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Responsibility of the founder for tax obligations. We dispel the myths that the founders are not liable with their property for the debts of LLC

Vasily Ivanov - a young, talented and enterprising technical specialist - decided to open his own business, as he came up with a mega-product. At the start of the business, he quit his job, registered an LLC with 10 thousand rubles. authorized capital, invested some of his own money, took out a small loan, hired 5th technicians. The work started, but six months later it turned out that the product had no future, the money ran out, the loan was not repaid, 2 months' salary arrears to employees in the amount of 400 thousand rubles net and to the budget in the amount of 204 thousand rubles (approximately + 51% from the amount of debt to employees, because here 13% personal income tax, 31% PFR + FOMS and little things). In general, things are bad, it's time to close and return to work "for an uncle."

Question: what should Vasily do with debts and LLC?

Is it possible for him to bankrupt an LLC with a loss of only 10 thousand of the authorized capital, and so that he does not get anything for it? Does the founder of an LLC really insure all his risks with the value of the authorized capital?

Let's figure it out. A limited liability company is the most popular organizational and legal form in Russia. When making a choice between sole proprietorship and LLC, novice businessmen consider the limited liability of the company to the size of the authorized capital as the main argument in favor of the LLC. The Civil Code confirms that the founders are not liable for the debts of a legal entity. An individual entrepreneur is liable with all his property.

Is it really? Let's consider this issue with the concepts of "subsidiary liability", "beneficial owner", "controlling person of the debtor". Not sure how these definitions relate to the limited liability of an LLC? The most direct.

I'll tell you briefly:

• subsidiary liability- this is an additional and unlimited liability of the leaders and founders of the LLC for the obligations of their organization;
• beneficial owner (aka ultimate beneficiary)- a person who is the actual owner of the company, even if he is not a member of the founders;
• person controlling the debtor- a person who has or had in the last two years before the LLC was declared bankrupt the opportunity to influence its activities.

And now in more detail.

While the LLC is in good health, works and is responsible for its obligations, no one has the right to encroach on the personal property of the founders. But if the business did not go well or the company was initially created not with the purest intentions, then if there are outstanding debts to creditors, the company is obliged to declare itself bankrupt.

And here, if the capital of the LLC is insufficient to cover its debts, Article 3 of the Law of February 8, 1998 No. 14-FZ may come into force: vicarious liability for its obligations.

Yes, of course, creditors must prove that it was the actions of the participants or other controlling persons that led to the bankruptcy of the company and the presence of outstanding debts. And they prove it! Those interested can search the web for an overview of arbitration jurisprudence in cases of bringing the founders (participants) of an LLC to subsidiary liability. Such claims have been actively considered in the courts since 2009, and the founders really pay with their property for the obligations of the company they created. This is how unlimited "limited" liability is obtained.

“Excuse me,” you say, “but why are we talking only about the responsibility of the LLC participants? And if the firm was led by a third-party director. All questions to him."

Well, firstly, according to the statistics of our service for preparing documents for registering an LLC and an individual entrepreneur, in only 19% of cases, a third-party employee who is not among the founders becomes a director (6775 out of 35462 sets of documents). And secondly, just in order not to shift all responsibility for bankruptcy to the head, often a nominal one, Law No. 127 “On Insolvency” introduced the concept of “controlling the debtor”.

These persons are understood, among other things, as the participants in the LLC, who instructed the director to act in a certain way. And not only the current participants, but also those who were part of the society no more than two years ago. The director, who also bears his share of responsibility, can be relieved of it if he proves that, when bringing the company to bankruptcy, he acted on the direct instructions of the founders.

Moreover, in relation to persons controlling the debtor (read - LLC participants), there is a presumption of guilt. This means that, until proven otherwise, a company is considered to have become bankrupt due to their actions or inaction if:

• transactions that caused harm to creditors were made with the approval of or in favor of the controlling person;
• mandatory documents accounting missing or distorted.

Is it possible to avoid the subsidiary liability of the participants if not to file for bankruptcy, but to quickly sell everything that remains of the property and liquidate the LLC? You can, of course, but I don’t advise that, in addition to a showdown with creditors, you also don’t fall under criminal liability under article 195 of the Criminal Code of the Russian Federation.

Unfortunately, and fortunately for creditors, you cannot simply close an LLC. This individual entrepreneur can be deregistered in just five days and with debts. His creditors, too, of course, will not leave him alone, but it is possible to close an individual entrepreneur with debts outside the bankruptcy procedure. By the way, in some cases it is even beneficial for an entrepreneur to declare himself bankrupt, but that's another story.

As for the LLC, if during the liquidation process it turns out that its property is not enough to satisfy the claims of creditors, the liquidation commission is obliged to file a bankruptcy petition. Therefore, you should not believe dubious announcements to organize a quick liquidation of an LLC with debts without bankruptcy proceedings.

To protect the interests of creditors during the withdrawal of assets (this is when all the property of the company is quickly and inexpensively sold, often to its own people), the bankruptcy law introduced a chapter on challenging the debtor's transactions. These rules make it possible to challenge transactions made for the purpose of withdrawing assets and return the sold property or its actual value to the bankruptcy estate. Moreover, transactions made not only on the eve of filing for bankruptcy, but over the previous three years.

The state also declares the satisfaction of its interests at the expense of the participants of the LLC. Article 49 of the Tax Code of the Russian Federation: “If the funds of a liquidated organization ... are not enough to fulfill in full the obligation to pay taxes and fees, due penalties and fines, the remaining debt must be repaid by the founders (participants) of the specified organization».

Let's bring a couple good examples bringing to subsidiary liability of LLC participants and persons controlling the debtor:

1. TD Vega LLC, having its own outstanding loan in the amount of 93 million rubles, by decision of the general meeting of participants, becomes a loan guarantor for Art Vision Group LLC. The volume of obligations assumed under the guarantee agreement is 122 million rubles, while the book value of the assets of Trade House Vega is only 99 million rubles. There was no economic feasibility for signing the suretyship agreement, and as a result of the actions of the head and participants, LLC Trade House Vega was brought to bankruptcy. The court recognized the guilt of the head and two members of the company and brought them to subsidiary liability: 42.6 million rubles each. (Determination of the Moscow Arbitration Court in case No. A40-82872 / 10-70-400 "B").
2. The participants of Duslyk LLC, in the process of reorganization, transferred all assets to another company they created. At the same time, the company itself had tax arrears, and the IFTS applied for the recognition of Duslyk LLC as insolvent. As part of bringing to subsidiary liability, the court ordered the participants in the company to pay tax debts in the amount of 675 thousand rubles. (Decision of the Arbitration Court of the Republic of Bashkortostan in case No. А07-7955/2009).

In short, business must be done with care. And if something went wrong, and this happens more often than if something went wrong, then 10 thousand rubles of authorized capital can not get off. Thank you for your attention.

And yes, I almost forgot, Vasily from the example above really needs to tighten up and return at least the money to the employees. Or be prepared for anything.

For those who are interested in this topic and for whom it turned out to be topical, we recommend that you read the article:

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.

What a sin to hide while we were preparing given material almost squashed themselves. 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 authorized or share capital. Until the end of the 19th century, the entrepreneur (the owner of capital in the interpretation of Marx) was fully responsible for the obligations of the enterprise and just a little - went to 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 the fact that he spends part of his life, health, family well-being in every sense ... and risks not earning anything at the same time, unlike his hired employees (for the delay in paying salaries to whom he also bears criminal liability, and for an attempt to pay a salary in a difficult situation, even from good intentions to the detriment of tax liabilities and creditors - will be 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.

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 about the conclusion of an employment contract with a migrant, violated the deadline for notifying the founder of the company about an extraordinary meeting of the company's participants - get a fine, both for this company itself and for its director. It is better to familiarize yourself with specific risks in advance, depending on the field of activity, by reading the Code of Administrative Offenses of the Russian Federation and the Criminal Code of the Russian Federation at your leisure. 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. It's called in the media 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 demand of the inspection).

Separate emphasis on Art. 199.2 of the Criminal Code - concealment of property from the collection of taxes. Dashing business owners or managers, sensing something was wrong and holding in their hands the decision of the tax authority to appoint an on-site audit, are feverishly looking for a way to withdraw money or property from potential recovery. 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).

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 bypasses mandatory procedure its coordination with them, which turned out to be unprofitable for the company - the damage caused can be recovered from it. 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.

fixed this situation The Supreme Arbitration Court of the Russian Federation in its Decree 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 amounts of taxes, penalties and fines (if we are talking on 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 have been approved in accordance with the procedure established by law;

2) concealed information about the transaction made by him from the participants of the legal entity (in particular, if information about such a transaction 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 common for business practice under similar circumstances, in particular, if it is proved that under the existing circumstances a reasonable director would postpone the adoption of the decision until additional information is received;

3) made a transaction without complying with the usually required or accepted in this legal entity internal procedures 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.

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. There are no accounting documents and (or) reporting, or it contains distorted information that significantly complicates bankruptcy procedures. Probability? 99%. Since, based on the existing accounting rules, everyone distorts it to one degree or another. Only 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 bringing the debtor or its 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 in which economic expediency dominates. 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 other controlled persons without an appropriate 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 the following two 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 managers 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: debt individual, arising as a result of bringing him to subsidiary liability to the creditor of the 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...

As a general rule, after the completion of settlements with creditors, the debtor (individual or legal entity) declared bankrupt is released from further fulfillment 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;
• levying execution 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 - excess of the amount of monetary obligations and obligations to pay mandatory payments the debtor over the value of the debtor's assets;

Insolvency is the termination of the debtor's performance of a part of monetary obligations or obligations to make obligatory payments, caused by insufficient funds. 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 address this issue, we propose to proceed from the approach that has developed in judicial practice on the basis of a systematic interpretation of the rules on bankruptcy, to the determination of 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.

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 court costs for the bankruptcy proceedings. 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 have time 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 go to court with statement of claim on the recovery in their favor from the controlling debtor persons 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

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.

The Supreme Court resolutely changed this practice with its Ruling, indicating in it that an individual subject to criminal liability for this offense can be recognized as liable for compensation for damage to the Russian Federation in the form of taxes unpaid by an 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 upheld tax office 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 brought to subsidiary liability.

At the same time, if a tax offense contains signs of a criminal offense (Article 199, Article 199.1 of the Criminal Code of the Russian Federation), then the persons controlling the organization will be 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 the tax audit and failure to comply with the requirement to pay taxes, the 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

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, calculated and paid wages to 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)

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 and economic activities to another formally independent operating company with the concealment of the actual owners of companies behind nominal persons does not give anything at all if you intended to “cut off 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 collect from it the entire amount of the accrued tax debt 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 the authorized capital of each other (by the way, this is not a mandatory criterion at all);
• 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 an existing company to 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 this is not only about simple receipt by an affiliate of revenue "by letter" to a third party. Termination of contracts and conclusion of contracts with the same counterparties on behalf of new organization under 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:

Dear Roman. legal status of a limited liability company, rights and
the obligations of its participants, the procedure for the creation, reorganization and liquidation
LLC is defined by the Civil Code of the Russian Federation and Federal Law No. 14-FZ of February 8, 1998 “On
limited liability companies"

According to paragraph 3 of Art. 56 GK
RF founder (participant) of a legal entity or its owner
property is not liable for the obligations of a legal entity, and a legal
the person is not liable for the obligations of the founder (participant) or
owner, with the exception of cases provided for by the Civil Code of the Russian Federation or
constituent documents of a legal entity.

Yes, in accordance with
paragraph 1 of Art. 87 of the Civil Code of the Russian Federation, paragraph 1 of Art. 2 of Law N 14-FZ, LLC participants do not respond
on its obligations and bear the risk of losses associated with the activities
society, within the value of their contributions. Members
companies that have made contributions incompletely are jointly and severally liable
on his obligations within the value of the unpaid part of the deposit
each of the participants.

Thus, as a general rule, participants
LLC is not liable for its obligations and bears the risk of losses associated with
activities of the company, only within the value of the contributions made by them
contributions, unless otherwise provided by the constituent documents of the company.

However, the following must be taken into account.

1)
In the event that the insolvency (bankruptcy) of the company occurred due to
the fault of its participants or the fault of other persons who have the right to give
obligatory instructions for the company or otherwise have the possibility
determine its actions, these persons (including participants) may
bear subsidiary liability for the obligations of the company
(Clause 3, Article 56 of the Civil Code of the Russian Federation, Clause 3, Article 3 of Law No. 14-FZ, Clause 4, Article 10 of the Federal
Law of October 26, 2002 N 127-FZ "On Insolvency (Bankruptcy)".

Apart from
this, in accordance with paragraph 4 of Art. 61 of the Civil Code of the Russian Federation, paragraph 1 of Art. 224 Law N 127-FZ
in the event that the value of the property of the debtor - a legal entity, in
in respect of which a decision was made to liquidate, is insufficient for
satisfaction of creditors' claims, such a legal entity
liquidated in the manner prescribed by Law N 127-FZ.

At
this in accordance with paragraph. 3 Article. 224 of Law N 127-FZ upon detection
insufficiency of the value of the property after the decision to liquidate
legal entity and before the creation of the liquidation commission (appointment
liquidator) an application for declaring the debtor bankrupt must be filed
to the arbitration court by the founder (participant) of the debtor or the head
debtor. The founders (participants) of the debtor who violated these requirements,
bear subsidiary liability for unsatisfied claims
creditors for monetary obligations and on the payment of mandatory payments
debtor (clause 2, article 226 of Law N 127-FZ).

2) Companies,
transformed from partnerships, the provisions of paragraph 2 of Art.
68 of the Civil Code of the Russian Federation, according to which, when a partnership is transformed into a company
each general partner who has become a member of the company, within two years
bears subsidiary liability with all its property for
obligations transferred to the company from the partnership. Alienation by the former
partner of his shares does not release him from such
responsibility.

3) If a member of the LLC is
legal entity, and in relation to this legal entity LLC
is recognized as a subsidiary, it should take into account the provisions of Art.
105 of the Civil Code of the Russian Federation. According to paragraph 1 of Art. 105 of the Civil Code of the Russian Federation, a business entity is recognized
subsidiary, if another (main) economic company, by virtue of
majority participation in its authorized capital has the opportunity
determine the decisions made by such a society. In accordance with paragraph 2
Art. 105 of the Civil Code of the Russian Federation, the parent company, which has the right to give to the subsidiary
obligatory instructions to the company, is jointly and severally liable with the subsidiary
company under transactions concluded by the latter in pursuance of such
instructions. In case of insolvency (bankruptcy) of a subsidiary under
the fault of the parent company, the latter bears subsidiary liability for
his debts. In addition, according to paragraph 3 of Art. 105 of the Civil Code of the Russian Federation, participants in the subsidiary
companies have the right to demand compensation from the main company for losses,
caused through his fault to the subsidiary, unless otherwise established
laws on business companies.

4) Responsibility of the participant
LLC on the tax debt of an LLC occurs in the event of liquidation
organizations. Upon liquidation of the LLC, the participant, in part of his liability
before the tax authorities, one should also take into account the provisions of Art. 49 NK
RF. Obligation to pay taxes and fees (penalties, fines)
liquidated organization is executed by the liquidation commission at the expense of
funds of the specified organization, including those received from
sale of its property (clause 1, article 49 of the Tax Code of the Russian Federation).

If cash
liquidated company, including those received from the sale of its
property is not sufficient to fulfill the full obligation to
payment of taxes and fees, due penalties and fines, the remaining
the debt must be repaid by the founders of the LLC within and
the procedure established by the legislation of the Russian Federation (clause 2, article 49 of the Tax Code of the Russian Federation). That is
in this situation, paragraph 1 of Art. 87 of the Civil Code of the Russian Federation, in accordance with
by which LLC participants repay the debt of the company within
the value of their contributions. Members of the society who made contributions not
in full, are jointly and severally liable for its obligations in
within the value of the unpaid part of the contribution of each of the participants.

Regulations
provided for in Art. 49 of the Tax Code of the Russian Federation, are also applied when paying taxes in
connection with the movement of goods across the customs border (clause 5 of article 49 of the Tax Code
RF).

It is also recommended to take into account that the Decree of the Plenum of the Supreme Court
of the Russian Federation and the Supreme Arbitration Court of the Russian Federation dated 11.06.1999 N 41/9 “On some issues related to
the entry into force of part one of the Tax Code of the Russian
Federation” (p. 15) courts of general jurisdiction and arbitration courts were given,
in particular, an explanation according to which, when applying paragraph 2 of Art. 49
The Tax Code of the Russian Federation must take into account that, since the legislation of the Russian Federation on
taxes and fees are not provided otherwise, the imposition on the founders of LLC in
within the limits and in the manner prescribed by the legislation of the Russian Federation or
constituent documents, the obligation to repay the remaining
arrears in payment of taxes and fees is possible only in the event that
when, in accordance with civil law, the founders
liquidated LLC bear subsidiary liability for its debts.

Creature
vicarious liability, which has been repeatedly mentioned above,
disclosed in Art. 399 of the Civil Code of the Russian Federation. Prior to making claims against a person who, in
in accordance with the law, other legal acts or conditions
obligations bears responsibility in addition to responsibility
another person who is the main debtor (subsidiary
liability), the creditor must present a claim against the principal
debtor. If the principal debtor refused to satisfy the claim
creditor or the creditor has not received from him within a reasonable time a response to
the demand, this demand may be presented to the person,
bearing subsidiary liability (clause 1, article 399 of the Civil Code of the Russian Federation). Lender not
has the right to demand satisfaction of his claim against the principal debtor
from a person bearing subsidiary liability, if this requirement
can be satisfied by offsetting the counter claim to the principal
debtor or undisputed collection of funds from the main debtor (clause 2
Art. 399 of the Civil Code of the Russian Federation). The person bearing subsidiary liability must
satisfaction of the claim presented to him by the creditor, to warn
the principal debtor about this, and if a claim is brought against such a person, -
involve the principal debtor in the case. Otherwise
the principal debtor has the right to put forward against the recourse claim
of the person responding subsidiarily, the objections he had against
creditor (clause 3, article 399 of the Civil Code of the Russian Federation).

So
Thus, the founder of an LLC for the debts of the organization to the tax authorities
and other creditors is liable in cases provided for
Civil Code of the Russian Federation, Tax Code of the Russian Federation, Law No. 14-FZ, Law No. 127-FZ (listed above in
this answer) or the constituent documents of a limited company
responsibility.

The activity of the Limited Liability Company is regulated by Federal Law No. 14-FZ dated February 8, 1998 “On Limited Liability Companies”, as well as the provisions of the Civil Code of the Russian Federation.

Paragraph 1 of Article 56 of the Civil Code of the Russian Federation determines that a legal entity is liable for its obligations with all its property. The second paragraph of this article states that the founder (participant) of a legal entity or the owner of its property is not liable for the obligations of the legal entity, and the legal entity is not liable for the obligations of the founder (participant) or owner, except for the cases provided for by this Code or other law.

If you rely on Article 56 of the Civil Code of the Russian Federation, it is quite clear that a legal entity, as an independent economic entity, is responsible independently for its debts and obligations, and the founder is independently responsible for his own. And how to find that line between the responsibility of the founder of the Society and the Society itself? In order to understand in more detail and try to distinguish between the responsibility of the founder and CEO(Director) of the Company, first you need to understand the difference between these two terms.

So, founder is the person who decided to create an LLC, in other words, who “founded” the Company. Having decided to establish the Society, its founder accepts the Charter, makes (pays) his first contribution to the Society in the form of authorized capital, and, of course, determines who will manage his Society. In practice, when registering an LLC, there are more and more cases when the sole founder simultaneously assumes the functions of the sole executive body - the director of this LLC. In accordance with the legislation of the Russian Federation, he is also entitled to issue an order imposing on himself the obligations to maintain the accounting records of the Company. The law determines that any legally capable natural person, both Russian and foreign citizens, can establish the Company. The founder may also be another legal entity. The rights and obligations of the founder are regulated by its constituent documents, primarily the Charter of the Company.

Director of the Society- any individual, both the founder himself and an independent person appointed to the position by the decision of the founder of the Company. The head, director of the Company is appointed for one single purpose - to manage the current activities of the legal entity. Director of the Company - a person who has the right to act without a power of attorney on behalf and in the interests of the Company.

Property liability of the founder of the Company

Having defined the concepts of the "founder" and "director" of the Company, let's try to analyze the responsibility individually assigned to them for the debts of the Company.

The legal liability of owners and participants in entrepreneurial activity is divided into types:

• material or property(responsibility of a member (founder) of the Company within the authorized capital. In other words, if the debts of the Company to creditors and counterparties significantly exceed the actual value of the authorized capital and property owned by the Company, then the owner (founder) of such a Company has the right not to cover the difference in debt with personal funds or personal property.
• administrative(the responsibility of the founders for committing administrative offenses committed by them in the performance of duties related to the registration of the Company (violation of the law on advertising, intellectual property, carrying out activities without a license, etc.);
• subsidiary(responsibility in the form of additional punishment of persons on whom a penalty may be imposed on an equal footing with a debtor who is unable to pay off his debts on his own);
• criminal(responsibility of the founder (participants) of the Company for the deliberate conduct of dishonest business activities, the losses of which amount to more than 250,000 rubles).

Federal Law No. 08.02.1998 14-FZ "On Limited Liability Companies" determines that a member of the Company is liable in the amount of his share in the authorized capital of the Company, and is also liable for the debts and obligations of his Company only within the framework of the authorized capital he once paid. Thus, the material (property) liability of a member (founder) of the Company is valid only until the moment when the Company carries out its activities, even in a sluggish current way, but upon the fact of paying taxes and paying debts, the Company is considered to be operating. But if the Company is at the stage of bankruptcy or liquidation, and even worse, already in the process, the founders can be brought to a subsidiary type of liability, as well as to additional liability.

If several founders participated in the creation of the Society, then they have joint and several liability until the registration of the Society and only for the obligations associated with its establishment. Because, after the Society will be registered in the Unified state register legal entities (USRLE), all those participating in the establishment of this Society become its participants, and assume the responsibility provided for by the Charter of the Society and the current legislation of the Russian Federation. And as already mentioned a little higher, the members of the Society are liable only in the redistribution of their share in the authorized capital of this Society and the value of the property belonging to it. That is, if the share of a member of the Company is equal to three or five thousand rubles, then the liability of such a member will not exceed the specified amount.

The responsibility of the founder for the debts of a legal entity to the state is also spelled out in the law. Thus, according to Article 49 of the Tax Code of the Russian Federation, if the funds of a liquidated organization are not enough to fulfill in full the obligation to pay taxes and fees, penalties and fines, the remaining debt must be repaid by the participants of the said organization.

The possibility of paying off the obligations of the Company at the expense of the personal funds of the owner (participant, founder) is provided for by the Federal Law of October 26, 2002 No. 127-FZ “On Insolvency (Bankruptcy)”. According to the amendments made to the said Law on June 05, 2009 (the current version of the Federal Law), creditors have the right to hold the founder (member) of the Company, as well as other senior officials of the Company (general director, director, chief accountant, manager, etc.), under the following circumstances:

• the founder made a decision regarding the activities of the Company, the implementation of which caused losses to counterparties and creditors of this Company;
• the founder approved a decision, the execution of which caused the bankruptcy of the Company or affected its course;
• the founder (general director, chief accountant) did not ensure the appropriate maintenance and safety tax reporting and accounting documentation of the Company;
• the founder and/or director of the Company did not file an application for declaring the Company bankrupt to the arbitration court, in the presence of all relevant circumstances and signs for this.

If at least one of the above circumstances is present in the activities of the Company, the creditor or any other interested person has the right to demand repayment of the Company's debts at the expense of the personal funds of its founder (participants).

Property liability of the General Director (Director, Head) of the Company

In accordance with Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 30, 2013 No. 62 The General Director of the Company, like any other sole executive body of the Company, is liable with all his personal property to the Company, as well as to business owners. Now a lot of people pay attention to this wording.

In cases where the Company is managed by a hired general director (director), upon taking up his duties, such a hired manager assumes part of the financial risks. The responsibility of the sole executive body (general director, director, head) of the Company is provided for by Article 44 of Federal Law No. 14-FZ “On Limited Liability Companies”. In particular, the above law states that the head (director) of the Company is liable for losses caused to the Company by his guilty actions (or inaction). The property liability of the director for the debts of the Company arises if there are signs of guilty actions or such inaction:

• making a transaction to the detriment of the Company, made on the basis of the personal interests of the director;
• concealment of information about the essential details of the transaction being made or failure to obtain the approval of the participants, when such a need and obligation is provided for by the Company's charter documents;
• failure to take measures to verify the integrity of the counterparty under the transaction, no information was received about him, which could be important for the transaction being made, no information was received on the presence or absence of a license for the activities of the counterparty (contractor, etc.), if such confirmation is required by the nature transaction being made, etc.;
• making decisions on the transaction being made without due diligence, without verifying the information received;
• forgery, loss, theft of documents of the Company, etc.

In such situations, a member of the Company has the right to file a claim against such an unscrupulous manager for compensation for the damage caused to the Company. If the director can prove his innocence or non-involvement in certain actions, for example, by being able to prove that in the process of work he was limited by the orders or requirements of the owner (member) of the Company, as a result of which the activities of the Company led to losses, then liability is removed from him . The presence of unpaid debts of the Company to the budget or counterparties obliges the director (manager) of the Company to take all measures to pay them off.

Even if the head (general director, director) resigned due to own will or by decision of a member (founder) of the Company, or in cases where the member (founder) of the Company has completely sold it to a third party, the current director of such a Company, who has taken up his duties again, will be liable for the mistakes of the former director.

In accordance with the current legislation of the Russian Federation, administrative responsibility is borne by acting officials. In accordance with Art. 2.4 of the Code of Administrative Offenses of the Russian Federation, an official who has committed an administrative offense is subject to administrative liability in connection with the failure to perform (improper performance) of his official duties.

In the current legislation of the Russian Federation today, perhaps, there is no uniform definition of "official". The definition of an official given in criminal law (Article 285 of the Criminal Code of the Russian Federation) is not universal. And then it applies only to the acts provided for in Ch. 30 of the Criminal Code of the Russian Federation "Crimes against state power, interests public service and service in local governments. An official should be more understood as a person who permanently, temporarily or in accordance with special powers, performs organizational and administrative, managerial or administrative and economic functions in the Company.

Criminal liability of a participant (founder) for the debts of the Company

It is more difficult and longer to prosecute the founder for the debts of his Company than, for example, an individual entrepreneur, since the bankruptcy procedure for an LLC is a rather lengthy process. But since 2015, the tax authorities have had another tool to collect arrears and tax debts, by initiating a criminal case against the guilty person under Article 199 of the Criminal Code of the Russian Federation. Supreme Court The Russian Federation, in its ruling dated January 27, 2015 No. 81-KG14-19, held the director and sole founder of the Company liable for non-payment of tax (VAT) on a large scale and confirmed the legality of recovering from an individual (the founder of the Company) damage to the state in the amount of the unpaid amount of tax. This definition of the Supreme Court of the Russian Federation has become a judicial precedent, after which all similar or similar cases are considered easier and faster. Only the founder (participant) of the Company guilty of such actions, in addition to the main obligation assigned to him to pay the debt, also receives a criminal record.

The legislation of the Russian Federation provides for criminal liability of the founder (participants) of the Company for illegal actions in relation to its activities. In practice, in 2016, proving illegal actions of founders (participants) of Limited Liability Companies was the most common case in which the owner received criminal penalty. These include:

• concealment of the Company's property, falsification of information about its actual value;
• illegal disposal of property (property) of the Company;
• unlawful repayment of material claims of the Company's creditors;
• satisfaction of property claims from debtors in a financially inadequate amount.

Article 179 of the Criminal Code of the Russian Federation provides for the possibility of bringing the founder of the Company to criminal liability if his actions contained coercion to conclude a transaction (or refuse), which subsequently directly or indirectly affected the infliction of losses on the Company.

The founder, if proven guilty, may face both a fine of up to 300,000 rubles, and imprisonment if, through his fault, losses are caused to the Company in the amount of more than 250 thousand rubles.

The criminal liability of the founder (participant) of the Company occurs if he initiated or committed actions that led to:

• evasion by the Company of taxes and fees established by the state;
• to abuse when issuing own valuable papers Society;
• to the illegal transfer of funds to foreign currency;
• to avoid paying customs duties.

Bringing the founder of the Company to criminal responsibility is carried out within the framework of the action proceedings. Both the creditor and the counterparty of the Company may act as a plaintiff in such proceedings.

Criminal liability of the sole executive body (director) for the debts of the Company

Criminal liability of the head (director) of the Company may occur in the following cases:

• coercion to make a transaction or refuse to make it (Article 179 of the Criminal Code of the Russian Federation);
• illegal receipt and disclosure of information constituting a commercial secret (Article 183 of the Criminal Code of the Russian Federation);
• abuse in the issuance of securities (Article 185 of the Criminal Code of the Russian Federation);
• non-return from abroad of funds in foreign currency and evasion of customs payments (Articles 193, 194 of the Criminal Code of the Russian Federation);
• illegal actions in bankruptcy, concealment of the Company's property, fictitious and deliberate bankruptcy (Articles 195-197 of the Criminal Code of the Russian Federation);
• evasion of taxes and fees (Articles 199, 199.1, 199.2 of the Criminal Code of the Russian Federation).

It will not be possible to avoid criminal and subsidiary liability by “leaving the game” for the director and founder of the Company. If the former founder (members) of the Company or former director(general director) committed a crime, then the punishment will fall on them.

As for the property liability of the director (general director) of the Company in practice in 2016, you can familiarize yourself with the Decision Arbitration Court Moscow District dated June 14, 2016 No. Ф05-7325/2016, according to which the former director of the Company must be brought to subsidiary liability for outstanding tax debts Society, and is obliged from his own pocket to compensate for the loss to the state.

Current conclusion

Often, many people have the opinion that only the head (director) and the chief accountant of the Company are subject to criminal liability. It's a delusion. According to Article 33 of the Criminal Code of the Russian Federation, accomplices - employees of the Company may also be held criminally liable. Most often, in addition to directors and chief accountants, the accused include business owners, participants (founders) of the Company, as well as financial and commercial directors, heads of departments, departments and other persons authorized to independent decisions, especially those related to the payment of certain works (services) included in the costs or decisions related to the amount of taxes paid.

Responsibility provided for by Article 199 of the Criminal Code of the Russian Federation for tax evasion and (or) fees may lie with the director of the Company and the chief accountant, who may be charged if they do not submit tax returns or other documents that must be submitted to tax authority in accordance with the requirements of the tax legislation of the Russian Federation. Of course, there are tax returns in the cases under the above article, so the investigators charge the participants and heads of firms, including chief accountants, with deliberate inclusion in tax return knowingly false information. The main evidence of the guilt of the suspects is the fact of filing such a declaration. And usually in criminal cases brought against directors of companies, the costs of which were included in such declarations, are called one-day firms. It is almost impossible for the owners and directors of such companies (one-day firms) to prove their non-involvement and lack of intention to evade paying taxes. In this case, the investigator will only have to process the case.

Article 199 of the Criminal Code of the Russian Federation provides for several types of liability, depending on the measure of the crime committed. The measure is determined by the severity of the crime committed and the presence of qualifying signs: a fine in the amount of 100,000 rubles. up to 500,000 rubles; a fine in the amount of wages or other income of the convicted person for a period of one to two years; forced labor for up to two years; arrest for up to six months; imprisonment for up to six years.

A person who has committed a crime for the first time under this article, as well as article 199.1 of the Criminal Code of the Russian Federation, shall be released from criminal liability if this person or the Company, the evasion of taxes and (or) fees from which is imputed to this person, has fully paid the amount of arrears and the corresponding penalties, as well as the amount of a fine in the amount determined in accordance with the Tax Code of the Russian Federation.

Responsibility of the LLC founder: what are the company participants responsible for 2018

Consider the main types of responsibility for the founder and director of an LLC in 2018.

The main types of responsibility for the founder and director of an LLC in 2018

What is the responsibility of the founder of an LLC? A novice businessman usually remembers and confidently names the following phrase: "an individual entrepreneur risks all his property, and the liability of the founders of an LLC is set only in the amount of a share in the authorized capital." The Civil Code (Article 87) does contain this statement, but it is only part of the general system of law. You can not be guided by one norm of the law, not taking into account the rest!

What is wrong with a novice entrepreneur? If things are going well in the LLC, then all the obligations of the company (debts to suppliers, partners or the budget) are repaid by its own funds. LLC is an independent legal entity: it takes loans, earns money, settles accounts with creditors, ... This continues as long as the LLC exists.

But if the company is declared bankrupt, then the situation immediately changes. The company's property is not enough to pay off debts, and comes (participants). This norm is established by Article 3 of the Federal Law of February 8, 1998 No. 14-FZ "On LLC". Subsidiary liability is not limited by the size of the authorized capital and must correspond to the amount of the debt to the creditor. And the founders brought to subsidiary liability are charged with the obligation to repay debts at their own expense.

It should be noted that subsidiary liability in the event of bankruptcy is not always brought to bear: the legislation provides for a number of conditions, which we describe in the article “Subsidiary liability of LLC founders”. The point is that the founder should not “let the flow” of an open company without thinking about who is responsible for its activities. Limited Liability of Founders in fact, it may turn out to be unlimited, and in case of an unfavorable outcome, the company's debts will have to be covered from its own pocket!

Consider the types of liability to which the founder can be held.

Joint and several liability

Joint liability, in contrast to subsidiary liability, implies the joint fulfillment of debt obligations. It does not matter which of the debtors and in what amount the debt is repaid. Occurs in the following cases:

1. At the stage before its state registration. These may be obligations to pay for consulting services, printing, etc.
2. Upon liquidation of the company. In accordance with Article 62 of the Civil Code of the Russian Federation, the founders (participants) of a legal entity are obliged to take actions at the expense of the company's property to liquidate it. If the property of the company is not enough, then the founders (participants) are obliged to complete the liquidation procedure jointly and severally at their own expense.
3. If the participants have not fully paid their shares in the authorized capital. In this case, joint and several liability arises for the obligations of the company within the value of the unpaid part of the contribution of each of the participants in the company (clause 1 of article 87 of the Civil Code of the Russian Federation, clause 1 of article 2 of the Federal Law of February 8, 1998 No. 14-FZ "On Limited Companies responsibility").

Criminal liability of the founder

The founder is considered a decision maker, that is, a manager. Therefore, his actions (or inaction) can be qualified as damaging the company or violating the law. Even if the founder did not directly manage the company, but acted through a hired director, he can be held criminally liable if there is evidence of guilt.

Occurs when the following articles of the Criminal Code of the Russian Federation are violated:

• Article 195 "Misconduct in Bankruptcy". The offenses of this article include concealment of property, failure to provide information about it, unlawful satisfaction of property claims of creditors, obstruction of the activities of an arbitration manager or temporary administration. Penalties under this article vary widely: from a fine of 100 thousand rubles. up to imprisonment for up to 3 years.
• Article 196 "Intentional bankruptcy". Deliberate bankruptcy is qualified if the founder has committed actions that knowingly lead to bankruptcy. Punishment - a fine of 200-500 thousand rubles, forced labor for up to 5 years or imprisonment for up to 6 years.
• Article 197 "Fictitious bankruptcy". If the founder makes a deliberately false declaration of bankruptcy, then he faces a fine of 100 to 300 thousand rubles, forced labor for up to 5 years, or imprisonment for up to 6 years.
• Article 199 "Evasion of taxes and fees from the organization." Under this article, the founder can be brought as an accomplice in a crime (the main defendants are the head of the company and Chief Accountant). Of course, the involvement of the entrepreneur must be proven.

From the above, it is clear What are the responsibilities of the LLC founder?, if he wishes to “bankrupt” his company without paying his creditors. If the liquidation of the company took place without bankruptcy proceedings, then there is nothing to hold the founder liable for.

Tax and administrative responsibility

The founder is not responsible for tax and administrative offenses committed by the company itself. Only officials guilty of offenses can be brought to such types of liability. At first glance, the director and the chief accountant are always to blame, who were hired on employment contract. It was their incompetence, negligence or criminal intent that led to the company's debts and losses.

However, any employee has the right to protection: he can prove in court that he was forced to limit his activities in accordance with the requirements or direct instructions of the owner. Then liability is removed, bankruptcy proceedings are initiated, after which subsidiary liability can be provided for the owner.

Naturally, tax and administrative liability is possible when the founder and director are the same person. If the owner himself has entrusted the functions of the sole executive body, then he personally bears all types of responsibility.