New organizational and legal forms: which one to choose. Organizational and legal status of a business: what are the forms of entrepreneurial activity

Significant changes came into force on September 1, 2014 Civil Code, which significantly influenced. This is how the classification of organizational and legal forms and their names changed, for example: OJSC became PJSC, and CJSC simply JSC; Some forms were generally abolished, such as a company with additional liability and other amendments. In connection with these innovations, the question arises of what organizational and legal form to choose in accordance with the new provisions of the Civil Code of the Russian Federation.

It is worth noting that now everything legal entities are divided into corporate and unitary organizations, and business companies, in turn, into public and non-public. In addition, the list non-profit organizations has become closed, a total of 11 such forms are indicated, but first things first.

Changed list of commercial organizations

The organizational and legal forms of enterprises have undergone significant changes, on the basis of which it is possible to create commercial organization. Two things need to be noted right away important points things to consider when deciding to create a new company:

the creation of any additional liability companies (ALS) is no longer allowed (Clause 4, Article 66 of the Civil Code of the Russian Federation);
closed and open business companies were replaced by two other types: public (PJSC) and non-public (JSC and LLC).

According to the new provisions of the Civil Code of the Russian Federation, it can be said that the organizational and legal form of LLC has not undergone major changes, but JSCs should be called differently. Now a new legal entity. a person cannot be an OJSC or CJSC, but only a PJSC (public) or JSC (non-public), respectively. At the same time, existing closed and open joint-stock companies do not need to be re-registered, and they can change their names if other changes are made to the Unified State Register of Legal Entities.

Legal entities: unitary and corporate

Since September 1, 2014, such concepts have been introduced to classify organizations as unitary and corporate enterprises. What type of company the company belongs to can be understood by the following criteria: whether the founders are participants (members) of the company and whether they can form the supreme body (clause 1 of Article 65.1 of the Civil Code of the Russian Federation). Therefore, if:

founders can be participants (members), take part in meetings, form a supreme body, etc. - the organization is corporate (LLC, JSC, etc.);
founders cannot be participants and do not take part - the organization is unitary (SUE, MUP, etc.).

Corporate companies thus refer to corporations, which are all business entities, for example. Unitary, on the other hand, are mostly state-owned. enterprises in which the founder is the state or a municipal body, which is reflected in the name.

Business companies: non-public and public

As we have already noted, amendments to the Civil Code of the Russian Federation divided business companies, which include LLCs and JSCs, into public and non-public. Thus, all LLCs became non-public. At the same time, such companies do not need to change anything either in the name, or in the charter, or in other documents. Also classified as non-public are those joint stock companies whose shares do not participate in open trading, that is, former closed joint stock companies. Now they should be called simply .

The same companies whose shares and other securities are in open access on the market, refer to . At the same time, automatically all JSCs that meet the criteria of publicity (this applies to former JSCs) became PJSCs.

Since joint stock companies are now divided into other types, it would be logical to change their names, open joint-stock company, to public joint-stock company, etc. However, the law does not require mandatory bringing of the charter into compliance with the law. And this can be done, as we have already noted, together with other changes to the Unified State Register of Legal Entities.

By the way, the merger of LLCs and former closed joint-stock companies into one type of non-public companies is not accidental; experts have long noted their forced similarity. Since the shares of the CJSC were not traded on the market, but were distributed among shareholders only according to other criteria. Now, by the way, in the Civil Code of the Russian Federation, participants in a non-public joint-stock company do not have a preemptive right to purchase shares.

Participants of PJSC and JSC: rights and obligations

The new provisions of the code provide for increased requirements specifically for public companies. As for non-public ones, on the contrary, they have more freedom in corporate relationships. Let's take a closer look at what the specific rights and obligations for PJSC are in the updated code (Article 97 of the Civil Code of the Russian Federation):

the name must indicate that the JSC is public;
mandatory creation of a collegial governing body (number of members - at least 5);
the register of shareholders must be maintained by a special registrar organization that has the appropriate license;
the maximum number of shares owned, as well as the maximum number of votes that can be granted to him, cannot be specified for shareholders;
the charter cannot stipulate the need to obtain someone’s consent to alienate shares;
No one can have a preemptive right to purchase shares, except for the situations described in clause 5 of Art. 97 Civil Code of the Russian Federation;
all PJSCs must regularly disclose information about themselves on the securities market;
the scope of rights of PJSC participants is determined by the shares they own in the authorized capital;
PJSC management can only be carried out within the framework existing legislation and clauses that contradict it cannot be spelled out in the charter, for example, to expand the powers of the meeting of shareholders, which by law are not inherent in them, etc.

Let's now compare the rights and obligations of non-public joint-stock companies:

in the name of non-public joint stock companies it is necessary to leave only the phrase “joint stock company”;
the register of shareholders must be maintained by a special registrar organization that has the appropriate license;
Every year it is necessary to conduct an audit (by an independent auditor) of the company’s financial statements, the initiator of which can be a shareholder with a share (total) in the authorized capital of 10% or more;
the rights of JSC participants may be distributed disproportionately to their shares in the authorized capital, that is, the ratios may be different;
it is possible to make changes to the management procedure of a joint-stock company if there is unanimous consent of the participants;

What provisions can be included in the charter of a non-public joint-stock company?

Non-public JSCs, unlike PJSCs, have the opportunity to include provisions in the charter (by unanimous decision of the participants) that differ from those approved Russian legislation, this concerns the management of society. So, in particular, you can:

1. Grant the collegial management body (supervisory board) or executive body (board) the right to consider issues that are prescribed by law for general meeting shareholders (OSA), for example. This can be done in addition to decisions on the following issues:

amending the existing charter or adopting it new edition;
approval of the number and composition of the company’s management bodies, if their formation is within the competence of the General Assembly;
election of members of management bodies and early termination of powers;
clarification or determination of the number, par value and category of shares and the rights granted by them;
disproportionate increase authorized capital, occurring due to a change in the shares of its participants or the admission of other persons to the composition of participants;
approval of internal regulations and other non-constituent documents.

2. The supervisory board of a joint-stock company can partially or completely assign the functions of the board, which may preclude the creation of this body in the company.

3. Behind the sole executive body of the JSC ( general director) the functions of the board can be assigned (transferred).

4. The company, represented by its participants, may refuse to create an audit commission or prescribe situations when this still needs to be done.

5. The JSC can itself prescribe the procedure for convening, preparing and holding the General Meeting, as well as making decisions. The main thing is that these provisions do not contradict the law: they do not make it difficult for participants to attend, obtain information, etc.

6. Rules regarding the conduct, number of participants, etc. can be established regarding the supervisory board and management.

7. Allowed to prescribe preemptive right acquisition of a share in the authorized capital of an LLC or shares in a JSC, and you can also establish a maximum share of participation in the authorized capital of an LLC.

8. The general meeting of shareholders may include those issues that it is not required to consider by law.

In addition, provisions that differ from the general established procedure for of this document, if their inclusion is expressly permitted by existing law. This is how you can write it:

exclusion requirement in judicial procedure member of the company (with payment to him of the full actual value of the share due to him), if his actions have caused harm to the company or impede its work.
restrictions regarding the maximum number of shares, votes, etc. for one shareholder.

Which organizational form to choose in connection with changes to the Civil Code of the Russian Federation

The most significant question for companies, and especially joint-stock companies, was the choice: whether to maintain the same form or choose another one. For example, instead of a closed joint-stock company, become an LLC, etc. Initially, there was even an opinion that it was necessary to transform the closed joint-stock company into an LLC. However, as it turned out later, all this is not necessary. And it is possible to bring the charter into compliance with the amendments to the Civil Code by making changes to standard procedure. And this can be done together with the introduction of other amendments to the Unified State Register of Legal Entities.

So, in particular, an OJSC can retain its form of a joint stock company and its open status, which has been transformed into a public one. Therefore, all JSCs that meet the definition of publicity, that is, their shares are traded on the market, automatically become PJSCs. And also those JSCs whose names indicate publicity. However, if the shares are no longer publicly available and there is no indication of publicity in the name, such a company can no longer be considered a public joint-stock company.

As for former closed joint-stock companies, they can also retain their previous form without making major changes, but only by removing the word “closed” from the name. If their shares are in the public domain or they add the word “public” to their name, then they can become a PJSC, that is, change their type.

If a former CJSC or OJSC no longer wants to be a joint-stock company, then it can transform into an LLC or a business partnership, but not into an NPO or a unitary enterprise, since this possibility has been excluded from September 1, 2014 from the Civil Code of the Russian Federation.

In any case, management must decide which organizational form You will have to choose yourself, based on the situation. And if there is a need to change something, then, therefore, it is necessary to move in this direction. We hope that our article about changes to the Civil Code and the features of new JSCs and LLCs will help you make the right decision.

See also:

From June 19, 2017, the organization changed its legal form from OJSC to JSC.
The organization (hereinafter referred to as JSC) notified suppliers and contractors of the change of name from OJSC to JSC. Apart from this, nothing has changed: the activity continues, the tax identification number is the same, etc.
Is it possible to take source documents suppliers that indicate the old organizational and legal form, to tax accounting for the purposes of calculating VAT and income tax?

By this issue We adhere to the following position:
When changing (clarifying) the name of a legal entity (JSC), its reorganization does not occur, the legal entity with the old name does not terminate, does not change the organizational and legal form, etc. A legal entity does not withdraw from legal relations and, on the same basis, bears rights and fulfills obligations in relation to its own counterparties.

Justification for the position:
In accordance with Federal Law dated 05.05.2014 N 99-FZ "On amendments to Chapter 4 of Part One Russian Federation and on the recognition as invalid of certain provisions of legislative acts of the Russian Federation" (hereinafter referred to as Law No. 99-FZ) constituent documents, as well as the names of legal entities created before the date of entry into force of this Law, are subject to being brought into compliance with the norms of the Civil Code of the Russian Federation (as amended by this Law) upon the first change in the constituent documents of such legal entities. At the same time, it is indicated that changing the names of organizations created before the entry into force of this law in connection with bringing it into compliance with the norms of the Civil Code of the Russian Federation does not require changes to the title and other documents containing the previous name of the organization.
It should also be taken into account that in paragraph 23 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated November 18, 2003 N 19 “On some issues of application of the Federal Law “On joint stock companies akh" it is indicated that a change in the type of joint stock company in any case does not constitute a reorganization of such a company.
Thus, the bringing of a joint stock company’s constituent documents into compliance with the amendments made to the Russian Federation N 99-FZ, from the point of view of legislation, is only a change in the name. There is no succession or transfer of rights. Moreover, the law specifically states that changes to documents containing the previous name of the organization are not required.
Accordingly, a change in the details of one of the parties to the contract, including its name or designation, does not entail for the other party a change in existing obligations, their termination or the emergence of new ones, as well as the need to make changes to contracts in connection with a change in the name of one of the parties (FAS Moscow District dated 05/16/2014 N F05-4714/14, Moscow City Court dated 10/28/2014 N 33-38004/14).
Thus, when the name of a legal entity is changed, it does not leave the legal relationship and, on the same basis, bears rights and fulfills obligations in relation to its own counterparties. In support of the above, one can cite the legal position set out, in particular, in the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 22, 2012 N 14953/11, paragraph 23 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated November 18, 2003 N 19, as well as in the Federal Antimonopoly Service of the West Siberian District dated April 1 .2014 N F04-2426/14 in case N A27-688/2013.
Primary accounting documents must comply with the requirements of December 6, 2011 N 402-FZ “On Accounting” (hereinafter referred to as Law N 402-FZ). In particular, the name of the economic entity that compiled the document is one of the main and mandatory details of the primary accounting document (Law N 402-FZ, paragraph 1, clause 13 of the Regulations on maintaining accounting And financial statements in the Russian Federation, approved by the Ministry of Finance of Russia dated July 29, 1998 N 34n). Please note that the name of the recipient of the primary document is not included among the main details.
From the point of view of taxation, confirmation of expenses incurred (performed, incurred) by the taxpayer with documents drawn up in accordance with the law is one of mandatory conditions acceptance of expenses for the purposes of taxation of profits of organizations (Tax Code of the Russian Federation).
If an organization is recognized as a VAT payer, then the indication of its name is one of the mandatory details of the invoice, which gives the right to its counterparties to accept for deduction the VAT submitted by it on such an invoice (, Tax Code of the Russian Federation). At the same time, the norms of the Tax Code of the Russian Federation regarding the indication of the name of the taxpayer in the invoice as a mandatory detail do not contain references to its constituent documents. However, such a requirement is provided for in paragraphs. “c”, “and” clause 1 of the Rules for filling out an invoice used in VAT calculations (approved by the Government of the Russian Federation dated December 26, 2011 N 1137).
At the same time, the Tax Code of the Russian Federation states that errors in invoices that do not prevent tax authorities from identifying, in particular, the seller and (or) buyer during a tax audit, are not grounds for refusing to accept VAT amounts for deduction.
Unfortunately, judicial practice We were unable to find situations that fully correspond to those set out in the question. Let us note, however, that the courts, when assessing the reality of transactions and documentary evidence of taxpayers’ expenses, analyze the entire set of circumstances of the taxpayer’s possible receipt of an unjustified tax benefit, such as: signing of documents by unidentified persons, lack of personnel and production capacity for conducting activities by the taxpayer or its counterparties, etc. P. (see Presidium of the Supreme Arbitration Court of the Russian Federation dated 04/20/2010 N 18162/09, dated 06/08/2010 N).
It should be noted that even if it is established that documents were signed by unidentified persons, income tax expenses and VAT deductions are recognized as legitimate if there is evidence of the reality of the transactions performed and due diligence is exercised (see, for example, resolutions of the North Caucasus District dated June 11, 2015 N F08- 3452/2015, AS of the Central District dated 01/29/2015 in case N A62-489/2014, dated 10/22/2014 in case N A62-49/2014, FAS Central District dated 02/25/2014 in case N A62-2369/2013, dated 05.29.2013 in case No. A35-7542/2012, Moscow District dated 10.18.2013 in case No. A40-162037/12-115-1161, dated 02.12.2013 in case No. A40-31075/12-91-157, etc. ).
In the Volga District AS of October 15, 2014 N F06-15848/13 in case N A65-27018/2013, in which the supplier who changed his name appeared, in particular, it is said: “The tax authority’s arguments that the primary documents contain unreliable and contradictory information (incorrect address, checkpoint, name, seal, as well as full name of the manager) do not indicate the absence of business transactions. Evidence that the applicant at the time of execution of the work was aware of the renaming of the Orlan company into a company with. limited liability“Octave”, as well as no evidence that the work was actually not performed, was not presented by the tax authority.”
Since the previous name makes it possible to unambiguously and reliably identify the JSC as an actual party in transactions with counterparties and cannot indicate that it has unjustifiably received a tax benefit, the JSC has no grounds for making changes to the primary documents and invoices received from counterparties.
We believe that a JSC can take into account for the purpose of calculating income tax, VAT and other taxes, primary accounting documents and invoices issued after amendments were made to the Unified State Register of Legal Entities and containing the old name (JSC). At the same time, primary documents must confirm the reality of the transactions performed and be signed by authorized persons.
For complete exclusion tax risks The JSC may make a formal request to its tax authority.

For your information:
In order to avoid tax risks, a taxpayer may, on the basis of the Tax Code of the Russian Federation and the Tax Code of the Russian Federation, contact the Ministry of Finance of Russia or the tax authority at the place of registration of the organization to receive written clarification on this issue. Let us recall that in accordance with the Tax Code of the Russian Federation, the taxpayer’s compliance with written explanations given to him by a financial or tax authority on the procedure for calculating, paying a tax (fee) or on other issues of applying the legislation on taxes and fees is a circumstance that excludes the person’s guilt in committing a tax offense. In this case, the taxpayer is not liable for committing a tax offense.

Prepared answer:
Expert of the Legal Consulting Service GARANT
auditor, member Russian Union auditors Bulantsov Mikhail

Response quality control:
Reviewer of the Legal Consulting Service GARANT
auditor, member of RSA Gornostaev Vyacheslav

The material was prepared on the basis of individual written consultation provided as part of the Legal Consulting service.

"Entrepreneurship" - This is a risky activity carried out by citizens whose goal is to regularly earn a profit. In order to implement entrepreneurial activity in Russia, it is necessary to carry it out in one of the special organizational and legal forms. In relation to the chosen form, the specific rights and obligations of managing persons and the statute of their property will be determined.

Entrepreneurial activity is otherwise called commercial and sets itself the goal, as already mentioned above, of mandatory profit-making. But it should be noted that in addition to commercial legal entities in Russia, it is possible to create non-profit ones (parties, religious associations, foundations) that do not have such a goal, but they can receive income from their activities.

Classify shapes entrepreneurial activity possible for various reasons. So the simplest division will be into those who:

is engaged in entrepreneurship without forming a legal entity (IP);
formed a legal entity.

The main criterion for the classification of legal entities today is the status of participants in such legal entities (whether they will be its members). There are:

Corporate organizations . Its participants take a direct part in the work of the organization, exercise control and management over it. To do this, they create a supreme management body, through which they resolve all necessary issues related to the company’s activities.
Unitary organizations. These are state and non-state companies, the founders of which do not become participants. They simply have proprietary rights to property (which cannot be divided in any way) transferred under the management of the organization. These are state unitary enterprises and municipal unitary enterprises, unions and foundations, religious organizations.

Entrepreneurial activity for 2017-2018 possible in several organizational forms specified in the Civil Code.

Individual entrepreneur

A citizen who registers in a special manner and is engaged in business without creating a legal entity is called individual entrepreneur. The registration process with the tax authorities is much simpler and cheaper than that of a legal entity, and in addition, individual entrepreneurs are characterized by a simplified procedure for preparing and submitting reports (for example, there is no need to keep accounting records, which is strictly mandatory for a legal entity). This form of business activity is good for small businesses.

Business societies

The property of this organization is distributed among participants in shares or shares.

Companies are divided into LLCs (limited liability companies) and JSCs (joint stock companies). LLC is the most popular type of business in the Russian Federation. Its capital is divided into shares, which belong to the participants, and these participants are not liable for the obligations of the company. In other words, the participant risks incurring losses strictly within the limits of his share.

In joint stock companies, property is divided into a fixed number of shares (that is, securities). The risk of loss depends on the value of these shares, and the shareholder, as a rule, cannot demand a refund of the amount paid for it. Likewise, he cannot ask for the allocation of property in kind.

In 2014, serious changes were made to the Civil Code of the Russian Federation regarding the activities and forms of legal entities, one of which was the abolition of OJSC and CJSC. They were replaced by public and non-public societies. Meaning in free access to information about the work of such a company and to the purchase of its shares.

Partnerships

There are 2 types: general partnership and limited partnership.

A general partnership is organized by at least 2 persons and their activities are carried out on behalf of the partnership. Citizens enter into an agreement among themselves, on the basis of which a partnership is created and operates. In this form, the responsibility is much more serious - the partners are responsible with all their property, and not within the limits of the contribution.

Partnership of faith is very rare form. Full comrades with increased responsibility are present again. But besides them, there are limited investors who make their contribution and are responsible only within its boundaries.

Producer cooperatives

This organization is voluntary association citizens based on membership. Participants in a cooperative are its employees; personal labor participation is characteristic this form. Members are liable only to the extent of their share (contribution).

Unitary enterprises

Another form of entrepreneurship is unitary enterprises. They have already been mentioned briefly earlier. The property of the enterprise is not divided into deposits. It belongs only to its founder - the state or municipality. And the enterprise itself carries out only economically profitable management of it.

Changes were made to the Civil Code. The amendments affected the organizational and legal forms of legal entities. Before moving on to the forms themselves, I will answer the question that most readers are probably concerned about - will the innovations affect already registered companies? The law provides that the constituent documents of companies created before the date of entry into force of the amendments are subject to being brought into compliance with the norms (as amended by Law No. 99-FZ) upon the first change to the constituent documents.

In other words, the changes apply to all companies, but there is no need to change anything specifically now.

Two camps

What exactly has changed? All legal entities can now be divided into two types: corporate (commercial and non-profit) and unitary organizations.

According to , a legal entity is recognized as “an organization that has separate property and is responsible for its obligations with it, can acquire and carry out civil rights and bear civil responsibilities, be a plaintiff and a defendant in court.” Now the reference to the fact that companies must have an independent balance sheet or budget has been “crossed out” from the norm. But it stipulates that legal entities in respect of which their participants have rights include corporate organizations.

What exactly has changed? All legal entities can now be divided into two types: corporate (commercial and non-profit) and unitary organizations...

Article 65.1 was introduced into the Civil Code. It contains a definition of what corporate legal entities are. These are companies whose founders have the right to participate in them and form the supreme body of such companies. These include business partnerships and societies, peasant farms, economic partnerships, production and consumer cooperatives, public organizations, associations, partnerships of real estate owners, Cossack societies included in the appropriate State Register, as well as communities of indigenous peoples of the Russian Federation. But companies whose founders do not become participants and do not acquire membership rights in them are unitary. These include foundations, institutions, autonomous non-profit companies, religious organizations, public law firms, state and municipal unitary enterprises.

From the date of entry into force of Law No. 99-FZ, certain norms of Chapter 4 of the Civil Code in the updated version apply to previously created companies. This is due to the fact that some forms of legal entities simply “disappeared” from the Code. For example, ODO. Therefore, the corresponding provisions of the amended version of the Civil Code must be applied to “relics of the past”. Eg:

for companies with additional liability - provisions on limited liability companies (Articles 87-90, 92-94);
to sales consumer cooperatives - norms on production cooperatives(Articles 106.1-106.6);
To consumer societies, housing, housing-construction and garage cooperatives, horticultural, gardening or dacha consumer cooperatives, mutual insurance societies, credit cooperatives, rental funds, agricultural consumer cooperatives - regulations on consumer cooperatives (Articles 123.2-123.3).

From the date of entry into force of the Law, it will be necessary to apply the provisions of Chapter 4 of the Civil Code on JSC to CJSCs. Indeed, according to the new rules, joint stock companies are no longer divided into open and closed. Now there will be public and non-public joint-stock companies. Companies that meet the criteria of public joint stock companies will be recognized as such, regardless of whether this fact is indicated in their corporate name.

Law No. 99-FZ introduced other significant changes. Thus, the new edition contains, for example, articles relating to the procedure for liquidating a legal entity. I suggest you study the diagrams, from which it will become clear in what forms it will be possible to create organizations, starting from September 1.