Signing of documents by the management company. Holding management: transfer of functions of the sole executive body to a management company. What does the law say about the management company as the executive body of the company?

An individual entrepreneur in an LLC may be appointed on the basis of Law No. 14-FZ. Such a step is taken by organizations quite often, since the appointment of an individual entrepreneur as the head of an LLC has certain, significant advantages. How to do this, and what are the advantages and disadvantages of such a solution?

Can an individual entrepreneur be a manager of an LLC?

The law approves this possibility. But for the appointment of an individual entrepreneur as a manager, it is necessary to draw up a contract with him correctly.

In the process of drawing up and signing it is necessary:

There are a number of subtleties in the design of the contract, which will be discussed below.

This step has certain advantages and risks.

So, society with limited liability decided to choose an individual entrepreneur as a manager. Norms labor legislation let you do it.

Replacing the director with an individual entrepreneur allows the company to solve a number of problems:

Registration allowed legal entity with the manager-IP. Then the contractual relationship is concluded after the registration actions.

Of these, there are:

The possibility of retraining the contract concluded with the individual entrepreneur in the labor contract.
An LLC may be held administratively liable for recruiting an employee who has been disqualified.

Let's take a closer look at the risks.

The retraining is initiated by the Pension Fund, local authority FTS, in order to charge additional insurance premiums and underpaid personal income tax.

Sometimes this is done reasonably. For example, the PFR body recognizes the contract as a labor contract in the case when the document indicates guarantees for the hired individual entrepreneur and his labor standards (the number of hours and days in working week, vacation period, etc.), other clauses typical of employment contracts. But there are also controversial cases.

There is a known judicial precedent when the FIU fully defended its position on the issue of retraining the contract from managerial to labor. The company was brought to administrative responsibility and paid arrears on pension contributions.

The Foundation substantiated this with the following arguments:

the activity of the individual entrepreneur in the position did not pursue the achievement of the adopted manager of his own commercial (positive) results;
it was aimed at the prosperity, competitiveness and profit growth of the LLC;
in the text of the contract, the obligation was spelled out to carry out a number of works by an individual entrepreneur in the role of a manager;
the sole proprietor took part in production and commercial activities;
the document indicated the hourly rate for individual entrepreneurs;
the activities of the manager were supervised by the General Meeting of the LLC;
the document contains the obligation of the employer to provide the individual entrepreneur with working conditions.

All these points were cited by the FIU as a sign of labor relations.

Considering the case, the courts of all instances came to the decision that the individual entrepreneur obeyed the internal regulations and worked for the benefit of the LLC, systematically, for a long time, and his work was continuous.

But the courts do not always agree with this, there are also opposite examples. In one of them, the court of first instance supported the FIU, which added additional contributions to the organization. The LLC filed an appeal and the following lawsuits overturned the original decision.

They justified this by the duties of the manager specified in the document, emphasizing that:

The individual entrepreneur in the position formed the working time regime independently and did not obey the internal regulations of the LLC.
The paper did not indicate the point of providing the manager with the place of work and necessary conditions labor.

Taken together, this was the reason for the FIU's refusal to meet the requirements. In those contracts with individual entrepreneurs that qualify as labor contracts, clauses for ensuring work conditions and a fixed hourly rate are prescribed, but unrecognized ones do not.

There is a danger in hiring a former director.

The contract for the management of an individual entrepreneur must contain a clearly stated purpose of such a change in status:

There is a risk in front of the tax. The FTS additionally charges the company with income tax, considering the payments to the manager unjustified from an economic point of view.

For example:

the director received a salary of 20 thousand;
then the founder (board of directors) decided to take him to the position of the firm's manager;
the former director issued an individual entrepreneur and signed a management agreement;
his functions did not change, he continued to manage the individual entrepreneur and the company, but the remuneration increased to 200 thousand.

This will raise reasonable questions for the Federal Tax Service and additional accrual of income tax, and the LLC will be held accountable.

To minimize the consequences, you need to draw up a contract competently - so that its provisions are as different as possible from those in the labor contract:

Of course, an individual entrepreneur needs a stable, regular payment for management services, and vacation, and some working conditions, and much more. But it is permissible to issue them additional agreements, which are legally binding, and at the same time are not obligatory for submission to the inspection authorities. In addition, in order to protect yourself from inspections, you cannot change the manager's pay too much, you can do it gradually, with appropriate justifications. And all relationships between individual entrepreneurs and LLCs must be documented.

The purpose specified in the agreement is a very important point of such.

The manager is given specific tasks that he must fulfill in this position, and the purpose of his work is to achieve this goal. According to its implementation (or non-fulfillment), the effectiveness of the manager's activities is assessed. And the goal set in the contract, in turn, refers the document to the category of agreements repayable rendering services.

Then the check will reveal only a civil contract, without signs of a labor contract.

Whom to hire? If the society is going to hire individual entrepreneurs, it is advisable to select a candidate who has been engaged in individual business for a long time. At the same time, it is desirable that the items should be included in the list of OKVED codes of a businessman management functions... The earlier this was done, the better, ideally these entries were made two to three years before the conclusion of the management agreement with the company.

This recommendation may sound strange, but it has a rationale. This is necessary so that a situation does not arise before the inspection bodies when there was a director who registered the individual entrepreneur and remained the head, but already in a new status. This qualifies as a "special re-registration of labor relations" and attracts the attention of controllers, although it is not explicitly prohibited.

Another point is the closure of the IP. If the LLC terminated the contract with the hired manager, the individual entrepreneur should not be closed immediately. If this is done, the FTS will consider that the manager's business was registered with the aim of tax evasion by the company, and the court is likely to support this position.

Earlier it was said that you cannot change the salary of a manager too dramatically. If the director received 10 thousand, and when he became an individual entrepreneur, he began to receive a million, obviously, the controllers would have a lot of questions.

You can increase the salary, but gradually, and all changes are tied to the performance of the person in the place of the manager and the profit of the LLC. If the profit grows, the salary also increases, and if the income falls, the manager's salary decreases.

To control the situation, you should sign the acts of the work performed by the manager.

They are accompanied by supporting documents:

registries;
concluded contracts;
minutes of meetings.

The papers must indicate that the individual entrepreneur is fulfilling his duties and justify the amount of his salary (including changes in one direction or another).

In addition, all current expenses for their work are paid by the individual entrepreneur.
These expenses include:

fuel;
stationery;
office equipment and consumables for it;
rent;
hospitality expenses.

All these items of expenses are not related to the LLC, but to the sole proprietor. And he must pay for them himself. The financial participation of the company is limited to the payment of remuneration, and the company is not obliged to reimburse other expenses.

Article 103, paragraph 3 Civil Code RF states: “By decision general meeting shareholders' powers executive body societies can be transferred by agreement to another commercial organization or individual entrepreneur (manager). " The Federal Law “On Joint Stock Companies” supplements and develops this provision: “By decision of the general meeting of shareholders, the powers of the sole executive body of the company may be transferred under an agreement to a commercial organization ( management organization) or an individual entrepreneur (manager). The decision to transfer the powers of the sole executive body of the company to a managing organization or a manager is made by the general meeting of shareholders only at the suggestion of the board of directors (supervisory board) of the company "(Article 69, clause 1 of the Federal Law" On JSC ").

Let us note here two circumstances.

First, the provision of the Law "On Joint Stock Companies" that the issue of attracting management company belongs to the competence of the general meeting of shareholders, is imperative. That is, even if, in accordance with the charter of your joint-stock company, the sole executive body is appointed by the decision of the board of directors of your company, then the management company instead of the sole executive body can be involved only on the basis of the decision of the general meeting of shareholders. It would seem that this rule creates additional guarantees for the protection of the rights and interests of shareholders. However, this is not quite true.

The second circumstance is as follows. Corporate law restricts a shareholder's ability to participate in the management of a joint stock company. A shareholder participates in such management through the general meeting of shareholders and the board of directors (if he or his representatives are elected to the board of directors). The competence of these bodies is limited. The day-to-day management of the company's activities is carried out by hired managers who may not be shareholders at all.

The institution of the management company allows you to bypass this limitation. The decision to transfer the powers of the sole executive body to the management company is made by the general meeting of shareholders by a simple majority of votes. Having created a fully controlled company, a shareholder who owns 50 or more percent of voting shares can ensure the transfer of the functions of the sole executive body to this company and thus can ensure his direct participation in the management of the company.

The institution of a management company in the management system of a modern Russian joint-stock company is not predominant, although it is used quite often. In what cases is it advisable to transfer the powers of the sole executive body to a managing organization? What are the advantages and disadvantages of such a control scheme? How to implement delegation of authority in practice? How not to run into "unexpected troubles"? This article is devoted to the answers to these questions.

Why would shareholders need to transfer the powers of the sole executive body to a management company?

The incentives for making such a decision may be the following:

1. The desire of shareholders to improve the efficiency of company management. One colleague gave an example when the widow of a businessman, having inherited stakes in enterprises, hired a management company to effective management its assets.

There are many examples when enterprises are transferred to the management of professional management companies with not only highly qualified personnel, but also know-how. There are many such examples in chemical industry where international management companies come. The use of such a management model is typical for the real estate industry, hospitality... Who has not heard of international hotel chains managed by companies such as Mariott, Holiday INN.

2. The need to withdraw the enterprise from the crisis. It was for these purposes that the management companies SUAL-Holding, EvrazHolding and others were initially created. A large number of management companies grew out of anti-crisis arbitration managers in the mid and late 90s, at the stage of property redistribution and massive bankruptcies.

3. Another motive is the reform, restructuring of the group of companies. A striking example is RAO UES.

4. Formation of the management system in the holding. The centralization of operational management at the level of the management company finds more and more application in the practice of Russian holding companies and financial and industrial groups. Here are some examples. In metallurgy, these are SUAL, UMMC, EvrazHolding. In petrochemistry - Bashkir chemistry, Eurochem group, Nikos group. In mechanical engineering - the holdings Severstal-Auto, Ruspromavto.

5. Prevention of corporate conflict, or rather - the seizure of control over the company. For these purposes, the use of a scheme for dividing an asset into a number of legal entities has become quite widespread: the owner company, in fact operating company, a company that owns and leases to the operating division real estate and equipment, a trading house and, finally, a management company.

6. Protection of the sole executive body from prosecution, including the initiation of a criminal claim against an individual. Today, many raider companies, having established control over a joint-stock company, transfer the powers of the sole executive body to a legal entity. And most often - an offshore company. It is no secret that in the course of raider attacks, and in the subsequent resale of assets, not entirely legal or simply criminal methods are often used. So go, reach out in the process of protecting your rights to an official whose functions are performed by any Cypriot offshore company. And even if it succeeds, the victim may be surprised to find that the general director of the offshore management company, in turn, is an offshore company registered in another jurisdiction.

On the advantages and disadvantages of the transfer of powers of the sole executive body of the management company

The advantages of the considered management organization scheme, as a rule, include:

the creation of a management company accountable to a shareholder, and even more so to a management company headed by this shareholder, makes it possible to exercise direct current control over the operational financial and economic activities of the joint-stock company. Of course, this advantage only works when the shareholder controls several companies, including within the holding structure. At the same time, the risk of managerial dishonesty is reduced;
the management company is able to improve the coordination of actions of a group of interconnected companies. This scheme is especially effective for vertically integrated holdings. But even for horizontally integrated holdings, an opportunity is being created to effectively regulate financial flows and optimize the use of resources. Additional opportunities for tax planning are opening up;
due to the centralization and concentration of individual functions, management costs are reduced. At the same time, the management company is able to attract expensive and highly qualified specialists, whose knowledge and experience will serve in the interests of not one, but several managed joint-stock companies;
simplification of the procedure for replacing an individual who directly exercises power and administrative functions on the basis of a power of attorney issued by the management company. To replace a leader, you will not need to spend time and resources on convening a general meeting of shareholders or laboriously convincing other members of the board of directors of the need to make such a decision. It is enough just to revoke the power of attorney;
centralization of operational management in a group of companies allows the development and implementation of a unified development strategy, centralization of planning and control.

The most serious disadvantages of using a managing organization instead of a sole executive body, as a rule, include:

expansion of the number of transactions that the legislation considers as interested-party transactions: through the management company, the group of persons to which the managed company belongs can significantly expand;
decrease in the efficiency of preparation of documents, especially in the case when the management and controlled company are located in different regions;
overload of managers, arising in a situation when one management company manages the activities of a large number of enterprises;
decisions made by the management company on the reallocation of resources, the use of transfer prices, and the formation of profit centers may meet the interests of the group of companies as a whole (or, more precisely, the interests of the controlling shareholder, who ensured the adoption by the general meeting of shareholders of the decision to attract the management company), but not meet the interests of the majority of minority shareholders.

When deciding on the advisability of transferring the powers of the sole executive body to a management company, the risks of these negative consequences should be taken into account and minimized, including within the framework of an agreement concluded with such a company.

What powers are transferred?

It would seem like a simple question, the answer to which, however, is not obvious. The Law “On Joint Stock Companies” defines the competence of the sole executive body in a fairly general way: “The competence of the executive body of the company includes all issues of managing the current activities of the company, with the exception of issues referred to the competence of the general meeting of shareholders or the board of directors (supervisory board) of the company. The executive body of the company organizes the implementation of decisions of the general meeting of shareholders and the board of directors (supervisory board) of the company ”(Article 69, clause 2). Moreover, this quote refers to both the sole and collegial executive bodies. In this case, the concepts of "leadership" and "management" should be separated.

The term "lead" has no clear definition and refers mainly to power and administrative powers. Dictionary Ushakova gives the following explanation to this term: “to guide, instruct, lead along some path”; "Give some binding instructions to someone." It seems obvious that the tasks of the general director do not include drawing up the company's balance sheet, drawing up work book, performance of other management functions. The concept of "management of current activities" can be detailed through the description of the functions or competence of the sole executive body. But here, too, the Law is not very clear: “The sole executive body of the company ... without a power of attorney acts on behalf of the company, including representing its interests, concludes transactions on behalf of the company, approves the states, issues orders and gives instructions that are binding on all employees of the company ... ..

The rights and obligations of the sole executive body of the company ..., the managing organization or the manager to manage the current activities of the company are determined by this Federal Law, other legal acts Russian Federation and the contract concluded by each of them with the society. "

The foregoing allows us to draw the following conclusion: in order to avoid disputes and misunderstandings, the competence of the sole executive body should be spelled out as fully as possible in the charter of the joint-stock company and / or in the agreement concluded by the joint-stock company with the management company.

At the same time, it is clear to us that when the competence of the management company includes resolving issues of employment, termination of an employment contract, payment of material remuneration, etc., then we are really talking about power and administrative functions. If the management company is transferred to the solution of such tasks as preparing a balance sheet, drawing up financial - economic plan, legal services, etc., then we are not talking about the functions of the sole executive body, but about the functions of regular management. In this case, the contract concluded with the management company is mixed. Along with the transfer of powers of the sole executive body, this agreement contains elements of an outsourcing agreement. In this case, in the opinion of the authors, it is permissible to conclude two contracts: an agreement for the transfer of powers of the sole executive body, approved by the board of directors and concluded on the basis of a decision of the general meeting of shareholders, and an outsourcing agreement for the transfer of certain management functions, which does not require such approval.

Models of building a management system using a management company

Depending on the goals pursued by shareholders, in practice, various models are used to build a management system for a joint-stock company using a management company. Let's consider the "extreme" options.

Formal model. The management company appoints the executive director and delegates to him all or almost all of his powers on the basis of a power of attorney. At the same time, the management company monitors the work of such a director. Sometimes - retaining the right to enter into contracts that go beyond the usual economic activity, as well as the implementation of transactions for an amount exceeding a certain limit. The purpose of this model is obvious. In fact, while retaining the powers of the sole executive body, shareholders strengthen control over its activities, and also create a mechanism for quickly depriving such a director of powers by revoking the power of attorney. This model is typical for management companies created and fully controlled by shareholders.

Centralized management model. Within the framework of the concluded agreement, the management company is transferred not only the powers of the sole executive body, but also the responsibilities for the implementation of a large number of management functions. In this case, the management company replaces almost the entire enterprise management apparatus. Achieved savings on management costs, complete coordination of the activities of several enterprises within the group. This model is typical for crisis management, organization of management in single-product holdings, holdings that have passed to a single share and have 100% subsidiaries.

Partial centralization model. Here, along with the powers of the sole executive body, separate management functions are transferred to the management company. Within the framework of this model, two options for its implementation can be distinguished. The first centralizes the functions of developing a development strategy, planning and internal audit while retaining all other functions of the company's management apparatus. This scheme is typical for differentiated holding companies. The second option involves the centralization of specific production and technological functions: logistics, marketing, etc. and is aimed at strengthening the coordination of the activities of interconnected companies, increasing the efficiency of management of individual elements of the business.

Should the charter need to be changed?

From the point of view of the requirements of the current legislation, it is not required to amend the charter of a joint-stock company due to the transfer of powers of the sole executive body to the management company. However, in some cases it will be in the best interests of the company to make some changes.

We have already talked about the advisability of the most complete reflection in the charter of the powers of the sole executive body. It is possible to limit the powers of the management company in another way, namely, by expanding the competence of the board of directors. For example, having determined that transactions in an amount exceeding 5% of the assets of a joint stock company are carried out only with the prior consent of the board of directors. The same procedure can be extended to the implementation of real estate transactions, raising loans exceeding a certain borrowing limit, etc.

In addition, when transferring the powers of the sole executive body to a management company, it would be useful to use the dispositive norms of the law governing the procedure for suspending the powers of such a company. We are talking about paragraph 4 of Article 69 of the Law "On Joint Stock Companies": “... The charter of the company may provide for the right of the board of directors (supervisory board) of the company to make a decision to suspend the powers of the managing organization or manager. Simultaneously with these decisions, the board of directors (supervisory board) of the company is obliged to make a decision on the formation of a temporary sole executive body of the company (director, general director) and on holding an extraordinary general meeting of shareholders to resolve the issue of early termination of the powers of the sole executive body of the company (director, general director) ) or a managing organization (manager) and on the formation of a new sole executive body of the company (director, general director) or on the transfer of powers of the sole executive body of the company (director, general director) to a managing organization or a manager. "

Finally, if the management company has a different registration address than the managed one, after the conclusion of an agreement with the management company, it will be necessary to make changes to the charter of a joint-stock company related to the display of the location of the joint-stock company.

According to paragraph 2 of Article 54 of the Civil Code of the Russian Federation "The location of a legal entity is determined by the place of its state registration... State registration of a legal entity is carried out at the location of its permanent executive body, and in the absence of a permanent executive body, another body or person entitled to act on behalf of the legal entity without a power of attorney. " Thus, the location of the managed company must be the location (i.e. the place of state registration) of the managing organization.

Currently, the FTS has prepared a number of proposals to amend the legislation on the registration of legal entities. In particular, it is proposed to introduce a rule giving the tax authorities the right to suspend the legal capacity of companies that are not located at the address of location stated in their statutes.

Algorithm of actions for the transfer of powers to the management company

If you finally decided to transfer the powers of the sole executive body to the managing organization, then to implement this decision you need to take the following actions:

1. Select a managing organization. Prepare a draft agreement on the transfer of the powers of the sole executive body to such an organization.

2. Convene a meeting of the board of directors and make the following decisions at this meeting:

on the approval of the terms of the contract with the managing organization. The law does not directly give the board of directors of a joint stock company the obligation to approve the terms of such an agreement. The need for approval is seen only indirectly. "The agreement on behalf of the company is signed by the chairman of the board of directors (supervisory board) of the company or a person authorized by the board of directors (supervisory board) of the company." However, the need for the agreement to be approved by the board of directors seems obvious and complies with the recommendations of the Code. corporate behavior RF. In order to avoid misunderstandings, many companies include the regulation on the approval of the terms of the contract with the managing organization in the competence of the board of directors, reflected in the charter of the joint-stock company;
on holding an extraordinary general meeting of shareholders with the agenda “On transferring the powers of the sole executive body of a joint-stock company to a managing organization” or on including this issue in the agenda of the next (annual) general meeting of shareholders;
on submission to the general meeting of the issue “on early termination of the powers of the General Director”. This issue is brought up for consideration by the general meeting of shareholders only if by the time of the meeting the term of office of the current CEO has not yet expired and the CEO has not received a statement of resignation from himself. If the joint-stock company "forgets" to include this issue on the agenda of the general meeting, a situation of dual power may arise in the company - the presence of two duly authorized executive bodies. This situation can lead to a corporate conflict, the recognition of decisions of the general meeting as invalid in court, other consequences that are extremely negative for the business of the joint-stock company;
on the proposal of the board of directors to the general meeting of shareholders to transfer the powers of the sole executive governing body of the managing organization. The law does not detail the content of such a proposal. However, it seems obvious that it should contain the name of the managing organization, as well as the main conditions of the contract concluded with it: the composition of the transferred powers, the duration of the contract, a description of the transferred powers and functions, the cost of the services of the managing organization;
on the approval of an interested-party transaction - if the agreement concluded by the joint-stock company with the management organization meets the characteristics of an interested-party transaction, or on the issue of approving an interested-party transaction for consideration by the general meeting of shareholders - if the amount of remuneration, stipulated by the contract, will exceed 2% of the book value of the company's assets as of the last reporting date, as well as if the board of directors was unable to approve this transaction in the manner prescribed by law.

3. Conduct a general meeting of shareholders and make the above decisions. The decision to transfer the powers of the sole executive body is made by a simple majority of votes of the meeting participants. But the approval of an interested-party transaction will require a majority of votes from all voting shares of the company owned by shareholders who have no interest in making such a transaction.

4. If necessary, obtain permission from the antimonopoly authorities to conclude such an agreement or notify these authorities about the decision... If the election of the general director - an individual does not require any coordination with the antimonopoly authority, then in accordance with Art. 18 of the Law of the RSFSR "On Competition and Restriction of Monopolistic Activities in commodity markets»The acquisition by a person (group of persons) of rights allowing to perform the functions of an executive body is carried out in agreement with the antimonopoly body.

At the same time, according to the requirements of the current legislation, prior consent must be obtained in the following cases:

if the sum of the value of assets on the balance sheet of the management and the managed company in aggregate exceeds 200 thousand minimum wages;
regardless of the total book value of assets in the event that a joint-stock company or a management company is included in the Register of economic entities with a market share a specific product more than 35 percent.

If the total value of assets on the balance sheet is more than 100 thousand minimum wages, but less than 200 thousand minimum wages, it is necessary to notify the antimonopoly authorities within 45 days from the date of transfer of powers to the management company.

Finally, if the total value of assets is 100 thousand minimum wages or less, the appointment of a management company takes place without the participation of antimonopoly authorities.

5. Get permission authorized bodies management organization for an interested party transaction (if the transaction under consideration will be an interested party transaction for the management company).

6. Conclude an agreement with the managing organization, transfer cases.

A few words about the contract

Preparing a contract with a management company is not an easy task. The content of the contract will largely be determined by the goals of attracting the management company and the chosen management model.

subject of the contract;
competence of the Criminal Code;
rights and obligations of the parties;
responsibility;
reward;
the procedure for accepting and transferring cases;
the procedure for the entry into force of the contract, as well as the termination of the contract.

As a general rule, the subject of the agreement is the provision of services for the exercise of the powers of the sole executive body of the joint-stock company. And if we are talking about a management company created in order to strengthen control over management, we can stop at this vague wording. If the purpose of attracting a management company is business development, then the wording of the subject of the contract can be expanded and concretized. For example, "the provision of services for the implementation of the powers of the sole executive body of a joint-stock company, services for managing the affairs and assets of a joint-stock company in order to increase the company's capitalization and profits." Sometimes in this section of the contract you can find specific numbers that reflect the minimum threshold of profitability, market share, and other indicators of management efficiency.

We have already spoken about the competence of the management company above. In addition to the competence of the sole executive body this section may reflect the fact that specific management functions of the joint-stock company have been transferred to the management company.

As for the rights and obligations, in addition to the rights and obligations of the sole executive body, which are transferred to the management company, it is advisable in this section to reflect the obligations of the management company to periodically submit reports to the board of directors, including the composition and content of such reports. Quite often, the consideration of the quarterly report is accompanied by the approval of the act on the work done.

The section on the responsibility of the management company can also be formulated different ways... Sometimes the parties to the agreement are limited to general wording about liability for losses caused by wrongful acts. In other cases, the types of damages to be reimbursed are detailed in sufficient detail. Among them may be penalties, losses associated with late payment of taxes, etc. In some cases, contracts provide for a penalty for failure to achieve the indicators of financial and economic activity established in the contract.

In most cases, the remuneration of the management company consists of two components: a constant part for the provision of relevant services and a variable part determined by the results of the company's financial and economic activities. The latter should create proper incentives for the management company to achieve high end results.

This section of the contract should also reflect the procedure for compensating the management company for the costs incurred by it in the process of performing the functions of the sole executive body, as well as the composition of the compensated costs. These costs, as a rule, include travel expenses, communication costs, transport, etc. The costs are compensated upon providing documents confirming their size. The expense report is submitted to the board of directors on a quarterly basis. Sometimes contracts set a ceiling on the amount of expenses to be compensated.

The section devoted to the procedure for the entry into force of the contract contains a list of documents and attributes transferred to the management company (including originals constituent documents, financial documentation, company seal) on the basis of the act of acceptance - transfer of cases. This section may include a rule on taking an inventory of the assets of the managed company. A similar procedure for the return of documents and attributes should be provided for when the contract is terminated on any grounds for such termination.

The same section may contain the date of entry into force of the agreement or the procedure for determining it. For example, on the 10th day after obtaining the consent of the antimonopoly authorities. The term of the agreement cannot exceed the term of office of the sole executive body, enshrined in the charter of the joint-stock company. If such a period is not established in the charter, the following considerations can be used to determine it. According to Labor Code with the head of the joint-stock company, an urgent labor contract... A fixed-term employment contract cannot be concluded for more than 5 years. However, the agreement may contain a provision that it is subject to automatic prolongation on the same conditions in the event that “within 30 days before the date of its completion, none of the parties notifies the other party of its intention not to renew the agreement or revise its terms ".

As for the terms of termination of the contract, in addition to the onset of the appropriate date for its termination or the adoption of a decision on its termination by the management bodies of the joint-stock company, this section should determine the possibility and procedure for voluntary termination of the contract on the initiative of the management company.

The section may contain a provision on the payment of compensation to the management company in the event of early termination of the agreement on the initiative of the joint-stock company.

Several traditional questions and common mistakes

1. Can a management company make business transactions with a managed one? Indeed, according to paragraph 3 of Article 182 of the Civil Code, a representative cannot make transactions on behalf of the person represented in relation to himself personally. An unambiguous answer to this question can be found in the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 06.12.2005, No. 9341/05.

According to article 53 of the Civil Code of the Russian Federation, a legal entity acquires civil rights and assumes civil obligations through its bodies acting in accordance with the law, other legal acts and constituent documents.

The actions of the bodies of a legal entity aimed at establishing, changing or terminating the rights and obligations of a legal entity are recognized as actions of the legal entity itself. In the light of the foregoing, the court made the following conclusion: the bodies of a legal entity cannot be considered as independent subjects of civil relations and, accordingly, act as representatives of a legal entity. Or, translating into Russian, the management company cannot be considered as a representative of a legal entity, therefore, transactions between the management and the controlled company are possible.

However, it should be borne in mind that, according to Article 81, the company's transactions with a person performing the functions of the sole executive body are considered as interested party transactions. Such transactions can be made only after their approval by the board of directors or the general meeting of shareholders of the controlled company.

2. How to specify the subject of the legal relationship in the contracts concluded by the managed company?

The correct entry will be: joint-stock company X represented by (full name), who is the general director of company Y, acting as the sole executive body of joint-stock company X in accordance with contract No. .. dated ...

3. On whose forms - the management or the managed company - are the orders issued? Whose seal are contracts and administrative documents sealed?

To issue orders, carry out official correspondence and in other cases, the forms of the managed company are used. And the signature of the head of the management company under such documents is certified by the seal of the managed company.

4. Is it possible, by transferring the powers of the sole executive body to the managing organization, to preserve the collegial executive body - the board? The legislation does not contain a prohibition on the presence of a board in companies that have transferred the powers of the sole executive body to a management company. However, when using such a structure, the charter should be extremely careful in distributing powers between these governing bodies. It is interesting to note that the functions of the chairman of the board in this case will be performed by a legal entity - a management company.

5. Some joint-stock companies, in order to reduce the taxable base or in the interests of large shareholders, overstate the cost of the services of the management organization. It is not worth doing this, since the overestimation of the cost of services generates the risks of imposing sanctions on the joint-stock company and its management company. tax authorities... In particular, in arbitration practice the following case took place: the tax inspectorate considered the costs of remuneration to the management organization overstated and economically unjustified and imposed sanctions on income tax (see Resolution of the FAS of the Volgo-Vyatka District in case No. A11-4426 / 2003-K2-E-1961 dated 19.01. 2004).

By the way, one of the ways to reduce such risks is to conclude two contracts with the managing organization: for the provision of services of the sole executive body and for the provision of services for the performance of management functions on an outsourced basis.

6. The material and financial flows of the joint-stock company should not be passed through the accounts of the managing organization. Each transaction between the controlled and the managing company is an interested party transaction. Each of them will require the approval of the board of directors or general meeting of shareholders.

In conclusion, we note the following. The decision to transfer the powers of the sole executive body to the management company allows shareholders to solve a variety of problems: from strengthening control over management to reducing costs and increasing the efficiency of business management. However, like any decision in the field of management organization, the use of this tool can have both positive and negative consequences. In this regard, it is very important to formulate the purpose of making such a decision, to draw up a "correct" agreement with the management company, to comply with all procedures stipulated by the legislation when making this decision, to provide for procedures for control by the board of directors over the management company, as well as the possibility early termination contract.

The issue of transferring the powers of the sole executive body to an individual entrepreneur in the context of this article is not considered separately. However, most of the conclusions made in relation to the management company, as well as the algorithm for attracting the management company and recommendations for concluding an agreement with it, are quite applicable to this case.

Here it is necessary to make a reservation. In the event that the management company turns out to be an affiliated person in relation to the managed company (for example, as a result of the fact that it belongs to the owner of a large block of shares of the managed company), then the approval of the agreement concluded by the joint-stock company with the management company must be carried out in accordance with the procedure established for transactions with interest. However, in practice, a lot of techniques are used to make the controlled company formally not affiliated.

See article V. Levykin and O. Shomko "Management company in the holding" // "Joint-stock company: questions corporate governance", No. 5 (12), 2004

However, there is a problem with the loyalty of the management of the management company.

Dear reader, don't you think that the preposition "or" is somewhat inappropriate here?

If, after the conclusion of an agreement with the management company, the general meeting of shareholders changes the charter, reducing the powers of the executive bodies, then the provisions of the agreement that are in conflict with the charter should not be applied. On this basis, some authors make a recommendation to include in the agreement concluded by the joint-stock company with the managing organization, the rules that amendments to the charter of the joint-stock company can only be made by agreement with the managing organization. One cannot agree with such a recommendation. The agreement cannot limit the rights of shareholders to amend the charter of a joint-stock company

True, such an agreement will relate to interested-party transactions and will require its preliminary approval, at least by a decision of the board of directors, or even a general meeting of shareholders.

The issues listed below can be considered at several meetings of the board of directors.

These signs include the following:

a shareholder who, together with his affiliates, owns more than 20% of the voting shares of the joint-stock company, simultaneously owns 20 or more percent of the shares (stakes, shares) of the management company;
members of the board of directors of the joint-stock company own in aggregate 20 or more percent of the shares (stakes, shares) of the management company;
at least one of the members of the board of directors of the joint-stock company is the sole executive body, member of the board of directors or member of the management board of the managing organization;
at the time of the adoption of the relevant decision by the general meeting of shareholders, the management organization had already fulfilled the powers of the sole executive body of the joint-stock company.

In order to avoid legal claims, the cost of the services of the management company should be compared with the value of the assets during the entire term of the contract.

1. Management of the current activities of the company is carried out by the sole executive body of the company (director, general director) or the sole executive body of the company (director, general director) and the collegial executive body of the company (board, directorate). The executive bodies are accountable to the board of directors (supervisory board) of the company and the general meeting of shareholders.

The charter of the company, which provides for the presence of both sole and collegial executive bodies, must define the competence collegial body... In this case, the person performing the functions of the sole executive body of the company (director, general director) also performs the functions of the chairman of the collegial executive body of the company (board, directorate).

(see text in previous edition)

By decision of the general meeting of shareholders, the powers of the sole executive body of the company may be transferred under an agreement to a commercial organization (managing organization) or an individual entrepreneur (manager). The decision to transfer the powers of the sole executive body of the company to the managing organization or to the manager is made by the general meeting of shareholders only at the proposal of the board of directors (supervisory board) of the company.

(see text in previous edition)

2. The competence of the executive body of the company includes all issues of managing the current activities of the company, with the exception of issues attributed to the competence of the general meeting of shareholders or the board of directors (supervisory board) of the company.

(see text in previous edition)

The executive body of the company organizes the implementation of decisions of the general meeting of shareholders and the board of directors (supervisory board) of the company.

Sole executive body of the company (director, general director) without a power of attorney acts on behalf of the company, including representing its interests, concludes transactions on behalf of the company, approves the states, issues orders and gives instructions that are binding on all employees of the company.

The company's charter may provide for the need to obtain the consent of the board of directors (supervisory board) of the company or the general meeting of shareholders for certain transactions. In the absence of such consent or subsequent approval of the relevant transaction, it may be challenged by the persons specified in paragraph one of paragraph 6 of Article 79 of this Federal law, on the grounds established by paragraph 1 of Article 174

3. The formation of the executive bodies of the company and the early termination of their powers shall be carried out by decision of the general meeting of shareholders, if the charter of the company does not refer the resolution of these issues to the competence of the board of directors (supervisory board) of the company.

(see text in previous edition)

The rights and obligations of the sole executive body of the company (director, general director), members of the collegial executive body of the company (board, directorate), the managing organization or the manager for managing the current activities of the company are determined by this Federal Law, other legal acts of the Russian Federation and the agreement concluded by each of them with society. The agreement on behalf of the company is signed by the chairman of the board of directors (supervisory board) of the company or a person authorized by the board of directors (supervisory board) of the company.

Relations between the company and the sole executive body of the company (director, general director) and (or) members of the collegial executive body of the company (board, directorate) are subject to the labor legislation of the Russian Federation to the extent that it does not contradict the provisions of this Federal Law.

A person acting as the sole executive body of the company (director, general director) and members of the collegial executive body of the company (management board, directorate) may combine positions in the management bodies of other organizations only with the consent of the board of directors (supervisory board) of the company.

The company, the powers of the sole executive body of which have been transferred to the managing organization or the manager, acquires civil rights and assumes civil obligations through the managing organization or manager in accordance with paragraph one of paragraph 1 of Article 53 of the Civil Code of the Russian Federation.

If the powers of the executive bodies of the company are limited to a certain period and after the expiration of such a period, no decision has been made to form new executive bodies of the company or a decision to transfer the powers of the sole executive body of the company to a managing organization or a manager, the powers of the executive bodies of the company shall remain in effect until such decisions are made.

4. The general meeting of shareholders, if the formation of executive bodies is not attributed by the charter of the company to the competence of the board of directors (supervisory board) of the company, may at any time decide on the early termination of the powers of the sole executive body of the company (director, general director), members of the collegial executive body of the company (board, directorate). The general meeting of shareholders has the right at any time to make a decision on the early termination of the powers of the managing organization or manager.

If the formation of executive bodies is attributed by the charter of the company to the competence of the board of directors (supervisory board) of the company, he has the right at any time to make a decision on early termination of the powers of the sole executive body of the company (director, general director), members of the collegial executive body of the company (board, Directorate) and on the formation of new executive bodies.

If the formation of executive bodies is carried out by the general meeting of shareholders, the charter of the company may provide for the right of the board of directors (supervisory board) of the company to decide to suspend the powers of the sole executive body of the company (director, general director). The charter of the company may provide for the right of the board of directors (supervisory board) of the company to make a decision to suspend the powers of the managing organization or manager. Simultaneously with these decisions, the board of directors (supervisory board) of the company is obliged to make a decision on the formation of a temporary sole executive body of the company (director, general director) and on holding an extraordinary general meeting of shareholders to resolve the issue of early termination of the powers of the sole executive body of the company (director, general director) ) or a managing organization (manager) and on the formation of a new sole executive body of the company (director, general director) or on the transfer of powers of the sole executive body of the company (director, general director) to a managing organization or a manager.

If the formation of executive bodies is carried out by the general meeting of shareholders and the sole executive body of the company (director, general director) or the managing organization (manager) cannot fulfill their duties, the board of directors (supervisory board) of the company has the right to decide on the formation of a temporary sole executive body of the company (director, general director) and on holding an extraordinary general meeting of shareholders to resolve the issue of early termination of the powers of the sole executive body of the company (director, general director) or the managing organization (manager) and on the formation of a new executive body of the company or on the transfer of powers of the sole executive body of the company of the managing organization or the manager.

All decisions specified in paragraphs three and four of this clause are adopted by a three-fourths majority of votes of the members of the board of directors (supervisory board) of the company, while the votes of the retired members of the board of directors (supervisory board) of the company are not taken into account.

The temporary executive bodies of the company manage the current activities of the company within the competence of the executive bodies of the company, if the competence of the temporary executive bodies of the company is not limited by the charter of the company.

(see text in previous edition)

5. If by the charter of the company the decision on the formation of the sole executive body of the company or on the early termination of his powers is attributed to the competence of the board of directors (supervisory board) of the company and the quorum for holding a meeting of the board of directors (supervisory board) of the company, determined by the charter of the company, is more than half of the number elected members of the board of directors (supervisory board) of the company and (or) to resolve this issue in accordance with the charter of the company or internal document determining the procedure for convening and holding meetings of the board of directors (supervisory board) of the company, a larger number of votes is required than the simple majority of votes of the members of the board of directors (supervisory board) of the company participating in such a meeting, this issue may be submitted for decision by the general meeting of shareholders at cases specified in clauses 6 and this article.

The issue of the formation of the sole executive body of the company or the early termination of its powers cannot be submitted to the decision of the general meeting of shareholders if the charter of the company provides for other consequences arising in the cases specified in paragraphs 6 and this article.

If the terms of the shareholder agreement concluded by the shareholders of the company provide for other consequences arising in the cases specified in clauses 6 and this article, non-fulfillment or improper fulfillment of the relevant obligations under the shareholder agreement is not a basis for release from liability or from the implementation of measures to ensure the fulfillment of obligations stipulated such an agreement.

6. If, in the presence of the conditions stipulated by the first paragraph of clause 5 of this article, the decision on the formation of the sole executive body of the company is not taken by the board of directors (supervisory board) of the company at two consecutive meetings or within two months from the date of termination or the expiration of the term of office of the previously formed sole executive body of the company, companies disclosing information in accordance with the legislation of the Russian Federation on securities are obliged to disclose information on the failure to make such a decision in the manner prescribed by the legislation of the Russian Federation on securities, and other companies - to notify failure to adopt such a decision by shareholders in the manner prescribed by this Federal Law for the notification of the general meeting of shareholders. Such notification is sent to shareholders or, if the charter of the company defines a printed publication for publishing messages on the holding of a general meeting of shareholders, it is published in this printed edition no later than 15 days from the date of the second meeting of the board of directors (supervisory board) of the company, the agenda of which included the issue of forming the sole executive body of the company and at which such a body was not formed, and if the second meeting did not take place, after two months from the date of termination or expiration of the term of office of the previously formed sole executive body of the company. The list of the company's shareholders to whom the said notification is sent is compiled on the basis of data from the register of the company's securities holders as of the date of the second meeting of the board of directors (supervisory board) of the company, at which a decision on the formation of the sole executive body of the company was not made, or if the corresponding meeting did not take place, after a two-month period from the date of termination or expiration of the term of office of the previously formed sole executive body of the company. At the same time, if a nominee shareholder is registered in the register of securities holders of the company, the notification is sent to the nominee shareholder for sending to persons in whose interests he owns the company's shares.

Notification in accordance with this paragraph is sent on behalf of the company by the chairman of the board of directors (supervisory board) of the company. After sending a notification to shareholders or after disclosing information in accordance with paragraph one of this clause, the chairman of the board of directors (supervisory board) of the company acts on behalf of the company until the formation of the temporary sole executive body of the company.

Shareholders or a shareholder have the right to submit a request to convene an extraordinary general meeting of shareholders to resolve the issue of forming the sole executive body of the company within 20 days from the moment the company's obligation to disclose this information arises.

Within five days from the expiration date of the period provided for by this clause for the shareholders or shareholder to submit a request to convene an extraordinary general meeting of shareholders, the board of directors (supervisory board) of the company is obliged to decide on the formation of a temporary sole executive body of the company, as well as on convening an extraordinary general meeting shareholders in accordance with Article 55 of this Federal Law, if by the specified date these requests have been received from shareholders or a shareholder owning at least 10 percent of the voting shares of the company. In the event that two or more demands are made to convene an extraordinary general meeting of shareholders to decide on the formation of the sole executive body of the company, the board of directors (supervisory board) of the company shall, in accordance with this paragraph, make a decision to convene one extraordinary general meeting of shareholders.

The decision to convene an extraordinary general meeting of shareholders and to form a temporary sole executive body of the company is made by the board of directors (supervisory board) of the company by a majority of votes of the members of the board of directors (supervisory board) of the company participating in the meeting, provided there is a quorum of at least half of the number elected members of the board of directors (supervisory board) of the company.

7. If, in the presence of the conditions provided for in paragraph 1 of clause 5 of this article, the decision on the early termination of the powers of the sole executive body of the company is not taken by the board of directors (supervisory board) of the company at two consecutive meetings of the board of directors (supervisory board) of the company , companies disclosing information in accordance with the legislation of the Russian Federation on securities are obliged to disclose information on the rejection of such a decision in the manner prescribed by the legislation of the Russian Federation on securities, and other companies - to notify shareholders of the rejection of such a decision in the manner prescribed by this Federal by law to announce the holding of a general meeting of shareholders. Such notification is sent to shareholders or, if the charter of the company defines a print publication for publishing messages on holding a general meeting of shareholders, it is published in this print publication no later than 15 days from the date of the second meeting of the board of directors (supervisory board) of the company, the agenda of which included the issue on the early termination of the powers of the sole executive body of the company and at which the decision on the early termination of the powers of such a body was not made. The list of shareholders of the company to whom the notification is sent is compiled on the basis of data from the register of owners of securities of the company as of the date of the second meeting of the board of directors (supervisory board) of the company, which did not make a decision on early termination of the powers of the sole executive body of the company. At the same time, if a nominee shareholder is registered in the register of securities holders of the company, the notification is sent to the nominee shareholder for sending to persons in whose interests he owns the company's shares.

Shareholders or a shareholder have the right to submit a request to convene an extraordinary general meeting of shareholders to resolve the issue of early termination of the powers of the sole executive body of the company within 20 days from the moment the company's obligation to disclose this information arises.

Within five days from the expiration date of the period provided for by this clause for shareholders or a shareholder to submit a request to convene an extraordinary general meeting of shareholders, the board of directors (supervisory board) of the company must decide to convene an extraordinary general meeting of shareholders in accordance with Article 55 of this Federal Law, if by the specified date these claims have been received from shareholders or a shareholder owning at least 10 percent of the voting shares of the company. In the event that two or more demands are made to convene an extraordinary general meeting of shareholders to resolve the issue of early termination of the powers of the sole executive body of the company, the board of directors (supervisory board) of the company shall, in accordance with this paragraph, make a decision to convene one extraordinary general meeting of shareholders. of this Federal Law. Clauses 6 Clause 8 Article 55 of this Federal Law.

IN recent times many large companies engage a commercial organization (hereinafter referred to as the management company) as the sole executive body. This allows you to make the management of the organization more efficient and centralized, to solve a number of production problems at the enterprise.

The functions of the sole executive body are transferred to the management company by decision of the general meeting of shareholders (participants) of the enterprise. An agreement is concluded with her on the provision of services for the management of the current activities of the enterprise.

According to the agreement, the company pays for the services of the management company and refers these costs to expenses that reduce the tax base for income tax, in accordance with sub. 18 p. 1 of art. 264 Tax Code RF. Following the provisions of Art. 252 of the Tax Code of the Russian Federation, where justified and documented costs are recognized as expenses, the enterprise includes these costs in expenses based on primary accounting documents.

However, as practice shows, the tax authorities, analyzing the primary documents submitted by the enterprise for verification, in a number of cases consider them insufficient to justify the costs and are not documented. As a result, these costs are excluded from expenses that reduce the tax base, and the company has arrears on income tax, penalties and fines.

Organizations are forced to defend their legal rights in court.

Based on our own experience of similar litigation and the judicial practice of our colleagues, we have developed a system documenting relations between the management company and the enterprise, which, in our opinion, will maximally protect the interests of both.

What are the tax authorities unhappy with?

First, let's talk about the main arguments of the tax authorities, which they cite when excluding the costs of purchasing enterprise management services from expenses that reduce the tax base for income tax:

· Inadequate execution of acts of delivery and acceptance of services rendered: the acts do not meet the requirements established in Art. 9 of the Federal Law of 21.11.96 No. 129-FZ "On Accounting" (hereinafter - the Law on Accounting), since they do not contain a clear name for the services provided (the content of the business transaction) and do not have prices for the services provided. Lists of services are compiled in unilaterally and signed only by the management company.

· The costs of managing an enterprise are economically unjustified, since their introduction into the composition of costs leads to a decrease in profits, in addition, they do not bring economic benefits.

· After the transfer of the functions of the sole executive body to the management company, there were no changes in the responsibilities of the administrative and managerial personnel of the enterprise.

· Along with the management company, the enterprise has its own management apparatus ( Executive Director, commercial director, etc.).

As can be seen from the above arguments, the tax authorities have their own vision of the structure of management bodies at the enterprise and are trying to impose it on the subjects. entrepreneurial activity... They do not take into account the fact that the right of a legal entity to attract a commercial organization as the sole executive body is provided by laws.

Required documents

Proving the legality of the decisions made, the tax authorities study the full set of documents for the management company, so it is important to draw up each paper.

The LLC Law requires the mandatory indication in the company's charter of the possibility of transferring the powers of the sole executive body to the manager. In the Law on JSC this requirement missing.

What follows is the protocol of the highest governing body economic society(general meeting of shareholders or participants) or the decision of the sole shareholder (participant), which reflects the decision to transfer the powers of the sole executive body to the management company. Moreover, in a joint-stock company, the procedure is somewhat more complicated, since in accordance with Art. 69 of the JSC Law, such a decision is made only at the suggestion of the board of directors. Also, by the charter, this issue can be attributed to the competence of the board of directors and adopted by a majority of 3/4 of votes.

The most important stage in documenting the transfer of the functions of the executive body to the management company is the drafting and signing of the contract.

It is a type of contract for the provision of services for a fee and, accordingly, is governed by the provisions of Ch. 39 of the Civil Code of the Russian Federation. The subject of the agreement is the provision of services for the management of the current activities of the enterprise within the powers granted to the sole executive body by the charter of the enterprise and the legislation of the Russian Federation.

Also, the agreement should disclose the content of the powers of the sole executive body.

It is not superfluous to indicate the purpose of the management company, that is, the beneficial effect that should be obtained by an enterprise that has entrusted the management functions of a commercial organization. For example: increasing the efficiency of production, centralization of the management apparatus of the enterprise, etc.

When drawing up a contract, special attention should be paid to the methodology for determining the cost of services, since it is here that the tax authorities have most of the questions related to the economic unreasonableness of management costs.

Sometimes it is extremely difficult to determine the fixed cost of a service. In such cases, the cost of the service should be determined by an estimate. It reflects the composition of the cost of the service, namely: expenses for the maintenance of the management company, expenses associated with the provision of services under the contract, value added tax, profit of the management company and other indicators. Since the amounts of expenses are approximate, their savings will constitute an additional profit for the management company. This must be clearly indicated in the contract.

The next point in drawing up a contract is the procedure for reporting the management company to the company. From our point of view, it should consist of monthly acts on the provision of services with the attachment of reports on the activities of the management company.

The act of providing services

In accordance with Art. 9 Law on accounting, all business transactions carried out by an organization must be documented by supporting documents. In the absence of such a bilateral document, the accountant will have no reason to recognize the fact of the provision of services and perform the corresponding accounting operations.

In our opinion, the company and the management company should draw up an act on the provision of services (and not an act of acceptance).

Form of this document not contained in albums of unified forms of primary accounting records, therefore, in order for the act to have the status primary document, it must contain the details given in Art. 9 of the Accounting Law.

The act is drawn up for the entire amount of the service provided for the month, with an indication of its proper performance.

An integral part of the act on the provision of services is a report on the activities of the management company. The report reflects the types of activities of the management company in the provision of services for the management of current activities, for example, the number of contracts concluded, transactions performed with the current account, business trips, etc.

The main thing is to include in the report real performance which are registered in the respective registers. For example, the number of concluded agreements is easy to calculate using the contract log, but it is almost impossible to calculate the time of negotiations held with counterparties, since it is not recorded anywhere, therefore, it makes no sense to include this activity in the report.

It is not worth reflecting any ghostly activity in the report, all the more expressing it in relatively short time indicators (minutes, hours).

For clarity, we will give an example from the report of one management company on the following type of activity - “activities to represent the interests of society in relations with other organizations, enterprises and individuals”, Then the amount of time spent on this and the cost of each hour was given. Agree that it is rather difficult to imagine how the number of hours spent by each employee and the entire state as a whole is technically calculated.

In addition to the listed shortcomings, one more significant mistake was made - the indication of the cost of each type of activity. This contradicts the terms of the contract because certain types of activities, whether it is conducting the conclusion of contracts, preparing correspondence, etc., are only components of one service - the management of the current activities of the enterprise. The cost in the contract is determined by the parties for the provision of the service as a whole.

Of course, it is possible to envisage in the contract all types of activities of the management company when managing the enterprise and determine the value of each, but this is rather difficult and, in our opinion, impractical.

Why inspectors are wrong

As for the arguments of the tax authorities regarding the economic unjustification of the costs of the management company, their insolvency has been confirmed by judicial practice.

Article 252 of the Tax Code of the Russian Federation does not make the economic justification of the expenses incurred dependent on the financial results of the taxpayer's activities. Moreover, the estimate economic efficiency expenses incurred by the taxpayer are not provided for by tax legislation as a criterion for the formation of the tax base. Economic justification is not equivalent to economic efficiency, since the latter reflects the degree of skill in conducting economic activities and is a qualitative indicator.

In addition, tax legislation does not establish an unconditional relationship between the recognition of expenses as economically justified and the lack of structural units, officials decisive management tasks(Resolutions of the Federal Antimonopoly Service of the West Siberian District of October 17, 2005 No. F04-6141 / 2005 (14978-A67-40, of June 28, 2006 No. F04-3818 / 2006 (23936-A27-37).

Summing up, we note that the current legislation gives enterprises the right to independently determine in the economic and management activities... The main thing is not to forget about the formal side of the issue when exercising your rights, to carefully think over the mechanism for implementing and documenting transactions.

PROFESSIONAL TEAM

CONSULTING GROUP

"TAX CONSULTANT"

The preamble of the supply agreement states: "NP LLC" Romashka ", hereinafter referred to as the" Buyer ", represented by the director of LLC" Lilia "II Sidorov, acting on the basis of the Charter and the agreement on the transfer of powers of the sole executive body of NP LLC" Romashka " No. 1 dated January 11, 2013, on the one hand ... "- is this possible, is it legal? Can the director of another company sign an agreement on behalf of another company (in our case, for example, NP OOO Romashka) without a power of attorney, but only on the basis of an agreement on the transfer of powers of the sole executive body of NP OOO Romashka? What is this contract and should the Buyer submit it to us for consideration? What documents should the Supplier request from the Buyer to make sure that I.I. (the director of another company) really has the right to sign an agreement on behalf of NP OOO Romashka and how to check these documents, what to look for?

Answer

Yes, it can be, it is legal. In accordance with Art. 42 of the Law on LLC, the company has the right to transfer, under an agreement, the exercise of the powers of its sole executive body to a manager. A company that has transferred the powers of the sole executive body to a manager exercises civil rights and assumes civil obligations through a manager acting in accordance with federal laws, other regulatory legal acts of the Russian Federation and the company's charter (Article 42 of the LLC Law).

The director of another company (management organization) can sign an agreement on behalf of the parent company without a power of attorney, only on the basis of.

“At a certain stage of business development, the owners may face the question of the need to involve a management company in order to make management more effective.

In case of such a development of events, the lawyer of the LLC needs to know how to correctly transfer the powers of the management company so that it has all the possibilities to achieve its goals, is under the control of the owners and, if necessary, is responsible for its actions.

How to formalize the transfer of powers to the management company

The concept of "management company" ("management organization") is not disclosed by the law. In fact, the management company is commercial organization, which provides services in the field of enterprise management. You do not need a license to provide such services.

The functions of the management company can also be performed individual entrepreneur- manager.

LLC instructs the management company to manage its affairs and property by exercising the powers of the sole executive body (director). The managing company, in turn, acts as its director or other person authorized by him.

The general meeting of participants or the board of directors must decide on the transfer of the powers of the director of the management company, approve such a company and the terms of the contract with it, including the amount of remuneration. It depends on what is said in the charter (sub., Clause 2.1, article 32, Federal Law of February 8, 1998 No. 14-FZ "On Limited Liability Companies", hereinafter - the Law on LLC). In this case, you do not need to make additional changes.

The powers of the management company should be specified in the contract in as much detail as possible. This is especially important if the society has other executive bodies, since a dispute over competence may arise later - at the most inconvenient moment, when the delay will cost society dearly.

Also, the agreement between the company and the management company can provide for:

goals to be achieved by the management company. At the same time, it is better not to be limited to general goals, but to regularly draw up annexes to the contract with accurate planned indicators, which through certain time must reach the society under the leadership of the management company. This will contribute to the achievement of an unambiguous understanding by the management company of the goals that society wants to achieve;
the amount of remuneration for the management company. It can be set depending on the achievement of the indicators specified in the previous paragraph. This will motivate her to effective work and also to minimize the risk that the costs of paying for her services are not recognized as income tax expense. The amount of remuneration should be divided into a fixed fee, compensation for direct costs approved by the company, and remuneration from the result at the end of the reporting period;
responsibility arising from the management company in connection with the performance of the functions assigned to it;
the procedure for terminating the powers of the management company;
the volume and content of information and reports that the management company is obliged to submit to the board of directors and shareholders in relation to its work and the performance of the company, the frequency with which such reports should be submitted;
a list of officials of the management organization who are obliged to report on its work to the board of directors and the general meeting of shareholders of the company;
conditions for non-disclosure of confidential information (volume of such information, terms of non-disclosure and responsibility).

The management company actually replaces the director. The actions of the management company give rise to rights and obligations for the LLC (). The management company must act in the public interest in good faith and reasonably ().

At the same time, it is not necessary to transfer all the powers of a director to the management company, only a part can be transferred. In addition, one must not forget to distribute the rest of the powers among the management bodies of the LLC.

IN jurisprudence there was such an opinion that the rest of the powers can be left with the director, without completely terminating his powers. However, this can cause disputes with the tax authorities.

An example from practice: the tax office tried (albeit unsuccessfully) to charge additional income tax and VAT on the cost of payment for the services of the management company

LLC "G." and LLC "N." signed an agreement dated June 5, 2004 No. 4 on the transfer of powers of the sole executive body of the company to a management company. Amendments were made to the Unified State Register of Legal Entities.

The competence of the director of LLC G. (according to job description) included operational management current production processes with the right to conclude transactions of little importance for the company (for an amount of up to 25 thousand US dollars).

The management company was granted broader powers, its position corresponds to the position of the director as defined in the LLC Law (according to the agreement on the transfer of powers).

Based on the results of the tax audit LLC "G." was brought to tax liability, he was additionally assessed income tax and VAT, as well as penalties and a fine. The tax inspectorate, having additionally charged taxes, insisted that the organization did not have the right to transfer part of the director's functions to the management company (and, consequently, pay it for such services and take this amount into account in its income tax expenses). The inspectorate argued that the LLC has the right to transfer either all the functions of the director, or none.

LLC "G." (the applicant) disagreed with the inspectorate's decision and applied to the arbitration court.

The court took the applicant's position because:

The LLC Law does not limit the scope of powers transferred to the management company, therefore, it is possible to transfer both all powers and part of them;
there is no duplication of management functions.

Requirements of LLC "G." were satisfied. The courts of appeal and cassation agreed with the court of first instance ().

If, nevertheless, the general director and the management company are left "at the helm" of the LLC, it is imperative to make sure that their powers are not duplicated. Otherwise, it can create not only tax risks, but also disputes over competence, which in practice will lead to destabilization in society.

What documents will the management company confirm its powers to the counterparties of the LLC?

Two groups of documents can be distinguished.

First, the documents that confirm that the management has been transferred to the management company:

the decision of the general meeting of participants of the LLC on the transfer of powers to it;
agreement on the transfer of powers to the managing organization;
extract from the Unified State Register of Legal Entities for LLC;
LLC charter.

Secondly, the documents that confirm the powers of the CEO of the management company:

the charter of the management company;
order on the appointment of the general director;
an extract from the Unified State Register of Legal Entities for the management company itself;
decision of the general meeting of participants of the management company on the election of the general director.

Often, the general director delegates the authority to manage the company to one of the employees of the management company. In this case, the powers of the latter must be confirmed by a power of attorney signed by the general director and with the seal of the management company attached. It is not required to certify such a power of attorney with a notary, since the general director of the management company acts on behalf of the company without a power of attorney ().

The agreement with the management company is signed by the chairman of the general meeting of participants, which approved the terms of the agreement, or a participant authorized by the general meeting.

If the management company is approved by the board of directors, the agreement is signed by the chairman of the board of directors or a person authorized by the board of directors ().

When transferring the powers of the director of the management company, it is necessary. "

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