The founders of a limited liability company are liable. We dispel the myths that the founders are not liable with their property for the debts of LLC

Responsibility of the founder for the activities of the LLC- one of the aspects that is often named among the advantages of choosing this legal form in comparison with sole proprietorship. The founders, as a general rule, are not liable for the debts of a legal entity, while individual entrepreneurs bear full responsibility for their business. Everything seemed to be obvious. However, in recent years, the founders (participants) of an LLC are increasingly transferring debts that arose during the period of the company's activities and which cannot be repaid at the expense of its property and Money.

The LLC cannot pay - the owners of the enterprise are brought to responsibility first of all. This right is expressly granted to creditors by statutory provisions that are subject to exceptions to general position on the absence of liability of the founders (participants) for the obligations of the legal entity.

Holding the founders (participants) of legal entities liable as a modern trend

The issue of the need to tighten the requirements and responsibility of the founders (participants) of commercial legal entities became particularly relevant in the late 2000s. The mass emergence of one-day firms, the registration of companies for nominees, active use different schemes alternative liquidation, falsification of reporting and information in the Unified State Register of Legal Entities - all this entailed serious losses for creditors. At the same time, the bankruptcy of enterprises became very difficult for the owners. good option, which led both to the liquidation of the company with debts, and to the write-off of any outstanding debts. Despite the existence in the Civil Code of the Russian Federation and other laws of provisions allowing the involvement of founders (participants) of legal entities in subsidiary liability, these rules were rarely used in judicial practice.

In 2010, the criminal law was tightened. Bankruptcy laws have also changed. Subsequently, some changes in terms of the responsibility of the founders were made to special laws relating to the activities of certain forms of legal entities.

In total, today the founder (participant) of an LLC can be attracted:

1. To subsidiary liability for the debts of the company that arose as a result of actions (inaction) of the persons controlling the debtor and led to its bankruptcy, in case of insufficient property of the LLC to cover all debts.
2. To criminal liability - if the actions (inaction) of the founder (participant) contain corpus delicti (we are talking, first of all, about crimes in the field of economic activity).
3. To administrative responsibility, including tax, which is relevant mainly for cases of combining the status of a participant and head of an LLC.

Features of responsibility

The liability of the founders (participants) of an LLC differs by type and grounds for occurrence. But in any case, none of the owners is immune from financial and other claims related to the company's activities.

The main feature of the founder's responsibility is that it is possible only if there is certain actions(inaction), which directly led to negative consequences (bankruptcy), or contain the composition of an administrative or criminal offense. Responsibility does not in itself follow from the status of the founder. And in this case, the provision that the LLC is responsible for all its obligations on its own directly applies.

It should distinguish between the responsibility of the founder and the participant of the LLC. The first is the one who created the company and subsequently became a member of it or did not become, for example, without paying his share or leaving the LLC in the course of its activities. Participants are former or current owners (owners) of shares, who by no means always stood at the origins of the company. Despite the difference in statuses, this does not particularly affect responsibility, but it is taken into account when analyzing its grounds and limits.

General liability of the LLC founder: within the authorized capital

The fundamental provisions on the liability of the founders (participants) of an LLC are given in the LLC Law, according to which:

• the founders are obliged to pay their share within the established period in accordance with the founding agreement;
• participants who have paid their share in full are liable for the losses of the company solely within the limits of their share;
• participants who paid the share in part are jointly and severally liable for the obligations of the LLC within the unpaid amount of the share;
• the charter of an LLC or a unanimous decision of all participants may provide for additional responsibilities;
• additional responsibilities can only be assigned to a certain member of the company, which is decided by 2/3 of the votes, subject to voting for such a decision by the member himself or giving his written consent.

Subsidiary liability of the founder (participant)

The possibility of bringing an LLC participant to subsidiary (additional) liability for the obligations of the company, as a rule, is considered in cases of bankruptcy, moreover, when the decision on this has already been made by the arbitration court, and the debtor's assets are not enough to pay off all the debts of the LLC.

The Bankruptcy Law does not consider subsidiary liability only in relation to LLC participants - we are talking about all persons controlling the debtor. These include any persons who, within 3 years recent years prior to the adoption of the bankruptcy petition by arbitration, they could give instructions binding on the LLC or otherwise determine the actions of the company. The law expressly recognizes as persons controlling the debtor, a participant in an LLC who owns more than 50% of the shares in the capital of the company, and the head of the company.

For vicarious liability to occur, 4 conditions are necessary:

1. Declaring an LLC bankrupt.
2. Recognition of the founder (participant) as the controlling person of the debtor.
3. The presence of such actions of the founder (participant) or inaction that led to bankruptcy.
4. Adoption by the court of a decision on bringing to subsidiary liability.

The presence of a causal relationship between the actions (inaction) of the participant and the bankruptcy of the LLC is recognized by default if there is at least one of the following circumstances:

• a participant, with his approval or in his favor, has made a transaction (transactions) that caused damage to the property rights of creditors;
• the participant was responsible for the maintenance (compilation, storage) accounting(reporting), and by the time the monitoring is introduced into the LLC or the company is declared bankrupt, there are no accounting documents, the information required to be reflected is missing or distorted, which seriously complicates the procedures related to bankruptcy;
• the participant was the head of the LLC, during the period of his activity in this status, he or the company was brought to criminal (administrative, tax) liability, and as a result of the offense and the sanctions applied, a debt was formed related to the claims of creditors of the 3rd priority, which, as of the date of closing the register creditors' claims exceed 50% of all claims of this queue (only the principal debt is taken into account, without penalties and other things).

The presence of these circumstances does not require evidence from the person who intends to bring the LLC participant to subsidiary liability. The burden of proof to the contrary lies with the defendant. In addition, he may try to prove his absence of guilt in the bankruptcy of the enterprise, as well as the absence of other circumstances that give grounds and create conditions for bringing to subsidiary liability.

Limits of vicarious liability- all claims of creditors included in the register, declared after its closure and arising from current payments in the course of the bankruptcy procedure, which cannot be repaid at the expense of the property of the LLC, including as a result of the sale as part of bankruptcy proceedings. When considering a claim related to bringing to responsibility, the amount of liability may be reduced by the court in comparison with the stated requirements. For example, this is possible if the defendant can prove that the harm (damage) caused by his actions (inaction) smaller size which the plaintiff is seeking to recover.

Bringing to subsidiary liability may occur as part of bankruptcy proceedings or after the completion of all procedures and the liquidation of the company. In the first case, the collected funds are included in the bankruptcy estate. In the second, each claim is filed and considered individually, and the amount recovered, respectively, is due to a specific claimant. In fact, the general procedure for recovery, including forced recovery, will be applied here.

Recovery within the framework of subsidiary liability is carried out at the expense of the founder's personal assets, if he is an individual, or the assets of a legal entity, which may also be a member of an LLC.

In case of insufficiency of property or insolvency of the founder, he, if there are grounds, has the right to apply for bankruptcy - just like the LLC, of ​​which he is or was a participant.

Bankruptcy of the LLC founder- an independent process, but it can take place in parallel and overlap with the bankruptcy of an LLC. If, as a result of the declaration of insolvency, the debts arising from vicarious liability remain outstanding, they will be canceled.

Administrative and criminal liability

The founders (participants) of an LLC are brought to administrative and criminal liability quite rarely, in isolated cases. This requires a clear set of offenses:

• specific illegal actions (inaction) entailing criminal (administrative, tax) punishment;
• assignment by law of the founder (participant) to the subject of a specific offense;
• fault of the founder (participant);
• violation of the rights (interests) of third parties, damage, other negative consequences, as well as their causal relationship with the actions (inaction) of the person held liable.

In most cases, the administrative or criminal liability of an LLC participant is associated with his/her managerial status in the company. It often arises due to falsification of documents, reports, provision of false information to the tax and other government agencies, due to illegal transactions, non-payment, tax evasion and other obligatory payments, financial violations, etc.

Bringing to administrative or criminal liability may occur at the initiative (application) of any interested person. Often such offenses are detected by law enforcement agencies independently as part of operational-search activities. Sometimes tax and other regulatory authorities apply with an application.

Other types of liability of the LLC founder

The founders (participants) of an LLC have statutory and statutory documents rights and obligations. Abuse of rights, failure to perform or improper performance of duties may result in harm, violation of the rights and interests of the LLC, other participants and third parties. In these cases, liability is also possible. Any person, even the company itself, as an independent legal entity, has the right to bring a claim against the founder. As a rule, such issues initially fall into the category of corporate disputes, and damages are collected in the usual manner - within the framework of lawsuit proceedings in an arbitration court.

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 LLC Law 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 reporting. 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 founders of an LLC for the debts of the company in 2018

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, technical directors, former key workers 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 case 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 register of 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).

Is the director of an LLC liable with his property for the debts of the company

Is the director of an LLC liable with his property for the debts of the company in 2018? 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 transaction or has not received its approval from 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 the voting, are exempted 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 who are 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 last changes in legislation are a serious tool for its implementation.

Liability procedure

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. How much depends on the arbitration manager full information he will collect about the company-debtor, establish the guilt or innocence of responsible persons, doubt 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 entities 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 state budget in 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;

Since June 28, 2017, the liability of directors and founders for the debts of companies comes even without bankruptcy proceedings ... it is also possible for "abandoned" companies excluded by the Federal Tax Service from the Unified State Register of Legal Entities (in 2016 there were more than 700 thousand such companies) ... Tax debts companies are considered personal debts of the founders and are not "forgiven" as part of the bankruptcy of individuals ... that is, they remain with you for life, until they are fully repaid ... A complete 13-page manual on all types of responsibility of managers and business owners for the company's activities (legal entity). We decided not to limit ourselves to a subsidy. As a result of disputes and multiple clarifications in front of you - a unique guide for managers and owners with system analysis all types of liability for the company's activities: from criminal to personal bankruptcy, from the collection of tax arrears from controlling physicists (since November 2016) to the recovery of damages in criminal cases...

For what and with what the managers and owners of the business are responsible for the debts and tax obligations of the company - such a capacious and complex topic that both of them, judging by the questions at our seminars and customer requests, have a complete mess in their heads.

What a sin to hide while we were preparing given material almost squashed themselves. As a result, you have a complete reference. Capacious and whole. Understand.

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Instead of a preface

As I have repeatedly written, industrial capitalism owes its heyday to the emergence of LLCs and JSCs ... in their modern sense. More precisely, “limited liability” within the authorized or share capital. Until the end of the 19th century, the entrepreneur (the owner of capital in the interpretation of Marx) was fully responsible for the obligations of the enterprise and just a little bit - he went to debtor's prison. Therefore, factories with 20-30 people were considered huge.

The need for consolidated investments in new and growing businesses and the emergence of a plurality of co-owners also required legal tools in the form of limited entrepreneurial risks.

Following LLC and JSC, bankruptcy legislation has also tightened up. By the beginning of the 20th century, rules were introduced everywhere on the cancellation of most debts by creditors as part of bankruptcy.

In Russia, the path, as always, is special. Over the past few years, the legislator has been stubbornly following the path of toughening the responsibility of company managers and founders. Including bankruptcy.

As of 2017, the range of tools for punishing losers is huge and cool at the same time, which will surely lead to the extinction of entrepreneurial activity among toddlers and middle peasants.

Think about it, over the past 10 years, the cost of entering a business for a start-up entrepreneur has increased 100 times, since risks in the ruble equivalent of potential liability should also be considered as an initial investment in a business.

I agree that an entrepreneur should behave reasonably. Yes, this is an activity at his own risk. But, you see, an entrepreneur cannot and should not be held responsible for a two-fold deliberate devaluation of the ruble, for example ... and even more so for the ensuing massive recalls of loans by banks. It cannot be held responsible for the end-to-end kickback system of big business. For twenty years of condoning the almost universal use of “one-night stands” (including as a result of a through system of kickbacks), and then for a sharp change in the rules of the game - from tax rules to lending conditions. An entrepreneur, let me say, bears risks at least by spending part of his life, health, family well-being in every sense ... and runs the risk of not earning anything at the same time, unlike his hired employees (for delaying the payment of salary to whom he is also criminally liable, and for trying to pay salary in a difficult situation, even from good intentions to the detriment of tax liabilities and creditors - will be liable twice, or even three times ... the circle is closed).

However, there is something. You are already in trouble running and/or owning a business. Let's break it all down. So, at least, you will be able to give a real assessment of what you get from the business. As a maximum, remove a certain number of threats and finally stop asking us the questions “why do we need hidden ownership of a business” or “why a business must be a group of companies”.

1. Responsibility for violation of the current legislation

Subject: Head of the organization.

A responsibility: administrative, criminal.

What is provided: Code of Administrative Offenses of the Russian Federation, Criminal Code of the Russian Federation.

Boundless like the ocean Russian legislation contains great amount standards, rules, procedures and procedures, for the violation of which not only the legal entities themselves, but also their leaders are subject to administrative and, if the outcome of the act is more deplorable, to criminal liability. They did not beat off and did not issue a cash receipt to the buyer, did not notify the relevant authority of the conclusion employment contract with a migrant, violated the deadline for notifying the founder of the company about an extraordinary meeting of participants in the company - get a fine, both for the company itself and for its director. It is better to familiarize yourself with specific risks in advance, depending on the field of activity, by reading the Code of Administrative Offenses of the Russian Federation and the Criminal Code of the Russian Federation at your leisure. Fines can be significant. From the saddest: disqualification of the head and, of course, imprisonment.

As for criminal liability specifically for tax crimes (Articles 198, 199, 199.1, 199.2 of the Criminal Code of the Russian Federation), there are several nuances here.

Since 2016, the threshold for criminal liability for tax evasion has been significantly increased. Up to 900 thousand rubles for individuals. And up to 5 million rubles for legal entities. In the media, this is called the buzzword decriminalization of the act. However, if you happen to look at the statistics of average additional charges for one field tax audit (more than 7 million rubles in Russia), then it becomes obvious that we are dealing with another marketing ploy. In other words, any average tax audit gives grounds for initiating a criminal case (of course, if you do not immediately rush to pay for the requirement of the inspection).

Separate emphasis on Art. 199.2 of the Criminal Code - concealment of property from the collection of taxes. Dashing business owners or managers, sensing something was wrong and holding in their hands the decision of the tax authority on the appointment of an on-site audit, are frantically looking for a way to withdraw money or property from potential recovery. But in vain. This corpus delicti is very formal. It is relatively easy to prove. The fact of transferring money, alienating property, and even directing proceeds to bypass a potential debtor directly to suppliers and contractors is a crime. Of course, if its cost starts from 2.25 million rubles.

For non-payment of social contributions, despite the fact that they became the head of 34 tax code until there is no criminal liability. The corresponding bill lay in the Duma and turned sour. Apparently it will be new. Because it will definitely become a crime.

2. Liability for culpable damage to the company

Subject: heads of the organization (sole and members of the collegial body).

A responsibility: compensation for damage.

What is provided: Art. 53.1 of the Civil Code of the Russian Federation, Art. 44 of the Federal Law "On LLC", Art. 71 FZ "On JSC".

It is quite logical that the executive body of the Company, whether it be a director, president, manager or member of the board, is obliged to act in good faith and reasonably in the interests of the company he leads (this is what the relevant laws - “On LLC” and “On JSC”) require. In the event that he, violating these principles and taking advantage of his position, causes damage to the company: for example, he concludes a deal in violation of the interests of the owners and / or bypassing the mandatory procedure for its coordination with them, which turned out to be unprofitable for the company, the damage caused can be recovered from him . And in full size.

Until 2013, the possibility of recovering damages from the company's management bodies was a fantasy: the courts demanded that the exact amount of damages be determined and referred to the probabilistic nature of the assumptions about their infliction.

fixed this situation The Supreme Arbitration Court of the Russian Federation in its Decree of the Plenum of July 30, 2013 No. 62. Among other things, the court indicated situations where the unreasonableness and/or bad faith of the director's actions is considered proven. For example, if he made a deal on conditions that are obviously unfavorable for a legal entity or with a person who is obviously unable to fulfill an obligation (“one-day firm”). If, as a result of such actions, the company is brought to tax or administrative liability, the losses incurred in the amount of additionally assessed taxes, penalties and fines (if we are talking about a one-day deal) may be recovered from the director.

This ruling reversed the few jurisprudence in cases of recovery of damages from directors of companies by 180 degrees. Now the courts have practically no problems with determining the amount of damage. And what sums, what sums!

• in case No. A41-2271 / 13, about 223.5 million rubles were recovered from the director.
• in case No. A32-7549/13 - almost 126 million;
• in case No. A53-20252/2015 - 59.3 million rubles....

A little later, in 2014, the legislator took into account the opinion of the courts and made appropriate amendments to the Civil Code of the Russian Federation (Article 53.1 of the Civil Code mentioned above).

Who can make such a claim? New director, for example. Or the founders (participants, shareholders) of the company.

from said Decree...

item 2 The bad faith of the actions (inaction) of the director is considered proven, in particular, when the director:

1) acted in the presence of a conflict between his personal interests (the interests of affiliated persons of the director) and the interests of the legal entity, including if the director is actually interested in the transaction by the legal entity, except for cases when information about the conflict of interest was disclosed in advance and the actions of the director have been approved in accordance with the procedure established by law;

2) hid information about the transaction made by him from the participants of the legal entity (in particular, if information about such a transaction, in violation of the law, the charter or internal documents of the legal entity, was not included in the reporting of the legal entity) or provided the participants of the legal entity with inaccurate information regarding the relevant transaction ;

3) made a transaction without the approval of the relevant bodies of the legal entity required by law or the charter;

4) after the termination of his powers, withholds and evades transferring to the legal entity documents relating to the circumstances that entailed adverse consequences for the legal entity;

5) knew or should have known that his actions (inaction) at the time they were committed did not meet the interests of the legal entity, for example, he made a transaction (voted for its approval) on conditions that were obviously unfavorable for the legal entity or with a person who was obviously incapable of fulfilling the obligation (“one-day firm”, etc.) ....

item 3. The unreasonableness of the actions (inaction) of the director is considered proven, in particular, when the director:

1) made a decision without taking into account the information known to him that is important in this situation;

2) prior to the adoption of the decision, did not take actions aimed at obtaining the information necessary and sufficient for its adoption, which are usual for business practice under similar circumstances, in particular, if it is proved that under the existing circumstances a reasonable director would postpone the adoption of the decision until additional information is received;

3) made a transaction without observing the internal procedures usually required or accepted in this legal entity for making similar transactions (for example, coordination with the legal department, accounting department, etc.).

The very fact of unprofitable activity or other negative consequences, of course, is not evidence of the unreasonableness and / or bad faith of the actions of the director, since they may be the result of an unfavorable economic situation and other external factors. risky nature entrepreneurial activity no one has canceled it, and therefore, of course, it will not work to assign the entrepreneurial risks of the founders to the director. However, we can assume that the practice has developed over the past three years.

3. Liability in bankruptcy

Subject: controlling person (it does not matter if the founder, director or cleaning lady). The one who actually runs the organization.

A responsibility: subsidiary (additional), for the debts of the organization in case of insufficiency of its property.

What is provided: Art. 10 FZ "On insolvency (bankruptcy)".

To begin with, what does it mean - subsidiary? This means that the amount of liability is equal to the total amount of all claims of creditors that have not been repaid due to the insufficiency of the debtor's property.

Circle of potentially responsible persons:

• founders (participants);
• leaders of the organization;
• trust managers of the company's shares;
• any other individuals who are not formally legally associated with the company, but actually manage or manage the company in the last 3 years before bankruptcy.

Based on the provisions of Art. 2 of the Law, we can say that an individual is involved in the management of a bankrupt organization if he has:

• the right to issue binding instructions for the debtor company;
• the ability to determine the actions of society, including by coercion of its governing bodies;
• determining influence on the head and other members of the debtor's management bodies.

It is possible to bring controlling persons to subsidiary liability within three years from the day when the creditor found out or should have found out about the existence of grounds for this, but no later than three years from the day the debtor was declared bankrupt.

There is an opinion among business owners that vicarious liability is something far and unbelievable. Indeed, it was practically impossible for creditors to prove that the responsible persons were guilty of bringing the company to bankruptcy.

However, to date, the number of cases of subsidiary liability of owners and managers of the company proves the opposite, since there is a presumption of guilt of persons controlling the debtor until they prove otherwise.

What does this mean for you? Guilt is supposed if one of the following conditions is proven:

1. Inability to repay the debt to the creditor in full. What is the probability? Exactly 100%, otherwise why did it go bankrupt?
2. There are no accounting documents and (or) reporting, or it contains distorted information that significantly complicates bankruptcy procedures. Probability? 99%. Since, based on the existing accounting rules, everyone distorts it to one degree or another. Only the subjective assessment of "materiality" remains an indulgence for the leader. I understand that in the current circumstances you are in a state of time pressure, seasoned with depression or fear. But still, when transferring cases to an arbitration manager, make sure that the primary accounting documents are filed in thematic folders, an inventory of each (!) Document is drawn up. It will not be superfluous to take a picture of each (!) Document. Before transferring cases, do a documentary audit. And not for 50 thousand rubles, when the auditor draws up a conclusion according to a pre-written template, but a documentary one. Claim the missing counterparties, no matter what it costs you.
3. More than half of the claims of third priority creditors are due to bringing the debtor or its officials to criminal, administrative or tax liability.

The most common case of the above, of course - tax arrears. Statistically, the Federal Tax Service is the initiator of the bankruptcy procedure in every tenth case. The main difference between such procedures is that the Federal Tax Service is not commercial company, which is dominated by economic expediency. After all, any creditor, before filing an application for your bankruptcy to the court, will think a hundred times: how much he will spend and how much he will hypothetically receive. The Federal Tax Service, as a state body, is devoid of such understanding. In addition, there is no specific person who takes full economic responsibility for specific actions. Yes, employees of the Federal Tax Service and individual departments also have KPIs. But there is no real economic responsibility. Therefore, the FTS often acts tougher. In addition, there are situations when even the most stubborn creditors retreat before the obvious impossibility of collection, but not the Federal Tax Service. After all, there is no one to slow down under their own responsibility. It is reminiscent of a skating rink derailed in the cartoon "Just you wait!" ... rolls itself and rolls.

So far, the most common reasons for bringing the founders and managers of the debtor to subsidiary liability are:

1. Transactions with "one-day" transactions that led to the formation of a company's debt to the budget. Well, how many of you have not sinned this in the last three years?
2. Withdrawal of assets - alienation of property to others controlled persons without a corresponding counter-provision. Since the summer of 2017, an application for bringing to subsidiary liability on these grounds can be filed not only as part of a bankruptcy case, but even after its completion - within three years from the moment the debtor is declared bankrupt, subject to the following two conditions:

• the creditor (authorized body) found out or should have found out about the existence of grounds for bringing the controlling person to subsidiary liability only after the completion of bankruptcy proceedings;
• a similar requirement on the same grounds and to the same persons was not presented and was not considered in the framework of the bankruptcy case.

1. Failure by the head of the debtor to fulfill the obligation to file a bankruptcy petition for the organization he leads, if the signs of insolvency were known to him (or should be known).

On this basis, only the head can be involved. Other persons controlling the debtor (founders, members of the board of directors and other citizens who influence the decisions made by the debtor) cannot be held liable in this case.

Again, since the summer of 2017, the director may be held subsidiary liable even if, after filing an application, the procedure was terminated due to the lack of funds to reimburse court costs for bankruptcy. But we will talk about this in detail later.

Another interesting aspect is the use of denominations for cover from liability. Judicial practice demonstrates that the adoption of a decision to change the actual managers and founders of the company to nominal persons from among friends, employees and relatives not only does not prevent the business owners and real managers from being held subsidiary liable, but is also indirect evidence of guilt.

The decision of the owners to “leave” the debtor company, sending it to join the nominal structure in a remote region Russian Federation, also does not help to avoid liability, since in this case a simplified procedure for declaring an absent debtor bankrupt is provided. And now creditors use this expensive procedure more and more often if there is an understanding that the former manager or owner has personal property that can be taken away.

Therefore, we turn to personal bankruptcy ...

Say a word about personal bankruptcy

Since October 2015, bankruptcy of individuals has been launched. Due to this, if it is impossible (or insufficient) to recover anything from the leaders and founders as part of bringing them to subsidiary liability, there is every chance to get something through their personal bankruptcy.

The wording of the courts in this case is as follows: the debt of an individual, which has arisen as a result of bringing him to subsidiary liability to the creditor of a bankrupt company, is a monetary obligation and can serve as a basis for initiating bankruptcy proceedings against an individual.

In this regard, the controlling persons of "bankrupt" companies should be wary of initiating bankruptcy proceedings against them if:

• the amount of debt in the framework of bringing them to subsidiary liability exceeds 500 thousand rubles;
• and they cannot repay it within 3 months from the date of entry into force of the court decision on bringing them to subsidiary liability.

The main trouble of getting into the personal bankruptcy procedure is the ability of creditors to challenge the transactions of debtor physicists, including marriage contracts and property donation agreements.

But that's not the worst...

As a general rule, after the completion of settlements with creditors, the debtor (individual or legal entity) declared bankrupt is released from further fulfillment of creditors' claims. However, this general rule has a number of significant exceptions.

And the most important of them just concerns the requirements of creditors to bring an individual, as a controlling person, to subsidiary liability.

In other words, the claims of creditors after declaring a citizen bankrupt remain valid regardless of whether they were filed as part of the bankruptcy proceedings of an individual and included in the register of creditors or not, and can be presented by creditors after the end of the proceedings.

Thus, the participants and leaders of a company declared bankrupt, brought to subsidiary liability, will not be able to get rid of the debt hanging over them. Initiation of bankruptcy proceedings, neither by the person in relation to himself, nor by any creditor, will not help in this. Unfortunately, this debt cannot be written off.

As a result, no matter how sad it may sound, the debt that arose as part of bringing to subsidiary liability is listed with the controlling persons of the bankrupt company indefinitely until it is paid off.

I'm bankrupt. No, I'm bankrupt.

According to the law, the head, having come to the conclusion that the company is insolvent, is obliged to apply to arbitration court with a declaration of bankruptcy. The obligation was introduced to prevent wider negative consequences for creditors, so that the company could not incur further unsustainable monetary obligations.

It is precisely with the root cause of the inclusion of this basis of liability in the legislation that its key feature is connected - it is possible to bring the head (and only the head) to subsidiary liability for late submission of the debtor's application for far from all obligations, which are not enough to satisfy the property of the Company. He is liable only for those that arose after the expiration of the period allotted for filing such an application.

Therefore, in practice, all litigation of bringing the head (liquidator) of the debtor to subsidiary liability is associated with the establishment of the date of the obligation to file an independent bankruptcy petition.

For the head, one month is set, and for the liquidator - 10 days for filing an application from the moment one of the following circumstances occurs:

• satisfaction of the claims of some creditors leads to the impossibility of fulfilling others;
• foreclosure on the debtor's property will significantly complicate or make impossible the debtor's economic activity;
• there is an outstanding debt to employees within 3 months;
• the debtor has signs of insolvency and (or) insufficiency of property.

Insufficiency of property - the excess of the amount of monetary obligations and obligations to pay obligatory payments of the debtor over the value of the debtor's assets;

Insolvency is the termination of the debtor's performance of a part of monetary obligations or obligations to make obligatory payments, caused by insufficient funds. In this case, the presumption of insufficiency of funds applies until proven otherwise.

(paragraph 35 and paragraph 36 of article 2 of the Bankruptcy Law)

In fact, all of the above circumstances intersect with each other and in practice come down to proving that the Company has signs of insolvency and insufficiency of property. To resolve this issue, we propose to proceed from the approach that has developed in judicial practice on the basis of a systematic interpretation of the rules on bankruptcy, to determine the financial insolvency of the debtor and the insufficiency of property:

Under financial insolvency, it is necessary to understand a state that does not allow him to satisfy the requirements of creditors for monetary obligations and (or) fulfill the obligation to pay mandatory payments, which amount to at least 300,000 rubles. within 3 months from the date when they must be executed.

Simply sending a claim by the creditor to the debtor for the payment of the debt and failure to fulfill it on time is not evidence of the debtor's insolvency. At the same time, in all cases, the courts take into account the fact that obligations are not fulfilled precisely due to the absence of any assets from the Company.

The deadline for filing an independent application of the debtor for bankruptcy is determined in the following order:

Actually, for the violation of these deadlines, the “subsidiary” will fly to the head. Own, personal, personal. Even if he was innocent of the fact of bankruptcy.

To determine the limits of such a special form of subsidiary liability, all obligations of the debtor company can be divided into two groups: those that served as the real cause of bankruptcy and those that arose after the appearance of signs of bankruptcy. For failure to file an application for self-bankruptcy, it is possible to bring the head of the debtor to responsibility only for the latter. According to the first group of obligations, the head is held liable on general grounds - if he brought the company to bankruptcy by his actions. At the same time, it does not matter what obligation the debtor could not repay: he did not pay taxes, did not return the loan, did not pay for goods (works, services) within the period established by the contract.

On the other hand, a creditor whose obligations arose after a month from the moment the company showed signs of bankruptcy can count on the fulfillment of obligations to him at the expense of the director in any case.

Obviously, in practice, in order to bring to subsidiary liability on the basis under consideration, it is important not only that the Company has an undisputed / confirmed by a court decision debt for more than three months, but also that there are no assets to pay it off.

4. Liability WITHOUT bankruptcy

Subject: director and controlling persons.

A responsibility: on the debts of the organization in the absence of its property.

What is provided: p.5, 5.7, 5.8 Art. 10 of the Federal Law "On Insolvency (Bankruptcy)" as amended by Law No. 448-FZ of December 28, 2016

Now, developing the theme, let's imagine that the head of the debtor company has not filed for bankruptcy of the company he heads and, it seems, should be held liable. But the creditors, no matter how hard they tried, could not initiate bankruptcy proceedings. For example, the application was returned by the court due to the lack of funds to reimburse the court costs for the bankruptcy procedure. There is such a reason for the court. Or, let's say, the bankruptcy proceedings were terminated on the same grounds and they did not manage to hold the director accountable.

How to be creditors in this case? Will the director walk away unscathed? Until the end of June 2017, it will be so. However, this summer, creditors and authorized bodies have the opportunity to bring the persons controlling the debtor to subsidiary liability outside the bankruptcy procedure. Representatives of the Federal Tax Service, "rubbing their hands", have already stated that this approach will allow "two to three times to reduce the number of inefficient bankruptcy procedures."

Application for bringing the director to subsidiary liability in this case:

• filed with the arbitration court that terminated the proceedings in this case (returned the application for declaring the debtor bankrupt);
• considered in a lawsuit;
• may be filed within three years from the date on which the creditor knew or should have known about the existence of grounds for filing such an application.

However, this is not all. The director may not be to blame for the failure to file for bankruptcy. For example, the head has written evidence that the owner, despite repeated requests from the head, and even being a creditor in relation to the company, simply “blundered”. He didn't say yes or no. In fact, the owner, as a controlling person, must bear full responsibility. But creditors cannot yet hold him accountable if, again, the court returned the bankruptcy petition or the proceedings were terminated due to lack of funds to pay for the procedure.

However, from the summer of 2017, creditors will be able to go to court with statement of claim on the recovery in their favor from controlling the debtor of the persons referred to in Art. 53.1. Civil Code of the Russian Federation, losses caused through their fault to the debtor outside the framework of bankruptcy.

The amount of losses in this case should not exceed the amount of claims of such a creditor against the debtor. The creditor must also prove that the persons controlling the debtor acted in bad faith and unreasonably.

Another important change will affect legal entities forcibly excluded from the register.

From June 28, 2017, persons controlling such a company over the past three years may be held subsidiary liable if the legal entity excluded from the register has unfulfilled obligations due to unfair and unreasonable actions of these controlling persons.

The main beneficiary of such amendments is the budget represented by the Federal Tax Service. To date, after the exclusion of the company from the Unified State Register of Legal Entities, creditors cannot present any claims against the founders, the director of this company. This allows entrepreneurs to “drop” or “freeze” their companies for the time being, having previously changed the founder or director to a nominee. A year after that, one could consider oneself free from all obligations, primarily tax ones. From mid-2017, in order to get the same effect, it will be necessary not only to wait for the company to be excluded from the Unified State Register of Legal Entities, but also to endure a three-year period for recognizing the former real owners and managers as controlling persons.

5. FULL property liability WITHOUT bankruptcy

Subject: culpable controlling person

A responsibility: civil liability for causing damage to the state in the form of unpaid taxes

What is provided: general rules on liability, taking into account the position of the courts (Decisions of the Constitutional Court No. 1470-o of 17.07.2012, No. 786-o of 05.28.2013, Determination of the Supreme Court of the Russian Federation of 01.27.2015 No. 81-KG14-19)

After the adoption of the Decree of the Armed Forces of the Russian Federation of January 27, 2015 No. 81-KG14-19, the tax authority has another serious tool for collecting arrears, namely: the recovery of damage from individuals controlling the organization in the framework of a criminal case.

Previously, the courts did not recognize the possibility of recovering damages from an individual found guilty of a criminal offense expressed in the non-payment of established taxes and fees by an organization that he controlled on a large or especially large scale. This position was based on the fact that a legal entity is an independent entity, liable for its obligations with all its property, therefore, non-payment of tax by a legal entity cannot be qualified as damage caused to the state by the actions of its head and (or) founder.

Supreme Court resolutely changed this practice with his Definition, indicating in it that an individual who was held criminally liable for this offense can be recognized as liable for compensation for damage to the Russian Federation in the form of taxes not paid by the organization, including unlawful reimbursement from the VAT budget.

Former references of the lower courts to the provisions of Art. 45 and Art. 143 of the Tax Code of the Russian Federation, which strictly establish the circle of taxpayers and the procedure for fulfilling tax obligations, as a basis for refusing to compensate for damage to the budget in this way, the Supreme Court declared untenable, since in this case we are not talking about the collection of taxes, but about compensation for damage caused by a crime.

So, taking into account the position taken by the Supreme Court of the Russian Federation in its Definition, the scheme for collecting additional charges for tax audits looks like this:

If the organization did not appeal the results of the audit in court or the court supported the tax inspectorate and found the organization guilty of committing a tax offense, the inspectorate may, in case of non-payment of additional charges by the taxpayer, resort to bankruptcy proceedings and declare that the persons controlling the debtor are held subsidiary liable.

At the same time, if a tax offense contains signs of a criminal offense (Article 199, Article 199.1 of the Criminal Code of the Russian Federation), then the persons controlling the organization will be required to compensate for the damage caused by their actions to the budget. Moreover, taking into account the position of the Constitutional Court, the obligation to compensate for the damage caused to the budget will remain, even if the criminal case against the controlling persons (director, founder, member of the Board of Directors) was terminated on the so-called non-rehabilitating grounds - due to the expiration of the statute of limitations for criminal liability (according to part 1 of article 199 of the Criminal Code, it is only 2 years) or as a result of an amnesty act.

Example: Energotechnologies LLC case As a result of the decision of the tax authority based on the results of the tax audit and failure to comply with the requirement to pay taxes, the materials regarding the director were transferred to the Investigative Committee. Criminal case under Part 2 of Art. 199 of the Criminal Code of the Russian Federation in relation to the director was terminated in connection with the act of amnesty for the 70th anniversary of Victory Day. However, at the same time, the director is obliged to pay 23 million rubles of additional taxes as a damage to the budget caused by his actions.

6. Responsibility FOR the very fact of bankruptcy

Subject: company leaders and members

A responsibility: administrative or criminal

What is provided: Criminal Code of the Russian Federation, Code of Administrative Offenses of the Russian Federation

Do not forget that, in addition to the additional responsibility of the company's managers and owners due to its financial insolvency, there is a responsibility in principle for bringing the organization to bankruptcy, including for hiding its property.

Example: the case of LLC "Uralsky Les"

Due to financial difficulties in the business, the director, who is also the founder of the company, accrued and paid wages employees, but there were no longer enough funds to withhold personal income tax from the wage fund. From the point of view of the court, there is a selfish motive in the actions of the director: he wanted to save face in front of employees instead of reducing salary payments, but transfer personal income tax to the budget (for non-payment of salary, he could also be subject to criminal liability, but that's not the point). Thus, based on the materials of the Federal Tax Service, a criminal case was initiated under Part 2 of Article 199.1 of the Criminal Code of the Russian Federation.

Since, despite the efforts of the director, the company still entered the bankruptcy procedure, a criminal case was initiated under Art. 196 of the Criminal Code of the Russian Federation - deliberate bankruptcy. The director was charged with the obligation to compensate the budget for damages (although legally, of course, personal income tax is a tax on individuals, employees ... the company is only an agent) in the amount of 10.9 million rubles.

7. Responsibility “for that guy”

Subject: any interdependent person (legal and natural)

A responsibility: full responsibility for the debts of the organization

What is provided: Art. 45 of the Tax Code of the Russian Federation

To date, a simple transfer of financial and economic activities to another formally independent operating company with the concealment of the actual owners of companies behind nominees does not give anything at all if you intended to “cut off the tails” in the form of accumulated tax risks. If tax arrears are identified as part of a tax audit, the tax authorities can file a claim with the court to recognize the new operating company as dependent and recover from it the entire amount of the tax debt of the “abandoned” company.

This requires two conditions:

1) The dependence of companies established in court.

At the same time, evidence of such a dependence can be:

• registration of a newly created operating company during the period of an on-site tax audit of an existing operating company;
• the presence of a common founder and head of the companies or the mutual participation of companies in the authorized capital of each other (by the way, this is not a mandatory criterion at all);
• companies have the same actual addresses, contact numbers, email addresses, websites, activities, trademark;
• accounts opened in the same banks;
• the newly created company begins to work with counterparties of the first operating company on the same contractual terms;
• the original company assigns its rights under the concluded agreements to the newly created operating company or terminates previously concluded agreements with all or most of its counterparties, and the newly created company concludes similar agreements with them in a short period of time;
• transfer of all employees from existing company in a newly created company;
• property is transferred to a dependent company, there is a possibility of influencing decision-making;
• transfer by counterparties to the newly created company of the proceeds that were previously transferred to the address of the existing operating company;
• other circumstances indicating that the new company is identical to the old company.

2) Receipt to the accounts of the dependent company of the proceeds or property of the debtor.

And we are talking here not only about the simple receipt by a dependent company of proceeds “by letter” addressed to a third party. Termination of contracts and conclusion of contracts with the same contractors on behalf of a new organization on comparable terms also corresponds to this condition!

Under these circumstances, parent companies, subsidiaries, as well as formally independent, but having signs of a "duplicate" company, are liable for the tax evader in full. That's what we call it: responsibility "for that guy."

You may not have had time to taste such opportunities for collecting tax arrears. And Article 45 of the Tax Code of the Russian Federation has already been rewritten since November 30, 2016, replacing the word “organizations” with “persons”. As a result, the legislator has already placed interdependent physicists on a par, who also now bear the entire burden of tax liability for the non-paying company if the above conditions are met.

Well, that's all for now. Although no. After all, we talked mainly only about property liability ...

Our other materials to help you:

One of the most interesting views legal persons is considered . With this organizational and legal form, the founders of the company bear liability solely within the framework of authorized capital.

General meeting - a meeting between the participants of the company, who may be a part of it personally or through their representatives. The latter are required to present proof of authority.

Each member must be registered, otherwise they cannot be part of the .

At the general meeting, the following actions can be carried out:

• determine the activities of the company
• approve the charter of the LLC, change it, as well as the size, name, and location of the company
• approve draft annual reports
• appoint an audit
• make decisions regarding the reorganization or liquidation of the company
• form the executive bodies of the company
• solve other issues

The Board of Directors, which can also form the executive bodies of the LLC and terminate them, adopt major contracts, and hold a general meeting.

The sole or collegial executive body, which is elected by the general meeting of participants. Only an individual who does not need a power of attorney to act on behalf of the company can be appointed, he can issue powers of attorney for other persons, issue orders for hiring, dismissal, transfer to another position, encourage and punish employees. As for the collegial executive body, its actions are regulated by the charter of the LLC.

All of these governing bodies must act in the interests of the LLC. And also they all bear before society for losses, if they were to blame for the latter. The only exceptions are members of the management who did not take part in the voting.

Responsibility of the founders of the company

The LLC is liable with its property for its debts and obligations. This means that if the company is not able to independently cover all the debts under the obligations assumed by it, they will not be obliged to cover the unpaid part of the debt at their own expense.

The founders, as well as the managing bodies of an LLC, may be held administratively, financially, and also criminally liable.

Founders are brought to administrative responsibility if they violate labor protection standards, work without permits or permits, or violate fire safety rules.

Founders may be held criminally liable if they commit illegal actions in relation to the activities of the organization.

Thus, criminal liability is possible if:

• the founder hid the property of the LLC and falsified information about its price
• disposed of the company's property illegally
• unlawfully repaid material claims
• financially inadequately satisfied property claims
• due to his actions, the founder caused losses to the LLC in the amount of more than 250 thousand rubles
• forced to make deals, and this caused losses to the organization
• due to the actions of the founder, the organization evaded payment of state and municipal taxes and fees
• transferred money in foreign currency illegally, as a result of which he evaded paying customs duties

The initiator of bringing the founder to criminal liability may be creditors and partners of the enterprise.

As part of criminal liability, the court may recover from the founder a sum of money for, sentence to imprisonment, deprive the right to hold leadership positions.

Financial liability is borne in the form of fines or penalties from wages.

Liability of the founder for the company's debts

In case of material liability, the founders of an LLC are liable for losses, debts and obligations of the company solely within the framework of authorized share. As it was written above, they answer with their personal funds only for the losses that were caused to society through their fault.

Thus, everyone is responsible for his own actions, therefore, for example, he will not be punished for the actions of a lawyer.

Responsibility can be recovered in the form of a reprimand, dismissal, compensation for harm by deduction from salary or a one-time recovery.

The liability of the founders can be established both by the LLC itself and by the court.

It should be mentioned that the legislation provides for the case when the founder will be liable for the debts of the LLC. This happens in the case described below.

Subsidiary liability of the founder

Subsidiary liability can be called a situation where the organization bears additional obligations for the debts of the LLC. Within the framework of subsidiary liability, the founder of the LLC, its higher officials, such as the Chief Accountant, manager, head, may be held liable to creditors.

In the event of bankruptcy, under certain circumstances, creditors may demand repayment of the debts of the LLC with the personal funds of the founder.

This situation may arise if:

• the founder made a decision that caused losses for creditors and partners
• execution of the decision taken by the management body of the LLC, affected the insolvency of the organization
• maintenance and safety of tax reporting, as well as accounting documents were not ensured
• no decision was made to file a lawsuit to declare the company bankrupt in the presence of all the necessary circumstances for this

Liability in bankruptcy

In case of bankruptcy, the founder will be liable for debts within the limits of the authorized share, if he did not influence the insolvency of the company by his actions. If he has not paid in addition his share in the capital, this amount will be recovered from him additionally.

Is the company facing a fine, bankruptcy, or even a criminal case? Traditional questions arise: "Who is to blame, and what to do?". What to do in such a fatal situation, we will not advise. But who is to blame and what threatens him for this - let's figure it out. An exciting topic is the responsibility of the LLC.

Types of liability LLC

What can the company and its officers be responsible for? Unfortunately, it happens that the activities of an LLC are accompanied by illegal actions that can lead to the collapse of the entire enterprise. The word "collapse" means debts, courts and other problems. Depending on the wrongful acts committed, three types of liability can be imposed on the perpetrators:

• Material.
• Administrative.
• Criminal.

Responsibility of director

So, let's figure out what are the obligations of the participants in a limited liability company. In an LLC, the founders (participants) and the director “rule”. The directors of an LLC are hired by the founders to manage the enterprise, and his fate (in terms of responsibility) is unenviable. In which case, he bears full legal responsibility - both material, and criminal, and administrative. The guilt of the manager must be proven in court. Moreover, the court against the directors of the founders of the company.

All kinds of liability for the collapse of the enterprise can be assigned to the director of an LLC.

Responsibility of the founders (participants) of LLC

We can immediately say that in terms of liability, the founders of an LLC are protected by law. If the company has troubles in the form of debts, loans, etc., then the founders are responsible for this only with their authorized capital (Article 56 of the Civil Code of the Russian Federation). In other words, paying off debts to creditors, the founder does not risk his property. Moreover, even if all the property and assets of the LLC are sold under the hammer, and creditors still do not have enough money. Only if the owner at one time is not fully in the authorized capital, he will have to pay the missing share out of his own pocket.

In terms of liability, the founders of an LLC are protected by law.

However, the responsibility of the founders of an LLC is not limited to this. We also note that the founders have joint and several liability. It is provided for in paragraph 6 of Art. 11 No. 14-FZ and is relevant at the stage of establishing an LLC. If the LLC has obligations before state registration, the founders will be responsible for them. For example, an LLC owes money for making a seal or legal advice.

If a company has the only founder and director in one person, then all responsibility lies with him alone.

Responsibility of the former

If the director and the founder sold the company, who will be responsible?

Administrative responsibility is borne by acting officials. That is, if violations are revealed in the organization, the current director will be held accountable for them, even if the former director made them.

But criminal and subsidiary liability (we will talk about them later) cannot be avoided by “leaving the game”. If the former founders of the LLC or the former director committed a crime, then the punishment will fall on them. Release from office does not yet mean the forgiveness of all sins.

If the former founders of the LLC or the former director committed a crime, then the punishment will fall on them.

Subsidiary Liability

The founders take little risk, but everywhere there are “buts”. If you prove that the company collapsed due to the fault of a particular founder, you can recover damages from him or punish him.

If the founder illiterately intervened in the work of the company and led it to bankruptcy, he can be held vicariously liable. In Art. 399 of the Civil Code of the Russian Federation prescribes specific actions of the equity holder, which can be qualified as leading to irreversible consequences. Subsidiary liability threatens for making illiterate decisions, ignoring legislation and reporting, delaying the decision on bankruptcy.

A person brought to subsidiary liability can be any member of an LLC - the founder, manager, head, and others. The main thing is to prove guilt in court. This is the task of creditors, since it is they who file the lawsuit. And there is one more important condition - the process can only be started if the LLC has already been liquidated.

However, lawyers note that it is very difficult to prove such guilt. Although, according to statistics, by 2017, compared to the previous decade, there were more cases when equity holders were financially responsible and they were charged the company's debts.

Criminal liability

For improper conduct of economic activity, the perpetrator also bears criminal liability. At the same time, if the losses amounted to more than 250,000 rubles, you can get a real prison sentence.

If the losses amounted to more than 250,000 rubles, you can also get a real prison sentence.

Illegal acts include:

• Concealment of LLC property and falsification of information about its value.
• Illegal disposal of company property.
• Illegal repayment of financial claims of creditors.
• Non-satisfaction (or satisfaction not in full) of property claims of debtors.

Do not forget about other legally punishable offenses: fraud, and customs fees, illegal transactions and operations with currency, violation and much more - for all this you can get severe punishment.

By definition, the director is criminally liable for illegal actions, but it can also be imposed on the founders. Art. 179 of the Criminal Code provides criminal penalty the founder in the event that in the course of his activities he forced a deal or a refusal from it, which led the organization to financial collapse.

It is interesting that not only creditors and counterparties, but also the LLC participants themselves, as well as tax and law enforcement agencies, can sue the offender.

Administrative responsibility

In addition to criminal offenses, there are also administrative offenses. There are a lot of articles that you can "get into". For example, bringing an LLC to administrative responsibility threatens to violate the law on advertising, laws in the field of ecology and, violation of consumer rights, fire safety. Activity without a license is also a reason to bring to court.

So, we found out that the liability of LLC participants is limited to a share of the authorized capital, they do not risk personal property. The level of responsibility of the director of an LLC is much higher, therefore, as a rule, it always remains “extreme”. But this formula works only with conscientious conduct of economic activity. If the owner of an organization violated laws, did not pay taxes, accumulated debts, then he will be held accountable for this to the fullest extent. The main thing in this case is to prove guilt in court.

The limited liability of the founders of the company is considered the main advantage of the LLC among other organizational and legal forms of business entities, so the founders quite often choose this particular form.