Starting from March, the period for holding annual general meetings of participants and shareholders of the companies will open. Recall that limited liability companies, as well as joint stock companies, must annually approve at such a general meeting the annual report and the annual balance sheet. This norm for each of the mentioned companies is enshrined in federal laws:
dated 08.02.98 No. 14-FZ "On Limited Liability Companies" (sub-clause 6, clause 2, article 33, article 34) and
dated 26.12.95 No. 208-FZ "On Joint Stock Companies" (Art. 47, Subclause 11, Clause 1, Art. 48).
Meeting preparation
- limited liability companies
The next general meeting of participants of a limited liability company, at which the annual results of its activities are approved, is held within the timeframe determined by the charter of the company. At the same time, this period should not exceed the period from March 1 to April 30 (Art. 34 of Law No. 14-FZ).
The meeting of the company's participants in question is convened by the executive body of the company, which is obliged to notify each participant of the company no later than 30 days before such a meeting (Article 36 of Law No. 14-FZ). This is done by registered mail to the address indicated in the list of participants in the company, unless another method of communication is provided for by the charter of the company. The notice must indicate the time and place of the meeting, as well as the proposed agenda.
At the stage of preparing the general meeting, information and materials are formed for the members of the company. The package of documents provided includes:
the company's annual report;
conclusion of the auditing commission (auditor) of the company;
the auditor's conclusion based on the results of the audit of the annual financial (accounting) statements, if the organization is subject to mandatory audit in accordance with federal laws or the founders made a decision to conduct an audit;
information about the candidate (candidates) to the executive bodies of the company, the board of directors (supervisory board) of the company and the audit commission (auditors) of the company;
draft internal documents of the company, as well as other information (materials) stipulated by the charter of the company.
If the issue of changing the constituent documents is included in the proposed agenda of the general meeting, then the draft of amendments and additions to these documents, or the draft of the constituent documents of the company in a new edition, shall be included in the mentioned materials.
The specified information and materials within 30 days prior to the general meeting of the company's members must be provided to all members of the company for familiarization in the premises of the executive body of the company.
In addition, the executive body is obliged to send information and materials to the participants together with a notification of the holding of a general meeting of the company's participants, unless another procedure for familiarizing the company's participants with the said information and materials is provided for by the company's charter. In the event of a change in the agenda, the relevant information and materials are sent together with a notification of such change.
At the request of the participant, the company is obliged to provide him with copies of these documents. The organization in this case has the right to charge a fee for the provision of these copies. At the same time, the fee cannot exceed the costs of their manufacture (Art. 36 of Law No. 14-FZ).
This information is presented in the table in section 3 "Net assets" of the statement of changes in equity, which shows the values \u200b\u200bof net assets as of three reporting dates: December 31, 2012, December 31, 2011 and December 31, 2010.
The procedure for assessing the net assets of joint-stock companies was approved by the joint order of the Ministry of Finance of Russia and the Federal Commission for the Securities Market of January 29, 2003 No. 10n / 03-6 / pz. It is also applied in the calculation and by limited liability companies (letter of the Ministry of Finance of Russia dated 07.12.09 No. 03-03-06 / 1/791). In calculating the value of net assets, the indicators of the asset (the value of non-current and current assets) and the liabilities of the balance sheet (long-term liabilities - loans, credits, etc., short-term liabilities on loans and credits - payables, arrears to participants in the payment of income, reserves for future expenses) other short-term liabilities).
If the value of net assets turned out to be lower than the size of the authorized capital, then in the notes to the report it is necessary to reflect:
the results of the analysis of the reasons and factors that led to this (according to the director and the board of directors);
a list of measures to bring the value of the company's net assets in line with the size of its authorized capital.
If the value of the company's net assets remains less than its authorized capital at the end of the financial year following the second financial year or each subsequent financial year, at the end of which the value of the company's net assets turned out to be less than its authorized capital, the company no later than six months after the end of the corresponding financial year is obliged to take one of the following decisions (clause 4 of article 30 of Law No. 14-FZ):
on the reduction of the authorized capital of the company to an amount not exceeding the value of its net assets;
on the liquidation of society.
The decision to liquidate will have to those limited liability companies whose net assets turned out to be less than the authorized capital equal to the minimum authorized capital (10,000 rubles), and which will not be able to raise their value to the specified value until June 30, 2013.
- joint stock company
The annual general meeting of the joint-stock company must be held in person (clause 2 of article 50 of Law No. 208-FZ). However, companies with a large number of shareholders often use a mixed form of holding a meeting, the so-called face-to-face meeting. It "follows" from the opportunity provided by the law for shareholders included in the list of persons who have the right to participate in the general meeting to participate directly in the meeting or to send completed ballots to the company (clause 3 of article 60 of Law No. 208-FZ).
The convocation of the annual meeting of shareholders is attributed to the issues falling within the competence of the board of directors (supervisory board) of the company (subparagraph 2, paragraph 1, article 65 of Law No. 208-FZ). When preparing for the annual meeting, the Board of Directors determines:
the agenda;
The date of the meeting is set on the basis of the existing limitation from March 1 to June 30, specified in paragraph 1 of Article 47 by Law No. 208-FZ.
The meeting must be held at the location of the company, unless another place of its holding is established by the charter of the company or an internal document of the company regulating the procedure for the general meeting (clause 2.9 of the Regulation on additional requirements for the procedure for preparing, convening and holding a general meeting of shareholders, approved by the resolution of the FCSM from 31.05.02 No. 17 / ps).
Some of the issues that must be included in the agenda of the annual meeting are determined by law No. 208-FZ. These include (clause 2 of Art. 54 of Law No. 208-FZ):
election of the board of directors (supervisory board) of the company;
election of the auditing commission (auditor) of the company;
approval of the company's auditor;
approval of annual reports, annual accounting statements, including the company's profit and loss statement;
distribution of profits (including payment (declaration) of dividends) based on the results of the financial year.
The date of compiling the list of persons entitled to participate in the annual meeting of shareholders is selected from the time interval determined by the date of the decision to hold it and 50 days before the meeting (clause 1 of article 51 of Law No. 208-FZ).
Failure to properly define this date is an administrative offense. Violation of the requirements of federal laws and other regulatory legal acts adopted in accordance with them to the compilation of lists of persons entitled to participate in the general meeting of shareholders in accordance with paragraph 3 of Article 15.23.1 of the Administrative Code of the Russian Federation, entails the imposition of an administrative fine on legal entities from 500,000 to 700,000 rub. Regional branches of the Federal Financial Markets Service (FFMS) resort to penalties when they find one, and arbitration courts consider such actions to be legitimate (Resolution of the FAS of the North Caucasus District of 22.02.11 No. A32-17121 / 2010).
The list of shareholders entitled to participate in the annual meeting is compiled on the basis of data from the register of shareholders of the company as of the date set by the board of directors of the company. In this case, the list of persons includes shareholders - owners of ordinary shares of the company (clause 2 of article 31 of Law No. 208-FZ), as well as shareholders - owners of preferred shares of a company of a certain type, depending on the issues included in the agenda and certain circumstances (art. 32 of Law No. 208-FZ). Shareholders included in the list - owners of preferred shares are specified in clause 2.11 of the above provision on additional requirements.
If in relation to a company a special right is used for the participation of the Russian Federation, a constituent entity of the Russian Federation or a municipality in the management of the said company ("golden share"), then the list of shareholders entitled to participate in the annual meeting includes representatives of the Russian Federation, a constituent entity of the Russian Federation or a municipal education.
This list also includes:
management companies of mutual investment funds, if the company's shares constitute the property of mutual investment funds, and
trustees - when transferring the company's shares to trust.
The notice of holding the annual meeting of shareholders must be made no later than 20 days before the date of its holding. Within this period, it must be sent to each person indicated in the list of shareholders by registered mail, unless the charter of the company provides for another way of sending this message in writing. The notice, if provided for by the charter of the company, may be delivered to each of the indicated persons against signature. It is quite possible to publish it in a print publication accessible to all shareholders of the company, as determined by the charter of the company, as well as additional placement of information on the holding of a meeting of shareholders in other media: on television, on radio (clause 1 of article 52 of Law No. 208-FZ) ... The notice of the meeting must indicate:
date, place, time of the general meeting of shareholders. In the case when the completed ballots can be sent to the society, the message contains the postal address to which they are sent;
the date of compiling the list of persons entitled to participate in the meeting;
meeting agenda;
the procedure for familiarization with the information (materials) to be provided in preparation for the meeting of shareholders, and the address (addresses) where it can be found.
Information (materials) to be provided to persons entitled to participate in the meeting in preparation for its holding include:
annual accounting statements, including the auditor's report;
the conclusion of the audit commission (auditor) of the company based on the results of the audit of the annual accounting statements;
recommendations of the board of directors (supervisory board) of the company on the distribution of profits based on the results of the financial year, including on the amount of dividend on the company's shares and the procedure for its payment;
information on the candidate (candidates) to the executive bodies of the company, the board of directors (supervisory board) of the company, the audit commission (auditors) of the company, the counting commission of the company;
draft internal documents of the company, draft decisions of the general meeting of shareholders, as well as information (materials) provided for by the charter of the company.
If the agenda of the annual meeting includes the issue of changing the charter or making additions to it or its new version, then the relevant draft documents are included in the information materials.
The above information should be made available to eligible persons 20 days before the annual meeting. Shareholders can familiarize themselves with this information at the premises of the executive body of the company and in other places, the addresses of which are in the message. The availability of this information to persons taking part in the meeting is preserved during its holding (clause 3 of article 52 of the law No. 208-FZ).
The company's annual report submitted for approval by the annual general meeting must contain the information specified in clause 3.6 of the provision on additional requirements.
The reliability of the data contained in the annual report must be confirmed by the audit commission (auditor) of the company. The very same annual report of the company is signed by the person performing the functions of the sole executive body of the company. Before submitting it to the annual meeting, the report is subject to preliminary approval by the board of directors (supervisory board) of the company. Moreover, this must be done no later than 30 days before the date of the annual meeting. If the company does not have a board of directors, then the report is preliminarily approved by the person acting as the sole executive body of the company (clauses 3 and 4 of article 88 No. 208-FZ).
The above requirements regarding the ratio of net assets to the authorized capital of limited liability companies also apply to joint stock companies (clauses 4, 5, 6, 11, article 35 of Law No. 208-FZ). In addition to them, an obligation has been introduced for joint-stock companies to post twice, once a month, in the media in which data on state registration of legal entities are published, a notice of a decrease in the value of the company's net assets if their value is less than the authorized capital of the company by more than 25% at the end of three, six, nine or twelve months of the financial year following the second financial year or each subsequent financial year, at the end of which the value of the company's net assets turned out to be less than its authorized capital (Clause 7, Article 35 of Law No. 208-FZ ).
Decisions at the annual general meeting of shareholders are made by voting on each item on the agenda. The counting of votes is carried out by the counting commission, in case of its absence - by the person replacing it. Based on the results of voting, these persons shall draw up and sign a protocol on voting results no later than 15 days after the end of the meeting. The protocol is drawn up in two copies. Both copies are signed by the chairman and secretary of the meeting. The protocol must contain the information specified in clauses 5.3, 5.7 and 5.8 of the provisions on additional requirements.
The report on the voting results is drawn up if the voting results on each of the agenda items were not communicated to the shareholders at the end of the voting. Such a report must be sent to each shareholder who has the right to take part in the meeting, within a period not exceeding 10 days after drawing up the minutes of voting results.
Violation of the provisions described above also qualifies as an administrative offense. An administrative fine may be imposed for these violations:
for officials - in the amount of 20,000 to 30,000 rubles. or disqualification for up to one year;
for legal entities - from 500,000 to 700,000 rubles.
Cost accounting
The above requirements of the legislation of the Russian Federation for holding an annual (general) meeting determine the structure of expenses associated with its holding.
Both joint stock companies and limited liability companies will not do without costs associated with:
informing shareholders or participants of information about the meeting;
preparation of copies of mandatory and additional documents, which are not included in the annual report, which the company is obliged to provide to persons entitled to participate in the general meeting.
For joint stock companies, these are added costs:
to publish information in the media about both the holding and the results of the meeting. At the same time, for publication, the society can use not only print, but also other media (for example, television, radio), the use of which is determined by the charter of the society;
for the production of voting ballots and their distribution, if:
The meeting is held in the form of absentee voting;
- in JSCs the number of shareholders - owners of voting shares is 1000 and more;
- the charter of the joint-stock company provides for the distribution of ballots before the meeting;
to send a report on voting results to shareholders if the voting results were not announced directly at the meeting.
Joint-stock companies with more than 500 shareholders - owners of voting shares have one more item of expenses for paying for the services of a registrar performing the functions of a counting commission in accordance with the requirements of paragraph 1 of Article 56 of Law No. 208-FZ.
In addition to this, organizations, as a rule, incur other additional costs:
renting a meeting room;
organization of buffet services (meals) for the event participants;
travel and rental of living quarters for nonresident participants;
transport and other services for the event (including technical equipment and cleaning of premises, translation services, security, office expenses, etc.).
For open joint-stock companies, another item of expenditure is the cost of publishing annual reports (Art. 92 of Law No. 208-FZ). Are obliged to publish annual reports and balance sheets, as well as to disclose other information about their activities, provided for by federal laws and regulations adopted in accordance with them, and some limited liability companies. This applies to LLCs that have publicly placed bonds and other equity securities (clause 2 of article 49 of Law 14-FZ).
For OJSC, the Procedure for the publication of annual financial statements by open joint-stock companies has been established (approved by order of the Ministry of Finance of Russia No. 101 dated 28.11.96). The accounting statements of a company are considered published in the mass media accessible to all shareholders of the given company if the publication actually took place in at least one periodical. The specific edition can be determined by the charter of the company or by the decision of the general meeting.
One of the expense items for many joint stock companies, as well as for some limited liability companies, is the cost of an audit. Recall that open joint stock companies are subject to mandatory audit due to their organizational and legal form. Closed joint stock companies, as well as limited liability companies, may be subject to mandatory audit in terms of financial performance. This happens if the amount of proceeds from the sale of products (sale of goods, performance of work, provision of services) of the organization for the previous reporting year exceeds 400,000,000 rubles. or the amount of assets of the balance sheet as of the end of the previous reporting year exceeds 60,000,000 rubles. (subparagraphs 1, 4, paragraph 1, article 5 of the Federal Law of 30.12.08 No. 307-FZ "On Auditing").
The auditor of a joint stock company, as mentioned above, is approved at the annual meeting. The amount of payment for these services is determined by the board of directors of the company (clause 2 of article 86 and clause 2 of article 69 of Law No. 208-FZ). In LLC, the appointment of an audit, approval of the auditor and determination of the amount of payment for his services are within the competence of the general meeting of the company's participants (subparagraph 10, paragraph 2 of article 33 of Law No. 14-FZ).
- in accounting
The costs associated with the audit are classified in accounting as costs associated with production management. And they, in turn, relate to expenses for ordinary activities (clause 7 of the Accounting Regulations “Organization Expenses” (PBU 10/99), approved by order of the Ministry of Finance of Russia dated 06.05.99 No. 33n). Instructions for the application of the Chart of accounts for financial and economic activities of organizations (approved by order of the Ministry of Finance of Russia dated October 31, 2000 No. 94n) prescribes accounting for administrative expenses on account 26 "General business expenses" (trade organizations are invited to use account 44 "Sales expenses"):
Debit 26, 44 Credit 76
- reflected the debt under the contract for the provision of audit services;
Debit 19 Credit 76
- allocated VAT paid to the auditor;
Debit 76 Credit 51
- funds were transferred to the auditor.
The costs of payment for audit services taken into account in general business expenses are subsequently written off either to account 20 "Main production" or to account 90 "Sales" of subaccount 2 "Cost of sales", depending on the accounting policy of the organization, as conditionally fixed.
If an organization rents premises for holding an annual meeting, then the costs incurred are also considered as costs associated with the management of production. It also includes the costs associated with the preparation of information materials for the annual meeting, notification of its holding and the production of voting ballots, etc.
It was stated above that a person participating in the annual (general) meeting has the right to request copies of the prepared information materials. If the organization makes a decision to charge a fee for them, then the funds received to reimburse the costs incurred are related to other income (clause 7 of the Accounting Regulations "Income of the organization", approved by order of the Ministry of Finance of Russia dated 06.05.99 No. 32n) and are accounted for account 91 "Other income and expenses" subaccount 1 "Other income":
Debit 50, 51 Credit 91-1
- funds were received from persons participating in the annual (general) meeting for information materials.
The costs associated with the publication of financial statements, including the costs of preparing, publishing and mailing a special brochure (booklet) with accounting statements, are included in the costs of ordinary activities as costs associated with production management (clause 3.1 of the publication order).
- when taxing
When calculating income tax, the costs of auditing services are included in other costs associated with production and (or) sales (subparagraph 17 of paragraph 1 of article 264 of the Tax Code of the Russian Federation). Other costs are known to be indirect. Such costs are fully accounted for in the costs of the current reporting (tax) period (clauses 1 and 2 of article 318 of the Tax Code of the Russian Federation).
Debit 68 subaccount "VAT calculations" Credit 19
If, in addition to operations subject to VAT, the organization carries out operations that are exempt from taxation, then only a part of the tax amount can be deducted. The part to be accepted is determined based on the value of the goods (work, services) shipped, the sale of which is subject to taxation (exempt from taxation), in the total cost of goods (work, services) shipped during the tax period. In this case, the organization must keep separate records of VAT amounts for purchased goods (works, services) (clause 4 of article 170 of the Tax Code of the Russian Federation).
Expenses for holding meetings of shareholders (participants, shareholders) are related to non-operating expenses (subparagraph 16 of paragraph 1 of article 265 of the Tax Code of the Russian Federation). At the same time, in the aforementioned subparagraph, the legislator indicates the costs of renting premises, preparing and distributing information necessary for holding meetings. That is, the expenses incurred, the direct connection with the holding of the meeting of which is directly traced:
rental of premises;
copying and duplicating works on the formation of documents provided to shareholders and participants, etc., -
tax officials should not be skeptical.
Documents confirming rental costs may be a lease agreement, an act of acceptance of the premises from the lessor. In this case, it is necessary to match the date on which the premises were rented and the date of the annual meeting. The latter can be confirmed by the minutes of the meeting.
Provided in the aforementioned subparagraph 6 of paragraph 1 of Article 265 of the Tax Code of the Russian Federation and other expenses directly related to the holding of the meeting, which means an open list of them. Thus, the financiers referred to these as the payment for the services of the registrar performing the functions of the counting commission (letter of the Ministry of Finance of Russia dated 10.11.09 No. 03-03-06 / 1/736).
The Ministry of Finance also does not object to the inclusion in the non-operating expenses of the costs of publishing in the official press and posting on the Internet information about the meeting of shareholders and its results (letter of the Ministry of Finance of Russia dated 10.11.09 No. 03-03-06 / 1/736).
At the same time, there are a number of expenses that are directly related to the holding of a meeting of participants (shareholders) of the company, but are not directly indicated in the considered subparagraph 16 of paragraph 1 of Article 265 of the Tax Code of the Russian Federation. This primarily refers to the costs of providing participants with food, their protection, travel, accommodation. In practice, disagreements arise between organizations and tax authorities on such expenses, since the latter do not accept them in reducing the taxable base only on the basis that they are not directly named in the specified norm.
In our opinion, there is still an indirect connection between transport costs and the holding of the meeting: the failure of the company to ensure the arrival of participants to the meeting may lead to the absence of a quorum for recognizing the decisions of the meeting as competent (Clause 8 of Art. 37 of Law No. 14-FZ, Clause 1 of Art. . 58 Law No. 208-FZ). Therefore, it would be logical to recognize such costs as non-operating expenses. However, officials do not agree with this.
You can, of course, try to take into account such costs as representative costs, because by virtue of paragraph 2 of Article 264 of the Tax Code of the Russian Federation, such costs are recognized, in particular, the costs of the official reception and service of participants who arrived at a meeting of another governing body of the taxpayer. The general meeting of the participants or shareholders of the company is the supreme governing body (Art. 32 of Law No. 14-FZ, Clause 1 of Art. 47 of Law No. 208-FZ). The tax authorities are, again, rather skeptical about this.
However, the courts sometimes still support the taxpayer. Thus, the judges of the FAS Ural District recognized as legitimate the attribution of expenses for holding a reporting meeting of shareholders to entertainment expenses, since the general meeting falls under the definition of another governing body, and the list of expenses that can be attributed to entertainment expenses is not regulated by the legislator (resolution of the FAS Ural District of 03.03.05 No. F09-529 / 05-AK).
The judges of the FAS of the Povolzhsky District considered that the cost of the following could be included in the entertainment expenses:
air transportation costs associated with the transportation of members of the board of directors to the place of the annual general meeting of shareholders (resolution dated 09.10.07 No. A57-4062 / 2006-9);
flight of a shareholder - a member of the company's management board to participate in the meeting (resolution of August 31, 2006 No. A65-18519 / 2005-CA2-22).
The fact that the living expenses of persons participating in the entertainment event do not reduce the tax base for corporate income tax, since these costs are not provided for by the provisions of paragraph 2 of Article 264 of the Tax Code of the Russian Federation, the Ministry of Finance of Russia indicated in a letter dated 01.12.11 No. 03-03- 06/1/796.
To confirm entertainment expenses, financiers strongly recommend issuing a package of documents, which includes (letters of the Ministry of Finance of Russia dated 01.11.10 No. 03-03-06 / 1/675, dated 22.03.10 No. 03-03-06 / 4/26):
order or order of the head of the organization to hold an entertainment event;
estimate of entertainment expenses;
primary documents confirming the purchase and cost of goods used during the entertainment event (invoices, invoices, cash register receipts, sales receipts, etc.);
primary documents confirming the purchase from third-party organizations of works and services necessary for the event (invoices, acts of work performed or services rendered, receipts of the cash register, etc.);
report or act on the actual amount of expenses for the event.
Hospitality expenses, as you know, are subject to regulation. When calculating income tax, they can be recognized in an amount not exceeding 4% of the total amount of the company's expenses on labor remuneration for the current reporting or tax period. Excessive amounts of entertainment expenses for tax purposes are not taken into account (paragraph 3, clause 2, article 264, clause 42, article 270 of the Tax Code of the Russian Federation).
Since the annual meeting should be held in the first or second quarter, it is possible that due to the excess of the standard, the organization in the indicated reporting periods will not be able to immediately recognize the total cost. Most likely, it will be possible to fully account for these costs only by the end of nine months or a calendar year. After all, the maximum amount of entertainment expenses that can be recognized in tax accounting is determined on an accrual basis from the beginning of the year until the end of the corresponding reporting period or year (clause 3 of Art. 318 of the Tax Code of the Russian Federation).
Note that the amount of VAT presented to the company for entertainment expenses is subject to deduction in the amount corresponding to those accounted for in taxation (paragraph 2, clause 7 of article 171 of the Tax Code of the Russian Federation). With the growth of labor costs in the next reporting period (and even more so at the end of the year), the standard for recognition of entertainment expenses in tax accounting also increases. In such a situation, the corresponding VAT deduction ceases to be "above the standard". Therefore, the amounts of VAT on excess expenses that are not deducted in one tax period of a calendar year are deducted in those tax periods for VAT in which these expenses are taken into account for tax purposes with corporate income tax (letter of the Ministry of Finance of Russia dated 06.11.09 No. 03 -07-11 / 285).
If you have a contract with a firm that organizes the full range of activities for preparing and holding the annual meeting, it is very tempting to write off all the costs it incurs for organizing the meeting as the cost of its services under the item "services of third parties." However, this expense item can include precisely the cost of the organizer's services, and not individual components of the total amount of the invoice issued by the organization, including, for example, the cost of renting a room for holding a meeting, protecting its participants, their buffet service, etc. confirming the expenses for the services of the organizer, it must be visible what exactly the services provided were.
Recall that a taxpayer has the right to independently determine which group to include costs, which with equal grounds can be attributed to different groups (clause 4 of article 252 of the Tax Code of the Russian Federation). Therefore, nothing interferes with society:
expenses for renting a hall (building) shall be attributed to production rent (subparagraph 10, clause 1 of article 264 of the Tax Code of the Russian Federation);
postage, telecommunications and similar expenses - for communication services (subparagraph 25, clause 1 of article 264 of the Tax Code of the Russian Federation);
used paper, issued pens, notepads, letterheads, etc. - to office expenses (subparagraph 24 of paragraph 1 of article 264 of the Tax Code of the Russian Federation);
the protection of the meeting participants is available for other security activities (subparagraph 6 of clause 1 of article 264 of the Tax Code of the Russian Federation). It should be noted that the judges of the FAS of the Volgo-Vyatka District confirmed the legality of writing off the costs of providing additional security during the annual meeting under the item “other security costs” (Resolution of the FAS of the Volgo-Vyatka District dated 10.08.06 No. A29-4238 / 2005a).
In chapter 25 of the Tax Code of the Russian Federation, as mentioned above, there is a special rule on the costs of holding meetings of shareholders (participants) - the mentioned subparagraph 16 of paragraph 1 of Article 265 of the Tax Code of the Russian Federation. As is known, a special rule has priority over a general one. Therefore, directly named expenses - for renting premises, for preparing and distributing information necessary for holding meetings - as well as directly related ones, such as, for example, publishing information about holding a meeting, are included in non-operating expenses. Doubtful expenses for transport and food can be considered as representative. When attracting a special organizer for holding a meeting, it is necessary to draw up the most detailed act on the services provided.
IMPORTANT:
For some organizations, the general meeting is of a formal nature, which entails not so significant expenses for its holding. For others, this event turns into a rather thorough ceremony with a large number of guests, the duration of which can be delayed. The executive body of the organization, following the established requirements of the above laws, is obliged to perform a number of organizational actions before the meeting.
The annual report must contain a section on the state of the company's net assets, which indicates indicators characterizing the dynamics of changes in the value of net assets and the authorized capital of the company for the last three completed financial years, including the reporting year (subparagraph 1, clause 3, article 30 of Law No. 14- FZ). Newly established societies provide such data for each completed financial year.
When preparing the annual meeting, the Board of Directors determines:
date (if it is not specified in the company's charter), place and time of the event;
the agenda;
the date of compiling the list of shareholders entitled to participate in the annual meeting;
the procedure for informing shareholders about its holding;
list of information (materials) provided to shareholders;
the form and text of the voting ballot in case of voting with ballots (Art. 54 of Law No. 208-FZ).
As the place of the general meeting, the message indicates the address where the meeting will be held, as well as the time of the beginning of registration of persons participating in its work (clause 2 of article 52 of Law No. 208-FZ).
The person participating in the meeting has the right to request copies of information materials. The company must provide them within 5 days from the date of application. The organization may charge a fee for the production of copies up to the costs incurred.
The requirements of the legislation of the Russian Federation for holding an annual (general) meeting determine the structure of expenses associated with its holding.
The accounting statements of a company are considered published in the mass media accessible to all shareholders of the given company if the publication actually took place in at least one periodical. A specific publication can be determined by the charter of the company or by a decision of the general meeting.
Provided that the organization carries out only operations recognized as an object of VAT taxation, and the presence of an invoice, the amount of tax paid to the auditor, the organization has the right to deduct:
Debit 68 subaccount "Calculations for VAT" Credit 19
- VAT paid to the auditor is accepted for deduction.
It is unlikely that the taxpayer will be able to prove the legality of including the living costs of nonresident participants in the city where the meeting is held in expenses for the purpose of calculating income tax, because the list of entertainment expenses given in the aforementioned paragraph 2 of Article 264 of the Tax Code of the Russian Federation is closed, and such costs it is not given.
The taxpayer has the right to independently determine to which group he should attribute costs, which with equal grounds can be attributed to different groups (clause 4 of article 252 of the Tax Code of the Russian Federation).
Vladimir Ulyanov, PBU expert
The role of the board of directors in organizing the annual meeting. Schedule of events. Functions of the corporate secretary when preparing and holding the annual meeting. Annual report of the company.
Annual general meeting of shareholders: preparation and holding
Maria Gracheva IFC project, executive editor of the quarterly review, Ph.D. econom. Sciences, Moscow
The Annual General Meeting of Shareholders is an important event in the life of the company. The meeting summarizes the results of the activities of the joint-stock company in the past year and makes key corporate decisions: the board of directors (supervisory board) and the audit commission (auditor) of the company are elected, the annual report and financial statements are approved, the amount of profit earmarked for the payment of dividends is determined, etc. ...
Federal law (hereinafter referred to as the JSC Law) gives the general meeting of shareholders a special status: it is the supreme governing body of the company. The JSC Law states that the annual meeting must be held in the form of joint presence of shareholders and cannot be held in the form of absentee voting. This underlines the important function of the AGM, which is that it is a forum for shareholders to discuss the main problems faced by the company, and also provides owners with the opportunity to communicate with managers and ask them questions. The law on joint-stock companies also determines the date of the meeting: no earlier than two months and no later than six months after the end of the financial year.
The board of directors and management of the company are actively involved in the preparation and holding of the general meeting, with the board of directors playing a key role. As a rule, in a large corporation a special group of employees is created to organize a meeting to coordinate the interaction between the shareholder relations department and other divisions of the company. Particular importance is attached to establishing close cooperation with the media, disseminating information about the results achieved by the society and about the decisions taken at the meeting.
In recent years, the attitude of domestic companies to the preparation and holding of annual meetings has begun to change noticeably. Gone are the days when there were obstacles to the participation of shareholders in meetings, the materials stipulated by the JSC Law were not provided, and the votes were counted incorrectly. Of course, not everything is perfect, but the improvement in corporate practice in this area was a positive signal for minority shareholders. The process of organizing an AGM involves many complex issues. In the article offered to the readers' attention, we will consider only those of them that, in our opinion, are the most important and relevant: the role of the board of directors, a detailed schedule of events, functions of the corporate secretary, drawing up the company's annual report.
Igor Aksenov IFC project, legal consultant, Moscow
The Board of Directors (BoD) plays a key role in the preparation and holding of the Annual General Meeting of Shareholders - this is stipulated by the Law on JSCs, and this is precisely what the practice of effective corporate governance requires. The board of directors must organize a large number of different events, and is obliged to do so in compliance with strict deadlines and in accordance with the requirements of the JSC Law. More detailed regulation of the procedures specified in the Law on Joint-Stock Companies is given in the Regulations of the Federal Commission for the Securities Market, approved by Resolution No. 17 / ps of May 31, 2002. It should be noted that the longest and most difficult process is the preparation of the annual general meeting in an open joint stock company with the number of owners of voting shares over 1000.
Let us analyze those preliminary measures that most often raise questions from both board members and shareholders.
First of all, the board of directors should consider the proposals of shareholders on the nomination of candidates to the board of directors, the executive body and the audit commission of the joint-stock company, as well as on the introduction of issues into the agenda of the general meeting. In accordance with Art. 53 of the JSC Law, such proposals can only be sent by shareholders owning (individually or collectively) at least 2% of voting shares. Proposals must be received by the joint-stock company no later than 30 days after the end of the financial year, that is, no later than January 30th. When determining the deadline for the submission of proposals, one should bear in mind the following important circumstances.
1. Since the JSC Law states that, sometimes it was interpreted in such a way that the date of the proposal was considered the date of its actual receipt by the company. In this regard, misunderstandings often arose. Now the procedure for sending proposals is clearly described in the FCSM Regulation No. 17 / ps: 1.
2. It should not be forgotten that the Law on Joint-Stock Companies allows shareholders to establish in the charter a later date for submitting proposals to a joint-stock company.
Further, according to the Law on Joint-Stock Companies, the board of directors must discuss the proposals received and make one or another decision (on the inclusion of issues in the agenda of the meeting and nominated candidates in the list of candidates or on the refusal to include them) no later than five days after the deadline for submitting proposals, i.e. e. not later than either February 4 or five days after the date of submission of proposals set out in the charter2. Of course, proposals can be considered by the board of directors both at one meeting (as a single package) and at different meetings (as they are received), but the final decisions must be made within the time limits established by the Law on JSCs.
However, when analyzing the proposals received, the question often arises: what criteria should the board of directors be guided by when making this or that decision? An exhaustive list of grounds for refusal is set out in paragraph 5 of Art. 53 of the Law on JSC and includes the following cases3:
the deadlines established by the Law on JSC have not been met (ie, the proposals were received by the company after January 30 or a later date established in the charter);
shareholders are not the owners of the number of voting shares of the company provided for by the JSC Law (ie, they own less than 2% of such shares);
the proposals do not meet the requirements provided for in paragraphs 3 and 4 of Art. 53 of the Law on JSC (i.e. the information that these proposals should contain is not provided). In accordance with paragraphs 3, 4 of Art. 53 of the Law on JSC, proposals must contain the following information about candidates:
names (titles) of shareholders who nominated candidates;
signatures of shareholders who have nominated candidates;
names of proposed candidates;
the names of the bodies to which they are nominated. Practice shows that the information about the candidate listed in the Law on JSCs may not be enough for an unambiguous conclusion about the ability of this person to successfully perform the functions of a member of the Board of Directors and for the shareholder to make an informed decision. But paragraph 4 of Art. 53 of the Law on Joint-Stock Companies makes it possible to correct this situation: it establishes that the proposal for nomination may contain additional information about the candidate provided for by the charter or internal documents of the company. Therefore, in the charter or internal documents, it is possible to expand the list of information that must be stated in the proposal.
At the same time, such an expansion must be approached with caution, as the board of directors may refuse to include a candidate on the voting list if it is found that the proposal does not comply with the charter or internal documents. Thus, by introducing any secondary requirements into the charter or internal documents (and, accordingly, making them mandatory for drawing up a proposal to nominate a candidate), shareholders will provide the board of directors with an excuse to reject this or that candidate on grounds that are not of fundamental importance.
It is sometimes argued that it is illegal to include in the charter or internal documents extended requirements that could lead to a refusal to include a candidate on the voting list. At the same time, they refer to paragraph 11 of the joint Resolution of the plenums of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation dated 04/02/1997, which indicates that the list of grounds for refusal is contained in paragraph 4 of Art. 53 of the Law on JSC and is exhaustive. In our opinion, this wording does not at all cancel the shareholder's right to include additional information about this person in the proposal to nominate a candidate. The lack of such information can be the reason for refusal to include a candidate on the voting list.
Recommendations as to what information about a candidate can be considered really important and additionally provided to shareholders are available in the Code of Corporate Conduct (hereinafter - the Code) 4. This document advises to provide shareholders with the following information about the candidate:
Age, education;
information on membership in the Board of Directors and / or on the nomination for election to members of the Board of Directors (or other elected bodies) of other societies;
a list of positions held by the candidate in the last five years (including an indication of the position held by him at the time of nomination);
information on whether the candidate is a participant, general director, member of a management body or an employee of a legal entity competing with the company (in clause 2.1.2, chapter 3 of the Code, it is recommended not to elect such a candidate to the board of directors in order to avoid a conflict of interest );
• information about the nature of his relationship with society;
information about his relations with affiliated persons and large contractors of the company;
other information related to the candidate's property status or capable of influencing the performance of the duties assigned to him;
written consent of the candidate for election, and if there is none, the candidate must personally attend the general meeting. Shareholders should be provided with information on the candidate's refusal to provide all or part of the above information5.
In addition, shareholders may include in the charter or internal documents other information on candidates that must be provided to shareholders, for example:
information about cases of administrative disqualification;
information on the presence of an outstanding criminal record. The Code also recommends indicating in the proposal for nomination whether the candidate meets the criteria for independence (these criteria are listed in paragraph 2.2.2 of Chapter 3). In our opinion, the board of directors is obliged, at least, to inform the shareholders that there are no candidates among the proposed candidates that meet the criteria of independence, and also what consequences for the company may arise in this case.
As you know, the Law on Joint-Stock Companies establishes that members of the audit commission cannot simultaneously be members of the board of directors of a company6. In this regard, the question arises: what to do in cases when members of the audit commission appear in proposals for nominating candidates to the Board of Directors? In such proposals, in fact, the future composition of the Board of Directors and the Audit Commission is formed. At the same time, the shareholders nominating candidates do not know which of the members of the current audit commission will remain in it next year. Therefore, the membership of a candidate in the Board of Directors in the current revision commission cannot serve as a basis for refusing to include him in the list of candidates. At the same time, the board of directors must promptly explain to shareholders the relevant requirements of the JSC Law, as well as the possible consequences of electing a candidate to the board of directors and the audit commission simultaneously.
Undoubtedly, the board of directors is the main actor in organizing the annual general meeting of shareholders, however, the procedure for preparing and holding the meeting includes a number of steps that must be performed by various participants in corporate relations, and in compliance with specific deadlines. In a summary form, the activities carried out in preparation for the meeting are presented in the table.
Schedule of events
Davit Karapetyan IFC Project, Deputy Head, Cand. jurid. Sciences, Moscow
After the society and its bodies have completed all the steps to prepare for the annual general meeting, this meeting should be held. It should be noted that the procedure for holding an annual meeting is not regulated by the JSC Law as strictly as the preparation procedure. Some of the measures presented in the figure arise from the requirements of regulatory legal acts, others are dictated by good corporate governance practice, and still others depend on the internal structure of the joint stock company. Depending on when the shareholders are informed about the voting results and the decisions made at the meeting, the procedure for holding the annual general meeting has two options, the differentiation of which starts from the 11th step.
To exclude the possibility of shareholders filing lawsuits to invalidate the decisions of the annual general meeting of shareholders, all the procedures described above should be carried out clearly and in full compliance with the requirements of regulatory legal acts. From this point of view, it is advisable to introduce the position of a corporate secretary (or other employee) in the company, performing, among other things, the duties of creating the necessary conditions for a legally impeccable organization of the annual general meeting.
Functions of the corporate secretary in the preparation and conduct of the annual meeting
Polina Kalnitskaya IFC project, legal consultant, Moscow
According to the Code of Corporate Conduct, the corporate secretary is a special officer whose sole task is to ensure that the company complies with procedural requirements that guarantee the exercise of shareholder rights. In ch. 5 of the Code lists the main responsibilities of this official related to the preparation and holding of the general meeting:
preparation of a list of persons entitled to participate in the general meeting of shareholders. If this list is compiled by an independent registrar, the secretary must be authorized by a written order of the general director or an internal document of the company to instruct the registrar to draw up such a list;
proper notification of the general meeting of all persons entitled to participate in the meeting, preparation and sending them voting ballots. The secretary also notifies all members of the board of directors, the general director (managing organization, manager), members of the board, members of the audit commission (auditor) and the auditor of the company about the upcoming event;
formation of materials to be provided during the general meeting of shareholders. The secretary also provides access to these materials, certifies and provides copies of relevant documents at the request of persons entitled to participate in the general meeting of shareholders;
collection of the completed voting ballots received by the company and their timely transfer to the registrar of the company performing the functions of the counting commission, if in accordance with the requirements of the legislation the functions of the counting commission are assigned to a specialized registrar;
ensuring compliance with the procedures for registering participants in the general meeting of shareholders, organizing the keeping of minutes of the general meeting and drawing up a protocol on the results of voting at the general meeting, as well as timely communication of the report on the results of voting to those included in the list of persons entitled to participate in the general meeting at the general meeting of shareholders;
the wording of answers to the questions of the general meeting participants that relate to the procedure applied at such meetings, and taking measures to resolve conflicts related to the procedure for preparing and holding the general meeting of shareholders. Among the materials provided for the annual general meeting, the company's annual report occupies an important place. It is he who, in a concentrated form, reflects the achievements of the joint-stock company, the prospects for its development and adherence to the principles of proper corporate governance.
Company annual report
Galina Efremova IFC project, financial consultant, Moscow
Alexander Eliseev IFC project, financial analyst, St. Petersburg
As indicated in paragraph 11 of Art. 48 of the JSC Law, approval of the annual report falls within the competence of the annual general meeting. It should be borne in mind that no later than 30 days before the date of the annual general meeting, this document is preliminarily approved by the board of directors of the company, and in the absence of a board of directors in the company - by the person performing the functions of the sole executive body. The reliability of the data contained in the annual report must be confirmed by the audit commission (auditor). Before the publication of the annual report, the company is obliged to involve an auditor who is not related to the property interests of the company or its shareholders for the annual audit and confirmation of the financial statements.
The annual report is the main document that represents the company during. It usually consists of ten sections (chapters).
1. Address of the Chairman of the Board of Directors to shareholders. It is very important to find the right general tone for this chapter: perhaps the chairman of the board of directors should apologize for any shortcomings in the company's activities or admit that not all of the previously set goals have been achieved.
2. Information about the volume of sales and characteristics of the marketing strategy. This section of the annual report should provide a clear understanding of what and how the company is selling, as well as where and to whom. In other words, here all interested parties will be able to find out what goods or services the company uses, who is the main consumer of its products, in which regions it operates.
3. Dynamics of key financial indicators in recent years. In this chapter, the most interesting is the information about the growth of profits and operating income.
4. Analysis of the market situation and the financial results achieved by the company. It is necessary to describe the main trends observed in the country's economy and industry over the past two years, presenting them in the report with maximum clarity and impartiality.
5. Conclusion of the external auditor. The name of the auditor company and the period for which the audit was carried out should be indicated, as well as the wording of the issued opinion.
6. Financial reporting. Analyzing this section, users of the report will pay attention to a number of important relationships between various items (primarily on the share of profit in revenue) and between the component parts of individual items (for example, on the share of research and development costs in the cost of production). An important part of this chapter is annexes and explanations to financial statements.
7. List of subsidiaries, branches and representative offices. It is necessary to give a clear idea of \u200b\u200ball firms and enterprises that are in one way or another connected with society (for example, indicate offshore companies).
8. List of directors and top managers. It is very useful to inform users of the report what changes have occurred over the past period in the composition of the board of directors and management.
9. Dynamics of quotations of the company's shares in recent years. It should describe the main trends observed in the stock market, as well as show the dynamics of dividends paid by the company.
10. The state of the corporate governance system. In accordance with the Regulation of the Federal Commission for the Securities Market No. 17 / ps, certain requirements are imposed on the annual report of the joint stock company in terms of disclosing information on compliance with the Code of Corporate Conduct and proper principles of corporate governance.
Depending on the goals pursued by the company, the emphasis in the annual report can be set in different ways: remove some sections, fill others with as much information as possible, add new ones.
The basis of the annual report is financial information, which discloses data characterizing the results of the company's activities for the reporting and previous periods, as well as the financial condition of the company as of the date of preparation of the document and plans for its development in the short and long term.
Rationalism and art are combined in the preparation of the annual report. The following trends in this area that have emerged recently can be noted:
firms try to show their employees, i.e. focus on personality;
graphics and illustrations are stylized as;
Companies strive to tell about themselves with humor. The growing complexity and volume of annual reports leads to the formation between individual shareholders and the company, as the analysis of the financial situation of firms becomes the exclusive prerogative of investment banks, rating agencies and the financial press. It got to the point that some Western firms began to issue two reports: one for individual shareholders, the other for professional investors and analysts.
Currently, the main weakness of the annual reports published by domestic companies is the lack of scenarios for future development. Joint stock companies should strive to convince all users of financial statements of the reality of their business prospects. Boards of directors are known to play the main role in developing such scenarios. It is in this area that they must demonstrate their strategic potential and make a worthy contribution to increasing the investment attractiveness of the corporations they manage.
* * *
Russian joint stock companies have already passed the initial, most difficult stage of the path and, in general, comply with the requirements of regulatory legal acts for the procedure for preparing and conducting an annual general meeting. However, they still have a lot to do to implement the main principle of organizing the GMS: the meeting should be held in such a way as to facilitate effective participation of shareholders in the work of this governing body of the company.
From this point of view, modern information technologies are of great importance. The experience of developed countries shows that in 2003 83 out of 100 leading European corporations organized webcasts of various corporate events, including 27 companies using this method during their annual OCA7. Many Western firms send GMS notices by email, provide online voting to shareholders, and post interactive annual reports on their Web sites. These electronic documents allow users to translate financial statements into Excel spreadsheets, as well as navigate between different sections of the reports and to other pages of corporate Web sites using hypertext links. Corporations, in turn, create databases about users and the configuration of their preferences when working with reports (that is, about which sections of documents are of most interest to them). All of this is a very effective means of improving mutual understanding between shareholders, managers, directors and other stakeholders.
Bibliography
For the preparation of this work were used materials from the site lib.sportedu.ru http://cfin.ru/
Photo by Evgeny Smirnov, IA "Clerk.Ru"
If the company is registered as a limited liability company (LLC), then at least once a year within the terms established by the charter, and not earlier than February 1 and not later than April 30, it is necessary to hold an annual meeting to approve the annual financial statements and consider other issues included on the agenda.
If the company is a joint stock company (JSC), then no earlier than February 1 and no later than 6 months after the end of the reporting year, an annual meeting should be held and the annual financial statements should be approved.
Leaders of many organizations make the mistake that it is their right and not their duty to hold an annual meeting. This especially applies to LLCs and JSCs with a single or a small number of shareholders. There is an opinion that "young" or companies that have not achieved high financial results can also "get around" this rule, since they were created recently, there is no need to distribute profits, and accordingly there is no need to hold an annual meeting. This position is a delusion that can lead to negative consequences, and some of them can be fatal for the company.
According to the norms of the current legislation, the following documents and issues must be approved at the annual meeting (see table).
Documents and issues to be approved at the annual meeting |
|
Joint Stock Company (JSC) | Limited Liability Company (LLC) |
Auditor (since 2014, an audit is mandatory for JSC) Other issues in accordance with the charter (distribution of profits, composition of the board of directors, executive body, audit commission, etc.) | Financial statements for the year Executive body's annual report Other issues according to the charter (distribution of profits, executive body, audit commission, auditor, etc.) |
Decisions made at the annual meeting are formalized by the minutes (decision) of the general meeting of shareholders or participants. It is this document that is proof that the shareholders (founders) approved the annual financial statements and were aware of its content.
Often, the CEO of a company makes management decisions at his own discretion, not considering it necessary to inquire about the opinion of the founders, and when asked to substantiate his decisions, he can acquire the status of an unscrupulous manager. In order to avoid negative consequences, society must systematize its work, for which, first of all, it is necessary to develop an individual corporate calendar according to its constituent documents, without resorting to excuses "this is not necessary", "it is too early for our company", etc. The company's activities in a competent legal field should start from the moment of making a decision on its creation, which will positively affect the work of the company for the following main reasons:
- when creating a company, the founders initially imply its development by using various resources, attracting both their own and borrowed funds, as well as investors' funds. The investor's understanding that the company applies a systematic approach to documents and corporate procedures (and this indicates a competent vision of the business), as well as the transparency of the company's activities for owners or third parties can be decisive factors for investing in this organization;
- the given corporate procedures are based on the provisions of the current legislation for JSCs and LLCs, and failure to comply with the relevant requirements is a direct violation of them (it is also worth remembering that the company and its officials may be fined for violating the requirements of the legislation for the preparation and holding of the annual meeting);
- when conducting an audit of a company or Due Diligence (from the English "due diligence", that is, the procedure for drawing up an objective view of the investment object), all the documents necessary for the preparation and conduct of the annual meeting, as well as documents that reflect the decision-making on this meeting are subject to mandatory presentation. The absence of these documents indicates that the established procedures were not implemented, and this is a violation of the order of the company and the law. It should be noted that the restoration of documents with current dates (or registration "retroactively") is impossible, since the mandatory procedures for preparing and holding the annual meeting will not be followed (mandatory advance notice of convocation, registration of results and disclosure of this information, if the company has such duty). All documents and decisions drawn up in this way will be illegitimate.
Note!The violation of the right to drive is expressed in the very fact of not holding an annual meeting. According to Art. 15.23.1 of the Code of Administrative Offenses of the Russian Federation unlawful refusal to convene or evasion of convening a general meeting of shareholders, as well as unlawful refusal or evasion of inclusion in the agenda of the general meeting of shareholders of issues and (or) proposals for nominating candidates to the board of directors (supervisory board), collegial executive the body, the audit commission (auditors) and the counting commission of a joint-stock company or a candidate for the position of the sole executive body of a joint-stock company shall entail the imposition of an administrative fine on citizens in the amount of 2 thousand to 4 thousand rubles, on officials - from 20 thousand to 30 thousand roubles. or disqualification for up to one year, for legal entities - from 500 thousand to 700 thousand rubles.
Thus, when answering the question whether it is necessary to hold an annual meeting, there is only one correct answer, since all the procedures associated with its preparation and holding cannot be commensurate with the negative consequences that are possible in the event of its not being held.
Changing the procedure for holding the annual meeting of JSC
Since 2016, the procedure for holding the annual meeting of shareholders has undergone some changes, mainly this directly affected the procedure for holding the meeting. The following has changed:- for holding a meeting of shareholders (extraordinary) on the issue of electing members of the board of directors on the initiative of the board itself, the term of the meeting is reduced by 20 days and is 70 days from the date of the decision to convene such a meeting, however, the charter may provide for a shorter period for holding such a meeting (if the articles of association are not brought in line with the current provisions of the law and the articles of association set a period exceeding 70 days, the provisions of the articles of association should be applied);
- the list of information to be determined by the board of directors in preparation for the meeting was supplemented with the following: if there is an item on the agenda of electing members of the board of directors, the exact date of closing the admission of candidates nominated to the board of directors must be indicated; wording of decisions on all agenda items sent by shareholders to the AO in case of voting by ballots.
At the same time, the joint-stock company is released from the obligation to provide all interested parties with extracts from the compiled list of potential shareholders - participants of the meeting and certificates of shareholders absent from this list. This obligation under the securities market law belongs exclusively to the registrar.
We remind you!On the basis of Federal Law No. 142-FZ dated 2.07.13, all joint-stock companies that independently maintain the register of shareholders are obliged to transfer the maintenance of the register to a person who has a license provided by law, that is, a professional participant in the securities market that carries out activities in maintaining the register (registrar). The deadline for the fulfillment of this requirement expired on October 1, 2014.
With respect to some issues on the agenda of the general meeting (re-election of members of the board of directors, appointment / dismissal of the executive body of a JSC), the period provided for notifying shareholders of the meeting has been reduced to 50 calendar days.
One of the positive results of the adopted amendments is the approval of legal norms that significantly increase the information content of the message about holding meetings. Added information about categories (types) of shares, whose owners will be able to vote on all agenda items or part of them. In addition, in cases determined by the charter, the message must indicate the address of the JSC's official website, where a shareholder can “leave” his vote on agenda items, including an email address for the purpose of sending voting ballots by voting shareholders.
Now all joint-stock companies can provide in the charter two possible ways of notifying shareholders about the holding of a general meeting:
- the company may send a message about the meeting to the personal email address of shareholders;
- the company may send a short text message to the personal e-mail address or personal phone number of shareholders, indicating information about where the shareholder can get acquainted with the full content of the message about the meeting.
After the amendments are made to the law, joint stock companies are obliged to keep information on the method of notification of shareholders about the meeting held within 5 years from the date of the general meeting. In other words, the CEO must ensure that notifications sent to shareholders are kept.
In accordance with one of the amendments, joint-stock companies are allowed to hold an in-person meeting, which implies the joint presence of shareholders, remotely using information and telecommunication technologies. For example, such a tool can be a video call, the use of which will enable a shareholder to be present at a meeting without being physically present at it and to vote on agenda items.
At the same time, as a result of amendments to the law, the obligation to vote at a meeting in presentia using ballots was established in all public and non-public JSCs with more than 50 shareholders holding voting shares.
It is important that the legislative concretization of the designation of the shareholder's presence at the in-person meeting took place. So, a shareholder is considered to be present at the meeting if:
- if a shareholder has registered (in person or on a website on the Internet) to participate in the meeting;
- if two days before the meeting, a shareholder handed over the completed voting ballot to the company or filled out an electronic ballot form on the website indicated by the company for voting.
First, to bring the charter and name of the company in line with the Civil Code of the Russian Federation.
Despite the fact that the amendments made to the Civil Code of the Russian Federation, according to which joint-stock companies were divided into public and non-public ones, entered into force in 2014, not all JSCs brought their names and the content of their charters in line with the new rules. However, it is necessary to make a reservation that the timeframes for such actions are not specified in the legislation (clause 7 of article 3 of Federal Law No. 99-FZ dated 05.05.14), and the need to perform them is dictated rather by the expediency or individual needs of society on changing the charter, which in this case must be accompanied by a complete alignment of the charter with the Civil Code of the Russian Federation. Those companies that plan to include in the agenda of the general meeting of shareholders the issue of approving a new version of the charter (or amendments to it), it is necessary to take into account the specifics of voting on this issue and the form of JSC.
Secondly, the agenda for the AGM should include the issue of auditor approval. This need is dictated by the requirements of Art. 67.1 of the Civil Code of the Russian Federation, according to which the financial statements of any joint-stock company, regardless of its status, must be confirmed by an auditor. At the same time, it is appropriate to pay attention to the issue of the timing of the preparation of the audit report. General rules on the timing of the annual audit are contained in the specified Art. 67.1 of the Civil Code of the Russian Federation, Art. 5 of the Federal Law of 30.12.08, No. 307-FZ "On Auditing" and in Art. 18 of the Federal Law of 6.12.11, No. 402-FZ "On Accounting", the first of which obliges any JSC to conduct a statutory audit annually, and the second - to submit a copy of the audit report to the statistical authorities within the time specified in this rule, but not later December 31 of the following financial year. However, for JSCs that are subject to the obligation to disclose information, including the disclosure of annual financial statements (the proposal is not completed by the author).
Thirdly, it is necessary to make a decision to increase the authorized capital. In accordance with the provisions of Art. 26 of the Federal Law of 26.12.95, No. 208-FZ "On Joint Stock Companies" (hereinafter - Law No. 208-FZ) regarding the size of the authorized capital of a joint stock company (effective from 1 July 2015), the authorized capital of a public JSC must be at least 100,000 rubles, non-public JSC - at least 10,000 rubles.
Now about what is also advisable to do in preparation for the annual meetings of shareholders at the end of the year:
- amend the company's charter with respect to the method of notifying shareholders of the upcoming meeting - the method used must be specified in the charter. We would also like to draw your attention to the fact that the current provisions of the law allow the company to use, as a method of notification of a meeting, sending a paper message by mail other than registered mail. The provisions of the charter of companies providing for just such a method of notification of a meeting will become null and void, and such companies will be forced to follow the general rules of notification (registered letter or handing over against signature);
- amend the company's charter on the method of sending voting ballots to shareholders. In the current version of the law, in addition to the previously established methods of sending the newsletter, the method of sending it in the form of an electronic message to the e-mail address of the relevant person indicated in the register of shareholders of the company has been added. However, the use of this method is possible only after making the appropriate changes to the company's charter;
- it is possible to amend the charter of the company, allowing the use of remote methods of participation in the meeting. The following are named in the law as such: registration of a shareholder for participation in a meeting on the Internet site; sending the completed voting ballot to the public by e-mail or filling out a ballot form on the Internet site.
Dividend FAQ *
Dividends are the company's net profit received as a result of its activities, the right to receive which is available only to shareholders and members of the company. In practice, there are many disputes related to the procedure for making a decision on the payment of dividends and their receipt, from the content of which it is possible to draw the following main conclusions:- making a decision on the payment of dividends is a right, not an obligation of the company;
- the shareholder's right to demand payment of dividends arises only if the general meeting of shareholders makes a decision to pay them;
- the general meeting of shareholders is not entitled to make a decision to cancel an earlier decision on the payment of dividends;
- the decision of the general meeting that does not contain a direct indication of the payment of dividends, their amount, the term and procedure for payment, does not serve as a basis for the emergence of the shareholders or participants of the right to demand payment of dividends;
- the company's lack of net profit, as well as the approved annual report and annual financial statements, which reflect the company's losses, is not a reason for non-payment of the declared dividends;
- the difficult financial situation of the company is not a reason for non-payment of previously announced dividends;
- the right of shareholders to demand payment of dividends to them after the improvement of the financial condition of the company arises in cases where dividends were declared in accordance with the requirements of the law;
- a shareholder is not entitled to demand that the issue of the amount of dividends paid be included in the agenda of the general meeting of shareholders;
- violation of the deadline for the payment of the declared dividends and (or) their payment not in full are the basis for collecting interest from the company for the use of other people's funds for the period of delay;
- non-payment of the declared dividends and (or) their payment not in full within a reasonable time after the elimination of the circumstances preventing such payment, serve as the basis for collecting interest from the company for the use of other people's funds;
- the company is released from liability for late payment of declared dividends if the shareholder has not updated his data in the shareholder register;
- the company is released from liability for late payment of declared dividends if it did not have information about the bank details of the shareholder;
- a joint-stock company has the right to decide on non-payment of dividends even if there is a net profit;
- if the board of directors (supervisory board) of the company did not recommend the payment of dividends, the general meeting of shareholders is not entitled to make a decision on their payment;
- the sale by a shareholder of his shares after the company makes a decision to pay dividends does not release the company from the obligation to pay them to such shareholder.
- full payment of the authorized capital;
- full payment to the outgoing participant of his share;
- excess of the amount of net assets over the amount of the authorized capital and reserve fund, including after the payment of dividends;
- no signs of bankruptcy, including after dividend payments.
Each shareholder has the right to receive dividends from the net profit of the organization. It occurs when all of the following conditions are met:
- at the end of the reporting period, the company received a net profit;
- the board of directors or supervisory board of the company made a decision containing recommendations on the amount of dividends;
- a general meeting of shareholders was held with a total number of voting shares - more than half;
- the agenda of the general meeting of shareholders included the issue of payment of dividends;
- earlier there was an announcement about the payment of dividends;
- the quorum of the general meeting of shareholders voted for the payment of dividends;
- compliance with the condition that the amount of dividends will not exceed the one recommended by the board of directors or the supervisory board of the company;
- the decisions adopted by the general meeting of shareholders were announced;
- the dividend payment deadline has come;
- the shareholder is in the register of persons entitled to receive dividends.
Note! Personal income tax:
from individuals - citizens of the Russian Federation is 13% (clause 1 of article 224 of the Tax Code of the Russian Federation), for foreign citizens - 15% (clause 3 of article 224 of the Tax Code of the Russian Federation); income tax for legal entities of the Russian Federation - 13% (clauses 2, clause 3, article 284 of the Tax Code of the Russian Federation), for foreign legal entities - 15% (clauses 3, clause 3, article 284 of the Tax Code of the Russian Federation).
If dividends are issued to a legal entity that owns more than 50% of the authorized capital for at least a year, then in such cases the 0% rate can be applied (clause 1, clause 3 of Article 284 of the Tax Code of the Russian Federation).
From practice ...
Is it possible for tax purposes to consider payments to participants from the profit of an LLC as dividends?Yes, you can. According to paragraph 1 of Art. 43 of the Tax Code of the Russian Federation for tax purposes, dividends are any income received from an organization in the distribution of its net profit, by shares or contributions of participants in proportion to their shares. This rule is true for organizations of any form, although formally in civil law, the term “dividends” is used only in relation to payments to shareholders. Limited liability companies distribute the net profit among their members. The foregoing follows from clause 2 of Art. 42 of Law No. 208-FZ, paragraph 1 of Art. 28 of the Federal Law of 8.02.98, No. 14-FZ (hereinafter referred to as Law No. 14-FZ), but for the purposes of tax accounting, such a discrepancy in terms is irrelevant.
Is it possible to pay dividends with property?
Yes, you can. Civil law allows you to pay dividends in kind, that is, not only in money, but also in other property. For JSCs, this is provided for in paragraph 2 of clause 1 of Art. 42 of Law No. 208-FZ. In relation to LLC, there is no such norm in the legislation, but there is also no prohibition on the distribution of net profit in non-cash form. In Art. 28 of Law No. 14-FZ, the method of payment is not specified, therefore it is understood that the participants of the LLC can receive not only money, but also other property.
Consequently, dividends can be paid out by fixed assets, materials, and goods. The main condition is that this procedure is provided for by the charter of the organization.
Only a payment from retained earnings remaining after taxation can be recognized as dividends. The return of the contribution of a participant, shareholder to the authorized (pooled) capital, as well as the distribution of other property, is not considered dividends. However, in this case, it is necessary to pay corporate income tax.
Is it possible to pay dividends from the profits of previous years?
Yes, you can. Both in civil and tax legislation, it is only established that the source of payment of dividends is the organization's net profit. There are no indications of the exact period in which such a profit should be formed (Article 43 of the Tax Code of the Russian Federation, paragraph 2 of Article 42 of Law No. 208-FZ, paragraph 1 of Article 28 of Law No. 14-FZ).
Consequently, if according to the results of previous years the profit has not been distributed, then at its expense it is possible to pay dividends in the current year. This can happen, for example, if the net profit was not used to pay dividends or form special funds.
The legality of such a conclusion was confirmed in, dated 6.04.10, No. 03-03-06 / 1/235. Similar conclusions are contained in the resolutions of the FAS of the North Caucasian District of 23.01.07, No. F08-7128 / 2006, of 22.03.06, No. F08-1043 / 2006-457A, FAS of the East Siberian District of 11.08.05. No. А33-26614 / 04-С3-Ф02-3800 / 05-С1, FAS of the Volga District of 10.05.05, No. А55-9560 / 2004-43.
In addition, dividends can be paid out of the profit of previous years, if in the reporting year the organization had no net profit (letter of the Federal Tax Service of Russia No. ED-4-3 / 16389 dated 5.10.11).
By delaying the issuance of dividends, the organization is thereby committing an administrative offense, for which JSCs can be fined in the amount of 500 thousand to 700 thousand rubles.
A fine is also provided for officials of a joint-stock company who are late in payment - from 20 thousand to 30 thousand rubles.
If the payment is delayed due to the mistakes of specific people, they can also be punished, and for them the amount of the fine will be from 2,000 to 3,000 rubles.
The above norms are provided for by Art. 15.20 of the Administrative Code of the Russian Federation.
If, within the specified period, the participant, the shareholder has not demanded to pay him dividends, then he loses the right to receive them completely. An exception is a situation when a shareholder or participant did not claim his rights under the influence of violence or threat. If this was the case, and he was able to confirm this, then the period of reclamation can be restored, that is, extended for another three years.
Dividends declared (distributed) but not claimed by shareholders, participants are again included in the retained earnings of the company (clause 9 of article 42 of Law No. 208-FZ, paragraph 4 of article 28 of Law No. 14-FZ). The distribution of such dividends is possible in a difficult financial period.
Changes and features of reporting on wages in 2019. New in the calculation and taxation of wages and benefits.
In what sequence should an extraordinary meeting of shareholders take place, taking into account changes in legislation?
Suppose a board of directors is appointed for November 1, with an appeal to hold an extraordinary meeting of shareholders on the issue of joining the union of builders. Next, within 3 days, should we send a request to the registrar with the attached minutes of the board of directors? Then the registrar sends us a list of shareholders entitled to participate in the meeting. Then, within 20 days from the receipt of the list, should we hold a board of directors? From what date should this period be counted?
It was much easier while we were the registries. Members of the board of directors - who is where, it is not possible to collect all the signatures from them. What about the signatures, given that council members are located in different cities? What about the notary?
Procedure for holding an extraordinary meeting of shareholders
The procedure for convening a general meeting of shareholders is as follows:
1. The Board of Directors makes a decision to convene an extraordinary general meeting of shareholders;
2. A list of persons entitled to participate in the general meeting of shareholders is formed.
The date of compiling the list of persons entitled to participate in the general meeting of shareholders cannot be set earlier than 10 days from the date of the decision to hold the general meeting of shareholders and more than 50 days before the date of the general meeting of shareholders.
3. Not later than 20 days in advance (as a general rule), a notice of the general meeting of shareholders shall be made.
Within the specified time frame, the notice of the general meeting of shareholders must be sent to each person specified in the list of persons entitled to participate by registered mail, unless the company's charter provides for another way of sending this message in writing, or delivered to each specified person against signature, or, if it is stipulated by the charter of the company, it is published in a print publication specified in the charter of the company and (or) posted on the company's website on the Internet specified by the charter of the company;
Thus, the law does not provide that you must hold a meeting within 20 days from the date of the decision to hold it. It is important that it be held no earlier than 20 days after you make a message about its holding. In addition, the above requirements for the timing of the formation of the list of shareholders must be met.
On the issue of obtaining signatures from members of the Board of Directors, the following should be noted:
The joint stock legislation proceeds from the assumption that a meeting of the Board of Directors of the company presupposes the joint presence of its members to discuss issues on the agenda. At the same time, the Charter or other internal act may provide for the possibility of absentee voting on agenda items (Article 68 of the Federal Law "On Joint Stock Companies"), therefore we advise you to consider the possibility of changing the Charter (or adopting an internal act) in order to to avoid such problems in the future.
At this stage, we note that the minutes of the meeting of the Board of Directors must contain only the signature of the Chairman of the meeting, the signatures of other members may be absent (Article 68 of the Federal Law "On Joint Stock Companies").
On the issue of the need to confirm the adoption of a decision by the meeting of shareholders and the composition of the meeting participants who were present at its adoption, we note that for public joint-stock companies it is carried out only by the Registrar, for non-public companies - by the Registrar performing the functions of the counting commission, or by a notary at the choice of the Company itself, recorded in its charter or in the minutes of the general meeting of shareholders.