It happens that unscrupulous founders leave their companies without paying creditors and the budget. They do not bother with the procedure of closing the company, but simply open new company and start working with clean slate. What should the director do in such a situation, because the record about him in the Unified State Register of Legal Entities remains, and the company's creditors can present their claims to him? In the article we will consider the algorithm of the director's actions in such a situation.
I don't want to be the leader!
The former director can continue to be in the company not only because the owners abandoned it. In practice, it is possible that the director's term of office has expired, but no decision has been made to extend his term or to appoint a new head. This may be due to the fact that it is simply not possible to find anyone to take his place, and the owners do not want to assume the powers of the director.
The director, whose powers have ceased, may simply not want to remain in this position, as he plans to change his place of work or even change his occupation, for example, go to the state or municipal service. In this case, the presence of an entry about oneself as a director of the company in the Unified State Register of Legal Entities may serve as an obstacle to achieving its goals. In this regard, the question arises: what to do in such cases?
Of your own accord
If the powers of the director are not terminated, you need to write an application for own will. No one has the right to keep a director in a company against his will. The head, like any other employee, has the unconditional right to say goodbye to the company. Only you need to notify the employer not two weeks in advance, but a month in advance (Article 280 of the Labor Code of the Russian Federation). The employer is the company itself, which acts through its management bodies. Consequently, the decision to terminate the powers must be made by the management body of the company: the general meeting of shareholders (participants) or the board of directors (supervisory board), if the resolution of this issue is referred to its competence by the charter. Such rules are established in paragraph 3 of Art. 69 of the Federal Law of December 26, 1995 No. 208-FZ “On Joint Stock Companies” (hereinafter referred to as the JSC Law) and sub. 4, clause 2, article 33 of the Federal Law of February 8, 1998 No. 14-FZ “On Limited Liability Companies” (hereinafter referred to as the LLC Law).
In an LLC, each participant must be notified of the convening of a meeting of participants by registered mail to the address indicated in the list of participants in the company, no later than 30 days before it is held, unless another method is provided for by the charter (clause 1, article 36 of the Law on LLC). The notification must indicate the issues on the agenda: the dismissal of the former director and the election of a new one.
In JSCs, the general meeting of shareholders is convened by the board of directors or the supervisory board (clause 1, article 54 of the JSC Law). Therefore, the director must send notices to all members of the board in order for them to make a decision to convene a meeting of shareholders.
The company is considered to have been notified of the dismissal of a director when the last member has received notice of the convening general meeting. It is from this date that the monthly period begins. The notice is accompanied by a copy of the letter of resignation, which must first be registered in the company's incoming documents.
In the application, you must indicate your full name, date of compilation, return address, telephone number for communication and do not forget to sign. The statement itself can be formulated as follows: “I ask you to dismiss me from my position CEO OOO "Prospekt-M" (OGRN 1051628251099) at their own request on the basis of paragraph 3 of part 1 of Art. 77 and Art. 280 of the Labor Code of the Russian Federation and inform whom and where to transfer accounting and other documents related to the company's activities.
What to do with documents?
Authorized persons of the company may refuse to receive the director's statement of resignation or simply not be at the place of residence. In this case, a corresponding mark is made on the mail envelope, and the letter is returned to the sender. From this date, you can count the monthly period.
Here we note that the director is the controlling person of the company. Therefore, in the event of the bankruptcy of the company, it may be required to bring it to subsidiary liability (see Chapter III.2 of the Federal Law of October 26, 2002 No. 127-FZ “On Insolvency (Bankruptcy)”). So, just leaving the company is not enough. To protect himself from liability, the director, now a former one, must take further steps. It is necessary to collect accounting, financial and other documents related to the activities of the company (contracts, acts, invoices, articles of association, etc.) and send it to one of the participants (for example, the majority shareholder) by mail with a clear description of the attachment (Example 1). In the event of a dispute, the inventory will confirm that the documents former director no.
Example 1
Collapse Show
Also, documents can be deposited with a notary or transferred to an archival organization (with the possibility of returning at the request of the society).
So, we come to the most important thing: what to do with the entry in the Unified State Register of Legal Entities about the former director. Let's start with the fact that the tax office has no legal grounds for deleting this entry from the register. At the same time, the company itself may also be inactive, which in practice will make it difficult for the final resignation of the director's powers.
A bit of history
Previously, when the legislation did not regulate the issue of exclusion from the Unified State Register of Legal Entities of the corresponding entry in any way, former managers tried to achieve exclusion through the courts. Sometimes they succeeded.
Arbitrage practice
Collapse Show
The director resigned from the company and for a long time wrote applications to the legal address of the company with a request to amend the Unified State Register of Legal Entities. However, all his letters were returned with a note that the company was no longer located at this address. Then the former director filed an application for termination of powers with a notary and handed it over to the tax office to make changes to the register, but was refused. He then appealed against the misbehavior of the tax authorities.
The courts of all three instances supported him, noting that the Unified State Register of Legal Entities is a federal information resource and the information contained in it must be reliable. Such requirements are provided for in Art. 4 of the Federal Law of 08.08.2001 No. 129-FZ “On state registration legal entities and individual entrepreneurs”(hereinafter - Law No. 129-FZ) and Art. 3 of the Federal Law of July 27, 2006 No. 149-FZ “On Information, information technology and on the protection of information.
The courts also referred to Art. 14 of the Federal Law of July 27, 2006 No. 152-FZ "On Personal Data". In accordance with it, the subject (in our case, the former director) has the right to demand from the operator (tax office) the clarification of his personal data, their blocking or destruction if they are incomplete, outdated, unreliable. With this in mind, the court declared the inspectorate's inaction unlawful and ordered it to exclude the entry about the former director from the Unified State Register of Legal Entities (Decree of the Federal Antimonopoly Service of the Volga-Vyatka District dated August 28, 2013 in case No. A43-26295 / 2012).
Other courts have taken a similar position. They proceeded from the fact that the absence (at that time) in the legislation of a special procedure for excluding an entry about a director from the Unified State Register of Legal Entities should not violate his rights. The former director has the right to count on the exclusion of data about himself from the public register after he resigned (decision of the Arbitration Court of the Urals District dated 07.10.2016 No. F09-9063 / 16).
special procedure
Now it is no longer necessary to go to courts, since special rules have appeared on making an entry in the Unified State Register of Legal Entities that information about the former director is unreliable. They are established by order of the Federal Tax Service of Russia dated February 11, 2016 No. MMV-7-14 / [email protected] Appendix No. 3 to this document contains form No. Р34001 “Application individual about the unreliability of information about him in the Unified State Register of Legal Entities. Filling out the application is easy: you need to provide your personal data (including phone number and address Email for communication), and on the first page indicate what the data is unreliable (Example 2). When the application is sent by mail, the signature on it must be notarized. If it is submitted personally to the inspection, then you can sign in the presence of the tax inspector.
Example 2
Sample design of the first page of form No. Р34001
Collapse Show
Currently, the former director does not have the right to apply to the court with a request to exclude an entry about himself from the register, as well as to include an entry about the inaccuracy of data. Such an application would be dismissed as it now provides special order, which is mandatory for the applicant (decision of the Seventh Arbitration Court of Appeal dated September 4, 2017 in case No. A27-9608 / 2017).
What's next?
The tax inspectorate considers the received application in form No. P34001 within five working days (clause 1, article 8 of Law No. 129-FZ). Then it includes an appropriate entry in the Unified State Register of Legal Entities in the column that refers to information about a person who has the right to act on behalf of the company without a power of attorney (clause 5, article 11 of Law No. 129-FZ).
It is important to note that the tax inspectorate will not take any measures to verify the accuracy of the information included in the Unified State Register of Legal Entities (subparagraph 3, paragraph 5 of the order of the Federal Tax Service of Russia dated February 11, 2016 No. ММВ-7-14 / [email protected]). The tax authorities will have enough papers presented by the former director:
- applications in the form No. 34001;
- documents confirming the fact of his dismissal (receipt of receipt of the application, inventory of attachments, postal receipt).
If, after making an entry about unreliability, the owners of the company do not take measures to correct the situation, the company may be forcibly excluded from the Unified State Register of Legal Entities. And this is quite justified, because without a sole executive body, the company's activities are completely paralyzed.
Eventually
The former director, finding himself in a situation where an entry about him in the Unified State Register of Legal Entities is saved, must act as quickly as possible and be attentive to details. It should be remembered that no action will be redundant, since there is a significant risk of being held vicariously liable for the company's debts.
Recently, many media reported that from September 1, 2017, the Federal Tax Service plans to exclude more than 300,000 organizations from the Unified State Register of Legal Entities. This made a lot of noise among accountants and directors of companies. What are the grounds for exclusion of legal entities from the Unified State Register of Legal Entities from September 1, 2017? Can, on the basis of paragraph 2 of Article 21.1 of the Federal Law of 08.08.2001 No. 129-FZ, by decision of the tax authority, remove any inactive organization from the register? Or, to exclude information about the company must be recognized by the court as unreliable? What is considered unreliable information in the Unified State Register of Legal Entities and who should be afraid of the upcoming mass deletion from the register? Let's get into the details.
Exclusion of a company from the Unified State Register of Legal Entities before September 1, 2017
We must say right away that tax inspectorates had the right to make decisions on the exclusion of legal entities from the Unified State Register of Legal Entities until September 1, 2017. They could remove any inactive companies from the register. Signs of inactive legal entities are contained in paragraph 1 of Article 21.1 of the Federal Law of 08.08. 2001 No. 129-FZ "On State Registration of Legal Entities and Individual Entrepreneurs" (hereinafter - Law No. 129-FZ).
Which organizations are considered inactive
A company that, during the last 12 months prior to the date of the decision of the INFS, did not submit tax reporting documents and did not carry out transactions on at least one bank account, is recognized as having actually ceased its activities (an inactive legal entity). Such a legal entity may be excluded from the Unified State Register of Legal Entities. The basis is paragraph 1 of Article 21.1 of Law No. 129-FZ.
So, for example, on August 07, 2017, Interdistrict IFTS of Russia No. 9 for the Oryol Region reported that for 7 months of 2017, 398 decisions were made on the upcoming exclusion of inactive legal entities from the Unified State Register of Legal Entities. The IFTS for the Udmurt Republic also informed that in the first half of 2017, similar decisions were made in relation to 1667 organizations. Decisions on the upcoming exclusion from the Unified State Register of Legal Entities are made regardless of the applicable taxation regime (“simplifiers”, UTII or the general regime - it does not matter).
New powers of tax authorities from September 1
Since September 1, 2017, there are more grounds for excluding organizations from the Unified State Register of Legal Entities. From the indicated date, the tax authorities have the right to decide on the exclusion of a legal entity. from the Unified State Register of Legal Entities, if (clause 5, article 21.1 of Law No. 129-FZ):
- the organization has signs of being inactive, it does not have funds for the costs of liquidation and it is impossible to impose these costs on its founders (participants);
- the Unified State Register of Legal Entities contains information about the legal entity, in respect of which an entry was made about their unreliability.
From 09/01/2017, the tax authorities received the right to exclude companies from the Unified State Register of Legal Entities without a trial if the record of unreliability appears in the register for more than six months.
Thus, from 09/01/2017, an entry about unreliability in the Unified State Register of Legal Entities is an independent basis for exclusion of a legal entity from the Unified State Register of Legal Entities. Therefore, in our opinion, it makes sense to download in advance on the website of the Federal Tax Service electronic extracts from the Unified State Register of Legal Entities for your company and your main counterparties. In the statement, you can see if there is a record of unreliability in it. Tax officials put such marks under the information that they considered fictitious.
Read also IP without employees: is it necessary to hand over the average headcount?
Anyone can download extracts from the Unified State Register of Legal Entities at https://egrul.nalog.ru/
If the fears are justified, then the mark in the electronic extract from the Unified State Register of Legal Entities might look like this:
By the way, look for such a mark in different sections of the extract. So, for example, if the information relates to the founders is unreliable, then a mark will be made in the section "Information about the founders (participants) of the legal entity." If a fictitious address is found in relation to the company - in the "Address (location)" section.
Such an entry, if it has been in the Unified State Register of Legal Entities for more than 6 months, can now threaten the organization with exclusion from the Unified State Register of Legal Entities. The first exceptions may occur as early as September 1, 2017. According to our data, more than 300,000 organizations may indeed fall into the first wave of exclusions. However, unfortunately, these are not all the difficulties that a record of unreliability may entail.
| What other problems can cause a record of invalidity |
|---|
| Counterparties may refuse to interact with companies if there is an entry in the Unified State Register of Legal Entities regarding the unreliability of information. |
| The directors of the organization may be fined for false information in the Unified State Register of Legal Entities by 5,000 -10,000 rubles. (part 4 of article 14.25 of the Code of Administrative Offenses of the Russian Federation). |
| The bank may strengthen control over account transactions. |
| The director and founder of an LLC with a share of at least 50 percent will not be able to be the leaders and founders of another organization for three years after the tax authorities made an entry about the unreliability of the data about the address or director (subparagraph “f”, paragraph 1, article 23 of Law No. 129-FZ). |
| Creditors can recover debts from the director of the LLC, who was excluded from the Unified State Register of Legal Entities. In particular, the tax authorities can accuse the director of the fact that the arrears in taxes or insurance premiums arose due to his dishonest actions, and collect the debt through the court (clause 3.1, article 3 of the Federal Law of 08.02.1998 No. 14-FZ). |
What information can be considered inaccurate
So, we talked about the possible consequences that may occur due to marks in the Unified State Register of Legal Entities about unreliability. But what kind of information can the tax authorities call into question? The inaccuracy of information may be in relation to:
- organization address;
- founder (participant);
- a person entitled to act without a power of attorney (director/manager).
Read also Deadline for payment of sales tax in 2017
Invalid address information
Tax authorities are trying to identify fictitious addresses of the organization as a matter of priority. Summarizing the practice of recent years, we can identify several signs by which the inspectors can come to the conclusion that the address of the company is unreliable, for example:
- the company does not receive letters, they are returned to the IFTS;
- a non-existent company address. So, for example, the Unified State Register of Legal Entities indicates the number of house 26a, but in fact there is only house 26;
- the building at the declared address is not suitable for use (for example, the house has been demolished);
- the Unified State Register of Legal Entities contains the address of mass registration, which is used by 10 or more organizations;
- the company is registered in a residential area;
- organization registered in mall, but did not enter the number of the office or office space in the register.
Previously, tax inspectorates went to court to liquidate a company for an unreliable address (clause 2, article 25 of the Federal Law of 08.08.2001 No. 129-FZ). From September 1, for an unreliable address, they can be excluded from the Unified State Register of Legal Entities without a trial. To avoid writing about the unreliability of the address in the Unified State Register of Legal Entities, organizations must certainly keep in touch with the Federal Tax Service Inspectorate, in particular:
- receive letters to your address;
- receive emails.
It is important to say that the tax authorities can check the address without the participation of representatives of the organization. To do this, it is enough for the inspector to record the inspection of the address on video or to involve two witnesses (clause 14 of the Grounds and Procedure for inspecting a property - Appendix No. 1 to the order of the Federal Tax Service dated 11.02.2016 No. ММВ-7-14 / 72).
False information about the director or founder
Information about the head of the company (general director) or founder is information that is monitored in a special manner by the tax authorities. They are trying to identify "dummy" directors and founders, for example, according to the following criteria:
- the director or founder is massive and manages or participates in more than 50 companies registered before August 1, 2016. Or in more than 5 firms established after August 1, 2016;
- controllers removed the director from office, and the period of disqualification has not yet passed;
- the founder withdrew from the company before January 1, 2016, but did not notarize the application for the transfer of the share;
- in the data of other companies there is already a note that the director or founder is nominal (letter of the Federal Tax Service of Russia dated 03.08.2016 No. GD-4-14 / 14126);
- the former director reported to the IFTS that the data about him in the register are unreliable.
If the inspectors suspect that the head and founders are fictitious, then they will most likely be called in for questioning by the Federal Tax Service.
How organizations should act: instructions
If the inspectors find inaccurate (fictitious) data in the register, the companies will send a notification and demand within 30 calendar days:
- or correct information in the Unified State Register of Legal Entities;
- or document the information from the Unified State Register of Legal Entities.
Court of Arbitration The Moscow District came to the conclusion that in order to exclude information about the director of the enterprise from the Unified State Register of Legal Entities, it is not enough to dismiss him at his own request, since documents of the established form must be submitted to the tax authority (). This refers, among other things, to form P14001, in which information about the new director must be entered. In making this decision, the court proceeded from the following.
The plaintiff was the director of the enterprise for some time, in connection with which the relevant information was entered into the Unified State Register of Legal Entities. Then he resigned of his own free will on the basis of. In this regard, the plaintiff applied to the tax authority with an application to exclude information from the Unified State Register of Legal Entities about him as a person entitled to act without a power of attorney on behalf of a legal entity. The authority denied him this, citing the fact that the plaintiff did not submit an application on form P14001. The tax authority also indicated that the termination of the powers of the director of the LLC (who the plaintiff was) falls within the competence of the general meeting of the company's participants. The citizen did not agree with this decision and appealed to the court.
Is the state duty paid when making changes to the information of the Unified State Register of Legal Entities that are not related to the change constituent documents? Learn from the material "Introduction of changes to the information of the Unified State Register of Legal Entities not related to changes in the constituent documents" in "Encyclopedias of decisions. Corporate law" Internet version of the GARANT system. Get full access for 3 days for free!
The courts of first and appeal instances granted the applicant's claims. In their opinion, the lack of legal regulation of the procedure for excluding (cancelling) from the Unified State Register of Legal Entities an entry about a person who has the right to act on behalf of a legal entity without a power of attorney, in the conditions of the objective impossibility of submitting the said application to the registration authority in the prescribed form, cannot be a reason for refusing to satisfy the requirement . But the court of cassation did not agree with their conclusions and pointed out that they incorrectly applied the substantive law.
The court emphasized that the entry in work book voluntarily dismissal from the position of a director does not in itself indicate a decision on dismissal made by a company participant. This should be evidenced by the decision of the LLC in which he performed official duties and an application in the prescribed form. The court also indicated that in the event of a change in information about a person who has the right to act without a power of attorney on behalf of a legal entity, an application in form No. P14001 must be completed both in relation to the former and in relation to the new general director, since the legal entity cannot carry out its activities without a director. That is, the current legislation does not allow entering into the Unified State Register of Legal Entities information only on the termination of the director's powers.
In this regard, the Arbitration Court of the Moscow District refused to satisfy the plaintiff's claim and canceled the decision and decision of the courts of previous instances.
Quitting a company in our country is a good old tradition. Moreover, in this case, the legislator kindly provided a simple (as it seems) way to get rid of it. We closed the accounts, stopped reporting and are waiting for the inspection to independently delete the organization from the register. This scenario remains popular to this day. However, everything is changing, including this situation. Recently, the exclusion of an abandoned company from the opportunity to “merge in an easy way” has turned into an additional opportunity for the tax authority (and other creditors) to reach out to business owners.
1. Current order
The tax authority is authorized to exclude from the Unified State Register of Legal Entities companies that do not show signs of life within 12 months. Signs of life include reporting and the movement of money through current account. By identifying a company that meets the specified criteria, the Federal Tax Service Inspectorate makes a decision on its forthcoming exclusion from the register. The decision is published in the State Bulletin. registration and, if no objections are received from the company itself or its creditors within three months from the date of publication, the organization is excluded from the Unified State Register of Legal Entities.
The provision is not new and is increasingly applied. So, in 2015, according to the decisions of the tax authorities, 160,184 Limited Liability Companies were excluded from the register, and in 2016 already 585,733.
2. The rules are changing
From September 1, 2017, the procedure for excluding a company from the Unified State Register of Legal Entities will change, two new grounds will appear (see Article 21.1 of the Federal Law "On State Registration of Legal Entities ..." as amended from September 1, 2017):
the company and participants do not have money for liquidation;
in the Unified State Register of Legal Entities for more than six months there is information about the unreliability of information on the organization.
It may seem that the first ground will make life easier for those who wish to independently initiate their deregistration. We are talking about those people who secretly hoped that their abandoned companies would be excluded by the inspection forces. However, the order and timing of the procedure itself is not yet clear. Probably, the company and its participants will have to confirm the lack of money with bank statements and income statements.
The second ground, in fact, is a new indirect sanction for the presence of false information in the Unified State Register of Legal Entities. Recall that back in 2016, the legislator secured the right of the tax authorities to check information about the company, both during its registration, and subsequent information contained in the register.
If during the creation of an organization or registration of changes false information is revealed, that very registration will be refused. However, the tax authority is empowered to verify the accuracy of the information already available in the Unified State Register of Legal Entities and without any reason from the organization.
Reasons for this inspection are:
statement person concerned;
other information about the unreliability of information in the Unified State Register of Legal Entities received by the Federal Tax Service.
In fact, the tax authorities have the right to conduct an audit at their discretion, there are grounds, "would be willing." At the same time, the participation of the examiner himself is not necessary at all. For example, an inspection of the premises in which the company is registered can be carried out in the presence of two witnesses or using video recording (paragraph 14 of the Order of the Federal Tax Service dated February 11, 2016 No. MMB-7-14 / [email protected]).
If the check is unsatisfactory (there is no company at the address specified in the register), the IFTS will send a letter demanding changes to the register. Such a letter will be received by the company itself, its participants and the head. It is necessary to respond to it within 30 days, otherwise an entry will appear in the Unified State Register of Legal Entities that information, for example, about the address of your company, is unreliable (paragraph 6 of Article 11 of the Law "On State Registration of Legal Entities ..."). If you live with such a record for six months, they will be excluded from the register. This will not happen suddenly, and the process can be influenced, but from September 1, it will be more difficult to do so. Now, to suspend the exclusion, the objection of the organization itself or its creditor is sufficient. After the changes to the law come into force, a simple “I disagree” will not be enough, the application must be motivated.
It is possible to avoid the described consequences. For this:
We approach the choice of the address of the company with caution. If possible, avoid mass nominal addresses;
We ALWAYS receive mail at the legal address;
TIMELY respond to letters from the tax authority;
we ensure the presence of a sane employee and “traces” of your organization (a table, a folder with documents, a sign on the door).
In addition to the exclusion of the company from the register, there are other, sometimes more negative consequences of reflecting inaccurate information about the organization in the Unified State Register of Legal Entities.
3. On liability for false information
First, article 14.25 of the Code of Administrative Offenses of the Russian Federation. It is worth paying attention to part 5 of this article, which threatens with disqualification for submitting documents for registration containing knowingly false information. This tax sanction is also actively used. As of August 07, 2017, the register of disqualified persons contains 6,064 entries, of which 5,047 persons got there due to part 5 of article 14.25 of the Code of Administrative Offenses of the Russian Federation. It is relatively easy to get disqualified, it is enough to provide documents with a nominal address for registration. The use of a fictitious address is the most common ground for liability.
Disqualification implies a restriction of the right of a person to hold positions in the executive body of the company, to enter into, to exercise other management of a legal entity, which may be unacceptable for the real owner / head of the business. The restriction can last up to three years.
Additional consequences of disqualification are fines (for a manager who continues to manage - 5,000 rubles, for a company that has concluded or not terminated an agreement with such a manager - up to 100,000 rubles) and the inability to register new company with a disqualified person as a leader.
In order not to fall into these lists, we follow the above advice - choose the address for the company with care.
Secondly, par. 4 and 5 of subparagraph “F” of paragraph 1 of Article 23 of the Law “On State Registration of Legal Entities and Individual Entrepreneurs” provides for a refusal to state registration of any changes if false information is indicated in relation to the company (its address or director) in the register.
But the main thing that should not be forgotten is that “throwing” the company will not save you from having to pay off its debts.
4. Responsibility for the "broken"
First, on June 28, 2017, Part 3.1 came into force. article 3 of the Law "On LLC". From this moment on, the exclusion of the company from the register is considered as the main debtor's refusal to fulfill obligations. In this case, if the excluded company has debts that have arisen due to the unfair or unreasonable actions of controlling persons, such persons could be held vicariously liable. Thus, after the company is excluded from the register, creditors (including the IFTS) will have the right to demand the fulfillment of the company's obligations to them from the persons controlling this company.
3.1. Exclusion of a company from the unified state register of legal entities in the manner prescribed federal law on state registration of legal entities for inactive legal entities, entails the consequences provided for by the Civil Code Russian Federation for the refusal of the principal debtor to fulfill the obligation. In this case, if the failure to fulfill the obligations of the company (including as a result of causing harm) is due to the fact that the persons specified in paragraphs 1 - 3 of Article 53.1 of the Civil Code of the Russian Federation acted in bad faith or unreasonably, at the request of the creditor, such persons may be assigned a subsidiary liability for the obligations of this company.
Art. 3 FZ "On LLC"
To recover, the creditor will have to go to court, which will need to prove that A) a certain person is the controlling person and B) he acted in bad faith or unreasonably.
Now the tax authority may not initiate an expensive and hopeless bankruptcy procedure for an abandoned company, but exclude it from the register, having the opportunity to reach out directly to its founder and director. The process can develop in parallel with bringing the company - "double" to responsibility according to the rules of Art. 45 of the Tax Code of the Russian Federation.
Secondly, the Law "On Insolvency (Bankruptcy)" provides for a simplified bankruptcy procedure for an absent debtor (§ 2, Chapter XI of the Law). Its essence lies in the fact that the third creditor can file an application for declaring the debtor bankrupt, regardless of the size of the debt. The court considers such an application within one month and, if the debtor is declared bankrupt, immediately opens. These provisions apply, among other things, to situations where, within 12 months, on the account of a legal entity. person did not undergo any operations.
It is likely that the creditor of the abandoned company, without waiting for it to be removed from the register, will go to court with an application to declare the debtor bankrupt. The court will satisfy such an application, and the creditor, within the framework of bankruptcy, will be engaged in bringing controlling persons to subsidiary liability for the debts of their abandoned company. Recall that in this case their guilt in the bankruptcy of the organization is presumed.
Also, few people know about another unpleasant consequence of the "abandonment" of the organization, provided for by the Law "On State Registration of Legal Entities ...". Thus, the director of an excluded company or a participant who had a 50% share at the time of its exclusion will not be able to register new organization if their old (abandoned) one was in arrears to the budget at the time of exclusion. The ban lasts three years. And the size of the debt is not important. They overlooked a penny debt for such a company - they received a ban on registering a new one. “Buying” a company and joining the participants or becoming a director will not work either, the legislator has provided for this (see paragraphs 2 and 3, paragraph 1, paragraph 1, article 23 of the said Law).
Found yourself and the exception is in your favor, check with tax office and funds.
If you suddenly saw that your debtor was on the list for exclusion, we hasten to report a violation of our rights. The message you find will contain the correct address. The application must be submitted within three months from the moment the IFTS posted a message about the upcoming exclusion, otherwise you will have to prove the dishonesty (or unreasonableness) of the controlling persons in court.
The conclusions are clear:
The reduction of opportunities to “quit” an organization without any consequences is a natural continuation of actions to strengthen tax administration and create conditions for placing actual responsibility for a business on its owners and managers.
The fight against "one-day" will certainly require increased control during registration actions. Even now, creating a new company or changing the address of the current one is sometimes a very difficult task. Therefore, the business has practically no chance to start from scratch in the event of an entrepreneurial failure. Most likely, the trail of previous experience will remain. The task here is to minimize the risks of such a relationship.
How to disable ads on Android: remove pop-up ads
The Russian received a term and a million fine for "piracy Negative consequences of the law
Identification of key factors
The criteria for classifying organizations and individual entrepreneurs as small and medium-sized businesses have changed
See what "Royalty" is in other dictionaries Pitfalls of legislation