| Yuri Kostopravkin Graduated as lawyer from the National Business Institute. Has worked in the field of jurisprudence for 5 years. Since 2012 has been with the BDO Unicon Outsourcing company, responsibilities including the registration, in the Russian Federation, of legal entities, offices and representations of BDO's client companies, the opening and closing of autonomous units, etc. |
Tax agencies may liquidate companies, if their legal addresses are different from their actual locations and if they receive no mail. To avoid this, companies may either re-register their legal addresses so that they become the same as their actual locations or make agreements with the postal service to either keep subscriber mailboxes or have their mail transferred to their actual addresses.
In the middle of the last year, the Plenum of the Supreme Arbitration Court of the Russian Federation allowed tax agencies to go to courts of law and liquidate companies if they are not located at their legal addresses and receive no legally significant mail sent to them*(1).
The decree of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 61 dated July 30, 2013.
What should a company do so as not to be excluded from the single state roster of legal entities? There are several ways to avoid this problem.
To begin with, let us find out the meaning of a company's "legal address".
The current legislation has not a single reference to this. Yet practically, the location of the organization shown in its state registration is regarded as its legal address*(2).
A legal entity is registered at the location of its permanent executive body or, if there is none, at the location of another body or person that has the right to act on behalf of that legal entity without having a Power of Attorney*(3). Information about the locations of the permanent executive bodies of legal entities must be entered in the single state roster of legal entities*(4).
The re-registration of the legal address
The only sure way out of this situation is to register the company's actual location as its legal address. To do this, the organization's founding documents must be amended and the amendments registered in the state roster of legal entities.
Article 52 of the Civil Code reads that legal entities' founding documents may include their charters and founding agreements or just the founding agreements, depending on organizational legal forms.
Let us consider the case when the company charter is the only founding document.
According to Russia's legislation*(5) the company charter must contain information about the company's location. This means that when a company is relocated, its charter must be amended accordingly. Within three business days after the relocation, the company must supply documents needed for the state registration of such amendments to the registering agency.
The documents needed for the state registration of amendments of the charter are as follows*(6):
1) a form N Р13001notarized application for the state registration signed by the CEO of the organization or another person who has the right to act on behalf of that organization without having a Power of Attorney;
2) the decision/minutes for amending the charter;
3) the amendments: either the new version of the charter or a list of amendments of it;
4) the receipt confirming that the state dues have been paid.
There is no requirement of supplying documents confirming the address to the tax agency at the time of registration. Yet tax inspectors suggest that such documents be supplied so as to avoid complications registering the amendments.
The amendments must be registered within five business days after the documents are supplied to the registering agency*(7).
Where third parties are concerned, such amendments go into force at the moment of their state registration.
Making an agreement with the post office
What should you do if there is no way to register the amendments soon enough?
Until the amendments are registered, the company must assure the timely receipt of mail sent to its legal address.
This may be done in one of the following three ways:
1. Make an agreement with the landlord of the place used as the legal address for them to collect arriving company mail.
2. Make a postal service agreement with the post office servicing the location of the legal address.
3. Make an agreement with the post office servicing the location of the legal address for the redirection of mail.
Let us consider each of the three ways.
In the first case, the landlord, given a Power of Attorney by the organization's general director, collects all company mail at the post office. However, sometimes this is impossible, so the company has to use one of the other two ways.
The second way is making a postal service agreement with the post office at the location of the legal address.
This means that all the company mail will be held at the post office until requested by a company employee, which reduces the risk of the non-delivery of legally significant mail. The mail may be collected by either the CEO of the company or someone they trust.
Actually, this agreement is usually supplemented by a subscriber mailbox agreement. This greatly simplifies the procedure of receiving documents. Arriving mail remains in the subscriber mailbox and, unlike in other cases, may be collected without any special documents confirming the authority of whoever collects it. All that is needed is the key to the box.
The company also may make an agreement for the redirection of all its mail. The CEO of the company may indicate any other address. This is usually done when the company has no way to use a Power of Attorney to collect its mail. In this case, the CEO of the organization, carrying documents confirming their authority (usually an extract from the single state roster of legal entities and a decision/minutes confirming their appointment as CEO) fills in all the necessary forms and pays the amount due. As soon as such an agreement is signed, all mail will be sent to the address indicated therein.
This is to say that if a company is not located at its legal address and cannot assure the prompt delivery of its mail it must ASAP and in due way amend its founding documents accordingly and register the amendments with the registering agency so as to avoid the risk of being excluded from the single state roster of legal entities.
The tax Code of the Russian Federation
Yuryi Kostopravkin,
Lawyer , BDO Unicon Outsourcing
Opinion: Be prompt updating the single state roster of legal entities
Sergei Tarakanov, 2nd class state civil service councilor
Because, according to paragraph 6 of the decree of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 61 dated July 30, 2013 "On certain practical issues related to the settlement of conflicts related to the trustworthiness of addresses of legal entities" the procedure of liquidation is initiated by lawsuits filed by registering agencies, courts of law take measures to notify persons who have the right to act on behalf of legal entities without having Powers of Attorney and the founders or stockholders of legal entities by sending then notifications of the initiation of such lawsuits to their known locations.
A note is in order that violations related to the addresses of legal entities are eliminable, therefore the liquidation procedures may be stopped at any time. This is to say that lawsuits filed by registering agencies will, most often, cause the elimination of such violations as a response.
Considering the fact that, since the procedure of expulsion of legal entities that ceased functioning from the single state roster of legal entities was instituted, it was successfully applied to about a million and a half such organizations, filing lawsuits for liquidation will continue and, undoubtedly, will have certain effect.
It must be said that the procedure of eliminating violators was instituted before the said decree of the Plenum of the Supreme Arbitration Court of the Russian Federation was enacted.
Yet I believe that the new edition of Article 31 of the Tax Code was adopted in 2013 (approved by the Federal Laws No. 248-FZ dated 23.07.2013 and No. 134 FZ dated 28.06.2013 ) will be far more effective.
According to its provisions, documents sent to organizations by tax agencies by registered mail will be legally considered received on the sixth day after mailing.
The very existence of this norm should stimulate organizations to keep thei addresses shown in the single state register of legal entities – up to date.
"Actual Accounting", No. 4, April 2014
───────────────────────────────────────────────────────────────
*(1) Paragraph 6 of the of the decree of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 61 dated 30.07.2013
*(2) Item 2 of Article 54 of the Civil Code of the Russian Federation
*(3) Item 2 of Article 54 of the Civil Code of the Russian Federation; Item 2 of Article 8 of the Federal law No. 129-FZ dated 08.08.2001 (hereinafter law No. 129-FZ)
*(4) Subitem "v" item 1 Article 5 law No. 129-FZ
*(5) Item 2 of Article 12 of Federal Law No. 14-FZ dated 08.02.1998
*(6) Article 17 law No. 129-FZ
*(7) Article 8 law No. 129-FZ
