Subsidiary liability of the beneficiary: unlimited liability and eternal debt

Responsibility of top management who resorted to fly-by-night schemes or withdrawing assets before bankruptcy — on the example of Tatarstan practice. In a new blog for " BUSINESS Online» from Yulia Zazdravnaya and Guzel Valeeva, partners of ANP Zenit, you will learn that the world will never be the same again: since June 2017, even after the completion of bankruptcy, creditors can make claims against the actual owners guilty of the company’s insolvency.

COMPANY WITH UNLIMITED LIABILITY

Subsidiary liability is the liability of controlling persons for the company's debts (if the latter's property is insufficient). In recent years, it is not perceived by entrepreneurs as something out of the ordinary, like stories or horror stories for the especially impressionable. Many have general idea about how it works.

Of course, according to statistics, in most cases, controlling persons manage to avoid subsidiary liability. For example, in 2016, the Arbitration Court of the Republic of Tatarstan satisfied only 7 out of 24 applications for vicarious liability (according to the data of the unified federal resource of information about bankruptcies).

However, bankruptcy laws are not standing still. Serious amendments blocking many ways to avoid subsidiary liability were introduced at the end of 2016.

The article will be useful both to creditors (who may discover new debt collection tools) and debtors (including potential ones).

So, let's talk about the latest trends in the legislation and practice of applying subsidiary liability.

GROUNDS FOR SUBSIDIARY LIABILITY

Actually, there are two grounds for bringing to subsidiary liability in the bankruptcy law:

— failure to file (late filing) of an application for bankruptcy;

- the presence of a connection between the actions (inaction) of the controlling person and the bankruptcy of the company.

For a long time, the provisions on subsidiary liability did not work precisely because of the difficulty of proving such a connection. But since 2013, the presumption of guilt has been introduced.

It is now assumed that the responsible person will be found guilty of the bankruptcy of the company in the following cases.

1. Damage has been caused to the property rights of creditors as a result of transactions made by this person (or upon approval by this person).
The following examples of actions of debtors are especially eloquent:

- work with one-day firms; for example, former managers of the Chelny company Fatiha were brought to subsidiary liability in the amount of more than 15 million rubles for communication with ephemeral companies (decree of the AS PO dated November 22, 2016 in case No. A65-7420 / 2014);

- withdrawal of assets before bankruptcy; the head of another Chelny company, Leks, paid subsidiary liability in the amount of about 4 million rubles just for the withdrawal of assets (without payment from buyers) shortly before bankruptcy (decree of the AS PO of 04/07/2016 in case No. A65-17893 / 2014);

- transferring activities to a clone company (we already wrote about other negative consequences of such actions in the article);

2. The documents accounting and reporting are missing or contain incomplete information about the property and obligations of the debtor, or are distorted.

At present, the failure of the head of the debtor to fulfill the obligation to transfer documents, seals, stamps (as well as the distortion of data in documents) is one of the most common grounds for bringing to subsidiary liability.

For example, the head of the Kazan company "RusBauerStroy" was brought to subsidiary liability in the amount of more than 148 million rubles (together with the founder) just for failure to fulfill this obligation (Resolution of the AS PO of May 17, 2016 No. A65-6411 / 2011).

3. New. More than 50% of all claims arose as a result of an offense (tax, administrative, criminal) that was committed during the work of the director (according to applications for bringing to subsidiary liability filed after 09/01/2016).

It is noteworthy that the last norm has already earned.

Thus, in the case of the Dataport Systems company, the court of first instance did not see grounds for subsidiary liability (“due to the impossibility of making an unambiguous conclusion about the fault of the founders”). However, the appeal considering the case on 10/13/2016 (that is, after the amendments came into force) sent it for a new trial. The judges, among other things, noted that more than 50% (53.7 million out of 88 million rubles) of the claims relate to additional assessments for an on-site tax audit (decree 9 of the AAC of 1310.2016 in case No. A40-97946 / 2016).

Although in this particular case the application of the new norm, in our opinion, is illegal (since the application for bringing to subsidiary liability was submitted before 09/01/2016), something else is important - the tax authorities know about this norm and will not forget to use it.

To prove the absence of guilt in the above cases is the duty of the person brought to subsidiary liability.

WHO IS RISKING?

Contrary to popular belief, not only the head and founder, information about which is contained in the Unified State Register of Legal Entities, is at risk of being brought to subsidiary liability.

In bankruptcy, there is a special concept - "controlling the debtor person." This is a person who has or had, prior to the adoption by the Arbitration Court of an application for declaring the debtor bankrupt, the right to give instructions binding on the debtor or the opportunity to otherwise determine his actions. Including by forcing the head or members of the governing bodies to them.

In other words, this is the one who actually managed the debtor company (albeit not legally connected with the company) and could bring it to bankruptcy.

From September 1, 2016, the minimum period of influence of a controlling person has been increased from two to three years. At the same time, it is clarified that persons who influenced the company through family, inherent ties or through their official position can be recognized as controlling.

What conclusions follow from this?

Conclusion 1. The appointment of a nominee director/founder does not guarantee protection from subsidiary liability. After all, there is always a risk that, in the event of a threat of personal liability, the face value will point to the real owner of the business. Not the last role is played by the testimony of witnesses (obtained, for example, in the course of operational-search activities).

Conclusion 2. Change officials of the company allows shifting responsibility to the new head from the moment changes are made to the Unified State Register of Legal Entities, but does not relieve the real managers / founders from liability for actions committed during their leadership.

Conclusion 3. The so-called "alternative" liquidation (when the debtor joins a fly-by-night company together with a dozen of the same companies) also does not save from liability. In this case, creditors can use the simplified procedure for declaring an absent debtor bankrupt and bring former managers and owners of the company to subsidiary liability.

FORA FTS

The position of the tax authorities in bankruptcy cases is strengthening from year to year, and along with the banks, the Federal Tax Service is turning into a serious and dangerous opponent.

In addition to the introduced presumption of guilt in case of tax offenses, which we have already mentioned, since September 2016 tax authorities have an additional 6 months to enter bankruptcy. We are talking about a situation where a decision on verification has not been made or has not entered into force (paragraph 4 of article 142 of the bankruptcy law). The innovation is designed to eliminate situations where accelerated bankruptcy is used to avoid tax liabilities.

Do not underestimate the huge information resources of the tax authority, which have virtually unlimited access to banking, tax, accounting and other information.

Internal guidelines instruct the inspectorate to monitor the movement of assets, collect documents to challenge transactions, to bring to subsidiary liability (including information about the real beneficiaries and their assets) even at the stage of an on-site tax audit.

The legality of the use of materials obtained as part of the tax control measures of the debtor or his counterparty is confirmed by judicial practice.

For example, in the case included in paragraph 13 of the review of the Supreme Court of the Russian Federation dated 12/20/2016, the tax authorities managed to reject the inclusion in the register of one of the debtor's creditors. As evidence of the debt, the creditor presented to the court consignment notes for the delivery of goods and a reconciliation report signed by the debtor. However, there was no information about the completed transaction in the accounting and tax accounting and reporting of the debtor. In addition, there was no information about warehousing, storage conditions, transportation and acceptance by the debtor. The purpose of the acquisition by the debtor of the disputed goods was also unclear, based on the types of activities actually carried out by him. All this made it possible to convince the court that the purpose of the controversial transaction was to create an artificial debt.

In addition, the tax authority, like banks, initiates bankruptcy without the obligatory "leakage" of the debt (that is, inspection of the effective decision of the tax authority is enough).

All this requires taxpayers (especially in a pre-bankruptcy and bankruptcy state) to pay even more attention to their tax liabilities.

FAILURE TO FILE FOR BANKRUPTCY

If signs of insolvency appear, the head must, within a month, apply to the Arbitration Court with an application to declare the company bankrupt.

Failure to fulfill this obligation is another good reason for vicarious liability. It is understandable: the composition is formal, the guilt of the leader in this case does not need to be proven.

Nevertheless, there are some nuances here:

1) on this basis, only the head of the debtor may be involved;

2) when determining the amount of subsidiary liability, only those claims that arose after the expiration of the period for filing a bankruptcy petition are taken into account.

For example, for tax payments, the moment when an obligation arises is recognized as the moment of the end of the tax (reporting) period, and not the expiration of the payment deadlines (determination of the Supreme Court of the Russian Federation of March 31, 2016 in case No. A50-4524 / 2013).

That is why determining the date when the obligation to file for bankruptcy arose is of fundamental importance. It should be noted that the presence of debt for more than three months with a positive balance sheet (when assets exceed liabilities) does not yet indicate insolvency and does not entail an obligation to file for bankruptcy. And it's not entirely clear. In that case, what then can entail this duty?

At the same time, the Supreme Court directs the courts to assess the behavior of the director through the prism of customs. business turnover and standards of management practice, using the criteria of good faith and reasonableness.

In the case included in paragraph 26 of the review of the Supreme Court of the Russian Federation dated 12/20/2016, challenging the decision of the tax authority (including due to the lack of uniformity in the application of tax legislation) made it possible to avoid subsidiary liability for untimely actions to initiate bankruptcy.

WAIT WILL NOT WORK

We think it's no secret to anyone that now you can simply "abandon" the company and in a year get the company's forced exclusion from the Unified State Register of Legal Entities (no bankruptcy costs - beauty!). By the way, the Federal Tax Service excludes a company from the Unified State Register of Legal Entities if no reporting is provided within 12 months and there are no movements on current accounts.

In practice, there were cases when the tax authorities excluded even bankrupt companies from the Unified State Register of Legal Entities. The courts in this case were forced to close the bankruptcy case, leaving the creditors with nothing.

But at the end of 2016, amendments were adopted to close the loophole for avoiding debts through an accelerated exclusion from the Unified State Register of Legal Entities (not without the help of tax connections, very often).

In particular, from June 28, 2017, it is not allowed to exclude an inactive legal entity from the Unified State Register of Legal Entities if there is an application for declaring the debtor bankrupt in relation to it, accepted by the Arbitration Court. Provided that the proceedings have not been terminated.

Moreover, persons controlling the company (forced deregistration) for last three years, will be able to bring to subsidiary liability if the company has unfulfilled obligations due to unfair and unreasonable actions of these controlling persons.

In other words, now you will have to wait not a year, but four.

"SUBSIDIARY" OUT OF BANKRUPTCY

Actually, the admissibility of collecting tax debts through subsidiary liability outside bankruptcy was recognized by the Supreme Court of the Russian Federation back in 2014 (review judicial practice of the Supreme Court of the Russian Federation dated 04.06.2014 for the fourth quarter of 2013).

We are talking specifically about tax debts in the case when the head did not file a bankruptcy petition in a timely manner, and bankruptcy proceedings were not initiated or were terminated due to lack of funds for bankruptcy.

Entrepreneurial tax authorities then go to court general jurisdiction and bring the director to subsidiary liability. And such cases are not uncommon.

Now this possibility (not only in relation to tax debts) is enshrined in law.

"SUBSIDIARY" AFTER BANKRUPTCY

The “no company, no problems” approach will stop working as early as the summer of 2017.

So, from June 28, 2017, in the absence of other ways to collect a debt at the expense of a legal entity (for example, upon completion of bankruptcy proceedings or termination of a bankruptcy case due to insufficient property to finance bankruptcy), creditors will be able to directly file claims against the controlling persons of the debtor who are guilty in the insolvency of a legal entity.

Creditors will be able to do this within three years from the moment the debtor is declared bankrupt (missed by good reasons period can be restored). But there are two conditions:

a) 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;

b) a similar claim for the same persons was not presented and was not considered in the framework of the bankruptcy case.

Such an application will be filed by way of a class action; the initiators of the application will have to look for those who could join it. To do this, the latter will have the right to familiarize himself with the materials of the bankruptcy case.

Practical implementation of this opportunity so far causes more questions than answers. However, the very adoption of such amendments is significant. As they say, this world will never be the same again.

YOUR MANAGER WILL NOT HELP

To begin with, it is worth noting that since January 2015, the debtor has lost the right to nominate an arbitration manager. You can create artificial debt and bring "your" creditors into bankruptcy, you say, but we have already mentioned the limitations of this campaign.

In addition, the arbitration manager is not the only one who can apply for subsidiary liability. The Federal Tax Service, a bankruptcy creditor, an employee (including a former one) can file an application for bringing controlling persons to subsidiary liability.

Moreover, the committee of creditors and individual creditors can remove the bankruptcy trustee if the latter performs his duties in bad faith - for example, for being passive in challenging the debtor's transactions.

And finally, for a year now there has been a rule on the disqualification of the manager for any repeated violation (part 3.1 of article 14.13 of the Code of Administrative Offenses). The first such decision was made in respect of an arbitration manager from Tatarstan.

The reason for the disqualification of the manager for six months was that he posted a bankruptcy announcement four days late, did not indicate his insurance account number and postal address in it, and did not publish another announcement at all. At the same time, the courts took into account that the manager had already been held liable under this article of the Code of Administrative Offenses. The arguments of the manager about the insignificance and technical nature of the violations did not convince the courts (decree 11 of the AAC of 09/06/2016 in case No. A65-7055 / 2016).

According to the Federal Tax Service, as of mid-February 2017, 12 arbitration managers have already been disqualified for a period of 6 months to a year.

ETERNAL DUTY

But bringing the controlling person to subsidiary liability is only half the battle. Now the collection of a debt from a controlling person often ends with the fact that such claims are put up at auction, where they are bought by persons affiliated with the debtor for next to nothing, or even without bidding at all.

For example, the meeting of creditors of the Chelny company "RusKhimenergo" decided to sell the debt on subsidiary liability in the amount of more than 3.6 million rubles for 15 thousand rubles (the "market" price according to the appraiser's report). But the bankruptcy trustee and the Federal Tax Service provided the court with information on the possession of property by the controlling person, at the expense of which it is possible to recover the disputed debt ( vehicle, real estate). The forensic examination showed a completely different market value debt, and the court invalidated the decision of the creditors (decree of the AS PO dated October 27, 2016 in case No. A65-6419 / 2014).

According to the new rules, claims against the controlling person will be distributed proportionally among creditors, indicating the share of each. Thus, creditors will receive independent rights.

The next aspect should not be overlooked. In the event that the debt under subsidiary liability exceeds 500 thousand rubles and is not repaid within three months, creditors can apply for bankruptcy of the controlling person itself.

As part of this procedure, it is possible to challenge transactions for the alienation of property (including property donation agreements, marriage contracts) concluded three years before filing a bankruptcy petition. Moreover, a draft law is currently being discussed, allowing to sell even the only housing of the debtor, if its area exceeds the established norms.

But, probably, the most negative (and, as a rule, unexpected) for a person brought to subsidiary liability is that, according to paragraph 6 of Art. 213.28 of the Law "On Insolvency (Bankruptcy)", such a debt is not repaid if the bankrupt's property is insufficient. In other words, it is impossible to get rid of such debt.

For the amount of the outstanding debt, the court issues a writ of execution, which the creditor has the right to present for repayment within three years, and if the bailiff returns the writ of execution due to lack of property, present it again within three years from the date of return. And so on ad infinitum.

As you can see, the legislator follows the path of protecting creditors. And the situation when bankruptcy is started only to write off accumulated debts should soon come to naught.

In such conditions, creditors should take an active position in bankruptcy cases, because there are more and more opportunities for real debt collection every day.

Advice to all companies - take care of proper accounting and safety of documents, stock up on evidence of the economic feasibility of transactions. Do not neglect challenging the decisions of the tax authorities, because more and more often the initiator of bankruptcy and bringing to subsidiary liability is the Federal Tax Service of Russia. If there are signs of insolvency, do not delay filing a bankruptcy petition with the court. Well, after the appointment of the bankruptcy trustee, transfer all the accounting documentation, seals, and so on according to the inventory. And be sure to involve experienced professionals to protect your interests.

P.S. Write the topics you are interested in in the comments.

Guzel Valeeva, Julia Zazdravnaya

One of the most serious problems of modern enforcement proceedings is the existence of a mass of ways not to pay the debt quite legally. No, this is not a delay or an installment plan for the execution of a court decision. This phenomenon is called "alternative methods of liquidation" of legal entities. Dozens law firms in Moscow and throughout Russia they offer similar services (to verify this, just type “alternative liquidation” in any search engine).

What is the liquidation of a legal entity, we all know very well. Liquidated entity can be in three cases:

Deciding on liquidation by the founders;

Making a decision on liquidation by the court;

Recognition as insolvent (bankrupt).

At the same time, if the value of the property of a liquidated legal entity is insufficient to satisfy the claims of creditors, it can be liquidated only in the bankruptcy procedure.

But the term "alternative liquidation" appeared in Russian reality relatively recently. Behind this decent façade hides a rather ugly essence.

So what is "alternative liquidation"? With the help of this term, it is now customary to denote the departure of a legal entity from liability to its creditors.

Society with limited liability- the most popular organizational and legal form in Russian Federation. There are many reasons for this, from ease of registration to ease of management. And it is LLCs that are most often used " alternative ways» liquidation.

Imagine a typical situation: an LLC is indebted to its creditors, it obviously cannot pay off all the debts, but you don’t want to give up your property either. Proceed as follows:

1. Withdraw all assets from the company (fictitious purchase and sale transactions, other ways of withdrawing assets);
2. Depending on ingenuity (and in a different order):

• change founders and directors,
• change the place of registration of the company (transfer the company to some remote region),
• change the name of the company,
• in the end, they announce their reorganization in the form of a merger (rarely a merger).

After the reorganization, the legal entity-debtor disappears, it ceases to operate. All of its debts are transferred by way of universal succession to another LLC. At the same time, in the process of reorganization, the transfer act indicating the debt is safely “lost”.

Everything, the liquidation is completed. It is impossible to collect debt from such a company. There is no property, all assets were withdrawn before the reorganization. To establish the succession, you will need time during which the debtor can again change the name and reorganize again. Vicious circle.

How to fight?

This part of my post will be much shorter than the previous one, for obvious reasons (if there were effective ways to combat this phenomenon, it would not even be possible to talk about the widespread use of such methods of evading responsibility). Within the framework of the current legislation, there are only a few ways to combat “alternative liquidation”:

Initiation of the bankruptcy procedure and bringing the head and founders of the debtor to subsidiary liability, contesting the debtor's transactions within the framework of the bankruptcy procedure (but the bankruptcy procedure is quite an expensive pleasure, and all the costs of the procedure if the debtor's property is insufficient are borne by the applicant);

Recognition of the reorganization as illegal in court (even if it succeeds, the practical meaning of this method seems doubtful, since instead of one insolvent debtor we will get another insolvent debtor);

Bringing to criminal responsibility the head and founders of the debtor (In 99 cases out of a hundred, we will be refused to initiate a criminal case due to the fact that there are civil law relations);

Establishment of succession and subsequent collection of debt from the reorganized LLC (this method is hardly promising, since the new debtor has no property, usually it is a fictitious LLC).

Almost the only effective way is bankruptcy, since challenging the debtor's transactions and bringing the director and founders to subsidiary liability are possible only as part of the bankruptcy procedure. But initiating bankruptcy proceedings seems appropriate only if there is a significant amount of debt. Fans of “alternative liquidation” try not to make mistakes, rarely when their debt to one creditor exceeds a million rubles.

Thus, it remains only to advise conscientious entrepreneurs to choose counterparties more carefully and always remember that Russian market"societies with unlimited irresponsibility" operate quite legally.

Recall that the so-called "alternative liquidation of a legal entity" is usually understood as a set of measures, the implementation of which ultimately allows to achieve the desired result - the exclusion of the company from the Unified State Register of Legal Entities without any checks and consequences for the controlling persons.

It's no secret that the legislation in the Russian Federation is changing not only rapidly, but somehow quite lightning fast. New laws are stamped, resonant decisions and explanations are issued, formal and informal “pointers” are sent down to various regulatory and judicial authorities. The “rules of the game” that govern the procedures for the alternative liquidation of legal entities were no exception, having undergone cardinal changes in the blink of an eye. Amendments were adopted to 127-FZ "On insolvency (bankruptcy)", amendments were made to 129-FZ "On state registration legal entities and individual entrepreneurs”, have been updated Civil Code of the Russian Federation, as well as a number of other legal acts regulating the procedures and technologies for the alternative liquidation of firms. Simply put, the liquidation was completely different from what it was just a month ago.

However, the abundance of commercial proposals for the closure of legal entities that are replete with the Internet, as well as spam mailing, which with enviable regularity breaks through the filters to corporate mail, forced a deeper understanding of this issue. A healthy legal curiosity arose - and maybe there are still some ways and detours, gaps and loopholes in the updated legislation (as often happens). Yes, such that it would be possible to build on their basis something like "green corridors" for the liquidation of firms without inspections. To find an answer, we analyzed commercial offers liquidation of legal entities, highly specialized forums, as well as a number of freelancer and law firms in several regions of the Russian Federation. For half of the working day, two lawyers, posing as owners and directors of commercial structures, specially corresponded, called up the “liquidators”, made inquiries, collected information, sent a “client” (data from one of our organizations) for verification by the OGRN. The conclusions were disappointing. Commercial proposals for liquidation, to put it mildly, do not correspond to the realities of law enforcement practice. What they are proposing contradicts what the authors of the proposals themselves are discussing behind the scenes. Here we make a small important reservation - if someone sees inconsistencies in the examples below, in some regions the situation is different, please write in the comments, because the purpose of this material is not to denigrate or “throw a stone” at someone side, but, on the contrary, to warn against traps. After all, as you know, forewarned is forearmed.

So, summer has flared up with the June heat, and with it, the market for alternative liquidation of legal entities literally blazed with heat - “reorganizations by merger”, “sales” of companies, “change of directors and founders to offshore” and the like. It should be noted that any procedures, measures and half-measures that ultimately allow the liquidation of a legal entity without inspections are fairly popular in our country in view of objective and subjective reasons - after all, the taxpayer in the Russian Federation is always to blame by default, so look for "escape routes" - liquidation without checks - his natural right. In this regard, the scale of the “unexpected” fire of alternative liquidation procedures has affected hundreds, if not thousands of legal entities. So many things hung, how many have never hung. It can be said that the “alternative liquidation apocalypse” has happened.

From June 14, 2016, all forms 16001 “Application for state registration of a legal entity in connection with its liquidation”, submitted to the Federal Tax Service No. 46 for Moscow, began to issue decisions on the suspension of state registration. Formally, for a period of one month, for a thorough check of the submitted information. However, according to confirmed information, the suspensions will be followed by mass refusals to complete the initiated reorganizations. The same, a little earlier, happened in Kazan, which in Lately became the "Hong Kong" of alternative liquidations, as well as in other regions of the Russian Federation. Thus, procedures for the liquidation of firms were frozen almost throughout the country. Order of the Federal Tax Service dated February 11, 2016 No. ММВ-7-14/ [email protected]"On the approval of the grounds, conditions and methods for carrying out the procedures specified in paragraph 4.2 of Article 9 federal law"On State Registration of Legal Entities and Individual Entrepreneurs" of events, the procedure for using the results of these events, the form of a written objection to the upcoming state registration of changes to the charter of a legal entity or the upcoming entry of information into the Unified State Register of Legal Entities, application forms individual about the unreliability of information about him in the Unified State Register of Legal Entities" has entered an active phase.

It should be recalled that around the end of 2015, the screws were “tightened” in the so-called “liquidation of firms through offshore”, when the tax authorities began to massively issue refusals on attempts to change the sole executive body and participants of liquidated firms to foreign companies and oblige the latter to register branches on territory of the Russian Federation, with the corresponding payment of six-figure state fees. The “liquidation of an LLC through a change of director and founders” became much more complicated, when the fiscals began, among other things, to demand notarized decisions of the participants. In addition, the "stop lists" of mass managers and nominal shareholders were finalized and fully implemented. In a number of regions, this “service” was joined by police officers who began to wonder why this or that person needed so many organizations that he was listed as a director or participant there. From 01/01/2015 it was very difficult to change the region of tax registration of a legal entity (migration), and from 01/01/2016 in the vast majority of regions it became virtually impossible.

The technology of liquidating a company through a simplified bankruptcy procedure for a liquidated debtor, which was widely used until recently, also lost its meaning. Amendments to the main law regulating this procedure, namely, 127-FZ “On Insolvency (Bankruptcy),” introduced norms that deprive the debtor of independently indicating the desired candidate for a “loyal” arbitration manager. Article 37 of FZ-127 “on insolvency (bankruptcy)”, subject to amendments, began to sound as follows: “... The debtor’s application indicates the name and address self-regulatory organization 5. For the purpose of designating a self-regulatory organization of insolvency practitioners in the debtor’s application, it is determined by random selection in the manner prescribed by the regulatory body, upon publication notices of contact court of Arbitration with the debtor's application.

The rules of the game have changed - laws have changed, law enforcement practice has changed. However, despite this:

1. The Internet is brightly full of announcements about “reorganization of an LLC by merger”, “liquidation of an LLC through reorganization” and the like. Moreover, when, out of really healthy legal curiosity, questions were asked with a request to indicate the region of the assignees and the OGRN of organizations that passed in June, not a single law firm gave us a clear answer, referring to " trade secret this information."
2. Proposals for changing the region of location of the legal address of LLC (migration), despite all the changes, have also become no less, but rather more. And here, a “specific” truncated portfolio was sent to the request for the OGRN of past firms - no more than 3-5 companies that went to a fresh address. But we never saw the next one. Conclusion - there will be a clean, "zero" address - there is a big chance to move to it, but you need to manage to get into the top five.
3. Worked out commercial proposals for the "liquidation of an LLC through offshore". And the most beautiful - with clever words and business pictures. We were offered to make the first payment in rubles, the second at the exchange rate in foreign currency - apparently for greater entourage. To the question “send the OGRN of completed projects” - silence again. Apparently, the passion for prepayment took its toll here too.
4. Tried several times to get legal organizations, offering bankruptcy services under the simplified procedure of the liquidated debtor - how are they going to nominate their "loyal" arbitration manager, because this is really interesting. So far, no clear answer has been received from anyone.
5. It is worth noting that several law firms gave us reasonable guarantees of alternative liquidation (the cost, however, exceeded even the cost of the bankruptcy procedure). However, their offers are a drop in the ocean, which is completely clogged by the aggressive marketing of unscrupulous salesmen.

Relatively recently, such a concept appeared in the Russian Federation as “ alternative liquidation».

This concept denotes the termination of the company's activities formally, conditionally legal departure of a legal entity from obligations to creditors. Consider alternative liquidation methods and their consequences.

The first way is "reorganization". Upon reorganization by merger or acquisition, the company will be deleted from the Unified State Register of Legal Entities, but as a result, a legal successor will appear. After the reorganization, all the obligations of the company, including those not performed and not identified before, are transferred to the newly formed legal entity.

For example, an LLC has large debts, and cannot pay off all creditors, but does not want to give back its own. The owner of the firm first withdraws all assets, usually through fictitious transactions. Then the founders and directors, the place of registration of the organization and the name are changed. After these machinations, a reorganization is announced in the form of a takeover, and sometimes a merger.

As a result, the legal entity-debtor ceases its activity and disappears. All his duties are transferred to another organization. As a result of all this paperwork, documents confirming the debt disappear. Alternate Disposal Completed Successfully.

Despite this, the disadvantage of alternative liquidation is that the legal entity remains. And there is a high probability of checking the successor. Checking the successor also means auditing the activities of the predecessor company. Who will be responsible for her work? Of course, the one who managed it or owned it before the "reorganization". Consequently, the former management and owners can be held criminally and subsidiaryly liable.

The second way is to change participants and leadership, which actually means its sale. The company is simply re-registered to a third party. The renewed company has a new extract from state register and can fully function. The cost of such services depends on how problematic the organization is and how actively the regulatory authorities will show interest in it.

After re-registration, the company continues to operate, so third parties can make claims against it, try to collect debts, etc. However, the founders are not liable for the obligations of the organization, with the exception of the case. If the bankruptcy of a legal entity is caused by the actions of the owners, they may be held subsidiary liable for the obligations of the legal entity (Clause 3, Article 56 of the Civil Code of the Russian Federation). And also, in the event of any claims on "old cases", new organization will continue to function, and proceedings will be conducted with the former owners and management.

The third way is to stop using the company. In accordance with Art. 64.2 of the Civil Code of the Russian Federation and Art. 21.1 and paragraphs 7 - 8 of Art. 22 of the Federal Law “On State Registration of Legal Entities and Individual Entrepreneurs”, the procedure for excluding an inactive legal entity from the Unified State Register of Legal Entities means that the company has actually ceased its activities.

The decision to exclude from the Unified State Register of Legal Entities may be made if the following circumstances exist simultaneously: 1) the legal entity has not submitted tax returns for the last 12 months; 2) did not carry out transactions on at least one of its accounts. If the company has several accounts, then there should be no operations on any of them (clause 1 information letter Presidium of the Supreme Arbitration Court of the Russian Federation dated 17.01.2006 N 100).

In order to get rid of the company, the owner only needs to withdraw assets in advance, fire all the staff and wait about 1.5 - 2 years. The registrar, having made a decision on exclusion from the Unified State Register of Legal Entities, informs the owner of the company, creditors and other interested parties about this, indicating the address, and publishes it in the Bulletin of State Registration. Interested parties may submit an application within 3 months from the date of publication of the registrar's decision to block the administrative procedure for terminating the activities of the counterparty. (Resolution of the FAS ZSO dated February 20, 2013 in case N A81-921 / 2012). The risk of inability to collect debts as a result of exclusion of a company from the Unified State Register of Legal Entities lies with its creditor (Resolution of the FAS ZSO dated 08/06/2014 in case N A03-13327 / 2013). Therefore, it can be said that if creditors did not manage to declare themselves after the debtor was excluded from the Unified State Register of Legal Entities, then they are not entitled to recognize the debt (Letters of the Ministry of Finance of Russia dated 11.12.2012 N 03-03-06 / 1/649 and dated 08.11.2012 N 03 -03-06/1/577). But interested persons may appeal against the decision to expel from the Unified State Register of Legal Entities within one year from the day they learned or should have learned about the violation of their rights.

Each of the alternative liquidation methods may attract the attention of employees of the Federal Tax Service and cause a tax audit. The result of such checks may be the emergence of civil claims by creditors, the need to pay penalties and fines for administrative and tax penalties.

However, the institution of criminal cases against former leaders is not uncommon. For example, under Article 177 of the Criminal Code of the Russian Federation for malicious evasion from repayment of accounts payable, under Article 199 of the Criminal Code of the Russian Federation for tax evasion, or under Article 173 of the Criminal Code of the Russian Federation for illegal business. Besides, alternative liquidation may fall under such an offense, like Art. 173.1 of the Criminal Code of the Russian Federation for the formation (creation, reorganization) of a legal entity through nominees and Art. 173.2 of the Criminal Code of the Russian Federation provides for criminal liability for illegal use documents aimed at the formation (creation, reorganization) of a front legal entity.

Therefore, it can be said that when companies are fictitiously closed by merger / merger or simply re-registration to a third party, the owner is liable for failure to fulfill obligations to creditors, not paying taxes, and even criminal liability.

According to S. Kleymenov, alternative liquidation is a lottery or even fraud, in which a legal entity is not liquidated, and the likelihood of negative consequences increases. However, the choice is up to the owner to formally liquidate the company or alternative liquidation. Liquidation by "white" methods in accordance with the law is a lengthy and costly procedure, but it guarantees peace of mind in the future.

Liquidation is often considered when the company's activities become inappropriate and expenses begin to exceed income. Alternative liquidation allows you to get out of this situation with least loss. The official path is not easy. It requires both effort and a lot of time. In addition, the tax authorities may appoint an audit, and if any shortcomings are found, the founders will face penalties. That's why entrepreneurs are looking for other ways

What is the best way to close a business?

Consider how an alternative can be carried out. In this case, there will definitely not be a tax audit, the whole process will take much less time and will cost much less. As a result, the enterprise will continue to function, but completely different people will be at the helm, or it will cease to exist. Thus, the founders with a clear conscience "will retire."

The procedure can be implemented different ways. One of them involves the replacement of all the main persons of the company, and in other cases there is a reorganization in the form of the accession of one organization to another or a merger when another legal entity arises.

However, do not think that everything is as simple as it seems at first glance. The tax authorities are showing increased interest in such companies. Therefore, if, for example, the activity continues, then the company may soon expect a tax audit, which will be carried out with great care. The risk of this event can be somewhat reduced if the affiliated organization is located in another region.

So, there are 2 ways how alternative liquidation is carried out. They differ mainly in that the change in the composition of the management of the company will continue its activities. At the same time, upon reorganization, it ceases to exist, and another organization becomes the successor.

Reorganization

The necessary steps for the reorganization are as follows:

1. A new charter is being formed.
2. The founders and management are being replaced.
3. All changes are notified to the registering authority, which makes the appropriate entries in the Register.
4. A balance sheet is being drawn up.

In case of accession, one of the organizations continues its activities, becoming a legal successor, and the other ceases to exist. In this case, all rights are transferred to the main company.

A merger means the union of two or more companies into one, resulting in a new organization. If for taxes, as well as fees during off-budget funds the company had no debts, then you don’t have to worry about the fact that checks will “come down”. At the same time, if it is proved that the merger was carried out in order to avoid liability, then it may be recognized as illegal, and the management will have to bear either administrative or criminal liability.

Change of leadership

This method consists in the fact that the company is sold to a third party. The old owners will no longer deal with it and be responsible for current affairs. However, they can always be contacted for questions relating to previous activities.

At the same time, new members first enter the company, are appointed to senior positions, and the old ones leave it, about which changes are made to the company's charter. In addition, the former founder may be removed by other participants on the basis of a court decision.

What to choose?

Alternative liquidation is a more preferable option than the official one, in the event that the company has no debts. Then you can not even doubt the chosen method and boldly get down to business. Otherwise, the owner should be wary, that is, of the obligations of his property.

Advantages and disadvantages

So, compared to the official alternative liquidation of an LLC, there are both pluses and minuses. Therefore the choice best way how to close a company should be carried out only on the basis of the specifics of a particular situation.

The main advantage is that you can save a lot of time and money, as well as avoid unpleasant communication with government agencies.

But among the significant shortcomings, it stands out that the high risks remain the same for the old owners, and if violations are revealed, they can answer before the law with their property.

Thus, the quick alternative liquidation of the enterprise does not mean the complete end of the story for the entrepreneur. It can only be guaranteed by a longer and more costly official path.