Good afternoon! According to Art. 40 131-FZ dated 10/06/2003
7. Exercising their powers permanent deputy, member of an elected body of local self-government, elected official of local self-government not entitled:
2) engage entrepreneurial activity personally or through authorized persons, participate in the management of a commercial organization or in the management of a non-profit organization(with the exception of participation in the management of the council of municipalities of the subject Russian Federation, other associations of municipalities, a political party, participation in a congress (conference) or general meeting of another public organization, housing, housing construction, garage cooperatives, horticultural, horticultural, country consumer cooperatives, partnerships of real estate owners), except for the cases provided for by federal laws, and cases if participation in the management of the organization is carried out in accordance with the legislation of the Russian Federation on behalf of the local government
3) engage in other paid activities, with the exception of teaching, research and other creative activity. At the same time, teaching, scientific and other creative activities cannot be financed exclusively at the expense of foreign states, international and foreign organizations, foreign citizens and stateless persons, unless otherwise provided international treaty Russian Federation or the legislation of the Russian Federation;
4) be a member of management bodies, boards of trustees or supervisory boards, other bodies of foreign non-profit non-governmental organizations and their operating on the territory of the Russian Federation; structural divisions, unless otherwise provided by an international treaty of the Russian Federation or the legislation of the Russian Federation.
while, according to the same Art. 40
5. Elected officials local self-government may exercise their powers on a permanent basis in accordance with this Federal Law and the charter of the municipality. Deputies of the representative body of the municipality exercise their powers, as a rule, on a non-permanent basis.
Can work permanently no more than 10 percent of deputies from the established number of the representative body of the municipal formation, and if the number of representative body of the municipal formation is less than 10 people - 1 deputy.
those. these restrictions apply to deputies who receive remuneration for this activity (working on a permanent basis). In the described case, this condition is not present, as far as I understand.
.A unitary enterprise is a special type legal entities. It does not apply to economic companies and partnerships, although it is a commercial organization.
According to Article 113 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), a unitary enterprise is a commercial organization that is not endowed with the right of ownership of the property assigned to it by the owner.
The property of a unitary enterprise is indivisible and cannot be distributed among contributions (shares, shares), including among employees of the enterprise. The property of a unitary enterprise is owned by the municipality.
Article 17 federal law dated October 6, 2003 No. 131-FZ "On general principles organizations of local self-government in the Russian Federation”, local self-government bodies have the right to create municipal enterprises.
The legal status of municipal unitary enterprises is determined by the Civil Code of the Russian Federation and Federal Law No. 161-FZ of November 14, 2002 “On State and Municipal Unitary Enterprises” (hereinafter referred to as the Law on Unitary Enterprises).
Only state or municipal enterprises can be created in the form of unitary enterprises.
In accordance with Article 3 of the Law on Unitary Enterprises, a unitary enterprise may have civil rights corresponding to the subject and goals of its activity, provided for in the charter of this unitary enterprise, and bear obligations related to this activity. Article 9 of the Law on Unitary Enterprises establishes an imperative rule, according to which the charter of a unitary enterprise must contain a list of types of activities that the enterprise plans to engage in.
Thus, unitary enterprises are not entitled to carry out activities not provided for by the charter, that is, there is a special legal capacity.
A municipal enterprise, until the completion of the formation of a statutory fund by the owner of its property, is not entitled to make transactions that are not related to the establishment of a municipal enterprise.
Certain types of activities, the list of which is determined by the Federal Law of August 8, 2001 No. 128-FZ “On Licensing certain types activity”, a unitary enterprise can carry out only on the basis of a license.
A unitary enterprise is created without a time limit, unless otherwise provided by its charter.
A unitary enterprise must have an independent balance sheet.
A unitary enterprise must have a full company name and may have an abbreviated company name in Russian. A unitary enterprise is also entitled to have a full and (or) abbreviated company name in the languages of the peoples of the Russian Federation and (or) foreign language.
A unitary enterprise has the right to in due course open bank accounts in the territory of the Russian Federation and abroad.
A unitary enterprise must have a round seal containing its full company name in Russian and an indication of the location of the unitary enterprise. The seal of a unitary enterprise may also contain its trade name in the languages of the peoples of the Russian Federation and (or) a foreign language.
A unitary enterprise has the right to have stamps and letterheads with its own company name, its own logo, as well as a duly registered trademark and other means of individualization.
According to paragraph 4 of Article 2 of the Law on Unitary Enterprises, it is not allowed to create unitary enterprises on the basis of combining property owned by the Russian Federation, constituent entities of the Russian Federation or municipalities.
Based on the fact that a unitary enterprise is not the owner of the property, it is not entitled to create another unitary enterprise as a legal entity by transferring a part of its property (subsidiary enterprise) to it.
A unitary enterprise, in agreement with the owner of its property, may create branches and open representative offices.
A branch of a unitary enterprise is one located outside the location of the unitary enterprise and performing all or part of its functions, including the functions of a representative office.
The representative office of a unitary enterprise is its separate subdivision located outside the location of the unitary enterprise, representing the interests of the unitary enterprise and protecting them.
According to Article 5 of the Law on Unitary Enterprises, a branch and a representative office of a unitary enterprise are not legal entities and operate on the basis of the regulations approved by the unitary enterprise. A branch and a representative office are endowed with property by the unitary enterprise that created them.
The head of a branch or representative office of a unitary enterprise is appointed by the unitary enterprise and acts on the basis of his power of attorney. Upon termination of an employment contract with the head of a branch or representative office, the power of attorney must be canceled by the unitary enterprise that issued it.
A branch and a representative office of a unitary enterprise carry out their activities on behalf of the unitary enterprise that created them. Responsibility for the activities of a branch and representative office of a unitary enterprise shall be borne by the unitary enterprise that created them.
In addition, unitary enterprises may be participants (members) of commercial organizations, as well as non-profit organizations in which, in accordance with federal law, the participation of legal entities is allowed.
Unitary enterprises are not entitled to act as founders (participants) of credit institutions.
A decision on the participation of a unitary enterprise in a commercial or non-commercial organization may be made only with the consent of the owner of the property of the unitary enterprise.
The disposal of a contribution (share) in the authorized (share) capital of a business company or partnership, as well as shares belonging to a unitary enterprise, is carried out by a unitary enterprise only with the consent of the owner of its property. Transactions on the disposal of a deposit (share) without the consent of the owner of the property are not allowed. Such transactions may be declared void (Resolution of the Federal Arbitration Court (hereinafter FAS) of the North-Western District of May 31, 2004 in case No. A66-6753-03).
A unitary enterprise is liable for its obligations with all its property.
A unitary enterprise shall not be liable for the obligations of the owner of its property.
Depending on the volume of rights to property belonging to a unitary enterprise, two types of enterprises are legally distinguished: a municipal unitary enterprise based on the right of economic management and a municipal unitary enterprise based on the right of operational management (state-owned enterprise).
A unitary enterprise based on the right of economic management is created by decision of an authorized body of local self-government.
According to Article 295 of the Civil Code of the Russian Federation, the owner of property under economic jurisdiction, in accordance with the law, decides on the creation of an enterprise, determining the subject and goals of its activities, its reorganization and liquidation, appoints a director (manager) of the enterprise, exercises control over the use for its intended purpose and safety property owned by the company.
In accordance with Article 51 of the Federal Law of October 6, 2003 No. 131-FZ "On the General Principles of Organizing Local Self-Government in the Russian Federation", local self-government bodies determine the goals, conditions and procedures for the operation of municipal enterprises, approve their charters, appoint them to positions and dismiss them from positions of heads of these enterprises, hear reports on their activities in the manner prescribed by the charter of the municipality.
The owner has the right to receive a part of the profit from the use of property under the economic management of the enterprise.
The right of economic management provides a unitary enterprise with fairly broad powers. The owner of the property has mainly control powers, gives consent to the commission of individual transactions.
An enterprise is not entitled to sell real estate belonging to it under the right of economic management, lease it, pledge it, make a contribution to the authorized (reserve) capital of economic companies and partnerships, or otherwise dispose of this property without the consent of the owner.
The rest of the property belonging to the enterprise, it manages independently, with the exception of cases established by law or other legal acts.
The fruits, products and income from the use of property under economic jurisdiction, as well as property acquired by a unitary enterprise under an agreement or other grounds, come under the economic jurisdiction of an enterprise or institution in the manner established by the Civil Code of the Russian Federation, other laws and other legal acts for the acquisition of the right property.
The size of the authorized capital of a municipal enterprise must be at least one thousand minimum wages established by federal law as of the date state registration municipal enterprise.
According to Article 5 of the Federal Law of June 19, 2000 No. 82-FZ "On the Minimum Wage". Calculation of payments for civil obligations established depending on minimum size remuneration is made on the basis of a base amount equal to 100 rubles. Thus, the size of the authorized capital of a municipal unitary enterprise cannot be less than 100,000 rubles.
The full company name of a municipal enterprise in Russian must contain the words "municipal enterprise" and an indication of the owner of its property - the municipality.
In the cases and in the manner provided for by the Law on Unitary Enterprises, on the basis of municipal property a unitary enterprise on the right of operational management (state-owned enterprise) can be created.
According to Article 8 of the Law on Unitary Enterprises, a municipal state-owned enterprise is established by the decision of a local self-government body, which, in accordance with the acts defining the status of this body, is granted the right to make such a decision.
According to Article 296 of the Civil Code of the Russian Federation, in relation to the property assigned to it, a state-owned enterprise exercises, within the limits established by law, in accordance with the goals of its activities, the tasks of the owner and the purpose of the property, the right to own, use and dispose of it.
In accordance with paragraph 2 of Article 20 of the Law on Unitary Enterprises, the owner of property assigned to a state-owned enterprise has the right to withdraw excess, unused or misused property and dispose of it at his own discretion.
A state-owned enterprise has the right to alienate or otherwise dispose of the property assigned to it only with the consent of the owner of this property.
A state-owned enterprise independently sells its products, unless otherwise established by law or other legal acts.
The procedure for distributing the income of a state-owned enterprise is determined by the owner of its property.
Thus, the owner of the property of a state-owned enterprise has broad powers in relation to the said property.
In a state-owned enterprise, the authorized capital is not formed.
The full company name of a state-owned enterprise in Russian must contain the words "municipal state-owned enterprise" and an indication of the owner of its property - the municipality.
The founder of a municipal unitary enterprise may be a municipal entity.
The decision to establish a municipal enterprise is made by the authorized body of local self-government in accordance with the acts defining the competence of such bodies.
In accordance with Article 8 of the Law on Unitary Enterprises, a municipal enterprise may be established if:
the need to use property, the privatization of which is prohibited, including property that is necessary to ensure the security of the Russian Federation;
the need to carry out activities in order to solve social problems (including the sale of certain goods and services at minimum prices), as well as the organization and conduct of procurement and commodity interventions to ensure the food security of the state;
the need to carry out scientific and scientific-technical activities in sectors related to ensuring the security of the Russian Federation;
the need to develop and manufacture certain types of products that are in the sphere of interests of the Russian Federation and ensure the security of the Russian Federation;
the need to produce certain types of products withdrawn from circulation or limited circulation.
A municipal state-owned enterprise is established by a decision of a local self-government body, which, in accordance with the acts defining the status of this body, is granted the right to make such a decision.
A state-owned enterprise can be created in the following cases:
if the predominant or significant part of the products manufactured, work performed, services provided is intended for federal state needs, the needs of a constituent entity of the Russian Federation or a municipality;
the need to use property, the privatization of which is prohibited, including property necessary to ensure the security of the Russian Federation, the operation of air, rail and water transport, implementation of other strategic interests of the Russian Federation;
the need to carry out activities for the production of goods, the performance of work, the provision of services sold at prices established by the state in order to solve social problems;
the need to develop and manufacture certain types of products that ensure the security of the Russian Federation;
the need to produce certain types of products withdrawn from circulation or limited circulation;
the need to carry out certain subsidized activities and conduct unprofitable production;
the need to carry out activities provided for by federal laws exclusively for state-owned enterprises.
The decision to establish a unitary enterprise must determine the goals and subject of activity of the unitary enterprise.
Please note that vesting economic entities with the functions of government bodies is prohibited (Resolution of the Federal Antimonopoly Service of the Volga-Vyatka District of June 10, 2004 in case No. A28-11088 / 2003-305 / 8).
The procedure for determining the composition of property assigned to a unitary enterprise on the right of economic management or on the right of operational management, as well as the procedure for approving the charter of a unitary enterprise and concluding a contract with its head, is established by local governments.
The cost of property assigned to a unitary enterprise on the right of economic management or on the right of operational management, upon its establishment, is determined in accordance with the legislation on valuation activities.
A unitary enterprise is subject to state registration with the body carrying out state registration of legal entities in the manner established by Federal Law No. 129-FZ of August 8, 2001 “On State Registration of Legal Entities and individual entrepreneurs».
A unitary enterprise is considered to be established as a legal entity from the date of making the corresponding entry in the Unified State Register of Legal Entities (hereinafter referred to as the Unified State Register of Legal Entities) with the features established by Article 10 of the Law on Unitary Enterprises.
For the state registration of a unitary enterprise, a decision of the authorized body of local self-government on the establishment of a unitary enterprise, the charter of the unitary enterprise, information on the composition and value of the property assigned to it on the right of economic management or on the right of operational management are provided.
The only constituent document of a unitary enterprise is the charter.
In accordance with Article 9 of the Law on Unitary Enterprises, the Charter of a unitary enterprise is approved by the authorized bodies of local self-government.
The charter of a unitary enterprise must contain:
Full and abbreviated company names of the unitary enterprise;
Indication of the location of the unitary enterprise;
Objectives, subject, activities of a unitary enterprise;
Information about the body or bodies exercising the powers of the owner of the property of a unitary enterprise;
Name of the body of the unitary enterprise (head, director, CEO);
The procedure for appointing the head of a unitary enterprise to the position, as well as the procedure for concluding, amending and terminating an employment contract with him in accordance with labor legislation and other norms containing labor law normative legal acts;
The list of funds created by a unitary enterprise, the size, procedure for the formation and use of these funds;
Other information provided for by the Law on Unitary Enterprises.
The charter of a municipal enterprise, in addition to the specified information, must contain information on the size of its authorized capital, on the procedure and sources for its formation, as well as on the directions for using profits.
The charter of a municipal state-owned enterprise must also contain information on the procedure for distributing and using the income of a state-owned enterprise.
The charter of a unitary enterprise may also contain other provisions that do not contradict the law.
The charter of a unitary enterprise must contain information about its branches and representative offices. Notifications about changes in the charter of a unitary enterprise, information about its branches and representative offices are submitted to the body that carries out state registration of legal entities. The specified changes in the charter of a unitary enterprise shall enter into force for third parties from the moment of notification of such changes to the body that carries out state registration of legal entities.
Changes to the charter of a unitary enterprise are made by decision of the local self-government body authorized to approve the charter of a unitary enterprise.
Amendments made to the charter of a unitary enterprise, or the charter of a unitary enterprise in new edition are subject to state registration.
Changes made to the charter of a unitary enterprise, or the charter of a unitary enterprise in a new edition, become effective for third parties from the moment of their state registration, and in cases established by the law on unitary enterprises, from the moment of notification of the body that carries out state registration of legal entities.
The statutory fund is created only in municipal unitary enterprises based on the right of economic management. In a state-owned enterprise, the authorized capital is not formed.
According to Article 12 of the Law on Unitary Enterprises, the authorized capital of a municipal enterprise determines the minimum amount of its property that guarantees the interests of creditors of such an enterprise.
The statutory fund of a municipal enterprise may be formed at the expense of money, as well as valuable papers, other things, property rights and other rights having a monetary value.
The size of the authorized capital of a municipal enterprise is determined in rubles.
As already noted, the size of the authorized fund of municipal enterprises must be at least a thousand minimum wages, that is, at least 100,000 rubles.
The cost of property transferred to a unitary enterprise upon its establishment is determined in accordance with Federal Law No. 135-FZ of July 29, 1998 “On Appraisal Activities in the Russian Federation”. According to Article 6 of the Federal Law of July 29, 1998 No. 135-FZ “On Appraisal Activities in the Russian Federation”, municipalities have the right to have an appraiser evaluate any objects of appraisal belonging to them.
The right to assess the object of assessment is unconditional and does not depend on the procedure established by the legislation of the Russian Federation for the implementation of state statistical accounting and accounting and reporting. This right also extends to re-assessment of the object of assessment. The results of the appraisal of the appraised object can be used to correct accounting and reporting data.
In practice, the question often arose whether it was necessary to increase, in accordance with Article 12 of the Law on Unitary Enterprises, the statutory fund of an enterprise registered before the introduction of this Law when amending the enterprise's charter. It seems that the authorized capital need not be increased, since bringing the charter of an enterprise registered before the entry into force of the Law on Unitary Enterprises in accordance with the norms of this Law is not the moment of establishment of a unitary enterprise (the date of state registration of a municipal enterprise).
Federal laws or other normative legal acts may determine the types of property from which the charter capital of a municipal enterprise cannot be formed.
In accordance with Article 13 of the Law on Unitary Enterprises, the authorized capital of a municipal enterprise must be fully formed by the owner of its property within three months from the date of state registration of such an enterprise.
The statutory fund is considered to be formed from the moment the relevant sums of money are credited to the bank account opened for these purposes and (or) the transfer in the established manner to the municipal enterprise of other property assigned to it by the right of economic management, in full.
An increase in the statutory fund of a municipal enterprise is allowed only after its formation in full, including after the transfer to the municipal enterprise of real estate and other property intended to be assigned to it on the right of economic management.
Article 14 of the Law on Unitary Enterprises establishes that an increase in the authorized capital of a municipal enterprise can be carried out in two ways:
At the expense of the property additionally transferred by the owner;
At the expense of income received as a result of the activities of such an enterprise.
The decision to increase the statutory fund of a municipal enterprise may be taken by the owner of its property only on the basis of data from the approved annual financial statements of such an enterprise for the past financial year.
Simultaneously with the adoption of a decision to increase the authorized capital of a municipal enterprise, the owner of its property shall make a decision to introduce appropriate amendments to the charter of such an enterprise.
Documents for state registration of changes made to the charter of a municipal enterprise in connection with an increase in its authorized capital, as well as documents confirming an increase in the authorized capital of a municipal enterprise, must be submitted to the body that carries out state registration of legal entities.
Non-submission specified documents is the basis for denial of state registration of amendments made to the charter of the municipal enterprise.
The size of the authorized capital of a municipal enterprise, taking into account the size of its reserve fund, cannot exceed the cost net assets such an enterprise.
The resources of the reserve fund are used exclusively to cover the losses of the unitary enterprise.
The owner of the property of a municipal enterprise has the right, and in the cases provided for by Article 15 of the Law on Unitary Enterprises, is obliged to reduce the authorized capital of such an enterprise.
The statutory fund of a municipal enterprise may not be reduced if, as a result of such a reduction, its size becomes less than a thousand minimum wages.
In the event that at the end fiscal year the value of the net assets of the municipal enterprise turns out to be less than the size of its authorized capital, the owner of the property of such an enterprise is obliged to make a decision to reduce the size of the authorized capital of the municipal enterprise to an amount not exceeding the value of its net assets, and register these changes.
If, at the end of the financial year, the value of the net assets of the municipal enterprise turns out to be less than a thousand minimum wages and within three months the value of the net assets is not restored to the minimum size of the authorized capital, the owner of the property of the municipal enterprise must decide on the liquidation or reorganization of such an enterprise .
If, in the cases provided for by Article 15 of the Law on Unitary Enterprises, the owner of the property of the municipal enterprise does not decide within six calendar months after the end of the financial year to reduce the authorized capital, to restore the amount of net assets to the minimum amount of the authorized fund, to liquidate or reorganize the municipal enterprise , creditors have the right to demand from state enterprise termination or early fulfillment of obligations and compensation for the losses caused to them.
Within thirty days from the date of the decision to reduce its authorized capital, the municipal enterprise is obliged to writing notify all creditors known to him about the reduction of his authorized capital and about its new size, as well as publish in the press, which publishes data on state registration of legal entities, a message on the decision taken (Resolution of the Federal Antimonopoly Service of the Far Eastern District of December 28, 2004 in case No. F03-A51/04-1/3921).
Order of the Ministry of Taxes of the Russian Federation dated September 29, 2004 No. SAE-3-09 / [email protected]"On the establishment of funds mass media in order to ensure the publication of information in accordance with the legislation of the Russian Federation on the state registration of legal entities, the journal “Bulletin of State Registration” was established, in which information must be published in accordance with the legislation of the Russian Federation on the state registration of legal entities. Letter of the Federal Tax Service of the Russian Federation dated July 13, 2005 No. CHD-6-09 / [email protected]"About direction guidelines» the application form for the publication of messages, examples of the text of messages are given.
Creditors of a municipal enterprise have the right, within thirty days from the date of sending them a notice of the decision taken, or within thirty days from the date of publication of the said notice, to demand the termination or early fulfillment of the obligations of the municipal enterprise and compensation for their losses.
State registration of a reduction in the authorized capital of a municipal enterprise shall be carried out only upon presentation by such an enterprise of evidence of notification of creditors about this.
In accordance with Article 215 of the Civil Code of the Russian Federation, property owned by the right of ownership of urban and rural settlements, as well as other municipalities, is recognized as municipal property.
On behalf of the municipality, the rights of the owner are exercised by local self-government bodies within their competence, established by acts defining the status of these bodies.
Property located in municipal property, is assigned to municipal enterprises for possession, use and disposal in accordance with Articles 294, 296 of the Civil Code of the Russian Federation.
Funds local budget and other municipal property not assigned to municipal enterprises and institutions constitute the municipal treasury of the corresponding city, rural settlement or another municipality (Resolution of the Federal Antimonopoly Service of the Far Eastern District of July 20, 2004 in case No. Ф03-А04 / 04-1 / 1770).
According to Article 11 of the Law on Unitary Enterprises, the property of a municipal unitary enterprise is in municipal ownership and belongs to such an enterprise on the basis of the right of economic management or operational management.
The property of a unitary enterprise is formed by:
Property assigned to a unitary enterprise on the right of economic management or on the right of operational management by the owner of this property;
Income of a unitary enterprise from its activities;
Other sources that do not contradict the law.
The right to property assigned to a unitary enterprise on the right of economic management or on the right of operational management by the owner of this property arises from the moment such property is transferred to the unitary enterprise, unless otherwise provided by federal law or established by the decision of the owner on the transfer of property to the unitary enterprise.
When the right of ownership of a municipal enterprise as a property complex is transferred to another owner of the municipal property, such an enterprise retains the right of economic management or the property belonging to it.
Disposal of the property of a municipal unitary enterprise based on the right of economic management.
According to Article 18 of the Law on Unitary Enterprises, a municipal enterprise disposes of movable property owned by it under the right of economic management independently, with the exception of cases established by the Law on Unitary Enterprises, other federal laws and other regulatory legal acts (Resolution of the Federal Antimonopoly Service of the West Siberian District of September 22 2005 in case No. Ф04-6096/2005 (14908-А45-30)). Thus, according to Article 23 of the Law on Unitary Enterprises, a decision to conclude major transactions is made only with the consent of the owner of the property of a municipal enterprise.
A municipal enterprise is not entitled, without the consent of the owner, to make transactions related to the provision of loans, guarantees, bank guarantees, with other encumbrances, assignment of claims, transfer of debt, as well as to conclude agreements of a simple partnership.
A municipal enterprise shall not have the right to sell its immovable property, lease it, pledge it, make a contribution to the authorized (share) capital of a business company or partnership, or otherwise dispose of such property without the consent of the owner of the property of the municipal enterprise.
A municipal enterprise disposes of movable and immovable property only within the limits that do not deprive it of the opportunity to carry out activities, goals, objects, the types of which are determined by the charter of such an enterprise.
Transactions made by a municipal enterprise in violation of this requirement are void ("Summary of information on the activities of the Federal Arbitration Court of the Volga-Vyatka District for the first half of 2005" of the Federal Antimonopoly Service of the Volga-Vyatka District). Thus, counterparties of municipal enterprises should clarify whether the transaction being made corresponds to the goals of the enterprise in order to avoid adverse consequences. Although, of course, the enterprise is primarily responsible for the compliance of the transaction with the goals and types of activities enshrined in the charter.
The charter of a municipal enterprise may provide for the types and (or) size of other transactions, the conclusion of which cannot be carried out without the consent of the owner of the property of such an enterprise.
The owner of a municipal unitary enterprise is not entitled to withdraw property from the economic management of the enterprise (Resolution of the Federal Antimonopoly Service of the East Siberian District of April 11, 2005 in case No. A33-18758 / 03-C2-F02-1028 / 05-C2).
Article 295 of the Civil Code of the Russian Federation does not grant the owner the right to seize or otherwise dispose of the property assigned to the enterprise under the right of economic management, while the enterprise itself is not entitled to alienate the property transferred to it under the right of economic management, when such alienation leads to the impossibility of carrying out economic activity.
Paragraph 3 of Article 299 of the Civil Code of the Russian Federation allows for the possibility of terminating, by decision of the owner, the right of economic management of property assigned to the enterprise, but only on the grounds and in the manner provided for by the Civil Code of the Russian Federation, other laws and other legal acts to terminate the right of ownership, as well as in case of lawful seizure property from the enterprise by decision of the owner.
Article 20 of the Law on Unitary Enterprises allows the owner to withdraw property only from state-owned enterprises, provided that this property is surplus, unused or not used for its intended purpose.
The owner of the property is not entitled to seize property that is under the economic jurisdiction of the municipal enterprise (Resolution of the Federal Antimonopoly Service of the East Siberian District of April 11, 2005 in case No. A33-18758 / 03-C2-F02-1028 / 05-C2).
Disposal of the property of a state-owned enterprise (an enterprise based on the right of operational management).
In accordance with Article 19 of the Law on Unitary Enterprises, a municipal state-owned enterprise has the right to alienate or otherwise dispose of its property only with the consent of the authorized body of local self-government.
Please note that a state-owned enterprise has the right to dispose of its property, including with the consent of the owner of such property, only to the extent that does not deprive him of the opportunity to carry out activities, the subject and goals of which are determined by the charter of such an enterprise.
The charter of a state-owned enterprise may provide for the types and (or) size of other transactions, the conclusion of which cannot be carried out without the consent of the owner of the property of such an enterprise.
A state-owned enterprise independently sells its products (works, services), unless otherwise established by federal laws or other regulatory legal acts of the Russian Federation.
The activity of a state-owned enterprise is carried out in accordance with the estimate of income and expenses, approved by the owner of the property of a state-owned enterprise.
Thus, a state-owned enterprise has a minimum of rights in relation to the property assigned to it.
The owner of the property of a state-owned enterprise has the right to withdraw excess or unused property (Item 2 of Article 20 of the Law on Unitary Enterprises).
Withdrawal by the owner of surplus, unused or misused property is allowed only in relation to property assigned to a state-owned enterprise on the right of operational management, and cannot be carried out in relation to property assigned to an enterprise on the right of economic management.
In accordance with Article 17 of the Law on Unitary Enterprises, the owner of the property of a municipal enterprise has the right to receive a portion of the profits from the use of property under the economic jurisdiction of such an enterprise.
A municipal enterprise annually transfers to the relevant budget a part of the profit remaining at its disposal after paying taxes and other obligatory payments, including after deductions to the funds of this enterprise, in the manner, in the amount and within the time limits determined by local governments (Article 55 of the Federal Law of October 6, 2003 No. 131-FZ "On the General Principles of Organization of Local Self-Government in the Russian Federation"), which is one of the income items of the local budget.
The procedure for distributing the income of a state-owned enterprise is determined by local governments.
On behalf of the municipality, the rights of the owner of the property of a unitary enterprise are exercised by local self-government bodies within their competence established by acts defining the status of these bodies.
According to Article 35 of the Federal Law of October 6, 2003 No. 131-FZ "On the General Principles of Organization of Local Self-Government in the Russian Federation", the exclusive competence of the representative body of the municipality is to determine the procedure for making decisions on the creation, reorganization and liquidation of municipal enterprises and institutions, as well as on the establishment of tariffs for the services of municipal enterprises and institutions.
The owner of the property of a unitary enterprise based on the right of economic management in relation to the specified enterprise in accordance with paragraph 1 of Article 20 of the Law on Unitary Enterprises:
Decides to establish a unitary enterprise;
Determines the goals, subject, activities of the unitary enterprise, and also gives consent to the participation of the unitary enterprise in associations and other associations of commercial organizations;
Determines the procedure for compiling, approving and establishing indicators for plans (programs) for the financial and economic activities of a unitary enterprise;
Approves the charter of a unitary enterprise, makes changes to it, including approves the charter of a unitary enterprise in a new edition;
Takes a decision on the reorganization or liquidation of a unitary enterprise in the manner prescribed by law, appoints a liquidation commission and approves the liquidation balance sheets of a unitary enterprise;
Forms the statutory fund of the municipal enterprise;
Appoints the head of a unitary enterprise, concludes with him, changes and terminates labor contract in accordance with labor legislation and other normative legal acts containing labor law norms;
Coordinates the hiring of the chief accountant of a unitary enterprise, the conclusion with him, the change and termination of an employment contract;
Approves the financial statements and reports of the unitary enterprise;
Carries out control over the use for its intended purpose and the safety of the property belonging to the unitary enterprise;
Approves indicators economic efficiency activities of a unitary enterprise and controls their implementation;
Gives consent to the creation of branches and the opening of representative offices of a unitary enterprise;
Gives consent in cases provided by law on unitary enterprises, to conclude major transactions, transactions in which there is an interest, as well as other transactions;
Makes decisions on conducting audits, approves the auditor and determines the amount of payment for his services. According to Article 26 of the Law on Unitary Enterprises financial statements of a unitary enterprise in cases determined by the owner of the property of a unitary enterprise, is subject to mandatory annual audit an independent auditor;
It has other rights and bears other obligations determined by the legislation of the Russian Federation.
The owner of the property of a state-owned enterprise is endowed with broader rights and therefore, in addition to the powers indicated above, has the right to:
To seize excess, unused or misused property from a state-owned enterprise;
Bring to the state enterprise binding orders for the supply of goods, performance of work, provision of services for state or municipal needs;
Approve the estimate of income and expenses of the state-owned enterprise.
According to Article 158 of the Budget Code of the Russian Federation, the chief administrator of budgetary funds exercises control over the use of budgetary funds by budgetary funds administrators, municipal unitary enterprises, to which it has been transferred under the right of economic management or in operational management property of the municipality. Direct control over the use of budgetary funds by unitary enterprises is carried out at the initiative of the chief manager of budgetary funds by state bodies. financial control.
The owner of the property of a unitary enterprise has the right to apply to the court with claims for the recognition of a voidable transaction with the property of a unitary enterprise as invalid, as well as with a demand to apply the consequences of the invalidity of a void transaction in cases established by the Civil Code of the Russian Federation and the Law on Unitary Enterprises. deals, committed by enterprises on the alienation of property, contrary to the restrictions established by the Civil Code of the Russian Federation and the Law on Unitary Enterprises, are invalid as void.
The owner of the property of a unitary enterprise has the right to claim the property of a unitary enterprise from someone else's illegal possession.
The powers of the owner of the property of a unitary enterprise whose property is owned by a municipal formation cannot be transferred by the municipal formation of the Russian Federation, to a subject of the Russian Federation or to another municipal formation.
In accordance with Article 26 of the Law on Unitary Enterprises, the owner of the property of a unitary enterprise exercises control over the activities of a unitary enterprise.
At the end of the reporting period, the unitary enterprise submits accounting reports and other documents to authorized local government bodies, the list of which is determined by local government bodies.
The financial statements should also include an auditor's report confirming the reliability of the financial statements if they are subject to mandatory audit in accordance with the law (Resolution of the Federal Antimonopoly Service of the Central District dated May 31, 2005 in case No. A35-10877 / 04-C2).
In accordance with Article 7 of the Federal Law of August 7, 2001 No. 119-FZ "On Auditing", a mandatory audit is carried out in cases where:
The organization is a municipal unitary enterprise based on the right of economic management, if the amount of proceeds from the sale of products (performance of work, provision of services) for one year exceeds the minimum wage established by the legislation of the Russian Federation by 500 thousand times or the amount of balance sheet assets exceeds at the end of the reporting year 200 thousand times the minimum wage established by the legislation of the Russian Federation. For municipal unitary enterprises by the law of the subject of the Russian Federation financial indicators may be lowered;
Mandatory audit in relation to these organizations is provided for by federal law (for example, Article 26 of the Law on Unitary Enterprises establishes that the accounting statements of a unitary enterprise in cases determined by the owner of the property of a unitary enterprise are subject to mandatory annual audit by an independent auditor).
According to Article 21 of the Law on Unitary Enterprises, the head of a unitary enterprise (director, general director) is the sole executive body of a unitary enterprise. The head of a unitary enterprise is appointed by the owner of the property of the unitary enterprise. The head of a unitary enterprise is accountable to the owner of the property of the unitary enterprise.
The head of a unitary enterprise acts on behalf of the unitary enterprise without a power of attorney, including representing its interests, making transactions on behalf of the unitary enterprise in accordance with the established procedure, approving the structure and staffing of the unitary enterprise, hiring employees of such an enterprise, concluding with them, changing and terminating employment contracts, issues orders, issues powers of attorney in the manner prescribed by law.
The head of the unitary enterprise organizes the implementation of the decisions of the owner of the property of the unitary enterprise.
Part 2 of Article 21 of the Law on Unitary Enterprises establishes restrictions for the head of an enterprise. The head of the enterprise is not entitled to:
Be a founder (participant) of a legal entity;
Hold positions and engage in other paid activities in government bodies, local government, commercial and non-profit organizations, except for teaching, scientific and other creative activities;
Engage in entrepreneurial activities;
To be the sole executive body or a member of the collegial executive body of a commercial organization, except in cases where participation in the bodies of a commercial organization is included in official duties this manager;
Take part in strikes.
The head of a unitary enterprise is subject to attestation in accordance with the procedure established by the owner of the property of the unitary enterprise.
The procedure for attestation of the head of a unitary enterprise is established regulations local authorities.
Heads of enterprises who are on parental leave are subject to certification no earlier than one year after starting work.
The head of a unitary enterprise reports on the activities of the enterprise in the manner and within the time limits determined by the owner of the property of the unitary enterprise.
In cases stipulated by federal laws and legal acts issued in accordance with them, advisory bodies (scientific, pedagogical, scientific, scientific and technical councils, and others) may be formed in a unitary enterprise. The charter of a unitary enterprise must define the structure of such bodies, their composition and competence.
In accordance with Article 25 of the Law on Unitary Enterprises, the head of a unitary enterprise, when exercising his rights and performing his duties, must act in the interests of the unitary enterprise in good faith and reasonably.
According to Article 277 Labor Code Russian Federation, the head of the enterprise bears full liability for direct actual damage caused to the organization.
In the cases provided for by federal law, the head of the enterprise compensates the organization for losses caused by his guilty actions. In this case, the calculation of losses is carried out in accordance with the norms provided for by civil law.
Article 25 of the Law on Unitary Enterprises establishes that the head of a unitary enterprise shall, in accordance with the procedure established by law, be liable for losses caused to the unitary enterprise by its guilty actions (inaction), including in the event of loss of property of the unitary enterprise.
The owner of the property of a unitary enterprise has the right to file a claim for compensation for losses caused to the unitary enterprise against the head of the unitary enterprise.
A unitary enterprise may, in its own name, acquire and exercise property and personal non-property rights, bear obligations, be a plaintiff and a defendant in court.
As previously noted, municipal unitary enterprises have special legal capacity, that is, they are entitled to carry out only those types of activities that are defined in the enterprise's charter. According to paragraph 1 of Article 113 of the Civil Code of the Russian Federation, the charter of an enterprise must contain information about the subject and goals of the enterprise.
In addition, normative acts may establish certain types of activities that unitary enterprises are not entitled to carry out. Thus, Article 1 of the Federal Law of December 2, 1990 No. 395-1 “On Banks and Banking Activities” establishes that credit organizations can only be created in the form of business entities. Unitary enterprises do not belong to business entities.
A unitary enterprise may have civil rights corresponding to the subject and goals of its activity, provided for in the charter of this unitary enterprise, and bear obligations related to this activity.
Thus, the Law on Unitary Enterprises establishes three restrictions for unitary enterprises: purpose, subject and type of activity. Transactions made by a unitary enterprise, in addition to being consistent with the goals and within the scope of the subject of the enterprise, must also be a form of carrying out the type of activity enshrined in the charter of the enterprise.
The owner of the property of a unitary enterprise has a number of powers to control transactions by a unitary enterprise:
Gives consent to the disposal of real estate, and in cases established by federal laws, other regulatory legal acts or the charter of a unitary enterprise, to other transactions;
Gives consent to the participation of a unitary enterprise in other legal entities;
Gives consent in the cases provided for by the Law on Unitary Enterprises to the conclusion of major transactions, transactions in which there is an interest, and other transactions.
Note!
The absence of the consent of the owner of the property of the enterprise to the conclusion of transactions requiring such consent, as well as the conclusion of transactions by the enterprise that go beyond the special legal capacity of the enterprise (even if such a transaction is approved by the owner of the property of the enterprise) may lead to adverse consequences in the form of recognition of such transactions as invalid (Resolution of the Federal Antimonopoly Service of the Povolzhsky district dated May 12, 2005 in case No. A72-9071 / 04-24 / 481).
Certain types of activities, the list of which is determined by federal law, can be carried out by a unitary enterprise only on the basis of a license. Article 17 of the Federal Law of August 8, 2001 No. 128-FZ "On Licensing Certain Types of Activities" establishes a list of licensed types of activities. The procedure for licensing certain types of activities is established by the relevant resolutions of the Government of the Russian Federation.
According to Article 22 of the Law on Unitary Enterprises, a transaction in which the head of a unitary enterprise has an interest cannot be entered into by a unitary enterprise without the consent of the owner of the unitary enterprise's property.
The head of a unitary enterprise is recognized as interested in the transaction by the unitary enterprise in cases where he, his spouse, parents, children, brothers, sisters and (or) their affiliates, recognized as such in accordance with the legislation of the Russian Federation:
Are a party to a transaction or act in the interests of third parties in their relations with a unitary enterprise;
Own (each individually or in aggregate) twenty or more percent of shares (shares, shares) of a legal entity that is a party to a transaction or acts in the interests of third parties in their relations with a unitary enterprise;
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 a unitary enterprise;
In other cases determined by the charter of the unitary enterprise.
In order to implement these provisions, the head of a unitary enterprise must bring to the attention of the owner of the property of a unitary enterprise the following information:
About legal entities in which he, his spouse, parents, children, brothers, sisters and (or) their affiliates, recognized as such in accordance with the legislation of the Russian Federation, own twenty or more percent of the shares (interests, shares) in the aggregate;
About legal entities in which he, his spouse, parents, children, brothers, sisters and (or) their affiliates, recognized as such in accordance with the legislation of the Russian Federation, hold positions in management bodies;
About the ongoing or proposed transactions known to him, in the commission of which he can be recognized as interested.
A transaction in which there is an interest of the head of a unitary enterprise and which was made in violation of the requirements provided for in Article 22 of the Law on Unitary Enterprises may be declared invalid at the suit of the unitary enterprise or the owner of the property of the unitary enterprise.
In accordance with Article 23 of the Law on Unitary Enterprises, a decision to conclude a major transaction is made with the consent of the owner of the property of a unitary enterprise.
A major transaction is a transaction or several interconnected transactions related to the acquisition, alienation or possibility of alienation by a unitary enterprise, directly or indirectly, of property, the value of which is more than ten percent of the authorized capital of the unitary enterprise or more than 50 thousand times the minimum wage established by federal law.
The value of property alienated by a unitary enterprise as a result of a major transaction is determined on the basis of its accounting data, and the value of property acquired by a unitary enterprise is determined on the basis of the offer price of such property.
Big deal committed without the consent of the owner of the property of a unitary enterprise is invalid.
According to Article 7 of the Law on Unitary Enterprises, a unitary enterprise based on the right of economic management is liable for its obligations with all its property.
A unitary enterprise shall not be liable for the obligations of the owner of its property (municipal formation).
A municipal entity is not liable for the obligations of a municipal enterprise, except in cases where the insolvency (bankruptcy) of such an enterprise is caused by the owner of its property (Resolution of the Federal Antimonopoly Service of the Far Eastern District of August 17, 2004 in case No. Ф03-А73 / 04-1 / 2330). AT specified cases if the property of the municipal enterprise is insufficient, the owner may be held subsidiary liable for its obligations.
Such cases are possible when the unitary enterprise executes the instructions of the owner of the property of the enterprise, which are obligatory for the execution by the enterprise.
Note!
The Law on Unitary Enterprises does not say anything about the form of fault of the owner of the property (that is, it does not matter whether or not the owner of the property assumed that as a result of his instructions the enterprise could become bankrupt).
However, it must be noted that prerequisite bringing the owner to subsidiary liability is a causal relationship between the use by the owner of his rights and opportunities in relation to the unitary enterprise-debtor and its insolvency (bankruptcy) (Resolution of the Federal Antimonopoly Service of the East Siberian District of August 17, 2005 in case No. A19-2941 / 05-16 -Ф02-3905/05-С2).
At the same time, claims for the application of subsidiary liability of the founder (owner of the property of a unitary enterprise) to the debtor's creditors are entitled to file in court only bankruptcy trustees of debtors in the interests of all bankruptcy creditors (Resolution of the Federal Antimonopoly Service of the Volga-Vyatka District of January 21, 2005 in case No. A31-802 / twenty). Otherwise, the claim will be denied (Resolution of the FAS of the East Siberian District of August 23, 2005 in case No. A33-20781 / 04-C1-F02-4087 / 05-C2).
A state-owned enterprise is liable for its obligations with all its property on the basis of the right of operational management of property. In accordance with paragraph 3 of Article 7 of the Law on Unitary Enterprises, a municipal entity bears subsidiary liability for the obligations of its state-owned enterprises if their property is insufficient, regardless of the grounds for liability.
According to Article 61 of the Civil Code of the Russian Federation, it entails its termination without the transfer of rights and obligations by way of succession to other persons.
By itself, the liquidation of the debtor cannot violate the rights of the creditor, since the law provides for the possibility of satisfying their claims during liquidation. Liquidation does not imply the termination of the obligations of the liquidated enterprise without the fulfillment of obligations duly assumed by it (Resolution of the Federal Antimonopoly Service of the Urals District of June 3, 2004 in case No. F09-1652 / 04-GK).
The procedure for the liquidation of a unitary enterprise is determined by the Civil Code of the Russian Federation, the Law on Unitary Enterprises and other regulatory legal acts.
A unitary enterprise can be liquidated both voluntarily (by decision of the owner of its property) and forcibly.
A unitary enterprise may be liquidated by the decision of the owner of its property in the event of the expiration of the period for which the enterprise was created, in connection with the achievement of the goal for which it was created, or for other reasons.
According to paragraph 4 of Article 35 of the Law on Unitary Enterprises, if a decision is made to liquidate a unitary enterprise, the owner of its property shall appoint a liquidation commission.
From the moment of appointment of the liquidation commission, the powers to manage the affairs of the unitary enterprise are transferred to it. The liquidation commission, on behalf of the liquidated unitary enterprise, acts in court.
Forced liquidation of an enterprise is carried out by the court. Article 61 of the Civil Code of the Russian Federation establishes the grounds for forced liquidation:
In the event of gross violations of the law committed during the creation of the enterprise, if these violations are irreparable;
Carrying out activities without proper permission (license) or activities prohibited by law, or in violation of the Constitution of the Russian Federation;
Carrying out activities with other repeated or gross violations law or other legal acts. When considering applications for the liquidation of legal entities on the grounds that they carry out activities with repeated violations of the law, other legal acts, it is necessary to investigate the nature of the violations, their duration and the subsequent activities of the legal entity after the commission of violations. An enterprise cannot be liquidated if the violations committed by it are of a minor nature or the harmful consequences of such violations have been eliminated. In addition, if a legal entity violates the requirements of the law or other legal acts that can be eliminated, the court has the right to propose that it take measures to eliminate these violations;
In other cases provided for by the Civil Code of the Russian Federation, as well as the Law on Unitary Enterprises.
As you can see, this list is not exhaustive. For example, paragraph 2 of Article 15 of the Law on Unitary Enterprises establishes that if, at the end of the financial year, the value of the net assets of a state-owned enterprise turns out to be less than the minimum size of the authorized capital established by the Law on Unitary Enterprises on the date of state registration of such an enterprise, and within three months the value of net assets assets will not be restored to the minimum size of the authorized capital, the owner of the property of a state-owned enterprise must decide on the liquidation or reorganization of such an enterprise. AT this case we can talk about the mandatory liquidation carried out by the owner of a unitary enterprise.
It should be noted that the presence of a decision on voluntary liquidation does not exclude the possibility of filing a lawsuit with a court for its forced liquidation if the said decision is not implemented and there are grounds provided for by paragraph 2 of Article 61 of the Civil Code of the Russian Federation (paragraph 7 information letter Presidium of the Supreme Arbitration Court of the Russian Federation dated January 13, 2000 No. 50 "Review of the practice of resolving disputes related to the liquidation of legal entities (commercial organizations)").
The demand for the liquidation of a legal entity on the above grounds may be brought to court by a state body or a local government body, to which the right to present such a demand is granted by law.
In particular, in appropriate cases, claims for the forced liquidation of legal entities may be filed by tax authorities (based on the Tax Code of the Russian Federation (hereinafter referred to as the Tax Code of the Russian Federation)), a prosecutor (based on Article 35 of the Federal Law of January 17, 1992 No. Russian Federation").
When considering these claims and assessing the validity of the stated claims, it is necessary to identify the existence of grounds for the liquidation of the relevant legal entity referred to by the plaintiff. Research into the financial situation of the defendant in such cases is not required (Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 5, 1997 No. 23 “On the application of paragraphs 2 and 4 of Article 61 of the Civil Code of the Russian Federation”).
By a court decision on the liquidation of a legal entity, its founders may be entrusted with the obligation to carry out the liquidation of the legal entity. In this case, the decision on the liquidation of the legal entity shall indicate the deadlines for their submission to the arbitration court of the approved liquidation balance sheet and completion of the liquidation procedure (Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated August 13, 2004 No. 84 “On Certain Issues of Application by Arbitration Courts of Article 61 of the Civil Code Russian Federation").
These periods, in accordance with Article 118 of the Arbitration Procedure Code of the Russian Federation, may be extended by the arbitration court, if necessary.
In addition, the court has the right to appoint a liquidator of a unitary enterprise. A natural person (including a person who does not have the status of an arbitration manager) may be appointed as a liquidator with his consent at the suggestion of the body that applied to the arbitration court with an application for the liquidation of the legal entity.
The obligation to carry out the liquidation of a legal entity may not be imposed by an arbitration court on a state or municipal body, on whose claim the court has adopted an appropriate decision.
Relevant responsibilities should be assigned to persons or bodies authorized to do so by law or the constituent documents of a legal entity (paragraph 9 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 13, 2000 No. 50 “Overview of the practice of resolving disputes related to the liquidation of legal entities (commercial organizations )").
The owner of the property of a unitary enterprise, who has made a decision to liquidate a unitary enterprise, is obliged to immediately inform the authorized state body in writing about this in order to enter into the Unified State Register of Legal Entities information that the legal entity is in the process of liquidation. Currently, this body is the Federal Tax Service.
In practice, the question arose of who is obliged to send information about the decision to liquidate the enterprise in cases of forced liquidation, in court.
In order to respect the rights and legitimate interests of third parties and to ensure state control over the liquidation of legal entities carried out by court decision, it is recommended that the courts send, in order of information, the decisions made on the liquidation of legal entities to the relevant state bodies that carry out their state registration (paragraph 11 of the Information Letter Presidium of the Supreme Arbitration Court of the Russian Federation dated January 13, 2000 No. 50 "Review of the practice of resolving disputes related to the liquidation of legal entities (commercial organizations)").
Based on Article 20 of the Law of August 8, 2001 No. 129-FZ “On State Registration of Legal Entities and Individual Entrepreneurs”, the founders of a legal entity are obliged within three days in writing notify the registration authority at the location of the liquidated unitary enterprise about this, attaching a decision on the liquidation of the legal entity.
The registering authority makes an entry in the Unified State Register of Legal Entities that the legal entity is in the process of liquidation. From this moment, state registration of changes made to the constituent documents of the liquidated legal entity, as well as state registration of legal entities, the founder of which is the specified legal entity, or state registration of legal entities that arise as a result of its reorganization are not allowed.
In cases where the legislator obliges to “notify” the decision to liquidate the company, the formation of a liquidation commission or the appointment of a liquidator, the payment of a state fee when submitting a notification is not required. This message is for informational purposes only.
The form of such notification was approved by Decree of the Government of the Russian Federation dated June 19, 2002 No. 439 “On approval of forms and requirements for execution of documents used in the state registration of legal entities, as well as individuals as individual entrepreneurs.
Upon receipt by the tax authority of a notice that the company has made a decision to liquidate or an application for deregistration of an organization being liquidated on the grounds established by Article 61 of the Civil Code of the Russian Federation, the tax authority shall appoint an on-site tax audit of the said legal entity. In the presence of debts on taxes and fees, ensures the application of measures to the enterprise to collect it in accordance with the legislation on taxes and fees.
A tax audit is carried out on the basis of a decision of the head of the tax authorities or his deputy, which indicates the reason for which the control measure is being carried out the liquidation of the taxpayer.
Article 89 of the Tax Code of the Russian Federation, tax inspectors are not entitled to conduct two on-site inspections for the same taxes within one calendar year, however, this restriction does not apply to inspections of organizations that cease their activities.
Field check cannot last more than two months, but most often tax inspectors checking a liquidated organization do not fit into such terms.
On the basis of acts of reconciliation with the tax authorities and acts of documentary verification of settlements, the amount of the organization's debt is determined.
However, in the presence of verified data on the actual termination of activities by a legal entity and the absence of information about the location of its body and founders, the issue of liquidation of this legal entity should be resolved in accordance with Federal Law No. 127-FZ of October 26, 2002 "On Insolvency (Bankruptcy) ".
For more information on the issues related to the procedure for conducting a tax audit, you can find in the book of the authors of CJSC "BKR-INTERCOM-AUDIT" "Tax Audits".
The owner of a unitary enterprise appoints a liquidation commission and establishes the procedure and terms for liquidation.
As already mentioned, from the moment the liquidation commission is appointed, the powers to manage the affairs of a legal entity are transferred to it (Resolution of the Federal Antimonopoly Service of the Volga-Vyatka District of February 15, 2005 in case No. A28-5525 / 2004-139 / 22).
The terms of reference of the liquidation commission are determined by Article 62 of the Civil Code of the Russian Federation. Based on the content of these norms, the head of the liquidation commission has the right to sign statements of claim when applying to the court on behalf of a legal entity in liquidation, issue powers of attorney to persons authorized to represent the interests of this legal entity in court, to perform other legal actions on behalf of a legal entity in liquidation in accordance with the decisions of the liquidation commission, taken within the limits of the rights granted to it by law.
The liquidation commission places in the press, which publishes data on the registration of legal entities, a message on liquidation, the procedure and terms for presenting claims by its creditors.
Order of the Ministry of Taxes of the Russian Federation dated September 29, 2004 No. SAE-3-09 / [email protected]“On the Establishment of a Mass Media to Ensure the Publication of Information in Accordance with the Legislation of the Russian Federation on the State Registration of Legal Entities”, the journal “Bulletin of State Registration” was established, in which information should be published in accordance with the legislation of the Russian Federation on the State Registration of Legal Entities, including information on liquidation unitary enterprise, the procedure and terms for presenting claims by its creditors. Letter of the Federal Tax Service of the Russian Federation dated July 13, 2005 No. CHD-6-09 / [email protected]"On the direction of methodological recommendations" contains an application form for the publication of messages, examples of the text of messages.
The liquidation commission develops and approves the liquidation plan.
The liquidation commission takes measures to identify creditors and collect receivables, and also notifies creditors in writing of the liquidation of a legal entity.
The term for the presentation of claims by creditors may not be less than two months from the date of publication of the notice on the liquidation of the company.
If the liquidation commission refuses to satisfy the creditor's claims or evades their consideration, the creditor has the right to file a lawsuit against the liquidation commission before the liquidation balance sheet of the legal entity is approved. By a court decision, the creditor's claims may be satisfied at the expense of the remaining property of the liquidated legal entity.
The creditor's claims filed after the expiration of the period established by the liquidation commission for their presentation shall be satisfied from the property of the liquidated legal entity remaining after satisfaction of the creditors' claims filed on time.
Claims of creditors not recognized by the liquidation commission, if the creditor has not filed a claim with the court, as well as claims, which the creditor has been denied satisfaction by a court decision, shall be considered extinguished.
At the end of the period for presenting claims by creditors liquidation commission draws up an interim liquidation balance sheet, which contains information on the composition of the property of the enterprise being liquidated, the claims submitted by creditors, as well as the results of their consideration. The interim liquidation balance sheet is approved by the owner of the property of the unitary enterprise.
The previous version of Article 63 of the Civil Code of the Russian Federation provided for the obligation of legal entities to agree on an interim liquidation balance sheet with the registration authorities. The current version only states that:
"In cases established by law, the interim liquidation balance sheet is approved in agreement with the authorized state body."
The Law on Unitary Enterprises does not establish such a condition.
According to Article 63 of the Civil Code of the Russian Federation, payments to creditors of a liquidated enterprise of monetary amounts are made by the liquidation commission in the order of priority established by Article 64 of the Civil Code of the Russian Federation, in accordance with the interim liquidation balance sheet, starting from the date of its approval, with the exception of creditors of the third and fourth priority, payments to which are made after the expiration of months from the date of approval of the interim liquidation balance sheet.
After completion of settlements with creditors, the liquidation commission draws up a liquidation balance sheet, which is approved by the owner of the property of a unitary enterprise (Article 20 of the Law on Unitary Enterprises).
Note!
The liquidation balance sheet does not require agreement with any body or approval by the court (Resolutions of the Federal Antimonopoly Service of the Far Eastern District dated June 14, 2005 in case No. F03-A04 / 05-1 / 1242, dated April 18, 2005 in case No. F03-A04 / 05-1 /505, Decree of the Federal Antimonopoly Service of the Volga District of May 31, 2005 in case No. A65-18694 / 04-SG3-25).
According to paragraph 5 of Article 63 of the Civil Code of the Russian Federation, in cases established by law, the liquidation balance sheet is approved in agreement with the authorized state body. The Law on Unitary Enterprises does not provide for the coordination of the liquidation balance sheet with any body.
In the event that at the time of the decision to liquidate the enterprise has no obligations to creditors, as well as the property remaining after the completion of settlements with creditors, the legal entity is transferred to its founders (participants) who have property rights to this property or rights of obligation in relation to this legal entity , unless otherwise provided by law, other legal acts or constituent documents of a legal entity.
The final stage in the liquidation of a company is the state registration of a unitary enterprise in connection with the liquidation. For state registration in connection with the liquidation of a legal entity, the following documents:
· an application for state registration signed by the applicant in the form approved by the Decree of the Government of the Russian Federation dated June 19, 2002 No. 439 “On approval of forms and requirements for the execution of documents used in the state registration of legal entities, as well as individuals as individual entrepreneurs”. The application confirms that the procedure for liquidating a legal entity established by federal law has been observed, settlements with its creditors have been completed, and the issues of liquidating a legal entity have been agreed with the relevant state bodies and (or) municipal bodies in cases established by federal law;
liquidation balance;
document confirming the payment of the state fee;
State registration in the event of liquidation of a legal entity is carried out within the time limits no more than five working days from the date of submission of documents to the registration authority.
The liquidation of the company is considered completed, and the legal entity ceased to exist from the moment the state registration authority makes the corresponding entry in the Unified State Register of Legal Entities.
The registering authority publishes information on the liquidation of a legal entity.
According to paragraph 5 of Article 35 of the Law on Unitary Enterprises, if during the liquidation of a state enterprise it is established that it is unable to satisfy the requirements of creditors in full, the head of such an enterprise or the liquidation commission must apply to the arbitration court with an application for declaring the state enterprise bankrupt (Resolution of the Federal Antimonopoly Service Volga District of May 18, 2004 in case No. A72-1316 / 02-R33B).
The grounds for declaring an enterprise bankrupt, the procedure for conducting bankruptcy procedures are established by the Federal Law of October 26, 2002 No. 127-FZ “On Insolvency (Bankruptcy)”.
Note!
This law does not apply to state-owned enterprises (Item 2 of Article 1 of Federal Law No. 127-FZ of October 26, 2002 "On Insolvency (Bankruptcy)").
Thus, a state-owned enterprise cannot be liquidated by a decision of an arbitration court by declaring it bankrupt.
In case of insolvency of state-owned enterprises, in accordance with paragraph 5 of Article 115 of the Civil Code of the Russian Federation, the rule on subsidiary liability of the owner for the obligations of such an enterprise in case of insufficiency of its property is subject to application. Under such circumstances, creditors present their claims to the owner of the property of the enterprise (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated October 22, 2002 No. 7358/02).
For more information on the issues related to the procedure for the liquidation of legal entities, as well as bankruptcy, you can find in the book of the authors of CJSC "BKR-INTERCOM-AUDIT" "Liquidation of legal entities, bankruptcy".
For more information on issues related to legal entities at all stages of existence (from creation to liquidation), you can find in the book of the authors of CJSC "BKR-INTERCOM-AUDIT" " Business companies and unitary enterprises.
Features of hiring the head of a municipal unitary enterprise. Is it possible to accept not a director, but an acting director of the MUP.
Answer
Answer to the question:
Peculiarities of hiring MUE managers, including the need to pass a competition, may be established by a regulatory legal act of the municipality. Unfortunately, we did not find such normative legal acts in your municipality.
According to Part 1 of Art. 21 Federal Law No. 161-FZ of November 14, 2002 “On State and Municipal Unitary Enterprises” the head of a unitary enterprise is appointed as the owner of the property of the unitary enterprise.
Accordingly, first of all, the decision of the owner is necessary, which can be formalized in the form of an order, resolution, etc. Based on this decision, the owner concludes an employment contract with the director of the MUE.
- may contain additional grounds for its termination.
On the basis of the concluded employment contract, an order for employment is issued (Article 68 of the Labor Code of the Russian Federation), which the head himself can sign. Labor legislation does not establish any prohibitions or special procedures for such cases. The legitimacy of this approach is confirmed by the letter of Rostrud dated March 11, 2009 No. 1143-TZ.
Reflect the fact of hiring a manager in him. Make an entry in general order, only in column No. 3 it is recommended to use the wording “appointed”, and not “accepted”, since the head is appointed by the decision of the owner. At the same time, if the wording “accepted” is used in the entry, then this is not a violation and it is not necessary to correct the entry. In column number 4. This conclusion follows from articles 16, 68 of the Labor Code of the Russian Federation.
When making an entry in the work book, it is more correct to indicate the decision of the owner as a basis.
Column 4 contains the date and number of the order (instruction) or other decision of the employer, according to which the employee was hired (clause 3.1 of the Instruction approved by the Decree of the Ministry of Labor of Russia dated October 10, 2003 No. 69).
Since the representative of the employer for the director is the owner, it is his decision that should be referred to.
Also, in the general manner, you need to issue a personal card, the director needs to be familiarized with local regulations, etc.
As for the possibility of accepting a director as an acting director, we note the following.
First, the fulfillment of the obligations vacant position not allowed. This provision is provided for in paragraph 2 of the Explanation of the State Committee for Labor of the USSR No. 30, the All-Union Central Council of Trade Unions No. 39 dated 12/29/1965 “On the procedure for paying for temporary replacement”.
Secondly, positions with the prefix “and. about." or "w.r.i. about." does not exist. And the use of this prefix is \u200b\u200bpossible only in one exceptional case, if this position (i.e., acting) is provided for by the staffing table.
If the position of "acting director" is not provided for in your staff list, then the appointment of an employee to this position is very doubtful. Such a free designation of positions may lead to the contestation of transactions concluded on behalf of the organization by the acting director.
From point of view labor law when a director is hired for the position of an acting director, such a position must be included in staffing, as well as in the Articles of Association, in order to eliminate the risk of contesting transactions.
Details in the materials of the System Personnel:
Article 21. Head of a unitary enterprise
1. The head of a unitary enterprise (director, general director) is the sole executive body of a unitary enterprise. The head of a unitary enterprise is appointed by the owner of the property of the unitary enterprise. The head of a unitary enterprise is accountable to the owner of the property of the unitary enterprise.
The head of a unitary enterprise acts on behalf of the unitary enterprise without a power of attorney, including representing its interests, making transactions on behalf of the unitary enterprise in accordance with the established procedure, approving the structure and staffing of the unitary enterprise, hiring employees of such an enterprise, concluding with them, changing and terminating employment contracts, issues orders, issues powers of attorney in the manner prescribed by law.
The head of the unitary enterprise organizes the implementation of the decisions of the owner of the property of the unitary enterprise.
2. The head of a unitary enterprise is not entitled to be a founder (participant) of a legal entity, hold positions and engage in other paid activities in state bodies, local governments, commercial and non-profit organizations, except for teaching, scientific and other creative activities, engage in entrepreneurial activities, be a sole proprietor an executive body or a member of the collegiate executive body of a commercial organization, except in cases where participation in the bodies of a commercial organization is part of the official duties of this head, as well as to take part in strikes.
The head of a unitary enterprise is subject to attestation in accordance with the procedure established by the owner of the property of the unitary enterprise.
3. The head of a unitary enterprise shall report on the activities of the enterprise in the manner and within the time limits determined by the owner of the property of the unitary enterprise.
4. In the cases provided for by federal laws and legal acts issued in accordance with them, advisory bodies (scientific, pedagogical, scientific, scientific and technical councils, and others) may be formed in a unitary enterprise. The charter of a unitary enterprise must define the structure of such bodies, their composition and competence.
- Legal basis: Federal Law No. 161-FZ dated November 14, 2002
On state and municipal unitary enterprises - Answer: How to conclude an employment contract with the General Director
The employment contract with the head of the organization has a number of features, namely:
- may be concluded for a period established by the constituent documents of the organization, by agreement of the parties or by the norms of federal legislation, but not more than five years (Articles 58, 59, 275 of the Labor Code of the Russian Federation);
- may provide for a probation condition for up to six months (part 5 of article 70 of the Labor Code of the Russian Federation). The test condition can be established only if the general director is appointed, and not elected to the position by competition (part 4 of article 70 of the Labor Code of the Russian Federation);
- may contain additional grounds for its termination. See more about this.
In addition, do not forget to include in it an additional condition on responsibility for ensuring protection (part 6 of article 11 of the Law of July 29, 2004 No. 98-FZ).
Ivan Shklovets,
3. Answer: Which document to indicate as the basis for employment in work book General Director elected to the position by the general meeting of participants (shareholders) of the organization
As the basis for hiring the General Director in his work book, indicate:
- or details of the order on the entry of the General Director into office;
- or protocol details general meeting participants (shareholders) (decision of the sole participant, minutes of the board of directors (supervisory board)) on the election (appointment) of the general director.
It is explained like this.
Column 4 of the work book indicates the date and number of the order (instruction) or other decision on hiring an employee (clause 3.1 of the Instruction approved by Decree of the Ministry of Labor of Russia dated October 10, 2003 No. 69).
The General Director is the sole executive body of the company and is elected (appointed) to the position by the general meeting of participants (shareholders) of the organization (sole participant, board of directors (supervisory board)) for a certain period (clause 1, article 40, article 39 of the Law of February 8 1998 No. 14-FZ, paragraphs 1, 3, article 69 of the Law of December 26, 1995 No. 208-FZ).
The agreement between the organization and the general director is signed on behalf of the company by the chairman of the general meeting of participants (shareholders) (sole participant, chairman of the board of directors (supervisory board) or other authorized person of the organization (paragraph 2, clause 1, article 40 of the Law of February 8, 1998 No. 14-FZ, paragraph 2, paragraph 3, article 69 of the Law of December 26, 1995 No. 208-FZ).
Moreover, if an employment contract is concluded with the general director, his employment must be formalized by order (instruction) (part 1 of article 68 of the Labor Code of the Russian Federation). Therefore, the CEO issues an order to take office.
Thus, for such an employee of an organization as the general director, as a basis for hiring in the work book, you can specify both the details of the order to take office and the details of the minutes of the general meeting of participants (shareholders) of the organization (decision of the sole participant, minutes of the council directors (supervisory board)) on the election (appointment) of the general director.
Ivan Shklovets,
Deputy Head Federal Service for work and employment
With respect and wishes for comfortable work, Tatyana Kozlova,
Expert Systems Personnel
We draw up documents for the appointment of the director of the Municipal Unitary Enterprise (MUE). Please advise what restrictions apply to persons holding this position (age limit, education, criminal record)? Can the director of an enterprise be the head of other legal entities? What kind of education should he have and what regulatory legal acts regulate the procedure for appointing the head of the MUP?
Answer
The head of the MUP is not entitled to be a member or head of other legal entities. The head of the MUP must undergo certification for compliance with the position held (see recommendation below). There are no other restrictions on age or education. It is also necessary to check the head of the MUP for the absence of information about him in the register of disqualified persons ().
Requirements for the head of a unitary enterprise are established by Article 21 of the Federal Law of November 14, 2002 No. 161-FZ.
The rationale for this position is given below in the materials of the Lawyer System.
"Certification of the head of a state unitary enterprise of a constituent entity of the Russian Federation and the head of a municipal unitary enterprise
In the subjects of the Russian Federation and municipalities there are rules that are generally similar to.
However, there may be some features regarding, for example*:
- a list of persons who are not subject to attestation (on the procedure for attestation of the heads of state unitary enterprises of St. Petersburg, approved);
- number of members attestation commission(on the procedure for attestation of heads of state unitary enterprises of the Leningrad region, approved
Among the many organizational and legal forms provided for by Russian legislation, there is also a municipal unitary enterprise.
They can operate both at the federal level and at the regional level - however, most often such enterprises are created precisely by the local self-government of municipalities.
Let's try to figure out what constitutes a municipal unitary enterprise, briefly called MUP.
Organizational form
Define legal status MUP is easiest based on the name of this organizational and legal form. Every word in it is significant:
- "Municipal" - this means that it is created at the level of local government to meet municipal needs in some kind of product, or, more often, in the performance of any type of work or the provision of services. In the event that the initiator of the creation is the state, state unitary enterprises are created.
- "Unitary" - the property of the enterprise is integral and is not divided into shares, shares or other shares. Even its employees cannot own part of the property of the MUP.
- "Enterprise" is a separate entity economic activity, which is a legal entity that acts in relations with counterparties or authorities on its own behalf and has property that it manages.
Property
However, with regard to property, a special reservation must be made: MUP is not its owner. This means that although unitary enterprises and commercial organizations, but everything they use is owned by the respective municipality.
Local authorities only assign some material assets to him - but they continue to belong to the municipality itself. That is why MUPs are divided into two types, depending on the right on the basis of what right they use this property:
- on the right of economic management - in fact, this is the civil law status of most conventional CBMs;
- on operational management - the so-called state-owned enterprise. This type of CBM is much less common, because the operational management is not very convenient for doing business.
Operational management implies that any actions related to property require permission from the owner - in this case, the local authority. Unlike a municipal enterprise of the usual type, state-owned enterprises are less focused on making a profit and are much more dependent on budget financing. An example of a state-owned enterprise can be electric transport enterprises (trolleybuses or trams) in many cities.
Disposal of property
MUP has no right to sell, lease or otherwise dispose of property without the consent of the local authority. It also cannot create subsidiaries.
However, they may invest part of their finances in the capital of commercial companies or partnerships, if this is permitted by the Articles of Association and local laws. Income from such deposits is recorded in the financial statements of the enterprise.
In addition, the MUP, within certain limits, can dispose of the income received from its activities. In particular, they are used to pay the wages of managers and employees of the company.
On what basis does it work?
The activities of municipal unitary enterprises are regulated by a number of regulations, of which the most important are the following:
- Civil Code of the Russian Federation. In their art. Art. 113-114 (Article 115, concerning state-owned enterprises, has not been in force since September 2014), this act gives general characteristics MUP and describes the general "rules of the game" for them.
- Law No. 161-FZ. It already concretizes the activities of MUP and gives a clearer description of the rules of their work.
- Law No. 44 FZ. It concerns such type of activity of MUP as purchase of goods or order of services for municipal needs. However, it must be remembered that from January 2018 this law will become mandatory in a much larger number of cases. In fact, this law will apply to almost all types of procurement carried out by MUP.
- Law No. 223-FZ. Before the entry into force of certain norms of Law No. 44-FZ, this act applies to most purchases made by municipal unitary enterprises. In particular, until January 2018, MUEs should be guided by it when concluding subcontracts in their field of activity.
The list is not complete: special rules of law apply to certain areas of activity carried out by these organizations. In addition, it should be taken into account that the work of the MUP can also be regulated by acts adopted by local governments: the administration of cities, districts, etc.
How is it created
In order for a municipal enterprise to start operating, the following is required:
- The relevant local authority issues a resolution on the establishment of the MUP. It is issued in cases where it is required either to service property that cannot be privatized by law, or to provide the population with some goods or services at minimum prices. In particular, quite often CBMs are created to service the operation of water supply networks, for landscaping and cleaning streets, garbage collection, etc.
- The same body approves the Charter of the enterprise. It's the only one founding document MUP. It reflects the purpose for which the enterprise is created, the property transferred to it, the management procedure and other issues related to the activities of the MUP. Important to know: The charter is prepared by the department or other division of the municipal authority for property management.
- A director is appointed. His powers are determined by the Charter, but the specific appointment is made by the owner - the local government. The municipal body also concludes an employment contract with the director.
- The transferred property is assessed and its full inventory is made.
- The local administration applies to Rosreestr with an application for registration of MUP.
- From the moment the local branch of Rosreestr makes an entry in the Unified State Register of Legal Entities (registry of legal entities), MUP can begin work.
What kind of financial and economic activity plan does MUP have, see the following video:
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