Kuznetsova Elena.

What information is required to be disclosed by an open joint stock company with one shareholder that has registered a report on the issue of shares if registration of a securities prospectus and a public offering of shares are not planned? Service experts answer Legal consulting GARANT Elena Kuznetsova and Artem Barseghyan.

The JSC registered a report on the issue of shares. The OJSC does not plan a public offering of shares, bonds and other securities. All shares of the OJSC belong to one shareholder. Registration of the securities prospectus is not planned. What information and how in accordance with paragraph 1 of Art. 92 of the Federal Law of December 26, 1995 N 208-FZ “On Joint-Stock Companies” is the JSC required to disclose?

According to clause 1 art. 92 Federal Law of December 26, 1995 N 208-FZ “On Joint-Stock Companies” (hereinafter referred to as the JSC Law), an open joint-stock company (hereinafter referred to as the “company”, “OJSC”) is required to disclose:

Annual report of the company, annual financial statements;
- prospectus of the company’s securities in cases provided for by legal acts of the Russian Federation;
- notice of holding a general meeting of shareholders in the manner prescribed by law about JSC;
- other information determined by the federal executive body for the securities market.

Disclosure and provision of information on the securities market is carried out in cases and in the manner provided for Art. 30 Federal Law of April 22, 1996 N 39-FZ “On the Securities Market” and Regulations on disclosure of information by issuers of issue-grade securities, approved by order FSFM of Russia dated October 4, 2011 N 11-46/pz-n (hereinafter referred to as the Regulations).

Open joint-stock companies, regardless of the methods of placement of securities and the presence of registered prospectuses of securities (prospectuses for the issue of securities), are charged with the obligation to disclose information provided for in Chapter VIII “Mandatory Disclosure of Information by Joint-Stock Companies” of the Regulations. According to clause 8.1.1 Regulations JSC, in addition to other information provided for by the Regulations, is required to disclose:

Annual report of the joint stock company;
- annual accounting (financial) statements of the joint-stock company;
- charter and internal documents of the joint-stock company regulating the activities of its bodies;
- information about affiliated persons of the joint-stock company;
- decision on the issue (additional issue) of securities of the joint-stock company;
- additional information provided Chapter VIII Provisions.

Let us consider sequentially the requirements for the disclosure of these types of information.

Disclosure of the annual report and annual financial statements of the company

According to clause 8.2.5 The joint stock company is obliged to publish the text of the annual report on the Internet page no later than 2 days from the date of drawing up the minutes (the expiration date established by the legislation of the Russian Federation for drawing up the minutes) of the general meeting of shareholders, at which a decision was made to approve the annual report of the joint stock company . Let us remind you that the minutes of the general meeting of shareholders are drawn up no later than three working days after the closing of the general meeting of shareholders ( clause 1 art. 63 Law on JSC). Requirements for the content and procedure for approving the annual report of a joint stock company are provided p.p. 8.2.2-8.2.4 Provisions.

The annual accounting (financial) statements of a joint-stock company are disclosed by publishing its text on a page on the Internet no later than 2 days from the date of expiration of the deadline established by the legislation of the Russian Federation for the submission of annual accounting (financial) statements, and if the annual accounting (financial) statements of the joint-stock company are drawn up before the expiration of the specified period - no later than 2 days from the date of its preparation, and if the annual accounting (financial) statements of the joint-stock company are subject to mandatory audit - no later than 2 days from the date of preparation of the auditor's report ( clause 8.3.4 Regulations).

Let us remind you that a mandatory copy of the prepared annual accounting (financial) statements is submitted no later than three months after the end of the reporting period ( Part 2 Art. 18 Federal Law of December 6, 2011 N 402-FZ “On Accounting”). Disclosure of annual accounting (financial) statements does not relieve the JSC from the obligation to publish annual accounting (financial) statements in accordance with the legislation of the Russian Federation on accounting ( clause 8.3.8 Regulations).

Disclosure of information about the content of the charter and other internal documents of the company regulating the activities of its bodies

Barseghyan Artem.

The text of changes and (or) additions made to the company's charter (new edition of the charter) must be published on the Internet page no later than 2 days from the date the joint-stock company receives a written notification (certificate) of the authorized state body about the state registration of changes and ( or) additions (state registration of a new version of the charter) (if, in cases established by federal law, changes and (or) additions to the company’s charter become effective for third parties from the moment of notification of the authorized state body - no later than 2 days from the date of such notification) ( clause 8.4.1 Regulations).

Disclosure of information about affiliated persons of the company

The list of affiliated persons of a joint stock company must be compiled in accordance with Appendix No. 4 to the Regulations. The joint stock company is obliged to publish on the Internet page the text of the list of affiliates compiled as of the end date of the reporting quarter, no earlier than the end date of the reporting quarter and no later than 2 business days from the end date of the reporting quarter, and the texts of changes that occurred in the list of affiliates , - no later than 2 working days from the date of making relevant changes to this list ( clause 8.5.3 Regulations).

Disclosure of additional information provided for in Chapter VIII of the Regulations

The list of additional information disclosed by the joint-stock company is contained in clause 8.7.1 Provisions.

This list includes information:

On the acquisition by a joint stock company of more than 20% of the voting shares of another joint stock company;
- on the disclosure by the joint-stock company on the Internet page of the annual report, annual accounting (financial) statements, list of affiliated persons;
- about changing the address of the Internet page used by the joint-stock company to disclose information;
- on holding a general meeting of shareholders of the joint-stock company.

Disclosure of additional information required by clause 8.7.1 The provisions must be implemented by the joint-stock company by publishing a message about the specified information within the following periods from the moment of the occurrence of the relevant event:
in the news feed - no later than one day;
on a page on the Internet - no later than two days ( clause 8.7.6 Regulations).

The texts of the documents mentioned in the experts’ response can be found in the legal reference system

FUND "NATIONAL NON-STATE

ACCOUNTING REGULATOR

"ACCOUNTING METHODOLOGICAL CENTER"

(FUND “NRBU “BMC”)

Developed

Non-profit organization

FUND "NRBU "BMC"

Accepted 2013-04-08

(without meeting, upon request)

RECOMMENDATION R-36/2013
“DISCLOSURE OF INFORMATION BY A JOINT STOCK COMPANY”

DESCRIPTION OF THE PROBLEM

Is it necessary for a joint stock company to publish explanations to the accounting (financial) statements in connection with the entry into force of Federal Law No. 402-FZ dated December 6, 2011 “On Accounting” (hereinafter referred to as Law No. 402-FZ)?

SOLUTION

1. Open joint-stock companies are required to publish accounting (financial) statements in the media in the manner prescribed by Order of the Ministry of Finance of the Russian Federation dated November 28, 1996 No. 101 (hereinafter referred to as Order of the Ministry of Finance No. 101).

2. The publication consists of:

Balance sheet (in simple or abbreviated form);

Statement of financial results (in simple or abbreviated form);

Auditor's report (the full text of the final part of the audit report, or the opinion (assessment) of an independent auditor (audit firm) on the reliability of the financial statements).

3. Joint-stock companies are not required to publish appendices and/or explanations to accounting (financial) statements in the media. Publication is carried out no later than June 1 of the year following the reporting year.

Since January 1, 2013, these norms are not based on the Law, but can be applied by the courts until the cancellation of Order of the Ministry of Finance No. 101.

4. Open joint-stock companies are obliged, in addition to the publication specified in clause 1 of this Decision, to publish accounting (financial) statements on the Internet in the manner prescribed by Order of the Federal Financial Markets Service of October 4, 2011 No. 11-46/pz-n (Order of the Federal Financial Markets Service No. 11-46 /pz-n).

Closed joint stock companies that conduct (conducted) a public offering of securities are required to publish accounting (financial) statements on the Internet in the manner prescribed by FFMS Order No. 11-46/pz-n.

The publication consists of:

Balance Sheet;

Financial results report;

Statement of changes in equity;

Cash flow statement;

A report on the intended use of the funds received (if available);

Other appendices (explanations) to the accounting (financial) statements included in the financial statements, compiled in tabular and (or) text form;

Auditor's report (in case of mandatory audit) of accounting (financial) statements).

5. Publication is carried out no later than 2 days from the date of expiration of the deadline established by the legislation of the Russian Federation for the submission of annual accounting (financial) statements, and if the annual accounting (financial) statements of a joint-stock company were compiled before the expiration of the specified period - no later than 2 days from the date of its preparation, and in the case if the annual accounting (financial) statements of the joint-stock company are subject to mandatory audit - no later than 2 days from the date of drawing up the audit report.

6. In accordance with paragraph 3 of FFMS Order No. 11-46/pz-n, these norms come into force 10 days after the day of official publication (FSFR Order No. 11-46/pz-n was published in the “Bulletin of regulatory acts of federal executive authorities” - 02/20/2012) and apply to accounting (financial) statements signed after 03/01/2012. These rules, regarding open joint-stock companies that do not (have not carried out) public placement of bonds or other securities, are not based on Law, but can be applied by the courts until the relevant norms are repealed in the prescribed manner.

JUSTIFICATION FOR THE DECISION

According to Art. 13 of Law No. 402-FZ, from January 1, 2013, the following rules apply: “The approval and publication of accounting (financial) statements are carried out in the manner and in cases established by federal laws. In the event of publication of accounting (financial) statements that are subject tomandatory audit, such accounting (financial) statements must be published together with the auditor’s report.”

Until 01/01/2013, the norms of the previously existing Federal Law of November 21, 1996 N 129-FZ “On Accounting” (hereinafter referred to as Law No. 129-FZ) were applied:

“Open joint-stock companies, banks and other credit organizations, insurance organizations, exchanges, investment and other funds created at the expense of private, public and state funds (contributions) are required to publish annual financial statements no later than July 1 of the year following the reporting one.

The publicity of financial statements consists of their publication in newspapers and magazines accessible to users of financial statements, or the distribution among them of brochures, booklets and other publications containing financial statements, as well as their transfer to the territorial bodies of state statistics at the place of registration of the organization for provision to interested users.” .

Based on these standards, Order No. 101 of the Ministry of Finance was issued, according to which:

"1.1. In accordance with the Federalby law“On Accounting” dated November 21, 1996 N 129-FZ, the annual financial statements of open joint-stock companies are subject to mandatory publication no later than June 1 of the following reporting year.

1.2. Publication of financial statements is the announcement by the company of financial statements in the media for public information.

The financial statements of a company are considered published in the media accessible to all shareholders of the company if the publication actually took place in at least one periodical, which may be determined by the charter of the company or by a decision of the general meeting of the company.”

This norm corresponds to the repealed Law No. 129-FZ, while since 01/01/2013 it is not based on either Law No. 402-FZ or other Laws. It cannot be applied taking into account Art. 30 of Law 402-FZ. Thus, Order of the Ministry of Finance No. 101 is subject to cancellation. At the same time, since Order No. 101 was registered with the Ministry of Justice of the Russian Federation on December 10, 1996 N 1209, formally it is valid until it is canceled in the prescribed manner by the Ministry of Finance of the Russian Federation, or declared invalid and not subject to application on the territory of the Russian Federation, in court.

In parallel with the norms specified in paragraph 1, the norms of Art. 92 of the Federal Law of December 26, 1995 No. 208-FZ “On Joint-Stock Companies” (hereinafter referred to as Law No. 208-FZ):

"1. An open society is required to disclose:

annual report of the company, annual financial statements;

prospectus of the company's securities in cases provided for by legal acts of the Russian Federation;

notification of holding a general meeting of shareholders in the manner prescribed by this Federal Law;

other information determined by the federal executive body for the securities market.

2. Mandatory disclosure of information by a company, including a closed company, in the event of a public placement of bonds or other securities by it, is carried out by the company in the amount and manner established by the federal executive body for the securities market.”

Clause 2 art. 92 of Law No. 208-FZ can be interpreted in two ways:

Option 1. Mandatory disclosure of information by a company (including a closed company), in the event of a public offering of bonds or other securities, is carried out by the company in the amount and manner established by the federal executive body for the securities market.”

Option 2. Mandatory disclosure of information by a company, including a closed company (in the event of a public offering of bonds or other securities), is carried out by the company in the amount and manner established by the federal executive body for the securities market.”

However, the absence of a comma after the phrase " or other securities" testifies in favor of option 1. In the case of option 2, the phrase “ in the event of a public offering of bonds or other securities" should be separated by commas. In the current version the phrase “ carried out by the company in the scope and manner established by the federal executive body for the securities market" applies " in case of public placement of bonds or other securities by the company" regardless of whether the society is open or closed.

According to Art. 2 of the Federal Law of April 22, 1996 No. 39-FZ “On the Securities Market”:

“Public placement of securities is the placement of securities through open subscription, including the placement of securities at organized trading. The placement of securities intended for qualified investors in organized trading is not a public offering.”

At the same time, in pursuance of Art. 92 of Law No. 208-FZ, Order of the Federal Financial Markets Service No. 11-46/pz-n was adopted. According to section 8.1 of the FFMS Order No. 11-46/pz-n:

An open joint-stock company, as well as a closed joint-stock company that has carried out (is carrying out) a public placement of bonds or other securities (hereinafter for the purposes of this chapter of the Regulations are collectively referred to as joint-stock companies), in addition to other information provided for by these Regulations, are required to disclose:

1) annual report of the joint stock company;

2) annual accounting (financial) statements of the joint-stock company;

3) the charter and internal documents of the joint-stock company regulating the activities of its bodies;

4) information about affiliated persons of the joint-stock company;

5) decision on the issue (additional issue) of securities of the joint-stock company;

6) additional information provided for by this chapter of the Regulations.

As follows from FFMS Order No. 11-46/pz-n, the norm on disclosure of information by the Company is interpreted in contradiction with Law No. 208-FZ based on the obligation to disclose relevant information by any open joint-stock company, and not just by a company that publicly places bonds or other securities. In addition, Order of the FSFM No. 11-46/pz-n contains the following norms, which confirm that in this aspect, Order of the FSFM No. 11-46/pz-n went beyond the limits established by Law No. 208-FZ.

“The obligation to disclose information provided for in this section of the Regulations arises:

for open joint-stock companies - from the date of state registration of the open joint-stock company;

for closed joint stock companies - from the date following the date of state registration of the issue (additional issue) of bonds or other securities of a closed joint stock company placed by open subscription (public offering).

Joint-stock companies are required to disclose information in the form of annual accounting (financial) statements.”

Thus, these norms, in terms of open joint-stock companies that do not (did not implement) public placement of bonds or other securities, are not based on the Law, but can be applied by the courts until the relevant norms are repealed in the prescribed manner.

Scope and procedure for disclosing information by the Company

According to section 8.3 of the FFMS Order No. 11-46/pz-n:

“The annual accounting (financial) statements of a joint stock company must contain:

balance sheet;

profit and loss statement;

appendices to the balance sheet and profit and loss statement provided for by regulations of the Russian Federation;

an auditor's report confirming the reliability of the annual accounting (financial) statements of the joint-stock company, if they are subject to mandatory audit in accordance with federal laws;

explanatory note.

The annual accounting (financial) statements of a joint stock company are disclosed:

1) by publishing its text on a page on the Internet no later than 2 days from the date of expiration of the deadline established by the legislation of the Russian Federation for the submission of annual accounting (financial) statements, and if the annual accounting (financial) statements of a joint-stock company were compiled before the expiration of the specified period - no later than 2 days from the date of its preparation, and if the annual accounting (financial) statements of the joint-stock company are subject to mandatory audit - no later than 2 days from the date of preparation of the audit report;

2) as part of the quarterly report of the joint stock company - issuer for the first quarter in accordance withChapter VProvisions in the event that the joint stock company - issuer, in accordance with these Regulations, is obliged to disclose information in the form of a quarterly report.

If changes were made to the annual accounting (financial) statements of a joint stock company that were not approved at the annual general meeting of shareholders, and the annual accounting (financial) statements with the amendments were approved at an extraordinary general meeting of shareholders, the joint stock company is obliged to publish the text of such annual accounting statements. (financial) statements on the Internet page no later than 2 days from the date of drawing up the minutes (the expiration date established by the legislation of the Russian Federation for drawing up minutes) of the extraordinary meeting of shareholders of the joint-stock company.

The text of the annual accounting (financial) statements of a joint stock company must be available on the Internet page for at least 3 years from the date of expiration of the period established by these Regulations for its publication on the Internet, and if it is published on the Internet after the expiration of such period - from the date of its publication on the Internet."

In accordance with Art. 14 Federal Law dated December 6, 2011 N 402-FZ “On Accounting”: “Annual accounting (financial) statements, with the exception of cases established by this Federal Law, consist of a balance sheet,reporton financial results and appendices thereto.”

According to Order of the Ministry of Finance of the Russian Federation dated July 6, 1999 N 43n “On approval of the Accounting Regulations “Accounting Statements of an Organization” (PBU 4/99)”:

"5. Accounting statements consist of a balance sheet, income statement and losses, appendices thereto and an explanatory note (hereinafter appendices to the balance sheet and profit and loss account and the explanatory note are referred to as explanations to the balance sheet and profit and loss report), as well as an auditor's report confirming the reliability of the organization's financial statements, if it is subject to mandatory audit in accordance with federal laws.”

According to Order of the Ministry of Finance of Russia dated July 2, 2010 N 66n “On Forms of Accounting Reports of Organizations,” the following forms of appendices to the balance sheet and profit and loss statement were approved:

A)formstatement of changes in capital;

b)formcash flow statement;

V)formreport on the intended use of the funds received.

The same order establishes that other appendices to the balance sheet and profit and loss account (explanations):

“a) are presented in tabular and (or) text form;

Based on the above, the publication is carried out as part of:

Balance Sheet;

Financial results report;

Statement of changes in equity;

Cash flow statement;

A report on the intended use of the funds received (if available);

Other appendices (explanations) to the accounting (financial) statements included in the financial statements, compiled in tabular and (or) text form;

Auditor's report (in case of mandatory audit) of accounting (financial) statements).

70.1. A joint stock company is required to disclose information in the form of an annual report.

70.2. The annual report of a joint-stock company is signed by the person holding the position (carrying out the functions) of the sole executive body of the joint-stock company, and (or) other authorized officials of the joint-stock company.

The annual report of a joint-stock company is approved by the general meeting of shareholders or the board of directors (supervisory board) of the joint-stock company, if the issue of approval of the annual report is within its competence by the charter of the joint-stock company.

If the annual report of a joint-stock company is approved by the general meeting of shareholders, it is subject to prior approval by the board of directors (supervisory board) of the joint-stock company, and if there is no board of directors (supervisory board) in the joint-stock company - by the person holding the position (performing the functions) of the sole executive body joint stock company.

The reliability of the data contained in the annual report of the joint-stock company must be confirmed by the audit commission (auditor) of the joint-stock company. The specified confirmation is not required if, in accordance with the charter of a non-public joint-stock company, an audit commission (auditor) is absent (not elected) or is elected (created) exclusively in cases provided for by the charter of a non-public joint-stock company, and such cases do not provide for confirmation (verification) of accuracy data contained in the annual report of the joint-stock company.

70.3. The annual report of a joint stock company must contain:

information about the position of the joint-stock company in the industry;

priority areas of activity of the joint-stock company;

report of the board of directors (supervisory board) of the joint-stock company on the results of the development of the joint-stock company in the priority areas of its activities;

information on the volume of each type of energy resource used by the joint-stock company in the reporting year (nuclear energy, thermal energy, electrical energy, electromagnetic energy, oil, gasoline, diesel fuel, heating oil, natural gas, coal, oil shale, peat etc.) in kind and in monetary terms;

prospects for the development of a joint stock company;

report on the payment of declared (accrued) dividends on shares of the joint-stock company;

description of the main risk factors associated with the activities of the joint-stock company;

Law “On Joint-Stock Companies” on major transactions, indicating for each transaction its essential conditions and the management body of the joint-stock company that made the decision on consent to its completion or its subsequent approval. The annual report of a joint stock company, instead of the specified list, may contain a link to a document containing a list of major transactions carried out by the joint stock company in the reporting year, indicating its name and address of the Internet page on which it is disclosed, as well as, if available, the number and date its signing, the reporting period for which it was compiled;

(see text in the previous edition)

a list of transactions completed by the joint-stock company in the reporting year, recognized in accordance with the Federal Law “On Joint-Stock Companies” as transactions in which there was an interest, indicating for each transaction the interested party (interested parties), essential conditions and the management body of the joint-stock company that made the decision on consent to its completion or its subsequent approval (if there is such a decision), and for each transaction (group of interrelated transactions), the size of which (which) was two or more percent of the book value of the assets of the joint-stock company - also indicating the basis (reasons) , according to which the person (persons) are recognized as interested in the transaction, the share of participation of the interested person (interested parties) in the authorized (share) capital (shares of shares owned by the interested person (interested parties)) of the joint-stock company and the legal entity that was a party to the transaction as of the date of the transaction. The annual report of a joint-stock company, instead of the specified list, may contain a link to a document containing a list of transactions carried out by the joint-stock company in the reporting year in which there was an interest, indicating its name and the address of the Internet page on which it is disclosed, as well as, if availability, number and date of its signing, reporting period for which it was compiled;

(see text in the previous edition)

composition of the board of directors (supervisory board) of the joint-stock company, including information on changes in the composition of the board of directors (supervisory board) of the joint-stock company that took place in the reporting year, and information about members of the board of directors (supervisory board) of the joint-stock company, including their brief biographical information data (year of birth, information about education, information about the main place of work), the share of their participation in the authorized capital of the joint-stock company and the share of ordinary shares of the joint-stock company owned by them, and if during the reporting year there were committed by members of the board of directors (supervisory council) transactions for the acquisition or alienation of shares of a joint-stock company, as well as information about such transactions, indicating for each transaction the date of its completion, the content of the transaction, categories (types) and number of shares of the joint-stock company that were the subject of the transaction;

information about the person holding the position (carrying out the functions) of the sole executive body of the joint-stock company (director, general director, chairman, manager, management organization, etc.), and members of the collegial executive body of the joint-stock company, including their brief biographical information ( year of birth, information about education, information about the main place of work), the share of their participation in the authorized capital of the joint-stock company and the share of ordinary shares of the joint-stock company owned by them, and if during the reporting year there were committed by the person holding the position (carrying out the functions ) the sole executive body, and (or) members of the collegial executive body of the transaction for the acquisition or alienation of shares of the joint-stock company, as well as information about such transactions indicating for each transaction the date of its completion, the content of the transaction, the category (type) and number of shares of the joint-stock company that were subject of the transaction;

The main provisions of the policy of the joint-stock company in the field of remuneration and (or) compensation of expenses, as well as information on each of the management bodies of the joint-stock company (with the exception of the individual who held the position (performed the functions) of the sole executive body of the joint-stock company, unless such person was manager) indicating the amount of all types of remuneration, including wages of members of the management bodies of the joint-stock company who were its employees, including those who worked part-time, bonuses, commissions, remunerations separately paid for participation in the work of the relevant management body, other types of remuneration that were paid by the joint-stock company during the reporting year, and indicating the amount of expenses associated with the performance of the functions of members of the management bodies of the joint-stock company, compensated by the joint-stock company during the reporting year. If a joint-stock company paid remuneration and (or) compensated expenses to a person who was simultaneously a member of the board of directors (supervisory board) of the joint-stock company and was a member of the collegial executive body (board, directorate) of the joint-stock company, the remuneration paid and (or) compensated expenses of such person related to his performance of the functions of a member of the board of directors (supervisory board) of the joint-stock company are included in the total amount of remuneration paid and (or) compensated expenses for the board of directors (supervisory board) of the joint-stock company, and other types of remuneration paid and (or) compensated expenses of such persons are included in the total amount of remuneration and (or) compensated expenses for the collegial executive body (board, directorate) of the joint-stock company;

Information (report) on the joint-stock company’s compliance with the principles and recommendations of the Corporate Governance Code recommended for use by the Bank of Russia (hereinafter referred to as the Corporate Governance Code);

information on the approval of the annual report by the general meeting of shareholders or the board of directors (supervisory board) of the joint-stock company, if the issue of approval of the annual report is within its competence by the charter of the joint-stock company, as well as other information provided for by the charter or internal document of the joint-stock company.

(see text in the previous edition)

70.3.1. The annual report of a joint stock company that is a credit institution, instead of the information provided for in paragraphs two - four, six, seven, eleven - thirteen of paragraph 70.3 of these Regulations, may contain a reference to the document (documents) in which this information is disclosed, indicating its name (their names) and the address of the Internet page on which it is disclosed (they are disclosed), as well as, if available, the number and date of its (their) signing, the reporting period for which it was compiled (they are compiled) .

70.4. If the shares of a joint stock company are admitted to organized trading, the annual report of the joint stock company must include a report on compliance with the principles and recommendations of the Corporate Governance Code, containing:

a statement from the board of directors (supervisory board) of the joint stock company on compliance with the principles of corporate governance enshrined in the Corporate Governance Code, and if such principles are not observed by the joint stock company or are not fully observed by it - indicating these principles and a brief description of the part in which they are not are observed;

a brief description of the most significant aspects of the model and practice of corporate governance in a joint-stock company;

a description of the methodology by which the joint-stock company assessed compliance with the principles of corporate governance enshrined in the Corporate Governance Code;

an explanation of the key reasons, factors and (or) circumstances that must be of a specific nature, due to which the joint-stock company does not comply or does not fully comply with the principles of corporate governance enshrined in the Corporate Governance Code;

(see text in the previous edition)

description of the mechanisms and tools of corporate governance that are used by the joint-stock company instead of (instead of) those recommended by the Corporate Governance Code;

planned (proposed) actions and measures of the joint-stock company to improve the model and practice of corporate governance, indicating the timing of the implementation of such actions and measures.

(see text in the previous edition)

70.5. If at the end of the second reporting year or each subsequent reporting year the value of the net assets of the joint-stock company is less than its authorized capital, the annual report of the joint-stock company must include a section on the state of its net assets.

70.6. A joint stock company is obliged to publish the text of the annual report on the Internet page no later than two days from the date of drawing up the minutes (the expiration date established by the legislation of the Russian Federation for drawing up minutes) of the general meeting of shareholders or the meeting of the board of directors (supervisory board), at which it was adopted decision to approve the annual report of the joint stock company.

(see text in the previous edition)

70.7. The text of the annual report of the joint stock company must be available on the Internet page for at least three years from the date of expiration of the period established by these Regulations for its publication on the Internet, and if it is published on the Internet after the expiration of such period - from the date of its publication on the Internet.

70.8. If unreliable, inaccurate, incomplete and (or) misleading information disclosed in the annual report of the joint-stock company is identified, the joint-stock company has the right to change (adjust) the information disclosed in the annual report by publishing on the Internet page the text of the document approved the board of directors (supervisory board) of the joint-stock company, which contains amended (adjusted) information.

The document containing the amended (adjusted) information disclosed in the annual report of the joint stock company must indicate:

information that the document is published in order to change (adjust) the information contained in the previously published annual report of the joint-stock company;

the full text of the changed (adjusted) information, as well as a brief description of the changes made;

information about the approval of the document by the board of directors (supervisory board) of the joint-stock company as an internal document of the joint-stock company that does not regulate the activities of its bodies.

The text of the document containing the amended (adjusted) information disclosed in the annual report of the joint-stock company must be available on the Internet page from the date of its publication on the Internet until the expiration of the period established by these Regulations for providing access to the text of the annual report of the joint-stock company.

71.2. The annual accounting (financial) statements of a joint-stock company are approved by the general meeting of shareholders or the board of directors (supervisory board) of the joint-stock company, if the issue of approving the annual accounting (financial) statements is within the competence of the joint-stock company's charter.

The reliability of the data contained in the annual accounting (financial) statements of the joint-stock company must be confirmed by the audit commission (auditor) of the joint-stock company. The specified confirmation is not required if, in accordance with the charter of a non-public joint-stock company, an audit commission (auditor) is absent (not elected) or is elected (created) exclusively in cases provided for by the charter of a non-public joint-stock company, and such cases do not provide for confirmation (verification) of accuracy data contained in the annual accounting (financial) statements of the joint-stock company.

71.3. The annual accounting (financial) statements of a joint stock company must consist of a balance sheet, a statement of financial results and appendices thereto.

If the annual accounting (financial) statements of a joint stock company are subject to mandatory audit in accordance with federal laws, such accounting (financial) statements must be disclosed together with the auditor's report expressing in the prescribed form the audit organization's opinion on its reliability.

71.4. The annual accounting (financial) statements of a joint stock company are disclosed:

by publishing its text on a page on the Internet no later than three days from the date of drawing up the audit report, expressing in the prescribed form the opinion of the audit organization on its reliability, but no later than three days from the date of expiration of the deadline established by the legislation of the Russian Federation for submitting a legal copy of the compiled annual report accounting (financial) statements;

(see text in the previous edition)

as part of the quarterly report of the joint stock company - issuer for the first quarter in accordance with Section IV of these Regulations in the event that the joint stock company - issuer in accordance with these Regulations is obliged to disclose information in the form of a quarterly report.

71.5. A non-public joint stock company that has carried out (is carrying out) a public placement of bonds or other securities, which, in accordance with these Regulations, is not subject to requirements for disclosure of information in the form of a quarterly report and statements of material facts, no later than two days from the date of drawing up the minutes ( the date of expiration of the period established by the legislation of the Russian Federation for drawing up the minutes) of the annual general meeting of shareholders or meeting of the board of directors (supervisory board) of the joint-stock company (if the issue of approving the annual accounting (financial) statements is referred to by the charter of the joint-stock company within its competence), at which the issue was considered on approval of the annual accounting (financial) statements, is obliged to publish on the Internet page a message about the approval (non-approval) of the annual accounting (financial) statements of the joint-stock company. If at the annual general meeting of shareholders or a meeting of the board of directors (supervisory board) of a joint-stock company, at which the issue of approving the annual accounting (financial) statements of the joint-stock company was considered, these statements were not approved, the joint-stock company is obliged to indicate the reasons that served as the basis for this . The text of the specified message must be available on the Internet page for at least three years from the date of expiration of the period established by these Regulations for publishing the text of the annual accounting (financial) statements on the Internet, and if the text of the annual accounting (financial) statements is published on the Internet Internet after the expiration of such a period - from the date of its publication on the Internet.

(see text in the previous edition)

71.6. If the annual accounting (financial) statements of a non-public joint-stock company specified in paragraph 71.5 of these Regulations are not approved at the annual general meeting of shareholders or the corresponding meeting of the board of directors (supervisory board) of the joint-stock company (if the question of approval of the annual accounting (financial) statements assigned by the charter of the joint stock company to its competence), changes were made and the annual accounting (financial) statements with the amendments were approved at an extraordinary general meeting of shareholders or a meeting of the board of directors (supervisory board) (if the issue of approving the annual accounting (financial) statements is included in the charter of the joint stock company company to its competence), the joint-stock company is obliged to publish the text of such annual accounting (financial) statements on the Internet page no later than two days from the date of drawing up the minutes (the date of expiration established by the legislation of the Russian Federation for drawing up minutes) of an extraordinary meeting of shareholders or a meeting of the board directors (supervisory board) of the joint-stock company.

(see text in the previous edition)

71.7. The text of the annual accounting (financial) statements of the joint-stock company, together with the text of the auditor’s report, expressing in the prescribed form the opinion of the audit organization on the reliability of the annual accounting (financial) statements, subject to mandatory audit in accordance with federal laws, must be available on the Internet page within at least three years from the date of expiration of the period established by these Regulations for its publication on the Internet, and if it is published on the Internet after the expiration of such a period - from the date of its publication on the Internet.

The issues of information disclosure by issuers of equity securities, despite numerous publications on this topic, as well as the existence of extensive judicial practice, remain relevant today.

Of course, thanks to the active work of the Federal Financial Markets Service of Russia and its territorial bodies, as well as the above factors, the overall situation of information disclosure by issuers of equity securities has improved significantly. More and more issuers are disclosing information in compliance with the deadlines, volume and procedure established by regulatory legal acts.

However, the number of administrative cases initiated by the Federal Financial Markets Service of Russia in the Central Federal District (from 09/01/2013 - MU SBR in the Central Federal District (Moscow)) of administrative cases under Part 2 of Art. 15.19 of the Code of the Russian Federation on Administrative Offenses (hereinafter referred to as the Code of Administrative Offenses of the Russian Federation) still remains significant.

I would like to draw attention to the fact that the elements of an administrative offense, liability for the commission of which are provided for in Part 2 of Art. 15.19 of the Code of the Russian Federation on Administrative Offences, also arises if, out of the entire huge list of documents and information subject to disclosure, the issuer does not disclose only one document or provides unreliable/misleading information in only one paragraph of the quarterly report or other disclosed document .

Let's look at the most common mistakes issuers make when disclosing information, the repetition of which can serve as grounds for administrative liability.

Disclosure of information on the cost of making copies of company documents

In accordance with clause 1.11 of the Regulations on the disclosure of information by issuers of equity securities, approved by Order of the Federal Financial Markets Service of Russia dated October 4, 2011 No. 11-46/pz-n (hereinafter referred to as the Regulations), the issuer must publish on the Internet page the bank details of its current account (accounts) to pay the costs of making copies of documents specified in clause 1.11 of the Regulations, and the amount (procedure for determining the amount) of such expenses. Currently, a large number of issuers have a lack of such information on their Internet pages.

It is necessary to take into account that if copies of the above documents are provided free of charge, this circumstance must be indicated on the Internet page.

The indication “copies of documents are provided for a fee not exceeding the costs of their production,” in the author’s opinion, cannot be considered an appropriate definition of the procedure, since it does not allow the interested person to assess the costs that may arise in connection with his stated requirement to provide copies.

When analyzing the information disclosure pages of issuers on the Internet, you often come across an indication that the cost of making copies is a specific amount of money, including VAT. At the same time, in accordance with Art. 91 of the Federal Law of December 26, 1995 No. 208-FZ “On Joint Stock Companies”, the fee charged by the company for providing these copies cannot exceed the costs of their production. A similar rule is also contained in clause 1.11 of the Regulations. The salary of the employee making copies, as well as contributions to social funds, value added tax, and electricity costs are among the expenses that the company incurs regardless of the shareholders’ request to provide copies of documents. Therefore, these expenses, including VAT, are not subject to inclusion in the cost of making copies of documents at the request of the shareholder. This position has been repeatedly expressed in the instructions of the Federal Financial Markets Service of Russia in the Central Federal District, as well as by the courts (Resolution of the Federal Antimonopoly Service of the West Siberian District dated July 2, 2009 No. F04-3846/2009 (9720-A45-16) in case No. A45-19649/2008, Resolution of the Federal Antimonopoly Service of the Moscow District dated October 3, 2011 in case No. A40-99535/10-148-572).

Essential Facts

The most common mistake made by issuers is that information is not disclosed about all material facts, the disclosure of which is provided for in clause 6.1.7 of the Regulations, or the deadlines for their disclosure are violated. Of course, the list of information subject to disclosure is so large that joint stock companies often do not have time to keep track of them. In addition, the problem may be complicated by the fact that the person responsible in a joint-stock company for disclosing information does not always receive the necessary information within the shortest possible time frame established for disclosing messages about material facts.

So, for example, paragraphs. 44 clause 6.1.7 of the Regulations provides for the disclosure of a message about the following material fact - “about a dispute related to the creation of the issuer, its management or participation in it.” As a rule, such information is concentrated in the legal department, whose employees do not always interact with the person responsible for disclosing information. At the same time, the shareholder who has filed such claims against the company, viewing the information disclosure page of the joint-stock company on the Internet and not finding a corresponding statement of a material fact, contacts the authorized body to consider the issue of bringing the joint-stock company to liability established by the Code of Administrative Offenses of the Russian Federation.

To solve this problem, I would recommend building such a system for transmitting information in a joint-stock company, in which a person whose job responsibilities include working with information included in the list of material facts must, as soon as possible, transfer such information to the authorized person responsible for disclosing information . The obligation to transmit this information should be included in the job responsibilities of such persons, and responsibility for failure to comply should also be specified in the job description.

Quarterly and annual report

As for the disclosure of quarterly and annual reports, the main problem remains their content. Often, issuers take a formal approach to their preparation, copying the relevant paragraphs of previous reports. Sometimes information is hidden on purpose. At the same time, I would like to draw your attention to the fact that more and more complaints from shareholders are being received specifically about the content of such reports and the disclosure of unreliable or misleading information in them.

A typical situation is when in a quarterly report in various ways (phrases) the issuer tries to avoid disclosing information about the amount of remuneration, benefits and/or compensation for expenses for each management body of the issuer (clause 5.3 of Appendix No. 3 to the Regulations). Many issuers explain that such information is confidential information. At the same time, clause 5.3 of Appendix No. 3 to the Regulations determines that in the quarterly report “for each of the issuer’s management bodies, all types of remuneration are described, indicating the amount, including wages of members of the issuer’s management bodies who are (were) employees of the issuer, including working ( working) part-time, bonuses, commission payments, benefits and/or compensation of expenses, remuneration separately paid for participation in the work of the relevant management body, as well as other types of remuneration that were paid by the issuer during the relevant period, as well as information on existing agreements regarding such payments in the current financial year.”

It is also established here that “the specified information cannot be the subject of a confidential information agreement, preventing their disclosure in the quarterly report, with the exception of information on the amount of remuneration of an individual performing the functions of the sole executive management body of the issuer.”

It must be remembered that in accordance with clause 1.15 of the Regulations, if the issuer does not disclose any information, the disclosure of which is required in accordance with the legislation of the Russian Federation, the Regulations and other regulatory legal acts, the issuer must indicate the basis, due to which such information is not disclosed by the issuer. Thus, in clause 5.3 of the quarterly report, the issuer may not disclose only information on the amount of remuneration of an individual performing the functions of the sole executive body of the issuer, if such information, according to the relevant documents of the issuer, is confidential. At the same time, in the quarterly report, the issuer is obliged to indicate the reason why information is not disclosed to them. The absence of such instructions may be grounds for bringing the issuer to administrative liability.

As for the disclosure in the annual report of information on remuneration of the management bodies of the joint-stock company, provided for in paragraphs. 2 clause 8.2.3 of the Regulations, then the annual report must indicate the criteria for determining and the amount of remuneration (compensation for expenses) of the person holding the position of the sole executive body (manager, management organization) of the joint-stock company, each member of the collegial executive body of the joint-stock company and each member the board of directors (supervisory board) of the joint-stock company or the total amount of remuneration (compensation for expenses) of all these persons paid during the reporting year.

At the same time, the Regulations, unlike the rules governing the disclosure of such information in the quarterly report, do not establish the possibility of non-disclosure of such information in the annual report due to its confidentiality.

At the same time, it must be remembered that paragraphs. 11th century 5 of the Federal Law of July 29, 2004 No. 98-FZ “On Trade Secrets” establishes that the regime of trade secrets cannot be established by persons engaged in business activities in relation to, among other things, information mandatory disclosure of which or the inadmissibility of restricting access to which is established by other federal laws.

Thus, information about the amount of remuneration that must be disclosed in the annual report cannot be classified as a trade secret, since the obligation to disclose this information follows from Art. 92 of the Federal Law of December 26, 1995 No. 208-FZ “On Joint-Stock Companies” and is provided for by the Regulations. The same position is stated in the Resolution of the Federal Antimonopoly Service of the Moscow District dated May 29, 2013 in case No. A40-119148/12-139-1142.

About disclosure of financial statements

A very common violation is failure to comply with the requirements for the composition of disclosed financial statements, specified in clause 8.3.3 of the Regulations. In accordance with this norm, in addition to the balance sheet and profit and loss account, the appendices thereto provided for by law, the auditor's report (if the statements are subject to mandatory audit) and the explanatory note are subject to disclosure. A similar composition of financial statements was provided for by the previously in force Regulations on the disclosure of information by issuers of equity securities, approved by Order of the Federal Financial Markets Service of the Russian Federation dated October 10, 2006 No. 06-117/pz-n.

The largest number of errors by issuers is associated with the failure to disclose all or part of the appendices to the financial statements, as well as the explanatory note. Due to the fact that the period during which the annual financial statements disclosed by issuers must be available on the Internet is three years, we will consider the composition of the appendices to the annual financial statements based on the results of 2010-2012.

According to the Federal Law of November 21, 1996 No. 129-FZ “On Accounting”, which was in force until January 1, 2013, the financial statements of joint stock companies consisted of:

balance sheet;
profit and loss statement;
appendices to them, provided for by regulations;
auditor's report (if the statements are subject to mandatory audit);
explanatory note.

For the annual financial statements of joint-stock companies based on the results of 2010, paragraph 1 of Order of the Ministry of Finance of the Russian Federation dated July 22, 2003 No. 67n “On forms of financial statements of organizations” established the following composition of appendices to the balance sheet and profit and loss statement of financial statements:

statement of changes in capital (form No. 3);
cash flow statement (form No. 4);
Appendix to the balance sheet (form No. 5).

For the financial statements of joint-stock companies based on the results of 2011, paragraphs 2 and 4 of the Order of the Ministry of Finance of the Russian Federation dated July 2, 2010 No. 66n “On the forms of financial statements of organizations” established the following composition of appendices to the balance sheet and profit and loss statement of financial statements:

statement of changes in equity;
cash flow statement;
explanations (their content was determined by organizations independently, taking into account

Appendix No. 3 to the Order, the requirements of Federal Law dated November 21, 1996 No. 129-FZ “On Accounting” and the Accounting Regulations “Accounting Reports of an Organization” (PBU 4/99), approved by Order of the Ministry of Finance of the Russian Federation dated July 6, 1999 . No. 43n).

Taking into account Part 1 of Art. 14 of the Federal Law of December 6, 2011 No. 402-FZ “On Accounting”, starting with the annual financial statements for 2012, the annual accounting (financial) statements of joint-stock companies consist of a balance sheet, a statement of financial results and appendices to them. Thus, at present, the explanatory note is not part of the accounting (financial) statements. As indicated in the Letter of the Ministry of Finance of the Russian Federation dated May 23, 2013 No. 03-02-07/2/18285, by virtue of Part 1 of Art. 30 of the Federal Law of December 6, 2011 No. 402-FZ “On Accounting”, in relation to the composition of appendices to the balance sheet and financial statements, Order of the Ministry of Finance of the Russian Federation of July 2, 2010 No. 66n “On the forms of financial statements of organizations” continues to apply. . According to paragraphs. 3 and 4 of this Order, the appendices to the balance sheet and the income statement include a statement of changes in capital, a cash flow statement and other appendices (explanations). Thus, explanations are included in the accounting (financial) statements. In accordance with clause 4 of the above-mentioned Order of the Ministry of Finance of the Russian Federation No. 66n, such explanations are drawn up in tabular and (or) text form. At the same time, the content of the explanations, drawn up in tabular form, is determined by organizations independently, taking into account Appendix No. 3 to the Order.

In addition, by virtue of Part 1 of Art. 30 of the Federal Law of December 6, 2011 No. 402-FZ “On Accounting”, Section VIII PBU 4/99, approved by Order of the Ministry of Finance of the Russian Federation of July 6, 1999 No. 43n (Information accompanying financial statements), continues to apply, as well as 37 PBU 4/99, according to which, in case of deviation from the rules provided for in paragraphs. 32 - 35 PBU 4/99, significant deviations must be disclosed in the explanations to the balance sheet and profit and loss statement, along with an indication of the reasons that caused these deviations, and the effect that these deviations had on the understanding of the financial position of the organization, the reflection of financial results its activities and changes in its financial position.

The rules governing the disclosure of information by issuers of equity securities do not disclose the concept of an explanatory note mentioned in clause 8.3.3 of the Regulations. At the same time, clause 5 of PBU 4/99 provides that the appendices to the balance sheet and profit and loss account and the explanatory note are called explanations.

In connection with the above, in the opinion of the author, changes in the rules governing the composition of financial statements require corresponding changes to clause 8.3.3 of the Regulations regarding the requirements for disclosure of the explanatory note. At present, it seems necessary for the author to disclose, in accordance with clause 8.3.3 of the Regulations as part of the annual financial statements for 2012, the balance sheet, income statement, statement of changes in equity, cash flow statement, explanations and auditor's report (in the case of if the statements are subject to mandatory audit).

Often recorded violations of clause 8.3.3 of the Regulations are related to the non-disclosure of financial statements and the audit report due to the fact that the joint-stock company is on a simplified taxation system and does not maintain accounting records. Moreover, in accordance with Part 1 of Art. 5 of the Federal Law of December 30, 2008 No. 307-FZ “On Auditing Activities”, a mandatory audit is carried out, including in cases where the organization has the organizational and legal form of an open joint-stock company, as well as if the organization’s securities are admitted to circulation on organized auctions.

In addition, as follows from the Determination of the Constitutional Court of the Russian Federation dated June 13, 2006No. 319-O, exemption from the obligation to maintain accounting records in relation to the activities of an open joint-stock company does not exclude the need to draw up financial statements based on data on the property and financial position and on the results of economic activities in the form established by law, including for the purpose of providing information openness.

In the definition, the Constitutional Court of the Russian Federation also indicates that the features of an open joint-stock company require public conduct of business, including mandatory annual open publication for public information of the annual report, balance sheet and profit and loss accounts, confirmed by an independent audit. The information contained in these documents is not a trade secret, and its presentation (to both shareholders and other persons) is impossible without the preparation of financial statements.

Thus, a joint stock company obliged to disclose information in accordance with Chapter VIII of the Regulations must, in any case, prepare and disclose financial statements.

About the procedure and timing of disclosure financial statements

Currently, significant difficulties arise in determining the procedure and timing for disclosure of annual financial statements. Clause 8.3.4 of the Regulations stipulates that the annual accounting (financial) statements of a joint stock company are disclosed:

no later than 2 days from the date of expiration of the deadline established by the legislation of the Russian Federation for the submission of annual accounting (financial) statements;
no later than 2 days from the date of preparation of the annual accounting (financial) statements of the joint-stock company - if they were compiled before the expiration of the specified period;
no later than 2 days from the date of drawing up the auditor’s report - if the annual accounting (financial) statements of the joint-stock company are subject to mandatory audit;

2) as part of the quarterly report of the joint stock company - issuer for the first quarter in accordance with Chapter V of the Regulations if the joint stock company - issuer, in accordance with the Regulations, is obliged to disclose information in the form of a quarterly report.

First, let's look at the disclosure of annual financial statements by issuers that are not required to disclose information in the form of a quarterly report. The starting point for the two days for disclosure of annual financial statements in this case is the occurrence of one of the following events: preparation of financial statements (previously March 31), expiration of the deadline for submitting annual financial statements (March 31), drawing up an auditor's report. Moreover, if the choice of the first two events is obvious, then the choice between the first and third, as well as the second and third events seems ambiguous.

On the one hand, one might assume that the rule regarding the disclosure of annual financial statements that are subject to audit is special in relation to the rules regarding the timing of disclosure of annual financial statements that are not subject to mandatory audit. And in this case, the first two cases relate only to those disclosed statements that are not subject to mandatory audit. But such an assumption contradicts the systemic interpretation of paragraphs. 6 clause 1 art. 5 of the Federal Law of December 30, 2008 No. 307-FZ “On Auditing Activities”, Art. 92 and paragraph 3 of Art. 88 of the Federal Law of December 26, 1995 No. 208-FZ “On Joint-Stock Companies”, based on the content of which a mandatory audit of annual financial statements subject to disclosure is carried out in any case.

Then the publication of annual financial statements subject to mandatory audit immediately after their preparation is impossible, and in relation to the second and third cases, it can be assumed that the starting point for the disclosure period will be whichever of the above two events (March 31 or the drawing up of an auditor’s report) occurs earlier. If the auditor's report was drawn up before March 31, then the starting point for the disclosure period will be the date of its preparation. If the audit report is not drawn up before the specified deadline, then the starting point will be March 31.

This position, based, inter alia, on the provisions of the repealed Federal Law of November 21, 1996 No. 129-FZ “On Accounting”, is set out in the Letter of the Federal Financial Markets Service

Russia dated April 28, 2012 No. 12-OP-10/19059, posted in legal information systems. The Federal Financial Markets Service of Russia indicates that if the auditor's report on the annual financial statements is not submitted to the joint-stock company within the period established by the legislation of the Russian Federation for the submission of annual financial statements, the joint-stock company no later than 2 days from the date of expiration of the specified period should disclose the annual financial statements indicating the corresponding the grounds for which the auditor's report is not disclosed, and no later than 2 days after receiving the auditor's report in relation to the annual financial statements - disclose the specified auditor's report.

However, as it seems to the author, in this case the joint-stock company may violate paragraph 3 of Art. 88 of the Federal Law of December 26, 1995 No. 208-FZ “On Joint-Stock Companies,” indicating that before publishing annual financial statements, the company is obliged to engage an auditor, as well as clause 10 of Art. 13 of the Federal Law of December 6, 2011 No. 402-FZ “On Accounting”, which prescribes that in the case of publication of financial statements that are subject to mandatory audit, they must be published together with the auditor’s report.

In connection with the above, in order to comply with these standards, the best option seems to be to structure the company’s activities in such a way that the auditor’s report on the annual financial statements is in any case drawn up no later than March 31. Moreover, if the auditor’s report on the annual financial statements is not submitted to the joint-stock company within the period established by the legislation of the Russian Federation for the submission of annual financial statements, the joint-stock company should, no later than 2 days from the date of expiration of the specified period, in accordance with the requirement of paragraph. 1.15 of the Regulations to disclose a message indicating the corresponding basis for which the annual financial statements are not disclosed. And no later than 2 days after receiving the auditor’s report regarding the annual financial statements - disclose them.

In addition, when disclosing the annual financial statements, issuers often forget to publish a message on the Internet page about the approval (non-approval) of the annual financial statements of the joint-stock company in accordance with clause 8.3.5 of the Regulations.

Let us now consider the procedure and timing for disclosure of annual financial statements by issuers required to disclose information in the form of a quarterly report.

According to the author, the norm relating to the disclosure of annual financial statements by such issuers (clause 2, clause 8.3.4 of the Regulations) could be considered as special in relation to the rules relating to the disclosure of annual financial statements by joint-stock companies that are not subject to the obligation to disclose information in the form of a quarterly report (clause 1, clause 8.3.4 of the Regulations). In this case, issuers required to disclose information in the form of a quarterly report disclose annual financial statements only once as part of the quarterly report for the first quarter in accordance with Chapter V of the Regulations. However, in this case, joint-stock companies, which, due to their greater openness, are subject to additional stricter requirements for the volume and timing of information disclosure, will generally disclose annual financial statements at least 45 days later than all other joint-stock companies. The last statement casts doubt on the first assumption. All of the above allowed some authors to argue that companies obliged to disclose information in the form of a quarterly report are required to disclose annual financial statements twice: as part of the quarterly report for the first quarter and in accordance with paragraph 1 of paragraph 8.3.4 of the Regulations.

Thus, we believe that due to the lack of judicial practice on this issue, as well as the possible ambiguous interpretation of this norm, joint-stock companies subject to the obligation to disclose information in the form of a quarterly report should disclose annual financial statements twice.

In connection with the entry into force of the Federal Law of December 6, 2011 No. 402-FZ “On Accounting”, which does not provide for the mandatory preparation and submission of quarterly accounting (financial) statements by all business entities, the question arises about the need to prepare and disclose quarterly accounting ( financial) reporting by joint stock companies, which are responsible for disclosing information in the form of a quarterly report.

In accordance with Art. 30 of the Federal Law of April 22, 1996 No. 39-FZ “On the Securities Market”, the quarterly report for the first quarter includes the interim accounting (financial) statements of the issuer for the completed reporting period, consisting of three months of the reporting year, and the quarterly reports reports for the second and third quarters - interim accounting (financial) statements of the issuer for completed reporting periods consisting of six and nine months of the reporting year, respectively.

At the same time, clause 4 of Art. 13 of the Federal Law of December 6, 2011 No. 402-FZ “On Accounting” establishes that interim accounting (financial) statements are prepared by an economic entity in cases where the legislation of the Russian Federation, regulatory legal acts of state accounting regulatory bodies, contracts, constituent documents of an economic entity, decisions of the owner of an economic entity the obligation to present it has been established.

Thus, joint stock companies that are subject to the obligation to disclose information in the form of a quarterly report are required, by virtue of special provisions of Federal Law No. 39-FZ of April 22, 1996 “On the Securities Market,” to prepare and disclose interim accounting (financial) statements as part of the quarterly reports for the first, second and third quarters. This position is also set out in Information of the Ministry of Finance of the Russian Federation No. PZ-10/2012 “On the entry into force of the Federal Law of December 6, 2011 No. 402-FZ “On Accounting” from January 1, 2013.

And in conclusion of the consideration of issues regarding the disclosure of accounting (financial) statements, I would like to note that in accordance with paragraph 11 of Art. 13 of the Federal Law of December 6, 2011 No. 402-FZ “On Accounting”, a trade secret regime cannot be established in relation to accounting (financial) statements.

Affiliate Disclosure

The main mistake of issuers when disclosing information in the form of a list of affiliates is the failure to include in the list of affiliates information about all affiliates that are known or should be known to this joint stock company. Most often, issuers forget to indicate those affiliated persons who are recognized as affiliated due to belonging to the same group of persons to which the given legal entity belongs. In order to avoid such mistakes, it is necessary to carefully study Article 9 of the Federal Law of July 26, 2006 No. 135-FZ “On the Protection of Competition” and regularly monitor the grounds specified in it.

When disclosing changes that have occurred in the list of affiliates, some difficulties arise in determining the date of occurrence of the event, which is the starting point for the disclosure period. In accordance with clause 8.5.3 of the Regulations, the joint-stock company is obliged to publish on its Internet page the texts of changes that have occurred in the list of affiliated persons no later than 2 business days from the date of making the corresponding changes to this list. At the same time, the period during which the company must make these changes to the list of affiliated persons from the moment when it learned or should have learned about such changes is not established by the current regulatory legal acts. According to the author, taking into account the need to disclose information as quickly as possible, the texts of changes that have occurred in the list of affiliated persons should be published no later than 2 business days from the date when the joint-stock company learned about the relevant changes.

In conclusion, we note that a common mistake of issuers is failure to disclose additional information provided for in Part 8.7 of the Regulations. There are no particular difficulties in understanding the norms of this part; such errors are associated, first of all, with the lack of adequate internal control over the facts specified in clause 8.7.1 of the Regulations and the timely disclosure of information about them. Let us also recall that in accordance with clause 8.7.6 of the Regulations, the disclosure of additional information must be carried out both in the news feed and on the website of the joint-stock company on the Internet.

_______________________

See, for example: Vavulin D.A. Disclosure of information by joint stock companies. – M.: Justitsinform, 2012. – paragraph 10.