Many people know that the sale of a private unitary enterprise (hereinafter also a private unitary enterprise) can be carried out in two ways: either through the reorganization of a private unitary enterprise in the form of transformation (often referred to as "double reorganization"), or as the sale of a private unitary enterprise as a property complex. Without dwelling in detail on the advantages and disadvantages of this or that method, it should only be said that through the reorganization of the PMC in LLC, about 95% of the sales transactions of the PMC take place. The essence of this method is to reorganize the PMC into an LLC, where the seller and the buyer will be participants together and, in the future, either a new participant will buy a share of the old one, or a reverse reorganization in the PMC after the seller submits an application for withdrawal.
It is necessary to say in which case it is still better to use the institute of registration of the purchase and sale transaction of the property complex for the sale of the PMC. This should be done by the buyers of a PMC with a large amount of property and a long work experience. When registering a purchase and sale transaction of a property complex, an audit report is prepared, which increases the legal frequency of the transaction.
The reorganization cannot be completed until the scheduled check is completed. You can find out whether the company is included in the coordination plan on the website of the State Control Committee of the Republic of Belarus. In the case of reorganization of an enterprise included in this plan, it is possible to invalidate the registration of amendments to the charter in connection with the reorganization, despite the fact that the type of reorganization used in the sale of the PMC, transformation, by itself cannot entail a decrease in the estate and, therefore, does not affect the interests of the state in the event of financial sanctions imposed on the results of the audit.
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The founder of the CHUP being sold accepts the decision on reorganization, in which he determines the name of the business company being created, approves transfer act by adopting the corresponding decisions, sets the size of the authorized fund to be contributed by the new participant.
It is especially worth mentioning about the transfer act, this document is being prepared with the participation of the accountant of the enterprise. And although it should essentially reflect the transfer of all the assets of the enterprise to the LLC and does not involve the fragmentation of assets, it is not worth neglecting its compilation, since it is the transfer act drawn up based on the results of the inventory that is the legal basis for accepting assets and liabilities of the PMC created in the process of reorganization of the LLC.
The decision to reorganize must be notified to the tax authorities within three days if the registration of the organization did not take place at the time of registration. Thus, this applies only to enterprises registered before the adoption of Decree of the President of the Republic of Belarus No. 1 of January 16, 2009, which provides for the registration of organizations at the time of registration.
Although reorganization in the form of transformation does not entail dilution of the property assets of the enterprise, representing in fact a change of name, in favor of which is evidenced by the method of registration of this reorganization: amendments to the charter, it is still necessary to notify creditors on reorganization, and all, and not only those whose obligations have come due. Creditors do not have the right to prohibit reorganization, but they have the right to demand early termination of obligations to themselves.
It is also necessary to notify the tax authorities and other bodies that control the payment of mandatory payments about the reorganization. This should be done even if the notification, as, for example, in the case of tax authorities, is not mandatory for all types of commercial organizations.
All employees of the reorganized enterprise are notified about reorganization at least 30 days in advance. They will have the right to refuse to continue their employment relationship with a new legal entity created as a result of reorganization. It is advisable to make a notification under a painting, and not by placing information on stands or other places accessible for viewing.
It is necessary to make approval of the name created as part of the reorganization of LLC in the registration authority. Even if the brand name does not change. The name can be approved by the director or a representative of the PMC acting on the basis of a power of attorney. A document confirming the authority of the relevant person is attached to the application for approval of the name.
After agreeing on the name, it is necessary to prepare charter of a new LLC. This charter is being considered by by the general meeting of LLC participants for approval. Also, in addition to the approval of the charter of the LLC, the said meeting approves the procedure for the registration of the LLC, the formation of the authorized fund, the distribution of the shares of the participants.
A new participant (buyer) is obliged to make a contribution to the authorized capital that falls on his share before the registration of the reorganization. The position of the registration authorities, although they are not obliged to verify the charter and the fact of the formation of the authorized fund, is that it is unacceptable to extend the 12-month period for the formation of the authorized fund of a newly created organization to commercial organizations created as a result of reorganization in the form of transformation.
Registration of the fact of reorganization of the PMC in LLC takes place by means of registration of amendments and additions to the constituent documents of the PMC. To do this, the head (representative by proxy) The PSC submits to the registration authority a package of documents consisting of an application of the prescribed form, the original certificate of the PSC, 2 copies of the charter signed by the participants, a disk with the recorded charter, as well as a document confirming the applicant's authority. The new participant, in turn, signs the founder's questionnaire ("Sheet A"), confirming that there are no grounds for acquiring the status of a founder of a commercial organization.
As a rule, on the day after registration of amendments and additions to the constituent documents of the enterprise, the registering authority issues a certificate of registration of the LLC. Also, on the fifth working day after the registration of the LLC, a notice of tax registration is issued.
Do not forget also destroy the seal of the former PMC and order a new one for LLC.
Fulfilling its part of the obligations for the sale of the PMC, the seller submits an application for withdrawal from the membership of the LLC. This statement in itself entails a number of legal consequences, expressed, in particular, in the payment to the outgoing participant of a part of the profit and the value of the LLC's property, respectively, to the share.
For this step, we recommend using our instructions upon the withdrawal of a participant from LLC and the documents in it.
The sole participant of the LLC decides on the reorganization of the LLC "back" to the PMC. This process entails a sequence of actions, in general, similar to the above-described process of reorganizing a PMC into an LLC (steps 2-8). This process includes inventory, preparation and approval of the transfer act, approval of the name of the PMC, notification of creditors, employees, registration of amendments and additions to the charter of a commercial organization.
If the new participant (the buyer of the PSC) does not want to convert the LLC "back" to the PSC, then this step can be skipped.
It is necessary to send a notification letter on the completion of the reorganization to the counterparties, including the bank, as well as to the bodies exercising control over the payment of mandatory payments. It will also be necessary to send a copy of the charter of the CHUP and the certificate of registration to the tax authorities, the FSZN and the bank. It is especially important to inform counterparties in the event of a change in the name and legal address during the reorganization.
Labor relations with employees who have expressed their consent to continue labor relations with the business entity formed as a result of the reorganization are formalized by issuing personnel order on the continuation of labor relations. It is possible to issue one general order for all employees. It is also necessary to make appropriate entries in the workbooks of employees, as well as to conclude additional agreements to existing employment contracts.
This step will be necessary for those who carry out business activities on the basis of a license (special permit) to perform certain types of work. More recently, the legislator required such persons to obtain a license again, regardless of the type of reorganization, the licensed activity at the same time had to be suspended. At the moment, it is not necessary to obtain a license if the reorganization did not lead to a change in the registration number of the payer of the organization. This is exactly the form of reorganization represented by reorganization in the form of transformation. However, now the legislator has provided for another obligation for such persons - making changes to the license in connection with the change of name.
This procedure is much simpler than obtaining a license again, and also does not require suspension of licensing activities. As a rule, the license holder is only required to draw up an application for amendments to the license with certified copies of registration documents attached, as well as pay a state fee. A one-month period has been set for making changes to the license in connection with this circumstance.
Business entities working in the field of construction and having certificates of construction organizations, certificates for construction work and certificates of technical competence will also have to face a number of formalities. In the case of a certificate for construction work and a certificate of technical competence, it will be necessary to make changes to the relevant document in connection with the name change. But in the case of a certificate of a construction organization, it will be necessary to apply for the issuance of a new certificate within a three-month period in a general manner.
Thus, reorganization in the form of transformation, mediating the sale of the PMC, also does not entail the need to terminate the activity, however, the procedure for extending the certificate of a construction organization will require more effort than making changes to the license. We hope that in the near future this injustice will be corrected by the legislator.