What are affiliates? Signs of affiliation of a company or organization under Russian law

The word “affiliation” is rarely heard in ordinary everyday speech, since most average citizens have no idea what it means. Meanwhile, it began to appear very often in news reports and various analytical materials. Especially if we're talking about about some kind of fraud or simply inaccessible ordinary people operations in the legal and economic spheres, as well as in economic and organizational activities. And here the question arises: affiliation - what is it? It’s worth figuring this out so you can understand what we’re talking about the next time you hear the word.

The concept of affiliation and its origin

This word comes from the English affiliate, derived from the Late Latin filialis, which means “filial.” In English, this word means accession, that is, the term affilation will mean “connection” or “connection”. So, understanding the concept of affiliation, what it is, we are already beginning to understand. It turns out that this is a connection, a connection, a subsidiary of something. If we talk about correct spelling, then here is “branch”, that is, the correct spelling is “affiliation”.

In a general sense, this word means the dependence of a certain object on a larger one, its connection or subordination to it. This term is often used in the context of conversations about companies and organizations; one can even consider such a concept as site affiliation.

Use of the term in different situations

So, if everything is more or less clear with the concept itself, then it is worth considering it in different contexts. If we talk about firms and companies, affiliation can also be used here. What this is becomes clear if we say that we are talking about the organization belonging to a large company as a branch. At the same time, a subsidiary may well carry out its own economic activities, own its own reporting, but support the direction of the main company, and also be completely dependent on the decisions of its management. Practice shows that today affiliation is often used to split a business artificially in order to evade paying taxes, which causes a lot of trouble for fiscal authorities and other government agencies.

Affiliates

This concept implies that an individual or legal entity has the right and methods to influence the work of a business entity expressed as an individual or legal entity, since it owns a share of its capital or is a member of the management body of the organization. This is where affiliation lies. What is it, and who can be considered such? Affiliated persons may include members of the supervisory board and the council, a member of the collegial executive body and others. They also include those who have the right to control more than twenty percent of the capital of the entire company or can influence the above positions.

When a legal entity enters a financial-industrial group, we can say that its members are also However, today this concept is more often used with a negative connotation, since it means participants or firms that have effective leverage over the legal entity, however hiding their presence in its economic activities.

It is also appropriate to use it on the Internet. And here, underneath it, there are sites that are given a supporting role in promoting the main resource, which is the parent one. They are often called satellites or doorways. Usually, an entire network is immediately created, consisting of doorways, which are intended to transfer users to the promoted resource. So, it’s worth considering affiliation, what it means in this context, using the example search engine"Yandex". Namely, how you can get out from under such a filter and which sites most often fall under it.

If contact information on two sites completely or partially matches, then Yandex perceives them as belonging to the same company, considering them affiliated. He has a special attitude towards them - and here his position is that affiliated resources cannot be shown simultaneously in the results search queries. That is, two of your sites will not appear simultaneously as a result of a search for one keyword, or Yandex will not display either of them at all.

Knowing that Yandex checks for affiliation, you should understand that such sites should not be promoted using overlapping lists of key queries, as this will not allow them to take top positions in search results. In the case where there is no intersection of the list of keywords, you can achieve the desired result.

How does this work?

The most relevant site will be shown in the search results for each search query. By this it should be understood that Yandex itself will determine which of them best matches the entered request. Of course, there are other factors that influence the position of a resource in the results: the age of the site, the quality and number of links to it, etc. Most often, the sites that fall under the filter are quite large companies, creating large number resources for each regional center or city.

How to avoid being filtered?

Most often it works automatically. A filter applied in this way is usually removed in the same way, so there is no point in writing long explanatory letters to the search engine support service. All you need to do is eliminate the signs of affiliation and wait until the filter is automatically removed. If you purchased a new domain for yourself, but have nothing to do with sites from the affiliate network, the filter will be removed very quickly. Often, it is enough for Yandex to have a similar range of products on sites, descriptions and similarity of domain names in order to recognize them as affiliated. The situation is aggravated if there is a match in the registration data of hosting and domains.

Business language uses various terms and concepts that may be unfamiliar to the average person. Their mention is so rare that many people are not even aware of their existence. One such term is “affiliation.” Let's find out what affiliated companies mean and look at the structure of such organizations.

An affiliate company is a company that depends on another organization

Meaning of the term

Affiliated companies are enterprises that have a stake in the main company, in amounts less than a controlling stake. Affiliated firms are a representative office or branch of a larger enterprise. It is important to note that parent organizations manage the subsidiary. Relevant contracts are used as the basis for managing the representative office. Affiliation is one of the ways to expand the scope of activities for interdependent organizations. A similar method is used when opening subsidiaries of large companies operating throughout the world.

Affiliated businesses are organizations that are managed by larger firms.

Variants such as “subsidiary” or “branches” can be used as synonyms for this term. The term “affiliation” appeared in the Russian dictionary in nineteen ninety-two and was borrowed from the English language.

The term in question is often used not only in relation to organizations, but also to individuals. Affiliates are those people who have a certain power of influence on the activities of business entities. This means that affiliated corporations can control the actions of organizations and individuals conducting business activities. It should be noted that in foreign countries the term in question has a more “narrow specialization”. In Europe, affiliation means a controlled company. On the territory Russian Federation, affiliated business entities are not only branches, but also enterprises acting as a parent organization.

Article 105 of the Tax Code of the Russian Federation establishes the meaning of the concept of “affiliation”. It is necessary to pay attention to the fact that, according to current legislation, such companies are recognized as interrelated. Let's understand the meaning of the term in question based on practical examples from life.

Affiliated individual entrepreneurs and LLCs

To the group of affiliated companies individual entrepreneurship includes objects belonging to the same category of persons as the owner of the individual entrepreneur. In the case when the owner of an individual entrepreneur owns twenty percent of the shares of another enterprise, the companies become interconnected with each other. This means that a person registered as an individual entrepreneur has the opportunity to control the work of a third-party enterprise.

1. The only leader.
2. Persons included in the founders, supervisory or director boards.
3. Companies belonging to the same group as the main enterprise.
4. Persons who own twenty percent of shares or financial assets included in the authorized capital of the organization.

In addition, such companies are considered to be those where legal entities have at their disposal more than twenty percent securities or financial resources available in the authorized capital. This example is considered as a two-way affiliation. In the case where a legal entity belongs to an economic or industrial group, the management of this group acts as the parent organization.

In order to correctly understand the meaning of the term in question, you should understand the concept of “group of persons”. The meaning of this concept is enshrined in the Federal Law “On Protection of Competition”. The group of persons of individual entrepreneurship includes children and parents of a person conducting economic activity. This group also includes spouses, brothers and sisters of the head of the company.

Entities belonging to the “group of persons of a legal entity” are determined based on a number of criteria. The main one of these parameters is the sole management of the organization. In addition, this person must have the right to manage a subsidiary, which is obliged to carry out all orders of the parent organization. Persons belonging to the “group of persons of a legal entity” have at their disposal more than half of the securities or financial assets included in the authorized capital of the enterprise. According to the Federal Law, in this category includes persons whose decision selected the head of the enterprise.

It is important to note that the executive and supervisory boards consist of the same persons. The executive council includes the management and administration of the enterprise. The supervisory board includes persons on the board of directors and the foundation of the organization. Also, persons included in the category under consideration include those people at whose proposal the citizens who became members of the executive or supervisory board were selected.

Subtleties and nuances of the activities of interconnected organizations

When examining the question of what affiliated companies are, it is important to pay attention to some of the nuances of the activities of such enterprises. First of all, it should be said that the leading organization and its representative offices are connected by a single economic activity. It should be noted that all decisions are made only by the dominant company. In some cases, a meeting of the board of directors is allowed to discuss issues on the agenda. However, the main decision lies with the head of the parent company.

It should also be noted that, despite the above factors, responsibility for management actions rests with both parties. It is important to note that related companies are not responsible for the debts of branches or the parent organization.

Today, there are three main methods of managing a representative office. A general director is elected to manage the branch, acting on the basis of the order of the parent company. It is important to pay attention to the fact that all responsibility for the activities of the branch rests with the selected person. In addition, the selection of a branch director can be carried out through a collegial council. The third method of managing a representative office is to appoint a board meeting and a chairman of this board. The composition of the council consists of representatives of the branch and the parent company. Representatives of the parent company are appointed as the managing party.

The importance of information about affiliated enterprises

According to current legislation, enterprises registered as “CJSC” and “PJSC” are required to provide lists of affiliated organizations to the antimonopoly service. It should be noted that these reports are submitted not only to regulatory authorities, but also to persons included in the meeting of shareholders. One of the requirements of regulatory authorities is the mandatory recording of this information in accounting documentation.

Affiliated organizations are interconnected companies conducting common business activities. An agreement between similar enterprises in the field of pricing policy can help eliminate competitive organizations. Such actions are regarded as illegal, since they contribute to the formation of a monopoly in a certain area of ​​business activity. A monopoly can cause the paralysis of a particular niche of the commodity market on the territory of the Russian Federation. It is this aspect that explains the importance of control over interrelated enterprises by the antimonopoly service.

Below is a sample affiliate list report:

"Application

to the Procedure approved

by order of the Federal Antimonopoly Service

Russian Federation

(as amended by the Order of the Federal Antimonopoly Service

Russian Federation

List of affiliates

The full name of the business entity is recorded______________

For day, month, year (listing)

Location of the issuer: The address of the organization acting as an economic entity or group of persons authorized to act on behalf of the parent company without trust documents is indicated.”

Case Study

Next, we propose to consider an example of affiliated enterprises operating on the territory of the Russian Federation. In the example below, Philip Morris International (PMI) will be represented. This international organization specializes in the production of tobacco products. According to open data, the products of this company are available in stores in more than one hundred and eighty countries. As statistics show, the sphere of influence of this corporation is fifteen and a half percent of the world market.

On the territory of the Russian Federation, this company is represented by three interconnected organizations:

1. Philip Morris Sales and Marketing LLC.
2. CJSC Philip Morris Izhora is an enterprise located in the Leningrad region.
3. PJSC Philip Morris Kuban is an enterprise located in the Krasnodar region.

Representative offices of these enterprises are located in hundreds of Russian cities. At the above enterprises they carry out labor activity more than five thousand employees.

Conclusion

From this article we can conclude that affiliation is an influence on the activities of a controlled organization. It is important to note that this term has several definitions. An affiliated company is considered not only a controlled organization, but also a parent company.

What is affiliation of a legal entity?

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.

Affiliated persons mean individuals or legal entities (often these are investors) who have the right and means to influence the activities of a business entity - another individual or legal entity, because they own a share of its capital or are members of its management bodies. So, say, an affiliate of a company can be a member of the board of directors or supervisory board, a member of the collegial executive body, an executive director, etc. Affiliated persons also include those who can control (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 the arbitration manager challenges transactions made by the company on the eve of bankruptcy for the purpose of withdrawing assets. To bring the parent company to subsidiary liability, establishing 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

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

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

Authorized capital

Size authorized capital when registering an affiliated company in the Unified State Register of Legal Entities.

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List of founders

The request will show which other companies are among the founders of the affiliate.

General manager

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

Affiliation of persons 2018

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There are many examples when two participants in economic activities, formally acting as separate entities, are in fact connected with each other. Such a connection allows one to influence the economic outcome of transactions, which has negative consequences for other persons (organizations or the state). Therefore, affiliation of persons is prohibited 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 English verb to affiliate, which translates as to adopt or accept as a subsidiary organization.

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 of the Federal Law “On Competition...”.

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

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

For an individual (IP), the following entities are recognized as having affiliation:

• persons who are in the same group as the entrepreneur;
• a legal entity within which control is expressed by the individual having 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 No. 208-FZ dated December 26, 1995 (On joint stock companies).
2. Federal Law No. 14-FZ dated 02/08/1998 (On limited liability companies).
3. Federal Law No. 7-FZ dated January 12, 1996 (On Non-Profit Organizations).

In accordance with the requirements of legislative acts, all transactions that are carried out in the presence of interest between the procurement participant and the customer must be approved by the management authorities. An example could be a transaction with suspected 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 regulations is almost identical to what is enshrined in Article 4 of the Competition Law. One of the signs of affiliation of participants when concluding a transaction is their 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 profits from the agreement;
• holds senior positions in the organization that is the ultimate recipient of the benefit ( chief accountant one = founder of the other).

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 entities they represent (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 manager for two organizations;
• one of the parties to the transaction, when participating in the tender, is subordinate to the other by official position;
• the parties to the transaction are married or are relatives.

Signs of affiliation of legal entities

General characteristics of interest of transaction participants:

1. Presence of family/friendship ties. For example, when the business owner is a relative of one of the parties to the transaction.
2. Intersection by common people, regardless of the size of shares in the authorized capital.
3. Dependence of an economic nature.

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

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1. Legal. Affiliation of an enterprise is characterized by the presence of clear traceability legal connection between beneficiaries. This also includes a conflict of interest. That is, when legal actions performed by an authority are dictated by the personal interest of a person in the municipal service.
2. Factual. This view is practically unprovable. Affiliation can only be revealed if the counterparties have one main shareholder. This may come to light during a tax audit. An example is ownership through offshore companies or using relatives as nominee owners.
3. Economic. It occurs when the manufacturer is dependent 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 website affiliation. The main sign is interest. Such sites play a secondary role for faster promotion of the main resource. Many doorways are created through which users go to the “mother” portal.

Responsibilities of the 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 and beneficiaries. The form of documents is not established by law.
2. Keep lists for a certain period of time.
3. Provide participants with the opportunity to familiarize themselves with the original documents free of charge at the company premises no later than 3 days after submitting the application.

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

Consequences of affiliation

What are the risks of checking a company’s affiliation and how can such an interest affect the activities of dependent entities? The most acute problem is affiliation with oil and gas companies. It is a common practice to underestimate the cost of extracted resources when selling them to an intermediary who acts as an affiliate of the company or has other connections with the procurement organizers.

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 tax base and VAT. Such manipulations prevent the extraction of full rent in favor of the state. Since the intermediary receives most of the profit.

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Courts conduct a thorough analysis of the affiliation of persons. Judicial practice shows that if a legal entity has tax debts, the missing funds for debt reimbursement can be recovered from affiliated entities (Determination of the Supreme Court of the Russian Federation dated November 2, 2015 No. 305KG).

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

Disputes during public auctions

Conducting public trading (auctions) requires verification of the affiliation of participants (Federal Law No. 44-FZ dated 05.2013). The law establishes restrictions for participants in 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 may provide a letter of non-affiliation. There are often situations when two companies with the same owner apply for one lot.

One organization backs up the other. Scheme of work – one participant makes a minimum bet. The second player immediately offers too high a price. 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 result, the first participant who acts as an affiliate wins.

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

Conflicts in bankruptcy

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

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

Disputes in arbitration

The task of the arbitration tribunal is to contrast two concepts - impartiality and affiliation. Since the court is part of the executive system. However, the hearing of the case can be initiated by one of the current employees of the company (chamber of entrepreneurs, business guilds, associations). Conflicts of interest can be avoided by complying with the statutory guarantees of an impartial trial.

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Are they affiliates or interdependent entities?

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Affiliates are interdependent entities, but identifying these definitions, despite the obvious similarity of the concepts, is risky. Let's look at why.

Affiliation - essence and application

A detailed idea of ​​affiliation is given by Art. 4 of the Law “On Competition...” dated March 22, 1991 No. 948-1, which not only sets out the essence of this concept, but also provides a list of persons considered affiliated for legal entities and individual entrepreneurs.

This law refers to 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, the following will be affiliated:

• individuals who are members of their collegial management bodies or who are in charge individually (including this applies to collegial and sole heads of 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 20% shares in its authorized capital;
• a legal entity or individual forming a common group with it.

For individual entrepreneurs, affiliation arises in relation to:

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

A 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 50% share in the authorized capital of the organization;
• from a legal entity:
  • a sole executive body, represented by both individuals and legal entities;
  • persons (individuals or legal entities) who have the right to issue instructions that are binding on them (including recommendations for the appointment of a sole or collegial executive body);
• two legal entities have management consisting of more than half of the same persons;
• for an individual - spouse and close relatives (including by adoption rights);
• for persons (individuals or legal entities) already included in a certain group - other persons (individuals or legal entities), relations with whom meet the criteria for joining the 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 variety of legal fields, for example, such as legislation:

• on taxes (clause 2 of article 269 of the Tax Code of the Russian Federation);
• bankruptcy;
• issue of securities;
• JSC and LLC;
• labor (in terms of dismissal of heads of federal state unitary enterprises);
• communications.

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

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

In tax legislation, despite the presence of the term “affiliated persons” in the Tax Code of the Russian Federation (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 find themselves 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 opportunity, independently or through their dependents, to influence:

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

Influence can be exercised through:

• participation in the authorized capital;
• agreement concluded between persons;
• other possibilities.

• a legal entity and legal entities and individuals with a share of participation in its authorized capital exceeding 25%;
• 2 legal entities with more than 25% participation share of the same person in each of them;
• a legal entity and legal entities or individuals who have the ability to appoint its sole executive body or at least 50% of the composition of the collegial body (including through their interdependent persons);
• 2 legal entities whose collegial 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, along 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 by adoption), as well as those in a guardianship relationship.

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

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It is possible to recognize the following as interdependent persons:

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

The following are not considered dependent:

• transactions, the execution of which is due to the preferential 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 (Articles 40, 45, Chapter 14.2-14.5 of the Tax Code of the Russian Federation);
• taxation of personal income tax on income from financial benefits (Articles 212, 217 of the Tax Code of the Russian Federation);
• determining the amount of property tax deduction(Article 220 of the Tax Code of the Russian Federation);
• restoration of the depreciation bonus for the early (before the expiration of 5 years from commissioning) sale of fixed assets (clause 9 of Article 258, subclause 1 of clause 1 of Article 268 of the Tax Code of the Russian Federation);
• determining the amount of interest on debt obligations taken into account when calculating income tax (Article 269 of the Tax Code of the Russian Federation);
• application of tax benefits in relation to movable property registered after 2012 (clause 25 of Article 381 of the Tax Code of the Russian Federation);
• taxation of foreign legal entities operating on the territory of the Russian Federation (Articles 306, 308, 309.1 of the Tax Code of the Russian Federation).

Affiliates and interdependent entities - differences

Even at a quick glance, it becomes obvious that there are discrepancies in the concepts under consideration, that is, it should be recognized that affiliates and interdependent persons are not the same thing. Since the concept of affiliation is used more widely, interdependence can be considered a special version of it, applied only in one specific area. Or, simply put, interdependent entities are affiliated entities for the purposes of the Tax Code of the Russian Federation.

Both concepts are very similar both in meaning and in describing situations of affiliation (interdependence). Discrepancies occur in 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 based on kinship are broader than for affiliation, since they additionally contain guardianship relations;
• for the interdependence of individuals there is such a criterion as relationships of subordination, which is absent in affiliation;
• interdependence can be recognized voluntarily or by court decision, which is not accepted for affiliation.

And, of course, the scope of application of the concepts under consideration differs significantly.

What is hidden behind the definition of “related parties”

There is another definition that arises in connection with affiliates and interdependent parties - this is the concept of “related parties”, used in PBU 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, parties associated with a legal entity are legal entities and individuals that can influence its activities, or those legal entities and individuals whose activities may be affected by the legal entity.

The number of persons recognized as related parties in relation to a legal entity preparing accounting records 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 related party for him.

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

Results

Affiliated entities and interdependent entities are different concepts, based on different documents and applied in different areas of legislation. Despite the significant similarity in 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 article under comment 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, referring 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 and Supreme Court of the RSFSR. 1991. N 16. Art. 499): “. affiliated persons of an individual carrying out entrepreneurial activities are:

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

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

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

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

“1) between a controlling person (including its affiliates) and a controlled person, as well as between persons under general control, determined by the criteria provided for in Article 53.3 of this Code, with the exception of persons under the general 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 the person, as well as its affiliates, who has the opportunity, independently or jointly with other persons, directly or indirectly (through third parties) in a coordinated manner to dispose of more than twenty percent of the total number of votes of the participants of this legal entity;

5) between legal entities in which the functions of the management body and (or) the majority of members of the collegial 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 in which a public legal entity is a participant with the corresponding share of participation are not considered affiliated on this basis;

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7) between legal entities, in one of which the person and (or) his affiliates perform the functions of a management 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 amount votes of 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 proven 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 proven 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 single concept affiliation common to everything current legislation- from tax to antimonopoly” (Sukhanov E.A. Comparative corporate law. P. 252). If necessary, rules on affiliation can be included in special laws.

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Affiliates and interdependent entities - what are they?

Affiliates are interdependent entities. Let's look at how true this statement is in this 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 the term affiliated entities:

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

The mention of this term without decoding for the purposes of a specific 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 affiliate is the existence of a relationship of dependence between such person and its affiliate. 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 (possibility of influence due to agreements);
• organizational (related to the opportunity to participate in the management of the organization), etc.

Criteria for classification as affiliated persons

Such criteria are set out in the above-mentioned article. 4 competition laws.

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 participant in a financial and industrial group);
• members of a group of persons to which such an organization belongs;
• 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.

Affiliates of an individual entrepreneur are:

• persons included in the same group of persons with such an individual entrepreneur;
• 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 interdependence of persons is introduced by the Tax Code of the Russian Federation (hereinafter referred to as the Tax Code of the Russian Federation), and the concept is deciphered in 2 norms at once:

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

It is obvious that the above definitions correlate with each other and do not contradict each other. However, the second norm provides a more detailed list of characteristics that entities 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 connection between persons and 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 of interdependence;
• the presence of a “cause-effect” connection 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 dated December 4, 2003 No. 441-O, the resolution of the 15th AAC dated September 16, 2016 in case No. A/2015).

Affiliates and interdependent entities: differences

As can be seen from the material presented above, affiliates are interdependent entities 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 essence, 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 conclusions within the framework of tax and civil requirements.

For example, the court indicated that the tax authority had proven precisely the affiliation of the persons, but 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 Kemerovo Region Arbitration Court 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 connections did not meet the criteria of interdependence specifically for the purposes of the Tax Code of the Russian Federation.

Group of persons

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, the group of persons includes subjects who meet at least 1 of the following criteria:

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

Moreover, if any person is included in a group of persons according to at least one of the characteristics indicated above, he is automatically considered to be included in the group of persons to which the subject who has the specified connections with such a person belongs. A similar rule applies in a situation where one of the members of a group of persons has more than 50% of the votes in the authorized capital of the organization.

Stakeholders

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

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

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

The mentioned law also contains references 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 02/08/1998 No. 14-FZ): a party, beneficiary, intermediary or representative in such a transaction or their controlling person or the person carrying out management of these entities.

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

Summarizing the above, we can come to the conclusion that affiliates are interdependent persons. At the same time, it is for tax purposes that the term “interdependent” is usually used, and many judges consider it necessary to distinguish between these concepts in relation to tax requirements specifically.

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

Hello! In this article, you will learn who affiliates are, what rights they have, and how to compile and store a list of such data.

Today we will look at:

• What is included in the concept of “affiliates”;
• What characteristics do they have?
• Why do companies need to conduct detailed list affiliates.

Main characteristics of affiliates

The term is increasingly found in economic publications, articles on finance and entrepreneurship.

Affiliates - these are legal or individuals that can affect the work of joint stock companies or private entrepreneurs. They have the opportunity to control the operation of the enterprise and the adoption of important decisions by management.

The name comes from English word"affiliate", which means to attach something. In simple words, affiliation is the exertion by a person of influence on the work of the company, which implies property and organizational relations between them. And the affiliation procedure means that one enterprise or company is included in the structure of another without changes in the management team.

In domestic practice, the main distinctive features Affiliations are not only the ability to intervene and influence business activities, but also dependent relationships.

They appear:

• If a person has the right to vote at all meetings;
• If it has a share in , a certain percentage of shares;
• There are family ties between members of the board or in the concern;
• If an affiliated person by status (CEO or Chairman of the Board) can suspend lower-level decisions.

For enterprises, employees who can influence work through strikes or demands to change wages or cancel a deal are not considered interdependent. But the owner's son, who runs the subsidiary company and wishing to enter into a promising transaction is already an affiliate.

In any case, the relationship not only takes on a managerial nature, but also affects the distribution of property. The main problem is the possibility of collusion, which will lead to the creation of a monopoly relationship. This is harmful to the economy and creates a serious imbalance in the industry, so affiliates and their transactions are under the systematic control of the state antimonopoly committee.

Who is included in the list for a legal entity

Such a dependence may occur:

• With shareholders who own at least 20% of the company’s shares;
• With the supervisory board or owners, with members of the management board or board of directors;
• With other enterprises belonging to the same concern or trading group;
• With enterprises in which this legal entity owns a fifth of the authorized capital or at least 20% of the votes.

For a company, an affiliate can be either a legal entity or an individual. It has the right to control or manage it: officials of various ranks, founders of the enterprise and large investors. In European legislation, only dependent companies and joint stock companies are referred to as such. In domestic – all participants in the relationship, including subsidiaries and individuals.

List of groups with an affiliated person in their composition

When listing related parties for a commercial company or joint stock company, a group is often mentioned in which they may belong in parallel with the affiliate.

The main signs of the presence of such a person in a group:

• It solely controls and manages the entire company;
• Has a controlling stake of voting shares or the largest share in the authorized capital;
• On his recommendation or direct order, key positions in the firm were appointed;
• It influences and approves candidates for the supervisory board;
• The enterprise specifies the powers of the parent company, which allow the cancellation or adoption of important decisions;
• The supervisory board and the management board of a commercial company consist of the same people.

All members of the group can intersect with each other, collaborate or carry out common transactions. A simple example formation of an affiliated group is joint stock company With subsidiaries: many founders are actively investing in the expansion and creation of branches, and developing regional areas. They are called “affiliate networks”.

Duties and responsibilities of affiliates

Interdependent legal entities and individuals have certain rights and restrictions. They are required to conduct transactions according to certain regulations, informing commercial companies about their affiliation. This adds post-accrual checks and post-profit tax payments.

The liability of affiliated persons may be:

• Legal for failure to comply with the requirements for conducting a transaction;
• Administrative for untimely or incomplete provision of information, a list of interdependent persons;
• Tax authorities for artificially lowering or inflating prices.

The law does not explicitly state the rights of affiliates. But they stem from their position in the group or with other participants in economic relations. They must conduct business in strict compliance with anti-corruption laws.

How and why to keep a list

For all joint-stock enterprises, maintaining a list containing information about affiliated persons is mandatory. It is updated every quarter based on recommendations for changes that have occurred. For the company, it is a documented basis for entering into transactions with interdependent companies.

• Download the LLC affiliate list form

The main positive aspects of maintaining a register:

• Ensures the safety of capital in the company by reducing the possibility of interference by outsiders in the operation of the enterprise;
• Reduces to a minimum the risk of recognizing the concluded agreement as invalid due to disapproval of the transaction by influential members of the supervisory board;
• Simplify the procedure for approving and concluding a transaction in which there is a certain interest.

Companies that publicly place shares on the stock market are required not only to maintain lists of affiliated persons, but also to periodically publish them on the Internet. They must be available to shareholders and other users for at least 3 years.

All lists must contain information:

• The date on which it is drawn up;
• Taxpayer identification number;
• All information about the company;
• Legal address;
• The percentage of shares or share in the authorized capital controlled by an affiliate.

In large companies, an authorized person may be designated who will be responsible for storing and compiling the list: the chairman of the board or corporate secretary, the registrar of the joint stock company.

The data is periodically studied by the antimonopoly service to identify cases of collusion and illegal transactions. Lists are often required by banks when considering a loan application, government agencies or their own shareholders, and tax authorities when checking reporting documentation.

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Affiliation is, definition

Affiliation is joining another, larger, related enterprise as a branch.

Affiliation is impact, impact on the activities of a company, firm.

Affiliation is joint activities, support.

Affiliation is a filter (a sort of Duncan MacLeod) aimed at removing from the search results sites of the same webmaster promoting the same information, returned for the same request.

Affiliation is fight against search results.

Affiliation in Yandex

Origin of the term affiliation

The concept of “affiliate” comes from the Latin “affiliatus”, which means “to adopt.” In the Russian language, the concept of “affiliate” has been actively used since the end of the last century.

Affiliated network - branch network, partner network, regional network. Affiliated is a licensed one, which is intended for organizations with a branched structure. Affiliated company - a subsidiary company, a branch company, a controlled company, a participating company. Affiliated persons are individuals who are able to influence the activities of other persons engaged in business. For example, according to the law, affiliated persons for a legal entity are members of the supervisory board, board of directors, and so on.

Affiliated company

An affiliated company, as follows from the primary meaning of the word affiliate, is a company that depends on another company. An affiliated company is a controlled company, that is, a company participating in a joint business that is not completely free in its actions. Turning to the etymology of the concept makes it possible to assume a meaningful relationship between the concepts and phenomena denoted by the words “affiliated company” and “associated company”.

Difficulties in use arise from the possible and permissible broad interpretation of an affiliated company as a company connected in some way with another company. At the same time, its narrow definition is a company in which another company has a minority interest, that is, its ownership is less than 50

Rights and obligations of an affiliated company

The parent and subsidiary organizations are related to each other by common economic activities. In addition, the parent company has the final word. Responsibility for an incorrect management decision lies with both parties. At the same time, both organizations are not responsible for each other: if, for example, an affiliated controlled company goes bankrupt, then the parent organization does not bear subsidiary liability for this.

Ways to run an affiliated company

There are three different ways in which a company is controlled:

General manager. The parent organization itself appoints a manager who makes decisions alone and can, at its discretion, dispose of property amounting to 25% of the total book value. In this case, the manager bears full responsibility for the results of the activities of the affiliated company and their compliance with the managers of the parent organization. The scheme involving the general director is the most common.

Collegiate body. The meeting of the board and the chairman of the board are appointed. This form has its advantages (for example, it is easier to solve complex problems with a collective mind), however, it is not very common in the Russian Federation: authoritarianism is in fashion in our country. The collegial body has interesting feature: it should include approximately equal proportions of representatives of the parent organization and leading subsidiary companies.

Managing organization. Most often, the parent organization itself acts as a manager and makes all decisions for the “daughter”. However, this form of management is fraught with danger: the parent company is responsible for the losses of the subsidiary. Any shareholder of a subsidiary who owns at least one percent of the shares can make a claim to the management company. The solution that many parent organizations resort to is the creation of two companies - the direct management company and the company itself. The manager is allocated the minimum amount (10 thousand according to Russian legislation) - this amount is limited to her.

Affiliates

Affiliated sites

Affiliate sites are a group of resources of the same owner and the same topic, with the goal of occupying several places in search results on the first page of search results. An affiliate filter is a filter that greatly lowers the positions of all sites of a group of affiliates, leaving only the most relevant one in the top ten (although there are exceptions for some queries).

This filter is applied both automatically based on a signal from search robots, and manually based on a complaint from users (most often competitors). A special feature of this filter is its operating principle. It is unlike other filters “You are the last”, “You are Spam”, “Link Boom”, “For PF cheating”, etc. excludes (or lowers positions) sites from search results immediately at the moment of generating the results.

How to Avoid Affiliation

The best recommendation in this case is to concentrate efforts on promoting the main site, creating and promoting one site for one topic in one region. If there is a need to promote a group of sites with the same topic, it is important to prevent overlap of search queries and try to avoid the coincidence of risk factors from the table above: register domains on different persons, at different times, create unique designs, structure and content, add variety to the list of services, contact information, etc.

How to check sites for affiliation

Determining site affiliation using KeyCollector

How to beat the affiliate filter

It is possible to remove a site from under the filter only by eliminating the reasons for its application, and there are many of them. Almost every self-respecting SEO specialist will say: “Each case is individual and there is no standard solution,” but I will still try to give general recommendations. First, you need to try to minimize the overlap of sites, monotonously correcting point by point from the table of “factors influencing the application of an affiliate filter.” And when you have already “done everything you could” - write to Yandex technical support, documenting your correctness ( it is best from two organizations, if possible).