Can the founder be prosecuted? We dispel the myths that the founders are not liable with their property for the debts of LLC

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, are not liable for the debts of a 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 brought to responsibility first of all. This right is directly given to creditors by legislative provisions that fall under exceptions from the general provision on the absence of liability of founders (participants) for the obligations of a 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 for nominees, the active use different 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:

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.
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).
To administrative responsibility, including tax, which is relevant mainly for cases of combining the status of a participant and head of an LLC.

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 responsibility is that it is possible only if there is certain actions(inaction), which 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:

the founders are obliged to pay their share within the established period in accordance with the founding 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, within 3 years recent years prior to the adoption of the bankruptcy petition by arbitration, they 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:

Declaring an LLC bankrupt.
Recognition of the founder (participant) as the controlling person of the debtor.
The presence of such actions of the founder (participant) or inaction that led to bankruptcy.
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 (preparation, storage) of accounting (reporting), and by the time the supervision was introduced into the LLC or the company was declared bankrupt, there are no accounting documents, mandatory information is missing or distorted, which seriously complicates the implementation of 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) smaller size which the plaintiff is seeking 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:

specific 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 recovered in the usual manner - within the framework of lawsuit proceedings in an arbitration court.

A firm that is a legal entity formed by one or more citizens who are considered the founders of the company, subsequently participants in its activities, is called a limited liability company (hereinafter - LLC). Each of the organizers contributes a certain amount to the authorized capital of the enterprise. The share of the founder can be expressed in money, shares, valuables, other property relevant to the activities of the newly opened organization. The liability of the founder for the activities of the LLC is limited by legislative acts.

What is Member Limited Liability?

Many citizens, when registering an LLC, believe that this method of organizing activities will protect the founders from possible creditor claims. Legislative regulations provide that business owners are liable within the limits of their shares or shares, expressed in monetary amounts, in the authorized capital (hereinafter referred to as the MC) of the company. Its minimum value is 10 tons. The profit is shared by the founders of the LLC on the basis of the provisions of the Charter of the organization.

The owner can hire an individual to act as director of the company or he himself becomes the head of the company and manages its work. If an enterprise conducts legal activities, has no debts to the federal, regional budgets, or other creditors, then its closure does not contribute to the emergence of obligations of the organizers of the company to lenders. The liability of the founder for the debts of the LLC occurs if the creditors prove that the participant of the company, by his inaction or malicious actions, led the organization to bankruptcy.

Legal regulation

The obligations of the founder of an LLC are determined by Article 87 of the Civil Code Russian Federation(hereinafter - the Civil Code of the Russian Federation) "Basic Provisions on a Limited Liability Company". It says that the debts of the organizer of the company are limited to the share he has contributed to the UK. This standard was used by fraudsters, creating "one-day firms" for the withdrawal of assets, other illegal actions, so the legislation became tougher.

Article 3 of the Federal Law of February 8, 1998 No. No. 14-FZ "On Limited Liability Companies" as amended on 31.122107. provides that the founders are charged with subsidiary (joint) obligations before the law, if by their actions they cause deliberate harm to the activities of the organization, which leads to inevitable bankruptcy. If the company cannot repay the existing debt, then the personal property of the founders is seized, in accordance with Art. 49 of the Tax Code of the Russian Federation (hereinafter - the Tax Code of the Russian Federation).

The liability of founders of an LLC for non-payment of taxes and debts to creditors is determined by the Federal Law of October 26, 2002 No. 127-FZ “On Insolvency (Bankruptcy)”. It will not be possible to escape punishment for illegal activities. Provides criminal and administrative liability of the founder of LLC before the law for the deliberate illegal liquidation of the enterprise.

Types of responsibility

Legislation provides different variants obligations of the organizer of the company. They depend on how actively the founder takes part in the work of the company. There are two liability options:

For the actions of a hired CEO. The meeting of participants in the enterprise may transfer the management of the main work of the organization to a third party, which is subject to certain financial and legal obligations to the LLC.
For your own actions. This situation often occurs if the organizer of the enterprise is at the same time the director of the LLC, directly managing the activities of the company.

For the actions of the director

If the owners of the business hire an individual to manage the company, then this person must monitor the financial statements, be liable to the law for their actions. The liability of the founder of the LLC for the actions of the director occurs if the employee proves that he was forced to comply with the orders that led to the bankruptcy and liquidation of the organization, in accordance with the instructions of his superiors.

Leader and founder in one person

Often there is a situation when the organizer of the enterprise is its head. He is held liable for the following unlawful acts:

conclusion of obviously unprofitable contracts for the company with counterparties;
failure to provide important information about a civil law contract to other members of the company, withholding important facts;
unjustified risk when concluding transactions, lack of loyalty and trustworthiness checks of partners (failure to find out if contractors or counterparties have a license);
deliberate damage, forgery, theft of accounting, financial, legal documents.

What is the responsibility of the founder of an LLC for debts

According to the provisions of the Civil Code of the Russian Federation, the organizer of the company is liable before the law within the limits of the share in the Criminal Code, unless it is proved that the difficult economic and economic condition of the enterprise, which led to bankruptcy, was caused by the malicious actions of the founder. There are the following types of obligations for which the owner of the company is personally responsible:

For taxes and insurance payments. Article 48 of the Tax Code of the Russian Federation provides that if the company's money is not enough to pay off the debt on fees to the budgets of all levels in case of bankruptcy, then the LLC participants must pay the arrears to the Federal Tax Service (FTS) from their share of the Criminal Code. With a lack of finance, you will have to pay with personal property.
For obligations to creditors. If there are causal relationships between the actions of the founder of the LLC and the liquidation of the company, then the perpetrators of the event have a need to reimburse the debt to lenders. The sequence of payments is established by arbitration courts.
In bankruptcy. The liquidation of a company, which is malicious in nature for the purpose of obtaining personal gain, is punished. The liability of the founder in case of bankruptcy of an LLC is criminal, material and administrative.

General (solidary) within the authorized capital

The state has established that the organizers of the company, when registering a legal entity, have certain obligations. The founders are liable before the law in the following circumstances:

when registering a legal entity, you need to contribute your share to the UK according to a preliminary agreement;
the resulting losses of the company are divided among all participants of the LLC according to the size of the share of the management company;
if the money was partially contributed to the Criminal Code, then, in the event of a loss-making operation of the company, the founder bears obligations according to the size of the unpaid share;
By the decision of the council, one or more organizers of the company may be assigned additional responsibilities by the participant.

Subsidiary liability of LLC founders

The legislation defines the circumstances under which the people who organized the LLC bear joint (subsidiary) responsibility for the results of the organization's activities. With this option of obligations, the initial size of the share of the authorized capital does not matter. You will have to answer for all the existing debts of the company. There are conditions and circumstances under which the presumption of guilt of the organizers of the enterprise works. In such a situation, the founders of the company have to prove their non-involvement in the events that led to the ruin of the organization.

The legislation provides that not only the organizers, participants of the LLC, but also individuals who have had a significant impact on the work of the company for the past three years, will have to be responsible for their actions. Citizens who gave orders that negatively affected the financial results of the enterprise are considered, along with business owners, to be persons controlling the company. Creditors' claims are satisfied on a competitive basis after the termination of the organization's activities.

offensive conditions

In order for the courts to recognize the onset of subsidiary liability of business owners, not limited to the contributed shares of the Criminal Code, certain conditions must be met. These include the following provisions:

Official bankruptcy of a legal entity.
Recognition of the organizer of the company as a person who had a significant impact on the work of the organization.
The actions of the founder of the LLC, proven by the plaintiff, which led the company to bankruptcy.
Decision by the arbitration court on the occurrence of subsidiary liability.

Under what circumstances is recognized by default

Legislative regulations provide for circumstances in the event of which the fault of the business owner in the bankruptcy of the organization is recognized by default. These include the following events:

the conclusion of a transaction at the direction (approval, insistence) of the owner of the company, resulting in damage to the property rights of lenders;
loss, damage, damage to financial statements for which the owner was responsible;
bringing the company or participant to administrative or criminal liability for the period the individual is in this status, subject to the formation of debts from lenders of the third priority, exceeding half of all creditors' claims.

Limits of vicarious liability

The court establishes that all claims and claims of lenders, declared after the liquidation of the legal entity, included in the register, determine the limits of the subsidiary obligations of the company's participants. The amount of the debt may be reduced if the defendant proves that the damage caused by his actions (or inaction) to the lender is less than that specified in the statement of claim.

The collection of arrears is carried out at the expense of the individual property of the participant (participants) of the enterprise, if the funds of the legal entity are not enough to eliminate the debt. If the amount of damage is large, and the founder of the business cannot pay it off with his own funds, then you can start the bankruptcy procedure for an individual. If a citizen is declared insolvent, unable to pay for payments, then the debts will be written off.

Administrative and criminal liability of LLC founders

In order for the guilt of the management in the bankruptcy of an LLC to be considered proven, law enforcement, tax, and other regulatory authorities are guided by the norms of the law. According to the provisions of the Criminal Code of the Russian Federation (hereinafter referred to as the Criminal Code of the Russian Federation) and the Code of Administrative Offenses (CAO), a clear corpus delicti is required, with the following circumstances:

The actions of the organizer of the legal entity that fall under the characteristics of criminal or administrative offenses.
Definition of the founder as the subject of a crime.
Available evidence of the guilt of the business owner in creating a difficult situation in the company, which led to the formation of debts and the liquidation of the organization.
Infliction by this legal entity of material and other damage to third parties (lenders) associated with the actions (or inaction) of the company's management.

Any third party who has an interest in the current situation can make the business owner solely responsible for the operation of the enterprise. The procedure for filing and the form of a statement of claim is stipulated by legal regulations. The following facts are considered to be outright violations:

intentional falsification, distortion, damage, loss of financial documentation;
provision of false reporting by the debtor to the Federal Tax Inspectorate;
signing illegal contracts that do not comply with the legislative requirements of the Russian Federation;
non-payment of wages to employees without good reason;
evasion of taxes and fees, the use of fraudulent schemes that underestimate the amount of payments;
intentional or fictitious bankruptcy;
other violations in the conduct of accounting, tax, personnel records, which led to material, moral damage and losses of interested citizens.

Deliberate bankruptcy

The creation of a situation in which an enterprise is obviously unable to meet the requirements of counterparties, suppliers, lenders, is considered deliberate bankruptcy. The owners of the company can withdraw assets, transfer property to legal entities, individuals, co-founders. Such actions are considered criminally punishable if, as a result, the victims suffered damage of more than 2.25 million rubles. If the amount of aggregate claims of creditors is less than this amount, then the actions of the perpetrators are qualified as an administrative offense.

Illegal actions during the liquidation of the enterprise

The laws of the Russian Federation provide for bringing to account the organizers of an LLC if they committed illegal actions during the liquidation of the company. These offenses include the following:

concealment of valuable property, information about it, distortion of information relating to the expression of the monetary value of fixed or working capital organization, concealment or provision of deliberately false data on the location of the enterprise's real estate;
malicious transfer of company property to a legal or natural person;
damage, purposeful destruction of fixed assets of the enterprise;
malicious violation of the organizational and legal mechanism of bankruptcy of the organization;
distortion, destruction of accounting, tax and other documentation, where there is information about the involvement of the founders of the business in the offense.

Such actions of the organizers of the company may threaten them with the following consequences:

restriction of freedom of movement for 4-6 months;
arrest for up to 3 years;
imprisonment for 2 years with a fine of 200-500 times the minimum wage (hereinafter referred to as the minimum wage).

If the business owner satisfies the personal claims of one creditor to the detriment of the interests of the others, then such actions are also considered illegal and can be punished in the following ways:

restriction of freedom for up to two years;
arrest for 4-6 months;
imprisonment for 1 year and a fine of 100-200 minimum wages.

Fictitious bankruptcy

If a business owner spreads false information among customers, contractors, lenders about the insolvency of an LLC in order to mislead them in order to obtain a deferral of arrears, then such actions are recognized as fictitious bankruptcy. Before that, the owners of the company are trying to transfer the company's assets to the accounts of relatives, friends, front companies in order to write off debts. Creditors are left to share the remaining property. Such actions are considered criminally punishable and are punished as follows:

restriction of liberty for up to 6 years and a fine of up to 100 minimum wages;
penalties of 500-800 minimum wages.

Tax evasion

If it is proved that the arrears in fees, fines and penalties were formed as a result of the malicious actions of the owner of the enterprise, then he can be convicted under Article 199 of the Criminal Code of the Russian Federation, which provides for liability for tax evasion. The founder will have to pay the entire amount of the debt and bear administrative or criminal liability, depending on the amount of damage caused to the budgets of all levels.

Video

Since June 28, 2017, the liability of directors and founders for the debts of companies comes even without bankruptcy proceedings ... it is also possible for "abandoned" companies excluded by the Federal Tax Service from the Unified State Register of Legal Entities (in 2016 there were more than 700 thousand such companies) ... Tax debts companies are considered personal debts of the founders and are not "forgiven" as part of the bankruptcy of individuals ... that is, they remain with you for life, until they are fully repaid ... A complete 13-page manual on 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 multiple clarifications in front of you - a unique guide for managers and owners with system analysis all types of liability for the activities of the company: 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 what are the managers and owners of the business responsible for the debts and tax obligations of the company - so capacious and difficult topic that both those and others, judging by the questions at our seminars and customer requests, have a complete mess in their heads.

To be honest, while we were preparing this material, we almost got into a fight ourselves. As a result, you have a complete reference. Capacious and whole. Understand.

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Instead of a preface

As I have repeatedly written, industrial capitalism owes its heyday to the emergence of LLCs and JSCs ... in their modern sense. More precisely, “limited liability” within the 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 kickback system of big business. For twenty years of condoning the almost universal use of “one-night stands” (including as a result of a through system of kickbacks), and then for a sharp change in the rules of the game - from tax rules to lending conditions. An entrepreneur, let me say, bears risks at least by spending part of his life, health, family well-being in every sense ... and risks not earning anything at the same time, unlike his hired employees (for delaying the payment of salary to whom he is also criminally liable, and for trying to pay salary in a difficult situation, even out of good intentions to the detriment of tax obligations 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 necessarily be a group of companies”.

1. Responsibility for violation of the current legislation

Subject: Head of the organization.

A responsibility: administrative, criminal.

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

Boundless as an 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. You didn’t beat off and didn’t issue a cash receipt to the buyer, you didn’t notify the relevant authority about the conclusion of an employment contract with a migrant, you 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 requirement of the inspection).

Separate emphasis on Art. 199.2 of the Criminal Code - concealment of property from the collection of taxes. Dashing owners or business leaders, sensing something was wrong and holding in their hands the decision of the tax authority on the appointment field check, are frantically looking for a way to withdraw money or property from potential foreclosure. But in vain. This corpus delicti is very formal. It is relatively easy to prove. The fact of transferring money, alienating property, and even directing proceeds to bypass a potential debtor directly to suppliers and contractors is a crime. Of course, if its cost starts from 2.25 million rubles.

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

2. Liability for culpable damage to the company

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

A responsibility: compensation for damage.

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

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

Until 2013, the possibility of recovering damages from the company's management bodies was a fantasy: the courts demanded that the exact amount of damages be determined and referred to the probabilistic nature of the assumptions about their infliction.

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

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

in case No. A41-2271 / 13, about 223.5 million rubles were recovered from the director.
in case No. A32-7549/13 - almost 126 million;
in case No. A53-20252/2015 - 59.3 million rubles....

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

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

from said Decree...

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

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

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

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

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

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

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

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

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

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

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

3. Liability in bankruptcy

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

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

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

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

Circle of potentially responsible persons:

founders (participants);
leaders of the organization;
trust managers of the company's shares;
any other individuals who are not formally legally associated with the company, but actually manage or manage the company in the last 3 years before bankruptcy.

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

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

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

There is an opinion among business owners that vicarious liability is something far and unbelievable. Indeed, it was almost impossible to prove to creditors that the responsible persons were guilty of bringing the company to bankruptcy.

However, to date, the number of cases of subsidiary liability of owners and managers of the company proves the opposite, since there is a presumption of guilt of 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:

Inability to repay the debt to the creditor in full. What is the probability? Exactly 100%, otherwise why did it go bankrupt?
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.
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 a commercial company dominated by economic expediency. After all, any creditor, before filing an application for your bankruptcy to the court, will think a hundred times: how much he will spend and how much he will hypothetically receive. The Federal Tax Service, as a state body, 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:

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?
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.

Failure by the head of the debtor to fulfill the obligation to file a bankruptcy petition for the organization he leads, if he was aware of the signs of insolvency (or should be aware of it).

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 adoption of a 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 subsidiary liable, 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 of the 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 the former manager or owner has personal property that can be taken away.

Therefore, we turn to personal bankruptcy ...

Say a word about personal bankruptcy

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

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

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

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

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

But that's not the worst...

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, which are not enough to satisfy the property of the Company. 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 file an independent bankruptcy petition.

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

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

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

Insolvency 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 resolve 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 determine the financial insolvency of the debtor and the insufficiency of property:

Under financial insolvency, it is necessary to understand a state that does not allow him to satisfy the requirements of creditors for monetary obligations and (or) fulfill the obligation to pay mandatory payments, which amount to at least 300,000 rubles. within 3 months from the date when they must be executed.

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

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

Actually, for the violation of these deadlines, the “subsidiary” will fly to the head. Own, personal, personal. Even if he was innocent of the fact of bankruptcy.

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

On the other hand, the creditor, whose obligations arose after a month from the moment the company showed signs of bankruptcy, can count on the fulfillment of obligations to him at the expense of the director in any case.

Obviously, in practice, in order to bring to subsidiary liability on the basis under consideration, it is important not only that the Company has an undisputed / confirmed by a court decision debt for more than three months, but also that there are no assets to pay it off.

4. Liability WITHOUT bankruptcy

Subject: director and controlling persons.

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

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

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

How to be creditors in this case? Will the director walk away unscathed? Until the end of June 2017, it will be so. However, in summer current year creditors and authorized bodies have the opportunity to bring the persons controlling the debtor to subsidiary liability outside the framework of the bankruptcy procedure. Representatives of the Federal Tax Service, "rubbing their hands", have already stated that this approach will 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 accountable if, again, the court returned the bankruptcy petition or the proceedings were terminated due to lack of funds to pay for the procedure.

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

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

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

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

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

5. FULL property liability WITHOUT bankruptcy

Subject: culpable controlling person

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

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

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

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

The Supreme Court decisively 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 supported the tax inspectorate and found the organization guilty of committing a tax offense, the inspectorate may, in case of non-payment of additional charges by the taxpayer, resort to bankruptcy proceedings and declare that the persons controlling the debtor are held subsidiary liable.

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

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

6. Responsibility FOR the very fact of bankruptcy

Subject: company leaders and members

A responsibility: administrative or criminal

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

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

Example: the case of LLC "Uralsky Les"

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

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

7. Responsibility “for that guy”

Subject: any interdependent person (legal and natural)

A responsibility: full responsibility for the debts of the organization

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

To date, a simple transfer of financial and economic activities to another formally independent operating company with the concealment of the actual owners of companies behind nominees 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 recover from it the entire amount of the tax debt of the “abandoned” company.

This requires two conditions:

1) The dependence of companies established in court.

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

registration of a newly created operating company during the period of an on-site tax audit of an existing operating company;
the presence of a common founder and head of the companies or the mutual participation of companies in 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, Internet sites, 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 contractors on behalf of a new organization on comparable terms also corresponds to this condition!

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

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

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

Our other materials to help you:

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

Vicarious liability has become the norm in bankruptcy

Federal Law No. 488 of December 28, 2016, which amended the law on LLCs and the bankruptcy law, has made life much more difficult for those business owners who have deliberately or forcedly bankrupted their companies in recent years. Now subsidiary liability remains for three years from the date of liquidation of the organization.

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

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

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

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

When subsidiary liability is imposed on the founders of an LLC for the debts of the company in 2018

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

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

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

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

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

Subjects of subsidiary liability

Possible candidates for "subsidiaries":

founders;
director;
any actual managers or controlling persons.

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

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

What can lead to LLC liability for debts:

frivolous transactions with "one-day";
restructuring of assets - the release or transfer of them to new owners without appropriate justification for this need;
failure to file a bankruptcy petition in a timely manner. The director is required to notify the court of the self-bankruptcy of the company within one month.

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

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

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

The range of subjects for subsidiary liability has expanded. In addition to shareholders and directors, the concept of “a person controlling the debtor” has been introduced. These are business owners, major shareholders, financial, technical directors, former key workers to relatives. The only condition for their participation in the SO is the fact of a significant impact on the activities of the organization and a temporary restriction - no more than three years of their activity, preceding the emergence of a situation for bankruptcy.
Art. 3 of the Federal Law No. 14 "On LLC" was supplemented interesting position, according to which, in the event of dishonest or unreasonable actions of the founders, directors, the creditor may recover the debt from them through the court. Previously, such an opportunity was provided only in the bankruptcy process.
Federal Law No. 488 supplemented Article 10 of the Federal Law “On Bankruptcy”. Creditors can hold debtor firms to account after the bankruptcy procedure or outside it, if they have not received satisfaction of the stated requirements. Previously, in the absence of funding, it was impossible to initiate a bankruptcy case.
Even if the legal entity is excluded from the Unified State Register of Legal Entities, you can safely directly make a claim to satisfy debt obligations to controlling persons (subparagraph 3.1 of article 3 of the Law on LLC).

Is the director of an LLC liable with his property for the debts of the company

Is the director of an LLC liable with his property for the debts of the company in 2018? The law clearly defines how losses are recovered from the director if he caused damage to the company, namely:

made a deal on conditions that are obviously unfavorable for the legal entity;
hid important details transaction or has not received its approval from business owners;
did not carry out the necessary verification of the conscientiousness of the counterparty, contractor;
committed illegal actions with company documents, etc.

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

If the founder and director of the LLC are one person

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

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

If the company went bankrupt due to the fault of the founder, as well as persons responsible for the work of the company, they are subject to subsidiary liability, including the head and founder in one person (FZ No. 14, 208, 161).

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

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

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

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

Does self-bankruptcy affect an LLC's liability for debts?

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

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

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

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

Liability procedure

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

The role of the arbitration manager in the process

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

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

Full property liability without bankruptcy

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

Nuances of recent jurisprudence

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

the obligation to prove one's innocence rests with the owners and those who control the business;
The Supreme Court, in a ruling dated March 9, 2016, confirmed the presumption of guilt of these persons;
in court, a causal relationship is established between the failure to file a bankruptcy petition and the harm caused to the creditor and the state;
managers who evade bankruptcy proceedings are subject to disqualification for a period of six months to three years;

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 calls the following phrase: “ individual entrepreneur risks all his property, and the liability of the founders of an LLC is established only in the amount of a share in the authorized capital. The Civil Code (Article 87) does contain this statement, but it is only a part of it. common system rights. 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 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:

On stage, before it state registration. These may be obligations to pay for consulting services, printing, etc.
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.
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 Federal Law No. 14-FZ of 08.02.1998 "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 the 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 society itself. Only officials guilty of offenses can be brought to such types of liability. At first glance, the director and the chief accountant, who were hired under an employment contract, are always to blame. 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.