What does the bankruptcy department at the tax office do?

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The debtor will present documents that prove that he intends to collect the overdue “debt”, its amount exceeds his tax debts, and will attach to them a debt repayment schedule. Please note that a judicial act for the collection of “debts” issued in favor of the debtor company does not in itself constitute such evidence. Example A debtor company won a case in court to collect receivables from a counterparty, which were sufficient to pay off the obligations of a potential bankrupt. The court of first instance regarded the presence of a court decision in favor of the debtor as a basis allowing the Federal Tax Service of Russia to refuse to introduce a monitoring procedure. However, the appeal and cassation supported the tax authorities' demands. They indicated that the presence of a judicial act on the collection of debt from the counterparty only indicates the possible receipt of funds to repay the “debt”.

Probability of a tax audit in the event of enterprise insolvency

Consideration in an arbitration court of a petition from a legal entity or its creditors to declare a company bankrupt often reduces the interest of the Federal Tax Service in inspections. This is due to a number of reasons:

1. Low probability of collection of funds (tax levies are among the third-priority creditor claims; they are rarely repaid during bankruptcy).
2. The inability of tax officials to influence the bankruptcy procedure through participation in creditor meetings (often the timing of the audit does not allow them to become full participants in the procedure).
3. The claims of tax authorities often do not fall into the creditor register in the event of bankruptcy, which virtually reduces to zero the likelihood of their satisfaction (due to the long period of the audit itself, delays in the publication and appeal of acts on the collection of arrears, inspectors do not have time to declare their monetary claims before the registry is closed) .
4. The accrual of tax sanctions and penalties significantly worsens the statistics of tax authorities, which they are not interested in (for example, such indicators as the collection of taxes and fees by the Inspectorate).

It is precisely because of the above reasons that tax authorities, although they include a potential bankrupt enterprise in the inspection plan, but then successfully exclude it. But this applies to the final stage of bankruptcy, such as receivership. If the enterprise continues to operate (is at the stages of supervision, management or in the process of financial recovery), submits declarations and pays taxes, then desk audits will continue to be carried out.

If a legal entity has a significant tax debt at the time of declaring bankruptcy, then the tax authorities will probably exercise their right and initiate an audit. Otherwise, we can hardly expect their activation.

The likelihood of a visit from the Federal Tax Service can be reduced by choosing an alternative method of liquidation - reorganization of the company.

Can the tax office file a bankruptcy claim?

2. The right to appeal to the arbitration court arises for the bankruptcy creditor, employee, former employee of the debtor, authorized body for monetary obligations from the date of entry into legal force of a court decision, arbitration court or judicial act on the issuance of writs of execution for the forced execution of arbitration court decisions on collection from the debtor of funds. The right to appeal to the arbitration court arises from the bankruptcy creditor - a credit organization from the date the debtor appears signs of bankruptcy established by this Federal Law.

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Hello. A legal entity, with the exception of a state-owned enterprise, institution, political party and religious organization, may be declared insolvent (bankrupt) by a court decision. A state corporation or state company may be declared insolvent (bankrupt) if this is permitted by the federal law providing for its creation. A fund cannot be declared insolvent (bankrupt) if this is established by law providing for the creation and operation of such a fund (Article 65 of the Civil Code of the Russian Federation). The debtor, bankruptcy creditor, authorized bodies, as well as an employee or former employee of the debtor who have claims for payment of severance pay and (or) wages have the right to apply to an arbitration court to declare a debtor bankrupt.

Timing of the Federal Tax Service inspection

According to current legislation, the time frame for a tax audit in bankruptcy lasts no more than 2 months (in exceptional cases - up to 3 months). But in practice, this period is often extended, since the procedure is usually suspended for a certain period not included in the allotted two months.

After the specified two-month period, tax inspectors will have another two months to draw up an on-site inspection report. This document is submitted to the taxpayer for review and the process of appeal and consideration of objections may take another two months.

Thus, from the start of a tax audit in bankruptcy to the entry into force of a decision on debt collection, at least six months can pass, but more often, much longer.

Meanwhile, in order for the Federal Tax Service to be able to take part in the creditors’ meeting and influence the most important issues of the bankruptcy procedure (in particular, the choice of a manager or the introduction of a particular procedure), it must declare the inclusion of its claims in the register within a month after appearing in the media first publication on bankruptcy. But in the case when the tax audit of the bankrupt began after the start of the insolvency process, the tax authorities usually do not have time to include it in the register.

How debts are collected, consequences of non-payment

The debtor company won the case in court to collect receivables from the counterparty, which are sufficient to pay off the obligations of the potential bankrupt. The court of first instance regarded the presence of a court decision in favor of the debtor as a basis allowing the Federal Tax Service of Russia to refuse to introduce a monitoring procedure. However, the appeal and cassation supported the tax authorities' demands.

Before you file, you need to make sure that your financial situation meets the law's definitions for businesses and individuals who may be declared bankrupt.

And the obligation to send an application to the court as soon as possible arises in the case when the circumstances of bankruptcy have already arisen.

After approval by the court, an arbitration manager is appointed, who is given the powers of an executive body. Lawyers, accountants and financiers are assigned to this person as assistants.

At the same time, the circumstance of the absence of the debtor becomes quite controversial, but this, I believe, is no longer relevant to the matter.

If the tax debt has not been fulfilled on a voluntary basis, inspectors begin the process of forced collection. In this case, bankruptcy proceedings are usually initiated.

No, they didn’t dispute it! But how is it possible? On what basis? About the deduction: according to the law, a non-resident has no right to it... Or am I confusing something?

Many companies do not really function, not even earning enough for the director’s salary and not differing in profitability from a freelancer who provides services in his free time from hired work. However, legal entities in Russia are registered as often as individual entrepreneurs.

The procedure for tax control in bankruptcy

A tax audit in bankruptcy is carried out as usual. The procedure for its implementation is established in the Tax Code of the Russian Federation (Article 88). To start it, you do not need to obtain any permission from the head of the Federal Tax Service or the taxpayer himself.

If we are talking about a desk audit, then the taxpayer is not required to notify. During the audit, declarations and balance sheets submitted to the Federal Tax Service are analyzed.

If inconsistencies are found in them, inspectors send requests for explanations or additional documents to the debtor.

For example, if a company is applying for benefits, VAT has been claimed for refund, etc. Such requirements of inspectors must be satisfied within 5 days after the representative of the legal entity receives a notification from the inspection.

During a tax audit during an insolvency procedure, experts and witnesses may be involved, and supporting documentation may be requested from the company's counterparties.

Representatives of a legal entity may not even know that an audit was carried out against them when no discrepancies or inconsistencies are identified. There are no messages or notifications about the results of the check.

If violations have been identified, the taxpayer will receive a corresponding report with the results.

If the tax office filed for bankruptcy

We will only consider procedural points, leaving the reader with plenty of food for thought. So let's get started. Bankruptcy is the inability of the debtor to satisfy in full its monetary obligations to all creditors, including tax obligations. When certain circumstances occur, either the debtor himself or one of his creditors files an application for bankruptcy of the debtor to the arbitration court. Is it possible to conduct an on-site tax audit during bankruptcy proceedings? Yes, it is possible, since neither the tax code nor the law “On Insolvency” contain any restrictions in this regard. In the same way, within the framework of Article 89 of the Tax Code of the Russian Federation, a decision will be made to conduct an on-site tax audit, with all the ensuing consequences.

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will study your tax documents and analyze actual tax payments. Based on the documents studied, a strategy for protection against forced bankruptcy will be developed. If the claims of the tax authority are illegal, then we will defend your position and demand the withdrawal of tax claims and, therefore, termination of the bankruptcy procedure on this basis. If your company really has a tax debt, then our specialists will participate in negotiations with representatives of the tax inspectorate to find a reasonable compromise, namely restructuring (installment plan) of payment of the tax debt.

Desk tax audit in bankruptcy

A desk audit is carried out on the territory of the tax office without specialists visiting the bankrupt enterprise directly. During such an audit, the documentation available to the Federal Tax Service on the taxpayer is analyzed and, if necessary, a request is made

The chance of a decision to cancel a desk audit increases if the following conditions are met:

• the legal entity approached the issue of submitting reports responsibly and submitted them on time;
• the company had no debtors and creditors;
• the legal entity handed over zero balances;
• the company has a single founder;
• the insolvent organization has not operated for the past three years.

Bankruptcy of tax debtors

In one of my cases, the tax inspectorate appealed to the court the decision of a meeting of creditors. Yes, they have such a right - like all participants in the case, if their rights are violated. Only at the meeting of creditors, when this decision was made, the tax representative voted “For” on all issues...

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The activities of the tax inspectorate as an authorized body are regulated by the Federal Tax Service and internal instructions. In this regard, it does not always lend itself to entrepreneurial logic. It is almost impossible to conclude a settlement agreement with the authorized body. A fairly standard line of behavior is to challenge everything to the highest authority; do not agree to any concessions - under any circumstances. Sometimes, of course, it happens differently. But in any case, a case where the main creditor is an authorized body is not the fastest and easiest thing.

On-site tax audit in case of insolvency

There is no such thing in law as an on-site inspection, but usually it means an audit directly on the territory of a legal entity. Such an inspection can only begin with the permission of the head of the inspection.

The head of a bankrupt enterprise or an appointed arbitration manager is obliged to provide special premises to the inspectors, not to interfere with their performance of their duties, to conduct inspections and interview witnesses, to familiarize themselves with documentation, etc. The manager also has not only responsibilities, but also the right to ensure the participation of witnesses during the seizure of documents and inspection.

What happens to the audit if during the audit a legal entity decides to declare bankruptcy? Then it will be completed as usual, but the inspectors can declare their demands only taking into account the specifics of the company’s bankruptcy procedure (i.e. by including them in the register or by declaring arrears outside the register).

What to do if you have debts to the tax authorities

During the process, all official assets of the debtor enterprise are sold. This is a radical measure that allows you to quickly and efficiently satisfy all debt claims to government agencies and other creditors. In addition, the sold property will serve as a source to cover legal costs. As a rule, the movable and immovable property of the defaulter during bankruptcy is sold through electronic auctions. Anyone can take part in these events. The duties of the arbitration manager include monitoring that transactions are carried out legally and within the framework of the decision prescribed by the court. This procedure applies to both real estate and other property. The assets being sold are entered into a special list and sold in a legally accepted manner. Payment of debts to the tax authority is a direct obligation of both ordinary citizens and any form of business, regardless of their status and place of registration. Many citizens may not know that they have some kind of debt. Today, debts to the tax office arise in the following types of taxes:

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Control of the Federal Tax Service during bankruptcy of an LLC

In case of bankruptcy of an LLC, a tax audit can be carried out both on-site and regularly. During bankruptcy, the management of the company is usually removed and all powers are transferred to a temporary manager. In such a situation, all requests from tax officials for additional information must be carried out through an arbitration manager appointed by the court. Representatives of the governing bodies themselves may be involved as witnesses.

It would seem that as a result of the company's bankruptcy procedure, all debt obligations of the company are canceled, and tax debts are subject to write-off. And even if the tax authorities reveal violations during the audit, but the company does not have money left to satisfy the requirements to the budget (the size of the bankruptcy estate will be less than the entire debt to creditors), then it will be considered that they have been repaid.

But in some situations, it is possible to hold the directors of a bankrupt company vicariously liable. After all, tax evasion in Russia is a criminal act. Briefly, the procedure for holding management accountable will look like this:

1. Based on the results of a tax audit in case of bankruptcy, an act is drawn up and a decision is made on additional taxes and holding authorized persons accountable.
2. Entry of the adopted decision into legal force and sending a request to the person to pay taxes.
3. Failure of management to comply with the requirement within two months.
4. Sending materials by inspectors to the Department of Internal Affairs and making a decision to initiate/refuse to initiate a criminal case.

Bankruptcy with debts to the Federal Tax Service

Bankruptcy is the only absolutely legal way to liquidate a company with debts to the Federal Tax Service, the Pension Fund of the Russian Federation, the Federal Migration Service and other government bodies. As a result of the bankruptcy procedure, all debts of the enterprise are written off, and the legal entity is liquidated with the corresponding entry being made in the Unified State Register of Legal Entities. Moreover, in situations where there is a debt to the budget that the taxpayer cannot repay (pay accrued taxes, fines, penalties), the law establishes not the right, but the obligation of the debtor to file a bankruptcy petition, for failure to comply with which liability is determined. The tax inspectorate, acting as a creditor in bankruptcy proceedings, does not have any additional advantages, and its claims are satisfied in the order of priority - in third place. The tax inspectorate learns that an enterprise has begun bankruptcy proceedings from a publication in the Kommersant newspaper (a publication in which all announcements related to bankruptcy are published), after the court has made a decision declaring the debtor bankrupt and has initiated a monitoring procedure. She submits her claims through the arbitration court in compliance with the conditions established by bankruptcy law for all creditors. For enterprises with debts to the Federal Tax Service, the most acceptable are two methods of bankruptcy: 1) simplified bankruptcy procedure (if the decision of the tax authority has not entered into force); 2) at the request of the debtor himself (if the decision of the tax authority has entered into force). The first method is often resorted to in order to speed up the bankruptcy procedure and bypass the observation stage. However, if the position of the legal entity before the introduction of the voluntary liquidation procedure had obvious signs of bankruptcy (for example, the presence of a large loan against the background of a decrease in turnover, the presence of established arrears, etc.), then the use of a simplified procedure will provide additional grounds for assessment in the aggregate the presence of signs of deliberate or fictitious bankruptcy (in accordance with Articles 196 and 197 of the Criminal Code of the Russian Federation, criminal liability is established for crimes in the field of bankruptcy). In other words, before bankruptcy, it is necessary to analyze the actual state of the organization and its financial indicators in order to protect business owners and managers from unnecessary risks, in particular, from criminal and subsidiary liability. If the debtor already has a tax inspectorate act that has entered into force with additional taxes, fines and penalties and realizes that he is unable to pay it off, then in this case it is advisable to apply to the Arbitration Court for bankruptcy. Waiting for the tax authority to file a bankruptcy petition is an extremely unfavorable strategy for the debtor, since in this case an insolvency practitioner will be appointed upon the recommendation of the tax inspectorate and will defend its interests. It is important for the debtor to get ahead of the tax authorities by independently entering the bankruptcy procedure in order to carry out preliminary preparations for the company for bankruptcy and nominate a loyal arbitration manager. According to the Tax Code of the Russian Federation, tax officials are required to report to the police (Department for Combating Economic Crimes and Department of Tax Crimes) that there is tax evasion in the amount of more than 2 million rubles, i.e. about a crime in accordance with Art. 199 of the Criminal Code of the Russian Federation. Taking into account the provisions of the updated legislation on criminal liability in the field of tax crimes, it makes sense for the debtor to try to appeal the tax authorities’ decision on arrears to a higher tax authority, and then to an arbitration court. If tax claims can be challenged in an arbitration court, its decision will be decisive in the matter of closing the criminal case. In addition, according to the current bankruptcy legislation, the debtor has the opportunity to challenge the validity of the inspection requirements in the bankruptcy procedure itself and, in parallel, in a separate proceeding, challenge the very decision to accrue arrears. Thus, the likelihood of fighting off inspection claims increases significantly. Currently, judicial practice is actively developing to bring the persons controlling the debtor (founders, management) to subsidiary liability for the debts of the organization. This is due to the fact that the legislator plans to improve the bankruptcy instrument as an institution for the financial recovery of the debtor, and not as an institution for the liquidation of a legal entity. Previously, this practice was mainly formed by the Deposit Insurance Agency, which carries out bank bankruptcy procedures. In total, the Agency brought several dozen people to vicarious liability in the amount of more than 3 billion rubles. Since April 2009 a similar practice began to emerge in relation to ordinary business entities (Determination of the Moscow City Court dated April 30, 2009 in case No. 33-10268). Thus, in order to protect itself from the risks of criminal and vicarious liability, the debtor is not recommended to use alternative methods of liquidation, such as reorganization in the form of a merger, reorganization in the form of affiliation or change of the general director and founder. A more effective strategy is to seek qualified legal assistance to competently conduct the bankruptcy procedure.

Dmitry Igumnov, head of practice “Liquidation of companies”, legal

07.10.2010

Legal

Tax audit in case of bankruptcy of individual entrepreneurs

A tax audit of an individual entrepreneur is carried out according to the same scheme as for legal entities. Many businessmen are concerned about the question of whether tax debts are written off in the event of bankruptcy of an individual entrepreneur? Or does this procedure affect debts to creditors? After all, it is usually the exorbitant tax burden that causes the closure of a business.

In an ordinary situation, all tax debts of an entrepreneur are transferred to him as an individual after the liquidation of the individual entrepreneur. But in the case of closure through bankruptcy, the consequences for an individual entrepreneur are similar to those provided for legal entities: their debt to the budget is written off.

The audit can be carried out by tax authorities within 3 years after the closure of the individual entrepreneur. And then all arrears in the form of taxes and penalties will be transferred to the entrepreneur as an individual. This does not prevent the former businessman from declaring bankruptcy after his closure.

The procedure for bankruptcy of a legal entity by the tax inspectorate

In addition, the Federal Tax Service only initiates the bankruptcy procedure of a legal entity. The further procedure is already led by the arbitration manager, whose candidacy is submitted by the applicant to arbitration. This may be a creditor or an authorized body (Read also the article ⇒ Bankruptcy of a management company: causes, consequences). Even if business owners abandon their company in the hope that the tax authority will exclude it from the Unified State Register of Legal Entities as inactive, this will not help get rid of the company and its debts. In accordance with Law No. 129-FZ “On State Registration of Legal Entities and Individual Entrepreneurs”, it is possible to close a legal entity without its lengthy liquidation. That is, in the case when it is excluded from the Unified State Register of Legal Entities by decision of the tax authority.

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Results of the audit of the Federal Tax Service

Based on the results of the tax audit conducted during the insolvency procedure, the absence of violations may be revealed. Although this is extremely rare in practice. Otherwise, the tax authorities draw up a report and submit it to the taxpayer. If the company or individual entrepreneur failed to appeal it within the established time frame, then demands are drawn up to hold the taxpayer accountable and pay contributions to the budget.

Depending on when the tax audit was started or completed, claims for payment of arrears are subject to inclusion in the register of creditors. If the register was closed by that time, then the tax arrears remain outside the register. Then it will be satisfied only after the claims of the bankruptcy creditors are satisfied.

The fourth myth

Violation of the obligation to submit the debtor's application to the arbitration court in the cases and within the time period established by Article 9 of this Federal Law entails subsidiary liability of persons who are charged with the obligation by this Federal Law to make a decision on filing the debtor's application to the arbitration court and filing such statements regarding the debtor's obligations arising after the expiration of the period provided for in paragraphs 2 and 3 of Article 9 of this Federal Law. In this regard, it is very interesting (?!) the criminal case initiated against the director of the Limited Liability Company “Ural Forest”, who was prosecuted for the very fact of bankruptcy, bringing the organization to bankruptcy, including for concealing his property.

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