Whether a legal entity is liable with its property. Is the founder of an LLC liable with his own property? For tax evasion

The use of measures of state coercion constitutes legal liability. It applies to the perpetrator. For committing a wrongful act, a person is liable before the law.

Attraction algorithms

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

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

If the organization is solvent, pays taxes to the state on time, payments to counterparties, then its cannot be borrowed. Therefore, the townsfolk, who are little familiar with the laws and the changes that have taken place in them, create a false idea for themselves that the founders and participants of an LLC, JSC have no real responsibility.

But the algorithm for bringing to responsibility, for example, participants in an LLC is as follows: while the company is operating, limited liability is valid. If the company is in the process of bankruptcy, the founders may be held to a subsidiary type of liability, as well as to additional.

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

It speaks of the possibility of imposing a subsidiary type of responsibility on these persons.

Responsibility of a legal entity and LLC participants

No. 127-FZ is called upon to protect the rights of creditors. Its provisions are aimed at the application of 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 the guilty act can be eliminated in certain ways. For example, within the framework of recognizing the transactions made by them as illegal: in this case, according to the Civil Code of the Russian Federation, provisions on the invalidity of the concluded contracts will apply to such legal relations.

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

Leader and founder in one person

This person is liable within 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 for persons who may be levied a penalty together with a debtor who is unable to pay off debts. But the grounds for imposing this punishment are strictly regulated by 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 solely responsible for the property of the organization, its assets.

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

Thus it differs from legal status 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 are more likely to try, 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.

Settlements for debts

Bringing the guilty person to responsibility for the shortfall of money in the treasury of the state 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 liability (except for criminal liability).

For tax evasion

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

• administrative;
• tax.

Loans

LE loans are issued by banks. If the borrower violates the loan agreement or its individual provisions, the bank has the right to file claims with organizations aimed at eliminating the violations.

Since credit relations imply obligatory extrajudicial procedure for consideration of a disputed issue, first banks send a claim. You need to make sure that it is considered by the second party.

If the claim is not answered within a reasonable time, the bank may apply to the court. The claim is drawn up according to 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 penalty for the current treaty. In case of a positive decision of the judge, the legal entity is obliged to pay the debt, to cover the penalty with all%, that is, to fully comply with the requirements of the credit institution.

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

In case of bankruptcy

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

• collectively owes 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: more than three months does not pay creditors;
• employees of the enterprise (organization) were not paid wages, severance pay.

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

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

As part 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 enterprise and give it a new life.

The bankruptcy trustee has the right to make 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 liability conditions include:

1. The debtor may have a controlling person. This citizen acts for the benefit of not only creditors, but also the organization itself for its financial recovery. If offenses are revealed in the actions of the controlling person, then he, together with the founders of the bankrupt company, bears subsidiary liability for compensation for the damage 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 case of insufficiency of its property, which constitutes the bankruptcy estate.
2. The law establishes the grounds on which a controlling person may be held subsidiary liable. In particular, causing harm to creditors, the existence of a causal relationship between harm and consequences.

Subsidiary liability is due not to bringing the legal entity to bankruptcy in its pure form, but more to causing harm to creditors. And causing damage 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, it is unambiguously possible to say that the illegal action of a controlling person is an action aimed at aggravating the property situation of a legal entity, which, therefore, cannot pay its debts, having obligations to creditors.

You can learn more about the responsibility of the founders of an LLC from this video.

The problem of bringing legal entities to criminal liability is one of the most intractable in the Russian Federation. The point is that, unlike foreign countries, in Russia, a legal entity is not subject to criminal liability. According to the Criminal Code of the Russian Federation, only sane citizens bear criminal responsibility. How to deal with bringing legal entities to this type of liability?

Engagement procedure

Until the legislator deems it necessary to amend the Criminal Code of the Russian Federation by amending it with regard to holding an LLC or JSC criminally liable, Code of Administrative Offenses. It is in this law that we can see all the penalties that are currently provided for legal entities:

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

A fine is a financial 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 in the enterprise quota regime.

These provisions are considered to go beyond administrative regulation enterprise work. Accordingly, they cannot be imposed on legal entities.

When imposing a fine on a legal entity, it is obliged to pay it within a strictly defined period of time. This can be done through Sberbank, as well as other payment services. The legal entity must have proof that it paid the fine. This is a receipt.

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

In addition, there are a number of grounds on which it is possible to forcibly liquidate a legal entity.

All about responsibility CEO LLC is in this video.

Since June 28, 2017, the liability of directors and founders for the debts of companies comes even without bankruptcy proceedings ... it is also possible for "abandoned" companies excluded by the Federal Tax Service from the Unified State Register of Legal Entities (in 2016 there were more than 700 thousand such companies) ... Tax debts companies are considered 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 repaid ... A complete 13-page guide to all types of responsibility of business leaders and owners for the company's activities (legal entity). We decided not to limit ourselves to a subsidy. As a result of disputes and repeated clarifications, you have 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 the collection of tax arrears from controlling physicists (since November 2016) to the recovery of damages in criminal cases ...

For what and with what the managers and business owners are responsible for the debts and tax obligations of the company - 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 got into a fight ourselves. As a result, you have a complete reference. Capacious and whole. Understand.

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Instead of a preface

As I have repeatedly written, industrial capitalism owes its heyday to the emergence of LLCs and JSCs ... in their modern sense. More precisely, "limited liability" within the statutory 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 debtor's prison. Therefore, factories with 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 also required legal tools in the form of limited entrepreneurial risks.

Following LLC and JSC, bankruptcy legislation has also tightened up. By the beginning of the 20th century, rules were introduced everywhere on the cancellation of most debts by creditors as part of bankruptcy.

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

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

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

I agree that an entrepreneur should behave reasonably. Yes, this is an activity at his own risk. But, you see, an entrepreneur cannot and should not be held responsible for a two-fold deliberate devaluation of the ruble, for example ... and even more so for the ensuing massive recalls of loans by banks. It cannot be held responsible for the end-to-end rollback system big business. For twenty years of condoning the almost universal use of “one-night stands” (including as a result of a through system of kickbacks), and then for a sharp change in the rules of the game - from tax rules to lending conditions. An entrepreneur, let me say, bears risks at least by spending part of his life, health, family well-being in every sense... criminal liability, and for an attempt to pay a salary in a difficult situation, even out of good intentions to the detriment of tax obligations and creditors, he will be held liable twice, or even three times ... the circle is closed).

However, there is something. You are already in trouble running and/or owning a business. Let's break it all down. So, at least, you will be able to give a real assessment of what you get from the business. As a maximum, remove a certain number of threats and finally stop asking us the questions “why do we need hidden ownership of a business” or “why a business must be a group of companies”.

1. Responsibility for violation of the current legislation

Subject: Head of the organization.

A responsibility: administrative, criminal.

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

Boundless like the ocean Russian legislation contains a huge number of standards, rules, procedures and procedures, for the violation of which not only the legal entities themselves, but also their leaders are brought to administrative and, if the result of the act is more deplorable, to criminal liability. Not recaptured and not issued cash receipt the buyer, did not notify the relevant authority of the conclusion employment contract with a migrant, violated the deadline for notifying the founder of the company about an extraordinary meeting of participants in the company - get a fine, both for the 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. Fines can be significant. From the saddest: 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 here.

Since 2016, the threshold for criminal liability for tax evasion has been significantly increased. Up to 900 thousand rubles for individuals. And up to 5 million rubles for legal entities. In the media, this is called the buzzword decriminalization of the act. However, if you happen 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 ploy. In other words, any average tax audit gives grounds for initiating a criminal case (of course, if you do not immediately rush to pay for the requirement of the inspection).

Separate emphasis on Art. 199.2 of the Criminal Code - concealment of property from the collection of taxes. Dashing owners or business leaders, sensing something was wrong and holding in their hands the decision of the tax authority on the appointment field check, are frantically looking for a way to withdraw money or property from potential foreclosure. But in vain. This corpus delicti is very formal. It is relatively easy to prove. The fact of transferring money, alienating property, and even directing proceeds to bypass a potential debtor 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 yet. The corresponding bill lay in the Duma and turned sour. Apparently it will be new. Because it will definitely become a crime.

2. Liability for culpable damage to the company

Subject: heads of the organization (sole and members of the collegial body).

A responsibility: compensation for damage.

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

It is quite logical that the executive body of the Company, whether it be a director, president, manager or member of the board, is obliged to act in good faith and reasonably in the interests of the company he leads (this is what the relevant laws “On LLC” and “On Joint Stock Company” say). In the event that he, violating these principles and taking advantage of his position, causes damage to the company: for example, he concludes a deal in violation of the interests of the owners and / or bypassing the mandatory procedure for its coordination 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 company's management bodies was a fantasy: the courts demanded that the exact amount of damages be determined and referred to the probabilistic nature of the assumptions about their infliction.

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 obviously unable to fulfill an obligation (“one-day firm”). If, as a result of such actions, the company is brought to tax or administrative liability, the losses incurred in the amount of additionally assessed taxes, penalties and fines (if we are talking about a one-day deal) may be recovered from the director.

This ruling reversed the few jurisprudence in cases of recovery of damages from directors of companies by 180 degrees. Now the courts have practically no problems with determining the amount of damage. And what sums, what sums!

• in case No. A41-2271 / 13, about 223.5 million rubles were recovered 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 took into account the opinion of the courts and made appropriate amendments to the Civil Code of the Russian Federation (Article 53.1 of the Civil Code mentioned above).

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

from said Decree...

item 2 The bad faith of the actions (inaction) of the director is considered proven, in particular, when the director:

1) acted in the presence of a conflict between his personal interests (the interests of affiliated persons of the director) and the interests of the legal entity, including if the director is actually interested in the transaction by the legal entity, except for cases when information about the conflict of interest was disclosed in advance and the actions of the director were approved in established by law okay;

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

3) made a 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 transferring to the legal entity documents relating to the circumstances that entailed adverse consequences for the legal entity;

5) knew or should have known that his actions (inaction) at the time they were committed did not meet the interests of the legal entity, for example, he made a transaction (voted for its approval) on conditions that were obviously unfavorable for the legal entity or with a person who was obviously incapable of fulfilling the obligation (“one-day firm”, etc.) ....

item 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 important in this situation;

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

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

The mere fact of unprofitable activity or other negative consequences, of course, is not proof of the unreasonableness and/or dishonesty of the director's actions, since they may be the result of an unfavorable economic situation and other external factors. risky nature entrepreneurial activity no one has canceled it, and therefore, of course, it will not work to assign the entrepreneurial risks of the founders to the director. However, we can assume that the practice has developed over the past three years.

3. Liability in bankruptcy

Subject: controlling person (it does not matter if the founder, director or cleaning lady). The one who actually runs the organization.

A responsibility: subsidiary (additional), for the debts of the organization in case of insufficiency of its property.

What is provided: Art. 10 FZ "On insolvency (bankruptcy)".

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

Circle of potentially responsible persons:

• founders (participants);
• leaders of the organization;
• trust managers of the company's shares;
• any other individuals who are not formally legally associated with the company, but actually manage or manage 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 binding instructions for the debtor company;
• the ability to determine the actions of society, including by coercion of its governing bodies;
• determining influence on the head and other members of the debtor's management bodies.

It is possible to bring controlling persons to subsidiary liability within three years from the day when the creditor found out or should have found out about the existence of grounds for this, but no later than three years from the day the debtor was declared bankrupt.

There is an opinion among business owners that vicarious liability is something far and unbelievable. Indeed, it was practically impossible for creditors to prove 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 persons controlling the debtor until they prove otherwise.

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

1. Inability to repay the debt to the creditor in full. What is the probability? Exactly 100%, otherwise why did it go bankrupt?
2. Missing documents accounting and (or) reporting, or it contains distorted information that significantly complicates bankruptcy procedures. Probability? 99%. Because, based on existing rules bookkeeping, it is distorted to one degree or another by everyone. Only the subjective assessment of "materiality" remains an indulgence for the leader. I understand that in the current circumstances you are in a state of time pressure, seasoned with depression or fear. But still, when transferring cases to an arbitration manager, make sure that the primary accounting documents are filed in thematic folders, an inventory of each (!) Document is drawn up. It will not be superfluous to take a picture of each (!) Document. Before transferring cases, do a documentary audit. And not for 50 thousand rubles, when the auditor draws up a conclusion according to a pre-written template, but a documentary one. Claim the missing counterparties, no matter what it costs you.
3. More than half of the claims of third priority creditors are due to the involvement of the debtor or his officials to criminal, administrative or tax liability.

The most common case of the above, of course - tax arrears. Statistically, the Federal Tax Service is the initiator of the bankruptcy procedure in every tenth case. The main difference between such procedures is that the Federal Tax Service is not commercial company, which is dominated by economic expediency. After all, any creditor, before filing an application for your bankruptcy to the court, will think a hundred times: how much he will spend and how much he will hypothetically receive. FTS, how government agency, is devoid of such understanding. 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 often acts tougher. In addition, there are situations when even the most stubborn creditors retreat before the obvious impossibility of collection, but not the Federal Tax Service. After all, there is no one to slow down under their own responsibility. It is reminiscent of a skating rink derailed in the cartoon "Just you wait!" ... rolls itself and rolls.

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

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

• the creditor (authorized body) found out or should have found out about the existence of grounds for bringing the controlling person to subsidiary liability only after the completion of bankruptcy proceedings;
• a similar requirement on the same grounds and to 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 leads, if the signs of insolvency were known to him (or should be known).

On this basis, only the head 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, since the summer of 2017, the director may be held subsidiary liable even if, after filing an application, the procedure was terminated due to the lack of funds to reimburse court costs for bankruptcy. But we will talk about this in detail later.

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

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

Therefore, we turn to personal bankruptcy ...

Say a word about personal bankruptcy

Since October 2015, bankruptcy of individuals has been launched. Due to this, if it is impossible (or insufficient) to recover anything from the leaders and founders as part of bringing them to subsidiary liability, there is every chance to get something through their personal bankruptcy.

The wording of the courts in this case is as follows: the debt of an individual, which has arisen 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 debt in 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 trouble of getting into the personal bankruptcy procedure is the ability of creditors to challenge the transactions of debtor physicists, including marriage contracts and property donation agreements.

But that's not the worst...

By general rule, after completion of settlements with creditors, the debtor (physical or 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 requirements of creditors to bring an individual, as a controlling person, to subsidiary liability.

In other words, the claims of creditors after declaring a citizen bankrupt remain valid regardless of whether they were filed as part of the bankruptcy proceedings 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 leaders of a company declared bankrupt, brought to subsidiary liability, will not be able to get rid of the debt hanging over them. Initiation of bankruptcy proceedings, neither by the person in relation to himself, nor by any creditor, will not help in this. Unfortunately, this debt cannot be written off.

As a result, no matter how sad it may sound, the debt that arose as part of bringing to subsidiary liability is listed with the controlling persons of the bankrupt company indefinitely until it is paid off.

I'm bankrupt. No, I'm bankrupt.

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

It is precisely with the root cause of the inclusion of this basis of liability in the legislation that its key feature is connected - it is possible to bring the head (and only the head) to subsidiary liability for late submission of the debtor's application for far from all obligations for which the Company's property is not enough to satisfy. He is liable only for those that arose after the expiration of the period allotted for filing such an application.

Therefore, in practice, all litigation of bringing the head (liquidator) of the debtor to subsidiary liability is associated with the establishment of the date of the obligation to independently file a bankruptcy petition.

For the head, 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 activity;
• there is an outstanding debt to employees within 3 months;
• the debtor has signs of insolvency and (or) insufficiency of property.

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

Insolvency - termination of the debtor's performance of a part of monetary obligations or obligations to make mandatory payments, caused by insufficiency Money. In this case, the presumption of insufficiency of 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 come down to proving that the Company has signs of insolvency and insufficiency of property. To resolve this issue, we propose to proceed from the approach that has developed in judicial practice based on a systematic interpretation of the rules on bankruptcy, to determine the financial insolvency of the debtor and the insufficiency of property:

Under financial insolvency, it is necessary to understand a state that does not allow him to satisfy the requirements 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 must be executed.

Simply sending a claim by the creditor to the debtor for the payment of the debt 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 obligations are not fulfilled precisely due to the absence of any assets from the Company.

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

Actually, for the violation of these deadlines, the “subsidiary” will fly to the head. Own, personal, personal. Even if he was innocent of the 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 file an application for self-bankruptcy, it is possible to bring the head of the debtor to responsibility only for the latter. According to the first group of obligations, the head is held liable on general grounds - if he brought the company to bankruptcy by his actions. At the same time, it does not matter what obligation the debtor could not repay: he did not pay taxes, did not return the loan, did not pay for goods (works, services) within the period established by the contract.

On the other hand, the creditor, whose obligations arose after a month from the moment the company showed 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 undisputed / confirmed by a court decision debt for more than three months, but also that there are no assets to pay it off.

4. Liability WITHOUT bankruptcy

Subject: director and controlling persons.

A responsibility: on the debts of the organization in the absence of its property.

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

Now, developing the theme, let's imagine that the head of the debtor company has not filed for bankruptcy of the company he heads and, it seems, should be held liable. But the creditors, no matter how hard they tried, could not initiate bankruptcy proceedings. For example, the application was returned by the court due to the lack of funds to reimburse the court costs for the bankruptcy procedure. There is such a reason for the court. Or, let's say, the bankruptcy proceedings were terminated on the same grounds and they did not manage to hold the director accountable.

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

Application for 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);
• considered in a lawsuit;
• may be filed within three years from the date on which the creditor knew or should have known about the existence of grounds for filing such an application.

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

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

The amount of losses in this case 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 forcibly excluded from the register.

From June 28, 2017, persons controlling such a company over the past three years may be held subsidiary liable if the 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. To date, after the exclusion of the company from the Unified State Register of Legal Entities, creditors cannot present any claims against the founders, the director of this company. This allows entrepreneurs to “drop” or “freeze” their companies for the time being, having previously changed the founder or director to a nominee. A year after that, one could consider oneself free from all obligations, primarily tax ones. From mid-2017, in order to get the same effect, it will be necessary not only to wait for the company to be excluded from the Unified State Register of Legal Entities, but also to endure a three-year period for recognizing the former real owners and managers as controlling persons.

5. FULL property liability WITHOUT bankruptcy

Subject: culpable controlling person

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

What is provided: general rules on liability, taking into account the position of the courts (Decisions of the Constitutional Court No. 1470-o of 17.07.2012, No. 786-o of 05.28.2013, Determination of the Supreme Court of the Russian Federation of 01.27.2015 No. 81-KG14-19)

After the adoption of the Decree of the Armed Forces of the Russian Federation of January 27, 2015 No. 81-KG14-19, the tax authority has another serious tool for collecting arrears, namely: the recovery of damage from individuals controlling the organization in the framework of a criminal case.

Previously, the courts did not recognize the possibility of recovering damages from an individual found guilty of a criminal offense expressed in the non-payment of established taxes and fees by an organization that he controlled 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 its property, therefore, non-payment of tax by a legal entity cannot be qualified as damage caused to the state by the actions of its head and (or) founder.

Supreme Court resolutely changed this practice with his Definition, indicating in it that an individual who was held criminally liable for this offense can be recognized as liable for compensation for damage to the Russian Federation in the form of taxes unpaid by the organization, including unlawful reimbursement from the VAT budget.

Former references of the lower courts to the provisions of Art. 45 and Art. 143 of the Tax Code of the Russian Federation, which strictly establish 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 untenable, since in this case we are not talking about the collection of taxes, but about compensation for damage caused by a crime.

So, taking into account the position taken by the Supreme Court of the Russian Federation 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 case of non-payment of additional charges by the taxpayer, resort to bankruptcy proceedings and declare that the persons controlling the debtor are held subsidiary liable.

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 required to compensate for the damage caused by their actions to the budget. 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 the so-called non-rehabilitating grounds - due to the expiration of the statute of limitations for criminal liability (according to part 1 of article 199 of the Criminal Code, it is only 2 years) or as a result of an amnesty act.

Example: Energotechnologies LLC case As a result of the decision of the tax authority based on the results of an on-site tax audit and failure to comply with the requirement to pay taxes, materials regarding the director were transferred to the Investigative Committee. 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 of additional taxes as a damage to the budget caused by his actions.

6. Responsibility FOR the very fact of bankruptcy

Subject: company leaders and members

A responsibility: administrative or criminal

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

It should not be forgotten that, in addition to the additional responsibility of the company's managers and owners due to its financial insolvency, there is responsibility in principle for bringing the organization to bankruptcy, including for hiding its property.

Example: the case of LLC "Uralsky Les"

Due to financial difficulties in the business, the director, who is also the founder of the company, accrued and paid wages employees, but there were no longer enough funds 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 transfer personal income tax to the budget (for non-payment of salary, he could also be subject to criminal liability, but that's not the point). Thus, based on 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 entrusted with the obligation to compensate for damage to the budget (although legally, of course, personal income tax is a tax on individuals, employees ... the company is only an agent) in the amount of 10.9 million rubles.

7. Responsibility “for that guy”

Subject: any interdependent person (legal and natural)

A responsibility: full responsibility for the debts of the organization

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

To date, a simple transfer of financial economic activity to another formally independent operating company with the concealment of the actual owners of the companies behind nominees does absolutely nothing if you intended to “cut the tails” in the form of accumulated tax risks. If tax arrears are identified as part of a tax audit, the tax authorities can file a claim with the court to recognize the new operating company as dependent and recover from it the entire amount of the tax debt of the “abandoned” company.

This requires two conditions:

1) The dependence of companies established in court.

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

• registration of a newly created operating company during the period of an on-site tax audit of an existing operating company;
• the presence of a common founder and head of the companies or the mutual participation of companies in authorized capitals each other (by the way, not a mandatory criterion);
• companies have the same actual addresses, contact numbers, email addresses, websites, activities, trademark;
• accounts opened in the same banks;
• the newly created company begins to work with counterparties of the first operating company on the same contractual terms;
• the original company assigns its rights under the concluded agreements to the newly created operating company or terminates previously concluded agreements with all or most of its counterparties, and the newly created company concludes similar agreements with them in a short period of time;
• transfer of all employees from existing company in a newly created company;
• property is transferred to a dependent company, there is a possibility of influencing decision-making;
• 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 to the accounts of the dependent company of the proceeds or property of the debtor.

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

Under these circumstances, maternal, affiliated companies, as well as formally independent, but having signs 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. And Article 45 of the Tax Code of the Russian Federation has already been rewritten since 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. Although no. After all, we talked mainly 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 liable for its obligations. Since 2016, amendments to federal legislation have been in force, fixing that in the event of bankruptcy, the business owner is liable to creditors not only within his share in the authorized capital, but also with personal property. In the article, we will analyze the nuances in which cases the founder is liable for the debts of the LLC.

Vicarious liability has become the norm in bankruptcy

Federal Law No. 488 of December 28, 2016, which amended the law on LLCs and the bankruptcy law, has made life much more difficult for those business owners who have deliberately or forcedly bankrupted their companies in recent years. 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 company.

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

Such participation is checked for a three-year period before the company is declared bankrupt. Now the possibility of using 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 be even more attentive to the company's document flow. Now every step in the business must be reflected in the accounting and financial reporting. A clear, streamlined workflow scheme will be the main argument in your defense. The service will help to build accounting that works like a clock. Try it - the first month is free.

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

If the firm's assets are sufficient to secure the claims of creditors, there is no question of any additional liability. While the legal entity is operating, the founders are responsible only for 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 result, the recognition of the insolvency of the legal entity, the law gives the green light to creditors in satisfying their financial claims at the expense of the debtors' personal property. The debt burden falls entirely on the shoulders of SO subjects.

To hold the perpetrators liable for LLC debts, certain conditions must be met:

• completed bankruptcy procedure of a legal entity. As an option, the court must receive a declaration of insolvency from the debtor company;
• the established circle of persons whose actions or inaction led to the material collapse of the company;
• ready-made evidence base of the relationship between the illegal actions of the defendants and the final result, which led to the ruin of the company.

Important! In the event that the management or controlling persons of the debtor company are brought to subsidiary liability, the presumption of innocence does not apply to them.

Subjects of subsidiary liability

Possible candidates for "subsidiaries":

• founders;
• director;
• any actual 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 founders during this period are potential applicants for subsidiary liability.

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

What can lead to LLC liability for debts:

• frivolous transactions with "one-day";
• restructuring of assets - the release or transfer of them to new owners without appropriate justification for this need;
• failure to file a bankruptcy petition in a timely manner. The director is required to notify the court of 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 left the company, he will be liable for debts that arose before his retirement along with those remaining for two years (Article 95 of the Civil Code of the Russian Federation).

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

1. The range of subjects for subsidiary liability has expanded. In addition to shareholders and directors, the concept of “a person controlling the debtor” has been introduced. These are business owners, major shareholders, financial, technical directors, former key workers to relatives. The only condition for their participation in the SO is the fact of a significant impact on the activities of the organization and a temporary restriction - no more than three years of their activity, preceding the emergence 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 dishonest or unreasonable actions of the founders, directors, the creditor can recover the debt from them through the courts. Previously, such an opportunity was provided only in the bankruptcy process.
3. Federal Law No. 488 supplemented Article 10 of the Federal Law “On Bankruptcy”. Creditors can hold debtor firms to account after the bankruptcy procedure or outside it, if they have not received satisfaction of the stated requirements. Previously, in the absence of funding, it was impossible to initiate a bankruptcy case.
4. Even if the legal entity is excluded from register of the Unified State Register of Legal Entities, you can safely directly make a claim to satisfy debt obligations to controlling persons (subparagraph 3.1 of article 3 of the LLC Law).

Responsibility of director

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

• made a deal on conditions that are obviously unfavorable for the legal entity;
• hid important details transaction or has not received its approval from business owners;
• did not carry out the necessary verification of the conscientiousness 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 head for losses incurred as a result of his actions or inaction. Members of the board of directors who voted against the decision of the director, as well as persons not participating in voting, are exempt from liability.

If the founder and director of the LLC are one person

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

• led illiterate economic management;
• allowed the growth of debt in all areas of financial statements;
• misused loans;
• chose unverified contractors.

If the company went bankrupt due to the fault of the founder, as well as persons responsible for the work of the company, they are subject to subsidiary liability, including the head and founder in one person (FZ 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 regard, the practice of the Armed Forces of the Russian Federation of 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 recovery from physical. person damage to the state in the amount of the unpaid amount.

In addition to 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 an LLC's liability for debts?

Vicarious liability threatens the business owner even in the event of self-bankruptcy. Especially if all 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, independent entry into the bankruptcy process does not guarantee the subjects protection of personal property from the claims of creditors. If the assets of the debtor company are not enough to pay off 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. The tax authorities will make every effort to find funds to pay off debts: from requests to government agencies, the bailiff service to the registry office and banks where personal accounts are opened.

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

The procedure for holding liable for the obligations of an LLC

First of all, the executive person - the director, Executive Director. Persons controlling the organization are involved only after the sale of the property of the debtor company and settlements from the proceeds with creditors. If in their actions and the economic catastrophe of the company the court finds a relationship, then the penalty will be imposed on their personal property.

The role of the arbitration manager in the process

The arbitration manager is appointed by the court to conduct the bankruptcy of the organization. It depends on the arbitration manager how complete information he will collect about the debtor company, establish the guilt or innocence of responsible persons, doubt whether or not the veracity of bankruptcy.

If the evidence speaks of the fictitiousness or premeditation of bankruptcy, he has the right to bring the guilty subjects to subsidiary liability by filing a lawsuit in court.

Full property liability without bankruptcy

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

Nuances of recent jurisprudence

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

• the obligation to prove one's innocence rests with the owners and those who control the business;
• The Supreme Court, in a ruling dated March 9, 2016, confirmed the presumption of guilt of these persons;
• in court, a causal relationship is established between the failure to file a bankruptcy petition and the harm caused to the creditor and the state;
• managers who evade bankruptcy proceedings are subject to disqualification for a period of six months to three years;
• persons who have not provided Required documents competitive manager.

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

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

Is the director responsible for the debts of a liquidated enterprise after bankruptcy?

Today we will talk about societies with limited liability. On June 28, 2017, creditors got 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 such organizational form do not have any obligations to the creditors of the company 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 liable for the debts of the LLC

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

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 refer to it further as 14-FZ.

It's no secret that the easiest way for a company that has accumulated debt is to legally go out of business very quickly. Previously, creditors would have been left with nothing.

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

Thanks to the work of legislators, it became possible to collect debts from former director or founders. It is only important to justify 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 the law 14-FZ define the following potential opponents in the dispute:

1. Director (current and former).
2. Members of the executive body (collegiate). This may be the board of directors, the board, another 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 a liability of the founder for the debts of the legal entity).

In addition, theoretically, those persons who contributed to the adoption of decisions that led to the debt can be held financially liable for the debts of the company.

These can 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 debt.

After all, not every limited liability company allows the counterparty 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 LLC only in the event that the occurrence of debt was the result of their unfair and unreasonable actions.

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

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

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

A lawyer just knows how to approach such issues.

What are unreasonable and dishonest actions

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

First of all, it is the sale of goods or the provision of services at prices that are significantly inferior to market prices. In addition, this is the performance 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 company's management to their immediate duties.

In particular, the director could make decisions without taking into account information that is essential when concluding contracts or conducting the day-to-day business of the organization.

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

The lack of initiative to initiate insolvency proceedings (if the company was already burdened with debts) may also indicate unreasonableness. Pre-liquidation asset stripping may also form the basis for substantiating a lawsuit.

In any case, the intent to default on 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 before filing a claim. judicial practice, and not only district, but also arbitration courts.

After all, the defendant in the case may be the founder - another company or an individual entrepreneur who was part of the participants in the LLC that ceased to exist.

In what cases can subsidiary liability be imposed on the directors/participants of an LLC?

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

Therefore, to impose this responsibility, it is not enough just to exclude the 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, subject to two conditions:

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

How is bad faith and unreasonableness established in practice?

As unreasonable (bad faith) behavior, the courts regard:

• failure to take measures to repay the debt to the creditor "during the lifetime" LLC (A71-20472 / 2017, A53-29729 / 17);
• the actual termination of the company's activities after the termination of the powers of the controlling persons (A53-29729 / 17);
• failure to take actions to terminate or cancel the procedure for exclusion of an LLC from the Unified State Register of Legal Entities. (A71-20472/2017);
• the fact of non-fulfillment of the obligation by the head of the legal entity to file an application for bankruptcy of the enterprise with the arbitration court, if there are signs of bankruptcy (Appeal ruling 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 bad faith and unreasonableness of controlling persons is not analyzed at all, and the conclusion on bringing to responsibility follows simply from a statement of non-fulfillment of obligations by an LLC (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.

But interesting example"negative" practices, decisions in favor of the controlling person.

The Court ordered the Claimant to prove the existence of losses, the wrongfulness of the Defendant's behavior and the causal relationship between the losses and the Defendant's behavior (А45-2887/2018). By a court decision, the creditor's claim was denied, and the appeal "overpowered" 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 activities of the company, that is, the participant is essentially not a controlling person (a similar approach is demonstrated in case A53-29729 / 17) .

Who to sue

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

Naturally, the leader comes first. After all, he signs all documents and is personally responsible as a director for the debts of the LLC.

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

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

Is it possible to hold the founder liable for the debts of a legal entity?

For LLC members, the situation is more complicated. After all, it is very difficult to prove their involvement in the adoption of a decision objectionable to the creditor. In this state of affairs, the liability 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 in the LLC that has ceased its activities. In addition, the plaintiff and the court will have difficulty 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 defendant disappears by itself.

The most ideal option would be to identify several defendants. 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 filed with the court for the reclamation of part of the materials from the archive and the FTS body, 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 accounting and financial documents of the company.

This may be an experienced accountant or auditor. Perhaps it is behind the numbers that the intent is hidden in the failure to return the debt.

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

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

Which court should be applied to

When choosing a body of justice, there are several rules, since a claim can be filed both in a district court and in 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 contract, a construction contract, etc., 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: rendering household services and the like, and the creditor is an individual, then you need to apply to a court of general jurisdiction. Concerns and former employees excluded from the register of LLC.

Cases on the recovery of losses from the head of the organization (including the former) are considered both by arbitration courts and courts of general jurisdiction, in accordance with the rules on the delimitation of competence (clause 7 of the Resolution of the Supreme Court of the Russian Federation dated 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 it in the case when the defendant for the recovery of the amount is an individual: the founders or the director of the former company.

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

Similar statement of claim can be accompanied by a petition to demand from the tax inspectorate the address data on the defendants. After receiving them, the judge himself will decide whether to transfer the case to jurisdiction (if such a need arises).

Court of Arbitration

Often, formally it simply does not make sense to collect a debt from a director (especially if he was a so-called "dummy"). In this case, claims may 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 arose from corporate relations. For example, a participant was not paid a debt on dividends 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 defendant 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 has the right to consider the case both under the usual procedure and with the use of simplified proceedings. In the latter case, a separate procedural document is issued.

Regardless of whether there is an appeal 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 judgment is necessary in any case. However, it won't be enough.

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

The next step is to work with the judiciary. The creditor can help find the debtor's property, provide transport, necessary technical means, and so on. The speed of obtaining funds to pay off the debt largely depends on the fruitfulness of cooperation.

To summarize: prospects for joint and several liability of the director and founders for the obligations of the LLC

On June 28, 2017, amendments to Law 14-FZ came 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 recover debts from these entities, it is worth proving that a certain amount of money was not repaid due to malicious or unreasonable actions.

Therefore, before you decide to file a lawsuit in court to hold the director and other persons liable 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) has been developed in
in accordance with the Federal Law of 27.07.2006. No. 152-FZ "On Personal Data" (hereinafter - FZ-152).
1.2. This Policy defines the procedure for processing personal data and measures to ensure the security of personal data at Lawyers' College "Tax Advocates" LLC (hereinafter referred to as the Operator) in order to protect the rights and freedoms of a person and citizen in the processing of his personal data, including the protection of the rights to privacy life, personal and family secrets.
1.3. The following basic concepts are used in the Policy:
- automated processing of personal data - processing of personal data using means computer science;
- blocking of personal data - temporary suspension of the processing of personal data (except when processing is necessary to clarify personal data);
- personal data information system - a set of personal data contained in databases and providing their processing information technologies and technical means;
- depersonalization of personal data - actions as a result of which it is impossible to determine, without the use of additional information, the ownership of personal data by 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 (updating, changing), extraction , use, transfer (distribution, provision, access), depersonalization, blocking, deletion, destruction of personal data;
- operator - state body, municipal authority, a legal or natural person, independently or jointly with other persons organizing and (or) carrying out the processing of personal data, as well as determining the purposes of processing personal data, the composition of personal data to be processed, actions (operations) performed with personal data;
- personal data - any information relating to a directly or indirectly defined or determined to an individual(to the 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 familiarizing with personal data of an unlimited number of persons, including the disclosure of personal data in the media, placement 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 an authority of a foreign state, a foreign individual or a 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 Personal Data Processing Policy in accordance with Part 2 of Art. 18.1. FZ152.
2. PRINCIPLES AND CONDITIONS FOR PROCESSING PERSONAL DATA
2.1. Principles of personal data processing
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 the achievement of specific, predetermined and legitimate purposes;
- preventing the processing of personal data that is incompatible with the purposes of collecting personal data;
- preventing the merger of databases containing personal data, the processing of which is carried out for purposes that are incompatible with each other;
- processing only those personal data that meet the purposes of their processing;
- compliance of the content and scope of the processed personal data with the stated purposes of processing;
- inadmissibility of processing personal data that is excessive 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 reaching the goals of their processing or in case of loss of the need to achieve these goals, if it is impossible for the Operator to eliminate the committed violations of personal data, unless otherwise provided by federal law.
2.2. Conditions for the processing of personal data
2.2.1. The operator processes personal data in the presence of at least one of the following conditions:
- 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 to conclude an agreement on the initiative of the subject of personal data or an agreement under which the subject of personal data will be the beneficiary or guarantor;
- the processing of personal data is necessary for the exercise of rights and legitimate interests operator or third parties, or to achieve socially significant goals, provided that the rights and freedoms of the subject of personal data are not violated;
- processing of personal data is carried out, access to which is granted to an unlimited number of persons by the subject of personal data or at his request (hereinafter referred to as publicly available personal data);
- processing of personal data subject to publication or mandatory disclosure in accordance with federal law is carried out.
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. For the purpose of information support, the Operator may create publicly available sources of personal data of personal data subjects, including directories and address books. Publicly available sources of personal data, with the written consent of the subject of personal data, may include his last name, first name, patronymic, date and place of birth, position, contact phone numbers, address Email and other personal data reported by the subject of personal data.
2.4.2. Information about the subject of personal data must be excluded from public sources of personal data at any time at the request of the subject of personal data, the 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. Processing by the Operator special categories personal data relating to race, nationality, political views, religious or philosophical beliefs, health status, intimate life is allowed in cases where:
- the subject of personal data has consented to writing to the processing of their personal data;
- personal data is made public by the subject of personal data;
- the 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 other persons and it is impossible to obtain the consent of the subject of personal data;
- the processing of personal data is carried out for medical and preventive purposes, in order to establish a medical diagnosis, provide medical and medical and social services, provided that the processing of personal data is carried out by a person 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;
- 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 Federal Law-152 must be immediately terminated if the reasons for which they were processed are eliminated, unless otherwise established by federal law.
2.5.3. The processing of personal data on a criminal record may 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 features person, on the basis of which his identity can be established - biometric personal data - can be processed by the Operator only with the consent of the subject of personal data in writing.
2.7. Entrusting 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 the processing of 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 Part of Clarifying the Procedure for Processing Personal Data in Information and Telecommunication Networks" when collecting personal data, including through information and telecommunications 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 following cases:
- the processing of personal data is necessary to achieve the goals stipulated by an international treaty of the Russian Federation or the law, to exercise and fulfill the functions, powers and duties assigned by the legislation of the Russian Federation to 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);
- the processing of personal data is necessary for the exercise of powers federal bodies executive power, bodies of state non-budgetary funds, executive bodies state authorities of the constituent entities of the Russian Federation, bodies local government and 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 registration of the subject of personal data on a single portal of state and municipal services and (or ) regional portals state and municipal services;
- the processing of personal data is necessary for the implementation professional activity journalist and (or) the legitimate activities of the media or scientific, literary or other creative activity, provided that the rights and legitimate interests of the subject of personal data are not violated.
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 the transfer of personal data is supposed to be carried out, provides adequate protection of the rights of personal data subjects, before 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 personal data subjects may be carried out in the following cases:
- availability of consent in writing of the subject of personal data to the cross-border transfer of his personal data;
- execution of an agreement to which the subject of personal data is a party.
3. RIGHTS OF THE SUBJECT OF PERSONAL DATA
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, by his own will and in his own interest. Consent to the processing of personal data may be given by the subject of personal data or his representative in any form allowing 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, unless such right is limited in accordance with federal laws. The subject of personal data has the right to demand from the Operator the clarification of his personal data, their blocking or destruction 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 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 means of communication, 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. Acceptance based solely on automated processing personal data of decisions 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 of the subject of personal data in writing.
3.2.5. If the subject of personal data believes that the Operator is processing his personal data in violation of the requirements of Federal Law-152 or otherwise violates his rights and freedoms, the subject of personal data has the right to appeal against the actions or inaction 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 losses and (or) compensation for moral damage.
4. 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;
- restriction of the composition of persons admitted to the processing of personal data;
- familiarization of subjects with the requirements of federal legislation and normative documents Operator for the processing and protection of personal data;
- organization of accounting, storage and circulation of media containing information with personal data;
- determination 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 the threat model;
- 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 tools is necessary to neutralize actual threats;
- verification of the readiness and effectiveness of the use of information security tools;
- differentiating user access to information resources and software and hardware for information processing;
- registration and accounting of user actions information systems personal data;
- use of anti-virus tools and means of restoring the personal data protection system;
- application, if necessary, of firewalls, intrusion detection, security analysis and cryptographic information protection;
- organization of access control to the territory of the Operator, security of premises with technical means processing of 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. The Operator's employees who are 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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