Donating a share in an LLC in 2021: step-by-step instructions

Situations in which one of the co-owners of a business leaves are common.
As a rule, such a person puts his share up for auction or offers his partners to purchase it. However, if there is a desire, then your part can be formalized as a gift transaction. Donating a share in an LLC to a third party implies the transfer of rights to a person related to the donor by family ties or to another person. It is noteworthy that a deed of gift for a third party may run counter to the interests of the co-owners of the company. If you do not take care of protecting interests or carry out the procedure incorrectly, you will not be able to give away the share. Read about how to draw up a deed of gift for a share (including) and minimize the risks of cancellation in this review.

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What is important to know

A limited liability company is one of the forms of business organization. A group of people decided to combine their material and spiritual assets in order to make a profit.

But if at the initial stage everyone may be satisfied with everything, then later disagreements may arise between the participants and they will want to leave the LLC. Often such a person offers to buy out the share due to him to the other co-owners of the company. But at the same time, a third party can acquire its share. He can dispose of his part, also by gifting it, not only to a partner, but also to a relative, for example.

This may not suit other co-owners of the company. Therefore, if they are prudent people, they will write down in the terms of the agreement on the basis of which the company was formed a special condition - the possibility of transferring a share to an outsider only with the consent of all owners of the common business. When donating a share in an LLC, there may be other important circumstances and nuances established by law.

Irrevocable offer

An irrevocable offer can be included in the text of the option (this must be expressly stated in the option) or drawn up as a separate document. An irrevocable offer in pursuance of an option is sent by one party to the option (the offeror) to the other party to the option (the acceptor) and gives the latter the right to conclude an agreement in the manner, within the terms and on the conditions provided for by the option. Such an offer must contain the essential terms of the contract, which will be concluded through its acceptance (clause 1 of Article 435 of the Civil Code of the Russian Federation). The text of the subsequent (main) agreement may be included in the content of the irrevocable offer, including in the form of an appendix.

An irrevocable offer, drawn up as a separate document, is signed by the offeror and certified by a notary. From the moment the irrevocable offer is certified, the offeror is the person who entered into the main contract. At the same time, the certification of an irrevocable offer by a notary in itself does not constitute certification of an agreement entailing the transfer of the right to a share in the authorized capital of a limited liability company.

A copy of the irrevocable offer, remaining in the notary's file, guarantees the parties, in the event of loss of the offeror's and acceptor's copies, to receive a duplicate of it.

Acceptance of an irrevocable offer

Acceptance of an irrevocable offer in pursuance of an option in relation to shares in the authorized capital of limited liability companies must be notarized. Such an irrevocable offer is considered accepted and, therefore, the contract provided for by the option is considered concluded from the moment the acceptance is notarized.

Acceptance can be made and certified either in the form of a separate document or in the form of an inscription on an option or irrevocable offer (if the parties have not provided for a certain procedure in the agreement on granting the option).

The acceptor is obliged to submit, at the request of the notary, in the original, his copy of the option to conclude the contract and an original copy of the certified irrevocable offer (if the offer is not included in the text of the option) received from the offeror, as well as all other documents (documents on ownership of the share by the offeror, documents confirming payment shares, consent of the offeror's spouse to enter into an agreement, other approvals of the transaction, waivers of the right of first refusal, consent to the transaction, if necessary, a copy of the company's charter and other documents) transferred to him by the offeror. Additionally, evidence is provided confirming the occurrence of the suspensive or non-occurrence of the suspensive condition provided for by the option, on which the possibility of acceptance depends.

What must a gift agreement contain?

1. Name, date of preparation, registration number and other details inherent in such a document.
2. Information about who gives and who receives a share in the LLC as a gift.
3. Subject of the agreement. What is donated and in what amounts.
4. A note indicating the consent of other members of the company to such actions, if required in accordance with its charter.
5. Rights and obligations of the donor and recipient.
6. Other conditions that may be significant in a particular case.

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Also a mandatory attribute of such an agreement are the signatures of all persons specified in it, as well as notary marks. If it consists of more than one sheet, then the contract must be stitched.

Fact

A sample of filling out a gift agreement is available.

Application for withdrawal of a participant from the company

In accordance with Article 26 of the LLC Law, a company participant has the right to leave the company by alienating a share to the company, regardless of the consent of its other participants or the company, if this is provided for by the company’s charter. The application of a company participant to withdraw from the company must be notarized.

When contacting a notary to certify a participant’s application to leave the LLC, you must keep in mind that it is impossible for a single participant to leave the LLC. In addition, the Charter of the Company itself may limit and prohibit the withdrawal of participants from the LLC.

In this regard, to certify such a statement, it is necessary to provide the notary with the Charter of the Company, a certified copy of which any participant can obtain from the tax office.

If you need a procedure for registering the purchase and sale of an LLC (share in an LLC) with one or more founders through a notary, or a notarial agreement for the donation of shares in an LLC, please contact our notary office by phone or the form on the website.

Documents for donating a share in an LLC

Donation of a share in the authorized capital of an LLC requires the presence of the following documents:

1. Directly the contract itself (in triplicate).
2. Written consent to the free transfer of a share to a specific person from all other members of the company.
3. If the donor is married, the written consent of his spouse will be required since this capital is considered community property.
4. The company's charter, which describes the procedure for performing such actions, does not prohibit the alienation of a part.
5. OGRN and TIN certificates.
6. An extract from the Unified State Register of Legal Entities from the date of issue of which no more than 30 days have passed.
7. A document confirming that the owner has made full payment in the company's charter for the share transferred by him to another person.
8. TIN and passports of the parties to the agreement.
9. Application in the prescribed form (р14001).

This is also important to know:
Land donation agreement

Any party to the transaction can refuse it until the notary puts his signature on the contract. After this, all rights to the property pass to the recipient.

Important

If the parties to the transaction are not relatives, such a transaction is subject to tax.

Documents for individuals

If the party to the transaction is an individual (citizen), the notary must provide the notarized consent of the spouse to conclude the transaction (Article 35 of the RF IC), with the exception of the transaction for the alienation of a share acquired by a member of the company on the basis of gratuitous transactions, before registering a marriage or in the order of inheritance , as well as transactions for the alienation of a share that belongs to a company participant in the regime of separate ownership on the basis of a marriage contract (Article 40 of the RF IC) or on the basis of an agreement on the division of property between spouses (Art. 39 of the RF IC).

If a participant in the transaction (citizen) alienating his share acquired it during a period when he did not have a registered marriage, it is necessary to provide a corresponding application, the authenticity of the signature on which is certified by a notary. If the individual acquiring the share does not have a registered marriage, a statement from that person stating that he does not have a registered marriage is also provided.

Features of donating a share in an LLC

In certain situations, you cannot donate your share of ownership in an LLC.

This is particularly true if:

• the share in the LLC belongs to the owner with the rights of guardianship;
• the donor is a representative of government agencies, the recipient works in the field of medicine, education or providing social services to the population.
• the recipient is a government employee (in cases where such a transaction contains clear signs of corruption). An official can receive a gift, the amount of which does not exceed 3,000 rubles, otherwise it must be transferred to the state and counted as budget revenue.

On consent to donate shares of other members of a limited liability company

If the charter of the LLC does not stipulate mandatory approval of the alienation of a share by one of the participants, then Art. 21 clause 2 of Federal Law No. 14 of the Russian Federation. In accordance with it, if this norm is not in the constituent document, then the donation can be made without the consent of the other co-owners.

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When redistributing shares, one of the company's participants may gain increased influence on its activities, and therefore, in order to protect its other members, it is necessary to include in the charter a mandatory condition on the approval of the donation of a part in the common capital.

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Gifting an LLC interest to a third party is often the worst option for the LLC. Therefore, the charter may prohibit its transfer to third parties. Moreover, in order not to infringe on the rights of the owner, he can still transfer it to a third party through the conclusion of a gift agreement, if other members of the company refused the offer to buy it.

The charter may not contain such items as the timing and procedure for notifying LLC members of the intention of one of them to donate their share to someone else. In this case, you should be guided by clause 10 of Art. 21 of the law on limited liability companies.

A written notice of intent is submitted to the general director of the LLC. It can be given in person with registration of receipt on a second copy or by mail. The letter is sent to the company's legal address with acknowledgment of receipt. An inventory is included in it. From the moment you register or send a notice, all members of the public are considered to be aware of your intentions. You can give consent or refuse the donation within 30 days from the date of receipt of the notification. If the LLC member does not provide any response within 30 days, he will be deemed to have given consent.

If co-owners have a priority right of redemption, within the same period of time they must inform about their intentions to exercise it.

In accordance with paragraph 2 of Article 576, the opinion of one of the spouses is also important in this case if there is no marriage agreement in which property rights are clearly demarcated.

Important

A transaction to donate a share in an LLC must be notarized.

The cost of notary services depends on the value of the share:

Transfer of shares free of charge - how to do it?

Question from Clerk.Ru reader Tatyana (Tuapse)

The founders of the LLC are 2 brothers. They want to cede their shares in the authorized capital free of charge to the son of one of them. How to do it?

You can assign (transfer) a share free of charge under a gift agreement. You can read more about this in my consultation dated January 12, 2010 “Is it possible to transfer a share in the authorized capital to a third party free of charge?”

You can do this as follows. Currently, in accordance with Federal Law No. 14-FZ “On Limited Liability Companies” (hereinafter referred to as the Federal Law on LLC), as amended by Federal Laws 312-FZ, as well as 205-FZ, a transaction for the transfer of a share must be notarized ( Clause 11, Article 21 of the Federal Law on LLC). In this case, failure to comply with the notarial form of the transaction entails its invalidity. The transaction is considered completed from the moment of its notarization.

To notarize a transaction, current LLC participants need documents confirming that they are indeed participants in the specified LLC (Clause 13, Article 21 of the Federal Law on LLC):

• The agreement under which the share was previously acquired (purchase and sale agreement or memorandum of association, or other).
• An extract from the Unified State Register of Legal Entities, drawn up no earlier than thirty days before the day of contacting a notary for notarization of the transaction.
• In addition, the notary requests the notarized consent of the spouses (if any) of the parties to the transaction - two brothers and the son of one of them.

The notary will also need a document confirming the fact of payment for the shares that are the subject of the transaction.
After the notarization of the transaction, the notary who certified the transaction is obliged, within three days from the date of such certification, to submit to the registering authority an application for amendments to the unified state register of legal entities in the form P14001, recommended by the Federal Tax Service of the Russian Federation, signed by the participants of the company alienating the shares (clause 14 Article 21 of the Federal Law on LLC). The specified application is signed by the LLC participants donating their shares in the presence of a notary, who certifies the authenticity of the signatures of the LLC participants made in his presence.

There is no state fee for making changes to the unified state register of legal entities on this basis. An application for amendments to the Unified State Register of Legal Entities is submitted by a notary to the registration authority either in person or by mail. When concluding a transaction, you also need to remember about the correct calculation of personal income tax - paragraphs. 18th century 217 Tax Code of the Russian Federation.

The notary may request other documents for the transaction; the final list must be clarified directly with the notary who will certify the transaction. In response to our request, the notary sent the following list of documents:

Yesterday I received a list of documents that a notary requires for the sale of a share in an LLC. I think it will be useful to someone. To prepare the contract, copies are provided; when completing the transaction, originals are provided.

1.Certificate of state registration (OGRN). 2.Certificate of tax registration (TIN). 3. Charter with all current amendments with a mark from the Federal Tax Service. 4. Certificates of registration of changes (if any). 5. Constituent agreement with a mark from the Federal Tax Service (if the LLC was created by several persons and registered before 07/01/2009).

6. Report of an accredited appraiser on the assessment of the MARKET value of the alienated share or part of the share. 7. An extract from the Unified State Register of Legal Entities drawn up no earlier than 30 days before the expected date of certification of the transaction. 8. An extract from the list of participants of the Company, indicating the full names (names) of all participants, data on the size of the shares belonging to the participants and information on payment for these shares. 9. Decisions (minutes, orders) on the appointment of a manager, chief accountant, board of directors, etc. (if appointed and provided for by the charter). 10. A notarized agreement, on the basis of which a share or part of a share was previously acquired by the relevant person, or a duplicate of a notarized agreement and an extract from the Unified State Register of Legal Entities, drawn up no earlier than 10 days before the expected date of certification of the transaction.

11. Other documents confirming the authority of the person alienating the share to dispose of such a share or part of the share: · A document on the transfer of a share or part of a share by way of succession or a document expressing the content of a transaction completed in simple written form, · The decision of the sole founder (participant) on creation of a Company when a company is created by one person. ·A notarized copy of the agreement on the establishment of the company - in the event that a share or part of a share in the authorized capital of the company is alienated by the founder of the Company, founded by several persons.

12. Documents confirming payment upon acquisition by the Seller of the alienated share: 12.1. Acquisition of a share upon creation of the Company: · Certificate from the bank confirming payment of the authorized capital · Certificate from the company signed by the General. Director and Chief Accountant that the authorized capital has been paid in full. 12.2.Acquisition of a share under paid transactions: ·Documents confirming the fulfillment of financial obligations under the acquisition agreement.

13. If the participant alienating the share is an individual: 13.1. If he was married at the time of acquisition of the share: · Notarized consent of the spouse to alienate the share or a marriage contract with provisions confirming that the spouse does not have ownership rights to the alienated share . 13.2. If you were not married at the time of purchasing the share: · A notarized statement from the seller stating that at the time of purchasing the share you were not married

14. If the acquirer of the share is an individual: 14.1. If married at the time of concluding the agreement for the acquisition of the share: · Notarized consent of the spouse to acquire the share (if the transaction is paid) or a marriage contract with provisions confirming that the consent of the spouse is not required to conclude such a transaction. 14.2. If you are not married at the time of concluding an agreement to purchase a share: · A notarized statement from the acquirer stating that at the time of purchasing the share you are not married (for paid transactions). (This document can be prepared by a notary.)

14.3. If the agreement is signed not personally by the future owner of the share, but by an authorized representative: · A notarized power of attorney with the right to sign such an agreement. 15. If the party to the transaction is a foreign citizen: · Documents confirming his legal stay on the territory of the Russian Federation (visa, registration, residence permit, etc.) · Translation of the passport into Russian with a notarized signature of the translator who performed the translation. ·If a citizen does not know Russian (does not speak and/or does not read), then it is necessary to invite a translator to the transaction who can interpret the agreement on the alienation of a share from Russian into a language understandable to a foreigner.

16.If the party to the transaction is a legal entity: ·Certificate of State Registration (OGRN) ·Certificate of Tax Registration (TIN) ·Charter with all current amendments marked by the Federal Tax Service ·Certificate of registration of amendments (if any) ·Memorandum of Association with with a mark from the Federal Tax Service (if the LLC was created by several persons and registered before 07/01/2009) · Extract from the Unified State Register of Legal Entities, drawn up no earlier than 30 days before the expected date of certification of the transaction · Decisions (minutes, orders) on the appointment of a manager, chief accountant, council directors, etc. (if appointed and provided for by the charter)

16.1. If the transaction is not a major transaction for the Company - the party to the transaction: · A letter signed by the director and the Chief Accountant of the company stating that this transaction is not a major transaction for the Company. 16.2. If the transaction is a major transaction for the Company - a party to the transaction: · Protocol on the approval of a major transaction by the authorized body of the company 16.3. If the transaction is not an interested party transaction for the Company - a party to the transaction: · A letter signed by the manager stating that this transaction is not an interested party transaction for the Company. 16.4. If the transaction is an interested party transaction for the Company - the party to the transaction: · Protocol on the approval of the interested party transaction by the authorized body of the Company.

16.5. A letter signed by the head and the Chief Accountant of the Companies stating that this transaction does not require the consent of the Federal Antimonopoly Service and other bodies in accordance with the current legislation or, if such consent is required, documents confirming the agreement with the authorized bodies. 16.6. If the agreement is signed not personally by the future owner of the share, but by an authorized representative: · A notarized power of attorney with the right to sign such an agreement.

16.7. If the party to the transaction is a foreign legal entity: · Documents confirming the legal capacity of the legal entity and the powers of the person signing the agreement (charter, Certificates of registration, directors, address, extract from the trade register, decision to appoint a manager, power of attorney and etc., depending on the country of incorporation). Documents must be legalized, translated into Russian, and the translator’s signature must be notarized.

17. If there are two or more participants in the Company whose share in the authorized capital is being alienated:

17.1. Documents confirming compliance with the pre-emptive right to purchase shares by other members of the Company: · A letter signed by the head of the Company with information about the notification period and the results of the possibility of using the pre-emptive right (who received what when and who responded to what within what time frame or did not respond) with an attachment a copy of the relevant documents (notifications, offers, acceptances, statements of refusal, etc.)

It is very easy to receive personal advice on registration and re-registration of companies online - you need to fill out a special form. Every day, several of the most interesting questions will be selected, the answers to which you can read in specialist consultations.

Registration of a share for another owner

Any redistribution of shares, the emergence of new co-owners must be recorded in the charter. Such changes are registered in the Unified State Register of Legal Entities. Information about them is transmitted to the Federal Tax Service at the place of registration of the company within three days by the notary certifying the transaction. After receiving the data, the registrar makes changes to the register and generates a new extract.

It will contain information about:

• the new owner of the share;
• full composition of LLC participants;
• the size of the shares of each of them and their nominal value.

Scheme for registering the fact of donating a share of an LLC

1. The notary certifies the donation agreement and the application.
2. Sends data on form P14001 to the Federal Tax Service.
3. Issues a letter to the donor with an inspector's note confirming its receipt. You can receive completed documents by proxy.
4. LLC documents are sent to the address specified by the donor or received by him personally (or by proxy).
5. After this, a copy of the donation agreement, a certificate of amendments to the register and a document confirming the entry in the Unified State Register of Legal Entities are transferred to the general director of the company.

Taxes

Close relatives (parents, children, spouses, siblings, etc.) are exempt from paying taxes when donating shares in an LLC. At the same time, the donor does not pay taxes even when he transfers a part in the authorized capital of the LLC to an outsider, because he does not receive any benefit.

If the recipients are not close relatives of the donor, then they must pay to the budget 13% personal income tax on the market (not nominal) value of the share in the LLC that was given to them as a gift. Its calculation is made on the basis of accounting data on the company’s net assets, in proportion to the size of the part owned by the donor. The market value can also be calculated by an independent appraiser.

If a gift transaction is concluded by legal entities, then both parties pay taxes. The donor charges VAT in accordance with the Tax Code of the Russian Federation (Article 146, Article 154, paragraph 2), and income tax on the recipient (Article 250, paragraph 8). The calculation is based on the market value of the share in the LLC.

Features of taxation

As a general rule, the donor has no obligations to the budget. Exceptions are transactions in which the property right is transferred by the corporation to the OSN. In such situations, a gratuitous transaction is recognized as subject to VAT (Articles 146 and 154 of the Tax Code of the Russian Federation). When concluding a contract, the donor is required to calculate value added tax. In this case, no profit is generated.

If property rights are transferred to an individual, the latter will need to calculate personal income tax. The taxable base will be the actual value of the share (clarification of the Ministry of Finance of Russia No. 03-04-07/61655 dated 12/02/14). Transactions listed in clause 18.1 of Art. are exempt from personal income tax. 217 Tax Code of the Russian Federation. These include gifts from close relatives and family members.

The tax rate depends on the status of the new owner. Residents of the Russian Federation pay 13%, non-residents – 30%. The differentiation is established by Art. 224 Tax Code of the Russian Federation. A new member of the company is required to submit a 3-NDFL declaration to the inspectorate at the place of residence.

If the donation of shares in the capital of an LLC is made in favor of an organization, the applicable tax regime becomes important.

Thus, donating shares in the capital of a company is not prohibited by law. Restrictions may be prescribed by the founders themselves in the charter. The transaction is always executed in notarial form. It will not be possible to do without the certification procedure in 2021. The final stage is the registration of the transfer of rights in the state register. Information about the new participant is entered into the Unified State Register of Legal Entities by a notary.