Notarization of the decision of the sole participant. Notarization of decisions of the sole participant of an LLC

There have been many disputes among lawyers about the need to notarize decisions of LLCs consisting of their 1st participant. Let's look into this issue based on current legislation.

Article 61.1 of the Civil Code of the Russian Federation states that it is necessary to confirm decisions made by the general meeting of an LLC and the composition of such a meeting by certifying this fact in the presence of a notary. Since 2016 it has become clear that notarization of decisions of the sole participant of an LLC is necessary only if the founder decides to increase the authorized capital (hereinafter referred to as the authorized capital) of the company. It does not matter which method is chosen to increase the capital. This could be the attraction of another founder, or the desire of an existing participant to increase his contribution to the company. Anyway, notarization of the decision of the sole participant of the LLC it is strictly necessary to increase the Criminal Code.

The tax authorities must be notified of changes in the Criminal Code by submitting an application in form P13001, to which is attached the necessary package of documents, including a decision of the sole participant of the LLC certified by a notary.

At the initiative of the company owner, he can have any of his decisions certified by a notary. Judicial practice has repeatedly shown that notarization of decisions of the sole participant of the LLC, significantly reduced time trial. The decision of the sole founder recorded by a notary allows the court not to understand the reliability and authenticity of the decision, but to focus only on the claims.

Despite the absence of the need to certify the decisions of the sole owner of the company with a notary, with the exception of increasing the capital capital, it is better to provide in the company’s Charter a method for notarizing decisions, which will subsequently allow any legal conflict to be quickly and effectively considered. The participation of a notary in holding a meeting maximally protects the rights of the owner; you always have on hand sufficient evidence of the absence of falsification of decisions made in the LLC. When an LLC has one owner, it is not difficult to assure decisions made, by visiting a notary's office.

This topic is very popular and widely discussed among lawyers, however, the goal of the legislator is very simple - to ensure the reliability of information and make the decisions made by the owners of the Companies more transparent. There is no doubt that the legislator is increasingly strengthening the role of the notary in the business activities of legal entities. Every year the number of court cases on corporate disputes is growing, so the role of the notary in the functioning of Companies is given special attention.

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Question

The JSC has a single shareholder - a legal entity registered in the Republic of Cyprus. Is it necessary to notarize a shareholder’s decision to adopt a new version of the charter? Should a shareholder's decision be certified by the shareholder's seal, and what should be done if a seal is not provided?

Answer

No, today there is no requirement to certify the decision of the sole shareholder. If the shareholder has the seal - legal entity is missing, then the decision does not need to be certified with a seal. A signature of an authorized person is sufficient.

Conclusion on non-application of the requirements of sub. , paragraph 3 of Article 67.1 of the Civil Code of the Russian Federation in a joint-stock company with a single shareholder is established in Letter of the Central Bank of the Russian Federation dated August 18, 2014 No. 06-52/6680.

The decisions of the sole shareholder are made individually and are documented in writing (Article 47 Federal Law dated December 26, 1995 No. 208-FZ). The law does not contain requirements for the seal of a shareholder - a legal entity.

The rationale for this position is given below in the materials of the Lawyer System.

« Attention! From September 1, 2014, it is necessary to confirm the adoption of a decision by the general meeting of shareholders and the composition of shareholders present at its adoption.

To confirm please contact*:

• in non-public joint stock companies ah - to the registrar or to the notary ();
• in public joint stock companies - to the registrar ().

In general, the requirement to involve a registrar or notary is aimed at preventing falsification of decisions. Their presence makes the counterfeiting process difficult. For example, when substituting a protocol using a notary's seal, it is enough to prove only the fact that the notarial act is not listed in the notary's register.

The Civil Code of the Russian Federation establishes such rules only in relation to meetings of shareholders. From the literal content of the norm it follows that such requirements do not apply to the sole shareholder*. However, the draft amendments to the Law on JSC provide that they will also have to comply with these requirements.”

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In 2015, Federal Law No. 14-FZ dated February 8, 1998 was amended to expand the list of actions subject to notarization. The purpose of the changes is, among other things, to protect members of societies from various abuses against them.

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The list of notarized actions in “On companies with limited liability» is now significantly wider than before; this measure is aimed at protecting the interests of company participants in the event of transactions with shares, withdrawal from the company, exclusion from the company, etc. Perhaps there really is a positive aspect in strengthening the role of the notary: according to judicial practice, it is enough a large number of cases is due to the fact that the sole participant of the LLC is challenging the adoption of decisions to increase authorized capital society, as a result of which the participant is washed away without making a contribution, or the participant says that he did not apply to leave the society, and such controversial situations arise that are at the intersection of civil and criminal law. Notarization of a number of actions can reduce risks for participants.

The requirement of a participant to repurchase a share by the company if the participant voted against a major project, or to increase the authorized capital, acceptance of an offer in pursuance of an option to conclude an agreement and the participant’s statement of withdrawal from the company are subject to notarization.

Notarization of meeting decisions

One of the main provisions now is that decisions of participants to increase the authorized capital and the composition of participants who made the decision are subject to notarization. It seems that this norm is special in relation to Art. 67.1, which allows the LLC participants to confirm the adoption of decisions either by signing the protocol by all participants - i.e. the decision is made unanimously, and the decision states that notarization is not required, all participants were and voted for - or according to the LLC charter, if the corresponding mechanism is provided.

Notarization of decisions of the sole participant of the company

Is it necessary to notarize a decision made by the only participant in the company? Before the latest changes on notarization of the decision to increase the authorized capital, there were clarifications from the Federal Notary Chamber (FNC) in. It said that for an LLC consisting of one participant, the provisions of Art. 67.1 of the Civil Code of the Russian Federation do not apply. This conclusion, according to the notaries, followed from the analysis of the norms of paragraph 2 of Art. 7 and art. 39 of the LLC Law, and decisions on issues within the competence of general meeting, in companies with a single participant are accepted by him and drawn up in writing. A similar position was expressed in relation to joint stock companies in. There is also an interesting resolution of the plenum of the Armed Forces of the Russian Federation dated June 23, 2015 No. 25 on the application by courts of certain provisions of Section 1 Part 1 of the Civil Code of the Russian Federation. In the section devoted to the decisions of meetings, the plenum of the Supreme Court analyzes what a meeting actually is and, referring to a number of articles of the Civil Code of the Russian Federation, says that decisions of meetings are understood as decisions of the civil law community, i.e. a certain group of persons empowered to make at meetings decisions to which the law associates civil consequences. In particular, that the decisions of meetings include decisions of collegial management bodies of a legal entity, meetings of participants, boards of directors, etc. Thus, from all the clarifications that came out before the latest changes, it follows that the decision of the sole participant does not need to be notarized .

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A legal entity that is the sole member of an LLC may adopt a sole member resolution. Find out whether this decision needs to be certified by a notary in this article.

Question: The participant of our LLC is a legal entity. Can this legal entity be the only participant for purposes without notarization of the decision of the sole participant, or is it necessary to draw up the minutes of the general meeting of participants - individuals of our participant and have it notarized?

Answer: A legal entity that is the sole member of an LLC may adopt a sole member resolution. This decision is not required to be certified by a notary, with the exception of the decision to increase the authorized capital (it must be notarized).

It is enough for a single participant to make a decision and formalize it in writing. Such a decision must be signed on behalf of the sole participant CEO, as a person acting without a power of attorney on behalf of the company, if the participants of the sole participant (legal entity) have vested him with such powers.

Rationale

How to make and formalize the decision of the sole participant of an LLC

The sole participant makes decisions on the same issues as the general meeting of participants (Article 39 of the Federal Law of February 8, 1998 No. 14-FZ “On Limited Liability Companies”; hereinafter referred to as the LLC Law). The range of such issues is determined by the charter and the LLC Law. These include, for example, questions about approval of an interested party transaction, amendments to the charter, appointment of a director, reorganization or liquidation, and others. If a decision is made outside the competence, such a decision will be void - invalid from the moment of adoption (Clause 3 of Article 181.5 of the Civil Code of the Russian Federation).

One decision of a single participant may contain decisions on one or more issues.

Procedure

The sole participant does not need to follow a special procedure for preparing and making decisions, as in a meeting. He does not need to preliminarily determine the date of the decision, formulate an agenda, draw up documents for the upcoming decision, or contact a notary (Article 39 of the LLC Law). The participant only needs to make a decision and put it in writing.

Deadlines

The law requires compliance with only one deadline - the deadline for holding the annual general meeting of participants. From March 1 to April 30, the sole participant must approve the annual results of the company’s activities (Art. , LLC Law). A more precise deadline, as well as other deadlines, may be provided for by the charter.

Decor

The law establishes only one requirement for the decision of the sole participant - it must be in writing (Article 39 of the LLC Law).

The solution can be written in free form. The main thing is that it should be clear from it who made what decision, when.

Usually it indicates the last name, first name, patronymic and passport details of the participant. For example, number, series and date of issue of the passport. If the participant is an organization, it is enough to indicate its name, OGRN, details of the person who acts on its behalf, and the document on the basis of which the representative acts.

For example, the solution can be written like this:

Is it necessary to have the decision of the sole participant certified by a notary?

By general rule no need. The requirement that the law imposes on the decisions of meetings is to notarize the decisions made and the composition of participants, does not apply to the decision of a single participant (clause 1.3 of the Review of judicial practice on disputes involving registration authorities No. 4 (2016) from the letter of the Federal Tax Service of Russia dated December 28, 2016 No. GD-4-14/25209).

But, if the only participant has decided to increase the authorized capital, the signature on it must be certified by a notary (Clause 3, Article 17 of the LLC Law). This case is an exception.

Can a single participant decide to leave the society?

Otherwise, the transaction to exit the company will be void (ruling of the Supreme Court of the Russian Federation dated April 11, 2017 No. 305-ES16-14771 in case No. A40-169486/2015).

Does the sole participant need to formalize decisions on the approval of major transactions and interested party transactions if he himself acts as a director?

No need.

The provisions on major transactions and interested party transactions do not apply to the case when the only participant acts as the sole director (paragraph 3, paragraph 7, article 45, paragraph 2, paragraph 7, article 46 of the LLC Law)

Is it possible to make a decision of a single participant by proxy?

Yes, the law does not prohibit this.

A single participant can issue a power of attorney, for example, to a director, with the right to exercise all the rights granted by law. Including participation in the management of the company’s affairs, signing any documents, including decisions of the participant on issues of reorganization, liquidation, amendments to the charter, and exercising other powers of the participant.

In this case, it makes sense in the power of attorney to limit the issues on which the representative has the right to make decisions so that he cannot abuse his rights. Otherwise, you will have to challenge his actions later (resolution of the Moscow District Arbitration Court dated February 17, 2016 No. F05-14989/2013 in case No. A40-81100/13).

Who can challenge the decision of the sole participant of the company

Only the participant himself and in exceptional cases.

The law allows you to challenge the decisions of meetings only to participants who did not take part in the voting or voted against the contested decision (clause 1 of article 43 of the LLC Law, clause 3 of article 181.4 of the Civil Code of the Russian Federation). Since the only participant makes the decision himself, as a general rule he cannot challenge it.

An exception is only in the case when the will of the participant during voting was violated (paragraph 2, paragraph 3, article 181.4 of the Civil Code of the Russian Federation). This basis is suitable if the participant was forced to make such a decision, for example, by threats. But this is usually difficult to prove (