Errors of issuers when disclosing information on the securities market. Should a non-public joint stock company publish reports and disclose information? Is it necessary to disclose the annual financial statements of a joint stock company?

Open joint stock companies are required to publish annual accounting (financial) statements by posting them on their Internet page in any case. For closed companies, such an obligation arises only upon public placement of bonds or other securities.

Rationale. According to Clause 9, Art. 13 of the Federal Law of December 6, 2011 N 402-FZ “On Accounting”, publication of accounting (financial) statements must be carried out in the manner and cases established by federal laws. If the obligation to publish is established, statements subject to mandatory audit are published together with the auditor's report (Clause 10 of this article).

By virtue of paragraph 1 of Art. 97 of the Civil Code of the Russian Federation, an open joint-stock company is obliged to annually publish for public information an annual report, a balance sheet, and a profit and loss account (the profit and loss account, apparently, means the Statement of Financial Results). The procedure for publishing financial statements by open joint-stock companies is approved by Order of the Ministry of Finance of the Russian Federation dated November 28, 1996 N 101. However, this document should soon lose force - after 10 days after the publication of Order of the Ministry of Finance of the Russian Federation dated June 5, 2014 N 45n “On declaring the order of the Ministry of Finance of the Russian Federation as invalid” Federation dated November 28, 1996 N 101 “On the procedure for publishing financial statements by open joint-stock companies,” which is what financiers also focused on (see Letter dated June 25, 2014 N 07-01-06/30294). (As of the date of preparation, the material had not yet been published.)

As for a closed joint-stock company, it may also be required to publish relevant documents for public information, if this is provided for by Federal Law No. 208-FZ of December 26, 1995 “On Joint-Stock Companies.”

Based on Art. 92 of Federal Law No. 208-FZ, open joint-stock companies are required to disclose:

— annual report, annual financial statements;

— prospectus of securities in cases provided for by legal acts of the Russian Federation;

— notice of the general meeting of shareholders;

— other information determined by the Central Bank of the Russian Federation.

It also says here: 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 volume and manner established by the Bank of Russia.

From the presented norms it is clear that closed companies are required to disclose the listed information only in the event of a public offering of bonds and other securities. What is the situation with regard to open societies?

The composition, procedure and terms of mandatory disclosure of information by a joint-stock company are prescribed in the 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 4, 2011 N 11-46/pz-n. According to this document, an open joint-stock company, as well as a closed joint-stock company that has carried out a public placement of bonds or other securities, are required to disclose, among other things, the annual accounting (financial) statements of the joint-stock company. The obligation to disclose information arises:

- for an OJSC - from the date of state registration of such a company;

- for a closed joint stock company - from the date following the date of state registration of the issue (additional issue) of bonds or other securities of the company placed by open subscription (public offering). The obligation of the CJSC to disclose information terminates simultaneously with the termination of the obligation to disclose information in the form of a quarterly report and statements of material facts.

Thus, OJSCs are required to disclose annual accounting (financial) statements in any case, and CJSCs are required to disclose them only in the event of a public offering of bonds and other securities.

Now let's understand what is meant by disclosure of information. The annual accounting (financial) statements of a joint stock company are disclosed:

- as part of the quarterly report of the joint stock company - issuer for the first quarter, if the company is obliged to disclose information in the form of a quarterly report.

Consequently, the disclosure of the annual accounting (financial) statements of a joint-stock company means, in particular, their posting on the Internet on the company’s website.

Should joint stock companies publish accounting (financial) statements?

EXPERT OPINION
Expert Advisory Council
Self-regulatory organization of auditors of the Non-Profit Partnership
"Audit Association Commonwealth"

annual report of the company, annual accounting (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 Bank of Russia.

By Directive of the Central Bank of Russia dated December 16, 2015 No. 3899-U, changes were made to the Regulations regarding the timing of disclosure of information on annual accounting (financial) statements.

In accordance with Part 2 of Art. 15.19 of the Code of Administrative Offenses of the Russian Federation establishes administrative liability for non-disclosure or violation by the issuer ... of the procedure and terms for disclosure of information provided for by federal laws and other regulatory legal acts adopted in accordance with them, as well as disclosure of information not in full, and (or) unreliable information, and ( or) misleading.

Additionally, please note that PJSC, by decision of the General Meeting of Shareholders, has the right to apply to the Bank of Russia with an application to relieve it from the obligation to disclose or provide information provided for by the legislation of the Russian Federation on securities (Article 92.1 of the Federal Law of December 26, 1995 No. 208- Federal Law “On Joint Stock Companies”).

The Expert Advisory Council of NP AAS, based on the results of consideration of a request submitted by a member of NP AAS to obtain an Expert opinion on the issue relating to the timing of issuing an audit report based on the results of a mandatory audit of the annual accounting (financial) statements of a joint-stock company - the issuer of equity securities, explains the following.

1. General provisions on the obligation to publish financial statements are set out in the Federal Law of December 6, 2011 No. 402-FZ “On Accounting”

Article 13. General requirements for accounting (financial) reporting

Article 18. Mandatory copy of accounting (financial) statements

2. A mandatory copy of the prepared annual accounting (financial) statements is submitted no later than three months after the end of the reporting period. When submitting a legal copy of the compiled annual accounting (financial) statements, which are subject to mandatory audit, the auditor's report on it is presented together with such statements or no later than 10 business days from the day following the date of the auditor's report, but no later than December 31 of the year following reporting year.

2. Mandatory disclosure of information by PJSC is regulated by Art. 92 of the Federal Law of December 26, 1995 No. 208-FZ “On Joint Stock Companies”

Article 92. Mandatory disclosure of information by the company

1. A public company is obliged to disclose:

annual report of the company, annual accounting (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 Bank of Russia.

2. Mandatory disclosure of information by a company, including a non-public company, in the event of a public placement of bonds or other securities by it, is carried out by the company in the volume and manner established by the Bank of Russia.

3. Mandatory disclosure of information by PJSC (in case of public offering of securities) is regulated by the Regulations of the Bank of Russia dated December 30, 2014.

No. 454-P “On the disclosure of information by issuers of equity securities” (hereinafter referred to as the Regulations).

In accordance with clause 71.4 of the Regulations (as amended), the accounting (financial) statements of a joint stock company are disclosed by publishing their text on the Internet page on time 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 about its reliability, but no later than three days from the expiration date established by the legislation of the Russian Federation deadline for submitting a legal copy of the prepared annual accounting (financial) statements.

Clause 71.3 of the Regulations establishes that 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 in accordance with federal laws are subject to mandatory audit, such accounting (financial) statements must be disclosed along with the auditor’s report expressing in the prescribed form the opinion of the audit organization about its reliability.

Thus, the audit report, although not part of the annual accounting (financial) statements, must be disclosed by the joint-stock company together with the accounting (financial) statements within the period established by law and by-laws.

The deadline for disclosure of the annual financial statements for 2015, taking into account the requirements provided for in clause 2.17 of the Regulations, is no later than April 4, 2016.

4. Administrative liability for violation of requirements and deadlines for disclosure of information

According to Article 30 of the Federal Law of April 22, 1996 No. 39-FZ “On the Securities Market,” disclosure of information means ensuring its availability to all persons interested in it, regardless of the purpose of obtaining this information, in accordance with the procedure that guarantees its finding and receipt. Disclosed information on the securities market is information in respect of which actions have been taken to disclose it.

Thus, failure to disclose on the Internet an auditor’s report on the reliability of the accounting (financial) statements of a joint-stock company within the prescribed period indicates an offense, liability for which is established by part 2 of Article 15.19 of the Code of Administrative Offenses of the Russian Federation.

However, when resolving the issue of the validity of bringing to administrative liability, the following should be taken into account.

Bringing to administrative responsibility and applying administrative punishment to the person who committed the offense is possible only if the person is guilty. In accordance with Part 2 of Article 2.1 of the Code of Administrative Offenses of the Russian Federation, a legal entity is found guilty of committing an administrative offense if it is established that it had the opportunity to comply with the rules and regulations, for violation of which this Code or the laws of the constituent entities of the Russian Federation provides for administrative liability, but they were not all measures within his power have been taken to comply with them.

The above changes to the Regulations on the procedure for disclosing information were made by Bank of Russia Directive No. 3899-U dated December 16, 2015, which was officially published in the Bank of Russia Bulletin on March 3, 2016, and came into force 10 days after the official publication - March 14, 2016 of the year.

According to the previous version of clause 71.4 of the Regulations, the annual accounting (financial) statements of a joint-stock company, subject to mandatory audit, were disclosed by publishing its text on a page on the Internet within “... no later than three days from the date of drawing up the audit report, expressing the opinion of the audit organization in the prescribed form about its reliability."

Thus, when concluding contracts for conducting a statutory audit, the parties (auditor and audited entity) did not and could not foresee changes in the future bylaws providing for the establishment of a deadline for the disclosure of data by a joint-stock company.

It seems that the non-disclosure on the Internet of an audit report, the issuance of which under previously concluded contracts has not come, given that the company took the necessary and sufficient measures established by law to obtain such a conclusion, may indicate the absence of the company’s guilt in committing an offense for which responsibility Part 2 of Article 15.19 of the Code of Administrative Offenses of the Russian Federation is established.

We also consider it advisable in this situation to initiate the auditee’s submission of proposals to the auditor regarding changes in the provisions of the contract in terms of the timing of the audit, indicating the changes made related to the procedure and timing of disclosure of the annual accounting (financial) statements.

We believe that such actions will confirm the desire of the joint-stock company to fulfill all the obligations assigned to it, despite the fact that on the date of concluding the contract for conducting a mandatory audit, it did not know and could not know about the upcoming amendments to the regulations, and after their adoption and entry into force in force - took measures aimed at fulfilling the obligation to disclose the necessary information.

It should be noted that the above interpretation applies exclusively to cases of execution of previously concluded audit contracts.

If the mandatory audit agreements concluded after the entry into force of Bank of Russia Directive No. 3899-U dated December 16, 2015 specify a deadline for issuing (drawing) an audit report later than March 30, 2016, the audited entity (joint stock company) does not have the right to refer on the absence of guilt in committing an offense, since such a person did not take all the necessary measures related to the implementation of the law, while he had the opportunity to comply with the appropriate deadline by setting the date for submitting the audit report in advance - that is, before the expiration of the deadline for submitting the legal deposit of the compiled annual accounting report ( financial) reporting.

In accordance with clause 2.13. Provisions on information disclosure “... if the issuer does not disclose any information, the disclosure of which is required in accordance with the legislation of the Russian Federation and these Regulations, ... the issuer must indicate the reason why such information is not disclosed by the issuer. The absence of information subject to disclosure in accordance with these Regulations, without sufficient grounds, is grounds for holding the issuer liable, as well as for establishing restrictions on the circulation of securities in accordance with the legislation of the Russian Federation.”

Based on the foregoing, in order to minimize the risks of bringing to administrative liability provided for in paragraph 15.19 of the Code of Administrative Offenses of the Russian Federation, in the situation described in the request, the joint-stock company must disclose the accounting (financial) statements within the prescribed period. Indicate the reason why the auditor's report is not disclosed. After receiving the audit report, the corresponding report must also be disclosed within three days on the Internet.

According to clause 2.17 of the Regulations on the disclosure of information by issuers of equity securities, approved. Bank of Russia 12/30/2014 No. 454-P, in the case when the last day of the period in which, in accordance with these Regulations, the issuer is obliged to disclose information or provide a copy of the document containing the information subject to disclosure, falls on a weekend or non-working holiday, the day of the end of such the deadline is considered to be the next working day following it.

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 general 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(s) to pay for 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, a 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 message about 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 with an indication of 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 issue-grade 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 the Federal Law of November 21, 1996 No. 129-FZ “On Accounting” and the Accounting Regulations “Accounting Reports of an Organization” (PBU 4/99), approved by the Order of the Ministry of Finance of the Russian Federation of 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 included in 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 understanding the state of the financial position of the organization, reflecting financial results its activities and changes in its financial position.

The rules governing the disclosure of information by issuers of issue-grade 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. Currently, 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 prepare financial statements based on data on the property and financial status 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 commercial 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 submission of annual financial statements (March 31), drawing up of 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 could 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 regarding 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 the auditor’s report), which 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 reasons 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 clause 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 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.

Should a non-public joint stock company publish reports and disclose information?

The organization is a non-public joint stock company. Is reporting information required to be disclosed? Read the article.

Question: A non-public joint stock company, one shareholder, does not carry out a public offering of securities. Should such a JSC publish and disclose information?

Answer: No, it shouldn't.

This duty is:

For public joint stock companies;

Non-public companies with more than fifty shareholders;

In the case of a public offering of bonds or other securities (Article 92 of the Federal Law of December 26, 1995 No. 208-FZ “On Joint-Stock Companies”).

Rationale

Who, how and when is obliged to submit financial statements

The organization must publish reports in cases provided for by law (clause 9 of article 13 of the Law of December 6, 2011 No. 402-FZ). Thus, public joint stock companies are required to publish their annual financial statements. This follows from paragraph 1 of Article 66.3 and paragraph 6 of Article 97 of the Civil Code of the Russian Federation, as well as paragraph 1.1 of Article 1 and Law of December 26, 1995 No. 208-FZ. Moreover, they must publish the reports together with the auditor’s report ().

Joint stock companies publish the text of their annual financial statements on their website on the Internet. The period is three days from the date of drawing up the auditor's report on the reliability of the reporting. In any case, accounting reports should be published no later than three calendar days from the date on which the deadline for its submission to Rosstat expired (clause 71.4 of Bank of Russia Regulation No. 454-P dated December 30, 2014).

Statistics for 2016 must be reported by March 31, 2017 inclusive. The deadline for publication of the financial statements along with the auditor's report is April 4. If you are late with publication, there will be a fine. The Bank of Russia warns about this in its information letter dated March 30, 2016 No. IN-06-52/17.

LLCs are required to do this only if they publicly place bonds or other equity securities ().

The requirements for mandatory publication of reporting also apply to organizations that use the simplified tax system (letter of the Ministry of Finance of Russia dated June 18, 2008 No. 07-05-06/137).

Attention: for violation of legal requirements on disclosure of information by the issuer, administrative liability is provided (Part 2 of Article 15.19 of the Code of Administrative Offenses of the Russian Federation).

The penalty is a fine. In this case, the amount of the fine is:

from 700,000 to 1,000,000 rubles. - for the organization;
from 30,000 to 50,000 rub. - for officials (or disqualification for a period of one to two years).

The costs associated with the publication of financial statements are administrative (clause 7 of PBU 10/99). Therefore, in accounting, reflect them on account 26 or account 44 (for trading organizations). When calculating income tax, take into account the costs of publishing annual reports as part of other expenses (). When calculating the single tax when simplifying the difference between income and expenses, these costs can also be taken into account in reducing the tax base ().

Federal Law of December 26, 1995 No. 208-FZ “On Joint-Stock Companies”

Article 92. Mandatory disclosure of information by the company

1. A public company is obliged to disclose:
annual report of the company, annual accounting (financial) statements;
prospectus of the company's securities in cases provided for by legal acts of the Russian Federation;1
notification of holding a general meeting of shareholders in the manner prescribed by this Federal Law;
other information determined by the Bank of Russia.

1.1. A non-public company with more than fifty shareholders is obliged to disclose the company's annual report and annual accounting (financial) statements in the manner prescribed by the legislation of the Russian Federation on securities for the disclosure of information on the securities market.

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 the non-public joint-stock company, the audit commission (auditor) is absent (not elected) or is elected (created) exclusively in cases provided for by the charter of the 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 to 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 carried out 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) amounted to 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 joint-stock company's policy 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 an 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 the text of the document approved on the Internet page 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.

home » Diseases » Errors of issuers when disclosing information on the securities market. Should a non-public joint stock company publish reports and disclose information? Is it necessary to disclose the annual financial statements of a joint stock company?