The choice of the organizational legal form of the enterprise. The minimum size of the property of the organization

PLAN

Introduction. The essence of organizational and legal forms.

Organizational and legal forms of organizations (OPF):

1. Legislative acts of the OPF.

   OPF classification.

   OPF features. Advantages and disadvantages.

The role of the choice of the BPF in the activities of the organization.

Bibliography.

Introduction

The organizational legal form of an organization is called the form of an economic entity, which fixes the method of fixing and using property by an economic entity and its legal status and goals of activity arising from this. Business entities include any legal entities, as well as organizations operating without forming a legal entity, and individual entrepreneurs.

The existence of an OPF gives the entrepreneur the opportunity to identify and consolidate:

entrepreneur status;

determine the organizational and legal unity of the company (the company's management bodies, the boundaries of their legal capacity);

and the mechanism of property liability, which in turn is a mechanism of control by the state and an instrument of influence.

Each country has its own organizational and legal forms of doing business, which have clear characteristics and strictly enforced requirements.

The need to create an OPF and the mandatory registration of individuals and legal entities is associated with the existence of a large number of informal and underground businesses: "underground production", entrepreneurship that does not meet standards, avoids paying taxes, piracy of the brand, etc.

The need to choose an OPF arises whenever:

creation of a new enterprise;

transforming an existing one.

The choice of the BPF is a long-term solution and changing the form, as a rule, is associated with serious organizational costs, material and financial losses, loss of suppliers and customers. The reasons for changing the OPF can be: a change in legislation, or a change in the size and volume of production of the company.

Organizational and legal forms of organizations.

Legislative acts of the OPF.

There are the following legislative acts regulating the creation, requirements, liability, reorganization and liquidation of OPF: the Civil Code of the Russian Federation, the All-Russian Classification of Legal Forms, the Federal Laws "On Limited Liability Companies", "On Joint Stock Companies", etc.

Any enterprise as a legal entity in accordance with the Civil Code of the Russian Federation, regardless of the organizational legal form, has the same rights as other enterprises. The differences lie in the rights of the founders (participants, shareholders) of such enterprises. It is this set of rights of the founder (participant, shareholder) legal entity and determines the choice of one or another organizational and legal form of the enterprise.

OPF classification.

The All-Russian OPF classifier identifies the following main classification groups:

legal entities that are commercial organizations;

legal entities that are non-profit organizations;

organizations without the rights of a legal entity;

individual entrepreneurs.

Based on the goals of entrepreneurial activity, economic entities that are legal entities are divided into organizations pursuing profit making as the main goal of their activities ( commercial organizations ) or do not have profit making as such a goal and do not distribute the profit received among the participants ( non-profit organizations ).

Legal entities that are commercial organizations can be created in the form of economic partnerships and companies, production cooperatives, state and municipal unitary enterprises.

Legal entities that are non-profit organizations may be created in the form of consumer cooperatives, public or religious organizations, institutions, charitable and other foundations, as well as in other forms provided for by law (non-profit partnerships, autonomous non-profit organizations, branches of foreign non-profit non-governmental organizations, etc.). d.).

To business entities that are not legal entities, but have the right to carry out their activities without formation of a legal entity , include mutual investment funds, representative offices, branches and other separate subdivisions of legal entities, peasant (farm) enterprises (since January 1, 2010), as well as simple partnerships.

TO individual entrepreneurs include citizens who carry out their activities without forming a legal entity.

Figure 1. presents a diagram of the organizational and legal forms that exist today in the Russian Federation.

Figure 1. Organizational and legal forms of the Russian Federation.

OPF features. Advantages and disadvantages.

Using the diagram shown in Figure 1, we will characterize the existing organizational and legal forms.

I . Commercial organizations - organizations whose main goal is to make a profit and distribute it among the participants. These include:

A) Business partnerships- To commercial organizations in which contributions to the share capital are divided into shares of the founders. A distinction is made between a general partnership and a partnership in faith.

General partnership ( Fri) - partnership, the participants of which (general partners) on behalf of the partnership are engaged in entrepreneurial activity and are liable for its obligations not only with their contributions to the share capital of the PT, but also with their property.

Advantages and disadvantages: Participants of the PT must be highly qualified and enjoy mutual trust. If these requirements are met, management has a high efficiency and effectiveness. If participants do not meet these requirements, then there is a high probability of various kinds of negative consequences.

Faith Partnership (TNV) - a partnership in which, along with general partners, there is at least one participant of a different type - a contributor (limited partner), who does not participate in entrepreneurial activities and bears risk only within the limits of his contribution to the share capital of TNV.

Advantages and disadvantages: Management is efficient. General partners must be like-minded, enjoy the trust of investors, have high qualifications and a developed sense of responsibility. Otherwise, there is a high probability of various kinds of negative consequences.

b) Business companies -To commercial organizations in which contributions to authorized capital divided into shares of the founders. Exist:

Society with limited liability(OOO) - an economic company, the participants of which are not liable for its obligations and bear the risk only within the limits of their contributions to the authorized capital. Provides one type of membership - member. It can be an individual or a legal entity (their possible number is from 1 to 50). Governing bodies: general meeting of participants, management. The number of votes by agreement of the participants is specified in the constituent documents (recommendation: in proportion to the share in the authorized capital). Participants bear the risk of losses within the value of their contributions to the authorized capital of the company. The profit allocated for dividends is distributed among the participants in proportion to their shares in the authorized capital. Upon withdrawal, the participant has the right: to receive a share in money, in kind, to transfer part of it or all of it to another person (participants in this have an advantage over third parties).

Advantages and disadvantages: If the number of participants exceeds 15-20, then the sense of ownership and efficiency of management are reduced. An LLC is preferable if the participants do not want to transfer all management rights to a narrow circle of people. The fact of material liability for obligations within the limits of the company's property reduces the interest for creditors.

Additional Liability Company (ALC) - a business company, the participants of which jointly and severally bear subsidiary (full) liability for its obligations with their property in the same multiple for all of the value of their contributions to the authorized capital.

Advantages and disadvantages: Responsibility for the obligations of the bankrupt participant is transferred to other participants. ODO is preferable if the participants are highly qualified and trust each other. The high responsibility of the participants contributes to the improvement of the quality of their activities, the growth of trust in them by other organizations.

Open Joint Stock Company (OJSC) - a business company, the authorized capital of which is divided into a certain number of shares, the owners of which can alienate their part without the consent of other shareholders. Shareholders bear risk only to the extent of the value of their shares. Governing bodies: general meeting of shareholders, supervisory board, board (management) headed by the chairman (director). The share of preferred (non-voting) shares must not exceed 25%. Dividend profit is distributed among shareholders in proportion to the number of shares they own.

Advantages and disadvantages: The number of shareholders is not limited. Preferred if it is necessary to make large capital investments (by attracting potential investors to the participants).

Closed Joint Stock Company (CJSC) - a joint-stock company, whose shares are distributed only among its founders or other predetermined circle of persons. Shareholders of a CJSC have a pre-emptive right to acquire shares sold by its other shareholders. Shareholders bear risk only to the extent of the value of their shares.

Advantages and disadvantages: This form is preferable if: participants do not want to entrust management to a narrow circle of qualified employees (or if there are none); Participants want to limit their composition to a predetermined circle of people.

V)Production cooperatives- d voluntary association of citizens on the basis of membership for a joint production or other economic activity based on personal labor participation and the association of property share contributions by its members (to the cooperative's share fund):

Agricultural artel (collective farm) (SPK) - a cooperative created for the production of agricultural products. It provides for 2 types of membership: a member of a cooperative (works in a cooperative and has the right to vote); associate member (has the right to vote only in certain cases provided for by law).

Advantages and disadvantages: The number of participants is limited only by the lower limit - 5 people. If the number of participants exceeds 15-20, then the sense of ownership decreases. The SPC is preferable if participants do not want to entrust management to a narrow circle of skilled workers (or if there are none). Management is not efficient enough. Each participant, regardless of the size of the contribution, has 1 vote (the risk is not proportional to the contribution).

Fishing artel (collective farm) (RPK) - a cooperative established for the production of fish products. It provides for 2 types of membership: a member of a cooperative (works in a cooperative and has the right to vote); associate member (the right to vote is vested only in certain cases provided for by law).

Cooperative farm (koopkhoz) (SKH) - a cooperative created by the heads of peasant farms and (or) citizens running personal subsidiary plots for joint activities in the production of agricultural products based on personal labor participation and the combination of their property shares (land plots of peasant farms and private household plots remain in their ownership).

G) Unitary enterprises- An enterprise is recognized as a unitary enterprise that is not endowed with the right of ownership of the property assigned to it by the owner. Only state and municipal enterprises can be unitary:

State (state) enterprise (GKP) - a unitary enterprise based on the right of operational management and created on the basis of property that is in federal (state) ownership. A state-owned enterprise is created by decision of the Government of the Russian Federation.

Advantages and disadvantages: The enterprise can receive assistance from the state. However, the management and other employees of the enterprise will not be sufficiently interested in efficient work. PCUs are generally unable to compete with private enterprises.

Municipal enterprise (MP)- a unitary enterprise based on the right of economic management and created on the basis of state or municipal property. Created by decision of the authorized government agency or local government.

Advantages and disadvantages: similar to GKP.

II . Non-Profit Organizations - organizations that do not pursue the goal of making a profit and do not distribute the profits received among the participants:

Consumer Cooperative (PC) - a voluntary association of citizens and legal entities on the basis of membership in order to meet the material and other needs of the participants, carried out by combining property shares by its members. Provides 2 types of membership: member of the cooperative (with the right to vote); associate member (has the right to vote only in certain cases provided for by law).

Public and religious organizations - voluntary association of citizens on the basis of common interests to meet spiritual or other non-material needs. The right to carry out entrepreneurial activities only to achieve the goals of the organization. Participants do not retain ownership of the property transferred to the organization.

Funds - an organization that does not have membership, established by citizens and (or) legal entities on the basis of voluntary property contributions, pursuing social, charitable, cultural, educational or other socially useful goals. The right to engage in entrepreneurial activities to achieve their goals (including through the creation of economic companies and participation in them).

Institutions - an organization created by the owner to carry out managerial, socio-cultural or other functions of a non-commercial nature and financed by him in whole or in part.

III . Associations of legal entities - associations (unions) created by legal entities in order to coordinate business activities and protect their property interests. Association members retain their independence and the rights of a legal entity.

The role of the choice of the BPF in the activities of the organization.

When choosing the organizational and legal form of a future enterprise, it is necessary to take into account their features, so as not to later find out that in order to conduct any business transaction or solve a certain problem, it is necessary to re-register the company.

To select the OPF, the following aspects of the future enterprise should be taken into account:

Goals and activities, the possibility of making a profit;

• Profit distribution;

• Responsibility of founders (participants);

• Taxation;

• Accounting and reporting;

• The minimum size of the property of the organization;

• The possibility of participants to receive part of the property of the organization upon exit from it and upon its liquidation;

• Type of management and number of enterprises.

Thus, the choice of legal form plays an important role not only in the process of registration of legal entities, but also in the further functioning of enterprises. The convenience of managing an organization, the security of investments, the confidentiality of information about the founders, and much more directly depend on the correct selection of the legal form. Organizational - legal forms enterprises (4)Abstract >> Economic theory

3.2 Choosing the legal form of the enterprise

The organizational and legal form of an enterprise is a system regulations, defining the relationship of the enterprise with the state, with business entities, with internal structural divisions of the enterprise.
Any entrepreneurial activity is carried out within the framework of a certain organizational and legal form of the enterprise. The choice of this form depends on the personal interests and capabilities of the entrepreneur and is mainly determined by the following conditions:
field of activity;
availability of financial resources;
the state of the market;
preferred qualities of the organizational and legal form of the enterprise.
Analyzing legal documents as the basis for creating a private enterprise, we can conclude that a private enterprise organized on the property of an individual citizen, with the aim of making a profit and with the right to hire workers, can be created in the form of:
limited liability companies;
additional liability companies;
rental company;
franchise enterprise;
joint-stock company;
peasant (farm) economy.
Let us give a brief description of the positive and negative qualities of these forms of enterprises.
An enterprise in the form of a limited liability company may be established by one individual or legal entity, with an authorized capital of at least an amount equivalent to 100 minimum wages, determined at the time of the company's creation. The founder of a limited liability company is liable for its obligations and bears the risk of possible losses within the value of its contributions to the statutory fund.
Each of the named persons: the founder and the enterprise in the form of a limited liability company are independent participants in civil circulation. The property of the founder, transferred by him to the authorized capital of the enterprise, is isolated, separated from other property belonging to the founder. In case of unprofitable activity of the enterprise, the founder risks only the value of the property, which is transferred to the authorized capital of the enterprise. Claims of creditors or business partners cannot be applied to the property that has not been transferred by the founder to the authorized capital of the company. The statutory fund of a limited liability company determines the boundary of the owner's property for the state of affairs at the enterprise belonging to him. This circumstance is extremely attractive for the founders and contributes to the priority of organizing private enterprises in the form of limited liability companies. Today it is the most common organizational and legal form of creating private enterprises.
Money, securities, land, equipment, machinery, buildings, technologies, licenses, rights to use property, and more can be contributed to the authorized capital of an enterprise.
The main criterion, on the basis of which the possibility of making an object as a contribution to the statutory fund is determined, is the determination of the value of its monetary value. This is especially important when it comes to making contributions to the statutory fund of technologies, licenses, a body of knowledge and experience, intellectual rights, know-how, and the like. In doing so, it is necessary to be guided by the provisions that similar information must have commercial value due to its unknown to third parties. When the founder of the enterprise is one person, for an objective assessment of such a contribution, it is advisable to resort to the help of independent experts.
Since the principle of responsibility in business turnover has not yet taken deep roots among the entrepreneurs of our country, the legislator has introduced a mandatory minimum size of the authorized capital equal to 100 minimum wages and an indication of the limited nature of liability in the name of the enterprise.
By the time of registration of the enterprise, the statutory fund must be paid at least 50 percent. The remaining part is payable during the first year of the enterprise's activity (Article 144 of the Civil Code of Ukraine.
A common disadvantage of enterprises established in the form of limited liability companies is the insignificant amount of the authorized capital (authorized capital), low level financial security of loans and contracts.
In a company with additional liability, in contrast to a limited liability company, the founder is liable for the obligations of the company not only with a contribution to the statutory fund, but also with all the property that belongs to him, which is property. When organizing an enterprise in the form of an additional liability company, the credibility of creditors and business partners increases. But, on the other hand, in case of failure, the entrepreneur risks losing his house, apartment, car, money and other property.
The features of the organization and activities of enterprises using other people's property and experience (rental, leasing, franchising) are shown in detail in the previous paragraph, so we will not dwell on them here as well as on the organizational and economic features of a private enterprise created in agricultural production in the form of a peasant (farm) economy, which are given in the same place, in paragraph 3.1.
A joint stock company is an enterprise that has an authorized fund divided into a certain number of shares of the same nominal value, and is liable for obligations only with the property of the enterprise (Article 80 of the Commercial Code of Ukraine). All shares of such a private joint-stock company belong to one owner.
In order to increase the efficiency of their activities, enterprises voluntarily unite into associations (unions), corporations, concerns, consortiums, production associations, industrial and financial groups and other associations according to sectoral, territorial and other principles.
Association - a contractual association of several enterprises, created for the purpose of constant coordination of production, scientific, technical, economic, social and other tasks. The Association has no right to interfere in the production and economic activities of its members.
The Association is usually not a higher authority in relation to its independent enterprises. It performs only those functions and has the powers that are voluntarily delegated to it by the participating enterprises.
Association members can be enterprises, institutions, organizations, state bodies, as well as citizens. If there are two or more enterprises that have expressed a desire to form an association, a founding commission is created, the functions of which include consideration of applications from enterprises to enter into joint activities, verification of their legal capacity, preparation of the charter of the association and the meeting (conference) of founders. The meeting (founding conference) of representatives of enterprises, i.e. the founders of the association, decides on the creation of the association and the composition of the participants, determines the procedure and terms for the transfer of property and other material assets under the jurisdiction of the association (entry fee), approves the charter, decides on the introduction of membership fees and their amounts.
The charter - the founding document of the association - contains the name of the association, including a mention of its type (concern, association, consortium, etc.), information about the location of the governing bodies of the association, a list of its tasks, functions, rights and obligations, membership principles, information about governing bodies.
The governing bodies of the association are the general meeting of members (meeting of founders or founding conference), council (or board) and management. The association has an audit committee. The charter determines the procedure for election to these bodies, their tasks and rights, regulates property rights and the procedure for signing foreign trade transactions on behalf of the association.
The charter of the association is registered with the executive committee of the Council of People's Deputies. The Association acquires the rights of a legal entity from the date of its registration.
The organization and activities of the association are based on the following principles: voluntary entry of enterprises on the basis of common interests, freedom to choose an organizational form, voluntary delegation of powers of enterprises of the association as a whole, self-government and a contractual basis for organizing relations between participants with each other and the association as a whole.
When creating an association, enterprises are guided by the requirement of the state and society on the inadmissibility of monopolization of production, which leads to the infringement of the rights and interests of consumers. The centralized implementation of various production, economic, managerial and other functions and activities in the association is assigned to one or more participants. For this, it is possible to create special bodies, centers, and industries.
Members of the association are obliged to comply with the charter, take part in the management and comply with the decisions of the association. They are responsible for non-fulfillment or improper fulfillment of the decisions of the association and the obligations assumed in the manner prescribed by the charter, have the right to receive a share of profits (income) from joint activities and carry out joint activities with other enterprises that are not part of this association, unless otherwise provided by the charter.
Participants' contributions to the property of the association are divided into share (share) and entrance fees. The Association, by joint decision of the participants, establishes the size of the equity (share) and entrance fees or determines their minimum size. To solve specific problems of industrial and social development, targeted contributions from participants on a voluntary basis can be used. By joint decision of the participants, the association creates centralized funds, including reserves (insurance), currency, etc. The composition, purpose, size and procedure for using the association's funds are determined by the governing bodies.
Associations conducting their activities on the basis of cost accounting and being legal entities, along with the consolidated balance sheet, constitute an independent balance sheet.
The property and results of financial and economic activities of associations that do not have a special (separate) management apparatus are recorded on the balance sheet of the enterprise on the basis of which the association performs its functions.
The association is not responsible for the obligations of the state, and the state is not responsible for the obligations of the association. For its obligations, the association is liable with all its property, which may be levied in accordance with the law. The Association is not liable for the obligations of the participants, while the participants are liable for the obligations of the association within the limits of the invested funds and in the manner prescribed by the charter.
After the termination of the association's activities, the remaining property is distributed among the enterprises and organizations that were part of it.
A corporation is a contractual association created on the basis of a combination of industrial, scientific and commercial interests, with the delegation of individual powers of centralized regulation of the activities of each of the participants.
A concern is a statutory association of enterprises in industry, transport, banks, communications, trade, scientific institutions, etc. on the basis of complete financial dependence on one or a group of enterprises. Enterprises uniting in a concern carry out joint activities on the basis of voluntary centralization of the functions of scientific, technical and production development, investment, financial, environmental, foreign economic, patent-licensing and other activities.
To organize the work, the concern creates management bodies to which its participants voluntarily transfer part of their powers and functions, including representing their interests in relations with ministries and departments, other organizations and institutions, including resolving issues related to the placement of government orders, the acquisition of resources and placement of investments. Members of a group may not simultaneously belong to other groups.
Concerns can occupy a special place in industries that are characterized by closed chains of interrelated technological processes, deep internal cooperation in the production and sale of the final product. Such concerns can successfully operate, for example, in industries and industries throughout the entire cycle of gas production, transportation and distribution, in the oil refining industry, in the production of fertilizers and the provision of services for their use.
A consortium is a temporary statutory association of industrial enterprises and banks to achieve common goals, solve specific problems, for example, the implementation of large investment projects, scientific and technical programs, the construction of large facilities, etc. To implement the program, a group of enterprises of any form of ownership can unite into a consortium. Having completed the task, the consortium terminates its activities or is transformed into another type of contractual association.
Consortium members retain their economic independence and may take part in the activities of other consortiums, associations, joint ventures. The consortium uses and disposes of the property allocated to it by the founders, funds allocated for the implementation of the relevant target program, as well as funds received from other sources. As a rule, it carries out its activities on a non-profit basis and does not have relations with the budget that are different from the relations of the founding enterprises. The consortium is not a legal entity.
A production association is an association of industrial enterprises based on homogeneous technologies, products with the centralization of financial, accounting, production, scientific and technological functions or part of them. The main tasks of creating production associations are:
ensuring, through coordinated manufacturing, a comprehensive supply of competitive products;
concentration of capital for the intensive development of enterprises included in the association;
exclusion of departmental disunity when creating new types of goods;
more efficient use of the existing scientific and production potential of the enterprises included in the association;
more complete use of resources for the social development of the labor collective of the association.
Industrial-financial group - an association of industrial and agricultural enterprises, scientific and design organizations, insurance companies (companies) and commercial enterprises headed by a bank. Industrial-financial groups are an industrial-financial-trade complex of enterprises that have partially or completely pooled their resources for technological or economic integration, the implementation of investment and other projects and programs aimed at increasing profitability, competitiveness, expanding markets for goods and services, increasing production efficiency, creation of new jobs.
Distinctive features of the industrial-financial group are:
voluntary participation and preservation of the legal independence of participants;
mandatory presence of banks, financial and credit institutions and industrial enterprises;
belonging of the participants of the industrial and financial group to those areas of activity that determine the industrial, scientific and export potential of the country;
having a common strategy;
integration of participants in the industrial and financial group through the pooling of resources, common management, pricing, technical, marketing, and personnel policies.
The formation of industrial and financial groups has many-sided positive impacts on the development of the domestic economy:
industrial and financial groups strengthen the integration of banking and industrial capital, contribute to the resolution of the investment crisis;
industrial and financial groups create favorable conditions for the unification of technologically and cooperatively related enterprises, for increasing the utilization of existing production capacities;
the concentration in the bank of the industrial and financial group of mutual settlements of cooperating enterprises-participants of the group stabilizes payments between them, reduces the load on the interbank infrastructure;
industrial and financial groups contribute to the development of business plans, reduce business risk, open access to high technologies for competitive products, help in promoting products on the market;
industrial and financial groups contribute to a significant reduction in the cost of acquiring material resources through their wholesale purchases for all enterprises of the group.
The disadvantages of the activities of industrial-financial groups include the following:
the emergence of a bureaucratic elite, the maintenance of which will require deduction of profits;
lack of qualified specialists in the management of industrial and financial groups;
loss of flexibility and efficiency in decision-making at the enterprises belonging to the group.
The creation, reorganization and liquidation of industrial and financial groups is carried out on the basis of the Law of Ukraine "On industrial and financial groups in Ukraine" dated November 21, 1995 No. 437/95-BP and the Regulations on the creation (registration), reorganization and liquidation of industrial and financial groups , approved by the Resolution of the Cabinet of Ministers of Ukraine dated July 20, 1996 No. 781.
The choice of the organizational and legal form of the future enterprise and the form of cooperation with other enterprises, organizations and institutions, the entrepreneur makes independently, based on the goals and objectives of entrepreneurial activity, and also taking into account the following factors:
political and economic stability of the country;
the level of inflation and the availability of loans;
availability of real support at the initial stage of entrepreneurship;
validity of the decision to establish a private enterprise;
the presence of solvent demand for products, works, services that are supposed to be produced (performed) at the enterprise;
the degree of property liability of the founder in case of financial failure of the enterprise;
features of the procedure for making important decisions;
the minimum size of the authorized capital of the enterprise being created and the minimum amount of initial capital necessary for the production of products in the planned volumes;
the procedure for distributing the profit of the enterprise;
the complexity and cost of documenting the current activities of the enterprise, etc. - legal forms enterprises ...

An entrepreneur who decides to start a business has to choose the form of the enterprise. The Civil Code of the Russian Federation (hereinafter: the Code) provides various organizations. With the exception of peasant (farm) farms (PFH), they have the status of organizational and legal forms (hereinafter: OPF) or their varieties (Fig. 1):

individual private enterprises;

business partnerships;

business companies;

production cooperatives;

state and municipal unitary enterprises.

Within the framework of the variety of types of ownership, business entities of different organizational and legal forms can be created.

Rice. 1. Basic organizational and legal forms of enterprises

Economic entities operating in the economy (enterprises, firms, associations) are diverse in terms of scale, activity profile and organizational and legal structure. However, with all the variety of possible types, they are divided into ordered types, groups for which certain norms of economic legislation have been developed that regulate their activities. The structure of the organizational and legal forms provided for by the current Code is considered in detail in Table. 1. Russian legislation recognizes, along with individual entrepreneurship, state (municipal) business entities, non-state organizational and legal forms of enterprises (joint-stock companies, partnerships).

Knowledge of the specific conditions and basic principles that legally regulate the procedure for activities and responsibility for its results is necessary when choosing one or another organizational and legal form of a newly created or reorganized business entity.

The most significant features that distinguish one legal form from another are:

the number of participants in this business association;

form of management of a business entity;

method of distribution of profits and losses;

sources of property constituting the material basis of the entity's economic activity;

the owner of the applied capital;

limits of property liability.

These differences require a selective approach to the choice of the BPF. It follows that right choice OPF is one of the ways to improve the efficiency of economic activity, since the organizational and legal form is a way of securing property, its legal status and the purpose of entrepreneurial activity for an economic entity.

All of the above allows us to conclude that the choice of the organizational and legal form of the enterprise is influenced by various factors.

But the organizational and legal form, in turn, has an impact on the main elements of the activity of an economic entity, which are shown in Fig. 2.

Rice. 2.

So, for example, the owner of an individual enterprise manages independently the profit, he has the greatest economic freedom in making economic decisions.

The partnership has several owners. Liability depends on the type of partnership: in general partnerships, the owners are liable with all their property, in limited partnerships, some of the participants have full, and some have limited liability.

The owners of the property of a joint-stock company are all its shareholders, and the share of the property of each shareholder is determined by the value of his shares.

A production cooperative is a voluntary association of citizens on the basis of membership for joint production or other economic activities. It is owned by all its shareholders, and the share of ownership of each shareholder is determined by the size of his share.

An entrepreneur, choosing a legal form, must foresee possible consequences for the newly created enterprise in case of one of the co-owners going out of business for various reasons.

The most stable and durable form, according to many authors, is a joint-stock company. The exit from the case of one of the shareholders does not at all affect the existence of an enterprise of this form.

Obviously, the market economy implies a significant variety of organizational and legal forms of enterprises. This is because one part national economy of the country is owned and run by private citizens, either individually or collectively, while the other part is run by organizations established by the government or local authorities. In addition, business in any state is carried out on a different scale.

In such conditions, in order to make a correct and informed choice, you need to have a sufficient understanding of the BPF provided for by the Code. The Code itself and other legislative acts, from which information about OPF is drawn, require special legal knowledge and time for their qualitative study.

Often, the choice of OPF is hampered by the lack of information and reference materials that would allow owners to study the features of various organizational and legal forms and carry them out. comparative analysis; the lack of recommendations on the choice of BPF depending on the specific circumstances.

In a significant number of cases, the choice of OPF in Russia occurs randomly, based on the experience or intuition of the entrepreneur, and sometimes simply on the advice of acquaintances who do not always have a sufficient level of legal knowledge. Meanwhile, this choice is extremely important both in a tactical and, mainly, in a strategic sense.

That is why in the next part of the work, in our opinion, it is advisable to study in more detail the reasons that determine the choice of legal form by a particular enterprise. To do this, it is necessary to consider the stages of development of the enterprise and the main directions of economic activity over a long period. IN modern economy there are enough enterprises with a long history of stable presence in the same sector National economy regardless of the transformation of the socio-economic system taking place in Russia. Among such enterprises is the VOLGOGRAD MUSTARD OIL-FACTORY "Sarepta" chosen for further research.

The fundamental decision when starting a business is the choice of the organizational and legal form of the enterprise (OPF). This criterion will influence all subsequent work.

There is an extremely wide range of forms, principles of doing business, opening and closing, which differ significantly from each other. Will it successful business whether this or that project will be profitable - often depends on the form of organization of the company and the procedure for its taxation. Before creating an enterprise, it is necessary to carefully study and weigh all the features of the OPF.

Varieties of organizations

When starting to choose, you need to know that there are both commercial and non-profit organizations.

Predominantly for doing business, commercial enterprises are used, their main task is to generate income. As for not commercial structures, they participate in public or cultural activities. Very rarely there are cases when a non-profit organization (NO) is used in business. To correctly determine which of the OPF is the most acceptable, we can note a number of characteristic features.

The fundamental factor in determining the OPF is the form economic activity inherent in this enterprise. For some areas, legislation provides for the mandatory use of a commercial form; this applies to banking institutions, dealers, transactions with securities.

To open charitable foundation, educational organization or the stock exchange, a non-profit structure format will be required.

Field of activity

For commercial structures, the main goal is to generate income. As for the non-profit firm, profit will not be the main concern here. Its purpose is clearly defined by the charter, and in without fail must match all legislative norms.

The activities of the NO can be carried out in the following areas:

• educational
• cultural
• scientific
• sports
• charitable
• and others.

BUT is created to solve social problems, questions and disputes, health protection, to protect civil interests and rights. Also, her work is aimed at the formation of public goods.

When choosing the organizational and legal form of an enterprise-consumer cooperative, which, with the help of trade, production or procurement measures, satisfies the needs of members of the organization, it is impossible to use a non-commercial PF.

For commercial organizations there are no restrictions on the choice of areas of activity, except for those prohibited by law.

At the legislative level, a list of institutions that can only be commercial has been approved. Regarding the non-profit structure, there are also certain restrictions. Its activities are strictly limited, and must fully reflect the interests and goals for which it was created. Everything that is specified in the statutory documents and does not contradict the laws can be applied, but no more.

When opening a BUT, a number of features must be taken into account. For example, when creating a stock exchange, a non-profit partnership should be chosen. When it comes to charity, a public organization or foundation is appropriate here.

Receiving a profit

If everything is clear with the commercial form - it is intended to make a profit, then there are a number of questions regarding the non-commercial form. One of them is whether it is possible to carry out entrepreneurial activity. At the level of legislation, this is not prohibited, but only if it is necessary to achieve the goals of the organization.

In any case, for most organizations, the main goal is to make a profit. Accordingly, each founder (founder or shareholder) will be concerned about the formation and division of the net income received.

It directly depends on the choice of the legal form of the enterprise:

• V joint-stock companies(JSC) profits are paid out as dividends on shares;
• in an LLC, its distribution takes place in proportion to the shares in the authorized capital, unless another method is provided for by the charter;
• a production cooperative is characterized by payments in accordance with participation (most often labor), or in proportion to share contributions.

Clause 1 of Article 50 of the Civil Code of the Russian Federation regulates the issue of the distribution of income among non-profit enterprises. It prohibits the distribution of such among the founders. The income received can only be used for statutory purposes. But for the founders, it is possible to receive free services provided by this NO. They can also receive wages if there is an employment relationship.

As for consumer cooperatives, one can be guided by paragraph 5 of Article 116 of the Civil Code of the Russian Federation.

Thus, we can conclude that there is no direct way to withdraw funds received as a result of entrepreneurial activity in BUT. However, you can benefit from employment contract as wages. If we take a consumer union, then here the principle of distribution is similar to that used in KO: income is divided between shareholders.

Organizational and legal forms of enterprises: video

Measures of responsibility of the founders of the enterprise

Choosing OPF, each owner wonders about the degree of his responsibility. As for limited liability or joint-stock companies, their founders are responsible according to the amount of funds invested in the organization. This applies to cases where the company has suffered losses as a result of its activities.

In case of insufficiency of property in a cooperative, subsidiary liability is applied (assigned to members of such a society). According to Art. 56 of the Civil Code of the Russian Federation, subsidiary liability for debts is also assigned to the founders if they are the perpetrators of bankruptcy.

Concerning general rules, the creators of the BUT are not responsible for the debt this enterprise.

The obligations of shareholders in companies are subsidiary and are regulated by the norms of the Civil Code of the Russian Federation or the charter of the PO.

What is better to choose?

Thus, according to the current legislation, the degree of obligations of the participants depending on the OPF is different. For the owner, JSC or LLC can be considered the most profitable. Also safe can be considered BUT, where the degree of obligations does not provide for subsidiary liability. These are stand-alone DOs, foundations or non-profit partnerships.

If the form of organization of the enterprise provides for subsidiary liability, its founders in the event of bankruptcy may incur big losses. Sometimes, in order to pay off debts, the property of the founders may be confiscated.

Taxation system

The first stage for creating an enterprise is the registration of an LLC, the information that is provided when submitting documents reflects the principle of doing business. However, the issue of taxation is the main one for any enterprise. When choosing an OPF, it is necessary to take into account all possible pitfalls.

To improve the functioning of companies of all forms of ownership, the state provides special modes which are selected individually.

Simplified system

This method is applicable to both commercial and non-profit enterprise. However, to use this mode, you must comply with a number of regulatory requirements.

This method of taxation, like UTII, directly depends on the types of activities carried out by the company and its location. Therefore, the form of organization cannot affect the application of this regime.

Thus, we can conclude that the principle of taxing payments to the budget depends not only on the OPF, but also on the type of the company itself and the list of work performed.

The most common questions related to taxation

1. Contributions to societies. A contribution (contribution to the authorized capital), which is exclusively of an investment nature, cannot be considered the sale of goods. That is why, guided by Article 146 of the Civil Code of the Russian Federation, these funds are not subject to VAT.
2. Exit from society. The procedure for leaving the company, as well as the distribution of assets during liquidation, provides for the transfer of those to the founders within the limits of the initial contributions. Guided by Order No. BG-03-477 dated December 20, 2000 of the Ministry of Taxes of the Russian Federation regarding the approval methodological recommendations, the amounts of the returned property are not the amounts of sale, respectively, are not subject to VAT.
3. Sale of part of the authorized capital, share or securities. According to the norms of Article 149, paragraph 2, paragraph 4 of the Tax Code of the Russian Federation, the sale of shares by the founders is not subject to value added tax.
4. Admissions to NO. If the funds received by the NO are intended for charitable purposes, such amounts are not subject to income tax.
5. Inheritance. If certain property is transferred by will or by inheritance, the value of such property is not considered the basis for income tax.

Taxation of non-profit organizations

The amounts of funds that are directed to achieve the statutory goals of this organization, allocated from federal, local, extra-budgetary state funds, are not subject to income tax.

If, in order to solve the main tasks of the NO specified in founding documents, fixed assets, intangible assets or other property were transferred to the organization, their value is not taken into account when taxing VAT (unless, of course, these fixed assets are not involved in entrepreneurial activities). Targeted funding, including grants, earmarked for statutory purposes non-profit organization are not subject to income tax.

Features of taxation of various types of BUT

• Funds. Article 582, paragraph 1 of the Civil Code of the Russian Federation regulates the issue of income taxation of donations in an organization.
• Non-commercial partnership. Tax Code of the Russian Federation Art. 251, paragraph 2, paragraph 1 determines the procedure for taxation with income tax. It is stated here that the entrance or membership fee is not the basis for taxation.
• public enterprises. The procedure for entrance and membership fees is regulated by the principle of non-commercial partnership. Amounts of donations aimed at providing NO, which comply with the norms of Article 582, paragraph 1 Civil Code are not considered income and are not taxed.

Income directed to the maintenance of a public organization, if it is not engaged in entrepreneurial activity, is not subject to property tax. This condition applies to the amounts of targeted contributions of citizens or companies after withholding mandatory payments to the budget.

• Associations. Profits directed to provide for the association, if it is not engaged in entrepreneurial activities, are not subject to property tax. This condition applies to the amounts of targeted contributions from citizens or companies after withholding mandatory payments to the budget.
• consumer cooperatives. The amounts of share deposits for these cooperatives are not taken into account for income tax, in accordance with Article 251 of the Tax Code of the Russian Federation.
• institutions. Donations made (if they comply with paragraph 1 582 of the article of the Civil Code) are not considered profit and are not taxed on it. This also applies to the receipt of funds from the creators aimed at the maintenance of NO.
• Country, horticultural and horticultural societies. The contributions received are not the basis for income tax. Funds paid to persons carrying out work to support this organization are not subject to UST. And for gardening partnerships there are benefits for property taxation.
• Building cooperatives (garage, country, housing). Funds directed to payments to persons carrying out work from membership fees are not subject to UST. This type of HO is exempt from property payments to the budget.
• Housing associations. Guided by the norm of Article 251, paragraph 2, paragraph 1 of the Tax Code, contributions upon entry or from membership cannot be considered the basis for accruing income tax liabilities.

The procedure for accruing obligations to the budget for NGOs with a special status

• Educational organizations. Educational or training-industrial societies are exempt from VAT payments for carrying out the main or additional areas of activity prescribed in the license.
• Society of the disabled. When selling goods, except for those that are minerals, mineral raw materials or excisable products, VAT is not paid. This also applies to services (works) performed by persons with disabilities, with the exception of brokerage or intermediary services. Distributed by this norm only to those societies where the percentage of disabled people and persons representing them is not less than eighty. If the amount of payment for one tax period per employee does not exceed 100 thousand rubles, this payment is not taken to accrue UST obligations. Also, they are not payers of property tax, falling into the list of beneficiaries.
• Enterprises where the Association of the Disabled is the sole owner. The norms of the law that apply to this type of BUT are similar to those that apply to public organizations disabled people.

Codes of legal forms

For each limited liability company that has been registered and has chosen the purpose and method of doing business, a code of the legal form of LLC is assigned. It reflects the data specific to this enterprise, according to of the all-Russian classifier. The classifier contains all possible OPF of non-commercial or commercial forms of ownership.

OKOPF is designed to systematize data on business entities. With its help, information is grouped and analyzed to ensure the development of various spheres of the Russian economy. This codification is one of the main ones.

The procedure for managing enterprises depending on the OPF

The most important issue when choosing an OPF is the management procedure inherent in a particular company. It must meet all the requirements of the creators (founders) and provide full control over the activities.

For LLC The supervisory authority may be:

• company owners;
• sole founder;
• audit committee.

In AO, he manages the process:

• executive agency;
• shareholders, in full force;
• supervisory board;
• auditor.

For a production cooperative the following order of management is typical:

• chairman;
• auditor;
• members of the organization.

NO management

In consumer societies (PO) the management function is performed by:

• software advice;
• general meeting of software;
• board of software;
• audit committee.

in ANO has the authority to:

• the highest collegiate governing body.

Non-commercial partnerships are characterized by the presence of two or more founders who carry out this function.

A board of trustees functions for the funds, and in institutions this issue is reflected in the constituent documents.

Conclusions and summary

As a rule, KOs are chosen to conduct private business. The most common are LLC, OJSC or CJSC. There are also exceptions in the form of BUT - this is a partnership, ANO or PO.

The positive characteristics of commercial organizations include the possibility of carrying out any type of activity, except for those that are not permitted by law. The liquidation obligations of the founders are limited to the extent of contributions only. Undoubtedly, the main advantage is the receipt and distribution of profits. It should also be noted the possibility of dividing property between the founders upon closing.

KOs have few negative points, first of all, this is the established minimum contribution for opening, as well as the impossibility of conducting some activities.

As for non-profit societies, there are a number of positive features here. The absence of a minimum contribution for opening makes it possible to start work from scratch. In terms of liability, the founders are exempt from paying off the obligations of the company. Thanks to a well-written charter, you can independently determine the governing bodies. In the field of taxation, a wide range of benefits for obligations to the budget is provided. In case of termination of work or upon withdrawal from the membership, the founder can receive property or funds within the limits of his contributions.

TO adverse conditions primarily concerns the impossibility of distributing profits among the participants. Activities should not go beyond the goals specified in the founding documents.

Purpose of the conversation on organizational and legal forms: show the main criteria choice and entrepreneurial risks and opportunities associated with the choice of one or another organizational and legal form.

a) The need to choose a legal form arises whenever:

creation of a new enterprise;

transforming an existing one. The choice of legal form is also a long-term decision. Changing the form, as a rule, is associated with serious organizational costs (re-registration costs), material and financial losses, loss of suppliers and customers. The reasons for changing the organizational and legal form in the current market system are:

changing legislation;

change in the size and volume of production of the firm.

There are the following legislative restrictions in choosing the organizational and legal form of entrepreneurial activity:

minimum / maximum capital, number of founders and participants;

restrictions in the choice of organizational and legal forms for certain types of activities (in financial sector banks, insurance companies can only be organized in the form of a joint-stock company);

the nature of the goals (cooperatives; there are activities that can only be carried out within the framework of non-profit or state enterprises).

b ) Economic criteria for choosing the organizational and legal form of entrepreneurial activity:

When choosing a legal form, an entrepreneur has to make a choice:

between individual entrepreneurship and entrepreneurship within the organization;

between the status of a legal entity and an individual.

This choice predetermines:

guarantees of rights and obligations (transaction cost risk);

management costs and management errors of the firm (who represents the firm outside of it, who represents the current problems of the firm, who are long-term; how easy is access to management, who bears the risk for wrong decisions, what are the opportunities for using formalized business procedures.);

the nature of responsibility (sharing in profits and losses, the presence of implicit costs);

liquidity invested investments (risks and losses of invested investments);

financial sources (availability of financial sources, informal capital market);

flexibility and duration of the firm's life cycle (various goals of the firm; short project;

joint financing - consortium; company with a long life cycle);

business confidentiality (risks associated with the loss of trade secrets and costs associated with the need to submit reports on the activities of the company).

In Russia, mandatory registration of both individuals and legal entities is associated with the existence of a large number of informal and underground businesses: a) "underground production" - guerrilla business - business that does not meet the standards, avoids paying taxes, piracy of the brand; b) street entrepreneurship, one-time profitable transactions of an intermediary nature; c) services on demand (tutoring, black brokers.); d) contractual business (sale of cosmetic products,agent sky activity,broker sky activity).

Commercial organizations cannot be created in any other organizational and legal forms, except for those mentioned (clause 2, article 50 of the Civil Code). Thus, the legislator deliberately limited the list of permanent, professional participants in the turnover. The status of a commercial organization allows a very broad participation in civil circulation (in particular, on the basis of general, and not special legal capacity, which is granted to all such organizations, with the exception of unitary enterprises), but it also entails the presentation of increased requirements for the activities of the corresponding legal entity (for example, from the point of view of the terms of property liability).

Criteria for choosing the legal form:

initial capital;

business management;

partnership opportunities (exit of partners from business, exclusion of partners, entry of new partners);

property issues;

profit distribution;

attraction of financial resources;

accounting and taxation;

responsibility;

registration.

The chosen organizational and legal form is not once and for all established.

We will analyze the criteria based on the choice of legal form between JSC, LLC and IP(special attention should be paid to business partnerships - see Federal Law No. 380-FZ of December 3, 2011 "On Business Partnerships").

Initial capital

A legal entity must have an authorized capital at the time of creation; such requirements are not imposed on an individual entrepreneur.

Article 26 of the Federal Law "On JSC" establishes that the minimum authorized capital for a JSC must be:

JSC - at least 1000 minimum wages established by federal law on the date of registration of the company;

CJSC - at least 100 minimum wages established by federal law on the date of state registration of the company.

The minimum authorized capital for an LLC is 10,000 rubles (Article 14 of the Federal Law "On LLC"). Thus, if you are the only member of the Company and your authorized capital is minimal, your creditors will receive no more than 10,000 rubles from you.

Business management

Another factor that must be taken into account when choosing the organizational and legal form is the procedure for making decisions on key issues that are within the competence of the highest governing bodies:

in JSCs, the powers of the shareholders' meeting are strictly regulated by law (which excludes the possibility of regulating the decision-making procedure by the enterprise itself; for example, Article 49 of the Federal Law of December 26, 1995 No. 208-FZ "On Joint Stock Companies");

in an LLC has the right in the charter to expand the list of issues related to the competence of the general meeting, as well as to regulate the number of votes required to make a particular decision.

A number of key issues in an open joint stock company can be decided by the board of directors, that is, in fact, management can be external in relation to an enterprise in the form of an open joint stock company.

Possibilities

partnerships

The LLC form is preferable for situations where partners make different contributions to the company, but it is necessary to ensure that they have the same rights. In the case when the relationship becomes public and new participants who do not have special merits to the company are not supposed to be equalized in rights with others (old ones), the JSC form seems to be optimal.

Questions

property

Issues of ownership are also closely related to issues of protection against hostile takeovers. From the point of view of protecting the company, it is necessary to assess how, in one form or another, the confidentiality of information about the participants in the company is ensured, control by the owner over certain categories of transactions, what opportunities exist to limit the turnover of shares and to block the actions of an unfriendly participant.

JSCs have a simpler procedure for transferring (selling) a part of the company (it is not difficult to transfer shares to another person, while in the case of an LLC, it is necessary to change the constituent documents), however, this factor can also play a negative role in case of an undesirable takeover.

LLC is a much stronger structure, since the transfer, sale of a part of the company is impossible without the consent of all the founders.

Accounting and taxation

There are some differences in the order of payment of insurance premiums. So the individual entrepreneur pays insurance premiums for pension insurance in a fixed amount, which changes annually and depends on the year of birth of the entrepreneur, and also has the opportunity not to register as an insurer in the social insurance fund. However, if an individual entrepreneur hires workers, all employees are subject to compulsory insurance in the social insurance fund.

A legal entity pays insurance premiums for pension insurance for its employees, depending on wages, and is also obliged to insure all its employees in the social insurance fund.

Registration

The procedure for registering as an individual entrepreneur and registering the creation of legal entities also differs.

Registering as an individual entrepreneur is much easier and cheaper than creating a legal entity.

Registering an LLC is easier and faster than a JSC.

When registering an individual as an individual entrepreneur, it is necessary to pay a state fee of 800 rubles, for registering a legal entity, the state fee is 4,000 rubles (Article 333.33 of the Tax Code of the Russian Federation).

At the same time, the packages of documents provided for registering an individual entrepreneur and for registering a legal entity with the tax authorities differ significantly.

In addition, a legal entity must have a round seal (containing its full company name) in Russian and an indication of its location. While an individual entrepreneur is not required to have a seal (has the right to it).

Raising funds

If it is necessary to obtain a loan from a bank, the attitude towards a company in the form of an OJSC is more favorable. Perhaps this happened historically, because the form of OJSC was considered more “solid” for a long time. However, when registering an LLC, there is no need to issue shares (issuing shares is a complicated procedure).

Responsibility

Individual entrepreneurs and legal entities, as subjects of entrepreneurial activity, have the main difference in the degree of responsibility.

An individual entrepreneur is liable with all his property.

Members of a legal entity are liable within the limits of their contribution to the authorized capital.

And participants in an economic partnership are not liable for the obligations of the partnership and bear the risk of losses associated with the activities of the partnership, within the limits of the amounts of their contributions.

"On business partnerships"