Examples of company mergers. Merger of two LLCs with different founders Merger of two organizations

The modern economy is characterized by constant changes in the conditions of the internal and external environment. Enterprises of various forms of ownership are developing. In many areas, the consumer market is divided between large players and competition is quite high. Companies are constantly looking for new ways to increase profits and increase profitability. Of particular interest is the trend of recent decades - mergers and acquisitions of companies as one of the ways to consolidate a business.

Mergers of Companies: Definition and Types

By merger we mean merger of several (two or more) business entities into a new enterprise. That is, as a result of the merger of separate legal entities, a new company is formed. Previous firms are ending their independent existence. The types of such associations are as follows:

1. Merger of enterprise forms. Another name is complete fusion. The created company fully controls all the assets and activities of the former entities, and also assumes all obligations to creditors and clients of the merged companies.
2. Merger of company assets. Owners of old enterprises transfer control rights as a contribution to the authorized capital of these entities to a new legal entity. At the same time, the existing form of ownership is preserved, but the activities of the merged companies become controlled by the newly created enterprise.
3. Merger of one or more enterprises to another. With this type of merger, the joining entities cease to exist. And the company that joins them takes over the management and obligations of the previous companies.

Acquisition of companies

Absorption- these are transactions of acquisition by the acquiring company of at least 30% of the authorized capital - in the form of shares or shares - of the target company (the one that is being acquired). Both parties to the transaction retain their legal independence. In this way, ownership rights are transferred to the new owner.

In business, this form of reorganization is more often understood as acquisition of one enterprise by another– smaller and often lagging behind in the market. The acquiring company controls the assets and activities of the target companies, which in some cases may eventually cease to exist.

Abroad, unlike Russia, there is no clear distinction between the terms “merger” and “acquisition”. The formation of one enterprise (not necessarily a new one) from two or more economic entities is considered a merger.

Main types

It is convenient to classify all existing types of mergers and acquisitions according to a number of criteria:

• Nature of the company combination th:
  • horizontal merge– enterprises operating in the same business area and producing the same products are united;
  • vertical merge– enterprises at different stages of the technological chain of the production process are connected (for example, ore miners with metallurgical plants);
  • parallel (generic) merger– an association of companies producing interrelated goods (manufacturers of computers and motherboards);
  • ToOglomerate (circular) fusion– a connection of companies that are not interconnected by stages of production, sales markets and other economic relations. The purpose of such consolidation is to sell assets in the future at a higher price or to diversify the business. There are 3 types of conglomerates:
    • with the expansion of the product range (products with a similar production process and sales markets, for example, powders and bleaches);
    • with the expansion of the consumer market (gaining access to new territories, customer segments);
    • pure conglomerates (have no commonality).

Advantages and disadvantages

Expanding a business and increasing capital in these ways has the following advantages:

1. Weakening competition;
2. The ability to quickly acquire key assets (often intangible, for example, patents, databases, trademarks);
3. Increase profits, profitability and other economic indicators;
4. Development of new markets and new products;
5. An established sales infrastructure is acquired;
6. Opportunity to profitably acquire undervalued assets from a target company.

At the same time, mergers and acquisitions also have flaws, often veiled. These include:

• the risk of overpayment and underestimation of all the consequences of such associations;
• complex integration process when companies operate in different business areas;
• underestimation of additional investments for a full merger of enterprises;
• possible incompatibility of corporate cultures;
• risk of losing key employees.

Ways to protect against capture

With the intention of a hostile takeover, the acquiring company, bypassing top managers, immediately turns to the owners of the company of interest. The target company, in turn, takes a number of protective measures.

Basic defense techniques before the announcement of a public transaction:

• « Anti-shark» changes in the charter:
  • dividing the board of directors into parts and annually electing only a certain number of the governing board. It takes many votes to elect a new director.
  • To make a decision on a merger, 2/3 or more positive votes of shareholders are required;
  • fair price – for shareholders who have a large share of shares outstanding, a fixed price bar for their shares in the event of a sale is established;
• Change of place of registration company: taking into account the difference in the legislation of individual regions and countries, it will be easier for the target company to take other anti-takeover measures and defend itself in court.
• "Poison Pill"– measures aimed at significantly reducing its attractiveness for the acquiring company. These include:
  • sale of the most attractive assets for the “captor”;
  • the current shareholders of the target company receive the right to purchase ordinary shares of the acquiring company at half the market price if it buys a significant share of the shares from the “victim”;
  • “pasta defense” - issuing bonds with the condition of early return of funds in the event of a change in the key shareholders of the enterprise.
  • “golden parachutes” - concluding contracts with the managers of the target company to pay them large severance payments in the event of their dismissal as a result of the takeover. Thus, the cost of the transaction will increase significantly.
• Issue of shares with higher voting rights– managers of the target firm receive a majority of votes without owning many shares.
• Defensive absorption– the target company is actively absorbed by other companies, which makes its value several times higher.
• Deliberate buyout of the entire company or part of it by other investors (possibly managers of the company itself) using borrowed funds. Subsequently, the shares are no longer allowed to be publicly traded.

If these measures do not bring results and the takeover deal is announced publicly, then the target company takes the following ways to disrupt the impending unification:

1. Pacman's defense is a counterattack on the shares of the acquiring company.
2. Lawsuits – filing an application in court against the “invader” for non-compliance with antimonopoly legislation.
3. “Green armor” is an offer to the acquiring company to repurchase its shares (if they have already been purchased) at a price higher than the one for which they were acquired, subject to the condition that the controlling stake remains intact for a certain period.
4. Asset restructuring is the acquisition of assets that are unattractive to the invader.
5. Restructuring of liabilities - issuing shares to third-party companies and increasing the number of shareholders, as well as the repurchase of securities at a premium by top managers of the target company from existing shareholders.

Reasons and goals

Main reasons, according to which enterprises enter into such transactions:

1. The possibilities for further economic growth, cost reduction, and increased profits for a particular company under current market conditions are practically exhausted.
2. The real market price of the target company, according to forecasts, turns out to be lower than its book value, that is, the connection of companies for the “invader” will be quite profitable.
3. The liquidation value of the company of interest is higher than its market value. You can buy this company entirely, and then sell it in parts at random for a profit.
4. Personal motives of the management of the acquiring company. In particular, the desire for power and increasing one’s salary.
5. Availability of a large amount of free funds.
6. Make it difficult for foreign competitors to enter the existing market.

Conducting mergers and acquisitions pursues one or more goals. These include:

• Synergistic effect– when adding up the assets of two or more companies, the final result will far exceed the sum of the results of these enterprises separately. This is due to:
  • cost savings by expanding the scale of activity;
  • the presence of complementary resources among companies;
  • strengthening of monopoly position in the market;
  • economy and complementarity in the development of new technologies and products.
• Increasing the efficiency and quality of management in the merging enterprises.
• Obtaining tax benefits.
• Diversification of production means an increase in the range and, as a result, more stable revenue.
• Eliminating competitors.
• Increasing liquidity, solvency and reliability ratings for potential investors and creditors.
• Consolidation of top managers in certain political and business circles.

Main stages of processes

The process of combining companies through merger or acquisition takes place 8 main stages:

• Determining the strategic goals of the enterprise, taking into account the conditions of the external and internal environment. The economic feasibility of connecting with another company is assessed. Internal methods of achieving these goals are also considered (introduction of new technologies, improvement of logistics connections, measures aimed at increasing labor productivity, etc.).
• Selection of qualified specialists for the transaction. Not only employees of the company itself participate, but also a banker, tax consultant, lawyer, auditor, and outside economist are invited. It is important that further actions are analyzed by different specialists.
• The criteria for selecting the required company are determined:
  • industry;
  • products;
  • volume of revenue;
  • type of ownership;
  • sales market.
• Direct search for a company. The object must satisfy the original purposes. Both active actions (personal connections, databases, Internet, brokers) and passive ones (submitting an advertisement) are used.
• Negotiations with selected candidates. Exchange information and weigh your own expectations from the merger or acquisition with the data received. The financial and economic condition of attractive companies is analyzed, hidden reserves, undervalued assets, possible additional investments, etc. are identified. As a result, the cost of the transaction is determined
• Making the final decision and legal preparation of documents with the desired company.
• Integration of enterprises is the unification of economic entities into a single whole.
• Evaluation of achieved results and comparison with planned strategic goals.

Analysis of the effectiveness of the procedure

A comprehensive assessment of the results of company mergers helps to understand the correctness of this management decision and plan future performance. And also adjust your current activities if negative aspects of the transaction are identified. Basicdirectionsefficiency analysis:

1. Evaluating stock performance. Comparison of stock quotes before and after a merger or acquisition (for joint-stock companies). The dynamics of the stock price are monitored over a period of several weeks, months, and 1 year. The amount of dividends per share is compared.
2. Analysis of financial indicators and their dynamics: net profit, return on assets, sales and equity, cost and asset turnover and others. The achievement of a synergistic effect is assessed.
3. Analysis of changes in the company itself, the external environment and other costs. This includes: consumer market share, headcount, R&D costs and returns, changes in the structure of suppliers and buyers.
4. Survey of company managers. Management fills out a special questionnaire, from which conclusions are drawn on how well the expectations from the merger of companies were met.
5. Evaluation by third-party analysts and experts. In addition to assessing the economic viability of the transaction, this gives an idea of ​​the company's credibility in business circles.

The impact of these processes on the economy

There is still no clear opinion about whether these forms of associations have a positive or negative impact on the economy. A number of economists believe that mergers and acquisitions are normal in market conditions, leading to increased efficiency, labor productivity and the country's GDP. Applicable to the most “monetary” industries in Russia (fuel, metallurgical, mechanical engineering), we can agree with this. Large players control a large share of the domestic market and keep out foreign competitors. With the right approach, there is a noticeable synergistic effect

Other economists believe that such forms of business combinations lead only to a monopoly and oligopoly market and impede free competition. Additional company funds are being diverted to protect against takeovers. Gaps in legislation, especially in the area of ​​securities turnover and taxes, allow us to partly agree with this point of view.

If in the late 90s. was clearly expressed trend is profitablebuycheap assets Without an in-depth analysis of the transaction, now investors are more carefully selecting an object. This is especially true for the sphere of medium and small businesses, detailed information about which is often hidden.

The average value of transactions has been growing in recent years, sometimes exceeding the real value of assets. This is largely due to the presence of particularly valuable intangible assets in some companies, which bring significant profits to their owners.

Liquidation of an LLC by merger: step-by-step instructions

Liquidation procedureII LLCthrough merger carried out in several steps:

1. Meeting of owners separately in each company. It is necessary to make a positive decision about the merger.
2. General meeting of owners of all enterprises participating in the operation. A decision on agreement to the transaction is made by voting. Minutes of the general meeting are drawn up.
3. A merger agreement is drawn up and signed by all parties. A draft charter of the new enterprise is being developed and a transfer act is being drawn up.
4. Through a statement forms P12001 the tax authority at the location of the new company is notified of the start of the reorganization. The document is certified by a notary. An agreement on the decision made to carry out this form of reorganization must also be presented. Messages about the merger of form C-09-4 must be sent to the tax authorities at the place of registration of the previous companies.
5. The tax office makes an entry in the Unified State Register of Legal Entities about the beginning of the reorganization and issues a confirming certificate. After this, all creditors (if there are debts) must be notified of the merger within 5 business days. Debt to the Pension Fund, tax, and extra-budgetary funds must be repaid.
6. Publication of messages in the media about the beginning of a merger of companies. Produced in the journal “Bulletin of State Registration” 2 times with an interval of 1 month.
7. Obtaining approval of the transaction from the antimonopoly service. This step is carried out in the case when the value of all assets according to the latest balance sheets exceeds 3 billion rubles. or revenue for the previous year is above 6 billion rubles. And also if one of the parties was previously a violator of antitrust laws.
8. Inventory of property and signing of the transfer deed (assets transferred to the new company, debts of debtors and creditors are reflected). It is signed by all parties. Next, the state fee is paid.
9. Submission to the tax authority of all collected and endorsed documents from the previous steps.
10. After 5 days, the registration authority issues documents confirming the liquidation of the LLC and the creation of a new legal entity.

The entire procedure takes 2–6 months, depending on the scale and specifics of each enterprise.

"). In the final article we will look at the specifics of merging. Do I need to close current accounts? Should income and expenses be recorded if the merger involves a debtor and a creditor? We answered these and other questions in this material.

Initial stage of merger

A merger is a form of reorganization in which several companies cease to exist as separate legal entities and merge into one, larger organization.

The sequence of steps that must be taken during the first stage of a merger is the same as in other forms of reorganization. We have listed all the necessary steps in the table.

Actions to be taken at the initial stage of the merger

Transfer deed

The next step is preparing the transfer deed. Each company participating in the merger must draw up this document. The date of the transfer deed can be any. But it is better that it coincides with the end of the quarter or year - as stated in paragraph 6 of the Instructions for the formation of accounting records during reorganization *.

The transfer deed must contain provisions on legal succession (Article 59 of the Civil Code of the Russian Federation). This is information about the amounts of receivables and payables, as well as about the property transferred to the newly created company. The value of the property under the transfer deed can be market, residual, initial, or corresponding to the actual cost of inventories (clause 7 of the Instructions for the formation of accounting records during reorganization).

There are no restrictions on the form of the transfer deed. Most often, it is drawn up in the form of an ordinary balance sheet and transcripts are attached for each of the lines. Inventory sheets can be used as transcripts. There is another option: abandon the balance sheet form, and simply list all types of assets and liabilities (fixed assets, intangible assets, “debtor”, “creditor”, etc.) and indicate their value. And in separate appendices, provide lists of objects, debtors, etc. (example examples of the transfer deed can be downloaded or).

Period until completion of merger

Then you need to prepare documents for the reorganization. This is a transfer deed, an application for registration of a company created by merger, a decision on reorganization, a document on payment of state duty, etc. The full list is given in paragraph 1 of Article 14 of Federal Law No. 129-FZ dated 08.08.01.

The package of documents should be brought to the “registering” Federal Tax Service and wait until the inspectors make an entry in the Unified State Register of Legal Entities. With the advent of this entry, the predecessor companies will cease to exist, and a new successor organization will appear in their place. But until the waiting period is completed, the predecessors continue to work: they calculate wages, depreciation, register the “primary”, etc.

Final financial statements of predecessor companies

Each company participating in the merger must prepare final financial statements as of the date preceding the date of entry into the Unified State Register of Legal Entities about the reorganization. The reporting consists of , and , explanation and auditor's report (if the company is subject to mandatory audit).

The final accounting statements must reflect transactions performed during the period from the signing of the transfer deed to the closure of the predecessor organization. Because of these transactions, the indicators in the final balance sheet will not coincide with the indicators in the transfer act.

In addition, each predecessor company must close account 99 “Profit and Loss”. Profits can be distributed according to the decision of the founders.

After the final reporting, predecessors do not have to submit balance sheets and other documents, since the last reporting period for them is the time from the beginning of the year to the date of merger.

Inaugural reporting of a newly created organization

An organization created as a result of a merger must draw up introductory financial statements as of the date on which an entry about the reorganization is made in the Unified State Register of Legal Entities. The lines of the opening balance will contain the sum of the corresponding indicators of the closing balances of predecessors. The exception is mutual settlements between predecessors - for example, when one of them was a borrower and the other a lender. Such indicators are not summed up, since if the debtor and creditor coincide, the obligation terminates. Also, in the introductory statements of the assignee, there is no need to summarize the data from the profit and loss statements of the reorganized companies.

Particular attention should be paid to the authorized capital of the successor organization. If it is less than the amount of capital of predecessors, then the difference is reflected in the balance sheet in the line “Retained earnings (uncovered loss).” If the legal successor’s capital is greater than the amount of capital before the reorganization, such a difference does not need to be shown in the balance sheet. In both cases, the accountant does not make any entries.

The introductory report must be submitted to the Federal Tax Service either immediately after registration or at the end of the current quarter - depending on what is more convenient for your inspector.

"Primary" in the transition period

After the merger, the newly created company “inherits” the contractual relations of the reorganized legal entities. But the agreements themselves are still concluded on behalf of their predecessors. The question arises: is it necessary to sign additional agreements to replace the parties to the transaction? Or can you simply send information letters to counterparties that indicate the name and details of the successor company?

We believe that additional agreements are not necessary, because all the rights and obligations of each of the predecessor companies are transferred to the newly created organization under the transfer deed (clause 1 of Article 58 of the Civil Code of the Russian Federation). This also applies to contractual relations. This means that to continue cooperation with suppliers and clients, an extract from the Unified State Register of Legal Entities and a transfer deed are sufficient.

As for invoices, certificates of work performed and invoices, before the date of merger they are issued on behalf of predecessors, on the date of merger and further - on behalf of the successor.

Do I need to close current accounts?

Accountants often question whether the predecessor company should close its account before a merger. Such an obligation is not provided for by law. In other words, the organization can transfer the account to a successor, like any other property and liabilities. To do this, it is enough to bring new constituent documents to the bank and reissue the card with signatures.

Who pays taxes for reorganized companies

The newly formed organization is the only legal successor, and the responsibility to pay taxes for all reorganized companies passes to it (Clause 4 of Article 50 of the Tax Code of the Russian Federation). In this regard, inspectors must transfer the balances from the payment cards with the budget of each predecessor to the personal account of the successor.

Who submits declarations for reorganized companies

If possible, predecessor organizations must report all taxes before the merger, that is, before making an entry in the unified state register. But in practice, they usually do not have time to do this. Then, the very next day after the reorganization, inspectors at the place of registration of the predecessor refuse to accept declarations. In this case, all tax reporting will have to be submitted to the newly created organization to its inspectorate. If, after the reorganization, mistakes of the predecessor are discovered, the successor submits a “clarification” for him.

Please note: the deadline for submitting declarations will not be shifted due to the reorganization. For example, for the year the successor is obliged to report no later than March 28 of the following year - both for himself and for each predecessor.

If during a merger the debtor merged with the creditor

It happens that one participant in the merger is a debtor, and the other participant is a creditor. Then, after the reorganization, the creditor and debtor become one, and the debt is automatically repaid. This means that because of the merger, the debtor will not have to repay the debt, and the creditor will not be able to get his money back.

Is the debtor obliged to show income on the date of reorganization, and the creditor expenses? The Tax Code does not regulate this issue. But officials believe that taxable income does not arise for the debtor. The Russian Ministry of Finance expressed this point of view in letters and. True, they talk about reorganization in the form of annexation. But, in our opinion, the conclusions are also applicable in the case of a merger.

In addition, similar conclusions can be drawn regarding the lender's costs. In other words, as of the merger date, the creditor may not include the extinguished debt as an expense.

A special case is the situation when a merger involves a supplier and a buyer who, before the reorganization, transferred an advance to the supplier. In such circumstances, the seller has the right, before reorganization, to deduct VAT previously accrued on the prepayment. The buyer, on the contrary, is obliged to restore the tax previously accepted for deduction when transferring the advance payment. The same position is given in the letter of the Ministry of Finance of Russia dated September 25, 2009 No. 03-07-11/242. Although the letter refers to affiliation, it can also be used as a guide in the event of a merger.

Tax base for VAT

The newly created company can deduct , which one of its predecessors paid to sellers or at customs, but did not have time to take for deduction before the merger.

The successor must confirm the right to deduction with an invoice and primary documents for the transaction. It is also necessary that the goods (results of work, services) purchased by the predecessor be registered for use in transactions subject to VAT. There is one more mandatory condition: the predecessor must transfer documents confirming payment (clause 5 of Article 162.1 of the Tax Code of the Russian Federation).

An organization formed as a result of a merger can deduct VAT, which predecessors accrued when receiving an advance. The assignee can do this after the sale of the prepaid goods, or after termination of the transaction and return of the advance payment. There is one limitation here - the deduction must be accepted no later than one year from the date of return (clause 4 of Article 162.1 of the Tax Code of the Russian Federation).

In practice, many problems arise due to the date of invoices issued in the name of predecessors. If the documents are dated after the reorganization, then the inspectors do not allow the deduction to be accepted. In such a situation, the accountant can only contact the suppliers and ask for corrections.

Personal income tax reporting

Reorganization in the form of a merger does not interrupt the tax period. This is explained by the fact that the company is not a taxpayer, but a tax agent, and labor relations with staff continue (Article 75 of the Labor Code of the Russian Federation). This means that there is no need to submit any interim reporting on personal income tax during reorganization.

There is one important nuance here: if, after the merger, an employee brought a notice for property deduction, where the predecessor organization is indicated as the employer, the accounting department of the successor company must refuse him. The employee will have to go to the tax office again and get another notice confirming the deduction related to the legal successor. Such clarifications were given by the Russian Ministry of Finance. In practice, inspectors everywhere follow these clarifications and cancel the deduction provided under an “outdated” notification.

Insurance premiums and reporting to funds

One of the most controversial issues arising in connection with a merger is this: should the newly created organization calculate the taxable base for insurance premiums from scratch? Or does it have the right to continue the countdown begun by its predecessors before the reorganization?

The amount of contributions directly depends on the answer. If the assignee resets the base, he will automatically lose the right to exempt accruals from contributions that exceed the maximum amount (in 2011 it is equal to 463,000 rubles). If he “inherits” the base, then along with it he will receive the right not to charge contributions for the excess amount.

In our opinion, when reorganizing in the form of a merger, the successor company must begin anew to determine the base for contributions. This is explained by the fact that for an organization created after January 1, the first billing period is the time from the date of creation to December 31 (Part 3 of Article 10 of the Federal Law of July 24, 2009 No. 212-FZ). At the same time, there are no provisions in this law that would talk about the transfer of the base “by inheritance” in this law.

If the predecessors did not pay fees or report to the funds before the merger, the successor will have to do this. This obligation is enshrined in Part 16 of Article 15 of Federal Law No. 212-FZ.

* Guidelines for the preparation of financial statements during the reorganization of organizations were approved by order of the Ministry of Finance of Russia dated May 20, 2003 No. 44n.

Andrey Nikonov, partner of the law firm Pepelyaev, Goltsblat and Partners

The process of mergers and acquisitions of companies can be legally represented in the form of reorganization of the enterprise, its liquidation with the transfer of assets to the acquiring company and the inclusion of the enterprise in the holding.

In the first case, two different companies form one legal entity. In the second, the composition of participants (shareholders, owners) of the enterprise only changes. In the third, the subsidiary (dependent) company functions as an independent company.

Reorganization process

Company reorganization can occur in two ways.

The first is in the form of merger of one company with another. In this case, the merging company is liquidated, and the assets, property, rights and obligations of the liquidated company are transferred to the legal successor. That is, the legal successor pays not only for its previous obligations, but also for the obligations of the acquired company.

The second way is in the form of a merger of two organizations into one new one. In this case, both parties to the reorganization transaction are liquidated. And all their rights and obligations are transferred to the newly created legal entity.

Responsibility for tax obligations

The transfer of obligations upon accession or merger of the parties is formalized by a transfer deed. It must indicate the amount of unpaid taxes and fees. In this case, the legal successor must pay the following obligations:

• identified before the completion of the reorganization and specified in the transfer act (including taxes, fees, penalties and fines for violation of tax laws);
• for taxes and fees identified by inspectors after the completion of the reorganization, as well as penalties for their late payment.

Tax authorities do not have the right to require the successor to pay fines imposed after the completion of the reorganization for violations committed by the legal predecessor before the reorganization.

However, fines are an insignificant part of tax liabilities (10–20%, in rare cases – 40% of the unpaid tax amount). Tax authorities collect much larger sums for obligations related to the payment of taxes and penalties. The taxpayer must fulfill them regardless of when the fact of underpayment of taxes is established: before or after the completion of the reorganization.

Therefore, before carrying out the process of merger or accession, it is necessary to take an inventory of the tax obligations of companies. You only need to check the period that is available for inspection by the tax authorities - the three previous calendar years and the current year.

Hidden tax potential

Checking the tax obligations of the acquired company also has another meaning. After all, the organization could have overestimated their size. For example, overpaying taxes due to an accounting error. Overpayment may also arise due to uncertainty in tax legislation. The enterprise, in order not to take risks, could apply the law in an interpretation that excludes claims from the tax authorities.

In this situation, you should not limit yourself to a three-year period. The fact is that tax legislation allows, at the expense of overpaid taxes, even if more than three years have passed since their payment, to pay off arrears on other taxes and upcoming payments.

Income tax

When a company is reorganized, taxpayer-shareholders do not generate a profit (loss) taken into account for tax purposes (clause 3 of Article 277 of the Tax Code of the Russian Federation). This rule allows you not to include:

• in income the positive value of the net assets of the acquired or merged company;
• expenses include the negative value of the net assets of the acquired or merged company;
• in the income of the successor (newly created company) the difference between the market valuation of the assets of the acquired (merging) enterprise and the paid value of its shares, and if the specified difference is negative, do not include it in expenses.

Example 1

Situation 1. Organization A acquired a 100 percent stake in company B, paying 50 million rubles for them. Then organization A merged company B, the net value of which was RUB 90 million. The benefit of company A in the form of the difference between the net value of the acquired assets and the cost of purchasing shares (40 million rubles) is not subject to income tax.

Situation 2. The net asset value of acquired company B is 40 million rubles, and the cost of purchasing its shares is still 50 million rubles. After the merger, the shares are redeemed, that is, organization A disposes of property worth 50 million rubles. At the same time, property with a net value of 40 million rubles is added. How to deal with a loss from such a transaction will be discussed below.

With regard to the value at which property should be accepted for accounting by the acquiring organization, there are two options for law enforcement practice.

1. The acquiring organization is the legal successor of the acquired enterprise for all transactions concluded before the moment of reorganization. In this case, the value of the property at which it was accepted for tax accounting by the reorganized legal entity will not change. The loss from the redemption of shares of the acquiring organization is not taken into account by the acquiring organization when taxing profits. In the example discussed above, property is accepted for accounting at a cost of 40 million rubles, and a loss in the amount of 10 million rubles. is not taken into account when calculating income tax.

2. The value of shares and other property for tax accounting purposes is determined by the successor based on the actual costs of its acquisition. In the example considered, company A accepts property for accounting at a cost of 50 million rubles. and it is this value that is involved in the calculation of income tax.

The second option is more attractive. After all, Chapter 25 of the Tax Code does not provide for exceptions from the general procedure for determining the value of property for cases when it is received after reorganization. However, the lack of judicial practice may give rise to a dispute regarding the choice of one of these options.

To better understand the content of the second option, let's consider the proposed situations in more detail.

Example 2

Let's use the conditions of example 1.

Situation 1. The net asset value of the acquired company is 90 million rubles. Let’s assume that it is determined based on the following indicators:

Company A must reflect the cost of acquired assets in tax accounting as follows.

Then you need to determine the difference between the net value of the acquired assets and the costs of the assignee to obtain these assets - 40 million rubles. (90 – 50).

Further, the successor must distribute the difference between the cost of the acquired assets and the actual costs of their acquisition among the assets in proportion to their value in the total value of the assets. We obtain the following relations:

• cost of fixed assets of the legal successor: 120 – 40 x 120: 270 = = 102 million rubles;
• cost of materials and goods from the legal successor: 60 – 40 x 60: 270 = = 51 million rubles;
• cost of finished products from the assignee: 90 – 40 x 90: 270 = = 77 million rubles.

The total value of the assets in the tax accounting of the legal successor will be 230 million rubles. This corresponds to the difference between the value of the predecessor's assets and the successor's costs to acquire those assets.

Situation 2. Net asset value is 40 million rubles, and the cost of purchasing shares is 50 million rubles). We will determine the value of assets in the tax accounting of the legal successor in the same way as in situation 1. Let us assume that the net value of assets is formed from the following indicators:

Company A will determine the value of assets in tax accounting as follows.

Then you need to determine the difference between the net value of the acquired tax assets and the costs of the assignee to obtain these assets of 10 million rubles. (40 – 50).

Further, the difference between the cost of the acquired assets and the actual costs of their acquisition, company A must distribute between the assets in proportion to their value in the total value of assets. We get the following results:

• the cost of fixed assets of the legal successor is 124.4 million rubles. (120 + 10 x x 120: 273);
• cost of materials and goods of the legal successor – 62.2 million rubles. (60 + 10 x x 60: 273);
• cost of finished products of the assignee – 93.3 million rubles. (90 + 10 x x 90: 273).

Cash is reflected in tax accounting at a nominal value. Therefore, part of the difference between the value of the redeemed shares and the value of the assets attributable to cash is a loss to the assignee. Taxable profit cannot be reduced by its amount (clause 1 of Article 277 of the Tax Code of the Russian Federation).

Thus, the assignee reflects the funds received in accounting at a nominal value of 3 million rubles. At the same time, a loss in the amount of 0.1 million rubles. (10 x 3: 273) does not reduce taxable income.

The total value of assets in the tax accounting of the legal successor will be 282.9 million rubles, which corresponds to the difference between the value of the assets of the legal predecessor and the costs of the legal successor for the acquisition of assets. At the same time, part of the difference attributable to cash is not taken into account as part of the value of the acquired property in the tax accounting of the legal successor, that is, it is lost.

The above analysis shows that if the value of the acquired shares of the acquired company is less than the net value of its assets, then it is more profitable for the organization to follow the first option. That is, reflect assets at the value indicated in the tax accounting of the predecessor.

In the opposite situation, it is more profitable for the company to act according to the second option. It will allow part of the costs of acquiring shares to be transferred to the cost of the acquired property, thereby creating the prerequisites for an additional reduction in the tax base for transactions related to the use and disposal of this property.

When selling goods and transferring property rights, you must pay VAT (Clause 1, Article 146 of the Tax Code of the Russian Federation). However, paragraph 3 of Article 39 lists cases when tax does not need to be paid. Thus, it is said here that the transfer of the organization’s property to its legal successor(s) during reorganization is not recognized as a sale (subclause 2, clause 3).

If the company uses the property in the operations specified in paragraph 3 of Article 39 of the Tax Code, then it must restore the amounts of VAT previously accepted for deduction. Moreover, for depreciable property, only that part of the tax that falls on the residual value of the property needs to be restored.

The question arises whether it is possible to deduct VAT that was restored upon transfer of this property to the legal successor. The fact is that if the assignee uses it for transactions subject to VAT, then there are no legal grounds for taking into account the corresponding amount of VAT in the cost of the transferred property, just as there are no obstacles to applying a deduction for this amount.

Let's turn to the Tax Code. From subparagraph 1 of paragraph 2 of Article 171 it follows that VAT can be offset if:

• the tax was presented to the taxpayer and paid by him;
• goods purchased for transactions recognized as VAT objects;
• the goods are not mentioned in paragraph 2 of Article 170 of the Tax Code.

In our situation, goods, including goods, were purchased and paid for by another organization, but the taxpayer is its legal successor (Clause 5 of Article 50 of the Tax Code of the Russian Federation). Succession in relation to transactions made by a reorganized legal entity and their tax consequences is regulated by the Civil Code. It says here that “when a legal entity is merged with another legal entity, the rights and obligations of the merged legal entity are transferred to the latter in accordance with the transfer deed” (Clause 2 of Article 58 of the Civil Code of the Russian Federation). This rule also applies to tax legal relations. Thus, the Presidium of the Supreme Arbitration Court used it when resolving tax disputes in a letter dated August 28, 1995 No. S1-7/OP-506 and in resolutions dated March 3, 1998 No. 1024/97 and March 14, 2000 No. 1463/ 99. These resolutions were adopted on disputes that arose before the Tax Code came into force. However, the Supreme Arbitration Court, referring to the Civil Code, came to the conclusion that its norms give rise to such succession. That is, the norms of the Civil Code of the Russian Federation on succession, taking into account the meaning given to them by arbitration practice, also regulate tax legal relations.

If the successor company uses the received property in transactions subject to VAT, then the second and third conditions of the deduction that were met before the reorganization will be fulfilled by the legal entity created as a result of the reorganization.

Thus, the successor receives the right to deduct VAT on property that previously belonged to the reorganized taxpayer. This right will arise for the company in the tax period in which it is created. After all, already when creating an organization, the conditions of Articles 171 and 172 of the Tax Code are met, which give the right to deduct VAT.

Despite the fact that there is no judicial practice on this issue, with qualified judicial representation, the above arguments make it possible to defend in court the right of the successor organization to deduct VAT.

UST and pension contributions

Chapter 24 of the Tax Code allows the use of the so-called regressive scale. In order to determine which rate to apply, you need to calculate the tax base accumulated since the beginning of the year on average per employee and divide the resulting result by the number of months of the current year. If the result is less than 2,500 rubles, the enterprise does not have the right to apply a regressive scale.

When merging and joining organizations, a number of issues arise.

So, if at least one of the organizations has not fulfilled the condition allowing the application of a regressive rate, does this mean that after the reorganization until the end of the year, the successor will not be able to apply reduced UST rates?

Another question: to determine the regressive rate, do we need to take into account payments made before the reorganization and the number of months that passed before the reorganization?

When addressing these issues, it is necessary to take into account the associated risks. In particular, the position of the Russian Ministry of Finance boils down to the fact that after reorganization, an organization recalculates the tax base from the moment the reorganization is completed, summing up only those payments that were made after its completion. Arbitration courts have a different point of view. The judges believe that to calculate the tax base, they also use data on the tax base for reorganized enterprises accumulated since the beginning of the calendar year.

Liquidation is the termination of a company’s activities without transferring rights and obligations to its legal successors. Liquidation is considered completed, and the company ceases to exist from the moment of its exclusion from the Unified State Register of Legal Entities.

The decision on liquidation is made by the general meeting of the founders (participants) of the company. The General Meeting appoints a liquidation commission, whose responsibilities are to prepare documents related to liquidation and conduct an inventory. Then, within three days, you must report the liquidation of the company to the tax office. If the company does not do this within the allotted time, it can be fined under Article 129.1 of the Tax Code. The fine is 1000 rubles.

When she receives the notification, she will have to conduct an on-site inspection of the company, not only for the period “not previously inspected” by it, but also for the period (within three years) when the inspection was already carried out.

During the liquidation process, the organization draws up interim and liquidation balance sheets.

An interim balance sheet is drawn up based on the latest balance sheet prepared before the decision to liquidate the company was approved.

After the sale of property and final settlement with creditors, the commission draws up a liquidation balance sheet. On its basis, the commission makes a decision on the distribution of the remaining property of the company between its owners.

Income tax liabilities

Liquidation of an organization also implies the distribution of property between organizations - its shareholders. The distributed property is considered income to the shareholders.

The income of shareholder organizations is determined “based on the market price of the property (property rights) they receive at the time of receipt of this property, minus the cost of shares actually paid (regardless of the form of payment) by the relevant shareholders... of this organization.” This is indicated in paragraph 2 of Article 277 of the Tax Code.

That is, all property distributed among shareholders is included in their income based on its market price, and not on its book value. In this case, the value of the property will be reduced by the price of shares of the liquidated organization paid by the participant.

Thus, if the price of shares of the liquidated organization paid by a participant is lower than the market value of its assets, then the shareholder must include the difference in his income.

In order to accept the received property for accounting, the shareholder organization must determine its value. This cost (through depreciation) will need to be written off as expenses when calculating income tax.

How to determine this value is not defined in Chapter 25 of the Tax Code. Therefore, two options are possible.

Option 1. The cost of fixed assets and materials is made up of the actual costs associated with their acquisition (clause 1, article 257 and clause 2, article 254 of the Tax Code of the Russian Federation). Costs should be understood as the cost of the property that the enterprise loses in connection with the receipt of materials and fixed assets. Essentially, these articles say that when determining the value of the property that a participant will receive after liquidation, one should proceed from the amount of costs for acquiring shares of the liquidated enterprise. And then distribute these costs, for example, in proportion to the market value of the property in the total market value of the property.

Option 2. Article 277 of the Tax Code states that income from receiving property during liquidation must be determined based on market value. Consequently, this property must be accepted for tax accounting also based on market value.

Since all irremovable doubts regarding the procedure for applying tax norms must be resolved in favor of the taxpayer (Clause 7, Article 3 of the Tax Code of the Russian Federation), the company can choose the option in which it will pay a smaller amount of tax.

However, tax professionals may disagree with the company's choice. The lack of judicial practice on this issue does not allow us to accurately predict the resolution of a possible dispute.

If a company does not want to take risks, then it needs to use the option in which the value of the property accepted for tax accounting will be less.

When assessing the tax consequences of the liquidation of a company, one must keep in mind that its tax liabilities can be increased both due to the identification of errors in the calculation of previously calculated taxes, and as a result of lawful actions of the taxpayer. In particular, during liquidation, it is necessary to include in income previously created reserves for doubtful debts, for warranty repairs, for repairs of depreciable fixed assets, for upcoming vacations and payment of remuneration based on the results of work for the year.

VAT obligations

Sales of goods and transfer of property rights are recognized as subject to VAT. This is indicated in paragraph 1 of Article 146 of the Tax Code. However, the transfer of property within the limits of the initial contribution to the founder (shareholder) when distributing the property of a liquidated company is not recognized as a sale (subclause 5, clause 3, article 39 of the Tax Code of the Russian Federation). The sale of securities and shares in the authorized capital on the territory of Russia is not subject to taxation (subclause 12, clause 2, article 149 of the Tax Code of the Russian Federation).

However, the Tax Code does not say how to determine the value of property transferred to a participant upon liquidation of a company. In this case, one must be guided by the principle of universality of the will of the legislator, formulated in the resolution of the Plenum of the Supreme Arbitration Court of Russia dated February 28, 2001 No. 5, i.e. a rule that essentially allows the application of rules governing the calculation and payment of tax in similar situations. In relation to the situation under consideration, this means the possibility of applying paragraph 2 of Article 277 of the Tax Code based on the market value of the property. If it exceeds the value of the participant’s contribution, then VAT must be paid on the excess amount.

But if shares belonging to a liquidated organization are transferred to the participant, then there is no need to pay VAT on the excess of their value over the participant’s initial contribution (subclause 12, clause 2, article 149 of the Tax Code of the Russian Federation). Funds transferred to the participant are also not subject to VAT. It does not matter whether this amount exceeds the contribution to the authorized capital or not (subclause 1, clause 1, article 39 of the Tax Code of the Russian Federation).

It is worth paying attention to one more point. Thus, the transfer of property to a participant during the liquidation of a company is not a sale, that is, there is no need to pay VAT on this transaction. This means that the shareholder, the recipient of the property, must restore the value added tax previously accepted for deduction (clause 3 of Article 170 of the Tax Code of the Russian Federation).

In this case, it is necessary to restore only that part of the VAT that relates to the “under-depreciated” cost of the property.

Holding without consequences

Another way of mergers and acquisitions is to include an organization in a group of holding companies. This option does not entail any tax consequences. The problem can only arise if such enterprises enter into transactions within the group. Tax inspectors will be able to control the transaction price. And if it differs from market prices by more than 20 percent, then controllers will try to recalculate taxes based on market prices.

One of the most common methods of development of large companies is mergers and acquisitions. However, such processes entail certain tax consequences for the successor. Most of them can be optimized.

There is no need to restore VAT...

The property of a liquidated company, subject to VAT, can be sold to the shareholder at the market price. Then the proceeds will be distributed among the participants, then VAT will not have to be restored. In this case, the shareholder who purchased property from the liquidated organization will be able to deduct VAT. To do this, one condition must be met: the new owner of the property is obliged to use it in transactions subject to this tax (subclause 1, clause 2, article 171 of the Tax Code of the Russian Federation).

Comparative analysis of merger (acquisition) schemes of companies

Risks	Reorganization	Liquidation	Inclusion in the holding
The risk of identifying arrears after the completion of the acquisition (merger) process and the application of penalties	Exists	Does not exist	Exists
Risk of application of sanctions for violations committed before the completion of the acquisition (merger) process	Does not exist	Does not exist	Exists
The risk caused by price controls on transactions carried out between previously independent enterprises	Does not exist	Does not exist	Exists
Inclusion in income of reserves created before the merger (accession, liquidation, acquisition). Previously, these reserves were expensed		Reserves need to be restored	There is no need to restore reserves

The basic principles of development of large companies in the 80s - economy, flexibility, agility and compactness - in the second half of the 90s were replaced by a focus on expansion and growth. Large companies strive to find additional sources of expansion of their activities, among which one of the most popular is mergers and acquisitions of companies. Merger is one of the most common development methods, which even very successful companies are currently resorting to. This process in market conditions becomes a common, almost everyday phenomenon.

Few issues in economic theory and practice generate more heated debate than those of mergers and acquisitions. There are absolutely opposing points of view on the feasibility and effectiveness of such restructuring of companies: some view mergers as an important source of increasing the performance of companies; others see them only as a reflection of the bossy instincts of managers whose desires reduce, rather than enhance, company performance.

But no matter what opinions exist on this issue, mergers and acquisitions of companies are an objective reality that needs to be researched, analyzed and appropriate conclusions made so as not to repeat mistakes that have already been made many times by others.

The global experience of corporate management, and, above all, the American one, in the field of company restructuring will certainly be very useful for newly created and existing Russian corporations and quite applicable in practical activities.

According to experts, the Russian economy is not in danger of a boom in corporate mergers similar in scale to its Western or American counterparts in the near future. Although in 1998 many loud statements were made by Russian companies about their intention to merge, it is predicted that the most common will not be their merger, but their absorption, most likely by foreign companies.

In these conditions, it is very important to be able to navigate the types of mergers of companies, identify the main goals that the parties pursue when concluding a merger or acquisition of companies, and evaluate the effectiveness of such a transaction and its possible consequences. If a company is threatened with takeover by another company, then it is necessary to prepare very well for this process: either take anti-takeover measures in a timely manner, which have been quite actively tested in world practice, or through your actions achieve favorable takeover conditions, bearing in mind that in most cases, Paradoxically, as a result of such a transaction, it is not the acquiring company that wins, but the acquired company. You just need to try to increase this winning!

Before moving on to issues that are undoubtedly of practical importance, we will define the features of terminology, consider the classification of the main types of mergers and acquisitions of companies and briefly dwell on the historical aspects of these processes, paying maximum attention to the modern wave of mergers of companies.

There are certain differences in the interpretation of the concept of “merger of companies” in foreign theory and practice and in Russian legislation.

In accordance with generally accepted approaches abroad, merger refers to any combination of economic entities, as a result of which a single economic unit is formed from two or more pre-existing structures.

In accordance with Russian legislation, under merger refers to the reorganization of legal entities, in which the rights and obligations of each of them are transferred to the newly emerged legal entity in accordance with the transfer act. Consequently, a necessary condition for the execution of a merger transaction is the emergence of a new legal entity, while the new company is formed on the basis of two or more previous companies that have completely lost their independent existence. The new company takes control and management of all assets and liabilities to clients of the companies - its constituent parts, after which the latter are dissolved. For example, if company A merges with companies B and C, then as a result a new company D may appear on the market (D = A + B + C), and all others are liquidated.

In foreign practice, a merger can be understood as an association of several companies, as a result of which one of them survives, and the rest lose their independence and cease to exist. In Russian legislation, this case falls under the term “ accession ”, implying that the activities of one or more legal entities are terminated with the transfer of all their rights and obligations to the company to which they join (A = A + B + C).

Abroad, the concepts of “merger” and “acquisition” do not have such a clear distinction as in our legislation. Even the English analogues of the concepts in question have ambiguous meaning:

Merger – absorption (by purchasing securities or fixed capital), merger (of companies);

Acquisition – acquisition (for example, shares), takeover (of a company);

Merger and acquisitions – mergers and acquisitions of companies.

The takeover of a company can be defined as one company taking control of another, managing it with the acquisition of absolute or partial ownership of it. The takeover of a company is often carried out by purchasing all shares of an enterprise on the stock exchange, meaning the acquisition of this enterprise.

From a legal point of view, there are quite a large number of ways of unification.

Classification of the main types of mergers and acquisitions of companies

In modern corporate management, many different types of mergers and acquisitions of companies can be distinguished. We believe that the most important classification features of these processes include (see Fig. 1):

Merger is the union of two equal companies. Acquisition is the buyout of one company by another. The goal of mergers and acquisitions is synergy, i.e. benefits from joint activities.

Mergers and acquisitions(eng. mergers and acquisitions, M&A) of companies - sets of actions aimed at increasing the total value of assets through synergies, i.e. benefits of joint activities. To put it simply, then mergers and acquisitions describe the transformation of two companies into one. A merger is the emergence of a new company as a result of the combination of two equal companies, and an acquisition is the buyout of the absorbed company by the absorbing company, as a result of which the absorbed company ceases to exist, and the absorber increases. A striking example of a takeover in Ukraine is UMC → MTS: the larger Russian company MTS bought out most of another company (UMC) and rebranded.

There are different theories that acquisitions and mergers are aimed at eliminating competitors, etc., but they are far from the truth. home The goal of any merger or acquisition is for the result to be greater than the sum of its parts(i.e. 1+1=3). In other words, companies that participate in the process hope to save costs and increase efficiency. Often, the productivity of a new/renovated company increases precisely by reducing costs.

Difference between acquisitions and mergers

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Terms " merger" (English merger) and " absorption"(English acquisition) are often confused or used as synonyms. Despite the fact that their meanings are very close and they always go in pairs, in fact mergers and acquisitions describe different concepts. From the terms themselves it is clear what the difference is; Let's take a closer look.

Acquisition of one company by another company

As in the example with the Russian telecom operator MTS, when one company buys out and “eats” another, often smaller company, this is called company takeover. (The image of smaller companies being swallowed gave rise to the term “business shark.”) Once a smaller company is “eaten,” it naturally ceases to exist in the legal sense.

In this scenario, all assets of the acquired or "eaten" company are transferred to the ownership of the acquiring company. As a result of the absorption, more a big company becomes even bigger.

For example, Google is a very aggressive consuming shark that has already swallowed up more than 100 companies, including YouTube, Begun (Russian company), FeedBurner, AOL and many other companies around the world.

There are both aggressive and friendly takeovers.

• aggressive takeover occurs when a smaller company does not want to be “eaten up”, but the acquiring company simply buys back a huge number of shares, and leaves no choice
• friendly takeovers occur when both parties agree and are in a good mood for takeover.

It often happens that Acquiring companies do not want to advertise the actual takeover, and pretend that an equal merger has occurred. An example of such a takeover would be DaimlerChrysler: Daimler-Benz bought Chrysler, but presented the deal as an equal merger. (Due to failures in working together, Chrysler was later sold back to the Americans.)

Merger of companies

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Merger of companies is an association of equal companies that gives rise to a new company. Usually, the companies in the merger are approximately equal by number of assets.

It is important to understand that actual merger of companies is a rare occurrence. As described above, most often what is called a merger is actually an acquisition behind the guise of a merger, as in the example with DaimlerChrysler.

Synergy is the goal of acquisitions and mergers

The main point of mergers and acquisitions is synergy. Synergy is the advantage of joint activities. After all, this is obvious: when two companies become one, you need one accounting department, not two, one advertising department, not two, etc. When two companies become one, the benefits can be as follows:

• staff reduction(eng. downsizing, rightsizing): as mentioned above, the number of employees from such support departments as finance, accounting, marketing, etc. is reduced. Also one of the manuals becomes unnecessary.
• economies of scale: due to a quantitative increase in purchases, transportation, etc., the new company saves on wholesale terms. You also need to remember about everything that is needed, one thing per company: for example, server protection systems, a program for accounting for goods and personnel, etc.
• increase in market share: When companies merge, the new company has a larger market share and brand awareness also increases. The advantage is that it is easier to win new market shares with a large share than with a small one. The conditions of creditors are also improving, because There is more trust in a big company.

But it is important to understand that not every merger or acquisition is accompanied by synergies. It often happens that conflicts occur in a new company, as happened with DaimlerChrysler, where the internal charters of the companies fundamentally did not coincide. Unfortunately, unsuccessful mergers and acquisitions are not uncommon.

Types of company mergers

There are many different ways of company mergers. These types of mergers are divided into 2 main groups: by the relationship between the companies and by the type of financing.

Types of mergers according to relations between companies

Basic types of mergers by type of relationship between the merging companies are as follows:

• horizontal merge: a merger of two competing companies that do the same thing and are in the same niche
• vertical merger: association of supplier and consumer; for example, a furniture manufacturer and a manufacturer of raw materials (i.e. boards, plywood, etc.)
• merger to expand the sales market: an association of companies that are in the same industry, but sell goods in different markets
• merger of companies related by sales line: an association of companies selling related products on one market