Company’s Address of Registration
On 30 July 2013 the Plenary Session of the Supreme Commercial Court adopted Resolution No. 61 “On Certain Issues of the Court Practice with Regard to Disputes Relating to the Reliability of the Address of a Legal Entity.”
According to Federal Law No. 129-FZ “On the State Registration of Legal Entities and Individual Entrepreneurs” (the “Registration Law”), the address of the continuing executive body of a legal entity (further – the company) or, where the company has no such body, the address of another body or person who is entitled to act on behalf of the company without a power of attorney is included in the Unified State Register for Legal Entities (the “EGRUL”) for the purposes of communication with the company. In this regard, the Plenum clarified, in particular, the following.
The company bears the risk of non-delivery of legally significant messages and of the absence of its permanent representative at the address provided in the EGRUL and may not refer to any other information about its address except when the wrong information was written in without the company’s permission, – Clause 1 of the Resolution.
The Plenum clarified that, for registration purposes, the company may indicate the address of the property that is unfit for its business activities, including the address of a residential property. In this case, the consent of the owner of the residential property is required. However, such consent is presumed if the provided address is the address of the residence of the company’s participant or individual who may act on the company’s behalf without a power of attorney. The transfer of powers of the company’s bodies (e.g., to the liquidating committee) or the change of the person who may act on the company’s behalf without a power of attorney do not by themselves entail the change of the company’s residence, – Clauses 4, 8 of the Resolution.
According to the Resolution, the Federal Tax Service (the “FTS”) may withhold the company’s state registration if it has reliable information that there is no intention to use the provided address for communication with the company: e.g., if (i) it is the mass registration address used by legal entities and there is information that it is not possible to contact them at this address; (ii) the address or the property at the provided address does not exist, or this is the address of the unfinished construction facility; (iii) this is the address of public authorities, military units or similar public institutions, or (iv) there is the prohibition of the property’s owner to register the company at the property’s address, – Clause 2 of the Resolution.
The property owner may file a lawsuit against the company requesting to stop using the property for the purposes of communication with the company, but the owner may not request the FTS to emend the EGRUL entry: the ground for the FTS to change the address in the company’s EGRUL entry is the court decision satisfying the claim of the property owner against the company to stop using the property. The only exception is when the FTS was aware at the moment of the company’s registration, of the notification of the property owner prohibiting registration of the company at the address of the property, – Clause 5 of the Resolution.
The FTS may also file a lawsuit requesting the company’s liquidation if the company, at the FTS’s request, fails to provide within a reasonable time its reliable address. The court decides on the company’s liquidation, taking into account that failure to submit the reliable address is a fundamental breach of the Registration Law, – Clause 6 of the Resolution.
The Resolution is mandatory for lower commercial courts when considering similar issues.