Essential terms of a major transaction. Major deal for LLC. Decision to approve a major transaction

Big deal

(English: important transaction/deal) - in the civil law of the Russian Federation, a conditional concept meaning a transaction that is carried out in a special manner regulated by law by certain types of legal entities, in particular, business companies. Concept of K.s. first defined by the Federal Law “On joint stock companies»** for joint-stock companies and was subsequently adopted by the Federal Law “On Companies with limited liability»**.

According to Art. 78 Federal Law “On Joint-Stock Companies” K.s. related to the acquisition or alienation of property by the company are a transaction or several interrelated transactions: a) related to the acquisition or alienation or the possibility of alienation by the company directly or indirectly of property, the value of which is more than 25% of the balance sheet the value of the company's assets as of the date of the decision to enter into such transactions, with the exception of transactions made in the course of ordinary economic activity; b) related to the placement of ordinary shares or preferred shares, convertible into , constituting more than 25% of the company’s previously placed ordinary shares. In this case, the value of the property that is the subject of the C.s. is carried out by the board of directors (supervisory board) of the company in accordance with Art. 77 Federal Law “On Joint Stock Companies”. Amount (size) K.s. is determined based on the value of the actual alienated or acquired property (property transferred to, contributed as a contribution to other companies, etc.) in comparison with the data of the last approved balance sheet of the company. The commission of a contract related to the acquisition or alienation of property by a joint-stock company is carried out according to the rules of Art. 79 Federal Law “On Joint Stock Companies”.

In accordance with Art. 46 Federal Law “On Limited Liability Companies” K.s. is a transaction or several interrelated transactions related to the acquisition, alienation or possibility of alienation by the company, directly or indirectly, of property, the value of which is more than 25% of the value of the company’s property, determined on the basis of data financial statements for the last reporting period preceding the day the decision was made to carry out such transactions, unless the company’s charter provides for more tall size K.s. K.s. those committed in the normal course of business are not recognized. The value of what is alienated by society as a result of K.s. property is determined on the basis of its data accounting, and the cost of the property acquired by the company is based on the offer price. K.s. is carried out according to the rules established in paragraphs. 3-6 tbsp. 46 Federal Law “On Limited Liability Companies”.

Transactions made in the course of ordinary business activities (for the production of products, ensuring the supply of raw materials and materials, providing financial services, performing construction and other works, selling finished products or goods, etc.), the Federal Law “On Joint-Stock Companies” (clause 1, Article 78) and the Federal Law “On Limited Liability Companies” (clause 1, Article 46) do not apply to corporate actions committed in a special in the manner regulated by the specified federal laws. The amount of an ordinary business transaction in this sense does not matter, even if it, for example, is equal to or exceeds an amount equivalent to 25% of the book value of the company's assets.

The concept of ordinary economic (or entrepreneurial) activity is not always interpreted unambiguously, since certain types of activities are ordinary for some business entities, but not for others. This also depends on the specifics of the field of activity, managerial and entrepreneurial traditions, technical and organizational techniques for performing certain operations. For example, it is not always possible to unambiguously establish whether the symptoms of K.s. obtaining a large loan, (purchasing) a property, etc. It is possible to determine whether a transaction falls into the category of large ones only on the basis of a detailed analysis of the activities of a particular business company. Therefore, the final decision on this issue in controversial situations remains at the discretion of the court. The criterion for recognizing a transaction as a major one may also be the question of whether its completion is capable of having a real impact on future fate society as an enterprise, a property complex, and as legal entity. If the answer to this question is positive and if the criteria specified in federal laws are available, it can be concluded that the transaction being carried out is a major one (see also: Commentary on the Federal Law “On Joint-Stock Companies.” 2nd ed., add. and revised, edited by M.Yu. Tikhomirov, M., 2000; Commentary on the Federal Law “On Limited Liability Companies,” edited by M.Yu. Tikhomirov, M., 1998).

Large legal dictionary. Akademik.ru. 2010.

See what a “Major Deal” is in other dictionaries:

Big deal- purchase or sale large quantity valuable papers. Major transaction on the New York Stock Exchange is a transaction for a block of 10,000 shares, or a block with a total market value of at least $200,000. In English: Block... ... Financial Dictionary

Big deal- (English important transaction/deal) in the civil law of the Russian Federation is a conditional concept meaning a transaction that is carried out in a special manner regulated by law by certain types of legal entities, in particular business ones... ... Encyclopedia of Law

Big deal- - a transaction or several interrelated transactions related to the acquisition or alienation or the possibility of alienation by the company, directly or indirectly, of property, the value of which is more than 25% of the book value of the company’s assets as of the date... ... Stocks and bods market. Glossary of basic terms and concepts

Big deal- A major transaction in Russian civil law is a transaction (including a loan, credit, pledge, guarantee) or several interrelated transactions related to the acquisition, alienation or possibility of alienation by the company directly or indirectly... ... Wikipedia

Big deal- The concept of a major transaction is defined by Article 78 of the Federal Law of December 26, 1995 No. 208 Federal Law On Joint Stock Companies. Major transactions are the following: a transaction or several related transactions related to the acquisition or disposal or... Vocabulary: accounting, taxes, business law

Big deal- A large order to buy or sell shares, defined on the New York Stock Exchange as an order for a block of 10,000 shares of a specified stock, or for a block whose total market value is $200,000 or more... Investment Dictionary

Major transaction of a joint stock company (JSC)- 1. A major transaction is a transaction (including a loan, credit, pledge, guarantee) or several interrelated transactions related to the acquisition, alienation or possibility of alienation by the company directly or indirectly of property, value... ... Official terminology

Major transaction of a budgetary institution- For the purposes of this Federal Law, a major transaction is a transaction or several interrelated transactions related to the disposal of funds, alienation of other property (which, in accordance with federal law, is budgetary... ... Official terminology

Major State Company deal- For the purposes of this Federal Law, a major transaction is a transaction related to the disposal of funds, the attraction of borrowed funds, as well as the alienation of the property of the State Company, the transfer of this property... Official terminology

Major transaction of a limited liability company (LLC)- 1. A major transaction is a transaction (including a loan, credit, pledge, guarantee) or several interrelated transactions related to the acquisition, alienation or possibility of alienation by the company directly or indirectly of property, value... ... Official terminology

The law requires special rules to be followed if a major transaction for an LLC is made. What transaction is considered major for an LLC and what requirements must be met when concluding it.

There are special rules for LLCs regarding large transactions. If the established procedure is not followed, the transaction may be challenged and the court will declare it invalid. Before the company signs new agreement, lawyers need to find out:

• whether the transaction is large;
• Does the charter contain any rules stating that this transaction must be approved according to the rules on large transactions?

Please note that the charter cannot change the procedure for approving such transactions or cancel it (,). If the charter contains clauses that can be dispensed with without approval, they are invalid.

Guest, meet - !

A major transaction for an LLC is a transaction with a price higher than the value of 25% of the company's assets

The concept of a major transaction for an LLC is present in “On Limited Liability Companies”. According to the law, such a transaction is an operation in relation to property, the value of which exceeds 25% of the total value of the company’s property. However this is not the only sign. In Art. 46 of the LLC Law, what is a major transaction for an LLC. This is a deal that:

1. Exceeds the normal activities of the company.
2. Associated with the acquisition or alienation of property, the price or book value of which is higher than 25% of the book value of the LLC’s assets. The book value is determined based on the latest reporting date. In particular, the transaction may concern a loan, credit, collateral, etc.
3. Provides for the obligation of the LLC to transfer these assets for temporary possession, use or under a license agreement (Clause 1, Article 46 of the LLC Law).

A large transaction can be not one, but several interconnected transactions (Clause 1, Article 46 of the LLC Law). The Plenum of the Supreme Arbitration Court of the Russian Federation explained the criteria by which the interconnectedness of transactions is determined (subclause 4, clause 8):

• they were concluded for a common economic purpose;
• the property has a single economic purpose;
• as a result, one person receives ownership of the property;
• there is a short time gap between transactions.

The Supreme Court of the Russian Federation in Resolution No. 27 indicated that in order to assess the total value of several transactions, it is necessary to compare the value of property for all transactions with the assets in the balance sheet that was drawn up before the first transaction (clause 14 of Resolution No. 27).

What is considered a major transaction for an LLC due to its atypical nature?

It is important for corporate lawyers to know what transaction is considered major for an LLC, as well as which transactions do not fall under these criteria. If the transaction relates to the company’s usual field of activity, it is not considered major. When a transaction is said to be outside the normal course of business of the company, it means that:

• the company itself usually does not carry out such transactions, or it is not customary for them to be carried out among organizations that exist in the same business area; or
• the transaction terminates the work of the company, changes the type or scale of work (Clause 8, Article 46 of the LLC Law).

If at least one of the two criteria is met, this means that this transaction is a major one for the LLC (clause 8, article 46 of the LLC Law, subclause 2, clause 9 of Resolution No. 27, paragraph 3, subclause 2, clause 3 of the resolution dated May 16, 2014 No. 28).

The conditions for concluding transactions are listed in Art. 46 of the LLC Law

The company is planning an atypical transaction on the alienation of property, and the subject of the transaction will be property valued at more than 25% of the LLC's assets. Such a transaction must be approved. Moreover, according to the law on LLCs, only the general meeting of participants can approve major transactions (Clause 3, Article 46 of the Law on LLCs). But there is a clause in the law. If the company is governed by a board of directors or a supervisory board, the charter can establish the board's authority to approve major LLC transactions. Then the board will have the right to agree to such a transaction if the value of the subject of the transaction ranges from 25% to 50% of the total value of the company's assets. When determining which transaction is large for an LLC, you need to take into account the price indicator. If the value of the transaction is higher than 50% of the value of the company’s property, only the general meeting can give consent to it.

A meeting regarding the approval of a major transaction in an LLC is held on general rules. Following the meeting, the LLC participants decide whether they agree to the deal. If the initiators of the transaction have received consent, the decision on a major LLC transaction must indicate:

1. Who are the parties to the transaction?
2. Who is the beneficiary of the transaction?
3. What is the size of a major transaction for an LLC.
4. What is the subject of the transaction, what are the other essential conditions of the conclusion or in what order are they determined (Clause 3 of Article 46 of the LLC Law).

In addition, the decision may include:

• an indication of the minimum and maximum limits on the value of property or the procedure for determining these limits;
• the company’s consent to similar transactions, as well as to the simultaneous execution of several transactions;
• alternative options for transaction terms;
• the period during which the decision on consent due to the size of the transaction for the LLC will be valid. If no deadline is specified, the decision is valid for one year from the date of approval of the document (unless otherwise follows from the essence of the transaction or the circumstances of consent to it).

The party to the transaction and the beneficiary may not be indicated in the decision if the transaction is concluded at auction, as well as in other cases specified in the law (Clause 3 of Article 46 of the LLC Law).

The company's charter may contain a requirement to approve transactions according to the rules for large LLC transactions, even if the transaction does not apply to such.

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The article reveals the concept of a major transaction for such commercial and non-profit organizations as business entities, state and municipal unitary enterprises, state and municipal institutions. The author will answer questions related to the requirement to provide a decision on approval or on the completion of a major transaction as part of the application for participation in the auction.

The requirement to provide as part of the application for participation in open competition The decision (copy of the decision) on approval or execution of a major transaction was included in Federal Law No. 94-FZ of July 21, 2005 “On placing orders for the supply of goods, performance of work, provision of services for state and municipal needs” (hereinafter referred to as Law No. 94 -FZ) Federal Law of December 30, 2008 No. 308-FZ “On amendments to the Federal Law “On placing orders for the supply of goods, performance of work, provision of services for state and municipal needs” and certain legislative acts Russian Federation" and came into force on March 1, 2009.

Submission of a decision on approval or execution of a major transaction is necessary if the requirement for its availability is established by the legislation of the Russian Federation, constituent documents legal entity and if for a participant in placing an order, the supply of goods (performance of work, provision of services) or the contribution of funds as security for an application for participation in the auction is a major transaction.

Federal Law No. 93-FZ dated 05/08/2009 “On organizing a meeting of heads of state and government of countries participating in the Asia-Pacific Forum economic cooperation"in 2012, about the development of the city of Vladivostok as a center international cooperation in the Asia-Pacific region and on amendments to certain legislative acts of the Russian Federation" from July 1, 2009. Law No. 94-FZ was supplemented by Ch. 3.1. “Placing an order through an open auction in electronic form.”
According to clause 8, part 2, art. 41.3 of Law No. 94-FZ, which determines the procedure for accreditation on the electronic trading platform (hereinafter referred to as the ETP), the ordering participant must provide the ETP operator with a decision to approve or to carry out transactions based on the results of open auctions in electronic form on behalf of the ordering participant - a legal entity indicating the maximum amount of one such transaction.

Definition of a major transaction

There are different approaches to defining the concept of “major transaction” depending on the organizational and legal form of legal entities.

Major transaction for business companies

For LLC, in accordance with Art. 46 of the Federal Law of 02/08/1998 No. 14-FZ “On Limited Liability Companies” (hereinafter referred to as Law No. 14-FZ), transactions related to the acquisition, alienation or possible alienation of property, the cost of which is 25% of the value of the property, are considered major transactions company, determined on the basis of the financial statements for the last reporting period preceding the day the decision was made to carry out the above transaction, unless the company's charter provides for a higher threshold for a major transaction. Transactions made in the normal course of business of the company are not considered large.

Thus, a major transaction for an LLC:
. associated with the acquisition, alienation, possible alienation of the company’s property;
. can be direct or a chain of interconnected transactions;
. the company's charter may amend and (or) supplement the procedure and list of major transactions.

The definition of a major transaction for a JSC is given in Art. 78 of the Federal Law of December 26, 1995 No. 208-FZ “On Joint-Stock Companies” (hereinafter referred to as Law No. 208-FZ). A major transaction in the case of joint-stock companies is considered to be a transaction or several interrelated transactions related to the acquisition, alienation or possibility of alienation by the company, directly or indirectly, of property, the value of which is 25 percent or more of the book value of the company’s assets. Such transactions can be, in particular, a loan, credit, pledge, guarantee.

In this case, the book value is determined according to the financial statements as of the last reporting date. Transactions made in the normal course of business of the company or related to the placement through subscription (sale) of ordinary shares of the company, as well as the placement of issue-grade securities convertible into ordinary shares of the company are not considered large. The charter of a joint-stock company may also establish other cases in which transactions carried out by it are subject to the procedure for approval of major transactions.

Thus, the difference in the definition of large transactions for JSC and LLC is as follows: in the first case, a transaction constituting 25% of the value of assets is considered large, and in the second - 25% of the value of property.

Major deal for unitary enterprises

In accordance with Art. 23 of the Federal Law of November 14, 2002 No. 161-FZ “On State and Municipal Unitary Enterprises” (hereinafter referred to as Law No. 161-FZ) for state and municipal unitary enterprises a major transaction is a transaction or several interrelated transactions related to the acquisition, alienation or possibility of alienation such an enterprise directly or indirectly has property, the value of which is more than 10% of its authorized capital or more than 50 thousand times higher than that established by federal law minimum size wages. In this case, the value of the 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 the property acquired by the said enterprise is determined on the basis of the offer price of such property.

Major deal for state and municipal institutions

The definition of a major transaction carried out by a budgetary institution is given in paragraph 13 of Art. 9.2 of the Federal Law of January 12, 1996 No. 7-FZ “On non-profit organizations” (hereinafter referred to as Law No. 7-FZ). For the purposes of this Law, a large transaction is recognized as a transaction (several interrelated transactions) related to the disposal of funds, the alienation of other property (which, in accordance with federal law, a budgetary institution has the right to dispose of independently), as well as the transfer of said property for use or collateral, provided that the price of such a transaction or the value of the alienated or transferred property exceeds 10% of the book value of the assets of a budgetary institution, determined according to its financial statements as of the last reporting date, unless the charter of the budgetary institution provides for a smaller size of a major transaction.

For an autonomous institution in accordance with Art. 14 of the Federal Law of 03.11.2006 No. 174-FZ “On Autonomous Institutions” a major transaction is considered to be one related to the disposal of funds, the attraction of borrowed funds, the alienation of property (which, in accordance with this Law, an autonomous institution has the right to dispose of independently), as well as transfer of said property for use or as collateral, provided that the price of such a transaction or the value of the alienated or transferred property exceeds 10% of the book value of the assets of the autonomous institution, determined according to its financial statements as of the last reporting date, unless the charter of the autonomous institution provides for a smaller amount big deal.

Transactions entered into in the ordinary course of business

When considering the concept of “major transaction” for legal entities of various organizational and legal forms, it becomes clear that not all transactions carried out by organizations and having the characteristics of large ones fall under it. In particular, large transactions do not include transactions made in the normal course of business.

Current legislation does not establish clear criteria for what constitutes the current economic activity of a legal entity. In this regard, let us turn to the practice of arbitration courts.
Based on the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated November 18, 2003 No. 19 “On some issues of application of the Federal Law “On Joint-Stock Companies”, as well as the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 13, 2001. No. 62 “Review of the practice of resolving disputes related to the conclusion by business companies of large transactions and transactions in which there is an interest” (hereinafter referred to as information letter No. 62), transactions concluded in the course of ordinary business activities include:

Transactions for the acquisition of raw materials and materials necessary for the implementation of production and economic activities;
. transactions for the sale of finished products;
. transactions to obtain loans to pay for current operations.

Also, one of the criteria for classifying an activity as “ordinary business” may be the mention of this type of activity in the charter of a legal entity as the subject of its activity. Despite possible theoretical claims to the principle “ordinary activities = statutory activities” associated with the unlimited legal capacity of companies, this approach is reflected in judicial practice(clause 5 of information letter No. 62).

When classifying business transactions as large, arbitration courts proceed, first of all, from an analysis of the types of economic activities carried out by companies. And, if the transaction is concluded for the purpose of ensuring compliance certain type economic activity or is directly caused by this type of economic activity, then it will be recognized as a transaction concluded in the normal course of business. This is confirmed by judicial practice.1

FAS Russia in its practice is guided by these provisions, pointing out in relevant decisions the illegality of actions of government customers to reject applications of procurement participants due to failure to submit latest decisions on approval of major transactions in cases where we're talking about on transactions carried out in the normal course of business of the procurement participant.2

The procedure for approving a major transaction for business companies

According to Art. 46 of Law No. 14-FZ, the decision to carry out major transactions by an LLC is made by the general meeting of its participants. If the transaction amount is from 25% to 50% of the value of the company's property, such a decision is made by the board of directors (supervisory board) if the company has formed a board of directors (supervisory board) and the adoption of this decision is within its competence by the charter of the LLC.

The resolution of the Federal Antimonopoly Service of the Moscow District dated September 25, 2006 No. KG-A41/9019-06 in case No. A-41-K-1-2943/06 states that the decision to enter into a major transaction is made by the general meeting of the company’s participants in accordance with clause 3 Art. 46 of Law No. 14-FZ.

A major transaction approved by a general meeting of company participants in violation of the law can be challenged and declared invalid in court.

If there is only one participant in the LLC, then the transaction can be approved by him in simple written form, without drawing up minutes of the general meeting of participants.

Approval of major transactions in a joint stock company may be within the competence of both the board of directors and the general meeting of shareholders.

The board of directors of the joint-stock company approves a major transaction in the event that its subject is property, the value of which is from 25% to 50% of the book value of the company’s assets. In this case, the transaction must be approved unanimously by the entire board of directors (clause 2 of article 79 of Law No. 208-FZ). Each member of the board of directors must vote personally, without transferring his powers by proxy.

If any member of the board of directors is absent and has not provided written confirmation of approval of a major transaction, the approval meeting must be rescheduled to another date. If this rule is not observed, the decision to approve a major transaction will be considered illegitimate.

If the subject of the transaction is property, the value of which exceeds 50% of the book value of the JSC’s assets, then, according to clause 3 of Art. 79 of Law No. 208-FZ, subject to approval by the general meeting of shareholders. In this case, a major transaction must be approved by shareholders owning voting shares (owners of preferred shares do not participate in voting). A major transaction will be considered approved if 3/4 of the votes of shareholders owning ordinary shares(qualified majority). If the procedure for approving a major transaction was violated, then in accordance with clause 6 of Art. 79 of Law No. 208-FZ, it will be declared invalid.

A transaction may be declared invalid both at the claim of the shareholder and at the claim of the company. If the JSC has only one shareholder who owns 100% of the shares, then to approve the transaction to CEO the company must obtain its written consent.

This is precisely the position taken by the Presidium of the Supreme Arbitration Court of the Russian Federation, which in information letter No. 62 indicated that in companies consisting of one shareholder, their written consent (approval) of a major transaction is equivalent to a decision of the general meeting of shareholders. If the company has two shareholders who own shares in equal shares (50% each), then a decision of the general meeting is necessary, since in this case the full composition of shareholders will be considered a qualified majority.

The procedure for approving a major transaction for unitary enterprises

The decision to carry out a major transaction is made with the consent of the owner of the property of the unitary enterprise. The property of a state unitary enterprise belongs by right of ownership to the Russian Federation, a constituent entity of the Russian Federation, on whose behalf the rights of the owner of such property are exercised by the bodies state power of the Russian Federation or government bodies of a constituent entity of the Russian Federation within the framework of their competence established by acts defining the status of these bodies. The owner of the property of a municipal unitary enterprise is the municipal entity, on behalf of which the rights of the owner of the said property are exercised by the bodies local government within the framework of their competence established by the acts defining the status of these bodies.
The Supreme Arbitration Court of the Russian Federation, in its ruling dated April 16, 2009 No. VAS-3929/09 in case No. A63-3891/08-C3-15, indicated that if an agreement concluded as part of the normal business activities of a state or municipal unitary enterprise has not received consent owner of the property, he will be insolvent, because Art. 23 of Law No. 161-FZ imperatively establishes the obligation to obtain the consent of the owner for concluding all transactions the amount of which exceeds the limits established by law. This provision is due to the fact that a unitary enterprise disposes of movable and immovable property only within the limits that do not deprive it of the opportunity to carry out activities, the goals, subject and types of which are determined by its charter. Thus, almost any transaction concluded by such an enterprise will be classified as ordinary general business activities.

The lack of consent of the owner of the property of a unitary enterprise to carry out transactions requiring such consent, as well as the execution by such an enterprise of transactions that go beyond the scope of its special legal capacity (even if the transaction is approved by the owner of the property of the enterprise) may become the reason for declaring these transactions invalid.

The procedure for approving a major transaction for state and municipal institutions

A major transaction can be carried out by a budgetary institution only with the prior consent of the relevant body exercising the functions and powers of the founder of such an institution. Functions and powers of the founders in relation to state institutions created by the Russian Federation or a constituent entity of the Russian Federation, municipal institutions created municipal entity, unless otherwise established by federal laws, regulatory legal acts of the President of the Russian Federation or the Government of the Russian Federation, are carried out by an authorized federal executive body, an executive body of a constituent entity of the Russian Federation, or a local government body.

Decree of the Government of the Russian Federation dated July 26, 2010 No. 537 “On the procedure for the implementation by federal executive bodies of the functions and powers of the founder of the federal government agency“Federal executive bodies exercising the functions and powers of the founder of a federal budgetary institution, no later than December 1, 2010, were instructed to develop and approve a procedure for preliminary approval of major transactions by a federal budgetary institution that meet the criteria established by clause 13 of Art. 9.2 of Law No. 7-FZ.

The procedure for preliminary approval of major transactions by a federal budgetary institution can be considered using the example of institutions subordinate to the Ministry of Finance of Russia. In accordance with the order of the Ministry of Finance of Russia dated September 29, 2010 No. 111n “On approval of the Procedure for preliminary approval of major transactions by a federal budgetary institution subordinate to the Ministry of Finance of the Russian Federation,” a budgetary institution intending to act as one of the parties in a transaction recognized as a major , in order to make a decision on preliminary approval, must submit the following documents to the Commission on the implementation by the Ministry of Finance of Russia of the functions and powers of the founder in relation to federal budgetary institutions subordinate to the Ministry of Finance of Russia:

An application from the head of a budgetary institution for preliminary approval of the conclusion of a major transaction, indicating the subject of such a transaction, counterparties, terms, price and its other essential conditions, containing a financial and economic justification for the feasibility of concluding a major transaction (a list of submitted documents is attached to the application);
. copies of budget reporting forms for the last financial year and as of the last reporting date, certified by the head and chief accountant of the budgetary institution;
. a draft relevant agreement containing the terms of a major transaction;
. prepared in accordance with the legislation of the Russian Federation on appraisal activities a report on the assessment of the market value of the property with which a major transaction is expected to be made, made no earlier than 3 months before the submission of such a report;
. information about accounts payable and receivable, indicating the names of creditors, debtors, the amount of debt and the dates of its occurrence, highlighting debt by wages, debts to the budget and off-budget funds and indicating the status of this debt (current or overdue).

The decision on preliminary approval of a major transaction or motivated refusal in such agreement is accepted by the said Commission within 30 calendar days from the date of receipt of the above documents and is formalized by order of the Ministry of Finance of Russia.
An autonomous institution has the right to enter into a major transaction with the prior approval of the supervisory board of such institution. The supervisory board is obliged to consider a proposal from the head of an autonomous institution to carry out a major transaction within 15 calendar days from the date of receipt of the said proposal by the chairman of the supervisory board of the autonomous institution, unless the charter of such institution provides for more short term. The Supervisory Board is created with no less than 5 and no more than 11 members.

The supervisory board includes representatives of the founder of an autonomous institution, representatives of executive bodies of state power or representatives of local government bodies entrusted with the management of state or municipal property, as well as representatives of the public, including persons with merits and achievements in the relevant field of activity .

Decisions on the approval of a major transaction are made by the supervisory board of the autonomous institution with a two-thirds majority vote of total number votes of members of the supervisory board.
A major transaction completed in violation of these requirements may be declared invalid at the suit of an autonomous institution or its founder if it is proven that the other party to the transaction knew or should have known about the lack of approval of the transaction.

Big deal: pros and cons

In conclusion, let's return to the requirements, established by Law No. 94-FZ regarding the provision by participants of the order placement of a decision on approval or completion of a major transaction or a copy of such a decision.

To determine whether a transaction is large for the ordering party, you need to have the following documents and information at your disposal:

Constituent documents of a legal entity;
. information on the value of the company’s property, determined on the basis of financial statements for the last reporting period;
. information on the book value of the assets of the company or institution, determined according to its financial statements as of the last reporting date;
. information on the size of the authorized capital of the unitary enterprise;

Of the above documents, due to the requirements of Law No. 94-FZ, participants in placing an order are required to provide only copies of the constituent documents.

Moreover, it is not allowed to require the participant in placing an order to provide other documents and information, with the exception of those listed in clause 4 of Art. 25, paragraph 3, art. 35, paragraph 7, art. 41.8 of Law No. 94-FZ. The law does not oblige the procurement participant to document whether the transaction will be for the supply of goods (performance of work, provision of services) that are the subject of the contract, or the contribution of funds as security for an application for participation in the tender, security for the execution of the contract.

The established Art. 41.3. Law No. 94-FZ the procedure for participants in placing an order to undergo accreditation on the electronic platform. By virtue of clause 8, part 2, art. 41.3 of Law No. 94-FZ, in order to obtain accreditation on the ETP, the procurement participant provides, as part of documents and information, a decision on approval or execution of transactions based on the results of open auctions in electronic form on behalf of the procurement participant - a legal entity, indicating information about the maximum amount of one such transaction . After the order placement participant has passed accreditation on the electronic trading platform, the ETP operator enters the specified documents and information (including the above-mentioned decision on approval or on the completion of transactions based on the results of open auctions in electronic form on behalf of the order placement participant - a legal entity, indicating information about the maximum amount for one such transaction) to the register of procurement participants who have received accreditation.

Thus, the solution to the issue of providing information about a major transaction by a participant in an open auction in electronic form is the obligation of the order placement participant to indicate the maximum transaction amount, the excess of which will entail the obligation for him to provide a decision on approval or on the completion of a major transaction (a copy of such a decision).

In other cases, the customer should proceed from the fact that if a participant in placing an order did not submit a decision on making a major transaction as part of the application, then it is understood that the transaction concluded by him as a result of placing the order is not a major transaction for such a participant. Thus, Law No. 94-FZ proposes to proceed from general principle civil legislation enshrined in paragraph 3 of Art. 10 Civil Code RF, according to which participants in civil transactions exercise their rights by acting reasonably and in good faith.

At the same time, since the requirement in itself to provide a decision on approval of a major transaction is established by Law No. 94-FZ, the customer has the right to recommend that procurement participants include in the application for participation in the tender a decision or other document confirming that the transactions being carried out are not big for them.

1. See, for example, resolutions of the FAS Moscow District dated September 12, 2006 No. KG-A41/7615-06 in case No. A41-K1-23537/05, FAS Northwestern District dated October 17, 2007 in case No. A56-51025/ 2006.

2. See, for example, the decision of the Chelyabinsk OFAS Russia on Chelyabinsk region dated April 27, 2009 No. 135-zh/2009 on illegal actions of the auction commission during an open auction for repair work highway M-51 “Baikal” - from Chelyabinsk through Kurgan, OMSK, Novosibirsk, Kemerovo, Krasnoyarsk, Irkutsk, Ulan-Ude to Chita, decision of the Altai Regional OFAS Russia dated May 22, 2009 in case No. 83/09 in relation to the state customer - GU- Branch of the Pension Fund of the Russian Federation for Altai region during an open auction for the supply Supplies for printers.

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In 2017, long-predicted changes to the part of the legislation that concerns the definition of large transactions came into force. The changes also affected the issues of qualifying criteria, approval procedures, and made adjustments to the process of issuing decisions on permitting such transactions by managers government agencies. Now a transaction qualifies as major only if it goes beyond the scope of the company’s standard business activities.

The concept of a major transaction for legal entities

Despite a number of general qualifying features, the concept of a major transaction varies depending on the form of the legal entity that intends to complete it. This type carried out the following organizations:

• Business societies (LLC, JSC).
• Unitary enterprises.
• State and municipal institutions.

As far as LLCs are concerned, Art. 46 of Federal Law No. 14 of 02/08/1998 for them, it represents a major transaction, as one in which property is acquired or alienated in an amount exceeding 25% of the value of the property of the company itself. It is determined on the basis of accounting reports for the period that precedes the date of the transaction. The exception is when the LLC Charter specifies a higher amount for a major transaction. If it is committed in the course of ordinary business activities, then it cannot automatically be considered major.

Thus, a major transaction for an LLC always meets the following criteria:

• It always involves the acquisition or alienation of LLC property.
• It can not only be single, but also represent a chain of interconnected transactions.
• The company's charter may make adjustments to the list of possible transactions for this particular organization.

A major transaction for a joint-stock company is regulated by Federal Law No. 208 of December 26. 1995 It determines that in this case, a transaction in which the company’s property is acquired or alienated in the amount of at least 25% of the total book value of assets can be considered such. It is calculated from the financial statements for the last reporting period. The types of such transactions may include loans, credits, etc.

Transactions of unitary enterprises are determined by Federal Law No. 161 of November 14. 2002 In this case, a large transaction is considered to be one in which the property of an organization is acquired or disposed of in an amount exceeding 10% of its authorized capital or 50 thousand times the minimum wage in Russia. The value of the property is calculated on the basis of accounting reports

Federal Law No. 7 of 12.01. 1996 defines the concept of a major transaction for budgetary organizations. It is recognized as such provided that it operates with funds or property in an amount exceeding 10% of the book value of the assets of this institution. They are determined based on the accounting reports for the last reporting decade. Exceptions will be situations in which the organization's Charter allows a transaction to be recognized as a major transaction for smaller amounts.

Major transactions of autonomous institutions are considered by Federal Law No. 174 of 03.11. 2006 They are considered as such provided that in the process they operate with sums of money or property in an amount equal to or exceeding 10% of the book value of the assets of this institution. Exception is recognition by the Charter autonomous organization the ability to consider a smaller transaction as large.

What transaction is considered major for an LLC?

When determining the size of a transaction for an LLC, they are currently guided by two main criteria:

• First, they compare the amount of the transaction with the value of the institution’s assets.
• Secondly, they determine whether it goes beyond the standard business activities of the organization.

When considering the amount of property being alienated or acquired, it should be understood that these are not only real estate, equipment, etc., but also products of intellectual labor, shares, cash etc.

The following financial transactions can act as transactions in this aspect:

• An agreement under which property is alienated or acquired (credit, loan, acquisition of shares, etc.).
• Agreements under which property is withdrawn from the organization’s assets for a long period of time (transferred to another institution under a lease agreement, etc.).

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The company's charter may also provide an individual definition of a major transaction for a specific LLC. More precisely, starting from 2017, these can only be the principles of extending them to other transactions.

The concluded contract is assessed according to two main criteria:

• Organizations that acquire and dispose of property.
• Actions that are supposed to be performed with this property.

And the main thing here will be the quantitative criterion, i.e. the ratio of the transaction value and the amount of assets.

The company's operations that fall into the high price range are necessarily subject to analysis. If they are carried out as a single transaction, then it is easier to analyze them. Difficulties arise when they represent a chain of interconnected transactions. In this situation, the analysis procedure is simplified if the participants are the same.

The following types of LLC transactions will not be recognized as large:

• In cases where they are carried out as part of the normal business activities of the company.
• If such operations involve the placement of ordinary shares of the enterprise or issue-grade securities.

• The procedure for donating property.
• Credit loans.
• Purchase and sale of goods.
• Property exchange transactions.

If the transaction is large in nature, then in addition to its approval, you will also need consent to conclude additional agreements, preliminary agreements and labor contracts.

A number of small transactions can be recognized as one large transaction if they meet the following requirements:

• They are homogeneous in nature.
• They were committed simultaneously or in a short period of time.
• They involve the same objects and subjects.
• It is possible to trace a single goal in them.

The LLC Charter must clearly state the mechanism for conducting a major transaction:

• The need to obtain the consent of all founders of the company.
• With the consent of the board of directors only.
• No need for additional approvals.

If such information was not included in the Charter, then when implementing the agreement, one must be guided by Federal Law No. 14, which establishes that approval is the right of the general meeting of members of the company. It is possible to fix a higher price ceiling for the transaction in the Charter.

Calculation of a major transaction for an LLC

To calculate the size, the following mechanism of action is provided:

• At the first stage, the total cost of the transaction is calculated.
• The amount received is compared with the value of the LLC’s property. To do this, take data from accounting reports for the last reporting period. In this case, all assets are taken into account.

Since 2017, a large amount is considered to be an amount that is equal to or exceeds 25% of the amount indicated in line 700 balance sheet.

Before entering into an agreement, the following checks must be carried out:

• Calculate the value of assets. Take the latest financial statements as a basis.
• Correlate the contract amount with the value of the company's assets.
• Determine the cause-and-effect relationship with the property.
• If the asset already has contracts with a similar meaning, then a relationship should be established with them.
• Correlate the transaction being concluded with the normal business activities of the company.

Balance calculation

To calculate the book value of assets, you need to take the amount from the last balance sheet. It should be taken into account that debts are not taken into account in such calculations, i.e. take total assets, but take into account the residual value.

In all such calculations, only property that is officially the property of a legal entity is considered. Other objects or leased property are not taken into account.

If the company has one founder

Federal Law No. 14 establishes that transactions concluded by an LLC, where only one person acts as a founder, cannot be considered large. To confirm this fact, it is enough to provide an extract from the Unified State Register of Legal Entities. If, over time, the composition of the company expands, then in order to avoid unnecessary claims, it is better to obtain the approval of the contract by all participants, even if it is made under a preliminary agreement concluded with a different composition.

Certificate of size

Judicial challenges to transactions are not uncommon. In such situations, when considering a case, the judge is obliged to consider all primary accounting documents society and appoint the necessary examination. For this purpose, a certificate of the size of the transaction is requested from the company’s accounting department.

Everyone should know the procedure for compiling it. Chief Accountant. Document in mandatory certified by the signatures of the head of the LLC and the chief accountant. After receiving the certificate, as a rule, it is provided to Rosreestr to record the fact of transfer of property and rights to it.

A major transaction for an LLC is not some abstract concept. The criteria for such agreements are clearly defined at the legislative level, so in this article we will talk about what transaction is considered major for an LLC? by force of law, what actions must be taken to approve such a transaction.

Any commercial organizations in the course of their activities they enter into many transactions with various counterparties, since in entrepreneurial activity concluding contracts is the main way to make a profit.

Article 46 of the Federal Law “On Limited Liability Companies” divides transactions into two main categories:

1. Ordinary transactions, which are concluded frequently, are standard for the organization and do not go beyond the usual business activities.
2. Transactions that are not typical for conclusion in organizations that have certain characteristics, including the amount of the contract, or the nature of the relationship with partners. These are either agreements on the acquisition or sale of property, or agreements that give rise to civil obligations for the company.

Ordinary transactions are not large, even if they are concluded for a huge amount, i.e. the contract price is not taken into account. For example, if an organization is engaged in the construction of houses and constantly enters into such contract transactions, then they will not be large, no matter how much the company demands for construction.

By virtue of Art. 46 Federal Law No. 14, a large transaction is recognized as a transaction (or several transactions that are interrelated), the conclusion of which is not typical for the company, and its size exceeds a quarter of the book value of the LLC’s property according to the latest financial statements.

Criteria that will help distinguish a major transaction from an ordinary one

To understand which transaction is major for an LLC, it is necessary to refer to the requirements of the law, the provisions of the Resolutions of the Plenum of the Armed Forces of the Russian Federation and judicial practice.

Due to the requirements of paragraph 8 of Art. 45 Federal Law No. 14 ordinary transactions are agreements that are concluded everywhere, on a daily basis. At the same time, they are everyday not only for a specific company, but also for other companies that operate in the same field and have a similar amount of assets.

The Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated May 18, 2014 No. 28 (clause 6) provides examples of transactions that can be classified as ordinary.

Thus, the usual ones include contracts related to:

1. Purchasing goods and materials necessary for the production of products;
2. Purchase of machines and tools.
3. Sales of products produced by the organization.
4. Conclusion loan agreements with banking organizations in order to repay the company’s current obligations to counterparties.

In paragraph 1 of Art. 46 Federal Law No. 14 provides examples of large transactions that are not typical for the company.

These include:

1. Large loans and loans not aimed at repaying current obligations.
2. Guarantee.
3. Purchase and acquisition of property that is not related to the normal activities of the company.
4. Collateral transactions.
5. Purchasing shares in organizations.

We remind you that the value of property and liabilities under a major transaction must exceed 25 percent or more of the book value of the organization’s assets according to accounting data as of the last reporting date. Otherwise, the transaction cannot be considered major. We'll tell you more about how to calculate the cost of a major transaction and compare it with the book value of the company's assets.

What is a major transaction for an LLC, what is the amount of the contract and how to calculate it?

The rules for resolving the issue of whether a transaction is major or not, based on its price, are reflected in clause 2 of Art. 46 Federal Law No. 14. The general rules are already set out above. What is considered a major transaction for an LLC? If the contract price is more than 25% of the company’s assets and it is not typical for the company, then it is considered large. To complete it, approval is required from the LLC participants or from the board of directors.

The rules for determining the amount of a major transaction for an LLC and comparing it with the assets of the company are as follows:

1. The value of property on the organization’s balance sheet is determined solely based on accounting information. In this case, in all cases we take last date submission of reports.
2. When calculating the transaction price associated with the alienation of property owned by the company, it is necessary to proceed from the book value of the alienated property, as well as the actual cost of its sale. If one of these indicators is higher than 25% of the book value of the company’s assets, it is taken into account, and the transaction is recognized as large.
3. When purchasing items, their price is taken into account, according to the purchase and sale agreement. The price is compared with the value of the company's assets. Similar rules apply to other transactions - contracts, provision of services, rent, leasing, etc.

The size of a major transaction for an LLC should be determined solely by the above criteria.

Approval of a transaction that is large. Approval decision

Without the approval of a major transaction in an LLC, it cannot be concluded (since there is a high probability of it being declared invalid). To approve it, a decision is necessary either from the company's participants or from the board of directors, if the corresponding powers are transferred to this management body on the basis of the company's Charter.

It is important to note that the board of directors does not have the right to approve large transactions that exceed 50% of the firm's assets. Such agreements require the approval of the company's members in all cases.

There is no form of decision that could be applied by all LLCs without exception, since it is not approved at the legislative level. However, in paragraph 3 of Art. 46 Federal Law No. 14 states what data should be indicated in the decision, so it is not difficult to draw it up.

The decision must include the following information:

1. Title of the document.
2. The date it was compiled.
3. Place of signing.
4. Information about the other party to the transaction.
5. The price of the contract and its subject matter, as well as the essential terms of the agreement.
6. Signatures of the participants.

The decision may contain consent to approve several interrelated transactions, or several unrelated contracts concluded at the same time.

The decision can be made one year before the transaction. This is due to its validity period, which is 1 year from the date of acceptance.

In addition, the decision on approval can be made after a major transaction has been concluded (subject to a suspensive condition). In this case, if someone files a claim in court to invalidate a major transaction due to the lack of consent, such a claim will be rejected if evidence of subsequent approval is presented.

Additional conditions that may be specified in the decision to approve the transaction

By virtue of clause 3 of Art. 46 Federal Law No. 14, the decision may reflect additional, but not mandatory, conditions. They give the parties to transactions a certain degree of freedom when concluding them.

As additional conditions can be written:

1. The limits within which the transaction price can be determined, or the procedure for determining such a price.
2. Consent to carry out several transactions with similar conditions (of the same type or interrelated).
3. Terms of transactions that may be alternative and depend on the specific situation.

Situations when you do not need to approve a major transaction

In some situations, approval of a transaction that is large in value is not required. The list of such situations is specified in paragraph 7 of Art. 46 Federal Law No. 14.

These include:

1. Transactions concluded by an LLC, in which there is only one participant who is the sole executive body companies.
2. Transactions involving the transfer of shares in an organization from company participants to the company.
3. Transactions related to the transfer of rights to property when an organization is reorganized, merges with another organization, or joins another company.
4. Transactions the conclusion of which is mandatory for the LLC by virtue of law or otherwise normative act and the prices at which are determined by the Government of the Russian Federation.
5. Public contracts.
6. Transactions for which preliminary agreements were concluded and approved.

What awaits an LLC that has entered into a major transaction without approval (consequences)

If the transaction has not been approved, but it is mandatory, then the company’s participants, counterparties, interested parties, and members of the board of directors have the right to file an application with the court to declare the concluded agreement invalid. By virtue of the provisions of Art. 173.1 of the Civil Code of the Russian Federation, an agreement for which approval has not been received is considered invalid, if such is required in cases provided for by law.

When considering the case, the applicant will need to prove that the transaction is really large, and it was not approved before or after it was completed.

Thus, if the transaction is large, its approval is mandatory, since otherwise it may be declared invalid with all the ensuing consequences.