Contrary to popular belief, the liability of the head of a legal entity and founders is not always limited to the assets of the legal entity.
There is a stereotype in the minds of entrepreneurs that you can accumulate a lot of debts, then not pay them off, getting rid of the legal entity using simple methods. And you can continue your business simply by opening a new legal entity. Large entrepreneurs have a number of legal entities in the hundreds and thousands.
But time passes and everything changes.
In 2009, changes to the Federal Law “On Insolvency (Bankruptcy)” came into force, which allow, under certain conditions, to bring the head of a legal entity and founders to subsidiary liability for the debts of a legal entity.
Vicarious liability is a type of civil liability. At its core, this is an additional responsibility of persons who, along with the debtor, are responsible to the creditor for the proper fulfillment of the obligation.
In other words, if the property of a legal entity is not enough to cover debts to creditors, the obligation to pay them rests, in our case, on the director and founders of this legal entity
Who is the person who controls the debtor?
The person controlling the debtor is a person who has, or had within less than two years before the arbitration court accepted the application
on declaring a debtor bankrupt,
the right to give instructions that are binding on the debtor or the opportunity to otherwise determine the actions of the debtor
, including by coercing the head or members of the debtor’s management bodies or otherwise exerting a decisive influence on the head or members of the debtor’s management bodies in another way.
Bankruptcy management and simplified procedure, why and who needs it
- Having a debt of at least 300,000 rubles.
- Impossibility for 3 months. pay wages, make mandatory payments, give out loans.
The main regulatory act in the field of bankruptcy is the Law “On Insolvency (Bankruptcy)” No. 127-FZ.
The rules for bankruptcy proceedings are contained in Chapter 8.
Bankruptcy proceedings begin after the debtor is declared insolvent (bankrupt).
“The adoption of a decision by the arbitration tribunal to declare the debtor insolvent (bankrupt) entails the opening of bankruptcy proceedings” (clause 1 of Article 124 of Law No. 127-FZ).
Bankruptcy proceedings end after satisfying the claims of creditors or due to the dispersal of all assets between them.
If the assets are not sufficient to repay the debts, the bankrupt is subject to liquidation.
The bankruptcy trustee is the central figure in bankruptcy proceedings. Specifically, he is engaged in the liquidation of the company.
The bankruptcy estate is subject to sale at auction. The proceeds are used to pay current payments and pay off debts.
[/stextbox]Thus, with the simplified procedure, only one stage of bankruptcy is applied - bankruptcy proceedings.
The simplified procedure has pros and cons; let’s look at them in more detail.
In this video you will learn about the legal features and aspects of the bankruptcy procedure.
What is the algorithm for bringing to subsidiary liability?
1) The arbitration manager identifies the circumstances and responsibility for which clause 3 provides. and point 4. Art. 10 of the Insolvency Law.
After declaring the debtor bankrupt, selling the debtor's property and closing the register, the insolvency administrator may file a lawsuit to bring the perpetrators to subsidiary liability.
It is also effective for the bankruptcy manager to submit a petition to the court to appoint an examination to identify signs of fictitious and deliberate bankruptcy, as well as the circumstances specified in paragraph 3. and point 4. Art. 10 of the Insolvency Law.
2) A creditor who believes that the manager does not identify the circumstances for which liability is provided for in paragraph 3. and point 4. Art. 10 of the Insolvency Law, may also apply to the court with a similar request for an examination. If the examination gives a positive conclusion, then the creditors have the right to demand that the arbitration manager file a claim for subsidiary liability, or to file a claim themselves in accordance with Part 3 of Art. 56 of the Civil Code of the Russian Federation.
Questions and answers
Should an insolvent citizen report this debt as an asset?
If, before the introduction of the procedure for selling assets, funds are transferred to a citizen’s account, are there any restrictions for him in spending them?
What if the funds arrive through the asset sale procedure?
Is wage arrears subject to sale in the procedure for the sale of the debtor's assets (after all, wages are related to the individual)?
A good day. When should I deposit funds? And how many? If the application is rejected, can they be returned?
Is it possible to obtain certificates and statements for all accounts opened in different branches in one branch, in this case of Sberbank?
Can 2-NDFL certificates be provided as proof of income?
Can you get a document from the Federal Tax Service about withheld taxes, and if not, where can you get it?
Not only existing ones, but all accounts that exist or existed, but were closed during the 3 years preceding the date of application.
- Is it possible in one branch, in this case Sberbank, to obtain certificates and statements for all accounts opened in different branches?
- Can 2-NDFL certificates be provided as proof of income?
- You can get a document about withheld taxes from the Federal Tax Service; if not, where can you get it?
Is it necessary to notify the SRO about filing an application in court, or does arbitration do this?
In which region should an application for bankruptcy be filed with the arbitration court - the one where the bankrupt is permanently registered or where the bankrupt is temporarily registered?
In the Russian Federation it is established that a citizen becomes an adult when he reaches the age of 18 years.
However, keep in mind that the law is new and judicial practice has not yet developed. Perhaps significant changes will be made to it recently.
The debtor may be of working age, but have no source of income, for example, be unemployed.
The restructuring procedure is a restructuring procedure, not a bankruptcy procedure. These are significantly different concepts. And this is absolutely not a mortgage.
Tell me, is the procedure lifting the ban on a citizen traveling outside the borders of the Russian Federation?
From the moment a citizen is declared insolvent (bankrupt), enforcement proceedings are suspended.
If an individual is declared insolvent (bankrupt), after the sale of his assets, what part of his salary will be taken to pay debts?
Yes, you totally can. The basis is clause 2 of Article 213.4 of the Insolvency Law.
Olga, yes, they should. This requirement is established by the insolvency law in paragraph 4 of article 213.5.
Hello! I have a baby. Can I not attend the court hearing?
Is maternity capital subject to recovery when an individual is declared insolvent (bankrupt)?
In the column “including debt”, as I understand it, it is necessary to indicate the size of the actual overdue debt (i.e. 120 thousand)?
The property being rented is not the only dwelling and practically no one lives in it.
Examples from judicial practice
- The general director was held vicariously liable for the withdrawal of property from the debtor's organization.
Case number:
A41-5664/08 (the decision was appealed to the Supreme Arbitration Court of the Russian Federation and upheld)
Grounds of claim:
the general director sold the debtor's real estate, but did not contribute funds to the enterprise, which subsequently made it impossible to satisfy the claims of all creditors.
The court's decision:
Assign subsidiary liability for the obligations of PAK-INVEST LLC (INVEST-ST LLC) to the former General Director of PAK-INVEST LLC, Boris Alekseevich Rossinsky, collecting money from him in the amount of 1,586,432 rubles. 11 kopecks
Evasion of debts through fictitious transformations of a legal entity.
Case number:
A07-7955/2009
Grounds of claim:
The founders transformed the legal entity into a newly created legal entity, transferring all assets to it. As a result of such transfer, the debtor was unable to fulfill all obligations to creditors.
The court's decision:
Claims of the bankruptcy trustee of Duslyk LLC
to satisfy. Assign subsidiary liability to the founders of the LLC
“Duslyk”: Nasima Vadutovna Bayanova, Guzel Nazebovna Bayanova, Ildus Nazebovich Bayanova in the amount of 674,595 rubles…..
Failure to timely submit an application to the Arbitration Court to declare the debtor bankrupt.
Case number:
A50-20763/09
Grounds for the claim: The general director and the sole founder (in one person) did not promptly apply to the court to declare the debtor bankrupt.
According to paragraph 2 of Art. 10 of the Law, failure to submit a debtor’s application to the arbitration court in the cases and within the time period established by Article 9 of the Federal Law “On Insolvency (Bankruptcy)” entails subsidiary liability of persons who are charged by Federal Law with the obligation to make a decision on filing the debtor’s application to the arbitration court. court and filing such an application for the debtor’s obligations arising after the expiration of the period provided for in paragraph 3 of Article 9 of the Law.
The condition for the obligation of the debtor's manager to submit the debtor's application to the arbitration court is (in particular) the satisfaction of the demands of one creditor or several creditors, which leads to the impossibility of the debtor fulfilling monetary obligations, the obligation to pay obligatory payments and (or) other payments in full to other creditors.
The court's decision:
To collect from Igor Valerievich Gilev (residing: Perm, Revolyutsii St. 3/5-91) in favor of Rusagro LLC in the manner of subsidiary liability for the obligations of Rusagro LLC, 206,541 rubles. 62 kop.
4. Failure to submit accounting and other reports to the arbitration manager
Case number:
A21-12997/2009 (link to the case https://kad.arbitr.ru/Card/5fa23bcc-5afa-4bc1-a9e8-a89317a34bb2)
Grounds of claim:
As established by the court, Fedorov S.G. was the sole founder of the company, performing the functions of its sole executive body - the general director from the moment of establishment of the company until the date of the arbitration court's decision to declare the debtor bankrupt and to open bankruptcy proceedings.
As follows from the presented materials, the application for the involvement of Fedorov S.G. to subsidiary liability for the obligations of the debtor is motivated by the provisions of paragraphs 2, 4 and 5 of Article 10 of the Federal Law “On Insolvency (Bankruptcy)” (hereinafter referred to as the Bankruptcy Law) as amended by Federal Law No. 73-FZ (hereinafter referred to as Law No. 73-FZ), paragraph 3 of article 56 of the Civil Code of the Russian Federation.
In accordance with paragraph 5 of Article 10 of the Bankruptcy Law, the head of the debtor bears subsidiary liability for the debtor’s obligations if the accounting and (or) reporting documents, the obligation to collect, compile, maintain and store, which are established by the legislation of the Russian Federation, by the time the ruling is made introduction of supervision or making a decision to declare the debtor bankrupt are absent 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.
The court's decision:
The recovered amount of subsidiary liability in the amount of RUB 3,829,093. 16 kopecks
It is important to note that the reorganization of a legal entity for the purpose of evading the payment of debts may lead to loss of control over the enterprise, and as a result to bringing to subsidiary liability on formal grounds - lack of accounting reports.
Subsidiary liability of LLC founders and other legal entities
The rules for imposing subsidiary liability on the founder and director, as well as members of the organization, vary depending on the legal form of the legal entity, for example:
| № | Organizational and legal form of a legal entity | Subject held accountable | Rules for bringing to subsidiary liability |
| 1 | General partnership | Founder (participant) | Full liability for the obligations of the organization until departure from it |
| 2 | Partnership of Faith | Founder (participant) who is a general partner | |
| 3 | Peasant farm, which is a legal entity | Members of the organization | |
| 4 | Production cooperative | Members of the organization | The subsidiary liability of the founder for the debts of this legal entity, as well as the liability of the other members, is determined by the charter of the organization |
| 5 | Limited Liability Company (LLC) | Representative of the organization, member of the collegial executive body and person determining the actions of the company | It is possible to bring to subsidiary liability if a person, after the exclusion of the LLC from the Unified State Register of Legal Entities, acted in bad faith or unreasonably, as a result of which the liquidated organization did not fulfill its obligations |
| Founder (participant), independent appraiser | The subsidiary liability of the founder and the appraiser for the debts of the LLC can be jointly and severally imposed on these persons in case of overestimation of the value of property made as a contribution within three years from the date of creation of the company or an increase in the authorized capital due to such a contribution. The amount of liability is limited to the difference between the inflated and actual value of the property | ||
| Founders (participants) | The founders, and in the future also the participants of the LLC, may be brought to subsidiary liability for the debts of a legal entity to the extent of the amount of additional contributions not made as part of increasing the authorized capital of the company | ||
| Founder (participant), director or other controlling person | Vicarious liability of the founder and director of an LLC or joint stock company, other controlling persons may arise if they:
| ||
| 6 | Joint Stock Company (JSC) | Founder (participant), director or other controlling person |
Bankruptcy procedure for an LLC with debts in 2020
Does the organization have debts to the tax authority or creditors that it cannot pay off? Then, in fact, bankruptcy cannot be avoided.
APPLICATIONS AND CALLS ARE ACCEPTED 24 hours a day and 7 days a week..
It is clear that the procedure is complex and lengthy. And for this reason, it is important to understand what stages await you, how to prepare and act.
Usually, insolvency is entrusted to lawyers, but this does not mean that you yourself should not study the legal norms that govern this function.
It is absolutely not necessary to stop the company's activities completely. A company can endure a number of changes by going into liquidation.
The law provides for the possibility of reorganizing a company, but it is carried out according to a completely different scheme.
Let's look at the essence of bankruptcy of a company with debts and what is the algorithm for carrying it out.
The procedure for declaring a company insolvent is quite complicated. It is important to reflect the main reason why the debts appeared.
The main regulatory document that regulates the bankruptcy procedure is the Law of the Russian Federation No. 127 On Insolvency.
Certain provisions that will help you understand this topic should be found in the Civil Code of the Russian Federation (for example, Article 65).
- carry out reorganization;
- sell the office property and pay the debt;
- even before debt appears, monitor loans.
If you cannot avoid being declared insolvent, then you need to know the following information.
It is profitable for the debtor to file for bankruptcy himself. Indeed, in this case, at his request, a manager will be appointed.
How to withdraw cash from LLC: reporting, loans and other methods
If everything is done correctly and the initiator follows all the steps, then the failure will pass without complications.
It is important to start the function at the initial stages of bankruptcy, when there are only the first signs, without waiting until the enterprise suffers a complete collapse.
Quite a lot of organizations, even at the stage of their own creation or in order to develop their business, take out a loan from a bank.
Then the authorized body will consider the case in which the applicant wants to return his funds.
Employees of a legal entity are also creditors if the manager of the company does not pay wages or other benefits on time.
If the company does not satisfy the demands of its own employees, they have the right to appeal to the labor inspectorate. This means that the process of recognizing insolvency will begin.
Many people think that in the event of bankruptcy, the debtor can withdraw all claims, because it is impossible to recover funds from a legal entity.
- the insolvency is fictitious;
- inconsistency is hidden;
- insolvency is deliberate and prevents recovery of losses.
- Manager costs.
- Help from professionals in checking documents.
- Payment of state fees when filing a claim (6,000 rubles according to Stat. 333.21 of the Tax Code of the Russian Federation).
You see, you won't be able to name specific numbers. The amount cannot be less than 30 thousand rubles per month.
The duration is about 9-12 months. Why does it take so long? The authorized bodies inspect whether the insolvency is fictitious.
- observation is carried out;
- external management;
- monetary recovery procedure;
- embodiment of bankruptcy proceedings.
