Whether the legal entity is in charge of its property. Does the founder of the LLC hold his own property? For non-payment of taxes

The application of measures of state coercion is legal responsibility. It applies to the offender. For the commission of a wrongful act, a person is responsible before the law.

Attraction algorithms

establishes that he is not responsible for the obligations of the company. LLC, in turn, is not liable for its debts. Thus, it turns out that the founder of the LLC is only liable within the authorized capital.

As for the JSC, its participants are responsible within the amounts contributed by payment of shares... This provision is provided for in Art. 2 p. 1 of the Federal Law No. 208.

If the organization is solvent, it is timely calculated for taxes to the state, payments to counterparties, then its cannot be attracted for debts... Therefore, ordinary people, little familiar with the laws and the changes that have occurred in them, create for themselves a false idea that the founders and participants of LLC, JSC have no real responsibility.

But the algorithm for bringing to responsibility, for example, the participants of an LLC is as follows: while the society works, limited liability is in effect. If the company is in the process of bankruptcy, the founders can be brought to the subsidiary type of liability, as well as to additional.

But in this case, there is one nuance: creditors who want to get their money back must prove that the short-sighted and sometimes illegal actions of its founders and participants led to the collapse of the company.

He speaks of the possibility of imposing subsidiary responsibility on these persons.

Liability of a legal entity and LLC participants

No. 127-FZ is called upon to protect the rights of creditors. Its provisions are aimed at applying one or another method of protection within the framework of bankruptcy, and compensation and liability depend on the degree of guilt of the founder.

Legal consequences of a guilty act can be liquidated in certain ways... For example, within the framework of the recognition of the transactions they have made illegal: in this case, according to the Civil Code of the Russian Federation, the provisions on the invalidity of the concluded contracts will be applied to such legal relations.

In addition, there is an option to involve these persons in different kinds of responsibility.

Manager and founder rolled into one

This person is responsible within the framework of the authorized capital of the company. In addition, subsidiary liability, if initiated by him or the creditor, another interested person, the bankruptcy procedure.

Subsidiary liability is considered as an additional punishment to persons who may be subject to collection together with the debtor who is unable to pay off the debts. But the grounds for imposing this punishment are strictly regulated by the framework of the law.

Conditions within the authorized capital

The conditions under which the founder of the company is liable for debts within the amount of the authorized capital are determined by the Civil Code of the Russian Federation and No. 14-FZ. In the event of liquidation of a company or its bankruptcy, the founder is responsible exclusively for the property of the organization, its assets.

If the company has a financial collapse, its debts to creditors and counterparties exceed the value of the company's property, the founder may not cover the difference. This is due to the fact that he does not answer with his own property for the debts of the LLC.

Thus, it differs from the legal status of the same individual entrepreneur, who personally, with his property, pays off the debts of the individual entrepreneur. That is why, according to existing statistics, citizens try more often, and individual entrepreneurs are created less often. It turns out that the shareholder of the LLC does not actually bear the risk of losing its own property.

Debt settlement

Bringing the guilty person to responsibility for the arrears of money to the state treasury cannot release him from the payment of subsequent amounts. Responsibility for arrears within the legal entity is borne by its officials (general director, chief accountant), in addition, the legal entity itself may be the subject of responsibility (except criminal).

For non-payment of taxes

Responsibility is established by the Tax Code of the Russian Federation, in addition, in relation to a society that evades the payment of mandatory fees, the provisions provided for by criminal legislation apply. Forms of responsibility:

• administrative;
• tax.

Loans

Loans to legal entities are issued by banks. If on the part of the borrower there are violations of the loan agreement or its individual provisions, the bank has the right to file claims with the organization aimed at eliminating the violations.

Since the credit relationship implies mandatory out-of-court procedure for considering a disputed issue, banks submit a claim first. You need to make sure that it is reviewed by the other side.

If the claim is not answered within a reasonable time, the bank may go to court. The claim is drawn up in accordance with the form established in article 131 of the Code of Civil Procedure of the Russian Federation, with a demand for payment of the debt, with% and a forfeit under the current contract. In case of a positive decision of the judge, the legal entity is obliged to pay the debt, with all% to cover the penalty, that is, to fully fulfill the requirements of the credit institution.

If the legal entity cannot fulfill its financial obligations to the bank, already repeatedly, for more than three months from the date of payment of the loan, then the bank has the right to initiate the bankruptcy of the company.

In bankruptcy

Bankruptcy is a rather lengthy procedure that contains certain characteristics. In particular, a legal entity may be declared insolvent if it:

• in total owed creditors an amount of 300,000 rubles (taxes and fees to the state treasury are also included in this amount);
• the company has violated the terms of payments: it has not paid creditors for more than three months;
• employees of the enterprise (organization) have not been paid wages, severance pay.

The LLC itself, as well as other persons interested in this process, can start bankruptcy:

• the prosecutor;
• creditors;
• authorized bodies of the state.

Within the framework of the bankruptcy of the company, the bankruptcy trustee acts. The objectives of this procedure are not necessarily the liquidation of the legal entity. In most cases, the task of bankruptcy is different - financially improve the company and give it a new life.

The bankruptcy commissioner has the right to present claims against the founders of the LLC for subsidiary liability. This happens only if, according to the analysis of the activities of the legal entity, it was revealed that the financial collapse occurred due to the guilty actions of the founders.

The new conditions for the onset of liability include:

1. The debtor may have a controlling person. This citizen acts for the benefit not only of creditors, but also of the organization itself for its financial recovery. If violations are revealed in the actions of the controlling person, then he, together with the founders of the bankrupt company, bears subsidiary responsibility for compensation for harm caused to creditors. It must be caused subject to the execution of the instructions of the persons who control the debtor, as well as the fulfillment of the current obligations of the company in the event of insufficient property, which constitutes the bankruptcy estate.
2. The law establishes the grounds on which a controlling person may be held liable for subsidiary liability. In particular, harm to creditors, the presence of a causal link between harm and consequences.

Subsidiary liability is not caused by bringing the legal entity to bankruptcy in its pure form, but more - with causing harm to creditors. And harm to the property rights of creditors is associated with a fairly large list of illegal actions of persons controlling legal entities.

According to the new rules, we can unequivocally say that the unlawful action of the controlling person is an action aimed at aggravating the property situation of a legal entity, which can not pay off its debts, having obligations to creditors.

More information about the responsibility of the founders of the LLC can be found in this video.

The problem of bringing legal entities to criminal responsibility is one of the most intractable in the Russian Federation. The fact is that, unlike foreign countries, in Russia, legal entities are not subject to criminal liability. According to the Criminal Code of the Russian Federation, only sane citizens bear criminal responsibility. What to do with attracting legal entities to this type of responsibility?

Attraction procedure

Until the legislator deems it necessary to change the Criminal Code of the Russian Federation by introducing amendments to it concerning bringing an LLC or JSC to criminal liability, he is subject to Code of Administrative Offenses... It is in this law that we can see all the punishments that are currently provided for legal entities:

Many lawyers say that in the practice of legal entities it is advisable to introduce such a punishment as a warning. But at the present time, the most common punishment is fine... It can be different in size: it all depends on the culprit.

A fine is a property punishment. The provisions of the Code of Administrative Offenses of the Russian Federation, however, do not cover other situations that can be considered as punishment for legal entities. These are circumstances such as:

• suspension of the enterprise;
• change of the enterprise quota regime.

It is believed that these provisions go beyond the administrative regulation of the enterprise. Accordingly, they cannot be imposed on the legal entity.

When a fine is imposed on a legal entity, it is obliged to pay it within a period strictly specified by law. This can be done through Sberbank, as well as other payment services. The legal entity should have proof that it paid the fine. This is a receipt.

One of the penalties is the compulsory liquidation of legal entities. The measure is established by the Civil Code of the Russian Federation, in particular, in article 61, paragraph 2. This happens if the legal entity is engaged in work without permission, for which it is necessary to obtain a license.

In addition, there are a number of grounds on which you can forcibly liquidate legal entities.

Everything about the responsibility of the general director of an LLC is in this video.

Since June 28, 2017, directors and founders are liable for the debts of companies without bankruptcy procedures ... it is also possible for "abandoned" companies excluded by the Federal Tax Service from the Unified State Register of Legal Entities (in 2016 there are more than 700 thousand such companies) ... Tax debts companies are considered the personal debts of the founders and are not "forgiven" as part of the bankruptcy of individuals ... that is, they remain with you for life, until they are fully paid off ... A full 13-page guide on all types of responsibility of managers and business owners for the company's activities (a legal entity) We decided not to limit ourselves to subsidies only. As a result of disputes and repeated clarifications before you - a unique guide for managers and owners with a systematic analysis of all types of liability for the company's activities: from criminal to personal bankruptcy, from collecting tax arrears from controlling physicists (from November 2016) to recovering losses in criminal cases. ...

For what and what the managers and owners of the business are responsible for the debts and tax liabilities of the company is such a capacious and complex topic that both of them, judging by the questions at our seminars and customer requests, have a complete mess in their heads.

To be honest, while we were preparing this material we almost fought ourselves. As a result, you have a complete reference. Capacious and solid. Understand.

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Instead of a preface

As I have already written many times, industrial capitalism owes its heyday to the emergence of LLCs and joint-stock companies ... in their modern sense. More precisely "limited liability" within the authorized or share capital. Until the end of the 19th century, the entrepreneur (the owner of capital in the interpretation of Marx) was fully responsible for the obligations of the enterprise and, just a little, went to a debt prison. Therefore factories of 20-30 people were considered huge.

The need for consolidated investments in new and growing businesses and the emergence of a plurality of co-owners demanded legal tools in the form of limited risks for an entrepreneur.

Following the LLC and the joint-stock company, the legislation on bankruptcy also followed. By the beginning of the 20th century, rules were introduced everywhere to write off most of the debts by creditors as part of bankruptcy.

In Russia, the path is, as always, special. Over the past few years, the legislator has stubbornly followed the path of toughening the responsibility of the leaders and founders of the company. Including bankruptcy.

As of 2017, the range of tools for punishing losers is huge and cool at the same time, which will certainly lead to the extinction of entrepreneurial activity among kids and middle peasants.

Think about it, over the past 10 years, the cost of entering a business for a beginner entrepreneur has increased 100 times, since the risks in the ruble equivalent of potential liability should also be considered as an initial investment in the business.

I agree that an entrepreneur must behave wisely. Yes, this activity is at his risk. But, you must agree, an entrepreneur cannot and should not be responsible for the two-fold deliberate devaluation of the ruble, for example ... and even more so for the massive withdrawal of loans by banks that followed. He cannot be held responsible for the end-to-end kickback system of big business. For twenty years of connivance at the almost universal use of "one-day" (including as a consequence of the end-to-end system of kickbacks), and then for a sharp change in the rules of the game - from tax rules to credit conditions. An entrepreneur, let me say, bears risks at least by spending part of his life, health, family well-being in all senses ... and runs the risk of not earning anything at the same time, unlike his hired employees (for delayed salary payments to which he also bears criminal liability, and for an attempt to pay salary in a difficult situation, even out of good intentions to the detriment of tax obligations and creditors, will be held liable twice, or even three times ... the circle is closed).

However, there is what is. You are already in trouble running and / or owning a business. Let's put everything on the shelves. So, at least, you can give a real assessment of what you get from the business. As a maximum - remove a number of threats and finally stop asking us the questions "why do we need hidden business ownership" or "why a business must necessarily be a group of companies."

1. Responsibility for violation of current legislation

Subject: Head of the organization.

Responsibility: administrative, criminal.

What is provided for: Administrative Code of the Russian Federation, Criminal Code of the Russian Federation.

Boundless as an ocean, Russian legislation contains a huge number of standards, rules, orders and procedures, for violation of which not only legal entities themselves, but also their leaders are brought to administrative and, if the result of the act is more deplorable, to criminal liability. They did not repulse and did not issue a cashier's receipt to the buyer, did not notify the relevant authority about the conclusion of an employment contract with the migrant, violated the deadline for notifying the company's founder about an extraordinary meeting of the company's participants - get a fine both for this company itself and for its director. It is better to familiarize yourself with specific risks in advance, depending on the field of activity, by reading the Code of Administrative Offenses of the Russian Federation and the Criminal Code of the Russian Federation at your leisure. The size of the fines can be substantial. From the saddest: the disqualification of the head and, of course, imprisonment.

As for criminal liability specifically for tax crimes (Articles 198, 199, 199.1, 199.2 of the Criminal Code of the Russian Federation), there are several nuances.

Since 2016, the threshold for criminal prosecution for tax evasion has been significantly increased. Up to 900 thousand rubles for individuals. And up to 5 million rubles for legal. In the media, this is called the buzzword of the decriminalization of the act. However, if you manage to look at the statistics of average additional charges for one field tax audit (more than 7 million rubles in Russia), then it becomes obvious that we are dealing with another marketing move. In other words, any average tax audit provides grounds for initiating a criminal case (of course, if you did not immediately rush to pay for the inspection request).

A separate emphasis on Art. 199.2 of the Criminal Code - concealment of property from tax collection. Dashing owners or business leaders, sensing something amiss and holding in their hands the decision of the tax authority just handed on the appointment of an on-site inspection, are frantically looking for a way to get money or property out of potential recovery. But in vain. This crime is very formal. The proof is relatively easy. The fact of transferring money, alienating property and even directing the proceeds bypassing the potential defaulter directly to suppliers and contractors is a crime. Of course, if its cost starts from 2.25 million rubles.

For non-payment of social contributions, despite the fact that they have become Chapter 34 of the Tax Code, there is no criminal liability so far. The corresponding bill lay in the Duma and turned sour. Apparently there will be a new one. Because it will definitely become a crime.

2. Liability for culpable damage to the company

Subject:leaders of the organization (individual and members of the collegial body).

Responsibility:compensation for damage.

What is provided for:art. 53.1 of the Civil Code of the Russian Federation, Art. 44 FZ "On LLC", Art. 71 Federal Law "On JSC".

It is quite logical that the executive body of the Company, be it a director, president, manager or member of the board, is obliged to act in good faith and reasonably in the interests of the company headed by him (this is what the corresponding laws say - “On LLC” and “On JSC”). In the event that he, violating these principles and using his position, causes damage to the company: for example, concludes a deal in violation of the interests of the owners and / or bypassing the mandatory procedure for its approval with them, which turned out to be unprofitable for the company, the damage caused can be recovered from him ... And in full size.

Until 2013, the possibility of recovering damages from the management bodies of the company was a fantasy: the courts demanded to determine the exact amount of damages and referred to the probabilistic nature of the assumptions about their causation.

The Supreme Arbitration Court of the Russian Federation corrected this situation in its Resolution of the Plenum of July 30, 2013 No. 62. Among other things, the court indicated situations where the unreasonableness and / or bad faith of the director's actions is considered proven. For example, if he made a deal on conditions that are obviously unfavorable for a legal entity or with a person who is knowingly incapable of fulfilling the obligation ("one-day firm"). If as a result of such actions the company is brought to tax or administrative liability, the incurred losses in the amount of additional taxes, penalties and fines (if we are talking about a one-day deal) may be recovered from the director.

This ruling has expanded the few court practice in cases of recovering losses from company directors by 180 degrees. Now the courts have practically no problems with determining the amount of damage. And the amounts, then what amounts!

• in case No. А41-2271 / 13, about 223.5 million rubles were collected from the director.
• in case No.A32-7549 / 13 - almost 126 million;
• in case No.A53-20252 / 2015 - 59.3 million rubles ...

A little later, in 2014, the legislator also took into account the opinion of the courts and made the appropriate amendments to the Civil Code of the Russian Federation (the above article 53.1 of the Civil Code).

Who can make such a demand? New director, for example. Or the founders (members, shareholders) of the company.

from the said Resolution ...

p. 2 Bad faith of the director's actions (inaction) is considered proven, in particular, when the director:

1) acted in the presence of a conflict between his personal interests (the interests of the director's affiliates) and the interests of a legal entity, including if there is an actual interest of the director in the transaction by a legal entity, except for cases when information about the conflict of interest was disclosed in advance and the director's actions were approved in accordance with the procedure established by law;

2) concealed information about the transaction made by him from the participants of the legal entity (in particular, if information about such a transaction in violation of the law, charter or internal documents of the legal entity was not included in the reporting of the legal entity) or provided the participants of the legal entity with inaccurate information regarding the relevant transaction ;

3) made the transaction without the approval of the relevant bodies of the legal entity required by law or the charter;

4) after the termination of his powers, withholds and evades the transfer to the legal entity of documents concerning the circumstances that entailed adverse consequences for the legal entity;

5) knew or should have known that his actions (inaction) at the time of their commission did not meet the interests of a legal entity, for example, he made a transaction (voted for its approval) on conditions that are obviously unfavorable for a legal entity or with a person who is deliberately incapable of fulfilling an obligation ("One-day firm", etc.) ....

p. 3. The unreasonableness of the actions (inaction) of the director is considered proven, in particular, when the director:

1) made a decision without taking into account the information known to him that is relevant in this situation;

2) before the decision was made, did not take actions aimed at obtaining the information necessary and sufficient for its adoption, which are usual for business practice in similar circumstances, in particular, if it is proved that under the existing circumstances a reasonable director would postpone the decision until additional information is received;

3) made a transaction without observing the internal procedures usually required or accepted in this legal entity for performing similar transactions (for example, coordination with the legal department, accounting, etc.).

The very fact of unprofitable activities or other negative consequences, of course, is not evidence of the unreasonableness and / or bad faith of the director's actions, since they may be the result of an unfavorable economic situation and other external factors. The risky nature of entrepreneurial activity has not been canceled, and therefore, of course, it will not work to assign the founders' entrepreneurial risks to the director. However, we can assume that the practice has taken shape in three years.

3. Liability in bankruptcy

Subject: controlling person (it does not matter, founder, director or cleaner). Someone who actually runs the organization.

Responsibility: subsidiary (additional), for the debts of the organization in case of insufficient property.

What is provided for: Art. 10 Federal Law "On Insolvency (Bankruptcy)".

To begin with, what does subsidiary mean? This means that the amount of liability is equal to the aggregate amount of all creditors' claims that have not been settled due to the insufficiency of the debtor's property.

The circle of potentially responsible persons:

• founders (participants);
• leaders of the organization;
• trust managers of the company's shares;
• any other natural persons who are not formally and legally connected with the company, but in fact manage or have been managing the company in the last 3 years before bankruptcy.

Based on the provisions of Art. 2 of the Law, we can say that an individual is involved in the management of a bankrupt organization if he has:

• the right to issue instructions binding on the debtor society;
• the ability to determine the actions of the company, including by coercing its governing bodies;
• decisive influence on the head and other members of the debtor's management bodies.

It is possible to bring the controlling persons to subsidiary liability within three years from the day when the creditor learned or should have learned about the existence of grounds for this, but not later than three years from the date the debtor was declared bankrupt.

There is a popular belief among business owners that subsidiary liability is something distant and incredible. Indeed, earlier it was practically impossible to prove to creditors that the responsible persons were guilty of bringing the company to bankruptcy.

However, to date, the number of cases of subsidiary liability of owners and managers of the company proves the opposite, since there is a presumption of guilt of the controlling debtoruntil they prove otherwise.

What does this mean for you? Guilt is assumed if one of the following is proven:

1. Inability to pay off the debt to the creditor in full. What is the probability? Exactly 100%, otherwise why did it go to bankruptcy?
2. There are no accounting documents and (or) reporting, or it contains distorted information that significantly complicates bankruptcy procedures. Probability? 99%. Since, based on the existing accounting rules, everyone distorts it to one degree or another. Only a subjective assessment of "materiality" remains an indulgence for a leader. I understand that in the circumstances prevailing at this moment, you are in a state of time trouble, seasoned with depression or fear. But nevertheless, when transferring cases to the arbitration manager, make sure that the primary accounting documents are filed in thematic folders, an inventory of each (!) Document is compiled. It will not be superfluous to photograph each (!) Document. Do a documentary audit before handing over cases. And not for 50 thousand rubles, when the auditor draws up an opinion according to a pre-written template, namely a documentary one. Claim what is missing from your counterparties, whatever the cost.
3. More than half of the claims of third-priority creditors are caused by bringing the debtor or his officials to criminal, administrative or tax liability.

The most common case of the above, of course, is tax arrears. Statistically, the Federal Tax Service is the initiator of bankruptcy proceedings in every tenth case. The main difference between these procedures is that the FTS is not a commercial company dominated by economic expediency. After all, any creditor, before filing a bankruptcy petition in court, will think a hundred times: how much he will spend and how much he will hypothetically receive. The Federal Tax Service, as a state body, lacks such comprehension. In addition, there is no specific person who takes full economic responsibility for specific actions. Yes, employees of the Federal Tax Service and individual departments also have KPIs. But there is no real economic responsibility. Therefore, the FTS is often more rigid. In addition, there are situations when even the most stubborn creditors, but not the Federal Tax Service, retreat before the obvious impossibility of recovery. After all, there is no one to slow down on their own responsibility. It resembles a skating rink that was derailed in the cartoon "Wait a minute!" ... it rolls and rolls.

So far, the most common reasons for bringing the founders and managers of the debtor to subsidiary liability remain:

1. Making deals with "one-day", which led to the formation of the company's debt to the budget. Well, how many of you have not sinned with this in the last three years?
2. Withdrawal of assets - alienation of property to other controlled persons without a corresponding counter grant. Since the summer of 2017, an application for bringing to subsidiary liability on these grounds can be filed not only within the framework of a bankruptcy case, but even after its completion - within three years from the date the debtor was declared bankrupt, subject to the following two conditions:

• the creditor (authorized body) learned or should have learned about the existence of grounds for bringing the controlling person to subsidiary liability only after the completion of the bankruptcy proceedings;
• a similar claim on the same grounds and against the same persons was not presented and was not considered in the framework of the bankruptcy case.

1. Failure by the head of the debtor to fulfill the obligation to file a bankruptcy petition for the organization he heads, if the signs of insolvency were known to him (or should be known).

On this basis, only a manager can be involved. Other persons controlling the debtor (founders, members of the board of directors and other citizens who influence the decisions made by the debtor) cannot be held liable in this case.

Again, from the summer of 2017, the director can be held liable for subsidiary liability even if, after the filing of the application, the procedure was terminated due to the lack of funds to reimburse court costs for the bankruptcy. But we will talk about this in detail later.

Another interesting aspect is the use of denominations as a cover for liability. Judicial practice demonstrates that the decision to change the actual managers and founders of the company to nominees from among friends, employees and relatives not only does not prevent the prosecution of business owners and real managers with subsidiary liability, but is also indirect evidence of guilt.

The decision of the owners to "abandon" the debtor company by sending it to join the nominee structure in a remote region of the Russian Federation also does not help to evade responsibility, since in this case a simplified procedure for declaring the absent debtor bankrupt is provided. And now creditors use this expensive procedure more and more often, if there is an understanding that the former manager or owner has personal property that can be taken away.

Therefore, we turn to personal bankruptcy ...

Say a word about personal bankruptcy

Individual bankruptcy has been launched since October 2015. Thanks to this, if it is impossible (or insufficient) to collect something from the managers and founders in the framework of bringing them to subsidiary liability, there is every chance of getting something through their personal bankruptcy.

The wording of the courts for this case is as follows: the debt of an individual arising as a result of bringing him to subsidiary liability to the creditor of a bankrupt company is a monetary obligation and can serve as a basis for initiating bankruptcy proceedings against an individual.

In this regard, the controlling persons of “bankrupt” companies should be wary of initiating bankruptcy proceedings against them if:

• the amount of the debt within the framework of bringing them to subsidiary liability exceeds 500 thousand rubles;
• and they cannot repay it within 3 months from the date of entry into force of the court decision on bringing them to subsidiary liability.

The main nuisance of getting into the personal bankruptcy procedure is the ability of creditors to challenge the transactions of debtor physicists, including the concluded marriage contracts and property donation contracts

But this is not the worst thing ...

As a general rule, after completion of settlements with creditors, the debtor (individual or legal entity) declared bankrupt is released from further execution of creditors' claims. However, this general rule has a number of significant exceptions.

And the most important of them just concerns the claims of creditors to bring an individual, as a controlling person, to subsidiary liability.

In other words, the claims of creditors after a citizen is declared bankrupt remain valid regardless of whether they were declared within the framework of the bankruptcy procedure of an individual and included in the register of creditors or not, and can be presented by creditors after the end of the proceedings.

Thus, the participants and managers of a company declared bankrupt, brought to subsidiary liability, will not be able to get rid of the debt hanging over them. The initiation of the bankruptcy procedure either by the person himself or by any creditor will not help in this. Such a debt, unfortunately, cannot be written off.

As a result, as sad as it may sound, the debt incurred as part of bringing to subsidiary liability is listed by the controlling persons of the bankrupt company indefinitely until it is repaid.

Himself bankrupt. No, he is bankrupt.

According to the law, the head, having come to the conclusion that the company is insolvent, must, within a month, apply to the arbitration court with an application for declaring it bankrupt. The obligation was introduced in order to prevent wider negative consequences for creditors, so that the company could not assume further unfulfillable monetary obligations.

It is with the primary reason for the inclusion of this basis of liability in the legislation that its key feature is associated - to bring the manager (and only the manager) to subsidiary liability for the untimely filing of the debtor's application is not possible for all the obligations for the satisfaction of which there is not enough property of the Company. He is responsible only for those of them that arose after the expiration of the period allotted for the submission of such an application.

Therefore, in practice, all legal disputes involving the debtor's manager (liquidator) to subsidiary liability are associated with the establishment of the date of occurrence of the obligation to independently file a bankruptcy petition.

For the manager, one month is set, and for the liquidator - 10 days for filing an application from the moment one of the following circumstances occurs:

• satisfaction of the claims of some creditors leads to the impossibility of fulfilling others;
• foreclosure on the debtor's property will significantly complicate or make impossible the debtor's economic activities;
• there is an outstanding debt to employees within 3 months;
• the debtor has signs of insolvency and (or) insufficient property.

Insufficiency of property - excess of the amount of monetary obligations and obligations to pay obligatory payments of the debtor over the value of the assets of the debtor;

Insolvency - the termination of the debtor's performance of part of the monetary obligations or obligations to pay mandatory payments, caused by insufficient funds. In this case, the presumption of insufficient funds applies until proven otherwise.

(Paragraph 35 and Paragraph 36 of Article 2 of the Bankruptcy Law)

In fact, all of the above circumstances intersect with each other and in practice are reduced to proving that the Company has signs of insolvency and insufficient property. To resolve this issue, we propose to proceed from the approach that has developed in judicial practice on the basis of a systemic interpretation of the rules on bankruptcy, to the determination of the financial insolvency of the debtor and the insufficiency of property:

Financial insolvency must be understood as a condition that does not allow him to satisfy the claims of creditors for monetary obligations and (or) fulfill the obligation to pay mandatory payments, which amount to at least 300,000 rubles. within 3 months from the date when they should be performed.

Simply sending a claim to the debtor to pay the debt by the creditor and failure to fulfill it on time is not evidence of the debtor's insolvency. At the same time, in all cases, the courts take into account the fact that the obligations are not fulfilled precisely due to the absence of any assets of the Company.

The term for filing an independent application of the debtor for bankruptcy is determined in the following order:

Actually, for violation of these terms, the "subsidiary" will fly to the head. Own, personal, personal. Even if he was innocent in the very fact of bankruptcy.

To determine the limits of such a special form of subsidiary liability, all obligations of the debtor company can be divided into two groups: those that served as the real cause of bankruptcy and those that arose after the appearance of signs of bankruptcy. For failure to submit an application for self-bankruptcy, the debtor's manager can only be held liable for the latter. For the first group of obligations, the manager is held liable on general grounds - if he has brought the company to bankruptcy by his actions. At the same time, it does not matter which obligation the debtor could not pay off: did not pay taxes, did not return the loan, did not pay for goods (work, services) within the time period established by the contract.

But the creditor, the obligations to which arose after a month from the moment the company had signs of bankruptcy, can count on the fulfillment of obligations to him at the expense of the director in any case.

Obviously, in practice, in order to bring to subsidiary liability on the basis under consideration, it is important not only that the Company has an uncontested / court-confirmed debt for more than three months, but also lacks assets to repay it.

4. Liability WITHOUT bankruptcy

Subject:director and controlling persons.

Responsibility:on the debts of the organization in the absence of its property.

What is provided for:clauses 5, 5.7, 5.8 of Art. 10 Federal Law "On Insolvency (Bankruptcy)" as amended by Law No. 448-ФЗ dated December 28, 2016.

Now, developing the topic, let's imagine that the head of the debtor company has not filed a bankruptcy petition for the company he heads and should be held liable. But no matter how hard the creditors tried, they could not initiate bankruptcy proceedings. For example, the application was returned by the court due to the lack of funds to reimburse legal costs for the bankruptcy proceedings. The court has such a basis. Or, say, the bankruptcy proceedings were terminated on the same grounds and they did not have time to bring the director to justice.

What should the creditors do in this case? Will the director leave unscathed? Until the end of June 2017, it will be so. However, in the summer of this year, creditors and authorized bodies have the opportunity to bring the persons controlling the debtor to subsidiary liability outside the framework of the bankruptcy procedure. Representatives of the Federal Tax Service, "rubbing their hands", have already stated that this approach will "reduce the number of ineffective bankruptcy procedures two to three times."

Statement on bringing the director to subsidiary liability in this case:

• filed with the arbitration court that terminated the proceedings in this case (returned the application for declaring the debtor bankrupt);
• is considered in a claim procedure;
• can be filed within three years from the date when the creditor learned or should have learned about the existence of grounds for filing such an application.

However, this is not all. The director may not be at all to blame for not filing a bankruptcy petition. For example, the manager has written evidence that the owner, despite repeated requests from the manager, and even being a creditor in relation to the company himself, simply “stumbled”. Didn't say yes or no. In fact, the owner, as a controlling person, must bear full responsibility. But creditors cannot yet bring him to justice, if, again, the court returned the bankruptcy petition or the proceedings were terminated due to the lack of funds to pay for the procedure.

However, from the summer of 2017, creditors will be able to go to court with a statement of claim to recover in their favor from the controlling persons of the debtor specified in Art. 53.1. Of the Civil Code of the Russian Federation, losses caused through their fault to the debtor outside the framework of bankruptcy.

In this case, the amount of losses should not exceed the amount of claims of such a creditor against the debtor. The creditor must also prove that the persons controlling the debtor acted in bad faith and unreasonably.

Another important change will affect legal entities that have been forcibly excluded from the register.

From June 28, 2017, the persons controlling such a company over the past three years may be brought to subsidiary liability if a legal entity excluded from the register has unfulfilled obligations due to unfair and unreasonable actions of these controlling persons.

The main beneficiary of such amendments is the budget represented by the Federal Tax Service. Today, after the exclusion of the company from the Unified State Register of Legal Entities, creditors cannot present any claims to the founders or the director of this company. That allows entrepreneurs to "abandon" or "freeze" their companies for now, having previously changed the founder or director to a nominee. A year after that, you could consider yourself free from all obligations, primarily tax. From mid-2017, in order to obtain the same effect, it will be necessary not only to wait for the company's exclusion from the Unified State Register of Legal Entities, but also to maintain a three-year period of recognition of the former real owners and managers as controlling persons.

5. FULL property liability WITHOUT bankruptcy

Subject:guilty person in control

Responsibility:civil liability for causing damage to the state in the form of unpaid taxes

What is provided for:general rules on liability, taking into account the position of the courts (Definitions of the Constitutional Court No. 1470-o of 17.07.2012, No. 786-o of 28.05.2013, Determination of the Armed Forces of the Russian Federation of 27.01.2015 No. 81-KG14-19)

After the adoption of the RF Armed Forces Determination No. 81-KG14-19 dated January 27, 2015, the tax authority now has another serious instrument for collecting arrears, namely: recovery of damage from individuals controlling the organization in a criminal case.

Previously, the courts did not recognize the possibility of recovering damage from an individual convicted of a criminal offense, expressed in non-payment by the organization, which he controlled, of the established taxes and fees on a large or especially large scale. This position was based on the fact that a legal entity is an independent entity, liable for its obligations with all of its property, therefore, non-payment of tax allowed on the part of a legal entity cannot be qualified as damage caused to the state by the actions of its head and (or) founder.

The Supreme Court decisively changed this practice with its Determination, stating in it that an individual who was brought to criminal responsibility for this offense can be recognized as responsible for compensation for damage to the Russian Federation in the form of taxes unpaid by the organization, including unlawful compensation from the VAT budget.

Previous references of the lower courts to the provisions of Art. 45 and art. 143 of the Tax Code of the Russian Federation, strictly establishing the circle of taxpayers and the procedure for fulfilling tax obligations, as a basis for refusing to compensate for damage to the budget in this way, the Supreme Court declared insolvent, since in this case it is not about collecting taxes, but about compensation for damage caused by a crime.

So, taking into account the position taken by the RF Armed Forces in its Definition, the scheme for collecting additional charges for tax audits looks like this:

If the organization did not appeal the results of the audit in court or the court supported the tax inspectorate and found the organization guilty of committing a tax offense, the inspectorate may, in the event of non-payment of additional charges by the taxpayer, resort to bankruptcy proceedings and declare that the persons controlling the debtor are subject to subsidiary liability.

At the same time, if a tax offense contains signs of a criminal offense (Article 199, Article 199.1 of the Criminal Code of the Russian Federation), then the persons controlling the organization will be obliged to compensate the damage caused to the budget by their actions. Moreover, taking into account the position of the Constitutional Court, the obligation to compensate for the damage caused to the budget will remain, even if the criminal case against the controlling persons (director, founder, member of the Board of Directors) was terminated on so-called non-rehabilitating grounds - due to the expiration of the statute of limitations for bringing to criminal liability (according to Part 1 of Article 199 of the Criminal Code, it is only 2 years) or as a result of an act of amnesty.

Example: The case of Energotekhnologii LLC. As a result of the decision of the tax authority based on the results of an on-site tax audit and non-compliance with the requirement to pay taxes, the materials concerning the director were transferred to the Investigative Committee. A criminal case under Part 2 of Art. 199 of the Criminal Code of the Russian Federation in relation to the director was terminated in connection with the act of amnesty for the 70th anniversary of Victory Day. However, at the same time, the director is obliged to pay 23 million rubles in additional taxes as damage to the budget caused by his actions.

6. Liability FOR the very fact of bankruptcy

Subject:managers and members of the company

Responsibility:administrative or criminal

What is provided for:Criminal Code of the Russian Federation, Code of Administrative Offenses of the Russian Federation

Do not forget that, in addition to the additional responsibility of the managers and owners of the company due to its financial insolvency, there is, in principle, responsibility for bringing the organization to bankruptcy, including for hiding its property.

Example: the case of Uralskiy Les LLC

Due to financial difficulties in business, the director, who is also the founder of the company, accrued and paid salaries to employees, but there was no longer enough money to withhold personal income tax from the wage fund. From the point of view of the court, there is a selfish motive in the actions of the director: he wanted to save face in front of employees instead of reducing salary payments, but transferring personal income tax to the budget (he could also be subject to criminal liability for non-payment of salaries, but this is not the point). Thus, on the basis of the materials of the Federal Tax Service, a criminal case was initiated under Part 2 of Article 199.1 of the Criminal Code of the Russian Federation.

Since, despite the efforts of the director, the company still entered the bankruptcy procedure, a criminal case was initiated under Art. 196 of the Criminal Code of the Russian Federation - deliberate bankruptcy. The director was charged with the obligation to compensate the damage to the budget (although legally, of course, personal income tax is a tax of individuals, employees ... the company is only an agent) in the amount of 10.9 million rubles.

7. Responsibility "for that guy"

Subject:any related person (legal and natural)

Responsibility: full responsibility for the debts of the organization

What is provided for: Art. 45 of the Tax Code of the Russian Federation

To date, a simple transfer of financial and economic activities to another formally independent operating company, while hiding the actual owners of the companies behind nominees, does nothing if you intended to “cut the tails” in the form of accumulated tax risks. In the event that tax arrears are revealed as part of a tax audit, the tax authorities can bring a claim to the court to declare the new operating company dependent and recover from it the entire amount of the tax debt of the “abandoned” company.

This requires two conditions:

1) Dependence of companies established in court.

At the same time, evidence of such dependence can be:

• registration of a newly created operating company during the on-site tax audit of an existing operating company;
• the presence of a common founder and head of the companies or mutual participation of companies in each other's authorized capital (by the way, this is not a mandatory criterion at all);
• companies have the same actual addresses, contact numbers, email addresses, Internet sites, activities, trademarks;
• accounts were opened with the same banks;
• the newly created company begins to work with the counterparties of the first operating company on the same contractual terms;
• the original company assigns its rights under the concluded contracts to the newly created operating company or terminates previously concluded contracts with all or most of its counterparties, and the newly created company enters into similar contracts with them within a short period of time;
• transfer of all employees from an existing company to a newly created company;
• the property is transferred to a dependent company, there is a possibility of influencing decision-making;
• the transfer by counterparties to the newly created company of the proceeds that were previously transferred to the address of the existing operating company;
• other circumstances indicating that the new company is identical to the old company.

2) Receipt of the debtor's proceeds or property on the accounts of the dependent company.

And we are talking here not only about the simple receipt by the dependent company of proceeds "by letter" to a third party. Termination of contracts and conclusion of contracts with the same counterparties on behalf of the new organization on comparable terms also meets this condition!

Under these circumstances, parent and subsidiary companies, as well as formally independent, but having the characteristics of a “duplicate” company, are liable for the tax evader in full. That's what we call it: responsibility for that guy.

You may not have had time to taste such opportunities for collecting tax arrears yet. And article 45 of the Tax Code of the Russian Federation has already been rewritten from November 30, 2016, replacing the word "organizations" with "persons". As a result, the legislator has already put interdependent physicists on a par, who also now bear the entire burden of tax liability for the non-paying company if the above conditions are met.

Well, that's all for now. No, though. After all, we mainly talked only about property liability ...

Our other materials to help you:

Having decided to close the company, the owner recklessly believes that he is no longer responsible for its obligations. Since 2016, amendments to federal legislation have been in effect, establishing that in the event of bankruptcy, the business owner is liable to creditors not only within the limits of his share in the authorized capital, but also with his personal property. In the article, we will analyze the nuances in which cases the founder is responsible for the LLC's debts.

Subsidiary liability became the norm in bankruptcy

Federal Law No. 488 of 28.12.16, which amended the law on LLC and the law on bankruptcy, significantly complicated the life of those business owners who, in recent years, intentionally or involuntarily bankrupt their companies. Now subsidiary liability remains for three years from the date of liquidation of the organization.

The law is aimed at ensuring the rights of creditors, expanding their powers to collect debts both from the property of the founders or heads of companies, and from persons who actually controlled the activities of the debtor firm.

It's no secret that the company's employees, from director to accountant, can fulfill the will of the real owner, who was officially in the shadows. The law defined the status of such persons, calling them “controlling the debtor company” and extending to them the obligation to be responsible for the organization's debts. At the same time, to establish the actual role of such "controlling persons", the testimony of witnesses in the trial is sufficient.

Such participation is verified for a three-year period before the company is declared bankrupt. Now the possibility of applying subsidiary liability hangs like a sword of Damocles over the personal property of business owners and their employees.

The adopted amendments force the heads of organizations to pay even more attention to the company's document flow. Now every step in the business must be reflected in the accounting and financial statements. A clear, streamlined workflow scheme will be the main argument in your defense. The service will help to build the accounting department that works like a clock. Try it - the first month is free.

When subsidiary liability is imposed on the LLC participants for the company's debts

If the assets of the firm are sufficient to meet the claims of creditors, there is no question of any additional liability. While the legal entity is operating, the founders are responsible only with their share in the authorized capital for its debts (Article 56 of the Civil Code of the Russian Federation).

But after the bankruptcy procedure and, as a consequence, the recognition of the insolvency of the legal entity, the law gives the green light to creditors to satisfy their financial claims at the expense of the debtors' personal property. The debt burden in full falls on the shoulders of CO subjects.

To bring the perpetrators to liability for the LLC's debts, certain conditions must be met:

• completed bankruptcy procedure of a legal entity. Alternatively, the court must receive a statement of insolvency from the debtor firm;
• an established circle of persons whose actions or inaction have led to the material collapse of the company;
• a ready-made evidentiary base of the relationship between the unlawful actions of the defendants and the final result, which led to the ruin of the company.

Important! If the management or persons controlling the debtor company are brought to subsidiary liability, they are not subject to the presumption of innocence.

Subjects of subsidiary liability

Possible candidates for the "subsidiary":

• founders;
• director;
• any de facto managers or controlling persons.

If the court accepted the bankruptcy case for proceedings, then in the previous three years all those who were in responsible positions or were the founders during this period are potential applicants for subsidiary liability.

Responsibility is proportional to the organization's actual debt to creditors. If a bankrupt company has a debt of, for example, three million, the same amount will be charged from the founder.

What can lead to liability of an LLC for debts:

• frivolous transactions with "fly-by-night";
• restructuring of assets - their release or transfer to new owners without appropriate justification for this need;
• lack of a timely filed bankruptcy petition. The director is obliged to notify the court about the self-bankruptcy of the company within one month.

Important! The founder of an LLC is liable with his property for debts, even if he is personally declared bankrupt

If the founder has left the company, he will be liable for the debts that arose before his retirement on an equal basis with the remaining debts for two years (Article 95 of the Civil Code of the Russian Federation).

What has changed in the law on liability of founders with their property

1. The circle of subjects of subsidiary liability has expanded. In addition to members and directors, the concept of “person controlling the debtor” has been introduced. These are business owners, large shareholders, financial and technical directors, and former key employees to relatives. The only condition for their participation in JI is the fact of significant influence on the organization's activities and a time limit - no more than three years of their activity preceding the occurrence of a situation for bankruptcy.
2. Art. 3 of the Federal Law No. 14 "On LLC" was supplemented with an interesting provision, according to which, in the event of unfair or unreasonable actions of the founders and directors, the creditor can collect the debt from them through the courts. Previously, such an opportunity was provided only in the process of bankruptcy.
3. Federal Law No. 488 supplemented Article 10 of the Federal Law "On Bankruptcy". Creditors can bring debtor firms to justice after bankruptcy proceedings or outside of it, if they have not received satisfaction of the declared claims. Previously, in the absence of funding, it was impossible to initiate a bankruptcy case.
4. Even if a legal entity is excluded from the register of the Unified State Register of Legal Entities, you can safely make a direct claim to meet debt obligations to the controlling persons (subparagraph 3.1 of article 3 of the Law on LLC).

Responsibility of the director of LLC

The law clearly defines how losses are recovered from a director in case he caused damage to the company, namely:

• made a deal on conditions known to be unfavorable for a legal entity;
• hid important details of the transaction or did not receive its approval from the business owners;
• did not carry out the necessary verification of the good faith of the counterparty, contractor;
• committed illegal actions with company documents, etc.

Art. 44 of the Federal Law "On LLC" establishes the sole responsibility of the manager for losses incurred as a result of his actions or inaction. Members of the board of directors who voted against the director's decision, as well as persons who do not vote, are exempt from liability.

If the founder and director of the LLC are one person

When the owner and the head of the company are the same person, it will not work to refer to an unscrupulous mercenary. In 2018, the founder of the LLC is already in charge of his property, especially if he:

• led an illiterate economic management;
• allowed an increase in debt in all areas of accounting;
• misused loans;
• selected unverified counterparties.

If the company goes bankrupt through the fault of the founder, as well as the persons who are responsible for the work of the company, they are assigned subsidiary responsibility, including the head and the founder in one person (Federal Law No. 14, 208, 161).

It is more difficult to hold the founder of an LLC liable for the company's debts after bankruptcy than an individual entrepreneur. However, since 2015, the tax authorities can initiate a criminal case under Art. 199 of the Criminal Code of the Russian Federation - tax evasion.

In this respect, the practice of the RF Armed Forces dated January 27, 2015, No. 81-KG14-19 is interesting. In this case, the court recognized the responsibility of the sole owner and manager in one person for non-payment of VAT on a large scale, confirmed the legality of the collection from the physical. persons of damage to the state in the amount of the unpaid amount.

In addition to material liability, the founder also receives a criminal record.

After this decision, such cases began to be considered faster. In fact, this case has become a judicial precedent.

Does self-bankruptcy affect the liability of an LLC for debts?

Subsidiary liability threatens the business owner even in the event of self-bankruptcy. Especially if all the deadlines are missed. It is better for the debtor to start this procedure himself than to wait for the tax service to enter the process.

The advantage of self-bankruptcy is that the defendant provides the documentation himself, chooses an arbitration manager for himself, and can legally block the claims of creditors. However, the independent entry into the bankruptcy process does not guarantee the subjects of the protection of personal property from the claims of creditors. If the assets of the debtor company are not enough to pay off the debts, then the business owner, beneficiary and director will have to answer in court.

The worst option is if the Federal Tax Service enters the bankruptcy procedure. Tax authorities will make every effort to find funds to pay off debts: from inquiries to government agencies, the bailiff service to the registry office and banks where personal accounts are opened.

The task of the FTS is to replenish the state treasury, and the latest changes in legislation are a serious tool for its implementation.

The procedure for bringing to responsibility for the obligations of LLC

First of all, the court's target is the executive person - the director, the executive director. The persons who control the organization are involved only after the sale of the property of the debtor firm and settlements from the proceeds with the creditors. If the court finds a relationship in their actions and the company's economic catastrophe, then the penalty will be imposed on their personal property.

The role of the receiver in the process

The bankruptcy administrator is appointed by the court to conduct the bankruptcy of the organization. It depends on the bankruptcy administrator how much complete information he collects about the debtor company, establishes the guilt or innocence of the responsible persons, whether or not he doubts the veracity of the bankruptcy.

If the evidence speaks of fictitious or deliberate bankruptcy, he has the right to bring the guilty subjects to subsidiary liability by filing a lawsuit.

Full property liability without bankruptcy

If a criminal case was initiated on grounds of a tax crime, but was later terminated due to non-rehabilitating circumstances (amnesty). The founders or the head will still be recovered the damage caused to the state budget in the form of unpaid taxes.

Nuances of recent judicial practice

Business owners, as well as managers and other persons subject to JI, should consider important nuances of recent court practice:

• the obligation to prove their innocence rests with the owners and the persons controlling the business;
• The Supreme Court, in a ruling of March 9, 2016, confirmed the presumption of guilt of these persons;
• a causal relationship is established in court between not filing a bankruptcy petition and the damage caused to the creditor and the state;
• managers who evaded bankruptcy proceedings are subject to disqualification for a period of six months to three years;
• persons who have not provided the necessary documents to the bankruptcy commissioner will be held liable for subsidiary liability.

Doing business must be taken very seriously and responsibly. You should not conclude deals that are dubious in their attractiveness with counterparties whose reputation you do not know. With the adoption of new amendments to the law, all wrong steps may result in the loss of not only business, but also personal property and even freedom.

Three months of accounting, personnel records and legal support for FREE. Hurry up, the offer is limited.

Is the director of debts of a liquidated company responsible after bankruptcy?

Today our conversation will focus on limited liability companies. In 2017, on June 28, creditors were given the opportunity to recover their debts from the director and members of the company excluded from the Unified State Register of Legal Entities.

All business representatives are probably aware that the founders of this organizational form do not have any obligations to the firm's creditors for the debts of the company itself. Moreover, at the time of the presentation of the requirements, it is no longer in all possible state registers.

In this article:

What is it about or is the director responsible for the debts of the LLC

Legislative rules have changed. And now even the former director of a limited liability company can be brought to subsidiary liability for the debts of a company that has been liquidated (clause 3.1 of article 3 of the Federal Law “On LLC”). Moreover, unexpectedly for myself.

On July 28, 2017, amendments to the law "On Limited Liability Companies", known to all businessmen, officially came into force. In the text of our material, we will further refer to it as 14-FZ.

It is no secret that the easiest way for a company that has accumulated debts is to legally terminate its activities very quickly. Previously, creditors would have been left with nothing.

However, thanks to legislative innovations, a theoretical opportunity has appeared to recover their debts. It is only important to correctly determine the direction of work.

Thanks to the work of legislators, it has become possible to collect debts from the former director or founders. It is only important to substantiate the amount of debt and prove the illegality of actions on the part of the company's management.

Who should be responsible

New amendments to Law 14-FZ identify the following potential opponents in the dispute:

1. Director (current and former).
2. Members of the executive body (collegial). This can be the board of directors, management board, other structure provided for by the charter of a particular LLC.
3. The person responsible for carrying out the entire liquidation procedure.
4. The founders of the enterprise (now there is the responsibility of the founder for the debts of a legal entity).

In addition, in theory, those persons who contributed to the decision-making that led to the emergence of debt can be brought to financial responsibility for the debts of the company.

These may theoretically include both people who signed an agreement with the creditor by proxy, and persons who control the debtor.

Another thing is that it is difficult to establish the real subject, whose actions led to the emergence of debt.

After all, not every limited liability company gives a counterparty the opportunity to get acquainted in detail with its charter and other internal documents.

Of course, there is an extract from the Unified State Register of Legal Entities. However, the amount of information it contains may be limited.

When can you go to court

In fact, the lender will have to do some serious preparatory work.

These persons bear responsibility for the obligations of the LLC only in the event that the occurrence of debt was the result of their unfair and unreasonable actions.

And then another problem arises: how to prove a causal relationship between the actions of the defendant and the arisen debt?

Documents alone are not enough here. It is necessary to study information about the company's activities, obtain information from other counterparties, if they are known.

If you turn to a lawyer, you can legally obtain information about dubious transactions made by the company (withdrawal of assets, appointment of a figurehead as director).

A lawyer just knows from which side to approach such issues.

What is Unreasonable and Unfair Acts

In fact, these concepts are vague and have an estimated value. However, there may be some signs of fraud.

First of all, this is the sale of goods or the provision of services at prices that are significantly inferior to market prices. In addition, it is the commission of transactions with firms that have a dubious reputation ("fly-by-night", "fictitious companies", etc.).

In turn, unreasonable actions should be understood as the negligent attitude of the enterprise management to their immediate responsibilities.

In particular, the director could make decisions without taking into account information that is significant when concluding contracts or conducting the current business activities of the organization.

In addition, knowing about the presence of debts, the manager attracted loans for purposes unreasonable for the company.

The lack of initiative to initiate the insolvency procedure (if the company has already been burdened with debts) may also indicate unreasonableness. Asset divestment prior to liquidation can also form the basis for substantiating a legal claim.

In any case, the intent in non-repayment of the debt will have to be proved to the creditor, who nevertheless decides to receive his funds from the so-called subsidiary debtors.

It is useful to study the array of judicial practice before filing a claim, and not only regional, but also arbitration courts.

After all, the defendant in the case may be the founder - another company or an individual entrepreneur who were part of the participants in the defunct LLC.

In what cases can the director / members of the LLC be assigned subsidiary liability

From the wording of clause 3.1 of Art. 3 of the Law "On LLC" it follows that subsidiary liability can (and should not!) Be assigned to the director / participants of the LLC excluded from the register.

Therefore, to impose this responsibility, it is not enough to simply exclude an LLC from the Unified State Register of Legal Entities with debts, there must be additional grounds established by the court, namely: bad faith or unreasonableness of the controlling persons, due to which the LLC did not fulfill its obligations to the creditor.

So, subsidiary liability for the debts of the company can be assigned to the controlling persons, while observing two conditions:

1. Exclusion of an inactive LLC from the register of legal entities, if there is an outstanding debt to the creditor. It is elementary to prove this circumstance.
2. The presence of a causal relationship between failure to fulfill an obligation (to the creditor) and the unfair or unreasonable behavior of the controlling persons. This aspect needs to be dealt with in more detail.

How is dishonesty and unreasonableness established in practice?

The courts regard as unreasonable (dishonest) behavior:

• failure to take measures to pay off debts to the creditor "during life" LLC (А71-20472 / 2017, А53-29729 / 17);
• the actual termination of the company's activities after the termination of the powers of the controlling persons (А53-29729 / 17);
• failure to take action to terminate or cancel the procedure for excluding LLC from the Unified State Register of Legal Entities. (А71-20472 / 2017);
• the fact of failure by the head of a legal entity to file an application for bankruptcy of an enterprise to an arbitration court, if there are signs of bankruptcy (Appeal determination of the IC in civil cases of the Moscow City Court dated January 30, 2018 in case No. 33-3879).

Finally, there are judicial acts in which, when bringing to subsidiary liability, the dishonesty and unreasonableness of the controlling persons are not analyzed at all, and the conclusion about the prosecution follows simply from the statement that the LLC has failed to fulfill its obligations (А60-47830 / 2017).

I don't think this is the right approach. Most likely, it is based on the fact that the defendant behaved passively and the court applied Part 3, 3.1 of Art. 70 APC RF.

And here is an interesting example of “negative” practice, a decision in favor of the controlling person.

The court charged the Claimant with the obligation to prove the existence of losses, the unlawfulness of the defendant's behavior and the causal relationship between the losses and the Respondent's behavior (А45-2887 / 2018). By a court decision, the creditor's claim was rejected, and the appeal "dominated" the said decision.

It should be noted that the court may release the participant from liability due to the fact that the size of his share in the authorized capital does not allow making key decisions on the company's activities, that is, the participant is not, in fact, a controlling person (a similar approach is demonstrated in case А53-29729 / 17) ...

Who to sue

Depending on the situation, there may be several respondents at once.

Of course, the leader comes to the fore. After all, he puts signatures on all documents and bears personal responsibility as a director for the debts of the LLC.

At the same time, the claim can be brought simultaneously as against a person who actually controls the activities of the organization, who was involved in the disputable operation. So it is with the director who was in charge of the company long ago or at the time of its closure.

The foregoing also applies to the liquidator (head of the liquidation commission), to whom all the rights to manage the company were transferred at the stage of termination of activities.

Is it possible to prosecute the founder for the debts of a legal entity

The situation with LLC participants is more complicated. After all, it is very difficult to prove their involvement in the adoption of a decision undesirable for the creditor. In this state of affairs, the responsibility of the founder for the debts of the legal entity is reduced to zero.

Moreover, the plaintiff may not know the actual composition of the participants of the LLC that has ceased its activities. In addition, the plaintiff and the court will have difficulties in determining the degree of involvement in the debt of each of the participants.

It should also be remembered that an LLC can be created by one person, who is also its director. Therefore, in this case, the question of determining the respondent disappears by itself.

The most ideal option would be to define multiple responders. In any case, this will not affect the amount of the creditor's legal costs.

Evidence base preparation

Naturally, not all documents will be available to the plaintiff. Therefore, a petition should be made to the court to reclaim part of the materials from the archive and the Federal Tax Service, according to which the closed LLC was registered.

It is advisable to involve not only a lawyer in the analysis of the case materials, but also a specialist who understands the company's accounting and financial documents.

This can be an experienced accountant or auditor. Perhaps it is behind the numbers that the intent lies in the non-repayment of the debt.

If the case is already in court, then in some cases it is useful to insist on carrying out a forensic accounting examination in relation to the documents that were obtained from the liquidated limited liability company.

Be that as it may, the lender of the former company should not go to court empty-handed.

Which court should be applied

When choosing a justice body, there are several rules, since a claim can be filed both with a district court and a court of arbitration jurisdiction.

Everything will depend on the nature of the dispute and the composition of its future participants.

1. If the legal relationship was in the nature of entrepreneurial activity for both parties: a supply agreement, a construction contract, and the like, and the creditor is an organization or an individual entrepreneur, then you need to file a claim with an arbitration court.
2. If the legal relationship was in the nature of satisfying the personal needs of a citizen: the provision of personal services and the like, and the creditor is an individual, then you need to go to a court of general jurisdiction. Also applies to former employees of the LLC excluded from the register.

Cases on recovering losses from the head of the organization (including the former one) are considered both by arbitration courts and courts of general jurisdiction, in accordance with the rules on the delineation of competence (clause 7 of the RF Armed Forces of 02.06.15 No. 21).

That is, economic disputes - arbitration (Article 33 of the Arbitration Procedure Code of the Russian Federation), other disputes - a court of general jurisdiction (part 3 of Article 22 of the Code of Civil Procedure of the Russian Federation). In fact, the jurisdiction of the dispute is determined in the same way as it would be determined for a creditor's claim against an LLC excluded from the register, the rules are exactly the same.

District Court

It is worth contacting there in the case when individuals are the defendant in collecting the amount: the founders or the director of the former company.

And here there is one nuance. It is quite obvious that the plaintiff may not be aware of the residential addresses of the citizens concerned. Therefore, the most reasonable way out would be to file a claim with the district court at the location of the liquidated enterprise.

Such a statement of claim can be accompanied by a petition for reclaiming the address data on the defendants from the tax office. After receiving them, the judge himself will decide on the transfer of the case by jurisdiction (if such a need arises).

Court of Arbitration

Often it does not make sense to collect a debt from a director formally (especially if he was a so-called "dummy"). In this case, claims can be addressed to the founder of the liquidated company (if he acts as a legal entity or individual entrepreneur).

In addition, arbitration should also be applied when the debt has arisen from corporate relations. For example, a participant has not been paid dividend debt or part of the profits from the activities of a liquidated company.

If we are not talking about corporate disputes, then before going to arbitration, the respondent should file a claim. As a general rule, it is considered within a month from the date of its receipt.

Depending on the amount of the stated claims, the arbitration tribunal has the right to consider the case both according to the usual procedure and using the simplified procedure. In the latter case, a separate procedural document is issued.

Regardless of whether an appeal is made to a district or arbitration court, the claim should indicate all registration data for the liquidated legal entity. If a copy of the extract from the Unified State Register of Legal Entities has been preserved, then it should also be attached.

What happens next

So, a court decision is necessary in any case. However, it won't be enough.

When the court act comes into legal force, it is necessary to start obtaining a writ of execution. He is issued by the court of first instance. This rule applies to both district and arbitration courts.

Next, you should establish interaction with bailiffs. The lender can help find the debtor's property, provide transport, the necessary technical means, and so on. The speed of obtaining funds to pay off the debt largely depends on the fruitfulness of cooperation.

Let's summarize: the prospects of joint liability of the director and founders for the obligations of the LLC

On June 28, 2017, amendments to Law 14 - FZ entered into force. Their essence is that the director or founders may be liable for the debts of a liquidated limited liability company.

However, there is one significant "but". To collect debt from these entities, it is worth proving that a certain amount of money was not repaid due to malicious or unreasonable actions.

Therefore, before deciding to go to court to bring the director and other persons to justice for the unpaid debts of the enterprise, you need to thoroughly prepare and collect evidence of their malicious actions.

1. GENERAL PROVISIONS
1.1. The personal data processing policy (hereinafter referred to as the Policy) was developed in
in accordance with the Federal Law of 27.07.2006. № 152-ФЗ "On personal data" (hereinafter - ФЗ-152).
1.2. This Policy defines the procedure for the processing of personal data and measures to ensure the security of personal data at Law Firm “Tax Advocates” LLC (hereinafter referred to as the Operator) in order to protect the rights and freedoms of a person and citizen when processing his personal data, including protecting the rights to privacy life, personal and family secrets.
1.3. The Policy uses the following basic concepts:
- automated processing of personal data - processing of personal data using computer technology;
- blocking of personal data - temporary termination of the processing of personal data (except for cases where processing is necessary to clarify personal data);
- information system of personal data - a set of personal data contained in databases, and providing their processing of information technologies and technical means;
- depersonalization of personal data - actions as a result of which it is impossible to determine, without using additional information, the belonging of personal data to a specific subject of personal data;
- processing of personal data - any action (operation) or a set of actions (operations) performed using automation tools or without using such tools with personal data, including collection, recording, systematization, accumulation, storage, clarification (update, change), extraction , use, transfer (distribution, provision, access), depersonalization, blocking, deletion, destruction of personal data;
- operator - a state body, a municipal body, a legal entity or an individual, independently or jointly with other persons organizing and (or) processing personal data, as well as determining the purposes of processing personal data, the composition of personal data to be processed, actions (operations), committed with personal data;
- personal data - any information relating directly or indirectly to a specific or identifiable individual (subject of personal data);
- provision of personal data - actions aimed at disclosing personal data to a certain person or a certain circle of persons;
- dissemination of personal data - actions aimed at disclosing personal data to an indefinite circle of persons (transfer of personal data) or to familiarize with the personal data of an unlimited number of persons, including the disclosure of personal data in the media, posting in information and telecommunication networks or providing access to personal data in any other way;
- cross-border transfer of personal data - transfer of personal data to the territory of a foreign state to the authority of a foreign state, to a foreign individual or foreign legal entity.
- destruction of personal data - actions as a result of which it is impossible to restore the content of personal data in the information system of personal data and (or) as a result of which material carriers of personal data are destroyed;
1.4. The company is obliged to publish or otherwise provide unrestricted access to this Policy for the processing of personal data in accordance with Part 2 of Art. 18.1. FZ152.
2. PRINCIPLES AND CONDITIONS OF PERSONAL DATA PROCESSING
2.1. Principles of processing personal data
2.1.1. The processing of personal data by the Operator is carried out on the basis of the following principles:
- legality and fair basis;
- restrictions on the processing of personal data to achieve specific, predetermined and legitimate goals;
- preventing the processing of personal data incompatible with the purposes of collecting personal data;
- preventing the unification of databases containing personal data, the processing of which is carried out for purposes incompatible with each other;
- processing only those personal data that meet the purposes of their processing;
- compliance of the content and volume of processed personal data with the stated processing purposes;
- the inadmissibility of processing personal data that is redundant in relation to the stated purposes of their processing;
- ensuring the accuracy, sufficiency and relevance of personal data in relation to the purposes of processing personal data;
- destruction or depersonalization of personal data upon achievement of the goals of their processing or in case of loss of the need to achieve these goals, if the Operator cannot eliminate the violations of personal data, unless otherwise provided by federal law.
2.2. Personal data processing conditions
2.2.1. The operator processes personal data if at least one of the following conditions is met:
- processing of personal data is carried out with the consent of the subject of personal data to the processing of his personal data;
- the processing of personal data is necessary for the administration of justice, the execution of a judicial act, an act of another body or official, subject to execution in accordance with the legislation of the Russian Federation on enforcement proceedings;
- the processing of personal data is necessary for the performance of an agreement to which the subject of personal data is a party or beneficiary or guarantor, as well as for concluding an agreement initiated by the subject of personal data or an agreement under which the subject of personal data will be the beneficiary or guarantor;
- processing of personal data is necessary to exercise the rights and legitimate interests of the operator or third parties or to achieve socially significant goals, provided that this does not violate the rights and freedoms of the subject of personal data;
- processing of personal data is carried out, access to an unlimited number of persons to which is provided by the subject of personal data or at his request (hereinafter - publicly available personal data);
- processing of personal data subject to publication or mandatory disclosure in accordance with federal law.
2.3. Confidentiality of personal data
2.3.1. The operator and other persons who have gained access to personal data are obliged not to disclose to third parties and not to distribute personal data without the consent of the subject of personal data, unless otherwise provided by federal law.
2.4. Public sources of personal data
2.4.1. In order to provide information, the Operator may create publicly available sources of personal data of personal data subjects, including directories and address books. With the written consent of the subject of personal data, publicly available sources of personal data may include his last name, first name, patronymic, date and place of birth, position, contact phone numbers, e-mail address and other personal data reported by the subject of personal data.
2.4.2. Information about the subject of personal data must at any time be excluded from publicly available sources of personal data at the request of the subject of personal data, an authorized body for the protection of the rights of subjects of personal data, or by a court decision.
2.5. Special categories of personal data
2.5.1. The processing by the Operator of special categories of personal data related to race, nationality, political views, religious or philosophical beliefs, health status, intimate life is allowed in cases where:
- the subject of personal data has given his consent in writing to the processing of his personal data;
- personal data is made publicly available by the subject of personal data;
- processing of personal data is carried out in accordance with the legislation on state social assistance, labor legislation, the legislation of the Russian Federation on pensions for state pensions, on labor pensions;
- the processing of personal data is necessary to protect the life, health or other vital interests of the subject of personal data or the life, health or other vital interests of others and obtaining the consent of the subject of personal data is impossible;
- processing of personal data is carried out for medico-prophylactic purposes, in order to establish a medical diagnosis, to provide medical and medico-social services, provided that the processing of personal data is carried out by a person who is professionally engaged in medical activities and is obliged in accordance with the legislation of the Russian Federation to maintain medical secrecy;
- the processing of personal data is necessary to establish or exercise the rights of the subject of personal data or third parties, as well as in connection with the administration of justice;
- the processing of personal data is carried out in accordance with the legislation on compulsory types of insurance, with insurance legislation.
2.5.2. The processing of special categories of personal data, carried out in the cases provided for in paragraph 4 of Article 10 of FZ-152, should be immediately terminated if the reasons due to which they were processed are eliminated, unless otherwise provided by federal law.
2.5.3. The processing of personal data on a criminal record can be carried out by the Operator only in cases and in the manner determined in accordance with federal laws.
2.6. Biometric personal data
2.6.1. Information that characterizes the physiological and biological characteristics of a person, on the basis of which it is possible to establish his identity - biometric personal data - can be processed by the Operator only with the consent of the subject of personal data in writing.
2.7. Ordering the processing of personal data to another person
2.7.1. The operator has the right to entrust the processing of personal data to another person with the consent of the subject of personal data, unless otherwise provided by federal law, on the basis of an agreement concluded with this person. A person who processes personal data on behalf of the Operator is obliged to comply with the principles and rules for processing personal data provided for by Federal Law 152 and this Policy.
2.8. Processing of personal data of citizens of the Russian Federation
2.8.1. In accordance with Article 2 of the Federal Law of July 21, 2014 N 242-FZ "On Amendments to Certain Legislative Acts of the Russian Federation in terms of clarifying the procedure for processing personal data in information and telecommunication networks" when collecting personal data, including through information and telecommunication network "Internet", the operator is obliged to ensure the recording, systematization, accumulation, storage, clarification (update, change), extraction of personal data of citizens of the Russian Federation using databases located on the territory of the Russian Federation, except for the cases:
- the processing of personal data is necessary to achieve the goals provided for by an international treaty of the Russian Federation or by law, for the implementation and implementation of the functions, powers and duties imposed by the legislation of the Russian Federation on the operator;
- the processing of personal data is necessary for the administration of justice, the execution of a judicial act, an act of another body or official, subject to execution in accordance with the legislation of the Russian Federation on enforcement proceedings (hereinafter referred to as the execution of a judicial act);
- processing of personal data is necessary for the execution of the powers of federal executive bodies, bodies of state extra-budgetary funds, executive bodies of state power of the constituent entities of the Russian Federation, local government bodies and the functions of organizations involved in the provision of state and municipal services, respectively, provided for by the Federal Law of July 27, 2010 N 210-FZ "On the organization of the provision of state and municipal services", including the registration of the subject of personal data on a single portal of state and municipal services and (or) regional portals of state and municipal services;
- processing of personal data is necessary for the implementation of the professional activities of a journalist and (or) the legitimate activities of the media or scientific, literary or other creative activities, provided that this does not violate the rights and legitimate interests of the subject of personal data.
2.9. Cross-border transfer of personal data
2.9.1. The operator is obliged to make sure that the foreign state, to whose territory it is supposed to transfer personal data, provides adequate protection of the rights of subjects of personal data, prior to the start of such transfer.
2.9.2. Cross-border transfer of personal data on the territory of foreign states that do not provide adequate protection of the rights of subjects of personal data can be carried out in the following cases:
- the availability of written consent of the subject of personal data for the cross-border transfer of his personal data;
- execution of a contract to which the subject of personal data is a party.
3. RIGHTS OF THE PERSONAL DATA SUBJECT
3.1. Consent of the subject of personal data to the processing of his personal
3.1.1. The subject of personal data decides to provide his personal data and agrees to their processing freely, of his own free will and in his interest. Consent to the processing of personal data can be given by the subject of personal data or his representative in any form that allows to confirm the fact of its receipt, unless otherwise provided by federal law.
3.2. Rights of the subject of personal data
3.2.1. The subject of personal data has the right to receive information from the Operator regarding the processing of his personal data, if such a right is not limited in accordance with federal laws. The subject of personal data has the right to demand that the Operator clarify his personal data, block or destroy them if the personal data is incomplete, outdated, inaccurate, illegally obtained or not necessary for the stated purpose of processing, as well as take measures provided for by law to protect their rights. ...
3.2.2. The processing of personal data in order to promote goods, works, services on the market by making direct contacts with the subject of personal data (potential consumer) using communication means, as well as for the purposes of political campaigning is allowed only with the prior consent of the subject of personal data.
3.2.3. The operator is obliged to immediately stop, at the request of the subject of personal data, the processing of his personal data for the above purposes.
3.2.4. It is forbidden to make decisions on the basis of solely automated processing of personal data that give rise to legal consequences in relation to the subject of personal data or otherwise affect his rights and legitimate interests, with the exception of cases provided for by federal laws, or with the consent in writing of the subject of personal data.
3.2.5. If the subject of personal data believes that the Operator is processing his personal data in violation of the requirements of FZ-152 or otherwise violates his rights and freedoms, the subject of personal data has the right to appeal against the actions or omissions of the Operator to the Authorized body for the protection of the rights of subjects of personal data or in court ...
3.2.6. The subject of personal data has the right to protect his rights and legitimate interests, including compensation for damages and (or) compensation for moral damage.
4. ENSURING THE SECURITY OF PERSONAL DATA
4.1. The security of personal data processed by the Operator is ensured by the implementation of legal, organizational and technical measures necessary to meet the requirements of federal legislation in the field of personal data protection.
4.2. To prevent unauthorized access to personal data, the Operator applies the following organizational and technical measures:
- appointment of officials responsible for organizing the processing and protection of personal data;
- limiting the composition of persons admitted to the processing of personal data;
- familiarization of subjects with the requirements of federal legislation and regulatory documents of the Operator on the processing and protection of personal data;
- organization of accounting, storage and circulation of media containing information with personal data;
- identification of threats to the security of personal data during their processing, the formation of threat models on their basis;
- development of a personal data protection system based on a threat model;
- the use of information security tools that have passed the procedure for assessing compliance with the requirements of the legislation of the Russian Federation in the field of information security, in the case when the use of such means is necessary to neutralize current threats;
- checking the readiness and effectiveness of the use of information security tools;
- differentiation of user access to information resources and software and hardware for information processing;
- registration and accounting of actions of users of information systems of personal data;
- use of anti-virus tools and means of restoring the personal data protection system;
- the use of firewall, intrusion detection, security analysis and cryptographic information protection means, if necessary;
- organization of access control to the territory of the Operator, protection of premises with technical means for processing personal data.
5. FINAL PROVISIONS
5.1. Other rights and obligations of the Operator in connection with the processing of personal data are determined by the legislation of the Russian Federation in the field of personal data.
5.2. Operator's employees guilty of violating the rules governing the processing and protection of personal data bear material, disciplinary, administrative, civil or criminal liability in the manner prescribed by federal laws.

 

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