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What does Affiliation mean? The concept of "affiliated firm". Reasons for creation and various forms of leadership

Affiliation of legal entities is a situation where two enterprises (or more) are dependent. That is, one company can have a significant impact on another in economic activity, which affects the nature of decisions made by a business entity.

Signs of affiliation of legal entities

Legislative regulation of the concept of affiliation is given in Art. 53.2 of the Civil Code of the Russian Federation, art. 20, Art. 105.1 of the Tax Code of the Russian Federation and the law on competition dated March 22, 1991 No. 948-1. The last legal act defines affiliation in Art. 4, and clarifies that not only legal entities, but also citizens can be dependent.

In relation to enterprises, the following can be recognized as affiliated:

  • Members of the supervisory board of the company, representatives of the collegial or sole executive body.
  • Members of the group of persons to which a particular firm belongs.
  • Shareholders who are entitled to participate in voting at general meetings, if the votes of such shareholders account for more than 20%.
  • Investors with a capital share of 20% or more.
  • The affiliation of legal entities can manifest itself if the company is a member of the FIG (financial-industrial group). In this situation, affiliates may be representatives of the management bodies of other companies participating in FIGs.

For the purposes of taxation, the concept of "interdependent persons" is applied to affiliation. The following are recognized as such (clause 2, article 105.1 of the Tax Code of the Russian Federation):

  • organizations that have a share of more than 25% in the capital of another company;
  • legal entity and individual, if the individual owns more than 25% of the capital;
  • several legal entities, with the participation of one of them in several companies, if its share in each of them is more than 25%;
  • legal entity and its head;
  • an organization and a person authorized to appoint its head, or half of the leadership;
  • legal entities in which more than half of the management (board of directors) are the same citizens;
  • several companies in which the same individual is appointed as the head;
  • several legal entities in which the first owns more than half of the capital of the second, the second, in turn, owns more than half of the capital of the third, etc.

The presence of signs of affiliation suggests that companies coordinate organizational or economic decisions with each other.

In relation to the relationship of individuals, interdependence can manifest itself in relatives - for example, in married spouses, between an adopted child and his adoptive parent.

There is another option of dependence - labor. What is the affiliation of officials - this is a situation where one individual is obliged to obey the decisions of another citizen within the framework of labor relations and the hierarchy of management according to the staffing table. This principle of dependence is voiced in Art. 20 of the Tax Code of the Russian Federation.

Affiliation of legal entities: consequences

Legislative regulation of relations between affiliated persons is necessary to solve the following tasks:

  • prevention of economic collusion in the field of pricing and competition;
  • prevention of situations with the emergence of hidden monopolistic structures on the market.

Checking the affiliation of legal entities may be carried out by the Antimonopoly Service or tax authorities. In the fiscal system, the identification of interdependent enterprises is necessary to assess the objectivity and economic feasibility of controversial business transactions. For example, the Federal Tax Service may challenge the legality of a sale and purchase transaction between affiliated parties if the price of the products sold is understated. The provision of special benefits in cooperation with a dependent structure may also be outside the legal field. Transactions made under such conditions may be declared invalid in court, as they entail an artificial underestimation of tax liabilities and damage to the state budget.

The risks of affiliation of legal entities may manifest themselves in the receipt of services by a company from an affiliated expert organization. In this situation, the opponents of the firm that used the services of such an expert may reasonably challenge the results of the expert opinion and demand a review of the case. The results of auctions may also be recognized as invalid if affiliated persons take part in them. The basis may be the existence of a collusion between dependent enterprises, which led to the winning of one of these firms. If the affiliation of legal entities is revealed, the evidence will turn out to be irrefutable, the results of the auction will be canceled, and the illegally winning enterprise will have to compensate for the losses incurred by other participants.

The presence of interdependence between the debtor and his creditor may be the basis for reviewing the bankruptcy case. The reason is that the parties, entering into an agreement, get the opportunity to create a fictitious debt for the partner to receive funds. This procedure infringes on the rights of other creditors.

Checking the affiliation of legal entities is free of charge on the website of the Federal Tax Service and on other Internet services. Some sites provide an opportunity to explore the relationship between two counterparties, including the analysis of transactions implemented with the participation of intermediaries. Other services make it possible to view the general characteristics of the counterparty of interest by name or TIN, for example:

  • registration data;
  • information about the founders;
  • information about the executive body;
  • the presence or absence of enforcement proceedings, arbitration cases;
  • statistics of participation in public procurement;
  • list of established organizations;
  • data on inspections carried out at the enterprise and the number of violations detected;
  • related institutions and trademarks.

Checking the affiliation of legal entities on the website of the Federal Tax Service can be done by everyone - for this you need to know the basic details of the counterparty. The services of the tax authority (for example, "]]> Information on state registration of legal entities, individual entrepreneurs, peasant farms ]]> ") will help identify unscrupulous business entities, detect "]]> mass founders ]]> ".

How to prove the affiliation of legal entities:

  • conduct a search for information about companies in open sources of information, including the website of the Federal Tax Service;
  • check the data on the founders and their shares in other enterprises;
  • to study family ties between managers and founders of cooperating firms;
  • study the economic condition of firms - this way you can identify the financial dependence of the company on another enterprise (this can be seen in the structure of purchases and sales, in the analysis of the client base, in receivables and payables).

Section 1. Concept of affiliation.

Section 2Accession enterprise, company to another, larger, related enterprise as a branch. Affiliates.

Section 3 Affiliation websites by Yandex and .

Concept of affiliation

The use of a word as an economic term is related to its forms as a verb and an adjective.

Affiliate - accept as an affiliate; accept membership; unite, join. Affiliated organization- branch company, subsidiary firm, an organization with which there are ties, a participating company controlled by . Affiliate network - partner network, branch network, regional network Affiliate agreement - licensed agreement for organizations with a branched structure. Affiliated persons - individuals and legal entities capable of influencing the activities of other persons engaged in entrepreneurial activities. For example, according to the law (including Russian), affiliates legal faces- a member of its board of directors, supervisory board or other collegiate management body.

Difficulties in use are due to the possible and acceptable broad interpretation of an affiliated organization as a firm associated in some way with another company. At the same time, its narrow definition is an organization in which another firm has a minority interest, that is, it owns less than 50 percent of voting shares. Therefore, two organizations are affiliated if one has a minority, the other has a majority of voting shares, or both are subsidiary companies, i.e. companies with more than 50 percent voting shares are owned by a third firm, called the parent.

Therefore, a subsidiary is always affiliated by definition, but the term subsidiary is preferred when it exists from outside over the majority of the shares of the organization in question.

An appeal to the etymology of the concept makes it possible to assume a meaningful relationship between the concepts and phenomena denoted by the words "affiliated firm" and "associated organization".

Difficulties in use are due to the possible and acceptable broad interpretation of an affiliated firm as an organization related in some way to another company.

At the same time, its narrow definition is a firm in which another organization has

minority interest, that is, in its ownership - less than 50 percent voting shares.

Accessionenterprise, company to another, larger, related enterprise as a branch, affiliates

An affiliated firm, as follows from the primary meaning of the word affiliated, is an organization that depends on another firm. An affiliated company is a controlled organization, that is, a company participating in a joint business that is not completely free in its actions.

In a broad sense, two organizations "A" and "B" are affiliated if they cross-own each other's shares. But if "A" has more than 50 percent of the shares of "B" and "B" - less? In this, a narrower definition would be more accurate. "A" - the parent company, and "B" - a subsidiary, subsidiary organization.

If both firms are subsidiary, that is, companies in which more than 50 percent of the voting shares are owned by a third organization, called the parent, then they can also be considered as affiliated. Broadly speaking, a subsidiary firm as a division of a multinational firm is always by definition affiliated, but the term "subsidiary" is preferred when there is control from outside over the majority of the shares of the organization in question from the other.

Affiliates are legal entities and individuals related in organizational and property terms. By virtue of such connections, they are able to influence each other, which affects the formation of economic relations. The concept of "affiliates" appeared in our country during the transition to a market economy, in the context of the expansion and complexity of economic ties between business entities.

The concept of "affiliated persons" is widely used in business legislation. For example, in accordance with Art. 93 of the Federal Law "On Joint Stock Companies", affiliates of the company are obliged to notify the company in writing about the shares they own, indicating their number and categories (types) no later than 10 days from the date of acquisition of the shares. In the event that this is not done or is done untimely, the affiliated person is obliged to compensate for the damage that the company has incurred as a result of this. The Company is obliged to keep records of its affiliates and submit reports on them in accordance with the requirements of the law.

The concept of affiliated persons was formulated in the Federal law dated May 6, 1998 No. 70-FZ, which amended and supplemented the Antimonopoly. Changes and additions were, in particular, made to Art. 4 Antimonopoly law, which defines the concept of affiliated persons. In connection with the adoption of the law on the protection of competition, most of the provisions of the Antimonopoly Law were repealed, but the provisions on affiliates remained in force. In Art. 4 of the Antimonopoly Law, first a general definition is given, and then it is specified in relation to affiliated persons of legal and physical persons.

In general, affiliates are legal and individuals capable of influencing the activities of other legal entities and individuals.

Affiliates legal entity are:

members of its board of directors (supervisory board) or other collegial management body, members of its collegial executive body, as well as a person exercising the powers of its executive body;

persons who have the right to dispose of more than 20% of the total number of votes attributable to shares (deposits, shares) that make up the authorized (share) of this legal entity. faces;

the organization in which this legal the person has the right to dispose of more than 20% of the total number of votes attributable to shares (deposits, shares) constituting the authorized (share) capital this company;

if a legal entity is a member of a financial and industrial group, its affiliates also include members of the board of directors (supervisory board) or other collegial management bodies, collegial executive bodies of participants in the financial and industrial group, as well as persons exercising the powers of sole executive bodies of participants in the financial and industrial groups;

persons belonging to the group of persons to which this legal entity belongs. face.

Thus, it proceeds from the fact that the concept of "affiliated persons" is broader than the concept of "group of persons". The first is generic and the second is specific.

The definition of the concept of affiliated persons through the concept of a group of persons leads to the complication of this definition and the repetition of the same provisions mentioned in different aspects. So, if in relation to financial-industrial groups in the definition of the concept of affiliated persons, only executives of organizations included in the financial-industrial group are assigned to them, then according to the definition of a group of persons, these firms themselves also belong to them.

Individuals who are spouses, parents and children, brothers and sisters are also indicated as members of a group of persons. These entities, related to each other by family relations, are classified as affiliated persons by recognizing them as constituting a group of persons. Meanwhile, it would be more logical to directly recognize them as affiliated persons, since taking into account family relations is more typical for affiliation.

The concept of affiliated persons and the concept of a group of persons express a different degree of legal ties between subjects. Affiliates do not constitute a single subject of law, but the links between them have legal significance. On the contrary, a group of persons has the right of a subject, although not in all business relations, but only in those related to the field of antimonopoly law. Therefore, the concept of affiliated persons is considered, as noted above, as a generic one, and the concept of a group of persons - as a specific concept.

Website affiliation by Yandex andGoogle

If you came up with the idea that TOP search results can be filled with your sites for any query, then I want to disappoint you. You are not the first to come up with this move. And search engines have been struggling with this for a long time, and the term affiliated sites has appeared.

Affiliation - involvement in something, the ability to influence someone's activities.

Affiliated sites - these are sites for one reason or another have the same common goals and objectives within a particular person or group of persons. Examples for one person - an organization that promotes several sites for one key phrase.

An example for a group of people is sites tailored for some kind of affiliate program. I think that the train of thought here is clear to everyone. I want to note that the affiliation of the site is determined not only by the content, but also by the total income of the recipient (let's call it that). Affiliate sites are in the index, but they are not in the top search results for some queries. Search engines combine them into one group (i.e. as one site) and look at the relevance of the pages of all affiliated sites from the group in the aggregate. Therefore, only one site from one group of affiliated sites can appear in the top. Moreover, in one region one site can be affiliated, but not in another.

The question arises, how do search engines affiliate sites? Here one can only guess, there are obvious answers - one contact information, one registration data domains, one hosting. There are other questions. Let's take affiliate programs of shops. The degree of similarity between your site and the site of a donor-partner is important here. Yandex says the following...

“... At the same time, sites are recognized as similar if a significant part of the assortment of goods offered on the sites sold in the same region coincides, and / or there are other signs that suggest that the same goods are offered by the same supplier, regardless of a slight difference range".

But how Yandex puts this rule into practice can only be guessed at. The only thing that definitely should not be done is to use ready-made solutions from a partner. It is better to have a unique design, do the product descriptions yourself, make your own structure, for this you need to take goods through rss channels.

Yandex does not allow you to simultaneously advertise in Yandex-Direct and/or Yandex-Market systems the same goods/services to several different sites of the same organization, even though it loses . Similar sites are grouped in the search, completely or partially removed from Yandex.Direct, Market. IN Google Affiliate sites are underestimated in search due to non-uniqueness information and are removed from the AdSense advertising program due to dishonest advertising cheating.

And most importantly... a free service has appeared that allows you to check the site for affiliation for free.

Factors affecting affiliation.

Yandex (Yandex employees) compares two sites according to the following criteria:

Whois match

Match the contact details listed on the sites, i.e. phone numbers, email addresses, etc.

same content

Similar link mass

Sites are located on the same hosting.

Sources

Wikipedia - The Free Encyclopedia, WikiPedia

tolkslovar.ru - Explanatory Dictionary

dic.academic.ru - Academic Dictionary

vedomosti.ru - Dictionary of business


Encyclopedia of the investor. 2013 .

Synonyms:

What is legal entity affiliation?

The affiliation of a legal entity is its ability to influence the activities of an economic entity due to participation in its capital or membership in governing bodies.

Affiliates are individuals or legal entities (often investors) who have the right and ways to influence the activities of a business entity - another individual or legal entity, since they own a share of its capital or are members of management bodies. So, say, an affiliated person of a company can be a member of the board of directors or a supervisory board, a member of the collegial executive body, an executive director, and so on. Affiliates also include those who can manage (or influence such persons) more than 20 percent of the company's capital.

Affiliation can be taken into account when bringing the parent company to subsidiary liability, and when challenging by the arbitration manager transactions made by the company on the eve of bankruptcy in order to withdraw assets. To bring the parent company to subsidiary liability, the statement of affiliation is not enough - it is necessary to prove the control of the debtor company, which was given mandatory instructions that led to bankruptcy.


The Portal separates the affiliation of an individual and the affiliation of a legal entity into separate subsystems.

Information on affiliated companies in the report

Share of authorized capital

The share of the founder (requested company) in the authorized capital of the affiliate.

Registration address

The current registration address of the affiliated company based on the Unified State Register of Legal Entities.

Current status

The current status of the affiliated company based on data from the Unified State Register of Legal Entities.

Authorized capital

The amount of the authorized capital upon registration of an affiliated company in the Unified State Register of Legal Entities.

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List of founders

The query will show what other companies are the founders of the affiliate.

CEO

Full name of the general director of the affiliated company based on the Unified State Register of Legal Entities.

Affiliation of persons 2018

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There are many examples when two participants in economic activity, formally acting as separate entities, are in fact connected with each other. Such a connection allows you to influence the economic result of transactions, which has negative consequences for other persons (organizations or the state). Therefore, the affiliation of persons is suppressed by law.

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Legislative regulation

The term "affiliation of persons" is borrowed from Anglo-American law. The meaning of the word goes back to the English verb to affiliate, which translates as to adopt or accept as a subsidiary.

In the field of civil law of the Russian Federation, the concept of affiliation first appeared as a separate term in Law No. 948-1 FZ "On Competition ...".

Article 4 of the new edition contains a clear definition of what is affiliation of persons and a list of entities that are recognized in the legislation as interested in transactions. In relation to the organization, such persons are:

  • member of the board of directors;
  • CEO;
  • member of the collegial executive body;
  • a person having the right to dispose of ≥ 20% of the votes in the form of shares included in the authorized capital;
  • subjects of the same ownership group with a legal entity.

For an individual (IP), the presence of affiliation is recognized for the following entities:

  • persons who are in the same group as the entrepreneur;
  • a legal entity, within which control is expressed in the presence of an individual more than 20% of the shares included in the authorized capital.

Additionally, the definition of affiliation of legal entities contains:

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  1. Federal Law of December 26, 1995 No. 208-FZ (On Joint Stock Companies).
  2. Federal Law of February 8, 1998 No. 14-FZ (On Limited Liability Companies).
  3. Federal Law of January 12, 1996 No. 7-FZ (On non-profit organizations).

In accordance with the requirements of legislative acts, all transactions that are made in the presence of interest between the procurement participant and the customer must be approved by the governing bodies. A sample may be a transaction with suspicion of affiliation with an LLC. Its implementation is possible only by decision of the general meeting of participants.

The list of officials who have signs of affiliation in accordance with the mentioned normative acts is practically identical to that provided for in Article 4 of the Law on Competition. One of the signs of the affiliation of the participants when concluding a transaction is their family relationship with each other. The fact of affiliation of the counterparty is established if the relative:

  • acts as a beneficiary, intermediary or representative;
  • is the owner of ≥20% of the shares of the legal entity acting as the recipient of the profit from the agreement;
  • is in leadership positions in an organization that is the ultimate recipient of benefits (chief accountant of one = founder of another).

A slightly different interpretation of the concept of affiliation of procurement participants is contained in the Tax Code. The category of "interdependent persons" includes citizens or organizations that have the ability to influence the results of the activities of the represented entities (Article 20 of the Tax Code of the Russian Federation). For example, if:

  • the share of indirect participation of one company in another is ≥ 20%. Example - one leader for two organizations;
  • one of the participants in the transaction, when participating in the tender, is subordinate to the other according to his official position;
  • the participants in the transaction are married or are relatives.

Signs of affiliation of legal entities

General characteristics of the interest of participants in transactions:

  1. Relationships/friendships. For example, when the business owner is a relative of one of the parties to the transaction.
  2. Crossing by common people, regardless of the size of topping up the statutory fund.
  3. Economic dependency.

Signs of affiliation of companies also depend on the type of interest:

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  1. Legal. The affiliation of an enterprise is characterized by the presence of a clear traceability of the legal relationship between the beneficiaries. This also includes conflicts of interest. That is, when the legal actions performed by the authority are dictated by the personal interest of a person in the municipal service.
  2. Actual. This view is practically unprovable. Affiliation can only be identified if the counterparties have one main shareholder. This can be revealed during a tax audit. An example is ownership through offshore companies or the involvement of relatives as nominees.
  3. Economic. It occurs when there is a dependence of the manufacturer on a single supplier. Since the presence of a connection between the client and the debtor affects the result of the activity.

Another example is affiliate sites. The main sign is interest. Such sites play a secondary role for faster promotion of the main resource. A lot of doorways are created, through which users go to the "mother" portal.

Responsibilities of Society

By law, a legal entity is required to carry out a number of actions related to affiliation:

  1. Issue certificates of affiliation and maintain lists of interested parties, beneficiaries. The form of documents is not established by law.
  2. Keep lists for a certain amount of time.
  3. Give participants the opportunity to get acquainted with the original documents free of charge at the company's premises no later than 3 days after submitting the application.

How to determine the date of affiliation? The countdown must begin from the day the law is adopted or upon the appearance (compilation) of a list of interested parties.

Consequences of affiliation

What threatens checking for affiliation of the company and how such interest can affect the activities of dependent entities? The most acute problem is affiliation with oil and gas companies. There is a widespread practice of underestimating the cost of extracted resources when they are sold to an intermediary who acts as an affiliate in relation to the company or is in other ties with the organizers of the purchase.

Why are such actions dangerous? They are criminal from a tax point of view. A decrease in the purchase price leads to a decrease in the taxable base and VAT. Such manipulations prevent the extraction of full rent in favor of the state. Since most of the profits are received by the intermediary.

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The courts conduct a thorough analysis of the affiliation of individuals. Judicial practice shows that if a legal entity has tax debts, the missing funds for debt recovery can be collected from affiliated entities (Determination of the Supreme Court of the Russian Federation of 02.11.2015 No. 305KG).

The presence of affiliation between the participants of legal relations does not serve as a reason for depriving them of guarantees and does not entail negative consequences. However, the timely establishment of the fact of dependence helps to reduce the risks in transactions.

Disputes during public auction

Conducting public auctions (auctions) requires verification of the affiliation of participants (Federal Law of May 2013 No. 44-FZ). The law establishes restrictions for the participants of the procurement commission. They belong to the category of persons who may be interested in the results of the auction.

To avoid misunderstandings, auction participants can provide a letter of no affiliation. Situations are not uncommon when two companies with the same owner apply for one lot.

One organization supports another. Scheme of work - one participant makes the minimum bet. The second player immediately bids too high. Due to the refusal of other participants to raise the bid, the auction stops.

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However, later the second player refuses to pay for the lot. As a consequence, the first participant who acts as an affiliate wins.

How to prove the affiliation of persons? If there are suspicions of dishonesty of bidders, it is necessary to trace the chain of beneficiaries. If the fact of interest is revealed and evidence is provided, such a transaction is recognized as illegal in court. The consequences of invalidity apply to it (Article 10, 168 of the Civil Code of the Russian Federation).

Bankruptcy conflicts

Lack of affiliation is an important feature in a bankruptcy case. Fraud consists in reaching a preliminary agreement between the debtor and one of the participants to create an artificial debt.

Including it in the register of the creditor's claim allows the interested person to receive money at the expense of the bankruptcy estate, which puts him in a more advantageous position over other participants. The presence of an evidence base is the basis for recognizing the abuse of the right and rejecting the claims of the person concerned.

Disputes in the arbitration court

The task of the arbitration court is to oppose two concepts - impartiality and affiliation. Since the court is part of the executive system. However, the hearing of the case may be initiated by one of the current employees of the company (chambers of entrepreneurs, business guilds, associations). Conflicts of interest can be avoided by observing the statutory guarantees of a fair trial.

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What is it - affiliated or interdependent persons?

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Affiliates are interdependent entities, however, it is risky to identify these definitions, despite the obvious similarity of concepts. Let's see why.

Affiliation - essence and application

A detailed idea of ​​affiliation is provided by Art. 4 of the Law "On Competition ..." dated March 22, 1991 No. 948-1, not only setting out the essence of this concept, but also providing a list of persons considered affiliated to legal entities and individual entrepreneurs.

This law defines affiliation as the ability of legal entities and individuals to influence the activities (decision-making, work results) of legal entities and individual entrepreneurs. The Civil Code of the Russian Federation (Article 53.2) links such influence with the onset of legal consequences and identifies affiliation with the definition of "connectedness".

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For a legal entity, affiliates will be:

  • individuals who are members of the collegial management bodies of it or who manage it alone (including the collegiate and sole heads of the management bodies of a financial and industrial group, if the legal entity is a member of such a group);
  • persons (both legal entities and individuals) owning more than a 20% stake in its authorized capital;
  • a legal entity or individual forming a group with him.

For individual entrepreneurs, affiliation arises in relation to:

  • legal entities in which he owns more than a 20% share in the authorized capital;
  • legal entities or individuals forming a common group with him.

The general group is considered (Article 9 of the Law "On Protection of Competition" dated July 26, 2006 No. 135-FZ) if there is:

  • for an individual or legal entity - more than a 50% share in the authorized capital of the organization;
  • at the legal entity:
    • a sole executive body represented by both individuals and legal entities;
    • persons (individuals or legal entities) entitled to issue instructions binding on them (including recommendations on the appointment of a sole or collegial executive body);
  • two legal entities have management, more than half consisting of the same persons;
  • for an individual - a spouse (wife) and close relatives (including those with the rights of adoption);
  • for persons (individuals or legal entities) already included in a certain group - other persons (individuals or legal entities), relations with which correspond to the signs of joining a group;
  • one of the persons (individuals or legal entities) forming the group has more than a 50% share in the authorized capital of the organization.

The concept of affiliation is used in a wide variety of legal areas, for example, such as legislation:

  • on taxes (clause 2, article 269 of the Tax Code of the Russian Federation);
  • bankruptcy;
  • issue of securities;
  • JSC and LLC;
  • labor (in terms of the dismissal of the heads of the Federal State Unitary Enterprise);
  • connections.

For information on the grounds for the dismissal of the head of a legal entity contained in the Labor Code of the Russian Federation, read the material “Art. 81 of the Labor Code of the Russian Federation: questions and answers.

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Interdependence is a concept significant for the Tax Code of the Russian Federation

In the tax legislation, despite the presence in the Tax Code of the Russian Federation of the term "affiliated persons" (clause 2 of article 269), the concept of interdependence is more widely used. A decoding of its essence and a list of situations in which persons become interdependent are contained in Art. 20 and 105.1 of the Tax Code of the Russian Federation.

Interdependence arises when persons (legal or natural) have the ability to independently or through their dependent persons influence:

  • conditions of concluded transactions;
  • the results of concluded transactions or the results of ongoing activities.

Influence can be exercised through:

  • participation in the authorized capital;
  • an agreement concluded between persons;
  • other possibilities.
  • a legal entity and legal entities and individuals with a stake in its authorized capital exceeding 25%;
  • 2 legal entities that have in each of them more than a 25% share of the same person;
  • a legal entity and legal entities or individuals who have the opportunity to appoint its sole executive body or at least 50% of the composition of the collegiate body (including through their interdependent persons);
  • 2 legal entities whose collective management body consists of more than 50% of the same people.
  • a legal entity and its sole executive body, as well as 2 legal entities having the same sole executive body;
  • a legal entity and legal entities or individuals who in the chain (in each subsequent organization) have a participation share exceeding 50%;
  • individuals with relationships based on subordination;
  • individuals who have a spouse or close relatives (including on the basis of adoption), as well as those who are in a relationship of guardianship.

In relation to an individual, the size of the share of his participation in a legal entity is estimated by the total participation of not only himself, but also individuals who are interdependent for him (spouses, close relatives, as well as those with whom relations arose under the terms of adoption or guardianship).

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It is possible to recognize as interdependent persons:

  • voluntarily declare themselves as such;
  • by a court decision, including on grounds not listed in Art. 105.1 of the Tax Code of the Russian Federation.

Not recognized as dependent:

  • transactions, the completion of which is due to the predominant position of its participant (participants) in the market;
  • participation of the state or its subjects in Russian legal entities.

The presence of interdependence is taken into account in such issues of tax legislation as:

  • transactions subject to control (Art. 40, 45, Ch. 14.2-14.5 of the Tax Code of the Russian Federation);
  • taxation of personal income tax on income from maturities (Articles 212, 217 of the Tax Code of the Russian Federation);
  • determination of the value of the property tax deduction (Article 220 of the Tax Code of the Russian Federation);
  • restoration of the depreciation premium in case of early (before the expiration of 5 years from commissioning) sale of a fixed asset (paragraph 9 of article 258, subparagraph 1 of paragraph 1 of article 268 of the Tax Code of the Russian Federation);
  • determination of the amount of interest on debt obligations taken into account in expenses when calculating income tax (Article 269 of the Tax Code of the Russian Federation);
  • application of tax relief in respect of movable property registered after 2012 (clause 25, article 381 of the Tax Code of the Russian Federation);
  • taxation of foreign legal entities operating in the territory of the Russian Federation (Articles 306, 308, 309.1 of the Tax Code of the Russian Federation).

Affiliates and related parties - differences

Even with a cursory glance, it becomes obvious that there are inconsistencies in the concepts under consideration, that is, it should be recognized that affiliated persons and interdependent persons are not the same thing. Since the concept of affiliation is used more widely, interdependence can be considered a particular variant of it, applicable only in one specific area. Or, to put it simply, related parties are affiliates for the purposes of the RF Tax Code.

Both concepts are very similar both in meaning and in the description of situations of affiliation (interdependence). Differences occur at the following points:

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  • the minimum participation of a legal entity or individual in the authorized capital of an organization for affiliation is 20%, and for interdependence - 25%;
  • the criteria for recognizing interdependence on the basis of kinship are wider than with affiliation, since they additionally include guardianship relationships;
  • for the interdependence of individuals, there is such a criterion as a relationship of subordination, which is absent from affiliation;
  • interdependence can be recognized voluntarily or by court order, which is not accepted for affiliation.

And, of course, the areas of application of the concepts under consideration differ significantly.

What lies behind the definition of "related parties"

There is another definition that arises in connection with affiliates and related parties - this is the concept of "related parties" used in RAS 11/2008 (approved by order of the Ministry of Finance of Russia dated April 29, 2008 No. 48n). According to the text of this document, legal entities and individuals that can influence its activities, or those legal entities and individuals whose activities can be influenced by a legal entity, are considered parties related to a legal entity.

The number of persons recognized as related parties in relation to the legal entity compiling accounting statements using PBU 11/2008 includes:

  • persons affiliated with it (both legal entities and individuals);
  • organizations and individual entrepreneurs conducting joint activities with him;
  • non-state pension funds accumulating pension funds of employees of a legal entity or other organization that is a related party to it.

The application of PBU 11/2008 is mandatory with a significant level of influence. However, legal entities using simplified accounting methods may not be guided by this document.

Results

Affiliated persons and interdependent persons are different concepts, based on different documents and applied in different areas of legislation. Despite the significant similarity of their meaning, there are a number of significant differences between them.

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Affiliation of legal entities is: what is affiliation of companies?

Commentary on Article 53.2 of the Civil Code of the Russian Federation

The commented article contains a blanket norm that includes only a hypothesis, i.e. an indication of the conditions under which it operates. The purpose of this norm is to legalize the use of the concept of "affiliation". The Code does not disclose any signs or criteria of affiliation, addressing participants in legal relations to a law not named in the Civil Code.

Currently, the concept of affiliated persons is contained in Art. 4 of the Law of the RSFSR of March 22, 1991 N "On Competition and Restriction of Monopolistic Activities in Commodity Markets" (as amended on July 26, 2006) (Vedomosti SND i VS RSFSR. 1991. N 16. Art. 499): ". affiliated persons of an individual engaged in entrepreneurial activity are:

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Persons belonging to the group of persons to which the individual belongs;

A legal entity in which this individual has the right to dispose of more than 20 percent of the total number of votes attributable to voting shares or contributions, shares of this legal entity that make up the authorized or share capital.

During the discussion of the draft Art. 53.2 of the Civil Code, different points of view were expressed on the advisability of including rules on affiliation in the Civil Code.

In one of the first editions of the draft of this article, it was proposed to recognize the existence of affiliation:

“1) between a controlling person (including its affiliates) and a controlled person, as well as between persons under common control, determined on the grounds provided for in Article 53.3 of this Code, with the exception of persons under common control of public legal entities;

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2) between an individual and his spouse, their parents, children, full and half brothers and sisters, adoptive parents and adopted children, grandparents, grandchildren, nephews and nieces, uncles and aunts;

3) between a legal entity and persons performing the functions of a management body or members of a collegial management body of this legal entity, as well as persons recognized as affiliated with them in accordance with subparagraph 2 of this paragraph;

4) between a legal entity and a person having the ability, independently or jointly with other persons, directly or indirectly (through third parties), to coordinately dispose of more than twenty percent of the total number of votes of participants in this legal entity, as well as its affiliates;

5) between legal entities in which the functions of the management body and (or) the majority of members of the collegiate management body are performed by the same persons and (or) their affiliates;

6) between legal entities, in which one and the same person has the opportunity, independently or jointly with other persons, directly or indirectly (through third parties), to coordinately dispose of more than twenty percent of the total number of votes of participants in each of these legal entities or one of them, being while controlling in relation to the other. At the same time, legal entities are not considered affiliated on this basis, the participant of which is a public legal entity with an appropriate share of participation;

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7) between legal entities, in one of which the person and (or) its affiliates perform the functions of a governing body, and in the other they have the opportunity, independently or jointly with other persons, directly or indirectly (through third parties) to coordinately dispose of more than twenty percent of the total votes of the participants of this legal entity or are a controlling person;

8) between a business partnership and a general partner.

3. The court may recognize the absence of affiliation between an individual and the persons specified in subparagraph 2 of paragraph 2 of this article, if it is proved that they did not have the actual opportunity to influence the activities of the relevant individual.

4. The court may recognize the existence of affiliation between persons, despite the absence of the grounds specified in paragraph 2 of this article, if it is proved that these persons received the actual opportunity to influence the legal entity as a result of their concerted actions.

In the final version of Art. 53.2 of the Civil Code, the list of signs of affiliation was excluded from the Civil Code. E.A. Sukhanov pointed out "the impossibility and inexpediency of creating both a special civil law concept of affiliation and a single concept of affiliation, common to all current legislation - from tax to antimonopoly" (Sukhanov E.A. Comparative corporate law. P. 252). If necessary, affiliation rules can be included in special laws.

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Affiliated and related parties - what is it?

Affiliates are related entities. How true this statement is, we will understand in the presented article. Below we will also analyze what view of the content of these concepts has developed in judicial practice.

Affiliates: basic information

The current legislation of the Russian Federation contains the following definitions of such a term as affiliates:

  • individuals and organizations capable of influencing the activities of legal entities and / or individuals engaged in entrepreneurial activities (Article 4 of the Law of the RSFSR “On Competition.” dated March 22, 1991 No. 948-I, hereinafter referred to as the Law on Competition);
  • persons between whom there are certain relations of connection, depending on the existence of which the law makes the possibility of certain legal consequences (Article 53.2 of the Civil Code of the Russian Federation).

The mention of this term without decoding for the purposes of a particular law is found in many other regulations. For example, in Art. 88 of the Law "On Joint Stock Companies" dated December 26, 1995 No. 208-FZ (for more details, see the article List of affiliated persons of a joint-stock company (nuances)).

In any case, a necessary feature of an affiliated person is the existence of a relationship of dependence between such a person and its affiliated person. Moreover, these relationships can be of a different nature:

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  • property (based on participation in the authorized capital of the organization);
  • contractual (the possibility of influence by virtue of agreements);
  • organizational (associated with the opportunity to participate in the management of the organization), etc.

Criteria for qualifying as affiliates

Such criteria are set out in Art. 4 competition laws.

The affiliates of the organization are:

  • members of the governing collegial body of such a legal entity or its head (the rule also applies to a member of a financial and industrial group);
  • members of the group of persons to which such an organization is a member;
  • entities owning more than 20% of the votes or a similar share in the authorized capital of such an organization;
  • a legal entity in which the organization in question has more than 20% of voting shares or a similar share in the authorized capital.

Affiliated persons of an individual entrepreneur are:

  • persons belonging to the same group of persons with such IP;
  • an organization in which this individual entrepreneur has more than 20% of the votes or a similar share in the authorized capital.

Related parties: general provisions

The term of interdependence of persons is introduced by the Tax Code of the Russian Federation (hereinafter referred to as the Tax Code of the Russian Federation), while the concept is deciphered immediately in 2 norms:

  • Art. 20 of the Tax Code of the Russian Federation: such entities are recognized, the relations between which can influence the conditions of transactions concluded between them and the results of economic activity;
  • Art. 105.1 of the Tax Code of the Russian Federation: entities are recognized as such, the features of the existing relations between which may affect the terms of transactions between them, as well as the result of such transactions or the economic results of their activities.

Obviously, these definitions correlate with each other and do not contradict each other. However, the second norm gives a more detailed list of characteristics that subjects must meet in order to be recognized as interdependent (see paragraph 2 of Article 105.1). The list of criteria for the interdependence of persons enshrined in the Tax Code of the Russian Federation is not exhaustive, and the court may recognize this relationship between persons on other grounds not mentioned in the code.

In this case, the following set of conditions must be met:

  • the presence in the law or other legal acts of formal criteria for interdependence;
  • the presence of a “cause-effect” relationship between the fact of interdependence and the results of transactions made by these subjects (see the definition of the Constitutional Court of the Russian Federation of December 4, 2003 No. 441-O, the decision of the 15th AAS of September 16, 2016 in case No. A / 2015).

Affiliates and related parties: differences

As can be seen from the material presented above, affiliates are interdependent persons in their legal essence, with the main difference that the first term is used in civil law, and the second in tax law, although, in fact, they can be called identical.

Judicial practice confirms this conclusion, while the concepts of affiliation and interdependence are separated by the court precisely in order to specify the rationale for the conclusions within the framework of tax and civil claims.

For example, the court pointed out that it was the affiliation of persons that was proved by the tax authority, and no evidence was presented that these affiliated persons are interdependent persons in the understanding of the Tax Code of the Russian Federation (see the decision of the Arbitration Court of the Kemerovo Region dated June 16, 2017 in case No. A /2016). Thus, the court established the possibility of influence of one of the persons on other participants in the transaction, however, such ties did not meet the criteria of interdependence specifically for the purposes of the Tax Code of the Russian Federation.

group of people

Another term, similar in meaning to those discussed above, is a group of persons. The definition is given in Art. 9 of the Law "On Protection of Competition" dated July 26, 2006 No. 135-FZ. Thus, a group of persons includes entities that meet at least 1 of the criteria below:

  • organization and entity (individual or legal entity) having more than 50% of votes in the authorized capital of such organization;
  • an organization and a subject (individual or legal entity) exercising the functions of the sole executive body of such an organization;
  • organization and entity (individual or legal entity) having the legal right to give organizations binding orders;
  • organization and entity (individual or legal entity), at the suggestion of which the head of such organization was appointed;
  • organization and entity (individual or legal entity), at the suggestion of which more than 50% of the composition of the collegial executive body was elected;
  • individual and his relatives: spouse, parents/adoptive parents, children/adopted, full and half brothers and sisters.

At the same time, if any person is included in a group of persons according to at least one of the signs indicated above, it is automatically considered to be included in the group of persons to which the subject, who has the indicated ties with such person, belongs. A similar rule also applies in a situation where any of the participants in a group of persons has more than 50% of the votes in the authorized capital of the organization.

Interested persons

The meaning of these legal terms is revealed through the definitions we have already considered above.

Thus, the following are recognized as interested parties in relation to the debtor (Article 19 of the Law “On Insolvency (Bankruptcy)” of October 26, 2002 No. 127-FZ):

  • persons belonging to the same group as the debtor;
  • affiliates of the debtor.

The mentioned law also contains a reference to other legal acts regulating specific types of legal relations. For example, the following entities will be recognized as interested in the transaction (Clause 1, Article 45 of the Law "On LLC" dated February 8, 1998 No. 14-FZ): a party, beneficiary, intermediary or representative in such a transaction or their controlling person or person carrying out management of these entities.

The criteria for referring to interested parties can be enshrined in the charter of the organization (clause 1 of article 22 “On state and municipal unitary enterprises” dated November 14, 2002 No. 161-FZ).

Summarizing the above, we can conclude that affiliates are interdependent entities. At the same time, it is for the purposes of taxation that the term “interdependent” is usually used, and many judges consider it necessary to distinguish between these concepts in relation to precisely tax claims.

A systematic analysis of the norms shows that in the legislation the concepts of an affiliated person and an interested person or a member of a group of persons are separated, although in fact they are inextricably linked with each other.

Very often in a professional environment you can hear such a legislative term as "affiliate". What is this term and who can usually be called such a term in the legal field, we will consider in the article.

The concept of "affiliated": what is it and where did it come from?

First, let's figure out what the very concept of "affiliated" means and to whom it can be addressed. In colloquial speech, this adjective practically does not occur, so most people simply do not know what they are talking about. However, often this word can be heard on the news or analytical articles when it comes to fraud in the economic or legal sphere, as well as operations in these planes, obscure to the average citizen. You can often hear about affiliated persons or law firms, and even about affiliated Internet resources.

The word itself has Latin roots and originally referred to the word "son" (later the word "branch" was formed from this word), and the later English version of affiliate literally means "to attach something", and the English noun affiliation is translated as "connection" or "compound".

Thus, we see that the word "affiliated" in colloquial Russian means connected or affiliated.

Since the word in Russian is not very common, often you can find different options its Russian transcription, however, the form "affiliated" is the only correct one.

As we have understood, an affiliated object is one on which the activities of others, less significant, depend. Now let's consider what this concept is from the point of view of law.

Who can be an affiliate or company?

So, from a legal point of view, an affiliate is a person or an organization that able to directly influence for the work of another legal entity, whether it be a large company or an individual entrepreneur.

This can also be considered by companies, and not only subsidiaries, but also those structures that have the right to manage the activities of other companies and legal organizations.

In the Russian tax code, this concept itself does not exist, but it has been replaced by a more understandable name - an interdependent person.

Who is considered an affiliate: a list of personalities and structures

For a company or other organization that is considered a legal entity, affiliates are categories such as:

  • sole executives, board of directors or supervisory structure;
  • citizens who are in the same group as the organization itself;
  • persons owning more than 20% of the shares of this structure or its authorized capital;
  • a company in which the structure in question has 20 or more percent of shares or capital (it is worth noting that affiliation is a two-way process);
  • if the company is part of a financial or industrial group, then this is the management of that group.

In the case of individual entrepreneurs, affiliates are:

  • those persons who are included in the same group of persons with the entrepreneur;
  • a company or firm in which the entrepreneur has a share or part of the authorized capital in the amount of more than twenty percent.

Affiliate Group: Who are they and who can be in it?

When we listed who can act as affiliates in relation to a legal entity or an individual entrepreneur, a group of persons was mentioned in which a company or entrepreneur may be a member. So, the members of such a group in the case of an individual entrepreneur are his closest relatives, including spouses, children, parents, brothers or sisters. But the members of the group for the company are such categories of persons who:

  • may dispose of more than half of the votes of the shares of the company or more than half of its share;
  • single-handedly manage this company or structure;
  • have the right to give instructions requiring unquestioning implementation;
  • represent the majority of the supervisory and executive staff of the company's management body;
  • have the right to appoint or elect a nominal head of the company;
  • take part in the selection of most of the members of the supervisory and executive staff of the company.

It is quite natural that members of a particular group may intersect and unite. For example, if two members of two different groups have a lot of influence in the third group, but from a legislative point of view, the first two groups should be considered as one.

Is it necessary to provide information about affiliates?

According to the legislation, which is devoted to the problems of monopolization, joint-stock companies required to provide such lists. the authorities. Such a report is required both to government agencies and shareholders, as well as for accounting reports.

Why is this account necessary? The fact is that in cases where some entrepreneurs are able to strongly influence commercial structures, phenomena such as:

  • biased and overpriced pricing;
  • persecution of competing structures using non-market methods;
  • formation of monopolies.

If such a process is uncontrolled, then it leads to the destruction of entire markets, and at different levels. In the Russian Federation, such records are maintained by the Antimonopoly Service.

What is an affiliate site?

There is also the concept of an affiliated Internet resource. In this context, this concept means somewhat different than in the legal one. So, an affiliated site is a site that created for the purpose of promoting main. It can also be called a doorway or a satellite. Developers can create a huge amount of affiliate resources, which will eventually lead the user to the site that is being promoted.

As you can see, when explaining the concept of affiliation, it becomes more understandable and you can understand what your interlocutor means by mentioning some affiliates in a conversation or talking about the presence of affiliated sites around some major resource on the Internet.