net assets. Investor buys a company

One-day counterparties are capable of causing damage both to the state in case of tax evasion, and to the taxpayer, who will have to prove the validity of the received tax benefit when refunding VAT or when accounting for expenses for profit tax purposes as a result of interaction with such unscrupulous counterparties.

Inspections are guided by the Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation dated October 12, 2006 No. 53 "", which fixed the main signs of dishonesty taxpayer and rules for their determination.

Taxpayers, in order to prove the exercise of due diligence and caution when choosing a counterparty, can turn to public criteria
self risk assessment for taxpayers used by the tax authorities in the process of selecting objects for field trips tax audits(approved by order of the Federal Tax Service of Russia dated May 30, 2007 No. MM-3-06 / [email protected]""), as well as explanations financial authorities regarding the case in which the taxpayer is considered to have fulfilled the obligation to verify the counterparty.

In order to protect yourself from the risks of running economic activity and possible claims from tax authorities, there are many opportunities to verify the integrity of a potential business partner.

We have identified a number of actions that, in the opinion of the tax authorities and the courts, must be taken in order to confirm the exercise of due diligence and caution when choosing a counterparty.

You can find out if a license was issued to a potential counterparty at websites of licensing authorities- for each type of activity, the licensing authority will be different. For example, the website of Rospotrebnadzor allows you to search through registers of licenses issued for activities related to the use of pathogens of infectious diseases, and for activities in the field of the use of ionizing radiation sources.

7. Familiarize yourself with the annual financial statements of the counterparty. In accordance with paragraph 89 of the Regulations on the maintenance accounting and financial statements in Russian Federation(approved by the Ministry of Finance of Russia dated July 29, 1998 No. 34n), the annual financial statements of the organization are open to interested users (banks, investors, creditors, buyers, suppliers, etc.) who can familiarize themselves with it and receive copies of it with reimbursement for copying costs, and the organization should provide an opportunity for interested users to familiarize themselves with the financial statements.

In addition, Rosstat is obliged to provide information on the annual financial statements of organizations free of charge (Regulations on the Federal State Statistics Service, approved by the Government of the Russian Federation of June 2, 2008 No. 42, Rosstat of May 20, 2013 No. 183 "On approval of the Administrative Regulations for the provision Federal Service state statistics public service"Providing interested users with data from the accounting (financial) statements of legal entities operating in the territory of the Russian Federation").

8. Examine the register of unscrupulous suppliers. Of course, a potential counterparty is not necessarily a participant in the procurement system for state and municipal needs, but there is such a possibility. Therefore, we still recommend that you go through this optional verification stage and search for the appropriate registry, updated by the FAS Russia.

Advice

We recommend developing local normative act on the organization and improvement of pre-contractual work with potential counterparties, which would indicate its goals, principles of activity and interaction of managers, supply and security services, lawyers and other officials of the taxpayer in contact with potential counterparties, and also list the documents that must be requested from counterparties and other persons. The courts also pay attention to the existence of such a local act (decree of the FAS MO dated May 23, 2013 in case No. A40-98947 / 12-140-714). In addition, it makes sense to publish individual orders on checking a specific counterparty for subsequent confirmation of their correctness in the event of a conflict.

9. Check the authority of the person signing the contract. Courts often point to the need to verify credentials as a condition for recognizing a taxpayer in good faith (FAS ZSO dated May 25, 2012 in case No. A75-788 / 2011, Eighth Court of Appeal dated September 20, 2013 in case No. А46-5720/2013). Moreover, if the taxpayer received all the necessary documents and information, but did not verify the authority of the representative of the counterparty to sign the documents, this will be the basis for recognizing this taxpayer as bad faith (FAS MO decision of July 11, 2012 in case No. A40-103278 / 11 -140-436).

When considering a case, in the event that the signatory refuses to sign on the documents, it is usually appointed handwriting expertise- but sometimes it does without it (FAS UO dated June 30, 2010 No. F09-4904 / 10-C2 in case No. A76-39186 / 2009-41-833). However, more often the courts emphasize that a simple visual comparison of signatures and testimony of a taxpayer representative cannot be recognized. sufficient reason to recognize that the documents were signed by unidentified persons (decision of the Third Arbitration Court of Appeal dated October 13, 2010 in case No. A33-4148 / 2010).

And of course, the courts ascertain the fact of bad faith of the taxpayer in the event that authorised representative counterparty at the time of signing the documents died(VAS RF dated December 6, 2010 No. VAS-16471/10) or his powers were terminated(FAS PO dated February 28, 2012 No. F06-998/12 in case No. A65-14837/2011). On the other hand, the latter case cannot, according to the courts, testify to the receipt of an unreasonable tax benefit if, before the conclusion of the disputed transaction, the taxpayer had long-term economic relations with the counterparty (FAS SKO dated April 25, 2013 No. Ф08-1895 / 13 in the case No. A53-12917 / 2012, decision of the FAS ZSO dated October 27, 2011 No. F07-8946 / 11 in case No. A52-4227 / 2010).

Before signing the documents, you should pay attention to the following:

is the transaction being concluded for your counterparty major;
hasn't expired term of office representative of the counterparty (it is determined by the charter of the organization or a power of attorney);
not limited whether charter powers of the director to conclude transactions, the amount of which exceeds a certain value.

10. Make a request to the tax office at the place of registration of the counterparty. The courts emphasize that this is also regarded as a manifestation of the taxpayer's prudence (FAS ZSO dated October 14, 2010 in case No. A27-26264 / 2009, FAS ZSO dated March 5, 2008 No. F04-1408 / 2008 (1506-A45-34) in case No. A45-5924 / 07-31 / 153, of the Third Arbitration Court of Appeal of October 11, 2013 in case No. A74-5445 / 2012, of the Eleventh Arbitration Court of Appeal of September 5, 2012 in case No. A55-1742 / 2012 ).

Moreover, the district arbitration courts confirm duty of the tax authorities provide the requested information within the range of information not recognized in accordance with tax secrecy. Thus, the FAS ZSO emphasized that the inspectorate’s refusal to provide information about the taxpayer’s counterparty affects the latter’s rights related to obtaining tax benefits, taking into account the taxpayer’s obligation to confirm due diligence and caution when choosing a counterparty (Decree of the FAS ZSO dated December 14, 2007 No. F04-67 / 2007 (77-A67-32) in case No. A67-1687 / 2007).

Sometimes the courts even emphasize that the taxpayer had the opportunity to contact the relevant services to check the counterparty, but he did not do this (FAS MO dated September 14, 2010 No. KA-A40 / 10728-10 in case No. A40-4632 / 10- 115-57).

True, occasionally the courts still come to the conclusion that the taxpayer could not apply to the inspectorate at the place of registration of the counterparty, since only tax authorities have such authority (FAS SZO dated July 31, 2013 in case No. A13-8751 / 2012).

But even if the tax office refuses to respond to the request, he the fact of his direction will indicate that the taxpayer wanted to protect himself when choosing a counterparty and can serve as evidence of due diligence in the future. It is important that the request be submitted personally to the office tax office(a copy of the request with a mark of acceptance should remain on hand) or by mail with a return receipt and an inventory of the attachment (in this case, one copy of the inventory and the returned notification remain).

As we can see, the positions of the courts regarding the scope of actions that must be performed to verify the counterparty's good faith differ. True, sometimes the courts are a little cunning.

So, they point out that the tax inspectorate did not prove the lack of due diligence of the taxpayer - on the contrary, when making controversial transactions, they were requested notarized copies required documents. At the same time, the courts emphasize that in the field of tax relations valid presumption of good faith, and law enforcement authorities cannot interpret the concept of "conscientious taxpayers" as imposing additional obligations on taxpayers that are not provided for by law (Decree of the FAS MO dated January 31, 2011 No. KA-A40 / 17302-10 in case No. A40-30846 / 10-35 -187, decision of the FAS MO of December 16, 2010 No. KA-A40 / 15535-10-P in case No. A40-960 / 09-126-4, decision of the FAS MO of July 22, 2009 No. KA-A40 / 6386 -09 in case No. A40-67706/08-127-308).

Such an understanding of good faith was developed by the Constitutional Court of the Russian Federation in No. 329-O of October 16, 2003, which is often referred to by taxpayers when substantiating their position. In particular, the Court emphasized that the taxpayer cannot be held responsible for the actions of all organizations participating in the multi-stage process of paying and transferring taxes to the budget.

At the same time, courts often point to the need to request relevant documents from the counterparty, emphasizing that these actions have for the taxpayer nature of duty(FAS PO dated July 14, 2010 in case No. A57-7689 / 2009, FAS ZSO dated July 20, 2010 in case No. A81-4676 / 2009).

Sometimes the attention of the courts may be drawn to other details - for example, the conclusion of a contract for a "trial" delivery of goods. small party to verify the counterparty (decree of the Federal Antimonopoly Service of the Moscow District dated December 16, 2010 No. KA-A40 / 15535-10-P in case No. A40-960 / 09-126-4), the fact of registration of the counterparty in several days before the transaction (FAS UO dated November 28, 2012 No. F09-11410 / 12 in case No. A60-7356 / 2012), etc. The tax authorities may also refer to the fact that the counterparty organization has "mass leaders and founders", and this fact should have alerted the taxpayer (FAS MO dated November 3, 2011 No. F05-11505 / 11 in case No. A41-23181 / 2010).

In conclusion, we note that the presence only one sign of dishonesty counterparty, as a rule, is not an obstacle to the recognition of the tax benefit received by the taxpayer as unjustified. However, their combination often makes tax inspectorates wary, and the courts make a decision not in favor of the taxpayer.

AT this article we will tell you how, using available means, you can partially check a legal entity for solvency. This will be useful to those who have already concluded an agreement with a particular legal entity, and to those who are going to sue the debtor.

After all a large number of decisions are not executed at all, and it is desirable for you to know in advance whether it is worth spending time and effort on the court or not.

This instruction will be useful to those who are going to buy an apartment in a new building.

You can also order a check of the builder in our company.

As a result of checking the developer, we provide you with a report produced according to our complete test procedure developer.

An example of a developer's full inspection report can be viewed here: "-2018".

Checking cost.

How it happens in practice ( from the experience of one of the shareholders):

There is a well-promoted brand, let's call it “GK Building Fast”, and this GK includes Romashka LLC, Bad Business LLC, Building Bad LLC. There are 3 construction objects on the website of the company "GK Stroyim Bystroim", the site is serious, and the GK itself has many offices.

The first impression is that the company is solid, well-known, perhaps even one of their friends bought an apartment from them once. As a result, you decide to conclude an agreement with GC Building Bystro. In the official office, where the inscriptions “GK We build quickly” flaunt, the manager in a company uniform radiates reliability, you are presented with branded booklets with the logo of “GK We build quickly” and there is no doubt that you are dealing with a reputable company.

If you suddenly start asking juristic documents, then the manager's iridescent smile turns into an evil one, as if you asked something forbidden, something that you should never talk about. To your question, why is the contract concluded not with "GK Stroim quickly", but with "Gibloe Delo" LLC, the manager gives you a pre-prepared answer that "Gibloe Delo" LLC is the official exclusive seller of the developer, and besides, the developer is included in holding group of companies. As a result, the contract is concluded without looking, without thinking, without verification. In the future, the Client will learn about the problems of the developer. The client tries to call the sales office of "GK Stroyim Bystrom", but there he is politely sent to the developer, and they explain that the office where they concluded the contract is just a sales office and has nothing to do with the developer. After endless promises from the Developer, the client begins to search for information on the Internet, finds forums of equity holders who, like him, thoughtlessly entered into an agreement with an unverified Developer. As a result, the client understands that it was necessary to thoroughly check the documents. It's good if the endless waiting for an apartment eventually ends in getting it, but statistics show that there are more than 90 problematic construction sites in Moscow and the Moscow Region.

So, let's begin.

Signs of a bad company:

The company is reluctant to provide any documents and answers questions related to legal purity deals. They react negatively to any of your questions, as if you are accusing them of fraud.
The company is often sued.
The company has outstanding writ of execution. That is, the debt is confirmed in court and not paid voluntarily.
The company has a lot of negative reviews.
The contracts that you enter into have a different form from the established 214-FZ.

How to check a company for solvency.

Extract from the Unified State Register of Legal Entities.

The first thing to do is to get an extract from the Unified State Register of Legal Entities for the legal entity with which you have an agreement, on the website of the tax office.

Specify the TIN or OGRN of the developer or the name, enter verification code and download the extract.

In the extract from the Unified State Register of Legal Entities, we are interested in the TIN of the director, it will be useful to us further.

Also note when the CEO was elected. If the change took place recently and numerous companies “hang” on us, then this may indicate that the company is preparing for bankruptcy. The general director is changed to the so-called "nominal" director in order to avoid criminal liability under Art. 315 of the Criminal Code (Non-execution of a court verdict, court decision or other judicial act). Usually, while a house is being built, the company is managed by a normal CEO, this is necessary to attract investors, loans, etc. But as soon as the time comes to pay the bills, the directors are changed to a nominal one, to whom no one will ever even give out a loan. But the company no longer needs them, because it simply rushes to the mercy of fate. If the change of director happened recently, then this is a bad sign.

The CEO information looks like this:

The TIN of the director is not present in all statements (it is not on the picture), because Not everyone has a TIN. If it is, be sure to write it down.

Same useful information for us there will be a registration date legal entity.

The older the company, the more reliable it is. If the company was opened quite recently, and the brand, according to the developer, has existed for much longer, then think about why they closed the company that existed before? If the manager of the developer tells you that they have been working on the real estate market for more than 20 years, and the company with which you enter into an agreement has existed for only 5, this means that the brand is registered to another legal entity that owns all the assets of the company, and the person with which you enter into an agreement, was created specifically in order to liquidate all debts in case of trouble without loss for the owners.

Company submits tax return or not.

If it does not give up, then the conclusion is simple - nothing good can be expected from such a company. If the company fails to file a tax return, the Federal Tax Service may freeze all of the company's accounts. Therefore, the company will not be able to function normally, this is a bad sign.

How to find out for which company a trademark is registered.

It is very good if you enter into an agreement with the company for which the brand is registered. The brand is registered to the company where there is money and assets, the brand is the most expensive asset of the company. How can I find out which company has a trademark registered?

You can ask the builder directly. If they answer that it is for the company with which the contract will be concluded, ask for a copy.

It is important that the company name and address exactly match the name and address of the legal entity named on the certificate.

On this site you can get information on the trademark and the legal entity to which it is registered.

In addition to information on trademarks, on this site you will receive a lot of other useful information.

How to determine the developer company - the legal entity with which you will conclude an agreement.

It is important to correctly identify the developer and check it out. If you check the legal entity for which the brand is registered, then the result of the check may be positive, since all assets are concentrated on the parent company, but if you check the Developer, the result of the check may be quite the opposite.

Details of a legal entity can be taken, as a rule, on the tab " Contacts»Or in project declaration to be posted on the site. It is important to check the details specified in the declaration posted on the website with another permits. If there is no such information on the site, then this is a minus. This means that the company is hiding something, because trustworthy companies post full details on their website, including bank details. Why does the group of companies not advertise the details of the entire group?

Because there are certainly companies that are part of the group or were once part of it and have a dark history - such as an unfinished house or completed, but with a delay, for example, of 5 years. Knowing the entire list of companies included in the group, you can already check the entire history of the company. Here firms also hide all affiliated legal entities.

We check the director for the nomination.

A nominee director is a person who is legally listed as a general director and bears all legal responsibility, while the actual management of the company is carried out by another person. The nominee director is actually a homeless person who doesn't care that debts or any criminal liability will "hang" on him.

To check the director for rating, you need to know the TIN CEO. We recognized him in the extract Unified State Register of Legal Entities.

Next, go to the site: https://focus.kontur.ru, https://www.kartoteka.ru,enter the TIN and see the results. If there are a lot of companies listed for this individual, then this may indicate the rating of the general director.

If the director is a nominee, then the company has already prepared in all respects to keep the defense against creditors, government agencies and other persons who make certain demands on the company. If the developer's company is run by a homeless person, then cooperation with such a company should be refrained from.

Analysis of the judicial work of the company.

A very important indicator. We go to the website of the card index of courts: https://kad.arbitr.ru https://www.1cont.ru/ , https://ras.arbitr.ru, https://sudact.ru/

Enter the company name and click start.

Next, we analyze how many court cases the company has. If the company is mainly listed as a Respondent, then this is a bad indicator, which means that the company does not pay contractors, suppliers. This may indicate financial problems companies. The company is just wasting time. You also need to analyze the amount of debt. If the amounts are small, then this is not important for a large developer. If the company acts as a Plaintiff, then on the one hand, this may indicate that the company is stable and the owner will not leave it. But on the other hand, it may indicate financial problems. If the amount of the claim is large, it means that the company did not receive the money it expected, and this may ultimately undermine financial stability companies. The subject matter of the litigation will be of fundamental importance. Pay attention to who the Developer is suing: with Vodokanal, Elektroset or the designer - this may affect the timing of the completion of the house. Well, it's not good at all if the company goes bankrupt. Such cases are marked with a red letter "B".

In short, the court cases of a company can tell a lot about the position of the company.

Company's outstanding debts.

On the FSSP website https://fssprus.ru/iss/ip/ you can find out about pending enforcement proceedings.

Enter a company name and select a region. The region is determined by an extract from the Unified State Register of Legal Entities.

If a firm has a lot of debt large sums, then it says only one thing - there is no money. Pay attention to the period when enforcement proceedings were initiated. If this period is within two months, then it is quite possible that the writ of execution will soon be executed. And if the FSSP website has outstanding debts more than two months old, then this is definitely a bad sign. Litigating a company like this is a waste of time and effort. But even the very fact of having writ of execution can talk about the lack of money in the settlement accounts of the Developer. When the company has money, the sheet is presented immediately to the bank and the money is debited within three days. They get to the bailiffs when there is no money in the company's accounts and, in order to execute the decision, it is necessary to seize the property. Pay attention to what type of debt is registered with the company. If this is a state duty or a fine, then there is no reason to worry. State duties are sent by the court directly to the bailiff, bypassing the company's accounts. Enforcement proceedings are not a quick process, so the debt can hang on the company for a long time.

How else can you check the company.

Check the company's website.

You can check the company's website on various Internet services. We use this: https://www.cy-pr.com/

We go in, enter the site to be checked into the analysis line and get a selection. In the sample, we are interested in the date of creation of the site and the owner of the site, that is, to whom the site is registered. For example, if the site was created in 2017, and the legal entity was registered in 2018, then ask yourself: how many companies did these individuals have during the period from 2017 to 2018 and where are they now? A good indicator would be if the site is registered to the legal entity you are checking.

But if the site is registered to another legal entity, this is not always a bad thing.The site is often registered with an ISP or FL, this often happens. It will be suspicious if, for example, the person being checked is Romashka LLC, and the site is listed on Romashka 2 LLC. The most reliable criterion in evaluating a company is high website traffic, which indicates that search engines they love this site, and this may indicate the seriousness of the company, the presence of a good budget for Internet marketing. And a good budget can only be in companies with well-thought-out business processes. A one-day company, as a rule, and the site appears in the search only in advertising results. When choosing a company on the Internet, focus on natural results. Search engines will do the primary selection of sites for you.

Currently, search engines evaluate sites according to numerous criteria - more than 1000 indicators in total, including whether the company has an office, whether details are indicated, whether there is a telephone, etc. One of key indicators is an assessment of the behavior of previous users. Let's say you are looking for: a lawyer to recover a penalty from a developer through Arbitration. We wrote out a list of companies for ourselves, went to see them, in the end you didn’t like something, and after a while you returned to the search with the same request. As a result, your choice fell on company number two. This behavior has become typical for most users, as a result, search engines began to rank the site of company No. 2 better. It is impossible to gain a foothold in the natural issuance of companies that provide this or that service poorly. It's long and expensive, one-day companies don't work like that. This ranking does not happen with sites that appear in the SERPs through ads. If you want to receive high-quality services, goods, choose sites from natural search results. Search robots and users have already done this for you, so join the choice of the majority! It is necessary to understand which sites are displayed in the search with the help of natural results, and which ones with the help of advertising.

AT The top is usually fixed by the market leader companies.

It will not be superfluous to check the company for participation in government contracts.

On this commercial site: https://new.tenderguru.ru/ you can learn about the history of the company's participation in government contracts.

If a company participates in tenders and auctions, then this in itself is a good sign. This may mean that the company is active and the owner needs it. If the company won a certain tender, then it is even better, because government contracts impose fairly stringent requirements for companies.

Company group.

If the developer is part of a group of companies, this is not always a good sign. In Russia Building bussiness built in such a way as to protect itself from possible risks: from possible fines from state bodies, from equity holders who suddenly decide to collect a penalty for delaying the transfer of an apartment, from claims from contractors, etc. etc. The group of companies is built in such a way that the parent (brand) company makes a profit and stays afloat, and all responsibility falls on the newly created legal entity. a person with no assets. In this case, nothing threatens the business, the owner liquidates the company with all debts, and the rest of the legal entities. faces continue to work without loss. By concluding an agreement with one of the legal entities belonging to the group of companies, you hope that the company has a long history, good assets, and in case of problems, there will be something to take from it.

In fact, the opposite situation turns out: in the official office of the company, you sign an agreement with another legal entity, which has absolutely nothing to do with the brand name. big company does not have.So, the company with which you will conclude an agreement most likely has neither its office nor property, nothing but promises. Most large and small developers work according to this model, and people do not understand when they conclude a contract that it is impossible to get anything from the Developer. Only after receiving bailiff rulings on the impossibility of execution of a court decision and the closure enforcement proceedings, a person understands that the business was originally built in such a way that the group of companies did not pay its debts. Nothing threatens the brand, because the companies are not legally connected in any way, the developer opens another LLC, and the story of deceived equity holders is repeated again. And all the accusations directed at the promoted brand can backfire. The company may file a lawsuit against libel distributors.

If you have just a group of companies in front of you, then you need to check the entire group. And if at least one company in the group has bad story with deceived equity holders, it means that dishonest people are behind the group of companies, and the situation with not receiving an apartment may repeat itself.

A good sign will be the conclusion of an agreement with the company for which the trademark is registered.

As a rule, all large developers consist of a group of legal entities. This is not always a bad thing, and it does not always mean avoiding responsibility. There are companies that absolutely openly show their structure, reporting, and, most importantly for us, they can be trusted with their money in exchange for built square meters.

The purpose of this article is to protect the buyer. Every day in our practice, we encounter clients who, when buying an apartment, do not even imagine how risky this relationship can be. In fact, many buildings are financial pyramids, from participation in which you can win or lose. To prevent the signing of the contract from turning into a game of roulette, when the player bets all his savings on red, weigh all the risks thoroughly, check the contract and documents of the Developer or contact a lawyer who will check the risks, and you will only have to read the report and make an informed decision. Our company is ready to check the solvency of the developer or counterparty for you.

In this Article:The Risk of Violations in FormationCommunity Q&AReferences authorized capital What to check in the charter of the target company first of all What mistakes of the previous management can lead to the loss of assets

When acquiring a company, investors usually carefully check it. For this they carry out legal audit(so-called legal due diligence). Its main goal is to get the most detailed and reliable view of the assets and liabilities of the subject of purchase (the target company). To conduct such a check, the investor company (acquirer), as a rule, attracts consultants from law and audit firms, which always results in considerable expenses. Of course, these costs most often justify themselves, especially when acquiring a business consisting of several companies that own various material and intangible assets. However, when buying a mid-sized company (in terms of assets and liabilities), these costs can be minimized. Investor lawyers can independently verify information about the target company, and this article will tell you what to pay special attention to.

Checking the correctness of the formation of the authorized capital

If in the company that the investor is acquiring, the authorized capital or additional shares paid for with property, this entails certain risks for the investor.

If the formation of capital from property was carried out with violations, this may lead to the fact that the registration of the issue of shares of the company may be challenged stakeholders(Decree of the Federal Arbitration Court of the Moscow District dated August 31, 2006 in case No. KG-A40/7872-06). It is risky to buy such stocks. If the court satisfies the claim, the authorized capital will be declared unpaid. Similar risks may arise when property pays for shares in a company with limited liability. If the court recognizes that the shares (shares) are not paid, then all subsequent transactions with these objects will be void.

Property or property rights contributed to the authorized capital must have monetary value(art. 15 federal law dated 08.02.98 No. 14-FZ "On Limited Liability Companies", hereinafter - Law No. 14-FZ, clause 3 of Art. 34 of the Federal Law of December 26, 1995 No. 208-FZ "On Joint-Stock Companies", hereinafter referred to as Law No. 208-FZ). It is made by unanimous decision of all founders (clause 3, article 11 of law No. 14-FZ, clause 3 of article 9 of law No. 208-FZ). At the same time, if nominal value share of a member of a limited liability company, paid in non-monetary funds, is more than 20 thousand rubles, in without fail an independent appraiser should be involved (clause 2, article 15 of Law No. 14-FZ). AT joint stock company an independent appraiser must be involved when paying for shares in non-cash funds in any case, regardless of the amount (clause 3, article 34 of law No. 208-FZ). In addition, it is better to check whether the data on the payment of shares (shares) that the participants have, as well as the data of the appraiser's report, the decision on the establishment of the company, the agreement on the creation (on the establishment) of the company, and the balance sheet match.

Verification of pre-acquisition transactions with assets

In order to avoid a situation in advance when the company's assets will be lost after its acquisition, it is necessary to check the legitimacy of transactions preceding the purchase. It is quite possible that a violation of the procedure for concluding such transactions will result in the loss of the company's assets quite unexpectedly for its new acquirer. There may be several reasons for this.

The conclusion of a transaction by an unauthorized person. These may be errors or inaccuracies in the powers of attorney (for example, this or that authority of the attorney is not spelled out) or the lack of extension of the powers of the head of the company after the expiration of the period established by the charter of the company. Such transactions may be invalidated on the basis of Article 168 Civil Code as transactions concluded by an unauthorized person or a person who exceeded his authority (Articles 53, 174 of the Civil Code of the Russian Federation) (decisions of the Federal Arbitration Courts of the Volga-Vyatka District dated January 24, 2008 in case No. A29-8535 / 2003-2E, of the West Siberian District dated 26.10.10 in case No. А70-361/2010).

Absence of a legally elected board of directors. The situation when, for example, in a joint-stock company the board of directors provided for by the charter is not elected and at the same time the charter does not indicate that the functions of the board of directors are performed by the general meeting is quite common. As a result of decisions that general rule must be adopted by the board of directors, are adopted by the general meeting, whose competence does not include this. These include, for example, decisions related to the definition market value acquired property, approval of major transactions (clause 2, article 79 of law No. 208-FZ) and transactions in which there is an interest (clause 2, article 83 of law No. 208-FZ). Such decisions are not competent (decision of the Arbitration Court Chuvash Republic dated December 13, 2005 in case No. A79-908 / 04-SK2-843). In addition, violations during the formation of the management body that appoints the executive management body of the company may cast doubt on the legality of the actions of the head of the company appointed by such a management body.

Making transactions without approval. In the charter of the target company, it is necessary to clarify the list of transactions that require approval by the competent authorities. In accordance with the current legislation, such transactions can include not only large and interested parties, but also those to which the charter extends approval procedures (Articles 79, 81 of Law No. 208-FZ, Articles 45, 46 of Law No. 14-FZ ). The fact of approval is reflected in the minutes general meeting or decisions of the board of directors. Transactions made without appropriate approval may be declared invalid (clause 5 of article 45, clause 5 of article 46 of Law No. 14-FZ, clause 6 of Article 79, clause 1 of Article 84 of Law No. 208-FZ) . The result may be the loss of the company's assets (Decree of the Federal Arbitration Court of the Far Eastern District dated December 16, 2009 No. F03-7171 / 2009).

Bankruptcy. When analyzing transactions, it is necessary to evaluate, if possible, financial condition counterparty of the company for possible risks of its bankruptcy in the near future. In addition, it will be necessary to check whether bankruptcy proceedings have already been initiated against the company itself. If a company is close to bankruptcy, or an application has already been filed with the arbitration court to declare it bankrupt, then some of the transactions of such a company may be declared invalid. These include, for example, suspicious transactions (completed after the adoption of the application or a year before - Article 61.2 of the Federal Law of October 26, 2002 No. 127-FZ "On Insolvency (Bankruptcy)", hereinafter - Law No. 127-FZ), transactions in which preference is given to any of the creditors (completed after the acceptance of the application or a month before - Article 61.3 of Law No. 127-FZ), transactions made in the course of financial recovery (Article 82 of Law No. 127-FZ), and etc.

Violation of the legislation on privatization. Despite their apparent antiquity, violations of the law that occurred during the acquisition of assets in the privatization process may still contain certain risks. So, for example, there are cases of contesting the results of investment tenders, invalidating privatization plans in terms of including objects in them, the privatization of which is prohibited (for example, objects of defense, cultural, household purposes, public lands) (decrees of the Federal Arbitration Court of the Moscow District No. KG-A40/10652-08 of November 19, 2008; No. KG-A41/73-09 of February 10, 2009). To avoid such situations, it is necessary to clarify whether the company participated in the privatization process. If yes, then it is recommended to ask for verification of the privatization decision, privatization plan, issuance documents valuable papers during privatization. It is impossible to foresee everything here, but the mere existence of these documents, verification of the powers of the persons who signed the decision, who approved the application for privatization, should remove a number of questions. If the acquired company owns an object, the privatization of which was prohibited, then at any time there is a risk of contesting the ownership right at the suit of the Federal Property Management Agency.

Making a transaction without the consent of the antimonopoly authority. The absence of the consent or notification of the antimonopoly authority about the company's transactions listed in Articles 28 and 29 of the Federal Law of July 26, 2006 No. 135-FZ "On Protection of Competition" may result in their recognition as invalid (clauses 16, 17 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of June 30 .08 No. 30 “On some issues arising in connection with the application arbitration courts antitrust laws"). Term limitation period on the demand for the recognition of the specified transaction as invalid is one year and begins to flow from the day when the antimonopoly body found out or should have known about the transaction in violation of the law (clause 2 of article 181 of the Civil Code of the Russian Federation). To make sure that consent has been obtained, you need to check whether the company has an opinion from the antimonopoly authority on the approval of the transaction. You can also visit the official website of the Federal antimonopoly service(www.fas.gov.ru). Related question: For what period do you need to check transactions with the company's assets? Ideally, it is better to check all transactions ever made with the property of the company. But if this is not possible, then it is recommended to check transactions for the last three years, based on the limitation period for applying the consequences of the invalidity of a void transaction and the total limitation period of three years (Articles 181, 196 of the Civil Code of the Russian Federation).

AT information system a lawyer of the company on the request “checking the counterparty” you can also find an article on how to make sure that the partner with whom the transaction is made for the first time is trustworthy: “Preliminary check of the counterparty. What documents will help to verify the legitimacy of the transaction.

First of all, you need to make sure that the company is registered in in due course and conducts activities. This can be done in many ways.

Check TIN

Make sure that the supplier's TIN is not a random set of numbers, but a real digital code that belongs to the company offering the deal.

It is very easy to check this, since the TIN has its own algorithm, and a fake number, most likely, will not match it. You can recognize an error in the TIN in any program for preparing information about the income of individuals by entering the number in the "TIN of the employer" field. If the number does not satisfy the algorithm, an error message will appear.

At the same time, you can establish the authenticity of the TIN and its belonging to a particular company on the website of the Federal Tax Service or using the counterparty verification service.

Request a copy of the state registration certificate (or an entry sheet in the Unified State Register of Legal Entities)

The state registration certificate confirms that the counterparty exists as a legal entity and is registered as a taxpayer. From January 1, 2017, when registering legal entities and individual entrepreneurs instead of a certificate of state registration, a record sheet of the desired register is issued - ERGUL or EGRIP. Thus, the entry sheet is a document confirming the fact of making an entry in the Unified State Register of Legal Entities or EGRIP.

In accordance with clause 13 of the Rules for maintaining the Unified State Register of Legal Entities, the record sheet state register included in the registration file of a legal entity. In accordance with clause 19 of the Rules for Maintaining the USRIP, the entry sheet of the state register is included in the registration file of an individual entrepreneur.

Get an extract from the Unified State Register of Legal Entities / EGRIP

A fresh extract from the Unified State Register of Legal Entities confirms that the counterparty is registered and has not been deregistered at the time of its receipt. In addition, by extract from the Unified State Register of Legal Entities you can check the details specified by counterparties in contracts and other documents.

An extract can be requested directly from a potential partner or using the FTS service.

Balance allows you to do several at once important findings about company:

First, he confirms that the company is reporting.
Secondly, it allows you to establish whether the organization conducted economic activities.
Thirdly, from accounting you can learn about the "portfolio" of funds that the company has. If a firm has near-zero asset value, significant debentures and the authorized capital of 10,000 rubles - this is a reason to think about whether it is worth giving such a company, for example, trade credit. Turnovers that are too low compared to the amount of the proposed transaction may also indicate that the supplier hides part of the income. In this case, it is better to refuse the transaction.

Based on financial statements, it is easy to compile the financial analysis, which will show the dynamics of the company's activities and allow assessing its financial stability. In the service on the company card you can find links to financial statements and mini-financial analysis, which will allow you to immediately see key points in book forms without the need to learn a large and complex financial report by company.

Information about legal entities that have tax debts and/or do not represent tax reporting more than a year, can also be obtained on the website of the Federal Tax Service.

Additional analytics

It is necessary to verify the integrity of the counterparty and collect evidence that you have carried out the necessary verification. Why is it important? In the event of a lawsuit, this will confirm that your company has shown .

From the point of view of the tax authorities (), the company has not shown due diligence if it does not have:

personal contacts of the management in the counterparty company when discussing the terms of supply and when signing contracts;
documentary confirmation of the authority of the head of the counterparty company, copies of a document proving his identity;
information about the actual location of the counterparty, as well as the location of warehouse, production, retail space;
information about the method of obtaining information about the counterparty (advertising, recommendations of partners, official website, etc.);
information about state registration counterparty in the Unified State Register of Legal Entities;
information on whether the counterparty has the necessary license (if the transaction is concluded within the framework of a licensed activity), a certificate of admission to a certain type of work, issued self-regulatory organization;
information about other market participants of similar goods, works, services, including those who offer lower prices.

Transaction Information

Confirmation of personal contacts when concluding a transaction

The lack of personal contacts during the conclusion of the transaction may indicate that the taxpayer did not exercise due diligence. The collected data on the circumstances of the conclusion of the contract with the counterparty (who participated in the negotiations, who released the goods, etc.) will help to prove the opposite.

Verification of transaction documents

This procedure avoids not only the claims of the tax authorities, but also possible litigation.

check the address indicated in the documents of the counterparty, in particular, in invoices;
make sure that the supplier's documents do not contain logical contradictions and comply with the Tax Code of the Russian Federation and other laws;
compare the signatures of employees on documents in order to exclude the situation when different signatures are put on behalf of one person (it is better to exclude such documents so that the Federal Tax Service does not claim that they are fictitious).

This list of "filters" is not exhaustive. There are other ways to be careful in choosing a counterparty and get the most complete information about it.

Use your balance to check financial position company at a specific point in time by looking at how it balances assets, liabilities, and equity. The basic balance equation is as follows: Assets = Liabilities + Equity

Assets. Remember that assets add value to a business. The quality of asset management can be determined by evaluating how they are distributed among the funds, accounts receivable, short-term and long term investment, stocks, fixed assets, facilities, land plots, buildings. In doing so, you will be able to understand whether the business is able to maintain and grow its operations, or it will close.
Commitments. Obligations are everything borrowed funds companies. Borrowing is one way to get financial resources to maintain operations. The liabilities section will also inform you about the amount of debt to suppliers and contractors, on bills payable and on other types of accounts payable. It often happens (of course, in relation to certain situations) that a high proportion of borrowed Money can be a sign that a company is in trouble and unable to support its own operations.
Capital. Capital is own funds companies. It is the main source of funds to support the operations of the business. When reviewing the equity section, look at the number of ordinary and preferred shares. By sections of capital you will be able to assess the real value of the business from the point of view of its owners. An impressive amount of equity can serve as an indicator of a business's ability to continue operating and grow. The opposite situation indicates the presence of problems and the likelihood of curtailing the business.

Use the cash flow statement to understand the cash flows for reporting period. There are two methods of preparing a cash flow statement: direct and indirect.

The direct method in a generalized form represents the receipt and use of funds in the reporting period.
The indirect method involves adjusting net profit transactions that affected it but did not affect the amount of cash.

Check the statement of shareholders' equity for more detailed information on the changes in the equity section of the balance sheet during the reporting period. You will be able to get acquainted with how many shares are allowed to be issued, how many of them are actually issued. In this report, you can see the changes that have taken place by article. ordinary shares, preferred shares, additional capital and retained earnings.