entity and third parties.

The creation of an LLC by legal entities is a very common situation in the business sphere. Meanwhile, the legal formulation of this fact has a number of its own peculiarities, which we will discuss in more detail in the article.

Creation of LLC, if the founder is a legal entity: legislation

The procedure for creating a commercial organization, which includes a limited liability company, is regulated by a number of regulatory documents, including:

• The Civil Code of the Russian Federation, which establishes the main provisions on limited liability companies, including discloses general issues creation of LLC and the subject composition of its founders.
• Federal Law "On Limited Liability Companies" dated 08.02.1998 No. 14-FZ - the main normative document regulating the activities of such commercial organizations, as LLC, contains, among other things, the provisions on the participants in the company and the procedure for the establishment of the company.
• Federal Law "On State Registration ..." dated 08.08.2001 No. 129-FZ - normative act, directly establishing the procedure for the state registration of a company upon creation, including the issues of completeness of documents submitted for registration, the procedure for registration and refusal to register an LLC.
• Order of the Federal Tax Service of Russia dated 25.01.2012 No. ММВ-7-6 / [email protected], which approved the application form to the Federal Tax Service on the creation of a company, and also determined the requirements for the preparation of documentation submitted for registration with the Federal Tax Service.
• The Tax Code of the Russian Federation, which in clause 1 of Art. 333.33 determines the amount of the state duty paid upon registration of the company.

Based on the provisions of the listed regulatory documentation, it can be concluded that general order the creation of a limited liability company by another legal entity is the same as when a company was created by citizens. However, there are still some features.

Features of creating an LLC by another legal entity

To the participants of LLC Art. 7 of Law 14-FZ includes both citizens and legal entities. At the same time, it is prohibited to create a society:

• a legal entity as the only participant, which, in turn, has a single founder;
• government agencies and local governments, unless an exception to this rule is expressly provided for by law.

It should be noted that the obligation to notify the tax authorities about participation in Russian companies in a share of more than 10% assigned to taxpayers-legal entities sub. 2 p. 2 art. 23 of the Tax Code of the Russian Federation does not apply to cases of participation in limited liability companies.

LLC establishment procedure

The procedure for creating a limited liability company, if there is another legal entity among the participants, looks like this:

• Authorized collegial body organizations (board of directors, general meeting shareholders, meeting of founders) decides to participate as a founder in LLC. The decision is formalized by an appropriate document, minutes of the meeting. A representative from an organization during the creation of an LLC can be either a director or another employee. In the latter case, you will need to issue a power of attorney.
• Participation of a representative of a legal entity in the meeting of founders of the future company and signing an agreement on the establishment of an LLC.
• Development of the company's charter.
• Filling out an application form to the tax office for the establishment of an LLC.
• If all founders, without exception, do not apply to the tax office with an application for creation, then the latter must be certified by a notary.
• Payment of state duty in the amount of 4000 rubles.
• Submission of an application for the establishment of an LLC in tax authority.

The procedure for filling out an application for the creation of a company

The application for the establishment of an LLC according to the form No. Р11001 is filled out in accordance with the requirements of the order of the Federal Tax Service of Russia dated 25.01.2012 No. ММВ-7-6 / [email protected](Appendix No. 20). If there is a legal entity among the founders of the company, you will need to fill out sheet A of the form, including indicating:

• in section 1 - OGRN;
• in section 2 - TIN of the parent organization;
• in section 3 - the name of the parent company in full, without abbreviations, in accordance with the constituent documents;
• in section 4 - the share that will belong to the founder-organization.

If there are several legal entities among the founders, then each of them will need to fill out their own sheet A. Thus, in this case, the application will contain several sheets A.

If the founder of the company is a foreign company, then it is necessary to fill out sheet B, including indicating:

• in section 1 - the full name of the foreign company in Russian transcription;
• in section 2 - the country where the company is registered and its address;
• in section 3 - TIN, if the foreign company is tax-registered in Russia;
• in section 4 - the size of the share.

Accordingly, if the founders include only a foreign company, sheet A is not completed and is not attached to the application.

Sheet H is filled in in relation to applicants, that is, members of the company being created, who will apply to the tax authority with an application for creation. For each founder, a separate sheet H is filled in. At the same time, in relation to the applicant - a legal entity, sections 2, 4 and 5 are filled out, respectively:

• information about the legal entity;
• information about the applicant - the director of the founding legal entity;
• the applicant's receipt.

Documents required for registration of LLC

The founders attach to the application for the establishment of an LLC:

• Protocol on the creation of a society.
• The charter of the company to be created.
• Documents on registration of a legal address (certificate of ownership of the premises or a lease agreement with one of the founders).
• Receipt for payment of state duty.
• Power of attorney for the applicant, if one authorized representative applies from the founders.
• Copies of passports of all founders. In this case, a legal entity will require:

- certificate of registration and assignment of OGRN;

- certificate of tax registration (TIN);

- extract from the Unified State Register of Legal Entities;

- order on the powers of the director.

Thus, legal entities may well be founders of other organizations. However, such participation will require special care when filling out the application form to the tax office on the creation of a company, as well as increased attention when forming the accompanying set of documents when applying for registration.