4 conditions when you can 100% protect the assets of your business.
The problem of protecting business assets is acute and obvious. Since 2017, new rules of subsidiary liability have been working, the opportunity has arisen to foreclose on property, bypassing the bankruptcy procedure. And for the “abandoned” companies, too. The Federal Tax Service acquired exclusive powers to recover tax arrears, including from business beneficiaries.
All of the above indicates that the separation of property into a separate company in itself does not provide any protection at all.
Even hidden business ownership can fail. Since the introduction of nominees as a “custodian of assets” is rare for business owners because of fears of losing business control. And your substitution of yourself as nominees in operating companies provides an opportunity for lenders to use the testimonies of employees and contractors, which are likely to indicate the true person who makes management decisions, and therefore subject to property liability.
An alternative and safe way to protect property can be a “production cooperative.” Subject to certain conditions, its use as a “custodian of assets” gives an unprecedented level of guarantees of the inviolability of property.
In recent years, the “Production Cooperative” (PC) has been actively advertised at tax seminars as a way of legitimate savings on insurance premiums, which, strictly speaking, is not true. Now they are talking about his potential in protecting property, as about another magic pill.
Years of experience with our introduction of PCs in the group of medium-sized companies revealed a number of nuances. Those that definitely do not allow the cooperative to be used as widely as it can now be advertised. Given the possible negative, even destructive result of the widespread use of PCs and the illusions generated at seminars in the heads of business owners, we are forced to discover the “chips” of the real use of the cooperative to protect business assets.
1. About the cooperative
This is the same form of legal entity as LLC, JSC and other less popular partnerships and partnerships. By its nature, it is a form of self-employment of citizens who combine their work to achieve some kind of joint result. A cooperative, in spite of its name, is not at all obliged to be engaged only in production activities. Instead of the authorized capital, he has a mutual fund, the minimum amount of which is not legally established. The activities of production cooperatives are regulated by art. 106.1-106.6 of the Civil Code of the Russian Federation and a separate Law.
Members of a cooperative work in a cooperative without concluding labor contracts with it. At the same time, you can also take on hired workers, but their number cannot be more than 30% of the number of members. The members of the cooperative are not taken into account when calculating the average number of employees, which allows such an organization to use the simplified tax system even when this number exceeds 100 people.
Nuance: All members of the cooperative are reflected in the register. Long gone are the days when the register of shareholders was maintained by the organization itself. Believe me, here we have been keeping our finger on the pulse for a long time.
2. About membership
The cooperative must have a minimum of 5 members at least 16 years old. Legal entities may participate in their composition, but this should be expressly provided for in the charter.
Nuance: Of the five mandatory founders, only one may not work, exclusively paying for its share. Accordingly, if we need to include a legal entity in the membership, then there must be at least 4 more citizens among the members.
Conclusion on the point: the first obvious difficulty in using the cooperative is where to get five members? Especially if we want to use it as a custodian of assets. Infrequently in business 5 or more partners. As a rule, – 2 with shares of 50/50. Consequently, the possibilities for using a PC are already less. Of course, you can include the denominations (friends, children, other relatives), but in this version it is a guaranteed time bomb. Why? We are patient and continue to read.
3. On the mutual fund and mutual contributions
The cooperative has a Mutual Fund. The founders shall determine its size and the size of the share contribution in the charter. The unit contribution may be money, securities, other property, including property rights and other objects of civil rights. The assessment of the share contribution is carried out during the formation of the cooperative by mutual agreement of the founders, and when new members join the PC, the commission appointed by the board of the cooperative. The assessment of a share contribution in excess of two hundred and fifty minimum wages is carried out by an independent appraiser.
Nuance: following the letter of the law, it can be assumed that all members of the cooperative may have the same share size, maximum in the unit fund they may own several units that are multiples of the amount established in the charter. In practice, everything is again much more flexible, and the sizes of contributions to the mutual fund of specific founders can be set different. How the founders agree.