A big deal has been made. Not considered big

The transaction will be considered a major one if it goes beyond the boundaries of ordinary economic activity and at the same time is associated with the purchase or sale of property of a joint-stock company (more than 30% of shares) or provides for the transfer of property for temporary use or under a license (clause 1 of article 46 No. 14- FZ). Moreover, in both cases, the price of such operations must be at least 25% of the book value of the assets of a limited liability company (LLC).

If required, they approve major transactions in accordance with the legislation of the Russian Federation (14-FZ, 174-FZ, 161-FZ, etc.) or according to the rules established in the Charter of the procurement participant. In other embodiments, this is done by a supplier representative authorized to obtain accreditation for .

In an LLC, approval is the responsibility of the general meeting. If the organization has a board of directors, then on the basis of the Charter, the adoption of agreements on such operations can be transferred to its jurisdiction.

On June 26, 2018, the Supreme Court issued a Resolution of the Plenum. In this document, he revealed the main disputes regarding the approval of major transactions and agreements in which there is an interest.

Download Resolution of the Plenum of the Supreme Court No. 27 dated 06/26/2018

When is such approval required in the contract system?

To start participating in public procurement, you need. To do this, provide a common package of documents, which includes the consent to the transaction. Moreover, this is always required, including when the purchase does not belong to the category of large ones. As for suppliers who were accredited before 12/31/2018, they are required to register with the EIS by the end of 2019. Both of them will need an up-to-date sample decision on a major transaction 44-FZ.

Information must also be included in the second part of the application, if required by law or constituent documents, and also when and or, and the contract itself will be large for the participant. In the absence of this information at any stage before the conclusion of the contract. The auction commission of the customer is responsible for verifying the data (clause 1, part 6, article 69 No. 44 of the Federal Law).

It is important to note that individual entrepreneurs, unlike LLC, do not belong to legal entities. Therefore, they are exempted from the obligation to submit such a document for accreditation at the ETP.

Approval of a major transaction with a single founder

LLCs, in which there is only one founder, who acts as the sole executive body, are not required to draw up such a document (clause 7 of article 46 No. 14-FZ).

At the same time, in paragraph 8 of Part 2 of Art. 61 No. 44-FZ states that in order to be accredited on the ETP, participants in an electronic auction must submit such information, regardless of their form of ownership. Otherwise it will be impossible.

But it is not necessary to include this information in the second part. It is considered that if the supplier has not provided such data, then the conclusion of the contract does not fall into the category under consideration. But, as practice shows, even the decision of a single participant to approve a major transaction, just in case, is attached to the general package of documents. It is important not to make a mistake here. Otherwise, there is a risk of rejection of the auction participant due to the fact that he provided false information. Such cases are disputed by the Federal Antimonopoly Service, but the period for concluding a contract increases.

What to look for when compiling: form and content

First of all, it is worth noting that in the legislation of the Russian Federation there is no single model for a decision on a major transaction. But paragraph 3 of Art. 46 No. 14 FZ explains that such a document should indicate:

1. A person who is a party to an agreement and a beneficiary.
2. Price.
3. Subject of the agreement.
4. Others or the order in which they are defined.

The beneficiary may not be indicated if it is impossible to determine it by the time the document is agreed, and also if the contract is concluded as a result of the auction.

At the same time, Art. 67.1 of the Civil Code of the Russian Federation establishes that the decision made by the executive bodies of an LLC must be confirmed by a notarized certificate, unless another method is provided for by the Charter of such a society or by a decision of the general meeting, which was adopted unanimously by the participants.

P. 4, Art. 181.2 of the Civil Code of the Russian Federation fixes the list of information that must be reflected in the decision of the in-person meeting of the founders. The protocol requires the following information:

• date, time and place of the meeting;
• persons who participated in the meeting;
• results of voting on each item on the agenda;
• the persons who counted the votes;
• persons who voted against the approval of the agreement and requested that a record be made of it.

In 2019, it happens that customers reject a participant if the decision indicates the total amount of approved transactions, and not each agreement separately. Therefore, we recommend using the wording “Approve the transactions on behalf of the Limited Liability Company “_______________” based on the results of the procedures for the procurement of goods, works, services. The amount of each such transaction shall not exceed the amount of ____________ (_____________) rubles 00 kopecks.”

Some types of transactions made by LLC are made within the limits strictly stipulated by the law. Such transactions can be so-called major transactions (agreements, contracts). If a special procedure is not observed, then they are not recognized as valid. Even before the start of its commission, the lawyer determines the status - whether it is large or not.

Definition of a transaction and the procedure for its completion

The civil law of the Russian Federation defines big deal concept. A major transaction is considered to be several interconnected transactions, as a result of which property is acquired or alienated. The value of property in such transactions should start from 25 percent or more of the book value of the assets of the Limited Liability Company.

Oddly enough, but the conclusion of a settlement agreement also applies to major transactions. In this case, the parties and beneficiaries are not always known. This applies to trades. In this situation, it is permissible not to specify mandatory information.

The value of the assets themselves is determined by the balance sheet of the Limited Liability Company, compiled by an accountant with the most recent report date for the past period (last year). Major agreements may include: loan, credit, mortgage. But transactions related to the placement on the securities market, despite sometimes even their large volumes, cannot be classified as large in any way.

The Law "On Limited Liability Companies" clearly defines that transactions made in the course of regular economic activity cannot be qualified as large ones.

Deal approval

To approve the agreement, a general meeting of the company's participants (shareholders) is convened, where the issue of approving a major transaction is decided. A draft decision is being drawn up approval of the agreement between subjects. This decision specifies: the price of the acquired property, the subject of the transaction itself and the purchaser. If the contract was concluded during the auction, then the beneficiary cannot be indicated in the decision. The same rule applies in some other cases when the beneficiary could not be determined by the time of approval.

An LLC can be created Board of Directors. In this case, all agreements worth from twenty-five to fifty percent of the value of the company's property are administered by the Council. And already the council can decide the approval of major contracts.

The decision taken by the general meeting is ensured by the presence of all participants. Participants must be notified in advance. The head of the enterprise acquaints those present with the agenda of the meeting. The procedure for holding a meeting is determined by the law on LLC, the charter and other documents of the enterprise itself. The work is allowed a break, not limited in time.

Data on the agreement are made out signed meeting minutes. The decision is considered legal if it does not contradict the charter and current legislation. Essential conditions not specified in the protocol automatically make the transaction unapproved.

The agreement is considered approved from the moment the protocol is signed.

Recognition of transactions as legitimate

If, in the course of the events, under the terms of the contract, breaking the law, then the agreement can be declared invalid at the claim of the company or any of its participants.

The court sets the time for holding hearings to recognize the terms of the contract as invalid. If a hearing is missed, the statute of limitations cannot be reinstated. And that means you can't miss hearings.

The deal is recognized by the court under certain circumstances:

• The voter does not want to admit that the agreement was made correctly, and files a lawsuit in court. The reason for filing a claim is the fact that the vote of the participant in the vote on the recognition of a major transaction did not affect the final result, even if he did vote. This circumstance can in no way be unlawful. All procedures were followed and the decision was taken by majority vote.
• There is no way to prove (there is no evidence) that the agreement can entail losses for the whole society or its individual participant.
• Evidence in court may require contract approval documents. If the documents are in full order and executed according to the rules, then the transaction is recognized as legal.
• Everything is considered valid and recognized by the court - even if the transaction was made with violations, but the other party participating in it did not know about them or should not have known.
• The charter of the company may stipulate that a decision on the implementation of major transactions is made without a general meeting and a board of directors.
• The possibility of retroactive approval of the contract is not ruled out.

An article of the law regulating the rules for the procedure for approving agreements, cannot be applied on the following three points:

1. A limited liability company consists of one participant, who himself performs all the functions of the enterprise and transactions.
2. The emergence of relations when a share or part of it in the authorized capital passes to the company.
3. The emergence of relations when there is a merger of companies or accession as a result of the reorganization of an LLC.

“Closing” a deal is not always a reason to relax. Sometimes this is just the beginning of problems. Always exists likelihood of the contract being invalidated.

The main point in order for the decision of the general meeting of participants of the LLC to be recognized as legitimate and not to cause problems in the future is the presence of an elementary majority.

If, according to the charter, neither a general meeting nor a decision of the board of directors is required, then there is a possibility of acquiring illiquid assets or withdrawing assets. This option cannot suit the participants of the company and will cause a conflict of interest.

If any person related to the company is interested in the agreement, exclusion rules.

Rules determined by the charter of the company

1) The charter governs the daily economic activity of the company. It may also define the lower and upper thresholds for large contracts, or even abolish the procedure for such processes. In the presence of any of the threshold levels, the figures for the minimum and maximum threshold values ​​must be expressed as a percentage. The decision is made by the general meeting or the board of directors.

2) Usually the decision on the agreement is made general meeting of company members. But when a board of directors is formed, all functions are transferred to it. Changes must be reflected in the bylaws.

3) New rules governing the agreement process define a new size threshold. If earlier the threshold was no more than 25 percent, now this norm has increased from 25 percent or more.

4) The charter of the LLC now provides other types and size of major transactions. These types include: raising borrowed funds and real estate transactions. The threshold in such contractual arrangements may exceed the established threshold.

5) According to the statutory rules and current legislation, when approving a major transaction, the following must be indicated:

• a) Persons who are beneficiaries. Such persons are not indicated in transactions made at the auction or if they are not identified before the start of approval.
• b) Subject of the auction.
• c) The value of the transaction.
• d) Special conditions.

Exactly the same norms are specified in the law on joint-stock companies. But norm for LLC is considered more perfect, since in the case of a JSC, the features of the agreement at the auction and cases of impossibility to determine the beneficiary at the time of the decision are not taken into account.

6) The articles of association may prohibit the alienation of a share or part of a share of a member of the company in favor of a third party.

The procedure for approving transactions is provided for in Article 45 of the Law “On Limited Liability Companies”. This article provides for exceptions in case of interest by one of the persons.

Large transactions for various forms of companies

There are different approaches to the concept of a "big deal". This is depends on the form of the legal entity.

For LLC

For this kind of society, the assessment has already been given and the rules for regulating approaches have already been given so as not to be repeated again.

Major contracts are approved by the general meeting or, if any, by the board of directors. The approval amount is 25 to 50 percent.

Complaints are settled in court.

The presence in the company of one participant provides for a simple written approval without a protocol.

For unitary enterprises

This type of legal entity is subject to the rules under the law “ On State and Municipal Unitary Enterprises”.

For state-owned enterprises, the agreement becomes large as a result, if the transactions are interconnected. At the same time, property is acquired or alienated, and there is also the possibility of alienating property. The property in contracts of this kind is estimated at more than 10 percent of the authorized capital of the enterprise in the first variant. And in the second option, fifty thousand times or more should exceed the minimum wage.

The value of the alienated property determined as a result of accounting of the enterprise. If property is acquired, its value is determined based on the price of the property.

To make a decision, the consent of the owner of the enterprise is required. Such owner is the municipality (local authorities).

The absence of the consent of the owner means the failure of the transaction.

For state and municipal institutions

The law “On non-commercial organizations” applies to this form of enterprise. A major transaction for such an enterprise is several interconnected transactions if they are related to money, alienation of property or transfer of property for use or pledge.

The price of such a deal or the value of property (alienated or transferred) must exceed the value of the assets of a budgetary institution on the balance sheet of the enterprise. The cost is determined by the accounting reports with the latest date. The charter of such an enterprise may also provide for a smaller amount of the contractual agreement.

The budgetary organization carries out its contracts with the prior consent of the founder. The founders are: federal executive authorities, the executive authority of the subject of the federation and local governments.

To participate in the agreement, the founder of a budgetary organization should submit to the Ministry of Finance package of documents:

• Appeal of the head of the institution for preliminary approval. This document indicates: the price and terms, the subject of the transaction and the parties, the financial justification for expediency. A description of the documents must be attached to the application.
• Certified copies of budget reports for the last year with the latest reporting date. The chief accountant certifies the forms of budget reporting.
• Draft agreement, which outlines all the terms of the transaction.
• Report on the appraisal of the market value of the property. The assessment is carried out no earlier than three months before the submission of the report.
• Indication of all types of debts, debtors and creditors.

The decision on preliminary approval is considered and adopted by the commission after receiving the documents, within a month. The decision is drawn up by order of the Minister of Finance.

For an autonomous institution

Regulated Law "On Autonomous Institutions". The deal at this enterprise is then large when it is connected with the disposal of funds raised under a loan, the alienation of property and the transfer of its use (or pledge). The conditions for this are as follows: the price or value of property (transferred or alienated) exceeds 10 percent of the value of assets on the balance sheet of the enterprise. The value of assets is determined, as elsewhere, by the balance sheet with the latest reporting date. A lower threshold may be specified in the charter.

In an autonomous institution, the right to conduct is decided with the approval of the supervisory board. The Council considers the proposal of the head of 15 calendar days. The council consists of five to eleven people.

Members of the Supervisory Board are: representatives of this institution, executive bodies of local self-government or state power, representatives of the public.

A transaction made in violation is recognized as invalid at the suit of an autonomous institution or its founder.

Special rules

Transactions require special attention. Article 46 defines and sets out a set of rules.

• A major transaction is not only one transaction related to a loan, credit, pledge or surety, but several transactions related to each other for acquisition or alienation.
• The value of the property must be 25 percent or more of the value of the property as of the last reporting date.
• Whether the transaction is large or not is the responsibility of the LLC. Accounting expertise will help to understand the conflict that has arisen. Companies operating on a "simplified" basis are not required to keep accounting records.
• Charter helps effectively control all economic and financial activities of the LLC.
• The settlement agreement approved by the court is a major deal. Such a transaction can only be challenged by filing a complaint with the court.
• A problem for the activities of an LLC can be the line between economic activity and large transactions. This is quite difficult to determine and invariably there is a threat of failure (non-recognition).
• Transactions where a large amount is contributed to the authorized capital in the form of property, a mortgage agreement on real estate or the purchase of a leased premises are not recognized as major transactions.

Legal regulation of major transactions

The regulation of large transactions is paid attention to by such a document as the “Concept for the Development of Civil Legislation” of the Russian Federation.

This document states that agreement schemes are used to renounce previously committed ones, although they must preserve the property of the society. Property turnover is violated and contradicts the interests of contractors and creditors.

Protection of its interests by the company when making a major transaction by contesting is possible when the company cannot know about violations of the order, that is, it is a bona fide counterparty.

The accountant and lawyer involved in the transaction must be aware of the pitfalls and adhere to accounting and reporting data.

The article reveals the concept of a major transaction for such commercial and non-profit organizations as business companies, state and municipal unitary enterprises, state and municipal institutions. The author will answer questions related to the requirement to provide, as part of the application for participation in the auction, a decision on approval or on the completion of a major transaction.

The requirement to provide as part of an application for participation in an open tender a decision (a copy of the decision) on approval or on the completion of a major transaction was included in Federal Law No. state and municipal needs” (hereinafter referred to as Law No. 94-FZ) Federal Law No. 308-FZ of December 30, 2008 “On Amendments to the Federal Law “On Placement of Orders for the Supply of Goods, Performance of Work, Rendering of Services for State and Municipal Needs” and Certain Legislative Acts of the Russian Federation” and entered into force on March 1, 2009.

Submission of a decision on approval or on the conclusion of a major transaction is necessary if the requirement for its presence is established by the legislation of the Russian Federation, the constituent documents of a legal entity, and if for the participant in the order placement the supply of goods (performance of work, provision of services) or the deposit of funds as security for the application for bidding is a big deal.

Federal Law No. 93-FZ dated 08.05.2009 “On organizing a meeting of the heads of state and government of the countries participating in the Asia-Pacific Economic Cooperation Forum in 2012, on the development of the city of Vladivostok as a center of international cooperation in the Asia-Pacific region and on introducing amendments to certain legislative acts of the Russian Federation” from July 1, 2009 Law No. 94-FZ was supplemented by Ch. 3.1. “Placing an order by holding an open auction in electronic form”.
According to paragraph 8 of part 2 of Art. 41.3 of Law No. 94-FZ, which determines the procedure for accreditation on an electronic trading platform (hereinafter referred to as the ETP), the order placement participant must provide the ETP operator with a decision on approval or on the conclusion of transactions based on the results of open auctions in electronic form on behalf of the order placement participant - a legal entity indicating information about the maximum amount of one such transaction.

Major Deal Definition

There are different approaches to the definition of the concept of “major transaction”, depending on the organizational and legal form of legal entities.

Major deal for business entities

For OOO, in accordance with Art. 46 of the Federal Law of 08.02.1998 No. 14-FZ “On Limited Liability Companies” (hereinafter - Law No. 14-FZ), large transactions are considered to be transactions related to the acquisition, alienation or possible alienation of property, the value of which is 25% of the value of the property company, determined on the basis of financial statements for the last reporting period preceding the day of the decision to make the above transaction, unless the company's charter provides for a higher threshold for a major transaction. Transactions made in the course of the company's ordinary business activities are not considered major transactions.

So the big deal for an LLC is:
. associated with the acquisition, alienation, possible alienation of the company's property;
. can be direct or a chain of interrelated transactions;
. the charter of the company may amend and (or) supplement the procedure and list of major transactions.

The definition of a major transaction for JSC is given in Art. 78 of the Federal Law of December 26, 1995 No. 208-FZ “On Joint Stock Companies” (hereinafter - Law No. 208-FZ). A major transaction in the case of joint-stock companies is a transaction or several interconnected transactions related to the acquisition, alienation or the possibility of alienation by the company directly or indirectly of property, the value of which is 25 or more percent of the book value of the company's assets. Such transactions may be, in particular, a loan, credit, pledge, surety.

In this case, the book value is determined according to the financial statements as of the last reporting date. Transactions made in the course of the ordinary business activities of the company or related to the placement by subscription (realization) of ordinary shares of the company, as well as the placement of issue-grade securities convertible into ordinary shares of the company are not considered major transactions. The charter of a JSC may also establish other cases in which the transactions it makes are subject to the procedure for approving major transactions.

Thus, the difference in the definition of major transactions for JSCs and LLCs is as follows: in the first case, a major transaction is considered to be 25% of the value of assets, and in the second - 25% of the value of property.

Major deal for unitary enterprises

In accordance with Art. 23 of the Federal Law of November 14, 2002 No. 161-FZ “On State and Municipal Unitary Enterprises” (hereinafter - Law No. 161-FZ) for state and municipal unitary enterprises, a major transaction or several interconnected transactions related to the acquisition, alienation or the possibility of alienation by such an enterprise, directly or indirectly, property, the value of which is more than 10% of its authorized capital or more than 50 thousand times the minimum wage established by federal law. In this case, the value of the property alienated by the unitary enterprise as a result of a major transaction is determined on the basis of its accounting data, and the value of the property acquired by the said enterprise - on the basis of the offer price of such property.

Major deal for state and municipal institutions

The definition of a major transaction made by a budgetary institution is given in paragraph 13 of Art. 9.2 of the Federal Law of January 12, 1996 No. 7-FZ “On Non-Commercial Organizations” (hereinafter - Law No. 7-FZ). For the purposes of this Law, a transaction (several interconnected transactions) is recognized as a major transaction related to the disposal of funds, the alienation of other property (which, in accordance with federal law, a budgetary institution has the right to dispose of independently), as well as the transfer of the said property for use or pledge, provided that the price of such a transaction or the value of the alienated or transferred property exceeds 10% of the balance sheet value of the assets of a budgetary institution, determined according to its financial statements as of the last reporting date, unless the charter of a budgetary institution provides for a smaller size of a major transaction.

For an autonomous institution in accordance with Art. 14 of the Federal Law of November 3, 2006 No. 174-FZ “On Autonomous Institutions”, a major transaction is a transaction related to the disposal of funds, attraction of borrowed funds, alienation of property (which, in accordance with this Law, an autonomous institution has the right to dispose of independently), as well as with transfer of said property for use or pledge, provided that the price of such a transaction or the value of the alienated or transferred property exceeds 10% of the book value of the autonomous institution’s assets, determined according to its financial statements as of the last reporting date, unless the charter of the autonomous institution provides for a smaller amount big deal.

Transactions in the ordinary course of business

When considering the concept of “major transaction” for legal entities of various organizational and legal forms, it becomes clear that not all transactions made by organizations and having signs of large ones fall under it. In particular, major transactions do not include transactions made in the ordinary course of business.

The current legislation does not establish clear criteria for what is the current economic activity of a legal entity. In this regard, let us turn to the practice of arbitration courts.
Based on the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of November 18, 2003 No. 19 “On Certain Issues of the Application of the Federal Law “On Joint-Stock Companies”, as well as the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation of March 13, 2001. No. 62 “Overview of the practice of resolving disputes related to the conclusion by economic companies of major transactions and transactions in which there is an interest” (hereinafter - information letter No. 62), transactions made in the course of ordinary business activities include:

Transactions for the acquisition of raw materials and materials necessary for the implementation of production and economic activities;
. transactions for the sale of finished products;
. transactions to obtain loans to pay for current operations.

Also, one of the criteria for classifying activities as “ordinary economic” may be the mention of this type of activity in the charter of a legal entity as the subject of its activity. Despite possible theoretical claims to the principle “ordinary activity = statutory activity”, related to the unlimited legal capacity of companies, this approach is reflected in judicial practice (clause 5 of the information letter No. 62).

When referring economic transactions to the category of major arbitration courts proceed, first of all, from an analysis of the types of economic activities carried out by companies. And, if the transaction is concluded in order to ensure the performance of a certain type of economic activity or is directly due to this type of economic activity, then it will be recognized as a transaction concluded in the course of ordinary economic activity. This is also confirmed by judicial practice.1

The FAS Russia in its practice is guided by these provisions, pointing out in the relevant decisions the illegality of the actions of state customers to reject the applications of participants in the placement of an order due to the latter's failure to submit decisions on the approval of major transactions when it comes to transactions made in the course of ordinary business activities order placement participant.2

The procedure for approving a major transaction for business entities

According to Art. 46 of Law No. 14-FZ, the decision to conclude major transactions by an LLC is made by the general meeting of its participants. When the transaction amount is from 25% to 50% of the value of the company's property, such a decision is made by the board of directors (supervisory board) if the company has a board of directors (supervisory board) and the adoption of this decision is referred by the charter of the LLC to its competence.

The resolution of the Federal Antimonopoly Service of the Moscow District dated September 25, 2006 No. KG-A41 / 9019-06 in case No. A-41-K-1-2943 / 06 states that the decision to conclude a major transaction is made by the general meeting of the company's participants in accordance with clause 3 Art. 46 of Law No. 14-FZ.

A major transaction approved by the general meeting of the company's participants in violation of the law may be challenged and declared invalid in court.

If there is only one participant in the LLC, then the approval of the transaction can be made by him in a simple written form, without drawing up the minutes of the general meeting of participants.

Approval of major transactions in a joint-stock company may fall within the competence of both the board of directors and the general meeting of shareholders.

JSC board of directors approves major deal in the event that its subject is property, the value of which is from 25% to 50% of the book value of the company's assets. In this case, the transaction must be approved unanimously by the entire board of directors (clause 2, article 79 of Law No. 208-FZ). Each member of the board of directors must vote in person, without transferring their powers by proxy.

In the absence of any of the members of the Board of Directors, who did not provide written confirmation of the approval of a major transaction, the approval meeting must be rescheduled for another date. If this rule is not observed, the decision to approve a major transaction will be considered illegitimate.

If the subject of the transaction is property, the value of which exceeds 50% of the book value of the assets of the JSC, then it, in accordance with paragraph 3 of Art. 79 of Law No. 208-FZ is subject to approval by the general meeting of shareholders. At the same time, a major transaction must be approved by shareholders owning voting shares (owners of preferred shares do not participate in voting). A major transaction will be considered approved if 3/4 of the votes of shareholders owning ordinary shares (qualified majority) are cast for it. If the procedure for approving a major transaction has been violated, then in accordance with paragraph 6 of Art. 79 of Law No. 208-FZ, it will be declared invalid.

The transaction may be declared invalid both at the claim of the shareholder and at the claim of the company. If the JSC has only one shareholder who owns 100% of the shares, then in order to approve the transaction, the general director of the company must obtain his written consent.

It is this position that the Presidium of the Supreme Arbitration Court of the Russian Federation adheres to, which, in information letter No. 62, indicated that in companies consisting of one shareholder, written consent (approval) by him of a major transaction is equivalent to a decision of the general meeting of shareholders. If the company has two shareholders who own shares in equal shares (50% each), then a decision of the general meeting is necessary, since in this case the full composition of shareholders will be considered a qualified majority.

The procedure for approving a major transaction for unitary enterprises

The decision to conclude a major transaction is made with the consent of the owner of the property of the unitary enterprise. The property of a state unitary enterprise belongs by right of ownership to the Russian Federation, a constituent entity of the Russian Federation, on behalf of which the rights of the owner of such property are exercised by state authorities of the Russian Federation or state authorities of a constituent entity of the Russian Federation within their competence established by acts defining the status of these bodies. The owner of the property of a municipal unitary enterprise is the municipality, on behalf of which the rights of the owner of the said property are exercised by local self-government bodies within their competence established by the acts defining the status of these bodies.
The Supreme Arbitration Court of the Russian Federation, in ruling No. VAS-3929/09 dated April 16, 2009 in case No. A63-3891 / 08-C3-15, indicated that if an agreement concluded in the ordinary course of business of a state or municipal unitary enterprise has not received consent the owner of the property, he will be insolvent, because Art. 23 of Law No. 161-FZ imperatively establishes the obligation to obtain the consent of the owner for the conclusion of all transactions, the amount of which exceeds the limits established by law. This provision is due to the fact that a unitary enterprise disposes of movable and immovable property only within the limits that do not deprive it of the opportunity to carry out activities, the goals, subject and types of which are determined by its charter. Thus, practically any transaction entered into by such an enterprise will be classified as a normal general business activity.

The absence of the consent of the owner of the property of a unitary enterprise to the conclusion of transactions requiring such consent, as well as the commission by such an enterprise of transactions that go beyond the scope of its special legal capacity (even if the transaction is approved by the owner of the property of the enterprise) may cause the said transactions to be recognized as invalid.

The procedure for approving a major transaction for state and municipal institutions

A major transaction can be made by a budgetary institution only with the prior consent of the relevant body exercising the functions and powers of the founder of such an institution. The functions and powers of the founders in relation to state institutions created by the Russian Federation or a constituent entity of the Russian Federation, municipal institutions created by a municipality, unless otherwise established by federal laws, regulatory legal acts of the President of the Russian Federation or the Government of the Russian Federation, are carried out by the authorized federal executive body. authorities, an executive body of a constituent entity of the Russian Federation, a local self-government body.

Decree of the Government of the Russian Federation of July 26, 2010 No. 537 “On the procedure for the implementation by federal executive bodies of the functions and powers of the founder of a federal state institution”, federal executive bodies exercising the functions and powers of the founder of a federal budgetary institution, no later than December 1, 2010, were instructed to develop and to approve the procedure for the preliminary approval of the commission by the federal budgetary institution of major transactions that meet the criteria established by paragraph 13 of Art. 9.2 of Law No. 7-FZ.

The procedure for preliminary approval of major transactions by a federal budgetary institution can be considered using the example of institutions subordinate to the Ministry of Finance of Russia. In accordance with the order of the Ministry of Finance of Russia dated September 29, 2010 No. 111n “On Approval of the Procedure for Preliminary Approval of Major Transactions by a Federal Budgetary Institution Subordinated to the Ministry of Finance of the Russian Federation”, a budgetary institution that intends to act as one of the parties in a transaction recognized as a major , in order to make a decision on preliminary approval, must submit to the Commission on the implementation by the Ministry of Finance of Russia of the functions and powers of the founder in relation to federal budgetary institutions subordinate to the Ministry of Finance of Russia, the following documents:

An appeal from the head of a budgetary institution for preliminary approval of the conclusion of a major transaction, indicating the subject of such a transaction, counterparties, terms, price and other essential conditions, containing a financial and economic justification for the expediency of concluding a major transaction (an inventory of documents to be sent is attached to the appeal);
. copies of budget reporting forms for the last financial year and as of the last reporting date, certified by the head and chief accountant of a budgetary institution;
. a draft of the relevant agreement containing the terms of a major transaction;
. a report prepared in accordance with the legislation of the Russian Federation on valuation activities on the market value of the property with which it is supposed to make a major transaction, made no earlier than 3 months before the submission of such a report;
. information on accounts payable and receivable, indicating the names of creditors, debtors, the amount of debt and the dates of its occurrence, highlighting wage arrears, debt to the budget and extra-budgetary funds and indicating the status of this debt (current or overdue).

The decision on the preliminary approval of a major transaction or on a reasoned refusal to do so is made by the said Commission within 30 calendar days from the date of receipt of the above documents and is formalized by order of the Russian Ministry of Finance.
An autonomous institution may make a major transaction with the prior approval of the supervisory board of such an institution. The supervisory board is obliged to consider the proposal of the head of the autonomous institution to conclude a major transaction within 15 calendar days from the moment the said proposal is received by the chairman of the supervisory board of the autonomous institution, unless the charter of such an institution provides for a shorter period. The Supervisory Board is formed with no less than 5 and no more than 11 members.

The Supervisory Board includes representatives of the founder of an autonomous institution, representatives of the executive bodies of state power or representatives of local governments entrusted with the management of state or municipal property, as well as representatives of the public, including persons with merits and achievements in the relevant field of activity .

Decisions on the approval of a major transaction are taken by the Supervisory Board of an Autonomous Institution by a two-thirds majority vote of the total number of votes of the members of the Supervisory Board.
A major transaction made in violation of these requirements may be declared invalid at the suit of an autonomous institution or its founder, if it is proved that the other party to the transaction knew or should have known about the lack of approval of the transaction.

Big deal: pros and cons

In conclusion, let us return to the requirements established by Law No. 94-FZ regarding the provision by participants in the placement of an order of a decision on approval or on the conclusion of a major transaction or a copy of such a decision.

The following documents and information should be available to determine if a transaction is a major transaction for a bidder:

Constituent documents of a legal entity;
. information on the value of the company's property, determined on the basis of financial statements for the last reporting period;
. information on the book value of the assets of the company or institution, determined according to its financial statements as of the last reporting date;
. information on the size of the authorized capital of the unitary enterprise;

Of the above documents, by virtue of the requirements of Law No. 94-FZ, participants in placing an order are required to provide only copies of constituent documents.

Moreover, it is not allowed to require the participant in placing an order to provide other documents and information, with the exception of those listed in paragraph 4 of Art. 25, paragraph 3 of Art. 35, paragraph 7 of Art. 41.8 of Law No. 94-FZ. The law does not oblige the participant in the placement of an order to document whether the transaction for the supply of goods (performance of work, provision of services) that are the subject of the contract, or the deposit of funds as security for an application for participation in the auction, will be a major contract.

To solve this problem allows the established Art. 41.3. Law No. 94-FZ, the procedure for participants to place an order for accreditation on an electronic site. By virtue of paragraph 8 of part 2 of Art. 41.3 of Law No. 94-FZ, in order to obtain accreditation on the ETP, the order placement participant provides, as part of documents and information, a decision on approval or conclusion of transactions based on the results of open auctions in electronic form on behalf of the order placement participant - a legal entity, indicating information on the maximum amount of one such transaction . After the participant in placing an order is accredited on the electronic trading platform, the ETP operator enters the specified documents and information (including the above decision on approval or on the conclusion of transactions based on the results of open auctions in electronic form on behalf of the participant in the placement of the order - a legal entity, indicating information about the maximum amount for one such transaction) to the register of accredited order placement participants.

Thus, the solution to the issue of providing information about a major transaction by a participant in an open auction in electronic form lies in the obligation of the participant in placing an order to indicate the maximum amount of the transaction, the excess of which will entail for him the obligation to provide a decision on approval or on the conclusion of a major transaction (a copy of such a decision).

In other cases, the customer should proceed from the fact that if the participant in the order placement did not submit a decision on the conclusion of a major transaction as part of the application, then it is understood that the transaction concluded by him following the results of placing the order is not a major one for such a participant. Thus, Law No. 94-FZ proposes to proceed from the general principle of civil law, enshrined in paragraph 3 of Art. 10 of the Civil Code of the Russian Federation, according to which participants in civil transactions exercise their rights acting reasonably and in good faith.

At the same time, since the requirement to provide a decision on the approval of a major transaction itself is established by Law No. 94-FZ, the customer has the right to recommend that participants in the placement of an order include in the bid for participation in the auction a decision or other document confirming that the transactions being made are not big for them.

1. See, for example, the decisions of the Federal Antimonopoly Service of the Moscow District dated September 12, 2006 No. KG-A41 / 7615-06 in case No. A41-K1-23537 / 05, the Federal Antimonopoly Service of the North-Western District of October 17, 2007 in case No. A56-51025 / 2006.

2. See, for example, the decision of the Chelyabinsk OFAS Russia for the Chelyabinsk region dated April 27, 2009 No. 135-zh / 2009 on illegal actions of the auction commission during an open auction for the repair of the M-51 “Baikal” highway - from Chelyabinsk through Kurgan, OMSK, Novosibirsk, Kemerovo, Krasnoyarsk, Irkutsk, Ulan-Ude to Chita, the decision of the Altai Regional OFAS of Russia dated 05.22.2009 in case No. auction for the supply of consumables for printers.

Urgent registration for preparation for testing for employment in a highly paid job or to transfer to another position.

Big deal for LLC, as for other business entities, requires the approval of the business owners. We will study what are the criteria for classifying transactions as large, as well as how the owners of the company agree to conclude a "major" contract.

Definition (concept) of a major transaction in the Federal Law on OJSC and LLC

What is a major transaction for LLCs and JSCs? Despite the fact that these organizational and legal forms of business have significant differences, the criteria for determining a major transaction with their participation are almost the same.

1. Outside the normal economic activities of the organization.

At the same time, such transactions do not include those that are typical for legal relations entered into by an organization or other firms engaged in similar types of economic activity (provided that such transactions do not lead to the liquidation of the company, a change in its type or a significant change in the scale of the organization).

2. It involves the acquisition, alienation or lease of property or the issuance of a license for the use of intellectual development.

3. It is characterized by the price or book value of property (which is the subject of the transaction) exceeding 25% of the book value of all assets of the company as of December 31 of the year preceding the one in which the transaction was made.

When purchasing more than 30% of PJSC shares in the manner regulated by Chapter XI.1 of Law No. 208-FZ, the buyer is obliged to send a public offer - a proposal to acquire shares to other owners of securities. At the same time, the cost of the transaction includes not only the price of the purchased shares, but also the price of other shares, which the buyer must try to buy back from the current owners.

On our forum you can discuss any question that you have on tax and not only legislation. For example, we figure out how to notify the tax authorities about a controlled transaction.

How can you tell if a deal is a big one?

1. Take the balance sheet for the year preceding the one in which the transaction is concluded and familiarize yourself with the book value of all assets of the company (line 1100).

2. Familiarize yourself with the cost of property purchased (sold or leased) under an agreement with a counterparty.

3. Compare the value of the property under the contract with the carrying amount (which may include other costs associated with acquiring the asset, such as shipping costs).

If the property is purchased by a participant in the transaction, then the purchase price of the property is taken into account in the further calculation; if sold - the largest value when comparing the book value and selling price; if rented out - the book value (clause 2, article 46 of Law No. 14-FZ, clause 1.1 of Article 78 of Law No. 208-FZ).

4. Divide the amount taken into account in paragraph 2 by the amount in paragraph 1.

If the score is greater than 0.25, then the deal is considered a major deal (provided it meets the other criteria discussed above) and will require the approval of the business owners, unless otherwise provided by law.

What is the significance of the fact that a transaction is classified as a major one?

The presence of legal grounds for recognizing a transaction as a major one makes it possible for the owners to actually protect their business from undesirable and uncoordinated actions of the general director. If a transaction that meets the criteria of a major transaction is carried out without the approval of the owners, then they will have a legal opportunity to challenge it.

The conclusion of a major transaction for an LLC or JSC, as a rule, imposes a number of large-scale obligations on the business entity. Most often financial (for example, related to the payment of purchased goods). Acceptance of such obligations without the knowledge of the owners of the company or their proxies is in many cases an extremely undesirable scenario for business.

There may be a corruption component here (when the director negotiates a large purchase from “his” supplier), and the lack of competence of the manager (when the supplier is not “his”, but not the most profitable, which only the owners know about, and the director, due to inexperience, does not suspects it).

Let us now consider in more detail the specifics of conducting large transactions by limited liability companies.

Do I need approval for a major transaction in an LLC?

It is important for the head of a company registered as an LLC, as well as the director of a JSC, to obtain consent to this transaction from certain authorized persons (later in the article we will consider how it can be given).

The corresponding transaction, carried out without approval, can be challenged in court on the basis of the provisions of Art. 173.1 of the Civil Code of the Russian Federation. At the same time, persons owning at least 1% of the authorized capital of an LLC can challenge it (clause 4, article 46 of Law 14-FZ). Approval of a major transaction for an LLC can also be obtained upon its completion. The main thing is that the consent of the authorized persons is obtained before the case is considered in court (clause 5, article 46 of Law 14-FZ).

At the same time, the legislation provides for the conduct of transactions that fall under the criteria of large ones, without obtaining the consent of any persons. For example, if an LLC has a single founder, who is also the general director.

The acquisition by the sole founder of the company of the powers of the general director has nuances - you can study them in the article "Sample employment contract with the general director of LLC" .

However, there are still a number of reasons to use the opportunity to disapprove a major deal. Let us study the specifics of “large” contracts concluded freely in more detail.

Is a deal with one founder considered non-approval?

Yes, it is, as we noted above, so. In addition, a large - in accordance with the above criteria - a transaction involving an LLC does not require approval if (clause 7, article 46 of Law 14-FZ):

1. It is carried out as part of the reorganization of an LLC (as an option - under an agreement on a merger with another company or accession to it).

You can learn more about the specifics of the reorganization of an LLC in the article. "Step-by-step instructions for the reorganization of an LLC by merger" .

2. Assumes the receipt by the company of a share in its authorized capital in cases provided for by law 14-FZ.

3. It is carried out by the company by virtue of law at a price established in regulatory enactments.

4. LLC buys PAO securities as part of a mandatory offer.

5. The conclusion of a major transaction for an LLC is carried out according to the rules determined by the preliminary agreement, and also on the condition that this agreement:

• contains information certifying the fact of approval of the transaction;
• is concluded with the approval of the persons giving consent to the transaction.

Let us now study how to ensure the legitimacy of a major transaction, which in turn requires consent to its implementation.

What is the procedure for approval of a major LLC transaction?

Concludes a major deal for LLC, as we noted above, its CEO. At the time of its completion (or, if it happened, at the time the court considered the claim for the recognition of the transaction as invalid), he should have in his hands - as a condition for recognizing the "major" contract as legal - a decision to approve the conclusion of the contract:

1. Published by authorized persons - participants in the general meeting of LLC owners. If the firm has a board of directors, then issued by it on the condition that:

• the board of directors has the relevant competences under the charter of the LLC;
• the value of the property within the framework of the transaction is 25-50% of the value of the property of the LLC.

• on the persons acting as parties to the transaction;
• beneficiaries;
• price, subject of the contract;
• on other material terms of the transaction or the mechanism for determining them.

• on the upper or lower limit of the value of the sale of property or the procedure for their establishment;
• permission to conclude a number of similar agreements;
• alternative terms of the contract, the conclusion of which requires approval;
• approval of the transaction subject to the conclusion of several contracts at the same time.

When this period is not specified, the decision is considered valid for 1 year from the date of its adoption, unless otherwise predetermined by the specifics of the approved major transaction or due to the circumstances of the decision.

Results

A major transaction is one whose value exceeds 25% of the company's total assets. At the same time, the terms of the contract must meet the criteria established by Art. 46 of the Law "On LLC" dated February 8, 1998 No. 14-FZ and Art. 78 of the Law "On JSC" dated December 26, 1995 No. 208 (for LLC and JSC, respectively).

You can learn more about the features of legislative regulation of legal relations with the participation of an LLC in the articles:

• “What is the procedure for the withdrawal of participants from the LLC?” ;
• "Registration of the transfer of a share in an LLC to another participant" .

In 2017, long-predicted changes to the part of the legislation that relates to the definition of large transactions came into force. The changes also touched upon the issues of qualifying signs, the approval procedure, and made adjustments to the process of issuing a decision on the permission of such transactions by the governing state bodies. Now a transaction is qualified as a major one only if it goes beyond the normal business activities of the company.

The concept of a major transaction for legal entities

Despite a number of common qualifying features, the concept of a major transaction varies depending on the form of the legal entity that intends to make it. This type is carried out by the following organizations:

• Business companies (LLC, JSC).
• unitary enterprises.
• State and municipal institutions.

As far as LLC is concerned, Art. 46 of the Federal Law No. 14 of 08.02.1998 for them it represents a major transaction, as one in which property is acquired or alienated for an amount exceeding 25% of the value of the property of the company itself. It is determined on the basis of accounting reports for the period preceding the date of the transaction. The exceptions are cases when the Charter of the LLC sets a higher amount for a major transaction. If such is committed in the course of ordinary economic activity, then it cannot automatically be considered large.

Thus, a major transaction for an LLC always meets the following criteria:

• With it, the property of the LLC is always acquired or alienated.
• It can be not only single, but also represent a chain of transactions interconnected.
• The charter of the company may make adjustments to the list of possible transactions for this particular organization.

A major transaction for a JSC is regulated by Federal Law No. 208 of 26.12. 1995 He determines that in this case, such a transaction can be considered as a transaction in which the company's property is acquired or alienated in the amount of at least 25% of the total book value of assets. It is calculated from the accounting reports for the last reporting period. Such transactions may include loans, credits, etc.

Transactions of unitary enterprises are determined by Federal Law No. 161 dated 14.11. 2002 In this case, a major transaction is one in which the property of an organization is acquired or alienated for an amount exceeding 10% of its authorized capital or 50,000 times the minimum wage in Russia. The value of the property is calculated on the basis of accounting reports

Federal Law No. 7 of 12.01. 1996 defines the concept of a major transaction for budgetary organizations. It is recognized as such provided that it operates with cash or property in excess of 10% of the book value of the assets of this institution. They are determined on the basis of accounting reports for the last reporting decade. Exceptions will be situations in which the Charter of the organization allows you to recognize a major transaction with smaller amounts.

Major transactions of autonomous institutions are considered by Federal Law No. 174 of 03.11. 2006 Such they are considered provided that in the course of the transaction they operate with amounts of money or property in an amount equal to or greater than 10% of the book value of the assets of this institution. An exception is the recognition by the Charter of an autonomous organization of the possibility to consider a major transaction of a smaller size.

What is considered a major transaction for an LLC

When determining the size of a transaction for an LLC, they are currently guided by two main criteria:

• First, they compare the amount of the transaction with the value of the assets of the institution.
• Secondly, determine whether it goes beyond the standard business activities of the organization.

When considering the amount of property being alienated or acquired, it should be understood that these are not only immovable objects, equipment, etc., but also products of intellectual labor, shares, cash, etc.

The following financial transactions can act as transactions in this aspect:

• An agreement under which property is alienated or acquired (credit, loan, acquisition of shares, etc.).
• Agreements under which property is withdrawn from the assets of the organization for a long time (transferred to another institution under a lease agreement, etc.).

Read also: Changing the legal address of an LLC - step by step instructions in 2019

The charter of the company may also give an individual definition of a major transaction for a particular LLC. Rather, starting from 2017, these can only be the principles of extending them to other transactions.

The concluded contract is evaluated according to two main criteria:

• Organizations that acquire and alienate property.
• Actions that are supposed to be performed with this property.

And the main thing here will be a quantitative criterion, i.e. the ratio of the value of the transaction and the amount of assets.

Company operations that fall into a high price range are necessarily subject to analysis. If they are carried out by a single transaction, then it is easier to analyze them. Difficulties arise when they are a chain of interrelated transactions. In this situation, the analysis procedure is simplified if the participants are the same.

The following types of LLC transactions will not be recognized as major ones:

• In cases where they are carried out as part of the normal business activities of the company.
• If such operations involve the placement of ordinary shares of the enterprise or issue-grade securities.

• donation procedure.
• Credit loans.
• Purchase - sale of goods.
• Property exchange operations.

If the transaction is of a large nature, then in addition to its approval, consent to the conclusion of additional agreements, preliminary agreements and labor contracts will also be required.

A number of small transactions can be recognized as one major transaction if they meet the following requirements:

• They have a homogeneous character.
• They were committed at the same time or in a short time period.
• They involve the same objects and subjects.
• It is possible to trace a single goal in them.

The Charter of an LLC should clearly spell out the mechanism for conducting a major transaction:

• The need to obtain the consent of all the founders of the company.
• With the consent of the Board of Directors.
• No need for additional approvals.

If such information was not included in the Charter, then when implementing the contract, one should be guided by Federal Law No. 14, which establishes that approval is the right of the general meeting of members of the company. It is also possible to fix a higher price ceiling for the transaction in the Charter.

Calculation of a major transaction for an LLC

To calculate the fineness, the following mechanism of action is provided:

• At the first stage, the total cost of the transaction is calculated.
• The amount received is compared with the value of the LLC's property. To do this, take the data of accounting reports for the last reporting period. In this case, all assets are taken into account.

Since 2017, a large amount is considered to be an amount that equals or exceeds 25% of the amount indicated in line 700 of the balance sheet.

Before entering into an agreement, the following checks must be made:

• Calculate the value of assets. Based on the most recent financial statement.
• Compare the amount of the contract with the value of the company's assets.
• Determine the causal relationship with the property.
• If the asset already has contracts with a similar meaning, then you should establish a relationship with them.
• Correlate the transaction being concluded with the normal business activities of the company.

Balance calculation

To carry out the book value of assets, you need to take the amount of the last balance sheet. At the same time, it should be taken into account that debts are not taken into account in such calculations, i.e. take the total assets, but take into account the residual value.

For all such calculations, only property that is officially the property of a legal entity is considered. Other objects or leased property are not taken into account.

If the company has one founder

Federal Law No. 14 establishes that transactions concluded by an LLC, where only one person acts as a founder, cannot be considered large. To confirm this fact, it is enough to submit an extract from the Unified State Register of Legal Entities. If over time the composition of the society expands, then in order to avoid unnecessary claims, it is better to secure the approval of the contract by all participants, even if it is made by prior agreement concluded with a different composition.

Size information

Judicial contestation of transactions is not uncommon. In such situations, when considering the case, the judge is obliged to consider all the primary accounting documents of the company and appoint the necessary expertise. For this purpose, a certificate of the size of the transaction is requested from the accounting department of the company.

Every chief accountant should know the procedure for compiling it. The document must be certified by the signatures of the head of the LLC and the chief accountant. After receiving a certificate, as a rule, they provide it to Rosreestr in order to record the fact of the transfer of property and rights to it.