The first rule of building a group of companies without signs of artificial fragmentation
Let’s remember what we know about business processes?
They have a beginning and an end, that is, they have boundaries in time. There is an “exit”, to which a unique result is served, after receiving which the client becomes more satisfied. Since there is an “exit”, there must be an “entrance”. We supply it with the necessary resources (material – transformable, as well as labor, financial, informational – providing), which are transformed into something valuable for the client in the course of a business process using a certain technology.
Every process has an owner – a person (most likely an official, but this is not certain … more about this in Rule No. 3) who has at his disposal.
the resources necessary for the process, controls the course of the process and bears (and this is also not accurate, but in theory it should … and again to Rule No. 3) responsibility for the results and efficiency of the process (see, for example, V. Repin “Business processes. Modeling, implementation , management “, MYTH, 2012. Although now there are alternative views on business processes, for example, in the books of M. Rybakov, not resources are given to the” input “of the process, but a client who, having made his way through the jungle of the process, becomes satisfied. BP.).
Clients can be external (the actual clients of the business as such) and internal (when the result of one business process is transferred to another within the company, for example, “Purchase” as a result transfers to “Production”, a specific batch of raw materials in the warehouse).
Finally, business processes can be conditionally divided into main (as a result of which added value is directly created) and auxiliary (all service and standardizing processes, lubricating wheels – accounting, legal, IT, cleaning, quality control department and even a call center, for example, if it is not sales, and customer support … and so on).
We mention auxiliary processes for a reason. Since they do not line up in a coherent value-added chain, when building a group of companies, we will be interested in additional conditions – where, to whom, how often, at whose expense they are needed. This will ultimately make it possible to make an adequate decision on their separation.
What is wrong with the compliance of the legal model with business processes and with what criteria of artificial fragmentation is this connected?
The main problem (from what we see in arbitration practice and in our own projects) is the unnatural fragmentation between the subjects of the group of companies. This is when, for the sake of dividing the proceeds between potential “special regimes”, in fact, a single business process is “stretched” into legally different entities. As a result, there are cases of combining jobs, migration of resources (when property, property complexes, equipment migrate between different entities) and their mixing (when it is impossible, for example, to reliably identify the ownership of stocks in a warehouse), as well as duplication of functions.
The brightest and most cynical example is the hotel industry, in which a group of companies was created on the basis of separating individual floors into different subjects, in general, a single hotel complex with a single website, a telephone, service functions (up to cleaning), an entry point for suppliers (consolidated purchase ), general finance, migration / part-time jobs, etc.
In production, in an extreme version, it may look like the isolation of separate production areas, which are not separate business processes, but rather separate operations of a single cycle. Or, the second option, pegging with duplication of processes (for example, the assembly of all types of products is carried out by two sections, registered as individual entrepreneurs). Accordingly, in addition to the fact that territorial isolation is difficult to demonstrate, the taxpayer will also face the mixing of either raw materials or the final result, with the migration of employees (replacement of a sick person or one who has gone into a binge), etc.
The second, accompanying problem – the actual points of the beginning and end of business processes do not coincide with the subject composition of the group of companies.
For example, following the desire for some reason to divide five sequential processes into several companies, the founder of the business created only three of them. Why? Because he, not owning the tools to ensure ownership control, faced restrictions on the number of “trusted” persons whom he is morally ready to make “founders” and / or directors. There were only two of them. The wife’s brother and school buddy. And one more is a real manager. Thus, five processes one way or another will be stretched between three companies and there is a high probability that the boundaries of the processes will not coincide with the subject composition of the group of companies.
Even if there was no tax savings in mind, but it so happened that new entities apply the simplified taxation system, consider that you “raised” tax risks from the floor in the context of splitting.