What are the agreements between affiliated legal entities? Transactions of interdependent and affiliated parties: price control. Interested party transactions

Affiliated persons are participants in civil transactions who have a legal or factual relationship with each other, which allows one of them to influence the decisions of the other.

This term refers mainly to corporate law and securities market regulation, although its definition first appeared in antitrust legislation. Today, competition support legislation operates more on another similar concept – a group of persons. Along with this, in tax law there is a term “interdependence”, similar to the concept of affiliation, which is also used to define entities capable of influencing each other’s decisions, but only for the purposes of tax legislation.

Etymologically, the concept of an affiliate stems from the English verb affiliate, meaning “to connect, join.”

Affiliation can arise among any participants in business activities - both legal entities and individuals.

Affiliates of legal business corporations

The concept of affiliated persons can be found in the Civil Code of the Russian Federation and special laws on commercial organizations of certain forms.

These individuals for business corporations include:

Individuals performing the functions of managers in a commercial corporation, namely, constituting a board of directors, working in a collegial executive body or solely performing the functions of a director;

LLC participants with more than 20% of participation shares, and shareholders owning more than 20% of voting shares in the joint stock company in question;

For-profit corporations in which the entity in question has more than 20% of the voting stock or ownership interest;

Legal entities and individuals who form a single group according to the rules of antimonopoly legislation.

The concept of a group of persons is worth dwelling on separately. This concept came into antimonopoly legislation to replace the concept of affiliates and revealed possible connections in more detail. A group of persons is formed by economic entities that have full control over other members of this group. They have the right to give binding instructions to another legal entity, have at their disposal more than 50% of the participation shares or shares, etc.

Interdependent entities of an individual

The concept of affiliation also applies to individuals if they are engaged in entrepreneurial activities.

The list of interdependent persons for an entrepreneur almost completely coincides with the members of the group of persons in which he is a member, but has one addition. Affiliation is also recognized for a commercial corporation in which the entrepreneur in question has more than 20% of the shares or voting shares.

The legislator includes among the interdependent persons of an individual not only enterprises that form one group with him, on the activities of which he is able to exert sole influence, but also close relatives:

Husband or wife;

Parents or adoptive parents;

Native and adopted children;

Brothers and sisters - both full-blooded and half-brothers.

The group of persons that the individual belongs to automatically includes enterprises that are associated with the listed relatives.

Liability of affiliates

The liability of interdependent persons has not yet been sufficiently developed in legislative acts. Only in relation to a joint-stock company is there an obligation for an affiliate to report its involvement in the group and liability to a commercial corporation for failure to comply with this obligation. In this case, liability arises only in cases where the company is able to prove that failure to provide information caused it property damage. The interests of third parties affected by the lack of information about affiliation remain completely unprotected.

For an LLC, the legislator does not even establish the obligation of a person to report his affiliation, which already excludes the possibility of holding him accountable.

As a rule, the commercial corporation itself has to answer for untimely or incomplete disclosure of information about related parties, even if this omission was not made through its fault.

The legal doctrine notes the insufficiency of legal regulation of the institution of liability of interdependent persons. Amendments to legislative acts are required so that the responsibility of such persons becomes an effective mechanism that guards all persons involved in business activities.

Affiliate Disclosure

The obligation to disclose information about affiliates is enshrined in the laws on commercial corporations of both the most popular forms: joint stock companies and LLCs. Joint-stock companies have an obligation to keep lists of such persons.

For different purposes, different government bodies have established different procedures for disclosing information about affiliated persons. There is a concept of a related party in financial statements, and entrepreneurs are required to submit information about related parties based on an order of the Ministry of Finance. Certain requirements for the disclosure of information about affiliated persons stem from legal acts addressed to issuers of securities. A special provision on the procedure for informing about affiliated persons was adopted by the Bank of Russia regarding credit institutions.

Open joint stock companies - issuers of securities are required to post lists of their affiliates on their own websites on the Internet. The list must be updated quarterly and must be posted for at least three years.

Transactions with related parties

In corporate law, transactions with affiliates are regulated within the framework of the institution of conflicts of interest and related party transactions. Laws on certain types of commercial corporations list in detail the subject composition of interested party transactions, which coincides with the definition of affiliates. A person is recognized as interested in concluding an agreement if the beneficiary, party or intermediary in it is his affiliate. Thus, an interest is present when a transaction is made between a member of the board of directors of a commercial corporation and such a corporation itself, between a corporation and another business entity where the director’s son owns a controlling stake, etc.

In the situation of an interested party transaction, the task of legal regulation is to protect the interests of the commercial corporation itself as a participant in civil transactions and its other members from the unfavorable consequences of the transaction, the completion of which was influenced by the interested party, guided by his personal benefit.

The procedure for executing interested party transactions includes two mandatory conditions:

Removal of the interested party from participation in the discussion of the feasibility of concluding an agreement and its terms;

approval of the transaction by the highest management body of a commercial corporation.

In order for this procedure to be observed, the interested party in all cases is required to disclose his or her interest, even if the specific terms of the transaction do not harm the commercial corporation and its members.

Also, for transactions between related parties, the procedure for determining the price is of great importance, which affects the tax consequences of the transaction.

Rights

Affiliates, by virtue of their position, are subject to certain legal restrictions and obligations. In particular, they are required to inform the business corporation of their affiliation. A certain procedure for making transactions is established for them. They bear the burden of additional tax audits when assessing taxes based on the results of a transaction between related parties.

The legislator does not directly name any rights of affiliated persons. Their rights arise from the real economic situation of this group of participants in civil transactions. Affiliated persons, including main and dependent companies, can conduct joint business activities, observing the restrictions provided by law.

Tax collection

A large section of the Tax Code is devoted to the taxation of transactions of affiliated persons made between a business entity and its interdependent person. Its main content boils down to the goal of protecting the interests of the state when determining prices in transactions to which affiliates are parties. Having the opportunity to influence each other's decisions, such counterparties can unjustifiably underestimate or overestimate the cost of goods and services, which will lead to losses for the state during taxation.

Based on this goal, the state gives the tax authorities the right to check the correctness of price determination in contracts between related parties. Tax authorities have the right to carry out inspections on this issue. The Tax Code describes in detail five methods for determining price for tax control purposes when making transactions between affiliates.

In any case, the contract price must be market price. The tax authority decides how to determine the market price based on the methods described in the legislation.

A number of agreements between affiliated parties under tax law fall under the definition of controlled transactions, the completion of which the taxpayer is obliged to notify the tax authorities. At the request of the tax authorities, it is necessary to send a package of documents containing information about this transaction for tax control.

If the tax authority reveals a deviation of the contract price in a controlled transaction from the market price, this fact is recorded in the audit report and serves as the basis for additional accrual of uncollected amounts to the budget.

Example of an affiliate

So that the legislative provisions on affiliates do not seem too complicated, let us consider the situation with an example. There is a joint-stock company "Artemyevskoe" and its only participant and director I.P. Artemyev. His wife A.I. Artemyeva is also engaged in entrepreneurial activities - she has a 50% stake in Anna Beauty Salon LLC. All listed persons are included in the group of persons, since I.P. Artemyev has complete control over the actions of Artemyevskoe JSC; his wife is his close relative and can influence the decisions of the LLC. The affiliation of these persons will be important, for example, if Artemyevskoye JSC sells its premises to the salon - here the tax authorities will control that the price does not deviate from the market price. This deal is for A.I. Artemyeva will be a related-party transaction, and she will be obliged to inform other LLC participants about this.

The legislation contains two concepts: “affiliated persons” and “interdependent persons”. Organizations or individuals are considered interdependent, the relationships between which affect their economic activities. Affiliates are persons capable of influencing the business activities of individuals or legal entities.

Relationships between related parties and affiliates can have a significant impact on the financial condition and results of operations of an organization.

Currently, transactions between related parties and affiliates are very widespread. Organizations enter into agreements for the purchase and sale of property with companies that are their founders, subsidiaries and other partners dependent on them. By using inflated or reduced prices in such transactions, business entities optimize their tax obligations.

Let us consider the actions of the tax authorities to regulate such transactions.

Grounds for recognizing persons as interdependent and affiliated

The basis for recognizing persons as interdependent may be the fact of interest in a transaction by a business company.

Thus, according to Article 81 of the Federal Law dated December 26, 1995 No. 208-FZ “On Joint-Stock Companies” and Article 45 of the Federal Law dated February 8, 1998 No. 14-FZ “On Limited Liability Companies,” persons are recognized as interested in the company’s transaction if they , their spouses, parents, children, full and half brothers and sisters, adoptive parents and adopted children and (or) their affiliates:

are a party, beneficiary, intermediary or representative in a transaction;
own (each individually or collectively) 20% or more of the shares (shares, shares) of a legal entity that is a party, beneficiary, intermediary or representative in the transaction;
occupy positions in the management bodies of a legal entity that is a party, beneficiary, intermediary or representative in a transaction, as well as positions in the management bodies of the management organization of such a legal entity;
in other cases determined by the company's charter.

Transactions between related parties

The existence of relationships of interdependence is one of the grounds for tax authorities to check the correctness of the application of transaction prices. Transactions between related parties and affiliates are subject to additional requirements and special rules. In addition, the interdependence of the parties to the transaction affects the procedure for calculating taxes and entails the use of special tax control methods.

Transactions between related parties include:

transactions between organizations whose founders are the same citizens;
transactions between a legal entity and its director;
transactions between two legal entities, the head of one of which has a significant stake in the other legal entity;
transactions between an organization and an individual - a participant in this organization.

For tax purposes, market prices are used

The organization has the right to set any prices. According to the general rule, for tax purposes the price of goods, works or services indicated by the parties to the transaction is accepted. Unless proven otherwise, the price is assumed to correspond to market prices.

Otherwise, the tax authorities may assess additional taxes and levy a fine.

In accordance with paragraph 1 of Article 20 of the Tax Code, transactions are considered to be concluded with interdependent persons in cases where the participants in such transactions are:

two organizations, one of which directly or indirectly participates in another organization and the total share of such participation is more than 20%;
two individuals, one of whom is subordinate to the other by official position;
two individuals who are in a marriage relationship, a relationship of kinship or property, an adoptive parent and an adopted child, a trustee and a ward.

Also, according to paragraph 2 of Article 20 of the Tax Code, the court may recognize that a transaction was concluded between interdependent persons, and on other grounds, if the relationship between the parties to the transaction may affect its results.

If it is determined that the transaction price applied by the parties deviates from market prices by more than 20%, the tax authority has the right to make a decision on additional tax and penalties calculated based on the application of market prices. In this case, the collection of additionally assessed tax is carried out in an indisputable manner. If the taxpayer disagrees with the decision of the tax authority, he can go to court.

Principles for determining the transaction price

The basic principles for determining the transaction price for tax purposes are as follows.

Firstly, the tax authority has the right to check the correctness of the application of prices for transactions only in cases established by the Tax Code, namely (clause 2 of Article 40 of the Tax Code):

between interdependent persons;
on commodity exchange (barter) transactions;
when making foreign trade transactions;
if there is a deviation of more than 20% upward or downward from the level of prices applied by the taxpayer for identical (homogeneous) goods within a short period of time;

Secondly, when exercising this type of control, the tax authority has the right to independently determine the market price. In this case, it is necessary to prove that the price of goods, works or services used by the parties to the transaction deviates upward or downward by more than 20% from the market price of identical goods.

The market price is determined taking into account the provisions provided for in paragraphs 4 - 11 of Article 40 of the Tax Code of the Russian Federation. In this case, the usual price premiums or discounts when concluding transactions between non-related parties are taken into account - discounts caused by:

seasonal and other fluctuations in consumer demand for goods;
loss of quality or other consumer properties of goods;
expiration (approximation of the expiration date) of the shelf life or sale of goods; marketing policy, including when promoting new products that have no analogues to markets, as well as when promoting goods to new markets;
implementation of experimental models and samples of goods in order to familiarize consumers with them.

Thirdly, the tax authority has the right to charge additional amounts of tax and penalties calculated in such a way as if the results of this transaction were assessed based on the application of market prices for the relevant goods, works or services.

For the procedure for carrying out transactions between interdependent or affiliated persons in organizations of various legal forms and forms of ownership, see the article.

Under certain circumstances, courts may recognize the existence of interdependence between the parties to a transaction even in cases where at the time of its conclusion such dependence of the parties was formally absent (Resolution of the Federal Antimonopoly Service of the North Caucasus District dated March 13, 2007 N F08-1082/07-445A). Please note that that, in accordance with the explanations of the Supreme Arbitration Court of the Russian Federation, the interdependence of the parties to transactions in itself cannot serve as a basis for recognizing a tax benefit as unjustified (clause 6 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated October 12, 2006 N 53 “On the assessment by arbitration courts of the validity of the taxpayer’s receipt of a tax benefit”). The final decision on the existence of interdependence between the parties to a transaction and its impact on taxation is made by the court, taking into account all factual circumstances.

Transactions of interdependent and affiliated parties: price control

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A. In cases of compensation for losses by the general director, the plaintiff is required to prove that the legal entity has these losses. Losses are understood as expenses that a person whose right has been violated has made or will have to make to restore the violated right, loss or damage to his property (real damage), as well as lost income that this person would have received under normal conditions of civil circulation if his right was not violated (lost profit) (clause 2 of Article 15 of the Civil Code of the Russian Federation, resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 62, determination of the Supreme Arbitration Court of the Russian Federation No. VAS-14769). The general director of a joint-stock company is liable if it is proven that when exercising his rights and performing his duties, he acted in bad faith or unreasonably, including if his actions (inaction) did not correspond to the usual conditions of civil circulation or the usual business risk (clause

Affiliated entities of legal entities and individuals

A person is recognized as interested in concluding an agreement if the beneficiary, party or intermediary in it is his affiliate. Thus, an interest is present when a transaction is made between a member of the board of directors of a commercial corporation and such a corporation itself, between a corporation and another business entity where the director’s son owns a controlling stake, etc. In the situation of an interested party transaction, the task of legal regulation is to protect the interests of the commercial corporation itself as a participant in civil transactions and its other members from the unfavorable consequences of the transaction, the completion of which was influenced by the interested party, guided by his personal benefit.

10.5. transactions with affiliates: concept and procedure for conclusion

Important

The specified information must be provided to the person making the request within a period not exceeding 20 days from the date of receipt of the relevant request. A transaction in which there is an interest may be declared invalid (clause 2 of Article 174 of the Civil Code of the Russian Federation) at the request of the company, a member of the board of directors (supervisory board) of the company or its participants (participant) possessing at least one percent of the total number of votes participants of the company, if it was committed to the detriment of the interests of the company and it is proven that the other party to the transaction knew or should have known that the transaction was an interested party transaction for the company, and (or) about the absence of consent to its completion. At the same time, the lack of consent to complete a transaction in itself is not grounds for declaring such a transaction invalid.

Article 45. Interest in the company completing a transaction

Federal Law of December 26, 1995 N 208-FZ “On Joint-Stock Companies” (hereinafter referred to as the Law on JSC). A transaction in which there is an interest must be approved before it is completed by the board of directors (supervisory board) of the company or the general meeting of shareholders (participants ) (Article 83 of the Law on JSC, clause 3, clause 7 of Article 45 of the Law on LLC). According to clause 4 of Art. 45 of the LLC Law, a transaction in which there is an interest does not require approval by the general meeting of participants of the company if the terms of such a transaction do not differ significantly from the terms of similar transactions (including loans, credit, pledge, guarantee) made between the company and an interested person in the process of carrying out ordinary business activities of the company that took place before the moment when the interested person was recognized as such in accordance with paragraph 1 of Art. 45 of the LLC Law.

Affiliates liability

E. Kalchevskaya Sections: Law The legislation contains two concepts: “affiliated persons” and “interdependent persons”. Organizations or individuals are considered interdependent, the relationships between which affect their economic activities. Affiliates are persons capable of influencing the business activities of individuals or legal entities.

Relationships between related parties and affiliates can have a significant impact on the financial condition and results of operations of an organization. Currently, transactions between related parties and affiliates are very widespread. Organizations enter into agreements for the purchase and sale of property with companies that are their founders, subsidiaries and other partners dependent on them.

Affiliates for the director when making an interested party transaction

They bear the burden of additional tax audits when assessing taxes based on the results of a transaction between related parties. The legislator does not directly name any rights of affiliated persons. Their rights arise from the real economic situation of this group of participants in civil transactions.
Affiliated persons, including main and dependent companies, can conduct joint business activities, observing the restrictions provided by law. Collection of taxes A large section of the Tax Code is devoted to the taxation of transactions of affiliated persons made between a business entity and its related party. Its main content boils down to the goal of protecting the interests of the state when determining prices in transactions to which affiliates are parties.

Interested party transactions

According to paragraph 4 of Article 40 of the Tax Code (TC), the market price of a product (work, service) is recognized as the price established by the interaction of supply and demand on the market of identical (and in their absence, homogeneous) goods (work, services) in comparable economic (commercial) ) conditions. In accordance with paragraph 1 of Article 20 of the Tax Code, transactions are considered to be concluded with interdependent persons in cases where the participants in such transactions are:

two organizations, one of which directly or indirectly participates in another organization and the total share of such participation is more than 20%;
two individuals, one of whom is subordinate to the other by official position;
two individuals who are in a marriage relationship, a relationship of kinship or property, an adoptive parent and an adopted child, a trustee and a ward.

Also according to paragraph.

How do transactions between related parties proceed?

Attention

To qualify as a group of persons, a group of individuals must have one or more of the characteristics listed in Art. 9 of Federal Law No. 135-FZ “On Protection of Competition”. From the above legislative definition of affiliation it follows that the list of persons who may be considered interested in completing a transaction is not exhaustive. This is reflected in judicial practice: when considering claims to invalidate transactions on the basis of interest, courts in similar circumstances make different decisions based on the specifics of the particular case under consideration.

Law on LLC. The specified persons are recognized as interested in the transaction by the company in cases where they, their spouses, parents, children, full and half brothers and sisters, adoptive parents and adopted children and (or) their affiliates: - are a party to the transaction or act in the interests of third parties in their relations with the company; - own (each individually or collectively) 20% or more percent of the shares (shares, shares) of a legal entity that is a party to the transaction or acts in the interests of third parties in their relations with the company; - hold positions in management bodies a legal entity that is a party to a transaction or acts in the interests of third parties in their relations with the company, as well as positions in the management bodies of the management organization of such a legal entity; - in other cases determined by the charter of the company. A similar norm is contained in Art.

Affiliates are persons capable of influencing the business activities of individuals or legal entities.

Grounds for recognizing persons as interdependent and affiliated

The basis for recognizing persons as interdependent may be the fact of interest in a transaction by a business company.

Transactions between related parties

Principles for determining the transaction price

The basic principles for determining the transaction price for tax purposes are as follows.

For the procedure for carrying out transactions between interdependent or affiliated persons in organizations of various legal forms and forms of ownership, see the article: "Transactions of interdependent and affiliated persons: JSC, LLC, unitary enterprises" .

How do transactions between related parties proceed?

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Transactions between related parties may be controlled by the Federal Tax Service. Let's study what legal consequences their conclusion can lead to.

Who are recognized as related parties?

Interdependent persons are several subjects of legal relations (citizens or legal entities), among which there is at least 1 subject that can influence (clause 1 of Article 105.1 of the Tax Code of the Russian Federation):

for the participation of at least 1 other entity in certain transactions;
on the results of economic activities carried out by at least 1 other entity.

Read more about the criteria for classifying individuals as interdependent here.

One of the common types of relationships between interdependent persons is a transaction. Typically in the form of a commercial contract.

In cases provided by law, a transaction between related parties may be classified as controlled. But what could be the reasons for this?

What are controlled transactions?

A controlled transaction is considered to be a transaction between interdependent persons, which is subject to verification by the Federal Tax Service for an unjustified decrease or increase in the tax base.

The Federal Tax Service may control transactions between related parties that:

form amounts subject to personal income tax, profit tax, mineral extraction tax, VAT;
fall under the criteria established in paragraphs. 1–3, 5–7 tbsp. 105.14 Tax Code of the Russian Federation;
do not fall under the criteria given in paragraph 4 of Art. 105.14 Tax Code of the Russian Federation.

Having checked the transaction between interdependent persons, the Federal Tax Service may fine the participants and assess additional tax for the payer if it considers that the base for it was unreasonably reduced. Recognition of parties to a transaction as interdependent is carried out solely for tax purposes.

Transactions between affiliates: consequences

Interdependence is a concept very close to another, affiliation. At the same time, the fact of affiliation (established based on the criteria defined in Article 4 of the RSFSR Law “On Competition” dated March 22, 1991 No. 948-1) of the parties to a transaction in the general case does not predetermine legal consequences similar to those that characterize controlled transactions between interdependent persons .

At the same time, the legislation can highlight a number of the following responsibilities:

for all legal entities - on the disclosure of information about affiliated entities in the financial statements (subparagraph “a”, paragraph 4, paragraphs 6, 10–15 PBU 11/2008);
for LLCs - to ensure the storage of data on affiliated entities (Clause 1, Article 50 of the Law “On LLCs” dated 02/08/1998 No. 14-FZ);
for JSC - on the publication of information about affiliated entities on the Internet (clause 73.3 of the Regulations of the Central Bank of the Russian Federation dated December 30, 2014 No. 454-P).

Failure to fulfill these obligations can lead to large fines, which, in principle, are comparable to the economic risks in transactions between related parties. For example, if a JSC has not published information about affiliated entities in accordance with Regulation 454-P, it may be fined up to 1 million rubles (an official - additional rubles) on the basis of clause 2 of Art. 15.19 Code of Administrative Offenses of the Russian Federation.

Who are the stakeholders?

Affiliation is one of the possible criteria for recognizing a person as an interested party (in the context of the provisions of paragraph 1 of Article 19 of the Law “On Bankruptcy” dated October 26, 2002 No. 127-FZ). At the same time, the concept of “interest” in different legal contexts is disclosed in more than a dozen federal regulations. For example, in such as:

Customs Code of the EAEU (came into force on July 1, 2017);
Civil Code of the Russian Federation;
Code of Administrative Offenses of the Russian Federation;
Housing Code of the Russian Federation;
Law 14-FZ;
Law “On Credit Cooperation” dated July 18, 2009 No. 190-FZ;
Law “On Self-Regulatory Organizations” dated December 1, 2007 No. 315-FZ;
Law “On Anti-Dumping Measures” dated December 8, 2003 No. 165-FZ.

It may be noted that a transaction between related parties can be concluded by parties who also have the status of interested parties.

Let us consider, as an example, the features of the status of an interested party in an LLC.

Where can I download a sample approval with an interest in an LLC?

Unlike transactions between related parties, interested party agreements are not subject to control by the Federal Tax Service.

A transaction with an interest in a company that is registered as an LLC is a legal relationship in the establishment of which there is an interest of certain persons specified in paragraph 1 of Art. 45 of Law 14-FZ. For example, a director of an organization or a member of its board of directors.

In general, no one’s approval is required to enter into an interested party transaction. However, if it is not properly received, then members of the board of directors or participants of the LLC will have the right to challenge such a transaction in court if they prove that its completion caused damage to the company (clause 6 of Article 45 of Law 14-FZ).

Therefore, it is advisable to formalize this consent. You can download its sample on our website.

Results

A transaction concluded between interdependent persons may be controlled. It can actually be concluded by interested parties, affiliates, and beneficiaries. A transaction between interdependent persons in which the tax base is underestimated may, upon inspection by the Federal Tax Service, lead to fines and additional taxes.

You can learn more about the features of legal relations involving interdependent persons in the articles:

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Transactions with affiliates

Own (each individually or collectively) 20% or more percent of the shares (shares, shares) of a legal entity that is a party, beneficiary, intermediary or representative in the transaction;

Hold positions in the management bodies of a legal entity that is a party, beneficiary, intermediary or representative in a transaction, as well as positions in the management bodies of the management organization of such a legal entity;

In other cases determined by the company’s charter (second paragraph of clause 1 of article 81 of the Law on JSC).

Affiliates for the director when making an interested party transaction

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The material is relevant for 2017.

If we consider the issue more broadly, then this note concerns the consideration of the criterion of affiliation for individuals in general.

First point of view: only individual entrepreneurs can have affiliates

A little background - last year I had to carry out a large number of approvals of transactions by the general meeting of company participants - as a rule, loan agreements and guarantee agreements for them with the Bank of Moscow, Russian Capital, FC Otkritie... At the same time, coordinating the approval of one of the guarantee agreements with Unicredit The bank has developed into a real correspondence box with the counterparty’s corporate lawyers. In one of the companies for which I provide corporate support, the minority participant (share less than 1%) is also the sole executive officer (in fact, a fairly common situation), and the majority participant, accordingly, is an interested party.

My task was to convincingly prove that the approved guarantee agreements for the main loan agreement are a transaction in which all participants in the company are interested, and, in this regard, in accordance with clause 6 of Art. 45 of the Federal Law of 02/08/1998 No. 14-FZ “On Limited Liability Companies” do not require additional approval on this basis. At the same time, the corporatists of SKB flatly refused to recognize the fact that ALL participants in the company had an interest, referring to the wording: “affiliates of an individual carrying out business activities” given in Art. 4 of the RSFSR Law of March 22, 1991 No. “On competition and restriction of monopolistic activities in commodity markets.” According to their logic, an individual sole proprietor, as an individual who does not carry out entrepreneurial activities, in principle cannot have persons affiliated with him.

So, according to paragraph 1. Art. 45 of the Federal Law of 02/08/1998 No. 14-FZ transactions (including a loan, credit, pledge, guarantee), in which there is an interest of a member of the board of directors (supervisory board) of the company, a person performing the functions of the sole executive body of the company, a member of the collegial executive body of the company or the interest of a participant in the company who, together with its affiliates, has twenty or more percent of the votes of the total number of votes of the company's participants, as well as a person who has the right to give instructions to the company that are binding on him, are carried out by the company in accordance with the provisions of Article 45 No. 14- Federal Law. The specified persons are recognized as interested in the conclusion of a transaction by the company in cases where they, their spouses, parents, children, full and half brothers and sisters, adoptive parents and adopted children and (or) their affiliates:

are a party to a transaction or act in the interests of third parties in their relations with the company;
own (each individually or collectively) twenty or more percent of the shares (shares, shares) of a legal entity that is a party to the transaction or acts in the interests of third parties in their relations with the company;
hold positions in the management bodies of a legal entity that is a party to a transaction or acts in the interests of third parties in their relations with the company, as well as positions in the management bodies of the management organization of such a legal entity;
in other cases determined by the company's charter.

Typically, Federal Law No. 14-FZ dated 02/08/1998 does not contain a definition of an affiliate and refers us to Art. 4 of the RSFSR Law of March 22, 1991 No. 948-1, which operates with the following concepts:

affiliated persons - individuals and legal entities capable of influencing the activities of legal entities and (or) individuals engaged in business activities;
lists affiliates of a legal entity and affiliates of an individual.

However, with individuals it is far from so simple, since given in Art. 4, the wording reads: “affiliates of an individual carrying out business activities.” Literal adherence to the law (which, by the way, can be seen in the decisions of a number of arbitration courts of the first instance) leads us to the definition of a person engaged in entrepreneurial activity given in Art. 2, Art. 23 Civil Code of the Russian Federation:

entrepreneurial is an independent activity carried out at one's own risk, aimed at systematically obtaining profit from the use of property, sale of goods, performance of work or provision of services by persons registered in this capacity in the manner prescribed by law (Article 2 of the Civil Code of the Russian Federation)

a citizen has the right to engage in entrepreneurial activity without forming a legal entity from the moment of state registration as an individual entrepreneur

(clause 1 of article 23 of the Civil Code of the Russian Federation).

The following position is derived from this: if you are registered as an individual entrepreneur, you can have affiliates; if you are not registered, you cannot. It would seem that everything is simple.

The second point of view: those who can influence the business activities of companies and individuals have affiliates

At the same time, the analysis of the provisions of paragraph 1 of Art. 45 of Federal Law No. 14-FZ dated 02/08/1998 leads to the following conclusions: if we follow the logic of interpretation of the RSFSR Law dated 03/22/1991 No. in a restrictive manner, then such individuals as a member of the Board of Directors or the Supervisory Board, individual sole executive officer, a member of a company - an individual, etc. ., in principle, cannot have persons affiliated with them, since the mentioned persons are not registered as individual entrepreneurs, and therefore cannot be persons engaged in entrepreneurial activities. Then the very design of the norms given in paragraph 1 of Art. 45 of the Federal Law of 02/08/1998 No. 14-FZ (similar norms are contained in Article 81 of the Federal Law of 12/26/1995 No. 208-FZ “On Joint-Stock Companies”) seems meaningless, since the phrase “and (or) their affiliates » would apply only to legal entities - participants of the company, or legal entities that have the right to give mandatory instructions to the company.

Thus, we still run into the narrow semantic definition of entrepreneurial activity given in paragraph 1 of Art. 23 Civil Code of the Russian Federation. At the same time, if we look at the problem more broadly and ask the question: is all the independent activity of individuals, carried out at their own risk, aimed at systematically obtaining profit from the use of property, sale of goods, performance of work or provision of services, carried out without state registration as Sole proprietorship is not entrepreneurial? - then you can get some pretty interesting answers.

For example, paragraph 4 of the same article. 23 of the Civil Code of the Russian Federation states: a citizen carrying out entrepreneurial activities without forming a legal entity in violation of the requirements of paragraph 1 of Art. 23 of the Civil Code of the Russian Federation, has no right to refer to the transactions concluded by him to the fact that he is not an entrepreneur. The court may apply to such transactions the rules of the Civil Code of the Russian Federation on obligations associated with carrying out entrepreneurial activities. According to the explanations of the Constitutional Court of the Russian Federation, set out in Resolution No. 34-P dated December 27, 2012 (clause 4.1.), the absence of state registration as an individual entrepreneur does not in itself mean that a citizen’s activities cannot be qualified as entrepreneurial if in its essence it actually is. That is, there is adherence not to the letter, but to the “spirit” of the law.

Another example is the jurisdiction of the arbitration court for disputes between shareholders/participants of the company and the company; disputes between a legal entity and its sole executive officer. But in accordance with paragraph 1 of Art. 27 of the Arbitration Procedure Code of the Russian Federation, the arbitration court has jurisdiction over cases of economic disputes and other cases related to the implementation of entrepreneurial and other economic activities. You can also remember about individuals who regularly rent out one or two apartments and are not registered as individual entrepreneurs. Undoubtedly, they receive income from the use of property they own on an ongoing basis, and bear the risk of adverse consequences (for example, late payment of rent, damage to property, etc.). And shareholders/members of companies - they invest their property, receive (or not receive, depending on your luck) income when distributing net profit, bear risks - how does their activity differ from entrepreneurial in nature? However, the legislation also does not require state registration from them...

At the same time, studying the issue of the legal essence of entrepreneurial activity and the possibility of its broader interpretation is not the purpose of this note. Summarizing the above arguments, we can conclude that in order to recognize an individual as capable of having affiliated persons, the Law of the RSFSR dated March 22, 1991 No. does not itself require that the specified individual have the status of an individual entrepreneur or carry out entrepreneurial activities without registering such a status: “affiliated persons are individuals and legal entities capable of influencing the activities of legal entities and (or) individuals engaged in business activities.” Since the conditions of paragraph 1 of Art. 45 of the Federal Law of 02/08/1998 No. 14-FZ, in which interest in the company’s transactions is established, are introduced for specific individuals, taking into account the degree of their relationship and position in relation to the company, then for the purpose of establishing their affiliates, the criteria of Art. 4. Law of the RSFSR dated March 22, 1991 No. 948-1, intended to identify persons affiliated with individuals, but without taking into account whether they are engaged in entrepreneurial activities, i.e. whether they are registered as an individual entrepreneur or not. This position is set out in the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 22, 2012 No. 14613/11 in case No. A/2010-C4 regarding the affiliation of individuals in relation to joint stock companies, and by analogy with the law, also applies to limited liability companies. A similar position is supported by lower courts (decrees of the Federal Antimonopoly Service of the North-Western District dated 02/11/2013 No. A42-36/2012, the Federal Antimonopoly Service of the Central District dated 07/23/2012 No. A/2011, the Seventeenth Arbitration Court of Appeal dated 12/03/2013 No. 17AP-1911/2013 -GK).

Let's return to the example given at the very beginning, in relation to the individual sole executive, which is also a minority participant in the Company. According to Art. 4 of the RSFSR Law of March 22, 1991 No. 948-1, affiliates of an individual carrying out business activities are persons belonging to the group of persons to which this individual belongs. In accordance with Art. 9 of the Federal Law of July 26, 2006 No. 135-FZ “On the Protection of Competition”, a group of persons is recognized as a set of individuals and (or) legal entities that meet one or more of the following criteria: persons, each of which, according to any of the specified in paragraphs 1-7 of this part, on the basis of being included in a group with the same person, as well as other persons included with any of such persons in a group according to any of those specified in paragraphs. 1-7 of this part on the basis (clause 8, clause 1, article 9). The specified individual sole executive officer was part of the same group of persons as the beneficiary under the loan agreement, and persons included in the same group of persons are recognized as affiliated, which meets the requirements of paragraph. 2 p. 1 art. 45 of the Federal Law of 02/08/1998 No. 14-FZ.

Brilliant article! Respect!

Thank you)) I hope it will be useful to other corporate officials when drawing up OSU protocols, if they need to provide a reasoned explanation of why all participants in the company are interested in the transaction.

not only useful, but an excellent guide to action

Transactions like this are not a common occurrence, but after a while the procedure done is forgotten, and again the regulatory action, the search, and this is time, which is definitely more valuable than money.

And here it is served on a plate with a rim. I enjoyed the competent, clear presentation of the essence.

Quote from the article

“The specified individual sole executive officer was part of the same group of persons as the beneficiary under the loan agreement”

Please explain how you can join a group of people under some kind of agreement?

An agreement for the issuance of bank guarantees was concluded between the Bank and LLC “A”. The bank was the Guarantor, LLC “A” was the Principal under this agreement. LLC "B" is the only participant in LLC "A". LLC “B” enters into a guarantee agreement with the Bank for LLC “A”. EIO LLC "B" is included in the same group of persons with both LLC "B" and LLC "A", which is the beneficiary under the agreement for the issuance of bank guarantees.

However, judicial practice at the level of the Supreme Court (Let’s remember him too..) has long resolved this issue; having the status of an individual entrepreneur is not necessary to recognize a person as affiliated.

There is also practice regarding the group of persons, in particular the Ruling of the Supreme Court of the Russian Federation dated December 28, 2015 in case No. A/2014, which reveals in detail both the affiliation and the group of persons.

From my practice, I will say that in reality these are things that are difficult for judges to understand; it is very difficult to prove groups of persons and affiliation, and as a result, interest, because for many, only persons from clause 1 of Article 45 of the Federal Law on LLC can be interested

Many circumstances of proving a group of persons and affiliation depend on the execution of documents, since, for example, it is possible to include in one group of persons a participant at whose proposal the General Director was elected (in this case, the General Director and this participant will be in the same group of persons)

In general, an interesting article, including for practice!

As for practice, I agree, especially since I am referring specifically to court decisions. But YOU - based on the results of the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 22, 2012 No. 14613/11 in case No. A/2010-C4, already scribbled out a summary (on page 12) with the following content:

SUMMARY of case No. 14613/11

For the purposes of applying the provisions of paragraph 1 of Article 81 of the Federal Law of December 26, 1995 No. 208-FZ “On Joint-Stock Companies,” the status of an individual entrepreneur or engaging in entrepreneurial activity is not required for individuals in relation to

which affiliates are established, nor for the affiliates themselves.

I’ll definitely take a look at the ruling of the RF Supreme Court dated December 28, 2015 in case No. A/2014, thanks for the tip. It’s just that at the time when UKB and I were corresponding (somewhere in mid-2015), I never came across any sensible explanations on this topic either in K+, or in articles, or on forums, and I had to justify my position.

With Gena in the group of persons - once we got out like this for Rosneft - it was necessary to show the affiliation of the manufacturing plant with the seller of the products (in fact - the persons are the same, but formally - through offshore companies - independent, since the share of participation is about 15 %). The financial authorities wanted to urgently screw over the SD for this purpose, but they managed to escape through the appointment of genes and pull a group of people by the ears)))

Transactions with LLC affiliates

In legislation, along with the concept of “affiliated persons”, the concept of “interdependent persons” is used.

In Art. 4 of the RSFSR Law of March 22, 1991 N 948-I “On Competition and Restriction of Monopolistic Activities in Commodity Markets”, individuals and legal entities capable of influencing the activities of legal entities and (or) individuals engaged in business activities are recognized as affiliated. At the same time, within the meaning of this norm, legal entities are not recognized as affiliates only on the basis that their participants (shareholders) are the same individuals.

Clause 1 of Art. 45 of the Federal Law of 02/08/1998 N 14-FZ “On Limited Liability Companies” (hereinafter referred to as the Law on LLCs) it is determined that transactions in which there is an interest of a participant in the LLC, having together with its affiliates 20% or more percent of the votes from the total number of votes of the company's participants, are carried out by the company in accordance with the provisions of the above article of the LLC Law. The specified persons are recognized as interested in the transaction by the company in cases where they, their spouses, parents, children, full and half brothers and sisters, adoptive parents and adopted children and (or) their affiliates:

Are a party to a transaction or act in the interests of third parties in their relations with society;

Own (each individually or collectively) 20% or more percent of the shares (shares, shares) of a legal entity that is a party to the transaction or acts in the interests of third parties in their relations with the company;

Hold positions in the management bodies of a legal entity that is a party to a transaction or acts in the interests of third parties in their relations with the company, as well as positions in the management bodies of the management organization of such a legal entity;

In other cases determined by the company's charter.

A similar rule is contained in Art. 81 of the Federal Law of December 26, 1995 N 208-FZ “On Joint-Stock Companies” (hereinafter referred to as the JSC Law).

A transaction in which there is an interest must be approved before it is completed by the board of directors (supervisory board) of the company or the general meeting of shareholders (participants) (Article 83 of the Law on JSC, clause 3, clause 7 of Article 45 of the Law on LLC) .

According to paragraph 4 of Art. 45 of the LLC Law, a transaction in which there is an interest does not require approval by the general meeting of participants of the company if the terms of such a transaction do not differ significantly from the terms of similar transactions (including loans, credit, pledge, guarantee) made between the company and an interested person in the process of carrying out ordinary business activities of the company that took place before the moment when the interested person was recognized as such in accordance with paragraph 1 of Art. 45 of the LLC Law. This exception applies only to transactions in which there is an interest and which were completed from the moment when the interested party was recognized as such until the next regular general meeting of the company's participants. A similar rule is enshrined in paragraph 5 of Art. 83 of the Law on JSC.

As noted in paragraph 16 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 13, 2001 No. 62 “Review of the practice of resolving disputes related to the conclusion by business companies of major transactions and transactions in which there is an interest,” a transaction in which there is an interest, does not require the approval of the general meeting of shareholders if it was committed in the course of ordinary business activities that began before the moment when the relevant person became interested (see also the resolution of the Federal Antimonopoly Service of the Volga District dated April 3, 2008 N A/2006-8).

Moreover, transactions concluded before the emergence of interest do not require approval, since the law speaks of interest in making transactions, and not about the execution of already completed transactions.

Thus, the emergence of signs of interest in a transaction does not affect the agreements previously concluded by the companies.

With regard to checking interdependence by tax authorities, the following should be noted.

In accordance with paragraph 2 of Art. 40 of the Tax Code of the Russian Federation, tax authorities, when monitoring the completeness of tax calculations, have the right to check the correctness of the application of prices for transactions between related parties. The concept of interdependent persons is disclosed in Art. 20 Tax Code of the Russian Federation. According to this norm, interdependent persons for tax purposes are individuals and (or) organizations, relations between which may influence the conditions or economic results of their activities or the activities of the persons they represent, namely:

1) one organization directly and (or) indirectly participates in another organization, and the total share of such participation is more than 20%. The share of indirect participation of one organization in another through a sequence of other organizations is determined as the product of the shares of direct participation of organizations of this sequence in one another;

2) one individual is subordinate to another individual due to his official position;

3) persons are, in accordance with the family legislation of the Russian Federation, in marital relations, relations of kinship or property, adoptive parent and adopted child, as well as trustee and ward.

In the case under consideration, the transaction was concluded by legal entities. The same individual owns shares in one legal entity and subsequently becomes a member of another legal entity. As follows from the above rule of law, the interdependence of legal entities for tax purposes is not linked to the composition of their participants, especially with a change in the composition of participants after the conclusion of a transaction; accordingly, for the listed reasons, legal entities in your case cannot be recognized by the tax authorities as interdependent.

At the same time, according to paragraph 2 of Art. 20 of the Tax Code of the Russian Federation, the court may recognize persons as interdependent on other grounds not provided for in paragraph 1 of this article, if the relationship between these persons may affect the results of transactions for the sale of goods (work, services).

In particular, the court recognized legal entities as interdependent entities on the basis that the founders of these organizations are the same citizens who are interested in the interaction of their organizations and the establishment of favorable terms of purchase and sale (clause 1 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 17.03 .2003 N 71 “Review of the practice of resolving cases by arbitration courts related to the application of certain provisions of part one of the Tax Code of the Russian Federation”).

In accordance with the legal position set out in the ruling of the Constitutional Court of the Russian Federation dated December 4, 2003 N 441-O, the right to recognize persons as interdependent on other grounds not provided for in paragraph 1 of Art. 20 of the Tax Code of the Russian Federation, can be used by the court only on the condition that these grounds are specified in other legal acts, and the relations between these persons can objectively affect the results of transactions for the sale of goods (works, services) (clause 3.3). In the same definition, the Constitutional Court explained: if the literal meaning of the terms of the contract does not allow determining its results, the court ascertains the actual common will of the parties, taking into account the purpose of the contract, taking into account all relevant circumstances, including negotiations and correspondence preceding the contract, the practice established in mutual relations parties, business customs and subsequent behavior of the parties (Article 431 of the Civil Code of the Russian Federation).

Thus, theoretically, the tax authorities may see interdependence between legal entities in this case. However, in our opinion, since at the time of concluding the transactions there were no formal grounds for recognizing interdependence, then in the absence of other data suggesting the receipt of an unjustified tax benefit, there are no grounds for additional taxes and application of tax sanctions.

As a rule, the courts also determine the actual will and nature of the relationship between the parties at the time of the transaction (see, for example, resolutions of the FAS of the East Siberian District dated May 24, 2006 N A/03-24-F/06-S1; FAS of the Volga-Vyatka District dated 12/15/2009 in case No. A/2009). Under certain circumstances, courts may recognize the existence of interdependence between the parties to a transaction even in cases where at the time of its conclusion such dependence of the parties was formally absent (Resolution of the Federal Antimonopoly Service of the North Caucasus District dated March 13, 2007 N F/07-445A).

Please note that, in accordance with the clarifications of the Supreme Arbitration Court of the Russian Federation, the interdependence of the parties to transactions in itself cannot serve as a basis for recognizing a tax benefit as unjustified (clause 6 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated October 12, 2006 N 53 “On the assessment by arbitration courts of the validity of the receipt by a taxpayer of a tax benefit "). The final decision on the existence of interdependence between the parties to a transaction and its impact on taxation is made by the court, taking into account all factual circumstances.

Expert of the Legal Consulting Service GARANT

Reviewer of the Legal Consulting Service GARANT

Republic of Mordovia, Saransk, st. Sovetskaya, 9