Any participant, except the last (only) one, has the right to withdraw from the membership of a limited (additional) liability company (hereinafter referred to as LLC). The right to exit does not depend on the will of other participants and the executive body of the LLC. The consent of the participant's spouse is also not required for withdrawal, since withdrawal is not an act of disposal of the spouses' property.
At the same time, it is worth remembering that it is impossible to file an application for withdrawal at the stage of liquidation or bankruptcy, since in this case a change in the composition of participants is possible only in court.
A participant wishing to withdraw from the LLC is obliged to declare this in writing. The corresponding application is sent by registered mail with a notification of delivery or by express to the executive body of the LLC (director, manager, management organization) at the location of the LLC. The participant has the right to send a corresponding application to other persons, for example, to other participants at their home address and even to tax authorities. However, only the direction of the application at the location of the LLC specified in the Unified State Register of Legal Entities and Individual Entrepreneurs of the Republic of Belarus will have the legal value.
The statement as a unilateral act, as a general rule, is made in one copy, however, when handing the application to the director of the LLC by express, it is worth making a second copy remaining to the outgoing participant. On this copy, it is advisable to make a note of the delivery of the application to the director. If the application is accepted not by the director, but by another person, it is necessary to request a certified copy of the power of attorney of this person to receive the documents.
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After receiving the withdrawal application, the head of the LLC initiates the convocation of extraordinary general meeting of participants. Since the moment of exit by default is the date when the LLC receives the application for withdrawal, the outgoing participant can attend this meeting only as an invited person. The agenda of this meeting will include consideration of an application for withdrawal, determination of the procedure for registering a change in the composition of participants in the registering body, distribution of the share of the outgoing participant among the remaining ones, the procedure for settlements with the outgoing participant.
If, after the withdrawal of a participant, only one participant remains in the LLC, then he takes decision on actions after the exit of another participant (other participants), and does not convene a meeting.
The charter approved by the general meeting of participants, which does not contain information about the exited participant, must be registered by the director with the registration authority at the location of the LLC within 2 months from the date of withdrawal by submitting application for state registration of changes in the charter. For registration, the presence of the outgoing participant and even the remaining participants is not circumvented. However, the remaining participants must sign copies of the charter, which are submitted for state registration. Administrative responsibility has been established for violation of registration deadlines (see Article 23.64 of the Administrative Code).
We have specially developed two versions of the charter in connection with the withdrawal of a participant from LLC: for LLC with the remaining sole participant when the other participant(s) withdraw; and for an LLC with several participants when one of the participants leaves the membership.
A copy of the new version of the charter registered as a result of the participant's withdrawal is sent by letter to the tax authorities, bank and FSZN. The timing of such a direction has not been established, but it is not worth delaying the production of appropriate actions. Otherwise, the LLC will bear the risks associated with the lack of up-to-date information in the relevant organizations.
It should be remembered that the submission of an application for the withdrawal of a participant from the LLC generates financial obligations of the LLC to this participant. This is especially worth paying attention to those persons who choose between this mechanism for changing the composition of participants and contractual. Indeed, the exit through the submission of an application entails fewer formalities in terms of preparing documents. However, if the LLC has retained earnings and property, the outgoing participant is entitled to receive the share due to him. An exception can be called the case when the participant did not contribute to the authorized fund of the LLC. Here, he cannot claim payments, as well as in the case of the absence of the company's property / profit or losses.
It is also necessary to debunk the myth according to which the outgoing participant is paid the contribution he made to the authorized fund of the LLC. This opinion is illusory, finding no basis in legislation. By making a contribution to the authorized fund, the participant put money into circulation. Thus, he has the right to count either on an increase in this contribution in the form of profit and growth of the LLC's property mass, or on the loss of the contribution in case of losses.
In practice, some lawyers or accountants often offer an outgoing participant who does not claim payments to sign a written refusal. However, to what extent will this refusal have legal force? The legislation does not provide for such an opportunity. Therefore, it can be concluded, firstly, that unproduced payments form an object for taxation in the form of non-operating income, and secondly, that the outgoing participant will be able to change his mind over time, referring to the fact that the waiver of the right to payments is not allowed, since the corresponding norm is imperative.
Settlement with the outgoing participant, unless otherwise provided by the charter, is made based on the results of the financial year and after the approval of the report for the year. By agreement between the participants, the payment can be replaced by the issue of property in kind.
What should I do if the LLC does not register the participant's exit?
In this case, you can only seek protection of your rights in court. The subject of such a claim will be, firstly, the compulsion of the LLC to state registration of constituent documents reflecting the change of composition, and secondly, in the presence of undistributed profits and property of the LLC, the award of appropriate payments.
If you do not force the LLC to register, the withdrawal will be valid one way or another, but your data will remain in the Unified State Register, therefore, if the LLC has problems, for example, in case of bankruptcy, you will have to prove the fact of filing an application for withdrawal.