Responsible for limited liability. When the founder is liable with property

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

Attraction algorithms

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

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

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

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

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

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

Responsibility of a legal entity and LLC participants

No. 127-FZ is called upon to protect the rights of creditors. Its provisions are aimed at the application of one or another method of protection within the framework of bankruptcy, and compensation and liability depend on the degree of guilt of the founder.

Legal consequences of the guilty act can be eliminated in certain ways. For example, within the framework of recognizing the transactions made by them as illegal: in this case, according to the Civil Code of the Russian Federation, provisions on the invalidity of the concluded contracts will apply to such legal relations.

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

Leader and founder in one person

This person is liable within the authorized capital of the company. In addition, subsidiary liability, if initiated by him or the creditor, another interested person, the bankruptcy procedure.

Subsidiary liability is considered as an additional punishment for persons who may be levied a penalty together with a debtor who is unable to pay off debts. But the grounds for imposing this punishment are strictly regulated by the law.

Conditions within the authorized capital

The conditions under which the founder of the company is liable for debts within the amount of the authorized capital are determined by the Civil Code of the Russian Federation and No. 14-FZ. In the event of liquidation of a company or its bankruptcy, the founder is solely responsible for the property of the organization, its assets.

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

Thus it differs from legal status the same individual entrepreneur who personally, with his property, pays off the debts of the individual entrepreneur. That is why, according to existing statistics, citizens are more likely to try, and individual entrepreneurs are created less often. It turns out that the shareholder of the LLC does not actually bear the risk of losing its own property.

Settlements for debts

Bringing the guilty person to responsibility for the shortfall of money in the treasury of the state cannot release him from the payment of subsequent amounts. Responsibility for arrears within the legal entity is borne by its officials ( CEO, chief accountant), in addition, the legal entity itself may be the subject of liability (except for criminal liability).

For tax evasion

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

• administrative;
• tax.

Loans

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

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

If the claim is not answered within a reasonable time, the bank may apply to the court. The claim is drawn up according to the form established in Article 131 of the Code of Civil Procedure of the Russian Federation, with a demand for payment of the debt, with% and a penalty under the current contract. In case of a positive decision of the judge, the legal entity is obliged to pay the debt, to cover the penalty with all%, that is, to fully comply with the requirements of the credit institution.

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

In case of bankruptcy

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

• collectively owes creditors an amount of 300,000 rubles (taxes and fees to the state treasury are also included in this amount);
• the company has violated the terms of payments: more than three months does not pay creditors;
• employees of the enterprise (organization) were not paid wages, severance pay.

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

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

As part of the bankruptcy of the company, the bankruptcy trustee acts. The objectives of this procedure are not necessarily the liquidation of the legal entity. In most cases, the task of bankruptcy is different - financially improve the enterprise and give it a new life.

The bankruptcy trustee has the right to make claims against the founders of the LLC for subsidiary liability. This happens only if, according to the analysis of the activities of the legal entity, it was revealed that the financial collapse occurred due to the guilty actions of the founders.

The new liability conditions include:

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

Subsidiary liability is due not to bringing the legal entity to bankruptcy in its pure form, but more to causing harm to creditors. And causing damage to the property rights of creditors is associated with a fairly large list of illegal actions of persons controlling legal entities.

According to the new rules, it is unambiguous to say that the illegal action of a controlling person is an action aimed at aggravating the property situation of a legal entity, which, therefore, cannot pay its debts, having obligations to creditors.

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

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

Engagement procedure

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

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

A fine is a financial punishment. The provisions of the Code of Administrative Offenses of the Russian Federation, however, do not cover other situations that can be considered as punishment for legal entities. These are circumstances such as:

• suspension of the enterprise;
• change in the enterprise quota regime.

It is believed that these provisions go beyond the administrative regulation of the enterprise. Accordingly, they cannot be imposed on legal entities.

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

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

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

Everything about the responsibility of the CEO of an LLC is in this video.

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

Question: what should Vasily do with debts and LLC?

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

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

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

I'll tell you briefly:

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

And now in more detail.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

When it becomes necessary to choose a legal form for their business, many stop at a limited liability company. This is due to the fact that a legal entity has limited liability for the activities of its company.

Situation in Russia

Russia is very different from most countries in this modern world. After all, it is only in Russia that an organization is created for the most part to avoid possible financial risks, and not for partnership. Approximately 70% of domestic commercial organizations are created by a single founder, and often it is he who is the head of his business. What is the responsibility of the founders of an LLC? Let's figure it out in this article.

Most organizations actually function without income even to pay wages to your director. Their income does not exceed the income of a freelancer engaged in the provision of services in his spare time. However, in terms of frequency of registration, legal entities are on the same level as individual entrepreneurs.

Liability of a legal entity

To begin with, it is worth finding out what is the source of information that the implementation of the activities of an entrepreneur using the LLC form is financially safer. It follows from Article No. 56 of the Civil Code of the Russian Federation that the founder should not be liable for the obligations of his company, and the enterprise itself is not obliged to be responsible for the debts of the founder himself. That is why, when the question arises about the liability of the founders of an LLC, many argue with confidence that the founder should be liable only in an amount proportional to his share in the authorized capital of the company.

In fact, everything looks like this. In the event that the company is solvent, can pay taxes in a timely manner, and also pay its obligations to employees and partners, then the law does not provide for the possibility of attracting the founder to pay the company's own bills. That is, a registered company is a completely independent person in civil circulation and, accordingly, is itself liable for its obligations. It is precisely because of this that the wrong impression may arise that the owner of the enterprise bears absolutely no responsibility to his creditors or the state budget. But there is a certain responsibility of the director and founder of the LLC for debts. Let's figure it out further.

Clause in law

Here important point is a stipulation in the law that the liability of the company is limited only until the moment when the legal entity exists. But in the event that the enterprise is declared bankrupt, then its participants may be held liable, for example, subsidiary or additional. What gives the subsidiary liability of the founder for the debts of the LLC? More on that below.

However, to begin with, it will be necessary to prove that the founders themselves, as well as their actions, are guilty of the bankruptcy of the organization. But we all understand that creditors of a bankrupt organization who want their own money back will try their best to prove it.

Thus, the possibility of imposing liability on the founders of a subsidiary-type LLC is possible in the case when the participants themselves are guilty of bankruptcy, and the company's own property is not enough to repay the debts. This opportunity enshrined in the third article federal law No. 14 of February 8, 1998.

Subsidiary Liability

Since 2017, the liability of the founders of an LLC of a subsidiary type is not limited to the share of the participant in the authorized capital, but is equated to the full amount of the debt to credit institutions. It turns out that if an organization declared bankrupt owes three million rubles, then it is this amount that will be recovered from the founder of the enterprise, even though this founder contributed only ten thousand rubles to the authorized capital.

In fact, the concept of limiting the liability of the founders of an LLC in an amount proportional to the share in the authorized capital applies only to the enterprise itself. And directly the founder can be brought to unlimited liability of the subsidiary type. This feature financially equates him to an individual entrepreneur.

Leader and founder in one person

The responsibility of the director and founder of an LLC of a subsidiary nature for obligations incurred by a legal entity has a number of its own characteristics.

In the event that the CEO of the organization is an employee, then certain part the financial risk rests with him. That is, the head of the enterprise is liable to the LLC for those losses that resulted from the actions or inaction of the head. This provision is fixed in Article No. 44 of the Law on Limited Liability Companies.

Signs of inaction of a hired director

Such liability of the hired director of the enterprise arises if signs of his inaction or guilty action are established, such as:

• The conclusion of the transaction in their own interests, without taking into account its inferiority for the enterprise itself.
• Failure to obtain the consent of the founders to complete the transaction, if such consent is required. As well as silence about significant details of the transaction.
• Failure to take the necessary steps to obtain important information, which is significant for the transaction. An example may be the failure to clarify information about the availability of a license from a contractor, if its activities require appropriate licensing.
• Making a deal without taking into account information that is known and significant.
• Actions related to the loss, theft or forgery of documents of the organization.

Drawing up a claim

In the event of such situations, each of the founders has the full right to file a claim against the director demanding compensation for the damage received. However, the director's liability will be removed if he can prove that his actions corresponded to or were limited by the requirements and orders of the owner. That is, then the founders of the LLC themselves are responsible.

But what to do in a situation where the founder is directly involved in the management of the organization? After all, in such a situation it will not be possible to refer to the incompetent actions of the hired employee. If such an organization has outstanding debts, then the founder, represented by the director, will be obliged to take all possible measures to pay off these debts. Even if he is the sole founder and, it would seem, no one's interests are affected.

Then there will be the responsibility of the director and founder of the LLC in one person.

Tax debts

The Federal Tax Service of Russia is famous for the fact that the payment of taxes in the country is at high level. In this article, it will be superfluous to discuss the legality of the methods used by tax representatives, but it is worth recognizing that jokes with this structure do not end well. If in the case of a private creditor it is possible to take measures and come to an agreement on debt restructuring or its partial write-off, then with a debt of about 300 thousand rubles to the budget, the situation takes a critical turn.

The responsibility of the founder for the activities of the LLC to the tax service is also enshrined in law. Thus, Article No. 49 of the Tax Code states that in the event that, during the liquidation of an enterprise, its funds are not enough to pay off tax debts in full, the balance of this debt is transferred to the founders of this organization.

When the amount of tax debt reaches 300 thousand rubles, moreover, the repayment period is already more than three months, then the enterprise falls into the risk zone. It is necessary to urgently take measures to pay off the debt that has arisen, or to declare the organization bankrupt. Otherwise, the organization will be declared bankrupt at the request of the tax authorities, and this already threatens to transfer responsibility to the director and founder of the LLC for debts.

At the same time, all attempts to withdraw assets from the debtor organization in order to avoid paying tax arrears are unlikely to lead to something good. For example, the arbitration court in the Republic of Bashkortostan brought the founders of the organization to subsidiary liability in a similar situation.

The company, which had a tax debt of 675 thousand rubles, transferred its own assets to a new company, which was registered by the same participants. They believed that the responsibility of the enterprise would cease if it was declared bankrupt and it did not have the means to pay off this debt. But representatives of the tax inspectorate were able to prove the guilt of the founders of the company in the fact that there was a arrears. And this debt was recovered from the founders in court from their personal funds. This is what the subsidiary liability of the founder and director of an LLC means.

Undoubtedly, it is faster and easier to hold an individual entrepreneur liable for debts than the founders of an organization, since declaring an LLC bankrupt is a rather lengthy procedure. But after amendments to the legislation in 2015 tax inspectors received an alternative tool for collecting payments - now they can be collected as part of the judicial proceedings opened under Article No. 199 of the Criminal Code of the Russian Federation.

Liability procedure

Let's figure out at what point the responsibility of the founders of an LLC arises from 2017 for their activities. As already mentioned, such liability can arise only in the process of declaring a legal entity bankrupt. In the event that an organization is being liquidated that has previously paid off its debts to all available creditors, then, of course, no claims can be made against the founder.

The interests of the budget and other creditors are protected by bankruptcy law No. 127. It is he who regulates in detail the conduct of the bankruptcy procedure, and also has provisions establishing the procedure for bringing the founders of the organization and other persons under whose control the debtor is accountable.

The latter include those persons who are not actually the founders of the company, but are endowed with the ability to control the head and founders in the area of ​​certain activities of the enterprise.

The obligation to file an application that the organization should be recognized as a debtor lies with the head of the legal entity. However, if he does not use this opportunity, then both the employees and the counterparties of the enterprise, and the tax authorities themselves, can start the procedure for declaring the organization bankrupt. In this case, the party that files the claim will have to determine the arbitration manager, which, in turn, is of particular importance when the founder is involved in the obligations incurred by the LLC.

Among other things, a person filing a lawsuit to declare a debtor bankrupt has the right to challenge those transactions that the organization made during the year before the lawsuit was accepted.

Directors, business founders, and beneficiaries may be involved in the proceedings, during which the insolvency of a legal entity is proved. If in the course of the proceedings it is proved by the court that all these persons are connected with the insolvency that has arisen, then the amounts claimed by the plaintiff will be recovered from the personal property of all these persons.

findings

From all of the above, the following conclusions can be drawn:

• In accordance with the law, the liability of the founder is not limited to the size of his share in the charter capital of the LLC. It is not limited and can be repaid by a court decision at the expense of personal funds and property.
• If the manager is an employee, then it would not be superfluous to provide for such a method of reporting that will allow you to know about the nuances of doing business and will reflect the full picture of the affairs of the enterprise.

• All accounting documentation and reporting must be strictly controlled. Loss or distortion in documentation contributes to falling into the risk group.
• What else does the responsibility of the founders for the debts of the LLC in 2017 imply? Creditors of a legal entity have the legislative right to demand repayment of debts directly by the owner, but only if the organization cannot meet its obligations on its own and is in the process of being declared bankrupt.
• Attempting to withdraw assets may result in criminal liability.
• Bankruptcy proceedings must be initiated independently, the best option will attract specialists of this profile.

We examined the responsibility of the founder of an LLC.

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

Today we will talk about limited liability companies. On June 28, 2017, creditors got the opportunity to recover their debts from the director and members of the company excluded from the Unified State Register of Legal Entities.

All business representatives are probably aware that the founders of such organizational form do not have any obligations to the creditors of the company for the debts of the company itself. Moreover, at the time of the presentation of the requirements, it is no longer in all possible state registers.

In this article:

What is it about or is the director liable for the debts of the LLC

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

On July 28, 2017, amendments to the law “On Limited Liability Companies”, known to all businessmen, officially came into force. In the text of our material, we will refer to it further as 14-FZ.

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

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

Thanks to the work of legislators, it became possible to collect debts from former director or founders. It is only important to justify the amount of debt and prove the illegality of actions on the part of the company's management.

Who Should Be Responsible

New amendments to the law 14-FZ define the following potential opponents in the dispute:

1. Director (current and former).
2. Members of the executive body (collegiate). This may be the board of directors, the board, another structure provided for by the charter of a particular LLC.
3. The person responsible for carrying out the entire liquidation procedure.
4. The founders of the enterprise (now there is a liability of the founder for the debts of the legal entity).

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

These can theoretically include both people who signed an agreement with the creditor by proxy, and persons who control the debtor.

Another thing is that it is difficult to establish the real subject whose actions led to the debt.

After all, not every limited liability company allows the counterparty to get acquainted in detail with its charter and other internal documents.

Of course, there is an extract from the Unified State Register of Legal Entities. However, the amount of information it contains may be limited.

When can you go to court

In fact, the lender will have to carry out a serious preparatory work.

These persons bear responsibility for the obligations of LLC only in the event that the occurrence of debt was the result of their unfair and unreasonable actions.

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

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

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

A lawyer just knows how to approach such issues.

What are unreasonable and dishonest actions

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

First of all, it is the sale of goods or the provision of services at prices that are significantly inferior to market prices. In addition, this is the performance of transactions with firms that have a dubious reputation (“fly-by-night”, “fictitious companies”, etc.).

In turn, unreasonable actions should be understood as the negligent attitude of the company's management to their immediate duties.

In particular, the director could make decisions without taking into account information that is essential when concluding contracts or maintaining current economic activity organizations.

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

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

In any case, the intent to default on the debt will have to be proved to the creditor, who nevertheless decides to receive his funds from the so-called subsidiary debtors.

Before filing a claim, it is useful to study the array of judicial practice, and not only district courts, but also arbitration courts.

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

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

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

Therefore, to impose this responsibility, it is not enough just to exclude the LLC from the Unified State Register of Legal Entities with debts, there must be additional grounds established by the court, namely: bad faith or unreasonableness of the controlling persons, due to which the LLC did not fulfill its obligations to the creditor.

So, subsidiary liability for the debts of the company can be assigned to the controlling persons, subject to two conditions:

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

How is bad faith and unreasonableness established in practice?

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

• failure to take measures to repay the debt to the creditor "during the lifetime" LLC (A71-20472 / 2017, A53-29729 / 17);
• the actual termination of the company's activities after the termination of the powers of the controlling persons (A53-29729 / 17);
• failure to take actions to terminate or cancel the procedure for exclusion of an LLC from the Unified State Register of Legal Entities. (A71-20472/2017);
• the fact of non-fulfillment of the obligation by the head of the legal entity to file an application for bankruptcy of the enterprise to the arbitration court, if there are signs of bankruptcy (Appeal ruling of the IC in civil cases of the Moscow City Court dated January 30, 2018 in case No. 33-3879).

Finally, there are judicial acts in which, when bringing to subsidiary liability, the bad faith and unreasonableness of controlling persons is not analyzed at all, and the conclusion about bringing to responsibility follows simply from a statement of non-fulfillment of obligations by an LLC (А60-47830 / 2017).

I don't think this is the right approach. Most likely, it is based on the fact that the defendant behaved passively and the court applied part 3., 3.1 of Art. 70 APC RF.

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

The Court ordered the Claimant to prove the existence of losses, the wrongfulness of the Defendant's behavior and the causal relationship between the losses and the Defendant's behavior (А45-2887/2018). By a court decision, the creditor's claim was dismissed, and the appeal "overpowered" the said decision.

It should be noted that the court may release the participant from liability due to the fact that the size of his share in the authorized capital does not allow making key decisions on the activities of the company, that is, the participant is essentially not a controlling person (a similar approach was demonstrated in case A53-29729 / 17) .

Who to sue

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

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

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

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

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

For LLC members, the situation is more complicated. After all, it is very difficult to prove their involvement in the adoption of a decision objectionable to the creditor. In this state of affairs, the liability of the founder for the debts of the legal entity is reduced to zero.

Moreover, the plaintiff may not know the actual composition of the participants in the LLC that has ceased its activities. In addition, the plaintiff and the court will have difficulty in determining the degree of involvement in the debt of each of the participants.

It should also be remembered that an LLC can be created by one person who is also its director. Therefore, in this case, the question of determining the defendant disappears by itself.

by the most ideal option will identify several defendants. In any case, this will not affect the amount of the creditor's legal costs.

Evidence base preparation

Naturally, not all documents will be available to the plaintiff. Therefore, a petition should be filed with the court for the reclamation of part of the materials from the archive and the FTS body, according to which the closed LLC was registered.

It is advisable to involve not only a lawyer in the analysis of the case materials, but also a specialist who understands the accounting and financial documents of the company.

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

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

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

Which court should be applied to

When choosing a body of justice, there are several rules, since a claim can be filed both in a district court and in a court of arbitration jurisdiction.

Everything will depend on the nature of the dispute and the composition of its future participants.

1. If the relationship was entrepreneurial activity for both parties: a supply contract, a construction contract, and the like, and the creditor is an organization or an individual entrepreneur, then you need to file a claim with an arbitration court.
2. If the legal relationship was in the nature of meeting the personal needs of a citizen: the provision of household services and the like, and the creditor is an individual, then you need to apply to a court of general jurisdiction. Concerns and former employees excluded from the register of LLC.

Cases on the recovery of losses from the head of the organization (including the former) are considered both by arbitration courts and courts of general jurisdiction, in accordance with the rules on the delimitation of competence (clause 7 of the Resolution of the Supreme Court of the Russian Federation dated 02.06.15 No. 21).

That is, economic disputes - arbitration (Article 33 of the Arbitration Procedure Code of the Russian Federation), other disputes - a court of general jurisdiction (part 3 of Article 22 of the Code of Civil Procedure of the Russian Federation). In fact, the jurisdiction of the dispute is determined in the same way as it would be determined for a creditor's claim against an LLC excluded from the register, the rules are exactly the same.

District Court

It is worth contacting there when the defendant for the recovery of the amount is individuals: founders or the director of the former company.

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

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

Court of Arbitration

Often, formally it simply does not make sense to collect a debt from a director (especially if he was a so-called "dummy"). In this case, claims may be addressed to the founder of the liquidated company (if he acts as a legal entity or individual entrepreneur).

In addition, arbitration should also be applied when the debt arose from corporate relations. For example, a participant was not paid a debt on dividends or part of the profits from the activities of a liquidated company.

If we are not talking about corporate disputes, then before going to arbitration, the defendant should file a claim. By general rule it is considered in month from the date of receipt.

Depending on the amount of the stated claims, the arbitration has the right to consider the case both under the usual procedure and with the use of simplified proceedings. In the latter case, a separate procedural document is issued.

Regardless of whether there is an appeal to a district or arbitration court, the claim should indicate all registration data for the liquidated legal entity. If a copy of the extract from the Unified State Register of Legal Entities has been preserved, then it should also be attached.

What happens next

So, a judgment is necessary in any case. However, it won't be enough.

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

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

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

On June 28, 2017, amendments to Law 14-FZ came into force. Their essence is that the director or founders may be liable for the debts of a liquidated limited liability company.

However, there is one significant "but". To recover debts from these entities, it is worth proving that a certain amount of money was not repaid due to malicious or unreasonable actions.

Therefore, before you decide to file a lawsuit in court to hold the director and other persons liable for the unpaid debts of the enterprise, you need to thoroughly prepare and collect evidence of their malicious actions.

Subsidiary liability of the founder and director of LLC for debts in 2018

What is subsidiary liability, who and what will be responsible for the debts of 2018?

Subsidiary liability is the responsibility of the director and founders to creditors and the state for the company's debts. If a legal entity cannot pay off its obligations on its own, then the debt in full financial volume falls on the shoulders of persons brought to subsidiary liability. It can be assigned to the director, founder, chief engineer or chief accountant, and indeed to any citizen who made decisions or was responsible for the activities of the debtor.

In addition, a new term has been introduced person controlling the debtor. This is an individual who actually managed the activities of the company, gave instructions or determined the actions of the performers. According to the well-established expression in Russia - "the owner of the company." It is not necessary to be legally affiliated with the firm; if the fact of control is established and proven - subsidiary liability inevitably.

To the subsidiary liability of persons controlling the debtor citizens are involved who tried to control the activities of the LLC in various ways:

• Directly gave binding instructions;
• By persuading or coercing officials, they performed actions with “their” hands;
• Influenced the manager and other decision makers.

​Conditions for vicarious liability

Subsidiary liability of the founder and director of LLC under the law arises only in the presence of losses of the established company. If the assets are sufficient to meet the requirements of creditors, then no one can be held liable for subsidiary liability.

Otherwise, the following conditions must be met:

1. The person involved should have the right to give instructions that are binding on the company, or otherwise influence its actions.
2. Should be held bankruptcy proceedings(hereinafter referred to as the procedure) or a debtor's application for insolvency has been received.
3. A causal relationship between the actions of the person involved and the ruin of the company must be proven. Only the wrongfulness of actions leads to subsidiary liability. At the same time, the presumption of innocence of the director or the person controlling the debtor does not apply - they need to prove their innocence if they receive an application for vicarious liability against them.

In its turn, subsidiary liability of director for LLC debts arises from the loss, distortion or concealment of the debtor's accounting documentation.

Who can initiate the procedure?

• Debtor
• Lenders

Bankruptcy initiated by the debtor

In some cases, it is beneficial for the debtor to apply to the Arbitration Court with an application for bankruptcy. The advantage is that in this case he can participate in the procedure: choose a “managed” arbitration manager, block creditors’ claims regarding the company’s property and at the same time continue to operate until the liquidation of the legal entity.

The debtor who initiated the bankruptcy is required to present evidence of insolvency (for example, the impossibility of doing business due to a foreclosure imposed on property or the inability to satisfy creditors' claims that exceed the company's assets).

Clause 1, Article 9 of Law No. 127-FZ lists cases when the head of the company has an obligation to independently file an application for recognition of insolvency:

• After settlements with several creditors, the company will not be able to settle with other creditors and (or) pay taxes;
• The management bodies of the LLC (founders meeting), having considered the report of the head on financial condition companies that have decided to initiate bankruptcy proceedings;
• If, in order to settle accounts with creditors (pay taxes), the LLC will be forced to sell its property and will no longer be able to carry out economic activities;
• LLC meets the signs of insolvency, i.e. there is not enough money to pay taxes and settle accounts with creditors;
• The LLC does not have enough property (assets) to pay off the accounts payable.

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It is more correct to submit an application during the period of liquidation of the LLC. Then the final stage is initiated - bankruptcy proceedings, and the debtor is liquidated according to a simplified procedure. This saves time and money.

Bankruptcy initiated by creditors

The lender has the right to initiate the procedure, and not everyone. Law 127-FZ uses the concept of a bankruptcy creditor, that is, a creditor for monetary obligations. If you owe money, then you - bankruptcy creditor. If the debtor failed to deliver goods or performed services, then you are not a bankruptcy creditor. Various non-payments (for goods transferred, services rendered or work performed), loan amounts (with interest), as well as debts due to damage to the creditor's property or illegal actions of the debtor are considered a monetary obligation. The bankruptcy creditors do not include fines, penalties, interest for late payment and losses in the form of lost profits in the amount of the monetary claim.

When filing an application for declaring a debtor bankrupt, a bankruptcy creditor must follow the requirements of the law:

1. At least 3 months have passed since the onset.
2. The debt is calculated in the amount of at least 300 thousand rubles.
3. Confirmation of the debt is reflected in the court decision that has entered into force.

Bankruptcy initiated by the Federal Tax Service

The worst option for the debtor is the initiation of the procedure by authorized bodies (the prosecutor's office or the Federal Tax Service). The bankruptcy law gave the Federal Tax Service special rights that allow you to file an application without a judicial act that has entered into force. Unlike conventional creditors, the IFTS is sufficient to issue a decision on the collection of debt at the expense of the taxpayer's money or property. And then - after 30 days, the Federal Tax Service files a lawsuit.

It should be noted that the Federal Tax Service files a lawsuit only if it is sure that the debtor has property. This is due to the fact that the courts require to establish the facts about the existence of property, so that there is someone to pay the legal costs and the work of arbitration managers. If there is no information about the property, then the inspectorate will make every effort to find it, make inquiries to Rosreestr, bailiffs, the traffic police, etc. government bodies. The same applies to subsidiary liability - the tax authorities will collect evidence on the beneficiaries, and only then they will file a bankruptcy lawsuit.

The procedure for bringing to subsidiary liability

In order to bring the persons controlling the debtor to subsidiary liability, it is necessary to clearly observe the procedure set forth in Federal Law No. 127. It is possible to bring the perpetrators to subsidiary liability only during bankruptcy proceedings, when the property of the bankrupt company has been sold and settlements have been made with creditors.

First, the arbitration manager considers the bankruptcy case and establishes the circumstances that led to it. It collects information about the property of the debtor, as well as those involved in bankruptcy. The manager may request the appointment of an examination if he has doubts about the "veracity" of bankruptcy. If signs of intentional or fictitious bankruptcy are found, the manager, after declaring the company bankrupt, can file a claim for bringing the perpetrators to subsidiary liability. Filing a claim is the exclusive right of the arbitrator. If he does not consider it necessary to do this, then the initiative to submit an application passes to bankruptcy creditors.

Arbitrage practice

Judicial practice in cases of bringing to subsidiary liability is extremely contradictory. Let us note several significant decisions of courts of different instances.

1. The persons controlling the debtor are obliged to prove the validity and reasonableness of their actions themselves if the other party presents arguments against their good faith. Otherwise, the "owners" of the enterprise bear subsidiary liability for its obligations. The presumption of guilt is confirmed by the ruling of the Supreme Court of the Russian Federation of March 9, 2016 No. 302-ES14-147.
2. Failure to file an application and harm to the creditor are interrelated. The Supreme Court of the Russian Federation considers that in this case, by definition, there is a causal relationship between the actions (inaction) of the debtor's representative and the loss of the creditor or the state represented by the authorized body. This decision was issued on March 31, 2016 No. 309-ES 15-16713.
3. Officials who do not initiate the procedure in time may be disqualified for a period of 6 months to 3 years. This is especially true for managers who have committed repeated violations of the bankruptcy procedure. This was indicated by the Arbitration Court of the Belgorod Region in its decision dated June 9, 2016 in case No. А08-2321/2016.
4. Responsible persons of the debtor who did not transfer the documentation to the bankruptcy trustee will be subject to subsidiary liability (decision of the Arbitration Court Sverdlovsk region in case No. А60-45815/2014).
5. Debt of 300 thousand rubles. allows the tax authority to file a bankruptcy claim. This amount should not include claims for the payment of personal income tax. They belong to the requirements of the second priority, which are not taken into account when determining the signs of bankruptcy. Decrees of the Arbitration Court of the Volga-Vyatka District dated March 14, 2016 No. F01-311/2016 and dated October 16, 2015 No. F01-4117/2015 were issued on this.

The scheme “to establish an LLC - appoint a nominee manager - manage it yourself” is no longer a guarantee of avoiding responsibility. The Federal Tax Service was tasked with increasing the collection of taxes to the treasury, and the tax authorities received enough tools to carry it out. The circle of persons controlling the debtor is practically unlimited, and each of them can become a target for bringing to subsidiary liability.

In parallel, work is underway to protect creditors from "controlled bankruptcy" of unscrupulous debtors. Those guilty of intentional bankruptcy risk not only their money, but also disqualification, and in the worst case, freedom. According to experts, Russian business is entering a stage of increased state control, and one must be prepared for this.

We figured out when the subsidiary liability of the founder and director of an LLC for debts comes in 2018, how it can be prevented and resolved. This is the main and most frequent case in which it occurs. If you have weighed all the pros and cons and are ready to open an LLC or create labor contract with the director, a free business registration service will help you with this: