Dividend payment procedure in jsc - legal services of legas company. New procedure for the payment of dividends Procedure for the payment of dividends in a joint-stock company in a year

Glushetskiy A.A. Professor High school finance and management of the RANEPA under the President of the Russian Federation, general manager Center for Corporate Strategies, Doctor of Economics, Deputy editor-in-chief of the weekly "Economics and Life"
Journal "Joint-stock company: corporate governance issues", No. 4 for 2013

Federal Law of December 29, 2012 No. 282-FZ "On Amendments to Certain legislative acts Russian Federation and invalidation individual provisions Legislative Acts of the Russian Federation "amendments and additions were made to the federal laws" On Joint Stock Companies "and" On the Securities Market ".

The chapter of the shareholder law devoted to dividends has been modified to the greatest extent. The procedures for declaring and paying dividends were substantially reformed; installed:

• new requirements for the content of the decision to pay (declare) dividends;
• new rules for determining persons entitled to receive dividends;
• new rules for calculating the timing of dividend payment;
• the place and time of the fulfillment of the obligation to pay dividends in monetary form;
• new order payment of dividends to shareholders whose rights to shares are accounted for by a nominee;
• delimited the consequences of late payment of dividends due to the fault of the company (the debtor) and the fault of the shareholder (delay of the creditor);
• a new definition of the concept of "unclaimed dividends" has been given.

These innovations come into force on January 1, 2014. Payment of dividends for 2012 and interim dividends during 2013 will be held under the old rules.

Dividend- a part of the company's net profit, subject to distribution among its shareholders, per share of the corresponding category and type.

Payment of dividends on shares of all categories and types (including preferred shares with the dividend amount specified in the company's charter) is a right, not an obligation of the company.

The company has the right to declare dividends on its shares, but is not obliged to do so. The company has the right to make decisions on the payment (declaration) of dividends on outstanding shares based on the results of the first quarter, six months, nine months. fiscal year and / or based on the results of the financial year. The decision to pay (declare) dividends based on the results of the first quarter, six months and nine months of the financial year may be made within three months after the end of the relevant period. The decision to pay (declare) dividends is made only by general meeting shareholders. In the absence of a decision to declare dividends, the company is not entitled to pay dividends, and shareholders are not entitled to demand their payment.

The decision to pay (declare) dividends can be either an independent issue on the agenda of the annual general meeting of shareholders, or part of the issue of distribution of profits based on the results of the financial year.

The amendments and additions made to the shareholder law established new requirements for the content of the decision to pay (declare) dividends. This decision now does not set the deadline for the payment of dividends, but fixes the date on which the persons entitled to receive dividends are determined. The dividend payment period is calculated from this date (see below).

Determination of the procedure for the payment of dividends is required only if the dividend is paid in non-cash form - for example, in shares or other securities of the company. The procedure for the payment of dividends in cash is now imperatively regulated by law (see below).

Some components of the decision to declare dividends are formed only at the suggestion of the board of directors. The amount of dividends may not exceed that recommended by the board of directors (supervisory board) of the company. The decision of the general meeting on the declaration of dividends in terms of setting the date on which the persons entitled to receive dividends are determined is taken only at the suggestion of the board of directors (supervisory board) of the company.

Table 1. Decision to pay dividends

For the purpose of paying dividends, the issuer determines the persons entitled to receive them. According to the previously valid version of the relevant article of the law, the list of these persons was drawn up as of the date determined by the board of directors to draw up a list of persons entitled to participate in the general meeting. Both lists were compiled from the register data for one day. The list of persons entitled to a dividend was a modification of the list of persons entitled to participate in the general meeting of shareholders.

Table 2. List of persons entitled to receive dividends

This approach simplified the procedure for drafting these technical documents, but was in conflict with the nature of the action. After the date on which the lists of persons entitled to participate in the general meeting and receive dividends were drawn up, the assignment of shares could take place. At the same time, the right to a dividend did not follow the share, but was "split off" from it and was certified not by a security, but by some list, which, along with the register, certified the rights from the security.

The optimization of the technology of the corporate procedure for drawing up the technical list came into conflict with the nature of the stock as a security. When a share is transferred to a new owner, all the rights certified by it are transferred in aggregate; it is impossible for a part of the rights to "split off" from the security and follow separately from it. The professional literature indicated that the circle of persons entitled to dividends cannot be determined before the decision of the general meeting of shareholders on the declaration of dividends, which gives rise to this right.

The law has been amended to establish a new procedure for determining the circle of persons entitled to receive a dividend.

The fixation of persons entitled to receive dividends takes place in a special document called “the list of persons entitled to receive dividends”. There are no legislative requirements for the form and content of this document. The issuer has the right to determine them independently, providing in it the information necessary for:

• identification of persons to whom the declared dividends are due,
• accrual of dividends,
• withholding necessary taxes,
• transfer of dividends.

Previously, on the basis of the register data, for a certain day, two lists were drawn up, largely similar in content - a list of persons entitled to participate in the general meeting of shareholders, and a list of persons entitled to receive dividends. Now these lists are compiled at different points in time and reflect the different composition of persons, and also contain different information about the number of shares in their possession.

The requirements for the date of dividend payment have changed significantly, and the rules for determining it have become more complicated. The beginning of the period for the payment of dividends is tied not to the date of the decision to pay (declare) dividends, but to the date on which the persons entitled to receive dividends are determined.

Table 3. Dividend payment deadline

The specified date is now not fixed, as before, but is determined by the general meeting of shareholders as part of the decision to pay (declare) dividends. The timing of dividend payments differs depending on who they are paid to.

• As a general rule, dividends are paid within no more than 25 working days from the date of compiling the list of persons entitled to receive dividends.
• For the payment of dividends to the nominee holder and trustee, who are registered in the register of shareholders, a shorter period is set - no more than 10 working days from the date of compiling the list of persons entitled to receive dividends.

It should be noted that the period of time within which the date on which the persons entitled to receive dividends is determined is calculated in calendar days, and the period for payment of dividends, starting from this date, is calculated in working days.

Dividend payment deadline- the period of time during which the company makes settlements with shareholders has decreased from 60 to 25 days. But the course of this period now begins not from the date of the decision to declare dividends, but later - from the date of compiling the list of persons entitled to receive dividends.

Here is the calculation of the longest possible period of time, after which the obligation of the company to pay dividends must be fulfilled. The date on which the persons entitled to receive dividends are determined is determined on the 20th calendar day after the decision to declare dividends is made (the date of the general meeting of shareholders).

Dividend payment deadline- within 25 working days from the specified date.

In total, the payment of dividends must begin on the 21st calendar day after the date of the decision to declare them and be made within 25 working days.

The company can fulfill its obligation to pay dividends (transfer of funds to shareholders, nominees and trustees) within 25 working days. In this case, the priority of the fulfillment of the obligation during this period is determined by the company independently. The requirement that dividends must be paid to all shareholders at the same time has been dropped from the law.

Payment of dividends must be completed in 50-55 calendar days (depending on the number of days off and holidays) from the date of their announcement.

Dividends paid through a nominee holder

Changes have been made to the procedure for the payment of dividends to shareholders whose rights to shares are recorded not in the register of shareholders, but with a nominee holder.

By current edition of the law, the nominee holder did not participate in the payment of dividends. He was obliged to disclose to the issuer data on the persons in whose interests he owns the shares. Based on these data, a list of persons entitled to receive dividends was compiled.

Now in this list there is no need to indicate the shareholders whose rights to shares are registered with the nominee holder.

The issuer transfers dividends to the nominee holder for the number of shares listed in his account in the register, and the nominee holder transfers the dividends to his depositors. The degree of confidentiality of the shareholder, who takes into account his rights with the nominee holder, has increased.

According to paragraph 1 of Art. 8.7 Federal Law "On the Securities Market" from January 1, 2014

holders of shares and registered bonds (hereinafter in this article also - securities) and other persons exercising rights in securities in accordance with federal laws, whose rights to securities are recorded by the depository, receive dividends in cash on shares, as well as income in in cash and other cash payments on registered bonds (hereinafter in this article - payments on securities) through the depository, of which they are depositors.

As noted above, the shortened period for the transfer of dividends to the nominee holder and trustee, which are registered in the register of shareholders, has been established - no more than 10 working days from the date of compiling the list of persons entitled to receive dividends. The term has been established within which the depository must transfer dividends to its depositors - no later than five working days after the day of their receipt (clause 3 of article 8.7 of the Federal Law "On the Securities Market" as amended from 01.01.2014).

Thus, the period for receiving dividends by shareholders who take into account their rights in the depository (from the nominee holder) is 15 working days against the total period of 50-55 calendar days. According to the previously effective norm of the law, the procedure for payment of dividends could be determined by the charter or a decision of the general meeting of shareholders.

According to the new approach, the dividend payment procedure is divided:

• to pay dividends in cash;
• to pay dividends in non-cash form.

Only in the case of payment of dividends in non-cash form (for example, in shares or other securities of the company), the procedure for their payment is determined by the decision of the general meeting of shareholders.

The procedure for the payment of dividends in cash is imperatively established by law. It is subdivided into the payment of dividends to individuals and others.

Table 4. Procedure for payment of dividends

Payment of dividends to individuals is carried out:

• by postal money orders;
• if there is a corresponding application - by transferring funds to bank accounts.

Table 5. Place and time of fulfillment of the obligation to pay declared dividends

Transfer of dividends to employee shareholders to their salary cards falls under the rule of transferring dividends to bank accounts of individual shareholders. Payment of dividends to other persons whose rights to shares are recorded in the register of shareholders of the company is carried out by transferring funds to their bank accounts. The joint-stock company transfers dividends at its own expense, since it is its responsibility.

In accordance with Art. 316 of the Civil Code of the Russian Federation,

if the place of performance is not determined by law, otherwise legal acts or by agreement, is not clear from the customs of business or the essence of the obligation, the performance must be made:

• for a monetary obligation - at the place of residence of the obligee at the time the obligation arises, and if the obligee is a legal entity - at the place of its location at the time of the obligation;
• if by the time the obligation is fulfilled, the creditor has changed the place of residence or location and notified the debtor about it - in the new place of residence or location of the creditor with the attribution to the creditor's account of the costs associated with the change in the place of performance;
• for all other obligations - at the place of residence of the debtor, and if the debtor is a legal entity - at the place of its location.

The obligation of the company to pay dividends is considered fulfilled:

• from the date of receipt of the transferred funds by the federal postal organization;
• from the date of receipt of funds in the credit institution in which the bank account of the person entitled to receive such dividends is opened.

The payment of the declared dividends is the responsibility of the company. After the general meeting of shareholders makes a decision to pay (declare) dividends, the company becomes the debtor, and the shareholders become creditors for this obligation.

The disadvantage of the current version of the corresponding article of the law is that after a certain period of time, the company's obligation to pay the declared dividends terminates, and they are restored as part of net profit, regardless of whose fault the obligation was not fulfilled in a timely manner: the debtor on the payment of dividends (the company ) or creditor (shareholder). The company could, through its own fault, fail to fulfill its obligation to pay dividends in a timely manner, and at the same time, this obligation terminated after three years from the end of the dividend payment period or other period established by the charter.

From January 1, 2014, the consequences of late payment of dividends will differ depending on the fault of the parties in the obligation, that is, the fault of the company or the shareholder.

Table 6. Consequences of late payment of dividends

According to Art. 406 of the Civil Code of the Russian Federation, a creditor's delay is a situation when the creditor

... refused to accept the due performance offered by the debtor or did not take action, provided by law, other legal acts or an agreement or arising from the customs of business turnover or from the essence of the obligation, prior to the fulfillment of which the debtor could not fulfill his obligation.

Failure to provide the company or the registrar with the information necessary for the payment of dividends is a delay of the shareholder's creditor.

If the obligation to pay the declared dividends was not fulfilled in a timely manner due to the fault of the shareholder (the creditor's delay), then after three years (the charter of the company may increase this period to five years) from the date of their announcement, this obligation ceases, and unclaimed dividends are restored as part of the net arrived. As part of the retained earnings of previous years, they can be re-distributed by the company by a decision on the distribution of profits based on the results of the financial year.

The creditor (shareholder) can eliminate his delay and apply to the company for the payment of unclaimed dividends within three years from the date of the decision to declare dividends, if the charter of the company does not set a longer period for such an appeal (up to five years).

It should be noted that after elimination of the reasons due to which the company could not pay dividends (elimination of the creditors' delay), the shareholder is obliged to apply to the company with a demand for the payment of unclaimed dividends. The period during which a shareholder can eliminate his delay and apply to the company for the payment of unclaimed dividends is calculated from the date of their announcement, and not from the end of their payment period, as it was before.

If, within the specified period, a shareholder who has eliminated the reasons due to which dividends were not paid to him, applies to the company with a demand for their payment, then this demand must be satisfied within a reasonable time.

If, after such an appeal, the company does not pay dividends to it within a reasonable time, the shareholder has the right to apply to the court with a claim for the collection of dividends with the accrual of interest on the amount due to him for late execution monetary obligation(Art. 395 of the Civil Code of the Russian Federation) for the period from the day when the shareholder applied to the company after the elimination of the reasons that impeded the payment to the date of payment of dividends.

V new edition This article of the joint stock law introduces an additional basis for the termination of the company's obligation to pay the declared dividends, if the reason for this is the delay of the creditor (shareholder). The Civil Code of the Russian Federation allows for the possibility of introducing additional grounds for the termination of obligations in comparison with those established in the Code.

The obligation is terminated in whole or in part on the grounds provided for by this Code, other laws, other legal acts or an agreement.

The situation has been resolved when the nominee holder acts as an intermediary in the payment of dividends and he is unable to pay the dividend through the fault of the shareholder. In this case, the nominee holder to whom the dividends were transferred and who did not fulfill the obligation to transfer them for reasons beyond his control is obliged to return them to the company within 10 days after the expiration of a month from the date of the end of the dividend payment period.

In this case, the shareholder who has eliminated the creditor's delay will be obliged to apply for the payment of unclaimed dividends not to the nominal holder, but to the company.

Failure to pay dividends due to the fault of society (debtor)

However, the situation of non-payment of dividends through the fault of the debtor seems to be difficult - joint stock company... Its consequences are determined by general norms civil and tax legislation... This situation gives rise to the following civil law consequences.

Failure to pay dividends within the prescribed period due to the fault of the company is a violation of the right of a shareholder, and he can demand their payment in court:

In case of non-payment of the declared dividends within the prescribed period, the shareholder has the right to file a claim with the court to recover from the company the amount of dividends due to him, as well as interest for the delay in the fulfillment of the monetary obligation on the basis of Article 395 Civil Code Russian Federation. Interest is subject to accrual for the period of delay in the payment of dividends, calculated from the day following the day of the end the deadline their payments.

With such requirements, the shareholder can apply to the court within the period limitation period... By virtue of Art. 196 of the Civil Code of the Russian Federation, the general limitation period is three years. According to Art. 200 of the Civil Code of the Russian Federation, the course of the limitation period begins from the day when the person learned or should have learned about the violation of his right. For obligations with a certain period the course of the limitation period begins at the end of the execution period. With regard to non-payment of dividends, this moment occurs from the date of the expiry of the period for their payment.

The limitation period is the period for judicial protection rights at the suit of a person whose right has been violated (Article 195 of the Civil Code of the Russian Federation). This is the term for the protection of the right in court, and not the term for its implementation. After the expiration of the limitation period, the right can be exercised, only the possibility of its defense through the court disappears.

However, in Tax Code RF established special consequences of the untimely performance by the debtor of his obligations. The Tax Code of the Russian Federation proceeds from the following logic - the unpaid debt is the organization's non-operating income. At the same time, the Tax Code considers that a sign of qualification of a debt as unpaid is the expiration of the limitation period for this obligation. After this period has expired, the creditor cannot claim the return of the debt in court. Non-operating income of a taxpayer, included in the taxable base, is recognized, in particular, income in the form of an amount accounts payable(obligations to creditors), written off due to the expiration of the limitation period or on other grounds (clause 16 of article 250 of the Tax Code of the Russian Federation).

In accounting and tax accounting, the operation "writing off overdue accounts payable" is used and the attribution of the amount of unpaid debt to non-operating income. However, the civil legal content of this accounting transaction remains unclear. In the civil aspect, the expiration of the limitation period is not the basis for the termination of the obligation. The debtor can recognize the claim of the creditor and out of court.

For a company that did not pay dividends through its own fault (delay of the debtor), if the shareholders did not apply for their collection, the following negative consequence occurs. Such dividends are not classified as unclaimed dividends and are not subject to recovery as part of the company's net profit.

According to paragraph 16 of Art. 250 of the Tax Code of the Russian Federation upon the expiration of the limitation period, the amount of the outstanding debt is subject to "write-off" and attributed to non-settlement expenses. This rule is certainly reasonable in relation to classic debt obligations, which led to an increase in the assets of the corporation. Non-repayment of debt leads to increased economic benefits.

New in legislation

The FFMS of Russia, by Order No. 12-72 / pz-n dated 09.08.2012, amended the Regulation on the requirements for the procedure for performing certain actions in connection with the acquisition of more than 30 percent of shares in open joint stock companies.

In particular, the updated version of this document contains a description of the procedure for submitting to the FFMS of Russia changes to a voluntary or mandatory proposal. The Order now establishes that “a duly certified copy of the document containing the weighted average price of purchased equity securities, determined based on the results of trades by the organizer of trading on the securities market for six months preceding the date of sending obligatory offer", Must contain information about the volume of trades" of the corresponding securities for the specified period in units and rubles. "

Sending an order to bring a voluntary or mandatory offer in line with the Federal Law will now be accompanied by an order to the issuer to prohibit compiling a list of owners of acquired securities, to send the text of such a proposal to shareholders, to take actions provided for in paragraph 2 of Art. 84.3 Federal Law "On Joint Stock Companies". Similar actions are envisaged in the event that the FFMS of Russia sends a prescription in relation to a ransom demand.

The order introduces a number of changes to the forms of a voluntary, mandatory offer, a report on their implementation, a demand for redemption, etc.

The due date for the payment of the declared dividends is the period of time during which the company is obliged to fulfill its obligation to pay the declared dividends.

Dividend — this is a part of the profit of the joint-stock company, paid by it for the issued shares in accordance with the decision of the general meeting; this is the income of the owner of the share, which is transferred to him by the joint-stock company in accordance with the procedure established by this company.

After payment in favor and deductions to mandatory funds, it is used in two directions: expansion of activities(reinvestment) and on payment of dividends... The size of the latter depends on the results of the work of the joint-stock company, that is, the size of the profit it earned and the dividend policy it pursues. On average, usually half of the company's net profit is spent on paying dividends, the other - on the needs of the company itself. If a society is developing rapidly, then the share of dividends in net income is usually small. If the market price of a share is experiencing a downward trend, then one of the ways to overcome the latter is to increase the amount of dividend income per share.

The decision on the payment of dividends and their final amount is taken by the general meeting of shareholders, but it is not entitled by law to increase the amount of the dividend recommended by the board of directors of the joint-stock company.

Formation and payment of dividend

Dividend Is the net profit per share of the joint-stock company based on the results current year, distributed among shareholders in proportion to the number of shares of the corresponding categories and types they hold.

The dividend is set in monetary terms or as a percentage of par.

In accordance with the law "On Joint Stock Companies", the dividend cannot exceed the amount recommended by the board of directors (supervisory board) of the joint stock company.

Types of dividends

Dividends paid by a joint stock company can be classified by different types depending on the used classification characteristics:

on which dividends are accrued

Dividends are accrued and paid only on those shares that are in the hands of shareholders and are fully paid by them.

Shares for which dividends are not accrued. For some groups of issued (placed) shares, dividends are not accrued.

• Not placed (not released into circulation)
• Purchased and on the balance sheet of a joint stock company by decision of the board of directors
• Repurchased and on the balance sheet of the company by decision of the general meeting of shareholders or at their request
• Received by the company due to non-fulfillment by the buyer of obligations to acquire them

The decision of the meeting of shareholders on dividends. In accordance with the law, a joint-stock company can decide on full or partial payment of dividends or on their non-payment based on the results of the reporting year.

The law establishes situations in which it cannot make a decision on the payment of dividends.

• Until full payment
• If the requirement for the amount of value is not met net assets
• Before the redemption of all shares at the request of shareholders
• If there are or will appear as a result of the payment of dividends signs of bankruptcy of the joint-stock company

Dividend recipients

A dividend can be paid both to shareholders and to nominee holders of shares entered in the register of shareholders of the company in accordance with the established procedure.

If there is a nominee holder in the register of shareholders, then dividends are accrued to him, and he is responsible for transferring the accrued dividends to his depositors (specific shareholders).

If, after the date of compiling the list of persons entitled to dividends (the date of the register closing), shares or part of them are sold to another person, then the right to dividends remains with their previous owner. In this case, the acquirer is entitled to receive dividends only on the basis of a power of attorney issued by the seller, included in the list of persons entitled to a dividend.

Priority of dividend payment

Dividends in a joint stock company are established and paid separately for preferred and ordinary shares.

The owner of the preferred share has priority in receiving dividends over the owner of the ordinary share.

In turn, the owners of different types of preferred shares may have a different priority in their receipt. According to the Law "On Joint Stock Companies", dividends are primarily paid on those preferred shares that give the owners an advantage in the order in which they receive dividends. If financial conditions joint-stock company allow for this type of shares to pay dividends, the possibility of paying dividends on cumulative shares for which in previous periods dividends were not paid or were paid in part. If dividends can be paid on the listed two types of preferred shares, the possibility of paying dividends on preferred shares for which the size of the dividend is determined by the charter of the company is considered. Then a decision can be made to pay dividends on preferred shares for which the size of the dividend has not been determined. And in the last place, a decision is made on the payment of dividends on ordinary shares.

The authorized capital is 1 billion rubles. divided into preferred shares (25%) and ordinary (75%) with the same par value of 1,000 rubles, ie, a total of 1 million shares. The dividend on preferred shares is set at 14% of the par value. What dividends can be declared on shares if the board of directors recommends spending 110 million rubles for the payment of dividends? net profit?

• Calculation of dividends attributable to preferred shares: 1,000 rubles. * 14/100 = 140 rubles. per share, only 140 rubles. * 250,000 shares = 35,000,000 rubles.
• Determination of the net profit that can be used to pay dividends on ordinary shares: 110 million rubles. - 35 million rubles. = 75 million rubles.
• Calculation of the dividend paid per one ordinary share: 75,000,000 rubles. : 750,000 shares = 100 rubles, or 10% of the par value of 1000 rubles.

Dividend payment form

A dividend can be paid in money, and in cases stipulated by the charter of the company - other property, as a rule, shares of subsidiaries or own shares.

If dividends are paid in own shares, then this practice is called capitalization of income, or reinvestment. In world and Russian practice, the payment of dividends in own shares is quite common. In this case, the dividend is set either as a percentage of one share, or in a certain proportion, taking into account the date of their acquisition (for example, 4 shares for 10 shares previously acquired in a year of ownership or 1 share for 10 previously acquired shares for 1 full quarter of ownership).

The theoretical share price in this model is based on the fact that it is the sum of the discounted dividends paid on it

If approximately the same dividend is paid on a share every year (period), as is the case, for example, in preferred shares, then the above formula is greatly simplified:

If a dividend is paid on a share, the amount of which increases annually by the same small percentage, then formula 2.1 takes the form:

The main problem of this model is to predict the size of the dividend, which, under the influence of a variety of reasons, usually does not remain the same and its future size can only be talked about over a relatively short period of time, usually calculated in months;

Suppose that 20 shares were bought on 05/10/04, the decision to pay dividends in the form own shares adopted on 20.02.05 at the rate of 4 shares for 10 acquired in a full year of ownership: 20 shares / 10 shares * 4 shares * 9 months. / 12 months = 6 shares (since there are 9 full months of ownership).

Terms of payment of dividends

The term for the payment of annual dividends can be determined by the charter of the company or by a decision of the general meeting of shareholders on the payment of annual dividends. If the date of payment of annual dividends is not determined by the charter of the company or by the decision of the general meeting of shareholders, the period for their payment should not exceed 60 days from the date of the decision on the payment of annual dividends.

If the decision to pay dividends is made, then their payment becomes the responsibility of the joint stock company.

• the company meets the signs of insolvency (bankruptcy) or they will appear in the company as a result of the payment of dividends;
• the value of the company's net assets is less than its sum authorized capital, reserve fund and the excess of the liquidation value of the placed preferred shares, determined by the charter, over their par value, or it will become less than the specified amount as a result of the payment of dividends.

Upon termination of these circumstances, the company's obligations to pay dividends will resume.

Taxation of dividends

The joint-stock company is an agent for the collection and timely transfer of taxes withheld from dividends to the budget.

Upon payment of accrued dividends, the joint-stock company withholds taxes.

The procedure for the payment of dividends in a joint-stock company

To determine the procedure for the payment of dividends, the joint-stock company develops and approves at the general meeting of shareholders a special provision on the procedure for calculating and paying dividends of the joint-stock company. The key issues when deciding on the payment of dividends are the form of payment of dividends, their size and payment date.

1. Based on the results of the first quarter, six months, nine months of the reporting year and / or based on the results of the reporting year, the Company shall have the right to make decisions (declare) on the payment of dividends on placed shares, unless otherwise provided by this Federal Law. The decision to pay (declare) dividends based on the results of the first quarter, six months and nine months of the reporting year may be made within three months after the end of the relevant period.

(as amended by Federal Laws of 31.10.2002 N 134-FZ, of 29.06.2015 N 210-FZ)

The Company is obliged to pay the declared dividends on shares of each category (type), unless otherwise provided by this Federal Law. Dividends are paid in money, and in cases stipulated by the charter of the company - other property.

2. The source of payment of dividends is the company's profit after tax (net profit of the company). The net profit of the company is determined according to the data of the accounting (financial) statements of the company. Dividends on preference shares of certain types can also be paid out of the company's special funds previously formed for these purposes.

(as amended by Federal Laws of 06.04.2004 N 17-FZ, of 29.06.2015 N 210-FZ)

3. The decision to pay (declare) dividends is made by the general meeting of shareholders. The said decision shall determine the amount of dividends on shares of each category (type), the form of their payment, the procedure for payment of dividends in non-monetary form, the date on which the persons entitled to receive dividends are determined. In this case, the decision regarding the establishment of the date on which the persons entitled to receive dividends are determined is made only at the suggestion of the board of directors (supervisory board) of the company.

4. The amount of dividends may not exceed the amount of dividends recommended by the board of directors (supervisory board) of the company.

5. The date on which, in accordance with the decision to pay (declare) dividends, the persons entitled to receive them are determined cannot be set earlier than 10 days from the date of the decision to pay (declare) dividends and later than 20 days from the date of such adoption. solutions.

6. The term for the payment of dividends to a nominee holder and a trustee who is a professional participant in the securities market, who are registered in the register of shareholders, should not exceed 10 working days, and to other persons registered in the register of shareholders - 25 working days from the date on which persons who have the right to receive dividends.

7. Dividends are paid to persons who were the owners of shares of the corresponding category (type) or persons exercising rights on these shares in accordance with federal laws, at the end of the operating day of the date on which, in accordance with the decision on the payment of dividends, persons entitled to receiving them.

8. Payment of dividends in cash is carried out by bank transfer by the company or, on its behalf, by the registrar maintaining the register of shareholders of such a company, or by a credit institution.

Payment of dividends in cash to individuals, whose rights to shares are recorded in the register of shareholders of the company, is carried out by transferring funds to their bank accounts, the details of which are available from the registrar of the company, or in the absence of information about bank accounts by mail transfer of funds, and to others persons whose rights to shares are recorded in the register of shareholders of the company by transferring funds to their bank accounts. The obligation of the company to pay dividends to such persons is considered fulfilled from the date of receipt of the transferred funds by the federal postal organization or from the date of receipt of funds by the credit organization in which the bank account of the person entitled to receive dividends is opened, and if such a person is credit organisation, - into her account.

(as amended by Federal law dated 29.06.2015 N 210-FZ)

Persons who are entitled to receive dividends and whose rights to shares are accounted for by the nominee shareholder receive dividends in cash in accordance with the procedure established by the legislation of the Russian Federation on securities. The nominee holder to whom the dividends were transferred and who did not fulfill the obligation to transfer them, established by the legislation of the Russian Federation on securities, for reasons beyond his control, is obliged to return them to the company within 10 days after the expiration of one month from the date of the end of the dividend payment period.

9. A person who has not received the declared dividends due to the fact that the company or the registrar does not have accurate and necessary address data or bank details, or due to another delay of the creditor, has the right to request the payment of such dividends (unclaimed dividends) within three years from the date of the decision on their payment, unless a longer period for filing the said request is established by the charter of the company. If such a period is established in the company's charter, such a period may not exceed five years from the date of the decision on the payment of dividends. The deadline for filing a claim for the payment of unclaimed dividends when it is missed is not subject to restoration, unless the person entitled to receive dividends did not file this demand under the influence of violence or threat.

Upon the expiration of such a period, the declared and unclaimed dividends are restored as part of the retained earnings of the company, and the obligation to pay them ceases.

Legal advice under Art. 42 of the Law on Joint Stock Companies

Galina Romanova

Salary task !! Help!!. The general director of the joint-stock company deprived driver Kuprienko of dividends on shares of the joint-stock company, which he owned, for the second and third quarters of 2002 for being absent (absenteeism) at his workplace throughout the day without good reason. The CEO motivated his decision by the fact that the charter of the joint-stock company was amended to deprive the company of dividends for absenteeism. Are the actions of the gene. directors and changes made to the charter of the company?

• Lawyer's answer:

  Quite recently, in a Letter dated 20.03.2012 N 03-03-06 / 1/133, the Ministry of Finance of Russia came to the following conclusion: the accrual and payment of dividends from the retained earnings of previous years are possible. But only on condition that cash, at the expense of which it is planned to pay dividends, were not directed to the formation of special funds (reserve fund, corporatization fund).
  If the net profit was previously directed to the formation of special funds, then the amounts paid from it, in the opinion of financiers, cannot be recognized as dividends and are other payments in favor of the participants. Therefore, when taxing such income, reduced rates are not applied.
  The limitation is as follows:
  The legislation of the Russian Federation prohibits the company from distributing profits and paying dividends if the value of its net assets is less than its authorized capital or becomes less as a result of such a payment. This rule is established both in relation to LLC and in relation to JSC (Article 29 of the Federal Law of 08.02.1998 N 14-FZ, Clause 1 of Article 43 of the Federal Law of 26.12.1995 N 208-FZ).
  

Leonid Novoderezhkin

Task. A group of shareholders of Korund JSC invited a lawyer to their extraordinary general meeting to resolve a number of problems that had arisen. The meeting was attended by 240 shareholders holding in aggregate 75.5% of voting shares. The chairman announced that the largest shareholder, MST LLC, which owns 23.5% of the shares, was not invited to the meeting, since it pursues an unconstructive policy towards the joint-stock company and, in addition, the meeting will discuss issues related to sanctions against LLC "MST". Since the quorum required by the charter of the JSC - 75% of voting shares - was collected, the general meeting began to work. The chairman proposed to supplement the agenda with the issue of reorganization of Korund JSC, which was unanimously supported by the shareholders. In his speech, the chairman of the meeting said that LLC "MST", taking advantage of the contradictions among the small shareholders of the joint-stock company, constantly plunges it into dubious commercial projects. So, at the last annual meeting of shareholders, LLC "MST" achieved the inclusion of a project in the work plan of the JSC, which caused huge losses to the JSC. In this regard, the chairman proposed to recover from LLC "MST" all losses caused to the joint-stock company, as well as to reorganize the joint-stock company into a subsidiary or at least dependent on LLC "Atoll" company. The last event, in his opinion, will legally formalize the current situation and protect the interests of small investors for the future. Provide the meeting with your opinion on the proposed reorganization, explain the legal status of subsidiaries and affiliates, and suggest ways to protect the interests of minority shareholders. Explain the order in which the preparation and convocation of the meeting of shareholders should be carried out and what consequences may occur if this order is violated.

• Lawyer's answer:

  The reorganization of a JSC into a subsidiary is this moment the most relevant, since it has a predominant number of voting shares (75% of voting shares - was collected) and on the basis of Clause 2 of Art. 6 of the Law on JSC, art. 105 of the Civil Code of the Russian Federation. Can be transformed into a subsidiary. legal entities rights and obligations are transferred to each of them. legal status about subsidiaries and dependent companies, D. the company is not liable for the debts of the parent company. answers in solidarity with subsidiary on transactions concluded by the latter in pursuance of such instructions. In case of economic insolvency (bankruptcy) of a subsidiary through the fault of the main company, the main company bears subsidiary liability for its debts, the shareholders of the subsidiary company have the right to demand compensation for the main company for losses caused through its fault to the subsidiary company, unless otherwise provided by the legislation on business companies The legislation provides for ways to protect SMALL shareholders, but in practice they are not always effective and satisfy the true interests of these persons. RF Code, Clause 3, Article 11 of the Law "On Joint Stock Companies"); the election of members of the board of directors (supervisory board) using the cumulative voting mechanism makes it possible to achieve election to the board of directors of candidates nominated by minority shareholders, is currently mandatory in any a joint-stock company, regardless of the number of shareholders; granting minority shareholders the right of veto as a result of establishing the requirements of a qualified majority of votes when making decisions on the most important issues of the joint-stock company (clause 4 of article 49 of the Law); setting limits for the minimum attendance of shareholders at a general meeting (Article 58 of the Law); depriving certain shareholders of the right to vote on issues in which there is their personal interest, objectively contrary to the interests of the society as a whole (conflict of interest). Also, this small group of shareholders is endowed with special rights such as: the right of a shareholder to demand the redemption by the company of all or part of the shares owned by him (Article 75 of the Law). Of the Arbitration Court RF dated November 18, 2003 N 19 "On some issues of the application of the Federal Law" On Joint Stock Companies ", in case of refusal or evasion of the buyback of shares in the cases, procedure and within the time limits. Articles 75 and 76 of the Law, the shareholder has the right to apply to the court with a claim on the obligation of the company to redeem shares; - Bulletin of the Supreme Arbitration Court of the Russian Federation. 2004.N1.С.9 - 31. SPS "ConsultantPlus". the right of a shareholder to sell his shares to a person who has acquired 30 or more percent of the placed ordinary shares of the company with the number of shareholders - owners more than 1,000 ordinary shares; this person is obliged, within 30 days from the date of acquisition, to offer all shareholders to sell them their ordinary shares of the company and equity securities convertible into ordinary shares at the market price, but not lower than their weighted average price for the six months preceding date of acquisition.In this case, minority shareholders have the right to sell their shares at a market price and leave the company where there are real opportunities management are in the hands of one person or a group of persons. In addition to the methods of protection provided for in the legislation, the following human rights measures must be applied: 1. it is necessary to coordinate their positions, to combine votes on shares; 2. to realize the opportunity to recover the losses incurred by them (lost income) with the impossibility further participation in the activities of the joint-stock company, if the market value is underestimated during the redemption of shares or if they prove that the majority shareholder made a transaction to acquire them at an overpriced prior to the redemption.

  See the law on JSC, article 42. Procedure for the payment of dividends by the company))) http://bcs-express.ru/dividednyj-kalendar

The founders or shareholders of a company participating in its capital are entitled to receive income from it. The income of the founders is dividends that can be paid both in joint stock companies and in LLCs. We will disclose the current procedure for calculating and paying dividends in this article.

Dividends to the founder: accrual and payments

Payment of dividends to shareholders or participants is possible if there is a profit for a certain period. The decision on its full or partial distribution among the founders can be made once a year, quarterly, and also once every six months. Such a decision can be made by:

• in JSC - the General Meeting of Shareholders, taking into account the recommendations of the Board of Directors limiting the amount of "dividend" payments;
• in LLC - General meeting of participants.

If there is only one founder / shareholder of the company, then he does not need to hold a General Meeting - he takes a sole decision on the payment of dividends.

What part of the net profit to direct for the payment of dividends to the founders is determined according to the accounting data for the corresponding period, and the General Meeting may leave the profit unallocated altogether, and not pay dividends to the founders.

The decision of the General Meeting is drawn up in minutes, including the following information:

• the period for which dividends are paid (year, half year, etc.),
• the total amount of dividends,
• the amount of income for each type of shares (in JSCs),
• the date on which the composition of shareholders receiving dividends must be determined - no earlier than 10 and no later than 20 days from the date of the decision on payment (in JSC),
• form of payment (money or property),
• the term for the payment of dividends.

The accrual and payment of dividends is made as follows:

• in JSC dividends can be accrued as a percentage of the par value of a share, or in a fixed amount per share,
• in LLC, as a rule, dividends are distributed in proportion to the shares of the participants, unless otherwise provided by the charter.

A JSC can pay dividends on its own, or through a registrar with whom an agreement has been concluded for maintaining a register of securities, or through a credit organization. The first to receive their income are the owners of preferred shares, and then ordinary ones.

The LLC makes the payment of dividends to the participants on its own within the time period specified by the decision.

Shareholders / participants can receive "dividend" income on bank accounts, as well as by postal order, or through the cashier.

Before the payment of dividends, taxes are withheld from shareholders / participants and transferred to the budget:

• Personal income tax from individuals,

Taxes are levied at the rates in effect at the date of dividend payment.

Restrictions on the payment of dividends

The LLC Law (Art. 29) and the JSC Law (Art. 43) contain a number of conditions under which the company is not entitled to pay dividends until these circumstances are eliminated:

• the authorized capital has not been paid in part or in full;
• the cost of the share of the retired participant (in LLC) has not been paid,
• the amount of net assets does not exceed the amount of the authorized capital and reserve fund. In addition to this, the JSC takes into account the amount of excess of the value of preferred shares over par;
• the sequence of decision-making on dividends on preferred and ordinary shares (in JSCs) was violated;
• the company has signs of bankruptcy on the day the decision is made, or they will appear as a result of the payment of dividends.

Dividend payment deadline

In JSCs, the timing of dividend payments is calculated from the date on which the composition of shareholders was determined. These terms should not exceed (clause 6 of article 42 of the law No. 208-FZ):

• 10 working days - for payment to nominee shareholders and trustees-professional participants of the securities market;
• 25 working days - for other shareholders of the JSC.

In LLC, the timing of dividend payment in 2017 is still limited to 60 days (clause 3 of article 28 of Law No. 14-FZ). This is the maximum time during which the participants must receive the dividends due to them, but the charter of the company or the General Meeting of Participants may establish a shorter period for payments. When no specific deadline is set, it is considered to be 60 days.

In case of violation of the schedule for the payment of dividends to a JSC or LLC (for example, due to the fact that the company does not have the correct payment details of the founder), participants who have not received their income within the established timeframe have the right to claim them from the company within 3 years, or 5 years, if more the term is specified in the charter. The countdown of the demand period begins: in JSC - from the date of the decision to pay dividends, and in LLC - after 60 days allotted for payment (clause 9 of article 42 of Law No. 208-FZ; clause 4 of article 28 of Law No. 14 -FZ).

If, by the end of the specified period for receiving dividends, they remain unclaimed, the company again includes them in its profit, and the right to claim is lost.

Reflection of payment of dividends in financial statements

The accrual of dividends in accounting is carried out on the basis of an order for payment, which must contain information about the persons receiving dividends, the amounts to be accrued and the timing of payment.

What accounting entry means the accrual of dividends to shareholders or members of the company? This operation is executed with the following transactions:

How to reflect the payment of dividends in the company's financial statements:

• "Balance sheet" - payment of dividends in the balance sheet is reflected in line 1370 "Retained earnings", or rather, their amount is deducted from this indicator.
• In the "Report on financial results" the payment of dividends is not reflected.
• In the "Statement of Changes in Equity" line 3327 is provided for dividends. This form does not need to be completed by those who submit simplified accounting.

In addition, tax reporting on personal income tax is submitted to the IFTS (

Receiving dividends is essentially the goal of building and running an organization. Their size reflects the success of the company and its relevance. The nuances of dividend payment are determined by law, as well as by established practice.

Dividend concept

The term “dividends” is practically absent in the Civil Code of the Russian Federation. It can be found only in Article 102 of the Civil Code of the Russian Federation, in which these payments are attributed exclusively to joint-stock communities. However, this is a broader concept. It is also absent in the Federal Law of 08.02.1998 №14, where the corresponding payments are called "distribution of profits." Dividends are mentioned in the Federal Law dated December 26, 1995 No. 208. The law says that joint stock associations have the right to announce the payment of funds on the placed securities. A similar right is set forth in paragraph 1 of Article 43 of the Tax Code of the Russian Federation.

Article 43 of the Tax Code of the Russian Federation provides the most complete definition of dividends. This is any income that is paid by a joint stock company to its members in the distribution of income.

Profit is calculated only after all taxes have been paid. Participants receive funds in proportion to their share in the authorized capital. The larger this share, the greater the dividends will be. The scope of this concept also includes money that was received in foreign countries, if in the legislation of the latter this income will be considered dividends.

It is important to distinguish dividends from other types of payments for tax purposes. These will include not only money transferred to shareholders of JSCs, but also funds transferred to various commercial structures.

IMPORTANT! Dividends can be transferred to shareholders only during the period of existence and activity of the JSC. Funds are paid to the members of the company even in the event of its liquidation. However, according to clause 2 of Article 43 of the Tax Code of the Russian Federation, if the amount of payments does not exceed the shareholder's contribution to the authorized capital, the money will not be considered dividends. This means, according to clause 1 of Article 251 of the Tax Code of the Russian Federation, that funds are not subject to income tax.

Sources of dividend formation

The JSC has the right to pay out funds on the placed securities at intervals of:

• one quarter;
• half a year;
• 9 months of the financial year;
• the entire financial year.

If the JSC announced the issuance of funds, it is obliged to make all relevant payments. Typically, dividends are issued in the form of cash. However, if there are appropriate instructions in the charter of the JSC, payments are made in the form of ownership.

The source of dividends is the profit of the joint-stock company, from which all taxes have already been paid. That is, the net profit is taken into account. Its size should not contradict the data of the financial statements. There is a special form of dividends - on preferred securities. Funds for them can be accumulated from the special funds of the JSC.

The decision on the disbursement of funds is made at the general meeting of shareholders. The recommended amount of dividends is set by the board of directors. Payments, in accordance with clause 3 of the Federal Law of October 31, 2002 No. 134, should not exceed this amount.

Terms and procedure for payment of dividends

Both the terms and the procedure for issuing funds are established by the charter of the joint-stock company. If the charter does not contain this information, the corresponding decision is made at the meeting of shareholders. If a decision on the timing has not been made, then the funds must be issued to the participants within 2 months from the date of establishing the need for payments.

There are certain rules that must be followed when paying dividends. In particular, according to Article 29 of the Federal Law dated 02/08/1998 No. 14, the following requirements must be observed for the issuance of funds:

• Full payment of the authorized capital.
• Full payment of the share to the shareholder who officially leaves the company.
• Net assets from which dividends are paid must be greater than the authorized capital. This ratio should remain after all funds have been disbursed.
• No symptoms of bankruptcy. There should be no signs of financial insolvency even after the dividend has been issued.

A joint-stock company must comply with the listed requirements both on the date of the decision on payments and on the date of the dividend distribution itself. If the restrictions are not met on the date of payment, funds are distributed only after the opportunity to satisfy all requirements has come. This rule is established by paragraph 2 of Article 29 of the Federal Law of 08.02.1998 No. 14.

The decision on payments is made at the general meeting, as mentioned earlier. This meeting can be organized not earlier than the date of the financial statements. Only from the reporting it is possible to understand whether the organization complies with all the accepted restrictions. The meeting must be accompanied by the completion of the minutes in the prescribed form. It is determined by the LLC on an individual basis. The document must contain the following information:

• The year the funds were paid.
• The total amount of dividends.
• The procedure for issuing and the terms accepted.

The distribution of funds is usually specified in the charter. An alternative option is to distribute funds according to the shares of shareholders. This rule is established by paragraph 2 of Article 28 of the Federal Law of 08.02.1998 No. 14.

FOR YOUR INFORMATION! It has already been mentioned that dividends can be paid both in cash and in property. However, if the latter form is applied, the transaction will be considered a sale. This means that the company will have to pay a lot of taxes. Therefore, this form of dividend distribution is considered very unprofitable.

ATTENTION! If the LLC has only one founder, he does not need to organize any meeting. The protocol is also not drawn up. It is enough to publish the decision of the founder.

Features of the distribution of funds

If the LLC has one founder, he receives all the funds. If there are several of them, the amount of payments corresponds to the amount of the shareholder's contribution to the authorized capital.

IMPORTANT! Dividends must necessarily comply with either the charter or the proportion set out above. If the size is different, it could provoke misunderstandings on the part of extrabudgetary funds.

Tax

When issuing dividends, the following are withheld:

• 13% of personal income tax for individual persons (based on paragraph 1 of Article 224 of the Tax Code of the Russian Federation) and 15% for foreign citizens (paragraph 3 of Article 224 of the Tax Code of the Russian Federation).
• 13% of income tax (clause 3 of Article 284 of the Tax Code of the Russian Federation) for taxpayers of the Russian Federation and 15% (according to clause 3 of Article 284 of the Tax Code of the Russian Federation) for foreign companies.

IMPORTANT! If a person owns more than half of the share in the capital within 12 months, a zero tax rate applies to him (in accordance with clause 3 of Article 284 of the Tax Code of the Russian Federation).

Disputes between JSC and shareholders

If a society violates the rights of its members, the latter can sue. This is usually true in cases where funds are not paid in full or are not paid at all. In the absence of payments, interest is charged, which can also be collected through the court. The corresponding requirement is indicated in the statement of claim.

Failure to pay dividends is usually tantamount to an administrative offense (according to Articles 15-20 of the Administrative Code of the Russian Federation). To defend your rights, you should go to an arbitration court, since an LLC is considered to be an entity conducting economic activities. This rule is relevant even if the claim is filed by the FL.

IMPORTANT! If dividends were not received for a valid reason (for example, a shareholder did not provide information about his current account), the participant can receive them within 3 years from the date of completion of payments.