How to create a list of affiliates. List of affiliates How to write a list of affiliates correctly

Certificate of affiliation

Templates and examples of filling out documents arrow template for a letter about the absence or presence of affiliation with members of the NP SRO. In addition, accounting also uses the concept of affiliated entities - accounting provisions information on affiliated entities PBU 112000 (approved by order of the Ministry of Finance of the Russian Federation dated 5n). You can endlessly sing your own praises, but those around you will still evaluate you not by your words, but by your deeds.

Affiliates can be not only people, but also companies. Companies develop it independently or adjust the model proposed by the central bank for joint-stock companies. There was only one sample letter about the lack of affiliation of organizations. Because in the norms of the law it is too vague, there are many such constituent parts.

You can endlessly sing your own praises, but those around you will still evaluate you not by your words, but by your deeds. Letter of no conflict of interest standard download letter about.

Letter of affiliation

standard letter of affiliation - template letter about the absence or presence of affiliation. Zavalny (Deputy Chairman of the Energy Committee of the State Duma of the Federal Assembly of the Russian Federation) spoke out against the new concept of affiliation.

There was only one letter about the lack of affiliation of standard organizations. But, nevertheless, it seems to us that the norm is very vague, which only allows the court to establish real affiliation. The antimonopoly authority compiles a list of persons included in one group in the form established by order of the Federal Service of the Russian Federation dated 20.

Sample of filling out the list of affiliated persons of the JSC 2018

If you develop your own list form, then it makes sense to include lines to reflect similar information. This letter confirms that Vasya Pupkin LLC has no business with the PepsiCo company, does not represent its interests, and is not its branch. municipal program for the protection of investors for 1998 - 1999 (approved by a decree of the government of the Russian Federation dated 17. According to the law, affiliated persons of the organization and people capable of measures to organize the securities market during the privatization process. Let us provide a standard for filling out the list of affiliated entities.

List of affiliated persons of LLC sample filling 2018

If the legislation associates certain obligations with the presence of affiliation, then it is determined in accordance with the law (Article Portal for individuals and legal entities.
Here is a selection of topics with answers to your question; you need a standard certificate of absence of affiliated persons; you need to provide a certificate of absence of registered persons in the house.

Tax Code of the Russian Federation. Interdependence arises when persons (legal or natural) have the opportunity, independently or through their dependents, to influence:

• terms of concluded transactions;
• the results of concluded transactions or the results of ongoing activities.

Influence can be exercised through:

• participation in the authorized capital;
• an agreement concluded between persons;
• other possibilities.

• a legal entity and legal entities and individuals with a share of participation in its authorized capital exceeding 25%;
• 2 legal entities with more than 25% participation share of the same person in each of them;
• legal entity and legal entities or individuals who have the opportunity to appoint its sole executive body or at least 50% of the composition of the collegial body (incl.

How to prove the affiliation of legal entities

Important: For such transactions, you will have to prove pricing and use pricing methods provided for by tax legislation.

• Fourthly, legal disputes and penalties can be avoided. For example, tax authorities can check the consistency of prices for transactions between related parties at current market prices. If the audit reveals an understatement of prices, then additional taxes will be charged as if the transaction price was a market price, similar to prices for transactions between companies that are not interdependent.

Example In the Ruling of the Supreme Court of the Russian Federation dated July 22, 2016 No. 305-KG16-4920 in case No. A40-63374/2015, the court considered the case of additional tax assessment on a transaction between related parties and came to the conclusion of non-market pricing.

How to check a counterparty for affiliation?

The company, on the basis of an agreement dated 04/05/2011 N 05/04/2011, the taxpayer transferred ownership of the building in favor of the limited liability company “Dubovets” at a price of 9,440,000 rubles. Similar agreements were also concluded in relation to other real estate properties, which were sold to the limited liability company of the same name "Business Center Minaevsky" at a price of 950,000 rubles, to the limited liability company "Stroitel" at a price of 710,000 rubles. The tax inspectorate conducted an examination and found that on the date of the transaction the value of the property was 273,656,000 rubles, instead of the 9,440,000 rubles applied by the parties to the transaction.
How to check a counterparty for affiliation? Checking a counterparty for affiliation is not an easy task, because the company can hide its connections.

Bringing affiliated (controlled) persons to tax liability.

Affiliated persons of a legal entity are: a member of its Board of Directors (supervisory board) or other collegial management body, a member of its collegial executive body, as well as a person exercising the powers of its sole executive body; owners of this legal entity; persons who have the right to dispose of more than 20 percent of the total number of votes attributable to shares (contributions, shares) constituting the authorized (share) capital of this legal entity; etc.

Certificate of affiliation

The list of persons recognized as affiliates is quite wide. It is expanded by the concept of “group of persons”.

Affiliation of legal entities, the concept of legal regulation.

Therefore, to check affiliation, you need to verify not only the direct, but also the indirect participation of one organization in another. Why do they check affiliation? Affiliations and interdependencies need to be tested for many reasons.

• Firstly, checking affiliation allows you to establish relationships between participants in large projects and transactions that require approval, which helps reduce the risks of increasing costs or “diversion” of funds to affiliated companies.
• Secondly, knowing about the affiliation of persons, it is possible to identify various fraudulent schemes and signs of dishonesty in transactions.
• Third, interdependence is a sign of unjustified tax benefit.

Affiliation of persons 2018

Attention

Possible participation shows precisely indirect participation, that is, indirect affiliation. In addition, you can check affiliation by knowing the last name, first name and patronymic of the general director or member of the company. To do this, it is convenient to use search by person in Casebook.

The system will show in which organizations this person is the founder and general director. Thus, it is quite easy to determine affiliated companies by name or specific person. You can also check top managers or board members.

Such a check may be necessary when making an important decision on the acquisition of assets, the purchase of a company and conducting due diligence of a transaction. For additional security, the service can examine previously operating companies in which a certain person was a director or founder.

What are these - affiliates or interdependent entities?

• Special procedure for transactions carried out with affiliates.
• A procedure has been established that allows for the acquisition of 20% or more of the company's shares.
• A procedure has been established on the basis of which information about affiliated persons is disclosed.

In addition to the above legislative provisions, the concept of affiliates is also used in accounting regulations. According to them, information about transactions between the company and affiliates should be included in the financial statements in cases where the latter controls or can significantly influence the activities of a particular legal entity.
faces.

Affiliation

And the company employees themselves do not always know that the CEO or founder simultaneously founded another company and makes transactions. Many companies use an assurance mechanism where the contract includes a clause stating that the company has no affiliates, but such a clause does not guarantee 100% that the counterparty will provide accurate information. The most common verification option is to check on the Internet based on indirect evidence, as well as check using the Unified State Register of Legal Entities certificate posted on the website of the Federal Tax Service, which can be found by the name or TIN of the company. But the disadvantage of this method of checking counterparties is that it is not easy to find out all affiliated companies from open sources, because such sources, as a rule, are not published. It’s easier to check the counterparty through Casebook. The service automatically determines the risk factors of a particular company.

Affiliation and interdependence from a tax point of view

• for persons (individuals or legal entities) already included in a certain group - other persons (individuals or legal entities), relations with whom meet the criteria for joining the group;
• one of the persons (individuals or legal entities) forming the group has more than a 50% share in the authorized capital of the organization.

The concept of affiliation is used in a variety of legal fields, for example, such as legislation:

• on taxes (clause 2 of article 269 of the Tax Code of the Russian Federation);
• bankruptcy;
• issue of securities;
• JSC and LLC;
• labor (in terms of dismissal of heads of federal state unitary enterprises);
• communications.

Read about the grounds for dismissal of the head of a legal entity in the Labor Code of the Russian Federation in the material “Art. 81 Labor Code of the Russian Federation: questions and answers.”
But at the same time, this list is not closed: the draft Civil Code makes it possible to recognize the existence of affiliation between persons, despite the absence of the grounds specified in paragraph 2 of Article 53.2 of the Civil Code of the Russian Federation. To do this, it is necessary to prove that these persons received the actual opportunity to influence the legal entity as a result of their concerted actions (Clause 4 of Article 53.2 of the Civil Code of the Russian Federation as amended by the draft). This novelty of the Draft Civil Code of the Russian Federation is important, because establishes a unified regulation of the legal connection of persons: affiliation and a controlling person.

It is also possible for the court to recognize affiliation between persons, despite the absence of the listed grounds, if it is proven that these persons have received the actual opportunity to influence the legal entity as a result of their concerted actions.

Where can I download a sample letter about the absence of affiliation status?

Appendix to the Procedure approved by order of the FAS Russia dated June 26, 2012 N 409

LIST OF AFFILIATES ____________________________________________ (the full corporate name of the business entity is indicated) —T-¬ —T-¬ —T-T-T-¬ on ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ L-+— L-+— L-+-+- +— (indicate the date on which the list of affiliated persons was compiled) Location of the issuer: ________________________________________________ (indicate the location (address of the permanent executive body of the business entity (another person authorized to act on its behalf without a power of attorney)) If the information, contained in this list of affiliated entities is subject to disclosure in accordance with the legislation of the Russian Federation on securities, the address of the Internet page used by the issuer for disclosing information is indicated: ________________ ————————————————— ———————— ¦ Name of the position of the authorized person ¦ ¦ person of the economic entity ____________ _____________________ ¦ ¦ signature I.O. Last name ¦ ¦ ¦ ¦ Date "__" ____________ 20__ M.P. ¦ ¦ ¦ ————————————————————————— Contents of the list of affiliated persons of an economic entity ———————— ¦ TIN ¦ ¦ +——— —+———-+ ¦ OGRN ¦ ¦ ————+———— —T-¬ —T-¬ —T-T-T-¬ I. Composition of affiliated persons on ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ L -+— L-+— L-+-+-+— ——————————————————————————- ¦ N ¦ Full ¦ Place ¦ Base ¦Date of us- ¦Share ¦Share at- ¦ ¦p/p¦ corporate ¦ location ¦(foundations),¦duplicity ¦participation ¦appropriate¦ ¦ name ¦legal¦by virtue of co- ¦foundation ¦affiliation- ¦affiliation¦ ¦ ¦ (name of ¦ person or ¦ another person ¦ (grounds)¦ for ¦ ¦ ¦ for ¦ place ¦ is recognized ¦ ¦ to an ordinary ¦ ¦ ¦ non-commercial ¦ residence ¦ affiliated ¦ ¦ person in ¦ ¦ ¦ organization) ¦ physical ¦ ¦ charter ¦ shares ¦ ¦ ¦ or surname, ¦ person ¦ ¦ ¦ nom ¦ economic ¦ ¦ ¦ name, patronymic ¦ (indicated ¦ ¦ ¦ capital ¦ ¦ ¦ affiliated ¦ only ¦ ¦ ¦economic entity, ¦ ¦ ¦ person ¦ with the consent ¦ ¦ ¦ of the ¦% ¦ ¦ ¦ ¦physical ¦ ¦ ¦subject- ¦ ¦ ¦ ¦ ¦ person) ¦ ¦ ¦ta, % ¦ ¦ +— +—————+————+————+————+———+———-+ ¦ 1 ¦ 2 ¦ 3 ¦ 4 ¦ 5 ¦ 6 ¦ 7 ¦ +—+— ————+————+————+————+———+———-+ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ —-+—————+———— +————+————+———+———— II. Changes that occurred in the list of affiliates for the period —T-¬ —T-¬ —T-T-T-¬ —T-¬ —T-¬ —T-T-T-¬ from ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ to ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ L-+— L-+— L-+-+-+— L-+— L-+— L-+-+-+— —————————— ——————————————— ¦ N ¦ Contents of the change ¦ Date ¦ Date of entry ¦ ¦ p/p ¦ ¦ occurrence ¦ changes to the list ¦ ¦ ¦ ¦ changes ¦ affiliates ¦ +—-+ ———————————-+————+———————+ ¦ ¦ ¦ ¦ ¦ ——+———————————-+——— —+——————— Contents of information about the affiliate before the change: ————————————————————————— ¦ 2 ¦ 3 ¦ 4 ¦ 5 ¦ 6 ¦ 7 ¦ —————-+————+————+————+———+———— Contents of information about the affiliate after the change: ——————— —————————————————— ¦ 2 ¦ 3 ¦ 4 ¦ 5 ¦ 6 ¦ 7 ¦ —————-+————+————+—— ——+———+————

According to Art. 4 of the RSFSR Law “On Competition...” dated March 22, 1991 No. 948-1, affiliated persons are persons who have the ability to influence the functioning of a particular organization. The need to create a list of such persons is determined by the legislator’s requirements for the procedure for conducting interested party transactions. The presence of such information makes it possible to increase the transparency of transactions and strengthen control over the owners of the company and related persons. You can read more about the concept of affiliates in our other article.

When compiling this list, JSCs are required to use the form given in Appendix No. 4 to the regulation of the Central Bank of the Russian Federation “On Disclosure...” dated December 30, 2014 No. 454-P.

Keeping lists of affiliated persons of the company, in accordance with clause 150 of the order of the Ministry of Culture of the Russian Federation “On approval of the list ...” dated August 25, 2010 No. 558, is required constantly (i.e., throughout the entire functioning of the organization). After the liquidation of the company, the lists must be sent to the archival institution.

Drawing up lists for LLCs

The LLC's obligation to draw up such documents follows from the provisions of sub-clause. 8 paragraph 2 art. 50 of the Federal Law “On Limited Liability Companies” dated 02/08/1998 No. 14, according to which the company is obliged to transfer this information to its participant upon his first request.

When determining the list of information included in the document, you should be guided by Art. 4 of Law No. 948-1, as well as some provisions of Federal Law No. 14. According to the content of these norms, the list may include:

1. Founders of a company who own 20 percent or more of its authorized capital.
2. Sole founder.
3. Persons belonging to the same group of persons as the organization. The group of persons of the company includes those specified in Art. 9 Federal Law “On Protection of Competition” dated July 26, 2006 No. 135 persons (for example, a legal entity and an individual or company performing the functions of the sole executive body of this organization).
4. Subsidiaries and dependent companies, on behalf of which the LLC has the right to make decisions (clause 2 of article 6 of Federal Law No. 14).
5. Sole executive body (director or president) or members of a collegial executive body (board, directorate).

Information included in the list for LLC

Provisions of paragraph 1 of Art. 45 Federal Law No. 14 indicate that the list is formed based on the results of collecting relevant information from persons having the status of:

• member of the board of directors of the company;
• sole management body;
• member of the collegial management body;
• body exercising control over the company's activities;
• a person whose competence includes the right to give instructions that are binding on the company.

According to paragraph 2 of Art. 45 Federal Law No. 14, the listed persons must provide the society with information:

• about organizations under their direct or indirect control;
• enterprises in which they hold managerial positions;
• relatives (spouses, parents/adoptive parents, children, brothers and sisters) in whose interests transactions can be concluded on behalf of the company, as well as organizations controlled by them.

How to make a list

When preparing the document, it is worth remembering that, despite the lack of precise legislative instructions on the procedure and rules for drafting, it is worth including all information that allows third parties to obtain a complete description of the LLC’s affiliates.

In particular, the following information should be placed on the title page:

• name of company;
• date of document preparation;
• address of the location of the organization, corresponding to the information contained in the Unified State Register of Legal Entities;
• the address of the Internet portal used by the organization to disclose the prepared list;
• the name of the position of the person who compiled the document, his full name and signature.

In the main part of the document it is worth indicating:

• date of compilation;
• Full name of an individual or name of an enterprise that is recognized as an affiliate;
• his place of residence/location;
• factors on the basis of which the person was assigned the specified status and the date of their occurrence;
• share of participation of a citizen/enterprise in the authorized capital of the company.

For a more clear idea of ​​the contents of the list, you can familiarize yourself with the example below.

List of LLC affiliates - sample filling 2018 - 2019

List of affiliates

LLC "Lugovoe"

as of 01/10/2019

General Director: (signature) /Egor Vyacheslavovich Spiridonov/

10.01.2019

1. Composition of affiliates as of 01/10/2019

No.	FULL NAME.	Location	Grounds for recognizing a person as an affiliate	Date of occurrence of grounds	Share of participation in the authorized capital of the company
	Spiridonov Egor Vyacheslavovich	Astrakhan, st. Morskaya, 5, apt. 33	CEO	01.02.2017 30.07.2014
	Yakunin Anton Dmitrievich		The right to dispose of more than 20% of the authorized capital	30.07.2014

1. Changes that occurred in the list for the period 01/10/2018-01/10/2019

No changes.

Don't know your rights?

Disclosure of the list of affiliated persons is the responsibility of each company. And here it is important not only to know how to compile a list of affiliates of a limited liability company, or JSC, but also to figure out who to include in the list. We will examine these questions in the article.

Who to include

The lists of affiliated persons of the company must include all citizens and organizations that can somehow influence the company’s activities. These will be:

• citizens and organizations that exercise control through ownership or the right to dispose of more than 20% of the votes of company participants;
• sole manager;
• beneficial owners authorized to give certain instructions on the conduct of the company’s activities;
• organizations in which the composition of the board of directors (board of directors) coincides more than 50% with the management of the reporting company;
• citizens and organizations that are part of a common group with a person or company that is part of the LLC group of persons. Moreover, such a chain can be endless and it ends with the one who does not have his own group. At the same time, you can check who in this case will belong to the general group using the signs listed in Art. 9 of the Law on Protection of Competition.

Please note that the society collects information independently. This is done by asking participants directly to provide the required data. You can independently check and supplement the information using the Federal Tax Service, which provides extracts from the Unified State Register of Legal Entities.

What to do with the collected data

Let's take a quick look at what you can do with the data provided:

1. Keep. According to Art. 50 of the Law on the activities of LLCs, it is necessary to keep lists of citizens and organizations that can influence management decisions. Otherwise, the company may be held liable on the basis of clause 2 of Art. 13.25 of the Code of Administrative Offenses of the Russian Federation and be fined in the amount of 200,000 to 300,000 rubles.
2. Include available information in the explanatory note to the financial statements.
3. Provide information on the requirements and requests of participants.
4. Publish data in open sources during the public offering of bonds or other securities.

How to compose correctly

Please note that the sample for filling out the list of affiliates of an OJSC or LLC that places shares will differ in appearance from the list compiled by newly created LLCs or those who do not publicly issue equity securities. The fact is that a separate form has not been approved for the latter. Companies develop it independently or adjust the model proposed by the Central Bank for JSC. The simplest option for keeping records is to create a table from which it will be clear what date the information was, on what basis subjects were included in the list, and who approved the document.

If there are changes in the list of affiliates, it is necessary to revise the list or clarify it. Moreover, it is recommended that the organization develop an internal document (regulations, for example) on the recording and storage of such information. It must list the employees responsible for checking and updating data, as well as indicate the frequency of such audits.

The list of LLC affiliates (filling sample 2019) looks like this.

The concept of “affiliates” is most often found in corporate reports and in chronicles of economic crimes. Business optimization - and withdrawal of assets, company development - and fictitious transactions... Who are affiliates? How to identify them in other companies and how to keep records in your own?

Affiliated persons are all persons who, due to their status, can influence management decisions in an organization or an individual entrepreneur. Influence means control over the development strategy of an enterprise, decision-making on mergers and acquisitions, major transactions (purchases or sales), management structure, etc.

The term “affiliation” comes from the English “affiliate” - “branch”, “branch”, “companion”, “joined”.

Legislation in Russia does not describe the affiliation of legal entities as clearly as in Western countries - in our country it is a broader concept. The Tax Code of the Russian Federation (Articles 20; 105.1 and 105.2) has the concept of interdependent persons. The RSFSR Law of March 22, 1991, No. 948-1 (Article 4), which is still in force, briefly lists affiliated persons and indicates the main signs of affiliation.

Signs of an affiliate

• Has the right to vote at meetings of shareholders of an OJSC or members of an LLC.
• Owns a block of shares that allows you to influence the decisions of the meeting of shareholders, or shares in the authorized capital. For example, PJSC Gazprom owns 100% of the shares of Gazprom Transgaz Ufa LLC and, in accordance with this, exercises direct control, being an affiliate for its Ufa subsidiary.
• Has family ties with managers/members of the board of directors/owners of the organization. David Traktovenko owns the St. Petersburg Banking House holding, and his son Vyacheslav is the chairman of the board of directors of the Mix cafeteria chain and the Fitness Formula chain of fitness clubs. The first in relation to the second is an affiliate.
• Has the right to cancel or suspend decisions of the company’s executive bodies (if the affiliated person is a member of the board).

Who can be an affiliate

Legal entities can be affiliated with both organizations and individuals. Their list includes:

• head of the executive body of a legal entity. For example, Vagit Alekperov, who formally owns 2.5% of Lukoil shares, is a person exercising the powers of the sole executive body of this company, and therefore affiliated;
• member of the board of directors, supervisory board or other collegial body of a legal entity. Gregor Mowat or Timothy Demchenko do not have shares in Magnit, but in 2018 they are members of its board of directors, and, accordingly, are recognized as affiliates;
• owners of more than 20% of shares or shares in the authorized capital. The Rosneftegaz company owns 50% of the shares of Rosneft PJSC and on this basis is an affiliate;
• a dependent organization in which this legal entity owns more than 20% (for example, a subsidiary);
• firms belonging to the same group of persons (more on this in the next chapter) as this company.

Individuals may be affiliated:

• in organizations in which these individuals control more than 20% of shares in the authorized capital;
• from other companies belonging to the same group as the individual.

What is an affiliate group

This term is taken from Law No. 135-FZ “On the Protection of Competition”. It can mean several options. So, the group of affiliates is:

1 Several enterprises belonging to one financial and industrial group. For example, the Kachkanarsky GOK, part of the EVRAZ company, belongs to a group of affiliates with Evrazruda, Yuzhkuzbassugol, Nizhny Tagil Iron and Steel Works and a dozen other legal entities.

2 Direct relatives (spouses, parents/adoptive parents, children, brothers and sisters) and legal entities belonging to them. For example, the Safmar holding is owned by Sait-Salam and Said Gutserievs. This is the brother and son of the owner of the RussNeft company, Mikhail Gutseriev. All their legal entities are included in the group of affiliates.

3 Legal or natural person and organizations in which the mentioned persons have more than 50% of shares or shares in the authorized capital. Affiliated companies can be either LLC or OJSC; this is not distinguished by law.

4 Individuals and companies in which this person is the sole manager (for example, general director).

5 Individual or legal person and organizations to which these persons have the right (based on constituent documents) to give binding guidelines.

6 Several organizations whose board of directors includes more than 50% of the same people.

7 Individuals or legal entities and organizations whose general directors and/or more than 50% of the members of the board of directors are elected at the proposal of the mentioned persons. On this basis, for example, the Russian Helicopters company, the United Engine Corporation, the Moscow and Kazan helicopter plants and more than 10 legal entities belong to the same group.

The rights of affiliated persons are not established in any special way by law. They fully comply with the rights of other persons participating in the Russian economy. Dependent and controlling organizations and individuals have the right to conduct joint economic activities, coordinate their development strategies, but not go beyond the framework of antimonopoly norms and the requirements of anti-corruption legislation.

But affiliates have more responsibilities than other market participants. They are not described in a specific legislative act, but they stem from the general meaning of the activities of a group of interconnected enterprises. These responsibilities are:

1 Inform counterparties about your affiliation with other persons in the event of interested party transactions (in this case, when one of the parties to the transaction is an affiliated or dependent person). Responsibility for violation of this requirement arises only if the counterparty has proven that damage was caused to it by failure to provide information. The deal may be cancelled.

2 Inform about the emergence of affiliation in the event of acquiring more than 20% of shares or shares in the authorized capital of another person. This paragraph applies only to joint stock companies that are required to publish reports in accordance with the law. The affiliated company publishes information within 10 days in the official publisher of data on state registration of legal entities. The main difficulty is the control of subsidiaries and affiliates with regard to the sale and purchase of small blocks of shares by them (if this is permitted by the company’s Charter). If your subsidiary A acquires, say, a 10% stake in company B, and you already have a 10% stake in the same company B, then you, without knowing it, end up on the list of affiliates of the latter.

3 Maintain a list of affiliates. This obligation is more relevant for joint stock companies than for LLCs, but both should have a list. If a company places its shares on the stock exchange, it has an obligation to provide a list of affiliates to the Central Bank of the Russian Federation (as part of other reporting) and to the organizer of exchange trading. Also, these lists must be posted on the official websites of companies and be publicly available for at least 3 years from the date of posting and the same amount from the time of each update.

Who needs information about affiliates and why?

Information about the affiliation of companies and individuals must be available (see paragraph 3 of the next chapter) so that participants in transactions can check counterparties. The list of affiliated companies is necessary in order to control and report to government agencies on transactions with dependent parties, and not violate antitrust and anti-corruption laws.

It simplifies the procedure for approving interested party transactions (there is no need to obtain extracts from state registers to prove the interdependence of persons). This data is also provided to the LLC’s own shareholders/members. Another addressee is tax and other regulatory authorities during inspections (more about them in the chapter on the responsibility of affiliated persons).

Another important purpose of this information is internal control and protection against hostile takeovers. The simplest example is transactions to purchase stakes in competing companies. Let's say that JSC First, which has a 30% stake in JSC Second, decided to purchase another 21% and obtain a controlling stake in this company. The “Second” is not eager to sell securities to the “First” and become completely dependent.

Then “First” applies the following scheme: “Tretii” LLC is registered in the name of the son of the general director of JSC “First”, which comes out with an offer to buy a stake in the company “Second”. Since an individual cannot have affiliates, and an LLC has the right not to publish information about its affiliates, the interest of JSC First in the actions of LLC Tretiy can only be traced through the reporting of the company First.

Therefore, for the management of OJSC “Second”, when an offer to purchase shares is received, it is important to trace the possible affiliation of the potential buyer, assessing its likely connection with its main market interests. And if this is not done, the shares will be bought by Tretiy LLC, and then sold to its affiliate, First CJSC, and a hostile takeover will occur.

How to properly maintain a list of affiliates

The procedure for accounting for affiliates for open and closed joint stock companies, as well as LLCs, is approximately the same.

1 The head of the legal entity issues an order in which he appoints the person responsible for maintaining the list. You can leave control to yourself, but it is more advisable to delegate this function to a lawyer.

2 The frequency of updating the list is set - once a year, every six months or every quarter, it all depends on the activity of the company and related parties in the stock market. This frequency is not specified by law.

3 The storage location of the list is established, as well as the period during which access to it is opened. If we are talking about an LLC, the list can be kept by the general director and provided upon request. JSCs are required to post this data on their official website. Interested persons have the right to request the list for viewing: shareholders or members of an LLC, credit organizations.

4 The person authorized to sign the list is indicated.

The form of the list is chosen by the company itself. It must contain the following items:

• name of the company, its legal and postal addresses/full name and address for an individual;
• date of affiliation, event (purchase of shares, appointment to a position, etc.).

There may also be a column with the size of the share in the authorized capital owned by the affiliate and other information.

№	Complete corporate name (name for a non-profit organization) or last name, first name, patronymic (if any) of an affiliated person	Location of a legal entity or place of residence of an individual (indicated only with the consent of the individual)	The basis on which a person is recognized as an affiliate	Date from which the person is recognized as an affiliate	Share of participation of an affiliate in the authorized capital of the joint-stock company, %
9	Gref German Oskarovich	Russian Federation, Moscow	1. President, Chairman of the Board of the Bank 2. Chairman of the Board of the Bank 3. Member of the Bank's Supervisory Board 4. Belongs to the group of persons of the Bank	28.11.2007	0,003096

Here are some more examples:

What responsibilities do affiliates bear?

For violations in reporting affiliation, a person may incur several types of liability.

1 Responsibility for failure to provide information (including failure to provide it within the required time frame). If the company suffers damage due to the fault of an affiliate, it must be compensated by the culprit in full. Both the actual damage and lost profits are compensated.

2 Responsibility for the absence of a list of affiliated persons or its improper maintenance. Sanctions are provided for under Article 13.25 of the Code of Administrative Offenses of the Russian Federation: a fine for officials from 2500 to 5000 rubles, for a legal entity - from 200,000 to 300,000 rubles.

3 Responsibility for violation of requirements for interested party transactions. If information about a person's affiliation is not included in the appropriate list, is not published, or is deliberately withheld, this may be a reason for the cancellation of a transaction in which a special approval procedure has not been carried out.

4 Responsibility for violation of pricing. Sales of goods or services between related parties always attract close attention from tax authorities. An affiliate has every opportunity to influence the price to be sharply reduced or, conversely, increased compared to the market price. Therefore, such transactions are subject to additional checks, and if violations are detected, the affiliate is subject to fines proportional to the amounts underpaid/overpaid during the transaction.

Interdependent persons are checked using several methods:

• the prices used in the transaction are compared with market prices;
• the purchase price from an affiliate is compared with the price of subsequent sales to third-party consumers;
• the profitability of a transaction between related parties is compared with the profitability typical for such transactions;
• it is being examined whether part of the proceeds received from the transaction went to an affiliate;
• The reporting of both companies on expenses is assessed: whether one of them has excessive or, on the contrary, minimal expenses.

You can appeal the tax authorities’ decision to collect, but you need strong evidence. For example, in 2016, the Arbitration Court of the Volga District heard a case about allegedly reduced prices at which an enterprise sold housing previously purchased at a market price to members of its board of directors. The decision to sell was made by the same members of the collective executive body. However, the company presented an internal regulation according to which the price of the apartment was set at a fixed amount more than 15 years ago and has not changed since then. The court ruled in favor of the defendant; the tax inspector's arguments were considered interference in the legitimate commercial activities of the company.

5 Responsibility for intentional withdrawal of assets from affiliated companies. Tax authorities identify such violations. The following are considered signs of withdrawal of assets from affiliates:

• a new legal entity was registered during a tax audit of an affiliated company;
• the new and old companies have the same actual addresses, telephone numbers, websites, and types of activities;
• the assets of the affiliated company decrease, and those of the new company grow in approximately the same proportion;
• employees of an affiliated company move to work for a new company;
• contracts executed for the previous company are reissued for the new one;
• using a new company as an intermediary in transactions with an affiliated company;
• transfer of brands, logos and other means of individualization from an affiliated company to a new company.

6 If there is one or more similar signs falling under clause 2 of Article 45 of the Tax Code of the Russian Federation, the tax authorities receive the right to collect from the new company tax debts attributed to the affiliated company.

Example :

In 2015, the Supreme Court of the Russian Federation considered an appeal (No. 306-KG) in the case of collecting arrears from a related party. The owner of the company registered a new legal entity on the eve of the tax audit. The name was the same as that of the person being checked, the type of activity was the same, the design of the official website was the same (the address differed only in the underscore), the employees were hastily transferred to a new company. The head of both companies was the same person. The new company did not publish any information about the affiliate and did not officially communicate it to its counterparties.

During the audit, it turned out that the proceeds from the sale of goods did not go to the original company, but to an intermediary, who turned out to be... a new company. There were no settlements with the affiliated company.

The court ruled that the activities of the new company were completely managed by the previous legal entity for the purpose of withdrawing assets and avoiding taxation. The original company was recognized as an affiliate, and both companies were recognized as interdependent.

FAQ

Affiliated and interdependent entities - what is the difference?

The interdependence of persons is a special case of affiliation. Used in the Tax Code of the Russian Federation to describe companies related by common owners/management, types of activities, etc. In the legislation, despite all the similarity of descriptions, there is some difference between affiliated and interdependent entities:

• An affiliate is a person who owns at least 20% of shares or shares in the authorized capital of another company; interdependent – ​​25%;
• companies in which the owners are not only parents, adoptive parents and children, but also guardians can be interdependent;
• A company can recognize itself as interdependent voluntarily, and affiliated only based on objective criteria.

I am the CEO of a company on the verge of bankruptcy. To pay off the next tax payment, he bought two cars from his company - at a price below the market, but they would have been sold at a bankruptcy auction for even less. Can the IRS cancel the deal or charge me the value of the cars because I am an affiliate?

Even before 2016, such a transaction could only be canceled as part of a bankruptcy procedure and only if the sale amount was significantly underestimated compared to the market price. However, as of November 30, 2016, changes were made to Article 45 of the Tax Code, according to which not only legal entities, but also individuals bear tax liability for a defaulting company. Accordingly, if taxes are not paid on time in the next tax period, your transaction may be considered an attempt to withdraw property for the benefit of an affiliate. And they will oblige you to reimburse the market value of the cars - this amount will go towards paying taxes.

I am an individual entrepreneur, my wife is the owner of a 25% stake in a large company. I won a commercial tender and became a supplier to my wife's company. Will the transactions fall under the relationship of interdependent persons, since I was not given any preferences?

Yes, such transactions come under the close attention of the tax authorities, since in this case the spouse’s company is considered an affiliate of the individual entrepreneur (belongs to the same group of persons). The transactions are considered commercial transactions between related parties. The circumstances of the tender, its conditions and the final price will be examined. The cost of the contract will be compared with similar ones on the market average. If the firm is in financial distress, any sales to a related party may be considered a potential divestment.

Conclusion

An affiliate is a person or organization that can legally influence the activities of other firms. Determine their development strategy, distribute dividends, and appoint management.

Affiliated persons can be general directors and members of the boards of directors of companies, owners of blocks of shares of 20% or more, and subsidiaries. Another category of affiliation is belonging to the same group of persons. A group of affiliated persons refers to enterprises that are part of the same financial and industrial group; companies owned by relatives; legal entities managed by the same person; companies that are actually managed by one legal entity.

Companies with affiliated or dependent persons are required to keep records of them, updating the lists quarterly.

Information about affiliates is used by other companies to avoid breaking the law when executing interested party transactions. This information is also requested by the tax office when checking transactions between dependent and affiliated persons.

Failure to provide information about affiliation may be fraught with fines, as well as cancellation of the transaction with compensation for damage and lost profits. In the event of a deliberate transfer of assets from an affiliate to a dependent company and an attempt at fictitious bankruptcy, the tax inspectorate has the right to collect arrears from the dependent company (automatically without the consent of the person).

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Affiliates of a limited liability company: obligation to maintain a list

From the text of Art. 50 of the Law “On Limited Liability Companies” dated 02/08/1998 No. 14-FZ (hereinafter referred to as Law No. 14-FZ) it follows that every limited liability company (hereinafter referred to as LLC, company, organization) is obliged to:

1. Maintain lists of affiliates. The form of the list is not set; it can be arbitrary. However, you can use as a guide Annex 4 to the regulation of the Central Bank of the Russian Federation “On the disclosure of information by issuers of issue-grade securities” dated December 30, 2014 No. 454-P or the sample given in our article.
2. Store lists. At the same time, the legislation establishes:
   • Place of storage - at the location of the sole executive body or in another place about which the participants are informed and have access.
   • Shelf life. According to the order of the Ministry of Culture of the Russian Federation “On approval of the list of standard management archival documents...” dated August 25, 2010 No. 558, they must be stored permanently (clause 150 of the list), i.e., during the entire period of the organization’s existence, and then accepted for permanent storage by archival organizations according to the sampling principle.
3. Provide participants with the opportunity to familiarize themselves with:
   • with the original - in the premises of the executive body of the company within 3 days after the participant’s statement of the relevant requirement;
   • with a copy - with the ability to request a fee from the participant for making copies (in an amount not exceeding the company’s expenses).

In addition to these lists, any legal entities are required, starting from December 21, 2016, to maintain lists of beneficial owners (Article 6.1 of the Federal Law of August 7, 2001 No. 115-FZ “On Countering Legalization...”).

Purpose and procedure for creating the list

If the legislation associates certain obligations with the presence of affiliation, then it is determined in accordance with the law (Article 53.2 of the Civil Code of the Russian Federation). For an LLC, establishing affiliates is relevant in the following situations:

• Determination of interest in a transaction (Clause 1, Article 45 of Law No. 14-FZ, from 01/01/2017 the term “controlled persons” is used).
• Applications of antimonopoly regulation.
• Application of norms on interdependence (under Article 20 of the Tax Code of the Russian Federation). An obligation has been established to disclose information about transactions with related parties (including affiliated ones) in the explanatory note to the financial statements submitted to the tax authorities (Article 23 of the Tax Code of the Russian Federation, PBU 11/2008 “Information on Related Parties”, order of the Ministry of Finance of Russia dated 04/29/2008 No. 48n).

Regarding the formation of the list, Law No. 14-FZ contains only a rule (clause 2 of Article 45) obliging affiliated persons to report on controlled entities, legal entities in which they hold positions, and organizations controlled by their close relatives.

Having received this information, the organization is obliged to update its list of affiliates in accordance with the information received (for example, this is indicated in the resolution of the 5th AAS dated July 10, 2013 No. 05AP-6046/13).

However, the law does not authorize the company to verify the information received - to request confirmation from third parties or request copies of documents.

It is advisable to include the responsibility for maintaining the list in the job description of one of the employees.

Who are affiliates in an LLC?

There is no general concept of such a person in the law; it is described by listing it in the only article currently in force. 4 of the RSFSR Law “On Competition and Restriction of Monopolistic Activities in Product Markets” dated March 22, 1991 No. 948-I.

In relation to an LLC this is:

• member of the collegial management body, sole executive body;
• a member of a group of persons to which the organization is included;
• persons owning more than 20% of the authorized capital;
• a legal entity in which the LLC has the right to dispose of more than 20% of voting shares or authorized capital (subsidiaries or dependent companies, Article 6 of Law No. 14-FZ);
• members of the management bodies of participants in the financial and industrial group of which the organization is a member.

Affiliates of a limited liability company are members of its group of persons

In accordance with Art. 9 of the Law “On the Protection of Competition” dated July 26, 2006 No. 135-FZ, taking into account the explanations of the Federal Antimonopoly Service of the Russian Federation given in letters dated March 20, 2008 No. AC/5969, dated March 25, 2008 No. AC/6366, the group of persons of the company includes a person who :

• participates more than 50% in the authorized capital or management body (including under a management agreement or on another basis);
• carries out the functions of the sole executive body or nominated a candidate elected in this capacity;
• is the manager of the company under a management agreement;
• is part of a group of a person who is in a group with this company;
• jointly with this company it is managed by another person belonging to the group, having more than 50% of the shares or authorized capital.

The antimonopoly authority compiles a list of persons included in one group in the form established by Order No. 293 of the Federal Antimonopoly Service of the Russian Federation dated November 20, 2006.

The legislation currently does not contain a normative definition of a financial-industrial group, since the corresponding law of June 22, 2007 No. 115-FZ was abolished due to the redundancy of the regulation it contains. This concept currently remains only in some classifiers. It appears that holding structures are sufficiently described in Law No. 135.

Sample list of LLC affiliates

Basic details of the list:

• Date of preparation;
• columns: name (full name) of the affiliated person, contact details and location, basis for recognition of affiliation, date of occurrence, share of participation in the authorized capital;
• signature of the head of the organization.

In addition, it would not be superfluous to indicate the source of information (date and number of the incoming document).

When filling out the list, please note that additional information about an individual, with the exception of last name, first name and patronymic, can be included in the list only with his consent, since it relates to personal data.

Let us note that there is no direct liability for evasion of maintaining the list, however, there is liability for interrelated violations according to the norms of the above special regulations (Tax Code of the Russian Federation, Law No. 135-FZ, etc.). A different situation may arise in the absence of a list of beneficial owners - according to Article 14.25.1 of the Administrative Code, the fine, starting from December 21, 2016, reaches 500 thousand rubles.

Thus, the LLC is required by law to maintain a list of affiliated persons and use it in order to correctly reflect information in the financial statements. Affiliated persons are obliged to independently provide information to the society, however, in a number of cases (when occupying a managerial position, owning shares), they are already known to him and must be included in the list in a timely manner.