What is subsidiary liability, who and what will be responsible for the debts of 2017?

Earlier, we wrote about the payment of dividends to the founders of an LLC in 2017. today we will talk about the reverse side of the medal of doing business - about liability to the debts of an LLC. In 2016, amendments were made several times to Federal Law No. 127-FZ of October 26, 2002 “On Insolvency”. In general, the changes are aimed at protecting the rights of creditors, reducing arrears in taxes and fees from a bankrupt taxpayer, as well as increasing the founder's liability for the debts of his company.

Gone are the days when the founders or directors of an LLC for debts were responsible only for their share in the authorized capital. The well-known article 87 of the Civil Code of the Russian Federation remained in force only for prosperous companies. If the company “shines” the recognition of insolvency, then the realities are changing: it has become the norm, and business owners should think about the prospects for their personal property.

What is vicarious liability

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 - the 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 management is established and proven, bringing to subsidiary liability is inevitable.

Citizens who tried to control the activities of the LLC in various ways are brought to subsidiary liability of persons controlling the debtor

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

At the same time, the fact of giving orders or the fact of exerting influence is considered for a period of up to three years before declaring the company bankrupt.

​Conditions for vicarious liability

The subsidiary liability of the founder and director of an LLC by law arises only if the established company has losses. 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. A bankruptcy procedure must be carried out or a debtor's application for insolvency must be 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 bringing to subsidiary liability against them.

In addition, the reason for the emergence of subsidiary liability of a director or founder for debts is the fact of failure to file or late filing of an application for bankruptcy. In the presence of the circumstances listed in Art. 9 and Article 224 of Federal Law No. 127-FZ, the head of the company is obliged to independently declare bankruptcy within 1 month.

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

Who can initiate the procedure? The debtor himself, creditors or the Federal Tax Service. Let's consider all three cases.

Bankruptcy initiated by the debtor

In some cases, it is beneficial for the debtor to apply to the Arbitration Court 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 of 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 (meeting of founders), having considered the report of the head on the financial condition of the company, 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.

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.

At the same time, subsidiary liability in the event of bankruptcy of a legal entity does not depend on who initiated the procedure. For the head of the debtor (or controlling person), self-submission of the application does not give any guarantees regarding personal funds and property.

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 are owed money, then you are a bankruptcy creditor. If the debtor failed to deliver goods or performed services, then you are not a bankruptcy creditor. Various non-payments (for transferred goods, services rendered or work performed), amounts of loans (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. 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.

Lenders must be prepared to bear the costs of the procedure. Usually, the debtor has no funds for legal expenses and payment of the arbitration manager. It is possible to return the expenses incurred if, in the course of the case, the representatives of the debtor are involved in subsidiary liability.

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 ordinary 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 inspection will make every effort to find it, make inquiries to Rosreestr, bailiffs, the traffic police and other government agencies. 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. He 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, may 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 dated 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 of the Sverdlovsk Region in case No. A60-45815 / 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.

See also: meeting of creditors in bankruptcy

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 the stage of increased state control, and we need to be prepared for this.

Responsibility of the founder for the activities of the LLC in 2017

6 Responses to Responsibility of the founder for the activities of LLC in 2017

Irina 03/05/2016 at 15:17 #

Hello, I am the founder of an LLC. I was introduced into the LLC without my consent in 2012. Trusting my relative, I signed the documents as a guarantor in the loan agreement, and there were documents of the LLC meetings and I also signed them. Now I have a 100% share of the authorized capital. Meetings of founders were held without me, where another director was elected and one founder left and I was left alone. I did not put any signatures in the next meetings on changing persons in the LLC, others signed for me, thus now I am paying large sums of money on two writ of execution. Recently, another writ of execution came to the enterprise in the amount of almost 800,000 thousand. I have been a teacher all my life and am not competent in these matters. The company will most likely go bankrupt soon. How will this procedure affect my personal property, I now want to make a donation agreement for my apartment for my son, can they take away my housing from me? I don't pay my debts.

Eugene 03/23/2016 at 16:01 #

Write a statement to the police on these facts, indicating the names of your relatives who actually controlled the activities of the enterprise.
You are recognized as a "fictitious leader", and subsidiary liability, and possibly criminal prosecution, will be placed on the persons who actually control the debtor.
It is better to re-register the apartment, because creditors will try to quickly attract you to the subsidy and at least take something for themselves (the property of the founder).
It is better for you to re-register your property, and then seek your protection in the courts. But you need to write a statement to the police as soon as possible so that you have a copy of your notice to law enforcement officers in your hands. For the tax authorities, which will soon begin inspections and debt collection, this will also come in handy.

Marina replies:
October 25th, 2016 at 00:32

about the police - I agree, but about the apartment - no. If it is the only habitable dwelling in the property, it cannot be foreclosed on, even if its area is several times larger than the standards. There is a ruling of the Constitutional Court of 2012 on this issue.

Natalya Gennadievna. 04/14/2016 at 10:07 #

Hello. I have two court decisions on the recovery of debt from LLC. But when I was in the bailiff service, a small part of the debt was collected from LLC. Now the sheets were returned to me with a notice that it was impossible to find the debtor. Can I legally recover a debt (that is, sue) from the founder on the basis of these documents.

Ilya 07/23/2016 at 09:41 #

Hello! concluded a construction contract with an LLC, the deadline was 2 months, they paid for the material and work .. However, after 4 months, the founders began to draw up documents for bankruptcy (one of the persons left the founders), the second filed a divorce from his wife but remained the founder. When trying to contact him, the answer was: we are bankrupt and there is nothing to take from us. We wrote a lawsuit to the court. What are the chances of returning the paid money and from whom to get it?

Alexander 02/03/2017 at 01:54 #

Hello, I need some advice!
As an individual acquired a 50% share in an LLC and, accordingly, became a co-founder, at the time of the purchase of the share there were already debts in the company, do I need to make sure that he is formally responsible for these debts? That is, in the event of litigation, can I suffer from debts before me?

Responsibility of the founder and director of an LLC in 2017

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

Attraction algorithms

Article 56 of the Civil Code of the Russian Federation establishes that the founder (participant) of an LLC 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 for the JSC, its members are liable within the limits of the amounts contributed by paying for shares . This provision is provided for in Art. 2, p. 1, FZ-208 of 1995.

If an organization is solvent, pays taxes to the state on time, payments to counterparties, then it cannot be attracted for debts . 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.

Article 3 of 14-FZ of 1998 speaks about the possibility of imposing a subsidiary type of liability on these persons.

Responsibility of a legal entity and LLC participants

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.

The legal consequences of a 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, provisions on the invalidity of the concluded contracts will apply to such legal relations.

In addition, there is the option of bringing these persons to different types of liability .

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.

Norm 56 of the Civil Code of the Russian Federation states that a participant or owner of a company is not liable for the obligations of an LLC, just as a company cannot be liable for the founder's debts. But, as usual, there are exceptions to this rule. They are reflected in article 56, paragraph 3: the bankruptcy of the legal entity occurred due to its founders, as well as other persons who have the right to determine the work of the company .

In this case, these persons may be assigned subsidiary liability, including the head and the founder in one person. The provisions that confirm the norms of the Civil Code are contained in 14-FZ of 1998, 208-FZ of 1995, 161-FZ of 2002.

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 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.

Read also: Bankruptcy of an individual entrepreneur 2017

If the enterprise has 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 the legal status of the same individual entrepreneur, who personally, with his property, pays off the debts of an individual entrepreneur. That is why, according to existing statistics, citizens more often try to organize an LLC. and IPs are created less frequently. 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 limits of the legal entity is borne by its officials ( general director , 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:

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 a mandatory out-of-court procedure for considering a controversial 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, 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 from the date of payment of the loan, the bank has the right to initiate the 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 - to 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.

Since 2107, changes have been introduced regarding bringing the founders and participants of a legal entity to the type of liability in question. 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 unambiguously possible 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.

Criminal penalty

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

Engagement procedure

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

1. Fine.
2. Withdrawal (paid).
3. Confiscation.
4. Revocation of a license.
5. Recovery of the price of goods or vehicles.

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

A fine is a financial punishment. At the same time, the provisions of the Code of Administrative Offenses 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. For example, this is Art. 31 31-FZ of 1998, in which a legal entity is liquidated if it is engaged in drug trafficking.

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

I am its founder.
Will I be liable with my property for the debts of the LLC. Ilya

No, you will not be liable for the LLC's debts with your property.

Spouse's property.
Will she be responsible for these debts Ilya

Moreover, she is not responsible for these debts.

Article 3. Responsibility of the company

1. The company is liable for its obligations with all its property.
2. The company is not liable for the obligations of its members.
4. The Russian Federation, constituent entities of the Russian Federation and municipalities are not liable for the obligations of the company, just as the company is not liable for the obligations of the Russian Federation, constituent entities of the Russian Federation and municipalities.

Clarification of the client

But what about the subsidiary liability of the founder? In the same case, can they recover from the founder as from an individual?

Have a question for a lawyer?

This is only in case of bankruptcy about the fault of the participant.

3. In case of insolvency (bankruptcy) of the company due to the fault of its participants or through the fault of other persons who have the right to give instructions binding on the company or otherwise have the opportunity to determine its actions, the specified participants or other persons in the event of insufficient property of the company may be assigned subsidiary liability for its obligations.

In this case, the general procedure for recovery, by bailiffs, applies.

If any of the creditors apply to the court for bankruptcy of the LLC, then the founder may be held liable for subsidiary debts of the LLC.

As for the property that is registered in the name of the spouse, more information is needed. When this property was acquired during the marriage or not, how it was acquired (compensated transactions or gratuitous).

In my practice, when collecting debts through bailiffs, I try to use the division of the marital share when I act on the side of the creditor. Therefore, registration of property for a spouse is not a panacea, unless a marriage contract or an agreement on the division of property has been concluded.

The question of what responsibility the old director and former founder , after liquidation by change of director, bears for the activities carried out while they were still involved in the management of the company, is constantly asked. And this is not surprising, since one of the main reasons for the liquidation of the company is precisely the avoidance of responsibility for any actions taken during the management period.

It should be said that the responsibility of the former director and the former founder can be of fundamentally different types, namely:

Civil law;

Criminal;

Administrative;

Disciplinary (labor).

As for administrative and disciplinary responsibility, administrative responsibility applies only to the current "official" of the organization, that is, it cannot be applied the former director are not its "officials", disciplinary liability can only be applied to an employee who is in a valid labor relationship with the organization, that is, again, it is not applicable.

Therefore, we will consider the civil and criminal liability of the former director and founder .

Criminal liability of the former director and the old founder

The most burning issue is the issue of tax evasion from the organization, in particular, using various illegal schemes. What does the Criminal Code of the Russian Federation say about this:

“Article 199. Evasion of taxes and (or) fees from an organization

1. Evasion of paying taxes and (or) fees from an organization by failing to submit a tax return or other documents, the submission of which is mandatory in accordance with the legislation of the Russian Federation on taxes and fees, or by including deliberately false information in a tax declaration or such documents, committed on a large scale -

shall be punishable by a fine in the amount of 100 thousand to 300 thousand roubles, or in the amount of the wage or salary , or any other income of the convicted person for a period of one to two years, or by arrest for a term of four to six months, or by deprivation of liberty for a term of up to two years, with deprivation of the right hold certain positions or engage in certain activities for up to three years or without it.

2. The same act committed:

a) by a group of persons by prior agreement;

b) in an especially large amount, -

shall be punishable by a fine in the amount of 200,000 to 500,000 rubles, or in the amount of the wage or salary, or any other income of the convicted person for a period of one to three years, or by deprivation of liberty for a term of up to six years, with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years. years or not.

Notes. 1. A large amount in this article, as well as in article 199.1 of this Code, is recognized as the amount of taxes and (or) fees, amounting to more than two million rubles for a period within three financial years in a row, provided that the share of unpaid taxes and (or) fees exceeds 10 percent of the amounts of taxes and (or) dues payable, or exceeding six million rubles, and in an especially large amount - an amount amounting to more than ten million rubles for a period within three financial years in a row, provided that the share of unpaid taxes and (or ) fees exceed 20 percent of the amounts of taxes and (or) fees payable, or exceeding thirty million rubles.

2. A person who has committed a crime for the first time, provided for by this article, as well as by article 199.1 of this Code, shall be exempted from criminal liability if this person or organization, the evasion of taxes and (or) fees with which this person is charged, has fully paid the amounts of arrears and relevant penalties, as well as the amount of a fine in the amount determined in accordance with the Tax Code of the Russian Federation.

Thus, for tax evasion threatens personal liability to persons who are obliged to submit tax returns and other related documents, and this is, first of all, the director of the organization. The founders are not directly involved in the conclusion of the company's contracts, sending money to the accounts of counterparties and therefore usually cannot be held liable for tax evasion.

Please note that the personal liability of the director, who directly signed the documents, is completely excluded only after the expiration of the statute of limitations, which serve as the basis for exemption from criminal liability in accordance with Article 78 of the Criminal Code of the Russian Federation. There is no exemption from liability in the event of liquidation of a firm, both official and alternative.

That is, until the statute of limitations has expired, under the first part of Article 199 of the Criminal Code of the Russian Federation - 2 years from the date of the fictitious transaction, and under the second part of Article 199 of the Criminal Code of the Russian Federation - 10 years, the director of the company can be held liable at any time if the consequence tax evasion will be established.

2. Intentional and reckless acts for the commission of which the maximum punishment provided for by this Code does not exceed two years of imprisonment are recognized as crimes of minor gravity.

3. Crimes of moderate gravity are considered intentional acts, for which the maximum punishment provided for by this Code does not exceed five years of imprisonment, and reckless acts, for which the maximum punishment provided for by this Code exceeds two years of imprisonment.

4. Grave crimes are intentional acts, for the commission of which the maximum punishment provided for by this Code does not exceed ten years of imprisonment.

Article 78. Release from criminal liability in connection with the expiration of limitation periods

1. A person shall be released from criminal liability if the following terms have expired from the date of commission of the crime:

a) two years after the commission of a crime of minor gravity;

b) six years after the commission of a crime of average gravity;

c) ten years after the commission of a serious crime.

However, in order to fully appreciate the risk of holding a former leader accountable, one must understand the mechanism of how this happens.

In order to obtain grounds for initiating a criminal case, a law enforcement agency, whether it is the Economic Crime Department or the UNP GUVD, must obtain somewhere copies or originals of all documents related to the operation, including the contract, act, as well as the constituent documents of the company. Without this, the law enforcement agency has no grounds for initiating a criminal case, because no original material. Such documents are obtained through a request to the company, which is sent to its legal or actual address.

Civil liability of the former director and the old founder

Responsibility to new founders and director.

According to paragraph 2 of Article 44 of the Federal Law of February 8, 1998 No. 14-FZ "On Limited Liability Companies", members of the board of directors ( supervisory board ) of the company, the sole executive body of the company, members of the collegial executive body of the company, as well as the manager are liable to the company for losses caused to the company by their guilty actions (inaction), unless other grounds and amount of liability are established by federal laws.

With a claim for compensation for losses caused to the company by a member of the board of directors (supervisory board) of the company, the sole executive body of the company, a member of the collegial executive body of the company or a manager, the company or its participant has the right to apply to the court. Thus, the new members of the company and the company itself, represented by the director, have the right to apply to the old director with a claim for bringing to responsibility and compensation for losses caused by his malicious actions.

Liability to creditors - third parties

According to a set of norms established by several regulatory legal acts, the founders and director of the company may be held liable in the form of compensation for losses of third parties in cases of intentional bankruptcy or bankruptcy due to their fault.

Thus, in accordance with paragraph 3 of Article 3 of the Law, in the event of insolvency (bankruptcy) of a company through the fault of its participants or through the fault of other persons who have the right to give instructions binding on the company or otherwise have the opportunity to determine its actions, against these participants or other persons in the event of if the company's property is insufficient, subsidiary liability for its obligations may be imposed.

According to clause 3 of article 56 of the Civil Code of the Russian Federation, if the insolvency (bankruptcy) of a legal entity is caused by the founders (participants), the owner of the property of the legal entity or other persons who have the right to give instructions binding on this legal entity or otherwise have the opportunity to determine its actions, in case of insufficiency of the property of a legal entity, such persons may be assigned subsidiary liability for its obligations.
According to Clause 4, Article 10 of the Federal Law "On Insolvency (Bankruptcy)", the persons controlling the debtor jointly and severally bear subsidiary liability for the debtor's monetary obligations and (or) obligations to make mandatory payments from the moment of suspension of settlements with creditors for claims for compensation for damage caused to property the rights of creditors as a result of the execution of the instructions of the persons controlling the debtor, or the performance of current obligations in case of insufficiency of its property constituting the bankruptcy estate.
The arbitration court shall have the right to reduce the amount of liability of the controlling debtor of the person if it is established that the amount of damage caused to the property rights of creditors through the fault of the controlling debtor of the person is significantly less than the amount of claims subject to satisfaction at the expense of the controlling debtor of the person brought to subsidiary liability for the obligations of the debtor. The head of the debtor bears subsidiary liability for the obligations of the debtor, if the accounting and (or) reporting documents, the obligation to collect, draw up, maintain and store which are established by the legislation of the Russian Federation, are not available by the time the ruling on the introduction of supervision or the decision to declare the debtor bankrupt is made or do not contain information about the property and obligations of the debtor and their movement, the collection, registration and generalization of which are mandatory in accordance with the legislation of the Russian Federation, or if the specified information is distorted.

Such claims for bringing to subsidiary liability may be brought in the course of bankruptcy proceedings by an arbitration manager on his own initiative or by decision of a meeting of creditors or a committee of creditors.

conclusions

If the company is liquidated by selling a share in the authorized capital, and even if its legal address is in a distant region, the request should be sent to this address. As a rule, requests are not sent to such addresses, however, if it is nevertheless sent, then only the new director is authorized to provide documents on behalf of the organization, only if he is found and has these necessary documents, he will be able to provide them .

Therefore, the change of director greatly reduces the risks of liability of the former (old) director , however, we draw your attention to the fact that it is necessary to conduct the company's activities in strict accordance with applicable law, pay all legally established taxes and fees, and we advise you not to violate laws under any circumstances.

PB LAWYER

Prikhodin Sergey Alexandrovich

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

Vicarious liability has become the norm in bankruptcy

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

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

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

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

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

When subsidiary liability is imposed on the LLC participants for the debts of the company

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

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

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

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

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

Subjects of subsidiary liability

Possible candidates for "subsidiaries":

• founders;
• director;
• any actual managers or controlling persons.

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

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

What can lead to LLC liability for debts:

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

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

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

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

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

Responsibility of director

The law clearly defines how losses are recovered from the director if he caused damage to the company, namely:

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

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

If the founder and director of the LLC are one person

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

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

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

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

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

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

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

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

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

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

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

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

The procedure for holding liable for the obligations of an LLC

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

The role of the arbitration manager in the process

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

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

Full property liability without bankruptcy

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

Nuances of recent jurisprudence

Business owners, as well as managers and other persons subject to JI, should take into account important nuances of recent court practice:

• the obligation to prove one's innocence rests with the owners and those who control the business;
• The Supreme Court, in a ruling dated March 9, 2016, confirmed the presumption of guilt of these persons;
• in court, a causal relationship is established between the failure to file a bankruptcy petition and the harm caused to the creditor and the state;
• managers who evade bankruptcy proceedings are subject to disqualification for a period of six months to three years;
• persons who did not provide the necessary documents to the bankruptcy trustee will be held liable for subsidiary liability.

Business must be taken very seriously and responsibly. You should not enter into deals that are dubious in their attractiveness with counterparties whose reputation is unknown to you. With the adoption of new amendments to the law, all wrong steps can result in the loss of not only business, but also personal property and even freedom.

Three months of accounting, personnel records and legal support for FREE. Hurry, the offer is limited.

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 an organizational form do not have any obligations to the company's creditors 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 the 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 do some 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 conducting the day-to-day business of the organization.

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.

of judicial practice before filing a claim , 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 with 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 on 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 is an interesting example of a “negative” practice, a decision 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 is 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.

The most ideal option would be to 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 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 legal relationship was in the nature of entrepreneurial activity for both parties: a supply contract, a construction contract, etc., 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. This also applies to former employees of an LLC excluded from the register.

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 it in the case when the defendant for the recovery of the amount is an individual: the 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 respective 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).

Arbitration court

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. As a general rule, it is considered within a month from the date of its 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.

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 of the 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 one sole 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 having the income even to pay the wages of their 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. From Article No. 56 of the Civil Code of the Russian Federation it follows 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 responsible 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, an important point is the 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 possibility is enshrined in the third article of 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 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 a certain part of the financial risks is assigned to 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 steps necessary to obtain important information that is relevant to 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 a 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 court 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 the control of the debtor to liability.

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.

conclusions

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.
• The bankruptcy procedure must be initiated independently, the best option would be to involve specialists in this profile.

We examined the responsibility of the founder of an LLC.