Step-by-step guide to creating, OOO
Procedure create an LLC at first glance it seems quite simple. But, lacking knowledge of certain details of this process, you may encounter certain difficulties, including the refusal of the tax authority in the state registration of the company. So in this article we will try to cover some of the nuances that contribute to the successful creation of an LLC.
Every society should have the full brand name in Russian with obligatory use of the words "limited liability" (clause 1, article 4 of the Federal law from 08.02.1998 № 14 – FZ "On limited liability companies" (hereinafter – the "Law on LLC")). Accordingly, you first need to decide how we would like to hear the name of your company. It should be remembered that the choice of brand names is necessary to consider the requirements of the civil legislation of the Russian Federation to its contents. In particular, it should not consist solely of words designating a kind of activity (item 2 of article 1473 of the civil code) may not include borrowed foreign terms and abbreviations, reflecting organizational and legal form of the legal entity (clause 3, article 1473 of the civil code), must not contain full or abbreviated official names of foreign States, and also words derived from such names; the full or abbreviated official names of Federal bodies of state power, bodies of state power of subjects of the Russian Federation and bodies of local self-government; the full or abbreviated names of public associations; symbols contrary to the public interest and principles of humanity and morality (paragraph 4 of article 1473 of the civil code). In addition, as a General rule it is prohibited to include in the name of the legal entity of the official name Russian Federation or Russia, and also words derivative from this name. With the exception of cases stipulated by law, decrees of the President of the Russian Federation or acts of the government of the Russian Federation, or in the case of a permit issued in the procedure established by the Government of the Russian Federation. Please note that there is a court practice when the courts have recognized the legitimate refusal of the tax authority in the state registration of a society having in its title the acronym "GREW up" in the absence of proper authorization. In addition, the courts explained that the letter combination "growing up" is a persistent Association of the user with state participation in the activities of the organization or with the special significance of the activities of the organization in the public interest (Definition of the SAC dated 05.07.2013 No. YOU 8248/13).
The list of conditions, requirements to the contents of the company names is not exhaustive. In more detail the data requirements set out in articles 54, 87, 1231.1, 1473 of the civil code and the Law on LLC.
Second stage companies is the choice of the primary and secondary activities according to all-Russian classifier of economic activities (OKVED). After that, you need to ensure that incorporation is no society that is registered with Your chosen brand name and the same types of activities. Make it pretty easy. On the official website of the tax authority www.nalog.ru need to open the section "business Risks, check yourself and your contractor" and search for the brand name of the future LLC. In the case of registered societies with the same name, you need to look at the information in the certificate of incorporation of each such LLC. If there is absolute coincidence, it is desirable to change the name. Such actions should be done in order to save time, reduce risk of refusal of the tax authority in the state registration and protracted litigation in connection with such waiver, and other negative consequences.
The third important step is setting the address of the location of the company (its permanent Executive body). So, there are various formal and informal options for obtaining (determining) that address: the conclusion of the lease of office space; purchase of address online; registration at the place of residence of the founder or CEO, etc.
In our opinion, the acquisition of the address of the location via Internet, is a rather risky method, since the address can be registered with multiple firms "ephemeral" or of companies in respect of which the information about the lack of contact with them, or the address may not be present or located at the object is destroyed, etc. As explained by the Plenum of the RF in its decision of 30.07.2013, № 61, similar circumstances are grounds for recognition of the address information of the legal entity are unreliable, which in turn leads to the refusal of the tax authority in the state registration of the LLC.
In addition, from 2016, these moments can serve as a reason for the registering authority activities the validation of the information included in the register, including through inspection of the property (Order FTS from 11.02.2016 year № MMV-7-14/72@). In the case of confirmation (detection) of inconsistencies in the legal entity and the failure of the last motivated explanations, refuting the assumption of the reliability of the information, the tax authority shall refuse in the state registration of a legal entity, and in relation to an existing entity in the register may be recorded on the unreliability of information about the legal entity. Such recording may adversely affect the reputation and business of the company and result in further adoption of the tax authority decision on exclusion of companies from the register.
In the case when You decide to register the LLC in the apartment where you actually reside, you should consider the following aspects:
1) if the founder or CEO are the owners of the apartment, you will need to extract from the egrn in this apartment that contains information about the owner. It should be remembered that as the address, you can specify only the apartment belonging on the property right, and not a house in which it is located (Regulation of FAS Moscow district from 18.10.2012 year the case № A41-18740/12);
2) if neither the founder nor the CEO are not the owners of the apartment, but was in her residence, additionally you need to obtain the consent of the owner in any form of implementation, in this area of entrepreneurial activities and registration of the formed society (item 4 of the Resolution of Plenum of the RF from 30.07.2013 No. 61);
3) if you plan to register LLC in the apartment rented by the founder or CEO, in addition to the above documents, you will need the rental agreement of the residential premises, concluded with its owner.
In a situation when the society is established by two or more persons, the fourth step in its creation is the conclusion of the Treaty on the establishment. If the LLC is organized by one person, this is not required. In practice, quite often the participants "ignore" the need for such a Treaty. However, the negative consequences of such actions may "float" in case of a corporate dispute or the sale of shares of companies, since the document will need to provide the notary at the conclusion of the transaction of purchase and sale of the shares to a third party. It should be noted that the Memorandum of the society contains provisions on the settlement of certain matters between the parties, which are not reflected in the LLC's Charter. Thus, in the Treaty of establishment, in addition to information about participating companies, complete and (or) abbreviated firm name and address of its location, size of the Charter capital, spells out the key points about the size and nominal value of the share of each founder, order and term of payment of shares, procedure for holding General meeting for the purposes of formation of the company, provisions on the liability of participants and distribution expenses incurred in connection with the creation of the LLC, etc. it should be remembered, what is the minimum size of the authorized capital may not be less than 10 000,00 rubles (article 14 of the Law on LLC).
Please note that currently there are inconsistencies between the provisions of the Civil code and the Act on the payment method minimum amount of the Charter capital. You must follow the rule of paragraph 2 of article 66.2 of the civil code, according to which in the Charter capital of a business of the company shall be deposited funds in an amount not below the minimum share capital of the company. In the case of payment of the share capital of minimum size in non-cash form (other things, property rights, etc.) may be followed by the refusal of the tax authority in the state registration in judicial practice, recognized legitimate (paragraph 1.4 of the Overview of court practice on disputes involving the registration authorities No. 4 (2016) set out in the letter of the FTS of Russia dated 28.12.2006 № GD-4-14/25209@).
However, I would like to note that the Law on LLC is not fixed terms, "motivating" of the founders to create the Charter capital more than 10 000,00 rubles (for example, not provided any relationship size of the authorized capital by types of activity). Is not established and the limitations on the use of funds deposited in payment of the minimum share capital that allows members of the society immediately after the establishment to write them on the needs of society. Therefore, this amount is "not responsible" guarantees for third parties.
As a next stage, establish the LLC should be allocated to the preparation of the Charter. During the development of this document should assume that it will be "the determining factor" in the decision of those or other questions. Accordingly, if the participants of the created society are two or more persons, it is necessary to pay more attention to its content and calculate "in advance" how best to present the procedure of solution of those or other questions. More carefully it is necessary to work out the issues of authority and decision-making on them, procedure of holding of General meeting of participants, etc.
After all the above steps should be followed to hold a General meeting of shareholders and to prepare a relevant Protocol or decision of the sole member, which shall contain information about the establishment of the society, approval of its complete and (or) abbreviated firm name in Russian and in other languages, the statement of the address of its location, of its Statute, the determination of the size of the authorized capital, shares, order and their payment, election management bodies, audit Commission and appointment of responsible for the submission of documents for state registration of companies. The Protocol of General meeting of participants shall be signed by all founders.
According to article 333.33 of the Tax code of the Russian Federation for the state registration of the legal entity to pay the state fee in the amount of 4 000,00 rubles. By virtue of the norms of article 333.17 of the Tax code of the Russian Federation it is recognized by the payer organizations and natural persons applying for the performance of legally significant actions. However, it is worth noting that the courts in the resolution of this question is not as categorical position. The fee implemented as the founder of the non-applicant for the state registration and the applicant's representative, shall be allowed by the courts and recognized not contradicting the legislation of the Russian Federation (the Review of practice of resolution of disputes connected with state registration of legal entities, approved by the Presidium of the Federal arbitration court of the Ural district 25.07.2008).
The final stage in the establishment of the companies "acts" completing the application for state registration of created legal entity form number Р11001, approved by order FTS of Russia from 25.01.2012 № MMV – 7 — 6/25@, and filing a complete set of documents to the registering authority. Registration statement on form n Р11001 must be carried out in full compliance with the requirements set forth in this order. Information on brand name, company, location and other information should be similar to the information specified in the Charter, articles of incorporation, the minutes of the General meeting of shareholders (decision of sole founder). The application must be signed by the applicant. Moreover, as a General rule, this signature must be notarized (clause 1.2 of article 9 of the Federal law from 08.08.2001 № 129 – FZ "On state registration of legal entities and individual entrepreneurs" — hereinafter the "Law on state registration"). The exceptions:
— when the applicant appealed directly to the registration authority and provided a document proving the identity;
when the package of documents sent to the tax authority in the form of electronic documents signed by the strengthened qualified digital signature of the applicant.
Please note that if the parent company involved a foreign entity, to the documents listed above must attach an extract from the register of foreign legal entities of a corresponding country of origin or other equivalent legal proof of the legal status of that person (podp. "g" of article 12 of the Law on state registration).
The law on state registration provides several alternative ways of filing (article 9):
a) submitting them to the tax authority directly or through IFC;
Such action may be made personally by the applicant or through a representative with a notarized power of attorney (documents must be attached original or notarized copy of power of attorney).
b) sending by registered mail with declared value and list of enclosures;
C) direction in form of electronic documents signed with an electronic signature via information and telecommunication networks of the General using, including a uniform portal of state and municipal services;
g) a notary, in case of receipt of the applicant's request.
I would like to mention that to decide on the method of submitting documents to the payment of the state fee, because depending on this may vary payment details, in particular, the BCF value.
The deadline for the registration is 3 working days, calculated from the date of submission of documents.
Summarizing all the above, we note that, by virtue of article 12 of the Law on LLC tax authority usually requires the following standard documents:
1) application for state registration legal entity when creating the form Р11001 (certified notarially or registering body if served personally by the founder);
2) the decision of the sole member on establishment of the LLC or the minutes of the General meeting of founders on establishment of the LLC;
3) the articles of Association (2 copies, one of which will remain in the tax authority, the other will be returned after the state registration to the applicant);
4) the documents for legal address (the consent of the owner/letter of guarantee, statement of the egrn etc.);
5) a document confirming payment of state duty;
6) the application form STS (3 copies, one for stamps obtaining, the second, on carrying out state registration, the third – for FTS, which will serve the society to the legal address).
In any case, you need to remember that in different regions of the requirements of the registering authority for registration and provision of documents for state registration of an LLC can vary. Therefore, in order to save own time and forces, as well as freeing yourself from the paperwork and other delays, it is recommended to consult a specialist dealing with such issues constantly and knows all the "pitfalls" of this business.