Changes: January, 2019

Responsibility of the founder for the activities of the LLC- one of the aspects that is often named among the advantages of choosing this legal form in comparison with sole proprietorship. Founders, by general rule not liable for debts legal entity, while individual entrepreneurs bear full responsibility for their business. Everything seemed to be obvious. However, in recent years, the founders (participants) of an LLC are increasingly transferring debts that were formed during the period of the company's activities and which cannot be repaid at the expense of its property and funds.

The LLC cannot pay - the owners of the enterprise are held liable first of all. This right is expressly granted to creditors by statutory provisions that are subject to exceptions to general position on the absence of liability of the founders (participants) for the obligations of the legal entity.

Holding the founders (participants) of legal entities liable as a modern trend

The issue of the need to tighten the requirements and responsibility of the founders (participants) of commercial legal entities became particularly relevant in the late 2000s. The mass emergence of one-day firms, the registration of companies under nominees, the active use of various schemes alternative liquidation, falsification of reporting and information in the Unified State Register of Legal Entities - all this entailed serious losses for creditors. At the same time, the bankruptcy of enterprises became a very good option for the owners, which led both to the liquidation of the company with debts and to the cancellation of any outstanding debts. Despite the existence of provisions in the Civil Code of the Russian Federation and other laws that allow the founders (participants) of legal entities to be held vicariously liable, these rules have rarely been applied in judicial practice.

In 2010, the criminal law was tightened. Bankruptcy laws have also changed. Subsequently, some changes in terms of the responsibility of the founders were made to special laws relating to the activities of certain forms of legal entities.

In total, today the founder (participant) of an LLC can be attracted:

1. To subsidiary liability for the debts of the company that arose as a result of actions (inaction) of the persons controlling the debtor and led to its bankruptcy, in case of insufficient property of the LLC to cover all debts.
2. To criminal liability - if the actions (inaction) of the founder (participant) contain corpus delicti (we are talking, first of all, about crimes in the field of economic activity).
3. To administrative responsibility, including tax, which is relevant mainly for cases of combining the status of a participant and head of an LLC.

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Features of responsibility

The liability of the founders (participants) of an LLC differs by type and grounds for occurrence. But in any case, none of the owners is immune from financial and other claims related to the company's activities.

The main feature of the founder's liability is that it is possible only if there are certain actions (inaction) that directly led to negative consequences (bankruptcy), or contain the composition of an administrative or criminal offense. Responsibility does not in itself follow from the status of the founder. And in this case, the provision that the LLC is responsible for all its obligations on its own directly applies.

It should distinguish between the responsibility of the founder and the participant of the LLC. The first is the one who created the company and subsequently became a member of it or did not become, for example, without paying his share or leaving the LLC in the course of its activities. Participants are former or current owners (owners) of shares, who by no means always stood at the origins of the company. Despite the difference in statuses, this does not particularly affect responsibility, but it is taken into account when analyzing its grounds and limits.

General liability of the LLC founder: within the authorized capital

The fundamental provisions on the liability of the founders (participants) of an LLC are given in the LLC Law, according to which:

• founders are obliged within due date pay your share in accordance with the foundation agreement;
• participants who have paid their share in full are liable for the losses of the company solely within the limits of their share;
• participants who paid the share in part are jointly and severally liable for the obligations of the LLC within the unpaid amount of the share;
• the charter of an LLC or a unanimous decision of all participants may provide for additional obligations;
• additional responsibilities can only be assigned to a certain member of the company, which is decided by 2/3 of the votes, subject to voting for such a decision by the member himself or giving his written consent.

Subsidiary liability of the founder (participant)

The possibility of bringing an LLC participant to subsidiary (additional) liability for the obligations of the company, as a rule, is considered in cases of bankruptcy, moreover, when the decision on this has already been made by the arbitration court, and the debtor's assets are not enough to pay off all the debts of the LLC.

The Bankruptcy Law does not consider subsidiary liability only in relation to LLC participants - we are talking about all persons controlling the debtor. These include any persons who, during the last 3 years prior to the adoption of the bankruptcy petition by arbitration, could give instructions binding on the LLC or otherwise determine the actions of the company. The law expressly recognizes as persons controlling the debtor, a participant in an LLC who owns more than 50% of the shares in the capital of the company, and the head of the company.

For vicarious liability to occur, 4 conditions are necessary:

1. Declaring an LLC bankrupt.
2. Recognition of the founder (participant) as the controlling person of the debtor.
3. The presence of such actions of the founder (participant) or inaction that led to bankruptcy.
4. Adoption by the court of a decision on bringing to subsidiary liability.

The presence of a causal relationship between the actions (inaction) of the participant and the bankruptcy of the LLC is recognized by default if there is at least one of the following circumstances:

• a participant, with his approval or in his favor, has made a transaction (transactions) that caused damage to the property rights of creditors;
• the participant was responsible for the maintenance (compilation, storage) accounting(reporting), and by the time the monitoring is introduced into the LLC or the company is declared bankrupt, there are no accounting documents, the information required to be reflected is missing or distorted, which seriously complicates the procedures related to bankruptcy;
• the participant was the head of the LLC, during the period of his activity in this status, he or the company was brought to criminal (administrative, tax) liability, and as a result of the offense and the sanctions applied, a debt was formed related to the claims of creditors of the 3rd priority, which, as of the date of closing the register creditors' claims exceed 50% of all claims of this queue (only the principal debt is taken into account, without penalties and other things).

The presence of these circumstances does not require evidence from the person who intends to bring the LLC participant to subsidiary liability. The burden of proof to the contrary lies with the defendant. In addition, he may try to prove his absence of guilt in the bankruptcy of the enterprise, as well as the absence of other circumstances that give grounds and create conditions for bringing to subsidiary liability.

Limits of vicarious liability- all claims of creditors included in the register, declared after its closure and arising from current payments in the course of the bankruptcy procedure, which cannot be repaid at the expense of the property of the LLC, including as a result of the sale as part of bankruptcy proceedings. When considering a claim related to bringing to responsibility, the amount of liability may be reduced by the court in comparison with the stated requirements. For example, this is possible if the defendant can prove that the harm (damage) caused by his actions (inaction) is less than the amount that the plaintiff requires to recover.

Bringing to subsidiary liability may occur as part of bankruptcy proceedings or after the completion of all procedures and the liquidation of the company. In the first case, the collected funds are included in the bankruptcy estate. In the second, each claim is filed and considered individually, and the amount recovered, respectively, is due to a specific claimant. In fact, the general procedure for recovery, including forced recovery, will be applied here.

Recovery within the framework of subsidiary liability is carried out at the expense of the founder's personal assets, if he is an individual, or the assets of a legal entity, which may also be a member of an LLC.

In case of insufficiency of property or insolvency of the founder, he, if there are grounds, has the right to apply for bankruptcy - just like the LLC, of ​​which he is or was a participant.

Bankruptcy of the LLC founder- an independent process, but it can take place in parallel and overlap with the bankruptcy of an LLC. If, as a result of the declaration of insolvency, the debts arising from vicarious liability remain outstanding, they will be canceled.

Administrative and criminal liability

The founders (participants) of an LLC are brought to administrative and criminal liability quite rarely, in isolated cases. This requires a clear set of offenses:

• concrete illegal actions(inaction), entailing criminal (administrative, tax) punishment;
• assignment by law of the founder (participant) to the subject of a specific offense;
• fault of the founder (participant);
• violation of the rights (interests) of third parties, damage, other negative consequences, as well as their causal relationship with the actions (inaction) of the person held liable.

In most cases, the administrative or criminal liability of an LLC participant is associated with his/her managerial status in the company. It often arises due to falsification of documents, reports, provision of false information to the tax and other government agencies, due to illegal transactions, non-payment, tax evasion and other obligatory payments, financial violations, etc.

Bringing to administrative or criminal liability may occur at the initiative (application) of any interested person. Often these offenses are found law enforcement independently within the framework of operational-search activities. Sometimes tax and other regulatory authorities apply with an application.

Other types of liability of the LLC founder

The founders (participants) of an LLC have rights and obligations established by law and statutory documents. Abuse of rights, failure to perform or improper performance of duties may result in harm, violation of the rights and interests of the LLC, other participants and third parties. In these cases, liability is also possible. Any person, even the company itself, as an independent legal entity, has the right to bring a claim against the founder. As a rule, such issues initially fall into the category of corporate disputes, and damages are collected in the usual manner - within the framework of lawsuit proceedings in an arbitration court.

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The issue of responsibility of the founder of an LLC for the results of the enterprise's activities is very relevant in the modern financial and legal environment.

We will talk about the legal obligations of a shareholder of an LLC in our article.

The concept of the founder of LLC

The process of operation of such an organizational and legal form of management as an LLC is regulated by the relevant Federal Law, namely the Law “On Companies with limited liability» dated 08.02.1998 N 14-FZ.

According to the current version of 2019, the founder (founder) of an LLC is a person who:

• approves the charter of the organization;
• establishes (contributes its part) to the authorized capital;
• determines the management of the enterprise and its controllers;
• has the right to vote when deciding on the activities of the company.

The law provides that the founder of a company can be both a legal entity and a individual(face). Both a citizen of the Russian Federation and a non-resident have the right to establish an LLC.

Restrictions on the establishment of an LLC exist for military personnel, deputies and other officials state power.

Liability within the authorized capital

The conditions under which the founder of an LLC is liable for the obligations of the organization are described in the Law of February 8, 1998 N 14-FZ, as well as in the Civil Code of the Russian Federation.

Thus, article 1 of this code provides that in the event of liquidation or bankruptcy of an organization, the shareholder of an LLC is liable solely with the property and assets of this organization.

That is, in the event of a financial collapse of an enterprise, when the company's debts to creditors and counterparties exceed the actual value of the authorized capital and all property (both movable and immovable), the owner of such an enterprise has the right by law not to cover the difference in debt with personal funds or property.

The risk of losing bank assets, real estate, a car and other personal possessions of a shareholder is virtually absent.

This legislative norm is confirmed by the Civil Code of the Russian Federation. Thus, according to Article 56 of the Civil Code of the Russian Federation, it is the LLC, and not its owners, that is liable for its obligations independently as a separate economic unit.

This rule is recognized as fair, because the Civil Code also determines that the company is not liable for the debts of its shareholders.

Subsidiary Liability

It is important to note that the legislative practice still provides for cases when the founder (founders) are financially responsible for the results of the activities of the LLC.

In 2018, cases of recovery of the company's debts from the equity holder became more frequent.

The opportunity to collect from the owner a debt exceeding the property of the LLC and its authorized capital arises when the company goes bankrupt.

In this situation, the concept of subsidiary liability comes into force, namely, additional obligations of the head, who is liable for the debts of the debtor organization in the manner prescribed by law.

The possibility of repaying the obligations of an LLC at the expense of the equity holder's personal funds is provided for by the Law "On Insolvency (Bankruptcy)" of October 26, 2002 N 127-FZ.

According to the amendments to the Law dated 05.06.2009, creditors can attract liability the founder of the company, as well as senior officials of the organization (head, chief accountant, manager and others).

This is possible if one of the following circumstances took place during the bankruptcy of the LLC:

• the founder made a decision regarding the activities of the company, the implementation of which caused losses to counterparties and creditors;
• the founder approved the decision, the implementation of which affected the bankruptcy of the organization;
• the founder (director, accountant) did not ensure the appropriate maintenance and safety of tax reporting and accounting documentation;
• the management of the company (founder, director) did not file a court of Arbitration an application for recognition of its own financial insolvency, subject to the presence of all relevant circumstances for this.

If one of the above conditions took place, the creditor or any other interested person has the right to demand repayment of the LLC's debts at the expense of the founder's personal funds.

To do this, it is necessary to file a statement of claim with the court, to which all available documentary evidence of the owner's guilt must be attached.

If applications are sent as part of a bankruptcy case, then it is considered by the arbitration court.

If the LLC is officially declared bankrupt, and the plaintiff is the creditor, then the decision to collect the debt is considered by the court general jurisdiction. In the latter case, the founder acts directly as a defendant as an individual.

Upon the execution of the court proceedings, a decision is made whether the actions of the founder were guilty or not. If guilt is proven, the court obliges the defendant to satisfy the material claims of creditors and counterparties at the expense of personal funds, and if they are insufficient, with their own property.

Criminal liability

The legislation provides for criminal liability of the founder (founders) for illegal actions in relation to the activities of the Limited Liability Company.

In the financial and legal practice of 2018, proof of the wrongful actions of the founder was the most common case in which the owner received a criminal punishment.

Such actions include:

• concealment of the company's property and falsification of information about its value;
• illegal disposal of the property of the organization;
• unlawful repayment of material claims of creditors;
• financially inadequate satisfaction of property claims from debtors.

The owner is threatened with imprisonment if, through his fault, losses to the society in the amount of more than 250 thousand rubles are caused.

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

Don't forget the common legislative norms, the violation of which entails criminal punishment not only for the shareholder, but also for the highest officials of the organization. Thus, criminal liability occurs if the founder initiated or performed actions that led to:

• evasion of payment by the enterprise of nationwide taxes and fees;
• abuse in issuing own valuable papers organizations;
• illegal transfer of funds in foreign currency and, as a result, evasion of customs duties.

Bringing the shareholder to criminal responsibility is carried out within the framework of the action proceedings. The initiator of the application may be creditors and counterparties.

If the applicant for damages is the company itself, then its interests in court are represented by the manager who has passed the competitive selection procedure. In the event that a company is officially declared bankrupt, a bankruptcy creditor acts on its behalf.

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If one of the founders of the organization goes into bankruptcy of an individual, can this somehow affect the organization where he was previously the founder, can any transactions be declared invalid, or will they be withdrawn from the organization in any way cash, property, receivables, etc.? The founder is not the only one, a share in authorized capital divided equally among three. What can ultimately threaten the organization if one of the founders goes bankrupt as an individual?? But on the date of bankruptcy, the founder in this organization is no longer.

The bankruptcy of the founder does not pose a danger to the organization.

A legal entity is not liable for the obligations of its founder (participant) or owner. This is expressly stated in paragraph 2 of Art. 56 of the Civil Code of the Russian Federation. Everything that belongs to the company, its property and funds, belongs to the organization, and cannot be collected for the debts of the founder.

Therefore, even in the event of financial problems of the founder, the property and funds of the organization will not be alienated for the debts of the founder.

But the penalty can be levied on the share of the founder - after all, the share in the authorized capital of the company is his property. This is only possible if there are several founders of the LLC. Foreclosure on a share in an LLC is possible on the basis of a court decision. Then the company will have to pay the founder (his creditors) the actual value of the share of the founder-debtor (Article 25 of the LLC Law), see How to calculate the cost of the share of the participant, which must be paid upon his withdrawal from the LLC. The share itself will then become the property of the LLC and must be distributed among the other founders, sold or redeemed.

The transactions of the organization will not be invalidated, even if they were approved by the founder - bankrupt, if there are no other grounds for invalidating them.

A transaction that:

• violates the requirements of a law or other legal act ();
• committed with a purpose contrary to the foundations of law and order or morality ();
• committed only for the sake of appearance without the intention to create appropriate legal consequences (sham transaction) (clause 1, article 170 of the Civil Code of the Russian Federation);
• made in order to cover up another transaction (sham transaction) (clause 2, article 170 of the Civil Code of the Russian Federation);
• committed in contradiction with the objectives of the legal entity ();
• committed in excess of authority (clause 1, article 174 of the Civil Code of the Russian Federation);
• intentionally causes damage to a legal entity (clause 2, article 174 of the Civil Code of the Russian Federation);
• committed under the influence of delusion or deceit (Article and Civil Code of the Russian Federation);
• committed in violation of corporate procedures (clause 6, article 79, clause 1, article 84 federal law dated December 26, 1995 No. 208-FZ “On joint-stock companies»; paragraph 5 of Art. 45, paragraph 5 of Art. 46 of the Federal Law of February 8, 1998 No. 14-FZ "On Limited Liability Companies").

If none of these grounds arose during the conclusion of the transaction, the interested person will not be able to recognize it as invalid.

Rationale

From the situation of Sergei Razgulin, Acting State Councilor of the Russian Federation, 3rd class

Do the founders (participants, shareholders) need to pay off tax debts (penalties, fines) if the liquidated organization cannot pay the budget on its own

The answer to this question depends on whether the founders (participants, shareholders) are liable for the debts of the organization.

If the liquidated organization cannot fully pay taxes (penalties, fines), then the remaining debt is repaid by the founders (participants, shareholders) in the manner established by law Russia (clause 2, article 49 of the Tax Code of the Russian Federation). However, the norm of paragraph 2 of Article 49 of the Tax Code of the Russian Federation applies only to founders (participants, shareholders) who bear subsidiary liability for the debts of the organization (paragraph 15 of the decision of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated June 11, 1999 No. 41/9). That is, those founders (participants, shareholders) who will have to satisfy the requirements of creditors if the organization itself, as the main debtor, cannot do this (clause 1, article 399 of the Civil Code of the Russian Federation).

The answer to the question whether the founders (participants, shareholders) bear subsidiary liability or not depends on the legal form of the organization they founded. So, for example, the founders (participants) of an LLC are not liable for the obligations of the organization (clause 1, article 87 of the Civil Code of the Russian Federation). A similar rule is also provided for the founders (shareholders) of a JSC (clause 1, article 96 of the Civil Code of the Russian Federation). However, the founders (participants, shareholders) may be held subsidiary liable for paying taxes if they are guilty of the insolvency (bankruptcy) of the organization (clause 3, article 3 of the Law of February 8, 1998 No. 14-FZ, clause 3 of Art. 3 of the Law of December 26, 1995 No. 208-FZ).

Owners of a private non-profit organization, as well as participants in a simple partnership and an additional liability company, bear subsidiary liability in any case (clause 2 of article 120, clause 1 of article 75, clause 1 of article 95 of the Civil Code of the Russian Federation).

If the founders (participants, shareholders) cannot be obliged to pay taxes, and the organization has a debt to the budget, the following procedure applies. If the property of an organization is not sufficient to satisfy the claims of creditors, it may be liquidated only in the manner prescribed by Civil Code RF (declaration of insolvency (bankruptcy)) (). In this case, the tax arrears (penalties, fines), the collection of which is impossible, is recognized as uncollectible and written off (

3. The founder (participant) of a legal entity or the owner of its property shall not be liable for the obligations of the legal entity, and the legal entity shall not be liable for the obligations of the founder (participant) or owner, except for the cases provided for by this Code or founding documents legal entity.

If the insolvency (bankruptcy) of a legal entity is caused by the founders (participants), the owner of the property of the legal entity or other persons who have the right to give instructions obligatory for this legal entity or otherwise have the ability to determine its actions, such persons in case of insufficiency of the property of the legal entity may be liable for its obligations.

Law of February 8, 1998 No. 14-FZ “On Limited Liability Companies”

“Article 25

1. Foreclosure at the request of creditors on the share or part of the share of a company participant in the authorized capital of the company for the debts of the company participant is allowed only on the basis of a court decision if other property of the company participant is insufficient to cover the debts of the company participant.

Foreclosure on the share or part of the share of a company participant in the authorized capital of the company is allowed out of court on the basis of a pledge agreement containing a condition on the possible extrajudicial foreclosure of pledged property.

2. In the event of foreclosure on the share or part of the share of a company participant in the authorized capital of the company for the debts of the company participant, the company has the right to pay creditors the actual value of the share or part of the share of the company participant.

By decision general meeting members of the company, accepted by all the members of the company unanimously, the actual value of the share or part of the share of the member of the company whose property is foreclosed may be paid to creditors by the other members of the company in proportion to their shares in the charter capital of the company, unless another procedure for determining the amount of payment is provided by the charter of the company or decision of the general meeting of participants of the company *.

The actual value of the share or part of the share of a company member in the authorized capital of the company is determined on the basis of data financial statements company for the last reporting period preceding the date of filing a claim against the company to levy execution on the share or part of the share of the company's participant for its debts.

The provisions of this paragraph do not apply to companies with one participant*”.