Judicial act: Resolution of the Arbitration Court of the North-Western District dated 09/01/2021 in case No. А56-73463/2020.
Court's findings:
1. The fictitiousness of an imaginary transaction lies in the fact that its parties do not have the goal of achieving the declared results. The will of the parties to an imaginary transaction does not coincide with their inner will. The fact of discrepancy between the expression of will and the will is established by the court by analyzing the actual circumstances confirming the reality of the intentions of the parties.
2. The defendant announced his withdrawal from the LLC participants in the proper form and had the right to withdraw from the company.
3. There were no signs of abuse of the right in the exercise of the relevant authority by the courts, just as it was not revealed that the defendant continued to exercise the corporate rights of a member of the company after leaving it.
4. Further exercise by the defendant of the powers of the general director of the company does not indicate the imaginary nature of the transaction on his withdrawal from the membership of the organization, since the scope of powers, rights and obligations of the corporate participant of the economic company and the sole executive body of the legal entity is different.
5. The continuation of the exercise of the powers of the General Director by the former participant of the relevant company does not indicate the imaginary nature of the transaction on the withdrawal of this person from the participants.
Comment:
1. The Court found that it is necessary to conduct an analysis between the actual circumstances confirming the reality of the intentions of the parties directly with their will.
In this regard, it is important to list the actions, the implementation of which will help to avoid possible disputes regarding the fictitious withdrawal from the LLC participants:
a) Hold a general meeting of participants in order to decide on the future fate of the share;
b) Submit an application to the notary for withdrawal from the LLC;
с) Prepare an application for the tax authority.
d) After making changes to the Unified State Register of Legal Entities, the former participant has the right to pay the real value of the share.
2. It is important to understand that an LLC cannot operate without a director or other person acting as the sole executive body. Information about the general director of an LLC (another person) must be contained in the Unified State Register of Legal Entities: only a new head can submit an application to replace information.
3. That is why a situation may actually arise that the general director, upon application and documents, has terminated his powers, but the entry in the Unified State Register of Legal Entities cannot be changed until a new head is elected. As a result: in fact, indeed, the person is still listed as a leader, despite his exit.
4. However, it is extremely important to replace one head with another as quickly as possible in the event of his departure in order to avoid the risks of the former head filing an application with the registration authority about the unreliability of information about him in the Unified State Register of Legal Entities. Based on this application, an entry will be made about the inaccuracy of information about the director of the company, which may lead to difficulties in relations with counterparties and banks.
5. At the same time, the risks of the former CEO himself are also high. The head of the organization is the sole executive body of the organization and is responsible for all its current activities. For example, paying taxes, contributions, reporting, etc. Therefore, it is impossible to exclude the presentation of claims by regulatory authorities or bringing to subsidiary liability.
Please note that in 2020 the law firm Vetrov & Partners was marked by the industry rating of law firms Pravo.ru-300 in the nominations Arbitration Proceedings, Dispute Resolution in Courts of General Jurisdiction and is one of the regional companies throughout Russia in these nominations.
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