What is an affiliate. Affiliate company - what is it in simple words Affiliates

The term affiliates is widely used in business practice. Let us consider in detail what affiliates are, and in connection with what they are talking about. First of all, this concept is used in managerial relations between two business entities.

Affiliation - the ability of an organization or person to influence and IP. But this connection is always two-way and often affiliation is called interdependence. Sometimes the concept is interpreted as entry into membership.

IN business communication It is customary to talk about the affiliation of a person - an individual or a legal entity. This means that there is a special managerial relationship between the affiliate and the firm itself. As a result, property dependence arises, and family ties play an important role in such relations.

The term appeared for the first time in 1992 with the adoption of the first law on competition. In general, affiliation relates more to the sphere of corporate law and the securities market. In modern antimonopoly laws, the concept of “circle of persons” appears, and in tax law, the term “interdependence”.

Affiliates

Corporations and people who influence other companies in the decision-making process are called affiliates. They directly control the activities of the company, such as a director, or participate in making key decisions for the company or individual entrepreneur:

• purchase and sale
• reorganize the company through a merger or acquisition
• change the leadership structure

Affiliates directly influence each other, representing a group of related entities. In order to remain competitive in the market and control transactions with interested parties, all companies are required to compile and maintain records of affiliates. Based on the type of activity, these data are officially published or submitted to the Central Bank of the Russian Federation, to the exchange, to counterparties when concluding transactions. It is these lists that are most often encountered when working with banks, joint-stock companies, public companies, firms-monopolists in a particular product market.

Affiliation Information individual organization, its director and founders is necessary to check counterparties when concluding contracts, to make a decision on the expediency of the transaction.

Regulations

The terminology adopted in Russia is formulated less clearly than in foreign legal regulations Oh. In addition, different branches of law interpret essentially the same concept with individual variations (Table 1).

Affiliation is explicitly stated in Art. 53 of the Civil Code. In the old Law of the RSFSR No. 948-1, adopted back in March 1991, the concepts of interconnectedness were first given. Now from this law only original definitions, and all other provisions in 2006 were replaced by antimonopoly law No. 135-FZ. It also talks about a group of people and gives exhaustive explanations about the members of such a group.

Video about who these affiliates are:

A definition of interdependence similar to affiliation exists in Art. 20 and chapter 14, art. 105.1 and 105.2 of the Tax Code. At the same time, a more detailed description of dependent persons is given in Art. 105.

Composition of the list of persons

According to the law No. 948-1 still in force, the affiliates for specific organization includes certain subjects.

Consider the example of the company JSC "San":

Here is the definition of affiliates for individual entrepreneurs:

• all entrepreneurs and companies included in the group of persons, which directly includes the individual entrepreneur
• corporations, the founder of which is an individual entrepreneur and at the same time he owns at least 20% of the shares, shares

The law does not say anything about family ties between affiliated entrepreneurs and companies, but this is clearly stated in the relevant articles of the Tax Code.

Signs of an affiliate

An organization or person is recognized as affiliated or interdependent if:

According to the articles of the Tax Code of the Russian Federation, not only direct family ties mean affiliation: guardians and wards also refer to direct relatives.

Other organizations directly connected with his relatives are also considered to be a group of persons of a citizen.

An important point of difference between interdependence and affiliation:

1. Interdependence is recognized voluntarily, and affiliation is established only on relevant grounds.
2. To be recognized as an affiliation, it is enough for a person to own 20% of the authorized capital of another company, and for interdependence, 25% of the participation is required.

Rights and obligations

The rights of affiliated companies are not indicated in any way in Russian legislation. They are allowed to conduct general financial and economic activities within the framework of antimonopoly federal laws, anti-corruption legal norms, strictly observing Russian laws.

Responsibilities are more clearly defined and there are many more of them than other business entities. Affiliates are required to keep the business corporations with which they are affiliated regularly informed of their position. They also have certain rules for concluding transactions, which are called controlled transactions in the tax legislation.

An important duty of joint-stock companies is to maintain a register of affiliated persons. Together with the published statements, joint-stock companies place this list on the Internet on their own website.

The most difficult moment for joint-stock companies is control over, if they are allowed to acquire stakes in other corporations. In the absence of information about the acquisition by a subsidiary of a block of shares in a certain company, whose shares have already been acquired by the JSC, it will immediately acquire the status of an affiliate of this company.

Eg, subsidiary JSC "Vella" of the corporation "Gamma" acquired a 6% stake in the company "Alfa". But Gamma already has a 14% stake in Alfa, and after the purchase of the remaining 6% by Vella JSC, it automatically becomes an affiliate of Alfa JSC.

Responsibility

The current legal and regulatory framework does not provide for separate liability for affiliates. When entering a certain group of JSCs, PJSCs are required to report this. They are liable to the corporation for withholding information if, for this reason, the company suffered property damage.

There is no liability whatsoever for an LLC for failing to provide details of affiliation. Banks bear administrative responsibility for incomplete data.

When concluding transactions, a group of affiliated entities bears tax liability in case of artificially inflating or lowering prices below market rates.

Accounting for affiliates

Joint-stock companies are required to provide information about affiliation in the form of a special register. When trading the company's shares on the stock exchange, this list is sent without fail to the organizer of the auction and to the Central Bank along with quarterly reports. Also, JSCs and PJSCs are obliged to openly place these lists on their own websites and keep the information submitted for review for 3 years.

Rules for maintaining the register of affiliates

Certain requirements for maintaining such a register have been developed. The form of accounting is chosen and approved by a separate order directly by the organization. It must contain the following details:

• full name
• legal address
• Company details
• date of affiliation
• event description
• name of the natural person and his address
• the size of the share in the authorized capital

The law does not specify the terms for updating information, the dates and terms are set directly by the company itself. As a rule, such data is updated once a quarter or a year.

Why information is required

Information about affiliated persons must be kept in open access to check the company by its counterparties.

Such a list is required when tax authorities check controlled transactions with related parties. The publication of information is necessary in order to counteract monopoly market behavior, the formation of secret price collusion and the exclusion of competitors. Published data simplifies the procedure for processing related party transactions.

Differences between affiliates and related parties

The concept of connectedness of the parties is enshrined in RAS 11/2008. This term is more extensive and, in addition to the standard signs of affiliation, includes 2 more categories of business entities:

• participants simple partnership, leading joint activities under general or simple partnership agreements
• organizations that have entered into agreements with various non-governmental pension funds for maintenance, and also includes all legal entities associated with such organizations

Affiliate Distinguished Videos:

Affiliate Example

In order not to make information about affiliation complicated and confusing, we will give a simple example.

In LLC "Vorontsovskoye" director and sole member Maksimov A.E. His wife Maksimova E.V. owns 60% in PIK LLC, which provides legal services, and his daughter has her own IP Beauty Salon Aphrodite. All three are interdependent entities and are part of a group of entities as defined by the antimonopoly law.

Maksimov controls Vorontsovskoye LLC and influences his wife when she makes decisions at PIK. Also, his wife influences Maksimov in the management of the Vorontsovskoye company. Their daughter is able to influence her parents in the management of both firms.

Affiliation will be key if family members begin to do joint sales and purchase transactions and apply lower prices in order to save taxes.

Definition of a group of persons

The group of persons is described in detail in Art. 9 of the latest antitrust law of 2006. This term includes entrepreneurs and organizations with full control firm's performance compared to other participants. Possessing 50% of the shares, shares, and sometimes more, they have the right to fully manage the company. Instructions of such persons are obligatory for execution.

Affiliates are able to control other business entities, but are required to act within the framework of established federal antitrust laws, complying with the requirements of civil and tax laws. All transactions made by affiliates must not be detrimental to corporations. Moreover, each contract between them is strictly controlled by inspection bodies. Business entities are required to regularly report on the presence of affiliation.

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The concept of "affiliates" is most often found in corporate reports and in the chronicles of economic crimes. Business optimization - and the withdrawal of assets, the development of the company - and fictitious transactions ... Who are affiliates? How to determine them in foreign companies and how to keep records in your own?

Affiliates are all persons who, by their status, can influence management decisions in an organization or individual entrepreneur. Influence means control over the development strategy of the enterprise, decision-making on mergers and acquisitions, big deals(purchasing or selling), management structure, etc.

The term "affiliation" comes from the English "affiliate" - "branch", "branch", "partner", "affiliated".

Legislation in Russia does not describe the affiliation of legal entities as clearly as in Western countries - we have a broader concept. The Tax Code of the Russian Federation (Articles 20; 105.1 and 105.2) contains the concept of interdependent persons. The law of the RSFSR dated March 22, 1991, No. 948-1 (Article 4), which is still in force, briefly lists affiliates and indicates the main signs of affiliation.

Signs of an affiliate

• Has the right to vote at meetings of shareholders of OJSC or participants of LLC.
• Owns a block of shares that allows you to influence the decisions of the meeting of shareholders, or shares in the authorized capital. For example, PJSC Gazprom owns 100% of the shares of OOO Gazprom transgaz Ufa and, in accordance with this, exercises direct control, being an affiliate for its Ufa subsidiary.
• Has family ties with managers/members of the board of directors/owners of the organization. David Traktovenko owns the Saint Petersburg Banking House holding, and his son Vyacheslav is the chairman of the board of directors of the Mix cafeteria chain and the Fitness Formula fitness club chain. The first in relation to the second is an affiliated person.
• The right to cancel or suspend decisions executive bodies company (if the affiliate is a board member).

Who can be an affiliate

Legal entities can be affiliated with both organizations and individuals. Their list includes:

• head of the executive body of the legal entity. For example, Vagit Alekperov, who formally owns a 2.5% stake in Lukoil, is a person exercising the powers of the sole executive body of this company, and therefore affiliated;
• member of the board of directors, supervisory board or other collegial body of a legal entity. Gregor Mowat or Timothy Demchenko do not have shares in Magnit, but in 2018 they are members of its board of directors, and, accordingly, are recognized as affiliates;
• owners of more than 20% of shares or shares in the authorized capital. Rosneftegaz owns 50% of the shares of PJSC Rosneft and, on this basis, is an affiliate;
• a dependent organization in which this legal entity owns more than 20% (for example, subsidiary);
• firms belonging to the same group of persons (more on this in the next chapter) as this company.

Individuals can be affiliated:

• for organizations in which these individuals control more than 20% of the shares in the authorized capital;
• from other companies that are part of the same group as the individual.

What is a group of affiliates

This term is taken from Law No. 135-FZ "On Protection of Competition". It can mean several options. So, the group of affiliated persons is:

1 Several enterprises belonging to the same financial and industrial group. For example, Kachkanarsky GOK, which is part of the EVRAZ company, belongs to the group of affiliates with Evrazruda, Yuzhkuzbassugol, Nizhny Tagil Iron and Steel Works and a dozen other legal entities.

2 Direct relatives (spouses, parents/adoptive parents, children, brothers and sisters) and their legal entities. For example, the Safmar holding is owned by Sait-Salam and Said Gutseriev. This is the brother and son of the owner of the Russneft company, Mikhail Gutseriev. All their legal entities are included in the group of affiliates.

3 Legal or natural person and organizations in which the mentioned persons have more than 50% of shares or shares in the authorized capital. Affiliated companies can be both limited liability companies and open joint-stock companies; this is not separated in the legislation.

4 Individuals and firms in which this person is the sole manager (for example, the general director).

5 Physical or entity and organizations that said persons are entitled (based on constituent documents) provide guidance that is binding.

6 Several organizations with more than 50% of the same people on the board of directors.

7 An individual or legal entity and organizations whose general directors and/or more than 50% of the members of the board of directors are elected at the suggestion of the above persons. For this reason, for example, Russian Helicopters, United Engine Corporation, Moscow and Kazan helicopter factories and more than 10 legal entities.

The rights of affiliated persons are not established in any special way by the legislation. They fully comply with the rights of other persons participating in the economy of the Russian Federation. Dependent and controlling organizations and individuals have the right to conduct joint economic activity, coordinate their development strategies, but do not go beyond the antimonopoly norms and requirements of anti-corruption legislation.

But affiliates have more obligations than other market participants. They are not described in a specific legislative act, but they arise from the general meaning of the activities of a group of enterprises related to each other. These responsibilities are:

1 Inform counterparties of their affiliation with other parties in the event of related-party transactions (in this case, when one of the parties to the transaction is an affiliate or dependent person). Liability for violation of this requirement arises only if the counterparty has proved that the damage was caused to him by failure to provide information. The deal may be cancelled.

2 Inform about the emergence of affiliation in case of acquisition of more than 20% of shares or shares in the authorized capital of another person. This paragraph applies only to joint-stock companies that are required to publish financial statements in accordance with the law. The affiliated company publishes information within 10 days in the official publisher of data on state registration of legal entities. The main difficulty is the control of subsidiaries and affiliates for the sale and purchase of small blocks of shares by them (if permitted by the Charter of the company). If your subsidiary A acquires, say, a 10% stake in company B, and you already own 10% of the same company B, then you, without knowing it, fall into the list of affiliates of the latter.

3 Maintain a list of affiliates. This obligation is more relevant for joint-stock companies than for LLCs, however, both of them should have a list. If a company places its shares on the stock exchange, it has an obligation to provide a list of affiliated persons to the Central Bank of the Russian Federation (as part of other reporting) and to the organizer of exchange trading. Also, these lists should be posted on the official websites of companies and be in public access at least 3 years from the date of placement and the same amount from the time of each update.

Who needs information about affiliates and why

Information about the affiliation of firms and individuals should be available (see clause 3 of the next chapter) so that participants in transactions can check counterparties. The list of affiliated companies is necessary in order to control and report to government agencies on transactions with dependent parties, not to violate antimonopoly and anti-corruption laws.

It simplifies the procedure for approving related-party transactions (no need to obtain extracts from state registers to prove the interdependence of persons). Also, this data is provided to own shareholders/participants of the LLC. Another addressee is the tax and other regulatory authorities during inspections (more on them in the chapter on the responsibility of affiliates).

Another important purpose of this information is internal control and protection from hostile takeovers. The simplest example is transactions for the purchase of blocks of shares in competing companies. Suppose CJSC First, which has a 30% stake in OJSC Second, decided to acquire another 21% and receive a controlling stake in this company. “Second” is not eager to sell securities to “First” and fall into complete dependence.

Then the “First” applies the following scheme: on the son CEO CJSC “First” is registered by LLC “Three”, which comes out with an offer to buy a stake in the company “Second”. Since an individual cannot have affiliates, and an LLC has the right not to publish information about its affiliates, the interest of CJSC “First” in the actions of LLC “Three” can only be traced through the reporting of the company “First”.

Therefore, for the management of JSC Vtoroy, upon receipt of an offer to purchase shares, it is important to trace the possible affiliation of a potential buyer, evaluating its probable connection with its main market ones. And if this is not done, the shares will be bought by Tretiy LLC, and then sold to its affiliate, CJSC First, a hostile takeover will take place.

How to maintain a list of affiliates

The procedure for accounting for affiliates for open and closed joint-stock companies, as well as LLC is approximately the same.

1 The head of the legal entity issues an order in which he appoints the person responsible for maintaining the list. You can leave control over yourself, but it is more expedient to shift this function to a lawyer.

2 The frequency of updating the list is set - once a year, half a year or a quarter, it all depends on the activity of the company and related parties in the stock market. The law does not stipulate such a frequency.

3 The storage location of the list is set, as well as the period in which access to it is opened. If we are talking about LLC, the list can be kept by the general director and provided upon request. OJSCs are required to post this data on their official website. Interested persons have the right to demand the list for viewing: shareholders or participants of LLC, credit organizations.

4 The person who has the right to sign the list is indicated.

The form of the list is chosen by the company itself. It must contain the following items:

• name of the company, its legal and postal address / full name and address for an individual;
• date of occurrence of affiliation, event (purchase of shares, appointment to a position, etc.).

Also, there may be a column with the size of the share in the authorized capital owned by the affiliate, and other information.

Here are some more examples:

What are the responsibilities of affiliates?

For violations in informing about affiliation, a person may incur several types of liability.

1 Responsibility for failure to provide information (including failure to provide it within the required period). If the company suffered damage through the fault of an affiliate, it must be compensated by the culprit in full. Both actual damage and lost profits are compensated.

2 Responsibility for the lack of a list of affiliated persons or its improper maintenance. Sanctions are provided for under Article 13.25 of the Code of Administrative Offenses of the Russian Federation: a fine for officials from 2,500 to 5,000 rubles, for a legal entity - from 200,000 to 300,000 rubles.

3 Responsibility for violation of the requirements for related party transactions. If information about a person's affiliation is not included in the relevant list, is not published or is deliberately withheld, this may become a reason for canceling a transaction that has not undergone a special approval procedure.

4 Responsibility for violation of pricing. Sales of goods or services between related parties always attract the close attention of the tax authorities. The affiliated person has every opportunity to influence the fact that the price was sharply reduced or, conversely, increased compared to the market one. Therefore, such transactions are subject to additional checks, and in case of violations, fines are imposed on the affiliated person in proportion to the amounts underpaid / overpaid during the transaction.

Related parties are checked in several ways:

• the prices used in the transaction are compared with the market ones;
• the purchase price from an affiliate is compared with the price of a subsequent sale to third-party consumers;
• compares the usual for such transactions with the profitability of a transaction between related parties;
• it is studied whether a part of the income received from the transaction went to an affiliate;
• the reporting of both firms on expenses is evaluated: whether one of them has excessive expenses or, on the contrary, minimal ones.

You can challenge the decision of the tax authorities to recover, but you need strong evidence. For example, in arbitration court Volga District in 2016, a case was considered about allegedly underpriced prices at which the company sold housing to members of its board of directors, previously purchased at a market price. The decision to sell was made by the same members of the collective executive body. However, the company introduced an internal regulation according to which the price of an apartment was set in a fixed amount more than 15 years ago and has not changed since then. The court ruled in favor of the defendant, the arguments of the tax inspectorate were considered interference with the legal commercial activity firms.

5 Responsibility for the withdrawal of assets from affiliated companies for the purpose of their intentional . Such violations are identified by the tax authorities. The following are considered signs of the withdrawal of assets from affiliates:

• a new legal entity was registered during the tax audit affiliated company;
• the new and old companies have the same actual addresses, phones, websites, activities;
• the assets of the affiliated company decrease, and new company- grow in approximately the same proportion;
• employees of an affiliated company go to work in a new company;
• contracts drawn up for the old company are re-executed for a new one;
• using a new company as an intermediary in transactions with an affiliated company;
• the transfer to the new company of brands, logos and other means of individualization from an affiliated company.

6 In the presence of one or more of these signs, falling under paragraph 2 of Article 45 of the Tax Code of the Russian Federation, the tax authorities are entitled to recover from the new company tax debts due to the affiliated company.

Example :

In 2015 in Supreme Court The Russian Federation considered an appeal (No. 306-KG) in the case of recovery of arrears from a related person. On the eve of the tax audit, the owner of the company registered a new legal entity. The name was the same as that of the person being checked, the type of activity coincided, the design of the official website (the address differed only in the underscore), the employees were hastily transferred to a new company. Both companies were run by the same person. No affiliate information new company did not publish and did not officially inform counterparties.

During the audit, it turned out that the sale of goods did not come to the original company, but to an intermediary, which turned out to be ... a new company. There were no settlements with the affiliated firm.

The court ruled that the activities of the new company were fully managed by the former legal entity in order to withdraw assets and evade taxation. The original firm was recognized as an affiliate, both companies - related.

FAQ

Affiliates and related parties - what's the difference?

The interdependence of individuals is special case affiliations. Used in the Tax Code of the Russian Federation to describe companies related by common owners/management, activities, etc. In the legislation, with all the similarity of descriptions, there is some difference between affiliated and related parties:

• an affiliate is a person who owns at least 20% of the shares or shares in the authorized capital of another company; interdependent - 25%;
• companies can be interdependent, in which the owners are not only parents, adoptive parents and children, but also guardians;
• an interdependent company can recognize itself voluntarily, affiliated - only on objective grounds.

I am the CEO of a company that is on the brink of bankruptcy. To pay off the next tax payment, he bought two cars from his company - at a price below the market, but they would have been sold at an auction for bankruptcy even cheaper. Can the tax office cancel the deal or charge me the cost of the cars because I'm an affiliate?

An affiliate is a person (natural or legal) capable of influencing the activities of individuals or legal entities that implement entrepreneurial activity. In simple terms, an affiliated person (person or organization) directly participates in the control over the joint-stock company.

The term "affiliate" used in Russian law was borrowed from Anglo-American law. The English verb affiliate denotes the verbs: connect, attach, bind.

“Affiliate someone” means to introduce into the management of one firm executive another.

In European law, affiliated companies are firms that are dependent on other companies. In Russian legislation, the word affiliated is used both for dependent and dominant persons. The main sign of affiliation is the ability to influence business activities.

Signs of an affiliate

An important sign of an affiliated person is the existence of a dependent relationship between an individual or legal entity and an affiliated person of this individual or legal entity.

This dependence is manifested in the following cases:

When an individual or legal entity owns a certain share of the authorized capital of a legal entity with the right to vote in the management body
- if an individual or legal entity, by virtue of a certain legal status(for example, the status of CEO or fund manager) has the right to issue binding instructions
- if there are certain family ties (family relations) between individuals

Affiliate of a legal entity

Affiliates of legal entities persons may be:

Member of the Supervisory Board or Board of Directors, member of the collegial executive body
- individual or a legal entity having the right to dispose of more than 20% of the total number of votes transferred to voting shares or constituting the authorized capital contribution from the share of a legal entity
- a legal entity, if it is a member of a financial-industrial group.

"Affiliation procedure" - the process of entry of one company into the structure of another without changing the owner.

Affiliate of an individual

Affiliated individuals business entities may be:

Persons who belong to the same group of persons as the individual
- legal entity, where physical. a person has the right to dispose of 20% of the total number of votes, which are transferred to voting shares or a contribution from the share of a legal entity that constitutes the authorized capital.

Joint-stock companies regularly submit information about their affiliates to the Federal Securities Commission. Also, any Joint-Stock Company is obliged to prepare lists of its affiliates for annual publication in the media. In addition, the lists must indicate the types and number of shares held by affiliates.