Alternative elimination of risks. Alternative liquidation risks

Beneficiary's subsidiary liability: unlimited liability and eternal debt

The responsibility of top management who resorted to one-day schemes or took out assets before bankruptcy - on the example of the Tatarstan practice. In the new blog for "BUSINESS Online" from the partners of ANP "Zenith" Yulia Zazdravnaya and Guzel Valeeva, you will learn that the world will never be the same: from June 2017, even after the end of bankruptcy, creditors can file claims against the actual owners guilty of the company's insolvency ...

A SOCIETY WITH UNLIMITED LIABILITY

Subsidiary liability is the liability of the controlling persons for the company's debts (in case of insufficient property of the latter). In recent years, it has not been perceived by entrepreneurs as something out of the ordinary, as tales or horror stories for the especially impressionable. Many people have a general idea of ​​how it works.

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

However, bankruptcy legislation is moving forward. Serious amendments were made at the end of 2016, blocking many avenues for avoiding subsidiary liability.

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

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

GROUNDS FOR SUBSIDIARY LIABILITY

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

- non-filing (late filing) of a bankruptcy petition;

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

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

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

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

- work with one-day firms; for example, former heads of the Chelny company Fatiha were brought to the subsidiary liability in the amount of over 15 million rubles for the connection with one-day incidents (decree of the AS PO of 11/22/16 on case No.A65-7420 / 2014);

- withdrawal of assets before bankruptcy; the head of another Chelny company Leks paid subsidiary liability in the amount of about 4 million rubles just for the withdrawal of assets (without payment from the buyers) shortly before bankruptcy (resolution of the AS PO dated 04/07/2016 in case No. А65-17893 / 2014);

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

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

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

For example, the head of the Kazan company "RusBauerStroy" was brought to subsidiary liability in the amount of over 148 million rubles (together with the founder) just for failure to fulfill this obligation (AS PO Resolution No.A65-6411 / 2011 of 05/17/2016).

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

It is noteworthy that the last rate has already started working.

Thus, in the case of Dataport Systems, the court of first instance did not find grounds for subsidiary liability (“due to the impossibility of making an unambiguous conclusion about the guilt of the founders”). However, the appeal considering the case on 13.10.2016 (that is, after the amendments entered into force) sent it for a new examination. The judges, among other things, noted that more than 50% (53.7 million out of 88 million rubles) of the claims relate to additional charges for an on-site tax audit (Resolution 9 of the ААС dated 1310.2016 in case No. А40-97946 / 2016).

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

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

WHO'S RISKING?

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

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

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

From 01.09.2016, the minimum period of influence of the controlling person has been increased from two to three years. At the same time, it is specified that controllers can be recognized as persons who influenced the company through family, inherent ties or through official position.

What conclusions follow from this?

Conclusion 1. The appointment of a nominee director / founder does not guarantee protection from subsidiary liability. After all, there is always a risk that, with the threat of its own responsibility, the denomination will indicate the real owner of the business. Not the least role is played by the testimony of witnesses (obtained, for example, in the course of operational-search activities).

Conclusion 2. Change officials the company allows to shift responsibility to a new leader from the moment of amendments to the Unified State Register of Legal Entities, but does not relieve real leaders / founders from responsibility for actions taken during their leadership.

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

FORA FTS

Position tax authorities in bankruptcy cases, it increases from year to year, and, along with banks, the FTS turns into a serious and dangerous opponent.

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

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

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

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

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

In addition, the tax authority, like banks, initiates bankruptcy without the obligatory "draining" of the debt (that is, the inspection is sufficient for the decision of the tax authority that has entered into force).

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

FAILURE TO SUBMIT AN APPLICATION FOR BANKRUPTCY

If there are signs of insolvency, the manager must, within a month, apply to the Arbitration Court with a petition to declare the company bankrupt.

Failure to comply with this obligation is another good reason for subsidiary liability. This is understandable: the composition is formal, the guilt of the leader in this case does not need to be proved.

Nevertheless, there are some nuances here:

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

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

For example, for tax payments, the moment the obligation arises is the moment of the end of the tax (reporting) period, and not the expiration of the payment deadline (definition of the RF Armed Forces of March 31, 2016 in case No. A50-4524 / 2013).

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

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

In the case included in clause 26 of the review of the RF Armed Forces of 20.12.2016, challenging the decision of the tax authority (including due to the lack of uniformity in the application of tax legislation) made it possible to avoid subsidiary liability for untimely actions to initiate bankruptcy.

WILL NOT BE SENDED

We think that it is not a secret for anyone that now you can simply "abandon" the company and in a year's time get the compulsory exclusion of the company from the Unified State Register of Legal Entities (no bankruptcy costs - beauty!). By the way, the FTS excludes a company from the Unified State Register of Legal Entities if no reporting is provided within 12 months and there are no movements in the current accounts.

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

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

In particular, from June 28, 2017, no exclusion from the Unified State Register of Legal Entities is allowed. legal entity if in relation to him there is an application accepted by the Arbitration Court on declaring the debtor bankrupt. Provided that the proceedings have not been terminated.

Moreover, the persons who control the company (forcibly excluded from the register) during last three years, will be able to bring to subsidiary liability if the company has unfulfilled obligations due to unfair and unreasonable actions of these controlling persons.

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

"SUBSIDIARK" OUTSIDE BANKRUPTCY

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

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

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

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

"SUBSIDIARKA" AFTER BANKRUPTCY

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

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

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

a) the creditor ( authorized body) learned or should have learned about the existence of grounds for bringing the controlling person to subsidiary liability only after the completion of the bankruptcy proceedings;

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

Such a claim will be filed through a class action; the initiators of the statement will have to look for those who could join it. For this, the latter will have the right to familiarize himself with the materials of the bankruptcy case.

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

YOUR MANAGER WILL NOT HELP

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

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

Moreover, the creditors' committee and individual creditors can remove the liquidator in the event of the latter's unfair performance of his duties - for example, for passivity in challenging the debtor's transactions.

And finally, the rule on disqualification of a manager for any repeated violation has been in force for a year (part 3.1 of article 14.13 of the Administrative Code). The first such decision was made in relation to an insolvency administrator from Tatarstan.

The reason for the manager's disqualification for six months was that he posted a bankruptcy announcement four days late, did not indicate his insurance account number and mailing address, and did not publish another announcement at all. At the same time, the courts took into account that the manager had already been brought to justice under this article of the Code of Administrative Offenses. The arguments of the manager about the insignificance and technical nature of the violations were not convinced by the courts (Resolution 11 of the ААС dated 06.09.2016 in case No. А65-7055 / 2016).

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

ETERNAL DEBT

But bringing the controlling person to subsidiary liability is only half the battle. Now debt collection from the controlling person often ends with the fact that such claims are put up at auction, where they are bought by persons affiliated with the debtor for a pittance, or even without auction at all.

For example, a meeting of creditors of the Chelny company RusKhimenergo made a decision to sell the subsidiary liability debt in the amount of over 3.6 million rubles for 15 thousand rubles (the “market” price according to the appraiser's report). But the bankruptcy commissioner and the Federal Tax Service provided the court with information about the possession of the controlling person of property, due to which the disputed debt can be collected ( vehicle, real estate). The forensic examination showed a completely different market value of the debt, and the court declared the creditors' decision invalid (resolution of the AC PO of 10/27/2016 in case No. A65-6419 / 2014).

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

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

Within the framework of this procedure, it is possible to contest transactions for the alienation of property (including contracts of donation of property, marriage contracts) concluded three years before the filing of the bankruptcy petition. Moreover, a bill is now being discussed that would make it possible to sell even the debtor's only housing if its area exceeds the established norms.

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

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

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

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

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

P. S. Write the topics that interest you in the comments.

Guzel Valeeva, Yulia Zazdravnaya

The most popular way to get rid of the company remains alternative liquidation... Most still think that as soon as the company is “sold” to Chukotka or “reorganized” there, they will not get to them. In the event of an alternative liquidation, the liquidation of an LLC or CJSC does not take place, the former owners and management simply stop formal communication with it and say goodbye. There are two options. The first is the “sale” of the company, that is, the change of director and founders to dummies. The second is "reorganization", in which a legal entity joins another or merges with it in a third.

In case of a “sale”, the legal entity itself remains as it is, therefore, such a “sale” does not affect the likelihood of verification, and it will not be possible to transfer its personal responsibility to the dummy managers and founders. In accordance with the law, for the period while the liquidated organization was yours, you are responsible. For example, by the decision of the Arbitration Court of the Moscow Region in case А41-40552 / 09, the former director and owner of the company was brought to subsidiary liability in the amount of about 6 million rubles. The court saw no grounds for bringing a new one. Was there new leader and the owner is a dummy who "bought" the troubled company, or is simply a naive person, we can only guess. From the materials of the case, this is not visible, but it is clear that it does not matter. The offense was committed during the period of the former leader, so he is responsible.

Since we have brought up the topic of dummies, one more thing. Transferring responsibility to such a person is problematic in principle. It is usually easy for law enforcement agencies to establish that such transactions are fake in more complex cases. For example, according to the materials of case 1-434 / 10 of the Syktyvkar City Court of the Komi Republic, it is clear that criminal liability under Art. 199 of the Criminal Code of the Russian Federation, the actual head of the company was involved for tax violations, who formally never had anything to do with it. The company has had a dummy founder and director since registration.

Now "reorganization". The sweet words of the liquidators can be misleading, because our consciousness has one property - to hear what we want to hear, and not to hear what we don’t want. Indeed, we will hear that the company will be deleted from the Unified State Register of Legal Entities during the reorganization, but that as a result a legal successor will appear, we can skip. Therefore, I draw your attention to the fact that after the reorganization, all obligations of the company, including those unfulfilled and undetected before, are transferred to the legal successor. How does this affect the likelihood of verification and the ability to transfer responsibility to another person? Let's see.

After the decision on reorganization is made, the company is obliged to inform about it in its tax office... In accordance with Art. 89 of the Tax Code of the Russian Federation, the tax authority in this case has the right to conduct an audit regardless of the time and subject of the previous one. Whether he does it or not depends on the region, the turnover of the company and the stars in the sky. Thus, already at the very beginning of the liquidation of a legal entity, you can provoke what you least wanted. Let's say there was no check and the reorganization went without consequences. So what, why on earth would the likelihood of an audit of the successor company be less than yours before the "reorganization"? Maybe more? Maybe. In the market for “reorganization” services, competition is strong and, in order to earn money with low prices, the participants came up with "two", "three" and I even met in judicial practice, when the liquidators collected ten companies in a legal successor. That is, they will merge and merge your company along with two or three of the same, this gives savings. The probability of checking such a legal successor is, by definition, higher than any predecessor individually, and if among the friends, unfortunately, there is also a company “with history”, it will pull the entire team to the bottom. Verification of the successor also means verification of the activities of the predecessor company. And who will be responsible for its activities? Of course, the one who controlled or owned it before the "reorganization". For example, by the judgment of the Ustinovsky District Court of Izhevsk, the Udmurt Republic of 07.07.2008 in case 1-385 / 08, the head and founder of the company was found guilty under Art. 199 of the Criminal Code of the Russian Federation in the commission of tax crimes in 2005-2007, although by the time of the tax audit and this court decision, the company itself had already ceased its activities, “reorganized” through a merger, and was removed from the Unified State Register of Legal Entities.

The main problem of the alternative liquidation of an LLC or CJSC is that the legal entity remains. By itself or in the form of a legal successor - it is not so important, the legal consequences are the same. In the future, about 20% of them will be checked, and the former management and owners will be prosecuted for tax crimes.

Due to our specifics, not a week goes by without the person controlling the company turning to us for help in such a situation. The origins of these stories are similar: as a result of an alternative liquidation, the company is “sold” or “reorganized”, transferred to a remote region and abandoned, the documents are “lost”. Some time after the "liquidation" of the organization, the FTS decides to conduct an audit regarding the correctness of the calculation and payment of VAT and other taxes. At the current legal address of the company there are requirements to provide primary documentation, but whoever reads them. There is no one to pay attention to them, even if the address is still valid. Well, the absence of primary funds in no way prevents from calculating taxes by calculation, which will be done. In accordance with Art. 31 of the Tax Code of the Russian Federation, in case of failure to submit documents for more than two months, the tax authorities have the right to determine the amount of taxes by calculation based on the information they have about the taxpayer. And tax deductions that you previously indicated in the submitted VAT returns, in the absence of original invoices from suppliers, cannot be provided by virtue of Art. 169, 172 of the Tax Code of the Russian Federation. Thus, the FTS simply uses the data of bank payments and makes additional charges (for VAT) for the entire amount of the company's turnover in three recent years... The legality of this has been confirmed many times by judicial practice throughout Russia. For example, case A43-16596 / 2005-36-614 in the Arbitration Court of the Nizhny Novgorod Region or A06-8254 / 2009 in the Arbitration Court Astrakhan region... In the second case, there is one episode worth paying attention to. The taxpayer did not submit part of the documents, referring to the fire. Moreover, the fact of the fire was documented in a letter from the State Fire Supervision Department with a list of damaged documents. Based on the materials of the case, it can be concluded that the only thing that the taxpayer could achieve in this case is the cancellation of sanctions for deliberate failure to submit documents. The "official" fire did not save from the additional charges themselves.

After additional charges, the tax authority will send by registered mail tax claim. After 6 days, it will be considered received and in accordance with Art. 69 of the Tax Code of the Russian Federation must be executed within 8 days. In case of non-fulfillment within the specified period, the tax authority makes a decision on the collection of taxes, fees, penalties, fines at the expense of Money on current accounts and is waiting for 2 months of full payment. Then, if the amount of additional charges exceeds 2 million rubles, he is obliged in accordance with Art. 32 of the Tax Code of the Russian Federation to send materials to law enforcement agencies authorized to investigate criminal cases of tax crimes. After talking with them, the person who controls the company, who has already forgotten about his “liquidated” company, realizes that he needs emergency assistance, and at that moment turns to us.

These stories have the same beginning, but the ending is different - good or bad. Good. It is possible to quickly find the dummy directors and founders, on whom the company or its legal successor was re-registered during the alternative liquidation of an LLC or CJSC. They initiate the procedure for the official liquidation of the enterprise and the new head, the chairman of the liquidation commission, will send an application for declaring the company bankrupt. The court ruling on the completion of the company's bankruptcy procedure is the basis for writing off all existing debt and excluding the company from the Unified State Register of Legal Entities. The criminal case will be terminated by lawyers.

It was good script, but such a possibility is not always the case, and it's not just technical factors like the fact that dummy director impossible to find. The point is different - the FTS often initiates bankruptcy first. If this happens to you, I would not want to be in your place. Why? I think the answer is on the surface. According to the current legislation, the bankruptcy procedure is conducted by the bankruptcy manager and all powers are in his hands. If the bankruptcy of an LLC or CJSC is initiated by the Federal Tax Service, then it will present its candidacy as a manager. This will predetermine his loyalty and the result of the procedure.

Bad news. Recently, the FTS itself has begun to initiate bankruptcy of companies and to bring their management and owners to subsidiary liability.

The Federal Tax Service knows how to make an insolvency administrator look for money and property of a company with a particular bias, or, if it fails, to shift the debt onto you personally within the framework of subsidiary liability. Payment for his work will be directly dependent on the size of the awarded property and funds. The arbitration manager is a qualified expert and manager, he will analyze the financial and economic activity companies over the past few years, look for suspicious transactions and corpus delicti. Suspicious transactions will be challenged by him in order to return the assets, and the corpus delicti will be used to bring you to criminal proceedings - as a way of pressure and subsidiary liability. The capabilities of law enforcement and tax authorities will be used to gather the necessary information and evidence. I believe that many of your actions will be qualified against you. Even a small description of our history can predict that, if necessary, law enforcement agencies will easily prove the feigned or fictitious nature of relations with dummies, as, for example, in the case A40-61317 / 09-74-256 of the Moscow Arbitration Court. The fraudulent person will not take on any responsibility and will immediately confirm the fake of the transaction, moreover, the "liquidators" often use only passport data to save money, and unidentified persons sign the documents. In most cases, the front man will not matter at all - you are still responsible for your period.

I must say that many arbitration managers work in our company and each has its own history. Some of them, before embarking on the true path and coming to us, managed to sin and play for the Federal Tax Service. Here is the time to remember two such cases from past life- A41-1223 / 08 and A41-14241 / 10 of the Arbitration Court of the Moscow Region and learn a lesson. It can be seen from them that the head of the unprofitable enterprise decided to withdraw the assets - real estate, and then close the company itself. He implemented a complex scheme of alternative liquidation of the organization - change to denominations with subsequent double reorganization. The arbitration manager, in the interests of the Federal Tax Service, challenged all reorganization actions. According to his statement, the court declared it invalid, the company record was returned to the Unified State Register of Legal Entities, and real estate with a total area of ​​10,000 sq. M. to the bankruptcy estate. Thus, as long as a successor remains, your "reorganized" business can be returned to you, whether you like it or not.

The arbitration manager will try to collect evidence that your illegal actions to evade the payment of taxes led to the deliberate bankruptcy of the organization, as in case A71-4633 / 2008-G15 of the Arbitration Court of the Udmurt Republic. In addition to criminal prosecution for tax evasion under Article 199 of the Criminal Code of the Russian Federation, deliberate bankruptcy is the basis for bringing to subsidiary liability and criminal under Article 196 of the Criminal Code of the Russian Federation "Intentional bankruptcy". It is not easy to prove the deliberate bankruptcy of an LLC or CJSC, therefore, let me remind you that Federal Law N 73-FZ came into force in June 2009, which took into account these difficulties, and introduced additional grounds for bringing to subsidiary liability, which are much easier to prove.

One of them - the failure to submit documents on time, we have already met on the example of the case A56-27267 / 2009 of the Arbitration Court of the city of St. Petersburg and the Leningrad region. Another example of this reason is case А81-6369 / 2009 of the Arbitration Court of the Yamalo-Nenets Autonomous Okrug. It follows from it that the Federal Tax Service initiated the bankruptcy of the company and the arbitration manager appointed at its presentation brought the former head to subsidiary liability for 8.5 million rubles for the fact that the head did not transfer the primary accounting documents. Moreover, the court ruling emphasizes that since the transfer of documents is his duty, then “the obligation to prove the proper performance of this duty by virtue of Article 65 of the Arbitration Procedure Code of the Russian Federation lies with the former head” - presumption of guilt.

The second new reason, which is easy to prove, is the failure to file a bankruptcy petition for an LLC or CJSC. Please note that if your company has become insolvent, you must submit an application within one month from the date of occurrence of the relevant circumstances. Violation of this obligation entails subsidiary liability. Examples of this reason are case A41-1772 / 09 of the Arbitration Court of the Moscow Region, case 2-166 / 10 of the Ishim District Court of the Tyumen Region, case A50-20763 / 2009 or case A50-6110 / 2009 of the Arbitration Court of the Perm Territory. They are all like a blueprint. They show how the Federal Tax Service initiated the bankruptcy of the company and the arbitration manager, appointed on its behalf, brought the former manager and founder to subsidiary liability for violating the obligation to file an application for declaring the company bankrupt.

Failure to submit documents on time and failure to file a bankruptcy petition are today the most popular grounds for bringing to subsidiary liability. They are easy to prove and difficult to overcome. In the alternative liquidation of an organization, you create them yourself and drive yourself into a trap ...

For fans of alternative liquidation, I would like to inform you that today the FTS has spread several practices that are dangerous for the former owners and management. We examined one in detail - this is the verification of the company or the assignee, some time after the alternative liquidation of an LLC or CJSC. Its purpose is to charge additional taxes by calculation due to the lack of primary funds and, if they do not pay, initiate criminal prosecution and bankruptcy proceedings for an LLC or CJSC in order to bring the former management and owners to subsidiary liability for these debts to the budget.

The second practice is no less popular - it is the abolition of the very alternative liquidation of the organization. The popular transfer of the company "to Kamchatka", with the change of director and founder, is now often canceled by courts at the request of the receiving Inspectorate of the Federal Tax Service in the framework of the fight against "migrant companies" and the company, quite unexpectedly for the previous owner, returns to him. The tax authorities simply check the company at a new address, which is often the well-known address of the mass registration, and, failing to find it there, go to court. The example of the same court clearly shows that this practice is of a regular nature: case А55-25289 / 2011, case А55-27163 / 2011 and case А55-31647 / 2011 of the Arbitration Court of the Samara Region.

The same situation is with the reorganization. The absence of a legal successor at the specified address and signs of any financial and economic activity thereof are grounds for canceling the reorganization, as in case A56-42884 / 2010, case A56-55410 / 2010 or case A56-27840 / 2011 of the Arbitration Court of the City of St. Petersburg and Leningrad region. Ten companies took part in the first "reorganization", in the second and third, five each and all of them returned back to their previous owners on the initiative of the Federal Tax Service Inspectorate.

Pay attention once again to how many companies the liquidators are merging into one. As we understand, everyone is trying to get rid of troubled companies and among such a number it is likely that there will be one that will make it mandatory to check the successor and, accordingly, all predecessors. This is often a latent reason for the desire of the Federal Tax Service Inspectorate to cancel the reorganization in order to simplify its life.

The cancellation of the alternative liquidation of a legal entity by a court decision, whether it be the transfer of a company to a region or its reorganization, today is a well-established and fairly widespread practice for the Federal Tax Service due to its simplicity and efficiency.

At the end of 2011, another surprise awaited us - the presidential law "on fly-by-night firms." This law introduced, inter alia, criminal liability for the use of dummies in the creation and reorganization of companies - Art. 173.1 and Art. 173.2 of the Criminal Code of the Russian Federation. When a sufficient amount of judicial practice appears, we will understand how it actually works, but it can be expected that the alternative liquidation of an LLC or CJSC will become a crime in itself. In the meantime, I would like to note that in the first half of 2012, more than 70 criminal cases were initiated and there is already a real term - 3 years for reorganization with the involvement of the face value.

The 2011 presidential fly-by-night firm law criminalized the use of dummies in the creation and reorganization of companies, making alternative liquidation a crime in itself.

Relatively recently, such a concept as “ alternative liquidation».

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

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

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

As a result, the debtor legal entity ceases to operate and disappears. All his duties are transferred to another organization. As a result of all this paperwork, debt confirmation documents disappear. Alternative liquidation completed successfully.

Despite this, the disadvantage of alternative liquidation is that the legal entity remains. And there is a high probability of verification of the assignee. Verification of the successor also means an audit of the activities of the predecessor company. Who will be responsible for her work? Of course, the one who controlled or owned it before the "reorganization". Consequently, the former management and owners can be brought to criminal and subsidiary liability.

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

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

The third way is to stop using the company. In accordance with Art. 64.2 of the Civil Code of the Russian Federation and Art. 21.1 and clauses 7 - 8 of Art. 22 ФЗ "О state registration legal entities and individual entrepreneurs”, The procedure for excluding an inactive legal entity from the Unified State Register of Legal Entities means that the company has actually ceased its activities.

The decision to exclude from the Unified State Register of Legal Entities can be made in the presence of the following circumstances at the same time: 1) the legal entity has not submitted tax reports for the last 12 months; 2) did not carry out transactions in at least one of their accounts. If the company has several accounts, then there should be no transactions on any of them (clause 1 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation of January 17, 2006 N 100).

In order to get rid of the company, the owner only needs to withdraw assets in advance, lay off all staff and wait about 1.5 - 2 years. The registrar, having made a decision to exclude from the Unified State Register of Legal Entities, informs the owner of the company, creditors and other interested parties, indicating the address and is published in the Bulletin of State Registration. Interested parties can submit an application within 3 months from the date of publication of the registrar's decision in order to block the administrative procedure for the termination of the counterparty's activities. (Resolution of the FAS ZSO dated 20.02.2013 in case N A81-921 / 2012). The risk of the impossibility of collecting debts as a result of the exclusion of the company from the Unified State Register of Legal Entities lies with its creditor (Resolution of the FAS ZSO dated 06.08.2014 in case N А03-13327 / 2013). Therefore, we can say that if creditors did not manage to declare themselves after the debtor was excluded from the Unified State Register of Legal Entities, then they are not entitled to recognize the debt (Letters of the Ministry of Finance of Russia dated 11.12.2012 N 03-03-06 / 1/649 and dated 08.11.2012 N 03 -03-06 / 1/577). But interested persons can appeal against the decision to exclude from the Unified State Register of Legal Entities within one year from the day when they learned or should have learned about the violation of their rights.

Each of the alternative liquidation methods can attract the attention of FTS employees and cause a tax audit. The result of such inspections may be the appearance of civil claims of creditors, the need to pay penalties and fines for administrative and tax penalties.

However, it is not uncommon to initiate criminal cases against former leaders. For example, under Article 177 of the Criminal Code of the Russian Federation for malicious evasion from paying off accounts payable, under Article 199 of the Criminal Code of the Russian Federation for tax evasion, or under Article 173 of the Criminal Code of the Russian Federation for illegal business... Besides, alternative liquidation may fall under such corpus delicti as st. 173.1 of the Criminal Code of the Russian Federation for the formation (creation, reorganization) of a legal entity through dummies and Art. 173.2 of the Criminal Code of the Russian Federation provides for criminal liability for illegal use of documents aimed at the formation (creation, reorganization) of a front legal entity.

Consequently, it can be said that when companies are fictitiously closed by merger / merger or simply re-registration to a third party, the owner is liable for non-fulfillment of obligations to creditors, non-payment of taxes, and even criminal liability.

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

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

It's not a secret for anyone that the legislation in the Russian Federation is changing not so rapidly, but somehow completely at lightning speed. New laws are being stamped, resonant decisions and explanations are issued, formal and informal "instructions" are issued to various controlling and judicial instances. The “rules of the game” governing the procedures for the alternative liquidation of legal entities, having undergone dramatic changes in the blink of an eye, were no exception. Amendments were adopted to FZ 127-FZ "On insolvency (bankruptcy)", amendments were made to FZ 129-FZ "On state registration of legal entities and individual entrepreneurs", the Civil Code of the Russian Federation was updated, as well as a number of other regulatory legal acts regulating procedures and technologies alternative liquidation of firms. Simply put, the liquidation was not at all what it was just a month ago.

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

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

Since June 14, 2016, on all forms 16001 "Application for state registration of a legal entity in connection with its liquidation" submitted to the Federal Tax Service Inspectorate No. 46 in Moscow, decisions have been made to suspend state registration. Formally, for a period of one month, for a thorough check of the submitted information. However, according to confirmed information, the suspensions will be followed by massive refusals to complete the initiated reorganizations. The same thing, a little earlier, happened in Kazan, which has recently become the "Hong Kong" of alternative liquidations, as well as in other regions of the Russian Federation. Thus, the procedures for the liquidation of firms were frozen practically throughout the country. Order of the Federal Tax Service dated 11.02.2016 No. ММВ-7-14 / [email protected]"On approval of the grounds, conditions and methods for holding the events specified in paragraph 4.2 of Article 9 of the Federal Law" On State Registration of Legal Entities and Individual Entrepreneurs ", the procedure for using the results of these events, the form of a written objection regarding the upcoming state registration of changes to the charter of a legal entity or the upcoming introduction of information to the Unified State Register of Legal Entities, application forms natural person about the unreliability of information about him in the United state register legal entities "entered an active phase.

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

The technology of liquidation of a company through a simplified procedure for bankruptcy of the debtor being liquidated has also lost its meaning. Amendments to the main law governing the specified procedure, namely, 127-FZ "On insolvency (bankruptcy), introduced norms that deprive the debtor of independently specifying the desired candidate for a" loyal "bankruptcy manager. Article 37 of FZ-127 "on insolvency (bankruptcy)", with the amendments, began to sound as follows: clause 5 of this article ... 5. In order to indicate the self-regulatory organization of insolvency practitioners in the debtor's application, it is determined by random selection in the manner established by the regulatory body when publishing a notice of the debtor's application to the arbitration court. "

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

1. The Internet is brightly replete with announcements of "reorganization of an LLC by accession", "liquidation of an LLC through reorganization" and the like. Moreover, when, out of a really healthy legal curiosity, questions were asked with a request to indicate the region of successors and OGRN of organizations that took place in June - not a single legal company gave us a clear answer, referring to the "commercial secret of this information."
2. In spite of all the changes, proposals to change the region of the location of the legal address of the LLC (migration) also became no less, but rather more. And here, in response to a request for the OGRN of past firms, a “specific” cut portfolio was sent - no more than 3-5 companies that went to a new address. But we never saw the next ones. Conclusion - there will be a clean, "zero" address - there is a great chance to move to it, but you need to manage to get into the top five.
3. We have worked out commercial proposals for the “liquidation of an LLC through an offshore”. And the most beautiful ones - with clever words and business-like pictures. We were offered to make the first payment in rubles, the second at the exchange rate in foreign currency - apparently for greater surroundings. To the question “send OGRN completed projects” - again silence. Apparently, the passion for prepayment took its toll here too.
4. Several times tried to find out from legal organizations offering bankruptcy services under a simplified procedure for a liquidated debtor - how are they going to indicate the candidacy of their "loyal" bankruptcy administrator, because this is really interesting. So far, we have not received a clear answer from anyone.
5. It should be noted that several law firms gave us intelligible guarantees of alternative liquidation (the cost, however, even exceeded the cost of the bankruptcy procedure). However, their offerings are a drop in the ocean, which is completely hammered by the aggressive marketing of unscrupulous salespeople.