Gene director of the management company. Job description of the head of the housing and communal services management company

In the course of structuring a business and building a group of companies, the question of maintaining the manageability of the entire group always arises, provided that, as a rule, the management personnel of the business is unified and it is impossible to divide it between the companies.

As a result, this always leads to the need to search for such a management option when the owner has the opportunity to control and influence decision-making both on the entire business as a whole, and on any of its segments, despite the economic independence of each member of the group.

In this case, when designing a business model, a management company can act as a link between its individual elements.

A management company is any organizational and legal form (in our experience, not only LLCs or JSCs, but also cooperatives, partnerships, partnerships, and even non-profit organizations can act as a management company), accumulating a complex of strategic, tactical, general marketing (including brand management ), organizational, motivational and control functions, as well as functions of scientific and technical development and financial management for all other subjects of the Group of Companies.

The formation of this functionality of the management company is due to the following economic and managerial reasons:

1. The need for all subjects of the group of companies in common for all auxiliary functions:

accounting, legal, marketing and other services, the provision of which by employees of a specialized organization is organizationally and economically more profitable than the creation of similar full-time services in each separate company.

Most often, managed legal entities do not have their own lawyer, accountant, or system administrator - all this is done by the personnel of the management company. Objectively, not every business is capable of pulling such a staff in every separate organization of the Group. But even with this type of organizational structure, there must be a central link managing field staff.

Therefore, there are cases of the creation of functionally similar services to each other both in the Criminal Code and in a controlled society (for example, with a ramified structure, when individual societies are significantly removed from each other and from the Criminal Code itself), however, in this case, the Criminal Code is also engaged in solving strategic problems, then as employees of a managed company perform current work that does not require high qualifications and knowledge of the strategic plan for business development as a whole.

2. The ability to quickly implement and develop, as well as adjust the previously developed strategy for the group of companies as a whole.

Undoubtedly, business owners need to have full information regarding its functioning, financial performance, the degree of effectiveness of previously adopted management decisions.

In this sense, the value of the direct receipt of information about all significant events directly to the "headquarters" is invaluable both for the owners and for the top management.

3. Transfer of management from the plane “he is the most important here, everyone knows him” into the legal field, formalization of relations between the management and subordinate companies by civil law means and thereby ensuring the necessary degree of control over the activities of controlled companies.

In our practice, we have repeatedly encountered situations when, as a business with a small number of owners grows, new companies are registered, the leaders of which are only formally such; in fact, the leadership is in the hands of the actual beneficiaries.

But there comes a time when the number of personnel and the number of individual organizations within the framework of one business reaches a critical one, the owners are not recognized by sight and do not obey their verbal orders (and they have no right to publish written ones). Worse, a nominee director can "mess things up", because he legally has the right to make decisions, which will lead to unfavorable consequences (primarily of a financial nature).

We must not forget about the costs of remuneration of the nominee leader, which you will incur in one way or another, as well as the need to pay social taxes.

Management through the management company helps to avoid such negative moments.

4. Possibility of legal reduction of the tax burden by applying the Criminal Code of the simplified taxation system.

Contractual regulation of the relationship of the management company with controlled companies can be indirectly by two types of contracts:

management services contract;

contract for the performance of the functions of the sole executive body.

The choice of one or another contractual instrument depends on a number of factors and the specifics of the structure of the group of companies. Let's consider the features of the application of each of the agreements separately:

Management services contract.

When this agreement is concluded, all or some of the strategic, as well as auxiliary functions in relation to the operational core are transferred to the Criminal Code: legal, accounting and personnel support, security, etc. each of them is unprofitable and impractical.

The task of the management company in this case is to determine the main vectors of activity (develop a marketing strategy, carry out scientific and technical development, release a program of activities of a group of companies for a year, etc.), which must be followed by all managed companies without exception.

At the same time, it should be noted that the managed company has its own sole executive body (director, individual entrepreneur-manager or another Management company, but in the role of the sole executive body (IO)), which carries out operational management of the company, makes all current decisions and is responsible for financial result. It is he who appears in the Unified State Register of Legal Entities as a subject that has the right to act on behalf of the company without a power of attorney.

With such interaction of the CEO and the management company, the former is limited only by the strategic framework set by the management company, and is completely independent in the process of managing the current activities of its company. Moreover, this framework (in the form of reporting forms and periods, as well as a liability mechanism) can and should be laid down both in an agreement with the Criminal Code (this is a condition under which the Criminal Code takes over the management), and in an agreement with the CEO itself.

However, our experience shows that owners (especially when transforming a single company into a holding company) in every possible way avoid delegating authority to hired managers, fearing that they will get out of control.

In this case, the mind comes into conflict with feelings: on the one hand, the owner understands the objective need to "give up" the reins of government (a non-core activity for him, employment in another project, the inability to cover all areas of his business), and on the other hand, psychologically can not come to terms with the fact that his brainchild will be controlled by someone else.

In this regard, the issue of trust in the hired manager on the part of the owner is of particular relevance.

At the same time, one cannot fail to note the significantly higher, in comparison with the agreement on the transfer of functions of the sole executive body, the degree of personal interest of the director in the results of the managed company, which is automatically reflected at the level of his personal (and not imposed from outside) responsibility.

It is thanks to this instrument of a controlled increase in the degree of independence that the synergistic effect of business structuring is achieved - tax optimization can be enhanced by increasing managerial efficiency.

In addition, in the event of any unfavorable consequences of the activities of the controlled company (the simplest example is tax claims), hardly anyone will be able to definitely assert (and prove) that such consequences occurred as a result of the direct orders of the Criminal Code carried out by the director of the controlled company.

In other words, the management company will protect itself from negative consequences, and will also have the opportunity to preserve its business reputation and the accumulated image, referring to the “initiative” of the hired director.

Contract for performing the functions of the sole executive body

Let us recall that the possibility of transferring powers to manage the organization to the Management Company is provided for by a number of federal laws:

For instance:

p. 1, art. 42 of the Federal Law on LLC: The company has the right to transfer, under the contract, the exercise of the powers of its sole executive body to a manager. clause 1 of Art. 69 FZ on JSC: By decision of the general meeting of shareholders, the powers of the sole executive body of the company can be transferred under an agreement to a commercial organization (managing organization) or an individual entrepreneur (manager).

In this case, an agreement is concluded with the Criminal Code for the transfer of the functions of the sole executive body. It is the Criminal Code (represented by its director) that receives the authority to act on behalf of the managed company without a power of attorney: to represent the interests of the managed company in all organizations and institutions, as well as to enter into any business relationship. Key business managers, its owners in this case are employees and / or participants of the management company and already at its level and on behalf of the management company perform all management functions.

Of course, the director of the Criminal Code cannot effectively manage the Criminal Code itself, and even all the controlled companies, therefore, on the basis of a power of attorney, he delegates his powers to a special employee who will be the actual head of the controlled company.

Moreover, such a de facto leader is on the staff of the Criminal Code (!) And receives a salary in it.

The degree of control over the owners, reporting and responsibility, as well as the degree of independence of the actual manager in making decisions in this case is determined by the provisions of the employment contract with the management company.

A negative consequence of the appointment of such a manager can be a low degree of his responsibility and the lack of deep personal interest in the results of the controlled society.

As you can see, the inclusion of the Management Company in the business model is indisputable - it helps to solve many difficulties in the presence of an extensive legal structure of the business.

At the same time, taking into account the realities and trends of tax administration, the question of how the management company is viewed from this side cannot be ignored.

After all, the existence of the Criminal Code gives grounds to speak of the affiliation of the subjects controlled by it among themselves (even if the owners of the companies do not coincide). Of course, when we are talking about, for example, purely accounting and legal services (not about the status of the management company as a joint company) and such services are provided not only to organizations connected by contractual relations, but also to outside entities, it will be difficult to recognize affiliation on this basis. With the option of performing the role of the CEO - the presence of a single managing entity for several legal entities, which are all the more connected by other agreements with each other (which usually happens if a business is built within a group of companies) will link all organizations into a single structure.

This is not critical if all subjects apply the STS and there is no possibility for the tax savings described above by applying the same STS Criminal Code. However, such affiliation will attract attention if it comes to the interaction of subjects in different special regimes, which by itself leads to the minimization of taxation on business income.

Considering that the tax authorities are paying more and more attention to such structures, trying to justify the artificiality of their division into several entities or the unreasonableness of the costs of attracting the Criminal Code itself, in terms of the separation of the management company, the following rules must be observed:

1) The types of services provided should be specified. The more detailed the subject of the Criminal Code's activity is, the more difficult it is to prove the artificiality of its separation in the group of companies (see, for example, Resolution of the Seventeenth Arbitration Court of Appeal dated October 30, 2012 No. 17AP-11284/12: the taxpayer managed to win the dispute by maximizing the details of the evidence of the performance of the contract In the report on the execution of the powers of the EIO, the volume of work performed to manage the current activities is indicated with a breakdown of the work performed by employees of specific departments (services) and even the amount of hours spent on each service is indicated.

Considering that at the moment many companies use various software systems that allow tracking the time spent on certain tasks by employees, the solution to the task of collecting such information can be automated.

At the same time, the Management Company, in the role of the sole executive body, carries out the current management of the company, a full detailed description of which is impossible in the contract. Both corporate legislation and, as a rule, company charters usually leave residual competence for the CEO: “and other, not attributed to the powers of other bodies of the Company”. Therefore, if the management agreement with the Criminal Code in the role of the CEO does not contain a specific list of the powers of the Criminal Code, it is impossible to talk about the lack of detailing the functions of the Criminal Code, and, therefore, its artificial allocation. This conclusion is supported by judicial practice:

Due to the very nature of the day-to-day management activities, it is impossible to exhaustively define the competence and responsibilities of the EIO (Management Company) not only at the level of the law, but also at the level of the Charter of the company, the agreement on the transfer of powers, local regulations, since it is impossible to foresee all the issues on a daily basis arising in the activities of the controlled organization and which are not attributed to the exclusive competence of the general meeting and the board of directors.

Resolution of the Federal Arbitration Court of the West Siberian District of May 12, 2014 No. F04-2761 / 14 in case No. A81-2271 / 2013

2) Carefully you need to pay attention to the description of the procedure for calculating the remuneration of the Criminal Code for its services.
So, if you tie the remuneration to the achievement of any indicators (growth in revenue, profit, number of customers, etc.), it is necessary each time to confirm their achievement or failure, to draw up all the necessary documentation. Otherwise, the tax authority will dispute payments towards the Criminal Code (Resolution of the Arbitration Court of the North Caucasus District of July 11, 2016 N F08-3871 / 16 in case No. A01-1790 / 2015, Resolution of the Fifteenth Arbitration Court of Appeal dated February 16, 2016 No. No. 15AP-22105/15).

As a rule, the courts, taking the side of the tax authority, say that they could not confirm what specific work the Criminal Code did and how the cost of each type of its services was determined. Therefore, the description of the procedure for the formation of the cost of the services provided in the contract itself and the detailing of the total cost for each period of the MC's activity is a prerequisite for working with the Management Company.

Of course, the remuneration should include all the current expenses of the management company to maintain its activities: office rent, payroll of employees, etc. The base amount of remuneration is formed from this amount. If a part of the business profit is not accumulated on the management company, then the remuneration may provide for a fixed fixed amount covering the expenses of the management company with a possible slight increase, for example, no more than 1 time per year (in case of an increase in the payroll or other expenses);

The above calculation of remuneration can be complicated if, for example, the payroll of employees depends on their performance indicators and changes from month to month. For this, the companies have developed their own systems for calculating the remuneration of each employee, which can also be used as the basis for calculating the remuneration of the management company. In this case, detailing of each indicator will be required to confirm the validity of the costs of the management company in the declared amount.

Along with covering the basic expenses of the management company, the remuneration may also include a variable part that depends on the financial result of the management company: for example, in the form of a percentage of the revenue or profit of the managed company. This can be either a monthly increase to the base remuneration or an “annual premium” of the management company based on the results of a financial year. In any case, the remuneration in this form must be justified by the mandatory increase in the revenue / profit of the managed company and confirmation that such growth is associated with the activities of the management company and its employees. At the same time, of course, this part of the remuneration should not lead to the fact that the entire profit of the operating company flows into the management company, which applies a lower income tax rate.

3) Proof of the effectiveness and reality of the management company will be indicators of growth in revenue, profit, assets of the managed company, which, in turn, for example, led to an increase in taxes paid to it (this indicator will be especially valuable).

4) The performance of management functions for several companies, preferably not related to each other (for one, for example, in the role of a CEO, for the other, providing only accounting services, etc.), will be evidence of the independence of the Criminal Code as an economic entity.

5) High professionalism of the staff of the management company (in comparison with the managed one), increased requirements for their level of education, work experience, etc. will also allow confirming the professional competence and independence of the Criminal Code (see, for example, the Resolution of the Arbitration Court of the North Caucasus District of January 26, 2015 No. F08-9808 / 14 in the case of NА32-25133 / 2013).

Taking into account the described nuances, it is necessary to carefully approach the legal fixation of the real activity of the Management Company and the procedure for its interaction with its customer of services. In addition to the constant, systematic collection of evidence supporting this activity and its usefulness for the managed companies, there should be no problems with the tax authority.

The preamble of the supply agreement states: "NP LLC Romashka, hereinafter referred to as the" Buyer ", represented by the director of LLC Lilia II Sidorov, acting on the basis of the Charter and the agreement on the transfer of powers of the sole executive body of NP LLC Romashka No. 1 dated January 11, 2013, on the one hand ... "- is this possible, is it legal? Can the director of another company sign an agreement on behalf of another company (in our case, for example, NP OOO Romashka) without a power of attorney, but only on the basis of an agreement on the transfer of powers of the sole executive body of NP OOO Romashka? What kind of contract is this and should the Buyer submit it to us for consideration? What documents should the Supplier request from the Buyer to make sure that I.I. (the director of another company) really has the right to sign an agreement on behalf of NP LLC Romashka and how to check these documents, what to look for?

Answer

Yes, it can be, it is legal. In accordance with Art. 42 of the Law on LLC, the company has the right to transfer, under an agreement, the exercise of the powers of its sole executive body to a manager. A company that has transferred the powers of the sole executive body to a manager exercises civil rights and assumes civil obligations through a manager acting in accordance with federal laws, other regulatory legal acts of the Russian Federation and the company's charter (Article 42 of the LLC Law).

The director of another company (management organization) can sign an agreement on behalf of the parent company without a power of attorney, only on the basis of.

“At a certain stage of business development, the owners may face the question of the need to involve a management company in order to make management more effective.

In case of such a development of events, the lawyer of the LLC needs to know how to correctly transfer the powers of the management company, so that it has all the possibilities to achieve its goals, is under the control of the owners and, if necessary, is responsible for its actions.

How to formalize the transfer of powers to the management company

The concept of "management company" ("management organization") is not disclosed by the law. In fact, a management company is a commercial organization that provides services in the field of enterprise management. You do not need a license to provide such services.

The functions of a management company can also be performed by an individual entrepreneur - a manager.

LLC instructs the management company to manage its affairs and property by exercising the powers of the sole executive body (director). The management company, in turn, acts as its director or other person authorized by him.

The general meeting of participants or the board of directors must decide on the transfer of the powers of the director of the management company, approve such a company and the terms of the contract with it, including the amount of remuneration. It depends on what is said in the charter (sub., Clause 2.1 of article 32, Federal Law of February 8, 1998 No. 14-FZ "On limited liability companies", hereinafter - the Law on LLC). In this case, you do not need to make additional changes.

The powers of the management company should be spelled out in the contract in as much detail as possible. This is especially important if the society has other executive bodies, since a dispute over competence may arise later - at the most inconvenient moment, when the delay will cost society dearly.

Also, the agreement between the company and the management company can provide for:

goals to be achieved by the management company. At the same time, it is better not to limit ourselves to general goals, but to regularly draw up annexes to the contract with precise planned indicators, which after a certain time should be achieved by the company under the leadership of the management company. This will contribute to the achievement of an unambiguous understanding by the management company of the goals that society wants to achieve;
the amount of remuneration for the management company. It can be set depending on the achievement of the indicators specified in the previous paragraph. This will motivate her to work efficiently, as well as minimize the risk that the cost of paying for her services is not recognized as income tax expense. The amount of remuneration should be divided into a fixed fee, compensation for direct costs approved by the company, and remuneration from the result at the end of the reporting period;
responsibility arising from the management company in connection with the performance of the functions assigned to it;
the procedure for terminating the powers of the management company;
the volume and content of information and reports that the management company is obliged to submit to the board of directors and shareholders in relation to its work and performance indicators of the company, the frequency with which such reports should be submitted;
a list of officials of the management organization who are obliged to report on its work to the board of directors and the general meeting of shareholders of the company;
conditions for non-disclosure of confidential information (volume of such information, terms of non-disclosure and responsibility).

The management company actually replaces the director. The actions of the management company give rise to rights and obligations for the LLC (). The management company must act in the public interest in good faith and reasonably ().

In this case, it is not necessary to transfer all the powers of a director to the management company, only a part can be transferred. In addition, one must not forget to distribute the rest of the powers among the management bodies of the LLC.

In judicial practice, there was such an opinion that the rest of the powers can be left with the director, without completely terminating his powers. However, this can cause disputes with the tax authorities.

An example from practice: the tax office tried (albeit unsuccessfully) to charge additional income tax and VAT on the cost of payment for the services of the management company

LLC "G." and LLC "N." signed an agreement dated June 5, 2004 No. 4 on the transfer of powers of the sole executive body of the company to a management company. Amendments were made to the Unified State Register of Legal Entities.

The competence of the director of LLC G. (according to the job description) included the operational management of current production processes with the right to conclude transactions of little importance for the company (up to $ 25 thousand).

The management company was granted broader powers, its position corresponds to the position of the director defined in the LLC Law (according to the agreement on the transfer of powers).

According to the results of the tax audit of LLC G. was brought to tax liability, he was additionally assessed income tax and VAT, as well as penalties and a fine. The tax inspectorate, having additionally charged taxes, insisted that the organization was not entitled to transfer part of the director's functions to the management company (and, therefore, to pay for such services to it and take this amount into account in its income tax expenses). The inspectorate argued that the LLC has the right to transfer either all the functions of the director, or none.

LLC "G." (the applicant) disagreed with the inspectorate's decision and applied to the arbitration court.

The court took the applicant's position because:

The LLC Law does not limit the scope of powers transferred to the management company, therefore, it is possible to transfer both all powers or part of them;
there is no duplication of managerial functions.

Requirements of LLC "G." were satisfied. The courts of appeal and cassation agreed with the court of first instance ().

If, nevertheless, the general director and the management company are left "at the helm" of the LLC, it is imperative to make sure that their powers are not duplicated. Otherwise, it can create not only tax risks, but also disputes over competence, which in practice will lead to destabilization in society.

What documents will the management company confirm its powers to the counterparties of the LLC?

Two groups of documents can be distinguished.

First, the documents that confirm that the management has been transferred to the management company:

the decision of the general meeting of participants of the LLC on the transfer of powers to it;
agreement on the transfer of powers to the managing organization;
extract from the Unified State Register of Legal Entities for LLC;
LLC charter.

Secondly, the documents that confirm the powers of the CEO of the management company:

the charter of the management company;
order on the appointment of the general director;
extract from the Unified State Register of Legal Entities for the management company itself;
decision of the general meeting of members of the management company on the election of the general director.

Often, the general director delegates the authority to manage the company to one of the employees of the management company. In this case, the powers of the latter must be confirmed by a power of attorney signed by the general director and with the seal of the management company attached. It is not required to certify such a power of attorney with a notary, since the general director of the management company acts on behalf of the company without a power of attorney ().

The agreement with the management company is signed by the chairman of the general meeting of participants, which approved the terms of the agreement, or a participant authorized by the general meeting.

If the management company is approved by the board of directors, the agreement is signed by the chairman of the board of directors or a person authorized by the board of directors ().

When transferring the powers of the director of the management company, it is necessary. "

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Managing organization- in fact, the same CEO, only being a legal entity. Exercising management of managed companies, it acts on their behalf without a power of attorney, on the basis of the founders' decision to transfer the powers of the sole executive body to it and an agreement on the indication of management services. Often, such a management scheme is resorted to in holdings, where one firm manages the affairs of each of the group of companies, thus ensuring a unified policy of their actions. The holding company creates a management company especially for itself (or the parent company becomes it). There are also specialized management organizations that offer their services to everyone. Firms who need to solve some strategic problems: get out of the crisis, achieve a certain position in the market, etc., turn to them as high-class managers. And finally, a management company may be needed within the framework of a well-known profit tax saving scheme: management services are ephemeral and expensive, and their cost, with proper justification and paperwork, reduces taxable income (clause 18, clause 1 of article 264 of the Tax Code).
The management company receives the powers of a permanent executive body of the company(in the usual management scheme, it is the CEO). The decision on the transfer of powers is made by a meeting of participants (in an LLC - clause 3 of article 42 of the Law of February 8, 1998 N 14-FZ) or a general meeting of shareholders (in a joint-stock company - clause 1 of article 69 of the Law of December 26, 1995 No. 208-FZ), while abolishing the position of director. These changes need to be reflected in the constituent documents. Information about the permanent executive body is part of the state register of legal entities. Companies are obliged to notify registrars, that is, tax officials, about any change in the information contained in it (clause 2 of article 17 of the Law of August 8, 2001 N 129-FZ). To do this, an application is submitted to the inspectorate in the form of P14001, in which there is a separate sheet "B" "Information about the person entitled to act on behalf of the legal entity without a power of attorney (management company)".

Note. Why is a management company better than a director:
- transfer of administrative and criminal liability from an individual - director - to the management company and its employees;
- less likelihood of misappropriation or waste of company funds;
- a unified policy for several firms of one owner;
- they conclude an employment contract with the director, and a civil law contract with the management company (contract for the provision of services). Legislation shifts labor relations towards protecting the rights of the employee, civil law relations are based on equality: you can prescribe a larger scope of tasks and significant measures of responsibility (you will not exact a fine from the director for poor work);
- greater control over the actions of the company's management. The founders can be sure that the management company will adhere to exactly the course that they need;
- reducing the number of employees, saving on wages and insurance premiums by outsourcing administrative functions.

And here it may turn out that the company must go to the register at the inspectorate at the location of the managing organization - if the places of their tax "registration" do not coincide. It sounds absurd, because the company controlled by the outside remains in its original place. However, a literal reading of the law confirms that its new legal address, which means that it should become the address of the management company, and at the actual address it will have to register with the inspectorate as its own separate subdivision. Moreover, all the obligatory interaction with funds - payment of insurance premiums, delivery of settlements, notification of opening bank accounts, etc. - must also take place in those departments to which the legal address of the company belongs.

The law is harsh. But stupid

In which inspectorate you need to register for tax, is determined by Art. 83 of the Tax Code. She establishes that firms are subject to tax registration at their location... The Civil Code (clause 2 of Art.54) calls the location of a legal entity the place of its state registration, which, in turn, is carried out at the location of its permanent executive body (in the absence of such, another body or person entitled to act on behalf of company name without power of attorney). Exactly the same provision is in the Law on State Registration of Legal Entities and Entrepreneurs of August 8, 2001 N 129-FZ (Clause 2, Article 8). The location of the Civil Code requires it to be indicated in the constituent documents (clause 3 of article 54, clause 2 of article 52). It is easy to guess that, when drawing up these norms, they simply did not think about the firms that use the services of management organizations.
So it turns out that the address of the managing organization, which has assumed the powers of the permanent executive body of the company, becomes the location of the latter. Hence the need to change the tax office. It turns out that the controlled companies in this case become hostages of the manager: every time the latter moves, all her "wards" will "run" after her on inspections.
As one might suppose, this will not suit the tax authorities themselves. The idea of tax accounting at the location of the company is based on the fact that the taxpayer controlled by a specific inspectorate is always available so that, if necessary, it can easily find him, contact him, check, get information from him, etc. It is unlikely that the inspectors will like to travel to another region for inspections, and such business trips would be expensive for the budget. In addition, the need to "register" the managed company at the address of the manager gives an unprofitable opportunity for inspectors to transfer tax disputes to courts that are convenient for the taxpayer (for example, to those in which there is a positive practice for him on a particular issue).
This state of affairs is not beneficial to local authorities either. They are unlikely to be delighted when the city's big business re-registers in another region. And finally, attracting a foreign company to the management of a foreign company that has no representative office in the Russian Federation, which is located somewhere in Cyprus and will manage the Russian trust organization from there, will lead the situation to a legal dead end: according to the letter of the law, it will come out that the latter no longer has a location in the Russian territory.
It is inconvenient to register at the location of the management company and for the managed organization itself. The "delights" of the procedure for switching to another tax office and subsequent interaction with geographically remote inspectors can seriously complicate the work. Having changed its own legal address to the address of the management company, the company will be obliged to indicate the latter in contracts, "primary organizations" and invoices. The discrepancy between the legal address and the actual one will inevitably alert contractors - tax claims against those who contact "problem" suppliers are on everyone's lips. The OJSC will also face one more difficulty: transferring the legal address to another region gives shareholders the opportunity to demand the redemption of their shares at a market price, if this restricts their right to manage the company (clause 1 of article 75 of the Law of December 26, 1995 N 208- FZ).
However, there was a time when the tax authorities did not stop all these difficulties. Back in 2003, the tax service, which was then still the Ministry of Taxes and Duties, explained that when transferring powers over the management of the management company, it is necessary to register with tax records at its location (Letter dated October 7, 2003 N 09-1-02 / 4826-AK241). True, already in 2005 the FTS expressed the opposite position, responding to the request of its department in the Leningrad Region (Letter of October 11, 2005 No. 09-1-04 / [email protected]).
Since then, the tax service has not officially expressed itself on this issue, but it can be assumed that officials, at least federal officials, no longer want to create problems for themselves and companies from scratch. This conclusion follows, in particular, from the Letter of the Ministry of Finance of Russia dated July 9, 2009 N 03-03-06 / 1/455, containing an answer to a particular question about where the managed company should submit a profit tax return - in its city or at the location of the management company. The finance department supported the first option, but found it difficult to justify. We limited ourselves to the above-mentioned references to the norms of the Civil Code and the Law on State Registration on the location of a legal entity, which, as we see, confirm just the opposite.
However, there is no official explanation of the Federal Tax Service as a registrar of legal entities, therefore, as practice shows, local tax authorities act differently: somewhere they insist on changing the legal and tax "registration", somewhere - no. Therefore, it is better to insure yourself: when attracting a management company, do not immediately decide to change the location of the company indicated in the constituent documents and submit an application in the P14001 form with the same address. It is possible that the tax office will register the changes and so.

Note. Local inspectors act differently: somewhere they insist on changing the legal and tax "registration", somewhere they do not. Therefore, when attracting a management company, it is better not to change the location of the company in the constituent documents and submit an application in the P14001 form with the same address. Perhaps the tax office will register the changes anyway.

Otherwise, faced with the requirement of the inspectorate to register at the address of the management company, you need to try to convince the tax authorities that this is disadvantageous, first of all, to themselves. If this does not work out, it remains either to try to keep the previous legal address through the court, or to get around the problem by formally building relations with the management company in a slightly different way.

Spirit over the letter

Going to court, you need to appeal the refusal of the tax inspectorate to register the change in information about the permanent executive body of the company without changing its location. The court practice on such disputes cannot be called extensive, but from the existing one, we can say that arbitration is against changing the legal address to the address of the management company. Judges, as they should, are guided primarily by the spirit of the law, and not by the letter. And the spirit of the law assumes that the legal address of the company and its tax "registration" must coincide with its actual location.
So, the Federal Arbitration Court of the West Siberian District in its Resolution of April 24, 2008 N F04-2610 / 2008 (4132-A27-3) came to the conclusion that paragraph 2 of Art. 54 of the Civil Code connects the location of the organization with the location of its executive body only at the time of state registration. At the same time, the transfer of the functions of the sole executive body to another person subsequently does not change the legal address of the company. In another Resolution (dated February 26, 2007 N F04-678 / 2007 (31652-A75-40)), the same court indicated: since the location of the company is essential for determining its legal capacity, jurisdiction of disputes, resolving issues related to payment taxes and other mandatory payments, then the temporary transfer of the functions of a permanent executive body to the managing organization should not change the location of the legal entity and deprive the regulatory authorities of the opportunity to audit its activities. According to the court's conclusion, such a transfer of powers does not mean that the firm does not have a permanent executive body or that its location changes. Similar conclusions were made in the Federal Arbitration Court of the Moscow District (Resolution of May 16, 2001 N KA-A40 / 2335-01).
Indeed, the management company does not become a permanent executive body of the firm; it only temporarily receives its powers. Therefore, it can be considered as a person who exists in parallel with him, to whom all his powers are temporarily transferred and who has the right to act on behalf of the company without a power of attorney.

The place where the manager is found

Pay attention to pp. "in" clause 1 of Art. 5 of the Law on State Registration. It defines the location of a permanent executive body as the place where communication with a legal entity is carried out. Obviously, even after the transfer of management functions to a third-party organization, you can still contact the firm at its actual address. It is there, most likely, that the executive director will constantly work (an employee of the management company, whom she entrusts with the conduct of the affairs of the managed organization).
As an argument for retaining the previous legal address, an analogy is often drawn with an ordinary director: the organization at his place of residence is not registered. Because the place of his location as a general director is his permanent workplace, that is, the address at which communication with him - directly or through the employees of the organization - is carried out. Location, after all, means "a place where one can find". The same is with the management company in the role of the general director: the place of registration of this company itself as a legal entity does not matter - it will manage the company, which remains at its former address. Typically, an employee of the management company, whom it entrusts to manage the affairs of the trust company, constantly works on the territory of the latter. By the way, the managing organization in this case usually registers its separate subdivision at the address of the managed firm, since a workplace is created there for its employee.

Minister without portfolio

However, you can try to completely avoid disputes about changing the address, initially at a formal level, building relations with the management company in a slightly different way. To do this, it is necessary to transfer to it only a part of the powers of a permanent executive body, retaining the position of the general director and leaving behind him some insignificant functions like representative ones. The legislation does not prohibit this. However, the norms of civil law do not directly provide for the possibility of splitting the powers of a permanent executive body - and this is one of the risks.
Another risk is the inspectorate's failure to recognize the costs of the management organization's services: the tax authorities may doubt the need for its services despite the fact that the director has remained in his place. To reduce this risk to a minimum, it is necessary to very clearly prescribe the delineation of powers between the director and the management company, as well as prepare a justification for the need for its services with the current director.

I. General Provisions.
1.1. The General Director of the Management Company MKD (Housing and Communal Services) (hereinafter referred to as the MC) belongs to the category of managers.

1.2. A person with a higher education in a technical or economic orientation is appointed to the post of General Director; and work experience in a managerial position for at least 5 years (in construction, production of building materials, housing and communal services, etc.); ability to manage personnel, organize work and control its execution.

1.3. The general director reports directly to the general meeting of the founders of the organization that performs the functions of the management company.

1.4. Appointment to the post of General Director and dismissal from it is made by the decision of the general meeting of founders.

1.5. Director General of the MC are directly subordinate to
Executive Director,
Deputy General Director for Marketing,
Lawyer, Chief Accountant,
Heads of structural divisions,
Office manager / secretary of the management company.

1.6. During the absence of the General Director, his duties are performed by an employee of the management company appointed by the order, belonging to the category of managers, who is responsible for their high-quality, effective and timely implementation.

1.7. An irregular working day is set for the CEO of the Criminal Code.

1.8. In his work, the General Director of the MC should be guided by:

(Knowledge of the CEO should cover many aspects of the activities of the housing and communal services in general and the Criminal Code in particular.).
1) the requirements of the current legislation of the Russian Federation;
2) legislative and regulatory legal acts regulating the production, economic and financial and economic activities of the organization,
3) decrees of federal, regional and local bodies of state power and administration that determine the priority directions of development of the economy and the relevant industry;
4) methodological and regulatory materials of other bodies concerning the activities of the organization;
5) the Charter of the Company and other internal regulations of the Company;
6) this Job Description.
1.9. The CEO of the management company should know:
1) profile, specialization and features of the structure of the organization;
2) production capacity and human resources of the organization;
3) tax, civil and environmental legislation;
4) the procedure for drawing up and agreeing business plans for the production and economic and financial and economic activities of the organization;
5) market methods of business and management of the organization; a system of economic indicators that allow an organization to determine its position in the market and develop programs for entering new sales markets;
6) the procedure for the conclusion and execution of business and financial contracts;
7) market conditions;
8) management of the economy and finances of the organization,
9) the organization of production and labor;
10) labor legislation; labor protection legislation, labor protection rules and regulations.

1.9. Must have experience with a personal computer, software products.

II. Job responsibilities

(The functions of this position are concentrated in constant control over the continuous provision of residents of apartment buildings with the highest quality services, without disruptions and accidents. The General Director of the Housing and Utilities Management Committee must know everything about the state of affairs of the enterprise, including finances, and have information about the work of each of its employees )

2.1. The direct responsibilities of the General Director of the Criminal Code include:

1) Management in accordance with the current legislation of the production, economic and financial and economic activities of the organization.
2) Organization of work and effective interaction of all structural units, the direction of their activities to develop and improve production, taking into account social and market priorities.
3) Improving the efficiency of the organization, increasing sales of products and increasing profits, quality and competitiveness of manufactured products, its compliance with international standards in order to conquer the domestic and foreign markets and meet the needs of the population in the relevant types of domestic products.
4) Ensuring that the organization fulfills all obligations to the federal, regional and local budgets, state extra-budgetary social funds, suppliers, customers and creditors, including bank institutions, as well as economic, labor contracts and business plans.
5) Organization of production and economic activities based on the widespread use of the latest technology and technology, progressive forms of management and organization of labor, scientifically based standards for material, financial and labor costs.
6) Study of market conditions and advanced experience (domestic and foreign) in order to improve the technical level and quality of products (services), the economic efficiency of its production, rational use of production reserves and economical use of all types of resources.
7) Organization of providing the management company with all the necessary material and technical conditions of activity.
8) Taking measures to provide the management company with qualified personnel, rational use and development of their professional knowledge and experience, create safe and favorable working conditions for life and health, and comply with the requirements of legislation on environmental protection.
9) Ensuring the correct combination of economic and administrative methods of leadership, one-man management and collegiality in discussing and resolving issues, material and moral incentives to increase production efficiency, applying the principle of material interest and responsibility of each employee for the task entrusted to him and the results of the work of the entire team, payment of wages in deadlines.
10) Together with the labor collective and trade union organizations, on the basis of the principles of social partnership, ensures the development, conclusion and implementation of a collective agreement, observance of labor and production discipline, contributes to the development of labor motivation, initiative and activity of workers and employees of the Criminal Code
11) Development and approval of the staffing table of the Criminal Code of other local regulatory legal acts, the organization of certification, the organization of training for subordinate employees of the branch.
12) Resolving issues related to the financial, economic and production and economic activities of the Criminal Code, within the limits of the rights granted to it by legislation, assigning the conduct of certain areas of activity to other officials - Deputy General Directors, heads of production units and branches of the Criminal Code, as well as functional and production divisions:

conclude contracts with suppliers of energy resources (water, electricity, heat, gas);
control timely payment to resource suppliers;
in accordance with the plans to organize the implementation of current repairs in the common areas of houses;
control the implementation of routine and preventive repairs of technological equipment (pumps, boilers, elevators, etc.);
coordinate the activities of the management company specialists on the correct operation of external and internal highways and networks;
take measures to improve the improvement of the territory adjacent to the house;
control the financial condition of the management company;

13) Providing, at the request of authorized state bodies and other organizations, the provision of information and reporting on the activities of the Criminal Code in accordance with the procedure established by law and internal documents of the Criminal Code.
14) Ensuring the safety of material assets belonging to the Criminal Code.
15) Ensuring compliance with the rule of law in the activities of the Criminal Code and the implementation of its economic and economic ties, the use of legal means for financial management and functioning in market conditions, strengthening contractual and financial discipline, regulating social and labor relations, ensuring the investment attractiveness of the Criminal Code in order to maintain and expand the scale entrepreneurial activity.
16) Protection of the property interests of the Criminal Code in court, arbitration, public authorities and administration.

III. Rights.

3.1. The General Director of the Management Company has the right to:

1) Draw up and sign financial, reporting and other documents related to the level of his competence.
2) To represent the interests of the Criminal Code without a power of attorney in relations with citizens, legal entities, institutions, organizations, state authorities and administration.
3) To conclude and terminate on behalf of the Criminal Code any types of contracts, including labor contracts.
4) Open all types of MC accounts in banks.
5) Approve and sign the job descriptions of subordinate employees, orders, instructions, give instructions within their competence that are binding on subordinate employees.
6) Approve the Internal Labor Regulations and other local regulatory documents of the Company that are within its competence.
7) Dispose of the property and funds of the Criminal Code.
8) Issue powers of attorney.
9) Approve the staffing table of the Criminal Code.
10) Recruit and fire employees of the Criminal Code.
11) Encourage and bring to disciplinary and material responsibility of the employees of the Criminal Code
12) In accordance with the legislation of the Russian Federation, determine the system, forms and amount of remuneration and material incentives for employees of the Criminal Code. Ensures the implementation of the collective agreement;
13) Submit issues related to his activities and within his competence for consideration by the general meeting of the founders of the organization in the manner determined by the legislation of the Russian Federation and the Charter of the organization.
14) Obtain the necessary clarifications from the subordinate employees of the Criminal Code.
15) Make decisions within their competence, for example, coordinate calculations and approve tariffs, contractual prices for services;

IV. A responsibility.

(The CEO of the Criminal Code mustbe responsible to municipal authorities and residents for the quality of the enterprise, etc.)

4.1. The General Director of the Management Company bears the responsibility stipulated by the legislation of the Russian Federation and this job description:

1) For poor quality and untimely fulfillment of duties and failure to fulfill the rights provided for by this Job Description.
2) For losses caused to the Company by its guilty actions (inaction) in the process of performing the functions and duties provided for by this Job Description.
3) For disclosing information containing commercial secrets. The general director is obliged to maintain the confidentiality of information about the management company and not use it in his personal interests.
4) For the consequences of the decisions taken, the safety and efficient use of the property of the Company, as well as the financial and economic results of its activities - in accordance with the Charter of the Company and current legislation.
5) For causing material damage to the Criminal Code - within the limits determined by the current labor and civil legislation of the Russian Federation.
6) For offenses committed during the period of their activities - in accordance with the current civil, administrative and criminal legislation.
7). The General Director of the Company bears personal responsibility for the consequences of decisions made by him that go beyond the limits of his powers established by the current legislation, the Charter of the Company, and other regulatory legal acts. The General Director of the Company is not released from liability if the actions entailing liability were taken by persons to whom he delegated his rights.
8. The General Director, who uses the property and funds of the Company in bad faith in his own interests or in the interests of those opposite to the interests of the founders, shall be liable within the limits determined by civil, criminal and administrative law.

The powers of the head of a business company can be exercised both by an individual who is its head (director, general director, president, etc.), so the exercise of the powers of the sole executive body (IO) of the managing organization (manager) can be transferred under an agreement. The corresponding possibility is established by Article 42 of the Law on Limited Liability Companies (Law on LLC) and paragraph 1 of Article 69 of the Law on Joint Stock Companies (Law on JSC).

In this case, the managing organization can be - a commercial organization of any organizational and legal form. A person with the status of an individual entrepreneur can act as a manager.

The authority to decide on the transfer of the powers of the CEO to the managing organization (manager) falls within the competence of the general meeting. In addition, a special requirement has been established for joint-stock companies, which consists in the possibility of considering the issue of transferring the powers of the CEO to the management company (manager) only if such a proposal is made (SD). The powers of the General Meeting of Shareholders (GMS) in terms of the possibility of transferring the powers of the CEO to the managing organization cannot be transferred to the Board of Directors. Information on the transfer of powers to the managing organization is subject to entry into the Unified State Register of Legal Entities (USRLE).

The benefits of delegating authority to the CEO to the managing organization include:

- Improving the efficiency of the business entity due to the professionalization of its current management;

- Reduced management costs.

- Possibility of attributing the costs of paying for the services of the managing organization to costs that reduce taxable profit.

In the case of using a management organization for the purpose of organizing management in a group of companies (holding), the listed advantages are expanded by the following additional capabilities:

- Ensuring operational control and current management of the activities of subsidiaries (controlled) companies using direct administrative influence.

- Reducing management costs for the group of companies (holding) as a whole.

- Increasing the influence of the main company on the heads (managers) of subsidiary (controlled) companies who are employees of the management organization.

At the same time, it would be unfair to say that the transfer of powers of the CEO to the managing organization (manager) is extremely beneficial and devoid of disadvantages. The negative aspects of attracting a management company may include:

- Bureaucratization of management, manifested in the complication of the procedures for approval and management decisions.

- Tightening tax control over financial transactions carried out within a group of companies (holding).

- The possibility of bringing the sole executive body of the managing organization to administrative and criminal liability for offenses related to the activities of the managed company.

- The need to obtain the consent of the antimonopoly service to transfer the powers of the CEO to the managing organization (manager).

- Recognition of the managing organization (manager) and the controlled company by a group of persons and the consequences corresponding to such recognition in the form of antimonopoly control.

Obviously, the most acute of the listed problems is the problem of the emergence of additional tax risks. At present, the position of the tax authorities is quite widespread, according to which the transfer of powers of the head of an organization to a management organization with a high degree of probability can be attributed to the so-called "scheme" of concealing income from taxation. In order to minimize the emerging tax risks, it is recommended to carefully consider the following main points that cause increased attention of the tax authorities:

1. The need to attract a managing organization (manager) must be economically justified and expedient.

2. The functions provided by the managing organization should not be duplicated by the functions performed by the regular employees of the managed organization.

3. The amount of payment for the services of the managing organization must be economically justified and as detailed as possible.

4. The need to develop and properly comply with the rules of workflow between the managing and controlled organizations.

The procedure for transferring the powers of the CEO to the managing organization can be conditionally presented in the form of the following stages:

1. Stage of selection (selection or creation of an appropriate managing organization).

2. Coordination of the managing organization (manager) with the antimonopoly authorities in accordance with paragraph 8 of part 1 of Article 28 of the Law "On Protection of Competition".

3. Development of the terms of the contract with the managing organization and approval of its Board of Directors in accordance with subparagraph 18 of paragraph 1 of Article 65 of the JSC Law.

4. Adoption of a decision on the transfer of powers of the sole executive body to the management organization of the OCA. As noted above, such a decision can be made by the OCA exclusively at the suggestion of the Board of Directors (paragraph 3 of paragraph 1 of Article 69 of the Law on JSC)

5. Appointment (election) of a specific managing organization in accordance with subparagraph 8 of paragraph 1 of Article 48 of the JSC Law. In contrast to the provisions defining the authority to transfer management in the company to the managing organization, making a direct decision on the choice of a specific managing organization can be attributed to both the powers of the GMS and the powers of the Board of Directors.

6. Approval of an interested party transaction (Chapter XI of the JSC Law) by the relevant competent authority (BoD or OCA).

7. Signing an agreement with the managing organization in accordance with paragraph 2 of paragraph 3 of Article 69 of the JSC Law.

In accordance with the concluded contract, the managing organization provides the managed organization with services that can be conditionally divided into two groups. The first group consists of services related to the implementation of the organizational and managerial powers of the CEO. In accordance with them, the managing organization:

— acts on behalf of the company without a power of attorney;

- concludes transactions on behalf of the company;

- signs other documents of the company;

- exercises the powers of the employer in relation to the employees of the company;

- issues powers of attorney to carry out certain actions on behalf of the controlled company;

- performs other organizational and managerial powers.

The second group consists of additional management and service services. These may include services for:

— planning;

- financial control;

- investment development;

- innovation;

- personnel management;

- legal support;

- asset management;

- accounting, tax accounting;

Marketing;

- other additional management and service services.