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of October 29, 2009

About the Federal Law of 30.12.2008 No. 312-FZ

The Federal Tax Service receives large number of addresses from taxpayers and representatives of mass media about the transitional provisions of the Federal Law of December 30, 2008 N 312-FZ which simply are referred to as in media as "re-registration of Ltd company". Despite numerous comments and explanations of FNS of Russia on the matter, in separate information materials, unfortunately, the purpose, and the most important, consequences of provisions of the Law which provide need of reduction of charters of limited liability companies in compliance with the legislation are distorted. In this regard it is necessary to explain the following.

As a rule, as the purpose of transitional provisions of the Federal Law of December 30, 2008 N 312-FZ the inventory acting and liquidation of invalid limited liability companies is specified. However tax authorities have information on what legal entities are acting, and measures for exception of the Unified state register of invalid legal entities (USRLE) are successfully applied by tax authorities since 2005 according to the Federal Law of August 08, 2001 N 129-FZ "About state registration of legal entities and individual entrepreneurs". Therefore, on the matter of additional legislative changes it was not required.

Settlement was required by the raiding problem revealed during application of the legislation on state registration of legal entities. Therefore the changes which became effective since July 1, 2009 in the legislation made by the Federal Law of December 30, 2008 N 312-FZ carry, including, and anti-raider nature as are directed to counteraction to corporate captures, protection of the rights and legitimate interests of members of limited liability companies and their investors that follows also from the explanatory note to the draft of the considered Federal Law. It is, in particular, about the regulations connected with the notarial certificate of transactions on alienation of share or part of share in the authorized capital of limited liability company, entering into the USRLE of the data connected with such transition, giving to court of the claim for recognition of the rights to share.

The Federal Law of February 8, 1998 N 14-FZ "About limited liability companies" in edition of the Federal Law of December 30, 2008 N 312-FZ otherwise governs not only the relations connected with transition of share or part of share of the participant in the authorized capital of limited liability company to other persons or to the society, but also the main parties of internal management in society. Therefore the discussed Federal Law includes regulation about need of reduction of charters of the societies registered till July 1, 2009 in compliance with new requirements of the legislation. The purpose of what is called "re-registration" also consists in it.

In fact, reduction of the charter of limited liability company in compliance with N 312-FZ changes brought by the Federal Law of December 30, 2008 for members of society means opportunity to exercise the rights granted by the law, to observe own interests, and also to provide their protection.

In this regard the term "the re-registration of Ltd company" in this case does not capture the essence of the considered provisions of the Federal Law of December 30, 2008 as passing or not passing of the procedure of reduction of the charter to compliance with the legislation on limited liability companies existing since July 1, 2009 cannot affect legal capacity of society at all. The exception of the USRLE of the societies which did not fulfill duty on entering into the charters of stipulated by the legislation changes according to the decision of registering body is not provided. The law does not provide also special sanctions for societies whose charters are not brought into accord with the legislation by January 1, 2010. Charters of such societies will be applied in the part which is not contradicting legal acts of the Russian Federation as it occurs and now.

At the same time, it must be kept in mind that along with state registration of the changes made to charters of limited liability companies for the purpose of their reduction in compliance with the existing legal acts, the registering body enters data on the sizes and nominal value of shares of members of the registered societies in the USRLE. The specified data are checked by notaries in case of the notarial certificate of transactions on alienation or on pledge of share or part of share in the authorized capital of limited liability company. Therefore their availability in the USRLE and, therefore, in the certificate of incorporation, can simplify documentary confirmation of the powers of the person alienating or pledging share or part of share for the order them.

In general across Russia by the end of October the re-registration of charters was performed by about ten percent of limited liability companies. At the same time, since the middle of September the number of appeals to tax authorities in connection with reduction of charters of limited liability companies in compliance with the legislation, sharply increased that inevitably entailed emergence of queues.

The most intense situation with queues was created in the cities with large number of the registered limited liability companies. In peak hours the registration center of Moscow - MIFNS N 46 - adopted over four thousand statements in case of average maximum settlement load about two thousand. The problem of queues in this inspection was artificially created by separate firms, the rendering services in registration of the organizations which found in transitional provisions of the Federal Law of December 30, 2008 N 312-FZ benefit for themselves and hurried to use it. Now queues are observed only in the morning. As of 23, on October 27 and 28, 2009 it was possible to file documents to five o'clock in the afternoon without queue. It should be noted what irrespective of load of inspection, documents acceptance is made within 2-5 minutes, and registration actions are made at the scheduled time (no more than five working days). These terms managed to be sustained by introduction of the multiple-shift working schedule of staff of inspectorate in case of simultaneous increase in working hours of inspectorate (the inspectorate accepts documents from applicants from 7 in the morning to 21:00 in the evening).

At the same time, in order to avoid possible inconveniences for the applicants connected with queues to the limited liability companies registered in the territory of Moscow and persons interested to make changes to the charter, it is recommended to send documents to inspection by the mailing with the announced value and the inventory of investment to the address: MIFNS of Russia N 46 on Moscow, Pokhodny Proyezd, vld. 3, building 1, Moscow, 125373. Also applicants can submit documents to inspection through the authorized representative in specially allotted windows (thus, personal presence of the CEO or founder of society is not required).

The Federal Tax Service informs limited liability companies that registration of changes of charters of societies for the purpose of their reduction in compliance with the Federal Law of December 30, 2008 N 312-FZ will be performed by tax authorities and after January 1, 2010.

Disclaimer! This text was translated by AI translator and is not a valid juridical document. No warranty. No claim. More info

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