We consolidate the interests of investors and managers
Legal “packaging” of new projects always consists in selecting a balanced set of tools: choosing the right organizational form of the company, contracts, working out the fundamental conditions of constituent documents and agreements, etc. One tool is not enough. At the same time, we do not forget that any legal structure of a business must simultaneously solve several problems:
fixing relationships between partners,
providing guarantees to their interests in this project,
property safety of a business project and its participants,
legal tax savings,
New business project. There are two investors who are ready to finance it on behalf of their company Investors LLC, and three project initiators who have a cool idea, but do not have sufficient funds to implement it. There is already an operating operating company (JSC OK), in which three project initiators are individual IP managers.
The constituent document may provide that the authority to act on behalf of a legal entity is granted to several persons acting jointly or independently from each other. Information about this shall be included in the unified state register of legal entities. Clause 1, Article 53 of the Civil Code
So far, OK is registered for a shareholder who does not intend to participate in the project (let us call it the title shareholder). The first substantial cash receipts are expected in the near future. For this reason, it is important to ensure that this shareholder leaves the legal ownership of the company.
Terms of cooperation: investors want to get a guaranteed income and direct it to the development of their other areas. The project initiators want to have a legal guarantee of their income, as well as independence in making a number of decisions and taking into account their interests in making joint decisions.
TaxCOACH® Center Model
The sole participant in OK will be Investments. The form of the joint-stock company was chosen in order to cover (for example, in order to protect the new project from competitors) the participation of the Investors in the project, since only the first shareholders are reflected in the Unified State Register of Legal Entities (for more details see below).
In turn, OK JSC owns a 50% stake in Investments JSC (cross-ownership is obtained), the second half of the shares belongs to the aforementioned Investors LLC.
What it gives:
1. Profit from the project is reinvested with minimal taxation in other projects of Investors, as agreed.
When determining the tax base, the following incomes are not taken into account:
<…> in the form of property received by a Russian organization free of charge: from an organization if the authorized (joint-stock) capital (fund) of the transferring party consists of more than 50% of the contribution (share) of the receiving organization and, on the day of transfer of the property, the receiving organization owns ownership indicated contribution (shares) in the authorized (joint-stock) capital (fund) on the day of transfer of property.
or paid as dividends at 0% after a year of ownership of JSC Investments by shares of JSC OK
The following tax rates apply to the tax base determined for income received in the form of dividends: 0 percent – for income received by Russian organizations in the form of dividends, provided that on the day the decision on the payment of dividends is made, the organization receiving the dividends for at least 365 calendar days continuously owns at least 50 percent contribution (shares) in the authorized (joint-stock) capital (fund) of the organization paying the dividends or depositary receipts entitling to receive s dividend, in the amount corresponding to no less than 50 percent of the total amount of dividends paid by the company.
These funds can be invested further in other business projects in the form of loans / contributions to property / authorized capital, etc. on behalf of JSC Investments or with the application of the indicated exemption transferred to LLC Investors for similar purposes.
2. We fix the rules of the game between Investors and Initiators
As noted, in this case, Cross ownership arises. Investments JSC owns 100% of the shares of OK, which owns 50% of the shares of the first company. It turns out that at the general meeting of shareholders of Investments JSC investors participate in the person of Investors LLC and project initiators in the person of managers of OK JSC. At the same time, between Investors LLC and OK JSC as shareholders of Investments JSC, a corporate agreement (shareholder agreement) was concluded, which takes into account the specifics of the agreements of partners on issues of competence of Investments JSC as a shareholder of OK JSC, that is, in relation to the current business project (for example, whether or not we take part of the profit when we withdraw, etc.).